Remainder inadmissible;No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-e - Persons of unsound mind)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in DATE . At the time of lodging his application , he had been placed in a supervised residential facility in GPE ( GPE ) . He was subsequently released .

Following CARDINAL convictions for offences including burglary and dangerous assault , in DATE the ORG convicted the applicant of committing offences while in a drunken state . It sentenced him to DATE imprisonment and ordered his detention in a psychiatric hospital under LAW ( see paragraph QUANTITY below ) . The court found that the applicant ’s criminal responsibility had been diminished at the time of the acts , owing to infantile brain damage combined with drunkenness . He was detained in psychiatric hospitals in GPE and GPE from DATE to DATE .

NORP In DATE ORG quashed the judgment of ORG of DATE . It convicted the applicant of intentionally committing offences while in a drunken state and sentenced him to DATE and CARDINAL months’ imprisonment , without ordering his detention in a psychiatric hospital . The court , having regard to the findings of a psychiatric expert and the results of a re - examination of the applicant ’s brain by new technical means , found that he did not suffer and had never suffered from a pathological mental disorder . He had therefore not acted with diminished criminal responsibility . The court considered that the applicant did not have infantile brain damage , and although he had an abnormal personality , he was neither a psychopath nor an alcoholic .

On DATE the ORG convicted the applicant of CARDINAL counts of dangerous assault , CARDINAL counts of assault , coercion and CARDINAL counts of attempted coercion . All these offences had been committed DATE and DATE . The court sentenced him to CARDINAL years’ imprisonment and ordered his preventive detention under LAW of LAW ( see paragraphs CARDINAL below ) .

The Hildesheim Regional Court found that the applicant had attacked his victims in a violent manner . The victims had been almost exclusively male and had included schoolchildren . Some had been acquaintances , but others had not been known to the applicant – people in bars or those who had been randomly chosen on the street . He had either punched his victims in the face , kicked them in the face when they had fallen to the ground or set an NORP dog on them , which had significantly injured the victims by biting them , sometimes on the stomach and neck . He had attacked CARDINAL homeless people whom he did not know with a knife . They had been sleeping in an abandoned building . He had injured the hand , lip , chest and thigh of CARDINAL and the back and finger of another . Objectively , his victims had not provoked any conflict .

The Hildesheim Regional Court , having consulted a psychiatric expert and a psychological expert , found that the applicant had acted with full criminal responsibility at the time most of his offences had been committed , despite his prior consumption of alcohol . Only in relation to CARDINAL of his offences could diminished criminal responsibility as a result of alcohol intoxication not be excluded as a relevant consideration ( Article CARDINAL of LAW , see paragraph DATE below ) . However , the consumption of alcohol had not been the cause of his offences . He did not suffer from any other pathological mental disorder within the meaning of LAW . His personality differed from that of the majority of the population in that he lacked empathy and saw himself as a strong and dominating man , without that difference being of a pathological nature . He had a propensity to commit serious violent offences against others , where the victims were significantly injured .

On DATE , having fully served his term of imprisonment , the applicant was placed in preventive detention for the first time , initially mainly in FAC . In view of another prison sentence he had served , by DATE he had spent DATE in preventive detention . On DATE , ORG ordered that his preventive detention should continue .

NORP On CARDINAL May CARDINAL the Hildesheim District Court convicted the applicant of assault , finding that he had slapped his daughter in the face while under the influence of alcohol while on home leave from detention , and sentenced him to CARDINAL months’ imprisonment . The applicant served that sentence in DATE .

On DATE the applicant was transferred to the detoxification department of ORG . By a decision of DATE ORG then ordered further preventive detention in a psychiatric hospital ( LAW ) rather than in a detoxification facility , as his rehabilitation could be better promoted there . The applicant was then transferred to the psychiatric department of ORG .

The order for the applicant ’s continued preventive detention in a psychiatric hospital was subsequently extended . In DATE he was authorised to reside provisionally ( Probewohnen ) in FAC in GPE , a supervised residential facility .

On DATE ORG again ordered the applicant ’s continued preventive detention in a psychiatric hospital , under Article CARDINAL of LAW ( see paragraph DATE below ) .

ORG considered that the stricter criteria set out by ORG in its judgment of CARDINAL DATE regarding preventive detention beyond the former DATE time - limit during the transitional period lasting until DATE ( see paragraph DATE below ) were met in the applicant ’s case .

ORG found that the applicant suffered from a mental disorder for the purposes of section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , which was the cause of his previous offences . Following its own critical review , it endorsed the conclusions about the applicant ’s mental condition which S. , an experienced and reliable expert in the field of forensic psychiatry , had drawn in his report dated CARDINAL DATE and supplemented on DATE . The expert had completed his report on the basis of case files , as the applicant had refused an examination . S. had stated that , just as at the time of his offences , the applicant still suffered from a dissocial personality disorder with marked psychopathic elements , as defined by the relevant tool for the classification of diseases , the ICD-CARDINAL ( International Statistical Classification of Diseases and Related Health Problems in its current , revised version ) . This diagnosis had further been confirmed by the applicant ’s treating doctors at ORG .

Furthermore , ORG considered that there was a high risk that the applicant , owing to specific circumstances relating to his character and conduct , would commit the most serious violent crimes if released from preventive detention . As had been confirmed by PERSON , there was a danger that he would again threaten the lives of others by attacking them , for instance by kicking his victims in the head or setting a dog on them and inciting it to bite them on the neck and face . That risk was particularly high when the applicant – whom the expert had concluded abused alcohol without being addicted , as defined by the ICD-CARDINAL – was drunk . Owing to his dissocial personality disorder , the applicant had hardly any inhibitions with regard to injuring others , as he lacked empathy . As he did not question his own perception of a situation , a misinterpreted situation could lead to his using unlimited force against randomly chosen victims who objectively had not provoked any conflict by their conduct .

ORG further considered that the applicant ’s preventive detention was still proportionate . At that time , there was no residential accommodation outside of preventive detention where his conduct could be closely monitored . In view of his conduct , it was already unclear whether he would be permitted to continue residing in his current residential facility in FAC . Having regard to the high risk that the applicant would commit the most serious violent offences upon his release , his preventive detention for a period of DATE was not unreasonable .

ORG confirmed that the applicant ’s rehabilitation could still be better promoted by detention in a psychiatric hospital than by placement in a preventive detention facility ( Article CARDINALa § § CARDINAL and CARDINAL of LAW , see paragraph CARDINAL below ) . Even though there had been no substantial change in his disorder , there had been some positive development in that he had started residing provisionally in a supervised residential facility .

On DATE ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal as ill - founded .

On DATE the applicant , represented by counsel , lodged a constitutional complaint with ORG . He claimed that his continued preventive detention in a psychiatric hospital breached his constitutional right to liberty . He argued that the strict criteria for continued preventive detention set out by ORG in its leading judgment of CARDINAL DATE were not met . Having regard to the fact that his offences – committed under the influence of alcohol – dated back DATE , that he had not drunk alcohol since then , and that the conditions of his detention had been extensively relaxed , the experts and the courts had not convincingly shown that there was a risk that he would commit a serious violent offence again if released . Moreover , it had not been found by the experts or the domestic courts that his alleged mental disorder had caused the offences in question , nor that he was or had ever been an alcoholic .

On DATE , without giving reasons , ORG declined to consider the applicant ’s constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) . The decision was served on the applicant ’s counsel on DATE .

From DATE the applicant was authorised to reside provisionally in PERSON in GPE , a supervised residential facility . He received regular visits from staff members from ORG . CARDINAL times a week he was allowed to go shopping in GPE for TIME , and once DATE he was allowed to go to ORG for DATE under escort . The applicant continued his work therapy in ORG . He no longer received any specific treatment for his mental condition or the alcohol abuse with which he had been diagnosed . The aim of his stay in the supervised residential facility was to enable him to cope with the requirements of everyday life by drawing on his own resources .

In DATE the applicant had to return to ORG following conflict with the staff at FAC . From DATE he resided provisionally in FAC , a supervised residential facility in PERSON , with conditions of detention comparable to those in FAC .

In accordance with ORG decision of DATE to terminate his preventive detention , the applicant was released on DATE .


LUBELSKA FABRYKA MASZYN I NARZEDZI ROLNICZYCH 'PLON' AND OTHERS v. POLAND

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

A list of the applicants is set out in the appendix .

NORP The facts of the cases , as submitted by the applicants , may be summarised as follows .

On DATE ORG ) passed the PERSON on the nationalisation of basic branches of the ORG economy ( LOC o przejęciu na własność GPE podstawowych gałęzi gospodarki narodowej – “ the MONEY ” , see paragraph CARDINAL below ) . It provided for the nationalisation of enterprises from CARDINAL branches of industry , regardless of their size . In addition , it concerned all enterprises capable of employing in production CARDINAL people on CARDINAL shift . Owners of the nationalised enterprises were to receive compensation , the amount of which was to be determined by special commissions at a later stage pursuant to a ORG ordinance yet to be enacted ( see paragraph CARDINAL below ) . Only enterprises that belonged to NORP citizens and people who had defected to the enemy were to be taken over by the ORG without payment of compensation ( see paragraph CARDINAL below ) .

The applicants in the first CARDINAL cases are limited liability companies and the applicants in the third case are heirs of the former owner of a textile mill . All CARDINAL enterprises were nationalised pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) and section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) . The decisions were given by the Minister for Industry and Trade ( Minister PERSON i GPE ) on the dates stated below and published in ORG ) .

