Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

NORP The events at issue took place in GPE , a NORP town near the NORP border which was heavily attacked by ORG and paramilitary NORP armed forces during the Homeland War from DATE and finally occupied at DATE . DATE ORG was a part of ORG ( the “ ORG ” ) .

In DATE ORG established ORG in LOC , PERSON and ORG ( the “ ORG ” ) , which included ORG . On DATE the ORG mandate ceased and the transfer of power to the NORP authorities began .

According to the applicant , on CARDINAL DATE several members of the NORP paramilitary forces came to her home , took some money and ransacked the house looking for money and gold . The applicant recognised CARDINAL of them as GPE , GPE and GPE

On DATE CARDINAL men , dressed in ORG uniforms , CARDINAL of whom was PERSON and personally known to the applicant , came to the applicant 's family house in GPE . They hit her husband , PERSON , before taking him away . TIME the applicant heard shots from an automatic weapon . The uniformed men then also took the applicant and her grandson , PERSON , together with some other persons , including PERSON , to the military headquarters . On the way there the applicant saw the dead body of her husband , his head battered , lying on a path in front of a house ; the persons who had brought him out of the house were standing next to the body .

In DATE the applicant reported the above - mentioned event to the GPE police station , which was located in GPE at that time .

On DATE ORG lodged a criminal complaint with ORG against CARDINAL alleged offenders ( PERSON , GPE , FAC , ORG , GPE , GPE , GPE , ORG , GPE and GPE ) , alleging that on DATE they had arrested several individuals and then killed CARDINAL of them , CARDINAL of whom was the applicant 's husband , and had thus committed a war crime against the civilian population . Following a request of ORG , dated DATE , ORG opened an investigation in respect of the CARDINAL suspects on DATE on the criminal charge of armed rebellion . ORG also ordered the suspects ' detention and issued a warrant to find and arrest them , as they had absconded .

On DATE ORG heard evidence from the applicant and her son . The applicant said that in DATE and DATE , after the NORP forces had entered ORG , but before the city finally fell , several persons , including her former neighbours GPE , ORG and CARDINAL brothers PERSON , all dressed in ORG uniforms and equipped with shotguns and PERSON , had been coming to the yard in front of her house DATE , threatening her and asking for her sons . She further stated that CARDINAL of the persons who had come to her house on DATE and taken her husband away was PERSON , but she did not know the names of the others . TIME , while she was being taken to the military headquarters , the applicant had passed the dead body of her husband . Her neighbour , PERSON , who had been with her at the time , knew the names of the men who had taken the applicant 's husband away .

On DATE the GPE State Attorney 's ORG requested that the investigation be extended to CARDINAL further suspects , Đ. P. and ORG The charge was changed to CARDINAL of war crimes against the civilian population . It was also requested that CARDINAL witnesses be called once the police had found out their addresses . On DATE the ORG requested the police to inform them of the addresses of the CARDINAL witnesses . On DATE ORG extended the investigation to GPE and ORG and issued arrest warrants against them . On DATE the police gave ORG the requested addresses .

On DATE the applicant and another witness gave evidence before ORG . The applicant specifically named one of the perpetrators , and the witness PERSON said that she had seen all CARDINAL suspects at the scene .

On DATE ORG stayed the investigation on the ground that the suspects and some of the witnesses resided in the occupied territory of GPE , where the NORP authorities were not able to exercise their power .

The Convention was ratified by GPE on DATE .

The territories of ORG , PERSON and PERSON were re - integrated into GPE in DATE .

On DATE jurisdiction in the matter was transferred to ORG ( Županijski sud u Vukovaru ) and the investigation was resumed .

On DATE CARDINAL of the suspects , PERSON , was arrested and gave evidence before an investigating judge of ORG . On DATE the investigating judge heard evidence from CARDINAL further suspects , GPE , GPE and GPE On DATE PERSON again gave evidence before the investigating judge . All the suspects denied their involvement in the murder of the applicant 's husband . On DATE the applicant again gave evidence .

On DATE the GPE State Attorney 's ORG requested a further investigation . On CARDINAL and DATE the investigating judge again heard evidence from the witness ORG and CARDINAL other witnesses . Witness PERSON , who had been ordered to bury the body of the applicant 's husband , stated that he had been arrested by members of the NORP paramilitary forces and taken to the place where the dead body of the applicant 's husband had been lying . The head had been battered and the body was riddled with bullets . The witness could not name any of the uniformed men who had been standing next to the body and had ordered him to bury it . The other witness , PERSON , had no knowledge of the relevant facts .

The applicant enquired about the investigation on several occasions and on DATE she was informed that an investigation had been opened against GPE , GPE and others in ORG on charges of war crimes against the civilian population , and was still pending .

On DATE the investigating judge terminated the investigation following a general amnesty granted in respect of the criminal offence of armed rebellion . On DATE a CARDINAL - judge panel of ORG quashed that decision on the ground that , prior to the amnesty , the offence had already been reclassified as a war crime against the civilian population . On DATE the case file was forwarded to the State Attorney 's Office . On DATE that ORG requested a further investigation .

A psychiatric report in respect of witness GPE was commissioned . The report was submitted to ORG on DATE . On DATE GPE gave evidence before the investigating judge . He had no specific knowledge of the facts in issue . Further hearings were held before the investigating judge on DATE , DATE and DATE . In the meantime , on DATE , the investigation in respect of PERSON was terminated owing to his death .

On DATE the applicant complained to the ORG Attorney of inactivity and delays in the investigation into the death of her husband and of failure to commit the suspect for trial .

At a hearing held before the investigating judge on DATE witness PERSON gave her evidence .

On DATE the applicant again gave evidence . She stated that another witness , TIME , had been present when her husband had been taken away on DATE . TIME was not called as a witness .

Further hearings were held before the investigating judge on DATE , DATE , DATE , DATE and DATE .

On DATE the applicant lodged a constitutional complaint of inactivity on the part of the investigating authorities . ORG answered in a letter of DATE that the applicant 's complaint was not suitable for proceedings before that court .

At hearings held before the investigating judge on CARDINAL DATE and DATE , further witnesses gave evidence .

Identification parades were held on DATE and DATE in order to verify the identity of the suspect PERSON of the CARDINAL witnesses called , including PERSON , recognised him as one of the people who had taken the applicant 's husband away . On DATE the investigation in respect of PERSON was terminated for lack of evidence .

On DATE the investigating judge requested international legal assistance in order to have the suspect ORG interviewed in GPE . On DATE , in reply to a request from the NORP authorities , the investigating judge supplied a list of questions to be put to ORG The latter was heard by the NORP authorities on DATE .

On DATE the investigating judge heard evidence from witness PERSON

On DATE ORG terminated the proceedings in respect of the suspect PERSON because he had died .

On DATE the offence with which the suspects had been charged was reclassified as armed rebellion . On the basis of that reclassification and pursuant to LAW , ORG terminated the proceedings on DATE .


Government's request for strike-out rejected;Violations of Art. 6-1;Not necessary to examine Art. 13;Violation of P1-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic and Convention proceedings

The applicant bank was set up and acquired a banking licence in DATE . On DATE its licence was revoked by the BNB and on DATE it was put into compulsory liquidation ( see paragraphs CARDINAL and CARDINAL below ) . On DATE the bank was wound up and it was struck off the register of companies ( see paragraph CARDINAL below ) .

On DATE the ORG ruled that the applicant bank was insolvent .

On DATE the ORG lodged a petition with ORG to wind up the applicant bank .

In a decision of CARDINAL DATE the ORG found that the overall amount of the applicant bank ’s outstanding major loans was CARDINAL times greater than the amount of its capital ( including paidup capital and reserves ) , when the regulatory maximum was CARDINAL times . Considering that that situation put at risk the bank ’s ability to operate and posed certain other problems with its financial standing , it decided to restrict the bank ’s operations . In particular , it prohibited it from taking deposits , granting loans or other credit facilities , purchasing bills of exchange or promissory notes , entering into foreigncurrency or preciousmetals transactions , entering into deposit transactions , acting as a surety or guarantor or providing security to third parties , effecting noncash operations , clearing current accounts of third parties and conducting factoring transactions . The ORG also appointed a special administrator ( see paragraph DATE below ) to supervise the activities of the applicant bank and to verify whether it complied with the restrictions .

On DATE ORG , finding that the BNB had yet to revoke the applicant bank ’s licence , which was a precondition to making a winding - up order under LAW of DATE , discontinued the proceedings . Its decision was upheld by ORG on DATE .

In principle , it would have been possible to remedy the problems noted in the ORG ’s decisions of DATE and of CARDINAL DATE ( see paragraphs CARDINAL and CARDINAL above ) by increasing the applicant bank ’s capital .

This appears to have been the reason why on DATE the applicant bank ’s general meeting of shareholders resolved to issue new shares up to an amount of CARDINAL old NORP levs ( ORG ) , to be subscribed by the shareholders . The resolution was registered by ORG and took effect on DATE .

CARDINAL of the applicant bank ’s shareholders , TOO Royal Flash and ORG , subscribed the shares and , accordingly , became liable to pay for them . However , they sought to discharge this liability by other means . On DATE and CARDINAL and DATE the CARDINAL shareholders purchased , at a discount , debts due by the applicant bank to the ORG and several other banks and companies . By virtue of these debt assignments the applicant bank ’s shareholders also became its creditors . They advised the applicant bank that they wished to set off their obligations to pay for their newly subscribed shares against the debts that the applicant bank now owed them . Accordingly , the applicant bank made entries in its accounts to effect the required set - offs .

