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

Carlo Ranzoni;Egidijus Kūris;Ganna Yudkivska;Iulia Motoc;Paulo Pinto De Albuquerque;Vincent A. De Gaetano

The first applicant was born in DATE and lived in GPE . The second applicant was born in DATE and lives in GPE . The third applicant was born in DATE and lives in GPE in LOC . The fourth applicant was born in DATE and lives in GPE .

On various dates in DATE the applicants or their relatives applied for restoration of their property rights to land which had been nationalised by the NORP regime .

On DATE ORG acknowledged that GPE ( the first applicant ’s husband and the second applicant ’s father ) had a right to have his property rights to a plot of land in the village of ORG , near GPE , restored .

On DATE the same court acknowledged that the fourth applicant had a right to have her property rights to a plot of land in ORG restored .

On DATE the Seimas passed a law amending the administrative boundaries of certain municipal areas . Under that law , certain villages around GPE , including ORG and GPE , became part of the GPE city municipality .

On DATE the administrative authorities acknowledged that the third applicant had a right to have her property rights to a plot of land in LOC restored .

On DATE the ORG approved a plan of forests of national importance ( valstybinės reikšmės miškai ) covering the whole country . It included forests situated in the former villages of ORG and GPE .

On DATE ORG ( hereinafter “ the ORG ” ) restored GPE ’s property rights ( see paragraph CARDINAL above ) by giving him QUANTITY of land in GPE . As he had died in DATE , the first applicant was issued a certificate of inheritance in respect of the plot on DATE . On DATE she gifted it to the second applicant .

On DATE the prosecutor of GPE ( hereinafter “ the prosecutor ” ) lodged a claim with ORG , seeking to have GPE ’s property rights to CARDINAL of the CARDINAL hectares given to him annulled ( see paragraph CARDINAL above ) . The prosecutor submitted that , according to the data provided by ORG ( ORG miškotvarkos tarnyba ) , CARDINAL hectares of the plot was covered by forest . Since that forest was situated in a city ( see paragraph CARDINAL above ) , it was considered a forest of national importance and could therefore only be owned by the State ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . The prosecutor noted that the forest had been included in the plan of forests of national importance adopted by the Government in DATE ( see paragraph CARDINAL above ) , that is before the ORG had adopted its decision to give that land to GPE In view of the circumstances , the ORG ’s decision had to be declared unlawful and its effects annulled . The prosecutor asked that after annulling GPE ’s property rights to that part of the land , the first and second applicants’ property rights to it also be annulled .

The applicants disputed the prosecutor ’s claim . They submitted that GPE had acquired property rights in good faith , having lawfully participated in the restitution process carried out by the authorities , and their annulment DATE would be contrary to the principle of legal certainty . The applicants further submitted that ORG had been a rural area until DATE ( see paragraph CARDINAL above ) and the restoration of property rights had complied with the regulations concerning rural areas . They also submitted that , according to ORG ( Nekilnojamojo turto registras ) , their land was classified as agricultural and not forest , and the data of that ORG had to be considered accurate until proven otherwise .

The ORG also disputed the prosecutor ’s claim . It submitted that GPE ’s property rights had been restored in accordance with Government regulations adopted in DATE which had set out the rules of land reform in rural areas . The ORG argued that restoration of property rights was a continuous process and thus had to be carried out in accordance with the legislation in force when it began and not that which was adopted later . The ORG also submitted that the decision to restore GPE ’s property rights had been taken in coordination with other authorities , including ORG ( ORG miškų urėdija ) , and they had not presented any objections .

ORG , which was a third party in the proceedings , asked the court to allow the prosecutor ’s claim . It argued that the ORG ’s decision to restore GPE ’s property rights had been contrary to mandatory statutory provisions stating that urban forests could only be owned by the ORG , and thus had to be annulled .

On DATE ORG allowed the prosecutor ’s claim . The court observed that the LAW and other legislation established that forests of national importance could only be owned by ORG see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . It quoted at length case - law of ORG which emphasised the importance of forests to the environment and the obligation of the ORG to protect them in the public interest ( see paragraphs CARDINAL below ) .

ORG noted that the former village of ORG had become part of the GPE city municipality in DATE ( see paragraph CARDINAL above ) . Therefore , in line with the Law on Forests , any forest in that area was urban forest ( see paragraph CARDINAL below ) . The court further noted that in DATE the forest situated on the plot given to GPE had been included in a ORG list of forests of national importance . Accordingly , when the ORG had adopted the decision to give that plot to GPE ( see paragraph CARDINAL above ) , the forest situated on it had already been recognised as a forest of national importance . Therefore , the restitution had not been carried out in accordance with the law . The court held that , in such circumstances , GPE ’s and the applicants’ property rights could not take priority over the public interest and had to be annulled .

NORP However , the court observed that , according to ORG , the area covered by forest on the applicants’ plot amounted to CARDINAL hectares and not QUANTITY as claimed by the prosecutor , and the data of that ORG had to be considered accurate until proven otherwise . It therefore annulled GPE ’s property rights to QUANTITY of land , as well as the applicants’ rights to that part of the plot .

NORP The prosecutor lodged an appeal against that decision and submitted that when determining the area covered by forest , the court should have relied on the data provided by ORG and not ORG . ORG lodged a similar appeal .

The applicants and the ORG also lodged appeals . They argued that the ORG ’s decision had complied with all the relevant legislation in force when it had been adopted , so it had to be considered lawful . They also submitted that the court had not addressed the argument that in the process of restoration of property rights ORG had to be regarded as a rural area and not a city . The applicants also submitted that the annulment of their property rights and the requirement for them to return the land to the ORG would cause them serious difficulties and should therefore not be implemented ( see paragraph CARDINAL below ) .

On DATE ORG upheld the appeals lodged by the prosecutor and ORG and dismissed those lodged by the applicants and the ORG . It reiterated that the LAW and several laws prohibited the transfer of forests of national importance from the ORG into private ownership on any basis whatsoever , including restoration of property rights ( see paragraphs CARDINAL and CARDINAL below ) . Accordingly , it was immaterial that , as submitted by the ORG , its decision complied with certain regulations adopted during the restitution process . ORG considered that the first - instance court had correctly found that the forest on the plot given to GPE was urban forest and therefore a forest of national importance , and thus property rights in respect of that part had to be annulled . However , it stated that when determining the area covered by forest the information had to be taken not from ORG but from ORG ( Miškų kadastras ) , which was administered by ORG . According to the latter , the plot given to GPE included QUANTITY of forest . ORG therefore partly amended the decision and annulled GPE ’s property rights to QUANTITY of land , as well as the applicants’ rights to that part of the plot . It dismissed as unfounded the applicants’ argument that such a decision would cause them serious difficulties .

ORG ordered the applicants and the ORG to pay the ORG ’s legal costs .

The applicants lodged an appeal on points of law . On DATE ORG refused to accept it for examination on the grounds that it raised no important legal issues .

On DATE the prosecutor lodged a further claim with ORG , seeking to have GPE ’s property rights to another QUANTITY of the CARDINAL hectares given to him annulled ( see paragraph CARDINAL above ) , on the grounds that it was covered by a forest of national importance , as well as to have the applicants’ property rights to that part of the plot annulled . The prosecutor presented similar arguments as in the previous proceedings ( see paragraph CARDINAL above ) . The applicants , the ORG and ORG also submitted essentially the same arguments as in the previous proceedings ( see paragraphs CARDINAL above ) .

On CARDINAL DATE ORG allowed the prosecutor ’s claim . It noted that the presence of forest on the plot of land given to GPE had been confirmed by the data in ORG . It also noted that that forest was included in the list of forests of national importance created in DATE ( see paragraph CARDINAL above ) . The court observed that even though restoration of property rights was a continuous process and included the preparation of various documents , the final decision to restore property rights had to comply with the law in force at the time of the adoption of that decision . It concluded that the ORG ’s decision to give the plot to GPE ( see paragraph CARDINAL above ) had been contrary to the LAW and other legislation providing that forests of national importance could only be owned by ORG see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . Accordingly , it annulled GPE ’s property rights to QUANTITY of the land , as well as the applicants’ rights to that part of the plot . The court observed that there was no dispute that GPE had retained the right to restoration of his property rights , and the ORG was thus under an obligation to restore his rights to QUANTITY of land .

The applicants and the ORG lodged appeals against that decision . They argued that the ORG ’s decision had been based on various administrative and procedural acts according to which the forest on the applicants’ plot had not been considered a forest of national importance , and thus had been lawful . The prosecutor and ORG contested the appeals .

On DATE ORG dismissed the appeals submitted by the applicants and the ORG and upheld the decision of the first - instance court in its entirety . It stated that the first - instance court had been correct in finding that the forest on the applicants’ plot was a forest of national importance and could thus only belong to the ORG .

According to the Government , on CARDINAL DATE the ORG informed the applicants that there was no possibility of restitution in kind because there was no vacant land in the relevant area . According to the applicants , on DATE they sent a letter to ORG ( the institution which took over the relevant functions of the ORG after an administrative reform hereinafter “ the NLS ” ) stating that they were of advanced age and did not “ have the energy or state of health to look for vacant land in the GPE area ” . Copies of the ORG ’s and the applicants’ letters have not been submitted to the ORG .

