Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in Lohne . He was represented by PERSON , a firm of lawyers practising in GPE . ORG PERSON ( “ the Government ” ) were represented by their Deputy Agent , Mr H .- PERSON , GPE , of ORG .

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

The applicant is a dentist and member of ORG ( ORG ) ( “ the ORG ” ) , the self - governing body of the contractual dentists practising in GPE . The ORG is responsible for , inter alia , entering into contracts with public health insurers on behalf of its members , checking costs brought to account by its members , distributing reimbursements for contractual work paid by public health insurers , and allocating the effects of austerity measures in the public health sector among its members in conformity with decisions of its council . Contractual dentists are free to treat other patients , in particular those who are insured by private health insurers . The ORG is not concerned with remuneration for such work .

The applicant was involved in numerous sets of proceedings against ORG affiliated with it before the social courts concerning aspects of his remuneration as a contractual dentist .

On DATE the President of ORG communicated the complaints regarding the length of the proceedings to the Government , together with those concerning CARDINAL other sets of domestic proceedings which had been decided or were then still pending before the same judicial formations .

On DATE the ORG deducted an amount of CARDINAL ( “ ORG ” ) from expenses for material and laboratory services brought to account by the applicant in regard to the orthodontic treatment of CARDINAL patient because the applicant had significantly exceeded the initial estimations by the public health insurer concerned in regard to those specific expenses .

On DATE and DATE the applicant made unsuccessful administrative complaints .

On DATE he brought an action against the ORG before ORG ( “ the ORG ” ) .

On DATE the applicant requested ORG to take additional evidence , namely that the initial calculations of public health insurers were not binding for the dentist concerned and that he had not exceeded the initial global estimations of expenses .

On DATE ORG held an oral hearing at the end of which it dismissed the action , refused leave to appeal and refused to hear additional evidence .

On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG ( “ ORG of Appeal ” ) . On DATE he lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG dismissed the complaint ; on DATE it dismissed the applicant ’s appeal for the right to be heard against this decision .

Also on DATE it dismissed as inadmissible the applicant ’s appeal against ORG refusal to hear additional evidence ; PERSON it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by ORG .

In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary and MONEY ( “ DEM ” ) (= EUR CARDINAL,CARDINAL.CARDINAL ) in regard to pecuniary damage .

On DATE EUR CARDINAL were deducted from the expenses for personnel and drugs brought to account by the applicant .

On DATE he brought an action against ORG at ORG before ORG .

On DATE ORG dismissed the action on the grounds that the deduction had been lawful because the applicant ’s expenses had been excessive in comparison to other dental practices .

On DATE the applicant lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .

On DATE ORG dismissed the complaint .

In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary and DEM CARDINAL,CARDINAL.CARDINAL (= EUR CARDINAL,CARDINAL.CARDINAL ) in regard to pecuniary damage .

On DATE EUR CARDINAL were deducted from the expenses brought to account by the applicant for the practice overhead in regard to costs for personnel as well as drugs .

On DATE he brought an action against ORG at the ORG before ORG .

On DATE he requested ORG to take additional evidence , namely that he was entitled to the expenses requested for the practice overhead ; that the expenses brought to account by him were to be calculated using specific criteria ; and that the practice overhead of unamortised dental practices such as his was higher than the one of amortised practises .

On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG . On DATE he lodged a constitutional complaint with ORG in which he complained that ORG had taken no action . On DATE ORG declared the constitutional complaint inadmissible , without giving further reasons ( CARDINAL BvR CARDINAL/CARDINAL ) .

Also on DATE it dismissed as inadmissible the applicant ’s appeal against ORG refusal to hear additional evidence ; it subsequently ordered that no court fees be imposed in view of an incorrect instruction on the right to appeal issued by ORG .

On DATE he brought an action against ORG before ORG .

On DATE he requested that a scheduled oral hearing be adjourned until a decision on his legal aid request became final .

On DATE ORG held an oral hearing and dismissed the action .

On DATE the applicant lodged a complaint against the refusal to be granted leave to appeal before ORG , which dismissed the complaint on DATE .

On DATE ORG ( “ the ORG ” ) at the ORG ordered the applicant to reimburse ORG CARDINAL for the defective implantation of a lower jaw prosthesis . On DATE the applicant made an unsuccessful administrative complaint . On DATE he brought an action against ORG before ORG , which granted the action on DATE .

In the proceedings before the ORG , the applicant requested at least EUR CARDINAL,CARDINAL in regard to non - pecuniary damage .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE the applicant was involved in a car accident .

According to a report drawn up by the police on DATE , the applicant had been responsible for the accident .

On an unspecified date the police transferred the case to ORG of PERSON for adjudication .

By a resolution of DATE , the court discontinued the proceedings against the applicant as time - barred . In the same resolution it found that the car accident had been caused by the applicant and that he had committed an offence provided for in LAW . The court ’s finding was based on the police report , the conclusions of an expert concerning the accident and the victim ’s statements . The court did not accept the applicant ’s version of the event , though it was confirmed by CARDINAL witnesses , who had been in the applicant ’s car on DATE .

Subsequently , the applicant asked the prosecutors to lodge a protest against the resolution of DATE . The prosecutors refused .

The relevant law is summarised in PERSON v. GPE ( ( dec . ) , no . CARDINAL , CARDINAL DATE ) .


Violation of Article 6 - Right to a fair trial

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

In the context of complications suffered from plastic surgery , on CARDINAL DATE the applicant brought an action in compensation against a hospital .

After having held several hearings and obtained the opinion of an expert , on DATE the Pest Central District Court gave an interim judgment , accepting the applicant ’s entitlement to compensation . On appeal , on DATE ORG upheld this decision .

Subsequently the proceedings continued before ORG . In DATE the applicant extended her claims . After having held several hearings and obtained an expert opinion , on DATE ORG partly found for the applicant . On DATE ORG amended this decision .

On DATE ORG quashed these decisions and remitted the case to the first - instance court .

After several hearings in the resumed first - instance proceedings , on DATE ORG ordered the respondent to pay the applicant MONEY ( ORG ) in compensation plus accrued interest , together with a DATE allowance in arrears and pro futuro .

On DATE ORG upheld this judgment .

On DATE the first - instance judgment was rectified .


Violation of Art. 8 (if deportation order executed);Not necessary to examine Art. 3;Lack of jurisdiction (injunction to State)

Mr PERSON , an NORP national , was born deaf and dumb in DATE , in GPE . He is the fourth of QUANTITY children , one of whom is deceased and CARDINAL of whom are NORP nationals . He came to GPE with his family in DATE . He is currently subject to a compulsory residence order pursuant to which he is required to live with his parents , at PERSON ( ORG ) .

ORG According to the information provided to the ORG , the applicant 's schooling may be summarised as follows .

ORG On their arrival in GPE in DATE PERSON and PERSON wanted to enrol their son in kindergarten , but he was refused admittance on account of his handicap . They then sought to have him admitted to ORG in GPE , a specialist establishment for the deaf and dumb . The institute could not however take him because of a lack of places and because his intellectual level was not regarded as sufficient . As a result Mr PERSON was not able to attend a school until DATE .

In DATE , after a social worker had intervened , he was admitted to the ORG audiométrique médico - psychopédagogique at GPE ( ORG ) ( a school specialising in hearing and speech difficulties ) . There he underwent therapy for his condition and received training adapted to his needs . On DATE he was expelled for violent behaviour .

ORG He then spent a further period with no schooling or training , which lasted until DATE , when he entered a training centre for the deaf and dumb at GPE ( PERSON ) . However , as his parents were unable to pay the boarding fees , he was returned to them after DATE .

On DATE he began training as a house painter . On DATE , following various incidents , he was obliged to quit .

ORG The applicant has indicated that he has no proficiency in deaf and dumb sign language , can neither read nor write and expresses himself in elementary fashion through signs that are intelligible only to his immediate circle of family and friends .

ORG As early as DATE the applicant came to the notice of the police as a result of a number of thefts . He appeared in court on several occasions .

ORG At DATE his police file recorded the following convictions :

( a ) on DATE , CARDINAL DATE and DATE he was sentenced by ORG to terms of imprisonment ranging from DATE for theft and attempted theft ;

( b ) on DATE he was sentenced to DATE imprisonment , CARDINAL of which were suspended , and DATE probation by ORG for gang rape ;

( c ) on DATE he was sentenced to DATE and DATE imprisonment by ORG for theft with violence ;

( d ) on DATE he was sentenced to DATE imprisonment by ORG for theft with violence ;

( e ) on DATE he was fined MONEY by ORG for assaulting a public official ;

( f ) on DATE he was sentenced to DATE imprisonment by ORG for theft with violence and receiving stolen goods .

In addition , on CARDINAL DATE he had been given a suspended sentence of DATE imprisonment for criminal damage and on CARDINAL DATE he was sentenced to DATE imprisonment for theft . On DATE he was convicted of theft with violence , but the ORG does not have any further details .

