Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

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

On DATE , at TIME , a bank robbery was committed in GPE . The bank robber was disguised , wearing an improvised mask made of a DATE cap and a DATE scarf , a skirt over his trousers , an overcoat , and rubber gloves on his hands . Using a handgun the bank robber forced the bank employees to put money in a crate , after which he fled the scene .

Police Station no . CARDINAL of the PERSON - bilogorska ORG in GPE ( ORG uprava DATE , PERSON postaja Garešnica – “ the police ” ) was immediately informed of the incident . Police officers were sent to secure the scene and at TIME an in situ inspection was carried out . No evidence was found inside the bank , but there were a number of footprints in the snow outside the bank .

On DATE a number of persons , including the applicant , were brought in for questioning by the police . The applicant was released from the police station after denying any involvement in the crime .

In the meantime , in the basement of a residential building in GPE the police found clothes which they suspected had been worn and then discarded by the bank robber .

On DATE , at TIME , the police carried out an on - site inspection of the basement , where they found and seized a stack of money , an improvised mask made from DATE cap , a green DATE scarf , a crate with CARDINAL NORP kunas inside it , a pair of green rubber gloves , a blue overcoat and a purple skirt . A police dog was used in the inspection of the scene .

On DATE the applicant was again taken to the police station for questioning . In the course of the applicant ’s stay at the police station the police dog was shown the applicant and , according to the police report , the dog ’s behaviour associated the applicant with the objects found in the basement .

At TIME the applicant was arrested on suspicion of having committed the bank robbery .

The applicant was asked to take off his trousers and t - shirt . He complied with the request and signed a seizure record . The seizure record only indicates that the trousers and t - shirt were taken from the applicant . The police also took samples from the applicant ’s hair , body hair and nails . There is no specific record in this regard .

According to the applicant , he was then removed from the room while the police officers packed up the clothes and the samples taken from him . According to the Government , the clothes and the samples were packed by a forensic technician in the presence of a police officer and the applicant , and the police officer simultaneously drafted the seizure record in respect of the applicant ’s clothes , which the applicant then signed .

NORP In course of the further investigation the police interviewed a number of persons and searched the applicant ’s flat . No objects connected with the bank robbery were found .

On DATE employees of the bank identified items found and seized in the basement of the residential building ( see paragraphs CARDINAL and CARDINAL ) as the clothes worn by the bank robber .

On DATE the police sent the items from the basement , together with the applicant ’s clothes and samples of his hair and nails , to ORG in GPE ( ORG unutarnjih poslova , PERSON – “ the FAC ” ) and commissioned a forensic report . In their request the police indicated that the samples had been taken and packed using gloves and that a new pair of gloves had been used each time a different item had been packed .

A preliminary forensic report was drawn up by ORG on DATE . ORG found strands of the applicant ’s hair on the blue overcoat and DATE cap worn by the bank robber . It also found fibres from the skirt worn by the bank robber on the applicant ’s t - shirt and fibres from DATE scarf on his trousers .

On DATE the applicant was brought before the investigating judge of ORG ( PERSON u GPE ) for questioning , but he decided to remain silent because his defence lawyer was not present . On DATE the investigating judge ordered the applicant ’s pre - trial detention .

The investigating judge questioned the applicant again on DATE in the presence of his defence lawyer , but the applicant remained silent .

On DATE the police forwarded to the investigating judge CARDINAL forensic reports drawn up on CARDINAL and DATE by ORG .

According to the ORG report of DATE strands of the applicant ’s hair had been found on the DATE cap , the scarf and the overcoat worn by the bank robber ; the report of CARDINAL DATE indicated that fibres from the applicant ’s t - shirt and trousers had been found on the crate , the skirt and the overcoat used by the bank robber . The latter report also indicated that fibres from the overcoat , the skirt and the scarf had been found on the applicant ’s trousers and t - shirt .

On DATE the GPE State Attorney ’s Office ( GPE državno odvjetništvo u GPE ) asked the investigating judge at ORG to open an investigation in respect of the applicant on suspicion that he had committed the bank robbery .

The investigating judge opened the investigation on DATE . During the investigation , the investigating judge questioned bank employees GPE , GPE . and M.Kom . , and a witness , GPE The bank employees GPE and GPE . testified that they had seen the applicant before and that his physical appearance resembled that of the bank robber .

On DATE the applicant gave his oral evidence . He denied that he had committed the bank robbery and complained that he had been ill - treated at the police station and pressured to confess to the charges . The police had also shown him a blue DATE cap and a green scarf and asked him to confirm that they belonged to him . As to the manner in which the police had taken and packed the samples of his hair , nails and clothes , the applicant stated :

“ When I was taken to the police station for the second time for questioning , the police took my trousers and shirt and [ samples of ] my hair for forensic analysis . I pulled out a couple of locks of hair myself . I was not present while they packed my clothes and hair for analysis .

They also cut my nails and pulled some hair from my arm and sent them for analysis .

... The items that were taken from me , namely the clothes and the samples of hair , were taken in a separate room , not the room were I was held waiting for questioning . ... Every sample was taken in another room and the sample which I gave in each room remained in that room . I do n’t know where my clothes and the samples of my hair were then taken . ”

On DATE the GPE State Attorney ’s Office indicted the applicant in ORG on charges of armed robbery .

At a hearing on DATE the applicant denied all the charges against him . He reiterated his allegations of ill - treatment by the police and complained that the manner in which the samples had been taken and packed for the forensic analysis had allowed for the possibility of tampering with the evidence . The applicant also explained that the samples of his hair had been first taken in CARDINAL room by police officer ORG and another police officer whose name he did not know , and then again in another room by police officers GPE , GPE and M.

At the same hearing the bank employees GPE , GPE . and M.Kom . gave their oral evidence .

GPE testified that she knew the applicant and that the applicant ’s voice was not similar to that of the bank robber . M.Kol . testified that she had seen the skin on a small part of the bank robber ’s face and that it had been skin of a younger person ; in any event younger and different from the applicant ’s facial skin , although the part of the face which she had seen through the mask could have been the applicant ’s . She also stated that she had seen some of the bank robber ’s hair , which had been similar to the applicant ’s . The witness M.Kom . testified that the applicant ’s physical appearance was similar to the bank robber ’s .

The applicant contended before the trial court that the records of the on - site inspection and the taking of the samples were not complete in that not all the actions had been documented . He therefore requested that the police be ordered to provide the names of all the forensic technicians involved and that they be summoned as witnesses . The applicant also requested that the forensic experts who had drafted the forensic reports be called to give evidence about the possibility of contamination between CARDINAL seized item and another . Furthermore , he asked the trial court to order a reconstruction of the events so that an identification could be made in the setting in which the event had taken place , and that his alibi be verified . Finally , the applicant asked that the rubber gloves used by the bank robber be inspected at the hearing .

The trial court refused the applicant ’s requests regarding the taking of evidence as irrelevant , and concluded the hearing .

On DATE ORG found the applicant guilty of the bank robbery and sentenced him to DATE imprisonment , imposing a confiscation order on him in the amounts of CARDINAL NORP kunas , MONEY , MONEY , MONEY , MONEY , MONEY , and CARDINAL NORP kronas . The relevant part of the judgment reads :

“ The accused stated that ... on the critical occasion he had ... arrived at LOC GPE at TIME , and there he had heard that a bank in GPE had been robbed that same night . Soon afterwards the police had arrived and asked him to come with them . He had been kept in a police station that whole TIME and had been released at TIME . At TIME DATE he had again been asked to come to the police station , and the police officers had asked him to confess that he had robbed the bank . He had been ill - treated , they had beaten him , but he could not confess to something he had not done . His clothes had then been taken from him , as well as samples of his hair , but he had not been present when the samples had been taken from the clothes and when they had been packed and sent for analysis . He argued that the fibres [ from his clothes ] had been transferred to the other clothes by the items being rubbed against each other ... so the evidence thus obtained had been planted by the police .

The request by the defence to obtain from ORG the names of the officers who carried out the on - site inspection and took the samples , and for them to be heard as witnesses ... was refused because the case file contains written records on the on - site inspection and written reports on all steps carried out at the preliminary stage of these proceedings , so that there is no need to hear the officers who carried out those acts .

The request by the defence for forensic experts PERSON and PERSON to be heard concerning the possibility that there was a transmission of fibres from CARDINAL item to another was also refused because it is well known that such traces can be transmitted through various means such as by rubbing etc . , so it was not necessary to hear expert witnesses on this . The court also took into account the fact that there had been no objection to the forensic reports .

Witnesses GPE , GPE . and PERSON . , the bank employees , gave identical descriptions of the conduct of the disguised person who had entered the bank at the relevant time , shortly before TIME , and [ they gave identical descriptions of ] the clothes he had been wearing . They stated that the person at issue had been disguised , wearing an improvised mask made from a cap . Around his neck he had had a DATE scarf , and he had been wearing a dark women ’s overcoat . Underneath the overcoat he had been wearing a purple skirt and trousers . This person had pointed a gun and started shouting that this was a bank robbery ; he had demanded money and threatened to kill [ the bank employees ] . He had then put a crate on the counter and asked for the money . M.Kol . had given him the money , putting it in the crate , after which the disguised person had left the bank . The said witnesses also testified that the person in question resembled the accused in his physical appearance , but that they had not recognised him as the accused , although the accused was known to them . Moreover , the witness GPE . testified that she had momentarily seen a part of the disguised person ’s face but she thought that that person was younger than the accused .