NORP The applicant company was established in DATE and registered in the companies register at ORG under the name GPE PERSON i PERSON Rolniczych “ ORG ” . In DATE its registered office was transferred to GPE . In DATE its assets included a factory building and CARDINAL hectares of land in GPE . Until DATE it manufactured agricultural machinery and farming equipment .

On DATE the company was nationalised by virtue of a decision of the Minister for ORG ( “ the DATE decision ” ) , which was published in ORG no . CARDINAL of DATE .

On DATE GPE , an heir of GPE , one of the former shareholders of the nationalised company , applied to the Minister for Economy ( Minister PERSON ) for the DATE decision to be declared null and void . He was informed that only the company ’s governing body could act for the company . Since by that time all members of the managing board had died , a guardian had to be appointed . On DATE the courtappointed guardian lodged a new application .

On DATE , at a general meeting of the company ’s shareholders , it was decided that a winding - up procedure should be initiated and ORG was appointed as a provisional liquidator .

On DATE the Minister for Economy refused the application of DATE , noting firstly that the enterprise in question had been nationalised pursuant to section CARDINAL(CARDINAL)B of the CARDINAL Act , which provided that industrial enterprises capable of employing in production CARDINAL people on CARDINAL shift were to be taken over by the ORG . Capability of employing was to be understood as meaning “ the actual capability of employing ” on DATE , the date of entry into force of the CARDINAL Act , taking into consideration the manufacturing machinery available . However , on the basis of the existing documents , the Minister was unable to establish whether the factory had been capable of employing CARDINAL people on CARDINAL shift . For that reason , the Minister obtained an expert report determining the enterprise ’s potential employment capacity on CARDINAL shift . It emerged from that report that the enterprise ’s actual employment capacity at the material time had been CARDINAL people on CARDINAL shift . The Minister endorsed those findings and concluded that the nationalisation of the company had been lawful , as under section CARDINAL(CARDINAL ) B of the CARDINAL Act it could be effected in respect of enterprises employing a minimum of CARDINAL people on one shift ( see paragraph QUANTITY below ) .

The applicant company applied for the matter to be reconsidered , but on DATE the Minister upheld the original refusal , referring to the reasons given previously . It further held that the DATE decision had not been issued in breach of the law and remained valid .

On DATE the applicant company challenged the above decision on procedural grounds before ORG ( ORG PERSON ) .

NORP On DATE the court dismissed the applicant company ’s appeal , holding that the DATE decision had not been issued in breach of the law .

On DATE ORG ( PERSON ) dismissed a cassation appeal by the applicant company .

On DATE the applicant company lodged a claim with ORG seeking compensation ( MONEY ) for the ORG ’s failure to issue the relevant ordinance pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of the CARDINAL Act . The claim was based on LAW ( see paragraphs DATE and CARDINAL below ) . The applicant company subsequently changed the legal basis for its claim to LAW ( see paragraph CARDINAL below ) . It submitted that the ORG ’s tortious liability for legislative omission had arisen before DATE and continued after that date .

On CARDINAL DATE ORG dismissed the applicant company ’s claim . It noted that pursuant to section CARDINAL of the DATE Act owners of nationalised enterprises were to receive compensation within DATE of the date on which a notice of final determination of compensation was served . The compensation was to be in the form of securities and , in exceptional cases , also in cash or other values . The amount was to be determined by special commissions . Despite the fact that the CARDINAL Act contained a clear delegation of legislative powers ( delegacja ustawowa ) , a special ordinance had never been enacted . For those reasons , the commissions had never been formed and the compensation could not have been determined . The impugned legislative omission had occurred in DATE or DATE at the latest . In support of that approach the court referred to ORG resolution of DATE ( see paragraph CARDINAL below ) . It also observed that in DATE and DATE the ORG had enacted other ordinances to implement different provisions of LAW .

The court further stressed that the law applicable at the time when the legislative omission had occurred had not imposed tortious liability on the ORG . That situation had not changed when LAW had entered into force in DATE . Consequently , before the date of entry into force of LAW had not been liable for legislative omission . The situation had not changed after that date since LAW could not be considered an independent basis for vindicating that type of claim . The plaintiff ’s claim could have been based on LAW since that provision concerned ORG tortious liability for failure to enact legislation . However , section CARDINAL of LAW precluded its application in respect of all events and legal situations that had subsisted before DATE ( see paragraph CARDINAL below ) . In the present case , the impugned legislative omission had occurred by DATE at the latest . It was true that it had continued since , however , in deciding which legal provisions were applicable , regard had to be had to the date when the legal situation had begun and not whether it had continued . Consequently , since LAW had not been introduced until DATE , it did not apply to events and situations that had subsisted before its entry into force .

On DATE ORG dismissed an appeal by the applicant company , referring to the same grounds as ORG . It held that the obligation to enact an ordinance pursuant to section CARDINAL of the DATE Act had arisen at the time when that LAW had entered into force and the legislative omission had occurred by DATE at the latest , by which time other ordinances had been enacted . However , the legislative omission could not have given rise to the ORG ’s tortious liability since that liability had not been introduced until DATE .

On DATE ORG , sitting as a bench of CARDINAL judges , dismissed a cassation appeal by the applicant company . It observed at the outset that the main issue in the case was whether ORG was liable pursuant to LAW for damage caused after DATE by failure to enact a legal act , if such an obligation was provided by LAW and the ORG authority had failed to comply with it even after DATE .

ORG held that there was no doubt that under section CARDINAL of the DATE LAW had been obliged to enact an ordinance . It was further not contested by the parties’ that that duty had not been complied with .

In its reasoning ORG had regard to the following . Firstly , until DATE , the date of entry into force of LAW , the law had not imposed liability on ORG for damage caused by legislative omission . Secondly , LAW ( see paragraph CARDINAL below ) should have been interpreted narrowly , so that the ORG was liable only for “ an act ” and not “ failure to act ” . Consequently , there was no constitutional right to compensation for legislative omission . Thirdly , the legislature had introduced LAW to LAW in order to tighten the rules governing the ORG ’s civil liability . Fourthly , LAW unequivocally precluded the application of LAW in respect of events and legal situations that had subsisted before DATE . Fifthly , the ORG was liable for legislative omission only if there was a legal duty to enact ( under an act or the LAW ) . Such an obligation could not be derived from judicial interpretation . Sixthly , there was no legislative omission if the legislature had enacted a law but it was incomplete or flawed . Lastly , the ORG ’s civil liability for damage caused by legislative omission arose only when there was a direct causal link ( adekwatny związek przyczynowy ) between the legal provision and the ( legislative ) omission .

NORP The court concluded essentially reiterating the grounds stated in the DATE Resolution ( see paragraph CARDINAL below ) that the impugned legislative omission had occurred in DATE or DATE at the latest and had continued since . However , LAW CARDINAL of the LAW could not be considered a legal basis for a claim deriving from an “ omission ” by public authorities since that provision clearly only covered their “ acts ” . The provisions of DATE , enabling a plaintiff to seek compensation for legislative omission , had only been introduced on DATE , by virtue of LAW . The terms of LAW were unambiguous : DATE of LAW did not apply to events and situations that had subsisted before its entry into force . Consequently , its operation was precluded in respect of legislative omissions that originated in facts that had occurred earlier , even if that state of affairs continued to exist to DATE .

The applicant company was established in DATE and registered in the companies register at ORG under the name “ FAC Przedsiębiorstwo PERSON . z o. o. Its assets included the “ PERSON ” crude oil mine in GPE and leased petroleum fields . Until DATE it carried out the activities described in its articles of association , namely searching for potential underground crude oil , natural gas fields and other minerals , drilling exploratory wells , constructing and operating workshops , constructing and operating refining facilities and carrying out all other activities related to the petroleum industry .

On DATE the company was nationalised by virtue of a decision of the Minister for ORG ( “ the DATE decision ” ) , which was published in ORG no . CARDINAL of DATE .

On DATE the Minister for Economy refused an application by the applicant company for the DATE decision to be declared null and void . The applicant company applied for the matter to be reconsidered , but on DATE the Minister upheld the original refusal . The applicant company appealed against that decision .

On DATE ORG quashed the decision of DATE on procedural grounds .

On DATE the Minister for Economy once again refused to declare the DATE decision null and void . The Minister examined the documents available and concluded that the applicant company had been nationalised in accordance with the applicable legal provisions in force at the material time . In so far as the applicant company alleged that it had not received any compensation , the Minister noted that nationalisation was not conditional upon payment of compensation . Compensation for nationalised property was to be paid later , after expropriation . The procedure for payment and the amount was to be regulated by means of secondary legislation enacted at a later stage . However , to the present day no legal provisions on the matter had been enacted .

On an unknown date the applicant company challenged the above decision before ORG .

On DATE it dismissed the applicant company ’s complaint , finding that the DATE decision remained valid as it had not been issued in breach of the law . It further held that the fact that the applicant company had not received any compensation for the nationalised property did not mean that the DATE decision had been null and void .

The judgment was upheld by ORG on DATE .

On DATE the applicant company , acting through its guardian , lodged a claim with ORG seeking compensation for the ORG ’s failure to issue the relevant ordinance pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of the CARDINAL Act .

On DATE it rejected the claim on procedural grounds on the basis that a guardian could not act in a company ’s name if there were shortcomings in the composition of its governing bodies .