ORG On DATE the Minister of the Interior ordered the applicant 's deportation on the ground that his presence on NORP territory represented a threat to public order . The order , which was issued pursuant to sections CARDINAL and CARDINAL of the Order of DATE as amended ( see paragraph CARDINAL below ) , cited the applicant 's CARDINAL recent convictions , including that of CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG On DATE ORG quashed the above - mentioned order . It found that the Minister had not been entitled to rely on ORG as amended by LAW , because the provisions of that LAW were stricter than those that had previously been in force . To rely on them in the applicant 's case , in respect of criminal convictions which all preceded that date , amounted to wrongfully modifying established situations .

ORG On DATE the ORG d'Etat overturned ORG judgment and dismissed Mr PERSON 's applications for the quashing of the order or for a stay of execution . It took the view that the deportation of an alien was not a sanction , but an administrative measure exclusively designed to prevent disorder and to preserve public safety . Accordingly , the provisions of the LAW of DATE could be applied as soon as they entered into force to aliens satisfying the conditions laid down therein , whatever the date of the convictions on which the measure was based .

ORG On DATE the applicant complied with a summons requiring him to report to the Hauts - de - Seine Prefecture at PERSON , where he was first taken into police custody and then placed in administrative detention by order of the Prefect , for DATE TIME , with a view to his deportation to GPE . As it proved impossible to deport him within that period , the PERSON tribunal de grande instance issued a compulsory residence order dated DATE requiring Mr PERSON to live with his parents .

ORG On DATE , relying on Articles CARDINAL , CARDINAL , and CARDINAL ( article CARDINAL , article CARDINAL , article CARDINAL) of the Convention , Mr PERSON lodged an application with ORG challenging , inter alia , the deportation order and the detention order .

On DATE his application was dismissed . According to ORG , the applicant 's presence on NORP territory represented a serious threat to public safety in view of his numerous previous convictions , the gravity of the offences committed and his persistent re - offending . The impugned decision had not therefore constituted an infringement of his right to a family life that was " disproportionate to the aims pursued by the measure in question " .

ORG The deportation order has so far not been enforced , in compliance with the request for a stay of execution made by the President of ORG ( see paragraph CARDINAL below ) .

On DATE the Minister of the ORG issued a compulsory residence order requiring Mr PERSON to live with his parents " until such time as he is in a position to comply with the deportation order concerning him " . That measure has since been renewed .

ORG In connection with the criminal proceedings brought against the applicant , several expert reports were ordered with a view to studying his personality , his behaviour and his social environment .

ORG A report of a psychiatric examination effected in DATE at the request of the investigating judge of the PERSON tribunal de grande instance presented the following conclusions :

" The accused is an adolescent aged DATE ; he is deaf and dumb and has not yet acquired the skills needed to cope with his handicap ; he is not mentally retarded or mentally ill . He is , however , very easily influenced .

He is not insane within the meaning of LAW , but his emotional immaturity and intermittent personality disorders , combined with the fact that he is deaf and dumb , mean that his criminal responsibility is diminished to a considerable extent . He is by no means an insane person . He is not dangerous in a psychiatric sense . He can be restored to his family . He is unlikely to respond to a criminal penalty

ORG A medico - psychological report drawn up on DATE at the request of the investigating judge of the GPE tribunal de grande instance , stated as follows :

" The subject 's personal history is very sketchy , for the very reason that he mimes more than he uses sign anguage . None the less , we learn that he was born in GPE DATE ; he is unable to provide us with his precise date of birth . He indicates that he came from GPE to GPE while still a very young child . Both parents are living . His father still works . His mother stays at home and is described as an invalid .

As regards his schooling , [ he ] indicates that he attended a special school for the deaf and dumb , where he learnt the trade of house painter . He further indicates that he is unable to write and has to ask another deaf and dumb person to assist him in that task . He does not know his parents ' address in GPE .

His intellectual level is very low . He is incapable of accurately identifying significant dates in his life . He indicates that he can neither write nor read . The interpreter for the deaf and dumb tells us that he has a very poor knowledge of sign language and that he uses mime more than an appropriate language .

He should receive socio - professional supervision and be helped to find employment genuinely compatible with his condition . "

ORG A report of a medico - psychological examination submitted on CARDINAL DATE notes :

" PERSON appears to us to have only very limited means of communication and of understanding of the world . In his family and in society he has been in a situation apart where he has built up a closed universe for himself . As his communication with the outside world remains rudimentary , it is often expressed in aggressive terms , especially since he is only able to identify with individuals who embody a certain aggressiveness towards a social environment that has not provided him with the means of communication he could expect . He thus appears to have taken refuge in the NORP community , the only one to confer any status on him , but one which places him in a situation where he manifests this status by means of criminal or aggressive acts . That is what makes any intervention or assistance difficult .

PERSON has the level of understanding and communication of a child . His perception of the world remains rudimentary ; his expression and comprehension are poor . The therapy he has received has been unable to equip him with proper and adequate means of communication and he has had to revert , in a way that is regressive , to his milieu of origin , with which he has to identify in order to have a status and an identity . In his milieu of origin , where he is integrated under the nickname which establishes his difference , ' the mute ' , it is inevitable that [ he ] should adopt attitudes of criminality and aggression , which in view of his condition are the only means he has of maintaining his status and identity . "

ORG A psychiatric report of DATE concluded as follows :

" We know very little of a personal history that has been marked by deaf - mutism and attempts at therapy which have achieved very moderate results ... [ He ] spent his childhood and his entire adolescence in GPE and has never returned to GPE , although he has kept his NORP nationality ... He lives with his parents , goes out , hangs around , uses the pocket money that his mother gives him ; they now live in publicly subsidised housing at PERSON .

He was sent to prison DATE for picking pockets ; while in prison he presented signs of acute anxiety that made it necessary for him to be transferred to a psychiatric ward , where he spent DATE .

[ His ] intelligence , which was no doubt normal at the outset , is now to be assessed in terms of intellectual efficiency , namely he uses a limited number of signs and his technique is rudimentary ; his comprehension is inadequate . He therefore has very little understanding of abstract concepts of time , place , etc . ... His scholastic accomplishments are limited : he can not read , or only titles , street names ; he writes his name but nothing else ; and he has not mastered the mechanism of addition involving the carrying - over of numbers . Our interpreter sees him as a young deaf and dumb boy aged DATE who has never had the benefit of specialist attention ... "

ORG According to the findings of a psychiatric report of CARDINAL DATE :

" He is deaf and dumb and has received practically no therapy . It is well known that such deficiencies , over and above the mere physical defect , affect in a much more general way the whole process of conceptualisation and in particular the acquisition of moral values ; it may therefore be concluded that he does not obey the same scales of values as a person who is normally integrated in society and who hears normally ; these psychological factors should be taken into account when assessing the offence that he has committed .

An examination of Mr PERSON does not disclose any major mental , psychological or behavioral anomalies amounting to insanity ; he is nevertheless a person who has been uprooted , who is badly integrated , desocialised and handicapped by his deaf - mutism with the implications that that has for his process of conceptualisation and his understanding of moral rules .

He was not insane within the meaning of LAW at the material time . From a strictly psychiatric point of view , the anomalies found are not such as to diminish his responsibility .

He is susceptible to the imposition of a criminal sanction . He does not need special treatment , but would benefit from specialised supervision for his deaf - mutism , which might improve the prognosis for his rehabilitation . Placing him in a psychiatric hospital does not appear desirable either in his interests or in those of the community . "

ORG According to a medico - psychological report submitted on DATE :

" The examination reveals nothing to justify the conclusion that [ Mr PERSON ] is not in a position to understand normally social rules and prohibitions , or that his capacity for self - control has been diminished by a clear pathological process .

It is , on the other hand , evident that the frustration that he feels , the difficulty of communicating , the impossibility of expressing his wishes by word combine to create the psychological conditions in which there is very low resistance to acting out his desires . "

ORG A police report of CARDINAL DATE concerning the applicant states as follows :

" His handicap , deaf - mutism , is real and does not prevent him from wandering the streets of ORG - la - Garenne and other villages at TIME and rom assiduously frequenting the bars where he drinks alcohol , which makes him aggressive or even violent .

He inspires terror in many inhabitants of ORG and also in his accomplices . He has been involved in numerous incidents of theft or violence . This violent and antisocial individual makes no effort whatsoever to be integrated in our society and takes advantage of his handicap and of the favourable provisions of the administrative and justice systems . He is a real danger to public order , especially since he appears to be the leader of the young delinquents of ORG owing to the fear he inspires . "

Deportation of aliens is governed by the Order of DATE concerning the conditions of entry and residence of aliens in GPE . Section CARDINAL , as amended on DATE , provides :

" PERSON may be ordered by an order of the Minister of the ORG if the alien 's presence on NORP territory constitutes a serious threat to public order . "

An Act of DATE had deleted the word " serious " from the above provision , but on DATE the wording adopted in DATE was reinstated .


CASE OF ANTONENKOV AND OTHERS v. UKRAINE

Violation of Art. 6-1 (length of proceedings);No violation of P4-2;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE and DATE , respectively . All CARDINAL live in GPE .