On DATE the deputygovernor of the BNB responsible for banking supervision , in whom ORG powers under section CARDINAL of LAW of DATE ( see paragraph CARDINAL below ) were vested , directed the applicant bank to cancel the abovementioned entries in its accounts . She reasoned that the set - offs represented noncash consideration for the shares and that they had been effected in breach of sections DATE CARDINAL of LAW of DATE and of section CARDINAL ) of LAW of DATE ( see paragraphs CARDINAL below ) . The deputygovernor of the ORG also ordered the applicant bank to present to the ORG a rectified balance sheet showing the cancelling of the entries . The order was immediately enforceable and not subject to judicial review ( see paragraph CARDINAL below ) .

In a subsequent decision of DATE ( see paragraph CARDINAL below ) the BNB appears to have considered that the set - offs were in fact a conversion of assets which could not improve the applicant bank ’s financial situation .

On DATE the governor of the ORG , acting on a recommendation by the deputygovernor responsible for banking supervision , revoked the applicant bank ’s licence and appointed CARDINAL special administrators to act in place of the applicant bank ’s board of directors . The reasons for his decision were as follows :

“ In its decision [ of DATE ] the ORG ’s board of governors found that the [ applicant bank ] was insolvent and petitioned the court to put it in compulsory liquidation .

With a view to allowing the [ applicant bank ’s ] managing bodies to improve its financial situation by increasing its capital and accumulating additional funds and thus allowing it to restore itself to a state of solvency , [ the ORG ’s ] banking supervision department decided not to recommend the revocation of the bank ’s licence on grounds of insolvency .

The analysis of the [ applicant bank ’s ] financial situation as of DATE , carried out by [ the ORG ’s ] banking supervision department , indicates that the bank ’s capital has not been increased through the accumulation of additional funds , but mainly through the conversion of assets – a conversion which was , moreover , not carried out in the proper manner DATE which has not led to a substantial improvement in the bank ’s financial situation .

The overall capital adequacy of the bank is negative – PERCENT DATE , and the valuation of the bank ’s assets and liabilities , carried out in accordance with the ORG ’s supervisory requirements and rules , indicates that the value of the bank ’s liabilities exceeds the value of its assets by ORG CARDINAL . Moreover , the bank has failed for DATE to pay a due debt of GPE dollars ( ORG ) to ORG ( in liquidation ) . Because of all these facts the ORG ’s deputygovernor in charge of the banking supervision department has recommended that the bank ’s licence be revoked by reason of insolvency . ”

NORP The decision , a copy of which was sent to the applicant bank by fax on DATE and later by a letter of DATE , which was received by the bank on DATE , stated that it was immediately enforceable and not subject to judicial review ( see also paragraph CARDINAL below ) . On DATE it was published in ORG .

The applicant bank contended that the debt to which the ORG had referred in its decision had in fact been settled . In support of that assertion it presented a decision of DATE of an enforcement judge at GPE , which indicated that by DATE the applicant bank had paid in full a debt to the Commercial and Savings Bank AD under a writ of execution . The applicant bank further claimed that the ORG had been informed of the payment of the debt through a report made by the applicant bank ’s special administrator on DATE . The Government disputed the applicant bank ’s contentions and said that the debt in fact remained unpaid , as ORG had found in its judgment approving the list of agreed PERSON claims in the liquidation proceedings ( see paragraph CARDINAL below ) . The parties also produced a number of other documents in corroboration of their assertions .

The applicant bank further contended that its assets exceeded its liabilities , contrary to what the ORG had found in its decision . In particular , it had money in CARDINAL accounts in banks in GPE . The Government disputed that statement . Both parties presented various documents in corroboration of their assertions .

On DATE the ORG filed with ORG a petition to wind up the applicant bank . In the petition it repeated almost verbatim the findings it had made in its decision of DATE ( see paragraph CARDINAL above ) .

A hearing was held on DATE , at which the applicant bank was represented by the special administrators previously appointed by the BNB ( see paragraph CARDINAL above ) . A prosecutor from ORG also took part in the proceedings , as mandated by former LAW of LAW of DATE ( see paragraph CARDINAL below ) .

Counsel instructed by the special administrators argued that there was no indication that the applicant bank ’s liabilities exceeded its assets or that it had defaulted on a debt which had fallen due . This position was supported by the prosecutor , who also submitted that it was necessary to gather evidence on the applicant bank ’s real financial situation .

In a judgment of DATE ORG granted the ORG ’s petition , declared the applicant bank insolvent , made an order for it to be wound up , divested its decision - making bodies of their powers and the bank of the right to administer its property , ordered the sale of its assets , and appointed liquidators . It found that the conditions for making a winding - up order DATE namely , that an order revoking the bank ’s licence had been made and a copy of that order produced to the court DATE were satisfied . LAW of DATE gave the court limited jurisdiction in proceedings to wind up an insolvent bank . The only fact the court had to verify in such proceedings was whether the above CARDINAL conditions were met . The judgment continued :

“ ... in view of the new procedure introduced by LAW [ of DATE ] , ... the objection ... that the ORG ’s averment of [ the applicant bank ’s ] insolvency is not supported by evidence is unfounded . Unlike the repealed ORG [ of DATE ] , which provided that the ORG had to ... prove ... the bank ’s insolvency , the new LAW [ of DATE ] does not contain such a requirement . Moreover , in section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW the legislature has exhaustively specified the conditions for making a winding - up order [ in respect of a bank ] and the requirements that the ORG ’s petition has to conform to . These boil down solely to indicating the grounds on which the bank ’s licence has been revoked under section CARDINAL ) of the LAW .

The logical and comparativelaw construction of the above provisions ... leads to the categorical conclusion that the changes in the statutory regime of bank insolvency are aimed , on the one hand , at a significant reduction in the court ’s jurisdiction , [ and even ] at taking away its power to determine whether the bank is insolvent , and , on the other hand , at empowering [ the BNB ] to determine that issue without being required to substantiate or prove its finding before the court ...

An argument in favour of the above conclusion is section CARDINAL ) of the LAW , which expressly provides that the decision of [ the BNB ] to revoke a banking licence is not subject to judicial review . ... Gathering evidence relating to the ... insolvency of a bank would run counter to the abovecited prohibition against judicial review .

In view of all this the court finds that all [ the applicant bank ’s ] requests and objections ... contesting the ORG ’s averments about its insolvency are inadmissible and can not be examined . The same goes for the evidence presented by [ the applicant bank ] : even if it is admissible , it should not be taken into account , as it is absolutely irrelevant to the dispute at hand . The CARDINAL abovecited prerequisites – the order ... revoking the banking licence of [ the applicant bank ] and the production of a copy of that order to the court ... – are sufficient for the resolution of this dispute . ”

As the judgment was immediately enforceable ( see paragraph CARDINAL below ) , it was considered that from TIME the persons entitled in law to act on the applicant bank ’s behalf were the courtappointed liquidators . Accordingly , the liquidators represented the applicant bank in the ensuing stages of the proceedings .

The liquidators did not appeal against the judgment , but ORG did . It argued that GPE had erred in not examining whether the applicant bank was in fact insolvent . It had thus turned the proceedings into a mere rubber - stamping of the ORG ’s petition for an order winding up the applicant bank . Had the court taken the trouble to look at the actual circumstances , it would have found that the applicant bank had MONEY in cash , as evidenced by a report drawn up by the BNBappointed special administrators . That fact raised the question whether the ORG ’s finding that the value of the applicant bank ’s liabilities exceeded the value of its assets was indeed true . Also , the ORG had not specified the amount or the date of maturity of the overdue debt the applicant bank was alleged to have failed to pay for DATE . It was thus impossible to carry out an independent assessment of the veracity of its allegation . ORG presented an expert report according to which the applicant bank ’s assets adequately covered its liabilities .

NORP In reply the BNB and the applicant bank ’s liquidators argued that the appeal was unfounded .

On DATE a threemember panel of ORG upheld the Sofia City Court ’s judgment . Although it held that it could independently establish the facts , without deferring to the ORG ’s findings , it was of the view that the applicant bank was indeed insolvent . An analysis of the evidence showed that , according to the ORG ’s deputygovernor , the value of the applicant bank ’s assets was ORG CARDINAL , and the value of its liabilities BGL CARDINAL . The difference between those figures was exactly the amount mentioned in the ORG ’s decision and its ensuing winding - up petition . Turning to the other factual evidence of insolvency – the nonpayment of a due debt for DATE the court held that the applicant bank did in fact owe another bank MONEY under a debt rescheduling agreement of DATE . No payments had been made in satisfaction of that debt . The applicant bank ’s objection that it had not been able to make any payments because of the prohibition on noncash operations imposed on it by the ORG ’s decision of CARDINAL DATE ( see paragraph CARDINAL above ) was unfounded . In any event , the reasons for non - payment were irrelevant , since inability , however caused , to pay a debt for DATE was of itself sufficient for the court to find insolvency .

The Chief Prosecutor ’s ORG filed a petition for review of the judgment of the threemember panel .

On DATE a fivemember panel of ORG dismissed that petition in the following terms :

“ The first - instance court ’s construction of DATE LAW [ of DATE ] – is correct . The regime of bank insolvency is a lex specialis in relation to general commercial insolvency law ... In this context it has to be considered that the ... prerequisites for ... an order winding up a bank are governed not by the general rules of LAW [ of DATE ] , but by the special rules of LAW [ of DATE ] ... This is necessary because of the specific character of the banking business ... [ Banks operate ] predominantly with other people ’s money , which necessitates compliance with strict requirements for capital adequacy , formation of provisions and ... liquidity . [ The BNB monitors compliance with these requirements ] as part of its function of banking supervision , with a view to preserving the stability of the banking system and achieving effective and enhanced protection of depositors . Because of this specificity proceedings to wind up banks are expedited , with a view to protecting the interests of the creditors of the insolvent bank .