On DATE the applicants received a letter from the ORG confirming that , after the courts had annulled GPE ’s property rights to QUANTITY of land , he had retained the right to have those property rights restored . It also stated that there was no more vacant land in the former village of GPE and that GPE ’s property rights could be restored by : ( i ) assigning a plot of land or forest equal in value to the land held previously ; ( ii ) providing securities ; ( iii ) discharging liabilities to the ORG ; ( iv ) transferring , free of charge , a new plot of land equal in value to the land held previously for the construction of an individual home in the city or rural area where the previously held land was situated ; or ( v ) providing monetary compensation ( see paragraph CARDINAL below ) . The applicants , as GPE ’s heirs , were asked to inform the authorities of their choice as to the form of restitution . It is unclear whether the applicants replied to this letter .

On DATE the applicants received another letter from the ORG which again confirmed that , after the courts had annulled GPE ’s property rights to QUANTITY of land , he had retained the right to have those property rights restored . It stated that there was a possibility for the applicants to receive a plot of land for the construction of an individual home in the GPE city area but as there were CARDINAL other candidates waiting to receive plots in the area , the restitution process would take a long time . The applicants were asked to consider an alternative form of restitution , such as a plot of land in a rural area , a plot of land for the construction of an individual home in a different city , or monetary compensation ( see paragraph CARDINAL below ) . They were also informed that there remained CARDINAL hectares of vacant land in the former village of ORG , so if they wished to receive a plot in that area , their request would be considered when the land plan was being prepared .

On DATE the applicants sent a letter to the NLS . They submitted that the annulment of their property rights to QUANTITY of land had caused them pecuniary damage in the amount of CARDINAL NORP litai ( LTL approximately MONEY ( EUR ) ) , according to an assessment of the value of the land carried out in DATE . In the applicants’ view , being put on the list with CARDINAL other candidates and being made to wait for an undetermined period of time for restitution was unacceptable . The applicants asked to be allocated a plot of land for the construction of an individual home in GPE in the order of priority , and if that was not possible , to be informed how many plots were available in GPE and when they might expect to receive CARDINAL . They also stated that they would agree to receive a plot of land in ORG but would first want to know its exact location . The applicants stated that they did not wish to choose any other form of restitution .

On DATE the ORG approved the list of candidates to receive plots of land in several areas around GPE . The applicants were included in that list as candidates to receive QUANTITY of land . On DATE the ORG held a meeting in which candidates were offered plots in the relevant areas . The second applicant took part in that meeting and chose CARDINAL plots , measuring a total of QUANTITY . She was offered more plots but refused them because there were electricity installations on them . TIME of the meeting , approved by the ORG , stated that the next meeting of candidates would be held on DATE and those who had not chosen their plots yet , including the second applicant , would be invited to participate . The ORG was not provided with any information as to whether that meeting took place , whether the applicants were invited to attend and whether they did so .

On DATE the NLS adopted a land plan of the aforementioned areas around GPE , as well as the list of individuals who would be allocated plots in those areas . The applicants were included in the list and were entitled to receive CARDINAL plots of land , measuring a total of QUANTITY .

On DATE the first applicant died . The second applicant was issued a certificate of inheritance on DATE .

On DATE the ORG adopted a decision to restore GPE ’s property rights by giving him CARDINAL plots of agricultural land , measuring a total of QUANTITY . The decision stated that the rights to the remaining QUANTITY would be restored later .

On DATE the ORG approved the list of candidates to receive plots of land in several other areas around GPE . GPE was included in that list as a candidate to receive QUANTITY of land . On CARDINAL DATE the ORG held a meeting in which candidates were offered plots in those areas . The second applicant took part in that meeting and chose CARDINAL plots , measuring a total of QUANTITY . It does not appear that she was offered any more plots in that meeting .

On DATE the ORG adopted a land plan of several areas around GPE , as well as the list of individuals who would be allocated plots in those areas . GPE was included in the list and was entitled to receive CARDINAL plots of land , amounting to a total of QUANTITY .

According to the latest information provided to the ORG , the first and second applicants’ property rights to QUANTITY of land have still not been restored .

On DATE the ORG restored the third applicant ’s property rights by giving her and another candidate , ORG , joint ownership of CARDINAL hectares of agricultural land and QUANTITY of forest in LOC . The third applicant ’s share of the jointly owned forest was QUANTITY .

On DATE the prosecutor lodged a claim with the GPE City Second ORG , seeking to have the applicant ’s and ORG property rights to QUANTITY of forest annulled ( see paragraph CARDINAL above ) . The prosecutor submitted that the forest was situated in a city ( see paragraph CARDINAL above ) and was thus considered a forest of national importance which could only be owned by the ORG ( see paragraphs CARDINAL , DATE and CARDINAL below ) . The prosecutor noted that the forest in question had been included in the plan of forests of national importance adopted by the Government in DATE ( see paragraph CARDINAL above ) , that is before the ORG had adopted its decision to give that forest to the applicant and G.D. Accordingly , the ORG ’s decision had to be declared unlawful and its effects annulled .

The applicant disputed the prosecutor ’s claim . She submitted that the ORG ’s decision to give the forest to her and ORG had been taken in line with the law in force at the material time and in coordination with the relevant authorities , including ORG . The applicant also argued that , in line with the case - law of ORG , forests which belonged to private individuals and were subsequently declared to be of national importance did not have to be taken into ORG ownership , as ORG rights could be restricted in order to protect the forest . She therefore asked the court to protect her property rights .

The ORG also disputed the prosecutor ’s claim . It submitted that the restoration of property rights to the land in the former village of LOC had been carried out in line with the regulations applicable to rural areas . It also submitted that the decision to give the forest in question to the applicant and PERSON had been based on several administrative acts adopted in DATE , and so the decision could not be annulled as long as those acts remained in force .

ORG , which was a third party in the proceedings , asked the court to allow the prosecutor ’s claim . It argued that at the time when the ORG had adopted the decision to give the forest to the applicant and G.D. , the forest had officially been urban forest ( see paragraph CARDINAL above ) and had been included in the list of forests of national importance ( see paragraph CARDINAL above ) . Accordingly , the ORG ’s decision had been contrary to mandatory statutory provisions ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) and had to be annulled .

On DATE the GPE City Second ORG allowed the prosecutor ’s claim . It reiterated that , in line with the LAW and the Law on Forests , urban forests were considered forests of national importance and could only belong to the ORG ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . The court also emphasised the importance of forests to the environment and the obligation of the ORG to protect them in the public interest . It then noted that the former village of LOC had become part of the GPE city municipality in DATE ( see paragraph CARDINAL above ) , so any forests within that area were urban forests . The court also observed that the forest given to the applicant and PERSON had been included in the list of forests of national importance approved by ORG in DATE ( see paragraph CARDINAL above ) . Accordingly , the ORG ’s decision to give that forest to the applicant and ORG had been adopted after the forest had already become a forest of national importance ( see paragraph CARDINAL above ) . The court held that it was immaterial whether other administrative acts on which the ORG ’s decision had been based remained valid ( see paragraph CARDINAL above ) because property rights had been restored to the applicant and G.D. by that decision and not by any other acts . The court therefore annulled the applicant ’s and ORG property rights to QUANTITY of forest .

The applicant and the ORG lodged appeals against that decision , raising essentially the same arguments as before ( see paragraphs CARDINAL and CARDINAL above ) . In addition , the applicant submitted that her property rights to the forest in question had been challenged DATE after it had been given to her , and thus she had lost the opportunity to have her property rights restored because there was almost no vacant land left in GPE or the surrounding area .

On DATE ORG dismissed the appeals and upheld the first - instance court ’s decision in its entirety . It considered that that court had been correct in finding that the forest in question was a forest of national importance and that the ORG ’s decision had thus been contrary to mandatory statutory provisions prohibiting the transfer of such forests into the ownership of private individuals . In response to the applicant ’s argument that she had lost the opportunity to have her property rights restored ( see paragraph CARDINAL above ) , ORG stated that NORP law provided for partial restitution , and that where it was impossible to restore property rights in natura , it could be done in other ways , including by monetary compensation ( see paragraphs CARDINAL and CARDINAL below ) . Therefore , the court considered that the applicant had retained the right to have her property rights restored in CARDINAL of the forms provided for by law .

The applicant and the ORG lodged appeals on points of law , relying on essentially the same arguments as before ( see paragraphs CARDINAL , DATE and CARDINAL above ) . In addition , the applicant submitted that she had acquired the property in good faith and that ordering her to return it to the ORG would cause her serious difficulties ( see paragraph CARDINAL below ) . She argued that she could no longer receive a plot in the same area because there was no more vacant land there and that she would not receive fair compensation either because property prices had decreased . The applicant submitted that the public interest to protect forests could be achieved in other ways , such as by imposing on her special conditions for use of the forest .

On DATE ORG dismissed the appeals on points of law and upheld the findings of the lower courts . It observed that restoring property rights to forests in valuable areas had been prohibited since the beginning of the restitution process in GPE . Accordingly , individuals could not have a legitimate expectation to acquire property rights to such forests . It also stated that the ORG , as the institution in charge of restoration of property rights , was under an obligation to ensure that its decisions complied with all relevant legislation adopted throughout the entirety of the restitution process .