On DATE criminal proceedings against the applicants were instituted .

On DATE was arrested on suspicion of fraud and theft . On DATE V.S. and , on DATE PERSON , were arrested on similar charges . The prosecution ’s case was that the applicants had fraudulently ( using false documents ) converted and subsequently sold an apartment belonging to PERSON

During the investigation the prosecution authorities obtained several economic expert opinions regarding the suspect transaction .

On DATE ORG approved the indictment and referred the case to ORG , requesting it to determine the territorial jurisdiction in the case . On DATE ORG ( hereafter “ ORG ” ) remitted the case to the Shevchenkovsky ORG of Kyiv ( hereafter “ the ORG ” ) . The applicants stood trial on charges of theft , fraud , and embezzlement of official documents ( GPE ) , fraud and forgery ( V.S. ) and fraud and theft ( PERSON ) .

On DATE ORG committed the applicants for trial .

On DATE the ORG released PERSON and PERSON on bail of ORG CARDINAL each ( approximately USD CARDINAL,CARDINAL at the material time ) and an undertaking not to abscond . On DATE was also released on bail of UAH CARDINAL ( MONEY ) and an undertaking not to abscond . On DATE the applicants’ bail was raised to UAH CARDINAL ( approximately USD CARDINAL,CARDINAL ) each .

DATE and DATE ORG listed CARDINAL hearings ( DATE and DATE ) . QUANTITY hearings were adjourned mainly due to the failure of the victim , witnesses and the applicants’ lawyers to appear in court . In the course of the proceedings on DATE the court issued a compulsory summons for the witness F.

On DATE ORG decided to remit the case for further inquiries on account of the insufficiency of the original investigation . The court stated inter alia , that the investigative authorities had failed to establish the whereabouts of CARDINAL of the key witnesses , PERSON , which made it impossible for the court to summon her to give evidence . The prosecution appealed against this decision . The decision was , apart from CARDINAL point , quashed by ORG in its ruling of DATE because the flaws in the investigation indicated in this decision could be remedied during the trial . However , ORG upheld the findings of ORG that the charges of aggravated embezzlement filed against GPE needed additional investigation .

The trial resumed on DATE . During the period DATE to DATE hearings were scheduled , of which CARDINAL were held . CARDINAL hearings were cancelled due to the victim ’s failure to appear , QUANTITY hearings were adjourned on account of the applicants’ absence and on QUANTITY occasions the presiding judge was ill . In particular , the hearing scheduled for DATE was adjourned until CARDINAL DATE on account of GPE being on a mission . On DATE he lodged with the trial court a successful request for permission to go to GPE for medical treatment .

On DATE ORG remitted the case for further investigation , referring to the similar circumstances in its decision of DATE . The prosecution ’s appeal out of time was rejected by ORG on DATE . On DATE ORG lodged a supervisory protest ( an extraordinary appeal ) against the decision DATE . On DATE the Presidium of ORG granted the protest and remitted the case to the first instance court for further consideration .

ORG resumed the examination of the case on DATE . DATE and DATE the court listed CARDINAL hearings of which CARDINAL were adjourned due to the failure of the victim ( on CARDINAL occasions ) , the applicants ( on QUANTITY occasions ) and the prosecutor ( on CARDINAL occasion ) to appear . In the course of the proceedings on CARDINAL DATE and CARDINAL DATE the court ordered the compulsory summons of the victim .

On DATE ORG disjoined the proceedings concerning the charges of theft and embezzlement of documents ( A.D. and PERSON ) and remitted the case in this part for additional investigation .

On DATE ORG terminated proceedings concerning the charges of fraud ( all CARDINAL applicants ) , embezzlement of documents ( DATE ) and forgery ( V.S. ) as time - barred , lifted the bail condition and ordered the return of the bail money .

According to both parties’ submissions , the criminal proceedings for ( presumably ) theft against DATE and PERSON are still pending .

The text of ORG CARDINAL , CARDINAL of the Code of Criminal Procedure of DATE ( general rules on the application of preventive measures ) is set out in Merit v. GPE , no . MONEY , DATE ( Relevant domestic law and practice ) .

Article CARDINAL of the Code ( application of bail ) is set out in PERSON v. GPE ( no . PERSON , DATE ) .

Article CARDINAL ( remittal of a case for additional investigation ) is set out in the judgment of CARDINAL DATE in the case of PERSON v. GPE ( see no . CARDINAL , § DATE ) .

Article CARDINAL of the Code provides that an undertaking not to abscond consists in obtaining from the suspect or the accused an agreement not to leave the place of residence or temporary stay without the permission of an investigator ( or a trial judge ) . In the event of a breach of the written undertaking given by him , a stricter measure of restraint may be applied to the suspect or accused .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is the owner of an apartment in ORG , which he had let to ORG

In a writ served on the tenant on DATE , the applicant informed the tenant of his intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the GPE Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt of the bailiff proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the tenant vacated the premises .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


Violation of Art. 10;Not necessary to examine Art. 14+10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , who was at the time the president of the petroleum workers’ union ( Petrol - İş Sendikası ) , wrote an article entitled “ The time has come for the workers to speak out DATE it will be too late ” ( “ Söz işçinin , yarın çok geç olacaktır ” ) in the DATE issue of ORG ( “ GPE ” ) , a DATE newspaper published in GPE . The article read :

“ The steadily intensifying ORG terrorism in eastern and south - eastern GPE is nothing other than a perfect reflection of the imperialist - controlled policies being applied to the NORP people on the international plane .

In order to destroy the NORP movement in GPE , GPE imperialism first stirred up the NORP against PERSON ’s regime and then set that regime on them , having left it strong enough to crush their movement .

As a result , the whole world has been confronted with the heartbreaking sight of CARDINAL of NORP dying of hunger , exposure and epidemics , CARDINAL more wiped out by the NORP army and CARDINAL forced to leave their homes and their country .

After shedding crocodile tears over these scenes , which they themselves had created , the imperialists are now sitting back with their arms folded , for the whole world to see , as genocide in GPE continues to intensify .

The constant increase in the south - east in the numbers of persons executed without trial , of mass arrests and of persons disappearing while in detention , particularly since the passing of the new LAW , is a harbinger of difficult times ahead .

The recent murder in police custody of the president of the ORG branch of the ORG [ ORG ] , probably by anti - guerrilla forces , and the further killings ( CARDINAL according to the police , QUANTITY according to local people ) at his funeral ( the police opened fire on the crowd , injuring CARDINAL , and took CARDINAL people into custody ) are the latest examples of ORG terrorism .

Anyone who examines LAW closely can easily see that it is aimed at crushing not only the struggle of the NORP people , but the struggle of the whole working class and proletariat for subsistence , for freedom and for democracy .

Consequently , not only the NORP people but the whole of our proletariat must stand up against these laws and the ‘ State terrorism’ currently being practised .

From the trade - union point of view , too , the problem is too important and too vital to be dealt with simply in a few interviews and declarations .

The political authorities and the forces of monopolistic capital use a few vague concepts to enable every action to be presented as a terrorist offence and every organisation as a terrorist group . When they feel the time is right , they will not hesitate to turn that weapon against the working class .

As we have always said , the NORP working class and its economic and democratic organisations must bring not only their economic , but also their political and democratic demands to the fore and play an effective role in this struggle .

Despite all the hurdles erected by the law , we must unite in action with the democratic mass organisations , political parties and every individual or body with which it is possible to work ; we must oppose the bloody massacres and ORG terrorism , using all our powers of organisation and coordination .

If we fail to do so , the circles of monopolistic capital , which , under imperialist orders , aim to gag and suffocate the NORP people , will inevitably turn on the working class and proletariat .

In saying ‘ DATE it will be too late’ , we are calling on all our people and all the forces of democracy to take an active part in this struggle . ”

On DATE , the public prosecutor at ORG ( GPE PERSON ) indicted the applicant on charges of non - public incitement to hatred and hostility contrary to LAW ( see paragraphs LAW below ) .

In the proceedings in ORG , the applicant denied the charges . He submitted that the article was about human rights violations in the south - east of GPE and maintained that he had not intended to promote separatism or to sow discord or strife amongst the population . According to him , in a NORP society , any subject should be able to be discussed without restriction . He also argued that it was his responsibility as a trade - union leader to express his opinion on the problem of democracy in south - east GPE .

In a judgment of CARDINAL DATE , ORG found the applicant guilty of an offence under LAW and CARDINAL of LAW and sentenced him to DATE and CARDINAL months’ imprisonment , plus a fine of MONEY .

The court held that in his article the applicant had alleged that the NORP people were being oppressed , massacred and silenced in GPE . In particular , the court interpreted parts of the fourth and thirteenth sentences of the article as meaning , respectively , that “ ... genocide [ was ] being carried out against the NORP in GPE ... ” and that an attempt was being made to “ ... gag and suffocate the NORP people ” .

It reached the conclusion that the applicant had incited the population to hatred and hostility by making distinctions based on ethnic or regional origin or social class .

