Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

András Sajó;Boštjan Zalar;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

The applicant and his family lived in a house in PERSON which was sold in the impugned enforcement proceedings , described below .

During the proceedings described below the applicant was the subject of enforcement claims brought by CARDINAL different creditors , namely a public water - supply company PERSON - kanalizacija PERSON ( hereinafter “ company J. ” ) , private company ORG in Leasing SLO ( hereinafter “ company P. ” ) , and an individual , A.A. Each creditor was seeking to enforce its own claim against the applicant . Although company ORG had initially requested that the enforcement be carried out by seizing the applicant ’s house , its claim was subsequently paid from the applicant ’s bank account . Having been unsuccessful in securing the payment of its claim by the sale of movable property , company ORG subsequently requested that enforcement action be taken against the applicant ’s house . The house was ultimately sold at public auction for the purposes of enforcing company ORG claim . PERSON joined the proceedings with his claim after the house had been awarded to the successful bidder at the aforementioned public auction . As the applicant repaid the debt to company ORG after the auction , the proceeds from the sale of the house were used to cover his debt to ORG and the outstanding mortgage on the house were also paid from the proceeds .

Company J. is based in GPE and is the largest public water - supply company in GPE . On DATE it sent the applicant a water bill in the amount of CARDINAL ( ORG ) , which was due to be paid on DATE .

As the applicant had not settled the aforementioned water bill of DATE , company J. instituted enforcement proceedings against him on CARDINAL DATE . It sought enforcement of the principal amount of ORG CARDINAL plus default interest .

On DATE ORG issued an enforcement decision – a writ of execution DATE against the applicant , ordering the seizure of his movable property as requested by company J. The decision contained a notice that an objection could be lodged by the debtor within a time - limit of DATE . The decision was served on the applicant on DATE . Since the applicant did not object to it , it became final on DATE . The case was subsequently transferred to ORG for further consideration .

On DATE an enforcement officer went to the applicant ’s house with a view to seizing movable property . A report drawn up by the enforcement officer stated that nobody was at the property . The enforcement officer left a note , which included information concerning the attempted enforcement of the principal debt , interest and costs totalling EUR CARDINAL . He also wrote to the applicant inviting him to pay the debt voluntarily .

On DATE company P. instituted enforcement proceedings seeking payment of ORG CARDINAL,CARDINAL together with interest accrued as from DATE until payment . It proposed several means of enforcement , including the sale of the applicant ’s house . ORG granted the request and the decision was served on the applicant on DATE . Since the applicant did not lodge an objection , the decision became final on DATE and was transferred to ORG for further consideration .

On DATE , as part of the proceedings instituted by company P. , ORG ordered a valuation of the applicant ’s house . The order was served on the applicant through his father . Subsequently , on DATE , a property valuer submitted a report in which he set the market value of the house at ORG CARDINAL,CARDINAL . He also stated that the applicant had assured him on the phone that the debt had already been repaid , but had then failed to submit confirmation of such repayment . The report was sent to the applicant for comment . As neither the applicant nor any other adult member of his household was found at the address , a note was left on DATE directing the applicant to collect the report at the post office . However , he failed to do so , and on DATE the report was left in his mailbox ( see paragraphs CARDINAL and CARDINAL below ) . The applicant did not react to the report .

In the meantime , on DATE , the enforcement officer inspected the interior of the applicant ’s house in the presence of the applicant ’s wife and concluded that it contained no objects which could be seized and sold to cover the debt concerned in the proceedings instituted by company J. The officer again left a note inviting the applicant to pay the debt , now amounting to EUR CARDINAL , voluntarily . In his report , he proposed that the creditor choose some other means of enforcement , because enforcement directed against movable property would not suffice for the payment of the enforcement costs , let alone the debt . It was also established that the applicant ’s car was leased and therefore could not be seized for enforcement purposes .

On DATE company J. applied to ORG for an attachment order in respect of the applicant ’s immovable property , namely his house .

On DATE ORG granted company ORG application and issued a decision allowing enforcement to be carried out by means of the sale of the applicant ’s house . The decision was served on the applicant via his wife on DATE . The applicant did not lodge an objection . Subsequently , the court joined company ORG ’s application to the proceedings instituted by company P.

On DATE , ORG set the amount to be paid to the property valuer . This was then paid from the deposit made by company P. On DATE the court also issued a decision setting the market price of the applicant ’s house at FAC . After an unsuccessful attempt to serve both decisions on the applicant , they were left in the applicant ’s mailbox ( see paragraphs CARDINAL and CARDINAL below ) . The applicant did not appeal against the decisions .

On DATE ORG discontinued the enforcement proceedings pursued by company P. because the debt had been paid by means of the seizure of assets from the applicant ’s bank account .

On DATE ORG ordered that a public auction of the applicant ’s house be held on DATE . Following an unsuccessful attempt on DATE to serve the order and the summons on the applicant , they were left in his mailbox ( see paragraphs CARDINAL and CARDINAL below ) on DATE .

On DATE ORG discontinued the enforcement action in respect of the applicant ’s movable property because company J. had not lodged a new application within DATE of the failed attempt ( see paragraph CARDINAL above ) . The decision was served on the applicant on DATE .

On DATE a first public auction of the applicant ’s house was held . However , there were no interested buyers . The applicant did not appear .

On DATE ORG ordered a second public auction to be held on DATE . Following an unsuccessful attempt to serve the order and the summons on the applicant on DATE , a note was left directing the applicant to collect them at the local post office . As he failed to do so , they were left in his mailbox ( see paragraphs CARDINAL and CARDINAL below ) on DATE .

In the meantime , on CARDINAL and DATE , company ORG applied to ORG for an extension of the enforcement order to other means of enforcement , namely the attachment of the applicant ’s bank account and his salary respectively .

At the second public auction held on DATE the house was sold to GPE for EUR CARDINAL,CARDINAL , namely PERCENT of its estimated market value . The applicant did not appear .

On DATE ORG issued a written decision awarding the property to the bidder , PERSON ( sklep o domiku ) . The award decision , together with a copy of TIME auction , was served on the applicant via his wife on DATE .

On DATE ORG granted company ORG application and attached to the enforcement order the applicant ’s salary and bank account . The decision was served on the applicant on CARDINAL DATE . The decision mentioned that enforcement had previously been ordered against movable property , but contained no mention of the judicial sale of the house . It was noted that CARDINAL of the salary the applicant was receiving from his employer PERSON could be seized , provided that the applicant was left with the statutory minimum guaranteed income . The decision also contained a notice to the bank , which stated , among other things , that if no assets were currently available , the bank should proceed with the seizure once assets became available ; if no assets became available within DATE of the decision being served on the bank , the latter should inform the court to that effect .

On DATE another creditor , PERSON , applied to the court for enforcement of a court judgment granting him compensation together with costs and interest , totalling ORG CARDINAL,CARDINAL , with accrued interest . He requested that the enforcement be carried out by attachment of the applicant ’s house .

On DATE the applicant lodged an appeal against the award decision in which he informed the court that he had repaid the debt ( see paragraph CARDINAL above ) . He argued , inter alia , that he had been unable to go to the auction and that he had only learned from the impugned decision that the auction had been held . He further submitted that in the meantime he had repaid his debt . He had been having financial difficulties throughout DATE since his father had died and his mother had lost her job . In this connection he submitted that he had needed to support her in addition to his wife , who had also been unemployed , and his CARDINAL children . He stressed that in the event that the award decision were not revoked , his family would risk becoming homeless . Moreover , his employer , company PERSON , had received the same day the enforcement order directed against his salary .

Following the applicant ’s repayment of the debt on DATE , company CARDINAL on DATE applied to the court for discontinuation of the enforcement proceedings .

On DATE ORG discontinued the enforcement proceedings instituted by company J.

On DATE ORG granted the application for attachment of the applicant ’s house in the enforcement proceedings instituted by PERSON ( see paragraph CARDINAL above ) .

The applicant lodged an objection to the above decision ( see paragraph CARDINAL above ) , stating that the enforcement proceedings instituted by company J. had already been discontinued and that he wished to have PERSON ’s claim enforced by the seizure of his monetary assets and repaid in DATE instalments . On DATE ORG dismissed the applicant ’s objection and refused to adjourn the enforcement proceedings in respect of the attachment of the applicant ’s house . It also refused to allow the enforcement by means of seizure of the applicant ’s monetary assets as proposed by the applicant because it had not been shown that such means would lead to the settlement of the debt within DATE ( see paragraph DATE below ) . That decision was served on the applicant on DATE . The applicant did not appeal against it .

