Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time)

The applicant was born in DATE and lives in ORG .

On DATE the applicant and CARDINAL other individuals were detained on suspicion of having committed an assault and infliction of grave bodily harm resulting in death . The applicant ’s challenge of the custodial measure of restraint was rejected on DATE .

On DATE the preliminary investigation was completed . The applicant did not study the case materials as his legal counsel were unable to assist him at the time due to illness and involvement in different proceedings .

On DATE the applicant signed the undertaking not to leave the town and was released . He and his counsel did not appear at the investigator ’s summons to study the case materials .

From DATE to CARDINAL DATE the applicant stayed in hospital . Following his and his counsel ’s repeated failure to familiarise themselves with the case materials , the investigator set the deadline at DATE .

On DATE after finalising the bill of indictment the prosecutor decided again to place the applicant in detention , which was subsequently extended by the court on several occasions and upheld by decisions of CARDINAL DATE , DATE , DATE , DATE and CARDINAL DATE of ORG ( “ the ORG ” ) .

ORG of the Ryazan Region received the applicant ’s case for examination on DATE . By decision of CARDINAL DATE the court adjourned the proceedings due to the applicant ’s illness .

The next hearing scheduled for DATE did not take place due to the ORG failure to appear .

At the hearing of DATE the applicant requested that he be given DATE to study the case - file but could not do so as both of his counsel were on vacation . On DATE the court limited the time granted to the applicant to study the case - file by DATE .

The next hearing scheduled for DATE did not take place due to the judge ’s illness .

On DATE president of ORG requested that president of ORG assign the applicant ’s case to a different trial court due to the fact that the judge who was considering it was ill and the other judges had already taken part in the proceedings in some form and could not examine the case . On DATE the applicant ’s case was transferred to ORG of LOC ( “ the ORG ” ) .

At the next hearing scheduled for DATE the court granted the defence ’s request for an outpatient psychiatric examination and a graphologic examination .

On DATE the court commissioned an inpatient psychiatric examination which was held on DATE . The applicant did not object to the composition of the trial court and did not challenge the judges .

DATE and DATE twenty two scheduled hearings did not take place due to the ORG failure to appear ; on CARDINAL occasions it was the default of the applicant ’s counsel . Following the applicant ’s refusal to continue examination of the case in his counsel ’s absence , on several occasions president of ORG requested replacement of the counsels at the FAC and ORG regional bars as well as ORG . It is not clear whether or when this measure became successful .

On DATE , in presence of the applicant ’s legal counsel , ORG convicted the applicant as charged and sentenced him to DATE imprisonment . It also granted the civil suit again him .

In his grounds of appeal the applicant challenged the bench which had delivered the conviction alleging defects in the appointment of the lay judges .

On DATE ORG upheld the judgment on appeal . It also found that the trial court had been composed in accordance with the law and that the applicant had failed to challenge the bench during the trial .

Article CARDINAL of LAW of DATE provides that in the event of a counsel ’s failure to appear during DATE after a motion for legal assistance , the court may invite the accused to retain a different counsel or assign a legal - aid lawyer .


The applicant is a NORP citizen born in DATE . She is a student residing in ORG .

A.

In DATE the applicant ’s father opened on her behalf a special housing savings account in ORG in GPE , with the purpose of financing a future purchase of a house or apartment for the applicant after her coming of age . Until DATE he effected DATE payments to the account .

On DATE , on the applicant ’s request , the ORG branch of ORG informed her that her savings accumulated on the account amounted to a sum of CARDINAL of new NORP zlotys ( PLZ ) , including a housing award , in case she was entitled to it .

In a letter to the Director of the ORG branch of ORG , the applicant submitted that the then real value of a house in ORG was equivalent to CARDINAL PLZ . Thus , there must have been an error in the calculation of her savings , as the terms of the housing savings account guaranteed her that at the closing of the account the monies deposited on it would be reassessed so as to maintain their purchasing power to the level of price of QUANTITY of an individual house . She pointed out that the sum she had on her account was not in reasonable proportion to the current price of housing . She therefore requested that the error be rectified .

In his reply of DATE , the Director informed the applicant that the calculation of her savings , and in particular of sums due to her as housing award , had been correct . Under the applicable regulations contained in the Ordinance of ORG DATE , concerning the manner of calculation and payment of housing award and on clearing of accounts between ORG and ORG , the following factors were taken into account in the calculation of the award : the length of the period of saving , the sums deposited by the client , the sums paid DATE , the average price of housing and the interest rate applicable throughout the relevant period . It was further stressed that the owner of the account was entitled to the housing award calculated on the basis of sums paid in DATE during which the average price of QUANTITY of housing had been rising more quickly than the interest rate to be paid on the sums deposited on the housing savings account . In conclusion , the calculation of the sums accumulated on the applicant ’s savings account which had been effected according to the formula set forth in the GPE , was correct .

In a letter to the Minister of Finance of DATE , the applicant submitted that the sums as calculated by the bank would cover the price of QUANTITY of housing at current market prices . Therefore , contrary to the terms of the housing savings account , guaranteed by the ORG , she would not be able to purchase a house . She complained that this amounted to fraud , which should not be countenanced by the ORG . She requested that her savings be reassessed .

In a letter of DATE ORG of ORG informed the applicant that the savings accumulated on the housing savings accounts were subject to CARDINAL forms of reassessment with the purpose of offsetting the effects of inflation . The first one was the privileged interest rate which , since DATE , was equal to that applicable in respect of long - term savings accounts . Secondly , the owners of the accounts could be awarded housing awards paid directly from the ORG budget . These awards were designed to compensate the reduction of value of sums accumulated on the housing savings accounts caused by inflation and by augmentation of prices of housing resulting therefrom . However , the sums of awards due to individual clients were to be calculated on the basis of the savings accumulated by the client . It was further stressed that , in practice , most often the owners of such accounts accumulated sums equivalent to CARDINAL per cent of the necessary minimum contribution to be paid to housing co - operatives in order to become a full member ( “ wkład ” ) . The expectation that the housing award would cover in full the difference between this sum and the actual full costs of building of a house was not justified . The applicant was further informed that it was only the bank at which the account had been opened which was competent to reassess the sums of savings deposited on the account .

On DATE the applicant complained to the ORG about her situation .

In reply of DATE the ORG informed the applicant that he had repeatedly drawn the attention of various ORG authorities , including the Prime Minister , ORG , the Minister of Construction and Planning , to the issues raised by her . These problems arose out of the fact that the persons who had been saving , frequently for DATE , on the housing savings accounts , were often not in a position to pay the entire price of housing . This was , in part , due to the fact that the issues relating to housing awards , the interest rate applicable to housing savings accounts and the reassessment of the sums deposited on these accounts so as to offset in full the results of inflation had not been comprehensively resolved by the legislator in a manner which would be entirely compatible with the initial obligations of the ORG . Regrettably , the ORG did not have at his disposal any effective means which would enable him to oblige the legislative and executive authorities to take any steps to solve the problems of persons in the applicant ’s situation , who had expected that they would be able to finance their housing under the scheme put in place by the DATE legislation . Consequently , he could take no further action in the applicant ’s case .

B. Relevant domestic law

Pursuant to the terms of the housing savings account , as set out in the Ordinance of the President of ORG of DATE , the ORG guaranteed that the monies accumulated on the housing savings account in ORG were to be reassessed so as to maintain their purchasing power . This guaranty covered only sums up to the costs of construction of either QUANTITY at an individual family house or QUANTITY of an apartment built by a housing co - operative . This guarantee was to be paid in the form of a housing award . The owner of the account was entitled to obtain the housing award if , in DATE in which he or she wished to close his or her account and allocate the monies accumulated on it to finance the purchase of a house or apartment , the average price of QUANTITY of housing was higher than it had been in DATE , and this increase had been higher than the increase of the interest rate applicable to the monies deposited on the housing savings account .

Under ORG the persons who have accumulated savings on the housing savings accounts in ORG opened before DATE , which had remained opened for not DATE , were entitled to housing award if they had bought or built a house or apartment , or adapted non - housing space to housing purposes and had paid for it from their own resources . It was ORG which financed those payments and technically they were to be carried out by ORG .