NORP The applicant appealed to ORG , contesting , inter alia , ORG interpretation of his article and arguing that it should have obtained an expert opinion as to its meaning . He also submitted that he should have been given only a suspended sentence .

On DATE ORG dismissed the appeal , upholding ORG assessment of the evidence and its reasons for rejecting the applicant ’s defence .

The applicant served his sentence in full . As a consequence of his conviction , he also lost his office as president of the petrol workers’ union as well as certain political and civil rights ( see paragraph CARDINAL below ) .

Article CARDINAL of the Criminal Code provides :

“ Non - public incitement to commit an offence

A person who expressly praises or condones an act punishable by law as an offence or incites the population to break the law shall , on conviction , be liable to between six months’ and CARDINAL years’ imprisonment and a heavy fine of from CARDINAL MONEY .

A person who incites the people to hatred or hostility on the basis of a distinction between social classes , races , religions , denominations or regions , shall , on conviction , be liable to CARDINAL years’ imprisonment and a fine of from CARDINAL to MONEY . If this incitement endangers public safety , the sentence shall be increased by CARDINAL to CARDINAL .

The penalties to be imposed on those who have committed the offences defined in the previous paragraph shall be doubled when they have done so by the means listed in LAW . ”

Article CARDINAL § CARDINAL of the Criminal Code provides :

“ Public incitement to commit an offence

Where incitement to commit an offence is done by means of mass communication , of whatever type – whether by tape recordings , gramophone records , newspapers , press publications or other published material DATE by the circulation or distribution of printed papers or by the placing of placards or posters in public places , the terms of imprisonment to which convicted persons are liable shall be doubled … ”

The conviction of a person pursuant to LAW entails further consequences , particularly with regard to the exercise of certain activities governed by special legislation . For example , persons convicted of an offence under that Article may not found associations ( Law no . CARDINAL , section CARDINAL(CARDINAL)(b ) ) or trade unions , nor may they be members of the executive committee of a trade union ( Law no . CARDINAL , section CARDINAL ) . They are also forbidden to found or join political parties ( PERSON no . PERSON , section CARDINAL ) ) and may not stand for election to ORG ( Law no . CARDINAL , section CARDINAL(fCARDINAL ) ) .

The Government supplied copies of CARDINAL decisions given by the prosecutor attached to ORG withdrawing charges . CARDINAL of the cases concerned a person suspected of non - public incitement , contrary to LAW , to hatred or hostility based in particular on a distinction between religions . The other CARDINAL concerned persons suspected of making separatist propaganda aimed at undermining the indivisible unity of the ORG contrary to section CARDINAL of the Prevention of Terrorism Act ( Law no . ORG ) . In CARDINAL of those cases , in which the offences had been committed by means of publications , CARDINAL of the reasons given for the prosecutor ’s decision was that some of the elements of the offence could not be made out .

Furthermore , the Government submitted a number of ORG judgments as examples of cases in which defendants accused of the offences referred to above had been found not guilty . The judgments in question are : for DATE , no . CARDINAL of CARDINAL DATE and no . CARDINAL of DATE ; for DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of CARDINAL October , no . CARDINAL of DATE and no . CARDINAL of DATE ; and for DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE , no . CARDINAL of DATE and no . CARDINAL of DATE . The judgments acquitting authors of works dealing with the NORP problem were based , inter alia , on the absence of “ propaganda ” , CARDINAL element of the offence .


The applicant was born in DATE and lives in GPE , GPE .

The applicant was arrested by the police on DATE . On DATE ORG ( Sąd Rejonowy ) ordered his detention on remand for DATE on suspicion of armed robbery . It took into account the nature of the offence and the strong likelihood that the applicant would be given a heavy sentence . In addition , it had regard to the fact that the applicant had been previously convicted of a violent crime .

On DATE ORG ( PERSON ) prolonged the applicant ’s detention until DATE , having regard to the strong suspicion that he had committed the offence in question . It also found that the applicant ’s detention was justified , given the gravity of the charge and the severity of the likely sentence . The court further held that the investigation could not be concluded within DATE because the applicant had to undergo a psychiatric examination .

The applicant underwent a psychiatric examination DATE and DATE . On DATE a psychologist and CARDINAL psychiatrists submitted their report . According to their findings , the applicant was able to understand his acts at the time of the commission of the alleged offence and could participate in the trial .

On DATE the applicant was additionally charged with theft .

On DATE ORG ) terminated the investigation . On DATE the prosecution filed a bill of indictment with ORG . The applicant and his brother were charged with armed robbery and inflicting minor bodily harm . The applicant was additionally charged with theft . The bill of indictment specified that the applicant was subject to the rules on recidivism as in DATE he had been convicted of assault with intent to rob and inflicting grievous bodily harm and had been sentenced to CARDINAL years’ imprisonment . In addition , in DATE the applicant had been convicted of manslaughter and sentenced to CARDINAL years’ imprisonment .

On DATE ORG ordered that the applicant be kept in custody until DATE . It observed that the evidence obtained in the proceedings indicated that there was a strong likelihood that the offences in question had been committed by the applicant . It further considered that continuation of his detention was necessary in order to secure the proper conduct of the proceedings , given the nature of the offence and the severity of the likely sentence in respect of the charge of armed robbery .

The applicant ’s detention was subsequently prolonged by ORG on DATE ( until DATE ) and on DATE ( until DATE ) . The court relied on the same grounds as invoked in its earlier decision .

ORG held CARDINAL hearings ( DATE , CARDINAL May , DATE , DATE , DATE , DATE and DATE ) . On DATE it gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment . The applicant and the prosecution appealed against ORG judgment .

On DATE ORG ordered that the applicant be kept in custody until DATE . On DATE ORG ( Sąd Apelacyjny ) prolonged his detention until DATE .

On DATE ORG quashed the first - instance judgment and ordered a retrial .

It appears that in the course of the retrial ORG ordered that the applicant be examined by a psychiatrist and psychologist . According to their report , at the relevant time the applicant was not suffering from diminished responsibility for his acts , although he was a mentally handicapped person with an unsound personality .

ORG several times prolonged the applicant ’s detention . The relevant decisions were given on DATE ( prolonging his detention until DATE ) , on DATE ( ordering his continued detention until DATE ) , on DATE ( extending his detention until DATE ) , on DATE ( prolonging that period until DATE ) and on DATE ( ordering his continued detention until DATE ) . In all those decisions , ORG relied on the reasonable suspicion that the offences in question had been committed by the applicant , having regard to the evidence obtained in the proceedings . It further found that his continued detention was necessary in order to secure the proper conduct of the proceedings , given the nature of the charges and the severity of the sentence to which the applicant was liable . In the latter respect , the court found that the offence of armed robbery with which the applicant had been charged constituted a serious social danger and that the applicant was a recidivist offender .

The applicant ’s numerous requests for release and appeals against prolongation of his detention were to no avail . The courts , having regard to the relevant medical and court ORG reports , did not find any reason which would justify the applicant ’s release on the grounds specified in Article CARDINAL § CARDINAL of LAW .

ORG held CARDINAL hearings ( DATE and DATE , and DATE , DATE , DATE , CARDINAL DATE and DATE ) . It gave judgment on DATE . The applicant was convicted of armed robbery and theft and sentenced to DATE imprisonment . He appealed against that judgment .

On DATE ORG gave judgment . It acquitted the applicant of theft and upheld the remainder of ORG judgment . The applicant lodged a cassation appeal against ORG judgment . On DATE ORG ( Sąd Najwyższy ) dismissed his cassation appeal as being manifestly ill - founded .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the so - called “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ CARDINAL . Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused ’s committing another , serious offence ; they may be imposed only if the evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the conditions governing the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . When imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

an application made by the [ relevant ] prosecutor – prolong detention for a period [ or periods ] which as a whole may not exceed DATE .

The whole period of detention on remand until DATE first conviction at first instance may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , for the purpose of a prolonged psychiatric observation of the accused or a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad or when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested in the court of appeal within whose jurisdiction the offence in question has been committed . In addition , new paragraph CARDINAL was added . It provides :

“ A decision of ORG taken pursuant to paragraph CARDINAL may be appealed against to ORG sitting in a panel of CARDINAL judges . ”

LAW and CARDINAL of LAW of DATE included in Chapter VII of the Criminal Code of CARDINAL provide for special rules relating to the sentencing of habitual offenders . The finding that a person is subject to the rules on recidivism within the meaning of LAW , inevitably results in the sentence of imprisonment to which the accused was liable being increased .


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

In a decision of CARDINAL DATE ORG ( “ the ORG ” – see paragraph CARDINAL below ) specialised in pulmonary diseases diagnosed the applicant as suffering from asbestosis and various other diseases and determined that he qualified for second - degree disability . From that point on the applicant was undergoing DATE medical examinations at the ORG , and each time his diagnosis and degree of disability were confirmed .

Apparently due to a deterioration of the applicant 's health , in a decision of CARDINAL DATE the competent ORG revised his disability to firstdegree , without the need for another person 's assistance . Later , on CARDINAL DATE , another ORG decided that the applicant qualified for firstdegree disability in need of another person 's assistance .

