CASE OF G.I.E.M. S.R.L. AND OTHERS v. ITALY

Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-3-a) Abuse of the right of application;Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Conviction;Criminal offence);No violation of Article 7 - No punishment without law (Article 7-1 - Nulla poena sine lege;Conviction;Criminal offence);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);Just satisfaction reserved (Article 41 - Just satisfaction)

András Sajó;Branko Lubarda;Egidijus Kūris;Erik Møse;Guido Raimondi;Helen Keller;Iulia Motoc;Jon Fridrik Kjølbro;Khanlar Hajiyev;Kristina Pardalos;Luis López Guerra;Paul Lemmens;Paulo Pinto De Albuquerque;Robert Spano;Yonko Grozev

NORP The applicant companies have their registered offices respectively in PERSON ( PERSON . ) , GPE ( Hotel Promotion Bureau S.r.l . and ORG . ) , and PERSON ( GPE di GPE ) ( PERSON . ) .

Mr PERSON was born in DATE and lives in PERSON .

The applicant company owned a plot of land in PERSON on the coast at GPE , with a total area of CARDINAL sq . m , adjacent to land belonging at the time to a limited liability company ORG . The land was classified as suitable for building in the general land - use plan ( piano regolatore generale ) in respect of CARDINAL plots , the rest being earmarked for use by small businesses according to the plan ’s specifications .

In By - Law no . CARDINAL of CARDINAL DATE the PERSON municipal council approved a site division and development plan ( piano di lottizzazione hereinafter “ site development plan ” ) submitted by ORG . The plan provided for the construction of a multi - purpose complex , comprising housing , offices and shops . According to the applicant company , its land was automatically incorporated into the development plan by the municipal council .

On DATE the ORG municipal authority asked the applicant company if it wished to be party to a site development agreement in order to be able to build on the land . If its response was negative , the authority would have to expropriate the land under PERSON no . DATE ) of GPE .

On DATE the applicant company informed the ORG municipal authority that it wished to participate in a site development agreement . The authority did not reply .

On DATE the PERSON municipal authority issued a building permit to ORG .

On DATE Sud Fondi S.r.l . began the building work , which had mostly been completed by DATE .

On DATE , following the publication of a newspaper article about the building work carried out near the sea at GPE , the public prosecutor of ORG opened a criminal investigation .

On DATE the public prosecutor ordered a temporary measure restraining disposal of property in respect of all the buildings in question . He also added the names of certain individuals to the register of persons prosecuted , including those of the authorised representative of ORG . and the managers and foremen responsible for the building work . In his decision the public prosecutor expressed the view that the locality known as ORG was a protected natural site and that the building of the complex was therefore illegal .

NORP The representatives of ORG . challenged the temporary restraining measure before ORG . In a decision of CARDINAL DATE that court declared the measure null and void and ordered the return of all the buildings to their owners , on the ground that it was not prohibited to build on the site according to the land - use plan .

In a judgment of CARDINAL DATE ORG acknowledged the illegality of the buildings erected at GPE as they had been built in breach of Law no . CARDINAL of CARDINAL DATE ( “ PERSON no . CARDINAL ” ) , which prohibited the granting of planning permission in respect of sites of natural interest , including coastal areas . However , since in the present case the local authority had issued the building permits , and in view of the lack of coordination between Law no . CARDINAL/CARDINAL and the regional legislation , which was incomplete , the court found that no negligence or criminal intent could be imputed to the defendants . All the defendants were thus acquitted on the ground that the mental element of the offence had not been made out ( “ perché il fatto non costituisce reato ” ) .

In the same judgment , finding that the development plans were materially in breach of PERSON no . DATE and illegal , ORG ordered , in accordance with section CARDINAL of that PERSON , the confiscation of all the developed land at ORG , including that belonging to the applicant company , together with the buildings thereon , and the incorporation of the property , without compensation , into the estate of the municipal authority of ORG .

In an order of CARDINAL DATE the ORG Minister ( PERSON dei beni culturali ) prohibited any building in the coastal area near the city of PERSON , including at ORG , on the ground that it was a site of significant natural interest . That measure was declared null and void by ORG DATE .

NORP The public prosecutor appealed against the judgment of ORG , calling for the defendants to be convicted .

In a judgment of DATE ORG overturned the decision of the court below . It found that the granting of planning permission had been legal , in the absence of any ban on building at GPE , and there having been no appearance of illegality in the procedure for the adoption and approval of the site development agreements .

The Court of Appeal thus acquitted the defendants on the ground that no material element of an offence had been made out ( “ perché il fatto non sussiste ” ) and revoked the confiscation measure in respect of all the buildings and land . On DATE the public prosecutor appealed on points of law .

In a judgment of DATE ORG quashed ORG decision without remitting it . It acknowledged the material illegality of the site development plans on the ground that the land in question was subject to an absolute ban on building and to a landscape protection measure , both provided for by law . In that connection , the court noted that at the time the development plans had been adopted ( DATE ) , Regional Law no . DATE on landscape protection had not yet entered into force . Consequently , the applicable provisions in the present case were those of Regional Law no . CARDINAL of DATE ( on land use and development ) and ORG no . DATE ( on landscape protection ) .

ORG observed that PERSON no . CARDINAL in fact imposed a prohibition on building within the meaning of section CARDINALowed no derogation , because the site development plans concerned plots of land that were not situated within the city limits . The court added that , at the time when the site development agreements were adopted , the land in question was included in an implementation plan ( piano di attuazione ) for the general land - use plan which post - dated the entry into force of Regional Law no . DATE .

ORG noted that in DATE ( see paragraph CARDINAL above ) , at the time when the site development plans had been approved , no implementation scheme ( programma di attuazione ) had been in force . In that connection the court referred to its case - law to the effect that an implementation scheme had to be in force at the time of the approval of site development plans ( Court of Cassation , LAW , DATE , PERSON ; DATE , PERSON ; DATE , ORG ) . The reason for this was again according to the case - law – that once an implementation scheme had expired , a building ban which had been discontinued by the scheme would become effective once again . Consequently , it was necessary to find that the land in question had been subject to a building ban at the time of the approval of the site development plans .

ORG further referred to the existence of a landscape protection measure , under section CARDINAL of National Law no . CARDINAL . In the present case , as the competent authorities had not issued a notice of conformity with the requirements of landscape protection ( that is , neither the nulla osta approval issued by the national authorities attesting to such conformity DATE under LAW of PERSON no . DATE nor the prior approval of the regional authorities under sections CARDINAL and CARDINAL of Law no . CARDINAL/CARDINAL , nor the approval of ORG under sections CARDINAL and CARDINAL of Regional Law no . DATE ) .

Lastly , ORG noted that the site development plans concerned only QUANTITY . m , whereas , according to the specifications of the general land - use plan for the city of PERSON , the minimum area was set at QUANTITY . m.

In the light of those considerations , ORG thus found that the site development plans and building permits had been illegal . It acquitted the defendants on the grounds that they could not be found to have negligently or intentionally committed offences and that they had made an “ unavoidable and excusable mistake ” in the interpretation of the regional legislation , which was “ obscure and poorly worded ” and interfered with the national law . ORG also took into account the conduct of the administrative authorities , and in particular the following facts : on obtaining the building permits , the defendants had been reassured by the director of the relevant municipal office ; the site - protection prohibitions with which the construction project was at odds did not appear in the land - use plan ; and the competent national authority had not intervened . Lastly , ORG found that in the absence of any investigation concerning the reasons for the conduct of the public bodies , it was not possible to speculate on those reasons .

In the same judgment ORG ordered the confiscation of all the buildings and plots of land , on the ground that , in accordance with its case - law , the application of section CARDINAL of Law no . CARDINAL of DATE was mandatory in the case of illegal site development , even where the property developers had not been convicted .

The judgment was deposited in the court Registry on DATE .

In the meantime , on DATE the applicant company had again asked the PERSON municipal authority for permission to enter into a site development agreement .

On DATE the PERSON municipal authority informed the applicant company that , following the judgment of ORG of DATE , the ownership of the land at ORG , including that belonging to the applicant company , had been transferred to the municipality .

The criminal proceedings described above gave rise to another application to ORG . and Others v. GPE , no . MONEY , DATE ) .

On DATE the applicant company applied to ORG of PERSON seeking the return of its land . It alleged that , in line with case - law of ORG , the confiscation of property belonging to a third party in relation to criminal proceedings could be ordered only to the extent that the latter had participated in the commission of the offence , in terms of either material or mental elements .

In a decision of DATE ORG upheld the applicant company ’s appeal .

The public prosecutor appealed on points of law .

In a judgment of DATE ORG quashed the decision of ORG and remitted the case to ORG .

The applicant company lodged an interlocutory application for review of the enforcement order , seeking the return of its land .