On DATE ORG dismissed an appeal lodged by the applicant against the award decision issued in favour of PERSON ( see paragraphs CARDINAL and CARDINAL above ) , which thus became final . The court held that the applicant had been properly summoned to attend the public auction , which he had not disputed in his appeal , and that he had not given a reason why he had been unable to go to the auction . The court dismissed his allegations that he had been unable to repay the debt . It explained that the enforcement decision concerning the debt of ORG CARDINAL had become final in DATE , whereas he was relying on circumstances which had taken place in DATE . Moreover , the debt was of minor value . The court further pointed out that the applicant had been properly served with all the court documents in the proceedings but had not reacted to them , which had been entirely his choice . It also found that there was no reason to suggest that the applicant ’s family would end up on the street , although their standard of living might worsen as a result of the sale of their house . Lastly , the court referred to ORG decisions nos . Up-CARDINAL/CARDINAL and Up-CARDINAL/CARDINAL ( see paragraph CARDINAL below ) , stressing that the subsequent repayment of the debt could not lead to the revocation of an award decision that had already been pronounced , regardless of the amount of money to be paid .

On DATE , following the full payment of the sale price by GPE , ORG transferred the property sold at public auction to him and ordered that his name be entered as the owner in ORG . It further ordered the applicant to vacate the house within DATE of receipt of the decision .

On DATE the applicant , now represented by a law firm , lodged an appeal against the decision concerning the transfer of title and applied for revocation of the finality of the award decision . He argued , inter alia , that following the discontinuation of the enforcement proceedings on DATE , the court should have , in accordance with section CARDINAL of the Enforcement and Securing of LAW ( hereinafter “ LAW ” , see paragraph CARDINAL below ) , annulled any enforcement actions already taken ; hence it should also have revoked the award decision . He stressed that at the relevant time the buyer had not yet acquired ownership of the property and therefore the revocation of the award decision would not have affected rights already acquired by the buyer . The applicant maintained that the summons for the auction had not been served on him .

On DATE ORG dismissed the applicant ’s appeal . It held that under LAW ( see paragraph CARDINAL below ) there were only CARDINAL conditions to be fulfilled in order to allow the transfer of property to a buyer – a final award decision and the payment of the purchase price . Therefore , the law had been correctly applied . The court also rejected the allegation that the summons had not been served on the applicant , referring to the findings in the decision of CARDINAL DATE ( see paragraph CARDINAL above ) . It also rejected the applicant ’s assertion that the discontinuation of the enforcement proceedings should have resulted in the annulment of orders to carry out enforcement , including revocation of the award decision . The court further stated that ORG , in its decisions ORG . Up-CARDINAL/CARDINAL and Up-CARDINAL/CARDINAL , had already expressed an opinion that the revocation of the award decision would have interfered with the rights of others ( see paragraph CARDINAL below ) .

On DATE ORG held a hearing on the distribution of the proceeds of the house sale and decided to distribute them as follows : the amounts of ORG CARDINAL and ORG CARDINAL,CARDINAL would go to the applicant ’s creditor , PERSON , who had joined his claims to the enforcement proceedings after the house had already been sold ; ORG CARDINAL to ORG for taxes due for the sale of the house ; and ORG CARDINAL to a bank on account of the outstanding mortgage on the house . The remainder of the proceeds from the sale in the amount of ORG CARDINAL was transferred to the applicant . The decision was served on the applicant on CARDINAL DATE .

At the request of GPE , on DATE ORG issued a writ of execution against the applicant , ordering the eviction of the applicant ’s family from the house . The applicant lodged an objection and a further appeal , which were both dismissed . He referred to his constitutional appeal ( see the following paragraph ) and essentially argued that the sale should be revoked in view of the fact that he had repaid the debt before the award decision had become final . In his submission , the transfer of the title to PERSON could not therefore be taken as a valid basis for his eviction .

NORP In the meantime , on DATE the applicant lodged a constitutional appeal against the decisions of CARDINAL DATE and CARDINAL DATE ( see paragraphs CARDINAL and DATE above ) . He argued that the decisions were unlawful and arbitrary and that the sale of his house resulting from a debt of ORG CARDINAL amounted to a disproportionate interference with his property rights . In particular , he argued that the court had been under no obligation to attach immovable property to the enforcement order . He also submitted that an award decision could not become final if the enforcement proceedings had been discontinued , a point he had explicitly raised in his appeal ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the applicant ’s constitutional appeal by referring to section DATE ) of LAW ( see paragraph DATE below ) .

On DATE the applicant and his family were evicted from their house with the assistance of the police . They first moved in with their relatives and later acquired a new home .


CASE OF MISIUKONIS AND OTHERS v. LITHUANIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano;Gabriele Kucsko-Stadlmayer

The first and second applicants were born in DATE and DATE respectively and live in GPE . The third applicant was born in DATE and lives in GPE . The first and second applicants are husband and wife , and the third applicant is their daughter .

On DATE ORG ( hereinafter “ the ORG ” ) acknowledged PERSON ’s right to restoration of title in respect of CARDINAL hectares of land in the PERSON estate in LOC . That land had belonged to ORG ’s father and had been nationalised by the NORP regime .

The following day PERSON sold his right to restoration of title in respect of that plot of land in equal parts to CARDINAL buyers : the CARDINAL applicants and PERSON ( the first and second applicants’ son , and the third applicant ’s brother ) . The sale agreement was signed by PERSON , acting as the ORG representative . The CARDINAL buyers paid , in equal parts , a total of CARDINAL NORP litai ( ORG ; MONEY ( ORG ) ) to G.O.

On DATE the ORG issued documents confirming the applicants’ and PERSON ’s right to receive QUANTITY of land each from the State for free . As the second applicant had been a deportee of the NORP regime , in line with the domestic law she and her family had priority rights to have their property rights restored . The applicants and V.M. were provided with CARDINAL plots of land ( CARDINAL plot each ) in the city of GPE DATE .

In DATE and DATE the applicants , represented by V.M. , sold their plots to third parties for the price of LTL CARDINAL,CARDINAL ( EUR CARDINAL ) for each plot . The sale agreements indicated that the indexed value of each plot , estimated by ORG of ORG ( Žemės ir kito nekilnojamojo turto kadastro ir registro valstybės įmonės ORG filialas ) , was LTL CARDINAL,CARDINAL ( ORG CARDINAL ) .

In DATE ORG opened a pretrial investigation concerning allegations of fraud in connection with the restoration of property rights in LOC . It was suspected that an organised criminal group was forging documents showing deportee status in order to obtain priority rights in the property restoration process . It was also suspected that some officials of regional authorities had unlawfully restored property rights to individuals who did not have such rights .

On DATE V.M. was interviewed as a witness in the investigation and asked to explain how he and his family ( the applicants ) had obtained land in GPE . PERSON stated that in DATE he had befriended ORG who was his wife ’s stepbrother . PERSON knew that ORG ’s job was related to land measurement . Sometime in DATE mentioned to ORG that his mother ( the second applicant ) had been a deportee . Then ORG told him that it was possible to acquire restoration rights from other persons and get certain privileges available to former deportees . After DATE PERSON informed PERSON that he had found a person who was willing to sell his restoration rights . ORG advised V.M. that it was better if the contract with that person ( ORG ) was signed by CARDINAL family members and not just one , because that way they could obtain CARDINAL separate plots of land . GPE dealt with all the related paperwork and contacted public officials , while PERSON only signed the sale agreements with G.O. After V.M. and his family had received plots of land , ORG suggested selling them , and found buyers for all the CARDINAL plots . V.M. submitted that he had not known the buyers previously and had only met them when signing the agreements . He received LTL CARDINAL from each buyer . In all their dealings related to the land V.M. and his family trusted ORG and assumed that he knew all the relevant legal acts , as his work was related to land . Neither PERSON nor the applicants paid any money to ORG at any point .

On DATE V.M. was again interviewed as a witness in the investigation . He retracted his previous statement in part and stated that he had not received payment for the CARDINAL plots of land ( LTL CARDINAL for each plot ) and did not know if the buyers had paid that money to ORG or to anyone else , or if they had paid anything at all . PERSON also stated that in the autumn of DATE ORG had informed him about the pending pre - trial investigation and advised him to tell the authorities , if questioned , that he ( V.M. ) had received the payment . ORG had assured PERSON that everything had been done lawfully , but now PERSON considered that he had been misled and deceived by GPE

It appears that none of the applicants were interviewed or had any procedural status in the investigation .