The chief expert at ORG ( “ the CLEMC ” – see paragraph CARDINAL below ) at ORG appealed against the latter decision . On DATE the ORG overturned the ORG 's decisions of DATE and CARDINAL DATE and the applicant 's disability status was set back to seconddegree .

The applicant lodged an appeal against this decision with ORG .

On DATE a threemember panel of the court declared the applicant 's appeal inadmissible . It held that the appealed decision was not subject to judicial review , in accordance with section CARDINAL(c ) of LAW of DATE , section CARDINALa of Regulation no . CARDINAL of ORG , and section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) .

The applicant appealed to a fivemember panel of ORG , arguing that the refusal of the CARDINAL - member panel to examine the appeal was contrary to LAW . He submitted that the CLEMC 's determination directly affected the amount of disability pension that was allotted to him .

The fivemember panel upheld the CARDINAL - member panel 's decision in a final decision of DATE , holding that under section CARDINAL ) of LAW of DATE the CLEMC 's decisions were final and not subject to judicial review .

NORP Under NORP law , as it stood at the relevant time , there existed QUANTITY of disability , differentiated according to the character and the course of the disabling illness , the functional status of the ailing organ and of the organism as a whole , and the requirements of the disabled 's profession ( section CARDINAL(CARDINAL ) of Regulation no . CARDINAL on the expert assessment of longlasting incapacity to work , issued by ORG in DATE and superseded in DATE by a newer statutory instrument ) . The first degree of disability was reserved for persons who had , due to their state of health , lost all ability for work , or persons with durable , incurable , or worsening ailments set forth in a special list ( section CARDINAL of the Regulation ) ; the second one covered persons who had lost the ability to perform theirs or any other work , but who could be accommodated for work under conditions suitable for their health , or persons with durable , incurable , or worsening ailments set forth in the above list ( section CARDINAL of the Regulation ) ; and the third one covered persons who , as a result of their state of health , had to change their profession with one requiring lower qualifications , or who had to change their conditions of work within the same profession ( section CARDINAL of the Regulation ) . If a person was disabled on account of several illnesses , the decision determining his or her disability status had to set forth his or her degree of disability pursuant to each of the separate illnesses , as well as the overall degree of disability ( section CARDINAL of the Regulation ) .

Persons with a firstdegree disability were divided in CARDINAL subcategories : those who needed another person 's assistance , and those who did not . The determination who was in need of such assistance was made on the basis of the findings about that person 's need of everyday care , help or supervision ( section CARDINAL of the Regulation ) .

Section CARDINAL of LAW of DATE , as in force at the material time , provided that the amount of the professional disability pension was to be set pursuant to the degree of disability : those under the first degree were entitled to PERCENT of their average earnings , those under the second degree to PERCENT , and those under the third PERCENT . The amount of the general disability pension was to be likewise set pursuant to the degree of disability : PERCENT , PERCENT and PERCENT respectively ( section CARDINAL of LAW of DATE ) .

Persons with a firstdegree disability in need of another person 's assistance were entitled , in addition to the pension they received , to a further PERCENT of the amount of the social pension ( section CARDINAL(CARDINAL ) of LAW of DATE ) .

The LEMCs and the CLEMC were established pursuant to the abovementioned Regulation no . CARDINAL under the authority of ORG ( sections CARDINAL and CARDINAL of the Regulation ) . The LEMCs were responsible for , inter alia , determining the degree of a person 's disability ( section CARDINAL of the Regulation ) . The CLEMC heard appeals against decisions of the LEMCs ( section CARDINAL of the Regulation ) .

The presidents and the members of the commissions , who were exclusively medical professionals ( section CARDINALa(CARDINAL ) of the Regulation ) , were remunerated under employment contracts they entered into with the local mayors , the Minister of Health , or the medical directors of the local hospitals ( section ORG ) and ( CARDINAL ) of the Regulation ) .

There were no written rules regulating the procedure before the commissions . Regulation no . CARDINAL provided only that they had to proceed on the basis of an examination of the person concerned and of medical documents , making no provision for witness testimony or other evidence . No hearings were held .

By LAW , all “ administrative acts ” are subject to judicial review , unless otherwise provided by statute . LAW ( “ the ORG ” ) defines “ individual administrative acts ” as “ acts issued [ by public authorities ] , which create rights or obligations for , or affect rights or legitimate interests of , individuals or legal entities , as well as the refusals to issue such acts ” . By sections CARDINAL of the ORG , all “ administrative acts ” , save those relating to the security of the country or specifically enumerated by statute , are subject to judicial review .

Section CARDINAL(c ) of LAW of DATE provided that the CLEMC 's decisions pursuant to appeals by the disabled or the administration were final . So did section CARDINALa of the abovementioned Regulation no . CARDINAL and section CARDINAL(CARDINAL ) of LAW .

NORP In contrast to the previous practice , in a series of decisions and judgments starting with a reported decision of CARDINAL DATE in which it quashed a decision of ORG declaring an appeal against the decision of a special medical commission inadmissible , ORG started allowing judicial appeals against the decisions of special medical commissions . It reasoned that the general rule under LAW was that administrative acts were subject to judicial review unless otherwise provided by statute . The commissions ' decisions affected the individuals ' rights and were thus administrative acts within the meaning of LAW and section QUANTITY of the ORG . Since the exclusion of judicial review of the commissions ' decisions was set out in statutory instruments , it was invalid and their decisions were appealable before a court . In a number of those judgments and decisions the court also relied on LAW and , in particular , its access - to - a - court requirement ( опред. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , ORG , ORG ; опред. № CARDINAL от DATE г. по адм. д. № CARDINAL г. , PERSON , ORG ; опред. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , ORG , ORG ; опред. № CARDINAL от DATE г. по адм. д. № DATE г , ORG , ORG ; реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , петчленен състав ) .

At present section CARDINAL(CARDINAL)(CARDINAL ) of LAW of DATE provides that the decisions of ORG ( the successor body of the CLEMC ) are reviewable by ORG .


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

The applicant , an employed bookseller , is a member of ORG ( GPE ) sitting for ORG .

On DATE she attended as a listener a session of ORG ( PERSON ) , which arranged a public discussion and subsequent vote on the question whether an old people ’s home in a residential area of the town should be converted into a foster home for mentally ill persons . A ORG initiative with CARDINAL members had been formed by the neighbours of that home and further sympathizers to oppose this project . The members of the initiative argued , inter alia , that neighbours , notably children , would be endangered by the prospective patients , and expressed fear that their real property might lose part of its value . During the public discussion in ORG , a member of the ORG initiative , Ms B. , repeated these arguments . The applicant herself supported the conversion project .

Following the session , the applicant was accused in CARDINAL letters to the editor published in a regional newspaper , ORG , of having commented Ms B. ’s statement by saying in a rather low voice to her neighbour : “ But these are NORP , these are NORP methods . ” Furthermore , she was accused of having said to a group of people belonging to the ORG initiative , who were standing close to the town hall after the session : “ You NORP . ”

The applicant subsequently instituted civil proceedings in ORG both against the CARDINAL signatories of the letters to the editor and against the editor himself , in the course of which she confirmed in CARDINAL affidavits that she had never made such statements . On CARDINAL DATE ORG granted the applicant an interim injunction prohibiting the defendants to impart the allegation that the applicant had made the impugned statements . On DATE ORG quashed the judgment of ORG concerning the editor and dismissed the applicant ’s motion for an interim injunction .

Furthermore , on DATE the ORG conducted a hearing in proceedings brought by the applicant ’s lawyer against ORG for damages caused by the press coverage concerning the applicant ’s alleged statements . In that hearing , the applicant , who testified as a witness , again denied having made the impugned remarks . ORG subsequently partly allowed the action .

On DATE ORG refused to open criminal main proceedings against the applicant for libel . Having regard to the evidence before it , it argued that it was not sufficiently likely that the applicant would be convicted .

Following the public prosecutor ’s appeal , ORG quashed the judgment of ORG on DATE and opened the main proceedings before ORG . On DATE it allowed the motion of CARDINAL persons to join the proceedings as associated prosecutors ( Nebenkläger ) .

On DATE ORG acquitted the applicant of CARDINAL counts of libel to the detriment of CARDINAL persons , of having made CARDINAL wrong affidavits ( falsche ORG an Eides Statt ) and of having given false evidence in court ( falsche uneidliche Aussage ) . After having heard CARDINAL witnesses , the court came to the conclusion that the applicant had not made the impugned statements . ORG and CARDINAL associated prosecutors appealed against the judgment .

On DATE ORG , after having heard most of the witnesses called already by ORG , quashed the judgment of that court . It convicted the applicant of CARDINAL counts of libel , of having made CARDINAL wrong affidavits and of having given false evidence in court and sentenced her to a fine of CARDINAL ORG ( CARDINAL DATE rates of ORG CARDINAL ) . She was further ordered to bear the costs of the proceedings . These included the expenses of some DEM CARDINAL incurred by the associated prosecutors who had appealed against ORG judgment .