In a decision deposited in the court ’s Registry on DATE , the ORG preliminary investigations judge ( giudice per le indagini preliminari ) dismissed the applicant company ’s application . He first observed that the company ’s grievances concerned neither the existence nor the formal lawfulness of the impugned measure , which was a mandatory administrative sanction that the criminal court was also entitled to impose in respect of the property of third parties which had not taken part in the commission of the offence of unlawful site development offence . The judge found that the public imperative of protecting land had to prevail over the individual interests .

NORP The applicant company appealed on points of law . It emphasised that no construction work had actually been carried out on its land , which had not been the subject of a building permit . By its very nature , it argued , a confiscation measure should be directed solely against land upon which unlawful construction had taken place .

In a judgment of CARDINAL DATE , deposited in the court ’s Registry on DATE , ORG , finding that the PERSON preliminary investigations judge had addressed all the points in dispute giving logical and correct reasons , dismissed the applicant company ’s appeal on points of law . The court noted that the confiscation of the applicant company ’s land had been compliant with its settled case - law whereby the measure provided for in LAW no . CARDINAL of DATE was a mandatory administrative sanction imposed by the criminal court on the basis of the incompatibility of the situation of the property in question with the legislation on unlawful site development , even where the defendants had been acquitted . Property owners who were not parties to the criminal proceedings and who claimed to have acted in good faith would be entitled to seek redress before the civil courts .

According to the information provided by the parties , in DATE the PERSON municipal authority , having regard to the principles set out and the violations found by ORG in its ORG . and Others judgments ( merits and just satisfaction , no . CARDINAL , DATE ) , asked ORG to return the confiscated land to the applicant company . In a decision of DATE the preliminary investigations judge of that court revoked the confiscation measure and ordered the return of the land on account of the fact that , first , the ORG had found a violation of LAW . and Others and , secondly , that the company was to be regarded as a bona fide third party because none of its directors had been found liable for the offence of unlawful site development . The judge ’s decision was entered in the land register on DATE and the applicant company was thus able to recover its property on DATE .

On DATE the applicant company had applied to ORG , seeking compensation for the damage it had sustained as a result of the conduct of the PERSON municipal authority and the consequences for the company ’s assets . It reproached the municipal authority for : ( CARDINAL ) failing to adopt an alternative to the land - use plan ; ( CARDINAL ) failing to clarify the existence of the constraints arising as to the authorised use of the areas concerned by the site development at issue ; and ( CARDINAL ) approving site development procedures which had apparently been lawful but had led to the confiscation of the land and had caused a significant economic loss .

According to the information provided by the parties , the proceedings were still pending , as the expert ’s report evaluating the damage , estimated at MONEY by the applicant company , had not yet been filed .

The applicant company ORG . was the owner of land suitable for building with an area of QUANTITY at GPE .

Under the municipal development scheme ( programma comunale di fabbricazione ) for GPE , approved on DATE , the land in question belonged to zone F – classified as a tourist zone – and was suitable for building within a given volume . It was possible to exceed that volume in the context of hotel or hotel - type development .

Wishing to build a hotel - type residential complex for tourists with a number of accommodation units ( produttiva alberghiera ) , R.I.T.A. Sarda S.r.l . submitted a site development plan ( piano di lottizzazione ) to the competent authorities .

On DATE , under LAW no . CARDINAL of CARDINAL , GPE issued its nulla osta approval for building at a minimum distance of QUANTITY from the sea , provided that once erected the buildings would actually be used for tourist accommodation . That obligation had to be recorded in the land register .

On DATE GPE granted the landscape transformation permit , under PERSON no . CARDINAL/CARDINAL and LAW no . DATE , to ORG . ( see paragraphs CARDINAL below ) .

The municipality of GPE approved the site development plan with final effect on DATE .

On DATE , subject to the regional approval , the municipality of GPE authorised the mayor to issue a derogating building permit allowing a greater construction volume than that provided for by its municipal development scheme , for the purposes of a hotel - type structure ( opere alberghiere ricettive ) . The file shows that the site development plan concerned an area of QUANTITY m.

On DATE GPE issued its final approval of the plan .

In the meantime , on DATE , Regional Law no . CARDINAL/CARDINAL had entered into force . It removed the possibility of derogating from the prohibition on building near the sea and fixed the minimum distance at QUANTITY for dwellings and QUANTITY for hotels . As regards buildings intended for hotel - type use , such as the hotel - type residential complexes for tourists in the present case , they were to be treated as dwellings . Under the same law , the minimum distance of QUANTITY thus had to be maintained , except in the cases where , before DATE , a site development agreement had already been signed and the infrastructure work had already begun .

On DATE the LOC authorised the mayor to grant a building permit to ORG . by way of derogation from the municipal land - use plan .

On DATE the mayor of GPE and PERSON S.r.l . entered into a site development agreement . Under LAW thereof the buildings erected on the site would continue to be used for tourist - hotel purposes and could not be sold off in separate units for DATE . The agreement stipulated that the development plan was compliant with LAW no . CARDINAL and with the other planning regulations ; it certified that the applicant company had paid a deposit of an amount equivalent to the total cost of the amenities . That work was to be paid for by the applicant company , which would also be required to assign PERCENT of the land free of charge to the municipality for the primary infrastructure ( urbanizzazione primaria ) .

On DATE the municipality of GPE issued a permit for the primary infrastructure . On DATE the municipality issued the building permit for the construction work .

On DATE , following the entry into force on DATE ( see paragraph CARDINAL above ) of Regional Law no . CARDINAL/CARDINAL , amending Regional Law no . CARDINAL , the regional authority revoked certain permits that had been granted under the previous legislation . The applicant company was not affected .

The work began in DATE . In DATE CARDINAL housing units , CARDINAL of the total number , had been built . A number of them had been sold to individuals , subject to a clause stipulating that the property had to remain assigned , for DATE , for tourist - hotel use .

On DATE ORG . , which was seeking new partners to optimise the project and share the risks , asked the municipal authority whether the sale of the buildings to third parties was compatible with the development agreement . On DATE the municipal authority stated that the agreement had been drafted clearly enough ; it therefore did not need clarification . It gave a favourable opinion as to the possibility of selling the buildings , but not in single units and provided the intended use of the properties remained unchanged .

On DATE the municipal authority , again approached by the applicant company , confirmed the opinion issued on DATE .

At an unknown date , PERSON . entered into a preliminary contract of sale with ORG . concerning part of the land covered by the development agreement and certain buildings erected in the meantime . In addition , on DATE , ORG . entered into an agreement ( contratto di appalto ) with ORG . under which the latter undertook to carry out construction work on the land forming the object of the preliminary contract of sale .

With a view to becoming the owner of the land and buildings , on DATE ORG . also signed agreements with a travel agent for the purpose of renting out units on a DATE basis .

On DATE ORG . sold to ORG . CARDINAL sq . m of land and the buildings known as “ CCARDINAL ” , namely CARDINAL units for residential - tourist use . In addition to the buildings ORG . assigned the construction rights to ORG . The price of the transaction was fixed at MONEY ( ITL ) , equivalent to QUANTITY ( ORG ) .

In DATE R.I.T.A. NORP S.r.l . was the owner of CARDINAL housing units and the plots of land covered by the site development plan , with the exception of plot no . CARDINAL and those previously sold to ORG . , which was the owner of the land it had purchased and of CARDINAL units .

On DATE the municipal authority approved the transfer ( voltura ) of the building permit concerning the land and buildings purchased by ORG .

On DATE , further to a request by ORG . for a planning certificate in respect of the relevant property for the period DATE , the municipal authority stated that the development agreement signed with ORG . and the permits granted were compatible with the planning regulations in force at the material time , and in particular with Regional Law no . DATE , and it therefore considered that the offence of unlawful site development was not made out in the circumstances .

In DATE the public prosecutor of ORG opened a criminal investigation in respect of PERSON and PERSON , the legal representatives of the applicant companies . They were suspected of a number of offences , including that of unlawful site development within the meaning of LAW no . CARDINAL for building too close to the sea and without planning permission , together with fraud for changing the intended use of the properties in breach of the development agreement .

On DATE a court order restraining disposal of property was imposed on the land and buildings .

DATE . In a decision of CARDINAL DATE the ORG returned the land and buildings to their rightful owners .

In a judgment of DATE the ORG acquitted GPE and GPE on the merits in respect of all the offences , with the exception of that of unlawful site development , the prosecution of which was declared statute - barred .

Having regard to the entry into force of Regional Law no . DATE ( see paragraph CARDINAL above ) and the new minimum distance from the sea introduced therein , ORG took the view that the municipality of GPE should never have issued the building permits and that the previously issued authorisations could not legitimise the situation . The building permits were thus in breach of the law or , at least , ineffective ( inefficaci ) . Although erected in accordance with the permits issued by the municipal authority , the constructions were thus incompatible with the statutory provisions and their existence thus constituted unlawful site development . In addition , the sale of the housing units to individuals cast doubt on their continued use for tourist - hotel purposes and this change of purpose also placed the buildings in breach of the law . In conclusion , ORG ordered the confiscation of the property previously placed under a restraining order and the transfer of ownership to the municipality of GPE within the meaning of section CARDINAL of Law no . CARDINAL .

