Preliminary objections dismissed (substantially the same, disappearance of object of proceedings, ratione temporis, six month period);Violation of Art. 2 (procedural aspect);Violation of Art. 3 (substantive aspect);Violation of Art. 5;No violation of Art. 5;Non-pecuniary damage - award

Anatoly Kovler;Dean Spielmann;Françoise Tulkens;Gönül Erönen;Ineta Ziemele;Jean-Paul Costa;Josep Casadevall;Lech Garlicki;Luis López Guerra;Mark Villiger;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Päivi Hirvelä;Sverre Erik Jebens;Vladimiro Zagrebelsky;Zdravka Kalaydjieva

The complaints raised in this application arise out of the NORP military operations in northern GPE in DATE and DATE and the continuing division of the territory of GPE . These events gave rise to CARDINAL applications by ORG against the respondent ORG , which have led to various findings of violations of the LAW . The history is set out in the ORG ’s judgment in GPE v. GPE ( [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINALIV ; hereinafter “ the fourth inter - State case ” ) and the ORG sees no reason for repetition .

The facts are disputed by the parties . The ORG notes that the summary of their versions of events given in the ORG judgment have not been ; these are in large part reproduced below , with the addition of some new information submitted by the parties and identified as such in the text .

The first applicant , an ironmonger , was born in DATE ; he has been considered missing since DATE . His wife , the second applicant , was born in DATE and resided in GPE .

In DATE the first applicant , responding to the declared general mobilisation , enlisted as a reservist in the CARDINAL ORG which had its headquarters in GPE . On DATE the reserve soldiers of the CARDINAL ORG , among them the applicant , took up the manning of NORP outposts along the front line opposite the NORP military forces which extended between PERSON and GPE .

On TIME CARDINAL DATE , NORP military forces , supported by tanks and air cover , launched an attack against the NORP area where the applicant and his battalion were serving . The NORP line of defence was broken and the NORP military forces began advancing towards the area of PERSON ; the NORP forces began retreating and dispersed in all directions . After a while the area was captured by the NORP military forces and the applicant was trapped within . There has been no trace of the applicant since .

Mr Christakis Ioannou of GPE and now of ORG , who had been a prisoner of the NORP military forces and/or the NORP authorities , stated that at FAC in GPE , where he had been taken on DATE , there were another DATE persons in the same room for DATE . Among them was the applicant . After the said period they were split up and he had not seen the applicant since .

The first applicant , a student , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .

In DATE the first applicant was serving as a second lieutenant in DATE stationed at FAC . On DATE the battalion moved to the ORG area . The soldiers were split up into various groups ; the applicant ’s group , consisting of CARDINAL men , was ordered to take up positions on the LOC heights .

On DATE NORP forces launched a strong attack from all sides against the NORP forces’ positions while other NORP troops managed to encircle PERSON . Owing to the NORP superiority in men and weapons the NORP forces were ordered to retreat towards the centre of the village to the company base . The applicant arrived there with his men and was informed by the inhabitants that PERSON was surrounded by NORP troops . They hid their weapons in an orchard and put on civilian clothing . The same afternoon the applicant and others attempted unsuccessfully to break through the NORP lines . They then returned to PERSON where they spent TIME . At TIME on DATE NORP troops entered PERSON and started extensive house - to - house searches . The applicant and his comrades were warned by the villagers and they dispersed in order to avoid capture . Since then , none of the members of the group has seen the applicant .

Nicos Th . Tampas of ORG , also on the ORG heights on CARDINAL DATE , mentioned in a statement that at DATE on DATE he entered a warehouse in the village where he found the applicant looking after a wounded man . After talking with the applicant , he left . That was the last time that he saw the applicant . He was himself arrested by the NORP on CARDINAL DATE in ORG , detained in various prisons in GPE and GPE and released on DATE .

PERSON of GPE , now of GPE , in his statement declared that while he was a prisoner in ORG he saw and recognised the applicant , whom he had previously met .

In DATE the first applicant enlisted to do his national service . He was posted to ORG . On DATE , a section of the battalion , including the applicant , was sent on a mission in the ORG and ORG area ( GPE district ) . The men spent TIME at ORG and intended to complete the mission TIME .

At TIME on DATE ORG launched a fullscale attack from all sides in the ORG and ORG area . The applicant ’s group leader ordered his men to split up into CARDINAL groups and to withdraw towards PERSON ( also in the GPE district ) . The applicant was in CARDINAL of the groups which intended to withdraw by following a route along the coast .

The men first reached the main NicosiaKyrenia road near the “ Airkotissa ” restaurant . While resting , they heard shouting and the group leader sent the applicant and another soldier to investigate . As they had not returned after TIME the remainder of the group left for Panagra ( also in the GPE district ) . On their way , they were ambushed by NORP soldiers and the remaining group dispersed .

PERSON , of GPE , stated that , when he was a prisoner in GPE from DATE until DATE , he had met the applicant . They were in the same prison in GPE and were subsequently transferred to GPE , at which point he had been released but not the applicant .

PERSON , of GPE , stated that he recognised the first applicant from a photograph that was shown to him by the second applicant and he had been with him in FAC .

Finally , the second applicant mentioned in a signed statement that he identified his missing son in a photograph published in Athinaiki , a NORP newspaper , on DATE . In this photograph NORP prisoners were shown on a boat en route to GPE .

The first applicant , a photographer , was born in DATE ; he has been considered missing since DATE . His mother , the second applicant , was born in DATE and resided in GPE .

On DATE the first applicant enlisted as a reservist . He was posted to DATE . On DATE the whole battalion was ordered to move on DATE to the area of PERSON . ORG took up defensive positions at a height called “ LOC , near the NORP village of GPE .

At TIME on DATE the CARDINALst Company came under attack from the NORP villages of PERSON . The NORP military forces consisted of a paratroop battalion , QUANTITY tanks and high - angle guns . They succeeded in breaking through the NORP lines and infiltrated the right flank of ORG in order to encircle it . The commander ordered the company to regroup at the village of LOC ; from there they were ordered to regroup at ORG , where they arrived at TIME After a roll call they found out that CARDINAL soldiers of ORG were absent , including the applicant . The area in which ORG had been initially stationed was captured by the NORP military forces .

Mr PERSON of GPE , who was a prisoner at ORG in DATE , stated that DATE he heard a NORP calling the applicant ’s name . He also saw the applicant whom he happened to know previously and noticed that he was lame in one leg . On DATE Mr PERSON was taken to ORG in GPE and he had not seen the applicant since .

The first applicant , a student , was born in DATE ; he has been considered missing since DATE . His mother , the second applicant , was born in DATE and resided in GPE .

In DATE the first applicant enlisted in ORG to do his military service .

On DATE the applicant ’s father was informed by PERSON that the applicant had left PERSON with the men of ORG and had gone to PERSON .

On DATE PERSON with CARDINAL soldiers , including the applicant , set out from PERSON in CARDINAL vehicles to reconnoitre the ground of the ORG area . CARDINAL buses were seen driving along a street from the direction of ORG village . An officer by the name of ORG ordered CARDINAL soldiers to search the buses . The buses were full of NORP soldiers who started firing at the NORP men . The applicant was wounded in the right hand and on the left side of his ribs . Mr PERSON cleaned his wounds with water , loaded his gun and told him to go back . After that the applicant was not seen again by his unit .

According to the statement of PERSON , who had been a prisoner of the NORP at ORG and ORG in DATE , he happened to meet the applicant during his captivity . They both stayed with others in cell no . CARDINAL until DATE . They had chatted together DATE and became friends . On DATE PERSON was brought back to GPE and was released on DATE . The applicant had given him a letter to pass on to his father but he left it in his pocket when he changed his clothes . All the clothes belonging to the prisoners were burned .

The second applicant in her statement mentioned that she had recognised her son in a photograph that was published in the NORP newspaper ORG on DATE and showed NORP prisoners being transported to GPE on a NORP destroyer in DATE .

The first applicant , a car mechanic , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .

In DATE , in response to the general mobilisation , the first applicant enlisted as a reserve sergeant in ORG of ORG .