Having assessed the evidence before it , ORG was convinced that the applicant had in fact made the impugned remarks . The court further found that the ORG initiative comprised a small group of people whose members were determinable , so that each of these members was affected by the applicant ’s remarks .

The court then examined the question whether the applicant ’s remark , having regard to her right to freedom of expression guaranteed by LAW , had been justified . It stated that in discussions about vital issues of public interest , there was a presumption that a statement was permitted . Consequently , value judgments were protected under LAW even if they were harsh , polemic or exaggerated . However , LAW did not cover statements which were aimed at insulting a person in the first place , instead of contributing to the discussion on the subject - matter in dispute . The court found the applicant ’s remarks to be falling within that latter category of vituperation ( Schmähung ) of others . By comparing the members of the ORG initiative to NORP , who had sterilised and killed mentally ill people solely because of their illness , the applicant had severely insulted these persons without having established a direct link to the subject in dispute .

On DATE ORG , without giving further reasons , dismissed the applicant ’s appeal on points of law against the judgment of ORG as ill - founded .

On DATE ORG refused to admit the applicant ’s constitutional complaint lodged on CARDINAL DATE . It found that the provision underlying the applicant ’s conviction , Section CARDINAL of LAW , was formulated in a sufficiently precise way , even though not all questions concerning group libel ( GPE ) had already been settled .

The competent criminal courts had not violated the right to freedom of expression . It could be left open whether the impugned remarks had correctly been qualified as vituperation . Even assuming that this was not the case , there was nothing to suggest that , when balancing the competing fundamental rights involved , freedom of expression prevailed .

Pursuant to Section CARDINAL of LAW , libel is punishable with imprisonment of DATE or a fine and , if libel has been committed by an assault , with imprisonment of DATE or a fine .

There is no specific provision in the LAW governing group libel , that is , the defamation of individual members of a group by a statement that only refers to the group as such . ORG libel falls to be examined under the general provision of Section CARDINAL of LAW . According to the well - established case - law of the NORP courts , notably ORG ( see , in particular , nos . CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL , CARDINAL BvR CARDINAL/CARDINAL and CARDINAL BvR CARDINAL/CARDINAL , decision of CARDINAL DATE , Decisions of ORG ) , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL - CARDINAL ) , it is possible to insult an individual member of a group by a collective term referring to the group as such ( Beleidigung unter einer GPE ) , if the insult can be linked to that individual . However , the group must be clearly distinguishable by external signs from the general public , and the victims must be determinable . It is not necessary that the defendant knows every single victim of his defamation .

Pursuant to Section CARDINAL § CARDINAL of the Code of Criminal Procedure , a victim of libel is entitled to join the criminal proceedings against the defendant as an associated prosecutor . Section CARDINAL § CARDINAL of the Code of Criminal Procedure provides that the defendant shall be charged the necessary expenses of an associate prosecutor , if he is convicted for an offence affecting the associate prosecutor . However , the court can wholly or partly abstain from ordering the defendant to pay these expenses , if such an order were inequitable .


Violation of Art. 8 with regard to taking into care;No separate issue under Art. 6-1;Inadmissible under Art. 8 with regard to denial of access;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants were born in DATE and DATE respectively and live in GPE ) .

PERSON is the mother of CARDINAL children . While she was married to PERSON she gave birth to CARDINAL children , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , PERSON , born in DATE , and the twins PERSON and PERSON , born in DATE . With her second husband , PERSON , she had CARDINAL children . PERSON was born in DATE , PERSON in DATE , ORG in DATE and PERSON on DATE . In DATE PERSON gave birth to her last child .

In DATE the relations between PERSON and PERSON deteriorated . In DATE M. instituted divorce proceedings and requested to be afforded parental rights over the children . By a decision of CARDINAL DATE ORG ( ORG ) granted parental rights over the CARDINAL younger children , PERSON , PERSON and PERSON , to PERSON and over the CARDINAL older children to her first husband . ORG appealed against the decision , but withdrew the appeal in DATE . In DATE PERSON moved with the CARDINAL children to live withher present husband . On DATE the ORG pronounced PERSON divorce from her first husband . The applicants have been married since DATE .

In DATE PERSON applied to ORG ( ORG für Kinder , ORG und PERSON ) for family aid . In order to be granted the aid , the applicants agreed to have their family situation assessed by a psychological expert . In DATE ORG instructed PERSON to draw up an expert report . The expert met PERSON and CARDINAL of her children on DATE and DATE , DATE and DATE at the applicants ' home .

Being of the opinion that the questions put to the children by the expert were irrelevant for the purposes of family aid and having regard to the expert 's objection to PERSON attending the meetings with the children 's teachers , the applicants refused to co – operate with the expert any longer .

On DATE the expert submitted his report to ORG . According to this report , the deficiencies in the children 's care and home conditions risked jeopardising their development seriously . There was a damaging cycle of events in which the applicants were unreasonably harsh with their children on repeated occasions and had beaten them . The children needed to be in a secure long - term placement and any further contact between them and the applicants would have to be avoided .

On DATE ORG applied to ORG for an interim injunction ( einstweilige Anordnung ) withdrawing the applicants ' parental rights over the CARDINAL children , namely their CARDINAL children , PERSON , PERSON , PERSON and PERSON , and CARDINAL of the children born during PERSON first marriage , namely PERSON , PERSON and PERSON .

On DATE , i. e. on DATE , ORG , without hearing the parents or their children , issued the requested interim injunction . The applicants were ordered to hand over the children forthwith to ORG . The officer in charge of enforcing the decision was authorised to use force if necessary to collect the children . Relying notably on the findings of the expert report , ORG found that the parents ' inability to give the children satisfactory care and education and an abusive exercise of parental authority jeopardised the physical , mental and psychological well - being of all of the children to the extent that their separation from the applicants appeared to be the only possible solution to protect them . ORG referred to the relevant provisions of LAW ( Articles DATE and DATE - see paragraphs CARDINAL and DATE below ) .

By a decision of DATE ORG supplemented its decision of DATE , prohibiting all access between the applicants and their children and the CARDINAL children of the first marriage , PERSON , PERSON and PERSON . The whereabouts of the children were not to be communicated to the applicants . ORG further prohibited all access between the CARDINAL other children of the first marriage and PERSON . She was also forbidden to come QUANTITY to the CARDINAL other children 's residence or their schools . ORG considered that the expert opinion was sufficient evidence to show that the separation of the parents from their children was necessary for the protection of the children . It had further been shown that the parents would object and try by all means to exert pressure upon the children . In order to avoid stress to the children , these measures were necessary in their best interests . The parents were urged to recognise their own deficiencies in respect of the care and the physical and psychological well - being of the children and take into account the clearly expressed need of the children for a change in their situation . The parents were invited to accept - at least for the time being - the measures taken and to contribute as far as possible to a calming of the general situation . This was only possible if the parents accepted the existing circumstances . The approach of ORG met in part the expressly stated wishes of the children . ORG concluded that the momentarily inevitable measures were proportionate to the urgent needs and the objective interests of all of the children .

The children were taken on DATE TIME from CARDINAL different schools , a nursery and from home and were placed in CARDINAL foster homes . The DATE youngest daughter , PERSON , was taken from the hospital and since that time has lived with a foster family .

In a letter of DATE Dr PERSON , a gynaecologist and head physician at the PERSON hospital in GPE , complained to ORG about the conduct of the authorities . He stated that , according to a telephone call of DATE , the CARDINAL children of PERSON as well as the newborn child in the hospital were to be removed from their mother without her knowledge . His patient was to be informed of the measure after her child had been taken from the nursery . Staff members were asked to take the child downstairs to the hospital 's entrance and place it in a taxi .

He , as the head physician , and the medical hospital staff were surprised and shocked by the lack of warning and considered this conduct an affront to both PERSON and the medical staff . Since DATE PERSON had been taken care of by the medical staff of the hospital . She had always given the impression of a being highly responsible person . She had come regularly to the preventive medical check - ups during her pregnancy . When she was accompanied by her children , the children behaved well , were friendly and well brought - up . There were no signs that they were in any way neglected or ill - treated .

On DATE ORG informed the applicants that the children had been granted financial assistance in the sum of ORG DATE and that the parents had to contribute to these fees according to their financial means .

On DATE the applicants appealed against ORG decision of DATE . They submitted that it was difficult to understand that in the context of family aid an expert opinion on the parents ' ability to bring up their children had been drawn up and that they had not been informed about this opinion . The contested decision was unexpected and had been given at a moment when PERSON was in a critical state of health , having given birth to her daughter DATE . They proposed witnesses who would confirm that the children had not been ill - treated , but were being brought up with love and understanding .

On DATE ORG held a hearing in the presence of the applicants assisted by a lawyer , PERSON first husband , representatives of ORG , a representative of a nursery and the expert PERSON The CARDINAL witnesses of the applicants ' own choosing were not heard and had to leave the courtroom .

ORG instructed PERSON to proceed with the assessment of the remaining children and to finalise his report . It further appointed a new expert , PERSON , to assess the applicants ' capacity to bring up their children .

