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

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

The applicant was born in DATE and lives in ORG .

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 .

On DATE the applicant ’s mother - in - law , PERSON , submitted a petition to LOC prosecutor GPE , and informed him that on DATE her son PERSON , ‐ the applicant ’s husband ‐ had been travelling home on his motorbike when he was stopped and apprehended by soldiers who had set up a temporary base in a public building near GPE . She described the motorbike as “ NORP - made , red and with a basket ” . She told the prosecutor that nothing had been heard from her son since that date and that the complaint she had made to the authorities DATE after the disappearance had not elucidated any response . She gave the prosecutor the names of CARDINAL villagers who , she claimed , had witnessed her son being apprehended , and asked the prosecutor to make enquiries in order to find her son .

DATE the GPE prosecutor PERSON questioned PERSON in relation to her above - mentioned petition . PERSON confirmed the contents of her petition detailed above and added that the family had been informed about the incident DATE afterwards by villagers who had witnessed the incident . Her elder son , PERSON , had then gone to the military base near GPE village where he was informed that his younger brother had been transferred to the gendarmerie station in GPE . When PERSON had gone to the gendarmerie station in GPE , he was told that his brother ’s questioning was continuing and that it would probably continue for DATE .

When PERSON was not released , PERSON had gone to the LOC prosecutor ’s office and informed the prosecutor of the detention of his younger brother . When the prosecutor had contacted the military authorities he was told that PERSON had never been detained by the military . The family ’s subsequent attempts to find PERSON had not yielded any results .

A detailed investigation was carried out by LOC prosecutor GPE into the allegations made by PERSON . In the course of that investigation the prosecutor questioned the CARDINAL villagers named by PERSON as eyewitnesses and identified and questioned as suspects CARDINAL soldiers who had been based at the temporary military station at the time of the disappearance . The prosecutor also questioned family members who informed the prosecutor about the steps they had taken to find PERSON . Both the police and the military authorities contacted by the prosecutor denied that PERSON had been detained as alleged .

The QUANTITY eyewitnesses named by PERSON told the prosecutor that on DATE they had been travelling to their village when they were stopped by soldiers outside the temporary military base near GPE . While the soldiers were checking their identity documents , PERSON had arrived at the scene and had also been stopped by the soldiers . After their identity papers had been checked they had been allowed to leave but PERSON had been detained . They had then informed PERSON family about what had happened .

The security forces personnel questioned by the prosecutor as suspects confirmed that at the time of the events a disused public building outside GPE had been used as a temporary military base . The soldiers denied , however , that they had detained the applicant ’s husband .

The gendarmerie headquarters contacted by the prosecutor stated in a letter of CARDINAL DATE that they had no information in their possession to show that PERSON had had any links with the ORG . The police headquarters , on the other hand , informed the prosecutor that they had statements indicating that PERSON had been working as a courier for the ORG prior to his disappearance .

At the end of his investigation , the LOC prosecutor PERSON concluded in his decision of DATE that PERSON had been unlawfully detained by the military in the temporary military base near GPE . The prosecutor did not attach any weight to the denials of the military personnel who had been on duty at the time of PERSON detention and considered that the military personnel ’s denials were outweighed by the consistent eyewitness accounts of civilian villagers . Nevertheless , as the end of the prescription period for the offence of false imprisonment had been reached , the prosecutor concluded that he could not indict the military personnel responsible for the unlawful detention of PERSON . The prosecutor also considered that there was insufficient evidence to prove that PERSON had been killed while in the hands of the soldiers .

The applicant lodged an objection against the prosecutor ’s decision with ORG and submitted that nothing had been heard from her husband after his unlawful detention . She argued that similar unlawful detentions had peaked in that area in DATE and that the relatives of those who had disappeared had been too frightened to complain to the authorities on account of their fears of the military . She invited ORG to take into account the possibility that her husband , who had been suspected of having links with the ORG , would in all likelihood be subjected to “ torture ” by the soldiers . Torture was a criminal offence to which the statute of limitations was not applicable ; thus , the decision of the prosecutor to close the investigation on account of the expiry of the statutory time - limit had been wrong .

The objection lodged by the applicant was rejected by ORG on DATE .

On DATE a number of soldiers saw PERSON elder brother PERSON digging in an area near GPE . PERSON told the soldiers that he had had a dream and that , according to his dream , his brother PERSON was buried in that place .

The same day PERSON also informed the LOC prosecutor PERSON , who went to the area and ordered that the site be dug up . During the digging a total of CARDINAL bones , fabrics , a small axe and the remains of a red motorbike were found . The bones and the motorbike parts , together with soil samples , were taken away by gendarme soldiers for forensic examinations .

DATE the applicant also talked to prosecutor PERSON and told him about the disappearance of her husband PERSON . She asked the prosecutor to establish whether the bones found during the excavation belonged to her husband , who had disappeared while travelling on his red motorbike .

PERSON brother PERSON told prosecutor PERSON that he had no doubts whatsoever that the items discovered during the excavation belonged to his brother . He said that he recognised the motorbike and the axe which had been given to PERSON by the family . PERSON also informed the prosecutor about the eyewitnesses who claimed to have seen his brother in the hands of the soldiers .

Gendarmerie forensic experts who examined the metal parts found in the area stated in their report that they belonged to a motorbike . The experts were not able , however , to identify the type or make of the motorbike due to corrosion , but considered that the motorbike resembled an “ Izh ” motorbike ( a manufacturer at Izhevsk in GPE ) . The chassis numbers and letters of the motorbike – in LANGUAGE – are reproduced in the report of the experts .

The bones were examined at ORG . It was established that the bones were animal bones .

According to a report drawn up on DATE by the forensic laboratory of the police , the soil on the motorbike parts matched the soil samples taken from the place . However , the soil on the bones did not match the soil samples taken from the place . It was advised in this report that it had to be born in mind when evaluating the report ’s conclusions that the forensic examination had not been carried out in order to establish whether the soil samples taken from the bones and the soil samples obtained from the place of digging had come from the same place . Rather , the aim of the forensic examinations had been to establish whether the CARDINAL soil samples had any physical and chemical similarities .

According to a report prepared by the police on DATE , no prior applications had been made to them about the disappearance of PERSON . According to a similar report prepared by the military , no one had made any enquiries about any disappearance of a person with the name of PERSON and there had been no temporary or permanent military station at Yoğurtçu village at the time of the events .

On DATE TIME prosecutor PERSON decided to close his investigation on the basis that the bones were not human bones . He added that the model and make of the motorbike had not been established and that the basket attached to the motorbike had not been recovered . The prosecutor further stated in his decision that there was no evidence to show that PERSON had been arrested by the soldiers or to show that there had been a temporary military base near GPE at the time of the incident .

The applicant lodged an objection with ORG against the prosecutor ’s decision and argued that the investigation had been incomplete . She submitted , in particular , that prosecutor PERSON had failed to take account of the conclusion reached by his predecessor in DATE , namely that her husband had been unlawfully detained by soldiers . She also submitted that the bones had been dug up in the presence of a prosecutor and secured by that prosecutor . Thus , having regard to the finding that the soil on the bones did not match the soil samples , the prosecutor should have considered the possibility that the bones might have been switched .

In her petition the applicant also referred to the ORG , and requested that the investigation be continued to find those responsible for the disappearance of her husband . She argued that carrying out an effective investigation was necessary in order to avoid “ the ORG being put on trial before ORG for its failure to protect the right to life of her husband ” .

The objection was rejected by ORG on DATE . No mention was made in the decision about the points raised by the applicant in her objection . ORG decision was communicated to the applicant on DATE .


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

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

ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

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

In DATE the applicant bought a desktop computer from a private company F. He subsequently brought proceedings claiming that he had been misled about the technical characteristics of the hardware , that he had not been provided with a user manual , that the seller had failed to comply with consumer protection legislation and that the warranty was partly void .

On DATE ORG ( “ the ORG ” ) issued a summary judgment in the applicant ’s favour annulled the sale and ordered payment of damages . However , on DATE the judgment was set aside on appeal by ORG ( “ the Regional Court ” ) and the case was sent back for reconsideration .