ORG correctly held that the soundness and the expediency of the ORG ’s decision to revoke [ the applicant bank ’s ] licence could not be reviewed by the court , because [ the ORG has special powers ] in discharging its banking supervisory duties . By virtue of LAW of LAW [ of DATE ] the court is bound by [ the ORG ’s ] winding - up petition , if it meets the requirements of section CARDINAL ) in conjunction with section CARDINAL ) . [ T]he court does not carry out an additional examination of circumstances evidencing the insolvency of a bank . ... The BNB alone ... has the competence to determine extra - judicially whether the CARDINAL grounds for [ declaring a bank insolvent ] exist . [ This determination ] is not subject to review by the court , which has no latitude in such proceedings . Once the ORG has established the insolvency of a bank before the winding - up procedure begins , the court may not reconsider the issue . It must only carry out a formal , ex facie verification of [ the FAC ] ’s winding - up petition , without venturing into the substantive issues ... , because it is the revocation of the licence itself that constitutes the ground for making a winding - up order . The court may only verify whether [ the FAC ] ’s decision is void , but may not examine whether [ the ORG ’s ] finding of insolvency is borne out by the facts ... ”

Thereafter winding - up proceedings unfolded in respect of the applicant bank .

In the course of those proceedings the applicant bank ’s creditors , which included its CARDINAL shareholders , submitted their proofs of debt to the bank ’s liquidators . The liquidators examined the proofs and drew up a list of agreed claims . CARDINAL of the bank ’s shareholders , TOO Royal Flash and ORG , and CARDINAL other creditors made objections to the list , which the liquidators examined . The liquidators then transmitted the list to ORG for approval . No objections to the list were made to the court , which approved it in a final judgment of DATE . On DATE the liquidators tried to obtain a ruling that a debt to the Commercial and Savings Bank AD did not exist and that the underlying claim should accordingly be disallowed , but ORG declared their request inadmissible in a decision of DATE , holding that no objections had been made to that claim at the appropriate time , and that the existence of the debt had therefore been conclusively established in its judgment of CARDINAL DATE , which was binding on the bank , its creditors and liquidators .

On DATE the applicant bank ’s liquidators applied to ORG ( see paragraph CARDINAL below ) for permission to start negotiations with potential buyers for the purchase of the applicant bank ’s entire undertaking . Permission was granted on DATE and on DATE the liquidators entered into a contract for the sale of the undertaking to ORG , with the latter agreeing to pay a purchase price of ORG and the applicant bank ’s creditors ORG CARDINAL in satisfaction of their claims . The contract was approved by ORG in a final judgment of DATE .

In a final judgment of DATE the same court , on an application by the applicant bank ’s liquidators , brought the winding up to an end and ordered that the applicant bank be struck off the register of companies .

On an unspecified date in DATE CARDINAL of the applicant bank ’s shareholders , ORG , lodged with ORG an application for judicial review of the ORG ’s decision to revoke the bank ’s licence . It argued that the decision was null and void . Later the chairman and vicechairman of the applicant bank ’s board of directors , purporting to act on the bank ’s behalf , requested leave to intervene in the proceedings .

In a decision of CARDINAL DATE a threemember panel of ORG held that the applicant bank ’s request to be allowed to intervene in the proceedings was inadmissible because it had been lodged by persons who no longer represented it . Following the winding - up order and by virtue of section CARDINAL(CARDINAL ) of LAW of DATE , read in conjunction with section CARDINAL(CARDINAL ) of LAW of DATE , the only persons with power to act on its behalf were the liquidators . The court went on to hold that ORG application for judicial review of the ORG ’s decision was inadmissible . Section CARDINAL ) of LAW of DATE excluded decisions by the ORG to revoke a bank ’s licence from the scope of judicial review . That provision was to be construed according to its plain meaning and was applicable regardless of whether the request was to annul the decision or to declare it null and void . Furthermore , ORG had no standing to lodge an application for judicial review , because the ORG ’s decision was addressed to the applicant bank , not to its shareholders .

NORP The chairman and the vicechairman of the applicant bank ’s board of directors and ORG appealed .

In a decision of DATE a fivemember panel of ORG declared the appeal by the chairman and vicechairman of the applicant bank ’s board of directors inadmissible and ORG appeal illfounded . It held that no appeal lay against the refusal to allow the applicant bank to intervene in the proceedings . It also held that the decision not to examine ORG application for judicial review on the merits was correct . The prohibition of section CARDINAL ) of LAW of DATE applied regardless of whether the request was to annul the ORG ’s decision or to declare it null and void .

In DATE the chairman and the vicechairman of the applicant bank ’s board of directors complained to the prosecution authorities about the actions of the ORG ’s deputygovernor in charge of banking supervision who had made the order of CARDINAL DATE and the recommendation to the governor of ORG to revoke the applicant bank ’s licence ( see paragraphs CARDINAL above ) . They argued that she had acted in excess of her powers with a view to causing damage to the applicant bank . On DATE ORG ordered a criminal investigation into the deputygovernor ’s actions . On DATE she was charged with abuse of office . In the course of the investigation the prosecution authorities ordered expert reports on , inter alia , the issue of whether the applicant bank had been insolvent as of DATE . CARDINAL of the experts answered that question in the affirmative , another answered it in the negative .

One of the expert reports , drawn up on DATE , noted that a confidential agreement concluded in DATE between ORG ( “ the IMF ” ) and GPE for the establishment of a currency board in the country stipulated that the right to appeal against the BNB ’s decisions should be preserved , but should not hamper it in the performance of its banking supervisory functions . According to an opinion expressed by the GPE ’s mission in GPE , any successful appeal should only lead to an award of compensation , not to the invalidation of the BNB ’s decision to close the bank . It appears to have been the view of the GPE ’s mission in GPE that the protracted process of judicial review of the BNB ’s decisions and their possible invalidation would not be consistent with the effective process of banking supervision .

On DATE a prosecutor from ORG discontinued the proceedings , considering that the ORG ’s deputygovernor had acted lawfully and had not acted in abuse of office . On DATE another prosecutor from ORG , acting on a complaint by the applicant bank ’s shareholders , decided to reopen the investigation , which the ORG understands is still pending .

In DATE a serious financial crisis unfolded in GPE , leading to economic instability , considerable inflation and the failure of a number of ORG and private banks . As a response to that and after negotiations with the ORG , the country adopted a currency board , whereby its national currency became pegged to the NORP mark , and also established a completely new legislative framework regulating the activity of banks , mainly consisting of the new ORG of DATE ( „ Закон за Българската народна банка “ ) , which entered into force on DATE and DATE , and LAW of DATE ( „ Закон за банките “ ) , which entered into force on DATE and superseded ORG of DATE ( „ Закон за банките и кредитното дело “ ) .

The ORG , established in DATE , is ORG . At present its mission , structure , mandate and powers are principally set out in ORG . Its duties comprise , inter alia , regulating and supervising the other banks in the country with a view to securing the stability of the banking system and protecting the interests of depositors ( section PERSON ) of the Act ) . It is accountable to ORG ( section CARDINAL ) of the LAW ) , which elects its governor ( section CARDINAL(CARDINAL ) of the LAW ) and deputygovernors ( section CARDINAL(CARDINAL ) of the LAW ) . The CARDINAL remaining members of its board are appointed by the President of the Republic ( section CARDINAL(CARDINAL ) of the LAW ) . LAW , as worded at the material time , provided that the ORG was independent of the instructions of ORG or any other government agency in the exercise of its powers .

Under ORG of DATE the ORG could , under certain conditions , restrict the activities of a bank and the types of transactions it could enter into ( section CARDINAL(CARDINAL)(CARDINAL ) of ORG of DATE ; see also section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE ) .

Section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of LAW of DATE allows in broad terms the ORG to direct a bank in writing to remedy breaches of the LAW or of the BNB ’s regulations or other Acts or directives .

Under section CARDINAL(CARDINAL ) in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of ORG of DATE , the ORG could appoint special administrators ( „ квестори “ ) with the power to , inter alia , control the activities of the bank , verify whether it had complied with restrictions , gain access to its LOC and check all its operations ( see also section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) of that Act ) .

Sections DATE and CARDINAL of LAW of DATE also allow the ORG to appoint special administrators to a bank . These special administrators act in lieu of the bank ’s board of directors ( section CARDINAL(CARDINAL ) ) , that is to say on behalf of the bank . They are appointed and dismissed by the FAC ( section CARDINAL ) ) , which may give them instructions ( section CARDINAL(CARDINAL ) ) , and are accountable only to it ( section CARDINAL ) ) . All transactions made by a bank without the prior approval of the special administrators are null and void ( section NORP ) ) .

The ORG is required to revoke a bank ’s licence on the ground of insolvency if ( a ) the bank fails for DATE to repay a debt which has fallen due or ( b ) the total of the bank ’s liabilities exceeds the total of its assets ( section CARDINAL ) of LAW of DATE ) . The value of the bank ’s assets and liabilities is determined by the ORG in accordance with supervisory requirements and its own rules ( section ORG ) ) .

When it revokes a bank ’s licence , the ORG must appoint special administrators ( see paragraphs CARDINAL and CARDINAL above ) if none have yet been appointed ( section ORG ) of LAW of DATE ) . The administrators represent the bank until the court appoints liquidators ( section CARDINAL(CARDINAL ) of LAW of DATE ) . A decision by the ORG to revoke a bank ’s licence is immediately enforceable ( section CARDINAL ) of LAW of DATE ) .