Following an appeal , the court set several additional time - limits in order to amend the composition of the applicant company ’s governing bodies .

On DATE it discontinued the proceedings on the grounds that the applicant company failed to submit an excerpt from the companies register .

On DATE the applicant company applied to amend the companies register . The proceedings were terminated by ORG on DATE .

The applicant company submitted that in view of the consistent case - law of ORG and , in particular , the judgment given in the first case ( see paragraph CARDINAL above ) , a civil claim for compensation had lacked any prospects of success .

The ORG predecessor owned a textile mill in ORG . In DATE the business consisted of a factory building of QUANTITY m. and weaving machinery , including numerous power looms ( DATE , according to various documents ) . Shortly before the Second World War the factory operated under the name ORG Mechaniczna Tkalnia Zarobkowa Pabianice .

On CARDINAL DATE the company was nationalised by virtue of a decision of ORG ( “ the DATE decision ” ) .

On DATE the applicants applied to the Minister for Economy for the DATE decision to be declared null and void .

On DATE the Minister for Economy refused the applicants’ application of DATE . The Minister held that , according to the documents available , in particular an inventory dated DATE , the textile mill had had CARDINAL power looms . Pursuant to a ORG ordinance of DATE cotton textile mills which had CARDINAL power looms were to be considered “ large and medium - sized textile industry ” . Consequently , the applicants’ property had been taken over in accordance with the law as applicable at the material time and the DATE decision remained valid .

NORP The applicants applied for the matter to be reconsidered . They relied in particular on the provisions of LAW and LAW , complaining that they had not received any compensation for the nationalised property .

On DATE the Minister for Economy upheld its previous decision , referring to the grounds already given . The Minister further noted that , under the relevant provisions of LAW , it could only examine the validity of the decision .

On CARDINAL DATE ORG gave judgment and dismissed an appeal by the applicants . The court held that the DATE decision had been issued in accordance with the law . In so far as the applicants alleged that they had not received any compensation , the court stressed that under the DATE Act nationalisation was not conditional upon payment of compensation . Compensation for nationalised property was to be paid later and determined by special compensation commissions . The composition of the commissions , the rules for the appointment of their members and the rules of procedure were to be determined by an ordinance issued by the ORG . However , to the present day the ORG had not yet issued an ordinance on the organisation of the compensation commissions and the determination of compensation referred to in section DATE ) and ( CARDINAL ) .

On DATE ORG dismissed a cassation appeal by the applicants . It reiterated the findings made by ORG and confirmed that the DATE decision had been given in accordance with the law . The judgment was served on the applicants’ lawyer on DATE .

Following the establishment of the communist regime in GPE nearly all branches of industry , as well as banking , insurance , transport and commercial companies were taken over by the ORG under LAW . LAW stated that the purposes of nationalisation were as follows :

“ In order to ensure the planned rebuilding of the ORG economy , the economic sovereignty of the ORG and to foster general well - being , the ORG shall take over ownership of enterprises under the conditions laid down in this law . ”

Pursuant to section CARDINAL(CARDINAL ) , only those industrial , mining , transport , banking , insurance and commercial enterprises that belonged to ORG and the former GPE of Gdańsk , their citizens ( except for those of NORP or other nationalities who had been persecuted by the NORP ) , NORP and ORG legal entities ( except for those set up under public law ) , companies controlled by NORP or ORG citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the ORG without payment of compensation .

Section CARDINAL(CARDINAL ) of LAW ( as amended ) states that the owners of the remaining enterprises were to be compensated for their nationalised property . The relevant part of the provision reads as follows :

“ CARDINAL . The ORG shall compensate [ owners ] for taking over ownership of the following :

A. ORG and industrial enterprises in the following sectors of the State economy :

( CARDINAL ) mines and mining leases subject to mining law ;

( CARDINAL ) [ the ] oil and gas industry , including mines , refineries , gasoline production and other processing plants , gas pipes and [ the ] synthetic fuel industry ;

( CARDINAL ) NORP companies that generate , process , transmit or distribute electricity ... ;

( CARDINAL ) NORP companies that generate , process , transmit or distribute gas ... ;

( CARDINAL ) water supply companies serving CARDINAL municipality ... ;

( CARDINAL ) NORP steelworks and non - ferrous metals smelting plants ;

( CARDINAL ) [ the ] arms , aviation and explosives industry ;

( CARDINAL) coking plants ;

( CARDINAL ) sugar factories and refineries ;

( CARDINAL ) industrial distilleries , spirit refineries and vodka production plants ;

( CARDINAL ) breweries with an annual output exceeding CARDINAL hectolitres ;

( CARDINAL ) NORP yeast production plants ;

( CARDINAL ) grain plants with a DATE output exceeding QUANTITY of grain ... ;

( CARDINAL ) NORP oil plants with an annual output exceeding QUANTITY and all refineries of edible fats ;

( CARDINAL ) cold stores ;

( CARDINAL ) NORP large and medium - sized textile industry ;

( CARDINAL ) [ the ] printing industry and printing houses ;

B. Industrial enterprises not listed in subsection “ A ” if they are capable of employing in production CARDINAL persons on CARDINAL shift .

C.

( CARDINAL ) ORG enterprises ( standard gauge and narrow - gauge railways , electric railways and aviation transport enterprises ) ;

( CARDINAL ) ORG enterprises ( telephone , telegraph and radio enterprises ) . ”

Section CARDINAL lays down the general principles for the payment of compensation for nationalised property . The relevant parts state as follows :

“ CARDINAL . The owner of an enterprise whose ownership has been taken over by the ORG ( section CARDINAL ) shall receive compensation from ORG within DATE of the date on which a notice of final determination of the amount of compensation is served on him .

Such compensation shall in principle be paid in securities ; however , in exceptional and economically justified cases it may also be paid in cash or other values .

The amount of compensation due shall be determined by special commissions . The persons concerned shall have the right to participate in proceedings before those commissions . If need be and in any event if requested to do so by the persons concerned , the commission shall appoint appropriate experts .

NORP The composition of the commissions , the rules for the appointment of their members , the quorum , the rules of procedure before the commissions and rules for appealing against their decisions shall be determined by an ordinance issued by the ORG .

The following factors shall be taken into account in determining compensation :

( a ) general deterioration of the value of the ORG property ;

( b ) the net value of the commercial property on the date of nationalisation ;

( c ) deterioration of the value of the enterprise caused by war losses or losses incurred by the enterprise in connection with the war and occupation in the period from DATE to the date of nationalisation ;

d ) the amount of expenditure after DATE ;

e ) special circumstances affecting the value of the enterprise ( concession terms , licences etc . ) .

A ORG ordinance shall determine detailed rules governing the calculation of compensation , assessment of the circumstances listed in subsection CARDINAL and means of payment of compensation ( subsection CARDINAL ) and depreciation of securities . ”

Pursuant to section CARDINAL , the ORG and the relevant Ministers are entrusted with the implementation of LAW . However , from CARDINAL DATE , the date of entry into force of LAW , to the DATE the ORG have not issued an ordinance on the organisation of the compensation commissions and the determination of compensation referred to in section DATE ) and ( CARDINAL ) .

Articles CARDINAL et seq . of the Civil Code provide for the ORG ’s liability in tort . In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw − “ LAW ” ) entered into force . The relevant amendments were in essence aimed at widening the scope of ORG liability in tort under LAW of LAW , including the addition of a new LAW being made for the ORG ’s tortious liability for failure to enact legislation , a concept known as “ legislative omission ” ( zaniechanie legislacyjne ) .

Following LAW , the relevant part of DATE , reads as follows :

“ If damage has been caused by failure to enact a law [ akt normatywny ] where there is a statutory duty to do so , the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for compensation . ”

However , under the transitional provisions of section CARDINAL of the CARDINAL LAW , Article CARDINAL as applicable before DATE applies to all events and legal situations that subsisted before that date .

The concept of the ORG ’s civil liability for a constitutional tort was introduced into the NORP legal order on DATE , the date of entry into force of the DATE LAW . The relevant part of LAW states as follows :

“ Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law . ”

In its resolution of CARDINAL DATE ( “ the DATE Resolution ” ) , ORG , sitting as a bench of CARDINAL judges , dealt with the following legal questions submitted to it by ORG of Appeal :

“ Is ORG liable for damage caused by failure to enact a law if the duty to enact that law , laid down in section DATE ) and ( CARDINAL ) of [ LAW ] was not fulfilled until the date of entry into force of [ DATE LAW ] , and , if so ,

when should this duty have been performed and did compensation for failure to enact the above law correspond to unreceived compensation for the enterprise nationalised by the ORG , determined in accordance with the principles laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] ? ”

The question arose in the context of a case brought by a certain ORG , who sought compensation for the nationalisation of her family ’s printing house and , as a basis for her claim , invoked LAW , relying on the ORG ’s legislative omission consisting of its failure to issue the relevant ordinance . ORG answer in the operative part of the resolution reads :

“ Until the date of entry into force of [ LAW ] the ORG ’s failure to issue an ordinance pursuant to section DATE ) and ( CARDINAL ) of [ LAW ] did not constitute a basis for a claim by an owner of a nationalised enterprise for compensation for [ nationalisation ] . ”

The resolution contains extensive reasoning , the main thrust of which reads as follows :

“ [ As regards the timeframe for the issue of the ordinance ] , the determination of the beginning of that situation carries with it a certain element of arbitrariness since [ LAW ] does not lay down any term within which the ordinance referred to in section [ CARDINAL ) and ( CARDINAL ) should be issued . Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay , it can be considered that the discharge of the statutory authorisation , assuming the existence of willingness of the authorised body ( the ORG ) should have taken place in DATE or DATE at the latest . This is supported by the fact that the ORG issued ordinances implementing other provisions ( including section CARDINAL(CARDINAL ) of the LAW , a fundamental provision for the interest of the ORG ) .