NORP In order to secure enforcement of the future judgment the applicant requested ORG to apply interim measures , namely the attachment of the hardware in the defendant ’s possession and an order for the defendant to deposit the amount of the damages claimed or , alternatively , the attachment of property in the same amount .

On DATE ORG granted the applicant ’s request in part and ordered the attachment of the hardware in the defendant ’s possession . The other requested measures were refused in view of the defendant ’s solvency and active participation in the proceedings . The applicant did not appeal .

On DATE ORG gave a new judgment allowing the applicant ’s claims in part concerning the warranty on the hardware and dismissing all the other claims . On DATE ORG set aside the judgment in part and required that the remaining claims be reconsidered .

In a summary judgment of DATE ORG awarded the applicant MONEY ( RUB ) ( MONEY ( ORG ) ) in damages and ordered the defendant to replace the original desktop computer .

On DATE ORG at the request of the applicant initiated enforcement proceedings against the debtor company F.

In view of the apparent lack of progress in the enforcement proceedings , in DATE the applicant lodged a new action seeking annulment of the sale and recovery of damages . On DATE ORG in a summary judgment granted his claims , annulled the sale and awarded the applicant an additional RUB CARDINAL ( EUR CARDINAL ) in damages .

On DATE and DATE the competent authorities refused to open criminal proceedings against the debtor company for its failure to comply with the judgment . The decision of DATE was upheld at last instance by ORG on DATE .

Discontent with the lack of progress in the enforcement of the judgment of DATE , the applicant requested that the bailiff ’s actions and inaction be recognised as unlawful . On DATE ORG found that the enforcement proceedings were indeed tainted by unjustified delays and inaction and the bailiff ’s inaction was ruled unlawful .

NORP In DATE the applicant also brought proceedings against the regional ORG seeking damages for the allegedly unlawful refusal of ORG judge to apply the requested interim measures to secure enforcement of the judgment ( see paragraphs DATE above ) .

On DATE ORG dismissed the complaint without consideration on the ground that it lacked legal basis . The dismissal was upheld on appeal by ORG on DATE .

NORP In DATE the applicant attempted to initiate civil proceedings against the ORG of GPE and the regional ORG for the failure to enforce the judgment in his favour . On DATE the proceedings were adjourned by ORG owing to the applicant ’s failure to formulate his claims against all of the defendants and to provide their postal addresses . The applicant was given time to correct these defects . On DATE ORG upheld the adjournment on appeal . It appears that the applicant has never corrected the defects indicated by the domestic courts and that the proceedings have remained adjourned .

The basic principles regarding compensation for damage caused by public authorities and their officials are enshrined in the LAW of GPE of DATE . In LAW provides that everyone is entitled to compensation for damage caused by unlawful actions ( or inaction ) of ORG bodies and their officials . Article CARDINAL secures the abovementioned right with a constitutional obligation of the ORG to ensure access to a court and compensation for damage in cases where public authorities and their officials infringe rights protected by law .

The Code of Civil Procedure of GPE , which entered into force on DATE , establishes the framework for challenging the decisions or actions ( or inaction ) of any ORG or local self - government authority or official .

LAW , entitled “ Proceedings to challenge decisions and actions ( or inaction ) of ORG bodies , local selfgovernment authorities , officials or ORG or municipal civil servants ” provides in the relevant part as follows :

“ CARDINAL . A citizen or legal person may challenge before a court any decision , action ( or inaction ) of a ORG or local self - government authority , official , or a ORG or municipal civil servant if they consider that their rights and freedoms have been violated . A citizen or legal person may lodge an application directly with a court or with a superior , in order of subordination , ORG or local self - government authority or official , or ORG or municipal civil servant .

The court may suspend enforcement of the challenged decision until entry into force of the judicial decision . ”

“ The decisions , actions ( or inaction ) of ORG or local self - government authorities , officials , or ORG or municipal civil servants , which may be challenged in civil proceedings are collective and independent decisions , actions ( or inaction ) resulting in :

- a violation of a citizen ’s rights and freedoms ,

- a restriction on the exercise by a citizen of his rights and freedoms ,

- an obligation or legal responsibility of a citizen that is devoid of lawful basis . ”

“ CARDINAL . Where the court establishes that an application is well - founded , it shall adopt a decision ordering the relevant ORG or local self - government authority or official , or ORG or municipal civil servants to provide full redress for the violation of the rights and freedoms or the restriction on the exercise by a citizen of his rights and freedoms . ...

NORP The court shall dismiss an application if it establishes that the challenged decision or action was adopted or performed within the scope of powers of a ORG or local self - government authority or official , or ORG or municipal civil servant , and that the rights and freedoms of a citizen were not violated . ”

Article CARDINAL of the Code of Civil Procedure governs the handling of lawsuits submitted in disregard of the procedural requirements and provides as follows :

“ CARDINAL . A judge who establishes that a lawsuit has been submitted to the court without following the requirements [ as regards its form , necessary elements and supporting documents ] shall adjourn the proceedings , inform the plaintiff about the adjournment , and set a reasonable time - limit for correction of the defects .

NORP The lawsuit shall be considered lodged on the date of its initial submission if the plaintiff complies with the instructions of the judge . Otherwise the lawsuit shall be considered as not submitted and returned to the plaintiff with all of the attached documents .

An appeal shall lie against a ruling to adjourn proceedings on a lawsuit . ”

LAW governs all matters related to interim measures within the civil proceedings . In the relevant parts it provides as follows :

“ Upon an application of a party to the proceedings a judge or a court may order an interim measures . An interim measure may be ordered at any stage of the proceedings , if a failure to order it may impede or prevent enforcement of a court ’s decision . ”

“ CARDINAL . An appeal shall lie against any ruling ordering an interim measure ... ”

Title II of LAW of GPE of DATE , which entered into force on DATE , governs liability for damage . Article ORG , establishing basic principles of civil liability for damage , provides in the relevant parts as follows :

“ CARDINAL . Damage caused to an individual or his property , as well as damage to the property of a legal entity , shall be subject to full compensation by the person who caused the damage .

The law may prescribe that compensation for damage be due from a person other than the person who caused the damage ...

A person who causes damage shall not be liable for compensation in respect thereof if he proves that it was not caused by any fault on his part . However , the law may prescribe that compensation for damage be due even where there was no fault on the part of the person who caused it .

Damage caused by lawful actions shall be subject to compensation where prescribed by law ... ”

Article CARDINAL of the Civil Code dealing with damage caused by a ORG or local self - government authority or official provides as follows :

“ Damage caused to an individual or a legal entity as a result of unlawful actions ( or inaction ) of ORG authorities , local self - government authorities or their officials , including damage resulting from an act of a ORG authority or local self - government authority that is incompatible with a law or another legal act , shall be subject to compensation . The damage shall be compensated for at the expense of the ORG of GPE , the treasury of a subject of GPE , or the treasury of a municipal authority , respectively . ”

NORP In addition to the general provisions on compensation for unlawful actions ( or inaction ) of ORG authorities and their officials Title II of LAW stipulates specific rules for damage caused by law - enforcement authorities and the courts :

“ CARDINAL . Damage caused to an individual as a result of unlawful conviction , unlawful criminal prosecution , unlawful detention or release on his recognizance , unlawful administrative arrest , and damage caused to a legal entity as a result of unlawful administrative suspension of activities , shall be fully compensated for by the ORG of GPE , and where prescribed by law by the treasury of a subject of GPE or the treasury of a municipality , in full regardless of any guilt on the part of any official of an inquiry or preliminary investigation authority , prosecutor ’s office or court .

Damage caused to an individual or a legal entity by unlawful actions of inquiry and preliminary investigation authorities and prosecutor ’s offices , where they do not entail the consequences mentioned in paragraph CARDINAL of this Article , shall be subject to compensation under LAW of the present Code . Damage caused in the administration of justice shall be subject to compensation if the guilt of a judge has been established by a final and binding judgment of conviction . ”

ORG in its judgments and decisions has provided a constitutional interpretation of Article CARDINAL of LAW in conjunction with Articles DATE and CARDINAL of LAW ( see Judgments No . CARDINAL of DATE , No . CARDINAL of DATE , and Decisions No . CARDINAL of DATE , No . CARDINAL-O - O of CARDINAL DATE ) , including the following principles :

In its decision no . CARDINAL-O of CARDINAL DATE the ORG emphasised with reference to the case - law of the ORG that enforcement of a judgment was an integral part of the judicial protection of rights and that the review of bailiffs’ actions ( or inaction ) must be performed by their superiors and by the courts .