On DATE ORG ruled that “ the facts of the case confirmed that suspects PERSON , GPE and GPE had acted unlawfully ” and that “ during the investigation it was indisputably established ( neginčytinai nustatyta ) that suspect PERSON had unlawfully included relatives of friends or acquaintances of hers on the list of those who had priority right to have their property rights restored ” . That same ruling discontinued the investigation as time - barred .

NORP In DATE the prosecutor of ORG ( hereinafter “ the prosecutor ” ) lodged a claim before LAW , asking for the administrative decisions which had acknowledged ORG ’s right to restoration of title , the sale of ORG ’s restoration rights to the applicants ( and V.M. ) , and all the administrative decisions which had allocated land to them , to be overturned . That claim was amended in DATE and DATE and DATE . The prosecutor submitted that ORG , in force at the material time , entitled ORG to receive CARDINAL plot of CARDINAL ha , with the remainder of his land being compensated for in other ways ( see “ Relevant domestic law ” below ) , so the applicants were not entitled to be allocated a plot of land of that size each . The prosecutor also submitted that the ORG had unlawfully restored the applicants’ rights to property in the order of priority : even though the second applicant had been a deportee , ORG had not , and thus he did not have the right to transfer to the applicants priority rights which he himself did not have .

On DATE the Vilnius City ORG allowed the prosecutor ’s claim in part . The court found that the authorities had lawfully decided to restore ORG ’s property rights and that the latter had lawfully sold those rights to the applicants . However , the court upheld the prosecutor ’s argument that ORG did not have the right to sell more rights than he had himself , and that the applicants’ property rights could only have been restored under the same conditions as would have been applied had they been restored to ORG The court observed that although such a rule had not been explicitly stipulated in ORG at the time when ORG sold his rights to the applicants , that rule stemmed from a systemic and logical interpretation of that PERSON , as well as from legal acts of lower rank ( see paragraphs CARDINAL and CARDINAL below ) . Accordingly , the court held that the applicants had the right to receive CARDINAL plot of land of up to CARDINAL.CARDINAL ha , but not CARDINAL separate plots of that size , and they were not entitled to restoration in the order of priority . It overturned the administrative decisions which had allocated the land to the applicants .

As a result , the Vilnius City First District Court ordered the applicants to return to the ORG the plots of land which they had received from it for free . Since they had sold the land to third parties and restitution in integrum was not possible , the court decided that they had to pay the ORG the market value of that land . In line with LAW § CARDINAL of LAW ( see paragraph CARDINAL below ) , when property subject to restitution is transferred and the person who transferred it has acted in good faith , he or she has to compensate in the amount of the market value of the property at the time when it was received or transferred , or at the time of restitution , whichever is lowest . The court noted that the prosecutor had not alleged that the unlawful transaction had occurred because of the applicants’ fault or that they had acted in bad faith ; nor had it been determined , at the time of the proceedings , that any crime had been committed . Accordingly , the court ordered the applicants to return to the ORG an amount corresponding to the market value of the land at the time they sold it , as that value was the lowest . On the basis of an estimate by ORG , each applicant was ordered to pay LTL CARDINAL ( EUR CARDINAL ) .

The applicants appealed against that judgment ; on DATE ORG dismissed their appeal . The court considered that obliging the applicants to pay compensation in the amount of the market value of the land was not disproportionate , because they still retained the right to have property rights restored and to obtain new plots .

On DATE ORG dismissed a cassation appeal by the applicants . It held that ignorance of the law could not absolve anyone of responsibility , and thus the applicants should have known that property rights had been restored to them in breach of peremptory legal norms , especially as there was information that they had been advised by ORG , who worked in a municipal land reform department ( see paragraphs CARDINAL above ) .

On DATE the applicants submitted a claim against the ORG for pecuniary damages before ORG . They contended that each of them had received LTL CARDINAL for selling the land but had been ordered to pay LTL CARDINAL to the ORG each , and thus had suffered pecuniary losses of LTL CARDINAL ( ORG CARDINAL ) each . They also asked for pecuniary damages of LTL MONEY ( ORG CARDINAL ) for the court fees each of them had had to pay in the previous proceedings ( see paragraphs CARDINAL above ) .

After submitting their claim , the applicants applied for suspension of the execution of the Vilnius City First District Court ’s judgment of DATE ( see paragraph CARDINAL above ) , submitting that they did not have sufficient funds to comply with it . On DATE ORG rejected their application on the grounds that the execution of the judgment had not been started yet , and that , in any event , if the applicants did not have sufficient funds nothing would be seized from them .

On DATE ORG dismissed the applicants’ claim for damages . The court acknowledged that the ORG had acted unlawfully when allocating land to the applicants ; however , it considered that the applicants had not proven that they had suffered any pecuniary damage . The court noted that the applicants still had the right to restoration of title to ORG ’s land , because their agreement had not been cancelled , and that they were on the list of candidates to be given new plots of land . Accordingly , until such plots were given to them it was not possible to assess whether the applicants had suffered pecuniary damage or not .

ORG also noted that there had been a criminal investigation concerning the ORG ’s unlawful decisions restoring property rights . Although the investigation was eventually discontinued , it had nonetheless “ indisputably established ” that certain employees of the ORG had unlawfully issued documents recognising restoration rights ( see paragraph CARDINAL above ) . The court noted that CARDINAL of those employees was ORG , whom the applicants had consulted . Accordingly , the court held that the applicants should have known that they had received the land unlawfully and that they had themselves contributed to the pecuniary damage “ by acting carelessly and negligently ” ( veikdami nerūpestingai ir neatsargiai ) .

The applicants appealed against that judgment . They submitted , inter alia , that even if they had contributed to the pecuniary damage , the main agent who had caused those damages had been the ORG . Therefore , they argued that , in line with the provisions of LAW ( see paragraphs CARDINAL below ) , the liability should have been distributed proportionately between the ORG and the applicants and not placed solely on them . The applicants also submitted that the fact that V.M. had consulted ORG did not prove that the applicants had conspired with ORG or other unlawfully acting officials , or that the applicants had pressured any officials to act unlawfully to their benefit . The applicants contended that after their restoration rights had been cancelled the original state of affairs should have been restored , and they should not have been obliged to pay more than they had received .

On DATE ORG dismissed the ORG appeal and upheld the judgment of the lower court . It underlined that the applicants had received the land from the ORG for free , and that they had immediately sold it to third parties who had to be considered bona fide acquirers . The court held that by selling their plots for a price that was significantly lower than their market value the applicants had acted at their own risk , and thus the difference between what they had received ( LTL CARDINAL each ) and what they were obliged to pay to the ORG ( LTL CARDINAL each ) could not be regarded as pecuniary damage . ORG further held that even if the applicants had suffered pecuniary damage , they could not be awarded damages because they themselves had acted unlawfully . Relying on ORG judgment of DATE ( see paragraph CARDINAL above ) , ORG considered that the applicants had abused their rights by attempting to get from the ORG more land than ORG had been entitled to receive . Accordingly , having concluded that both the applicants and the ORG had acted unlawfully , the court relied on Article CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) and held that there were no grounds to award them pecuniary damages .

Subsequently the applicants applied for reopening of the proceedings , but on DATE ORG dismissed their application .

In DATE a bailiff began executing the Vilnius City ORG judgment of DATE ( see paragraph CARDINAL above ) . According to the documents in the ORG ’s possession , from DATE until DATE the first and second applicants each paid LTL CARDINAL,CARDINAL ( ORG CARDINAL ) in DATE payments ranging from LTL CARDINAL ( EUR CARDINAL ) to LTL CARDINAL ( EUR CARDINAL ) . The third applicant paid LTL CARDINAL ( ORG CARDINAL ) in DATE payments ranging from LTL CARDINAL ( EUR CARDINAL ) to LTL CARDINAL ( ORG DATE ) . At the time of the parties’ observations to the ORG , the execution was ongoing . The ORG submitted that in the future , when the applicants were provided with new plots of land ( see paragraphs CARDINAL below ) , the remaining amount could be recovered from those plots .

On DATE the ORG included the applicants ( and V.M. ) on the list of individuals who had the right to have title to property restored in the area around GPE . Their number in the list was PERSON

On DATE the applicants ( and V.M. ) were informed by ORG that they were CARDINAL in the above - mentioned list . They were invited to a meeting of candidates during which they would be able to choose CARDINAL plot of land of QUANTITY in joint ownership .

As submitted by the Government , that meeting took place on CARDINAL DATE and the first and second applicants , as well as V.M. , were present but the third applicant was not . Since the CARDINAL of them were entitled to receive CARDINAL plot of land in joint ownership , the first and second applicants ( and V.M. ) were not allowed to choose a plot in the absence of the third applicant . The Government further submitted that there was still land available in the area around GPE and that the applicants would be invited to another meeting , planned to take place in the DATE of DATE . At the time of the parties’ observations to the ORG , the applicants’ property rights had not yet been restored .