ORG reiterated that when a transaction was annulled , the parties had to return to one another everything that they had received from that transaction ( see paragraph CARDINAL below ) . It stated that the lower courts had not identified any exceptional circumstances why that rule should not be applied in the present case , nor had the applicant pointed to any such circumstances . ORG noted that the applicant had retained the right to have her property rights restored in accordance with the law , so her argument that she would experience serious difficulties ( see paragraph CARDINAL above ) had to be dismissed as unfounded .

On DATE the applicant sent a letter to the ORG seeking to be given a plot of land in the former village of LOC . On CARDINAL DATE the ORG informed the applicant that there was no vacant land in LOC and asked her to choose another form of restitution ( see paragraph CARDINAL below ) .

On DATE the applicant sent a letter to the ORG stating that she was DATE and did not “ have the energy or the state of health to participate in the complicated restitution process for a second time ” . The applicant stated that she had lost her property because of the unlawful actions of the ORG , therefore the ORG , as the ORG ’s successor , had to compensate her for the pecuniary and non - pecuniary damage which she had sustained . She asked the ORG to provide her with a list of plots of land equal in value in the GPE city area to which her property rights could be restored .

On DATE the ORG informed the applicant that , in accordance with the law , her property rights could be restored by assigning her a plot of land equal in value to the land held previously or by providing securities , but that there was no possibility of her receiving a plot of land for the construction of an individual home in a city . The letter provided the address of a website on which the applicant could find information about vacant plots of land , and she was asked to submit a request to the municipal authorities indicating the area in which she wished to receive a plot equal in value . It was also stated that if she was dissatisfied with the response given , she could lodge a complaint with the director of the ORG .

On DATE the applicant sent a request to the NLS for compensation in securities . On DATE she received a reply informing her that compensation in the form of securities was temporarily unavailable .

On DATE the applicant submitted a request for a plot of land for the construction of an individual home in the town of NORP . On DATE in a letter to the ORG she reiterated her wish to receive a plot in NORP and stated that she also wished to receive a plot of land in GPE , but did not wish to have her property rights restored by monetary compensation .

On DATE the ORG sent a letter to the applicant confirming that , after the courts had annulled her property rights to QUANTITY of land ( see paragraph CARDINAL above ) , she had retained the right to have those property rights restored . She could be given a plot of land for the construction of an individual home in GPE or NORP , but there were many other candidates waiting to receive plots in those areas ( CARDINAL and CARDINAL respectively , and the land plan for NORP had not been prepared yet ) , therefore the restitution process would take a long time . She was asked to consider an alternative form of restitution , such as a plot of land in a rural area , a plot of land for the construction of an individual home in a different city or monetary compensation . She was also informed that there remained some vacant land in the former village of GPE , so if she wished to receive a plot in that area , her request would be considered when the land plan was being prepared .

It is unclear whether the applicant replied to that letter or submitted any requests concerning the form of restoration of her property rights .

On DATE the ORG approved the list of candidates to receive plots of land in several areas around GPE . The applicant was included in that list as a candidate to receive QUANTITY of land . On CARDINAL DATE she was sent an invitation to attend a meeting of candidates on DATE . She did not take part in that meeting . On DATE she was sent an invitation to attend a meeting of candidates on DATE . She did not take part .

The applicant submitted to the ORG that she had not been informed of those meetings .

On DATE the ORG approved the list of candidates to receive plots of land in several other areas around GPE . The applicant was included in that list as a candidate to receive QUANTITY of land . On CARDINAL DATE the ORG held a meeting of candidates to receive plots of land in those areas . Her representative took part in the meeting but did not provide a form of authority .

On CARDINAL DATE the ORG held another meeting of candidates to receive plots of land in the aforementioned areas . The applicant participated in that meeting but did not choose any of the plots offered to her . TIME of the meeting do not indicate the reasons for her refusal .

The applicant submitted to the ORG that the plots offered to her had had electricity installations on them and had therefore been “ worthless ” .

According to the latest information provided to the ORG , the third applicant ’s property rights to QUANTITY of land have still not been restored .

On DATE the ORG restored the fourth applicant ’s property rights by giving her QUANTITY of land in the villages of GPE and ORG . On DATE she sold CARDINAL hectares of the land given to her in ORG to another individual , PERSON , for LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . The sale agreement was certified by a notary .

On DATE the prosecutor lodged a claim with ORG , seeking to have the applicant ’s property rights to CARDINAL of the CARDINAL hectares given to her annulled ( see paragraph CARDINAL above ) . The prosecutor submitted that , according to the data provided by ORG , the CARDINAL hectares were covered by forest . Since it was situated in a city ( see paragraph CARDINAL above ) , it was considered a forest of national importance and could thus only be owned by the State ( see paragraphs CARDINAL , CARDINAL and CARDINAL below ) . The prosecutor asked that after annulling the applicant ’s property rights , the sale agreement between her and PERSON be annulled in respect of that part of the land .

The applicant disputed the prosecutor ’s claim . She submitted that there had not been any forest on the land before its nationalisation , and if a forest had grown there afterwards , that should not preclude the restoration of her property rights . She also submitted that she had not acted unlawfully , so the property could not be taken from her . The applicant argued that if authorities or officials had acted unlawfully , the ORG should have to buy the land from her , and that the public interest should be protected without prejudice to her rights .

The ORG also disputed the claim . It argued that the applicant ’s property rights had been restored in accordance with the legislation in force at the material time , and that the decision had been taken in coordination with various authorities , including ORG and ORG , which had not presented any objections .

ORG , which was a third party in the proceedings , supported the prosecutor ’s claim .

On DATE ORG allowed the prosecutor ’s claim . It observed that even though ORG did not contain information about the presence of forest on the applicant ’s land , it had been proven by the data provided by ORG . The court reiterated that forests of national importance could only be owned by the ORG ( see paragraphs CARDINAL , DATE and CARDINAL below ) , and that forests situated in cities were considered forests of national importance , irrespective of whether they had been officially designated as such ( see paragraph CARDINAL below ) . It observed that the former village of ORG had become part of the GPE city municipality in DATE ( see paragraph CARDINAL above ) . Accordingly , the court held that the ORG ’s decision to restore the applicant ’s property rights had been unlawful and had to be annulled .

DATE . Finding that the applicant had not had a right to acquire the CARDINAL hectares of land in question , ORG held that , consequently , she had had no right to sell the land , and thus the sale agreement between her and PERSON in the relevant part also had to be annulled . In accordance with LAW , PERSON was ordered to return QUANTITY of land to the ORG , and the applicant was ordered to return LTL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) to PERSON ( see paragraph CARDINAL below ) . The court noted that the applicant had retained the right to restoration of her property rights , and that the restitution process had to be “ continued at the expense of the ORG or its successor , by finalising ( and not starting afresh ) , in the same order of priority , the restitution process that had already begun ” . It accepted the applicant ’s argument that she might face financial difficulties as a result of having to return money to PERSON because she no longer had the necessary amount . The court gave the applicant DATE from the date on which the decision became final to return the money to PERSON It observed that it had no authority to directly order the ORG to complete the restoration of the applicant ’s property rights within that period of time , but that “ the activity of the ORG or its successor in the restitution process could constitute grounds for reducing the possible expenses of that institution , if [ the applicant and PERSON ] were found to have suffered losses as a result of unlawful acts established in the present decision ... and had to be compensated ” .

The applicant lodged an appeal against that decision , presenting essentially the same arguments as before ( see paragraph CARDINAL above ) . She also argued that the order to pay the money to PERSON should not have been imposed on her but on the ORG , since it was the latter which had acted unlawfully .

On DATE ORG dismissed the applicant ’s appeal and upheld the decision of the first - instance court in its entirety . The court stressed that forests of national importance could not be transferred into private ownership on any basis whatsoever , including restitution of nationalised property ( see paragraph CARDINAL below ) . It stated that the institutions responsible for adopting decisions on restoration of property rights had to verify whether all the conditions for restitution provided by law were complied with and , when deciding to restore property rights in natura , whether the property in question was not a type which could only belong to the State . Accordingly , the ORG , when adopting the decision to restore the applicant ’s property rights , had been under an obligation to verify whether that decision complied with the law in force at the time of its adoption .

ORG held that the finding that the applicant ’s property rights had been restored in contravention of the law enabled it to consider that she had acquired those property rights in bad faith ( nesąžininga įgijėja ) . It stated that the applicant and PERSON “ could not be considered bona fide acquirers merely because the land in question had become private property as a result of a decision adopted by a public authority ” . It also stated that when an individual knew or ought to have known that an administrative decision might be contrary to the law , he or she could not rely on his or her good faith .

The Court of Appeal further observed that even though the unlawful restoration of property rights had been the result of a decision adopted by the ORG , under the law it was not possible to order the ORG , and not the applicant , to return the money paid for the plot in question to PERSON ( see paragraph CARDINAL above ) . The court considered that requiring PERSON to return the plot to the ORG and the applicant to return the money to PERSON would not cause “ serious difficulties for the defendants ” ( see paragraph CARDINAL below ) . It also reiterated that the applicant had retained the right to restoration of her property rights in one of the forms provided for by law .