Following the constitutional review of the specific rules stated in paragraph CARDINAL of Article CARDINAL of the Civil Code on damage caused by law - enforcement authorities and the courts , ORG found them constitutional in so far as they provided for special conditions as to ORG liability for damage caused in the administration of justice ( Ruling no . CARDINAL of DATE ) . However the Ruling clarified that the term “ administration of justice ” applied only to judicial decisions on the merits of the case , while procedural rulings fell outside its scope . State liability for damage caused , unlawful procedural acts or failure to act could arise even in the absence of a final criminal conviction of a judge , if the fault of the judge had been established in civil proceedings .

Both ORG and ORG of GPE ( which until unification of the courts in DATE was the highest court for commercial disputes ) have issued case - law reviews and guidelines clarifying various procedural and substantive aspects of the right to receive compensation under LAW as established in the practice of the NORP courts . These decisions of ORG of GPE remain in force unless superseded by newly adopted decisions of the unified ORG of GPE .

In decree no . DATE of the Plenum of ORG it was stressed that a defendant to a lawsuit under LAW should always be a public entity , but not a structural unit thereof or an official in a personal capacity . The compensation must accordingly be recovered only from the public entity .

In joint Decree no . CARDINAL / CARDINAL of DATE of the ORG of ORG and the ORG of ORG , the courts highlighted that while the post - Burdov CARDINAL legislative scheme only guaranteed compensation for non - enforcement of judgments against the ORG , nothing precluded lawsuits from being brought in other disputes concerning the non - enforcement of judgments under ORG CARDINAL and CARDINAL of LAW .

Information Letter no . CARDINAL of the Presidium of ORG of DATE in particular mentioned the following points :


Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Pauliine Koskelo

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

On DATE ORG ( PERSON ) issued the Decree on agrarian reform ( dekret o reformie rolnej ) . The decree provided that properties of an agricultural nature , owned or co - owned by natural or legal persons , with an area exceeding CARDINAL hectares ( ha ) in total or CARDINAL ha of agricultural land , would be allocated for agrarian reform ( section CARDINAL(CARDINAL)(e ) ) . It further prescribed that such properties would be transferred to ORG immediately and without any compensation .

On DATE ORG issued the Decree on the nationalisation of certain forests ( dekret o przejęciu niektórych lasów na własność PERSON ) . The decree provided that forests and forest land , owned or co - owned by natural and legal persons , with an area exceeding QUANTITY ha , would be transferred to ORG .

Mr PERSON , the applicants’ father and grandfather respectively , was the owner of the Dobra Ordynackie Kozłówka estate , which included a large area of forest land ( CARDINAL ha ) . The property was taken over by ORG for the purposes of agrarian reform pursuant to section CARDINAL ) of the Decree on agrarian reform . On DATE an entry was made in the land register .

The applicants are the legal heirs of PERSON .

On DATE the applicants brought a claim against ORG in ORG . They each sought MONEY ( ORG approximately CARDINAL ) in partial compensation for the nationalisation of the forest land which had been owned by their legal predecessor . They relied on section CARDINAL of the Act of DATE on the preservation of the national character of the country ’s strategic natural resources ( ustawa o zachowaniu narodowego charakteru strategicznych zasobów naturalnych kraju – “ the DATE LAW ) .

In the alternative , if the court ruled that they could not seek indemnity under section CARDINAL of the DATE Act on account of a lack of separate provisions determining the rules of indemnification , the applicants sought compensation for legislative omission ( zaniechanie legislacyjne ) . In respect of the latter , they relied on LAW and subsequently LAW . In their subsequent pleadings , the applicants noted that they were seeking compensation equal to PERCENT of the amount due and wished to determine the principle of compensation for the nationalised forest .

On an unspecified date the applicants’ case was transferred to ORG .

On DATE the court dismissed the applicants’ claim . It found it unnecessary to take evidence with a view to determining the size and value of the various plots making up the estate , since the claim was in principle unfounded . The court acknowledged that the applicants’ predecessor in title had owned the ORG Ordynackie Kozłówka estate , that at least part of it was forest , and that it had been nationalised pursuant to the Decree on agrarian reform .

With regard to the compensation claim for legislative omission , the court held that the applicants could not rely on LAW since that provision had only entered into force on DATE , while their claim concerned the DATE Act . However , ORG was liable for damage caused by legislative omission which had occurred after the entry into force of the LAW on DATE . LAW had entered into force after DATE and , accordingly , the applicants’ claim for legislative omission could be based on LAW ( in the version applicable prior to DATE ) in conjunction with LAW .

NORP The court held that section CARDINAL of the CARDINAL Act could not constitute the basis of a compensation claim for legislative omission . It held that the provision was of a declaratory nature , in which the legislature had announced that persons who had been wronged in connection with the taking away of their property should have received some indemnity . That declaration had to be fulfilled in a separate statute specifying the amount of indemnity , the manner of calculation and the possible limitations . According to the court , the principal purpose of LAW was to preserve the national character of the country ’s strategic natural resources , including those which in the past had been taken by the ORG to the detriment of the owners . The DATE Act signalled the need to regulate the question of indemnities to former owners , but did not regulate it itself and left it to the legislature to decide subsequently . Furthermore , section DATE CARDINAL Act was of a very general nature . It did not specify the manner of calculating an indemnity , the amount , the possible limitations or the conditions to be fulfilled by claimants . In this connection the court held that it could not replace the legislature and encroach on its competences .

The court also noted that there were various groups of persons whose properties had been nationalised without just or any compensation during the period of the Polish GPE . The legislature had decided to establish the rules and procedure for the payment of compensation to some of those groups , while in respect of others it had enacted no such regulations . An example of the first was the LAW of DATE on the realisation of the right to indemnity for property left beyond the present borders of the NORP State ( “ the DATE LAW ) , which provided that LOC claimants were entitled to compensation set at PERCENT of the value of their original LOC property . The legislature had entitled that group of persons to compensation and specified the procedure applicable to such claims .

The court noted , however , that the legislature had not to date enacted any rules on indemnifying persons who had been wronged on account of the Decree on agrarian reform or the Decree on the nationalisation of certain forests . It emphasised that , in accordance with section CARDINAL(CARDINAL ) of the Decree on agrarian reform , ownership of all the property referred to in subsections ( b ) , ( c ) , ( d ) and ( e ) had been immediately transferred to ORG without any compensation . The Decree on the nationalisation of certain forests did not provide for any compensation either . Consequently , there remained many groups of persons who had been wronged by the taking away of their property and the question of compensating them remained unresolved .

The court held that section CARDINAL of the CARDINAL Act contained the legislature ’s declaration that it intended to regulate the question of indemnities , inter alia , to persons who had lost their forests . In the DATE Act the legislature had only determined that there would be no restitution in natura of , inter alia , lost forests . However , the question of indemnities remained to be determined by the legislature . The court held that section DATE CARDINAL Act could not be interpreted as a basis of a direct claim for indemnity . The provision did not specify the amount of indemnity or the applicable conditions , and in that respect the court could not substitute the legislature , who had the exclusive competence to create legal norms .

The applicants appealed . They argued , inter alia , that the firstinstance court had erroneously interpreted section CARDINAL of the DATE Act by holding that the provision could not constitute the basis of a claim for indemnity . They further maintained that the court had wrongly interpreted the same provision in conjunction with LAW and LAW by holding that the legislature had not perpetrated a legislative omission consisting of a failure to enact provisions regulating the payment of indemnities . The applicants invoked the ORG ’s judgment in the case of PERSON v. GPE ( [ ORG ] , no . PERSON , ECHR CARDINALV ) .

On DATE ORG dismissed the ORG appeal , concurring with ORG interpretation of section CARDINAL of the CARDINAL Act .