In its resolution of DATE ORG decided that under the provisions of LAW as amended in DATE , the housing savings were not subject to reassessment by ORG which would offset the results of inflation in full . In taking this decision the ORG had regard to the provisions of LAW pertaining to a possibility of reassessment of pecuniary obligations in view of inflation . These provisions expressly excluded such a possibility in respect of sums deposited on bank accounts .

As regards the housing savings awards , ORG further decided that those awards were not subject to reassessment either . The ORG observed , inter alia , that the problem concerned CARDINAL citizens who had accumulated housing savings . A reassessment of the housing awards for all the persons concerned by ORG would not be economically feasible as it would put an undue burden on the ORG budget . The ORG further observed that , in any event , ORG DATE provided for a partial reassessment of such awards in the circumstances and on the conditions set forth therein .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . On an unspecified date the applicant applied for reconsideration . On DATE reconsideration took place and the previous decision was upheld . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 4 - Prohibition of slavery and forced labour (Article 4-1 - Servitude);Violation of Article 5 - Right to liberty and security;No violation of Article 5 - Right to liberty and security;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);No violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Freedom of religion);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 of Protocol No. 1 - Positive obligations;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 2 of Protocol No. 1 - Right to education-{general} (Article 2 of Protocol No. 1 - Right to education);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for home;Respect for private life);No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for home;Article 8 - Right to respect for private and family life);No violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Respect for home;Respect for private life;Article 8 - Right to respect for private and family life);Violation of Article 13+9 - Right to an effective remedy (Article 13 - Effective remedy) (Article 9-1 - Freedom of religion;Article 9 - Freedom of thought conscience and religion);Violation of Article 13+10 - Right to an effective remedy (Article 13 - Effective remedy) (Article 10 - Freedom of expression -{General};Article 10-1 - Freedom to impart information;Freedom to receive information);Violation of Article 13+P1-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 of Protocol No. 1 - Protection of property;Positive obligations);Violation of Article 13+P1-2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 of Protocol No. 1 - Right to education;Right to education-{general});No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 5 - Right to liberty and security;No violation of Article 8 - Right to respect for private and family life;No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to impart information;Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of association);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Degrading treatment;Inhuman treatment;Prohibition of torture);No violation of Article 14+5 - Prohibition of discrimination (Article 14 - Discrimination) (Article 5 - Right to liberty and security);No violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8 - Right to respect for private and family life);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);No violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom to receive information);No violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

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 . At the time of the ORG 's consideration of the merits of the PERSON v. GPE case in DATE , the NORP military presence at the material time was described in the following terms ( PERSON v. GPE judgment of DATE ( merits ) , Reports of Judgments and Decisions CARDINAL-VI , p. CARDINAL , LAW DATE ) :

“ CARDINAL . NORP armed forces of more than QUANTITY personnel are stationed throughout the whole of the occupied area of northern GPE , which is constantly patrolled and has checkpoints on all main lines of communication . The army 's headquarters are in GPE . ORG is based in PERSON ( PERSON ) with its sector covering GPE to the PERSON Milia suburb of GPE and with CARDINAL personnel . ORG , with CARDINAL personnel , is based at GPE village , and its sector ranges from GPE village to GPE . ORG ( NORP Forces in GPE under LAW ) is stationed at GPE near GPE , with a sector running from FAC to LOC . A NORP naval command and outpost are based at GPE and PERSON respectively . NORP airforce personnel are based at PERSON , PERSON and other airfields . The NORP airforce is stationed on the NORP mainland at GPE .

The NORP forces and all civilians entering military areas are subject to NORP military courts , as stipulated so far as concerns ' GPE citizens ' by ORG of DATE ( section CARDINAL ) and LAW . ”

A major development in the continuing division of GPE occurred in DATE with the proclamation of the “ GPE ” ( the “ LOC ” ) and the subsequent enactment of the “ LAW ” on DATE .

This development was condemned by the international community . On DATE ORG adopted Resolution CARDINAL ( DATE ) declaring the proclamation of the establishment of the “ GPE ” legally invalid and calling upon all GPE not to recognise any ORG other than GPE . A similar call was made by ORG on DATE in its LAW ( DATE ) . In DATE ORG decided that it continued to regard the government of GPE as the sole legitimate government of GPE and called for respect of the sovereignty , independence , territorial integrity and unity of GPE .

According to the respondent Government , the “ TRNC ” is a democratic and constitutional ORG which is politically independent of all other sovereign GPE including GPE , and the administration in northern GPE has been set up by the NORP - NORP people in the exercise of its right to self - determination and not by GPE . Notwithstanding this view , it is only the NORP government which is recognised internationally as the government of GPE in the context of diplomatic and treaty relations and the working of international organisations .

ORG peacekeeping forces ( “ UNFICYP ” ) maintain a buffer - zone . A number of political initiatives have been taken at the level of ORG aimed at settling the GPE problem on the basis of institutional arrangements acceptable to both sides . To this end , inter - communal talks have been sponsored by the Secretary - General of ORG acting under the direction of ORG . In this connection , the respondent Government maintain that the NORP - Cypriot authorities in northern GPE have pursued the talks on the basis of what they consider to be already agreed principles of bi - zonality and bi - communality within the framework of a federal constitution . Support for this basis of negotiation is found in the ORG Secretary - General 's Set of Ideas of DATE and the ORG resolutions of CARDINAL DATE and CARDINAL DATE confirming that a federal solution sought by both sides will be “ bi - communal ” and “ bi - zonal ” .

Furthermore , and of relevance to the instant application , in DATE ORG on Missing Persons ( “ CMP ” ) was set up to “ look into cases of persons reported missing in the inter - communal fighting as well as in the events of DATE and afterwards ” and “ to draw up comprehensive lists of missing persons of both communities , specifying as appropriate whether they are still alive or dead , and in the latter case approximate times of death ” . The ORG has not yet completed its investigations .

The events of DATE and DATE and their aftermath gave rise to CARDINAL previous applications by the applicant Government against the respondent ORG under former LAW . The first ( no . CARDINAL ) and second ( no . CARDINAL ) applications were joined by the ORG and led to the adoption on DATE of a report under former LAW ( “ the DATE report ” ) in which the ORG expressed the opinion that the respondent ORG had violated ORG , CARDINAL , DATE , DATE , CARDINAL and CARDINAL of the Convention and LAW No . CARDINAL . On DATE ORG turn adopted , with reference to an earlier decision of DATE , ORG ( CARDINAL ) CARDINAL in which it expressed , inter alia , the conviction that “ the enduring protection of human rights in GPE can only be brought about through the re - establishment of peace and confidence between the CARDINAL communities ; and that inter - communal talks constitute the appropriate framework for reaching a solution of the dispute ” . In its resolution ORG strongly urged the parties to resume the talks under the auspices of the Secretary - General of ORG in order to agree upon solutions on all aspects of the dispute ( see paragraph CARDINAL above ) . ORG viewed this decision as completing its consideration of the case .

The third application ( no . CARDINAL/CARDINAL ) lodged by the applicant Government was the subject of a further report under former DATE adopted by ORG on DATE ( “ the DATE report ” ) . In that report the ORG expressed the opinion that the respondent ORG was in breach of its obligations under LAW No . CARDINAL . On DATE ORG CARDINAL ) CARDINAL in respect of the ORG 's DATE report . In its resolution ORG limited itself to a decision to make the DATE report public and stated that its consideration of the case was thereby completed .

The instant application is the first to have been referred to the ORG . The applicant ORG requested ORG in their memorial to “ decide and declare that the respondent ORG is responsible for continuing violations and other violations of ORG CARDINAL , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and CARDINAL of the Convention and of Articles CARDINAL and CARDINAL of Protocol No . CARDINAL ” .

These allegations were invoked with reference to CARDINAL broad categories of complaints : alleged violations of the rights of NORP - Cypriot missing persons and their relatives ; alleged violations of the home and property rights of displaced persons ; alleged violations of the rights of enclaved NORP in northern GPE ; alleged violations of the rights of NORP and the Gypsy community in northern GPE .