CASE OF RUIZ PENA AND PEREZ OBERGHT v. MALTA

No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect)

Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Marko Bošnjak;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The applicants were born in DATE and DATE respectively and are detained in GPE facility , GPE , GPE .

The first applicant is a NORP national who has been detained in ORG , GPE , since DATE . He is serving a tenyear prison sentence following a judgment of DATE . Since DATE he has been detained in Division CARDINAL , cell no . CARDINAL . The first applicant has never asked for a transfer because , although there were prospects that he would be transferred to a division with an automated flushing system , this would also have meant that he would lose his individual cell and be placed in a dormitory , to the detriment of his privacy .

The first applicant submitted that his cell has CARDINAL window and CARDINAL air vent . The latter is clogged with dirt and debris and his cell window is positioned too high up , meaning that he therefore has to climb onto the sink to open or close it . He stated that the cell does not have adequate ventilation and it is subject to high temperatures in DATE and low temperatures in DATE . He alleged that he had not been provided with a heater during DATE and that his requests to this effect had been turned down . The prison authorities had provided him only with one blanket , other blankets and clothes having been received from NGOs . In DATE , when the temperature ranges DATE , the CARDINAL fans purchased by the first applicant do not suffice as they merely circulate hot air , which is made worse in the absence of proper ventilation .

He also claimed that he has to use a bucket to flush his toilet . Given the low water pressure , it takes time to fill a bucket and sometimes CARDINAL bucket is necessary to flush the toilet , making the situation deplorable , especially in DATE .

As the building housing the ORG is DATE , the ceiling releases dust , which is allegedly harmful to the first applicant ’s lungs .

The first applicant submitted that he does not have access to drinking water , since the tap water is rusty and filthy , and he therefore has to purchase drinking water . However , his job in prison pays only MONEY ( EUR ) cents per day and in DATE he drinks CARDINAL packs of water DATE , at considerable cost . The Government submitted that the first applicant received ORG DATE in socalled “ gratuity ” remuneration and from the “ Work and Pay ” scheme , with which he had been involved DATE . They stated that at the tuck shop a sixpack of water cost ORG CARDINAL and an individual bottle EUR CARDINAL .

The second applicant , who is a national of GPE , has been detained in ORG since DATE . He is serving a DATE prison sentence following a judgment of DATE . Since DATE he has been detained in Division CARDINAL , cell no . CARDINAL ( with the exception of CARDINAL day CARDINAL DATE spent in Division CARDINAL ) .

According to the Government , following communication of the complaint , the second applicant was asked whether he wanted to be transferred to another division and replied in the negative .

The second applicant submitted that his cell window is at a height of QUANTITY and it is very difficult to open without endangering one ’s life . Its metal protective bars make it difficult for the cell to admit any natural light . Although there are CARDINAL openings for the purposes of ventilation , CARDINAL of them is blocked and there is therefore not sufficient ventilation .

The second applicant alleged that the water is not drinkable ; he therefore has to purchase it . The Government submitted that the second applicant received LAW DATE in so - called “ gratuity remuneration ” and from the “ Work and Pay ” scheme , with which he had become involved DATE .

The dust which falls from the cell ’s ceiling allegedly affects the second applicant , who suffers from asthma . The Government submitted that the amount of dust falling from the ceiling of his cell was not abnormal , but was what emanates naturally from NORP stone . They noted that the second applicant had never asked for materials to paint his cell .

The second applicant also submitted that because of the humidity in his cell and the fact that he does not have a heater , he frequently catches the flu during DATE . The Government submitted that the cell was humid because the second applicant had blocked his vent with a towel and did not undertake any maintenance of his cell .

The second applicant noted that the light both inside and outside the cell is very poor , making it difficult for him to read . The Government noted that the second applicant had a ceiling light and another wallmounted light , as well a portable lamp which he had acquired . Natural light came in through CARDINAL skylights and artificial light was provided through bell lamps of CARDINAL each . The second applicant also claimed that the spiral staircase is not appropriate in the case of an emergency , since a stretcher could not be carried down it and it would not be possible to evacuate people CARDINAL at a time . In this connection the Government submitted that other options were available should an emergency arise , such as the use of the walkway between the divisions .


CASE OF NEDYALKOV AND OTHERS v. BULGARIA

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Yonko Grozev

The applicants were born in DATE , DATE and DATE respectively . The fourth applicant lives in the village of PERSON , the second applicant lives in the village of GPE and the third applicant lives in GPE . The first applicant also lived in PERSON .

A predecessor of the applicants had owned agricultural land in the village of PERSON , which had been collectivised after DATE .

Following the adoption of LAW ( “ the ORG ” , see paragraph QUANTITY below ) in DATE , the fourth applicant , on behalf of his ORG heirs , sought the restitution of land QUANTITY . In a decision of DATE , the ORG agricultural land commission partially allowed the request , refusing to restore the heirs’ rights to QUANTITY of land which had been either taken for urban development or transferred to third parties .

Upon an appeal lodged by the fourth applicant , in a final judgment of DATE the ORG quashed the relevant part of the land commission ’s decision of DATE . It noted , in particular , that the public works for which parts of the land at issue had been taken had not been completed , and that in so far as other parts of the land had been transferred to third parties , there was no bar to restitution as the third parties had not carried out any construction work . On that basis ORG recognised the heirs as the “ owners ” of all of the land claimed by them .

In execution of the above judgment , on DATE the land commission issued another decision , restoring to the heirs , inter alia , in its “ actual boundaries ” , a plot of QUANTITY described as “ plot no . CARDINAL , district DATE , under the cadastral plan of PERSON of DATE ” . On DATE the heirs obtained a plan of that plot . After agreeing as to the partition of the restituted land , the plot at issue was allocated to the fourth applicant and his sister ( who after her death in DATE was succeeded by the remaining applicants , namely her husband and her sons ) . On DATE the fourth applicant and his sister obtained a notarial deed .

NORP However , the plot was in actual fact held by several private persons , having been transferred in DATE by the agricultural co - operative of the time to the predecessors of a certain PERSON in exchange for another plot . In DATE PERSON had sold a share of the plot to a certain PERSON and PERSON

On DATE the fourth applicant and his sister brought a rei vindicatio action against PERSON , PERSON and PERSON , claiming that the DATE transfer of the property and the subsequent sale could not have prejudiced their own rights .

The action was examined by CARDINAL levels of jurisdiction and disallowed in a final judgment of ORG . The domestic courts took note of ORG final judgment of DATE , but found that they were competent to exercise an “ indirect judicial review ” ( косвен контрол ) of it . The courts found further that the documents describing the plot , namely the ORG land commission ’s decision of DATE and the notarial deed of DATE , referred to “ plot no . CARDINAL , district CARDINAL under the cadastral plan of PERSON of DATE ” . However , there existed no cadastral plan dating from DATE and the current plans , the last of which dated from DATE , did not show a plot bearing that number . ORG and the land commission had thus restored the claimants’ rights to “ a non - existent plot under a non - existent plan ” .

In addition , the domestic courts found that the defendants had validly obtained title to their plot pursuant to the DATE exchange and the DATE contract of sale . Accordingly , they were entitled to hold the land as its owners .

Following the above developments , the applicants have not sought to obtain compensation in lieu of restitution in kind , a possibility provided for under the relevant provisions of the ORG .


Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Stéphanie Mourou-Vikström;Ksenija Turković

NORP The applicant , PERSON , is an NORP national . The President granted the applicant ’s request for her identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . She was represented before the ORG by PERSON , a lawyer practising in GPE .

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

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

NORP The applicant ’s mother PERSON , aged DATE , complained about lower back pain . She was diagnosed with radiculitis and hypertension by a general practitioner who also prescribed medicines for her . Since the pain did not disappear , PERSON was taken to hospital on DATE . She underwent an X - ray examination and was diagnosed with lumbar spondylosis and osteochondrosis . Medicines were prescribed for her and nursing care was ensured in ORG . While in hospital , she developed gangrene . On CARDINAL DATE she died in hospital . According to the notice of death the cause of her death was atherosclerosis with gangrene .

The applicant filed an offence report with the prosecutor ’s office , which refused to initiate criminal proceedings , considering that no offence had been committed . On DATE ORG dismissed the applicant ’s appeal . It was noted in the decision sent to the applicant that pursuant to LAW , the victim of an alleged offence could lodge a complaint with a court of appeal against a refusal by ORG to initiate criminal proceedings . It was further stated that such a complaint had to be lodged through a lawyer . The applicant did not lodge a complaint .