ORG noted that a claim ( roszczenie ) was a right , based in law , to demand that a particular person act in a specific manner . Section CARDINAL of the CARDINAL Act did not contain sufficient normative content to consider that it established a claim in that sense . Nor did it specify the subjective and objective scope of the rights of former owners , the specific nature of the claim , the exact meaning of the term “ loss of property ” or whether indemnity should be equal to whole or part of the value of the nationalised property . Accordingly , it could not be considered that section DATE CARDINAL Act constituted a norm imposing an absolute obligation on ORG to act in a specific manner , namely to pay a specific amount of money to an individually designated subject . ORG considered that determination of the rules concerning the ORG ’s liability required further statutory specification of the conditions for an effective claim than that which had been stipulated in section DATE CARDINAL Act .

ORG concurred with ORG that section DATE CARDINAL Act was a declaratory provision ( przepis o charakterze blankietowym ) , reflecting the legislature ’s general assumptions . The provision did not specify the amount of indemnity or the eligibility conditions , and a court could not substitute the legislature in that respect . In ORG view , a certain confirmation of the ORG ’s liability towards former owners who had lost ownership of the properties referred to in section CARDINAL of the CARDINAL Act , without specifying the essential elements of that liability , was devoid of any protective significance ( znaczenie gwarancyjne ) and , as such , did not have legal effect .

There was no doubt for ORG that , prior to the entry into force of section DATE CARDINAL Act , persons who had lost property pursuant to the Decree on agrarian reform or on the basis of section CARDINAL § CARDINAL of the Decree on the nationalisation of certain forests , had had no right to compensation in respect of the loss of their property because the abovementioned decrees did not establish that right . Nor did they establish the right to be compensated for the loss of property in any other form . Furthermore , the decrees at issue had not been declared unconstitutional . Thus , the taking of property by the ORG on the basis of the impugned decrees was not unlawful and could not be considered a tort .

The Court of Appeal further concurred with ORG that the principal purpose of the DATE Act was to prevent privatisation of the strategic resources of the country ( section CARDINAL ) and not establish claims for the loss of property .

The Court of Appeal further held that there had been no legislative omission in the applicants’ case . In its view , section CARDINAL of the DATE Act did not contain even a promise of conferring a right to claim for indemnity on specific categories of subjects , including those who had lost forest land as a result of the operation of the Decree on agrarian reform . The provision was an expression of political premise , and its purpose was not to confer rights on specifically designated persons in a clear and unconditional manner . A simple declaration that a certain regulation would be enacted on an unspecified future date was not sufficient to conclude that the obligation to legislate had been breached . ORG noted that the legislature ’s obligation to enact a statute had to be expressed in another statute in an unequivocal manner , excluding the possibility of this being the result of judicial interpretation . Having regard to the purpose of the DATE Act , ORG noted that the legislature had had no intention of creating an obligation to enact a statute on the indemnification of persons who had lost property as a result of the nationalisation decrees . The legislature simply provided for such a possibility in a statute to be enacted on an unspecified future date .

The applicants lodged a cassation appeal . Firstly , they argued that ORG had wrongly interpreted section DATE CARDINAL Act in conjunction with section CARDINAL ) of LAW . They submitted that the CARDINAL provisions constituted the basis of ORG obligation to compensate for the loss of forest land . Secondly , they argued that the court had erroneously interpreted section CARDINAL of the CARDINAL Act in conjunction with LAW and LAW by holding that the legislature had not perpetrated a legislative omission .

On DATE ORG dismissed the ORG cassation appeal ( case no . I CSK CARDINAL/CARDINAL ) .

The relevant part of ORG judgment reads :

“ With regard to the first of the appellants’ arguments , it should be pointed out that in legal science a claim ( roszczenie ) is regarded as CARDINAL of the normative forms of a subjective right ( prawo podmiotowe ) , consisting of the possibility of demanding a specific act from a specific person . A claim is characterised , on the one hand , by the existence of an entitlement specified with regard to its content and subject and , on the other hand , by the directly assigned to it obligation of another subject . In other words , the equivalent of an entitlement is an obligation of a specific person to act in a specific manner , i.e. to undertake a specific action or to refrain from it ...

The appellants ... are aiming to demonstrate that the regulation contained in section DATE CARDINAL Act create for them , as successors of the former owner of forests ... , claims for indemnity . LAW recognises inter alia , ORG forests as the country ’s strategic national resources , and LAW stipulates that the national resources listed in CARDINAL and owned by ORG are not subject to change of ownership , with the exception of provisions contained in particular statutes . Section DATE CARDINAL Act stipulates that claims of natural persons , former owners or their successors , in respect of loss of ownership of the resources listed in section CARDINAL , shall be satisfied in the form of indemnities ( rekompensaty ) paid from the ORG budget on the basis of separate provisions .

As has been already noted by ORG ... it is apparent from the abovementioned CARDINAL LAW and the reasons for the relevant bill that the legislature ’s general premise was not to effect ( niedokonywanie ) changes of ownership in respect of the country ’s strategic national resources . When interpreting the purpose of LAW , it should be remembered that the relevant bill was being prepared in parallel with LAW DATE , which was [ successfully ] vetoed by the President of the Republic ....

Having regard to the commonly accepted understanding of a claim in legal science , it is necessary to agree with ORG assessment that the regulation contained in section CARDINAL of the CARDINAL Act does not entitle former owners or their successors to claim for indemnity in respect of loss of ownership of the resources listed in section CARDINAL of the Act ... [ The appellants ] correctly point out that CARDINAL legal provision may contain one , CARDINAL or more norms , but it may also contain only part of a norm . Such a specific relationship between a legal provision and a legal norm does not , however , result in it being possible to derive from section CARDINAL of the CARDINAL Act a claim for indemnity , by supplementing this legal provision , by analogy , with the regulation contained in the LAW on the realisation of the right to indemnity for property left beyond the present borders of the NORP State , which concerns an entirely different matter . The appellants have omitted to note that the legislature , while referring in section CARDINAL of the CARDINAL Act to the satisfying of claims of former owners or their successors , has expressly stipulated that this would be done on the basis of separate provisions , i.e. provisions which were yet to be enacted . In addition , neither the content of the former owners or their ORG entitlement nor the content of ORG ( the debtor ’s ) obligation was sufficiently specified in section CARDINAL of the LAW . ORG has already adopted an analogous position in this regard in its judgment of DATE ( case no . I CSK CARDINAL/CARDINAL ) , stating that section CARDINAL of the CARDINAL Act does not allow for such a specification of the norm of substantive law contained in it , which would determine in detail the content of a specific addressee ’s entitlements and obligations . Such a position was also approved by ORG in the course of examining cassation appeals in cases concerning claims for compensation under section DATE CARDINAL Act initiated in administrative proceedings ( judgments of CARDINAL DATE , case no . I OSK CARDINAL/CARDINAL ; CARDINAL DATE , case no . I OSK CARDINAL/CARDINAL ; CARDINAL DATE , case no . I ORG CARDINAL/CARDINAL and CARDINAL DATE , case no . I OSK DATE ) .

The arguments drawn by the appellants from ORG rulings ... do not lead to opposite conclusions ... In the rulings referred to , ORG emphasised that the conferring of a [ right to ] claim by the legislature does not have to be formulated expressis verbis in a legal provision ; however , it is necessary to indicate [ there ] the essential elements indispensable for constructing a claim . Therefore , a claim could be derived from a given norm if it appears from its content that a specific obligation imposed on one party corresponds to an entitlement of another party to demand its implementation .

Such essential elements , allowing a claim for indemnity to be constructed , are missing from the content of section CARDINAL of the CARDINAL Act .