As regards , in particular , the charge of fraud , the court took the view that the offence was not made out because there had been no financial loss to the municipality , since the cost of the infrastructure work remained the same even if the intended use changed . In addition , the mental element , that is to say the existence of intent to defraud the municipality , had not been proved in view of the fact that the sale had been carried out as a result of the financial difficulties of ORG . Moreover , the court pointed out that the municipal authority had issued the company with a favourable opinion as regards the sale of the buildings .

In a judgment of DATE ORG upheld ORG finding of dismissal ( non doversi procedere ) in respect of the offence which was statute - barred and reiterated that the municipality of GPE should not have issued the building permits , which were illegal and in any event ineffective . The constructions erected were de facto incompatible with the regional legislation prohibiting them . In addition , DATE and DATE most of the housing units had been sold off , thus changing their intended use . As to the charge of fraud , ORG upheld the acquittal of the applicant GPE legal representatives on the basis of the same considerations , on this point , as those of ORG . It confirmed the confiscation order .

Mr GPE and Mr PERSON appealed on points of law but their appeal was dismissed by ORG in a judgment of DATE .

According to the information provided by the Government , on DATE the individual purchasers of the confiscated property still retained full possession . Shortly before that , on DATE , a resolution of the municipality of GPE had acknowledged the genuine interest of the community in keeping the confiscated complex , referring in particular to the possibility of using the housing to cope with situations of urgency in the event that the local authorities should decide to assign the use of the property , directly or indirectly , for rent by persons with low income .

The company PERSON . and Mr PERSON were the coowners , each with a PERCENT interest , of a plot of land at ORG and PERSON ( GPE di GPE ) with a total surface area of CARDINAL sq . m. The land - use plan provided solely for the possibility of building hotel - type residential complexes for tourists on that land .

DATE . On DATE the applicants applied for a building permit to erect a tourist residential complex consisting of CARDINAL houses and sports facilities .

On DATE the municipality of GPE di GPE issued the building permit .

After verification by the municipality , a number of variations from the plan were noted . The municipality ordered the suspension of the work on DATE .

On DATE the applicants filed an amended plan ( variante in corso GPE ) , which provided for fewer houses ( CARDINAL instead of CARDINAL ) and restricted the construction area . This amended plan sought to regularise the work as already carried out , within the meaning of PERSON no . DATE .

On DATE the mayor of GPE di GPE cancelled the order suspending the work on the ground that the discrepancies in relation to the initial construction project could be regularised by means of the amended plan submitted in respect of ongoing work under LAW of PERSON no . DATE .

On DATE the inspector of the municipality of GPE di PERSON noted that the work was in conformity with the amended plan . The work was pursued .

In DATE the public prosecutor of GPE di GPE opened an investigation in respect of PERSON , in his capacity as co - owner of the property , and CARDINAL others : a director of the company , CARDINAL signatories to the development project and CARDINAL foremen . They were all suspected of committing a number of offences , in particular that of unlawful site development within the meaning of section CARDINAL of Law no . DATE .

In a judgment of CARDINAL DATE the GPE di ORG acquitted all the defendants on the merits ( perché il fatto non sussiste ) in respect of all the charges , except for the offence of unlawful site development , the prosecution of which it declared statute - barred . The court noted that the project had provided for the construction of residences for hotel - type tourist accommodation . However , the structural specifications of the buildings ( caratteristiche strutturali ) and the evidence suggested that the real purpose of the project was the sale of houses to individuals , thus casting doubt on the intended hotel - type tourist use . This change of purpose rendered the site development unlawful . In conclusion , the court ordered the confiscation of the land and buildings and the transfer of the property to the municipality of GPE di GPE under LAW no . CARDINAL of DATE .

In a judgment of DATE the GPE di ORG acquitted the applicants on the merits ( perché il fatto non sussiste ) in respect of all the charges , including that of unlawful site development . It revoked the confiscation of the property and ordered its return to the owners .

ORG took the view , in particular , that the approved project was compatible with the land - use plan and the planning regulations . Given that there had been no preliminary or final contract of sale , there was no evidence of any change in the purpose of the constructions and therefore no unlawful development .

In a judgment of DATE , deposited in the Registry on DATE , ORG quashed the judgment of ORG without remitting it , finding that the change in purpose of the constructions was proved by statements made by third parties and by documents in the file . For ORG , the offence of unlawful site development ( the prosecution of which was statute - barred , entailing the dismissal of the case ) had thus indeed been knowingly committed by the defendants . Consequently , the property in question again became subject to the confiscation order made at first instance by the GPE di ORG . The acquittals were maintained .

According to an expert ’s report of CARDINAL DATE , the expert having been appointed by the applicants , the complex confiscated from the latter was in an advanced state of abandonment and neglect . In the applicants’ submission , the municipal authority , which was the owner of the property , had not carried out any work to keep the open spaces maintained .


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

On TIME son ( born in DATE ) took part in “ AutoQuest ” , a location - based driving game in the city of GPE . In accordance with the rules of the game , the participants were divided into teams and each team had to move by car to different locations in the city . On arrival at an intermediary destination each team had to solve a riddle in order to establish the next destination point , and the winner was the team that reached the final destination first .

The applicant ’s son was in the team of P. , who was the driver . During the game ORG lost control of the car and collided with a pillar . As a result of the accident , PERSON was injured and his CARDINAL passengers , including the applicant ’s son , died .

On DATE the GPE police department opened an investigation under LAW of LAW in connection with the fatal car accident .

On DATE the applicant was admitted to the proceedings as a victim .

On DATE , in reply to an enquiry from the applicant concerning the investigation , the GPE prosecutor ’s office informed him that the case was complicated and the police had to order various expert examinations ; the activities of the organisers of the driving game were also being examined .

On DATE the police refused to institute criminal proceedings against the organisers of the driving game .

On DATE the board of forensic psychiatric experts completed their examination and found that at the time of the accident P. had been aware of his actions and able to control them . Following the injuries sustained in the accident , P. had developed a chronic mental disability . He was diagnosed with a complicated organic impairment of the brain and amnestic syndrome . The experts found that at the time of the examination P. had no longer been aware of his actions or able to control them and that he should therefore undergo mandatory psychiatric treatment .

On DATE , in reply to a complaint lodged by the applicant about the ineffectiveness of the investigation , the GPE prosecutor ’s office maintained that the criminal investigation was being carried out in accordance with the requirements of LAW and that there had been no grounds to change the investigator in the criminal proceedings .

On DATE the case file was referred to the NORP ORG of Donetsk ( “ the first - instance court ” ) in order to determine whether it was appropriate to apply compulsory medical measures in respect of P.

On DATE the chairman of ORG requested that the chairman of the first - instance court ensure prompt consideration of the criminal case . He noted that the court hearings had been repeatedly adjourned and the length of the proceedings had not been reasonable .

On DATE the board of forensic psychiatric experts issued a report repeating their previous conclusions as to P. ’s mental state .

On DATE the first - instance court found that P. had committed a crime by violating the traffic safety regulations , which had resulted in the death of the applicant ’s son and the CARDINAL other passengers . The court noted that P. had collided with a pillar because he had exceeded the speed limits and had lost control of the car . It further noted that , according to the forensic psychiatric examination reports of DATE and CARDINAL DATE , P. had been mentally aware of and able to control his actions at the time of the accident but had later developed a mental disability ; at the time of the examinations , P. had been suffering from an organic brain impairment and amnestic syndrome ; as a result , he had no longer been aware of or able to control his actions and needed to be provided with compulsory medical treatment , namely outpatient psychiatric assistance . Bearing those medical reports in mind , the court ordered the compulsory medical measures .

The applicant appealed , claiming that he was a doctor by profession and could see that the medical findings were wrong . He further complained of a breach of procedural rules , arguing that PERSON should have been brought to the court room for the hearings .

On DATE ORG of Appeal quashed the decision of DATE and remitted the case for additional pre - trial investigation . The court noted that there were witness statements , including those obtained at the pre - trial stage of the proceedings , which suggested that at the time of the accident P. might have made a sharp turn in order to avoid hitting a pedestrian who had been crossing the road . The court considered that the facts had not been established properly and that additional investigatory measures were required .

Following the additional investigation , the case was referred to the first - instance court on DATE . The investigative authorities considered that P. had exceeded the speed limit , in violation of the traffic regulations ; he had lost control of the car and caused the accident which had resulted in the deaths of his CARDINAL passengers . P. ’s actions amounted to a crime . However , due to the mental disability that he had developed after the accident , it was proposed that the court impose compulsory medical measures in respect of P.

As of CARDINAL DATE the proceedings were pending .