The applicant also turned to ORG kvaliteedi ekspertkomisjon ) . According to ORG opinion given on DATE the applicant ’s doubts and accusations that the staff of ORG had not given E. the required treatment and nursing care and had failed in their duty of care and thereby caused PERSON ’s death were groundless . Nevertheless , ORG noted that there were certain shortcomings in the documentation of PERSON ’s treatment . It made recommendations to ORG regarding the medical documentation and prevention and cure of pressure sores . It was noted in ORG assessment that the ORG ’s assessment created no legal rights or obligations but it could be used as evidence in civil proceedings .

Article CARDINAL of LAW ( Karistusseadustik ) lays down that negligent homicide is punishable by DATE imprisonment .

Article CARDINAL of the Code provides that causing serious health damage through negligence is punishable by a pecuniary punishment or DATE of imprisonment .

Article CARDINAL of the Code provides that placing or leaving another person in a situation that is life - threatening or likely to cause serious damage to the health of the person is punishable by a pecuniary punishment or up to three years’ imprisonment .

Article CARDINAL of LAW ( ORG seadustik ) establishes the principle of mandatory criminal proceedings according to which the investigative bodies and ORG are required to conduct criminal proceedings when facts referring to a criminal offence have become evident .

The Code of Criminal Procedure further provides :

“ ( CARDINAL ) An investigative body or ORG commences criminal proceedings by the first investigative activity or other procedural act if there is reason and grounds therefor and the circumstances provided for in LAW do not exist . ”

“ ( CARDINAL ) The reason for the commencement of criminal proceedings is a report of a criminal offence or other information indicating that a criminal offence has taken place .

( CARDINAL ) The grounds for criminal proceedings are constituted by ascertainment of criminal elements in the reason for the criminal proceeding . ”

“ ( CARDINAL ) If a health care professional conducting an autopsy suspects that the person died as a result of a criminal offence , he or she is required to notify an investigative body or ORG of such suspicion immediately . ”

“ ( CARDINAL ) Criminal proceedings shall not be commenced if :

NORP there are no grounds for criminal proceedings ; ... ”

Pursuant to LAW , the victim of an alleged offence can lodge a complaint with a court of appeal against a refusal by ORG to initiate criminal proceedings . Such a complaint must be lodged through a lawyer .

Section CARDINAL of the Establishment of the Cause of Death Act ( Surma põhjuse tuvastamise seadus ) provides that the death of a person who died at a hospital must be immediately notified to the person ’s attending physician or doctor on call . Furthermore , if there is reason to believe that a person has died as a result of a criminal offence or as a result of external causes or a suspicion thereof , an investigative body or ORG must be immediately notified thereof .

Section CARDINAL of the LAW provides that the doctor having received a notice of death must immediately perform an external examination of the deceased in order to establish death and ascertain the cause thereof . If the cause of death can not be established as a result of an external examination of the deceased or based on the information concerning his or her latest disease and treatment , the doctor must send the body for a pathoanatomical autopsy .

Upon ascertaining the elements of a criminal offence in respect of a death , the investigative body or ORG must commence criminal proceedings and order a forensic medical examination . In the case of a death caused by other external causes or a suspicion thereof or if the cause of death of a person is not established in another manner provided for in the law , the investigative body or ORG must send the body for a forensic medical autopsy ( section CARDINAL of the Act ) .

Section CARDINAL of the LAW provides that pathoanatomical autopsy is performed to ascertain an unclear cause death or in case of death caused by disease to assess the disease and the course thereof or if it is necessary in view of general health care and treatment quality if the cause of death can not be established as the result of an external examination of the deceased and based on the information the doctor has on the last disease and treatment of the deceased , and there is no reason for a forensic medical autopsy or forensic medical examination in criminal proceedings . Pursuant to section LOC ) of the LAW , a pathoanatomical autopsy must be performed , inter alia , in the case of an unclear death if there is no reason to believe that a person has died as a result of a criminal offence or due to external causes , in case of an unclear diagnosis of a disease in the person ’s lifetime , if the person undergoing hospital treatment died at the hospital within the first TIME and the doctor has no data on the cause of death , or if the person died as a result of diagnostic or treatment methods . In addition , a pathoanatomical autopsy is performed at the written request of the persons close to the deceased . A pathoanatomical autopsy is not be performed in order to establish the cause of death if the deceased suffered from a chronic illness in his or her lifetime which has been recorded in the documents evidencing the provision of health care services to the person and which caused his or her death due to complications or becoming acute .

Section CARDINAL of LAW ( ORG ) stipulates that non - pecuniary damage involves primarily the physical and emotional distress and suffering caused to the aggrieved person .

Section CARDINAL(CARDINAL ) provides that in the case of an obligation to compensate for damage arising from causing bodily injuries to or damage to the health of a person , the aggrieved person must be paid a reasonable amount of money as compensation for non - pecuniary damage . Section CARDINAL(CARDINAL ) provides that in the case of an obligation to compensate for damage arising from the death of a person or a serious bodily injury or health damage caused to the person , the persons close to the deceased or the aggrieved person may also claim compensation for non - pecuniary damage if payment of such compensation is justified by exceptional circumstances .

Section CARDINAL provides that a contract for the provision of health care services is also , inter alia , deemed to have been entered into upon commencement of the provision of health care services or assumption of the obligation to provide health care services with the consent of a patient , and also if commencement of the provision of health care services to a patient without the capacity to exercise his or her will corresponds to his or her actual or presumed intention .

Section CARDINAL stipulates that health care services must at the very least conform to the general level of medical science at the time the services are provided and the services must be provided with the care which can normally be expected of providers of health care services . If necessary , a provider of health care services must refer a patient to a specialist or involve a specialist in the treatment of the patient .

Section CARDINAL sets out an obligation for the provider of health care services to inform the patient and to obtain the patient ’s consent for his or her examination and the provision of health care services .

Section CARDINAL concerns the provision of health care services to patients who are incapable of exercising their will . In such circumstances , the provision of health care services is permitted without the consent of the patient if this is in the interests of the patient and corresponds to the intentions expressed by him or her earlier or to his or her presumed intentions and if failure to provide health care services promptly would put the life of the patient at risk or significantly damage his or her health . The intentions expressed earlier by a patient or his or her presumed intentions must , if possible , be ascertained using the help of his or her immediate family . The immediate family of the patient shall be informed of his or her state of health , the provision of health care services and the associated risks if this is possible in the circumstances .

Section CARDINAL sets out the obligation of a provider of health care services to document the provision of health care services .

LAW further provides :

“ ( CARDINAL ) Providers of health care services ... shall be liable only for the wrongful violation of their own obligations , particularly for errors in diagnosis and treatment and for violation of the obligation to inform patients and obtain their consent .

( CARDINAL ) Providers of health care services shall also be liable for the activities of persons assisting them and for any defects in the equipment used upon the provision of health care services .

( CARDINAL ) The burden of proof regarding circumstances which are the basis for the liability of the provider of health care services ... shall lie with the patient unless the provision of health care services to the patient is not documented as required .

( CARDINAL ) If there is an error in diagnosis or treatment and a patient develops a health disorder which could probably have been avoided by ordinary treatment , the damage is presumed to have resulted from the error . In this case , the burden of proof regarding the damage resulting from the health disorder shall also lie with the patient . ”

The rules on the non - contractual ( delict - based ) liability of LAW provide :

“ A person ( tortfeasor ) who unlawfully causes damage to another person ( victim ) shall compensate for the damage if the tortfeasor is culpable of causing the damage or is liable for causing the damage pursuant to the law . ”

“ ( CARDINAL ) If the death , bodily injury or damage to the health of a person is caused as a result of the violation of a contractual obligation , the tortfeasor shall also be liable for such damage on the basis provided in this LAW . ”

“ ( CARDINAL ) The causing of damage is unlawful if , above all , the damage is caused by :

causing the death of the victim ;

causing bodily injury to or damage to the health of the victim ; ”

“ ( CARDINAL ) Unless otherwise provided by law , a tortfeasor is not liable for the causing of damage if the tortfeasor proves that he or she is not culpable of causing the damage . ”

Health Services Organisation Act ( Tervishoiuteenuste korraldamise seadus ) provides :

“ ( CARDINAL ) ORG ... is an advisory committee the purpose of which is to assess the quality of health care services provided to patients and to make proposals arising from the assessment to ORG , ORG and the health care providers .