With regard to the second of the appellants’ arguments , it should be noted that in accordance with the resolution of ORG , sitting as a bench of CARDINAL judges , of CARDINAL DATE [ case no . ] III CZP CARDINAL/CARDINAL ... , ORG is liable for damage caused by non - enactment of a normative act , when a duty to enact it arose after the entry into force of LAW . LAW in the version [ applicable ] prior to DATE ... constitutes the basis of civil liability for legislative omissions , which began after the LAW ’s entry into force [ CARDINAL DATE ] , but before DATE , i.e. before the entry into force of the statute amending [ LAW ] of DATE . Article CARDINAL of LAW in the current version and LAW are not applicable to a situation where the state of legislative omission arose before DATE , even if the damage caused by this omission was sustained after that date . ... A detailed regulation governing the ORG ’s liability for its law - making activities was only enacted in DATE of LAW , but these rules could already be considered to be relevant from the date of the LAW ’s entry into force , since from that moment the ORG ’s liability for legislative omission had been recognised .

In its resolution of DATE ( case no . III CZP CARDINAL/CARDINAL ) , ORG explained that ORG civil liability for legislative omission would only arise when a normative act , whose enactment was obligatory under the law , i.e. the LAW or a statute , was not enacted . The non - enactment of a statute where another statute provides for its enactment could also be regarded as [ legislative ] omission , since the legislature can undertake in CARDINAL statute to enact another statute . However , in order to assume that the legislature made such an undertaking , and not only provided for the possibility of regulating a certain matter in another statute , the obligation to enact that statute has to be expressed in an explicit manner , excluding the possibility of it only being deduced by means of judicial interpretation ; [ such a course of action ] would have constituted an encroachment by the judiciary on the competences reserved to the legislature .

In the above - mentioned judgment of DATE ( case no . I CSK CARDINAL/CARDINAL ) , ORG did not agree with that suggestion , emphasising that the interpretation of legal norms by the courts was one of the basic functions bestowed on the judiciary . Accordingly , it accepted that a court could assess , applying the necessary means of interpretation , whether a statute contained an explicit obligation to enact another statute . A contrary proposition ... would have amounted to approval of the legislature ’s method of conferring virtual entitlements on citizens , even with a premise accepted in advance that it would be impossible to realise those entitlements , while approving , at the same time , the lack of legal basis for civil liability related to damage caused by such acts of the legislature .

There is no doubt that a court of law , in carrying out its adjudicatory functions , interprets provisions of the law ; however , the issue is that this can not be a law - making interpretation . In the process of interpretation a court has to respect the principle , expressed in LAW , of separation of and balance between the legislative , executive and judicial powers on which the system of government of GPE is based . According to the adjudicating bench of ORG , it is the only manner ... of reading the assertion in the reasoning for the [ ORG ] resolution of DATE ( case no . III CZP CARDINAL/CARDINAL ) that the obligation to enact a statute has to be expressed in an explicit manner , excluding the possibility of it being deduced by means of judicial interpretation . ORG in the present composition shares the view that for liability for legislative omission to arise , it is first necessary to establish that an obligation ... to enact a normative act was formulated in an explicit and specific manner . The contrary perspective on this issue could lead to an inadmissible interference by the judiciary with the competences reserved to the legislature . ORG took the same view , inter alia , in the judgments of CARDINAL DATE , case no . III CSK CARDINAL/CARDINAL ... , DATE , case no . I CSK CARDINAL/CARDINAL ... and QUANTITY DATE , case no . II CSK DATE ... , and [ this view ] was also approved by legal science .

There is also agreement in legal science that a provision of the law containing an obligation to enact a normative act has to specify the essential content of such an act in such a way to allow the existence and scope of damage caused by an omission to be determined . In other words , it should be possible to establish the content of a nonenacted normative act without encroaching on the other State organs’ legislative powers . A court of law can not make suppositions as to the possible content of a nonenacted normative act , being guided by its own axiological assumptions . ...

Section CARDINAL of the CARDINAL Act , prescribing that claims of former owners or their successors shall be satisfied in the form of indemnities ( rekompensata ) paid from the ORG budget on the basis of separate provisions , does not stipulate to a sufficient degree the content of the said “ separate provisions ” . The legislature did not indicate the subjective scope of the normative act , which were to prescribe the rules of indemnification , the conditions to be fulfilled by persons eligible to receive an indemnity , or the manner of determining the amount of those benefits . These shortcomings can not be DATE as asserted by the appellants DATE complemented by the application of LAW , because it is not in the court ’s sphere of activity to independently indicate the object and scope of what should have been found in a non - enacted normative act .

Therefore , it has to be accepted that section CARDINAL of the CARDINAL Act is a declaratory provision ( przepis blankietowy ) , which contains only the legislature ’s declaration concerning the future regulation of indemnities in a statute to be enacted later , without being bound by the date of its enactment . Accordingly , non - enactment of a normative act , referred to in this provision , does not warrant ORG liability for legislative omission ... ”

The applicants lodged a constitutional complaint . On CARDINAL DATE ORG refused to consider it as it had been lodged out of time . On DATE the court dismissed an interlocutory appeal by the applicants .

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 :

“ CARDINAL . 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 CARDINAL “ the DATE Amendment ” ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability in tort under LAW of the Civil Code – including the addition of a new LAW and provision being made for the ORG ’s tortious liability for failure to enact legislation , a concept known as “ legislative omission ” ( zaniechanie legislacyjne ) .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . 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 damages . ”

However , under the transitional provisions of LAW , LAW 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 .

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 . ”

On DATE ORG issued the Decree on agrarian reform . The decree provided that properties of an agricultural nature , owned or co - owned by natural or legal persons , with an area exceeding CARDINAL ha in total or CARDINAL ha of agricultural land , would be allocated for agrarian reform ( section CARDINAL(CARDINAL)(e ) ) .

With regard to properties in the NORP , GPE or NORP regions the area was set at CARDINAL ha , regardless of the size of the agricultural property .

The decree further prescribed that properties would be transferred to ORG immediately and without any compensation .

On DATE ORG issued the Decree on the nationalisation of certain forests . The decree provided that forests and forest land , owned or co - owned by natural and legal persons , with an area exceeding CARDINAL ha , would be transferred to ORG .

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 ( projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości TIME fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach ) .

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 the political parties and factions . It was enacted by ORG on DATE . The relevant PERSON was subsequently transmitted for the President of GPE . However , exercising his right of veto , the President refused to sign it .

Ultimately , the PERSON ( first house of ORG ) 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 .

The DATE Act originated from a civic bill submitted to ORG on DATE by a group of CARDINAL citizens . The PERSON passed it on DATE . It entered into force on DATE and comprises CARDINAL sections .

NORP The relevant part of LAW provides :

“ The country ’s strategic natural resources include :

( CARDINAL ) State forests ,

Section CARDINAL provides :

“ The natural resources listed in LAW which constitute ORG property are not subject to change of ownership , with the exception of provisions contained in particular statutes . ”

Section CARDINAL of the DATE Act provides :

“ Claims of natural persons , former owners or their successors , in respect of loss of ownership of the resources listed in LAW , shall be satisfied in the form of indemnities ( rekompensaty ) paid from the ORG budget on the basis of separate provisions . ”

The DATE Act entered into force on DATE . Under section CARDINAL , the right to indemnity ( prawo do rekompensaty ) for LOC property can be realised in CARDINAL of CARDINAL ways , to be chosen by the claimant : either by offsetting the indexed value of the original property against the sale price of ORG property acquired by means of a competitive bidding procedure , or by receiving a pecuniary benefit ( świadczenie pieniężne ) , that is to say a cash payment secured by ORG ( ORG ) . The amount of compensation available to LOC claimants is subject to a statutory ceiling of PERCENT of the current value of the original property .

A more detailed description of the relevant provisions of LAW appears in the PERSON ( friendly settlement ) judgment ( see PERSON v. GPE ( friendly settlement ) [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINALIX ) .

In this judgment , ORG held as follows :

“ ... section CARDINAL of the CARDINAL Act , in the current formulation , does not constitute an independent legal basis for the payment of a benefit [ indemnity ] , since it refers to separate provisions , which were to prescribe which funds of the ORG budget would be used to satisfy , in the form of indemnities , claims of natural persons indicated in this provision . In section DATE CARDINAL Act , the legislature did not give statutory authorisation to ORG to adopt a regulation ... , and thus it should be accepted that the term “ separate provisions ” in section CARDINAL refers to the enactment of a statute . This statute should indicate the body ... responsible for indemnification , and specify the ORG budget ’s funds to be used for the payment of indemnities and other essential elements ( the amount [ of indemnity ] , the limitations and the procedure ) . The use in section DATE CARDINAL Act of the word “ paid ” with regard to indemnities presupposes that the benefit would be in a pecuniary form ...