CASE OF CINGILLI HOLDİNG A.Ş. AND CINGILLIOGLU v. TURKEY

Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicants were the main shareholders of ORG , established in DATE . In DATE PERSON was ranked the fifth largest private bank in GPE , with CARDINAL branches and CARDINAL employees .

By a decision dated DATE ( no . CARDINAL ) , ORG ( Bankalar Düzenleme ve PERSON – hereinafter referred to as “ the Board ” ) decided to transfer the management and control of PERSON to ORG ( Tassarruf Mevduat Sigorta Fonu – hereinafter “ the Fund ” ) , pursuant to section CARDINAL ( CARDINAL ) of LAW ( Law no . DATE ) . In its decision , ORG held that the assets of PERSON were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system . Accordingly , PERSON ’s management and control , and the privileges of its shareholders except for dividends , were transferred to the ORG . The ORG also confiscated all properties belonging to PERSON .

On DATE , the applicant company brought administrative proceedings against ORG ( Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “ the NORP ” ) before ORG , seeking the annulment of the decision of DATE regarding the transfer of PERSON to the Fund .

ORG found that it lacked jurisdiction and transferred the case to ORG .

NORP In its submissions before ORG , the applicant company claimed that its property rights had been violated . It also raised a plea of unconstitutionality under section CARDINAL of LAW . The applicant company further stated that prior to DATE , PERSON had never encountered major financial problems . It was pointed out that pursuant to section CARDINAL ( CARDINAL ) of the LAW , a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures . However , no such warning had been given in the instant case . Secondly , ORG had not claimed that PERSON ’s financial situation was so weak that it could not be strengthened even if specific measures were taken . Lastly , the applicant company stated that following the transfer of the bank to the ORG , a ORG composed of the ORG ’s officials had exonerated the former managers of PERSON , holding that they had not been at fault in the incident leading to the bank ’s transfer .

After examining the file , on DATE ORG dismissed the case . It held that the takeover of the bank by the ORG had been in accordance with LAW . The applicant company lodged an appeal .

On DATE ORG of ORG decided to quash the decision of DATE . In its judgment , the court held that prior to ordering the transfer of PERSON to the ORG , the ORG should have carried out an objective evaluation of the bank ’s financial situation . The court also concluded that the ORG should first have ordered PERSON to take specific measures in accordance with section CARDINAL ( CARDINAL ) of LAW before applying section CARDINAL ( CARDINAL ) of the LAW .

On DATE a request for rectification lodged by the ORG was refused .

The case was remitted to ORG , which delivered its decision on DATE , upholding the decision of ORG of ORG . In its decision ORG held that :

“ ... PERSON did not have any serious financial problems until the economic crisis in DATE . The amount of the bank ’s risky credit in Government Bonds for Domestic Borrowing aimed at securing ORG debt was not too high compared to its total credit , its asset quality was high due to its CARDINAL affiliate banks abroad , and furthermore , the major shareholders had not targeted the resources of the bank . Although PERSON had been able to resolve its liquidity problem and it had fulfilled all obligations towards individual and corporate clients using its own assets , it was decided that it fell within the scope of section CARDINAL of LAW . It is therefore understood that the administrative act pertaining to the taking over of PERSON by ORG based on paragraphs ( b ) and ( d ) of section CARDINAL of LAW , without investigating any further possible options or specific measures to enable the ORG to establish a balance of liquidity , was unlawful .

In the light of the foregoing , ORG decision of DATE ordering the takeover of ORG by the ORG is unanimously annulled . ”

A further appeal and a request for rectification lodged by the ORG were rejected on DATE and DATE respectively . The final decision was served on the applicant company ’s representative on DATE .

In the meantime , while the proceedings against the ORG were still pending , on DATE the ORG entered into an agreement with the ORG bank , and sold PERSON to the latter for MONEY .

On DATE the second applicant brought administrative proceedings against the ORG in ORG , seeking the annulment of the agreement to sell PERSON to ORG .

Given that the transfer of PERSON to the ORG had been found to be unlawful by ORG of ORG , on DATE ORG annulled the agreement entered into by the ORG and ORG on DATE . In its decision ORG held that :

“ ... It can be seen that , given the shareholding structure of PERSON before the transfer , PERCENT was owned by ORG , that the claimant who owned shares in this company was a shareholder of the aforementioned bank , that all shares of PERSON were taken over by ORG pursuant to section CARDINAL of the Law no . DATE , that the claim requesting the annulment of ORG decision dated DATE regarding this taking over was dismissed by a judgment on DATE delivered by ORG , and that this judgment was subsequently quashed by the judgment of DATE of ORG .

In its judgment , ORG of ORG held that the taking over of PERSON by ORG based on Section CARDINAL paragraphs ( b ) to ( d ) of LAW was unlawful and it accordingly declared the act as null and void . It was decided that the decision regarding the taking over of the bank had been adopted without investigating the possible options to enable the bank to establish a balance of liquidity and taking the relevant precautions , given that it would have been possible for the bank to continue its banking activities since it did not have any serious financial problems until the financial crisis of DATE , the amount of the bank ’s risky credit in Government Bonds for Domestic Borrowing aimed at securing ORG debt was not too high compared to its total credit , its asset quality was high compared to the CARDINAL affiliate banks based abroad , the majority shareholders had not targeted the resources of the bank , the bank had been included within the scope of section CARDINAL of Law no . DATE to enable it to the resolve its liquidity problem and it had fulfilled all obligations towards individual and corporate clients using its own assets .

It is therefore understood that , pursuant to the annulment of the decision pertaining the taking over of PERSON by ORG by ORG of ORG , the subsequent sale of ORG has also become unlawful and the decision that is the subject of these proceedings is therefore unlawful . This act is therefore declared null and void . ”

An appeal and a request for rectification lodged by the ORG were rejected on DATE and DATE respectively .

On CARDINAL DATE the second applicant requested the ORG to comply with ORG judgments and to enforce them . Relying on the restitutio in integrum principle , she requested that PERSON be returned to its previous owners .

On DATE the ORG informed the second applicant that it would be impossible to enforce the judgments as , following its sale to ORG , PERSON had been struck off the commercial register .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra

The applicants were born in DATE , DATE and DATE respectively and lived before their convictions in GPE , GPE and GPE .

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

On DATE the applicant was arrested on suspicion of having committed a crime .

On DATE ORG of GPE ( “ the ORG ” ) remanded the applicant in custody .

On DATE and DATE , and DATE ORG extended the applicant ’s detention until DATE , CARDINAL DATE and CARDINAL DATE respectively .

On DATE ORG convicted the applicant of robbery and sentenced him to DATE and CARDINAL months’ imprisonment . The applicant appealed .

During the hearings before ORG on DATE , DATE , CARDINAL DATE , and CARDINAL DATE , and DATE , DATE , DATE and DATE , and CARDINAL , DATE and DATE the applicant was held in a metal cage .

On DATE ORG upheld the judgment of DATE on appeal .

On DATE the ORG of GPE convicted the applicant of embezzlement and the illegal acquisition , storage , transfer , transportation and possession of firearms and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG ( “ the ORG ” ) convicted the applicant of fraud committed through abuse of position and sentenced him to a fine .

On DATE ORG of the Chuvash Republic reduced the applicant ’s fine .

NORP However , on DATE the Presidium of ORG of GPE granted a cassation appeal lodged by ORG and quashed the judgment of CARDINAL DATE and the appeal decision of CARDINAL DATE . The case was remitted to ORG for fresh examination .

On DATE ORG convicted the applicant on CARDINAL counts of fraud , acquitted him of a further CARDINAL counts of fraud and sentenced him to DATE imprisonment , taking into account the fact that the applicant had not fully served the sentence imposed on him on DATE .

On DATE ORG of the Chuvash Republic reclassified the CARDINAL counts of fraud on which the applicant had been convicted and sentenced him to DATE imprisonment . As regards the CARDINAL counts of fraud of which the applicant had been acquitted , ORG quashed the judgment on appeal and remitted the case for fresh examination . Those proceedings are still pending .

During the proceedings before ORG and ORG of GPE the applicant was confined in a metal cage .

On DATE the ORG of GPE ( “ the ORG ” ) remanded the applicant in custody .

On DATE ORG extended the applicant ’s detention .

On DATE ORG convicted the applicant of inflicting grievous bodily harm and sentenced him to CARDINAL years’ imprisonment .

NORP The applicant was confined in a metal cage when the custodial measure was applied to him , when it was subsequently extended and during the trial .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The first applicant , Mr PERSON , a NORP national , was born in DATE . He died on DATE . The second applicant , PERSON PERSON , a NORP national , was born in DATE . The applicants were initially represented before the ORG by Mr W. Tomczyk , and , subsequently by PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr J. PERSON , succeeded by Ms J. Chrzanowska , of ORG .

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

NORP On DATE , following a complaint from a bank , the ORG - Stare Miasto Police opened an inquiry ( dochodzenie ) into attempted fraud by PERSON They relied on LAW .