In view of the evidence given by the witnesses as to what the disguised bank robber had been wearing when he entered the bank , and the ORG report concerning the fibres and strands of hair found on the items and clothes seized from the accused , there is no doubt that the accused is the disguised person who entered the bank at the time of the events , and that he was disguised in the clothes which were found during the on - site investigation in a nearby residential building .

This court can not accept the applicant ’s argument that this evidence was planted by the police , because the relevant laws prescribe in detail the procedure in such situations as regards the taking of samples , packing them and sending them for forensic analysis , and there are written records on all the steps taken , so that any doubt as to whether , intentionally or unintentionally , fabric fibres or hairs were transferred from one set of clothes to another is excluded , and this court considers that there is no reason to question the authenticity of this evidence .

On DATE the applicant lodged an appeal before ORG ( PERSON ) , reiterating his previous arguments regarding the evidence in issue . He contended that although when the samples of his hair and clothes were packed for the analysis he was detained at the police station , the police had not allowed him to be present during the packing of the samples and therefore the relevant evidence could have been planted and otherwise tampered with .

On DATE ORG dismissed the applicant ’s appeal , endorsing the findings of the first - instance court .

On DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) , reiterating his previous arguments about the manner in which the evidence had been gathered by the trial court . In his constitutional complaint the applicant gave his address in PERSON but stated that he was detained in FAC ( GPE u GPE ) .

On DATE the applicant began a DATE prison sentence to which he had been sentenced in another set of criminal proceedings . He was transferred from FAC to FAC ( GPE u GPE ) . He was detained in FAC until DATE , when he was transferred to ORG ( GPE u GPE ) .

On DATE the applicant lodged a request for the extraordinary mitigation of his sentence ( zahtjev za izvanredno ublažavanje kazne ) and a request for extraordinary review of a final judgment ( zahtjev za izvanredno preispitivanje pravomoćne presude ) .

In course of ORG examination of the circumstances surrounding the applicant ’s request for the extraordinary mitigation of his sentence , on DATE ORG informed ORG that the applicant was detained in that prison .

On DATE ORG informed ORG that the applicant had lodged a constitutional complaint and asked for the case file to be forwarded to it .

On DATE ORG declared the applicant ’s request for extraordinary review of a final judgment inadmissible since it had been lodged against the judgment of ORG , which was not possible under the relevant domestic law .

On DATE ORG forwarded the case file to ORG in connection with the applicant ’s request for the extraordinary mitigation of his sentence and recommended that the request be dismissed as ill - founded .

A copy of the entire case file was also sent to ORG on DATE .

On DATE ORG dismissed the applicant ’s constitutional complaint as ill - founded , endorsing the reasoning of the lower courts .

The decision of ORG was sent to the applicant ’s address in GPE on DATE but it was returned to ORG with a note that it had not been possible to serve it since the applicant was not at that address .

On DATE ORG dismissed the applicant ’s request for the extraordinary mitigation of his sentence as ill - founded .

On DATE and CARDINAL September CARDINAL ORG again attempted to serve its decision of CARDINAL DATE on the applicant at his address in GPE . Each time the correspondence was returned , with a note that the applicant was not at that address .

ORG placed the decision on its public notice board on DATE , where it remained until DATE .

On DATE ORG ( PERSON ) instituted enforcement proceedings in respect of an order for the confiscation of the proceeds of crime . However , on DATE the enforcement proceedings were discontinued since it had been impossible to enforce the order on account of the applicant ’s lack of any financial means .

DATE . On DATE the applicant was released from ORG on parole .

Since he had not received any decision from it , on DATE the applicant urged ORG to decide on his constitutional complaint

On DATE the applicant ’s lawyer requested ORG to inform him as to the status of the applicant ’s constitutional complaint .

On DATE ORG served its decision of CARDINAL DATE on the applicant ’s representative .

The relevant provision of LAW ( ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , DATE , ORG DATE , CARDINAL , CARDINAL , DATE ) reads as follows :

“ ( CARDINAL ) Everyone suspected of or charged with a criminal offence shall have the right to :

- a fair hearing before the competent court established by law ;

( CARDINAL ) Evidence unlawfully obtained can not be used in court proceedings . ”

The relevant provision of LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL/CARDINAL ) reads as follows :

“ ( CARDINAL ) The Constitutional Court shall serve a certified copy of its decision on the parties to the proceedings .

( CARDINAL ) When a decision or other act of ORG , for any reason whatsoever , can not be served on the parties , it shall be put on the public notice board of ORG .

( CARDINAL ) It shall be considered that the decision has been served after it has been displayed on ORG public notice board for DATE .

The relevant provision of LAW of GPE ( NORP zakon PERSON , ORG nos . CARDINAL , and CARDINAL/CARDINAL ) provides :

“ ( CARDINAL ) Whoever by the use of force against another person or by the threat of the use of direct force against life or limb , takes another ’s movable property with the intent of keeping it for himself or of acquiring pecuniary gain for another , shall be punished by imprisonment for DATE .

The relevant provisions of LAW ( Zakon o krivičnom postupku , ORG nos . CARDINAL , GPE , GPE , CARDINAL/CARDINAL , and ORG ) provide :

“ ( CARDINAL ) A simultaneous record shall be drafted in respect of every action taken in the course of criminal proceedings , while the action is taking place , or , if that is not feasible , then immediately after .

“ ( CARDINAL ) The record shall state the name of the state authority taking the action , the place of the action , DATE and time when the action begins and ends , the first and last names of all the persons present , and the capacity in which they are participating in the action , as well as an indication of the criminal case in respect of which the action is being taken .

( CARDINAL ) The record has to contain all necessary information on the progress and the subject matter of the action . ... If in the course of the action certain objects or files have been seized , it shall be noted on the record , and the seized items shall be appended to the record or it shall be noted where these items are stored .

( CARDINAL ) In the course of an action such as on - site inspection , the search of a flat or a person , or a line - up ( LAW ) , shall be recorded on the record all information which is important for such action or for the identification of the objects ( description , the measurements of the objects or traces , markings on the objects , etc . ) , and any sketches , drawings , plans , photographs , video recordings , etc . made shall be noted on the record and appended to it . ”

“ ( CARDINAL ) The defendant , persons participating in the action , parties , defence counsel and the victim , if they are present , shall have the right to read the record or to have it read to them . ... “

“ ( CARDINAL ) The court ’s judgment shall be based only on the facts and the evidence taken during the hearing .

The relevant provisions of the amended LAW Zakon o kaznenom postupku , ORG nos . CARDINAL , DATE , CARDINAL/CARDINAL , GPE , GPE , ORG ) provide :

Article CARDINAL

( CARDINAL ) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final ORG decision in connection with the final judgment of ORG by which , in respect of the defendant , a violation of the rights and freedom under LAW has been found .

( CARDINAL ) The request for reopening of the proceedings in connection with the final judgment of ORG can be lodged within a DATE time limit starting from the moment of the finality of the judgment of ORG . ”

Article CARDINAL

( CARDINAL ) If prior to the entry into force of this LAW a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [ in which the decision was adopted ] , ... , the provisions of that legislation shall be applicable [ to the proceedings concerning the remedy ] , unless otherwise provided under LAW .

( CARDINAL ) ORG CARDINAL - CARDINAL of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under LAW ( Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , and DATE ) . ”


The applicant was born in DATE and lives in GPE .

On DATE ORG and Highways expropriated a plot of land belonging to the applicant . A committee of experts assessed the value of the expropriated land and this amount was paid to him when the expropriation took place .

Following the applicant 's request for increased compensation , on CARDINAL DATE ORG Instance awarded him additional compensation plus interest at the statutory rate running from the date of the expropriation .

On DATE ORG quashed the judgment of the first - instance court in respect of the commencement date for the calculation of the interest .

On DATE ORG of First Instance confirmed its previous judgment .

In the meantime , the applicant initiated execution proceedings ( icra takibi ) against ORG via ORG in order to enforce the payment of the compensation awarded by the first instance court .

On DATE the applicant was paid MONEY ( TRL ) .

On DATE the applicant filed an action with ORG and requested compensation for the loss sustained as a result of late payment and inflation , pursuant to LAW .

On DATE ORG Instance dismissed the applicant 's request . On DATE ORG upheld the aforementioned judgment .

According to the letter dated DATE from ORG , ORG of Highways still owed GPE CARDINAL ( ORG CARDINAL ) to the applicant .

Referring to the General Directorate of Highways ' letter dated DATE , the Government claimed that they had paid the total amount due and that the ORG 's office had struck out the case concerning the enforcement proceedings .