[ As regards the ORG ’s civil liability for legislative omission ] , ... it should be concluded that before the entry into force of the CARDINAL Constitution the State had not been liable under civil law for the consequences of its legislative inactivity ...

DATE , marking the entry into force of the LAW , is the relevant date as its constitutes the beginning of the existence in the legal order of , inter alia , LAW , proclaiming the right of “ everyone ” to compensation for any harm done to him by any act of a public authority in breach of the law ...

Assuming that LAW does not contain a provision making it possible to draw from it a direct basis for a claim for compensation for the legislature ’s inactivity , it must be said that the rules for the ORG ’s liability in the sphere of law - making should be established by means of an ordinary statute , determining in a more detailed manner than LAW premises for an effective claim ...

Article DATE § CARDINAL of LAW , as introduced by [ LAW ] , satisfies the requirement of detailed LOC . The relevant temporal consequences are clearly set out in DATE , evidently indicating the prospective operation of DATE § CARDINAL of LAW . A formulation laying down the non - retroactive nature of the provision is telling in that it refers to “ events and legal situations that subsisted before its entry into force ” ... In consequence , the assessment of the effects of legislative omission subsisting DATE was governed by [ earlier provisions ] . The relevant LAW , in the version before the amendment , did not include legislative omission as it was based on a completely different premise , namely , the absence of the ORG ’s civil liability for the legislature ’s acts ... ”

On DATE the ORG , sitting as a bench of CARDINAL judges , adopted a resolution in reply to a legal question submitted by ORG . It held in particular that legislative omission causing the ORG ’s liability for damage only occurred when a legal act had not been enacted despite an obligation arising from a legal provision ( the LAW or another act ) . However , that obligation had to be expressed in a clear and unequivocal manner , excluding the possibility of it having to be determined in the process of judicial interpretation ; such practice could be considered an interference with the legislature ’s competences .

In a resolution of CARDINAL DATE the ORG , sitting as a bench of CARDINAL judges , dealt with the following legal question submitted by the Ombudsman :

“ Is ORG liable for damage caused by legislative omission , if the legislature ’s inactivity subsisted before DATE ? ”

The ORG argued in his pleadings that judicial practice on the matter was unclear . ORG answer in the operative part of the resolution reads as follows :

“ ORG is liable for damage caused by failure to enact a legal act , if the obligation to enact that act arose after the date of entry of LAW [ DATE ] . ”

ORG referred to its DATE resolution , noting that that approach had been endorsed in its subsequent judgments of DATE ( no . ICSK CARDINAL/CARDINAL ) and DATE ( no . ICSK DATE ) ( see paragraph CARDINAL above ) . In the latter case the court also held that LAW CARDINAL of the LAW could not be considered a legal basis for a claim deriving from an “ omission ” by public authorities . A similar approach was adopted in a judgment of DATE ( no . I CSK CARDINAL/CARDINAL ) . The court concluded that it was irrelevant when the damage actually happened or whether it had increased in time , but if the legislative omission occurred before DATE , Articles CARDINAL and DATE of LAW could not be relied on .

The Constitutional Court ( PERSON ) on many occasions confirmed that a situation occurring before the entry into force of the LAW could not be a basis for a claim under LAW for compensation for the unlawful action of a public authority . In particular , the ORG gave such a ruling in judgments of DATE ( K CARDINAL/CARDINAL ) , DATE ( ORG CARDINAL/CARDINAL ) and DATE ( ORG CARDINAL ) , as well as in decisions of DATE ( Ts CARDINAL/CARDINAL ) and DATE ( Ts CARDINAL/CARDINAL ) .

On DATE the Constitutional Court heard a constitutional complaint lodged by the company GPE w ORG spółka akcyjna , challenging the constitutionality of section CARDINAL of LAW in so far as it precluded the application of DATE of LAW in situations that had subsisted before the entry into force of LAW on DATE . The claimant invoked , in particular , Article CARDINAL § CARDINAL ( right to compensation for the unlawful action of a public authority ) read in conjunction with Articles CARDINAL ( rule of law ) , QUANTITY and CARDINAL ( right of ownership ) read in conjunction with LAW CARDINAL and CARDINAL ( protection of ownership ) and LAW ( equality before the law ) and LAW ( right of fair trial ) of LAW .

The relevant part of ORG decision ( no . ORG CARDINAL ) reads as follows :

“ CARDINAL . ... ORG held that the authorisation included in section CARDINAL of the [ CARDINAL Act ] not only referred to a regulation in a legal act ( akt podstawowy ) of the fundamental guarantees of property law which – in accordance with current constitutional standards – could not be accepted but also did not include any instructions as to the content of an ordinance which was to be enacted DATE . Consequently , in the light of the provisions of the LAW it is difficult to assume that non - fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [ the CARDINAL LAW ] amounted to “ [ an ] unlawful action of a public authority ” for which the LAW imposes liability on the ORG . Even if the state of legislative omission still persists , it should at the same time be concluded that the duty is non - enforceable . Thus , it is evident that on the basis of the laws applicable only a statute could regulate compensation for the claimant ’s nationalised property . Even so , potential validation ( konwalidacja ) of section CARDINAL of the [ CARDINAL LAW ] authorising the enactment of an ordinance would have required a statute . ORG is not competent to authorise this . Accordingly , ORG considers that the assumption that an “ unlawful ” legislative omission still continues is unwarranted , particularly after the entry into force of the LAW , and in the light of the standards therein . Moreover , in view of the declaratory nature of that authorisation it is not possible to conceive what criteria the [ civil ] court should use DATE to determine the amount of compensation due to former owners of property nationalised in DATE . In summarising this part of the analysis , ORG considered that declaring section CARDINAL of LAW unconstitutional in so far as it precluded the application of the amended provisions of LAW in situations which concerned a failure to enact an ordinance and which arose in the pre - constitutional period and which also continued after LAW entered into force ( the direct application of a new statute ) would not have changed the legal situation of the applicant in the desired sense . In the light of current constitutional standards , it is difficult to accept that the duty imposed on the ORG by section CARDINAL of the CARDINAL Act has any legal effect . Consequently , it could not be established that there was an “ unlawful action of a public authority ” within the meaning of LAW .

On a passing note , the ORG noticed that in reality the only temporal rule which would have satisfied the applicant , that is would have given rise to compensation , would have had to be phrased : anyone who has suffered damage as a result of a failure to enact a legal act , notwithstanding when it has occurred and notwithstanding the existence of a current obligation to enact a legal act , may request [ the damage ] to be redressed in accordance with the new provisions , namely LAW . A legal rule of this content would not only be contrary to the rule lex retro non agit , but would also appear to be unacceptable to the rational legislator . It is also absolutely clear that such far - reaching ORG liability could not be derived from LAW , which was also demonstrated above in LAW . ORG stresses that LAW forms part of the legal system and is meant to introduce new civil law provisions into that system . These provisions , on the other hand , were meant to fulfil the legislator ’s wish expressed in LAW . LAW must respect the rules of constitutional order from which it derives its strength . It can not therefore be given another meaning which would allow it to achieve objectives not provided for by LAW . ”

Article CARDINAL § CARDINAL of LAW ( “ the CAP ” ) ( ORG postępowania administracyjnego ) sets out the grounds on which a final administrative decision may be annulled :

“ CARDINAL . A public administration authority shall declare a decision null and void if :

( CARDINAL ) it has been issued in breach of the rules governing competence ;

( CARDINAL ) it has been issued without legal basis or in flagrant breach of the law ;

( CARDINAL ) concerns a case already decided by means of another final decision ;

( CARDINAL ) it has been addressed to a person who is not a party to the case ;

( CARDINAL ) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature ;

( CARDINAL ) it would give rise to a punishable offence in the event that it has been enforced ;

( CARDINAL ) it has a flaw making it null and void by the force of law . ”

There is no time - limit for a party to lodge a request to have an administrative decision declared null and void under LAW .

Article CARDINAL sets out the principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article CARDINAL § CARDINAL .

It was repealed by LAW with effect from DATE ( see also paragraph CARDINAL above ) and replaced by new LAW . However , under section CARDINAL of the CARDINAL LAW , which sets out transitional rules , Article CARDINAL , in the version applicable on the repeal date , still applies to “ events and legal situations ” that subsisted before the entry into force of the CARDINAL LAW .

In DATE the Government introduced in ORG the PERSON on the restitution of immovable property and certain kinds of movable property taken from natural persons by the ORG or by GPE , and on indemnities ( ORG ustawy o reprywatyzacji nieruchomości i niektórych ruchomości QUANTITY przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach ) .

DATE . It provided for CARDINAL forms of restitution , namely restitution in natura or indemnity in the form of securities , with regard to property that had been taken over by the ORG or by GPE by virtue of certain laws passed under the communist regime , including the Decree on agrarian reform and the Decree on the nationalisation of certain forests . The bill prescribed the eligibility conditions for restitution . It further stipulated that restitution would be equal to PERCENT of the actual value of the lost property .