The ORG considers it appropriate at this stage to summarise the ORG 's findings of fact in respect of the various violations of the ORG alleged by the applicant Government as well as the essential arguments advanced by both parties and the documentary and other evidence relied on by the ORG .

NORP The applicant Government essentially claimed in their application that CARDINAL NORP Cypriots were still missing DATE after the cessation of hostilities . These persons were last seen alive in NORP custody and their fate has never been accounted for by the respondent State .

The respondent Government maintained in reply that there was no proof that any of the missing persons were still alive or were being kept in custody . In their principal submission , the issues raised by the applicant Government should continue to be pursued within the framework of ORG on Missing Persons ( see paragraph CARDINAL above ) rather than under the Convention .

The Commission proceeded on the understanding that its task was not to establish what actually happened to the NORP - Cypriot persons who went missing following the NORP military operations conducted in northern GPE in DATE and DATE . Rather , it saw its task as CARDINAL of determining whether or not the alleged failure of the respondent State to clarify the facts surrounding the disappearances constituted a continuing violation of the Convention .

To that end , the ORG had particular regard to its earlier findings in its DATE and DATE reports . It recalled that in its DATE report it had stated that it was widely accepted that a considerable number of NORP were still missing as a result of armed conflict in GPE and that a number of persons declared to be missing were identified as NORP Cypriots taken prisoner by the NORP army . This finding , in the ORG 's opinion at the time , created a presumption of NORP responsibility for the fate of persons shown to be in NORP custody . While noting that killings of NORP - Cypriot civilians had occurred on a large scale , the ORG also considered at the time of its DATE report that it was unable to ascertain whether , and under what circumstances , NORP - Cypriot prisoners declared to be missing had been deprived of their life .

In the present case , the ORG further recalled that in its DATE report it found it established that there were sufficient indications in an indefinite number of cases that missing NORP Cypriots had been in NORP custody in DATE and that this finding once again created a presumption of NORP responsibility for the fate of these persons .

The Commission found that the evidence submitted to it in the instant case confirmed its earlier findings that certain of the missing persons were last seen in NORP or NORP - Cypriot custody . In this connection , the Commission had regard to the following : a statement of Mr PERSON , “ President of the NORP ” , broadcast on DATE , in which he admitted that CARDINAL NORP - Cypriot prisoners were handed over to NORP - NORP fighters who killed them and that in order to prevent further such killings prisoners were subsequently transferred to GPE ; the broadcast statement of Professor PERSON , a former NORP officer who had served in the NORP army at the time and participated in the DATE military operation in GPE , in which he suggested that the NORP army had engaged in widespread killings of , inter alia , civilians in so - called cleaning - up operations ; ORG submitted to ORG in DATE indicating , inter alia , that NORP and NORP - Cypriot soldiers rounded up NORP - Cypriot civilians in the village of PERSON on DATE and took away males over DATE , most of whom were reportedly killed by NORP - NORP fighters ; the written statements of witnesses tending to corroborate the ORG 's earlier findings that many persons now missing were taken into custody by NORP soldiers or NORP - Cypriot paramilitaries .

The Commission concluded that , notwithstanding evidence of the killing of NORP - Cypriot prisoners and civilians , there was no proof that any of the missing persons were killed in circumstances for which the respondent ORG could be held responsible ; nor did the ORG find any evidence to the effect that any of the persons taken into custody were still being detained or kept in servitude by the respondent ORG . On the other hand , the ORG found it established that the facts surrounding the fate of the missing persons had not been clarified by the authorities and brought to the notice of the victims ' relatives .

The Commission further concluded that its examination of the applicant ORG 's complaints in the instant application was not precluded by the ongoing work of the ORG . It noted in this connection that the scope of the investigation being conducted by the ORG was limited to determining whether or not any of the missing persons on its list were dead or alive ; nor was the ORG empowered to make findings either on the cause of death or on the issue of responsibility for any deaths so established . Furthermore , the territorial jurisdiction of the ORG was limited to the island of GPE , thus excluding investigations in GPE where some of the disappearances were claimed to have occurred . ORG also observed that persons who might be responsible for violations of the Convention were promised impunity and that it was doubtful whether the ORG 's investigation could extend to actions by the NORP army or NORP officials on NORP territory .

The Commission established the facts under this heading against the background of the applicant ORG 's principal submission that CARDINAL displaced NORP Cypriots and their children continued to be prevented as a matter of policy from returning to their homes in northern GPE and from having access to their property there for any purpose . The applicant Government submitted that the presence of the NORP army together with “ TRNC”-imposed border restrictions ensured that the return of displaced persons was rendered physically impossible and , as a corollary , that their cross - border family visits were gravely impeded . What started as a gradual and continuing process of illegality over DATE had now resulted in the transfer of the property left behind by the displaced persons to the “ TRNC ” authorities without payment of compensation and its re - assignment , together with “ title deeds ” , to ORG bodies , NORP Cypriots and settlers from GPE .

The respondent Government maintained before the ORG that the question of the LOC district of LOC along with the issues of freedom of movement , freedom of settlement and the right of property could only be resolved within the framework of the inter - communal talks ( see paragraph CARDINAL above ) and on the basis of the principles agreed on by both sides for the conduct of the talks . Until an overall solution to the GPE question , acceptable to both sides , was found , and having regard to security considerations , there could be no question of a right of the displaced persons to return . The respondent Government further submitted that the regulation of property abandoned by displaced persons , as with restrictions on cross - border movement , fell within the exclusive jurisdiction of the “ GPE ” authorities .

The Commission found that it was common knowledge that with the exception of CARDINAL NORP living in the NORP area and NORP living in the NORP peninsula , the whole NORP - Cypriot population which before DATE resided in the northern part of GPE had left that area , the large majority of these people now living in southern GPE . The reality of this situation was not contested by the respondent Government .

The Commission noted with reference to its earlier findings in its DATE and DATE reports that there was no essential change in the situation obtaining at the time of the introduction of the instant application . Accordingly , and this was not disputed either by the respondent Government , displaced NORP Cypriots had no possibility of returning to their homes in northern GPE and were physically prevented from crossing into the northern part on account of the fact that it was sealed off by the NORP army . The arrangements introduced by the “ LOC ” authorities in DATE to allow NORP and NORP to cross into northern GPE for the purposes of family visits or , as regards NORP Cypriots , visits to LOC , did not affect this conclusion .

Nor did the respondent Government dispute the fact that NORP - Cypriot owners of property in northern GPE continued to be prevented from having access to , controlling , using and enjoying their property . As to the fate of that property , the ORG found it established that up until DATE there was an administrative practice of the NORP - Cypriot authorities to leave the official ORG unaffected and to register separately the “ abandoned ” property and its allocation . The beneficiaries of allocations were issued with “ possessory certificates ” but not “ deeds of title ” to the properties concerned . However , as from DATE the practice changed and thereafter “ title deeds ” were issued and the relevant entries concerning the change of ownership were made in ORG . The ORG found it established that , at least since DATE , the NORP - Cypriot authorities no longer recognised any ownership rights of NORP Cypriots in respect of their properties in northern GPE . The ORG found confirmation for this finding in the provisions of “ LAW ( b ) of LAW ” of CARDINAL DATE and “ Law no . CARDINAL ” purporting to give effect to that provision .

Although the respondent Government pointed out in their submissions to the ORG that the issue of the right of displaced NORP Cypriots to return to their homes was a matter to be determined within the framework of the inter - communal talks sponsored by the Secretary - General of ORG ( see paragraph CARDINAL above ) , the Commission found that there had been no significant progress in DATE in the discussion of issues such as freedom of settlement , payment of compensation to NORP Cypriots for the interference with their property rights , or restitution of NORP - Cypriot property in the Varosha district .

The applicant Government adduced evidence in support of their complaint that the dwindling number of NORP living in the NORP peninsula of northern GPE were subjected to continuing oppressive treatment which amounted to a complete denial of their rights and a negation of their human dignity . In addition to the harassment and intimidation which they suffered at the hands of NORP settlers , and which has gone unpunished , the enclaved NORP laboured under restrictions which violated many of the substantive rights contained in the Convention . The continuous DATE interferences with their rights could not be redressed at the local level on account of the absence of effective remedies before the “ GPE ” courts . Similar but less extensive restrictions applied to the NORP population living in the NORP area of northern GPE .