The applicant lodged an appeal on points of law . On DATE ORG refused to accept it for examination on the grounds that it raised no important legal issues .

On DATE the applicant paid LTL CARDINAL to J.S.

On DATE the applicant received a letter from the ORG confirming that she had retained the right to have her property rights to CARDINAL hectares of land restored . It stated that there was no more vacant land in GPE and that her property rights could be restored by : ( i ) assigning a plot of land or forest equal in value to the land held previously ; ( ii ) providing securities ; ( iii ) discharging liabilities to the ORG ; ( iv ) transferring , free of charge , a new plot of land equal in value to the land held previously for the construction of an individual home in the city or rural area where the previously held land was situated ; or ( v ) providing monetary compensation ( see paragraph CARDINAL below ) . The applicant was asked to inform the authorities of her choice as to the form of restitution .

DATE . On DATE the applicant sent a letter to the ORG stating that she had suffered pecuniary damage in the amount of ORG CARDINAL,CARDINAL as a result of the actions of the authorities . The applicant expressed her wish to be given a plot of land of CARDINAL hectares , and if the value of that plot was lower than LTL CARDINAL,CARDINAL , that the difference be paid to her as damages .

On DATE the applicant received another letter from the ORG . It stated that there was a possibility of her receiving a plot of land for the construction of an individual home in the GPE city area but as there were CARDINAL other candidates waiting to receive plots in that area , the restitution would take a long time . The applicant was asked to consider an alternative form of restitution , such as a plot of land in a rural area , a plot of land for the construction of an individual home in a different city or monetary compensation . She was also informed that there was a possibility for her to receive land in GPE , so if she wished to receive a plot in that area , her request would be considered when the land plan had been prepared .

On DATE the applicant sent a letter to the NLS . She reiterated that the annulment of her property rights to QUANTITY of land had caused her pecuniary damage in the amount of LTL CARDINAL . In her view , being put on the list with CARDINAL other candidates and being made to wait for an undetermined period of time for restitution was unacceptable . The applicant asked to be allocated a plot of land for the construction of an individual home in GPE in the order of priority , and if that was not possible , to be informed how many plots were available in GPE and when she might expect to receive CARDINAL . If she could not be given such a plot , she wished to receive compensation of LTL CARDINAL . The applicant stated that she did not wish to choose any other form of restitution .

On DATE the ORG approved the list of candidates to receive plots of land in several areas around GPE . The applicant was included in that list as a candidate to receive QUANTITY of land . On DATE the ORG held a meeting in which candidates were offered plots in the relevant areas . The applicant took part in that meeting . According to TIME of the meeting approved by the NLS and signed by the applicant , she refused the plot which was offered to her and stated that she wished to wait for the decision of ORG in her case .

On DATE the ORG approved the list of candidates to receive plots of land in several other areas around GPE . The applicant was included in that list as a candidate to receive QUANTITY of land .

On DATE the ORG sent a letter to the applicant inviting her to attend a meeting of candidates on DATE in which she would be offered a plot . The applicant did not take part in that meeting .

On DATE the ORG sent a letter to the applicant inviting her to attend a meeting of candidates on DATE in which she would be offered a plot . It is unclear whether the applicant took part in that meeting .

According to the latest information provided to the ORG , the fourth applicant ’s property rights to QUANTITY of land have still not been restored .


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

The applicant was born in DATE and lives in ORG .

On DATE the applicant ’s divorced wife brought an action against him seeking the termination of his custody rights .

On DATE ORG rearranged the applicant ’s access rights and dismissed the remainder of the action . The court relied in particular on the opinion of an expert psychologist .

On DATE ORG upheld this judgment ( service : DATE ) .


CASE OF EUROATLANTIC AIRWAYS - TRANSPORTES AÉREOS, S.A. v. PORTUGAL

The applicant is a NORP airline company headquartered in Sintra .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Public hearing)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Nicolas Bratza;Yonko Grozev

The applicant was born in DATE and lives in GPE . His father was a pharmaceutical entrepreneur who had owned property in GPE of GPE which was subject to expropriation measures in DATE and DATE , after an administrative body classified him as a “ NORP activist ” , “ NORP criminal ” and “ person profiting from the war ” . After GPE ’s reunification , the applicant ’s application for restitution of the property under LAW ( Vermögensgesetz ) proved unsuccessful .

In DATE the applicant initiated proceedings under LAW ( Strafrechtliches Rehabilitierungsgesetz ) on behalf of his late father . He claimed that the expropriation and other measures had a penal character , although his father ’s guilt had been determined not by a court but by an administrative body . He submitted a vast number of documents , claiming that the historical background of the measures taken under the NORP occupation command had to be evaluated anew . In particular , the DATE and DATE provisions on which the measures against his father had been taken could now be qualified as criminal prosecution . New research had shown that their objective was to punish individual NORP for alleged wrongdoing . The applicant requested , inter alia , that the DATE decisions to find his father guilty of being a NORP and the subsequent decisions to expropriate him and confiscate his personal property and the property belonging to his company be declared contrary to the rule of law and hence void . According to the applicant , the value of his restitution claims amounted to QUANTITY .

On DATE the ORG fixed a public hearing for DATE , as requested by the applicant .

On DATE the applicant ’s lawyers published a press release under the following title :

“ Turnaround in the assessment of the NORP industrial reform ? For the first time FAC discusses a criminal rehabilitation application at an oral hearing . ”

In the press release the lawyers explained , in particular , that until that time the domestic courts had seen the objective of the measures in question as motivated by economic policy , that is , having the purpose of modifying the prevailing ownership structure . They presented the fact that ORG had fixed an oral hearing as a potential turning point in domestic case - law and announced that they would explain orally and in detail at the hearing what the so - called “ economic reform ” had really been about . At the same time they communicated the date , time and place of the hearing .

On DATE ORG cancelled the hearing foreseen for DATE and set a time - limit for written procedure ending on DATE . It found that , according to section QUANTITY , first sentence , of LAW , a decision should generally be taken without holding an oral discussion . The date for a hearing , according to section CARDINAL § CARDINAL , second sentence , of LAW ( see paragraph CARDINAL below ) had been set to give the applicant the opportunity to illustrate ( erläutern ) his legal opinion , which conflicted with that of ORG and ORG and was supported by particularly extensive factual submissions . Making use of its margin of appreciation , ORG refrained from holding a hearing since , contrary to its prior opinion , there was no longer any additional benefit to be gained for dealing with the case . In fact , the scheduling of the hearing had been used to create the impression in a press release , also published on the internet , that by calling a hearing ORG had indicated that it was abandoning its settled case - law . Furthermore , the press release had announced that the applicant would use the hearing to “ reveal an important part of contemporary history ” . This indicated that the hearing was to be used as a public forum . Against this background , the court refrained from holding a hearing .

On DATE , following unsuccessful claims by the applicant that the judges were biased , ORG rejected the applicant ’s request . It held that the measures taken against the applicant ’s father were not of a penal character . The expropriation measures did not result in further consequences to his detriment . Contrary to the applicant ’s submission , nothing indicated that an arrest warrant had been issued in DATE . The applicant ’s father ’s loss of his electoral rights , his business licence and his personal assets had been a necessary consequence of the expropriation .

On DATE ORG , without holding an oral hearing , dismissed the applicant ’s appeal , fully endorsing ORG reasons . It added that the documents submitted proved neither the penal character of the measures in question nor that there had been an arrest warrant . An oral hearing was not necessary as the documents presented were sufficient for the case to be assessed .

NORP By decision of CARDINAL DATE ORG , without providing reasons , declined to consider the applicant ’s constitutional complaint , in which he had alleged violations of his right to an effective remedy , his right to be heard and his personality rights ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .


Violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

André Potocki;Angelika Nußberger;Mārtiņš Mits;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and is currently detained at FAC .

NORP Before the events at issue , he had several previous convictions for theft .

A CARDINAL - year - old lady , a neighbour of the applicant ’s parents , was murdered in her house in GPE on TIME DATE , and a number of her personal possessions were stolen from the house . The applicant was suspected of having committed the offence and a search order was issued in respect of him .

On TIME DATE the applicant was arrested . He had been hiding in an abandoned house in a neighbouring village . The police report on his arrest stated that he had “ slightly ” resisted the arrest , and that force had been used in order to take him out of his hiding place ( under a bed ) and handcuff him .

The applicant was taken to the police station in the nearby town of PERSON , where , at TIME , an order for his arrest was issued under section CARDINAL ) of ORG ( see paragraph CARDINAL below ) . The applicant signed a declaration stating that he wanted to be assisted by a lawyer and that he had liver and stomach pains , due to “ past ailments ” , and wished to be examined by a doctor .

Later in DATE , CARDINAL police officers from GPE , GPE and GPE , arrived in PERSON . They had a conversation with the applicant , during which he confessed , according to him under physical duress , to having committed the murder and described his actions in DATE his arrest . In addition , he confessed to having stolen a gun and other personal possessions from another house on an earlier occasion . The confession was written down and was signed by the applicant and Officer V.V.

Later on that same day the applicant was transferred to the police station in GPE , where he asked to be examined by a doctor . The examination started at TIME The doctor identified bruises and haematomas on the applicant ’s right elbow , right flank , buttocks and wrists , which had been caused by hard , blunt objects less than TIME .