However , the formulation of section CARDINAL of the CARDINAL Act does not allow for such a specification of the norm of substantive law contained in it , which would determine in detail the content of a specific addressee ’s entitlements and obligations ... This provision is thus of a declaratory nature ( przepis blankietowy ) ... ”

With regard to a claim for compensation in respect of legislative omission , ORG held :

“ ... Section CARDINAL of the CARDINAL Act does not contain expressis verbis an obligation to enact separate provisions , but such a conclusion does not exclude the possibility of a court ’s interpreting the legal norm contained in this provision to the effect that the interpreted norm contained the legislature ’s obligation to enact separate provisions .

It has been correctly accepted in case - law that non - enactment of a statute where another statute provides for its enactment could also be regarded as legislative omission leading to ORG civil liability ( ORG resolution of DATE , case no . III CZP CARDINAL/CARDINAL ) . It was stated in the reasoning of that resolution that the obligation to enact another statute had to be expressed in an explicit manner , excluding the possibility of it only being deduced by means of judicial interpretation , because this would constitute an encroachment by the judiciary on the competences reserved to the legislature . The court adjudicating in the instant case does not share that view .... The interpretation of legal norms by the courts is CARDINAL of the basic functions bestowed on the judiciary , and it does not constitute an encroachment by [ it ] on the competences reserved to the legislature ... ”

ORG noted that the textual interpretation of section CARDINAL of the DATE Act resulted in the finding that this provision did not expressly contain the legislature ’s obligation to enact separate provisions . It held , in this regard , as follows :

“ Sole reliance on the textual interpretation of section CARDINAL of the DATE Act leads to the conclusion that this provision does not unequivocally oblige the legislature to enact separate provisions . However , if the result of the textual interpretation is obviously irrational or unsustainable , it is not possible to stop [ the analysis ] at such a result . In a situation like the CARDINAL at hand , it is necessary to have recourse to other methods of interpretation . It would be difficult to accept the impugned result of the textual interpretation ( i.e. a lack of obligation to enact separate provisions ) , since this would mean that the legislature bestows on specific natural persons a subjective right consisting of an unequivocal conferment of claims , which would be satisfied in the form of paid indemnities , and at the same time prevents the entitled claimants from asserting those claims as a result of its failure to enact separate provisions , a legislative omission which would not result in any civil law sanction , not least in the form of civil liability of ORG ...

In this situation it is necessary to have recourse to a functional and teleological interpretation . Since the legislature ’s purpose was to satisfy , in the form of indemnities , claims of specific natural persons in respect [ of the events ] indicated in section CARDINAL of the CARDINAL Act , while the procedure for the payment of indemnities was to be regulated in separate provisions , then it should be held that the enactment of these separate provisions was the legislature ’s obligation stipulated in section CARDINAL of the CARDINAL Act ...

A contrary proposition would lead to the acceptance of an absurd conclusion that the legislature can confer rights in a statute , with a premise accepted in advance that those rights can not be realised by the addressees as a result of the legislature ’s inaction , and this [ inaction ] would not then lead to any sanctions , and in particular [ to ] civil liability . ”

In its resolution of DATE , ORG , sitting as a bench of CARDINAL judges , dealt with the following legal questions submitted to it by ORG on DATE :

“ CARDINAL . Does section CARDINAL of the CARDINAL Act constitute the basis of the subjective right conferred on natural persons , who are referred to in this provision ?

NORP and , if so , does the situation of awarding satisfaction , in the form of indemnification , in respect of claims of specified natural persons in respect [ of the events ] indicated in section CARDINAL of the CARDINAL Act , while at the same time leaving the questions of procedure for the payment of indemnities and the determination of their amount to be regulated in separate provisions , give rise to the legislature ’s obligation to enact separate provisions , and , in consequence – does their non - enactment amount to legislative omission ? ”

ORG adopted the following resolution :

“ Section CARDINAL of the CARDINAL Act does not constitute the basis of the subjective right for natural persons specified in this provision or for the obligation to enact separate provisions , referred to in this provision . ”

The resolution ’s reasoning , in so far as relevant , reads :

“ The analysis of section CARDINAL of the DATE Act ... warrants the conclusion that it does not comprise all necessary elements for the creation of a subjective right in the form of a claim . This provision indicates precisely the subject of an obligation , i.e. ORG , but does not prescribe the addressees of an entitlement . Prima facie , it seems that section CARDINAL expressly prescribes that a possible [ right to ] claim for indemnity was conferred on the persons referred to in this provision , i.e. natural persons , former owners , or their successors , of resources comprising lost ORG forests . However , the legislature did not specify more precisely the category of entitled persons , in particular , by stipulating whether it concerns all owners of the forests and their successors , which , regardless of the moment in time , of the legal basis and other circumstances ( e.g. the size of the property , the nationality of the owners , etc . ) were transferred to the ORG . It was not specified whether it concerns an unlawful or lawful taking of these resources , and then , in respect of the latter category of persons , this provision would be of a quasi - restitution nature .

The concept of a claim ... concerns a situation in which a norm , arising from binding legal provisions , confers on an entitled subject the right to demand a specific act from the obliged subject , [ which is ] secured by the possibility of it being enforced . Consequently , it should be accepted that the concept of a claim of natural persons , former owners , or their successors , in respect of loss of the resources listed in section CARDINAL [ of the CARDINAL Act ] could only encompass only those , who , on the date of the statute ’s entry into force , had the right to claim in respect of the loss of those resources . This means that , in fact , this provision merely changes the content of previous claims of former owners or their successors , in that it replaces the previous compensation claims against ORG by a claim for indemnity . However , such a purpose of the regulation should be excluded , since LAW was enacted at a time when [ ORG ] was working in parallel on LAW . The beneficiaries of the indemnity referred to in section CARDINAL of the CARDINAL Act were to be persons , who in the period preceding the enactment of LAW , asserted their restitution demands vis - à - vis ORG in respect of the ORG ’s taking away – including by lawful means – of forests , [ demands ] which could not have been satisfied in the framework of the existing provisions . The term “ claim ” employed in section DATE CARDINAL Act does not then fully correspond to the accepted meaning of that term , because it comprises in fact , without further specification , a category of natural persons asserting vis - à - vis the legislature their demands in respect of loss of ownership of the resources prescribed in section CARDINAL [ of LAW ] , and not persons who were conferred specific claims by the legal system subsisting previously .

Moreover , section CARDINAL of the DATE Act simply prescribes that a claim comprises a benefit in a pecuniary form – an indemnity DATE which was to be paid from the ORG budget ; however , the scope of this benefit has not been further specified . LAW does not contain a definition of the term “ indemnity ” ( rekompensata ) , it only determines that it is a pecuniary benefit . LAW does not define this term either . Its analysis in the previous regulations concerning indemnities – included in ... LAW DATE Act on the realisation of the right to indemnity for property left beyond the present borders of the NORP State – leads to the conclusion that the legislature , in conferring a subjective right of this kind , does so in a comprehensive manner , specifying precisely not only the category of entitled persons , but also the amount of indemnity due . With regard to this kind of benefits , the legislature had further prescribed a particular procedure for determining eligibility for indemnities , fixed their amount , [ as well as set ] time - limits for bringing claims , payment of indemnities , the statute of limitations and the extinguishment of such claims , and established a specific indemnity fund . An indemnity represented a fraction , determined arbitrarily by the legislature , of the full compensation . Section CARDINAL of the CARDINAL Act does not comprise any of these elements .

[ Legislative omission : ]

The essence of the legal issue comes down , however , to ascertaining whether , despite these gaps in the construction of a claim , it could be considered that section DATE establishes a subjective right , in assuming that this provision also establishes the legislature ’s obligation to enact separate provisions complementing the missing elements of the subjective right in issue . In such cases , a failure by the legislature to execute this obligation could give rise to ORG liability for legislative omission , since it was accepted in ORG case - law that enactment of incomplete or fragmentary [ legislative ] solutions could give rise to a finding of legislative omission .... Where [ the legislature ] creates a subjective right with deficient characteristics , civil liability for legislative omission becomes a form of protecting this right , which can not be fully or at all realised .