The respondent Government maintained before the ORG that effective judicial remedies were available to all NORP Cypriots living in northern GPE . However , they claimed that the applicant Government actively discouraged them from taking proceedings in the “ TRNC ” . The respondent Government further submitted that the evidence before the Commission did not provide any basis of fact for the allegations made .

The Commission established the facts under this heading with reference to materials submitted by both ORG . These materials included , inter alia , written statements of persons affected by the restrictions alleged by the applicant Government ; press reports dealing with the situation in northern GPE ; case - law of the “ NORP ” courts on the availability of remedies in the “ GPE ” ; “ GPE legislation ” and decisions of the “ ORG ” on entry and exit arrangements at FAC check - point . ORG also had regard to ORG documents concerning the living conditions of enclaved NORP and especially to the ORG Secretary - General 's progress reports of DATE and CARDINAL DATE on the humanitarian review carried out by ORG in DATE concerning the living conditions of ORG , the so - called “ PERSON ” .

Furthermore , the ORG 's delegates heard the evidence of CARDINAL witnesses on the situation of NORP Cypriots and NORP living in northern GPE . These witnesses comprised CARDINAL persons who were closely associated with the preparation of the “ PERSON Brief ” as well as persons proposed by both ORG . The delegates also visited , on CARDINAL and DATE , a number of localities in northern GPE , including NORP - Cypriot villages in the PERSON area , and heard statements from officials and other persons encountered during the visits .

The Commission considered the above - mentioned “ PERSON Brief ” an accurate description of the situation of the enclaved NORP - Cypriot and NORP populations at about the time of the introduction of the instant application and that the proposals for remedial action recommended by ORG following the humanitarian review reflected the real needs of these groups in the face of administrative practices which actually existed at the material time . Although the ORG noted that there had been a considerable improvement in the overall situation of the enclaved populations , as evidenced by the ORG Secretary - General 's progress reports on the “ PERSON Brief ” recommendations , there still remained a number of severe restrictions . These restrictions were not laid down in any “ GPE legislation ” and were in the nature of administrative practices .

The Commission further found that there existed a functioning court system in the “ GPE ” which was in principle accessible to NORP living in northern GPE . It appeared that at least in cases of trespass to property or personal injury there had been some successful actions brought by NORP - Cypriot litigants before the civil and criminal courts . However , in view of the scarcity of cases brought by NORP Cypriots , the ORG was led to conclude that the effectiveness of the judicial system for resident NORP Cypriots had not really been tested .

NORP In a further conclusion , the Commission found that there was no evidence of continuing wrongful allocation of properties of resident NORP Cypriots to other persons during the period under consideration . However , the ORG did find it established that there was a continuing practice of the “ NORP ” authorities to allocate to NORP or immigrants the property of NORP Cypriots who had died or left northern GPE .

In the absence of legal proceedings before the “ TRNC ” courts , the ORG noted that it had not been tested whether or not NORP or NORP living in northern GPE were in fact considered as citizens enjoying the protection of the “ LAW ” . It did however find it established that , in so far as the groups at issue complained of administrative practices such as restrictions on their freedom of movement or on family visits which were based on decisions of the “ ORG ” , any legal challenge to these restrictions would be futile given that such decisions were not open to review by the courts .

Although the ORG found no evidence of cases of actual detention of members of the enclaved population , it was satisfied that there was clear evidence that restrictions on movement and family visits continued to be applied to NORP Cypriots and NORP notwithstanding recent improvements . It further observed that an exit visa was still necessary for transfers to medical facilities in the south , although no fees were levied in urgent cases . There was no evidence to confirm the allegation that the processing of applications for movement was delayed in certain cases with the result that the health or life of patients was endangered ; nor was there any indication of a deliberate practice of delaying the processing of such applications .

The ORG found it established that there were restrictions on the freedom of movement of NORP - Cypriot and NORP schoolchildren attending schools in the south . Until the entry into force of the decision of the “ ORG ” of CARDINAL DATE , they were not allowed to return permanently to the north after having attained the age of DATE in the case of males and CARDINAL in the case of females . The age - limit of DATE was still maintained for NORP - Cypriot male students . Up to the age - limit , certain restrictions applied to the visits of students to their parents in the north , which were gradually relaxed . However , even DATE such visits are subject to a visa requirement and a reduced “ entry fee ” .

As to educational facilities , the Commission held that , although there was a system of primary - school education for the children of NORP living in northern GPE , there were no secondary schools for them . The vast majority of schoolchildren went to the south for their secondary education and the restriction on the return of NORP - Cypriot and NORP schoolchildren to the north after the completion of their studies had led to the separation of many families . Furthermore , school textbooks for use in the NORP - Cypriot primary school were subjected to a “ vetting ” procedure in the context of confidence - building measures suggested by ORG . The procedure was cumbersome and a relatively high number of school - books were being objected to by the NORP - Cypriot administration .

Aside from school - books , the ORG found no evidence of any restrictions being applied during the period under consideration to the importation , circulation or possession of other types of books ; nor was there evidence of restrictions on the circulation of newspapers published in southern GPE . However , there was no regular distribution system for the NORP - Cypriot press in the PERSON area and no direct post and telecommunications links between the north and south of the island . It was further noted that the enclaved population was able to receive NORP - Cypriot radio and television .

The Commission did not find any conclusive evidence that letters destined for NORP Cypriots were opened by the “ GPE ” police or that their telephones were tapped .

As to alleged restrictions on religious worship , the ORG found that the main problem for NORP Cypriots in this connection stemmed from the fact that there was CARDINAL priest for the whole NORP area and that the NORP - Cypriot authorities were not favourable to the appointment of additional priests from the south . The Commission delegates were unable to confirm during their visit to the NORP area whether access to LOC was free at any time for NORP Cypriots . It appeared to be the case that on high religious holidays ( which occur CARDINAL times a year ) visits to the monastery are also allowed to NORP Cypriots from the south .

Concerning alleged restrictions on the freedom of association of the enclaved population , the ORG observed that the relevant “ GPE ” law on associations only covered the creation of associations by NORP .

The applicant Government contended before the ORG that NORP living in northern GPE , especially political dissidents and the ORG , were the victims of an administrative practice of violation of their Convention rights . They adduced evidence in support of their claim that these groups were victims of arbitrary arrest and detention , police misconduct , discrimination and ill - treatment and interferences in various forms with other Convention rights such as , inter alia , fair trial , private and family life , expression , association , property and education .

The respondent Government essentially maintained that the above allegations were unsubstantiated on the evidence and pointed to the availability of effective remedies in the “ GPE ” to aggrieved persons .

The ORG 's investigation into the applicant ORG 's allegations was based mainly on the oral evidence of CARDINAL witnesses who testified before the ORG 's delegates on the situation of NORP and the Gypsy community living in northern GPE . The witnesses were proposed by both parties . Their evidence was taken by the delegates in GPE , GPE and GPE DATE .

The Commission found that there existed rivalry and social conflict between the original NORP and immigrants from GPE who continued to arrive in considerable numbers . Some of the original NORP Cypriots and their political groups and media resented the “ LOC ” policy of full integration for the settlers .

Furthermore , while there was a significant incidence of emigration from the “ TRNC ” for economic reasons , it could not be excluded that there were also cases of NORP Cypriots having fled the “ GPE ” out of fear of political persecution . The Commission considered that there was no reason to doubt the correctness of witnesses ' assertions that in a few cases complaints of harassment or discrimination by private groups of or against political opponents were not followed up by the “ GPE ” police . However , it concluded that it was not established beyond reasonable doubt that there was in fact a consistent administrative practice of the “ GPE ” authorities , including the courts , of refusing protection to political opponents of the ruling parties . In so far as it was alleged by the applicant Government that the authorities themselves were involved in the harassment of political opponents , the Commission did not have sufficient details concerning the incidents complained of ( for example , the dispersing of demonstrations , short - term arrests ) which would allow it to form an opinion as to the justification or otherwise of the impugned acts . The Commission noted that , in any event , it did not appear that the remedy of habeas corpus had been invoked by persons claiming to be victims of arbitrary arrest or detention .