The bill provoked a heated debate involving all sections of society , the media and all political parties and factions . It was enacted by ORG on DATE and the relevant PERSON of ORG transmitted to the President of the Republic for signature . However , exercising his right of veto , he refused to sign it .

Ultimately , the PERSON ( lower house of the NORP parliament ) failed to gather the CARDINAL majority required under LAW to override the President ’s veto during a vote on DATE . As a consequence , LAW did not enter into force .

Subsequent attempts to enact restitution law were unsuccessful .


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

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE and is serving a sentence in Batman prison .

NORP In DATE the applicant was taken into police custody on suspicion of being a member of ORG , an illegal organisation . He claimed to have been arrested on DATE , whereas according to the arrest report he was taken into custody on DATE . His first medical examination upon his arrest was , however , carried out on DATE .

The examination was carried out by a doctor at the request of the police . According to the medical report issued in respect of the applicant , it was conducted prior to his detention in police custody . The report stated that there was old scar tissue measuring QUANTITY on his upper right wrist . The doctor also noted that there were no signs of violence on the applicant ’s body .

On DATE a second medical report was drafted , according to which the scar tissue mentioned in the medical report of DATE was QUANTITY long .

On DATE the applicant was questioned by the police without a lawyer being present . According to the document containing his statements to the police , he acknowledged being a member of ORG .

On DATE , at the end of his detention in police custody , the applicant was once again examined by a doctor . According to the report , there were no signs of violence on his body .

On DATE the applicant was brought before the public prosecutor and , subsequently , a judge , who questioned him and recorded his statements . On both occasions he denied the veracity of his statements to the police , claiming that he had signed them under duress . The judge remanded him in custody .

On DATE the public prosecutor at ORG filed an indictment against the applicant and a number of other individuals . They were charged with being members of ORG under LAW .

On DATE ORG held the first hearing on the merits of the case , at which the applicant gave evidence . He maintained , inter alia , that while in police custody , he had been beaten and given electric shocks to his genitals . He also told the court that he had been taken into police custody on DATE .

On DATE the applicant once again maintained before the firstinstance court that his statements to the police had been obtained under torture .

In DATE ORG were abolished . The case against the applicant was transferred to ORG .

On DATE the applicant was released pending trial .

On DATE the case against the applicant and his coaccused was joined with another case brought against a number of other people charged with being members of ORG .

DATE and DATE the applicant did not attend court , although during this period his lawyers attended some hearings on his behalf .

On DATE , during the final hearing in the case , the applicant ’s lawyer contended that the court should not base its judgment on the applicant ’s statements to the police , as they had been made under duress .

On DATE ORG convicted the applicant of being a member of an illegal organisation and sentenced him to CARDINAL years’ imprisonment . The court noted that he had alleged that he had been tortured in police custody . It nevertheless based its judgment on the statements the applicant and a number of the other accused had made to the police , and documents found in the applicant ’s house at the time of his arrest .

On DATE the applicant ’s lawyer lodged an appeal against the judgment of CARDINAL DATE , which did not refer to any of the applicant ’s allegations of ill - treatment while in police custody .

On DATE ORG upheld the judgment .

On DATE the applicant began serving his sentence .

On DATE he filed a petition with the Batman public prosecutor ’s office , requesting that an investigation be initiated into his illtreatment while in police custody in DATE .

On DATE the applicant gave statements to the Batman public prosecutor . He maintained that he had not been taken into police custody on DATE but on DATE , and that he had been subjected to torture while detained . He requested that both the police officers on duty at the relevant time and the doctors who had issued the medical reports be prosecuted .

On an unspecified date the Batman public prosecutor requested the ORG branch of ORG to examine the applicant and provide an opinion as to whether his allegations of torture were wellfounded .

On DATE a doctor from the ORG branch of ORG conducted the examination . The applicant told the medical expert that he had been hung by his wrists in police custody , and that they had been bruised at the material time . The doctor drafted a detailed report comparing the results of the CARDINAL medical reports issued in DATE and containing his opinion . He considered that the term “ old scar tissue ” should not have been used in the reports issued in DATE , since such scars did not fade for a long time . In this connection , the doctor noted that he could not see any such scar when he examined the applicant in DATE . In sum , the doctor considered that had the scar observed during the medical examinations in DATE been an “ old scar ” , it would still have been observed during the examination of DATE . He also noted that the reports issued in DATE had not described the type , colour or any other features of the scar . Lastly , he recommended that the applicant undergo an examination at ORG in GPE with a view to establishing whether he had been suffering any psychiatric problems as a result of the alleged torture .

On DATE the ORG public prosecutor decided not to prosecute the officers on duty at the Batman police station at the relevant time or the CARDINAL doctors who had issued the medical reports on CARDINAL , DATE and DATE . The public prosecutor noted that the statutory time - limit provided in LAW ( which had been in force in DATE for prosecutions for torture ) was DATE , and that the applicant had lodged his complaint after this time - limit had expired . It was accordingly concluded that the investigation was timebarred .

On DATE the applicant objected to that decision .

On DATE ORG dismissed his objection and the decision was upheld .

On DATE , while the applicant was in custody , his hip was broken while he was playing volleyball . He had surgery twice .

In medical reports dated DATE , DATE and DATE , doctors from ORG concluded that for him to make a full recovery , he would need to have a hip replacement .

On DATE and CARDINAL DATE the applicant filed petitions with the Batman public prosecutor , requesting immediate surgery and complaining of a delay in treatment .

On DATE the applicant ’s father submitted another petition to ORG requesting immediate intervention .

A prosthetic hip was implanted after CARDINAL consecutive operations carried out on unspecified dates in DATE or DATE . On DATE the applicant was declared unfit for military service because of the prosthesis .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in GPE .

The applicant is a well - known civil society activist and human rights defender . He is the Chairman and CARDINAL of the co - founders of ORG , a non - governmental organisation ( NGO ) specialising in the protection of human rights . ORG was established in DATE and has made several unsuccessful attempts to obtain State registration by ORG in order to obtain legal entity status under domestic law . The authorities’ refusal to register ORG is the subject of another application pending before ORG ( see application no . CARDINAL ) . The applicant has collaborated with other NGOs in GPE on various projects . He is also a member of ORG of ORG ) .

The applicant has been involved in the preparation of various reports relating to human rights issues in GPE . He has also been involved in promoting the adoption of ORG of ORG PACE ) report on political prisoners in GPE , and has been working on a consolidated list of political prisoners to be presented to ORG . He has been a speaker at ORG and ORG ( ORG ) events , and has submitted shadow reports to ORG institutions .

The applicant also coordinated the Sing for Democracy campaign ( later renamed ORG ) during and after the Eurovision Song Contest CARDINAL in GPE , which aimed at drawing attention to human rights violations in GPE .

During the DATE session of the PACE the applicant presented a report on human rights violations in GPE at ORG .

NORP In DATE a number of human rights activists , lawyers , politicians , journalists and other government critics have been arrested and/or charged with various criminal offences . Those arrests generated wide publicity and were condemned by a number of international organisations , NGOs and prominent individuals ( see , for example , paragraphs CARDINAL below ) .

On DATE ORG instituted criminal proceedings under Articles CARDINAL ( abuse of power ) and CARDINAL ( forgery by an official ) of LAW in connection with alleged irregularities in the financial activities of a number of NGOs .

While the applicant was away in GPE from DATE ORG ordered a freezing injunction in respect of his bank accounts on DATE .

On DATE , while travelling by train from GPE to GPE , the applicant was stopped during checks at the NORP - Georgian border . He was informed that he could not leave the country because a travel ban had been imposed on him on DATE .

On DATE the applicant was invited to ORG , where he was questioned as a witness in connection with the above - mentioned criminal proceedings ( see paragraph CARDINAL above ) .

On DATE and CARDINAL DATE searches were conducted at ORG , and a number of documents , mainly related to book - keeping and finance , were seized .

On DATE the applicant was again invited to ORG for questioning as a witness . On his arrival at the LOC he was arrested and formally charged under ORG DATE ( illegal entrepreneurship ) , CARDINAL ( large - scale tax evasion ) and CARDINAL ( abuse of power ) of LAW . The description of charges consisted of a single sentence which was CARDINAL page long . In particular , it was noted that since DATE the applicant , as co - founder and Chairman of ORG , an “ organisation lacking ORG registration ” , and as a project manager in an ORG named ORG , had received a number of grants from GPE ORG ) , various branches of ORG ( ORG ) , GPE ’s PERSON and other donor organisations , pursuant to relevant grant agreements . He was accused of acquiring profit , “ by paying money to himself and other people involved in the projects in the guise of salaries and service fees ” in the amount of CARDINAL NORP new manats ( AZN ) , having acquired that money through , “ illegal entrepreneurial activity in respect of grants which , as an official , he had failed to register with the relevant executive authority , even though he had a professional obligation to do so ” . He was also accused of avoiding payment of taxes under LAW , CARDINAL and CARDINAL of LAW in the amount of AZN CARDINAL,CARDINAL.CARDINAL , thus causing , “ significant damage to ORG interests protected by law , bringing about grave consequences ” .