The ORG ’s civil liability for legislative omission DATE both on the basis of the currently applicable LAW and , on the basis of LAW of the [ Civil Code ] in conjunction with LAW ... applicable to the case in issue – can arise where there is a specific obligation to enact a normative act under [ the legal ] provisions . In such a case , it is also required that a legal provision imposing an obligation to enact an appropriate regulation indicated a certain minimal content of the subjective right , and in particular , persons entitled to bring a claim and persons obliged to execute a deed constituting the content of a claim , as well as its scope . The textual and logical interpretation of LAW does not lead to the conclusion that this provision comprised an obligation to enact specific provisions concerning indemnities since it employed a formulation that claims of natural persons referred to in it were to be “ satisfied in the form of indemnities paid from the ORG budget on the basis of separate provisions ” . This provision does not contain either a statutory authorisation to enact appropriate executive regulations prescribing the scope of that regulation .

ORG case - law admitted the possibility of the ORG ’s civil liability for legislative omission consisting of a failure to enact a statute where another statute provided for an obligation to this effect ( resolution of DATE , case no . III CZP CARDINAL/CARDINAL ) ...

[ With regard to the obligation to enact a specific statute ] ... It can not be accepted that such a situation arose with regard to an obligation to enact separate provisions , which are referred to in section CARDINAL of the CARDINAL Act . As ORG held in its judgments of DATE ( I ORG CARDINAL/CARDINAL ... and I PERSON CARDINAL/CARDINAL and I CSK CARDINAL/CARDINAL ) , an interpretation in this context can not be a law - making interpretation , since it has to respect the principle , expressed in LAW , of separation of and balance between the legislative , executive and judicial powers on which the system of government of GPE is based ... In cases concerning compensation for legislative omission the courts can not ascertain the content of non - enacted provisions ; in order to accept the existence of a legislative obligation whose nonexecution would result in the ORG ’s civil liability , it is necessary that the provision imposing an obligation to enact another legal regulation indicated its minimal content with such a degree to allow the scope of the ORG ’s obligation to compensate to be determined . Such a situation does not arise in respect of section CARDINAL of the CARDINAL Act , this provision stipulating that only separate provisions enacted at a future date were to determine the content of the subjective right in the form of a claim for indemnity .

The possibility of ascertaining the existence of an obligation to enact a normative act was also accepted in ORG case - law , where such an obligation has not been formulated expressis verbis in the [ legal ] provisions , and where the rights of individuals – conferred in a self - evident and unconditional manner – could not be realised as a result of a failure to enact an appropriate normative act ... However , even in such cases provisions conferring those rights have to prescribe the essential characteristics of the latter . The acceptance of the ORG ’s hypothetical legislative omission DATE concerning subjective rights with an undefined content or an unclearly determined category of entitled persons DATE would result in the ORG ’s civil liability in respect of legislative omission also being illusory . The courts could not decide who was entitled to bring a claim for compensation or about the amount without entering into the law - making role . It should be remembered in this context that the rules concerning civil liability , including for legislative omission , serve to protect the existing subjective rights , and are not the basis for creating these rights or specifying their scope . From this standpoint too , section DATE CARDINAL Act does not prescribe in a sufficient manner the content of a subjective right in the form of a claim , in particular with regard to the category of entitled persons and the amount of compensation .

The foregoing considerations warrant the conclusion that section CARDINAL of the CARDINAL Act does not contain a legal norm giving rise to specific rights or obligations comprising the content of a subjective right in the form of a claim , nor does it contain a norm imposing an obligation to enact provisions , referred to in it , concerning indemnities . Therefore , it should be concurred that this provision is of a declaratory nature , it solely contains a proclamation of the legislature ’s intention as to the means of satisfying in the future , on the basis of separate provisions , claims asserted against ORG by owners ( natural persons ) of forests or their successors in respect of loss of ownership ... It should also be remembered that the provisions of LAW originated from a civic bill ( projekt obywatelski ) , which was debated [ in ORG ] in parallel with LAW , and the latter were to prescribe the right to indemnity characterised as a subjective right in the form of a claim . LAW alone , without LAW Bill – as evidenced by the analysis of the legislative process DATE was not to give rise to any financial obligations [ for the ORG ] or to determine solutions concerning indemnities . The purpose of section CARDINAL of the CARDINAL LAW was only to express the legislature ’s intention that the future realisation of restitution demands of former owners or their successors , accomplished on the basis of separate provisions , took the form of indemnities , and so that it was carried out while preserving the resources prescribed in section CARDINAL of the CARDINAL LAW , without effecting changes of ownership , as stated in LAW CARDINAL of the same Act ... The object of the regulation in the DATE Act also points out to a limited meaning of the provision in issue ... ”

In this judgment , ORG held as follows :

“ The content of section CARDINAL of the CARDINAL Act does not comprise formulations which could be regarded as grounds for the claimant ’s claim for indemnity in respect of forest land taken over by ORG . ... The textual , logical and systemic interpretation of section DATE CARDINAL Act leads to the conclusion that this provision does not confer a subjective right on the relevant persons , from which it would result an entitlement to demand from ORG a specific act and the possibility of enforcing it . There is no regulation in LAW on the right to indemnity . The formulations employed in section DATE CARDINAL Act are of a declaratory nature , since the claims referred to in it should be satisfied in the future , as is evidenced by the phrase “ shall be satisfied ” , and the form of satisfying them ( those claims ) are indemnities “ to be paid ” from the ORG budget , and the basis for their payment will be in separate provisions . Therefore , the term “ claims ” employed in this provision , can not be equated with a “ claim ” as understood in the civil law . It should be pointed out that the purpose of LAW , as evidenced by the reasons for the bill , was to guarantee stability of ownership with regard to the country ’s strategic natural resources . In parallel with this LAW , a restitution bill was being prepared , the latter being prompted by the restitution demands of persons who lost their property in the process of nationalisation , including the property referred to in section CARDINAL of the CARDINAL LAW ; [ it ] was to prescribe the right to indemnity . However , LAW has not been enacted . It can not be concluded that section CARDINAL of the DATE Act concerns solely the claims of those persons who asserted them prior to the enactment of the CARDINAL Act ; LAW does not properly indicate the category of eligible persons . There are no grounds to equate indemnity with compensation ...

There is reference in section CARDINAL of the CARDINAL Act to future indemnification , but the indemnity is not specified with regard to an eligible subject , its nature or the amount . The plaintiff ’s claim concerns compensation for damage caused by legislative omission , and thus the failure to have a claim due to her satisfied . Therefore , the lack of necessary elements of a claim in section CARDINAL of the DATE Act can not be supplemented with reference to the amount of a benefit ( indemnity ) , if a [ right to ] claim has not been conferred , regardless of the possibility that a court would determine the scope of indemnity on the basis of the rules laid down in LAW and regardless of the defendant ’s obligation to compensate ...

The content of section CARDINAL of the CARDINAL Act , analysed in accordance with the rules of textual , logical and systemic interpretation leads to the conclusion that it does not contain an obligation to enact specific provisions concerning indemnities , the eligible subjects and the entity responsible for indemnification . It ( section CARDINAL of the CARDINAL Act ) does not indicate the subjective scope of the future normative act , which was to prescribe the rules of indemnification , the criteria to be fulfilled by the eligible persons and the means of determining the amount of benefits . It is not feasible that these deficiencies would be fulfilled in by a court alone ... It should be emphasised that the rules of civil liability , including for legislative omission , were a means of protecting the existing subjective rights , and not the source of their creation . ”

With regard to the plaintiff ’s argument based on LAW No . CARDINAL , ORG referred to the meaning of “ possessions ” in this provision , as established , inter alia , in PERSON v. GPE judgment . In this connection it held as follows :

“ The interpretation of the law should respect the protection of an individual ’s interests ensured by the domestic law as well as by the Convention and the ORG law . The appellant is not right [ in saying ] that the interpretation of section DATE CARDINAL Act and Article CARDINAL of LAW in conjunction with LAW does not respect the protection of property as provided by these regulations and the relevant case - law . Her allegation in this regard comes from an unfounded assertion that the plaintiff was conferred [ a right to ] claim by LAW , from which also results a further obligation to enact a legal regulation ... A direct reliance on LAW No . CARDINAL and its interpretation in the case - law of ORG was not justified , since the plaintiff did not demonstrate that a [ right to ] claim asserted in the proceedings had been conferred on her . ”

In its final decision on the admissibility of a constitutional complaint , ORG , sitting as a full bench , held in so far as relevant :

“ The situation in issue is that the legislature had the intention of comprehensively regulating ( in LAW ) the question of indemnities for property lost under the previous regime , but this has never been done . LAW was enacted , but after the President exercised his right to veto it , the PERSON did not pass the Restitution Bill again by the majority required under LAW . It should then be stated that it was not the President ’s action , but the lack of required majority in the PERSON for LAW to be subsequently passed , which determined that the PERSON did not enter into force .