Regarding the alleged discrimination against and arbitrary treatment of members of the NORP - Cypriot Gypsy community , the ORG found that judicial remedies had apparently not been used in respect of particularly grave incidents such as the pulling down of shacks near GPE and the refusal of airline companies to transport NORP to GPE without a visa .

In a further conclusion , the ORG observed that there was no evidence before it of NORP - Cypriot civilians having been subjected to the jurisdiction of military courts during the period under consideration . Furthermore , and with respect to the evidence before it , the Commission considered that it had not been established that , during the period under consideration , there was an official prohibition on the circulation of NORP - language newspapers in northern GPE or that the creation of bi - communal associations was prevented . In respect of the alleged refusal of the “ GPE ” authorities to allow NORP to return to their properties in southern GPE , the ORG observed that no concrete instances were referred to it of any persons who had wished to do so during the period under consideration .


Aleš Pejchal;André Potocki;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

In accordance with LAW , the Government of GPE were invited to exercise their right to intervene in the proceedings , but they declined to do so .

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

In TIME of CARDINAL DATE an ambulance found ORG , the applicant ’s daughter , dead in the flat she had lived in with GPE , her husband .

At TIME on DATE the police were notified of the death . From TIME an investigator from ORG Office of Odessa , and medical and forensic experts , examined and photographed the body of ORG and the flat . They noted numerous bruises and abrasions on ORG ’s body , took samples of a brownish substance and seized cloths and linen with brown stains found in the flat . On DATE ORG of GPE detained GPE , and opened a criminal case against him on suspicion of inflicting serious bodily injuries on FAC causing her death . GPE , after being interviewed separately by the police and prosecutors , confessed to having punched FAC in the face and abdomen . During DATE CARDINAL neighbours were also interviewed and an autopsy and forensic medical examination of ORG ’s larynx ( throat ) were ordered .

On DATE an expert , PERSON . , drew up a death certificate indicating that the rupture of ORG ’s liver and closed injury of the abdomen , sustained during an “ assault with the aim of inflicting injuries ” , had led to significant loss of blood , which had ultimately caused her death . On DATE , CARDINAL neighbours of FAC and GPE were interviewed . GPE , in the presence of an advocate , stated that he had only slapped FAC lightly on the face a number of times , and that she herself had fallen and sustained all the injuries . He explained the discrepancy with his previous statements by his having been misled by the police on DATE and having been ill at the time of making the statement .

On DATE the applicant was recognised as an aggrieved party in the case .

On DATE a forensic medical report of the examination of ORG ’s larynx recorded that she had sustained a complete fracture of the hyoid bone and thyroid cartilage . The expert was unable to determine what sort of object had caused the injuries .

On DATE investigator I. of the district police ordered a postmortem and immunologic examination of ORG and questioned I.P. again .

On DATE expert PERSON . drew up an autopsy report indicating that the liver rupture , a closed fracture of the hyoid bone and thyroid cartilage , and numerous bruises and abrasions had been inflicted with a blunt object without specific features . In the expert ’s opinion the liver rupture had caused significant loss of blood , which had led to death . He also noted that ORG had been heavily intoxicated before her death .

An immunological report of CARDINAL DATE indicated that the items seized and samples taken from the flat occupied by ORG and GPE contained blood of the same group as that of ORG

On DATE expert PERSON . , having conducted a post - mortem examination of ORG , found that it could not be excluded that the fractures and liver rupture had been sustained as a result of the victim falling and hitting the corners of furniture .

On DATE investigator ORG discontinued the criminal proceedings against GPE for lack of corpus delicti , basing his decision on the fact that the neighbours had not noticed anything suspicious on DATE and described ORG as a peaceful person ; on ORG ’s admission that he had only lightly slapped ORG in the face a number of times , that both of them had been drinking and that FAC had fallen over and hit various objects on DATE ; that the flat had been cordoned off before the forensic examination of DATE ; and that according to the post - mortem examination ORG could have sustained her injuries as a result of falling and hitting protruding objects .

On DATE the district prosecutors , without giving their arguments , found the discontinuation of the proceedings premature , groundless and unlawful and instructed the district police to put the case materials in order , to set up a task force and draw up a detailed investigation plan , to carry out an additional post - mortem examination , to verify ORG ’s statements of CARDINAL DATE , to interview expert PERSON . , and to attach photographs of the crime - scene examination to the case file .

On DATE the investigation was suspended because ORG was ill . It was resumed on DATE , when investigator PERSON conducted a reconstruction of the crime scene , during which GPE essentially repeated his statement of CARDINAL DATE .

On DATE investigator PERSON ordered an additional post - mortem examination of FAC in order to verify ORG ’s statement in respect of the victim ’s injuries .

On DATE expert PERSON . drew up an additional post - mortem report which indicated that ORG might have sustained her serious injuries in the way described in GPE ’s statement .

On DATE ORG ordered a forensic medical examination of ORG

On DATE expert PERSON . was questioned .

On DATE investigator PERSON ordered an additional medical examination to be carried out in respect of the victim ’s injuries .

On DATE a combined forensic medical examination was carried out by experts PERSON , NORP and NORP , who concurred with the findings of the examination of CARDINAL DATE , but noted that all the injuries had been sustained shortly before ORG ’s death , and that the lethal injury might not have been sustained as a result of falling and hitting objects . On DATE the same experts drew up an additional medical report in which they concluded that it was impossible to establish the order in which the injuries had been inflicted .

On DATE investigator NORP charged GPE with the infliction of serious bodily injuries resulting in the death of ORG and questioned him in that connection . There is no indication of whether the investigator complied with the ORG remaining instructions .

On DATE the investigation was completed and on CARDINAL DATE the case was transferred to ORG of Odessa for trial .

On DATE a panel of psychiatrists which had been ordered by the court to examine ORG failed to reach a conclusion concerning the latter ’s mental state on DATE , and recommended that ORG undergo an in - patient examination .

On DATE a panel of psychiatrists examined ORG and found it impossible to establish his mental state without the accounts of GPE and GPE , who , according to ORG , had been present during the events on DATE .

On DATE the court ordered the panel to carry out another psychiatric examination of GPE

On DATE the panel found that ORG had been of sound mind after CARDINAL DATE , but that it was impossible to establish his mental state on DATE without the accounts of GPE and GPE However , on DATE an additional psychiatric examination of GPE established that he had been of sound mind both on and DATE .

In DATE the judge dealing with the case suspended the proceedings due to the expiry of his term of office .

On DATE the President of the court transferred the case to another judge .

On DATE the applicant lodged a civil claim with the court seeking CARDINAL NORP hryvnias ( ORG ) in damages for the alleged murder of her daughter .

On DATE the court convicted GPE of the premeditated infliction of serious bodily injury resulting in death , sentenced him to DATE imprisonment and ordered him to pay ORG CARDINAL to the applicant in compensation for non - pecuniary damage . In the reasoning of the judgment the court mentioned that ORG had repeatedly changed his account of the events of DATE and only in DATE and DATE had he stated that GPE , GPE , and V.A. had been present during DATE and could confirm his version of the events . The court noted a number of inconsistencies in the accounts of the events of DATE submitted by ORG and witnesses GPE and GPE , and substantial contradictions between their respective statements and those made by other witnesses .

The court also noted that the police officer who had interviewed ORG on DATE had smelled alcohol on ORG ’s breath and noticed fresh scratches on his neck , but could not explain why a medical examination or taking of nail samples from ORG had not been ordered . The court also noted that ORG had “ manipulated ” the investigator and the expert dealing with his case on a number of occasions in order to evade responsibility . It referred to : “ ... [ his ] attempt to obtain MONEY to ‘ settle the LOC , the initial autopsy report finding that ORG ’s injuries might have been sustained ‘ in a natural manner’ , and the termination of the proceedings on DATE [ for lack of corpus delicti in his actions ] ... ” . The court also noted that some witnesses had stated that ORG had often beaten up FAC when drunk , while other witnesses had disagreed . It also referred to the experts’ reports drawn up during the trial .