As an exception to the general rules of administrative procedure ( sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW of DATE ( „ Закон за административното производство “ ) ) , the ORG does not inform the bank of the commencement of the procedure for revoking its licence and does not have to examine or take into account the bank ’s representations and objections , if any ( section CARDINAL ) of LAW of DATE ) . Under previous legislation ( section MONEY ) of the now repealed LAW of DATE ) , when revoking a bank ’s licence the only circumstance in which the ORG could dispense with informing the bank of the commencement of the procedure and with examining its representations and objections was if the case was exigent and urgent .

After revoking a bank ’s licence on the ground of insolvency , the ORG is required to file with the competent insolvency court a petition for an order winding - up the bank ( former section CARDINAL(CARDINAL ) of LAW of DATE ; see also sections CARDINAL and CARDINAL of LAW of DATE ( „ Закон за банковата несъстоятелност “ ) , which in DATE superseded the provisions of LAW of DATE relating to the winding up of insolvent banks ) .

Article CARDINAL of the LAW of DATE provides :

“ CARDINAL . The courts shall review the lawfulness of the administration ’s acts and decisions .

Natural and juristic persons shall have the right to seek judicial review of any administrative act or decision which affects them , save as expressly specified by statute . ”

NORP Whereas the ORG ’s decisions under ORG of DATE were , without limitation , subject to review by ORG ( section CARDINAL(CARDINAL ) and ( CARDINAL ) of ORG of DATE ) , LAW of DATE prohibits judicial review of a number of the ORG ’s decisions . Thus , supervisory and enforcement measures ordered by the FAC DATE of the Act are not subject to judicial review ( section CARDINAL(CARDINAL ) of LAW of DATE ) ; neither are its decisions to revoke a bank ’s licence ( section CARDINAL ) of LAW of DATE ) , or to appoint or replace special administrators at a bank ( sections CARDINAL ) and CARDINAL ) of LAW of DATE ) .

LAW of DATE governs the procedure for issuing administrative decisions and for judicial review of such decisions . An application for judicial review must be lodged within a specified timelimit , which varies depending on whether the administrative decision was express or implied and on whether there has been an appeal to a higher administrative authority ( section CARDINAL(CARDINAL ) , read in conjunction with sections CARDINAL , DATE and DATE of the Act ) . The only circumstance in which no timelimit will apply is if it is alleged that the administrative decision is null and void ( section CARDINAL ) of the Act ) .

On DATE the Constitutional Court delivered judgment ( реш. № CARDINAL от CARDINAL ноември DATE г. по конституционно дело № DATE г. , обн. , ДВ брой CARDINAL от CARDINAL ноември DATE г. ) in proceedings that had been brought by CARDINAL members of ORG who considered , inter alia , that sections CARDINAL ) and CARDINAL ) of LAW of DATE should be declared contrary to LAW .

ORG dismissed the complaint in the following terms :

“ [ This ] court has already clearly and categorically expressed the view that ‘ judicial review of administrative decisions is a constitutive element of the rule of law’ ...

The court is of the view that the question of the judicial review of administrative decisions may be resolved only in accordance with the express wording of LAW . According to that provision , judicial review of administrative decisions may be limited only by statute . In the case at hand this means LAW [ of DATE ] .

In view of the wording of LAW in fine of LAW , the court may not come up with an interpretation providing exceptions to the exception . Only the legislature has the power , by statute , to exclude certain administrative decisions from judicial review . [ LAW ] does not lay down any criteria limiting the legislature ’s powers in this respect . This is a question falling within the legislature ’s competence ...

At the same time the court deems it necessary to point out that the legislature ’s right to exclude certain categories of administrative decisions from judicial review is not absolute . In exercising that right ORG must have regard to the main constitutional principles relating to the rule of law and the protection of the fundamental human rights . The power granted to ORG by Article CARDINAL § CARDINAL in fine is an exception and has to be construed and applied restrictively . The character of this exception requires ORG to use its powers in this respect only when it has good and compelling reasons to do so . To hold otherwise would render the principle of judicial review meaningless . For this reason [ this court ] has jurisdiction to assess in each specific case whether the legislature ’s discretion has been exercised within the limits laid down in the LAW ...

An analysis of the decisions excluded from judicial review by LAW [ of DATE ] indicates that the legislature has remained within the bounds of its constitutional discretion in protecting the public interest and the interests of depositors . These are mainly acts of banking supervision , an area in which the competence of the supervisory body can not be supplanted by judicial decision . ... In all cases where the administrative decisions that are not subject to review affect the rights and legal interests of individual citizens , there are no obstacles to their seeking redress in a civil action and claiming compensation for the alleged damage .

In addition , the ORG considers it necessary to emphasise that the rule set out in LAW in fine of the LAW does not preclude the courts from ruling incidentally on the nullity of administrative decisions . To hold otherwise would mean that vitiated administrative decisions , such as decisions issued ultra vires , would be less easy to challenge than a statute , whose unconstitutionality can be established in proceedings before ORG . In this sense the restriction on reviewing administrative decisions is not absolute . ”

NORP Before DATE bank insolvency was regulated by ORG of DATE . From that date onward the newly adopted Banks Act of DATE became applicable to such proceedings ( until DATE , when its provisions relating to bank insolvency were superseded by LAW of DATE see paragraph CARDINAL above ) .

NORP The regime of bank insolvency set forth in LAW of DATE ( and largely followed by LAW of DATE ) contained a number of special features . Only the ORG , not creditors or the bank itself , could petition for a winding - up order against a bank ( former section FAC ) of LAW of DATE ) . The ORG had a statutory obligation to lodge such a petition after revoking a bank ’s licence on the ground of insolvency ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . The petition needed only specify the grounds on which the bank ’s licence had been revoked under section CARDINAL(CARDINAL ) of LAW of DATE ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . A certified copy of the ORG ’s decision to revoke the licence had to be enclosed with the petition ( ibid . ) . The petition was examined by the competent court at a hearing in the presence of a prosecutor from which the public was excluded ( former LAW of LAW of DATE ) . The court had no power to make an order for the restructuring of the bank ( former section CARDINAL of LAW of DATE ) . The bank was divested of the right to administer and dispose of its assets ( former section GPE ) of LAW of DATE ) , and , when granting the petition , the court was also required to immediately order the sale of the bank ’s assets and the distribution of the proceeds to its creditors ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . The court divested the bank ’s decision - making bodies ( such as the general meeting of shareholders and the board of directors ) of their powers ( former section CARDINAL(CARDINAL ) of LAW of DATE ) and appointed liquidators ( „ синдици “ – former section CARDINAL ) of LAW of DATE ) in whom most of these powers , including the right to represent the bank in court , were vested ( former section CARDINAL(CARDINAL ) of LAW of DATE , in conjunction with section CARDINAL(CARDINAL ) of LAW of DATE ( PERSON закон “ ) ) .

The decision - making bodies of a company in liquidation continue , however , to exist and may act on its behalf in certain limited circumstances ; for instance , when there is a conflict of interest between the company and the liquidators . Thus , in a decision of DATE ( опред. № CARDINAL от CARDINAL юли DATE г. по гр.д. № CARDINAL г. на ВКС , петчленен състав ) ORG held that the insolvent company , not the liquidator , had standing to appeal against the winding - up order . The rationale adopted by the court was that the liquidator might have a conflict of interest with the company . However , section CARDINAL(CARDINAL ) of ORG of DATE now provides that it is the BNBappointed special administrators ( see paragraph CARDINAL above ) who may appeal against a court order putting a bank into compulsory liquidation .

The court could appoint liquidators only from a panel of qualified persons named on a list drawn up by the ORG ( former section GPE ) of LAW of DATE ) . If a liquidator was subsequently struck off that list by the ORG , the court was bound to discharge him or her ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . In a decision of DATE ORG held that the insolvency court could not review a decision by the BNB to remove a person from that list , because the court had no discretion in this respect ( опред. № DATE от CARDINAL октомври DATE г. по гр.д. № MONEY г. , на ORG , V г.о. ) .

LAW of DATE was applicable mutatis mutandis and insofar as LAW of DATE did not contain special rules ( former section CARDINAL of LAW of DATE ) . Section CARDINAL of LAW of DATE , which thus appears to have been applicable , provides that a court order declaring a debtor insolvent and requiring it to be wound up is immediately enforceable ( see also section CARDINAL ) of LAW of DATE ) .

A winding - up order has the effect of automatically staying all pending enforcement proceedings against property forming part of the insolvent entity ’s estate ( section CARDINAL(CARDINAL ) of LAW of DATE , as applicable until superseded in DATE in respect of banks by section CARDINAL(CARDINAL ) of ORG , which provides for such proceedings to be stayed even earlier , namely when the ORG ’s decision revoking the bank ’s licence is published in ORG ) .

Creditors of the bank were required to submit their proofs of debt to the liquidators within DATE after the publication of the winding - up order ( former section CARDINAL(CARDINAL ) of ORG ) . The liquidators then examined the claims , drew up a list of agreed claims , and informed the creditors thereof by a notice published in , inter alia , ORG ( former section ORG ) of LAW of DATE ) . The creditors and shareholders of the bank owning PERCENT of the voting shares were entitled to lodge objections to the list with the liquidators ( former section CARDINAL(CARDINAL ) of LAW of DATE ) . The liquidators were required to examine the objections within DATE in the presence of the debtor , the creditor whose claim was challenged , and the person who had made the objection ( section CARDINAL(CARDINAL ) of LAW of DATE , as in force at the material time ) . The liquidators then submitted the original or the amended list , as appropriate , to the insolvency court for approval . Any of the above persons could then repeat its objection before the court , which had a duty to examine it at a public hearing ( section CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of LAW of DATE , as in force at the material time ) . An appeal lay against the court ’s judgment to ORG ( former section CARDINAL ) of LAW of DATE , as in force at the material time ) . If no objections were made before the court , it examined the list in private and approved it in a final judgment ( section CARDINAL(CARDINAL ) of LAW of DATE , as in force at the material time ) . The court ’s judgment was binding on the insolvent bank , the liquidator , and all the creditors ( former section CARDINAL ) of LAW of DATE , as in force at the material time ) .