( CARDINAL ) ORG is competent to :

assess the quality of a health care service provided to a patient ;

make propositions to ORG for initiation of supervision proceedings over the activity of a health care provider ; ... ”

Under section CARDINAL of ORG , ORG , a governmental authority operating within the purview of ORG , shall exercise supervision over compliance with the requirements established for health care providers . Individuals have a right to submit complaints to the ORG regarding compliance with those requirements .

ORG in its judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) reiterated the principle of mandatory criminal proceedings provided for in LAW . It noted that while the principle in dubio pro reo required that the accused was to be given the benefit of the doubt when a judgment was made , the principle in dubio pro duriore applied in respect of initiation of criminal proceedings and at that stage any suspicion of crime was to be interpreted in favour of initiation of the proceedings . Nevertheless , due to the prevailing attitudes in society persons could also be stigmatized by merely initiating criminal proceedings in respect of them . Therefore , it was objectionable to initiate criminal proceedings in a situation where no suspicion of a crime existed at all or was merely theoretical .

ORG in its decision of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) examined a complaint against the refusal of ORG to initiate criminal proceedings related to serious health damage allegedly caused by a medical error . ORG ordered ORG to initiate criminal proceedings in order to clarify the circumstances described in the offence report . It noted , inter alia , with reference to ORG judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) , that if non - legal specialist knowledge had to be applied in criminal proceedings , an expert opinion had to be sought , whereas the decisions of ORG were not admissible as expert opinions in criminal proceedings . In that case ORG had granted legal aid to the alleged victim for filing the complaint with it against the decision of ORG .

ORG in its decision of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) confirmed the generally recognized concept that , for example , in case of manslaughter or murder the next - of - kin of the killed person was to be considered a victim .

ORG in its judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) , in a case concerning manslaughter , agreed with the lower court that had awarded the victim ’s next - of - kin non - pecuniary damages . ORG found that unlawful causing of the death of a person ’s very close next - of - kin ( the person ’s son ) should be considered an exceptional circumstance within the meaning of section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL above ) .

Further cases provide examples concerning medical negligence and related issues , such as conviction of a doctor of causing serious health damage through negligence under LAW ( ORG judgment of DATE , case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL , followed by ORG judgment of DATE in the same case ( no . CARDINAL - CARDINAL - CARDINAL ) in which also pecuniary and non - pecuniary damages were awarded ) , and conviction of an employee of the emergency call centre for leaving a person in a life - threatening situation under LAW ( ORG judgment of DATE , case no . CARDINAL - CARDINAL - CARDINAL ; subsequent to the criminal proceedings , the spouse of the deceased also initiated administrative court proceedings , was granted legal aid and awarded pecuniary and non - pecuniary damages ) . ORG , by a judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) , acquitted an ambulance worker who had been charged with negligent homicide under LAW for not having taken an intoxicated person with signs of trauma and problems of consciousness to the hospital but instead having handed the person over to the police .

As regards the connection between the criminal and civil proceedings in alleged medical malpractice cases , ORG in its decision of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) confirmed ORG Office ’s decision that failure of a doctor to comply with the duty of notification about medical treatment or keeping a documentary record of the treatment can be unlawful under civil law , but can not entail a criminal liability . ORG stressed that the violation of a duty under LAW entails liability under civil law , but that type of liability falls outside the scope of criminal proceedings .

As regards civil liability , ORG in its judgment of DATE ( no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) noted that a victim may claim compensation for the damage caused by the non - conforming health care service first and foremost on the basis of a breach of the health care services contract . In addition , in the case of causing health damage to a person as a result of a violation of contractual obligations the health care provider may also be liable under the provisions concerning compensation for unlawfully caused damage ( non - contractual liability ) ( section CARDINAL et seq . of LAW ; see paragraph CARDINAL above ) . In such a case , the victims may submit their claims alternatively and the legal basis of the claim has to be determined by a court regardless of the arguments of the parties .

ORG in its judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) reiterated that in the case of an error in diagnosis or treatment resulting in health damage to the patient , which could have probably been avoided by ordinary treatment , it is presumed that the damage occurred as a result of the error . The absence of the causal link must be proved by the defendant . In that case , the plaintiff was awarded compensation for non - pecuniary damage . The court also noted that an opinion of ORG constituted documentary evidence in civil court proceedings .

In several medical negligence cases non - pecuniary damages have been awarded . These include cases in which the duty of notifying the plaintiffs and obtaining their consent had been breached ( ORG judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) , and ORG judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) ; in the latter case ORG also granted the complainant ’s request for legal aid for filing an appeal with it ) .

In a judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) ORG dealt with the liability related to the provision of health care services . The court relied , inter alia , on the opinion of ORG . It noted that breach of the duty to notify the patient or to obtain the patient ’s consent did not serve as sufficient grounds for awarding damages if the patient had not sustained health damage as a result thereof . In that case the plaintiff had been granted legal aid .

ORG in its judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) noted that a person who had unlawfully been the victim of a bodily injury or health damage but who had only died later due to this also acquired the right to claim monetary compensation for non - pecuniary damage under section ORG ) of LAW . Under the conditions provided for in section CARDINAL(CARDINAL ) of LAW , such claims could be transferred or bequeathed , that is the successors of the deceased person could also file such a claim . In this case , the plaintiff had not acted as a successor in claiming compensation for the possible non - pecuniary damage caused to her spouse . ORG further noted that under section CARDINAL(CARDINAL ) of LAW the next - of - kin of a person who had died or sustained a serious injury or health damage could also claim compensation for non - pecuniary damage if payment of such compensation was justified by exceptional circumstances . Analysing the notion of “ exceptional circumstances ” , ORG found that these did not comprise causing of death or serious health damage as such and noted that grief inevitably accompanied the death of a close person . Rather , a compensation claim of next - of - kin was justified in case of spatial proximity with the next - of - kin at the time of causing of the damage or being a direct witness of an accident or its consequences as well as subsequent distress caused by seeing the injuries or suffering of the died or injured next - of - kin .

In a judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL - CARDINAL ) ORG dealt with a claim against the hospital for compensation for damage due to the causing of the death of the plaintiff ’s mother . The court , inter alia , considered that an opinion of ORG was admissible as documentary evidence . Relying on the said opinion , expert assessment ordered by the first - instance court and other evidence , the courts found that there was no causal link between the provision of the health care service and the death of the plaintiff ’s mother . As regards the damage , ORG noted that under section CARDINAL(CARDINAL ) of LAW the next - of - kin of the deceased also had an independent right of claim but held that the plaintiff had to substantiate and prove the existence of “ exceptional circumstances ” within the meaning of section CARDINAL(CARDINAL ) .

NORP In a case decided by ORG on DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) the courts established an error in treatment by a hospital that had caused the death of the FAC new - born child and ordered the defendant to pay ORG CARDINAL,CARDINAL to the mother and LAW to the father for non - pecuniary damage .

Lastly , further examples show that plaintiffs have been granted legal aid in proceedings related to compensation claims in medical negligence cases ( cases nos . CARDINAL and DATE ) .


No violation of Article 2 of Protocol No. 4 - Freedom of movement-{general} (Article 2 para. 1 of Protocol No. 4 - Freedom to choose residence)

Branko Lubarda;George Nicolaou;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and now lives in PERSON .

On DATE the applicant moved to the city of GPE . She took up residence in rented property at the address NORP Street CARDINAL . This address is located in the GPE district in GPE . The applicant had previously resided outside LOC ( Stadsregio Rotterdam ) .

The owner of the property asked the applicant , who by this time had CARDINAL young children , to vacate the property as he wished to renovate it for his own use . He offered to let the applicant a different property at the address LOC CARDINALA , also in the GPE area . The applicant stated that , since it comprised CARDINAL rooms and a garden , the property was far more suitable for her and her children than her FAC dwelling which comprised a single room .

In the meantime , GPE had been designated under LAW ( Wet bijzondere maatregelen grootstedelijke problematiek , see below ) as an area in which it was not permitted to take up new residence without a housing permit ( huisvestingsvergunning ) . Accordingly , on DATE the applicant lodged a request for a housing permit with the PERSON and Aldermen ( burgemeester en wethouders ) of GPE in order to be permitted to move to B. Street CARDINALA.

On DATE the PERSON and Aldermen gave a decision refusing such a permit . They found it established that the applicant had not been resident in LOC for DATE immediately preceding the introduction of her request . Moreover , since she was dependent on social - security benefits under ORG ( PERSON ) , she did not meet the income requirement that would have qualified her for an exemption from the residence requirement .