On DATE the ORG upheld GPE ’s conviction and sentence . The court noted in particular that the experts’ reports of CARDINAL and DATE and photographs of the crime - scene examination rebutted a number of ORG ’s statements . It found the explanations put forward by the defence for the death of ORG , such as there having been an accident , or the involvement of ORG ’s son or other individuals , to be groundless . Concerning the conduct of the investigations , ORG found investigator ORG actions to have been inconsistent in that he had considered ORG to be unwell during the first interview but had not sent him for a medical examination . In that connection , the court of appeal concluded that the investigator had not taken “ the measures necessary to duly investigate the case , which had subsequently been closed without determining the circumstances of the incident ” . As regards the opinion by expert PERSON . of CARDINAL DATE , the court noted that it had been drawn up before the reconstruction of the crime and had later been refuted by CARDINAL panels of experts . There is no indication of the date when the applicant was informed of or received the appeal ruling , or whether she appealed against it . According to her , she was denied access to the case file during the investigation and was not invited to a number of court hearings .

In the meantime , the applicant repeatedly complained to the police , the prosecutors , ORG , ORG and other ORG bodies about the lack of progress in the case .

CARDINAL court hearings were held in the case and another twenty hearings were adjourned for various reasons , such as the applicant ’s failure to appear before the court on CARDINAL occasion ( which protracted the proceedings for DATE ) , the failure to appear of the defendant or his advocate , a witness ’s illness , prior official commitments of judges and prosecutors , or consideration of appeals by a higher court . In the course of the proceedings ORG conducted CARDINAL interviews and ordered CARDINAL expert examinations that lasted for DATE in all . During the court proceedings , the applicant filed CARDINAL procedural requests and complaints , all meeting procedural requirements . Her CARDINAL requests for the withdrawal of judges were rejected as unsubstantiated .

The provisions of the LAW and LAW can be found in the judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE and CARDINAL , DATE ) .


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

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

In DATE ORG indicted the applicant for abuse of office .

On DATE ORG found the applicant guilty and imposed a suspended prison sentence ( uslovna osuda ) of DATE . The applicant appealed , claiming that the facts established in the first - instance judgment were incorrect .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance judgment .

On DATE ORG filed an indictment against PERSON and the applicant in ORG for an economic offence concerning the security of payments .

Following GPE ’s ratification of the Convention on DATE , the applicant requested the competent court to stay the proceedings pending the outcome of the aforementioned criminal proceedings ( LAW above ) . He claimed that the CARDINAL proceedings concerned the same amounts of money and thus the same offence .

The court stayed the proceedings .

On DATE the ORG requested ORG to provide a copy of the case file in the other criminal proceedings . However , that court was unable to do so as the file had been sent to ORG following the applicant ’s request for a reopening of the criminal case and his subsequent appeal against the refusal to do so .

Once the proceedings resumed , hearings scheduled for DATE and DATE were adjourned because PERSON legal representative had failed to appear . On the last - mentioned date ORG fined Company B. for its failure to appear in court .

The court held the next hearing on DATE , when the applicant requested time to set out his defence in writing . The hearing scheduled for DATE was again adjourned due to the co - defendant ’s failure to appear . The court ordered that the legal representative of Company B. be brought to the next hearing by the police .

On DATE the ORG gave judgment acquitting both the applicant and PERSON of all charges .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3 - Rights of defence);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in PERSON .

The applicant , who was an advocate , made a declaration under the provisions of LAW that she had never secretly collaborated with the NORP secret service . She only admitted that DATE she had been working at ORG ( GPE ) in PERSON as an office assistant , but in DATE she had left the job .

On DATE the Commissioner of Public Interest ( PERSON ) applied to ORG ( Sąd Apelacyjny ) , acting as the firstinstance ORG ( sąd lustracyjny ) , to institute proceedings in the applicant 's case under LAW ( ustawa lustracyjna ) on the ground that the applicant had lied in her declaration by denying her collaboration with the secret services after DATE . ( This security service was known as PERSON , but after DATE it was called PERSON . )

On DATE the applicant was notified that lustration proceedings had been instituted concerning her declaration ( oświadczenie lustracyjne ) .

On DATE ORG , acting as the first - instance court , held a hearing in the applicant 's case . The Commissioner of Public Interest requested the court to conduct a public hearing and the applicant supported this motion . She was questioned by the court and commented on the evidence at the court 's disposal . The file of the case was composed of the applicant 's lustration declaration , copies of certain documents contained in the applicant 's file compiled by the NORP secret police and of the Commissioner 's application for lustration proceedings to be instituted . Towards the end of the hearing , both the Commissioner and the applicant declared that they had no request for further evidence to be taken by the court . The court closed the hearing .

NORP However , on DATE the applicant requested the court to take further evidence . She submitted various documents concerning her professional career , her character and morality .

On DATE the court re - opened the hearing and admitted the applicant 's documents to the case file . It then closed the hearing again .

On DATE the court sent the applicant the operative part of its judgment of DATE , by which it had found that the applicant had submitted an untrue lustration declaration because she had been an intentional , secret collaborator of the NORP secret services after DATE . It further informed the applicant that the written grounds of the judgment had been prepared under LAW and that she could consult them in the office of its secret registry ( kancelaria tajna ) . As she had not appointed legal representation , the full written grounds could only be read by herself , to the exclusion of all other persons , except the Commissioner of Public Interest .

The applicant appealed .

On DATE ORG , acting as the secondinstance lustration court , dismissed her appeal and upheld the firstinstance judgment .

On DATE the same court informed the applicant that the written grounds of that judgment had been prepared under LAW § CARDINAL of the Code of Criminal Procedure , and that she could consult them at the office of the court 's secret registry .

The applicant lodged a cassation appeal with ORG , which held a hearing on DATE , but the applicant chose not to attend . The ORG allowed the Commissioner 's request to examine the applicant 's appeal in camera , having regard to LAW CARDINAL § CARDINAL ( CARDINAL ) of LAW . By a judgment of DATE the ORG dismissed the applicant 's cassation appeal .

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ... ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Under the established caselaw of ORG , it has jurisdiction only to examine the compatibility of legal provisions with the LAW and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases ( e.g. SK CARDINAL/CARDINAL , DATE ; Ts DATE , CARDINAL DATE ; Ts CARDINAL , DATE ) .

On DATE LAW ( Ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach DATE osób pełniących funkcje publiczne ) entered into force . Its purpose was to ensure transparency as regards those people exercising public functions who had been secret collaborators with the secret service during the communist era . It lost its binding force on DATE .

Pursuant to section CARDINAL of the LAW , “ collaboration ” was understood as the “ intentional and secret collaboration with the operational or investigative branches of the ORG 's security services as a secret informer or assistant , supplying them with information ” .

Section CARDINAL ( CARDINAL ) of the LAW read :

“ Persons in the categories listed in LAW law shall submit a declaration concerning work for or service in the ORG 's security services or collaboration with these services DATE and DATE ( hereafter called ' the declaration ' ) . ”

Section CARDINAL ( CARDINAL ) contained a list of public functions and professions , the holders of which must make the declaration under LAW .

Under LAW ( CARDINAL ) item CARDINAL ( a ) as amended in DATE , candidates to the bar and advocates were also obliged to make such declarations . Their declarations were to be submitted to the Minister of ORG .

The declarations were also transmitted to ORG . Pursuant to section CARDINAL of the Act , ORG was vested with powers to conduct lustration proceedings . Such proceedings could be instituted at the request of ORG ( rzecznik interesu publicznego ) .

The Commissioner would institute proceedings before ORG when he or she had doubts whether the declaration of noncollaboration was truthful .

According to section CARDINAL(d ) , the duties of the Commissioner included in particular :

“ CARDINAL . i ) analysing the lustration declaration submitted to the court ;

ii ) collecting the information necessary for a correct assessment of the declaration ;

iii ) lodging an application with the court with a view to initiating lustration proceedings ; ...