On DATE , all the men of ORG , including the applicant , were trying to prevent the NORP landing which was taking place in the area of “ Pikro Nero ” , GPE . At TIME on DATE the NORP military forces which had landed , supported by tanks and air cover , attacked the NORP forces that were defending the area . Owing to the superiority of the NORP military forces in men and weapons ORG was ordered to retreat towards GPE . The applicant was present during the regrouping of the battalion . TIME after the regrouping the commander of the battalion led his men out of GPE , reaching a ravine between the villages of ORG Georghios and PERSON where they took up battle positions . A number of commandos of ORG arrived in the same ravine . At TIME on DATE , NORP military forces surrounded the NORP forces in the ravine and opened fire . The commander ordered a counterattack intending to break the NORP military GPE lines and retreat towards PERSON . No trace of the applicant was found during the counter - attack and retreat .

On DATE the Special News Bulletin – a DATE communication by the NORP administration – published a photograph of NORP prisoners of war under the caption “ NORP prisoners of war having their lunch . DATE they were visited by a representative of ORG ” . In that photograph the first applicant was identified by the second applicant .

A former prisoner , Mr PERSON , of PERSON , now at ORG , in a signed statement to the NORP police said that during his transportation from GPE to GPE he saw and talked to the first applicant , whom he knew very well since they had attended the same secondary school .

The first applicant , a bank employee , was born in DATE and lived at Yialousa ; he has been considered missing since DATE . His wife , the second applicant , was born in DATE and resided in GPE .

On DATE CARDINAL saloon cars , a bus and CARDINAL tanks , all full of NORP and NORP soldiers , turned up at Yialousa and stopped near the police station . The soldiers got out and ordered everyone to assemble at the nearby coffee house . CARDINAL persons gathered there . A NORP officer told them that from that time they would be under NORP administration and ordered them to make a census of the NORP inhabitants of the village from DATE and that he would be back on DATE to collect the lists . On DATE , the same civilian and military vehicles ( tanks ) returned . A number of NORP got out , marched to the coffee house and asked for the lists . Another group of NORP soldiers was carrying out a house - to - house search . They imposed a curfew and , having taken the lists , they took with them for questioning QUANTITY persons , including the first applicant . They put them on a bus and drove them outside the village in the direction of GPE .

On DATE , PERSON was visited by ORG men to whom the arrest of the CARDINAL NORP Cypriots was reported by their co - villagers .

According to the applicants , representatives of ORG ( “ the ICRC ” ) in GPE visited ORG in the NORP - occupied sector of GPE and on CARDINAL DATE recorded the names of CARDINAL NORP Cypriots held there , including the QUANTITY persons from GPE ( they cited document EZYCARDINALD ) . PERSON , PERSON and PERSON also saw the said detainees at FAC , during the same period that they were detained there ; they were released later .

On DATE a group of NORP civilians came to GPE looking for PERSON , PERSON , PERSON . Having found them , they led them to ORG . After having emptied CARDINAL safes they ordered that the third one should be opened , but they were told that the keys were with the applicant . Subsequently they left , having shut and sealed the outside door . After DATE the same group looked for the same persons and went again to the bank building . They had the CARDINAL keys for the safe , which the applicant always carried with him . Loizos Pallaris opened the safe . The keys were in a leather case which the applicant used to carry , but his personal keys had been removed . ORG took the contents of the safe , sealed the gate and left .

The first applicant , a moulder , was born in DATE ; he has been considered missing since DATE . His father , the second applicant , was born in DATE and resided in GPE .

In DATE the first applicant was doing his national service in the CARDINAL ORG stationed in GPE . On DATE a section of the battalion , including the applicant , was sent on a mission in the ORG and ORG area . The men spent TIME at ORG and intended to complete their mission TIME . At TIME on DATE the NORP military forces launched a fullscale attack from all sides in the area of PERSON and ORG . The commander ordered his men to split up into CARDINAL groups , withdraw towards GPE and meet there . On their way they were ambushed by the NORP military forces and in the confusion dispersed .

Later Mr Costas Themistocleous of Omorphita , now of GPE , who was a prisoner at FAC , saw there the applicant , whom he had known from his childhood ; this was on or DATE , while he was about to return to GPE . They did not speak to each other but waved .

The first applicant was born in DATE ; he has been considered missing since DATE . His wife , the second applicant , was born in DATE and resided in GPE .

On DATE , following the general mobilisation , the first applicant enlisted as a reservist in FAC . He was put in ORG . On DATE the battalion moved to the PERSON area to reinforce the NORP forces and to man outposts on the front line .

On TIME CARDINAL DATE NORP military forces , supported by tanks and air cover , launched a heavy attack against the NORP forces in the area , where the applicant was with his battalion . Owing to the superiority of the NORP military forces the NORP Cypriot defence line was broken , the NORP military forces advanced towards the PERSON Milia area , and the NORP forces began to retreat . The area was , in a short period of time , occupied by the NORP military forces and the applicant was trapped within . No trace of the applicant has been found since .

An ex - prisoner of war , Mr PERSON of ORG , now at GPE , stated that during his detention at FAC in GPE he had seen the applicant , who was detained in cell no . CARDINAL . On DATE all the prisoners at FAC were taken to FAC . There they were all lined up in CARDINAL rows . A NORP military officer picked out some of the prisoners , including the applicant , who were taken away . PERSON had not seen the applicant since .

The respondent Government disputed that the applicants had been taken into captivity by the NORP army during the military action in GPE in DATE . They considered that the inevitable conclusion from the information provided in the application forms was that all the alleged “ missing persons ” , except PERSON , were military personnel who died in action during DATE to DATE .

The respondent Government noted that , since the introduction of these applications , files relating to the same “ missing persons ” had been submitted by ORG to ORG on ORG ( “ the ORG ” ) in GPE during DATE . In these files there were no assertions that these people had been seen in any of the prisons in GPE . The names of the alleged witnesses listed in applications nos . CARDINAL ( Christakis Ioannou ) , CARDINAL ( PERSON ) , PERSON ( PERSON ) , CARDINAL/CARDINAL ( PERSON ) , CARDINAL ( PERSON ) , CARDINAL ( Efstathios Selefcou ) , MONEY ( Costas Themistocleous ) and CARDINAL/CARDINAL ( PERSON ) were not cited in support . The alleged sightings were therefore without foundation .

As regards PERSON ( no . CARDINAL/CARDINAL ) , who was a civilian , the respondent Government noted that the ICRC had visited ORG where he had allegedly been held but his name , contrary to the ORG assertion , did not appear in the list of NORP Cypriots held . In any event , it was a transit centre where people were not held for DATE before being released or moved elsewhere . In the file submitted to the ORG , there was only a reference to witnesses seeing the key case which he was alleged to always carry on his person . The materials of the ICRC , who paid regular visits to prisoners and internees in GPE , also showed that none of the alleged missing persons had been brought to GPE or detained . All prisoners that had been taken to GPE were repatriated DATE and DATE and lists of those concerned had been handed over to the NORP Cypriot authorities .

DATE . As concerned the alleged identification of the missing persons in photographs , the Government pointed out that a scientific investigation of certain published photographs and documentary film had been carried out by Professor PERSON of ORG at the request of the third member of the ORG . This had shown that it was extremely dubious that anyone could be identified from these documents and that any alleged identification by relatives was unreliable given the quality of the material and their emotional feelings .

The Government of GPE submitted that the first applicants went missing in areas under the control of the NORP forces .

These CARDINAL applicants had been brought with their units to the area of PERSON to man NORP outposts along the front line . On DATE NORP armed forces launched the attack which gained them control over the whole of northern and eastern GPE by DATE . When the NORP forces broke through the NORP line of defence and advanced on PERSON , the NORP forces retreated and dispersed in all directions . The NORP forces rapidly gained control of the entire surrounding area . Many NORP soldiers , including the CARDINAL applicants , were hemmed in and completely surrounded . They could not have escaped as the intervening Government would have known of their fate .

This applicant was in charge of the soldiers who were defending ORG . After the NORP forces encircled ORG , the NORP forces were ordered to retreat . The applicant ’s group put on civilian clothing and unsuccessfully tried to break out of the village . When the NORP forces entered the village TIME , the applicant ’s group dispersed to avoid capture . At TIME on DATE , the applicant was seen by PERSON . Tampas in a warehouse tending a soldier with a head injury . Mr ORG was later captured and detained . His was the last reported sighting of the first applicant . It was most likely that the first applicant had remained with the injured man and was taken into detention by the NORP forces who were in control of the entire area . Only one man was known to have escaped from the village and he , unlike the first applicant , had local knowledge of the terrain .