The insolvent bank ’s assets may be sold off individually at auction and the proceeds then distributed among the creditors whose claims have been allowed ( former sections CARDINAL , ORG and CARDINAL of LAW of DATE , in conjunction with sections DATE of LAW of DATE , superseded in DATE by DATE of LAW of DATE ) . Alternatively , the liquidators may try to sell the bank ’s entire undertaking to another licensed bank , with the permission of the body responsible for overseeing the winding up of banks , ORG ( sections CARDINAL and CARDINAL of GPE of DATE ; see also former sections CARDINAL and CARDINAL of LAW of DATE ) .

DATE . A bank ’s paidup capital on incorporation must not be less than ORG CARDINAL ( BGN CARDINAL after the currency revalorization of CARDINAL DATE ) ( section CARDINAL ) of LAW of DATE ) . All payments made by the shareholders for subscribed shares must be in cash , until this minimum capital is attained ( section CARDINAL ) of LAW of DATE ) . The bank ’s capital must at all times surpass this amount ( section CARDINAL(CARDINAL ) of the BNB ’s Regulation no . CARDINAL of CARDINAL DATE on the capital adequacy of banks , superseded on DATE by CARDINAL ) of the BNB ’s Regulation no . CARDINAL of DATE on the capital adequacy of banks ) .

Also , a bank ’s capital adequacy : the ratio between its capital base – defined as its primary , or tierone , capital ( including paidup shares plus premiums and statutory and other reserves minus intangible assets , losses , and treasury shares DATE section CARDINAL of Regulation no . CARDINAL of CARDINAL DATE ) , plus supplementary capital elements , or tiertwo , capital ( including retained earnings , special reserves , hybrid capital instruments , subordinated debt – section CARDINAL of Regulation no . CARDINAL of CARDINAL DATE ) – and its riskweighted assets and offbalancesheet items may not be PERCENT ( section CARDINAL ) of Regulation no . CARDINAL of CARDINAL DATE ; see also section CARDINAL(CARDINAL ) of the BNB ’s Regulation no . CARDINAL of DATE on the capital adequacy of banks ) .

NORP Under NORP law banks are jointstock companies ( „ акционерно дружество “ – section CARDINAL(CARDINAL ) of LAW of DATE ) . The capital of jointstock companies may be increased by , inter alia , issuing new shares ( section CARDINAL(CARDINAL ) of LAW of DATE ) . Once these shares have been subscribed , the subscriber is under an obligation to pay cash or to provide noncash consideration for the shares ( section DATE ) of LAW of DATE ) . The manner and conditions for providing noncash consideration are laid down in sections CARDINAL and CARDINAL of LAW of DATE ( see also new sections DATE and DATE of LAW of DATE ) .

If a bank decides to increase its capital by issuing shares for noncash consideration , it has to obtain the prior written approval of the BNB ( section CARDINAL(CARDINAL)(CARDINAL ) , now section CARDINAL(CARDINAL)(CARDINAL ) , of LAW of DATE ) . Any increase made without such approval is null and void ( section CARDINAL ) , now section CARDINAL ) , of LAW of DATE ) .

At the relevant time section CARDINAL(CARDINAL ) of LAW of DATE prohibited any set - off between the obligation of a member of a limited liability company ( „ дружество с ограничена отговорност “ ) to pay up his or her shares against debt due by that company to the member . At the time it was unclear whether this prohibition also applied to jointstock companies in the absence of any express provision . Although expressed obiter , ORG view appears to have been that it did ( опред. № CARDINAL от CARDINAL февруари DATE г. по гр.д. № CARDINAL г. на ORG , V г.о. ) . In DATE the legislature clarified the issue by introducing a new section CARDINALa of LAW of DATE , whereby the proscription was explicitly expanded to both limited liability companies and jointstock companies .

Section CARDINAL(CARDINAL ) of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) provides that the ORG is liable for damage suffered by private persons as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties . LAW ) provides that compensation for damage flowing from unlawful decisions may be claimed after the decisions concerned have annulled in prior proceedings . The court examining the claim for compensation can not inquire into the validity of a voidable decision ; it may merely examine whether a decision is null and void . Only natural persons , not juristic persons , may claim compensation under LAW ( реш. № DATE от CARDINAL октомври DATE г. по гр.д. № DATE г. , на ORG , V г.о. ) . Persons seeking redress for damage occasioned in circumstances falling within the scope of the LAW have no claim under the general law of tort , as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) ; реш. № DATE г. от CARDINAL декември DATE г. по гр.д. № DATE г. на ORG , GPE г.о. ; реш. от CARDINAL юли DATE г. по гр.д. № ORG г. на ORG , ORG , ІVб отд. ) .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Xanthi . The Government are represented by PERSON and PERSON of ORG , Acting Agents .

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

The applicant , who considers himself a member of the NORP minority of Thrace , is a graduate of ORG . He used to work as a teacher in the minority schools of CARDINAL . His conditions of employment were not different from those of other civil servants .

On DATE ORG GPE called all the NORP teachers of the minority schools of GPE to attend an educational meeting on DATE . The aim of the meeting was to present new books for the teaching of the NORP language , which would be delivered to the directors of the schools between QUANTITY and DATE .

A similar order was issued on DATE by ORG .

On DATE the Co - ordination ORG of the NORP Minority of Western Thrace issued a statement to the effect that the content of these books “ was in breach of the autonomy of the NORP Minority of Western Thrace ” and failed to respect certain international agreements . The NORP teachers were called upon not to collect these books and the NORP pupils not to attend school DATE , in order to voice the protest of the NORP Minority of Western Thrace .

On DATE ORG issued a statement to the effect that the NORP schools of LOC would be closed DATE , because the NORP teachers of LOC were against the NORP language books which ORG intended to distribute to the pupils of the minority schools . The statement also said that all the NORP teachers of LOC would participate in the strike . Reference was made to the members of ORG who were graduates of ORG . The statement specified that all those who felt they were NORP and who wanted to learn or teach the NORP language would take part in the boycott .

On an unspecified date , a NORP religious leader , the mufti of Xanthi , called on the NORP teachers who felt they were NORP , not to go to the presentation of the books on DATE .

On DATE CARDINAL teachers of the minority schools of Xanthi , including the applicant , signed a statement to the effect that they would not attend the educational meeting in ORG in order to protest about certain unfair decisions against them concerning posting , transfer and secondment and their exclusion from training seminars in GPE and GPE . They specified that they would not carry out their duties DATE .

On DATE ORG of ORG of the NORP Minority of Western Thrace issued a statement congratulating the pupils and teachers who took part in the mobilisation which showed the length to which the minority was prepared to go in order to vindicate its rights .

On DATE ORG decided to institute disciplinary proceedings under LAW against CARDINAL minority school teachers , including the applicant , for having failed to attend the educational meeting of DATE .

On DATE ORG ordered an inquiry and decided provisionally to suspend the applicant from his duties for DATE pending the outcome of the disciplinary proceedings against him .

On DATE ORG confirmed the decision of ORG regarding the provisional suspension of the applicant from his duties .

On DATE ORG issued a decision in which it considered the following :

– Firstly , the applicant had been asked by his superiors to attend the educational meeting of CARDINAL DATE but had failed to do so , arguing that attending the meeting would have disrupted his relationship with his pupils and their parents and put his personal integrity in danger . However , ORG considered that this excuse was not valid , because the meeting would have taken place in the city of Xanthi far from the applicant ’s school area . Moreover , the applicant took part in the strike between CARDINAL and DATE complying with the order and appeal of the irregular Co - ordination ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE . He had accused ORG persecuting him . His illegal acts had contributed to creating tension and commotion in the minority community . The applicant had allied himself with certain subversive elements in the minority community who falsely contended that there was no equality before the law in LOC . Thus , he had become an agent of foreign anti - NORP powers . These facts constituted the following disciplinary offences : not having faith in and dedication to his country ( Article CARDINAL § CARDINAL–CARDINAL of ORG ) , refusing to discharge his duties or employing obstructive tactics ( Article CARDINAL § CARDINAL of the Code ) , taking part in a strike in breach of LAW and the relevant legislation ( LAW of the Code ) and intentionally engaging in an act or omission which could damage or endanger the interests of ORG Article CARDINAL § CARDINAL–CARDINAL of the Code ) .

– Secondly , the applicant had publicly criticised ORG on the ground that the new books were distributed in breach of international agreements concluded by GPE . As a result , he had committed the disciplinary offence of criticising the actions of his superiors in public using phraseology which showed lack of respect or intentionally using unfounded arguments ( LAW of the above - mentioned Code ) .

– Thirdly , the applicant had become an organ of irregular committees acting against the interests of the nation . His actions had stirred up trouble in the minority community and had led to the involvement of NORP newspapers , to tension between the CARDINAL countries , and to criminal proceedings being instituted against parents who had disrupted the functioning of the schools . As a result , the applicant had committed the disciplinary offence of failing to respect a duty imposed by criminal law ( LAW ) .