NORP However , in a letter dated DATE , the ORG 's office stated that ORG of Highways still owed MONEY to the applicant .


The applicant is a NORP national , born in DATE , and resides in PERSON . He is represented by Mr L.J.L. Heukels , a lawyer practising in GPE , the GPE .

a. Particular circumstances of the present case

On DATE , in the context of an inspection by ORG ( Algemene Inspectie Dienst ) of ORG ( PERSON , PERSON ) , urine samples were taken from cattle on the applicant ’s farm and CARDINAL plastic bottles containing a suspect liquid found on the farm were seized . Subsequent tests of the urine samples indicated that CARDINAL cows had been administered the illegal substance clenbuterol . The CARDINAL plastic bottles seized were found to contain clenbuterol .

ORG The applicant was summoned to appear before the single - judge chamber for economic offences ( economische politierechter ) of ORG ( Arrondissementsrechtbank ) of GPE to answer charges of possession of beef cattle to which clenbuterol had been administered , of illegal possession of clenbuterol and of illegally administering that substance to animals . A hearing was held on DATE in the course of which the applicant gave evidence .

By judgment of DATE , the applicant was convicted of the first CARDINAL charges and sentenced to payment of a fine of ORG . CARDINAL . The CARDINAL cows and the CARDINAL plastic bottles were declared forfeit . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

On DATE , a hearing was held before ORG . According to the formal record ( proces - verbaal ) of this hearing , the applicant ’s lawyer submitted his memorandum of oral pleading ( pleitnota ) to ORG and this document was added to the case - file .

In its judgment of DATE , ORG quashed the judgment of DATE , convicted the applicant of the first CARDINAL charges and sentenced him to payment of a fine of ORG . CARDINAL in respect of the first charge and a fine of ORG . CARDINAL in respect of the second charge . The CARDINAL cows and the CARDINAL plastic bottles were declared forfeit .

Insofar as the applicant complained that the technical manner in which the samples at issue had been taken , packed , sealed , transported and tested was contrary to his rights under LAW in that this provision is aimed at protecting individuals against arbitrary acts by public authorities , ORG held that no concrete doubts had arisen as regards the taking , packing , sealing , transporting and the testing of these samples . ORG added that it did failed to see the connection between LAW and the manner in which these samples were obtained and subsequently handled .

It considered that the mere speculations expressed by the applicant ’s lawyer at the hearing on appeal were insufficient to invoke the unreliability of the taking and subsequent handling of the samples at issue . It accepted the method used by ORG as containing sufficient guarantees .

ORG further rejected arguments raised by the applicant in relation to the findings of ORG of ORG in its judgment in case No . C - CARDINAL/CARDINAL and ORG DATE . It held that these arguments did not alter the fact that the first charge against the applicant constituted a punishable offence .

ORG further rejected a request by the defence to seek a preliminary ruling from ORG of ORG as regards the alleged incompatibility of the NORP rules in respect of growth inducing hormones with ORG CARDINAL/CARDINAL of DATE . It held that no necessity to do so had appeared , as Member States of ORG are at liberty to issue stricter rules than those set by the Directive concerned .

The applicant filed an appeal in cassation with ORG ( PERSON ) and , by letter of DATE , his lawyer submitted the applicant ’s complaints in cassation to ORG . On DATE a hearing was held before ORG in the course of which it considered the applicant ’s complaints in cassation and the advisory opinion of PERSON ( ORG ) to ORG .

By letter of DATE to ORG , the applicant ’s lawyer reacted to the advisory opinion of the Procurator - General .

At some unspecified point in time , the Procurator - General submitted an additional advisory opinion to ORG , to which the applicant’ lawyer reacted in his letter of DATE to ORG . In this letter , the applicant ’s lawyer further requested to be informed of the hearing date in order to submit further oral explanations . He did not substantiate this request .

In its judgment of DATE , ORG stated that it had noted the contents of the applicant ’s letters of DATE and DATE , which had been submitted after the hearing on which the Procurator - General had submitted his advisory opinion and additional advisory opinion respectively .

ORG rejected the applicant ’s complaints in cassation , but following an ex officio examination of the case , quashed the judgment of DATE as regards the qualification of the first charge of which the applicant had been convicted and the pertaining part of the sentence , corrected this qualification itself and determined the sentence for this charge at payment of CARDINAL separate fines of ORG . CARDINAL each , the payment of ORG . CARDINAL of each fine being suspended pending a probation period of DATE .

Referring to Article PERSON of LAW ( Wet op de Rechterlijke Organisatie , " RO " ) , ORG rejected as not prompting a determination of legal issues in the interest of legal unity and legal development without stating any further reasons the applicant ’s complaints that certain arguments raised in connection with the application of ORG Directive CARDINAL/CARDINAL and which were stated in his memorandum of oral pleadings submitted to ORG in the course of the hearing held on DATE were incorrectly reproduced in the formal record of this hearing and that as a result thereof ORG had not dealt with these arguments in its judgment of DATE .

Insofar as the applicant complained that the NORP rules at issue , i.e. the complete prohibition of possession of cattle treated with growth inducing hormones , are incompatible with ORG CARDINAL/CARDINAL of DATE and that ORG should have sought a preliminary ruling on the matter from ORG of ORG , ORG noted that this Directive had in the meantime been replaced by Directive CARDINAL of DATE . It rejected this complaint , holding that , according to the judgment of ORG of ORG of DATE ( No . C - CARDINAL/CARDINAL ) invoked by the applicant , CARDINAL may possess animals to which - in strict compliance with the Directives concerned - substances have been administered for the purpose of therapeutic treatment . However , in the present case it had not been submitted or established before the trial courts that the substance at issue had been administered for that specific purpose .

ORG also rejected the applicant ’s complaints under LAW in respect of the manner in which the inspection was carried out on DATE , including that the officials involved had started to take samples in the applicant ’s absence and without prior notification , holding that in cassation proceedings no complaints can be raised concerning facts and circumstances which have not been established and which have not been invoked before the trial courts .

b. Relevant domestic law and practice

The DATE Ordinance on substances with a sympathomimetic effect ( NORP stoffen met sympathico mimetische werking ) makes it illegal to administer animal medicines with a sympathomimetic effect containing clenbuterol to beef cattle older than DATE .

Pursuant to Article CARDINAL para . CARDINAL of that Ordinance it is illegal to have in stock , sell or purchase beef cattle to which such substances have been administered , and LAW CARDINAL makes it illegal to have in stock , sell or purchase their meat .

Clenbuterol is , moreover , an unregistered animal medicine the use or possession of which is prohibited by LAW ( PERSON ) .

The offences here described are economic offences for the purposes of LAW ( Wet op de Economische Delicten ) , which Act lays down particular rules for the prosecution and punishment of economic offences . Insofar as procedure is concerned , it is a lex specialis in relation to LAW , " ORG " ) , the provisions of the latter remaining applicable in so far as LAW does not provide otherwise .

A person convicted by the highest competent trial court may file an appeal in cassation with ORG ( Article CARDINAL ORG ) . An appeal in cassation is limited to points of law and procedural conformity ( LAW ) .

An appellant in cassation has the right to submit written grounds of appeal within DATE of lodging his appeal on points of law ( Article CARDINAL para . CARDINAL ORG ) , but an appeal in cassation is not automatically declared inadmissible if this has not been done . An appellant in cassation may further submit at the hearing before ORG grounds of appeal not filed at an earlier stage ( LAW ORG ) .

Following the ORG ’s judgment in the case of PERSON v. GPE ( ORG . Court HR , judgment of DATE , Series A no . CARDINAL - B ) , ORG takes note , before determining an appeal in cassation , of the contents of any reaction from the side of the appellant in cassation to the advisory opinion of the Procurator - General or Advocate - General to ORG .


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The first applicant , Mr PERSON , was born in DATE . The second applicant , Mr PERSON , was born in DATE . The third applicant , Mr PERSON , was born in DATE . The fourth applicant , Mr PERSON , was born in DATE . The fifth applicant , PERSON , was born in DATE . The sixth applicant , Mr PERSON , was born in DATE . All applicants are NORP nationals and live in GPE .

The applicants were represented before the ORG by Mr Y. GPE , a lawyer practising in PERSON .

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

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

All of the applicants are heirs of shareholders in a company which owned a chocolates factory in GPE . In DATE the factory was nationalised under a DATE statute providing for the nationalisation of private enterprises . After that the property was used by a ORG enterprise , which in DATE was transformed into a limited liability company fully owned by the ORG .

A statute providing for the restitution of certain nationalised immovable properties by operation of law came into force in DATE . Finding that the property fell within the statute ’s ambit , on DATE the Mayor of GPE decided to strike it out of the register of ORG properties and to surrender its possession to the applicants , with the exception of CARDINAL storeys added to CARDINAL of the preexisting buildings after nationalisation and of CARDINAL other buildings that had also been erected after nationalisation .

In DATE the applicants brought a claim against the ORG in relation to those buildings . It was rejected by ORG in DATE .