NORP Under attack from the NORP army , the first applicant ’s unit was ordered to split into CARDINAL groups and withdraw westwards . The applicant ’s group reached the GPE - GPE road , QUANTITY metres from the “ Airkotissa ” restaurant . The applicant and another man were sent to investigate shouting coming from the restaurant . After TIME when they did not return , the group left for Panagra . At the time that the applicant and the other soldier were sent to the restaurant , there were NORP forces in the area . The most plausible explanation for the QUANTITY men not returning , in the absence of any sound of fighting or shooting , was that they had been detained , either to prevent them giving away the NORP positions , for information or as prisoners of war .

On DATE the first applicant was discovered to be missing from his unit at roll call after they had broken through encircling NORP forces . The area in which his unit had been stationed was captured by NORP forces . Whatever happened to the applicant afterwards occurred in an area controlled by the NORP forces .

This applicant was seen wounded in his right hand and on the left side of his ribcage after a clash between NORP forces and QUANTITY buses full of NORP soldiers coming from ORG village . His wounds were cleaned by a witness named PERSON and he was told to make his way uphill with CARDINAL other men , CARDINAL of whom was also injured , to the monastery where the NORP forces were . The other CARDINAL men were discovered dead DATE when the NORP forces withdrew . It was clear that the applicant had either been found dead by the NORP forces or , as was more likely , found and detained in an injured condition .

This applicant was among those attempting to prevent the invasion of GPE . Some individuals were identified as killed in the operation ; the applicant was not among them . The intervening Government had no evidence that this applicant was dead . It had to be assumed that the applicant had been detained alive .

DATE . This was further corroborated by the photograph published in the Special News Bulletin , issued DATE by the NORP administration , on DATE , of NORP prisoners of war having their lunch . The first applicant was identified at the time by his father , the second applicant .

In their observations before ORG , the intervening Government provided a copy of a statement dated DATE by ORG taken by a police officer which stated that while being carried as a prisoner on a ship from GPE to GPE he had seen and spoken briefly to PERSON , whom he knew from school . They also provided a copy of the ICRC Central Tracing Agency sheet ( ref . no . EZG CARDINAL/CARDINAL ) according to which PERSON had been sighted in a NORP army hospital in GPE in LOC . The intervening Government explained that they had not provided this information to the ORG as it had no mandate to investigate outside the territory of GPE and a policy decision had been taken when submitting documents to the ORG on DATE not to antagonise GPE whose cooperation was necessary if the ORG was to begin effective operation .

By DATE NORP forces were in control of northern and eastern GPE , including the NORP peninsula where the first applicant worked as general cashier in ORG in GPE . On DATE NORP and NORP soldiers arrived in the village and a NORP officer ordered a census of ORG DATE . DATE , the lists were handed over and NORP soldiers carried out searches . They left , taking with them on a bus , QUANTITY individuals , including the first applicant . This was reported by fellow villagers .

Turkish NORP came to the village in the circumstances reported by the applicants ( see paragraphs CARDINAL above ) . They had the CARDINAL keys for a safe , which the first applicant always carried with him . It was highly probable that ORG had obtained the keys by informing those holding the first applicant , showing that he was alive and in detention for DATE . There was some evidence that he was detained after DATE , at least until DATE , at ORG .

NORP The list of persons seen by the PERSON detained at FAC on CARDINAL DATE included ORG , which was the name under which this first applicant had been recorded ( the first name being misspelled and the surname of his father ( PERSON ) , as appearing on the first applicant ’s identity card , also being misspelled ) .

An affidavit dated DATE by ORG , a lawyer of the firm representing the applicants in this application , was submitted to ORG . It stated that the son of the missing man , Mr PERSON , recounted that at DATE he had met a NORP writer who had informed him that , while investigating disappearances , she had discovered evidence indicating that the QUANTITY missing persons from PERSON had been buried near the NORP village of GPE . When the son conveyed this information to the ORG he was informed that the inhabitants of GPE had already given information to the ORG about the execution and burial of NORP prisoners near their village .

This first applicant withdrew with his section from ORG towards GPE . They were ambushed by NORP military forces and dispersed . There has been no news of the applicant since . The intervening Government had no knowledge of the first applicant , which meant that he had not escaped . Nor was there any evidence that he was killed in the ambush . It was more than likely that he had been detained by the NORP armed forces .

In DATE , in the context of the activity of the ORG ( see paragraphs CARDINAL below ) , human remains were exhumed from a mass grave near the NORP village of GPE in the NORP area . After anthropological and genetic analyses , the remains of PERSON ( named as the first applicant in application no . CARDINAL ) were identified , along with the remains of the other CARDINAL missing persons from GPE and CARDINAL other missing NORP Cypriots . The bodies of the CARDINAL missing persons from Yialousa were lined up next to each other in the grave , with CARDINAL other bodies on top close to the ground surface . The forensic report dated CARDINAL DATE detailed the process of exhumation and noted that it appeared to be a primary and synchronous burial site as the condition of the bodies indicated that they were buried while soft tissue was still present and placed in direct contact with each other . According to the report , the main object of the analysis of the human remains was their identification .

Several bullets from firearms were found in the grave . In regard to PERSON , the medical certificate for the cause of death , signed by a doctor on DATE , indicated bullet wounds to the skull and right arm and a wound to the right thigh . His family was notified and a religious funeral took place on DATE .

The ORG was officially set up in DATE . The following paragraphs are taken from ORG in the fourth inter - State case ( paragraphs CARDINAL - CARDINAL ) :

“ CARDINAL . ... According to its terms of reference , it ‘ shall only look into cases of persons reported missing in the intercommunal fighting as well as in the events of DATE and ORG . Its tasks have been circumscribed as follows : ‘ to draw up comprehensive lists of missing persons of both communities , specifying as appropriate whether they are alive or dead , and in the latter case approximate time of the deaths’ . It was further specified that ‘ the committee will not attempt to attribute responsibility for the deaths of any missing persons or make findings as to the cause of such deaths’ and that ‘ no disinterment will take place under the aegis of this committee . The committee may refer requests for disinterment to the LAW for processing under its customary GPE . ‘ All parties concerned’ are required to cooperate with the committee to ensure access throughout the island for its investigative work . Nothing is provided as regards investigations in mainland GPE or concerning the NORP armed forces in GPE .

The ORG consists of CARDINAL members , CARDINAL ‘ humanitarian person’ being appointed by the NORP side and one by the NORP side and the third member being an ‘ official selected by the ICRC ... with the agreement of both sides and appointed by the Secretary - General of the LOC Nations’ .

The ORG has no permanent chairman , the presidency rotating on a DATE basis between all CARDINAL members . Decisions are to be taken by consensus to the extent possible . According to the procedural rules agreed upon in DATE , the procedure is to be conducted as follows :

‘ CARDINAL . Individual or collective cases will be presented to the ORG with all possible information . The ORG will refer each case to the side on whose territory the missing person disappeared ; this side will undertake a complete research and present to the ORG a written report . It is the duty of the ORG members appointed by each side , or their assistants , to follow the enquiries undertaken on the territory of their side ; the third member and/or his assistants will be fully admitted to participate in the enquiries .

The ORG will make case decisions on the basis of the elements furnished by both sides and by ORG of the ICRC : presumed alive , dead , disappeared without visible or other traceable signs .

NORP If the ORG is unable to reach a conclusion on the basis of the information presented , a supplementary investigation will be undertaken at the request of a ORG member . The third ORG member and/or his assistants will participate in each supplementary investigation , or , as the case may be , investigators recruited by the ORG with the agreement of both sides.’

The DATE rules state as ‘ guiding principles’ that ‘ investigations will be conducted in the sole interest of the families concerned and must therefore convince them . Every possible means will be used to trace the fate of the missing ORG . The families of missing persons may address communications to the committee which will be passed on to its appropriate member . That member will eventually provide the family with ‘ final information as to the fate of a particular missing person’ , but no interim information must be given by any member of the committee to the family of a missing person during the discussion of a particular case .

The committee ’s entire proceedings and findings are strictly confidential , but it can issue public statements or reports without prejudice to this rule . According to the DATE procedural rules , a press release will be issued at the close of a meeting or series of meetings and occasional progress reports will also be published . Individual members may make additional statements to the press or the media , provided they comply with the rule of confidentiality , avoid criticism or contradiction to the joint statement and any kind of propaganda .