On DATE , DATE , ORG , relying on the official charges brought against the applicant and the prosecutor ’s application for the preventive measure of remand in custody , ordered the applicant ’s detention for DATE . The court justified the decision as follows :

“ Taking into account the gravity of the criminal offences of which the applicant is accused and the possibility of him disrupting the normal course of the investigation by unlawfully influencing people involved in the proceedings or absconding from the investigation if he remains at liberty , the court considers that the preventive measure of remanding him in custody must be applied in his case . ”

On DATE ORG made a public statement which noted that the applicant had been charged under Articles CARDINAL , CARDINAL and CARDINAL of LAW because there was a suspicion that he had committed the criminal offences set out in the abovementioned ORG .

On DATE the applicant appealed against the detention order . He argued that there was no “ reasonable suspicion ” that he had committed a criminal offence , and that his detention was a punishment for carrying out activities which were protected by the LAW . He further argued that the court had failed to provide any relevant reasons as to the applicability of grounds which could justify his detention . In particular , as to the risk of absconding , the applicant pointed out that the factual circumstances indicated that there was no such risk . He submitted that he had cooperated with the investigating authorities from the very beginning by appearing for questioning and producing documents whenever he had been required to do so , and that he had returned to the country from a trip to GPE knowing that he was under investigation . As to the risk of disrupting the investigation , the applicant argued that the existence of such a risk had not been substantiated . He argued that , on the contrary , he had given to the authorities originals of all documents which could be relevant to the investigation , and therefore was not in a position to tamper with the evidence .

On DATE ORG upheld the detention order of CARDINAL DATE without addressing any of the applicant ’s arguments .

On DATE the applicant applied to ORG , requesting the substitution of remand with either house arrest or release on bail . Among other things , the applicant highlighted the factual circumstances which supported his argument for less restrictive measures , including the fact that he had returned to the country from GPE knowing that he was under investigation and had complied with all orders to produce documents and appear for questioning , and that he , as a human rights defender , was a respected public figure with strong ties to the community .

On DATE ORG rejected his application , finding that the grounds justifying his detention , as specified in its decision of CARDINAL DATE , “ had not ceased to exist ” .

On DATE the applicant appealed , reiterating his arguments in detail . On CARDINAL DATE ORG upheld ORG decision of DATE .

On DATE ORG extended the applicant ’s pre - trial detention by DATE ( to DATE ) , finding that the grounds justifying his continued detention , “ had not ceased to exist ” .

On DATE the applicant appealed , reiterating his previous arguments .

On DATE ORG dismissed the appeal , upholding the extension decision of DATE and providing the same reasoning as the first - instance court .

On an unspecified date in DATE the applicant applied to ORG , requesting the substitution of remand with house arrest . On DATE ORG rejected his application , finding that the grounds justifying his detention , as specified in its decisions of DATE and DATE , “ had not ceased to exist ” .

On DATE the applicant appealed against ORG decision of DATE , reiterating his arguments in detail . On DATE ORG dismissed the appeal .

No further decisions extending the applicant ’s detention are available in the case file .

On DATE ORG charged the applicant under ORG CARDINAL.CARDINAL.CARDINAL ( high - level embezzlement ) and CARDINAL of LAW , in addition to the original charges under ORG DATE , CARDINAL and CARDINAL of LAW . The description of the allegations against him was slightly expanded , but essentially remained the same as that given on DATE ( see paragraph CARDINAL above ) , with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services provided by a number of individuals ( presumably in connection with various grant projects ) and had not paid them in full as stipulated in the contracts . The new description of charges also included changes to the total amount of the alleged illegal profit obtained by the applicant ( AZN CARDINAL,CARDINAL.CARDINAL ) and the alleged amount of unpaid taxes ( AZN MONEY ) .

The applicant ’s criminal trial began in DATE . On DATE ORG convicted him of all charges and sentenced him to CARDINAL and a half years’ imprisonment and deprivation of the right to hold official positions in ORG and local authorities and the right to engage in entrepreneurial activity for DATE . The conviction is not yet final and the appeal is pending .

Enclosed with his submissions to the ORG , the applicant included statements by PERSON dated DATE , by ORG in GPE dated DATE , by ORG in GPE dated DATE , by People In Need dated DATE , by ORG dated DATE , by ORG dated DATE and by ORG dated DATE .

All of those statements , addressed “ To whom it might concern ” , provided details of the relevant grants and donations awarded to the applicant or ORG , noted that the applicant had regularly provided the relevant donor with necessary accounting information concerning the expenditure of the funds , and specified that the donor organisations and embassies had every confidence that the funds had been used properly for the relevant projects and initiatives for which they had been awarded .

There is no indication in the case file that the above statements have been sought or taken into account by the prosecuting authorities .

NORP Before and after the applicant ’s arrest , numerous articles about him were published in the ORG media and in the media allegedly close to the government . In those articles , he was described as a spy for foreign interests and “ a traitor ” . Moreover , a number of politicians from the ruling political party made similar comments about recently arrested NGO activists and human rights defenders in GPE , without specifically naming the applicant . The following are some examples of such comments .

In DATE PERSON , the official newspaper of the ruling party , ran a piece entitled “ NORP of ORG DATE ” , which attacked the PERSON for Democracy campaign coordinated by the applicant as a campaign against the interests of the country and stated the following :

“ The blackmail and slander campaign of ORG for Reporters’ ORG , and ORG is based on ugly intentions which are evident from the names of these organisations . These organisations always orchestrate the ugly plans of several interested circles against GPE and act as mercenaries . The remote control of those who would do anything for money , who easily betray their country and ORG by launching a black smear campaign in exchange for foreign donations ( donations obviously granted for meeting certain interests ) is in the hands of those who give the money . ”

Around the time of the applicant ’s arrest and thereafter , the same newspaper and online news portals affiliated with the authorities published a number of pejorative articles calling the applicant an “ NORP agent ” , with headlines such as “ NORP Agent PERSON Detained for CARDINAL Months ” , “ The Rights of PERSON , Another Agent , Limited ” , and “ Search of ORG Agent PERSON ” .

On DATE PERSON , the Chairman of ORG of ORG , gave an interview to ORG news agency where he commented on the reactions to the arrests of PERSON , Mr PERSON and other human rights defenders and stated :

“ ... it is those [ international organisations ] which made them ‘ well ORG . The organisations which have allocated grants to them in non - transparent ways , directing them into various activities , including those against GPE . These people , some of whom are traitors and some weak - minded , will finally answer before the law . ”

On DATE PERSON , the Head of ORG , stated the following in an interview with Trend news agency :

“ The most deplorable thing is that such NGOs and individuals and some journalists , relying on foreign circles funding them , placed themselves above the national law , evaded registering their grant projects , filing financial statements , paying taxes and the government ’s other legal requirements . ”

NORP In an interview published on DATE GPE , a member of parliament from the ruling party , who was also the Director of ORG at ORG , stated the following in respect of the recently arrested NGO activists and human rights defenders :

“ People who betray their motherland can not be forgiven . ... The death penalty should be imposed on such people . Capital punishment must be the gravest punishment for them . Why should traitors be forgiven ? ... Therefore , the activities of a number of non - governmental organisations must be investigated very seriously , and if any illegality is discovered , such organisations must be immediately banned and their leaders punished . ”

On DATE ORG - owned news agencies published a sixtypage manifesto written by ORG , the Head of ORG , entitled “ The World Order of Double Standards and Modern Azerbaijan ” . The article accused human rights NGOs operating in the country of being the “ fifth column of imperialism ” . It postulated that various , mostly GPE - sponsored , donor organisations such as NED , as well as other foreign organisations , supported political opposition movements in various countries against national governments . For local human rights NGOs , the purpose of such funding schemes was the formation of a “ fifth column ” inside a country . GPE taxpayers’ money was spent on preparing a change of political power or forcing existing governments to comply with GPE political demands .

According to the applicant , in various speeches given in DATE the President of the ORG had stated that foreign criticism of the human rights situation in GPE had nothing to do with human rights , but was politically motivated , and that within the country there were “ national traitors who had sold their conscience to foreign anti - NORP circles ” .

The applicant ’s representative , PERSON , was an advocate and a member of ORG ( “ the ORG ” ) . He was affiliated with ORG no . CARDINAL in GPE .

In DATE disciplinary proceedings were instituted against PERSON by the ORG on the basis of a letter dated DATE from a judge of ORG . In his letter , the judge informed the ORG that PERSON had breached the ethical rules of conduct for advocates at court hearings held in DATE before ORG during criminal proceedings against GPE

On DATE the Collegium of the ORG held a meeting at which it considered the complaint against PERSON . Following the meeting , ORG held that PERSON had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system , “ Like ORG , like court ... If there were justice in GPE , Judge [ R.H. ] would not deliver unfair and partial judgments , nor would an individual like him be a judge ” ( “ PERSON dövlətin belə də məhkəməsi olacaq ... GPE ədalət olsaydı , hakim [ R.H. ] ədalətsiz və qərəzli hökm çıxarmaz , nə də onun kimisi hakim işləməzdi ” ) . On DATE the Collegium of the ORG decided to refer Mr PERSON ’s case to a court , with a view to his disbarment . It also decided to suspend his activity as an advocate ( vəkillik fəaliyyəti ) pending a decision by the court .

It appears from documents submitted to the ORG that , following Mr PERSON ’s suspension as an advocate , the domestic authorities stopped allowing him to meet the applicant in prison .