On DATE the company surrendered possession of the property to the applicants , with the exception of the CARDINAL additional storeys and the QUANTITY buildings .

On DATE the applicants made an agreement with the company . The company agreed to transfer them possession of the CARDINAL additional storeys and the QUANTITY buildings in return for the applicants not claiming from the company compensation in respect of the period during which it had continued to use the rest of the property even though it had already been restituted to the applicants by operation of law . The agreement also said that from the date of transfer of possession the applicants were to be regarded as owners of the property . The parties stipulated that the amount of that compensation , which they put at CARDINAL old NORP levs , was equal to the value of the CARDINAL additional storeys and the QUANTITY buildings . Lastly , the parties agreed to waive any claims that they might have against each other in connection with those matters . The agreement was to take effect following its approval by ORG .

In DATE the ORG sold MONEY of the shares in the company to a foreign investor . On DATE the company held a general meeting of shareholders . The meeting resolved to approve the DATE agreement and instructed the company ’s director to transfer possession of the CARDINAL additional storeys and the QUANTITY buildings to the applicants and to execute the requisite conveyancing deeds .

NORP However , the transaction was not carried out for DATE , and in DATE the applicants brought a claim against the company , ORG and GPE . Considering that the DATE agreement , as confirmed on DATE , in effect amounted to a preliminary contract to convey the property , they sought a court order that the contract was to become definitive . The company and the municipality did not appear in court to defend the claim , and the ORG argued that it was not a proper defendant to it because it was only a shareholder in the company .

DATE the proceedings in the case were suspended a number of times for various reasons .

In a judgment of DATE that court dismissed their claim . It started by holding that only the company and the Ministry were proper defendants to the claim and that , in as much as directed against the municipality , the claim was inadmissible . The court went on to find that the DATE agreement did not constitute a preliminary contract for the conveyance of property because the parties to it had spoken only of possession and had not stipulated such conveyance in terms . Moreover , CARDINAL essential elements of such a preliminary contract – a specific description of the property and a specific price DATE were missing from the agreement . It had not set out the property or the price in a sufficiently clear way . Nor had the applicants provided evidence that the purported seller – the company – was indeed the owner of the property in issue .

On DATE the sixth applicant appealed , arguing that ORG findings in relation to the terms of the DATE agreement were erroneous .

On DATE the ORG upheld the lower court ’s judgment . It held that the DATE agreement , when seen in its proper context , had amounted to a preliminary contract , and had set out the property and the price in a sufficiently clear way . However , it went on to find that the applicants had not put forward sufficient proof that the company was indeed the owner of the property . Their claim had therefore been rightly dismissed in relation to the company . As for ORG , it was only a shareholder in the company , and as such could not incur liability for agreements to which the company was party . The claim against it was ill - founded as well .

On DATE the sixth applicant appealed on points of law , arguing that it was evident that the company , which had received title to the CARDINAL additional storeys and the QUANTITY buildings from the ORG , was their owner .

In a final decision of CARDINAL DATE ORG refused to take the appeal for examination , holding that the point raised in it had not been decisive for the determination of the applicants’ claim .

A DATE amendment to the DATE LAW added a new LAW , which envisaged the creation of an ORG attached to ORG . The ORG , which consists of a Chief Inspector and CARDINAL inspectors , is tasked with checking the work of the judiciary without infringing the independence of judges , prosecutors or investigators ( LAW ) . It can act either of its own motion or pursuant to reports by private individuals , legal persons or ORG authorities ( LAW ) . It has the power to refer matters to the appropriate authorities , or make suggestions or reports to them ( LAW ) . Both the Chief Inspector and the inspectors are elected by ORG by a majority of CARDINAL ; the term of office of ORG is DATE and that of the inspectors is DATE ( Article GPE § CARDINAL and CARDINAL ) .

The manner of election and dismissal of the inspectors is laid down in sections CARDINAL of LAW DATE ( “ the DATE LAW ) . They must be lawyers having high professional and moral qualities ( section CARDINAL(CARDINAL ) ) . ORG must have DATE of professional experience , and the inspectors DATE of professional experience ( section ORG ) and ( CARDINAL ) ) . They can not engage in a number of activities – such as business or being member of a political party DATE that might prejudice their independence ( section CARDINAL read in conjunction with section CARDINAL ) ) . They may be dismissed before the expiry of their term of office only if they resign , are finally convicted of a criminal offence , are unable to carry out their duties for DATE , are deprived of the right to exercise as a lawyer , heavily or systematically breach their duties or commit acts which tarnish the prestige of the judiciary , or do not cease activities that they are prohibited from pursuing while in office ( section CARDINAL(CARDINAL ) ) . The proposal for dismissal must be made by at least onefifth of the members of ORG ( section CARDINAL(CARDINAL ) ) . The remuneration of ORG is equal to that of a section president of ORG , and the remuneration of the inspectors is equal to that of a judge of that court ( section CARDINAL ) .

On DATE the Government laid before ORG a bill for the amendment of the DATE Act . The explanatory notes to the bill said the following :

“ Slow judicial proceedings lead to an enormous amount of judgments of ORG . In its judgments concerning the right to a fair trial within a reasonable time ORG ( ‘ the ECtHR’ ) emphasises the need for the introduction of an effective domestic remedy in respect of such breaches . With a view to securing the effective exercise of the right to a fair trial within a reasonable time , in its case - law the ECtHR points to the need to introduce a remedy capable of providing compensation for damage resulting from delays in proceedings ( compensatory remedy ) .

The systemic problem found by the ECtHR in relation to the excessive duration of criminal and civil cases in GPE calls for urgent legislative measures to introduce the remedies suggested by ORG .

With a view to the effective use of the available resources , it is expedient to give the power to find a breach and set compensation to an existing authority with similar competences . In view of the constitutional function of the ORG attached to ORG to check the work of the judiciary ( LAW ) and more specifically its power under section CARDINAL(CARDINAL)(CARDINAL ) of LAW [ DATE ] to check the processing of court , ORG and investigation cases and their completion within the prescribed time - limits , the bill envisages the creation of a special unit attached to the ORG . That special unit will examine and decide complaints relating to breaches concerning the unreasonable length of completed civil , administrative and criminal cases , as well as discontinued pre - trial proceedings . An important premise for laying down the procedure in such a way is the ORG ’s constitutional obligation to carry out checks pursuant to reports by private individuals and legal persons ( LAW ) .

The right to complain is open to all persons who may suffer damage as a result of delays in proceedings : parties to judicial proceedings ( civil , administrative and criminal ) or persons subjected to the pre - trial phase of criminal proceedings ( accused , victims and wronged legal persons ) .

The envisaged procedure will be a light ( simple ) way of obtaining redress . The complainant will not have to produce evidence – it will be gathered by the checking panel of their own motion ; no fees will be due ; the proceedings will finish in DATE with a settlement , which will ensure fast payment of the compensation .

Since the proposed procedure envisages a light and fast mode of redress , there is a cap on the maximum amount of compensation . This cap conforms with the DATE ’s case - law on the amount of compensation awarded in past cases .

The transitional and concluding provisions allow the procedure to be applied in respect of complaints already lodged through the ECtHR .

The compensatory remedy has to have retrospective effect , so as to be available to persons who have become victim of excessive length of proceedings even before the coming of the LAW into force , including those who have lodged applications with the ECtHR , if that court has not yet ruled on the admissibility of those applications .

The creation of an effective domestic remedy will ensure a drastic reduction of the number of applications to the ECtHR and will thus lead to less judgments finding a breach of LAW . ”

NORP The bill underwent its first reading on DATE , and its second reading on DATE , when it was adopted . The LAW was published in ORG on DATE . It inserted a new LAW in the DATE Act . The LAW is entitled “ Examination of applications against breaches of the right to examination and determination of the case within a reasonable time ” and consists of CARDINAL sections . The newly introduced provisions , the bulk of which came into force on DATE , read as follows :

DATE . ( CARDINAL ) This chapter applies to applications by individuals and legal persons against decisions , actions or omissions of judicial authorities which infringe their right to have their cases examined and decided within a reasonable time .

( CARDINAL ) ORG under subsection CARDINAL shall be lodged by individuals and legal persons who are :

NORP parties to finished civil , administrative or criminal proceedings ;

NORP accused , victims or wronged legal persons in discontinued pretrial proceedings ;

( CARDINAL ) This chapter set out the manner of determining and paying compensation in line with the case - law of ORG not amounting to MONEY .

( CARDINAL ) ORG under subsection CARDINAL shall be lodged within DATE after the conclusion of the proceedings at issue with a final decision , though the ORG attached to ORG to the Minister of ORG .

( CARDINAL ) A special register shall be created for the applications , and it shall be published on the internet site of the ORG attached to ORG .

( CARDINAL ) No fees shall be due for the examination of applications under this chapter .