On DATE the PERSON - Stare Miasto District Prosecutor opened an investigation ( CARDINAL ) into the forgery of a cheque for MONEY ( ORG ) and the attempted fraudulent use of that cheque . The prosecutor relied on ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW .

On DATE the ORG - Stare Miasto District Prosecutor made an application to ORG for the interception and recording of the content of the applicants’ telephone conversations . The prosecutor ’s application was made in connection with the investigation against PERSON and other persons suspected of the commission of an offence under LAW and other offences . ORG requested the court to issue a warrant authorising the interception of the content of the applicants’ telephone conversations , which

“ may concern the activities of an organised group involved in the putting into circulation of forged securities and aggravated fraud , or indicate planned or already committed offences ” .

The prosecutor relied on Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) , CARDINAL § CARDINAL and CARDINAL of the Code of Criminal Procedure .

Among the reasons for her application , the prosecutor stated as follows :

“ So far it has been established that on DATE PERSON attempted to defraud the ORG in ORG of CARDINAL USD ( the equivalent of MONEY ) by using a ORG cheque issued on DATE . It is clear from the evidence obtained in the investigation that the said cheque was forged . Cheques from this bank were removed from circulation in DATE , that is , DATE after ORG acquired ORG .

It further appears from the evidence that the said cheque originated from PERSON [ the first applicant ] , and that , in cooperation with other persons , he intends to use these documents [ cheques ] to defraud large sums of money in the near future . There exists a reasonable suspicion that PERSON possesses a large number of forged cheques ( CARDINAL ) of the same NORP bank to the value of CARDINAL ORG each ...

In connection with the above , at the current stage of the investigation it is necessary to establish the source from which the said securities originated and PERSON contact with persons who are cooperating with him in order to put those documents into circulation with a view to defrauding large sums of money . ... ”

On DATE ORG ( PERSON ) granted the prosecutor ’s application for leave to intercept the applicants’ telephone conversations for DATE . That decision was given in the proceedings against PERSON and others and in respect of the offence under LAW and other offences . The court decided to delay the serving of its decision on the applicants until the end of the investigation . It authorised QUANTITY police officers to make a transcript of the recorded conversations and another officer to read the transcript . The court ordered that the transcript be classified and transmitted to the PERSON - Stare Miasto District Prosecutor ’s Office .

The court gave the following reasons in its decision :

On DATE the first applicant and GPE were arrested by the police at a bank in PERSON .

On DATE ORG charged the first applicant with CARDINAL offences . The first charge was that of putting into circulation between DATE and DATE , jointly with others , of a forged ORG cheque for CARDINAL and attempted fraudulent use of that cheque ( ORG CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ) . Shortly afterwards , the second applicant was charged with the same offence . The second charge against the first applicant was that of storing and transporting on DATE a forged ORG cheque for USD MONEY ( Article CARDINAL § CARDINAL of LAW ) .

On DATE the FAC remanded the first applicant in custody on suspicion of the offences referred to above . His pre - trial detention was extended on a number of occasions . In a decision of DATE , ORG found that the evidence obtained in the case indicated that the first applicant had acted as part of an international criminal group involved in forging securities and putting them into circulation in GPE and abroad . On DATE the first applicant was released from detention and other , non - custodial , measures were applied .

On DATE the FAC remanded the second applicant in custody on suspicion of the offence referred to above . On DATE the court released him from detention and imposed non - custodial preventive measures instead .

On DATE the investigation was taken over by ORG at ORG ( ORG ) .

On DATE the ORG amended the charges against the applicants . He specified that the applicants had acted jointly with GPE and GPE The prosecutor additionally invoked LAW , which signified that the fraudulent use of the cheque involved a considerable amount of money .

By a letter dated DATE ORG informed the applicants that on the basis of ORG decision of DATE , investigative measures – namely , the interception of telephone conversations – had been carried out pursuant to LAW ( “ the ORG ” ) . The prosecutor further informed the applicants that the relevant decision and the results of the interception could be consulted at the secret registry of the office of ORG .

On DATE the applicants lodged an appeal ( zażalenie ) against ORG decision of DATE authorising the warrant , alleging that it had been unlawful on CARDINAL grounds .

Firstly , they argued that ORG had erroneously applied LAW ORG in authorising the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in LAW . They noted that the aim of ORG decision had been to establish the source of the forged cheques . However , at the material time LAW of the ORG did not allow for the application of such measures in respect of the offence of forgery of cheques . Subparagraph CARDINAL of that provision authorised the interception of telephone conversations only in respect of the offence of counterfeiting money ( fałszowanie pieniędzy ) . They underlined that the relevant provision had been amended to include the offence of forgery of cheques , but only with effect from DATE .

Secondly , the applicants alleged that ORG had incorrectly applied LAW ORG in authorising a police officer and an interpreter to examine the recorded conversations . They submitted that only the court or the prosecutor , and in urgent cases the police with the agreement of the court or the prosecutor , had the right to do so . However , in their case the recordings had been examined by a police officer and a translator without the required authorisation by the prosecutor .

On DATE ORG ( FAC ) dismissed the ORG appeal . The decision was served on the ORG counsel on CARDINAL DATE . ORG held as follows :

“ ORG finds that the present appeal is unfounded and can not be sustained .

The appeal ’s main argument is the assertion that since PERSON and PERSON [ the applicants ] were charged with the commission of an offence under LAW [ putting into circulation a forged cheque ] , and since this offence was not one of the offences listed in LAW ORG at the time of issuing the decision , the interception and recording of their [ telephone ] conversations was not permitted . However , such an argument can not be upheld for the following reasons .

The investigation carried out by the PERSON - Stare Miasto District Prosecutor did in fact relate to the putting into circulation of forged securities , but by the members of an organised [ criminal ] group , in other words , the offence under LAW ( CARDINAL ) of the ORG , in respect of which it was permitted to intercept and record telephone conversations at the date when the decision was issued . According to the evidence obtained before the issuing of the decision , PERSON and PERSON [ the applicants ] were indeed persons suspected of ( osoby podejrzane ) acting as part of an organised group , as indicated by the passage from the impugned decision which states :

“ the content [ of those conversations ] may concern the activities of an organised group involved in the putting into circulation ... ” .

It has to be reiterated that a person suspected of [ the commission of an offence ] ( which is referred to in LAW ORG ) in respect of whom it is permitted to intercept and record telephone conversations is a person “ who is suspected of having committed an offence , but who has not yet been formally charged . In respect of such a person there is a supposition that he / she has committed an offence ; however , there is as yet no reasonable suspicion of their having committed an offence , and only such reasonable suspicion constitutes a ground to make that person a suspect ( T. Grzegorczyk , PERSON . PERSON . ORG uzupełnione ... [ Code of Criminal Procedure , Commentary , CARDINALrd revised edition ] ... ) .

Having regard to the foregoing , it has to be stated that the charge [ of committing an offence ] under LAW laid against the applicants did not provide a ground for tapping their telephones as that was not provided for by LAW CARDINAL of the ORG ; nevertheless , the fact that at the same time they were persons suspected of membership of an organised group and of carrying out activities within the framework of such a group did constitute grounds for issuing the impugned decision on the interception and recording of telephone conversations .

Thus , the warrant was issued in accordance with the law and consequently there are no grounds for sustaining the arguments put forward in the appeal ; moreover , the court was able to authorise a police officer to examine the recordings of the intercepted telephone conversations under LAW of the ORG . The appellant is not right in claiming that under LAW only the prosecutor has the right to examine recorded conversations , because the court has that right also , and with the permission of these CARDINAL authorities ( and not only of the prosecutor ) , so also do the police . It is further obvious that in the case of a recording in a foreign language all of the above authorities have the right ( and even a duty ) to seek the assistance of a sworn translator . ... ”

On DATE the ORG filed a bill of indictment with ORG against CARDINAL accused . The applicants were charged with putting into circulation DATE and DATE , jointly with GPE and GPE , a forged ORG cheque for CARDINAL ( the equivalent of MONEY ( ORG ) ) and attempting to use that cheque fraudulently . The prosecutor relied on LAW in conjunction with LAW and LAW . The first applicant was also charged with storing and transporting on DATE a forged ORG cheque for MONEY ( Article CARDINAL § CARDINAL of LAW ) . CARDINAL accused were charged with acting in an organised criminal group .

The warrant authorising the telephone tapping and the transcript of the intercepted conversations was deposited in the classified section of the case file . On DATE the ORG counsel requested that ORG be served with a copy of the warrant . On DATE the applicant ’s counsel repeated his request and argued that the decision should not be treated as classified .

The trial began on an unspecified date in DATE . At a hearing held on DATE ORG refused to serve a copy of the warrant of DATE on the ORG counsel . It found that the warrant had been classified under LAW and that the circumstances justifying that decision had not ceased to exist .

At a hearing held on DATE the trial court decided that the case against the first applicant should be severed from the main proceedings . It further stayed the proceedings against him having regard to his poor medical condition .