Due to the strict confidentiality of the ORG ’s procedure , no detailed information about the progress and results of its work is available . However , from the relevant sections of the regular progress reports on ORG in GPE submitted by the ORG Secretary - General to ORG it appears that the committee ’s work started in DATE with a limited , equal number of cases on both sides ( Doc . S/CARDINAL , of CARDINAL , para . CARDINAL ) ; that by DATE an advanced stage had been reached in the investigation of the initial CARDINAL individual cases , supplementary investigations being started in CARDINAL cases in which reports had been submitted ( Doc . S/CARDINAL/Add . CARDINAL , of DATE , para . CARDINAL ) ; and that , while no difficulties were encountered as regards the organisation of interviews or visits in the field , real difficulties then arose by the lapse of time and , even more importantly , lack of cooperation by the witnesses .

This prompted the committee to issue a lengthy press release on DATE ( Doc . S/CARDINAL/Annex ) . There the committee stated that it considered the cooperation of the witnesses as absolutely fundamental , but that the witnesses were often reluctant , unwilling or unable to give full information as to their knowledge about the disappearance of a missing person . However , the committee could not compel a witness to talk . The explanation of the witnesses’ reluctance to testify was that they were afraid of incriminating themselves or others in disappearances , and this despite the witnesses being told by the committee that the information given would be kept strictly confidential and being reassured that they would ‘ not be subject to any form of police or judicial prosecution’ . The committee appealed to the parties concerned to encourage the witnesses to give the very fullest information in their knowledge . It further stated :

‘ In order to further allay the fears of the witnesses , the committee , so as to give the strongest guarantees to the witnesses , is examining measures that could be taken to ensure that they would be immune from possible judicial and/or police proceedings solely in connection with the issue of missing persons and for any statement , written or oral , made for the committee in the pursuit of activities within its mandate.’

In the same press release , the committee pointed out that it considered as legitimate the desire of the families to obtain identifiable remains of missing persons . However , despite systematic enquiries on burial places of missing persons , on both sides , it had not been successful in this respect . It recalled that according to its terms of reference it could not itself order disinterments . Moreover , while there was access to all evidence available , the committee had not reached the stage of finding a common denominator for the appreciation of the value of this evidence . Finally , the committee stated that it was considering the possibility of requesting that the CARDINAL sides furnish it with basic information concerning the files of all missing persons , so as to allow it to have a global view of the whole problem .

NORP In DATE , the ORG Secretary - General wrote a letter to the leaders of both sides observing that so far the committee had been given details on PERCENT of the cases and urging them to submit all cases . He further emphasised the importance of reaching consensus on the criteria that both sides would be ready to apply in their respective investigations . Moreover , the committee should consider modalities for sharing with affected families any meaningful information available ( ORG . S/CARDINAL , of CARDINAL DATE , para . CARDINAL ) . On DATE , in a further letter to the leaders of both communities the ORG Secretary - General noted that no improvement had been made and that the international community would not understand that the committee , DATE after it had become operational , remained unable to function effectively . Only CARDINAL cases had been submitted by the NORP side and CARDINAL by the NORP side . He again urged both sides to submit all cases without further delay and the committee to reach a consensus on the criteria for concluding its investigations ( Doc . S/CARDINAL , of DATE , paras . PERCENT CARDINAL ) .

On CARDINAL DATE the ORG Secretary - General , on the basis of a report of the ORG ’s third member and proposals by both sides , put forward compromise proposals on criteria for concluding the investigations ( Doc . PERSON , of DATE , para . CARDINAL ) , which were subsequently accepted by both sides ( Doc . ORG , of DATE , para . CARDINAL ) . By DATE , the NORP side submitted all their case files ( CARDINAL ) . However , the committee ’s third member withdrew in DATE and the ORG Secretary - General made it a condition for appointing a new one that certain outstanding questions , including classification of cases , sequence of investigations , priorities and expeditious collection of information on cases without known witnesses , be settled beforehand ( Doc . S/CARDINAL/CARDINAL , of DATE , para . CARDINAL ) . After being repeatedly urged to resolve these issues ( Doc . S/CARDINAL/CARDINAL , of DATE , paras . CARDINAL - CARDINAL ) , both parties eventually came to an agreement on DATE on the exchange of information on the location of graves of missing persons and return of their remains . They also requested the appointment of a new third member of the CMP ( ORG . ORG , of DATE , paras . CARDINAL and DATE ) . However , by DATE , no progress had been made towards the implementation of this agreement . The ORG Secretary - General noted in this context that the NORP side had claimed that victims of the coup d’état against Archbishop PERSON in DATE were among the persons listed as missing and that this position deviated from the agreement ( ORG . GPE , of DATE , para . CARDINAL ) .

A new third member of the ORG had , by the time of the ORG ’s report , been appointed ( ibid . para . CARDINAL ) . The committee has not completed its investigations and accordingly the families of the missing persons have not been informed of the latter ’s fate . ”

From DATE the ORG began a substantial exhumation project on identified burial sites with a view to identifying the remains of bodies and ensuring their return to their families . A special unit to provide information to families was also set up .

According to the information provided by the respondent Government , CARDINAL sets of remains had been located ; CARDINAL remains had been submitted for analysis and identification by the anthropological laboratory ; since DATE , CARDINAL bodies had been identified ( CARDINAL NORP Cypriots , CARDINAL NORP ) ; by DATE , CARDINAL files of missing persons had been closed ; by the date of the hearing , PERCENT of missing persons had been identified and their remains returned to their relatives for burial ; by DATE , CARDINAL sites had been visited by bi - communal teams ( CARDINAL in the north , CARDINAL in the south ) .

In the ongoing monitoring process concerning GPE v. GPE ( [ ORG ] , no . CARDINAL , ORG CARDINALIV ) , ORG looked at the question of missing persons and , inter alia :

“ CARDINAL . considered that it was crucial that the current work of the ORG be carried out under the best possible conditions and without delay ;

in consequence , while reaffirming that the execution of the judgment requires effective investigations , notes that these should not jeopardise the ORG ’s mission ;

NORP considered that the sequence of measures to be taken within the framework of the effective investigations , and carrying out of the work of the ORG should take into consideration these CARDINAL essential aims ;

underlined in any event the urgent need for NORP authorities to take concrete measures having in mind the effective investigations required by the judgment , in particular relating to the ORG ’s access to all relevant information and places ;

in that context , underlined , moreover the importance of preserving all the information obtained during ORG carried out by the ORG ; ... ”

The PERSON provides , inter alia :

“ CARDINAL . An act of enforced disappearance is an offence to human dignity . It is condemned as a denial of the purposes of the Charter of ORG and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in LAW and reaffirmed and developed in international instruments in this field .

Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families . It constitutes a violation of the rules of international law guaranteeing , inter alia , the right to recognition as a person before the law , the right to liberty and security of the person and the right not to be subjected to torture and other cruel , inhuman or degrading treatment or punishment . It also violates or constitutes a grave threat to the right to life . ”

“ CARDINAL . No State shall practise , permit or tolerate enforced disappearances .

States shall act at the national and regional levels and in cooperation with ORG to contribute by all means to the prevention and eradication of enforced disappearance . ”

“ Each ORG shall take effective legislative , administrative , judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under its jurisdiction . ”

“ CARDINAL . Acts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remained unclarified .

When the remedies provided for in LAW are no longer effective , the statute of limitations relating to acts of enforced disappearance shall be suspended until these remedies are re - established .

Statutes of limitations , where they exist , relating to acts of disappearance shall be substantial and commensurate with the extreme seriousness of the offence . ”

“ The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation , including the means for as complete a rehabilitation as possible . In the event of the death of the victim as a result of an act of enforced disappearance , their dependents shall also be entitled to compensation . ”

ORG on Enforced or Involuntary Disappearance has issued , inter alia , the following General Comments on the above Declaration :

“ General PERSON on LAW ( E / CN.CARDINAL/CARDINAL/CARDINAL/CARDINAL DATE )

Article CARDINAL establishes fundamental principles intended to clarify the nature of enforced disappearances and their criminal consequences . The sense and general purpose of the Article is to ensure conditions such that those responsible for acts constituting enforced disappearance are brought to justice within a restrictive approach to statutory limitations . ...