On DATE an investigator brought charges against the applicant in relation to another offence , an unrelated theft , and a prosecutor ordered his detention for up to TIME . On DATE ORG ordered the applicant ’s detention on remand in connection with that charge . The criminal proceedings concerning that charge proceeded alongside the proceedings which are the subject of this application , and were completed in DATE .

NORP The murder investigation , to which the investigation into the alleged theft of a gun and other personal possessions mentioned in the applicant ’s confession to Officers GPE and GPE was joined , continued over DATE which followed . The police gathered further evidence and witness testimony , some of which was identified on the basis of that confession . They never found the objects stolen from the victim ’s house . On DATE an investigator brought charges against the applicant in connection with the CARDINAL offences mentioned above . On that occasion the applicant had a lawyer , retained by him on DATE . The applicant made a brief statement that he was not guilty .

On an unspecified date in DATE the applicant was indicted and taken to court .

ORG ( hereinafter “ the ORG ” ) , which examined the case at first instance , held its first hearing on DATE . It heard the doctor who had examined the applicant on TIME of CARDINAL June CARDINAL ( see paragraph CARDINAL above ) . She stated that she maintained the opinions expressed in her previous report , and the prosecution and the defence posed no further questions . Officers GPE and GPE were examined as witnesses and recounted their conversation with the applicant on DATE and the confession he had made to them . They replied to questions posed by the prosecution and the defence . The applicant ’s father was examined as well , and he stated that he had visited his son about DATE after his arrest . The applicant had told him that he had been beaten in order to confess , and some traces of this beating had still been visible on him . ORG heard other experts and witnesses .

During the next hearing , held on DATE , the applicant made a statement on the charges . He said that he had not committed the offences , as at the time of the murder he had been at his grandmother ’s house in another village , and that he had confessed to the offences under duress .

On DATE ORG examined more witnesses and then the parties made oral submissions . Counsel for the applicant contested the testimony of GPE and GPE in particular , arguing that their examination had been contrary to LAW see paragraph CARDINAL below ) . He pointed out moreover that , while the applicant had made a confession to those CARDINAL officers , he had not repeated that confession when taken before an investigator . At the same time , the confession was CARDINAL of “ the pillars ” of the indictment , as there was no other evidence showing the course of the events inside the victim ’s house .

In a judgment given on DATE ORG convicted the applicant and sentenced him to life imprisonment . On the basis of the evidence collected , it concluded that the applicant had stolen a gun and other personal possessions DATE before the murder , and on DATE of the murder had entered the victim ’s house in order to steal food . When she had surprised him in the house , he had attacked her , hitting her with the gun stolen DATE in such a way that a part of the gun ’s cock had broken off and fallen to the floor – and with an axe which he had found in the house . After the murder the applicant had run away . A stranger had given him a lift to another village , but the applicant had forgotten a bag containing his clothes and the gun in the stranger ’s car .

In establishing the facts , ORG relied on the following most important pieces of evidence : a metal fragment which had been found under the victim ’s body and which the experts confirmed to be the missing part of the cock of the gun ; traces of the victim ’s blood found on the handle of the gun found in the applicant ’s bag ; the testimony of the person who had given the applicant a lift in his car and had found that bag ; the fact that that person had also recognised the applicant ’s photo when it had been shown to him by the police ; and the testimony of Officers Z.K. and GPE , who had recounted what the applicant had confessed to them with regard to the course of the events in the victim ’s house . As to the ORG testimony , ORG pointed out that it considered it credible , since the confession as recounted by them had enabled the police to continue the investigation and identify further evidence .

NORP The applicant lodged an appeal .

In his written and oral submissions to ORG ( hereinafter “ the ORG ” ) , counsel for the applicant contested once again the testimony given by GPE and GPE He argued that ORG had not commented on the evidence showing that the applicant had been beaten in order to make the confession the officers had recounted , pointed out that the confession had not been repeated once the applicant had been taken before an investigator , and relied again on LAW .

In a judgment of CARDINAL DATE ORG upheld the applicant ’s conviction and sentence , finding that his guilt had been proved beyond reasonable doubt . In addition to the evidence described above , it relied on the testimony of a neighbour of the victim , who had seen a person considered to be the applicant on the roof of the victim ’s house shortly before the murder . As to GPE and GPE , ORG pointed out that they had not been investigating bodies within the meaning of LAW , and that their testimony had been assessed in the light of all other evidence . Furthermore , it commented on the exonerating evidence , in particular expert reports finding no fingerprints of the applicant and no traces of his scent in the victim ’s house , saying that this was not sufficient to refute the accusations .

NORP The applicant lodged an appeal on points of law . His counsel contested once again the testimony of Officers Z.K. and GPE , pointing out that the lower courts had not commented on the evidence showing that the applicant had been beaten in order to confess . Moreover , the ORG testimony had been given in breach of LAW .

In a final judgment of CARDINAL DATE ORG upheld ORG judgment . As to the arguments of the defence concerning the testimony of GPE and GPE , it observed that the confession as recounted by the officers contained details which could only have been known to the perpetrator of the crimes at issue , and thus could not have been “ instigated ” . Moreover , allowing GPE and GPE to testify had not been in breach of LAW .


Violation of Article 14+P1-1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

On DATE ORG approved the introduction of a scheme of aid for displaced persons and war victims . Under the scheme , displaced persons were entitled to refugee cards . The holders of such cards were ( and still are ) eligible for a range of benefits including housing assistance . For the purposes of the scheme the term “ displaced ” was determined as being any person whose permanent home was in the areas occupied by the NORP armed forces , in an inaccessible area , or in an area which had been evacuated to meet the needs of ORG .

To implement the scheme , the Director of the Care and Rehabilitation of Displaced Persons Service ( “ SCRDP ” ) issued a circular on DATE . The circular provided that non - displaced women whose husbands were displaced could be registered on the refugee card of their husbands . It also provided that children whose fathers were displaced could be registered on the refugee card of their fathers ( see paragraph CARDINAL below ) . No provision was made for the children of displaced women to be registered on the refugee cards of their mothers .

Although the term “ displaced ” was extended by ORG on DATE ( see paragraphs CARDINAL and CARDINAL below ) , at the time of the facts giving rise to the present application it had not been extended to allow children whose mothers were displaced but whose fathers were not , to qualify for refugee cards .

The applicant ’s mother has been a refugee since DATE . Her mother is the holder of a refugee card .

In DATE , the applicant married and began looking for a house for her family in GPE . She wished to obtain housing assistance and so , on DATE , applied to ORG of ORG for a refugee card with occupied PERSON , the place from which her mother was displaced , as her place of displacement .

By letter dated DATE the request was rejected on the basis that the applicant was not a displaced person because , while her mother was a displaced person , her father was not .

The applicant filed a recourse before ORG challenging the above decision . She claimed , inter alia , that the decision was in violation of the principle of equality safeguarded by LAW and in breach of LAW taken in conjunction with LAW No . CARDINAL . She claimed that it also breached LAW .

A single judge of ORG dismissed the recourse on DATE , finding that , on the basis of the relevant case - law , the extension of the applicable criteria so as to cover the children of displaced women was not possible . The question of extending the term “ displaced ” to cover the children whose mothers were displaced but whose fathers were not had been repeatedly discussed before the ORG of Representatives’ Committee for Refugees . A proposal to change the law to that effect had been placed before the ORG but was never approved . Furthermore , because of the consequences which would ensue from such an extension of the term “ displaced ” , the Minister of the ORG had referred the question to ORG for its consideration and , on DATE , ORG had decided not to extend the term in this manner ( see the relevant domestic law and practice set out at DATE and DATE below ) .

On DATE the applicant filed an appeal before ORG .

By judgment of DATE a CARDINAL - judge panel of ORG dismissed the appeal and upheld the findings of the first instance court .

ORG held as follows :

“ [ In the present appeal ] an attempt was made to demonstrate that we must depart from the above [ first instance ] decision , since ORG can , in the present case , proceed to the so - called “ extended interpretation ” and , by invoking the principle of equality , widen the application of the criterion to the children of displaced mothers as well .

The proposed extension of the plan was placed before ORG in Proposal no . CARDINAL/CARDINAL , which was submitted by ORG to amend the criteria for providing assistance to displaced persons . However the decision taken refers only to amendments which do not concern the present case . Despite the fact that , on DATE , by decision no . CARDINAL of ORG , further amendments were made by which the term ‘ ORG was extended and now includes other categories of those entitled , the point which concerns us in this case remains unchanged .

In accordance with the case - law ( ORG v. The Republic , [ DATE ] CARDINAL A.A.D. CARDINAL ) , the non - existence of a legislative provision can not be remedied by judicial decision because , in such a case , the constitutional control which ORG exercises would be turned into a means of reshaping or supplementing the legislation .

We have given this matter very serious consideration in view also of the position that , in the case of an arrangement favouring CARDINAL sex only , the extended application of the provision also finds support in NORP Community Law ...