At a hearing held on DATE CARDINAL the prosecutor requested the trial court to rule that the transcript of the intercepted telephone conversations be adduced in evidence but remain confidential . At an earlier hearing on DATE , counsel for the second applicant had requested that the confidential evidence be declassified . On DATE the trial court declassified the warrant of DATE and the transcript of the intercepted conversations . That decision was necessary in order to enable the lay members of the trial court , who did not have the relevant security clearance , to hear the evidence obtained under the warrant .

On DATE counsel for the second applicant objected to the prosecutor ’s request , arguing that the evidence obtained as a result of the telephone tapping was inadmissible in law . He relied on similar arguments to those made in his appeal against ORG decision of DATE . In particular , he claimed that the impugned decision had authorised the interception of telephone conversations in respect of an offence which was not included in the list of offences set out in Article CARDINAL § CARDINAL of the ORG .

The second applicant ’s representative further considered that his arguments were not undermined by ORG decision of CARDINAL DATE dismissing his appeal . ORG had justified the decision authorising the interception of the telephone conversations by the fact that the applicants were persons suspected of acting in an organised criminal group , and had relied on a passage from ORG decision of DATE ( “ the content [ of those conversations ] may concern the activities of an organised group involved in the putting into circulation ... ” ) . However , the counsel underlined that the impugned passage was nowhere to be found in the decision of ORG .

Only if ORG assertion that the telephone tapping had been carried out in connection with the activities of an organised criminal group was DATE and there was no indication in the decision to open the inquiry or in the bill of indictment that that was the case DATE would ORG have been competent to order such a measure . Lastly , the applicant ’s representative argued that the trial court was not bound by any earlier decision pronounced with regard to the admissibility of evidence .

At a hearing held on DATE the trial court dismissed the applicants’ challenge to the admissibility of the impugned evidence . It found that ORG had not indicated in the operative part of its decision the precise subparagraph of the provision listing the offences under which the interception of conversations could be authorised . However , in the reasons for its decision ORG had justified the order for the interception on the ground that some of the suspected persons were cooperating with a view to defrauding considerable sums of money . In addition , ORG had held in its decision that the content of the conversations could relate to the activities of an organised criminal group . In consequence , it could not be sustained that the evidence obtained under the warrant was inadmissible in law .

At a hearing on DATE the trial court heard the intercepted telephone conversations .

On DATE the ORG gave its judgment . The second applicant and GPE were convicted of putting into circulation a forged ORG cheque for CARDINAL ( the equivalent of ORG ) , and of attempted fraudulent use of that cheque . They were sentenced to DATE imprisonment .

The second applicant lodged an appeal against the first - instance judgment . He alleged , inter alia , that the trial court had not properly reasoned its judgment . In particular , he pointed to the fact that the trial court had heard the evidence obtained as a result of the telephone tapping but had failed to refer to it in the judgment .

On DATE ORG amended the firstinstance judgment in respect of the second applicant and upheld it for the remainder . It held that the second applicant ’s appeal was partly justified ; however none of the alleged breaches of the criminal procedure was confirmed . ORG agreed with the appellant that he could not be considered to have been an accomplice in the putting into circulation of the forged cheque . It held instead that the second applicant was guilty of aiding and abetting ORG in putting into circulation a forged ORG cheque , and fraudulent use of that cheque . Accordingly , it sentenced him to a suspended term of DATE imprisonment .

With regard to the intercepted telephone conversations and the fact that the trial court had not relied on them as the basis for establishing the facts of the case , ORG agreed with the lower court that that evidence was not relevant to the case . ORG noted that the lack of any reference to the evidence amounted to a breach of Article CARDINAL § CARDINAL of the ORG ; however , this shortcoming had no effect on the validity of the first - instance judgment or the possibility of having it properly reviewed .

The second applicant lodged a cassation appeal .

On DATE ORG dismissed his cassation appeal as manifestly ill - founded . In such a case ORG was not required to provide written reasons for its decision .

Having regard to the death of the first applicant , ORG discontinued the proceedings against him on DATE .

Article CARDINAL § CARDINAL of LAW , as in force at the relevant time , provided :

“ Following the institution of proceedings , a court , acting at the request of a prosecutor , may order the interception and recording of telephone conversations with a view to obtaining evidence for pending proceedings or preventing the commission of a new offence . ”

Article CARDINAL § CARDINAL of the ORG provided at the relevant time , in so far as relevant :

“ The interception and recording of telephone conversations is permitted only when the pending proceedings , or reasonable suspicion of a new offence being committed , concern :

CARDINAL/ manslaughter ,

CARDINAL/ the counterfeiting of money ,

CARDINAL an organised criminal group ,

CARDINAL property of considerable value ,

Article CARDINAL § CARDINAL read :

“ The interception and recording of telephone conversations is permitted in respect of a suspected person ( osoba podejrzana ) , an accused ( oskarżony ) , a victim or other person whom an accused may contact , or a person who may be connected with a perpetrator or with an impending offence . ”

Article CARDINAL § CARDINAL provided :

“ A court or a prosecutor has the right to play the recordings , and in cases of urgency so also do the police , with the authorisation of a court or a prosecutor . ”

Article CARDINAL § CARDINAL ( CARDINAL ) was amended with the effect from CARDINAL DATE . Subsequently , that provision authorised the use of interception measures in the case of offences concerning forgery and use of forged money , cheques and other similar instruments .

Article CARDINAL § CARDINAL read as follows :

“ The interception and recording of telephone conversations may be carried out for a period of DATE , with a possibility of extending it , in particularly justified cases , for another period of DATE . ”

Paragraph CARDINAL of Article CARDINAL provided , in so far as relevant :

“ After the termination of the interception a court shall order the destruction of the recordings if they are not relevant to the criminal proceedings ; ... ”

Article CARDINAL read :

“ The serving of the decision on the interception and recording of telephone conversations on the person concerned may be postponed for the time necessary for the interests of the case , but until no later than the termination of the proceedings ” .

Article CARDINAL specified that a decision on the interception and recording of telephone conversations could be appealed against .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Reasonableness of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Tribunal established by law)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On DATE charges of fraud were brought against the applicant , and he signed a written undertaking not to leave his place of residence . Some of the applicant ’s assets , specifically his flat , parking spaces and CARDINAL cars , were frozen .

On DATE the investigation of the criminal case against the applicant was terminated and he began examining the case file .

NORP However , on DATE the investigation resumed .

On DATE ORG of GPE decided that in view of the seriousness of the charges faced by the applicant , the risk of his absconding , as well as the necessity to “ secure the enforcement of the conviction ” the applicant should be placed in pre - trial detention .

On DATE the applicant was remanded in custody and placed in a specialised detention facility at ORG no . CARDINAL owing to a provisional diagnosis of acute myocardial infarction , arterial hypertension and an exacerbating duodenal ulcer . He stayed there until DATE , following which he was transferred to a remand prison . The attending doctor found the applicant fit to participate in the investigative actions .

In the meantime , on DATE the investigation was completed and the applicant was informed that he could start to examine the case file .

On DATE the applicant brought an application for release . He argued that there was no indication that he would abscond or otherwise obstruct the administration of justice : the applicant had no criminal record ; he had a family , a permanent job and a permanent place of residence , and he suffered from a number of chronic cardiovascular and surgical diseases ; the choice of a custodial measure had thus not been justified .

On DATE the GPE ORG examined the applicant ’s arguments with references to his medical documents , documents attesting to his family situation , his positive references from work , and the arguments by the investigator to the effect that the applicant had ignored the investigator ’s summonses to appear on CARDINAL and DATE , CARDINAL and DATE and DATE without giving reasons , that he had often been TIME late to appear before the investigator , that he could appear for TIME and then leave saying that nobody could tell him when to come and when to leave , and that throughout DATE , in the eyes of the investigator , the applicant had been out of contact . Having considered the reasons which prompted the choice of preventive measure , in particular , the seriousness of the charges against the applicant and his conduct during the pre - trial investigation , ORG held that there were no grounds for releasing the applicant .

On DATE ORG upheld the above decision on appeal .

On DATE , DATE and DATE the Deputy Prosecutor General extended the applicant ’s detention until DATE , CARDINAL DATE and DATE respectively .

Meanwhile , on DATE the forensic medical expert did not confirm the applicant ’s medical diagnosis .

On DATE the criminal case against the applicant was submitted to the GPE ORG for trial .

The GPE ORG repeatedly extended the applicant ’s detention pending trial . Such extensions were granted upon the prosecutor ’s request on DATE , DATE , DATE , DATE , DATE and DATE . On each occasion ORG referred to the seriousness of the charges against the applicant and the risk of his absconding or otherwise obstructing justice , and the absence of grounds for changing the preventive measure imposed . Those decisions were upheld on appeal by ORG on DATE , CARDINAL DATE , an unknown date and DATE , DATE and CARDINAL DATE respectively .