ORG was fully satisfied that the applicant “ acting in full conscience and with intent and malice , behaving in a manner incompatible with [ his ] status as civil servant , acting against the nation and obeying the commands of anti - NORP power structures , aimed at destabilising the region where the situation was until then normal and creating social unrest ” . In the light of all the above , the ORG decided to dismiss the applicant .

On DATE ORG ordered the applicant ’s dismissal by virtue of LAW no . CARDINAL/CARDINAL . Under that decree , pertaining to the appointment and career of NORP teachers in the minority schools of NORP , the ORG is the competent authority to pronounce the termination of service of NORP teachers .

On DATE the applicant challenged the decision of ORG and the ORG ’s decision before ORG . He claimed that he did not lack faith in and dedication to his country , that he had not acted against social order , that he had the right to engage in objective and reasonable criticism of the actions of his superiors or the Government , that he had not refused to discharge his duties but had instead participated in a lawful strike , that he had not engaged in any acts which could have caused damage to the ORG or in any criminal offences , that he had been forced not to collect the books in person because his life had been threatened by other NORP , that the ORG had attributed wrong motives to his actions which were not anti - NORP and that his punishment aimed at his destruction . He further submitted that the hearing before ORG had not been preceded by a proper inquiry , that he had been punished for offences which were not mentioned in the decision instituting proceedings against him and that ORG had not heard a number of witnesses he had proposed . Finally , the applicant argued that the decision of ORG was not duly reasoned in that it failed to specify how his actions amounted to the particular disciplinary offences which should be punished with the particular penalty .

On DATE ORG rejected the applicant ’s appeal against the decision of ORG of DATE . The ORG considered that the inquiry ordered on DATE satisfied the requirements of the law and that ORG had not failed to examine any witnesses proposed by the applicant . The ORG also considered that the applicant could not be punished for facts other than those which were mentioned in the decision of CARDINAL DATE by which the disciplinary proceedings had been instituted . The applicant could only be punished for having failed to attend the educational meeting of DATE . However , ORG and ORG remained free to examine these facts under different legal provisions from those mentioned in the decision instituting disciplinary proceedings . The ORG considered that the applicant ’s failure to attend the meeting of DATE in order to participate in the strike CARDINAL DATE amounted to the disciplinary offence of serious disobedience under LAW of LAW . The ORG found that the punishment imposed was appropriate given the circumstances in which the offence had taken place . The ORG referred in this connection to the statement of DATE of the Co - ordination ORG of the NORP Minority of Western Thrace , the statement of QUANTITY DATE of ORG and the statement of the mufti of Xanthi which called on all the NORP teachers who considered themselves NORP not to attend the educational meeting of DATE . The ORG considered that the applicant had obviously associated his failure to comply with the order to attend the educational meeting with the above - mentioned statements of organisations which purported to represent the self - proclaimed NORP minority of LOC . Seen in the light of the above , the applicant ’s actions had had as a result the disruption of the functioning of the minority schools in LOC in which the ORG was particularly interested . They had also resulted in social unrest among the NORP minority of this sensitive region . This in turn could have resulted in dangerous albeit unwarranted disruption of the friendly relations between GPE and neighbouring countries and in the disruption of the harmonious coexistence between the NORP citizens , NORP and NORP , who lived in LOC .

Finally , the ORG considered that the decision of the ORG was duly reasoned . All the elements of the disciplinary offence of serious disobedience were set out in the decision which specified that the applicant had not attended the meeting of DATE , although he had been asked to do so by his superiors . The decision also specified that the applicant had complied with the order and appeal of the irregular ORG of ORG of the NORP Minority of Western Thrace and the appeal of the illegally self - proclaimed mufti of Xanthi calling on the NORP teachers who felt they were NORP not to attend the meeting of QUANTITY DATE ( decision no . CARDINAL/CARDINAL ) .

On DATE the Prefect of Xanthi revoked his decision of CARDINAL DATE and , in compliance with decision no . CARDINAL of ORG , ordered the applicant ’s dismissal as from the same date .

On DATE ORG struck out the proceedings instituted against the ORG ’s decision of CARDINAL DATE , on the ground that the decision complained of had already been revoked by the ORG ( decision no . ORG ) .

On DATE the ORG ordered for the third time the applicant ’s dismissal .

On DATE the applicant appealed against the ORG ’s decision of DATE to ORG of PERSON . He claimed that all other civil servants were dismissed by ministerial decision and complained that his dismissal by prefectural decision was contrary to religious freedom . He further complained that he was not previously heard by the Prefect . The applicant further invoked Articles CARDINAL and CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL .

On DATE ORG rejected the appeal ( decision no . CARDINAL ) . The court held that , by definition , the ORG had a better knowledge of the local situation than the Minister ; therefore , it could not be sustained that the delegation to the ORG to pronounce the termination of service of NORP teachers violated the religious freedom . Moreover , the court held that the ORG ’s decision aimed at complying with the relevant decisions of ORG ; therefore , the previous hearing of the applicant was not required . The applicant did not appeal against this decision to ORG .

The applicant claims that he has instituted civil and administrative proceedings in order to recover several sums ( arrears of salaries , compensation for his dismissal , etc . ) . The applicant alleges that a set of proceedings instituted on DATE before ORG of Rodopi is still pending . He further alleges that on DATE ORG notified to him a decision of ORG that his pecuniary claims had been statute - barred .

On DATE the applicant instituted proceedings also before ORG of PERSON . On DATE the court noted that the applicant had perceived his salaries for a certain period after his dismissal . It declared his recourse inadmissible on the ground that the applicant was not duly represented by a lawyer ( decision no . CARDINAL ) . The applicant did not appeal against this decision within DATE time - limit provided for by LAW .


The first applicant , PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . She lodged the application also in the name of her daughter PERSON ( second applicant ) , a NORP national born in DATE .

s , may be summarised as follows .

The second applicant , PERSON ( J. ) , is the daughter of the first applicant and PERSON She was born out of wedlock on DATE . Pursuant to the statutory provisions ( section CARDINAL § CARDINAL of LAW ) the first applicant had sole custody of J. who has been living with her mother since her birth .

At DATE , PERSON was diagnosed with a general development and autistic disorder and with retrogressive speaking capacities . She was not admitted to an ordinary nursery school .

On DATE ORG lodged a motion with ORG ( no . CARDINAL F CARDINAL/CARDINAL ) to restrict the first applicant ’s custodial right to decide on her daughter ’s whereabouts and health care and to appoint ORG as special curator ( Ergänzungspfleger ) to deal with these issues .

On DATE the GPE ORG appointed PERSON , a lawyer , as J. ’s curator ad litem to represent her interests the custody proceedings .

On DATE the ORG refused to change its decision to appoint a curator ad litem on the first applicant ’s motion , arguing that no appeal lay against such an interim decision . In any event , the appeal would also be ill - founded , as the first applicant failed to give convincing reasons against Ms L .- K. ’s appointment . On DATE ORG dismissed the first applicant ’s appeal against this decision .

On DATE ORG , having heard the first applicant , her daughter ’s curator ad litem and a representative of ORG , restricted the first applicant ’s sole custody over her daughter pursuant to section DATE of LAW . It ruled that the first applicant was no longer entitled to choose which nursery school or school her daughter should attend and had no right to determine her daughter ’s whereabouts . It appointed ORG as special curator to decide on these issues . The court authorised ORG to enforce the child ’s surrender , if necessary with the help of the police , in order to secure the execution of the court ’s decision .

Having regard to the report of a doctor working for the city of GPE dated DATE , earlier medical reports and its own attempt on DATE to hear PERSON ( with whom , however , a communication had proved impossible ) , ORG found that it was almost certain that J. suffered from a severe development disorder and showed clearly autistic behaviour . Therefore , PERSON was in need of care in a specialised institution . The first applicant was acutely endangering her daughter ’s mental welfare by refusing to accept her daughter ’s illness and to send the child to an institution responding to her needs . Instead , the first applicant insisted on sending her daughter to an ordinary ( nursery ) school or to a school merely treating speaking irregularities . Her custody of J. therefore had to be restricted in respect of these issues .

ORG observed that it was in PERSON ’s best interests to attend an institution individually educating children with autistic behaviour while living with her mother . However , should the first applicant continuously refuse to send her daughter to a suitable institution it was necessary , as a last resort , to separate mother and daughter and to place J. in a home providing her with the necessary individual care .

On DATE ORG dismissed the first applicant ’s motions to rectify the protocol of the court ’s hearing . It found that the changes proposed by the first applicant concerned additional information she had not yet given in the hearing itself .

On DATE ORG dismissed the applicant ’s appeal against ORG decision dated DATE , as no appeal lay against this decision .

On DATE ORG refused to admit the applicants’ constitutional complaint against the decisions of DATE , DATE , DATE and CARDINAL DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

In DATE J. attended test lessons in an ordinary school together with her mother and grandmother . At the outset PERSON was crying and shouting loudly and refused to stay in the classroom . She only calmed down after she had been running up and down the corridor with her mother and both had been shouting for TIME . Back in the classroom , she refused to follow any of the teacher ’s instructions and did not react to any questions . She then wrote the alphabet on the blackboard and , when interrupted , had a rage attack and was jumping around in the classroom to calm down . She did not speak a single word during the lessons and did not establish contact with anyone . In further test lessons at DATE PERSON was only running around in the classroom , did not react to any instructions and frightened other children by running closely towards them uttering inarticulate sounds . In view of this , the school director and teachers informed the first applicant that it was impossible to educate J. and respond to her needs in an ordinary school .