DATE . ( CARDINAL ) The application must be written in NORP and set out :

NORP for NORP nationals – their names as featuring in the identification documents ; uniform citizen number and address ; telephone , fax and electronic address , if any ;

NORP for foreigners – their names as featuring in the identification documents ; uniform foreigner number and address ; telephone , fax and electronic address , if any ;

NORP the commercial firm of the trader or the name of the legal person , written in NORP ; the seat and the latest registered address and electronic address ;

NORP the decision , action or omission alleged to amount to a breach by the respective authority ;

NORP the authority to which the application is addressed ;

the request for relief ;

NORP the applicant ’s signature .

( CARDINAL ) Applicants shall submit a declaration that they have not sought or obtained compensation in respect of the same breach in other proceedings .

DATE . ( CARDINAL ) ORG under section CARDINALa(CARDINAL ) shall be examined by the ORG attached to ORG , which shall set up a special unit for this purpose .

( CARDINAL ) The experts staffing the unit shall be lawyers who have DATE of professional experience . Their remuneration shall be equal to that of a district court judge .

( CARDINAL ) The chief inspector shall allocate incoming applications to panels consisting of CARDINAL inspector and CARDINAL experts , randomly selected , and CARDINAL of the experts shall be appointed as rapporteur .

( CARDINAL ) If the application does not meet the requirements of section CARDINAL ) or ( CARDINAL ) , the applicant shall be given notice to rectify the deficiencies within DATE of receiving the notice .

( CARDINAL ) If the applicant does not rectify the deficiencies , the application and the supporting documents shall be returned .

DATE . ( CARDINAL ) The results of the examination shall be noted down in a record of findings .

( CARDINAL ) That record shall be signed by the members of the panel and shall contain information about :

NORP the time and place where and when it has been drawn up ;

NORP the applicant ;

NORP the panel which has examined the application ;

NORP the case in respect of which it is being drawn up ;

NORP the overall duration of the proceedings ; the period of delay attributable to the competent authority ; the period of delay attributable to actions or omissions of the complainant or his legal or procedural representative ;

( CARDINAL ) The record of findings shall also set out the view of the panel as to whether the time - limit under section CARDINAL ) has been met .

ORG . The record of findings under section DATE shall be drawn up within DATE of receipt of the application or the rectification of its deficiencies , as the case may be . The record , along with the application and all supporting documents , shall be sent immediately to the Minister of ORG .

DATE . ( CARDINAL ) Based on the findings of the panel , the Minister of ORG or a person authorised by him or her shall reject the application as unfounded if

NORP the length of the proceedings has not exceeded a reasonable time ;

NORP the delay is due to actions or omissions of the applicant or his legal or procedural representative .

( CARDINAL ) NORP If the right of the applicant to have his or her case examined and decided within a reasonable time has been breached , the Minister of Justice or a person authorised by him or her shall fix the amount of compensation in line with the caselaw of ORG and shall propose the conclusion of a settlement with the applicant .

CARDINAL g . NORP The underlying circumstances shall be examined and the application shall be determined within DATE of the application ’s receipt .

Compensation shall be paid on the basis of the concluded settlement .

PERSON . The funds required for the payment of sums under concluded settlements shall be covered by the NORP budget .

DATE . NORP ( CARDINAL ) ORG due under this chapter shall be paid out of the budget of ORG .

( CARDINAL ) Each DATE the Minister of Finance shall make available to the budget of ORG funds matching the compensations actually paid under subsection CARDINAL during that DATE through a modification of the budgetary arrangements with the central ORG budget .

Persons who have received compensation under this chapter may not seek compensation in respect of the same matter by way of civil proceedings .

( CARDINAL ) Every quarter the chief inspector shall send to ORG information about breaches found , and Minister of Justice – about compensations paid out .

( CARDINAL ) Every DATE ORG shall analyse the reasons for the breaches and shall take measures to eliminate them .

( CARDINAL ) ORG shall publish on its internet site the information under subsections CARDINAL and CARDINAL .

Paragraphs DATE and CARDINAL of the transitional and concluding provisions of the amending LAW provide as follows :

( CARDINAL ) Within DATE of the entry into force of LAW or of notification by ORG , persons who have lodged with ORG applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under LAW , except in cases where the ORG has already given judgment on the merits of the application or has rejected the application as inadmissible .

( CARDINAL ) ORG under subparagraph CARDINAL shall be examined within DATE of their receipt .

To ensure the application of LAW in DATE ORG shall make available additional funds in the budgets of the ORG and ORG .

In a decision of CARDINAL DATE that came into effect on DATE ( PERSON № CARDINAL от CARDINAL септември DATE г. за одобряване на допълнителни бюджетни кредити по бюджета на съдебната власт и по бюджета PERSON на правосъдието за DATE г. ) , ORG increased the budget of the judiciary with CARDINAL NORP levs earmarked for the creation , in the ORG attached to ORG , of the special unit dealing with applications under LAW of the DATE LAW of the decision ) .

In DATE the ORG appointed a number of officials and assigned them to the special unit dealing with applications under LAW of the DATE Act . On DATE the ORG published on its website an application form and a sample declaration under section CARDINALb(CARDINAL ) of the CARDINAL Act ( see paragraph CARDINAL above ) . It later put on its website software allowing applicants to lodge applications electronically and track their progress online .

On DATE the Government laid before ORG a bill for the amendment of the ORG and ORG DATE ( “ the DATE LAW ) . The explanatory notes to the bill said the following :

“ An analysis of the judgments in which ORG has found violations in respect of GPE shows that there are repetitive violations due to the lack of an effective domestic remedy allowing those concerned to obtain redress . More specifically , there is a need to create a domestic remedy allowing those concerned to obtain compensation for damage resulting from a breach of the [ Convention ] made by the ORG or its authorities or officials . ORG finding that the law of GPE does not make provision for such a remedy calls for its creation through an expansion of the ambit of the ORG and ORG [ DATE ] . This will overcome the prior approach – to provide for liability only in specific circumstances DATE which has led to many violation judgments of [ the ORG ] against GPE .

For that purpose , it is proposed to make the following amendments and additions to the LAW :

NORP The proposal to insert a new section CARDINAL seeks to broaden the ambit of the LAW , so that it embrace also cases of ‘ delayed justice’ . Under the pilot judgments of ORG in the case of Finger [ cited above ] ( which concerns civil cases ) and the joined cases of GPE and GPE [ cited above ] ( which concern criminal cases ) , which find breaches of LAW , the NORP authorities must , within DATE ( until DATE ) put in place a mechanism to resolve the systemic problem concerning the ‘ reasonable time’ of proceedings . The envisaged amendments create a mechanism for the compensation of damage .

Individuals and legal persons whose right to have their cases examined and decided within a reasonable time been breached may bring claims under section CARDINAL only if they have exhausted the administrative procedure for obtaining compensation under LAW of LAW [ DATE ] but have not reached a settlement .

At the same time , in cases of separate breaches occurring in one and the same proceedings , the fact that a person has brought a claim in respect of CARDINAL breach does not prevent him or her from seeking compensation in respect of a breach of the right to a trial within a reasonable time in cases where the overall length of the proceedings has been excessive .

NORP ... As regards claims for compensation in respect of breaches of the right to have one ’s case examined and decided within a reasonable time , [ the amendments ] envisage that such claims , in view of their character and subject matter , shall be examined by the court having local jurisdiction in the place where the aggrieved person has his or her current address or its seat .

It is proposed to insert transitional provisions under which , within DATE of the entry into force of the LAW or of notification by ORG , persons whose applications to [ that ORG ] have been rejected due to failure to exhaust the newly created domestic remedies , and whose proceedings are still pending before the national courts , may also bring claims for compensation under section CARDINAL .

In respect of proceedings which have already ended at the national level , within DATE of the entry into force of the LAW or of notification by ORG , persons whose applications to [ that ORG ] have been rejected due to failure to exhaust the newly created domestic remedies may lodge applications for compensation under LAW of LAW [ DATE ] .

Persons whose national pretrial or judicial proceedings have ended at the time when the LAW comes into force , and DATE have elapsed since the final decision , shall also have the right to lodge applications for compensation under LAW of LAW [ DATE ] within DATE of the LAW ’s entry into force .

The bill reflects the proposals of nongovernmental organisations , ORG Rights’ caselaw , and the recommendations of ORG , and with it GPE shall fulfil its duties of ORG to the [ Convention ] . ”

The bill underwent its first reading on DATE and its second reading on DATE , when it was adopted . LAW was published in ORG on DATE and came into force on DATE . It amended a number of provisions of LAW . In particular , it inserted a new section CARDINAL , which is entitled “ Liability of the judicial authorities for breaches of the right to have one ’s case examined and decided within a reasonable time ” and reads as follows :

“ CARDINAL . The ORG shall be liable for damage caused to individuals or legal persons by breaches of the right to have one ’s case examined and decided within a reasonable time , in accordance with LAW .

Claims under subsection CARDINAL shall be examined in the manner provided by LAW [ DATE ] , and the court shall take into account the overall duration and the subject matter of the proceedings , their factual and legal complexity , the conduct of the parties and their procedural or legal representatives , the conduct of the other participants in the proceedings and of the competent authorities , as well as other facts which have a bearing on the proper determination of the dispute .