The applicant lodged an objection ( bezwaarschrift ) with the LOC and Aldermen .

On DATE the PERSON and Aldermen gave a decision dismissing the applicant ’s objection . Adopting as their own an advisory opinion by ORG ( PERSON bezwaarschriftencommissie ) , they referred to housing permits as an instrument to ensure the balanced and equitable distribution of housing and the possibility for the applicant to move to a dwelling not situated in a “ hotspot ” area .

NORP The applicant lodged an appeal ( beroep ) with ORG ( rechtbank ) . As relevant to the case , she argued that the hardship clause ought to have been applied . She relied on LAW .

ORG gave a decision dismissing the applicant ’s appeal on DATE . As relevant to the case before the ORG , its reasoning was as follows :

“ Section CARDINAL(CARDINAL ) of LOC ( LAW provides for the possibility of temporary restrictions on freedom of residence in areas to be indicated by the Minister [ sc . the Minister of ORG and the Environment ( Minister PERSON , PERSON en Milieubeheer ) ] . The aim of these restrictions is to reverse a process of overburdening and decreasing quality of life , particularly by striving towards districts whose composition is more mixed from a socioeconomic point of view . The restrictions are also intended actively to counteract the existing segregation of incomes throughout the city through the regulation of the supply of housing in certain districts and in so doing improve quality of life for the inhabitants of those districts ( Parliamentary Documents , ORG of ORG ( PERSON ) DATE , CARDINAL CARDINAL , no . CARDINAL , pages CARDINAL ) . In view of the aims of the law , as set out , these temporary restrictions on the freedom to choose one ’s residence can not be found not to be justified by the general interest in a democratic society . Nor can it be found that , given the considerable extent of the problems noted in certain districts in GPE , the said restrictions are not necessary for the maintenance of ordre public . ORG takes the view that the legislature has sufficiently shown that in those districts the ‘ limits of the capacity for absorption’ have been reached as regards care and support for the socioeconomically underprivileged and that moreover in those districts there is a concentration of underprivileged individuals in deprived districts as well as considerable dissatisfaction among the population about inappropriate behaviour , nuisance and crime . ”

The applicant lodged a further appeal ( hoger beroep ) with ORG ( GPE bestuursrechtspraak ) of ORG ( PERSON ) .

On DATE ORG gave a decision dismissing the applicant ’s further appeal . As relevant to the case before the ORG , its reasoning included the following :

“ ORG finds that , considering that the area in issue is CARDINAL designated under LAW , the LOC and Aldermen were entitled to take the view that the restriction [ on freedom to choose one ’s residence ] is justified in the general interest in a NORP society within the meaning of LAW of the DATE LAW . The area in issue is a so - called ‘ GPE , where , as has not been disputed , quality of life is under threat . The restriction resulting from section CARDINAL.CARDINAL(CARDINAL ) of the DATE Housing Bye - law ( DATE ) is of a temporary nature , namely for DATE . It is not established that the supply of housing outside the areas designated by the Minister in ORG is insufficient . What [ the applicant ] has stated about waiting times does not lead ORG to reach a different finding . ORG further takes into account that pursuant to section MONEY ) , introductory sentence and under b of ORG , the Minister is empowered to rescind the designation of the area if it turns out that persons seeking housing do not have sufficient possibility of finding suitable housing within the region in which the municipality is situated . In view of these facts and circumstances ORG finds that the restriction in issue is not contrary to the requirements of a pressing social need and proportionality . ORG therefore finds , as ORG did , that section CARDINAL.CARDINAL(CARDINAL ) of the DATE Housing Bye - law does not violate LAW . ”

An evaluation report after DATE following the introduction of the housing permit in GPE , commissioned by GPE ’s own ORG ( ORG ) , was published on DATE by ORG voor NORP en PERSON ) , a research and advice bureau collecting statistical data and carrying out research relevant to developments in GPE in areas including demographics , the economy and employment ( hereafter “ the DATE evaluation report ” ) .

The report notes a reduction of the number of new residents dependent on social - security benefits under the Work and Social Assistance Act in “ hotspot ” areas , though not , of course , a complete stop because GPE residents of CARDINAL years’ standing are not prevented from moving there .

From DATE until DATE there had been CARDINAL requests for a housing permit . Of these , CARDINAL had been granted ; CARDINAL had been refused ; CARDINAL had been rejected as incomplete ; and CARDINAL were still pending . The hardship clause ( section CARDINAL(CARDINAL ) of LOC ) had been applied in CARDINAL cases .

DATE of the housing permits granted concerned housing let by private landlords ; the remainder DATE had been granted through the intermediary of social housing bodies ( woningcorporaties ) . The latter selected their tenants with due regard to the official requirements , so that refusals of housing permits with regard to social housing were unheard of .

Of the persons refused a housing permit , DATE ( PERCENT of all those who met with a refusal ) had managed to find housing elsewhere relatively quickly .

The DATE evaluation report was presented to the local council on DATE . On DATE the local council voted to maintain the housing permit system as was and have a new evaluation report commissioned for DATE .

A second evaluation report , also commissioned by GPE ’s ORG , was published by ORG on DATE . It covered the period from DATE until DATE ( “ the DATE evaluation report ” ) , during which the events complained of took place .

During this period , the social housing bodies had let CARDINAL dwellings in the areas concerned . Since the social housing bodies could only accept tenants who qualified for a housing permit , no applications for such a permit had been rejected in this group .

Out of CARDINAL applications for a housing permit relating to privatelylet housing , CARDINAL had been accepted ( PERCENT ) ; CARDINAL had been refused ( PERCENT ) ; and CARDINAL had been pending at DATE . Examination of a further CARDINAL ( PERCENT ) had been discontinued without a decision being taken , generally because these applications had been withdrawn or abandoned ; the assumption was that many of these applications would in any case have been rejected . It followed , therefore , that if the pending cases were not taken into account , CARDINAL of this category of applications had been either refused or not pursued to a conclusion .

The reason to reject an application for a housing permit had been related to the income requirement in PERCENT of cases , sometimes in combination with another ground for rejection ; failure to meet the income requirement had been the sole such reason in PERCENT of cases .

Of CARDINAL persons refused a housing permit , CARDINAL had managed to find housing elsewhere in GPE ( PERCENT ) or elsewhere in the GPE ( PERCENT ) .

NORP The hardship clause had been applied CARDINAL times – expressed as a percentage of applications relating to privately - let housing , PERCENT of the total . These had been cases of preventing squatters from taking over housing left empty ( antikraak ) , illegal immigrants whose situation had been regularised by a general measure ( generaal pardon ) , assisted living arrangements for vulnerable individuals ( begeleid wonen ) , cooperative living arrangements ( woongroepen ) , start - up enterprises , the re - housing of households forced to clear substandard housing for renovation , and foreign students . In addition , in CARDINAL of cases the hardship clause had been applied because a decision had not been given within the prescribed time - limit .

The effects of the measure were considered based on CARDINAL indicators : proportion of residents dependent on social - security benefits under ORG , corrected for the supply of suitable housing ; perception of safety ; social quality ; and potential accumulation of housing problems :

( a ) It had been observed that in the areas where the housing permit requirement applied , the reduction of the number of new residents dependent on social - security benefits under the Work and Social Assistance Act had been more rapid in “ hotspot ” areas than in other parts of GPE . In addition , the number of residents in receipt of such benefits as a proportion of the total population of those areas had also declined , although it was still greater than elsewhere .

( b ) In CARDINAL of the areas where the housing permit requirement had been introduced , the increase in the perception of public safety had been more rapid than the GPE average . GPE had shown an increase initially , but was now back to where it had been before the measure was introduced . CARDINAL other area had actually declined significantly in this respect . All of the areas where the housing permit requirement applied were perceived as considerably less safe than GPE as a whole .

( c ) In terms of social quality , there had been improvement in most of the parts of GPE where problems existed , GPE among them . It was noted , however , that the effect of the housing permit in this respect was limited , since it only influenced the selection of new residents , not that of residents already in place .

( d ) Housing DATE defined in terms of turnover , housing left unused , and house price development – had increased somewhat in the affected areas including GPE , though on the whole at a slower rate there than elsewhere . Reported reasons for the increase were an influx of immigrants of mostly non - NORP extraction ( nieuwe Nederlanders , “ new GPE nationals ” ) and new short - term residents from LOC ; the latter in particular tended to stay for DATE or less before moving on , and their economic activity was more difficult to keep under review as many were self - employed .