In the following interviews to prepare the assessment , the applicants asked the expert make a tape - recording of the interviews . Upon the expert 's refusal to do so , the applicants were unwilling to continue to co - operate with him .

On DATE the ORG ( Oberlandesgericht ) dismissed the applicants ' appeal against the decision of DATE . It noted that ORG had had regard to the report submitted by ORG in connection with its request of DATE to revoke the applicants ' parental rights and to the expert opinion submitted by PERSON and that ORG had considered that the impugned measure was justified . The expert had concluded that the basic needs of the children were not satisfied and that patterns of violence and permanent shortcomings of all kinds determined the children 's day - to - day life . It was thus necessary to put an end to the risk to which the well - being of the children appeared to be exposed . A new expert opinion was to be expected by DATE . ORG found that the applicants ' appeal could therefore be dismissed without holding a hearing . It was against the best interests of the children to take them out of the new environment in which they were building up new contacts , and to restore them to their former family , there being the risk that they would be taken to a new environment again shortly afterwards .

On DATE the applicants challenged the judge at ORG for bias .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a bench of CARDINAL judges , dismissed the applicants ' request for an interim injunction .

ORG found that the applicants ' constitutional complaint was neither inadmissible nor manifestly ill - founded . There were doubts in particular whether the courts had breached the applicants ' right to a fair hearing and their right to respect for their family life . However , if the requested interim injunction was issued and if later the constitutional complaint had to be dismissed , the children would have to be taken from the applicants again and placed somewhere else . Having regard to the fact that the expert opinion was to be drawn up by DATE , the applicants should await the outcome of the main proceedings rather than have the children run the risk of being separated from their parents again later . It had to be assumed that the competent courts would conduct the main proceedings speedily having regard to the time element in these matters .

On DATE ORG dismissed the challenge to the judge and on DATE another to the expert PERSON

On DATE the ORG appointed a lawyer of ORG as curator ad litem ( PERSON ) to represent the children in the proceedings . It instructed the already appointed experts to submit the results of their investigations obtained so far and discharged them from any further expert activity . It appointed a new expert , Professor PERSON , with a view to determining whether separating the children from the family was the only way of eliminating all danger for them .

On DATE Professor PERSON interviewed the applicants at their home . The interview lasted for TIME .

On DATE ORG , sitting as a bench of CARDINAL judges , set aside the decisions of ORG DATE and ORG of DATE and referred the case back to ORG .

In so far as the applicants complained about the decisions of ORG of DATE and DATE , ORG declared the constitutional complaint inadmissible , since the applicants had failed to appeal against these decisions in accordance with section CARDINAL of GPE ( PERSON über die ORG der freiwilligen PERSON ) .

In so far as the constitutional complaint was admissible , ORG considered that , in accordance with the principles established in its case - law , the decisions of ORG and ORG violated the applicants ' family rights as guaranteed by LAW , first sentence , of the basic PERSON , taken together with LAW ( see “ Relevant Domestic Law ” below ) .

There were serious doubts whether the courts had respected the importance of parental rights when giving their decisions and whether they had sufficiently taken into account the principle of proportionality . The question whether the evidence established that there was a risk of harm to the children had not been adequately considered . ORG and ORG had merely referred to the report of ORG and the expert opinion . It did not appear from their decisions whether the expert 's conclusions were based on reliable facts . An assessment of the applicants ' submissions and considerations as to the possibility of ordering alternative measures , that would not have required the total revocation of parental rights , had not been made . Both ORG and ORG had failed to question the children or give the persons taking part in the proceedings the opportunity to be heard .

The measures which had been ordered had led to a drastic change in the lives of all the persons concerned and constituted a particularly serious interference with parental rights . However , no inquiries had been made , even by telephone , before the decision was taken . No reasons were given justifying the urgency of the matter .

ORG had no information on the possible effects of its decision , since ORG and the expert had not commented on this issue . When examining the advantages and disadvantages of a family measure it was , however , relevant to consider that a separation of the children from their parents could jeopardise the development of the children , in particular in DATE of life .

The courts had also failed to clarify the contradiction between the findings in the expert opinion according to which the applicants were not ready to co - operate and the fact that PERSON herself had asked to be granted child - rearing guidance . Furthermore there was no indication whether and to what extent the applicants had refused any contact or help offered by ORG and it was not clear which “ specific measures granting assistance ” ( einzelne ORG ) had been carried out in the past and why they were not successful .

ORG should have first clarified the questions which arose and in the meantime could have taken alternative provisional measures if there was serious reason to believe that the welfare of the children was at risk .

According to ORG , it could not be excluded that , prior to the termination of the proceedings on the merits , which had to be dealt with as a priority , ORG would issue another emergency decision . If so , ORG was directed to examine carefully whether , in the light of the evidence obtained in the meantime , the continued separation of the children from the applicants was still justified and whether a repeated change of the children 's place of residence would be in their best interests . If ORG found that the present situation were to be maintained , it would have to consider whether the applicants should be granted a right of access , restricted or subject to conditions if necessary , and whether , in strict accordance with the principle of proportionality , the effects of such a decision should be limited in time .

On CARDINAL and DATE CARDINAL of the children , PERSON , PERSON , PERSON and PERSON , were interviewed by the judge at ORG at the respective institutions where they were placed .

According to TIME of FAC of DATE , PERSON declared that he wished to return to his parents . He knew that there were certain reasons for placing him and his siblings in a different environment and confirmed that he had had too much work and strain at home . He sent his greetings to his brothers and sisters .

Nico , PERSON and PERSON were interviewed in another foster home . PERSON stated that he wished to know whether his parents and his “ favourite ” father ( Lieblingsvater ) were all right . He asked why he could not join his “ favourite ” father and whether somebody , his parents , his father or PERSON , could not come to see him . PERSON and PERSON were with him and , according to them , were all right . PERSON had let him know that she too wished to return home . He stated that he was fine . Asked about his dreams , he said that he wished to go to his “ favourite ” father who was very nice , better than his stepfather . In reply to the question whether the judge should leave a message , he dictated the following letter on a dictaphone : “ Dear PERSON ( his favourite brother ) , ( his favourite sisters PERSON and PERSON ) , dear PERSON , what a pity that we do n't see each other ... PERSON , PERSON , PERSON , PERSON , his favourite father and his parents should come and visit him . ” ( PERSON ( sein Lieblingsbruder ) , ( PERSON ) lieber PERSON , schade , dass wir uns nicht sehen ... PERSON , PERSON , PERSON , PERSON , PERSON seine NORP sollten ihn MONEY . )

The following letter to his mother was recorded on a dictaphone : “ Dear Mama , it is a pity that you do not come and best regards from PERSON and PERSON and PERSON and PERSON . PERSON and PERSON are all right . Yes and perhaps could you come to see us ? Or is that not possible ? “ ( PERSON ! PERSON , dass Du nicht kommst und liebe GPE PERSON dass es Lisa und Anna gut geht . PERSON , vielleicht : könntet PERSON herkommen . PERSON )

PERSON stated that she felt fine . She was in the company of PERSON and PERSON . Everybody said that she should tell her parents that everything was all right . She then added that she did not like it there .

PERSON regretted that “ poor PERSON was all on her own without any member of the family . She would never bear this . She had to protect PERSON and PERSON . That was her duty as the elder sister . PERSON was beaten very often in that place . She did not know the reason . In reply to a question , she stated that she was doing her homework thoroughly and that she was doing well in school . At home she had almost fallen asleep when doing her homework . When asked what message the judge could pass on , she said that she did not like the place and that she wished to return home . However , the staff did not believe her . She did not really like them . She did not want to go to another institution . She wished to go home . If she were not allowed to go home , she should at least be authorised to see everybody , her brothers and sisters , parents and stepfather . She missed taking PERSON to bed sometimes . Having been told that PERSON wished to return to his “ favourite ” father , PERSON replied that , unlike PERSON , she loved both her father and her stepfather .

On DATE , as a consequence of the decision of ORG , ORG set down for hearing on DATE the request of ORG of DATE to provisionally revoke the parental rights of the applicants over the children . It transferred to ORG the right to decide where the children should live ( Aufenthaltsbestimmungsrecht ) . ORG found that the best interests of the children did not require a modification of the present situation before a decision on the merits was given . ORG considered that its decision of DATE prohibiting the applicants all access to the children was still relevant , since it had not been set aside by ORG .

On DATE ORG held a hearing attended inter alia by the applicants assisted by a lawyer , PERSON first husband , the curator ad litem , a lawyer and representatives of ORG , the experts PERSON and Professor PERSON and the children 's paediatrician PERSON Professor PERSON gave details of her visit to the applicants ' home on DATE and resumed the content of the interview . Having studied the extensive files concerning the applicants and PERSON 's report , Professor PERSON could not confirm that the findings in the report were erroneous . She expressed the view that the children should not be returned to the applicants .