However , section CARDINAL of the DATE Act remained in the legal system , and this provision , according to the claimant , constitutes the basis of a subjective right , conferred by the legislature , to satisfy the claims of former owners of land referred to in LAW or their legal successors in the form of pecuniary indemnity ...

ORG ... relied on the textual , systemic and teleological interpretation of section CARDINAL of the CARDINAL Act . [ It ] shares the view expressed in the ORG case - law that a regulation of claims for indemnity for forest land and other natural resources taken over by ORG does not result from the impugned provision ( cf . the resolution of ORG of DATE , case no . III CZP CARDINAL/CARDINAL ; ORG judgments of DATE , case no . I CSK CARDINAL/CARDINAL , DATE , case no . I CSK CARDINAL/CARDINAL , DATE , case no . I ORG CARDINAL/CARDINAL and ORG judgments of DATE , case no . I OSK CARDINAL/CARDINAL , CARDINAL DATE , case no . I OSK CARDINAL/CARDINAL , DATE , case no . I ORG CARDINAL/CARDINAL and DATE , case no . I OSK CARDINAL/CARDINAL ) ...

... it should also be taken into account that this provision ( section CARDINAL ) is an element of the LAW , whose purpose is to guarantee stability of ownership with regard to the country ’s strategic natural resources ( section CARDINAL ) ... . The purpose of the CARDINAL LAW was not to comprehensively regulate the question of compensation for lost natural resources , including for forest land . It follows that the interpretation of the impugned provision ( section CARDINAL ) should be made in the context of the purpose of the CARDINAL LAW and not in isolation from this purpose .

In ORG assessment , the teleological interpretation of section DATE Act leads to the conclusion that the formulation employed in it , [ that ] ‘ claims ... shall be satisfied in the form of indemnities [ to be ] paid from the ORG budget on the basis of separate provisions’ , should be read in the light of section CARDINAL of the CARDINAL Act as a prohibition on non - pecuniary forms of compensation ( including restitution in natura ) . Such an interpretation was also confirmed in ORG case - law ....

The textual , logical and systemic interpretation thus leads to the conclusion that the impugned provision ( section CARDINAL ) does not regulate the question of claims for indemnity in respect of forest land and other natural resources taken over by ORG ...

The key issue requiring explanation is , as challenged by the complainant , the lack of normative content in section CARDINAL of the DATE Act which would create an obligation for the legislature to enact separate provisions enabling the realisation of the right to indemnity ... ORG interpretation of section CARDINAL of the DATE Act leads to the conclusion that the legislature did not regulate in it the entitlement to satisfy the claims of former owners . The legislature did not regulate in the challenged Act in a comprehensive , or even partial , manner the issue of indemnities for natural resources , including forest land , taken over by the ORG , in a way compatible with constitutional requirements . The construction of this provision leads to the acceptance that the legislature left the issue of indemnities to be regulated but has never done so ...

In a situation where section CARDINAL of the CARDINAL Act does not constitute the basis of the right to indemnity , there is no issue of statutory omission ( pominięcie legislacyjne ) consisting of a failure to include in this provision an obligation to enact separate provisions enabling the realisation of this entitlement . This conclusion simply confirms that the legislature deliberately omitted to regulate the question of indemnities for natural resources ... taken over by the ORG .

The Constitutional Court finds that a judgment in line with the claimant ’s assertion would oblige the legislature to enact a restitution statute . This , however , is inadmissible , in the light of ORG case - law and LAW itself ... ORG , as a negative legislator , can not “ supplement ” the law by regulations sought by a complainant . ... The question of restitution claims thus requires the enactment of a comprehensive statutory regulation ...

In its decision [ of DATE ] in the case no . P DATE , ORG ... held that ‘ there is no formal basis for restitution in LAW . LAW , in its ethical aspect , rejects the axiology and practices of ORG , as is evidenced by a passage from its preamble ( “ Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our GPE ) , but approves the evolutionary continuity of the post - war legal order and has no retroactive effect’ ...

... ORG , sitting as a full bench , upheld the approach adopted in a resolution DATE and held that ‘ also under LAW of DATE the scope and forms of restitution are “ a controversial issue and [ the ] solution depends to a large extent on political decisions ” . Decisions of this kind definitely go beyond ORG competences . This approach is compatible with the views expressed in earlier judgments , given under LAW , in which ORG disagreed with treating the constitutional provisions as a remedy for the legislature ’s inaction , which would be aimed at the redressing of injustices resulting from ORG , It further held that the redressing of these injustices was possible only by the legislature ’s action ( cf . judgment of DATE , case no . ORG CARDINAL/CARDINAL ) . ”

In a number of cases , the interested persons applied to the Minister of ORG to be indemnified in respect of the loss of forests , relying on section CARDINAL of the CARDINAL Act . The Minister refused to consider their applications and those decisions were subsequently challenged before the administrative courts .

ORG held , in a number of judgments , that claims under section CARDINAL of the DATE Act could not be pursued in administrative proceedings . It held , inter alia , that no subjective right , capable of being pursued in administrative proceedings , could be derived from section DATE CARDINAL Act . Furthermore , the court held that section CARDINAL of the CARDINAL Act was a declaratory provision and did not establish a legal relationship ( cf . judgments of CARDINAL DATE , case no . I OSK CARDINAL/CARDINAL ; of CARDINAL DATE , case no . I OSK CARDINAL/CARDINAL ; of CARDINAL DATE , case no . I ORG CARDINAL/CARDINAL ; and of CARDINAL DATE , case no . I OSK DATE ) .


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

The applicant was born in DATE and is serving a sentence of life imprisonment .

NORP In DATE violent robberies were committed at CARDINAL scrap metal collection points in ORG . CARDINAL employee was shot dead . In the course of the investigation , the police organised an ambush , which led to the applicant and his acquaintance , PERSON , being arrested . As established by the domestic courts , before his arrest the applicant had pointed a gun at a police officer , who had knocked it out of his hands using a martial arts technique . The gun had been loaded and had had its safety catch released .

On an unspecified date the applicant had free legal counsel appointed for him for the pre - trial investigation and the proceedings before the firstinstance court .

On DATE ORG , sitting as a court of first instance , found the applicant guilty of the illegal handling of arms , robbery with violence , intentional murder for profit and an attempt on the life of a law - enforcement officer . It relied , inter alia , on the statements of several eyewitnesses who had recognised the applicant . Having regard to the fact that the applicant had previously been convicted of the intentional infliction of fatal injuries and that he had committed the crimes at issue while on probation following release in DATE , the court sentenced him to life imprisonment .

The applicant , who was no longer legally represented , appealed in cassation . He complained , in particular , about the absence of free legal assistance at that stage of the proceedings . The applicant contended that the first - instance court had erred in its assessment of the facts of the case and their legal classification .

On DATE , following a hearing with the participation of Mr NORP ( the other defendant ) and his lawyer , as well as the prosecutor , but without the applicant or any representative from his side , ORG upheld the judgment of DATE .

On DATE the applicant , who was not aware of the above ruling , requested that ORG ensure his presence at its hearing .

On DATE a copy of ORG ruling of CARDINAL DATE was sent to the applicant .