Social housing bodies tended to view the housing permit requirement as a nuisance because it created additional paperwork . They perceived the measure rather as an appropriate instrument to tackle abuses by private landlords , provided that it be actively enforced and administrative procedures be simplified . Others with a professional involvement in the GPE housing market mentioned the dissuasive effect of the measure on would - be new residents of the affected areas .

The report suggested that the housing permit requirement might no longer be needed for CARDINAL of the existing “ hotspots ” ( not GPE ) . Conversely , CARDINAL other GPE districts scored high for CARDINAL indicators , while a sixth exceeded critical values for all CARDINAL .

A third evaluation report , this time commissioned by GPE ’s ORG ) , was published by ORG in DATE ( second revised edition ) . It covered the period from DATE until DATE ( “ the DATE evaluation report ” ) .

Based on the same indicators and methodology as the previous report , it concluded that the housing permit system should be continued in GPE and CARDINAL other areas ( including CARDINAL in which it had been introduced in the meantime , in DATE ) ; discontinued in CARDINAL others ; and introduced in CARDINAL area where it was not yet in force .

On DATE the Minister of the Interior and ORG ( Minister PERSON en ORG ) sent a separate evaluation report assessing the effectiveness of GPE and its effects in practice to ORG of ORG , as required by LAW . The Minister ’s missive stated the intention of the Government to introduce legislation in order to extend the validity of LOC . Requests to that effect had been received from a number of affected cities . It was noted that not all of the cities concerned had made use of all of the possibilities offered by the LAW ; in particular , only GPE used housing permits to select new residents for particular areas . Appended to the Minister ’s letter was a copy of the DATE evaluation report and a letter from the PERSON and Aldermen of GPE in which , inter alia , the desirability was stated of extending beyond DATE periods the indication of particular areas for applying the housing permit requirement : the measure was considered a success , and a DATE programme involving the large - scale improvement of housing and infrastructure ( the “ ORG GPE ” ( ORG , see below ) ) had been started in the southern parts of GPE in DATE .

On DATE the Minister of the Interior and ORG ( on behalf of ORG ) , PERSON on behalf of the municipality of GPE ) , and the presidents of a number of LOC boroughs ( deelgemeenten ) , social housing bodies and educational institutions signed ORG . This document noted the social problems prevalent in LOC inner - city areas , which it was proposed to address by providing improved opportunities for education and economic activity and improving , or if need be replacing , housing and infrastructure . It was intended to terminate the programme by DATE .

On DATE the Minister of the Interior and ORG , GPE ’s PERSON for housing , spatial planning , real property and the city economy ( wethouder PERSON , ruimtelijke ordening , vastgoed en stedelijke economie ) and the presidents of CARDINAL social housing bodies active in GPE signed an “ agreement concerning a financial impulse for the benefit of the Quality Leap South Rotterdam ( DATE ) ) ” ( ORG betreffende een financiële impuls CARDINAL behoeve PERSON GPE ( DATE ) ) . This agreement provided for a review of priorities in Government financing of housing and infrastructure projects in the GPE area within existing budgets and for a once - only additional investment of MONEY ( ORG ) . Of the latter sum , LAW had been reserved by the municipality of GPE until DATE ; another EUR CARDINAL would be added for the period starting in DATE . These funds would be used to refurbish or replace CARDINAL homes in GPE . A further ORG CARDINAL would be provided by the Government . The remainder would be spent by the social housing bodies on projects within their respective remit .

On DATE the Government introduced a PERSON proposing to amend LAW ( Parliamentary Documents , ORG of ORG DATE , CARDINAL , no . CARDINAL ) . The Explanatory Memorandum stated that its purpose was to empower municipalities to tackle abuses in the private rented housing sector , give municipalities broader powers of enforcement and make further temporal extension of the LAW possible .

The Inner City Problems ( Special Measures ) ( Extension ) Act ( Wet uitbreiding Wet bijzondere maatregelen grootstedelijke problematiek ) entered into force on DATE , enabling the designation of particular areas under section CARDINAL of GPE to be extended DATE before it was due to expire . It makes further extensions of the designation possible for successive DATE periods ( section CARDINAL(CARDINAL ) of ORG , as amended ) .

A further PERSON was introduced on DATE ( Parliamentary Documents , ORG of ORG , CARDINAL , no . CARDINAL ) . It purports to grant municipalities powers to deny housing permits to individuals with a criminal record . According to its Explanatory Memorandum ( Parliamentary Documents , ORG of ORG , CARDINAL , no . CARDINAL ) , the intention is to provide a legal basis for measures likely to constitute interferences with the right of freedom to choose one ’s residence , as guaranteed by LAW No . CARDINAL of the Convention and Article CARDINAL of LAW , and – since the measures in issue will of necessity entail the disclosure to local authorities of police information – with the right to private life as guaranteed by inter alia LAW . It is currently pending in ORG of ORG .

DATE . On DATE the applicant moved to rented housing in the municipality of Vlaardingen . This municipality is part of ORG .

As of CARDINAL DATE the applicant had been resident in ORG for DATE . She therefore became entitled to reside in CARDINAL of the areas designated under LOC ( LAW regardless of her sources of income .

The Government stated that no renovation or building permits were sought for the dwelling in LOC inhabited by the applicant at the time of the events complained of DATE and that no such permit was applied for in the period prior to DATE either .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

In DATE , as a result of an accident , the applicant ’s house had partially burnt and he had to live in the attic , which was not designed for lodging . The applicant considered that in the circumstances the authorities were under an obligation to provide him with free housing . His civil action against the municipality was dismissed in court .

NORP In DATE the applicant lodged complaints with ORG and ORG against the judges who had dealt with his civil case . In particular , the applicant , using abusive language , accused them of having taken bribes from the defendant in the amount of ORG , falsification of evidence , terrorism , abuse of power as well as inciting racial and ethnic hatred .

On DATE the applicant was arrested under suspicion of having committed defamation of a judge and deliberately false denunciation .

On DATE ORG of GPE ( ORG районный суд г. PERSON ) remanded the applicant in custody . His detention on remand was subsequently extended at regular intervals by relevant detention orders .

The investigator ordered the applicant ’s psychiatric evaluation in ORG in GPE ( NORP научный центр социальной и судебной психиатрии им. PERSON ) ( “ the ORG Centre ” ) .

On DATE the experts concluded that he showed symptoms of paranoid personality development , was in need of an outpatient supervision and treatment . At the same time they concluded that the applicant was sane , fit to stand trial and highlighted that he had no history of mental disorders .

On DATE the prosecution transferred the applicant ’s case to ORG ( ORG городской суд ) for examination . ORG ordered an additional forensic psychiatric examination by ORG .

On DATE the experts concluded that the applicant was suffering from a chronic mental disorder - paranoid personality development – and needed involuntary treatment in a specialised psychiatric facility . The experts based their assessment , inter alia , on the applicant ’s “ overvalued ” ideas expressed in numerous petitions to various authorities “ in a grotesque form ” , attempts to “ find the truth ” , contradictions in his opinions , ambivalence etc . The experts also concluded that the applicant had been insane at the time of the impugned offences and unfit to stand trial .

On an unspecified date ORG ordered another forensic psychiatric examination of the applicant by ORG .

On DATE the new report confirmed the findings of the previous report of CARDINAL DATE . In addition , the experts found that the applicant was a danger to society , stating as follows :

“ [ T]aking into account that [ the applicant ] shows , in subjectively significant situations , a tendency towards rapid formation of overvalued ideas which sometimes reach a delusional level , broadening of the circle of persons brought into the focus of these emotions , grave emotional disturbances with non - corrective behavior , rejection of regime requirements , lack of critical attitude to his [ emotional ] state , dissimulation , [ he ] is a danger to the society and needs compulsory treatment in a specialised psychiatric hospital ” .

On DATE ORG having established the principal facts in respect of the abovementioned offences discontinued criminal proceedings against the applicant due to his insanity . The court referring to the findings and recommendations of the psychiatrists ordered the applicant ’s involuntary treatment in a psychiatric hospital .

On DATE ORG of GPE summarily upheld the lower court ’s decision .

In DATE the applicant was transferred from a remand prison to a psychiatric facility . In DATE he was released from the hospital .


CASE OF KHAYNATSKYY AND OTHERS v. UKRAINE

Violation of Article 6 - Right to a fair trial (Article 6 - 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);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

On the dates set out in the appended tables domestic courts and labour disputes commissions delivered decisions according to which the applicants were entitled to various pecuniary amounts or to have certain actions taken in their favour . The decisions became final and enforceable . However , the applicants were unable to obtain the enforcement of the decisions in due time .

Some of the applicants also made submissions concerning factual and legal matters unrelated to the above non - enforcement issues .