On DATE PERSON sent a letter to the Head of ORG asking for a meeting with CARDINAL of his clients who were held in detention , including the applicant . He specified in his letter that he was representing those individuals before the ORG , and requested a meeting with them in connection with their pending cases . The relevant part of the letter reads :

“ I am writing to inform you that I represent the following individuals , who are detained in the penal facilities and temporary detention centres under your authority , before ORG .

I ask you to allow a meeting with these individuals in connection with the progress of their cases based on their applications lodged with ORG ( the numbers of which are stated below ) :

PERSON ( ORG , application no . CARDINAL )

Attachment : Copies of letters from ORG and the NORP government concerning these individuals . ”

A copy of the letter was also sent to the Head of ORG of ORG .

By a letter of DATE , the Deputy Head of ORG refused to allow PERSON to meet the applicant in prison . The relevant part of the letter reads :

“ Your request for a meeting in the penal facilities and detention centres with the individuals detained in the penal facilities and with convicted inmates in order to provide them with advocacy services has been considered .

In explanation , as your advocacy activity at ORG no . CARDINAL has been suspended by decision no . CARDINAL of DATE of ORG and you have been disbarred , and [ as a result of the fact that ] as of that date you can no longer practise as an advocate in court and investigation proceedings , it is impossible to grant you access to the penal establishments as counsel . ”


CASE OF MILINKOVIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in DATE and lives in GPE .

By a judgment of ORG of DATE which became final on CARDINAL DATE , ORG ( an Entity of GPE ) was ordered to pay , within DATE , MONEY ( BAM ) in respect of non - pecuniary damage together with default interest at the statutory rate and BAM CARDINAL,CARDINAL in respect of legal costs together with default interest at the statutory rate to the applicant .

The Banja Luka Court of First Instance issued a writ of execution ( rješenje o izvršenju ) on DATE .

The applicant complained of non - enforcement to ORG the LAW ” ) . On DATE ORG found a breach of LAW No . CARDINAL to the Convention .

The final judgment in favour of the applicant remains unenforced to DATE .


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

The facts of the case , as submitted by the parties and as they appear from the documents submitted by them , may be summarised as follows .

The applicant ’s daughter , PERSON , worked as a nurse at ORG in GPE . She was married to ORG , who worked in the pharmacy at the same hospital .

According to the applicant , the couple had frequent rows and ORG used violence against PERSON on a number of occasions .

At TIME on DATE ORG brought PERSON to the accident and emergency department of ORG and told the doctors and nurses at the hospital that she had taken an overdose of CARDINAL medicines called “ Prent ” and “ Muscoril ” .

A police officer at the hospital took a statement from ORG at TIME In his statement ORG was reported as having stated that he and PERSON had had a row earlier in DATE ; she had attacked him and he had hit her . He had then left home and some time after his return at TIME had felt unwell . He had then brought her to the hospital .

It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at TIME and that the prosecutor had instructed that police officer to question PERSON and her husband , ORG

At the time of her admission to the hospital , PERSON was conscious but drowsy . Doctors and nurses , who had been informed about ORG ’s assertion that she had taken an overdose of the CARDINAL medicines , pumped her stomach . When her pulse slowed down the doctors unsuccessfully tried to resuscitate her . PERSON died at TIME

The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided , in view of the fact that the deceased ’s husband , ORG , had told the police officers that he had hit her , that a post - mortem examination was necessary .

NORP The post - mortem examination was carried out the following day and samples taken from PERSON body were sent for forensic analysis .

On DATE the police prepared a report summing up their inquiry . It was stated in this report that PERSON had committed suicide by taking an “ overdose of medicines ” .

On DATE the applicant ’s husband , Mr PERSON , lodged an official complaint with the GPE prosecutor against ORG , and alleged that ORG had been responsible for the death of his daughter . Mr PERSON stated in his complaint petition that ORG had beaten PERSON up on a number of occasions and , as a result , she had been thinking of divorcing him . However , ORG had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again . Mr ORG informed the prosecutor that PERSON had telephoned her sister during TIME of her death , and that they had had a normal conversation ; she had not been suicidal at all .

Mr PERSON alleged that ORG had forced PERSON to take the medicines and had subsequently dumped her body at the hospital . The family had heard nothing from ORG since that date and he had not even attended the funeral .

On DATE the GPE prosecutor questioned the applicant and her husband . The applicant told the prosecutor that ORG had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries . Mr PERSON told the prosecutor that his daughter had never been suicidal and that in his opinion ORG had been responsible for her death .

On DATE police officers forwarded photographs of PERSON body to their head office with a covering letter stating “ ... find attached photographs of PERSON who committed suicide by taking an overdose of medicines ” .

Also on DATE the LOC prosecutor questioned the hospital personnel who had been on duty on DATE in question and had tried to resuscitate PERSON A doctor told the prosecutor that ORG had told him that PERSON had taken “ Muscoril ” and “ Prent ” .

On DATE the GPE prosecutor informed ORG for births , marriages and deaths that PERSON had taken an overdose on DATE and had killed herself and that her death could be entered in the records .

According to a report drawn up by ORG on DATE , no medicines , other drugs or alcohol had been found in the blood and other bodily samples taken from PERSON body .

On DATE ORG published its report on the post - mortem examination and other forensic examinations carried out on the samples taken from PERSON body . According to the report , there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body . The cause of death was established as “ acute alveolar swelling and intra - alveolar haemorrhage ” in the lungs .

On DATE the GPE prosecutor in charge of the investigation sent a letter to ORG and asked whether suicide or some form of illness could have been the cause of death .

In its response to the LOC prosecutor ORG confirmed on DATE that there had been no foreign substances or medicines ‒ including “ Prent ” and “ Muscaril ” ( see paragraph CARDINAL above ) ‒ in PERSON body . ORG also stated in its letter that , should the judicial authorities conclude that PERSON had committed suicide by taking an overdose , then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs .

On DATE the GPE prosecutor decided to close the investigation . In the decision the prosecutor stated that “ the post - mortem report of DATE states that PERSON died as a result of lung complications caused by medicinal intoxication ” . In the opinion of the prosecutor , PERSON had committed suicide because she had had an argument with her husband .

On DATE the applicant lodged an objection with ORG against the prosecutor ’s decision . The applicant drew ORG attention to the prosecutor ’s failure to question ORG , despite the fact that by his own admission he had beaten PERSON up on DATE of her death . She also argued that the prosecutor ’s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the CARDINAL reports issued by ORG . She added that the prosecutor had not visited the flat where PERSON used to live with ORG , even though they had informed the prosecutor that the flat had been a mess and that windows had been broken . She alleged in her petition that the prosecutor had accepted from the outset that PERSON had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention .

On DATE the applicant and her husband , assisted by a lawyer , submitted another petition to ORG in which they set out additional arguments in support of their request for the prosecutor ’s decision to be set aside .

The objection was dismissed by ORG on DATE . ORG considered that the prosecutor ’s decision had been correct and in accordance with domestic law and procedure .

When notice of the application was given to the respondent Government , the ORG asked the Government ‒ pursuant to the GPE duty to cooperate with the ORG under LAW ‒ to invite ORG to prepare a report , based on the above - mentioned existing medical reports and the prosecutor ’s decision of DATE , and to render an expert opinion as to whether there exist medicines which can not be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems . The Government were also asked , should the ORG ’s answer be in the negative , to invite the ORG to elaborate , on the basis of the documents in the investigation file , on the cause of the lung problems which , according to the report of DATE , caused the death .

The Government complied with that request and submitted to the ORG CARDINAL reports prepared by ORG on DATE and DATE .

In these CARDINAL reports , CARDINAL experts working for ORG confirmed that the samples taken from PERSON body had been checked against the list of known substances in their database ‒ including the CARDINAL medicines named specifically by PERSON husband , ORG ( see above in paragraph CARDINAL ) ‒ and stated that she had not died as a result of having taken any of those substances . It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database .

The experts at ORG also stated in their reports that they did not agree with the conclusion reached in the autopsy report of DATE , namely that PERSON had died as a result of “ acute alveolar swelling and intra - alveolar haemorrhage ” in the lungs . In their opinion , the “ acute alveolar swelling and intra - alveolar haemorrhage ” was a histopathological finding often caused by anoxia ( total oxygen depletion ) , and could thus not be stated as the cause of death . In the opinion of the CARDINAL experts , it should have been stated in the autopsy report of DATE that the cause of PERSON death could not be established .


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The first applicant , Mr ORG , is a NORP national born in DATE . The second applicant , PERSON , is a NORP national born in DATE . The applicants live in PERSON . They were represented before the ORG by PERSON , a lawyer practising in GPE .

The applicants have a son , X , born in DATE . In DATE , the second applicant had a son , Y , with another man . The second applicant suffers from paranoid schizophrenia , a chronic mental illness requiring medication . X had a difficult birth with birth asphyxia and possible withdrawal symptoms from the second applicant ’s medication , which she had taken during pregnancy . DATE after X was born , ORG ( barneverntjenesten ) decided to take him into public care on an emergency basis because of the second applicant ’s poor mental health and the first applicant ’s inability to understand that this could be hazardous for X.

NORP The applicants’ appeal was rejected on DATE by ORG and ORG ( fylkesnemnda for barnevern og sosiale saker , henceforth “ the Board ” ) . The applicants were at the same time granted contact rights for TIME once per week with X. The applicants did not appeal against the ORG ’s decision .