However this may be , we can not depart from the prevailing case - law . ORG v. The Republic , cited above , fixed the framework of the jurisdiction of ORG . ORG has , in accordance with Article CARDINAL ) of the LAW , the power to uphold in full or in part the decision appealed against or to declare the act or omission invalid . It does not have jurisdiction to legislate by extending legislative arrangements which did not meet with the approval of parliament . This would conflict with the principle of the separation of powers . We note that ORG can not of its own accord enact legislation which would incur expenditure . If ORG , the constitutionally appointed legislative organ , does not have such a right , ORG has even less of a right .

In agreement with the principles set out above , we conclude that ORG does not have the competence to proceed to an extended application of a legislative arrangement . ”

The same issue of the non - extension of refugee cards to the children of displaced women was also considered by ORG in GPE GPE v. the Republic ( case no . CARDINAL/CARDINAL ) . That challenge was rejected at first instance on DATE ( ( DATE ) CARDINAL A.A.D. CARDINAL ) , the court finding that , while it was difficult to understand why there should not be uniform treatment between the children of displaced men and displaced women , on the basis of PERSON , cited above , it was unable to grant the relief sought . This was because PERSON was , in effect , asking the court to extend the relevant legal framework so that the benefits provided to children of displaced fathers would be provided to children of displaced mothers . An appeal against that judgment was dismissed on DATE by the same bench which dismissed the present applicant ’s appeal ( the appeal judgment in GPE is reported at ( DATE ) CARDINAL Α.Α.D. CARDINAL ) .


Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

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

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

By an order issued on DATE the applicant was discharged from the position of deputy chief of the Caraş Severin Border Police Department . The discharge order was not communicated to him .

From DATE , the applicant began to submit letters to different authorities asking to be sent a copy of the order and contesting the discharge measure .

On DATE , the applicant lodged an action with the domestic courts seeking the withdrawal of the discharge order of DATE and the recalculation of his salary rights .

After a first set of proceedings , by a judgment of DATE ORG dismissed the applicant ’s action on the ground that it had not been lodged within DATE of the communication of the order , as required by law . It held that the applicant ’s enquiries to the authorities proved that he had become aware of the discharge order DATE before lodging his action .

The applicant lodged an appeal on points of law on the ground that the order of DATE had never been communicated to him , and stated that in his letters to the authorities he had in fact been requesting them to communicate to him the reasons for his discharge . Moreover , the authority that had issued the order had an obligation to prove that it had communicated such reasons to him , which it had not done .

On DATE , ORG dismissed the appeal . It found that the applicable legislation was section CARDINAL of LAW ( Law no . PERSON ) . The relevant excerpts of its decision read as follow :

« The applicant was discharged by Order no . CARDINAL of DATE ...

On DATE the applicant complained of [ his discharge ] to ORG . On page CARDINAL of his written complaint ( memoriu ) he claimed to have been unjustly discharged , which proves that the applicant was already aware of the order on DATE . The time - limit for administrative complaint ( contestare pe cale administrativă ) runs from this date .

Having in mind the date on which the applicant was aware of the content of Order no . CARDINAL/CARDINAL DATE , more precisely on DATE at the latest , the firstinstance court correctly allowed the exception and found that the action was lodged out of time ...

The applicable legal norm ... is LAW no . CARDINAL .

According to section CARDINAL paragraphs CARDINAL and CARDINAL of Law no . CARDINAL , an individual who is deemed to have suffered as a result of an administrative act ... is to address himself to the administrative litigation tribunal within DATE of the communication of the decision or within DATE of the expiry of the time - limit for the administrative complaint ( contestaţia administrativă ) .

Therefore , [ the applicant ] should have lodged the action on DATE at the latest . ”

The relevant provisions of LAW , in force at the material time , read as follows :

“ ( CARDINAL ) Every individual or legal person who considers that his or her rights recognised by law have been prejudiced by an administrative act or by the unjustified refusal of a public authority to resolve an issue related to a right recognised by law may address himself to the competent court to seek the quashing or withdrawal of the act , the recognition of the right that is claimed , or the reparation of the damage thus caused .

( CARDINAL ) If the public authority does not respond to the petitioner within DATE of the registration of the claim , unless the law sets a different time - limit , this is also considered to be an unjustified refusal to solve a request related to a right recognised by law . ”

“ ( CARDINAL ) NORP Before requesting the courts to quash or withdraw an act or to render its delivery mandatory , the person who is deemed to have suffered damage shall address himself to the authority that issued it [ the act ] , within DATE of the communication of the administrative act or within DATE of the expiry of the time - limit set out in QUANTITY ; the authority that issued the act must resolve the claim within DATE .

( CARDINAL ) NORP If the person who is deemed to have suffered damage is not satisfied with the resolution of his or her claim , he or she can address the courts within DATE of communication of the outcome ...

( CARDINAL ) The courts may be addressed even when the administrative authority that issued the act or its hierarchical superior have not resolved the claim within the timelimit set out in paragraph CARDINAL .

( CARDINAL ) In all instances , the courts may be addressed DATE from DATE of the communication of the act in question . ”

“ The petitioner shall simultaneously attach the contested administrative act or , as the case may be , the response of the administrative authority which communicated the refusal to resolve the claim ( which is related to a right recognised by law ) . If the claimant does not receive a response , he or she shall attach a copy of the request , certified for conformity ... ”


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

NORP The applicant , PERSON , is a NORP national who was born in DATE and is currently detained in GPE , GPE . When lodging his application he was represented before the ORG by Mr PERSON PERSON , a lawyer practising in GPE , GPE . The latter informed the ORG on DATE that he no longer represented the applicant .

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

On DATE the applicant was convicted by ORG of causing bodily harm and damage to property because he had hit CARDINAL ticket collectors in the face when they tried to prevent him from evading ticket controls and had damaged their clothes and glasses . He was further convicted of defamation and attempted coercion as he had insulted a prosecutor during CARDINAL of his previous trials and had tried to intimidate her . Moreover , he was convicted of dangerous bodily injury because he had attacked with a knife the neck of a sleeping cellmate of whom he had previously felt humiliated and slightly injured him . Besides , the applicant was convicted of various offences of theft , minor fraud , and trespassing . Adding on another prison sentence imposed on the applicant in a previous judgment of DATE for various offences of defamation , resisting bailiffs , bodily injury and theft , the court sentenced the applicant to an overall prison term of DATE and DATE in a juvenile prison .

Besides , the ORG ordered the applicant ’s indefinite placement in a psychiatric hospital in accordance with LAW ( see paragraphs CARDINAL and CARDINAL below ) .

At the time the applicant committed the relevant criminal offences he was DATE . The court decided to apply the juvenile criminal law instead of the criminal law rules applicable to adults because it found , in line with the report of the psychiatric expert PERSON , deputy medical director ( ORG ) of the forensic psychiatry and psychotherapy department of ORG and with the additional psychological expert opinion of psychotherapist PERSON , that the applicant ’s development as an adult was delayed , that he was still immature and had therefore to be treated as a juvenile and not as an adult . The court further found , in line with the psychiatric experts’ opinions , that the applicant had committed the criminal offences of causing bodily harm and damage to property , dangerous bodily injury , defamation and attempted coercion while in a state of diminished criminal responsibility ( LAW , see paragraph CARDINAL below ) , as he suffered mainly from a “ borderline personality disorder of an impulsive type with dissocial components ” and also from “ adult hyperactivity syndrome ” , which limited his ability to control his impulses . With regard to the other criminal offences he was convicted of , the court , in line with the psychiatric experts’ opinion , regarded the applicant as fully liable .

On DATE , DATE and DATE the criminal courts reviewed the applicant ’s compulsory confinement in the psychiatric clinic in accordance with Articles CARDINAL and CARDINAL of LAW ( see § § CARDINAL below ) and found on all QUANTITY occasions that the applicant ’s detention in a psychiatric clinic could not yet be suspended on probation . For the purposes of these review decisions , the inhouse psychiatric doctors at ORG issued medical opinions on DATE , DATE and DATE .

On DATE ORG again decided that the applicant still suffered from the psychological disorder which had led to the criminal offences of which he had been convicted in DATE and that he could be expected to commit further offences of a certain gravity if released . The decision was delivered after having heard the applicant on CARDINAL DATE and again on DATE . It was based on the above - mentioned expert opinion of DATE by the in - house psychiatric team at ORG and on a newly commissioned external expert opinion of the psychiatric expert Prof . PERSON , head of the forensic psychiatry and psychotherapy department of ORG , who had delivered his expert opinion on DATE , had supplemented it on DATE and had personally been heard by the court on DATE .

In the medical report of DATE the team of in - house psychiatric experts at ORG had expressed the view that the applicant could be expected to commit further crimes if released because he showed no insight into his psychological disorder . The expert opinion had further expressed the suspicion that the applicant might in fact be schizophrenic .

In his expert opinion Prof . PERSON had diagnosed the applicant with an “ emotionally unstable personality disorder of the impulsive type ” and possibly also with “ adult hyperactivity syndrome ” . O. had further stated that , despite the fact that the personality of the applicant had matured considerably during his confinement , he could not at this stage be expected to abstain from committing any significant crimes if released . Although the applicant had obviously benefited from his placement in a psychiatric hospital and had not committed any criminal offences within the hospital , he was still not psychologically stable enough to be released . The biggest obstacle to his release was that the applicant still had very little insight into the fact that medical treatment was necessary now and in the future after a possible release . His compliance with his treatment had hence not yet been achieved . Furthermore , the applicant would need clearly structured sheltered accommodation if released . The preparations for such accommodation were not yet in place . The expert had further stated that , if the applicant could be further stabilised by psychotherapy , if his compliance with his treatment could be achieved in the future and if a place in adequately structured sheltered accommodation was prepared , the applicant could be released but would need to be prepared over a period of DATE for such release on probation .