On DATE the GPE LOC sitting in a bench composed of Judge PERSON ( presiding judge ) , PERSON . and PERSON . ( lay judges ) convicted the applicant of fraud and sentenced him to DATE and CARDINAL months’ imprisonment . The court further held that the civil claim against the applicant , as well as the question of lifting the restriction imposed on the applicant ’s property , should be referred for consideration within the framework of the civil procedure .

The applicant appealed . He complained that , inter alia , the judgment had been given by a court whose composition had not been in accordance with law . In particular , he referred to the fact that the lay judges who participated in the examination of his case had at the same time been examining a criminal case against a certain Mr Tver . He also complained that the trial court had read out the testimonies of the majority of the witnesses for the prosecution , including testimonies by key prosecution witnesses , and had thus deprived him of the possibility of cross - examining them . This was despite the absence of any exceptional circumstances which had prevented the court from securing their attendance at the court hearing .

On DATE the ORG reduced the sentence to DATE and upheld the rest of the judgment on appeal . In reply to the applicant ’s argument regarding the alleged unlawfulness of the composition of the trial court , ORG held that the composition of the court had remained unchanged throughout the trial in accordance with LAW , and that the participation of lay judges , who had also been involved in the examination of another case , had had no legal consequences and had not amounted to a violation of the law . ORG further held that the reading out of the testimonies of certain witnesses had been carried out by the trial court on the request of the prosecutor and in compliance with the requirements of LAW of LAW .

On DATE the ORG of ORG , by way of supervisory review , modified the charges the applicant had been convicted on and reduced his sentence to DATE months’ imprisonment .

On DATE ORG , GPE , ordered the applicant ’s conditional early release .


Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;Systemic problem;Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The case of PERSON ( application no . CARDINAL/CARDINAL )

The applicant was born in DATE and lives in GPE .

Criminal proceedings against the applicant ( case no . III K CARDINAL/CARDINAL )

On DATE the applicant , who was a policeman , was arrested on suspicion of participating in an organised criminal group and corruption . On DATE he was charged with those offences and remanded in custody .

On DATE the prosecutor signed a bill of indictment against the applicant and CARDINAL co - accused . The applicant was indicted on charges of participating in an organised criminal group , abuse of power and corruption .

On an unspecified date in DATE ORG ( Prokurator Okręgowy ) lodged the bill of indictment with GPE ( Sąd Rejonowy ) .

On DATE the court issued a severance order , deciding that the accused policemen be tried separately ; however , no trial date was scheduled .

On DATE the applicant was released .

On DATE the court ordered that the accused policemen ’s case be joined with another case . No trial date was scheduled .

On DATE the Warsaw - City District Court decided that it did not have competence to deal with the case and referred it to ORG . The decision became final on DATE but the case - file was not transferred to that court until DATE .

NORP The proceedings before GPE ORG started on DATE . CARDINAL of the reasons for the delay was that , on DATE , the court had found that the accused had not yet been served with a copy of the bill of indictment , which should normally have taken place at the initial stage of the judicial proceedings .

Up to DATE the court held QUANTITY hearings . In DATE hearings took place .

On DATE the GPE ORG held that as a result of amendments to the criminal law that had meanwhile entered into force , it no longer had competence to deal with the case and referred it to ORG . The parties appealed .

On DATE ORG found that the appeals were well - founded and quashed its decision on referral . The case - file , which had meanwhile been transferred to ORG , was returned in DATE .

The trial before ORG restarted in DATE . However , as so much time had elapsed , it had to be conducted from the beginning . In DATE the court held QUANTITY hearings , in DATE QUANTITY hearings and in DATE CARDINAL hearings .

On DATE the GPE ORG acquitted the applicant .

Proceedings under LAW ( case no . X S CARDINAL/CARDINAL )

On DATE the applicant lodged a complaint under LAW ( hereafter also referred to as “ length complaint ” ) with ORG ( PERSON ) He sought a finding that the length of the proceedings had been excessive and MONEY ( PLN ) ( MONEY ( ORG ) ) in compensation .

On DATE ORG held that the length of the proceedings had been excessive from DATE to CARDINAL DATE ( see also paragraph CARDINAL above ) and awarded the applicant LAW ( approximately LAW ) in compensation . In its assessment of the length of the proceedings , the court took into account only the period starting from DATE , i.e. the date on which LAW entered into force .

As regards the period after DATE , ORG found that , despite the fact that “ in DATE , at the stage of preparation for the trial and during the initial hearings the court ’s actions [ had been ] somewhat chaotic and the court had not avoided certain shortcomings ” , the proceedings had been conducted with due diligence . In consequence , the court refused to grant the applicant the full sum sought , holding that he had not demonstrated that he had sustained damage in that amount .

Application of the “ Scordino ( no . CARDINAL ) criteria ”

In the absence of domestic remedies , the ORG ’s award , determined with reference to the criteria set in its case - law , in particular the length of the period under consideration ( see paragraphs CARDINAL - CARDINAL and CARDINAL below ) and sums usually granted in similar NORP cases would amount to LAW .

The applicant was awarded PERCENT of that sum .

On the date of the national court ’s decision on the applicant ’s complaint , namely DATE ( see paragraph CARDINAL above ) a domestic award , determined with reference to the ORG ’s awards in similar cases and the Scordino ( no.CARDINAL ) criteria ( see PERSON ( no . CARDINAL ) , cited above , § § CARDINAL - CARDINAL and CARDINAL ) should have reached CARDINAL in order for the applicant to lose his victim status .

B. The case of PERSON ( application no . CARDINAL/CARDINAL )

The applicant was born in DATE and lives in FAC .

Pre - trial proceedings for securing evidence

On DATE the applicant lodged an application for the securing of evidence with ORG .

Pursuant to LAW , such an application can be lodged by a prospective party before the initiation of a civil action if there is a fear that the taking of specific evidence will be impossible or too difficult , or if there is a need to establish the state of affairs .

The applicant , who intended to bring a civil claim against his landlord for damages resulting from defective performance of a lease contract , asked the court to obtain an expert report determining the state and value of outlays that he had made on the commercial premises that he had rented .

The report was submitted to the court on DATE . A copy thereof was served on the applicant on DATE .

Civil proceedings instituted by the applicant ( case no . II C CARDINAL/CARDINAL ; I A Ca CARDINAL/CARDINAL )

On DATE the applicant lodged an action for damages with ORG ( PERSON ) . He also asked the court to secure his claim . An order securing the claim by means of a mortgage on the defendant ’s property was given on DATE .

The first hearing was held on DATE . The next hearing took place on DATE .

In the meantime , the court dealt with some procedural matters involved in the defendant ’s interlocutory appeal against the order securing the claim , which was accompanied by his various other requests , such as applications for exemption from court fees or for retrospective leave to appeal out of time .

Overall , from DATE , namely the date on which the claim was lodged , to CARDINAL DATE ORG held CARDINAL hearings and heard evidence from the parties and CARDINAL witnesses . The hearings were held on DATE , DATE , CARDINAL May , CARDINAL DATE , DATE and DATE .

On DATE the court gave judgment and rejected the applicant ’s claim in its entirety . The applicant appealed on DATE .

On DATE the ORG ( Sąd Apelacyjny ) quashed the first - instance judgment and remitted the case .

The re - trial started on DATE .

From that date to CARDINAL DATE ORG scheduled CARDINAL hearings , which were held on DATE and DATE , DATE and DATE . It heard evidence from a witness , an expert and the parties . The applicant modified his claim on DATE .

In the meantime , on DATE the court had decided to take evidence from an expert in construction . The expert submitted his report on DATE .

On DATE the ORG gave its second judgment , partly allowing the applicant ’s claim .

The judgment was partly quashed on the defendant ’s appeal and the case was remitted by ORG on DATE . On CARDINAL DATE the case - file was returned to ORG .

On DATE ORG ordered the parties to apply for the taking of further evidence that they wished to submit , on pain of rejecting any such subsequent requests . On DATE the applicant asked the court to take evidence from CARDINAL witness and from himself as a party . On DATE the defendant asked the court to obtain evidence from CARDINAL experts .

The re - trial started on DATE . From that date to DATE the court scheduled CARDINAL hearings , which were held on DATE , DATE , DATE , CARDINAL DATE and DATE . It heard evidence from CARDINAL witnesses , CARDINAL experts and the parties

In the meantime , on DATE , the court had ordered that evidence from an expert in construction be obtained . It fixed a DATE time - limit for submission of his report . The expert submitted the report on DATE . The defendant asked the court to take evidence from another expert .

At the hearing held on DATE the parties stated that they would attempt to settle the case . On CARDINAL and DATE respectively they informed the court that their negotiations had failed .

On DATE the court ordered that evidence from CARDINAL experts – in construction , accountancy and air - conditioning and ventilation – be obtained .