The bringing of a claim for damages in respect of pending proceedings shall not preclude the bringing of a fresh claim after the proceedings have come to end . ”

A new section CARDINAL(CARDINAL ) provides that claims for compensation under section CARDINAL are to be brought in the court in whose region the aggrieved person has his or her current address or seat .

A new section CARDINAL(CARDINAL ) provides that individuals or legal persons may bring claims under section CARDINAL ) in respect of proceedings which have ended only if they have already exhausted the administrative procedure under LAW of the CARDINAL LAW ( see paragraph CARDINAL above ) but that procedure has not resulted in a settlement .

Paragraphs CARDINAL and CARDINAL of the transitional and concluding provisions of the amending LAW provide as follows :

“ CARDINAL . ( CARDINAL ) Within DATE of the entry into force of this LAW or of notification by ORG , persons whose applications to ORG have been rejected due to failure to exhaust the newly created domestic remedies , and whose proceedings are still pending before the national courts , may also bring claims for compensation under section CARDINAL .

( CARDINAL ) Within DATE of the entry into force of this LAW or of notification by ORG , persons whose applications to ORG have been rejected due to failure to exhaust the newly created domestic remedies , and whose proceedings at national level have already ended , may lodge applications for compensation under LAW of the [ CARDINAL Act ] .

Persons whose national pretrial or judicial proceedings have ended at the time when this LAW comes into force , and DATE have elapsed since the final decision , shall also have the right to lodge applications for compensation under LAW of the [ CARDINAL Act ] within DATE of this LAW ’s entry into force . ”

Section CARDINAL of the DATE Act provides that the ORG is liable for all pecuniary and nonpecuniary damage which is a direct and proximate result of the impugned act , action or omission . However , ORG and ORG have held that legal persons , such as commercial companies , can not suffer nonpecuniary damage and are not entitled to compensation for such damage ( see опр. № CARDINAL от CARDINAL март DATE г. по гр. д. № DATE г. , ORG , III г. о. , and реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , ORG ) .

Section CARDINALa(CARDINAL ) of the LAW , which was inserted in DATE and came into force in DATE , provides that the fee due in respect of cases under the LAW is flat and is to be fixed in a tariff adopted by the ORG . Under the LAW of fees collected by the courts under LAW , as currently in force , the fee is ORG in respect of firstinstance proceedings , ORG in respect of appellate proceedings , and ORG in respect of cassation proceedings . The fee is payable upfront ( see опр. № DATE от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , ORG ) .

Section CARDINAL(CARDINAL ) of the LAW , as worded after DATE , provides that if the claim is rejected in full , the court must order the claimant to pay the costs of the proceedings . The claimant must also pay those costs if he or she withdraws the claim in its entirety .

Section CARDINAL(CARDINAL ) of the LAW , which was also inserted in DATE and came into force in DATE , provides that if a claim under the LAW is allowed fully or in part , the court is to order the defendant to pay the costs of the proceedings and to reimburse the court fee paid by the claimant . The defendant must also pay the claimant the fee of CARDINAL counsel , if the claimant had retained counsel , pro rata the allowed part of the claim .

In their caselaw under section ORG ) and ( CARDINAL ) , ORG and ORG have held that it is a lex specialis in relation to the general rules on costs in LAW , and that in the case of a partly rejected claim the defendant authority is not entitled to costs ( see опр. № DATE от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , I о. ; MONEY от CARDINAL март DATE г. по гр. д. № CARDINAL г. ВКС , III г. о. ; and опр. № CARDINAL от CARDINAL октомври DATE г. по ч. гр. д. № CARDINAL г. , ORG , III г. о. ) .

Article CARDINAL § CARDINAL of the Code of Civil Procedure DATE , superseded on DATE by LAW DATE , which is couched in identical terms , provided that when on account of the character of the right in dispute the court ’s ruling had to be the same in relation to all coclaimants or codefendants , they were regarded as mandatory coclaimants or codefendants ( необходими другари ) and the procedural steps taken by CARDINAL of them produced effects in respect of all of them .

Article CARDINAL of the Code of Civil Procedure DATE provides as follows :

“ CARDINAL . The enforcement of money claims against ORG bodies and municipalities is not allowed .

Money claims against ORG bodies and municipalities shall be paid out of funds allotted for that purpose in their budgets . For this purpose , the writ of execution shall be presented to the financial department of the [ ORG ] body in issue . If no funds have been allocated , the higher [ ORG ] body shall take the necessary measures to provide such funds at the latest in the next budget . ”

In DATE the Ombudsman of the Republic challenged that provision before ORG . He argued , inter alia , that it fell foul of several Articles of the DATE LAW CARDINAL § CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL . On DATE ORG , noting that under LAW of the DATE LAW the ORG was not entitled to seek from ORG declarations that statutes are contrary to international treaties to which GPE is party , declared the request admissible in so far as the allegations of unconstitutionality were concerned and inadmissible in so far as the allegations of lack of compliance with the LAW and its LAW were concerned . In a judgment of DATE ( реш. № CARDINAL от CARDINAL декември DATE г. по к. д. № CARDINAL/CARDINAL г. , обн. GPE , бр. CARDINAL/CARDINAL г. ) , ORG refused to declare LAW unconstitutional in so far as it concerns ORG bodies , but declared it unconstitutional in so far as it concerns municipalities .

ORG examined the amendments to the DATE and the DATE Acts at its CARDINALth meeting , held on CARDINAL September CARDINAL . Based on an information document drawn up by ORG of ORG ( CM / Inf / DH(CARDINAL)CARDINAL ) , the ORG adopted the following decision :

“ The Deputies

took note with interest of the revised action report submitted by the authorities on DATE presenting the introduction of an administrative compensatory remedy in the field of excessive length of proceedings , as well as of a draft bill for the introduction of a judicial compensatory remedy in this field ;

NORP approved the assessment of the administrative remedy and of the draft judicial remedy contained in information document ORG / DH(CARDINAL)CARDINAL and invited the NORP authorities to provide clarifications as concerns outstanding questions identified in this information document ;

invited the NORP authorities to adopt rapidly the proposed judicial remedy and to amend the provision governing the retrospective effect of the administrative remedy in order to take into account the requirements of the ORG in this respect ;

decided to declassify information document ORG / DH(CARDINAL)CARDINAL ;

ORG decided to resume consideration of these cases , including the question of the measures aimed at reducing the length of the judicial proceedings , during one of their next Human Rights meetings and invited the authorities to provide additional information also on this question . ”

ORG again examined the amendments at its CARDINALth meeting , held on DATE . Based on an information document drawn up by ORG of ORG ( CM / Inf / DH(CARDINAL)CARDINAL ) , ORG adopted the following decision :

“ The Deputies

As regards the effective remedies required in this field :

recalled their decision adopted during their CARDINALth meeting ( DH ) ( DATE ) according to which the administrative compensatory remedy recently adopted by the authorities and the judicial compensatory remedy proposed in the field of length of proceedings , taken together , seem capable of meeting the main requirements of the caselaw of the ORG ;

NORP noted with satisfaction the adoption by ORG , on DATE , of the legislative amendments aimed at introducing the abovementioned judicial remedy ; noted in this respect that according to the information submitted , the adopted provisions are identical to those already assessed by the ORG , except for those relating to the competent courts ; invited the authorities to keep the ORG informed about the entry into force of the adopted provisions and to provide it with their translation ;

NORP noted with interest the explanations provided by the NORP authorities in relation to some outstanding questions identified in Information document ORG , in particular their intention to modify the provision governing the retrospective effect of the administrative remedy in order to ensure its compliance with the requirements of ORG in this respect ; invited them to reply to the other outstanding questions contained in ORG document ORG GPE , namely as concerns the functioning of the administrative compensatory remedy ;

invited the authorities to reply to the other outstanding questions identified in Information document ORG / GPE and decided to declassify it . ”

The information document forming the base for this decision ( ORG DH(CARDINAL)CARDINAL ) was drawn up on DATE and reads as follows :

I. Compensatory remedies elaborated in response to the pilot judgments

NORP Presentation of the adopted administrative compensatory remedy

Positive aspects of the administrative compensatory remedy

The [ DATE ] Act provides that applications for compensation in respect of excessive length of proceedings are to be addressed to the Minister of ORG through ORG . When examining these claims , the Minister ( or a person authorised by him or her ) is assisted by a panel made up of an Inspector and CARDINAL experts working in a special unit of that ORG . The timelimit for the examination of applications is DATE . The procedure is free of charge for the claimants .

NORP The applications are to be directed ‘ against acts , actions or omissions of judicial authorities’ , breaching the right to have a case heard and decided within a reasonable time . The authorities have indicated that this wording would not preclude the examination of applications concerning delays that do not stem from omissions by individual judges or judicial officers but , for instance , from an overburdening of the judicial system as a whole .

The criteria which must be taken into account when examining applications are the overall length of the proceedings , the delays attributable to the authorities , as well as the delays attributable to the applicant and his representative ( [ s]ection CARDINALd(CARDINAL)(CARDINAL ) ) . The merits of the application and the amount of compensation are to be determined in light of the ORG ’s caselaw .