Following an appeal by the applicant , ORG upheld the decision of ORG on DATE .

On DATE ORG decided in accordance with LAW § CARDINAL of LAW ( see paragraph DATE below ) that the applicant could not yet be released because , owing to his ongoing psychiatric illness , he could still be expected to commit crimes of a certain gravity if released . The ORG based its decision on a newly commissioned expert opinion of the internal psychiatric team of ORG of DATE and the oral hearing of the deputy medical director treating the applicant of CARDINAL DATE .

NORP The respective medical experts were still of the view that the applicant could be expected to commit further crimes if released , because he still lacked sufficient insight into his psychological disorder . There was still a suspicion that he might in fact be suffering from schizophrenia rather than from a borderline personality syndrome . But as he refused to cooperate fully with the doctors , a clear diagnosis that would allow a more specific treatment was difficult . The idea that the applicant was suffering from schizophrenia was therefore only a presumption which could not be confirmed or refuted . More rapid results from the applicant ’s treatment could only be achieved if he complied fully with the medical and psychotherapeutic treatment . As he still had a negative attitude towards the medication and the psychotherapists , sufficient progress to justify his release could not be achieved .

On DATE ORG upheld the decision . It based its decision on the above - mentioned external medical opinion of Prof . Dr O. of DATE and DATE respectively and on the internal expert opinion of the psychiatric team of ORG of DATE . The court held that there was still a clear diagnosis of “ emotionally unstable personality disorder of the impulsive type ” and possibly also of “ adult hyperactivity syndrome ” . This diagnosis did not contradict the diagnosis of “ borderline personality disorder of an impulsive type with dissocial components ” established by PERSON at the time of the applicant ’s initial compulsory confinement . According to ORG , Prof . PERSON had made it clear before the court that that diagnosis just gave a more precise description of the mental disturbance from which the applicant had already been suffering when he committed the offences of which he had been convicted and when he had been compulsorily admitted , but did not describe a new mental illness .

The court further held that the idea that the applicant in fact suffered from schizophrenia was only an unverified presumption . His situation had not changed since the external expert O. had given his opinion on DATE and DATE . According to the statement of the in - house psychiatric doctor , the applicant had still not developed any insight into his psychological illness that would result in full cooperation with regard to his medication . At the same time no structured sheltered accommodation had yet been prepared into which he could be placed after his release . He was therefore still to be expected to commit further crimes of a certain gravity if released . Considering the criminal offences he had committed in the past and the risk that he might again commit similar offences such as causing bodily harm and aggravated bodily injury , his continued detention for DATE by that time was not yet disproportionate .

A further appeal lodged by the applicant with ORG was rejected on the ground that domestic law did not provide for such an appeal .

A constitutional complaint and a request for restoration of the previous situation lodged by the applicant were of no avail . On DATE ORG declined to admit the constitutional complaint for examination , without giving any reasons , and did not rule on the request for restoration of the previous situation ( no . CARDINAL BvR CARDINAL/CARDINAL ) .

In accordance with LAW placement in a psychiatric hospital may be ordered in the case of offenders who have acted without criminal responsibility or in the case of offenders who have acted with diminished criminal responsibility in addition to their punishment . The measure must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants concerned , as well as to their dangerousness ( LAW ) .

Article CARDINAL of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court must order his placement in a psychiatric hospital without specifying a maximum duration , if a comprehensive evaluation of the defendant and his acts reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public .

Criminal incapacity and diminished criminal responsibility are regulated by ORG , which read as follows :

LAW Criminal incapacity on account of psychological disturbance

“ Any person who at the time of the commission of the offence is incapable of understanding the unlawfulness of his or her actions or of acting in accordance with any such understanding on account of a pathological mental disorder , a profound consciousness disorder , mental deficiency or any other serious mental abnormality , shall be deemed to have acted without guilt . ”

Article CARDINAL Diminished criminal responsibility

“ If the capacity of the offender to understand the unlawfulness of his or her actions or to act in accordance with any such understanding is substantially diminished at the time of the commission of the offence for CARDINAL of the reasons indicated in DATE , the sentence may be mitigated in accordance with LAW . ”

Article CARDINAL of the Criminal Code governs the duration of detention . In the version in force at the relevant time , it provided :

Article CARDINALd Duration of detention


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

The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . He was represented before ORG , lawyers practising in GPE .

NORP The applicant is a qualified electrical engineer and worked as a self - employed ORG ( “ IT ” ) consultant . The end users of his services were based in GPE . He would ordinarily account for income tax on the taxable profits of his trade or profession in GPE .

On DATE the applicant became a client of ORG ( “ GPE ” ) . GPE provided advice to the applicant with respect to a marketed tax avoidance scheme ( “ the scheme ” ) centred on LOC seeking advantage of GPE DATE ( “ the DTA ” ) .

As a result of the scheme , the applicant no longer supplied his IT consultancy services directly to his end - user clients based in GPE . Instead , an intermediary , ORG ( “ the Partnership ” ) , which was constituted by CARDINAL companies incorporated and resident in LOC , contracted , directly or indirectly with the end - users to provide the applicant ’s services . The intermediary received full payment for such services and the applicant received an DATE fee of GBP CARDINAL ( or less ) from the intermediary . The rest of his reward for his services was received only in his capacity as the owner of a life interest in a Trust established in LOC and of which CARDINAL of the Partnership companies was the trustee .

NORP Until the relevant legislation was amended with retrospective effect , the applicant contended that , as a result of the ORG and the legislation then applicable , the income channelled through the trust was not subject to GPE income tax . Nor , apparently , was it subject to NORP tax , since the beneficiary ( the applicant ) , unlike the trustee , was not resident in GPE . The effect of the use of the ORG meant that the applicant was able to reduce his effective income tax rate to an average of PERCENT .

NORP In his tax return for the period CARDINAL/CARDINAL , the applicant claimed relief from income tax in the sum of GBP QUANTITY representing trust income . Relying on domestic jurisprudence , the applicant ’s case was that the profits received by the trustee as a partner were not treated as belonging to the trustee but to the beneficiary with an interest in possession under the trust , with the consequence that the income arising from his beneficial interest in possession under the trust could not be assessed to GPE tax .

Her Majesty ’s Revenue and ORG ( “ ORG ” ) first wrote to the applicant regarding his use of the tax avoidance scheme on DATE . In that letter he was informed that ORG was likely to challenge the validity of the claim . No basis for the challenge was mentioned . The applicant was advised to make payment on account in respect of the disputed sum , so as to avoid the accrual of interest and the incurrence of a possible penalty . It appears that he chose not to do so .

Similar correspondence followed in respect of tax years DATE , for which the applicant claimed relief of GBP CARDINAL ; DATE , for which he claimed relief of ORG CARDINAL , and DATE , for which he claimed relief of ORG CARDINAL .

On DATE , ORG set out reasons for the challenges to the claims of relief , and on DATE it informed the applicant that it was preparing a number of lead cases to take to the Special Commissioners regarding the validity of the claims to the ORG .

NORP However , before the cases were listed , ORG announced , in its ORG of DATE , proposals to introduce what became section CARDINAL of LAW DATE ( “ the CARDINAL Act ” ) , which came into force on DATE . LAW of ORG of DATE amended with retrospective effect the existing legislation in section CARDINAL of ORG and Other Income ) Act DATE . Any assessment to income tax ( in the absence of fraud or negligence ) was limited to DATE , so that the retrospective effect of section DATE extended no further back than to DATE . The effect of this change of legislation was to render the scheme ineffectual and to impose on the applicant and others in a similar position liability to pay GPE income tax on trust income received in DATE .

ORG revised the applicant ’s tax assessments accordingly . The revisions and the validity of the legal basis on which they were made were challenged by the applicant by way of legal proceedings .

The applicant brought judicial review proceedings in ORG against ORG on DATE . At this stage his outstanding tax liability was MONEY . He sought to challenge sections CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW under LAW DATE . His ground of challenge was that these sections of LAW changed fiscal legislation regarding double taxation relief with retrospective effect and that such retrospective amendment did not strike a fair balance as required by LAW and the jurisprudence of ORG .

On DATE Mr Justice PERSON dismissed the claim , finding that the challenged legislation , although having retrospective effect was , in the relevant circumstances , proportionate and compatible with LAW No . CARDINAL .