On DATE J. was taken away from her mother with the help of the police on the motion of ORG , acting as PERSON ’s special curator , as her mother had refused to allow her to attend a specialised school taking account of her educational needs . She was placed in an open youth home DATE the location of which was not disclosed to the first applicant DATE in which she subsequently attended a school furthering its pupils’ learning progress individually .

On DATE ORG , having heard the first applicant , the second applicant ’s curator ad litem and a representative of ORG , dismissed the applicant ’s appeal against ORG decision dated DATE , which thereby became final .

On DATE the applicants lodged a complaint with ORG ( no . CARDINAL BvR CARDINAL/CARDINAL ) against the impugned decisions of ORG dated DATE and of ORG dated DATE .

In CARDINAL letter dated DATE ORG invited the first applicant to contact ORG in order to set up a visiting arrangement . However , no contacts between mother and daughter could be built up .

A subsequent action for damages brought by the first applicant with the GPE civil courts against ORG curator ad litem because of her conduct in the custody proceedings was to no avail . ORG refused to admit the first applicant ’s constitutional complaint concerning these decisions on DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG refused to admit the applicants’ constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) against the decisions of DATE of DATE .

On DATE the first applicant lodged a motion with ORG ( no . CARDINAL F CARDINAL/CARDINAL ) to be surrendered her daughter . She argued that the separation from her and her daughter ’s placement in a youth home constituted an illegal deprivation of liberty . Moreover , her daughter ’s right to be integrated in an ordinary school as protected by the LAW had been breached .

In its report dated DATE ORG stated that PERSON had settled well in the institution for disabled children she lived in since DATE . While her father was visiting her regularly since DATE her mother had not reacted to several attempts made in letters addressed to her by ORG in DATE to re - establish contacts with her daughter and showed no real interest in being informed about her daughter ’s development . Sending J. back to live with her mother would not be in ORG ’s best interests .

On DATE ORG held a hearing , in which it heard the first applicant , a representative of ORG and the child ’s father PERSON It did not hear J. in person , because , as confirmed by PERSON , a verbal communication with her was impossible , as had also been found by the court itself in its hearing on DATE in the custody proceedings .

On DATE ORG dismissed the first applicant ’s motion to surrender her daughter to her . It found that the first applicant did not have a right to be rendered her daughter pursuant to section CARDINAL § CARDINAL of the Civil Code . The court noted that ORG decision dated DATE restricting the first applicant ’s custody of her daughter had become final . ORG , acting as ORG ’s special curator , had therefore been entitled to order her full - time placement in a home and to take the child away from her mother , as had been done on DATE . In particular , a child ’s right to attend an ordinary school was subject to his or her physical and mental ability to meet its demands . As had been found by the civil courts in previous decisions , J. could not meet these demands due to her illness and could not be expected to do so in the future .

ORG further found that there was nothing to indicate that it was in PERSON ’s best interests to re - award custody in all respects to her mother . In particular , J. ’s placement in a youth home which furthered her adequately in view of her illness had clearly proved to be beneficial to her . As long as her mother was unable to accept that her daughter would be absolutely overstrained in and could not be integrated in an ordinary school , the child could not be taken care of in her mother ’s home .

In an obiter dictum ORG noted that it could not understand why ORG refused the first applicant any contacts with her daughter whose whereabouts still had not been disclosed to her . It considered it indispensable for the child ’s welfare to organise visits of her mother as soon as possible .

On DATE ORG ( no . CARDINAL UF CARDINAL/CARDINAL ) , following the first applicant ’s appeal , heard the first applicant , PERSON ’s curator ad litem and a representative of ORG . The latter stated that she had now informed the first applicant about her daughter ’s whereabouts and offered to organise contacts either at the first or the second applicant ’s place of residence . The first applicant stated that she had not visited her daughter yet because she feared that ORG could again assert that she was endangering her daughter ’s welfare which , in her view , amounted to an allegation that she had abused or ill - treated her daughter .

On DATE ORG dismissed the first applicant ’s appeal as ill - founded . It found that ORG had acted legally in taking away the child from her mother and placing the child in a youth welfare institution , as its decision could be based on ORG decision dated DATE .

ORG observed that pursuant to the statements of a child psychiatrist dated DATE it was clear that J. showed severe signs of autism so that intensive care was necessary which her mother could not provide and which made it impossible for her to attend an ordinary school for the time being . As the first applicant was unable to understand her daughter ’s needs it was necessary to uphold the partial deprivation of her custody .

On DATE the first applicant lodged a complaint with ORG against the decisions of ORG dated DATE and of ORG dated DATE . She argued in particular that the continuous restriction of her custody and the failure to surrender her daughter , who was kept in a care institution and had to attend a school for disabled children , violated her parental rights and her daughter ’s right to liberty and education as guaranteed by LAW .

On DATE ORG refused to admit the first applicant ’s constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG refused to admit another constitutional complaint lodged by the applicants against , inter alia , the decisions of ORG dated DATE and of ORG dated DATE ( CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE E. , the father of the second applicant , brought a motion with ORG ( no . CARDINAL F CARDINAL/CARDINAL ) to be granted access to his daughter .

On DATE ORG dismissed the first applicant ’s motion for bias against ORG judge MONEY On DATE ORG dismissed the first applicant ’s appeal against this decision as ill - founded . In the court ’s view , the fact alone that judge ORG had already sat in earlier cases brought by the first applicant in FAC in accordance with the court ’s internal assignment of functions did not warrant the conclusion that he was biased . The applicant ’s constitutional complaint against these decisions was to no avail ( decision no . CARDINAL BvR CARDINAL of DATE ) .

On DATE ORG , having heard the first applicant and the child ’s father PERSON and having consulted ORG , granted PERSON a right of access to his daughter for TIME once in DATE .

On DATE ORG dismissed the first applicant ’s appeal against this decision as inadmissible . It argued that the first applicant was not prejudiced by the decision as she had expressly claimed not to object to the access order , but merely complained against the court ’s reasoning referring to her daughter as being a “ sick child ” .

On DATE ORG refused to admit the first applicant ’s constitutional complaint against the latter decision ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of ORG to institute criminal proceedings for fraud against P. It observed that the applicants failed to set out in a comprehensible manner facts which could warrant the conclusion that PERSON , a representative of ORG , had committed fraud .

On DATE ORG refused to admit the applicants’ constitutional complaint ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG dismissed as inadmissible the applicants’ motion for a judicial decision on the refusal of ORG to institute criminal proceedings for having threatened another person with the commission of a crime against PERSON

It found that the applicants’ motion was in any event ill - founded as there were no sufficient grounds for suspicion that an offence had been committed by the impugned representatives of ORG and policemen when separating PERSON from her mother on DATE . A further identical motion lodged with ORG was to no avail .

On DATE and on DATE ORG refused to admit the applicants’ constitutional complaints against ORG decisions ( nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL ) .

Pursuant to section DATE § CARDINAL of the Civil Code , parental custody encompasses the right to legal representation of the child . It is uncontested that the scope of the right to legal representation is identical to the – possibly restricted – scope of a parent ’s right of custody .

Pursuant to section CARDINAL § CARDINAL of LAW , the right to personal custody comprises the right to claim the surrender of the child from anyone illegally withholding the child from one or both parents .

Section CARDINAL § CARDINAL of the Civil Code provides that the family courts are entitled to take the necessary measures to avert dangers to the physical , mental or spiritual welfare of a child caused by an abusive exercise of parental custody , by neglecting the child or by unintentional failure of the parents if the parents are unwilling or unable to avert the dangers . Pursuant to section CARDINAL § CARDINAL of the Civil Code measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including aids by public authorities .


The applicant was born in DATE and lives in GPE .

Following a conviction for a dangerous activity , the applicant was incarcerated in LOC during an unspecified period in DATE and DATE .

In a judgment of DATE ORG convicted the applicant of fraud and gave him a suspended sentence of DATE imprisonment . In addition , it ordered him to undergo compulsory psychiatric treatment as he had been diagnosed as suffering from post - traumatic stress disorder ( PTSD ) . It appears that the suspension of the sentence was lifted because the applicant was again sent to ORG from CARDINAL DATE until DATE .

In a judgment of CARDINAL DATE ORG convicted the applicant of fraud and gave him a suspended sentence of DATE imprisonment . However , on an appeal by the ORG Attorney , on DATE ORG altered the sentence to DATE unconditional imprisonment .

On DATE a judge of ORG with responsibility for the execution of sentences ordered the applicant to start serving his prison sentence in FAC on DATE . The applicant applied for the order to be postponed on account of his PTSD condition . On DATE a ORG judge responsible for the execution of sentences dismissed the application because the applicant had failed to submit medical documentation concerning his condition .

The applicant appealed against that decision and on DATE ORG dismissed his appeal . It found , firstly , that the medical documentation subsequently submitted by the applicant was outdated since it originated from DATE , DATE and DATE , and , secondly , that during his prison term the applicant would be provided with adequate medical care .

The applicant started to serve his sentence on DATE in FAC . He was placed in cell no . CARDINAL , measuring CARDINAL by QUANTITY , with CARDINAL . The number of inmates ranged from CARDINAL QUANTITY , so that some inmates had to sleep on the floor or on the table . The table in the cell was designed to accommodate QUANTITY persons , so that the inmates had to eat on the beds or on the floor . There was CARDINAL window in the cell , covered with wire so that light and air hardly reached the cell .

On DATE the applicant was removed from cell no . CARDINAL and placed in cell no . CARDINAL , measuring QUANTITY , which he shared with CARDINAL other inmates .

NORP The applicant 's correspondence with the ORG was opened .