On DATE ORG requested ORG to take X and Y into permanent public care , place them in foster homes and regulate the contact rights with the applicants . The applicants opposed the measures .

On DATE , the ORG decided to take X and Y into permanent public care and place them in foster homes . Y was placed with his maternal grandmother , with whom he had already lived since he was a baby . X was placed in another foster home . The applicants were granted contact rights with X for TIME , CARDINAL times per year , with a foster parent present if needed . The second applicant was granted more substantial contact rights with Y , including TIME visits . An oral hearing was held for DATE and CARDINAL witnesses were heard . Moreover , the ORG took into consideration a report issued by an expert , psychologist GPE , who had observed the applicants during several visits with X. The report concluded that the applicants failed to provide X with personal contact and security and that there were flaws in the emotional and child development care .

The applicants appealed against the permanent public care order and the decision on contact rights only regarding X.

On DATE , the ORG ’s decision was confirmed by ORG ( tingrett ) , after a DATE oral hearing where CARDINAL witnesses and the expert GPE were heard . The court was composed of CARDINAL judge and CARDINAL expert lay judges . The court found that the applicants were able adequately to take care of PERSON ’s basic DATE needs . However , as a vulnerable child , PERSON had a special need for contact and emotional interaction . Regarding the second applicant , the court took into consideration the report by GPE where it was noted , inter alia , that she was strongly affected by negative psychosis symptoms such as passivity and social withdrawal . She was emotionally numb , with heavily reduced function levels . As to the first applicant , GPE had found that he was not able to compensate for the first applicant ’s deficiencies . Although he could take care of GPE ’s material needs , he was unable to fulfil X ’s need for contact and interaction . In view of this , the court concluded that the public care of X could not be terminated .

One of the expert lay judges dissented and expressed the view that the first applicant was able to compensate for the second applicant ’s deficiencies , at least if support measures were put in place by the authorities .

On DATE , ORG ( lagmannsrett ) unanimously rejected the ORG appeal against the lower court ’s judgment concerning the permanent public care order . The appellate court consisted of CARDINAL judges and CARDINAL expert lay judges . Although the applicants did not appeal against the judgment in so far as it concerned the contact rights , the appellate court considered the matter on its own initiative . An oral hearing was held for DATE . The parties and CARDINAL witnesses were heard . With regard to X , he was considered by the appellate court to be a healthy and normal child but , due to his infant trauma , still vulnerable . Moreover , it noted that the second applicant had a chronic mental illness . The court relied on the same expert , GPE , as ORG . GPE had observed visits between the applicants and X on several occasions and had issued a new report , dated DATE , where , inter alia , the following was noted :

“ [ The second applicant ] has , during the visits I have observed , occasionally been more active with [ X ] than during the visits I observed in DATE . But her demeanour during the visits is , as during earlier visits , with some exception , characterised by her subdued ( avdempet ) , detached ( følelseflat ) and quiet ( stille ) behaviour . There are long pauses where it is completely silent in the room . ”

As to the first applicant , the report by GPE noted , inter alia , the following :

“ [ He ] was very passive during both visits . He followed [ X ] around the room while [ X ] explored the various games , and sat down on the floor when [ X ] did . However , he sat down behind [ X ] so that there was no face - to - face contact between them ... He smiled at [ X ] but did not take the initiative to interact or answer or develop the various initiatives X took for interaction during play . The visits were characterised by [ the first applicant ] quietly observing PERSON ’s play and the [ second applicant ’s ] and [ X ’s ] play . When [ the second applicant ] during the last part of the visits became more passive , [ the first applicant ] did not take over , but remained passive and quiet . ”

The report concluded that neither parent was able to meet PERSON ’s need for contact and interaction . Even though the first applicant was considered to possess more parental ability , he was still not found able to compensate for the second applicant ’s lack of such ability , in particular as he lacked in his ability for sensitive care ( sensitiv omsorg ) . It was furthermore concluded by GPE that neither parent saw , understood or responded to X ’s signals . The first applicant still lacked an understanding of the second applicant ’s mental illness and how it affected her capacity to care for the child .

The appellate court found that the expert ORG ’s observations were confirmed by the court ’s own observations during the oral hearing . It further considered that support measures would not be sufficient because of the applicants’ lack of interest in such measures and lack of understanding of their deficiencies . Moreover , X had settled well in his foster home and developed positively . Thus , it was in GPE ’s best interest that the permanent public care order be granted .

The applicants appealed to ORG ( PERSON ) , submitting that the permanent public care order should not be granted . They did not complain about the contact rights .

On DATE , ORG refused leave to appeal .

According to Section CARDINAL - CARDINAL(CARDINAL ) of the DATE LAW ( lov om barneverntjenester ) , a newborn child may be taken into public care if it is highly probable that a move to the parents would lead to such a situation or risk to the child as mentioned in LAW .

Section CARDINAL - CARDINAL(a ) , of the LAW stipulates that a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security the child needs , depending on his or her age and development .

According to LAW ) of the LAW , the parties may request ORG to terminate the public care as long as DATE have passed since the ORG or the courts last considered the matter .

Contact rights between a child in public care and his or her parents are regulated in LAW which stipulates that the extent of the contact rights is decided by ORG . The private parties can demand that the matter be reconsidered by ORG as long as DATE have passed since the ORG or the courts last considered it ( LAW ) ) .

Article CARDINAL of the Convention on the Rights of the Child , in so far as relevant , reads as follows :

“ CARDINAL . In all actions concerning children , whether undertaken by public or private social welfare institutions , courts of law , administrative authorities or legislative bodies , the best interests of the child shall be a primary consideration .

GPE Parties undertake to ensure the child such protection and care as is necessary for his or her well - being , taking into account the rights and duties of his or her parents , legal guardians , or other individuals legally responsible for him or her , and , to this end , shall take all appropriate legislative and administrative measures . “


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in DATE and lives in GPE .

On DATE the applicant got involved in a drunken brawl with a stranger and beat him to death .

The date of his arrest can not be established with certainty . According to the applicant , he was arrested on DATE . An internal police inquiry established the date as CARDINAL DATE . The official arrest record gives the time and date of his arrest as TIME on DATE .

On DATE ORG in GPE remanded the applicant in custody . On DATE he was seen by a medical expert who noted CARDINAL abrasions on his forehead that could have been caused by a solid blunt object DATE prior to the examination .

On DATE the applicant was convicted of murder and sentenced to CARDINAL years’ imprisonment in a high - security facility .

On DATE the applicant asked the prosecutor to investigate his allegation that police officers had beaten him up after his arrest . On DATE the prosecutor refused institution of criminal proceedings . On the following day the decision was quashed and an additional inquiry was ordered . Since then the investigative authorities and courts issued and subsequently quashed CARDINAL decisions to open criminal proceedings into the alleged ill - treatment . Referring to the statements from CARDINAL police officers and from the investigator all of whom denied any ill - treatment or intimidation , the decision of DATE concluded that the applicant ’s allegations were unsubstantiated because the expert had determined his injuries to have been caused no later than DATE DATE , that is to say , DATE prior to his arrest . On DATE the prosecutor of LOC in GPE annulled the decision of DATE and ordered an additional inquiry which should establish whether or not the applicant had been brought to the police station already on DATE and whether or not the specific police officer described by the applicant had been on duty on DATE .

DATE and DATE the applicant served the sentence in GPE , a correctional institution in GPE . The dormitory was crammed and in a poor state of repair . On DATE the applicant was transferred to IK-CARDINAL where he stayed until DATE . The dormitories in which the applicant slept were overcrowded , affording at times no more than QUANTITY . m per detainee . The access of natural light was restricted by plastic film covering the windows . The toilets , located in a separate building , were equipped with CARDINAL pans for CARDINAL detainees . On DATE the applicant was transferred to ORG , a medical facility , where he appears to have stayed until the end of his sentence on DATE . The premises of the facility were overcrowded and afforded CARDINAL CARDINAL.CARDINAL sq . m of space per detainee .


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

contrato de empreitada ) pursuant to which the latter undertook , in DATE , to build the applicant a house .

On CARDINAL DATE the applicant instituted civil proceedings in ORG against company ORG for the alleged failure in the execution of the contract .

DATE and DATE company ORG and the applicant submitted submissions in reply ( constestação ) and new submissions ( réplica ) . Company ORG argued , in particular , that the court had already decided in a case on the same subject ( caso julgado ) .

On DATE ORG gave directions considering that it had already decided on the same subject in a previous case ( despacho saneador ) . The applicant appealed against this decision before ORG , which on DATE revoked the ORG decision and ordered the examination of the case . On an unknown date company ORG appealed against this decision to the Conference of ORG , which on DATE upheld its decision of CARDINAL DATE .

On DATE ORG gave new directions setting out the questions which needed to be assessed . The applicant challenged the decision and both parties submitted evidence .

On DATE held the first hearing . Until DATE ORG listed QUANTITY hearings , in which several witnesses were heard .

On DATE ORG adopted a judgment ruling against the applicant .

On DATE the applicant challenged the outcome of the proceedings before ORG . On DATE the case - file was sent to ORG . Meanwhile , first - instance judge had to analyse a question of nullity which had been raised by the parties in the grounds of appeal submitted .

On DATE ORG upheld the first - instance judgment .

On DATE the applicant appealed to ORG , which dismissed the appeal for being lodged out of time . The applicant challenged this decision , which was upheld on DATE by a decision of the Vice - President of ORG .