The construction expert submitted his report on DATE , the expert - accountant submitted his report on DATE and the airconditioning expert submitted his report on DATE . The intervals between those dates were caused by the fact that the court waited until each expert had finished his work before sending the materials in the case - file to the following expert .

Also , the expert in air - conditioning on several occasions asked the court to extend the time - limits set for submission of his report , which he justified by the volume of his work on other reports , DATE and difficulties in obtaining a document or in setting a date for an on - site inspection of the LOC . The court granted all his requests .

On DATE the ORG delivered its third judgment , rejecting the applicant ’s claim in its entirety . The applicant appealed on DATE .

On DATE ORG heard the appeal . On DATE it partly allowed the applicant ’s appeal , altered the contested judgment and granted the applicant ’s claim up to the amount of ORG MONEY , with statutory interest .

Proceedings under LAW ( case no . I SCARDINAL/CARDINAL )

On DATE the applicant lodged a complaint under LAW with ORG ( Sąd Apelacyjny ) . He sought a finding that the length of the proceedings had been excessive and MONEY in compensation .

On DATE ORG dismissed the applicant ’s complaint . The court concluded that , given the complexity of the case and the need to obtain evidence from experts in CARDINAL different fields , the proceedings had been conducted in a correct and timely manner .

In its assessment of the length of the proceedings , the court took into account only the period after DATE , namely the date on which ORG had partly quashed ORG judgment of DATE ( see also paragraph CARDINAL above ) .

Application of the “ Scordino ( no . CARDINAL ) criteria ”

In the absence of domestic remedies , the ORG ’s award , determined with reference to the criteria set in its case - law , in particular the length of the period under consideration , ( see paragraphs CARDINAL - CARDINAL and CARDINAL below ) and sums usually granted in similar NORP cases would amount to ORG CARDINAL .

On the date of the national court ’s decision on the applicant ’s complaint , i.e. DATE ( see paragraph CARDINAL above ) a domestic award , determined with reference to the ORG ’s awards in similar cases and the Scordino ( no.CARDINAL ) criteria ( see PERSON ( no . CARDINAL ) , cited above , § § CARDINAL - CARDINAL and CARDINAL ) should have reached MONEY in order for the applicant to lose his victim status .

C. The case of PERSON ( application no . CARDINAL/CARDINAL )

The applicant was born in DATE . She lives in GPE .

Background of the case

In DATE the applicant lodged a civil action for payment and accounting ( pozew o złożenie rachunku z zarządu i zapłatę ) against a certain ORG with ORG ( Sąd Rejonowy ) . The action concerned property which had been inherited by the applicant .

Proceedings for adverse possession ( ORG CARDINAL/CARDINAL ; ORG CARDINAL ; ORG CARDINAL/CARDINAL )

On DATE ORG and CARDINAL other persons applied to ORG for adverse possession ( zasiedzenie ) of the property in question . The applicant was not notified of the proceedings .

On an unspecified date ORG informed the applicant that the proceedings for payment and accounting initiated by her had been stayed pending the outcome of the case concerning adverse possession .

On DATE the applicant informed ORG that she wished to join the proceedings .

From DATE to DATE the court heard evidence from CARDINAL witnesses and CARDINAL participants in the proceedings . It also ordered that a press announcement be published to all unknown heirs or heirs whose whereabouts were unknown of CARDINAL of the late predecessors in title to the property .

On DATE ORG decided that ORG and CARDINAL other persons had acquired a CARDINAL share in the property by adverse possession .

The applicant appealed on an unspecified date in DATE or DATE .

On DATE the ORG ( PERSON ) quashed the first - instance decision and remitted the case , holding that ORG had failed to make the necessary findings of fact and to determine the merits of the case . Also , the proceedings had been flawed by procedural shortcomings , such as the court ’s failure to serve copies of the DATE application for adverse possession on all the interested partiesincluding the applicant .

During the appellate proceedings the court re - opened the case after the hearing and CARDINAL times adjourned delivery of its decision .

On DATE ORG asked the Gdańsk Regional Court to transfer the case to ORG . On DATE ORG refused that request .

On DATE the applicant was served with a copy of the DATE application for adverse possession . The document was incomplete , as some pages and appendices were missing . The court informed the applicant that she was entitled to submit a response to the application .

On DATE the court summoned a certain PERSON to join the proceedings .

During the hearing held on DATE the court found that the proceedings also concerned the interests of the second husband of CARDINAL of the petitioners and ordered that the petitioners produce his heirs’ personal details and addresses and serve them with a copy of the application for adverse possession . The parties were informed that the next hearing would not take place before DATE because of the judge rapporteur ’s planned holidays .

On DATE the ORG summoned a certain ORG to join the proceedings .

On DATE the proceedings were suspended as the petitioners had failed to produce an extra copy of the DATE application for adverse possession , which had to be served on ORG

On DATE the applicant applied for discontinuation of the proceedings .

On DATE ORG resumed the proceedings and scheduled a hearing for DATE .

DATE and DATE ORG scheduled CARDINAL hearings and summoned further persons to join the proceedings . A hearing scheduled for DATE had been cancelled because the case - file had meanwhile been transmitted to ORG together with a complaint lodged by the applicant under LAW , alleging that the length of the proceedings had been excessive ( see paragraphs CARDINAL below ) .

On DATE the ORG gave the second decision on the merits . The applicant appealed on DATE .

DATE . On DATE the Mayor of GPE applied to ORG to be summoned as a party to the proceedings . It was submitted that ORG had erroneously summoned ORG as ORG representative and party in the proceedings . Subsequently , on an unknown date , ORG summoned the Mayor of GPE to join the proceedings as a party .

On DATE the Mayor filed an appeal against the decision of CARDINAL DATE , invoking the nullity of the entire proceedings on the grounds that it had been impossible to defend his rights .

The appellate hearing , which was scheduled for DATE , was cancelled .

On DATE ORG held a hearing . The case was closed and the court announced that the judgment would be delivered on CARDINAL DATE . However , on that date the court reopened the case and fixed a fresh date for a hearing for DATE .

On DATE ORG again heard the appeals lodged by the applicant and the Mayor of GPE .

On DATE the court gave judgment . It partly amended the firstinstance decision and dismissed the remainder of the appeals .

On DATE the applicant lodged a complaint with ORG under LAW . She sought a finding that the length of the proceedings had been excessive and PLN CARDINAL,CARDINAL NORP in compensation .

On DATE the ORG dismissed the applicant ’s complaint . In its assessment of the length of the proceedings , the court did not to take into account the period before DATE , namely the date on which LAW had entered into force , holding that LAW applied only to the excessive length of proceedings occurring on the date of its entry into force . As regards the subsequent period , it held that the proceedings could not be said to have been excessively long , given that it had been necessary to secure the participation and representation of all the interested parties in the proceedings .

Application of the “ Scordino ( no . CARDINAL ) criteria ”

In the absence of domestic remedies , the ORG ’s award , determined with reference to the criteria set in its case - law , in particular the length of the period under consideration ( see paragraphs CARDINAL - CARDINAL and CARDINAL below ) and sums usually granted in similar NORP cases , would amount to ORG CARDINAL .

On the date of the national court ’s decision on the applicant ’s complaint , namely DATE ( see paragraph CARDINAL above ) , a domestic award , determined with reference to the ORG ’s awards in similar cases and the Scordino ( no.CARDINAL ) criteria ( see PERSON ( no . CARDINAL ) , cited above , § § CARDINAL - CARDINAL and CARDINAL ) should have reached MONEY in order for the applicant to lose her victim status .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Reasonable time);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

NORP The municipal unitary enterprise NORP proizvodstvennoye obyedineniye “ Zhilkomkhoz ” ( ORG производственное объединение « PERSON , hereinafter “ the company ” ) was set up by a decision of the administration of LOC . It provided maintenance services in respect of municipal housing , including heating and water supply , maintenance of the sewage systems and renovation and maintenance of the municipal housing stock .

The Company had “ the right of economic control ” ( право хозяйственного ведения ) over the assets allocated to it in order to carry out its statutory activities . According to its statutory articles all of the company ’s property as well as obtained profits belonged to the municipal estate .

On DATE ORG of GPE commenced insolvency proceedings and appointed an external administrator to oversee the company ’s administration .

On DATE ORG of GPE ordered the insolvency proceedings in respect of the company .

On DATE ORG of GPE discontinued the insolvency proceedings and ordered the respondent company ’s liquidation . The PERSON claims , which had not been satisfied during the liquidation procedure , including the ORG claims , were considered as settled .

On DATE the company was removed from ORG .

On an unspecified date in DATE the applicants brought proceedings against the debtor company seeking salary arrears and other work - related payments .

On DATE and DATE the Justice of the Peace of ORG of GPE awarded the applicants salary arrears ( the amounts are specified in the Appendix , column no . CARDINAL ) and compensation for non - pecuniary damage against their employer . On DATE and DATE respectively ORG upheld those judgments on appeal and they became final .