The applicant appealed to ORG , which heard the matter over DATE in DATE , and judgment was delivered on DATE . Lord Justice Mummery giving the lead judgment dismissed the appeal , finding that the High Court judge had not been wrong to conclude that the retrospective provisions of the CARDINAL Act were proportionate and compatible with LAW No . CARDINAL . Mummery LJ noted that the applicant had taken advantage of a marketed tax avoidance scheme for no other purpose than the avoidance of GPE income tax . According to him , the retrospective amendments were enacted pursuant to a justified fiscal policy that was within the ORG ’s area of appreciation and discretionary judgment in economic and social matters . The legislation achieved a fair balance between the interests of the general body of taxpayers and the right of the applicant to the enjoyment of his possessions , without imposing an unreasonable economic burden on him . Moreover , the legislation prevented the ORG tax relief provisions from being misused for a purpose different from their originally intended use . On the issue of prior test litigation , ORG upheld PERSON finding that there was no legal obligation on the ORG to test the matter of the efficacy of the scheme in the courts before enacting legislation . Moreover , taxpayers were not powerless to bring the issue to a head themselves ( under provisions in s.CARDINALA of ORG ) without waiting for ORG to bring proceedings in respect of the arrangements . They did not pursue such a course . Concerning a possible pre - legislation assessment of the impact of retrospectivity on the taxpayers concerned , ORG found in the circumstances such an assessment would not have yielded any relevant information which ORG did not already know .

At this stage , the figure of the tax relief the applicant was ultimately deprived of was in the region of GBP CARDINAL . According to ORG , this liability was no more an unjustified interference with his enjoyment of his possessions than the ordinary liability that his fellow residents in GPE were under a duty to contribute , by way of GPE tax on their income , towards the costs of providing community and other benefits for the purposes of life in a civil society .

On DATE ORG of the GPE denied permission to appeal .

GPE DATE ( “ the DTA ” ) :

“ CARDINAL ( CARDINAL ) The industrial or commercial profits of a NORP enterprise shall not be subject to GPE tax unless the enterprise is engaged in trade or business in GPE through a permanent establishment situated therein . If it is so engaged , tax may be imposed on those profits by GPE , but only on so much of them as is attributable to that permanent establishment . ”

Section CARDINAL of ORG and Other Income ) Act DATE provided as follows :

“ CARDINAL Resident partners and double taxation agreements .

( CARDINAL)This section applies if—

( a ) a GPE resident ( “ the partner ” ) is a member of a firm which—

( i ) resides outside GPE , or

( ii ) carries on a trade the control and management of which is outside GPE , and

( b ) by virtue of any arrangements having effect under section CARDINAL of ICTA ( “ the arrangements ” ) any of the income of the firm is relieved from income tax in GPE .

( CARDINAL ) The partner is liable to income tax on the partner ’s share of the income of the firm despite the arrangements .

( CARDINAL ) If the partner ’s share of the income of the firm consists of or includes a share in a qualifying distribution—

( a ) made by a GPE resident company , and

( b ) chargeable to tax under LAW CARDINAL ,

the partner ( and not the firm ) is , despite the arrangements , entitled to the share of the tax credit which corresponds to the partner ’s share of the distribution . ”

Section CARDINAL of LAW DATE provides as follows :

“ GPE residents and foreign partnerships .

( CARDINAL ) In section CARDINAL of ICTA ( partnerships involving companies : supplementary ) , after subsection ( CARDINAL ) insert—

“ ( CARDINAL ) For the purposes of subsections ( CARDINAL ) to ( CARDINAL ) the members of a partnership include any company which is entitled to a share of income or capital gains of the partnership . ”

( CARDINAL ) In section CARDINAL of ORG DATE ( partnerships ) , insert at the end—

“ ( CARDINAL ) For the purposes of subsections ( CARDINAL ) and ( CARDINAL ) the members of a partnership include any person entitled to a share of capital gains of the partnership . ”

( CARDINAL ) In section CARDINAL of ITTOIA DATE ( resident partners and double taxation agreements ) , insert at the end—

“ ( CARDINAL ) For the purposes of this section the members of a firm include any person entitled to a share of income of the firm . ”

( CARDINAL ) The amendments made by subsections ( CARDINAL ) to ( CARDINAL ) are treated as always having had effect .

( CARDINAL ) For the purposes of the predecessor provisions , the members of a partnership are to be treated as having included , at all times to which those provisions applied , a person entitled to a share of income or capital gains of the partnership .

( CARDINAL)“The predecessor provisions ” means—

( a ) section CARDINAL(CARDINAL ) and ( CARDINAL ) of the Income and Corporation Taxes Act DATE ( c. CARDINAL ) ( as it had effect under section CARDINAL(CARDINAL ) of PERSON DATE ) , and

( b ) sections CARDINAL ) to ( CARDINAL ) and CARDINAL(CARDINAL ) of ICTA . ”

On DATE as ORG gave judgment in the applicant ’s case , the same CARDINAL judges gave judgment in the case of R ( ORG ) v. ORG CCARDINAL/CARDINAL/CARDINAL . The claim in that case was for a declaration that the amendments in LAW DATE were incompatible with LAW on the Functioning of the European Union ) , as well as LAW No . CARDINAL of LAW . The claimants in that case argued that the amendments made by LAW were capable of preventing , restricting or discouraging commercial investment of capital in foreign partnerships by means of unjustified discrimination between an investment of capital in a foreign partnership and an investment of capital in a GPE partnership . They argued that its retrospectivity was an infringement of ORG principles of legal certainty and legitimate expectation . The complaint was dismissed .


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

The applicant was born in DATE and lives in GPE .

DATE and DATE criminal proceedings , on charges of disorderly conduct , were being carried out against the applicant before ORG , this period including a remittal ordered by GPE .

The first judgment given by ORG on DATE contained the lapse of time as a minor mitigating factor .

However , the second , final judgment given by ORG on DATE ( that is , after the remittal ) was a simplified decision which did not contain any considerations about mitigation .


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

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in DATE , DATE , and DATE respectively and at the time the case was introduced were imprisoned in GPE and ORG .

They were among CARDINAL people facing assorted charges related to the socalled ORG , a militant NORP underground movement active in LOC in DATE .

When the case came to trial before ORG , on DATE a judge ordered – without giving any explanation – that the trial be held behind closed doors in remand prison IZCARDINAL/CARDINAL in GPE .

On DATE the court sentenced the applicants to CARDINAL , and DATE respectively . The applicants lodged an appeal with ORG , complaining , among other things , that the trial had been closed to the public . On DATE ORG upheld the judgment without replying to the complaint .


Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8-1 - Respect for family life;Article 8 - Right to respect for private and family life)

Alena Poláčková;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom

The applicant was born in DATE and lives in PERSON . He is currently serving his sentence in IK-CARDINAL in the village of PERSON , GPE Region .

The applicant , his partner and his mother were living in ORG when the applicant was charged with drug - related crimes .

On DATE ORG ( “ Федеральная служба исполнения наказаний ” , “ the ORG ” ) of GPE sent a telegram to the ORG department for LOC ( “ the PERSON ” ) instructing the latter to send DATE up to QUANTITY people detained in remand prisons and sentenced to a term of imprisonment in a strict - regime facility to LOC . The instruction was valid as of DATE until further notice .

On DATE the ORG of ORG convicted the applicant of drug - related crimes and sentenced him to DATE imprisonment in a strict - regime post - conviction detention facility . On DATE ORG upheld the conviction on appeal .

Acting on the basis of the ORG of GPE ’s instruction of DATE , on an unspecified date the PERSON decided , in view of the overcrowding in the postconviction detention facilities in LOC , that the issue of which particular facility the applicant would be transferred to should be resolved by the ORG department for LOC ( “ the GPE FSIN ” ) . The latter allocated the applicant to IK-CARDINAL , a strict - regime post - conviction detention facility in the village of GPE , GPE Region ( QUANTITY from ORG ) , to serve his sentence . The applicant has been detained there since DATE .

The applicant has repeatedly asked the penal authorities at different levels to transfer him to a detention facility located closer to ORG so that he could effectively maintain family ties while serving his sentence .

On DATE the ORG of GPE rejected the applicant ’s request , informing him that , under LAW on LAW ( “ the CES ” ) , in the absence of exceptional circumstances convicts were to serve their prison term in its entirety in the same detention facility , and that there were no such exceptional circumstances in the applicant ’s case . They noted as follows :

“ [ NORP regards maintaining the convict ’s social ties , the right to receive visits and parcels as well as the right to correspondence and phone calls should be realised in accordance with the laws on execution of sentences in force and does not depend on the place in which he is serving the sentence . ”

NORP The applicant brought civil proceedings against the PERSON , claiming compensation for pecuniary and nonpecuniary damage caused by their decision to transfer him to a penal facility in LOC in breach of his right , under LAW of the ORG , to serve his prison sentence in his home region , which had adversely affected his capacity to maintain his family and social ties .

On DATE the Zavodskoy ORG of ORG dismissed the claims for damages with reference to LAW ORG and Ruling No . CARDINAL-O - O of ORG . The court held that the PERSON decision had been lawful because DATE and DATE the penal facilities in LOC had been overcrowded . It also noted that the defendant had acted in accordance with the ORG of GPE ’s instructions . The court did not address the applicant ’s argument regarding his difficulties in maintaining family ties because of the distance between his family home and the detention facility . It appears that the applicant did not appeal against the judgment .

DATE the applicant ’s partner made long - term family visits to IK-CARDINAL on CARDINAL occasions . In DATE she gave birth to the couple ’s daughter . While in IK-CARDINAL , the applicant received a number of parcels and phone calls from his mother and partner .