The definition of ‘ continuing offence’ ( para . CARDINAL ) is of crucial importance for establishing the responsibilities of the ORG authorities . Moreover , this LAW imposes very restrictive conditions . The LAW is intended to prevent perpetrators of those criminal acts from taking advantage of statutes of limitations . ... ”

“ General PERSON on LAW ( CARDINAL/CN.CARDINAL/CARDINAL/CARDINAL , DATE )

Article CARDINAL also explicitly mentions the right of victims and their family to ‘ adequate NORP . GPE are , therefore , under an obligation to adopt legislative and other measures in order to enable the victims to claim compensation before the courts or special administrative bodies empowered to grant compensation . In addition to the victims who survived the disappearance , their families are also entitled to compensation for the suffering during the time of disappearance and in the event of the death of the victim , his or her dependants are entitled to compensation .

Compensation shall be ‘ adequate’ i.e. proportionate to the gravity of the human rights violation ( e.g. the period of disappearance , the conditions of detention , etc . ) and to the suffering of the victim and the family . Monetary compensation shall be granted for any damage resulting from an enforced disappearance such as physical or mental harm , lost opportunities , material damages and loss of earnings , harm to reputation and costs required for legal or expert assistance . Civil claims for compensation shall not be limited by amnesty laws , made subject to statutes of limitation or made dependent on penal sanctions imposed on the perpetrators .

The right to adequate compensation for acts of enforced disappearance under LAW shall be distinguished from the right to compensation for arbitrary executions . In other words , the right of compensation in relation to an act of enforced disappearance shall not be made conditional on the death of the victim . ‘ In the event of the death of the victim as a result of an act of enforced disappearance’ , the dependants are , however , entitled to additional compensation by virtue of the last sentence of LAW . If the death of the victim can not be established by means of exhumation or similar forms of evidence , States have an obligation to provide for appropriate legal procedures leading to the presumption of death or a similar legal status of the victim which entitles the dependants to exercise their right to compensation . ... As a general principle , no victim of enforced disappearance shall be presumed dead over the objections of the family . ”

This Convention provides , inter alia :

“ CARDINAL . No one shall be subjected to enforced disappearance .

No exceptional circumstances whatsoever , whether a state of war or a threat of war , internal political instability or any other public emergency , may be invoked as a justification for enforced disappearance . ”

“ For the purposes of this Convention , ‘ enforced ORG is considered to be the arrest , detention , abduction or any other form of deprivation of liberty by agents of the ORG or by persons or groups of persons acting with the authorisation , support or acquiescence of the ORG , followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person , which place such a person outside the protection of the law . ”

“ ORG shall take appropriate measures to investigate acts defined in LAW committed by persons or groups of persons acting without the authorisation , support or acquiescence of the ORG and to bring those responsible to justice . ”

“ ORG shall take the necessary measures to ensure that enforced disappearance constitutes an offence under its criminal law . ”

“ The widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and shall attract the consequences provided for under such applicable international law . ”

“ Without prejudice to LAW ,

A ORG which applies a statute of limitations in respect of enforced disappearance shall take the necessary measures to ensure that the term of limitation for criminal proceedings :

( a ) Is of long duration and is proportionate to the extreme seriousness of this offence ;

( b ) Commences from the moment when the offence of enforced disappearance ceases , taking into account its continuous nature .

Each State Party shall guarantee the right of victims of enforced disappearance to an effective remedy during the term of limitation . ”

This Convention provides , inter alia :

“ The States Parties to this Convention undertake :

a. Not to practice , permit , or tolerate the forced disappearance of persons , even in states of emergency or suspension of individual guarantees ;

b. To punish within their jurisdictions , those persons who commit or attempt to commit the crime of forced disappearance of persons and their accomplices and accessories ;

c. To cooperate with one another in helping to prevent , punish , and eliminate the forced disappearance of persons ;

d. To take legislative , administrative , judicial , and any other measures necessary to comply with the commitments undertaken in this LAW . ”

“ For the purposes of this Convention , forced disappearance is considered to be the act of depriving a person or persons of his or their freedom , in whatever way , perpetrated by agents of the ORG or by persons or groups of persons acting with the authorisation , support , or acquiescence of the ORG , followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person , thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees . ”

“ The States Parties undertake to adopt , in accordance with their constitutional procedures , the legislative measures that may be needed to define the forced disappearance of persons as an offense and to impose an appropriate punishment commensurate with its extreme gravity . This offense shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined ... ”

In PERSON v. GPE , the PERSON had to deal with the ratione temporis exception raised by the government in that case , since the disappearance itself had taken place before the critical date ( acceptance of the compulsory jurisdiction in DATE ) . The court considered that forced disappearances implied the violation of various human rights and that the effects of such infringements – even though some may have been completed – “ may be prolonged continuously or permanently until such time as the victim ’s fate or whereabouts are established ” ( see PERSON , DATE , preliminary objections , § CARDINAL ) .

Mr PERSON ’s fate or whereabouts were not known to his family until DATE , after the date on which GPE accepted the jurisdiction of the court . This led to the PERSON declaring itself competent ratione temporis to examine the “ effects and actions ” subsequent to the critical date . However , it accepted the government ’s preliminary objection as regards the deprivation of PERSON liberty and his murder , which had been completed before the critical date and could not be considered per se to be continuous .

In its judgment on the merits ( DATE , p. CARDINAL ) , the PERSON considered the disappearance as marking the beginning of a “ continuing situation ” . It proceeded to examine the complaint under LAW in relation to LAW and declared that GPE had violated the right of PERSON PERSON ’s relatives to have his disappearance and death effectively investigated , to have those responsible prosecuted and punished where appropriate , and to be compensated , notwithstanding the lack of temporal competence to deal with the substantive complaints .

The PERSON came to a similar conclusion in cases of disappearances in which the victim ’s whereabouts had never been established . In Serrano- PERSON v. GPE ( judgment of DATE , preliminary objections ) , the court found that it had no competence to examine , under Articles CARDINAL , CARDINAL and DATE ( right to personal liberty ) , the disappearances of the sisters as such , since they had allegedly taken place DATE before GPE had accepted the contentious jurisdiction of the court . It came to the same conclusion as regards the procedural violations invoked under LAW , since they were linked to the alleged forced disappearance ( § CARDINAL ) . However , the ORG considered that all the facts that occurred following the critical date and which referred to ORG CARDINAL and CARDINAL of the Convention ( filing of a petition for habeas corpus , criminal proceedings ) , were not excluded by the temporal limitation established by the ORG , since they constituted “ independent facts ” or “ specific and autonomous violations concerning denial of justice ” ( § CARDINAL ) . On the merits , it declared that the ORG had violated Articles CARDINAL and CARDINAL of the LAW , to the detriment of both sisters and their next of kin ( judgment of DATE ) .

In a more recent judgment , Heliodoro GPE v. GPE of CARDINAL DATE , ORG made a clear distinction between forced disappearances and extrajudicial killings for the purposes of its jurisdiction ratione temporis . The case concerned the forced disappearance in DATE ( DATE before GPE accepted the compulsory jurisdiction of the court ) of Heliodoro GPE , whose remains were found in DATE . It considered that the victim should be presumed dead before the date of acceptance of the court ’s jurisdiction ( DATE ) , with regard to the fact DATE had elapsed since his disappearance . It characterised the extrajudicial killing as an instantaneous act and accepted the government ’s preliminary exception as regards the right to life ( DATE ) . However , with regard to the forced disappearance as such , it applied its previous case - law and found that it was a permanent or continuous violation , since it had been prolonged after the critical date until the victim ’s remains were found in DATE . It was competent to examine the following violations arising out of the disappearance : the deprivation of liberty of the victim ( Article CARDINAL ) , the violation of the relatives’ right to humane treatment ( Article CARDINAL ) , the non - compliance with the obligation to investigate into the alleged disappearance , the failure to incriminate forced disappearances and tortures in domestic law and the failure to investigate and punish acts of torture . On the merits , the ORG went on to find a violation of the right to liberty ( Article CARDINAL ) and a violation of ORG CARDINAL and CARDINAL of ORG on Forced Disappearance of Persons with regard to the deceased . It further found a breach of LAW ( right to humane treatment ) , CARDINAL in respect of his relatives .