In carrying out his or her duties enumerated in points CARDINAL and CARDINAL above , the Commissioner may require to be sent or shown the relevant case files , documents and written explanations , and if necessary may hear witnesses , order expert opinions or conduct searches ; in this respect , and as regards the duties described in section ORG ) , the provisions of LAW concerning the prosecutor shall likewise apply to the Commissioner . ”

Pursuant to section CARDINAL ( e ) , the Commissioner had full access to all documents and other sources of information , regardless of the form in which they were recorded , created before CARDINAL DATE by organs specified in that provision , including sources within ORG .

Under section DATE , matters not covered by the LAW and relating to lustration proceedings were governed by the provisions of LAW .

According to section CARDINAL , the person under scrutiny was afforded the same defence rights as an accused in criminal proceedings .

The proceedings before ORG terminated with a decision on whether the declaration made by the person concerned was true . A decision of this court could be appealed to the second - instance ORG . Such an appeal was examined by a different panel of CARDINAL judges of ORG .

Pursuant to section DATE , the decisions of ORG were to be served on the person concerned with their written grounds .

A cassation appeal to ORG lay against the secondinstance judgment .

The final judgment , finding a particular declaration untrue , was immediately made public in the “ Official Law Gazette ” ( ORG ) .

Pursuant to section CARDINAL , the final judgment of an untrue declaration established the loss of moral qualifications which were , according to the relevant laws , necessary for the exercise of certain public functions , including the profession of advocate . It therefore entailed disbarment .

Article CARDINAL § CARDINAL of the LAW provides that , when a danger arises that ORG secrets may be revealed to the public , access to the case files , making notes and copying documents from such files shall only be allowed under special arrangements provided for by the president of the court or by the court .

Article CARDINAL § CARDINAL , which concerns the delivery of a judgment , provides :

“ If the case has been heard in camera because of the substantial interests of the ORG , instead of reasons , notice will be served to the effect that the reasons have been prepared . ”

Article CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides that the court shall order a hearing to be held in camera if its public character could disclose circumstances which should remain secret in the light of important ORG interests .

Section CARDINAL ( CARDINAL ) of ORG DATE ( LOC o ochronie tajemnicy państwowej i służbowej ) , which was in force until DATE , read as follows :

“ A ORG secret is information which , if divulged to an unauthorised person , might put at risk the ORG 's defence , security or other interest , and concerns in particular : ...

CARDINAL ) the organisation of the services responsible for the protection of security and public order , their equipment and working methods , and the data enabling the identification of their officers and persons collaborating with the security services ... ”

Section CARDINAL of ORG DATE ( LOC o ochronie informacji niejawnych ) , in its relevant part , provided as follows :

“ CARDINAL . Persons referred to in section CARDINAL ( CARDINAL ) [ those authorised to sign the document and to assign a confidentiality rating ] , or their legal successors in relation to documents containing information classified as a ORG secret , created before DATE , shall within DATE from the date of enactment of this Act , review these documents with the purpose of adjusting their current security classification to the classifications provided by this LAW . Until then , these documents shall be considered classified under the provisions of paragraph CARDINAL unless otherwise provided by law ... ”

Appendix No . CARDINAL to the LAW provided , in so far as relevant :

“ ORG that can be classified as ' top secret ' : ...

information concerning documents that make it impossible to establish data identifying officers , soldiers or employees of ORG bodies , services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities . ”

Section CARDINAL ( CARDINAL ) of the DATE Act concerned the organisation of the secret registry . It provided in so far as relevant :

“ Documents marked “ top secret ” and “ secret ” ( ściśle tajne i tajne ) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure . In case of doubts regarding the conditions of protection , the document can be made available only in the secret registry . ”

Certain limited aspects of LAW have been examined by ORG as to their compatibility with LAW . In a judgment of DATE , ORG recalled the historical background to LAW and explained its purpose :

“ As can be seen from the legislative history , the main aim of the LAW was to ' make it impossible to use a person 's political past ' , the fact of cooperating with the secret services , ' for the purpose of blackmailing ... persons holding key decisionmaking functions in the NORP State ' ...

The concept of lustration as adopted by the legislator , in respect of the subject of scrutiny , decision - making and possible sanction in lustration proceedings , is the truthfulness of the declaration submitted under LAW ] . Thus , as follows directly from the LAW and from ORG judgment of CARDINAL DATE , the law does not associate criminal or quasi - criminal liability with the sole fact of past collaboration with the ORG 's security services ... The legislator 's intention is that persons who are exercising public functions or standing for election to posts involving the exercise of public functions shall submit a declaration regarding cooperation . The purpose of such regulation is to secure the open nature of public life , to eliminate [ the possibility of ] blackmail because of facts from the past which can be considered as compromising , and to submit those facts for public consideration . The collaboration itself does not prevent any citizen from exercising public functions , and lustration proceedings are designed only to scrutinise the truthfulness of those who exercise or wish to exercise public functions . It is therefore not the collaboration , but the submission of a false declaration which has negative consequences for those affected . ”

In a judgment of CARDINAL DATE ( K CARDINAL/CARDINAL ) , the court examined the constitutionality of certain provisions of LAW as amended in DATE . These amendments concerned the provisions regulating the position of the Commissioner of Public Interest and , also , provisions to the effect that certain categories of persons , if found to have made a false lustration declaration , were to be regarded as having lost the moral qualifications necessary for the exercise of certain public functions .

NORP In a judgment of DATE ( K CARDINAL/CARDINAL ) , the court held that certain amendments to LAW , enacted on DATE , were incompatible with the LAW because ORG ( Seym ) had failed to respect the legislative procedure provided for by the relevant constitutional provisions .

In its judgment of CARDINAL DATE ( K MONEY ) , ORG examined the compatibility with the LAW of certain provisions of LAW which created the obligation to publish a lustration declaration made by candidates to certain public functions insofar as they did not make any distinction between various categories of collaboration with the secret services .

In its judgment of CARDINAL DATE ( K CARDINAL/CARDINAL ) , the court examined the scope of the notion of secret collaboration as provided for by LAW as amended in DATE .

The court also dealt with other problems concerning LAW in its judgments LAW , P CARDINAL/CARDINAL , ORG CARDINAL and ORG CARDINAL .

The following are extracts from ORG of ORG DATE ) on measures to dismantle the heritage of former communist totalitarian systems :

“ CARDINAL . The ORG welcomes the opening of secret service files for public examination in some former NORP totalitarian countries . It advises all countries concerned to enable the persons affected to examine , upon their request , the files kept on them by the former secret services ...

Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph CARDINAL , but who nevertheless held high positions in the former totalitarian communist regimes and supported them , the ORG notes that some states have found it necessary to introduce administrative measures , such as lustration or ' decommunisation ' laws . The aim of these measures is to exclude persons from exercising governmental power if they can not be trusted to exercise it in compliance with democratic principles , as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now .

The ORG stresses that , in general , these measures can be compatible with a democratic state under the rule of law if several criteria are met . Firstly , guilt , being individual , rather than collective , must be proven in each individual case - this emphasises the need for an individual , and not collective , application of lustration laws . Secondly , the right of defence , the presumption of innocence until proven guilty , and the right to appeal to a court of law must be guaranteed . Revenge may never be a goal of such measures , nor should political or social misuse of the resulting lustration process be allowed . The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy .

The ORG thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law , and focus on threats to fundamental human rights and the democratisation process . Please see the " Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law " as a reference text . ”


No violation of Art. 8;Violation of Art. 14+8 with regard to right of access;Violation of Art. 14+8 with regard to right of appeal;Not necessary to examine Art. 14+6;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant , born in DATE , is the father of the child PERSON , born out of wedlock on DATE . The applicant acknowledged paternity of M.

The applicant and the child ’s mother lived together at the time of the child ’s birth . They separated in DATE . The child ’s mother prohibited any contact between the applicant and the child . The applicant still met PERSON several times at school until such contact was no longer possible . Subsequently the child ’s mother married Mr PERSON , the father of her child A. , born in DATE , PERSON being the common family name .

On DATE the applicant applied to ORG for a decision granting him a right of access to his daughter . Having heard the persons concerned , ORG , in comments dated DATE , advised against a right of access . ORG submitted that PERSON had established a close relationship with Mr. PERSON , which would be adversely affected by contact between PERSON and her natural father . It also stated that PERSON , when heard in the absence of her mother , had indicated that she was not keen to see the applicant and was suffering as a result of his continuing efforts to obtain access .