The compensation is to be paid out of the budget of ORG . ORG must then restore to the budget of ORG the funds paid as compensation DATE .

Assessment :

The law governing the administrative remedy imposes on the authority competent to examine applications for compensation the obligation to take into account the overall length of the proceedings and the conduct of the parties and of the competent authorities , in line with the ORG ’s caselaw . The legal or factual complexity of the case and the stakes involved in the dispute are not mentioned explicitly , but the general reference to the ORG ’s case - law should be enough to cause them to be taken into account as well . The new provisions also seem to take into account the caselaw of the ORG as to , inter alia , the promptness of the examination , the absence of charges for the introduction of a claim and the existence of specific budgetary provisions . In conclusion , this administrative remedy takes into account , to a very large extent , the criteria used by ORG for the assessment of the excessive length of proceedings .

Questions raised by the administrative compensatory remedy

The administrative remedy put in place raises a number of questions , namely : ( a ) the fact that it does not apply to proceedings which are pending , ( b ) the wording of the provision governing the retrospective effect of the remedy and ( c ) the compliance of the remedy with the institutional requirements of LAW , ( d ) the compensation ceiling and ( e ) the payment of compensation . In this respect , it should be recalled that the ORG has constantly indicated in its caselaw that even if a particular remedy does not fully satisfy the requirements of LAW , the aggregate of remedies under domestic law may satisfy these requirements . Therefore , the questions raised by this remedy and its weaknesses may be examined also in the light of the judicial compensatory remedy adopted at first reading by ORG ( for a detailed presentation of the judicial remedy , see paragraphs PERSON below ) .

( a ) ORG of the administrative remedy to proceedings which are still pending

NORP The administrative remedy provides that only parties to completed judicial and pre - trial proceedings are entitled to introduce applications for compensation within DATE of the end of the proceedings in question . If the proceedings are still pending , the parties have to wait for them to end in order to submit a claim to the Minister of ORG , whatever the delays already accumulated . In contrast , it appears from the information presented by the NORP authorities that the proposed judicial remedy for length of proceedings would also be applicable to proceedings which are still pending .

Assessment :

It should be recalled that the ORG has already held that the impossibility to use a remedy against the excessive length of proceedings which are still pending may render such a remedy ineffective . It should also be recalled that the pilot judgments require the introduction , within the timelimit set in the operative part of the judgments , of a remedy that fully complies with the ORG ’s caselaw . It thus appears that the introduction of just an administrative remedy with limited scope is not sufficient to ensure the full execution of the pilot judgments . This lacuna could , however , be overcome by the introduction , without delay , of a judicial remedy which fully complies with the requirements of the ORG ’s caselaw , as the NORP authorities seem to have foreseen .

( b ) Wording of the provision governing the retrospective effect of the remedy

Paragraph CARDINAL(CARDINAL ) of the transitional provisions of the [ DATE Act ] , which concerns the retrospective effect of the new remedy , is worded as follows ( emphasis added ) :

‘ Within DATE of the entry into force of LAW or notification by ORG , persons who have lodged with ORG applications concerning breaches of their right to have their cases examined and decided within a reasonable time may submit applications under LAW , except in cases where the ORG has already given judgment on the merits of the application or has rejected the application as inadmissible.’

Assessment :

The current wording of paragraph CARDINAL suggests that the new remedy will not be available to applicants whose applications are declared inadmissible by the ORG , and this without making the distinction between the different grounds of inadmissibility . This provision should therefore be amended in order to indicate clearly that it will be available to persons whose applications , introduced before its adoption , are declared inadmissible for nonexhaustion of the domestic remedies . Thus , if the ORG confirms the effectiveness of the new remedy or of the aggregate of new remedies , it will be able to declare inadmissible the applications pending before it for nonexhaustion of this remedy / these remedies and the applicants concerned will be able to introduce their applications for compensation at the domestic level . The authorities have indicated that this provision will be amended in the near future in order to ensure that applicants whose applications have been declared inadmissible for nonexhaustion of the domestic remedies will be able to use effectively this new remedy at the domestic level . Information is awaited on the timetable for the adoption of this amendment .

( c ) Compliance of the remedy with the institutional requirements of LAW

The new provisions of the [ DATE ] Act describe in considerable detail the procedure for the examination of applications for compensation for excessive length of proceedings . The relevant facts for the examination of a complaint concerning excessive length of proceedings are to be established by a panel of CARDINAL Inspector from ORG and CARDINAL experts working in a special unit of this ORG . This panel communicates its findings to the Minister or to the person whom he or she has authorised to act on his or her behalf .

NORP If the Minister of Justice or the person designated by him or her finds that the reasonable - time requirement has not been breached , he or she has to reject the application . If the Minister or the person designated by him or her finds , on the contrary , that the reasonable - time requirement has been breached , he or she has to fix the amount of compensation in line with the ORG ’s case - law and propose a settlement to the claimant . Claimants who have accepted the settlement and have obtained compensation under that procedure can not claim compensation in judicial proceedings .

The [ DATE ] Act does not contain specific provisions concerning a possible judicial review of the decisions rejecting applications or proposing a settlement .

Assessment :

It should be recalled that the authority to which LAW refers does not need to be a judicial one for a remedy to be considered effective under the ORG ’s caselaw . However , the effectiveness of the remedy before that authority is assessed by reference to the guarantees that it affords ( see , among other authorities , GPE [ v. ] GPE , CARDINAL DATE , § CARDINAL , Series A No . CARDINAL ) . In particular , the decisionmaking body needs to have a ‘ sufficiently independent standpoint’ ( see , among other authorities , Silver and [ O]thers [ v. ] GPE , DATE , § QUANTITY , Series A No . CARDINAL ) . It should also be noted that the ORG requires in principle that the authority in charge of the implementation of a domestic remedy be able to come up with a ‘ legally binding GPE , some element of enforceability being generally required ( see , among other authorities , GPE , cited above , § CARDINAL ) . As said above , the caselaw also indicates that even if a single remedy does not fully satisfy the requirements of LAW , the aggregate of remedies under domestic law may do so ( see , among other authorities , GPE , cited above , § CARDINAL ) .

In the light of the information currently available , it is not clearly established whether the new administrative procedure under the [ DATE ] Act can be regarded as providing alone the required ‘ element of enforceability’ and sufficient ‘ ORG . However , for the reasons set out below , if an effective judicial remedy is introduced without delay , the aggregate of remedies could in principle meet the institutional requirements of LAW .

According to the authorities , the settlements proposed by the Minister of ORG should be considered as legally binding decisions , because under the [ CARDINAL]Act , as amended , the Minister of Finance has to guarantee to ORG funds up to the amounts paid in compensation to claimants . However , a question remains whether the decision of the Minister of ORG taken on applications for compensation , whether positive or negative , can be considered to have itself a legally binding effect in cases in which no settlement has been concluded . In any event , according to the draft bill for the amendment of the [ CARDINAL Act ] ( aiming at the introduction of a judicial remedy ) , unsuccessful claimants in the procedure before the Minister of Justice and claimants who have refused to conclude a settlement , will have the right to request compensation in the context of judicial proceedings ( see paragraphs CARDINAL and CARDINAL below).Thus , it seems that DATE if the foreseen judicial remedy is adopted DATE in the absence of a settlement the claim could be resolved by a final and legally binding decision in the context of judicial proceedings .

As to the issue of independence of the decisionmaking body , it should be recalled that , in a case against GPE , the ORG accepted that an administrative remedy was effective because the persons who were not satisfied with the decision of ORG on their applications for compensation could seek compensation in the context of judicial proceedings ( see PERSON [ v. ] GPE DATE . ) , No . CARDINAL , § CARDINAL , DATE ) . Thus , if only an administrative remedy is introduced , the availability of judicial review of the decisions of the Minister of ORG may prove crucial for the remedy to meet the institutional requirements of the ORG ’s caselaw . By contrast , if an effective judicial remedy is introduced without delay as foreseen by the NORP authorities , the aggregate of the CARDINAL remedies could in principle meet the institutional requirements of LAW , even in the absence of judicial review of the minister ’s decisions .

( d ) Compensation ceiling

The [ DATE Act ] provides that compensation can not exceed MONEY ( ORG ) ( MONEY ( ORG ) ) .

Assessment :

As concerns the abovementioned compensation ceiling , there may be situations in which that sum will fall short of the amounts awarded in compensation by the ORG . That said sums of up to ORG CARDINAL appear sufficient , in the light of the ORG ’s judgments against GPE concerning length of proceedings , to compensate adequately the nonpecuniary damage arising in the majority of cases concerning excessive length of proceedings in GPE . Moreover , if an effective judicial remedy is introduced without delay as foreseen by the NORP authorities , the aggregate of newly introduced remedies would normally be sufficient to provide an adequate level of compensation in all situations , as the draft law concerning the introduction of judicial remedy does not provide for a compensation ceiling .