The children 's paediatrician , PERSON , stated that all the children had been his patients since their birth except the daughter born in DATE . Although he knew about the children 's problems , in particular the difficulties with PERSON , the applicants made a quite positive impression on him . It was a big family with many children . However , the applicants were loving parents who took great care of their children . There was no indication that the children had been beaten or otherwise abused .

The curator ad litem was opposed to contacts between the applicants and the children .

By an interim injunction of DATE , namely DATE , ORG provisionally transferred the custody ( Personensorge ) over the children to ORG and confirmed its decision of DATE . The expert was instructed to add to her report . She was requested to comment in particular on whether , in the best interest of the children , it was necessary to maintain the access prohibition , whether the children should be granted access to the older children of the first marriage , PERSON , PERSON , PERSON and PERSON , and if appropriate , in what way such contact could be arranged while keeping the children 's place of residence secret .

ORG relied in particular on the findings of the expert PERSON that the separation of the applicants from their children had to be maintained . The applicants were incapable of bringing up their children because of their own basic and irreparable educational deficiencies and their abuse of parental authority . The children were emotionally disturbed and presented unusual patterns of behaviour . They had been beaten and locked up . Furthermore the CARDINAL older children of the first marriage had approved the separation of the younger children from their mother and had refused any contact with her . The sole reason why PERSON was intent on giving a positive impression of herself was to obtain support from others . However , any such support was foredoomed .

ORG noted that Professor PERSON had not yet submitted her report . However , she had confirmed the findings of the expert PERSON and had stated at the hearing of DATE that there was no alternative to separating the children from the applicants . According to her , PERSON had never been willing to call her own behaviour into question . She satisfied her own needs only and refused to accept child - rearing guidance with a view to reducing her own deficiencies . In fact , she had admitted not having undergone therapy in DATE . Professor PERSON had found that PERSON 's expert opinion could not be objected to .

ORG considered that the numerous written statements of witnesses submitted by the applicants confirming that the children had not been beaten or ill - treated did not constitute sufficient evidence in their favour . Harm , such as verbal cruelty , could be of a psychological nature . The statement made by PERSON that she wished to return to the applicants did not reflect her real intention , but resulted from a conflict of loyalty .

ORG further compared the situation described in an expert report drawn up in DATE with the present situation : PERSON was always well - dressed while her husband looked tired and worn out . It concluded that PERSON was not aware of her problems . She aggravated with each new pregnancy the emotional deficiencies of the children . This had been confirmed by Professor PERSON after a discussion with the applicants on DATE .

ORG affirmed that its decision of DATE was based on its experience in cases where coercive measures had to be taken . Had the parents been warned of the requested measure , they would have offered resistance , as was shown by their own reaction and the excessive reaction of the media in the case . An enforcement of the court decisions with the intervention of the authorities and the police would have been contrary to the best interests of the children .

On DATE the applicants appealed against this decision to ORG .

On DATE the applicants challenged Professor PERSON for bias . They complained that she had intentionally delayed the preparation of her expert report in order to separate the children from their parents for a longer period . She could not be relied upon to act in the best interests of the children . Without having seen them , she had recommended at the hearing before ORG of DATE that they be separated from the applicants . Her unfriendly conduct vis - à - vis the applicants , when interviewing them at their home on DATE , and the reference to files dating from PERSON divorce problems in DATE confirmed the view that she was not impartial .

On DATE the applicants challenged the judge at ORG for bias . They referred to previous decisions given by that judge in favour of ORG , allegedly in contrast to expert recommendations .

On DATE the judge declined to stand down .

On DATE the applicants ' lawyer again challenged the judge at ORG and Professor PERSON for bias .

On DATE ORG dismissed the challenge to the judge on the ground that the applicants ' allegations were unsubstantiated .

On DATE the ORG dismissed the applicants ' appeal against ORG decision of DATE .

On DATE ORG rejected the challenge for bias in respect of Professor PERSON

On DATE Professor PERSON submitted her report . She confirmed her previous findings .

On DATE ORG , sitting as a bench of CARDINAL judges , refused to entertain the applicants ' constitutional appeal against the decisions of DATE and DATE .

On DATE ORG held a hearing . The applicants , ORG , the curator ad litem and the experts PERSON and PERSON were present . The curator ad litem declared that the children had adapted to the changed living conditions and appeared to be comfortable with the new situation .

On DATE CARDINAL of the children living with their father , PERSON , PERSON and PERSON , were heard separately by ORG . They were opposed to seeing their mother .

By a decision on the merits of DATE , ORG withdrew the applicants ' parental rights over their CARDINAL children and the CARDINAL children of the first marriage previously living with them and prohibited access to them until DATE . It relied on Articles DATE , DATE and DATE LAW ( see paragraphs CARDINAL below ) . The authorities were compelled to take the contested measures , which were justified under LAW of LAW , and necessary in a democratic society for the protection of the health and the rights of the children within the meaning of LAW . It found that the domestic situation was difficult and that the children were in danger . The applicants , in particular PERSON , were inflexible and incapable of understanding the children 's needs and with her it would be impossible to implement any educative measures . The conditions in which the children had been brought up were highly unsatisfactory . The children had made positive progress in the foster homes in which they had been placed , had gained in confidence and were less affected by behavioural disorders .

By a separate decision of DATE the ORG prohibited contact between PERSON and her CARDINAL eldest children , PERSON , PERSON , PERSON and PERSON DATE , or in the case of PERSON eldest son PERSON , before he attained his majority .

The applicants appealed against the above decisions .

Article CARDINAL of LAW ) reads as follows :

( CARDINAL ) Care and upbringing of children are the natural right of the parents and a duty primarily incumbent on them . The state watches over the performance of this duty .

( CARDINAL ) Separation of children from the family against the will of the persons entitled to bring them up may take place only pursuant to a law , if those so entitled fail in their duty or if the children are otherwise threatened with neglect .

DATE of the Civil Code ( ORG ) provides that the family courts are under an obligation to order necessary measures if a child 's welfare is jeopardised ( GPE ) .

The first sub - paragraph of DATE provides that measures intended to separate a child from its family are permissible only if it is not possible for the authorities to take any other measure to avoid jeopardising the child 's welfare .

The second sub - paragraph of Article CARDINALa provides :

“ Full [ parental ] responsibility may only be withdrawn if other measures have proved ineffective or have to be regarded as insufficient to remove the danger [ Die gesamte Personensorge darf nur entzogen werden , wenn andere ORG erfolglos geblieben sind oder wenn anzunehmen ist , dass sie zur ORG der Gefahr nicht ausreichen ] . ”

According to LAW , the family court can restrict or suspend the right of access 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 .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

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

On DATE the Tsentralno - Gorodskoy District Court of Gorlovka awarded the applicant CARDINAL NORP hryvnias in compensation for damage caused to his property by a privately owned company , “ Z. ” .

That judgment became final and ORG instituted proceedings to enforce it .

On DATE the ORG instituted liquidation proceedings against the debtor company .

In this regard on DATE ORG terminated the enforcement proceedings against the debtor company and transferred the applicant ’s writ of enforcement to the liquidation commission for further processing .

The applicant complained to various ORG authorities about lengthy non - enforcement of the judgment in his favour , but to no avail . However , he did not sue ORG for its alleged inactivity or omissions .

The judgment of CARDINAL DATE remains unenforced .

The relevant provisions of ORG DATE and LAW of DATE are summarised in the case of ORG v. GPE ( ( dec . ) , no . GPE , DATE ) .


CASE OF TOMISLAV JOVANOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA" (No.1)

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On CARDINAL DATE the applicant entered into an agreement with Mr PERSON ( “ the defendant ” ) under which the latter had agreed to produce and install some furniture in the applicant 's house . The applicant made an advance payment .

On DATE the applicant claimed annulment of the agreement since the defendant had not complied with it .

On DATE the applicant specified his claim and sought compensation .

On DATE the applicant lodged another compensation claim on a different ground . On DATE , the then ORG ( “ the first - instance court ” ) ruled partly in favour of the applicant ordering a cross - cancellation of debts ( пребивање ) . It made no decision in respect of the applicant 's compensation claim since it had not been specified . On DATE ORG confirmed the decision on the merits and quashed it in respect of the trial costs .

After the defendant died , the first - instance court invited defendant 's heirs ( “ the heirs ” ) to submit a court decision recognising them as his successors .

On DATE the applicant successfully requested removal of the judge .

On DATE the applicant further specified his claim .

After CARDINAL hearing being adjourned due to the applicant 's absence , the first - instance court dismissed the applicant 's compensation claim on DATE . This decision was confirmed on the merits by ORG decision of DATE . On DATE ORG dismissed the applicant 's appeal on points of law of DATE . This latter decision was served on the applicant on DATE .

The applicant 's dismissal was annulled by a decision of ORG of DATE . He was reinstated on DATE .

On an unspecified date in DATE , the applicant brought an action against his employer claiming compensation for the unlawful dismissal .

On DATE the first - instance court ruled partly in his favour . This decision was upheld by ORG and ORG with decisions of CARDINAL DATE and DATE , respectively . This latter decision was served on the applicant on CARDINAL DATE .