On DATE M. , then DATE , was heard by a judge of ORG . She stated that the fact that the applicant was always standing at the fence of the schoolyard disturbed her and that she did not wish to visit the applicant even if access should be ordered by the court .

At a court hearing on DATE , the applicant and the child ’s mother declared that they would attempt to settle the question of a visiting arrangement with the assistance of ORG . On DATE ORG informed ORG that no agreement had been achieved and that PERSON had stated that she did not wish to see the applicant .

On DATE the court ordered that a psychological expert opinion be prepared . On DATE , in CARDINAL - page submissions , the psychologist of ORG stated that , as contact between the applicant and PERSON had been disrupted for DATE , no diagnosis of their current relationship appeared possible . The psychologist considered that the views which the applicant and PERSON had expressed on the question of future contact were very different . PERSON was growing up in a family unit and , unlike the applicant , was not suffering from any deficits in that respect , and did not wish to have any personal contact with the applicant . He should give her the necessary time to take up contact of her own motion . The psychologist noted that she had arranged a meeting between the applicant and PERSON which , however , had been cancelled by PERSON ’s stepfather .

On DATE the ORG judge heard the applicant and PERSON in the presence of the psychological expert . PERSON having repeatedly stated that she did not wish to have contact with the applicant , the latter affirmed that he would withdraw his request for a right of access .

The applicant withdrew his request on DATE .

On DATE the applicant again applied to ORG for a right of access to his daughter .

On DATE the ORG judge heard the DATE PERSON , who stated that she did not wish to talk to the applicant or accept presents from him and that he should no longer bother her . She also said that she had a father whom she loved , though it was not her natural father . The court held a hearing with the applicant and the child ’s mother on CARDINAL DATE .

On DATE ORG dismissed the applicant ’s application .

ORG noted the comments filed by ORG on DATE as well as the GPE and the child ’s statements in court . ORG also had regard to the comments filed by ORG in DATE and to the statement submitted by the psychologist in DATE , both in the context of the first set of access proceedings .

ORG found that the applicant could not be granted access to the child . Referring to section DATE of LAW , the ORG observed that the mother , having sole custody , determined the father ’s access and the guardianship court could only decide to grant the father access if this was in the child ’s best interest . In this respect , the court found as follows :

“ On the basis of its extensive investigations , and especially its conversations with [ M. ] in DATE and DATE , this court has decided that , in the present case , access by the father to his child is by no means in her best interest .

At the age of DATE , [ M. ] is certainly able to make up her own mind and has clearly rejected the idea of establishing contact with her biological father . In the court ’s opinion , forcing her to see him against her will can not be justified , since this would seriously disturb her emotional and psychological balance . Such a decision would on no account be in her best interest .

This court can not accept the [ applicant ’s ] sweeping statement that access is always in the child ’s interest . The extent to which this is true invariably depends on circumstances . In this case , the only justifiable decision is that set out in the operative part of the judgment .

On DATE ORG dismissed the applicant ’s appeal on the following grounds :

“ The appeal is admissible under LAW , but is unfounded . ORG was right to refuse the applicant all access to [ M. ] , since this is not in the child ’s best interest ( sections DATE and DATE of LAW ) . This court also takes the view that ORG had no cause to permit exceptions for any specific area of life . It considers that the arguments advanced in the contested decision are correct . It regards it as important that the girl [ M. ] – who is , after all , DATE has stated clearly and for a long time that she wants no contact with her father . The applicant should accept this clearly expressed wish in his adolescent daughter ’s interest and also his own . Only if he ceased to exert pressure on her might it one day be possible for them to resume contact . The court would also point out that access to [ M. ] on the strength of a court order could hardly be enforced against the child ’s will . ”

On DATE the applicant filed a constitutional complaint with ORG .

On DATE a panel of CARDINAL judges of ORG refused to entertain the applicant ’s complaint .

The statutory provisions on custody and access are to be found in the German Civil Code . They have been amended on several occasions and many were repealed by the amended Law on Family Matters ( Reform zum Kindschaftsrecht ) of DATE ( ORG , p. CARDINAL ) , which came into force on DATE .

Section CARDINAL § CARDINAL reads as follows :

“ The father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child . The parental authority includes the custody ( PERSON ) and the care of property ( Vermögenssorge ) of the child . ”

Pursuant to section DATE § CARDINAL , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry . According to section DATE , as amended , a child is entitled to have access to both parents ; each parent is obliged to have contact with , and entitled to have access to , the child . Moreover , the parents must not do anything that would harm the child ’s relationship with the other parent or seriously interfere with the child ’s upbringing . The family courts can determine the scope of the right of access and prescribe more specific rules for its exercise , also with regard to third parties ; and they may order the parties to fulfil their obligations towards the child . The family courts can , however , restrict or suspend that right if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if the child ’s well - being would otherwise be endangered . The family courts may order that the right of access be exercised in the presence of a third party , such as a ORG authority or an association .

Before the entry into force of the amended Law on Family Matters , the relevant provision of the Civil Code concerning custody and access for a child born in wedlock was worded as follows :

Section CARDINAL

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .

The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under section CARDINAL § CARDINAL , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare .

A parent not having custody who has a legitimate interest in obtaining information about the child ’s personal circumstances may request such information from the person having custody in so far as this is in keeping with the child ’s interests . The guardianship court shall rule on any dispute over the right to information .

Where both parents have custody and are separated not merely temporarily , the foregoing provisions shall apply mutatis mutandis . ”

Section CARDINAL § CARDINAL concerned the right to determine third ORG rights of access to the child .

The relevant provisions of the Civil Code concerning custody of and access to a child born out of wedlock were worded as follows :

Section CARDINAL

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

Section CARDINAL

“ CARDINAL . The person having custody of the child shall determine the father ’s right of access to the child . Section CARDINAL § CARDINAL , second sentence , applies by analogy .

If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Section CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

The right to request information about the child ’s personal circumstances is set out in section CARDINAL § CARDINAL .

Where appropriate , the youth office shall mediate between the father and the person who exercises the right of custody . ”

Like proceedings in other family matters , proceedings under former section DATE LAW were governed by LAW ( PERSON über die ORG der freiwilligen PERSON ) .

According to section CARDINAL of that Act , the court shall , ex officio , take the measures of investigation that are necessary to establish the relevant facts and take the evidence that appears appropriate .

In proceedings regarding access , the competent youth office has to be heard prior to the decision ( section CARDINAL § CARDINAL ( k ) ) .

As regards the hearing of parents in custody proceedings , section QUANTITY stipulates that the court shall hear the parents in proceedings concerning custody or the administration of the child ’s assets . In matters relating to custody , the court shall , as a rule , hear the parents personally . In cases concerning placement into public care , the parents shall always be heard . According to paragraph CARDINAL of section CARDINALa , a parent not having custody shall be heard except where it appears that such a hearing would not contribute to the clarification of the matter .

Section CARDINAL provides for the right to lodge a further appeal challenging the first appeal decision . Section CARDINALa of the LAW as in force at the material time excluded this right in proceedings concerning a natural father ’s access to his child born out of wedlock . That provision has been repealed by ORG .

The human rights of children and the standards to which all governments must aspire in realising these rights for all children , are set out in the Convention on the Rights of the Child . The ORG entered into force on DATE and has been ratified by CARDINAL countries , including GPE .

The Convention spells out the basic human rights that children DATE without discrimination – have : the right to survival ; to develop to the fullest ; to protection from harmful influences , abuse and exploitation ; and to participate fully in family , cultural and social life . It further protects children ’s rights by setting standards in health care , education and legal , civil and social services .

DATE States Parties to the Convention are obliged to develop and undertake all actions and policies in the light of the best interests of the child ( Article CARDINAL ) . Moreover , GPE Parties have to ensure that a child is not separated from his or her parents against their will unless such separation is necessary for the best interests of the child ; and that a child who is separated from CARDINAL or both parents is entitled to maintain personal relations and direct contact with both parents on a regular basis , except if it is contrary to the child ’s best interests ( Article CARDINAL ) .