( e ) Timelimit and procedure for payment of compensation

The [ DATE ] Act makes provision for a specific funding mechanism for the payment of compensations for excessive length of procedure ( see paragraph CARDINAL above ) . It does not seem to contain any specific provisions concerning the procedure for payment of compensation . In their reply to the questions identified in the memorandum ORG ( see PERSON ) , the authorities indicated that budgetary funds and other measures have been foreseen in order to avoid delays in the payment of compensation .

Assessment :

The ORG ’s caselaw requires that payment should normally be made not DATE after a judgment or a decision in that respect has become enforceable . Given the importance attached by the ORG to this requirement , it seems useful to provide the ORG with detailed information on the payment procedure and on the timelimits in which the payments are made in practice .

B. Presentation of the proposed judicial remedy

The following presentation is based on the translation of the draft bill for the amendment of LAW presented by the NORP authorities on DATE ( see DHDD(CARDINAL)CARDINAL ) . The judicial remedy adopted at first reading by ORG seems to comply in principle with the main requirements of the ORG ’s case - law in the field of compensatory remedies for excessive length of proceedings . However , some clarifications still seem necessary .

( a ) Scope of the remedy

Section CARDINAL of the draft bill for the amendment of the [ CARDINAL Act ] provides that the ORG is responsible for damages caused to persons and legal entities through breaches , by the judicial authorities , of the right enshrined in LAW to have their cases examined and resolved within a reasonable time . The claims have to be examined under the rules of LAW . The court have to take into account the legal and factual complexity of the case , the conduct of the claimant , the conduct of the other parties and participants in the proceedings and the conduct of the competent authorities , the stakes involved in the dispute , as well as the overall length of the proceedings . The introduction of a claim for damages while the proceedings are still pending is not an obstacle to introducing a claim for damages after the end of these proceedings . The authorities have confirmed that the scope of the judicial remedy comprises the actions of the prosecutors and the investigating magistrates , as well as the actions of the police investigators ( to which makes reference paragraph CARDINAL of the transitional and final provisions of the draft bill for the amendment of the [ CARDINAL Act ] ) .

As concerns the question of the applicability of the judicial remedy to the procedures concerning execution of court decisions , it should be noted that the majority of the execution proceedings in GPE are conducted by private bailiffs whose civil responsibility can be engaged in a case of damage caused by their activity . As far as the public bailiffs are concerned , although their status is governed by the [ CARDINAL ] Act , they are not magistrates . Therefore , it is not clear whether their actions are covered or not by the scope of the proposed judicial remedy .

Assessment :

The scope of the proposed judicial remedy seems to comply with the relevant requirements of the ORG ’s caselaw . The draft Section CARDINAL refers to breaches of the reasonable time requirement attributable to the judicial authorities . Although this provision does not mention explicitly the delays caused by the police investigators , the NORP authorities have indicated that the delays which have occurred at the stage of the preliminary investigation and are attributable to the police investigators will fall within the scope of the judicial remedy . It would be useful to clarify whether this is so also in respect of the actions of the public bailiffs responsible for the execution of a court decision .

( b ) Procedure according to which a claim should be examined : length and applicable court fees

The draft bill for the amendment of the [ CARDINAL Act ] provides that claims will be examined under the rules of LAW [ DATE ] . Under NORP law , a civil dispute can be examined by CARDINAL levels of jurisdiction .

Under the provisions of [ LAW ] , a flatrate court fee is due to file a claim under LAW which is either ORG for physical persons or ORG CARDINAL for legal persons ( EUR CARDINAL.CARDINAL or EUR CARDINAL ) . The claimants must pay all the costs incurred in the proceedings only if their claim has been entirely rejected or if they withdraw or waive their claim entirely . If the court decides in favour of the claim , in whole or in part , the defendant should be ordered to pay the costs relating to the proceedings , as well as the claimant ’s court fees . If a claim is granted only in part , the claimant receives only partial reimbursement of the lawyer ’s fees . The authorities have specified that according to domestic caselaw , if a claim is partially rejected , the claimant should not be required to pay the part of the lawyer ’s fees incurred by the defendant .

Assessment :

One of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time . The ORG suggested in this respect that ‘ consideration may be given to subjecting the examination of such claims to special rules that differ from those governing ordinary claims for damages , to avert the risk that , if examined under the general rules of civil procedure , the remedy may not be sufficiently ORG . However , the introduction of such special rules was not set out as a requirement for the effectiveness of the future remedy or aggregate of remedies . Therefore , the absence of such special rules does not per se put into question the efficiency of the proposed judicial remedy . Moreover , the adopted administrative remedy , if correctly implemented , could provide swift redress to many potential claimants .

As concerns the requirement set out in the pilot judgments that the rules governing costs must not place an excessive burden on litigants where their claim is justified , it seems that , even if a claim has been partly rejected , successful claimants could not be required to pay costs relating to the proceedings and the part of the lawyer ’s fees incurred by the defendant and that their court fees are to be reimbursed .

( c ) Need to exhaust the administrative remedy in some situations

NORP Parties to completed judicial proceedings will need to exhaust the administrative remedy before introducing a judicial claim . According to [ LOC ) of the draft bill for the amendment of LAW , the judicial remedy is not available to claimants who have concluded a settlement in the administrative procedure .

Assessment :

As said above , CARDINAL of the principles set out in the pilot judgments is that a claim for compensation must be examined within a reasonable time . It seems that the requirement for a certain category of claimants to exhaust the administrative remedy before introducing a judicial remedy will not have a considerable impact on the promptness of the compensation process as a whole , because it seems that the administrative phase could be very short ( cf . the sixmonth’ timelimit for the examination of applications , paragraph CARDINAL above ) .

( d ) Retrospective effect

Paragraph CARDINAL(CARDINAL ) of the transitional and final provisions of the draft bill for the amendment of the [ CARDINAL Act ] provides that persons whose applications have been rejected by ORG on the ground of nonexhaustion of the newly introduced domestic remedies and who have been parties in completed judicial proceedings will be able to introduce administrative applications for compensation within DATE of the entry into force of the amendments or within DATE of the notification by ORG . Under the same conditions , applicants to the ORG who have seen their application rejected for nonexhaustion of the domestic remedies and who are parties in pending proceedings at the domestic level will be able to introduce judicial claims for compensation .

According to paragraph CARDINAL of the transitional and final provisions of the draft bill for the amendment of the [ CARDINAL Act ] , parties to proceedings which have been completed DATE before the entry into force of the draft bill will also have access to the judicial remedy .

Assessment :

The provisions concerning the scope of the retrospective effect of the proposed judicial remedy seem to comply with the recommendations given by ORG under Article CARDINAL in the pilot judgments .

( e ) Timelimit and procedure for payment of compensation

Unlike the [ DATE ] Act , the draft bill for the amendment of the [ CARDINAL Act ] does not seem to provide for specific budgetary provisions concerning the payment of compensations for excessive length of proceedings . In their response to the questions identified in the memorandum ORG ( see PERSON ) , the authorities indicated that it is foreseen that the amendments to the [ CARDINAL LAW ] will be accompanied by the provision of budgetary funds to the institutions concerned .

It seems that according to the relevant budgetary rules , the payment of compensation granted in the event of successful claim against a court / the prosecution should be made out of the budget of the court in question / of the prosecution . Likewise , LAW provides that persons who have financial claims against public institutions have to submit the writ of execution to the institution ’s financial department in order to receive payment . Payments are made out of the funds earmarked for that purpose in the institution ’s budget . If there are no funds available , a budgetary provision for this purpose should be made available DATE .

Assessment :

As said above in paragraph DATE , the ORG ’s caselaw requires that payment should normally be made not DATE after a judgment or a decision in that respect has become enforceable . Given the importance attached by the ORG to this requirement , it seems useful to provide the ORG , in due time , with information on the exact content of the budgetary provisions taken by the authorities in order to ensure the funding of compensations for excessive length of proceedings and on any other measure aimed at avoiding late payment of compensation .

Conclusion

In the light of the information available , it seems that the administrative remedy which entered into force on [ DATE ] represents a very positive step forward towards the execution of the pilot judgments of the ORG . This remedy does not in itself comply with all the requirements of the LAW , but most of the outstanding questions could be addressed by the proposed judicial remedy in the field of excessive length of proceedings , if the latter is adopted without delay . Thus , it seems that the aggregate of these CARDINAL remedies could in principle comply with the main requirements of the ORG ’s caselaw . Therefore , it seems useful to invite the NORP authorities to adopt without delay the judicial remedy proposed and to encourage them to take the necessary measures in order to ensure for themselves that the new remedies will be applied in compliance with this case - law . Likewise , it seems useful to encourage the authorities to continue with their works regarding the introduction of a remedy which allows requesting the acceleration of the criminal proceedings . ... ”


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , a town in LOC .

The applicant sued ORG of the ORG , ORG , and the ORG for damages caused by a negligent enforcement of a civil judgment . On DATE ORG awarded the applicant MONEY ( RUB ) . This judgment became binding on DATE and was enforced on DATE .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .