Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE and lives in GPE .

The applicant resided in a municipal CARDINAL - roomed flat together with her son , his ex - wife PERSON and their daughter , a minor at the time . On an unspecified date the applicant brought a claim against PERSON seeking PERSON ’s eviction . PERSON countersued the applicant asking the court to rehouse everyone . PERSON alleged that the applicant and her son had forced her to move out of the flat and their joint residence in the same flat had become impossible .

On DATE the ORG of GPE dismissed the applicant ’s claims and granted PERSON ’s claim . It ordered the applicant and her son to be rehoused in another CARDINAL - room flat . At the same time PERSON and her daughter were granted a room in another building . The flat the applicant resided in was assigned to another family . In particular , the court noted as follows :

“ Pursuant to LAW of the [ LAW ] , if the members of a family fail to reach an agreement with regard to re - housing , any of them may ask for the re - housing arrangements to be determined by the court . The court must take into consideration the relevant circumstances and the interests of the persons to be re - housed .

The court asked repeatedly that [ the applicant and her son ] justify their objection to the re - housing arrangement [ proposed by PERSON ] . However , they did not present any written submissions ... and refused to give any [ oral ] explanation or answer any questions during the court hearing ...

The witnesses testified that the parties were in conflict and provided details as to the altercations between [ them ] ...

The existence of a conflict between the parties is also confirmed by the numerous complaints they have lodged against each other with the law - enforcement agencies ...

Having regard to the above , the court concludes that the parties can not share the flat in question . PERSON and her daughter are unable to reside in the flat , which fact amounts to a violation of their housing rights ...

Pursuant to LAW ] , PERSON can not be evicted from the flat . It was established that [ the applicant and her family ] had consented to PERSON moving into the flat . PERSON had moved into the flat and , as set forth in Articles CARDINAL and DATE of the [ Housing Code ] , she had acquired a right to reside in there .

The court has established that it was impossible for the parties to share the flat due to their own behaviour ... The conflicts between the parties underlie the housing dispute between them .

The court further considers that PERSON ’s eviction , if ordered , would have an adverse effect on the housing rights of her daughter , who lives with her .

According to ORG , she asked for re - housing for the first time in DATE . However , [ the applicant and her son ] did not consent to it .

PERSON proposed the following re - housing arrangement : [ the applicant and her son ] would move into a CARDINAL - room flat ... In the flat in dispute each resident party had been afforded CARDINAL sq . m of the living area ... Following the re - housing , [ the applicant and her son ] would be afforded CARDINAL sq . m of the living area each ... The CARDINAL would have separate rooms . The flat is located in [ GPE ] ...

The court does not discern any reason why the proposed re - housing arrangement should not be implemented ... ”

On DATE ORG concurred with the assessment of the matter made by ORG and upheld the judgment of CARDINAL DATE on appeal .

On DATE the bailiff initiated enforcement proceedings .

On an unspecified date the applicant asked for supervisory review of the judgments of CARDINAL May and DATE .

On DATE ORG of GPE asked ORG to forward the case - file for supervisory review . As regards the applicant ’s eviction , the judge in charge of the matter noted that the execution of the judgment of CARDINAL DATE “ should be stayed ” .

On DATE a bailiff , P. , called at the applicant ’s flat and told her that she would be evicted DATE . As regards the stay of execution , he advised her to contact the court .

On DATE the bailiff showed up at the applicant ’s flat at CARDINAL a.m. The applicant refused to open the door . The bailiff had to leave . He returned with the rescue service at TIME The applicant was not in the flat . The bailiff entered the flat . The applicant returned TIME . She claimed that she did not feel well and was undergoing treatment in a hospital . The bailiff left .

After having verified that the applicant had not been admitted to any hospital , the bailiff forced open the door to the flat at TIME and started the eviction process . According to the applicant , the bailiff summoned police officers , who took her to the police station where she stayed for TIME . The bailiff completed the eviction at TIME Some of the applicant ’s belongings were moved to her new home and the remainder were left at the flat .

On DATE , in the applicant ’s absence , the bailiff moved the rest of her belongings to her new home .

On DATE ORG of the Russian Federation refused to review the judgments of CARDINAL May and DATE by way of supervisory review . In particular , the letter addressed to the applicant stated as follows :

“ I hereby inform you that your complaint against the judgment of ORG of CARDINAL DATE concerning your claims against PERSON ... has been considered and dismissed . The grounds for dismissal have been communicated to you earlier at a meeting . ”

On DATE the applicant lodged a complaint against the bailiff , challenging the manner in which he had conducted her eviction .

On DATE the ORG of GPE found the bailiff ’s actions unlawful and ordered him to provide the applicant with an access to her belongings stored at her new home . In particular , the court found as follows :

“ The court established that bailiff PERSON conducted enforcement proceedings after CARDINAL p.m. although there was no imminent risk to anyone ’s life or health ... This fact was not denied by the representative of the [ bailiff ’s service ] . Nor was evidence presented to the court that [ the bailiff ] had obtained a written approval from a senior bailiff to carry out the enforcement proceedings after TIME

As it has been established by the court , [ the applicant ] had asked the bailiff to suspend the enforcement proceedings arguing that she was not feeling well and her son [ who had been subject to eviction too ] had been absent . PERSON to do so , alleging that [ such a suspension ] was exclusively within a court ’s competence .

Nevertheless , Article CARDINAL of LAW provides that bailiffs may suspend enforcement proceedings ... for a period not exceeding DATE ...

The [ bailiff ’s service ] failed to prove that the bailiff had notified [ the applicant and her son ] of the possibility of voluntary execution of the judgment concerning their eviction . Nor was any evidence submitted to show that the applicant ’s son had been notified of the eviction date . The list of the [ applicant ’s ] possessions was not properly compiled . This fact was not denied by the [ bailiff ’s service ] ...

The court has established that the case concerning the [ applicant ’s ] eviction was repeatedly subject to supervisory review . On DATE the Deputy President of ORG , Zh . , requested the file and the execution of the judgment was stayed . ORG of GPE dismissed the [ applicant ’s ] complaint only on DATE . Accordingly , the enforcement of the judgment had been stayed until DATE ...

However , bailiff PERSON failed to stay the enforcement proceedings following ORG decision to stay the execution of the judgment . Accordingly , the [ applicant ’s ] eviction was carried out during the period when the execution of the judgment had been stayed by the Deputy President of ORG .

Having regard to the above , the court concludes that the actions taken by bailiff PERSON should be found unlawful . ”

The decision was not appealed against and took effect on DATE .

On DATE the applicant brought an action against ORG of GPE for damages resulting from the bailiff ’s unlawful actions . She sought compensation for both pecuniary and non - pecuniary damage .

On DATE ORG of GPE rejected the applicant ’s claims . In particular , the court stated as follows :

“ Pursuant to [ the rules of civil procedure ] , each party should [ substantiate its allegations ] ...

[ The applicant ] did not present to the court any evidence to show that her property had been damaged or destroyed as a result of illegal actions taken by [ the bailiff ] .

As indicated on [ the certificate of the delivery to the applicant of her belongings ] , she did not make any comment or complain with regard to the delivery of her property .

No damage or destruction of the [ applicant ’s ] property has been documented after the applicant ’s re - housing on DATE ...

Having regard to the above , the court considers that the damage to and destruction of the [ applicant ’s ] property was not a result of illegal actions on the part of the bailiff ...

Accordingly , there is no causal link between the bailiff ’s illegal actions and the harm caused to the applicant ’s property ... and there is , accordingly , no reason to award damages to the applicant ...

The applicant did not present any evidence to substantiate her allegations that she had incurred non - pecuniary damage as a result of the infringement of her personal non - property rights ... through the illegal actions of the bailiff in the course of the eviction on DATE . ”

On DATE ORG upheld the judgment of DATE on appeal .

Enforcement proceedings should be conducted on DATE TIME can be carried out between TIME and TIME only in the event of an “ imminent risk to life or health ” . In such a case , the bailiff should obtain written permission from his superior ( LAW of LAW on enforcement proceedings of DATE as amended , in force at the material time , hereinafter “ the Law ” ) .

NORP The bailiff may suspend the enforcement proceedings for DATE at the debtor ’s request ( LAW of the PERSON ) .

The enforcement proceedings should be stayed if an authorised officer issues a relevant decision ordering the stay of the execution of the relevant legal act ( LAW ) .


The applicant , a NORP citizen born in DATE , is a pensioner residing in GPE . He is represented before the ORG by PERSON and PERSON , lawyers practising in GPE in GPE .

A.

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

On DATE the applicant entered voluntarily and for the CARDINALth time the psychiatric university clinic in GPE on account of his mental illness . On DATE he requested his release .

In the subsequent proceedings the applicant was represented by a lawyer .

On DATE an expert member of ORG ( PERSON ) of the GPE of ORG examined the applicant in hospital . As a result , ORG authorised on DATE his forced confinement in hospital ( zwangsweise GPE ) until DATE . In its decision the Commission referred to the applicant 's chronic illness , in particular his manic ideas ( PERSON ) and that he might endanger others . The Commission thereby relied on PERSON et seq . of ORG ( PERSON ) concerning detention for welfare purposes ( fürsorgerische GPE ; privation de liberté à des fins d’assistance ; see below , Relevant domestic law and practice ) .

On DATE the psychiatric university clinic requested the applicant ’s continuing psychiatric detention as his situation had not ameliorated . An expert member of ORG again examined the applicant on DATE and concluded that he suffered from a chronic mental illness . The expert noted that the applicant was ready to stay in the clinic until he had found a new apartment .

On DATE ORG authorised , with reference to the expert ’s examination of DATE , the applicant 's continuing forced confinement until he had found a new apartment or at the latest until DATE .

On DATE the applicant filed an appeal with ORG ( ORG ) of the GPE of GPE - Stadt , requesting his immediate release from the clinic or at least a finding that his stay in the clinic had been unlawful . He submitted , inter alia , that he had not been properly heard by the members of ORG .

ORG transmitted the appeal on DATE to ORG which , on DATE , filed its observations . The Commission noted that the applicant had agreed to stay in the clinic until he found a new apartment ; he could move about freely and also leave the clinic though he returned at TIME to sleep . As long as he was under medicaments there was no danger of endangering others , though this could change immediately if the medicaments were taken belatedly , or not at all .

On DATE the applicant was released from the clinic .

On DATE ORG declared the applicant 's appeal inadmissible as he had meanwhile been released and therefore lacked interest in his appeal ( fehlendes NORP ) . The ORG thereby referred to its constant case - law . To the extent that the applicant requested compensation in view of the alleged unlawfulness of his detention , the ORG noted that he had the possibility of filing a separate civil claim according to PERSON of ORG ( see below , Relevant domestic law and practice ) . The decision of ORG was served on DATE .

On DATE the applicant filed a public law appeal ( staatsrechtliche Beschwerde ) and an appeal ( GPE ) with ORG ( PERSON ) , claiming that he had a legal interest in his complaints , and requesting legal aid . In his appeal , he furthermore addressed the unlawfulness of his detention , in his public law appeal he complained about the length of the proceedings .

In a decision dated DATE and issued in respect of the applicant 's appeal , ORG dismissed his request for legal aid and imposed advance court costs of MONEY ( CHF ) on the applicant . The ORG found in particular that the appeal lacked prospects of success as the applicant had meanwhile been released . The ORG thereby referred to its case - law as well as a previous case in which it had already explained this case - law to the applicant ’s lawyer . As the applicant failed to pay the court costs , ORG declared the appeal inadmissible on DATE .

On DATE ORG rejected the applicant 's public law appeal . Insofar as the applicant complained of the length of the proceedings before the cantonal authorities , the ORG found that he lacked practical interest in his appeal as he had meanwhile been released .

B. Relevant domestic law and practice

Under the heading “ Detention for Welfare Purposes ” the Swiss Civil Code lists in Sections CARDINALa - f the grounds and procedures leading to such detention , including psychiatric detention . For instance , PERSON provides for a “ simple and speedy ” ( einfach und rasch ) judicial procedure in which the person is , if necessary , legally represented and , in first instance , there is an oral hearing . Under a separate heading “ Responsibility of Guardianship Organs ” the Civil Code lists in PERSON liabilities and ensuing procedures in guardianship matters . Here , PERSON , concerning “ Detention for Welfare Purposes ” provides , inter alia , that “ Whoever has been damaged by an unlawful deprivation of liberty is entitled to damages and , if justified by the severity of the breach , to satisfaction . ”

According to the case - law of ORG , a complaint about unlawfulness of such detention may be raised by means of a claim for damages , but not of a public law appeal or an appeal after release from detention . For instance , in a decision of DATE ORG held :

“ Il est de jurisprudence que le recours de droit public exige un intérêt actuel et pratique à ce que la décision attaquée soit annulée : le Tribunal fédéral doit trancher des questions concrètes , et non pas théoriques . L’intérêt actuel nécessaire fait défaut , en particulier lorsque l’acte de l’autorité a été exécuté ou est devenu sans objet ... Toutefois , le Tribunal fédéral renonce à faire d’un tel intérêt une condition de recevabilité du recours de droit public quand cette exigence empêcherait le contrôle de la constitutionnalité d’un acte qui peut se reproduire en tout temps et qui , en raison de sa brève durée , échapperait toujours à sa censure ...

En l’espèce , l’internement de la recourante a duré du CARDINAL au DATE . GPE recourante n’a dès lors plus d’intérêt actuel , puisque la mesure critiquée a pris fin . PERSON circonstances exceptionnelles qui permettent de renoncer à cette exigence ne sont pas réalisées . En matière de privation de liberté à des fins d’assistance , le séjour dans un établissement approprié n’est pas légalement limité à un bref laps de temps : il peut se prolonger tant que l’assistance personnelle ne peut pas être fournie d’une autre manière aux personnes indiquées à l’art . ORG . L’intérêt actuel peut donc exister encore au moment où le Tribunal fédéral est saisi d’un recours de droit public .

On ne saurait dire que celui qui a été relaxé après une mesure de privation de liberté à des fins d’assistance a encore un intérêt actuel à former un recours de droit public parce qu’il peut se prévaloir de l’illégalité du placement pour réclamer une indemnité . L’art . ORG CC donne droit à une indemnité à titre de dommages - intérêts et de réparation morale en cas de privation illégale de liberté ... ” ( ORG fédéral [ ORG ] CARDINAL I a CARDINAL et seq . ) .

This case - law also applies to other types of detention ( see ORG CARDINAL Ia CARDINAL ) and was confirmed in DATE ( ORG CARDINAL Ia CARDINAL ) . In the last mentioned decision , ORG furthermore generally found that a person who had been released from detention can , pursuant to LAW , institute separate proceedings for damages in which all complaints may be raised about the unlawfulness of detention


Violation of Article 5 - Right to liberty and security

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

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

On DATE the applicant , who since DATE had been sought under a wanted notice , was arrested and remanded in custody on suspicion that he had committed murder with CARDINAL accomplices .

The applicant ’s pre - trial detention was subsequently extended by decisions of ORG ( PERSON ) of DATE and DATE , CARDINAL May , DATE , and DATE .

The domestic court justified the applicant ’s pretrial detention by the existence of strong evidence against him and the likelihood that a severe penalty would be imposed in the case . The court also noted that it was necessary to carry out further investigations , such as obtaining evidence from new witnesses , psychiatric reports on the suspects and various forensic reports .

Meanwhile , on DATE the applicant was indicted on charges of robbery , manslaughter , distribution of drugs , assault and battery . There were CARDINAL other defendants in the applicant ’s case . The prosecutor asked the trial court to examine CARDINAL witnesses and to read out the testimonies of another CARDINAL witnesses .

On DATE the trial court decided that certain procedural shortcomings had occurred in the proceedings and returned the bill of indictment to the prosecutor . On DATE a rectified bill of indictment was filed with the court .

The first hearing in the applicant ’s case took place on DATE . Subsequently , CARDINAL hearings were held by the trial court . CARDINAL hearing was adjourned due to the absence of defendants .

DATE the applicant was serving a prison sentence imposed by ORG in a separate case .

On DATE the ORG convicted the applicant on several counts and sentenced him to DATE imprisonment .

Pending appeal , the applicant ’s detention was extended by decisions of the Gdańsk Regional Court of DATE and of ORG ( Sąd Apelacyjny ) of DATE and DATE .

The courts reiterated that there was strong evidence against the applicant and the likelihood that a severe penalty would be imposed in the case . In addition , the authorities noted that for the above reasons the applicable law allowed for a presumption of risk that the applicant would obstruct the proper course of the proceedings and the latter could only be ensured by applying the preventive measure in question .

Meanwhile , on DATE the ORG partly quashed the judgment and remitted the case to ORG in that part . The first - instance judgment was upheld , however , with respect to a few offences and in that connection the applicant was sentenced to CARDINAL years’ imprisonment . The court deducted from the imposed sentence the term of the applicant ’s detention preceding the conviction , namely DATE , DATE and DATE comprising CARDINAL periods : from DATE to DATE and from DATE to CARDINAL DATE .

Subsequently , the applicant ’s detention was extended by the decision of ORG of DATE and then , by decisions of ORG of DATE , CARDINAL DATE and DATE ( upheld on DATE by ORG ) , DATE , CARDINAL DATE ( upheld on DATE ) , CARDINAL DATE ( upheld on DATE ) , CARDINAL DATE and DATE .

The authorities continued to briefly reiterate the reasons previously given to justify the applicant’vis - à - vis the position of each individual defendant . Thus , the fact that , in the instant case , a few of the applicant ’s co - defendants had been released pending trial did not have any bearing on the applicant ’s situation . Similarly , the court observed that the argument that there was strong evidence against the applicant , which had been relied on to justify the preventive measure , did not undermine the principle of the presumption of innocence in criminal proceedings . Finally , the court admitted that the applicant ’s detention had been lengthy ; however , its length was considered proportionate to the penalty envisaged under domestic law for the offences with which he had been charged .

Meanwhile , on DATE and CARDINAL DATE the ORG refused the applicant ’s request to have his detention lifted in view of his allegedly difficult family situation .

The first hearing at the re - trial was held on DATE . Subsequently , the first - instance court held DATE and adjourned CARDINAL hearings .

In the meantime , namely from DATE to CARDINAL DATE the applicant was serving a prison sentence imposed by PERSON in a separate case .

On DATE the ORG convicted the applicant of CARDINAL offences and sentenced him to DATE imprisonment . The court deducted from the imposed sentence the term of the applicant ’s detention from DATE and DATE , which added up to DATE and DATE .

On DATE the ORG quashed the above judgment , inter alia , in the part concerning CARDINAL charges against the applicant and remitted the case to ORG in that part . The firstinstance judgment was upheld , however , with respect to one offence and in that connection the applicant was sentenced to CARDINAL years’ imprisonment . The appellate court deducted from the imposed sentence the term of the applicant ’s detention preceding the conviction , namely DATE , DATE comprising CARDINAL periods : from DATE until DATE and from CARDINAL DATE until DATE . It is unclear on which date the applicant finished serving the remainder of his prison sentence .

The applicant ’s criminal case is currently pending before the firstinstance court and he remains in detention by virtue of subsequent court decisions .

On DATE the applicant lodged a complaint about the unreasonable length of proceedings under LAW of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) . The applicant submitted that his criminal case had been pending before ORG for too long .

CARDINAL .

The relevant domestic law and practice concerning the imposition of pre - trial detention on remand ( aresztowanie tymczasowe ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII , and the judgment in the case of GPE v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL

In the framework of the procedure before ORG ( see paragraphs CARDINAL and CARDINAL below ) the NORP Government supplied statistical data concerning the number and the length of pre - trial detentions ordered in DATE by the domestic courts . A more detailed rendition of the relevant statistical data can be found in the ORG ’s judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL , § CARDINAL , DATE ) .

A number of amendments to LAW ( Kodeks postępowania karnego ) , designed to streamline criminal proceedings , entered into force on DATE ( PERSON of DATE on amendments to LAW ; Journal of Laws of DATE , No . CARDINAL , item CARDINAL ; PERSON o zmianie ustawy - Kodeks postępowania karnego oraz niektórych innych ustaw ) . Those amendments strengthened the powers of the authorities to discipline the participants . A more detailed rendition of the recent amendments to the legislation can be found in the ORG ’s judgment given in the case of ORG v. GPE ( see ORG v. GPE , cited above , § § DATE and DATE ) .

According to the information supplied by ORG to ORG , in addition the NORP trial courts and prosecution authorities have undertaken a series of practical measures in order to organise criminal proceedings in a more efficient manner , i.e. by scheduling time - limits for hearings well in advance , holding hearings on DATE or severing charges against co - accused to separate proceedings under LAW of LAW if the joint examination proves difficult and time - consuming .

On CARDINAL DATE the ORG ( PERSON ) adopted the “ Plan of Actions of the Government for the execution of judgments of ORG in respect of GPE ” ( Program PERSON w sprawie wykonywania wyroków PERSON ) . By virtue of that document the Minister of ORG was obliged to disseminate among judges and prosecutors on a regular basis information on the standards concerning the length of pre - trial detention stemming from the LAW and the case - law of the ORG in NORP cases and to include this topic in the programmes of workshops and seminars for judges .

On DATE ORG adopted an Interim Resolution concerning the judgments of ORG in CARDINAL cases against GPE relating to the excessive length of detention on remand ( “ the DATE Resolution ” ) . It concluded that the number of the ORG ’s judgments finding GPE in violation of LAW on account of the length of pre - trial detention revealed a structural problem . A more detailed rendition of the DATE Resolution can be found in the ORG ’s judgment given in the case of ORG v. GPE ( see ORG , cited above , § CARDINAL )

On DATE ORG Commissioner for Human Rights released the Memorandum to the NORP Government concerning , among other issues , the use of the pre - trial detention in GPE . The Commissioner referred to the fact that the ORG had repeatedly found violations of LAW in respect of GPE and stressed that examples of cases brought to the ORG where pre - trial detention had lasted DATE were not uncommon . The Commissioner urged the NORP authorities to review the application and functioning of pre - trial detention in NORP law . A more detailed rendition of the relevant parts of the memorandum can be found in the above - mentioned ORG judgment ( see ORG v. GPE , cited above , § CARDINAL ) .


The applicant is a NORP citizen , living in PERSON , GPE .

may be summarised as follows .

A.

On DATE the Tomaszów Mazowiecki District Prosecutor conditionally discontinued criminal proceedings against the applicant instituted on suspicion of his having constructed a building on his farm contrary to the terms of a building permit he had received , considering that the applicant ’s offence was of minor importance and that it was not justified to proceed further .

On DATE the ORG municipality ordered the applicant to stay the construction works , to draw up an inventory of the works carried out to date and to request the municipality to give an administrative decision allowing for the works to be continued . The municipal authority considered that the applicant had failed to comply with the terms of the building permit in that he had changed the placement of the building on the plot , changed the dimensions of the building , had a basement constructed and had added windows and doors not provided for by the permit .

The applicant ’s neighbour GPE appealed against this decision .

On DATE the municipal office inspected the construction site . On DATE ORG set the decision of CARDINAL DATE aside and ordered that the case be reconsidered . The administrative authority was of the view that the applicable legal provisions required that a building intended to serve for husbandry purposes should be located QUANTITY from the nearest well . Following the changes effected by the applicant in relation to the building permit , the building was to be situated QUANTITY from a well located on the adjacent plot of GPE Moreover , the applicant had enlarged the building and it was planned that it would serve , inter alia , as a pigsty for CARDINAL pigs , instead of CARDINAL as foreseen by the permit . Thus , it was necessary to hold an administrative hearing in order to establish whether the nuisance which these changes could cause to his neighbours would be within the limits prescribed by the construction laws .

On CARDINAL DATE the ORG municipality ordered the applicant to partially demolish the building , to bring it into conformity with the original building permit , and to ensure that the distance between the part of the building designed for husbandry and the well on the adjacent plot would be not QUANTITY .

The applicant appealed . On DATE the ORG upheld the decision , considering that it was in conformity with the law .

On DATE , ORG refused to grant the applicant retrospective leave to appeal against this decision .

Apparently the proceedings were reopened later . On DATE the Minister of Construction again ordered that the building be demolished . On DATE ORG upheld this decision .

On DATE , DATE , DATE and CARDINAL DATE , ORG imposed fines on the applicant , in order to compel him to demolish part of the building , in accordance with the decision of CARDINAL DATE . On DATE ORG also imposed a fine on the applicant for the regulatory offence of failure to comply with an administrative decision .

On DATE ORG issued an injunction , authorising an outside company to demolish the applicant 's building , at the applicant ’s expense .

The applicant lodged a complaint concerning the enforcement decision with ORG in PERSON . On DATE the decision under appeal was upheld by ORG , which first took into consideration the applicant ’s failure to comply with the demolition order of DATE . The authority further considered that in view of the fact that the administrative enforcement proceedings had been pending for a long time and that the applicant had not taken any steps to regularise his situation , the administrative authority was justified in ordering the demolition by an authorised company , as provided by ORG .

The applicant lodged an appeal with ORG . On DATE the ORG refused to entertain the applicant 's appeal , considering that under LAW no appeal to the court lay against an injunction ordering an enforcement of a non - pecuniary administrative obligation , which the party to the proceedings refused to carry out .

B. Relevant domestic law

ORG review of administrative decisions

Article CARDINAL § CARDINAL of LAW , as applicable at the relevant time , provided that an appeal could be lodged with ORG against a second - instance administrative decision on the merits on the ground that the decision was not in conformity with the law .

LAW states that ORG could set the decision aside wholly or in part if it established that the decision was issued in breach of substantive law , that the proceedings leading to the decision were flawed with a deficiency which led to the decision being null and void , or if such procedural shortcomings had occurred in the proceedings leading to the decision which would justify their reopening .

Enforcement of administrative decisions

LAW of the Administrative Enforcement Act of DATE ( hereafter “ the LAW ” ) sets out the principles of administrative enforcement concerning non - pecuniary obligations . Provisions relating to enforcement by way of imposing fines are contained in Part CARDINAL , whereas those concerning injunctions to carry out the obligations on behalf and at the expense of the parties to the proceedings are contained in Part CARDINAL .

Article CARDINAL § CARDINAL of the LAW provides that a fine can be imposed in order to compel a person to comply with an obligation to bear or to desist from certain acts , or to carry out certain acts , particularly acts which , due to their nature , can not be carried out by other persons . Such fines can be imposed repeatedly .

Pursuant to LAW , an injunction to carry out an administrative obligation can be issued when the administrative enforcement proceedings are being conducted in respect of a non - pecuniary obligation which can be carried out on behalf of the party and at its expense .

The person against whom administrative enforcement proceedings are being conducted is entitled to lodge a complaint against the decisions given in such proceedings with the organ conducting the proceedings .

Relevant provisions of the Law on Construction

LAW ( repeated in the same form in LAW of DATE , which entered into force on DATE ) provided , insofar as relevant :

“ The competent organ shall … order that a building , or part of a building , be demolished if it is under construction or has been constructed without an appropriate permit or notification thereof , or in breach of the terms of the permit … ”


Violation of Art. 6-1;Violation of Art. 13

The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a civil claim with ORG ( “ the ORG ” ) against ORG A-CARDINAL for pecuniary and non - pecuniary damage .

On DATE the court decided to discontinue the proceedings as a result of the applicant ’s failure to attend the hearings .

On DATE the applicant requested an extension of time to lodge the appeal against the above ruling and submitted that he had become aware of the impugned ruling in DATE .

On DATE ORG quashed the ruling of DATE . It remitted the case for examination by the first - instance court , having found that the applicant had not been duly notified of the time and date of the hearings . ORG ruled that the first - instance court had erred in its decision to discontinue the proceedings .

On DATE ORG considered that it was not competent to deal with the case because it lacked jurisdiction ratione materiae . It discontinued the civil proceedings and held that the case should be examined within the framework of the administrative proceedings .

Following examination of the applicant ’s appeal on its merits , on DATE ORG quashed the ruling of DATE . It held that the first - instance court had erred in its decision to discontinue the proceedings and considered that the case should be examined within the framework of civil proceedings . ORG remitted the case for examination to ORG .

On DATE ORG decided to discontinue the proceedings because of the applicant ’s failure to attend the hearings .

On DATE the ORG quashed the ruling of ORG on the ground that the applicant had not been duly notified of the time and date of the hearings and remitted the case for examination to the first - instance court .

On DATE ORG for the third time decided to discontinue the proceedings because of the applicant ’s repeated failure to attend the hearings . The applicant did not lodge an appeal against that decision .

In the course of the proceedings QUANTITY hearings were adjourned , out of which CARDINAL times because of the applicant ’s failure to attend the hearings , once because of the failure of the respondent ’s representative and CARDINAL times because of the parties’ failure to attend the hearings . On CARDINAL occasions the hearings were adjourned for a total period of DATE because of the judge ’s or secretary ’s absence or for technical reasons . The applicant adjusted his claims once .


Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE . The respondent Government are represented by their Agent , Mr PERSON of ORG .

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

The applicant is a NORP national . His parents , PERSON and PERSON , bought CARDINAL properties in GPE in DATE and DATE . In DATE they left PERSON for GPE , later went to GPE and finally settled in GPE where they lived during DATE of the Second World War . In DATE the applicant joined the Polish ORG under NORP command in GPE and was honourably discharged in DATE . Later he lived in GPE . In DATE his parents moved to GPE , where they died in DATE . The applicant underlines that he and his parents never relinquished NORP citizenship and used documents issued by ORG , although they were entitled to obtain GPE citizenship , and the applicant NORP citizenship , as he was married to a NORP . He claims that they all wished to return to GPE but were held back by the social and political situation in the country .

After the war the properties were taken over by ORG in GPE as having been abandoned . The owners took legal steps to repossess the property , and on DATE and CARDINAL DATE ORG ( Sąd Grodzki ) delivered decisions ordering the return of the possession of the properties to the applicant ’s parents .

ORG thereupon issued relevant decisions on DATE and DATE to turn the properties over to the owners . The possession of the properties was taken over on their behalf by their authorised representative ORG and later by the applicant ’s father , who came to GPE for this purpose in DATE . Subsequently the applicant ’s father left the properties under the management of ORG ) .

In DATE and DATE ORG requested ORG to declare that it had acquired ownership of the property by way of prescription in accordance with LAW on abandoned properties . The court accepted the plaintiff ’s submission that the properties had been abandoned within the meaning of this Decree and that the owners were at that time of unknown abode . It appointed a representative for them . Accordingly , ORG became the owner of the property .

In DATE the land owned by ORG was , in the framework of a countrywide legal reform of local government , transferred to local municipalities .

On DATE the applicant ’s lawyer asked ORG for access to the files of the above proceedings and access was granted on DATE . On DATE the applicant requested that the proceedings concerning the acquisition by prescription terminated by the decisions of DATE and DATE be reopened . The applicant argued that these proceedings were invalid in law as they were flawed by serious procedural shortcomings , in particular the fact that the owners had not been properly represented and the court had not taken any steps to establish their address or to verify whether the properties had actually been abandoned within the meaning of the DATE Decree . The applicant submitted that his GPE address was indicated in the land and mortgage register of the properties and that they had lived there until DATE after returning to GPE in DATE . Later , until DATE , a relative of theirs had resided at the same address .

The GPE filed an alternative motion for a declaration that they had acquired ownership of the property by way of prescription .

On DATE ORG reopened the impugned proceedings and quashed the decisions of DATE and DATE . The court considered that it had been impossible for the owners to have their rights properly represented in the proceedings . ORG established that in those proceedings that court had failed to publish an announcement about the appointment of a representative for the applicant ’s parents in their absence , as required by the provisions in force at that time . Further , in both sets of proceedings the lawyer representing the owners of the properties had been appointed at the same hearing at which the final decision had been delivered . Therefore , he had not been able to prepare the case and his representation of the ORG interests had been illusory . This constituted sufficient grounds for finding the proceedings invalid in law . Moreover , the court considered that in the light of the decisions of ORG and ORG of DATE and DATE the assertion that both properties had been abandoned was ill - founded , as the applicant ’s parents were the officially certified owners and possession of the properties had been officially transferred to them in DATE . Therefore , ORG requests of DATE and DATE were to be dismissed , the decisions quashed and the proceedings invalidated . Lastly , the court found that the municipality ’s claim for a declaration that it had acquired ownership of the properties by way of acquisitive prescription in accordance with existing provisions could not be considered simultaneously and had to be examined in separate proceedings .

Subsequently the GPE lodged a request with ORG for a declaration that on DATE it had acquired ownership of the property by way of prescription . The municipality argued that when the DATE and DATE decisions were given , its management of the properties became an autonomous possession cum animo res sibi habendi , which led to an acquisition by prescription after DATE provided for by law .

The ORG heirs , among them the applicant , submitted that the social and political situation in GPE had prevented the applicant from coming to GPE DATE . In DATE his father had asked the NORP Consul to extend the validity of his NORP passport but had only been offered a CARDINAL - way passport , without the possibility of leaving GPE . Their lawyer in GPE had died in DATE and they had not known anyone else who could take care of the matter .

On DATE ORG held that the municipality had acquired ownership of the property by prescription on DATE . The court established that the applicant had come to GPE in DATE to file a motion to verify the contents of the land and mortgage register . The court refused to accept the applicant ’s argument that the social and political situation in GPE had prevented him from coming to GPE DATE and that this circumstance should have been construed as force majeure , preventing the running of the period of adverse possession by the ORG . The court refuted the municipality ’s assertion that the period of adverse possession had begun to run from the decisions of DATE and DATE . It considered that the period had begun to run only from DATE as provided for by the transitional provisions of the DATE LAW . Therefore , even assuming bad faith on the part of the municipality , they had acquired ownership of the property on DATE .

The applicant appealed .

On DATE ORG dismissed the appeal . The court pointed out that ORG , when establishing the facts , had overlooked the decisions of DATE under which possession of the properties had been returned to the applicant ’s parents . The properties should therefore not have been regarded as having been abandoned within the meaning of the DATE Decree on abandoned properties . However , the court fully shared the conclusions and reasoning of the first - instance court in that from the moment the decisions of DATE and DATE were delivered , the ORG ’s management of the properties turned into an autonomous possession , and the period of prescription began to run from DATE and came to an end on DATE at the latest , before the applicant requested to have the proceedings reopened . ORG emphasised that declaring those proceedings invalid could not result in the invalidation of their legal consequences .

On DATE ORG refused to entertain the applicant ’s cassation appeal , finding that no serious legal issue arose in the case which would justify the examination of the appeal .

The Polish Civil Code , Book CARDINAL entitled Ownership and Other Property Rights , provides for various property - like rights for a possessor in Title IV : Possession . The relevant Article reads :

Article CARDINAL :

The possessor of property is both the person who actually controls [ holds ] the property as an owner ( an autonomous possessor ) and the person who actually controls the property as a usufructuary , the holder of a lien , a lessee , or a tenant or who has other rights associated with a certain control over another person ’s property ( a dependent possessor ) .

Acquisition by prescription is regulated by LAW . At the relevant time it provided that a person could acquire ownership of land after CARDINAL years’ continuous possession as long as this had been in good faith throughout the entire period . Otherwise , a longer period of DATE applied .

Once these conditions were met , the person in possession could apply to ORG for a declaration that , as of a specific date , he had acquired ownership of the property .

If the prescription period had begun to run before the entry into force of the LAW , according to the transitional measures , the new provisions were to be applied and the term began to run from the date of entry into force of the LAW , which was DATE . Previously applicable provisions had provided for DATE period of continuous possession in bad faith .

Under NORP law judgments of ORG are not directly binding on the courts . However , ORG may deliver a resolution , which aims to interpret the provisions of law and serves as a kind of instruction for lower courts . When such a resolution is delivered by a chamber of CARDINAL judges , the resolution is considered a general rule of law and should be followed by domestic courts when applying the law .

On DATE ORG delivered a resolution ( III CZP DATE , OSP CARDINAL/CARDINAL/CARDINAL ) providing as follows :

“ The period of holding a property on the strength of an administrative decision which was later declared null and void because it was delivered in flagrant breach of the law can not be counted by ORG towards the period of acquisition by prescription . ”

The court found that acquisition of property on the basis of an unlawful action would constitute an abuse of right . It further considered that :

“ ... a contrary conclusion would be at variance with common sense . The ORG quashes as null and void a decision upon which the ORG had unlawfully become the owner of the property , and at the same time the ORG , nevertheless , claims to be the owner of this property under the provisions on adverse possession ; whereas that very null and void decision was the basis for acquiring the property through prescription , since it was as a result of that decision that the ORG became a possessor . ”

On DATE a chamber of CARDINAL judges of ORG delivered a resolution ( III CZP CARDINAL/CARDINAL , OSNC CARDINAL/CARDINAL/CARDINAL ) providing that the period during which the ORG held a property on the basis of a property title subsequently declared non - existent could not be counted towards the period of adverse possession . The court understood the term “ a property title ” as every event of legal significance or document which , under the provisions of civil law , might result in the acquisition of a property . Furthermore , ORG noted that management of property was not equivalent to autonomous possession within the meaning of the provisions on adverse possession . If the ORG held a property as a consequence of its public functions , it managed the property in the public law sense of the term and did not “ possess ” it within the meaning of LAW . Therefore , the period of management could not be counted towards the period of adverse possession , which had to be based on autonomous possession and not on any other way of holding the property ( for example dependent possession ) .

The case - law of ORG which developed after this resolution is on the whole in line with the above resolution . For example , on DATE ORG issued a decision ( SN III CZP CARDINAL/CARDINAL ) finding that de facto control of an abandoned property by the ORG could not be regarded as possession cum animo rem sibi habendi , as until the time the ORG acquired ownership of the property it acted as a manager and not as an owner . Most importantly , the resolution of DATE has not been overturned by another resolution of CARDINAL judges and has been cited by most authors of legal commentaries as the conclusive authority on adverse possession by the ORG of properties owned by individuals .

While there is general agreement that a defective administrative decision can not lead to an acquisition by prescription of property by the ORG , CARDINAL judgment reached the same conclusion with regard to the consequences of adverse possession acquired on the strength of a flawed judicial decision .

According to another resolution of ORG of DATE ( III CZP CARDINAL/CARDINAL ) , ORG could acquire ownership of a property by adverse possession , if it possessed it on the strength of a judicial decision later quashed in an extraordinary appeal procedure . ORG was of the view that , contrary to administrative proceedings , normally the judicial activity of civil courts did not constitute an exercise of the ORG ’s public powers . However , the historical circumstances in which property had been expropriated by the ORG after the Second World War had to be taken into consideration . In this context , it could not be excluded that judicial decisions resulting in the ORG acquiring ownership of private properties involved special circumstances brought about by the ORG , abusing its public powers and the law to achieve the desired results in the sphere of civil law .

Hence , each case had to be examined individually to establish whether the legally unjustified interference of the ORG was such that it made it practically impossible for a party to challenge the ORG ’s will using the normal protection measures provided for by civil law .

This opinion was further interpreted by ORG in a decision of CARDINAL DATE ( V ORG CARDINAL/CARDINAL ) , which stated that it had to be examined in each case whether in the given circumstances a party had the possibility to put right the relevant court decision .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE .

On DATE ORG ( ORG ) issued a warrant for the applicant 's arrest .

On DATE the applicant was arrested in GPE and remanded in custody at FAC .

On DATE ORG issued an indictment against the applicant on several counts of trafficking and importing narcotic substances ( cannabis and marihuana ) .

On DATE the Lübeck ORG ( Landgericht ) opened the applicant 's trial .

On DATE the ORG of Appeal quashed the arrest warrant for failure to comply with the obligation to expedite criminal proceedings where an applicant is in detention pending trial . Following his release from detention , the applicant returned to the GPE .

Following negotiations with the applicant 's legal representatives , ORG gave the applicant an assurance that the prosecution service would institute proceedings under LAW on ORG ( NORP Treaty Series no . CARDINAL , “ the Transfer Convention ” ) if the applicant returned to GPE for his trial and confessed to the alleged crimes .