As regards forced disappearances , the ORG recognised “ the degree of suffering involved in being held indefinitely without contact with the outside world ” and held that they constituted “ cruel and inhuman treatment ” contrary to LAW ( “ the LAW ” ) with regard to the disappeared . Disappearances often resulted in breaches of the right to life , embodied in LAW . In General Comment No . CARDINAL on the right to life , the ORG stated :

“ GPE Parties should also take specific and effective measures to prevent the disappearance of individuals , something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life . Furthermore , States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life . ”

In a number of cases , the ORG has found that a breach of LAW has occurred , but has been unable to make a final decision in that regard in the absence of confirmation of death . Disappearances may also lead to violations of Articles CARDINAL ( right to liberty and security of person ) , CARDINAL ( right of all persons deprived of their liberty to be treated with humanity and with respect for the inherent dignity of the human person ) and CARDINAL with regard to the relatives of the disappeared , in view of the stress , anguish and uncertainty caused by the disappearance .

The positive obligation to investigate disappearances ( mentioned in the General Comment on the right to life ) may also be breached in this type of case ; in these situations there may be a breach of LAW ( which enshrines the right to an effective remedy ) in conjunction with LAW . The ORG , in General PERSON No . DATE on LAW and QUANTITY of the LAW , emphasised that the failure to investigate in respect of grave violations such as enforced disappearances or torture , as well as the failure to bring to justice perpetrators of such violations , could give rise to a separate breach of the LAW . The ORG was thus empowered to find a violation of Articles CARDINAL , CARDINAL and CARDINAL read in conjunction with LAW of the LAW .

NORP However , when the disappearance occurred before the date that the LAW or LAW entered into force for a ORG , the approach of the ORG to whether it has temporal jurisdiction has evolved over DATE .

In the cases of missing persons in GPE ( GPE v. GPE , CARDINAL DATE ) , ORG had found that LAW of the LAW could not be violated by ORG in the absence of jurisdiction over a substantive violation . In PERSON v. GPE , DATE , the ORG declared the communication inadmissible ratione temporis in respect of the author ’s son , whose body had never been recovered since his death in DATE . ORG held that ORG judgment of DATE rejecting the author ’s complaint as regards the application of the DATE amnesty decree could not be regarded as a new event that could affect the rights of a person who was killed in DATE , prior to the international entry into force of the LAW and the entry into force of LAW for GPE .

In GPE , DATE , the author alleged that his son had been removed by members of the military in DATE and was last seen in DATE . GPE became a party to LAW in DATE with a declaration limiting the ORG ’s competence to facts arising after DATE . ORG found that although the initial abduction occurred outside their temporal jurisdiction “ the alleged violations of the LAW , if confirmed on the merits , may have occurred or continued after the entry into force of the LAW ” . ORG went on to find a violation of ORG and CARDINAL with regard to the son and LAW with regard to the author and his wife due to their anguish and stress at not knowing their son ’s whereabouts . The ORG also emphasised that the ORG had a duty under LAW “ to provide the author and his family with an effective remedy , including a thorough and effective investigation into the disappearance and fate of the author ’s son ... ” which implied that the ORG might have an obligation to investigate matters which had occurred before the entry into force of LAW . Finally , it refrained from finding a violation of LAW , since the author had not abandoned hope for his son ’s reappearance .

NORP However , in GPE v. GPE , DATE , ORG , although describing enforced disappearance as a continuing act , noted that the original acts of arrest and abduction , as well as the refusal to give information about the deprivation of freedom , had occurred before the entry into force of the Covenant for Chile . The ORG further considered that the author had made no reference to any action of the ORG after the crucial date ( entry into force of the Optional Protocol ) that would constitute “ a confirmation of the enforced disappearance ” . For these reasons , it declared the application inadmissible .

More recently in PERSON . v. PERSON , DATE ( see PERSON , p. CARDINAL ) , the ORG applied this act of confirmation approach , and also changed its analysis in considering a failure to investigate a death which had taken place prior to the critical date . Although it found that it had no jurisdiction ratione temporis over the death of PERSON PERSON , it went on to consider the subsequent proceedings and failure to correct his death warrant ( which stated the cause of death as natural ) and their effect on PERSON wife and CARDINAL children . It found that there had been a failure to conduct an inquiry into PERSON death , to prosecute those responsible and to conclude legal proceedings begun by the author to remedy this situation . It concluded that the proceedings had been prolonged at the fault of the authorities , the delay continuing after the entry into force of the LAW and LAW . The authors were therefore affected by the authorities’ failures after this entry into force , and that gave ORG with jurisdiction ratione temporis over the Article CARDINAL claim .

On the merits , the ORG went on to find that “ the refusal to conduct an investigation into the death of PERSON , the lack of official recognition of his place of burial and the failure to correct the death certificate constitute inhuman treatment of Ms. PERSON and her sons , in breach of LAW ” .


Violation of P1-1;Pecuniary damage - financial award

The applicant , ORG , is a company incorporated in GPE . From the moment of incorporation its shares were owned by GPE , NORP and NORP investors , it therefore qualified as a company owned by foreign investors and thus benefited from special incentives and guarantees under LAW ( see paragraph CARDINAL below ) .

On DATE Presidential Decree No . CARDINAL ( “ the Decree ” ) was promulgated . It made possible the creation and operation of duty free shops at land , water and air - border crossings . According to the Decree , the duty free shops were entitled to sell imported goods without having to pay customs tax ( see paragraph CARDINAL below ) .

On DATE the applicant company signed a contract with ORG , at the border between GPE and GPE , providing for the opening of duty free shops on the territory of the customs zone . The contract did not contain any provisions as to its duration . It was approved by the Head of ORG and by the Minister of ORG .

On DATE and on DATE the company obtained CARDINAL licences to operate a duty free shop and a duty free bar , within the shop , at ORG . The licences were issued in accordance with the Decree and they did not contain any provisions as to their duration . Subsequently , the applicant company bought the necessary equipment , built the LOC of the shop and bar and started operating them .

On DATE ORG made an amendment to LAW by which duty free sales outlets were thenceforward restricted to international airports and on board aircraft flying international routes ( see paragraph CARDINAL below ) .

On CARDINAL DATE ORG ordered the closure of all duty free outlets which were not located in international airports or on board aircraft flying international routes ( “ the order ” ) .

On DATE the applicant company , together with other companies similarly affected , lodged a court action against the order with ORG .

The applicant argued inter alia that the grounds relied on by ORG in closing down its duty free shop and bar were not enumerated in the exhaustive list of grounds for closing down such shops provided for in section CARDINAL of LAW .

NORP Moreover , in the light of CARDINAL of Law No . CARDINAL ( see paragraph CARDINAL below ) , the new amendments to LAW could not have retroactive effect and could be interpreted only as limiting the opening of duty free shops in the future , and not as closing down those already open .

According to the applicant , the order conflicted with section CARDINAL of the Law on Foreign Investments ( see paragraph CARDINAL below ) , which stipulated that the activity of a company owned by foreign investors could be terminated only by a governmental decision or a court order , and only when the company had seriously breached GPE legislation and its articles of incorporation .

The applicant further argued that according to section CARDINAL of the Law on ORG ( see paragraph CARDINAL below ) , in the event of the adoption of new , less favourable legislation , companies owned by foreign investors were entitled to rely on the old legislation for a period of DATE . The DATE period began to run from the date of enactment of the new legislation . Moreover , the second paragraph of the same section specifically provided that foreign - owned companies which enjoyed customs incentives in accordance with the former legislation of GPE had the right to enjoy those incentives after new legislation came into effect .

On DATE ORG ruled in favour of the applicant company and quashed the order , relying inter alia on the following reasons :

“ ... The court considers that the order of ORG . CARDINAL of CARDINAL DATE , issued for the purpose of applying PERSON No . CARDINAL of DATE [ concerning the modification of LAW ] , by which the activity of duty free shops was terminated starting with DATE ... is illegal because it is contrary to the legislation in force .

Law No . CARDINAL of DATE , by which LAW was modified ... does not provide for the termination of the activity of the duty free shops already open in places other than airports and on board aeroplanes .

Moreover , the above mentioned Order [ of ORG ] runs contrary to LAW which does not provide among the reasons for liquidating a duty free shop the reason provided for in the Order – a change in the legislation .

The ORG considers that the modified text of LAW can not have a bearing on the duty free shops already open and in operation , because this would also run contrary to LAW , which stipulates that a law can not be retroactive or ultra active .

Since the applicants are enterprises with foreign investments , the ORG considers that the LAW runs contrary to LAW , which provides that the foreign investments are guaranteed full security and protection in GPE .

Moreover , according to LAW , the applicants ' activity ... can be terminated only by means of a Government Decision or a court judgment and only if they have seriously breached the legislation or their statute of incorporation . However , the Order in question does not contain any reference to any breaches committed by the applicant and is not based on a Government Decision or a court judgment .

It is necessary to indicate that in accordance with LAW , in case of enactment of new laws which change the conditions of a company with foreign investment created before the enactment of such laws , the company in question has the right to guide itself by the old legislation for DATE calculated from the date of enactment of the new legislation .

According to the second paragraph of LAW of ORG , foreign investors and enterprises with foreign capital which enjoyed customs , tax and other incentives in accordance with the legislation of GPE formerly in force , have the right to enjoy these incentives after the new legislation comes into effect .

The court considers that the Order violated the applicants ' right to property guaranteed by LAW , DATE and CARDINAL of ORG and by LAW . ”

ORG appealed against this judgment to ORG .

On DATE ORG allowed ORG appeal , quashed the judgment of ORG and dismissed the applicant 's action . The grounds relied on by ORG were as follows :

“ The first instance court , in finding for the applicants , reached conclusions which are based on a wrong interpretation of the law because the Order in question does not provide for a total termination of the activity of duty free shops but only for the termination of their activity in certain places .

Therefore the first instance court 's conclusion that the Order had as effect the termination of the entire activity of the foreign investors who had opened these shops and that thus their right to total security and protection provided for by LAW was violated is incorrect .

Article CARDINAL of LAW , as modified by LAW . CARDINAL of DATE , defines the duty free as a customs regime which consists of sale of goods under customs supervision in especially dedicated places in international airports and onboard aeroplanes .

Accordingly , through this provision the legislators regulate and limit the places in which such shops can be located but they do not create any interdiction in so far as their activity is concerned . Therefore the arguments of the first instance court that the right to activity of the foreign investors has been violated , is devoid of legal support . The applicants are not prohibited to place their shops in the places provided for by law , i.e. in airports and onboard aeroplanes .

According to the documents of incorporation of these companies , they practice different kinds of activities , including the sale of goods in the Duty Free regime .

The conclusion of the first instance court that the Order violated the right to property guaranteed by the LAW and the international law is incorrect because the companies in question have the right to open duty free shops in other places , as provided by LAW . The activity of the companies is not totally stopped and nothing is taken away from them .

The first instance court 's reference to LAW which says that the activity of a company with foreign investment can only be terminated by a Government Decision or a court judgment is wrong because the Order did not totally terminate the applicants ' activity but only the sale of goods in the Duty Free regime . They can do other activities which are provided in their documents of incorporation . ”

ORG did not express any view on the applicant 's argument or the ruling of ORG concerning the applicability of the second paragraph of LAW ( CARDINAL ) of ORG to the case . Its judgment was final .

The relevant extracts from LAW read as follows :

“ Article CARDINAL . The right to private property and its protection

( CARDINAL ) The right to possess private property ... [ is ] guaranteed .

( CARDINAL ) No one may have his property expropriated except for reasons dictated by public necessity , as established by law , and subject to the payment of just and appropriate compensation made in advance .

( CARDINAL ) No assets legally acquired may be confiscated . The effective presumption is that of legal acquirement .

Presidential Decree No . CARDINAL of DATE , in so far as relevant , reads :

Section CARDINAL . Imported goods which are to be sold at “ duty free ” shops ... shall be exempted from customs tax ;

“ Duty free ” shops may be operated at the road , naval and air border crossing points .... ”

The Law on Foreign Investments of DATE , in so far as relevant , reads :

“ Section CARDINAL . The applicable law

CARDINAL .... Laws which contradict the present law in the part concerning foreign investments shall not be applicable .

Section CARDINAL . ORG incentives for goods brought into the country

The goods referred to in section CARDINAL of the present law [ cars , equipment , office equipment , row material ... ] , which are brought into the country as a contribution to the statutory capital shall be exempted from customs tax .

Section CARDINAL . ORG incentives for import and export

A company owned by foreign investors shall be exempt from customs tax for merchandise ( raw materials ... ) , imported for the purpose of producing goods to be exported .

Section CARDINAL . Guarantees concerning nationalisation or expropriation of foreign capital investments

Foreign investments in GPE are granted complete security and protection .

Foreign investments can not be expropriated , nationalised or subjected to any other similar measures in any way other than according to the law , on the basis of a law serving the national interest and against the payment of appropriate compensation .

Compensation shall correspond to the value of investment assessed immediately before the moment of expropriation , nationalisation or other similar measure . It must be paid not DATE from the moment the above measures are taken , with an appropriate bank interest rate calculated before the date of payment . The compensation has to be paid in the currency in which the investment was made and it may be transferred abroad without any restrictions .

NORP The payment of compensation is ensured by the State body entitled to carry out the expropriation , nationalisation or any other similar measures . The State body must determine the value of investment and pay the compensation not later than the day of the expropriation , nationalisation or other similar measure . If the State body does not have sufficient funds , the compensation shall be paid from the ORG budget .

The affected investor is entitled to request verification of the legality of the expropriation , nationalisation or other similar measure and of the amount of the compensation in the manner provided for by law . ”

Section CARDINAL . Guarantees concerning forcible suspension and cessation of activity

NORP The activity of an enterprise with foreign investors can be forcibly suspended only in accordance with a decision of ORG or a competent court , when the enterprise has seriously violated the terms of the legislation of GPE or the provisions of its articles of incorporation ...

NORP If the activity of an enterprise with foreign investors is suspended on the initiative of a body of State control , and no violations of legislation or of the constitutive documents are found , the above body shall compensate the enterprise for any damage including lost profit . If the State body does not have sufficient money , the payment is made from the ORG budget .

NORP The assets of a foreign investor whose enterprise is liquidated or who withdraws from the enterprise may be taken abroad by him without any licence . ”

“ Section CARDINAL . Guarantees concerning changes of legislation

NORP In the event of the adoption of new legislative acts changing the conditions of activity of an enterprise with foreign capital created before the adoption of such acts , that enterprise shall have the right to have applied to it the legislation of GPE operating on DATE of its creation for DATE calculated from DATE of the entry into force of the new legislative act .

NORP The provisions of paragraph CARDINAL do not extend to legislation related to tax , customs , finance , monetary , credit , currency or anti - trust measures , or to legislation regulating ORG security , protection of the environment , social order , morals or the health of the population .

Foreign investors and enterprises with foreign investors which enjoyed customs , tax and other incentives in accordance with the former legislation of GPE shall enjoy those incentives after the new legislation comes into effect .... ”

The Customs Code of GPE as amended on DATE reads :

“ Section CARDINAL . The duty free outlet – a customs regime ( regim vamal ) which consists of the sale of goods under customs supervision in specially designed places situated in international airports and on board aircraft .

Section CARDINAL . A duty free outlet may be closed down if the licence expires or if it is annulled or withdrawn in accordance with the law . ”

The relevant provisions of Law No . CARDINAL of DATE read as follows :

“ Section CARDINAL § CARDINAL . A law may have effect only during the period of its validity and may not have retroactive or prospective effect . ”

The treaty between GPE and GPE concerning the encouragement and reciprocal protection of investment , signed at GPE on DATE , in so far as relevant , reads as follows :

Article II . CARDINAL . ( a ) Investment shall at all times be accorded fair and equitable treatment , shall enjoy full protection and security and shall in no case be accorded treatment less than that required by international law .

( b ) Neither Party shall in any way impair by arbitrary or discriminatory measures the management , operation , maintenance , use , enjoyment , acquisition , expansion , or disposal of investments . For purposes of dispute resolution under ORG and ORG , a measure may be arbitrary or discriminatory notwithstanding the fact that a ORG has had or has exercised the opportunity to review such measure in the courts or administrative tribunals of a ORG .

( c ) ORG shall observe any obligation it may have entered into with regard to investments .

LAW . CARDINAL . Investments shall not be expropriated or nationalized either directly or indirectly through measures tantamount to expropriation or nationalization ( " expropriation " ) except : for public purpose ; in a nondiscriminatory manner ; upon payment of prompt , adequate and effective compensation ; and in accordance with due process of law and the general principles of treatment provided for in Article II(CARDINAL ) . Compensation shall be equivalent to the fair market value of the expropriated investment immediately before the expropriatory action was taken or became known , whichever is earlier ; be calculated in a freely usable currency on the basis of the prevailing market rate of exchange at that time ; be paid without delay ; include interest at a commercially reasonable rate from the date of expropriation ; be fully realizable ; and be freely transferable . ”

On DATE the Commission on ORG of ORG replied to an enquiry made by the applicant concerning the interpretation of LAW of ORG . In a letter signed by the Chairman of the Commission , Mr. PERSON , it stated the following :

“ LAW provides that in the event of new legislation , changing the conditions of activity of a company with foreign investors which was created before the adoption of such new legislation , that company has the right to rely on the legislation in force on DATE of its creation for DATE calculated from DATE of the entry into force of the new legislation .

The above is a general rule , which refers to any legislation changing the general conditions of activity of a company owned by foreign investors .

Paragraph CARDINAL of LAW states the type of legislation not covered by the rule in LAW , and which is applicable from the very moment of its entering into force .

LAW states the exceptions to LAW . These exceptions refer only to privileges ( facilităţi ) , incentives ( înlesniri ) , exemption of payments ( scutiri de plăţi ) , etc . , which were provided for in law when the company was set up .

Accordingly , LAW does not contradict the provisions of LAW , but makes clear that companies with foreign investors , which enjoyed customs , tax or other forms of privileges in accordance with the legislation of GPE formerly in force , have the right to enjoy those privileges for DATE after the entry into force of new legislation . ”

In their observations of DATE the ORG argued that the above letter had not been signed by the Chairman of the Commission on ORG of the ORG , but by an ordinary member of that ORG and that in any event , according to NORP legislation , it could not be considered an official interpretation of section QUANTITY of the Law on Foreign Investment but merely an explanation . They requested the ORG not to admit the letter as evidence .

The applicant company submitted for the ORG 's attention a judgment of ORG in the case of ORG versus ORG in which a similar matter had been decided . In that case the applicant had successfully challenged the closure of another duty free shop operated by it at the GPE customs point on the same grounds as in the present case . By its final judgment of DATE ORG found inter alia that the applicant company had been entitled to rely on the second paragraph of LAW ( CARDINAL ) of the Law on ORG and that the amended section CARDINAL of LAW could not have any bearing on the applicant company since according to section DATE of Law No . CARDINAL it could not have retroactive effect on the duty free shops opened prior to its enactment .


Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

DATE ORG ( “ the NORP ORG ” ) , composed of CARDINAL professional judge , PERSON , and CARDINAL lay judges , PERSON and PERSON , examined the charges brought against the applicant in connection with a drug - related offence .

On DATE ORG found the applicant guilty of illegal acquisition and storage of narcotics on a particularly large scale for the purpose of sale and of illegal sale of drugs and sentenced him to DATE imprisonment .

The applicant and his counsel appealed against the judgment of CARDINAL September CARDINAL to ORG ( “ the ORG ” ) . They complained , in particular , that lay judge ORG had not been appointed in accordance with the law and had not been independent because he worked as a clerk ( секретарь суда ) at ORG .

On DATE ORG returned the case to the first - instance court and ordered it to look into the applicant ’s complaints about the competency of lay judge ORG .

The results of the inquiry carried out by ORG in respect of the competency of lay judge PERSON to sit in the case were summarised in a report of CARDINAL DATE , which stated as follows :

“ ... The inquiry established that ORG had at its disposal a copy of the decision of CARDINAL DATE of ORG of GPE confirming the results of the additional selection of lay judges of LOC as well as a copy of the list of lay judges elected by the staff of ORG , which comprised CARDINAL persons ( PERSON and Mr PERSON ) and which had not been properly certified .

According to information obtained from ORG and from ORG , the originals of the documents on the election of lay judges of ORG had not been kept .

Nevertheless , lay judge ORG had been in possession of the card [ identifying him as a ] lay judge of LOC , which had been valid until DATE .

The presidential decrees of CARDINAL No . CARDINAL and CARDINAL No . CARDINAL , CARDINAL No . CARDINAL , CARDINAL.CARDINAL.CARDINAL No.CARDINAL , and CARDINAL No.CARDINAL extended the terms of office of previously selected lay judges until the adoption of LAW on the selection of lay judges and the compilation of general lists of lay judges . ”

On DATE ORG examined the case on appeal . It held that the applicant ’s guilt of acquisition of drugs for the purpose of sale and the sale of drugs had been proved by the evidence examined during the trial . Regarding the allegedly unlawful composition of the trial court , the appeal court held that the term of office of lay judge ORG had been extended in accordance with the Presidential decrees . The court also noted that the fact that lay judge PERSON worked for the court as a clerk did not preclude him from being elected as a lay judge . ORG reduced the applicant ’s sentence to DATE imprisonment and upheld the remainder of the judgment .

On DATE ORG of GPE ( “ the ORG ” ) reviewed the case under the supervisory review procedure . ORG held that the applicant ’s guilt of acquisition and storage of drugs on a large scale had been established . However , the materials of the criminal case file had not contained any evidence which would allow it to establish with sufficient credibility that the applicant had acquired the drugs for the purpose of sale and that he had sold them . In those circumstances , the applicant ’s actions should have been classified as illicit procurement and storage of drugs without intent to sell .

ORG amended the judgment of DATE and the decision of DATE , convicted the applicant of illicit procurement and storage of drugs without intent to sell and sentenced him to CARDINAL GPE imprisonment . With reference to LAW of DATE , the court ordered that the applicant be released from serving his sentence and , consequently , from custody .

DATE Code provided that hearings in first - instance courts dealing with criminal cases should , subject to certain exceptions , be conducted by a single professional judge or by CARDINAL professional and CARDINAL lay judges . In their judicial capacity , lay judges enjoyed the same rights as professional judges .

Part III of the PERSON set out the procedure for the election of lay judges . Elections of lay judges of district ( town ) courts were called by the Presidium of ORG and were carried out by the executive committees of the district or town ORG ( Articles CARDINAL and DATE ) . Lay judges were elected during general staff meetings , general meetings and gatherings of citizens at their places of residence . A separate , open vote was held in respect of each candidate . Persons who received PERCENT of the votes were elected ( LAW ) . The results of the elections had to be recorded in TIME of the meetings ( Article CARDINAL ) . The relevant executive committee determined the results of the elections , compiled the list of elected lay judges , approved that list , published the information on the results of the elections and sent the list of lay judges to the district court ( Articles CARDINAL and CARDINAL ) .

Article CARDINAL of the LAW provides that the President of the GPE shall issue decrees and orders which shall have binding force on the entire territory of GPE and which should not run contrary to LAW and federal laws .

The Decree of DATE provided that lay judges of district ( town ) courts had to continue their service until the adoption of the respective federal law . Executive authorities of the constituent elements of GPE had , if necessary , to organise by - elections of lay judges of district ( town ) courts at general staff meetings , general meetings and gatherings of citizens at their places of residence .

The Decree of DATE provided , among other things , that lay judges of district courts had to continue their service until the adoption of the federal law on the procedure for appointment ( election ) of lay judges .

The Decree of DATE provided that lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges confirmed by a regional legislative body .

The Act provided in CARDINAL that citizens of GPE had a right to take part in the administration of justice in the quality of lay judges . Lay judges were persons empowered by law to hear civil and criminal cases as part of the court panel and carry out their judicial duties on a non - professional basis .

Section CARDINAL provided that lists of lay judges for every district court had to be compiled by respective local self - government bodies on the basis of lists of voters in the district . Such lists had to be validated by regional legislative assembly and submitted to the district court . The term of office of lay judges on the list was DATE .

Section CARDINAL provided that the following persons could not be selected as lay judges : persons who had convictions which had not been quashed , persons fully or partially deprived of their legal capacity by a competent court , civil servants of category “ A ” and persons occupying elective posts in local government bodies , prosecutors , investigators and persons registered with either drugs counsellors or psychiatrists .

Sections CARDINAL and CARDINAL provided that the president of the respective court had to draw a certain number of lay judges by lot from the list . Lay judges to sit in a particular case were to be drawn by lot by the professional judge who would hear the case from those drawn by lot by the president of the court .

Section CARDINAL provided that lay judges could be called to sit in cases heard by a district court for a period of DATE , or as long as the proceedings in a particular case lasted . Lay judges could not be called on more than once a year .

The ruling provided that the president of a given court had to draw by lot from the list of lay judges , CARDINAL names for each judge of the court . The lay judges for a particular case had to be drawn by lot by the professional judge to whom the case had been assigned . The sitting lay judges had to remain in office until new lists of lay judges arrived at the court . The regulation also provided that each court had to keep a record of the results of the selection at random of lay judges .