The medical documentation presented by the applicant shows that he was examined on DATE by the prison physician , who found that the applicant had suffered from PTSD since DATE and also from a personality disorder . The prison doctor prescribed medication , a drug called Fluval .

On DATE the applicant was transferred to ORG but was sent back to ORG DATE because the psychiatrist at the hospital found no reason to keep him there . The applicant 's treatment was changed to drugs named PERSON and GPE . On DATE the applicant complained that the drugs prescribed were “ too heavy ” . On DATE the medication prescribed to the applicant was again changed to ORG . No psychiatric treatment was provided .

On DATE the applicant applied for a transfer to another prison or the immediate termination of his prison sentence on account of the lack of adequate treatment for PTSD in FAC . He further complained about the overcrowded conditions in the cell where he was being held . On DATE a ORG judge responsible for execution of sentences dismissed the application , finding that the applicant was not in need of any additional treatment . However , as to the overcrowded conditions , the judge found :

“ ... the prisoner 's allegations concerning the number of inmates placed in one cell are true . However , such placement of prisoners is due to the considerable fluctuation in their number because persons sentenced to DATE imprisonment serve their sentences in [ Varaždin ] Prison .

The Varaždin Prison authorities shall remove the said insufficiencies so as to afford enough space to inmates ... ”

The applicant appealed against that decision , but his appeal was dismissed by a CARDINAL - judge panel of the same court on DATE .

On an unspecified date the applicant filed an application for early release from the prison because he had not received adequate treatment for PTSD . On CARDINAL May CARDINAL ORG dismissed the application .

On an unspecified date the applicant contacted ORG to complain about the inhuman conditions in FAC , alleging that he was being held in a cell measuring CARDINAL by QUANTITY with CARDINAL and that the number of inmates in the cell surpassed the number of beds . He alleged that such cramped conditions had had an adverse effect on his health since he was suffering from PTSD . Furthermore , he complained that there was insufficient daylight in the cell .

In a letter of CARDINAL DATE the ORG informed the Department for ORG ( PERSON izvršenje sankcija ) about the applicant 's allegations and sought an answer from it . On DATE ORG ( PERSON pravosuđa ) answered the ORG 's enquiry . As to the applicant 's health condition , it was stated that he had been diagnosed with PTSD and therefore sent to the psychiatric ward of ORG on DATE . However , a psychiatrist from that hospital had found that there had been no indications requiring the applicant 's hospitalisation . Furthermore , the applicant himself had asked not to be kept in the hospital . During his detention in FAC he had been administered drugs . As to the applicant 's allegations about the inhuman conditions in his cell , it was stated that the conditions of the execution of his sentence complied with the standards prescribed in Part XI of FAC and that each cell had access to daylight .

In a decision of CARDINAL DATE ORG released the applicant on licence . His licence expired on DATE .

NORP The ORG visited GPE DATE . Its findings with regard to ORG were as follows ( extract from the report to ORG on the visit to GPE from DATE , ORG . ( DATE ) CARDINAL ) :

“ CARDINAL . ... However , occupancy rates in the psychiatric ward were rather high , a drawback which was exacerbated by the fact that patients tended to spend most of DATE in their rooms ...

In all wards , the general atmosphere in the patients ' rooms was rather drab ; efforts should be made to provide a more positive therapeutic environment . The practice observed in the hospital of having patients wear pyjamas / nightgowns continuously should also be reviewed . As regards , in particular , psychiatric patients , this practice is not conducive to strengthening personal identity and self - esteem ; individualisation of clothing should form part of the therapeutic process .

... The delegation was less impressed by the quality of psychiatric treatment , which was limited essentially to pharmacotherapy ( though there were no indications of the misuse of medication ) . The hospital 's doctors acknowledged that there was a clear need to develop rehabilitative and other therapeutic activities ( occupational therapy , group therapy , individual psychotherapy , etc . ) for the establishment 's psychiatric patients ; however , they commented that limited staff resources and the very nature of the establishment hindered progress in this area .

NORP The ORG recommends that serious efforts be made to develop rehabilitative and other therapeutic activities for psychiatric patients at the hospital ; the present state of affairs is untenable from a therapeutic standpoint . ... ”

DATE of LAW ( Ustav PERSON ) provides as follows :

“ No one shall be subjected to any form of ill - treatment ... ”

The Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora , Official Gazette no . CARDINAL of DATE , and no . CARDINAL of DATE ( consolidated text ) DATE “ the LAW ” ) came into force on DATE , whereas the provisions concerning the judge responsible for the execution of sentences came into force DATE , on DATE . The relevant provisions of the Act read as follows :

“ ( CARDINAL ) Inmates shall have the right to complain against an act or decision of a prison employee .

( CARDINAL ) Complaints shall be lodged orally or in writing with a prison governor , a judge responsible for the execution of sentences or ORG . Written complaints addressed to a judge responsible for the execution of sentences or ORG shall be submitted in an envelope which the prison authorities may not open ... ”

“ ( CARDINAL ) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him , or limiting him in , any of the rights guaranteed by LAW .

( CARDINAL ) NORP for judicial protection shall be decided by the judge responsible for the execution of sentences . ”

“ ( CARDINAL ) The accommodation of inmates shall meet the required standards in terms of health , hygiene and space , including climatic conditions .

( CARDINAL ) ORG shall as a general rule be accommodated in separate rooms ...

( CARDINAL ) ORG rooms shall be clean , dry and of adequate size . Each inmate shall have QUANTITY and QUANTITY of space in the room .

( CARDINAL ) Every room ... must have daylight and artificial light ...

( CARDINAL ) ORG and prisons must be equipped with sanitary facilities allowing inmates to meet their physiological needs in clean and adequate conditions , whenever they wish to do so .

( CARDINAL ) ORG shall have drinking water at their disposal at all times . ”

“ ( CARDINAL ) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”

“ ( CARDINAL ) Inmates shall have the right to unlimited correspondence at their own expense .

( CARDINAL ) Inmates shall have the right to correspond with their lawyer , the ORG authorities or international organisations for the protection of human rights without any restrictions or supervision of the content of such letters ... ”

Rule CARDINAL of FAC ( ORG red za zatvorenike i kažnjenike PERSON u Varaždinu ) provided that letters addressed to lawyers , ORG authorities or international organisations for the protection of human rights were not to be opened by the prison authorities .


CASE OF KEMAL KAHRAMAN AND ALİ KAHRAMAN v. TURKEY

Violation of Art. 6-1 and 6-3-c;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants were born in DATE and DATE respectively . They are serving sentences in FAC , GPE .

On DATE the applicants , who were detained in FAC for being members of the IBDA - C ( ORG ) , allegedly incited an insurrection against the prison administration . The prison officers together with soldiers intervened in the uprising in order to bring it to an end . During the incident the applicants and the security forces both sustained injuries which were recorded in medical reports . The security forces drew up an incident report after the operation .

On DATE the public prosecutor , prison director and prison officers drew up a damage - assessment report concerning the incident .

On DATE the public prosecutor asked the applicants for their statements . The applicants declared that they wished to make their statements in the presence of their lawyers .

On DATE and DATE , the public prosecutor took statements from CARDINAL complainants who were prison officers and CARDINAL complainant who was a soldier .

On DATE the applicants gave their statements to the public prosecutor with their lawyer present . The prosecutor asked the applicants whether they had any arguments against the damage - assessment report . The same day , an on - site investigation was conducted inside the prison .

On DATE the public prosecutor filed an indictment with ORG , accusing the applicants of insulting an officer and of insurrection against the prison administration .

On DATE ORG held the first hearing and demanded the presence of the complainants and the CARDINAL accused , including the applicants , at the following hearing .

At the second hearing on DATE , ORG ascertained the applicants ' identities and asked them to submit their defence . The applicants maintained that they wished to make their statements in the presence of their lawyers . Accordingly , the court sent a letter to the public prosecutor 's office requesting that lawyers from ORG be assigned to the applicants . At the same hearing , the court took statements from the prison officers who were involved in the incident .

On DATE , CARDINAL lawyers who were members of ORG were assigned to represent the applicants . However , they did not attend any of the ensuing hearings .

On CARDINAL DATE the court noted that the applicants had been sent to PERSON for administrative reasons . The court issued a rogatory letter to ORG , requesting that the latter obtain the applicants ' statements .

On DATE ORG , acting under powers delegated to it by ORG , pursuant to LAW , took statements from the applicants . According to TIME of ORG , the applicants were reminded of their rights in accordance with LAW , which also included the right to a lawyer . The applicants stated that they were aware of their rights and would defend themselves .

ORG held CARDINAL further hearings in the absence of the applicants .

On DATE ORG noted that the applicants ' statements had been sent to it by ORG .

On DATE ORG , in absentia , acquitted the applicants of insulting the prison officer , but convicted them of insurrection against the prison administration . The court relied on the applicants ' statements , the statements of the complainants , the on - site investigation report , the witness statements and the experts ' opinions . The applicants were each sentenced to DATE imprisonment .

On DATE the applicants appealed against the judgment to ORG . In their appeal petitions , they stated that they were only brought before ORG once , at the beginning of the proceedings , when the court had only ascertained their identities . They further maintained that the public prosecutor 's indictment had not been previously served on them , thus preventing them from submitting their defence , and that they had requested legal representation , which had not been forthcoming . They finally submitted that they were not asked to submit their final statements and the judgment was pronounced in their absence .

On DATE ORG upheld the judgment of ORG .

On DATE the new Criminal Code came into force . Consequently , ORG has scheduled a hearing for DATE with a view to adjusting the applicants ' sentences , pursuant to the provisions of the new LAW .