During the oral hearing before ORG , which took place on DATE , the applicant , who had voluntarily returned from the GPE , gave a full confession . ORG gave the following statement , as recorded in the transcript of the hearing :

“ In this case the current view is that there are no objections to the transfer of the defendant to the GPE under LAW DATE or against the application of LAW . ”

Following the hearing , ORG , on the basis of the applicant 's confession , convicted him on DATE counts of unlawful importing and unlawful trafficking of narcotic substances , and sentenced him to DATE imprisonment .

The court accepted as mitigating factors the applicant 's confession and the fact that he had voluntarily returned from the GPE in order to stand trial . It considered that the oral hearing could probably not have taken place without his cooperation . The applicant having waived his right to appeal , the judgment became final on DATE .

Following the hearing , the applicant returned to the GPE .

On DATE the applicant applied to the Schleswig - Holstein Ministry of Justice for the institution of transfer proceedings under LAW . In his pleadings , the applicant 's counsel relied upon the agreement between the defence , the criminal chamber of ORG , and ORG at ORG .

On DATE ORG forwarded the application to the Head of ORG ( Leitender Oberstaatsanwalt ) in PERSON with a request for him to submit a report .

On DATE the Head of the Chief Public Prosecutors stated that , as a general rule , execution of sentence in the home country was not an option in such serious cases of drug trafficking . However , the special circumstances of this particular case justified lodging an application for execution assistance with the NORP ORG .

On DATE the ORG wrote to the NORP ORG enquiring whether it would be possible for it to continue the execution of the NORP sentence directly under LAW ( a ) of the LAW between the Member GPE of ORG on ORG CARDINAL DATE ( “ LAW ” – see International Treaties below ) . ORG expressed the opinion that LAW was not applicable , as the applicant was not in NORP custody .

On DATE the NORP ORG declared that in principle there was a willingness to allow the sentence to be executed in the GPE . However , in the GPE continued enforcement was allowed only in exceptional circumstances , which did not apply in the present case . ORG therefore requested its NORP counterpart to approve the conversion of the prison term imposed on the applicant , under LAW ( b ) of LAW .

On DATE the ORG requested the Head of the Chief Public Prosecutors to state his position . By a letter dated DATE the Head of the Chief Public Prosecutors stated that he was opposed to a formal application for execution assistance because the GPE would make the execution dependent on a conversion of the sentence .

On DATE ORG informed the applicant that it would refrain from lodging a formal application with the GPE .

In DATE the applicant was summoned to serve his sentence . His requests for the suspension of the execution of his sentence until a final decision on his transfer request was given were unsuccessful .

On DATE the applicant lodged a constitutional complaint against the ORG 's decision not to institute transfer proceedings under LAW .

On DATE an arrest warrant was issued against the applicant as he had failed to start serving his sentence .

On DATE ORG , sitting as a panel of CARDINAL judges , declined to consider a constitutional complaint lodged by the applicant . According to ORG , the applicant had failed to exhaust domestic remedies . With regard to domestic remedies , ORG found as follows :

“ The applicant has no right to a judicial review of the exercise of discretion in so far as the decision is based on general , in particular foreign policy , considerations ... , the evaluation of which belongs to the core area of Government . However , the judicial review of discretionary powers in respect of law enforcement remains unaffected thereby , in particular with regard to the statement made on DATE of the trial by ORG ... It can not be denied that uncertainties may remain for the person seeking justice in this connection in view of the previously disputed contestability of decisions by the authorising authority , as well as in regard to the possible legal remedies . Sufficient account is taken of the possible uncertainties with regard to the legal remedy on account of the possibility of a binding referral under section CARDINALa LAW . It is reasonable to expect the applicant to have recourse to a disputed legal remedy . ”

According to ORG , it was for the lower courts to decide which court was competent in the applicant 's case . These courts had further to consider whether the impugned act interfered with the applicant 's right to a fair trial or with the principle of protection of legitimate confidence . Notwithstanding the possibility of lodging a fresh request , the fact that the relevant time - limits for lodging appeals might in the meantime have expired did not lead to the constitutional complaint being admissible .

NORP This decision was served on the applicant 's counsel on CARDINAL DATE .

On DATE the applicant lodged a fresh request with ORG that execution of his sentence be taken over under LAW of LAW .

A warrant is still out against the applicant for having failed to start serving his sentence .

Section CARDINALa § CARDINAL of LAW ( Gerichtsverfassungsgesetz ) reads as follows :

“ If the invoked court is not competent to adjudicate the case , the court shall decide this of its own motion after hearing the parties and shall , at the same time , refer the legal dispute to the competent court ... The decision shall be binding ... on the court to which the legal dispute is referred . ”

Section CARDINAL of LAW to LAW , in so far as relevant , provides as follows :

“ ( CARDINAL ) Upon request , the ordinary courts shall decide on the lawfulness of directives , orders or other measures taken by the judicial authorities to regulate individual issues in the sphere of the civil law ... and the criminal law .

( CARDINAL ) By means of a request for judicial determination an order requiring a judicial or executive authority to take a decision it has omitted or refused to take may also be sought . ”

In accordance with section CARDINAL of the same LAW , the request has to be lodged within DATE of communication of the impugned administrative act . If a party has been prevented from complying with this time - limit through no fault of their own , they can lodge a request to restore the previous time - limit . However , such a request is inadmissible if it has been lodged DATE after expiry of the time - limit , with the exception of cases of force majeure ( LAW ) .

The German Act on International Mutual Assistance in Criminal Matters does not explicitly define the role of the enforcement authority in the transfer proceedings . The LAW merely provides that the authorising authority , that is ORG – which can delegate its competence to ORG DATE must send a transfer request to the administering State . If the decision is taken by ORG , that Ministry , after consulting the public prosecutor 's office , exercises discretion with regard both to foreign policy considerations and law - enforcement issues .

The aim of the Convention on ORG ( “ LAW ” LAW no . CARDINAL ) is to develop international cooperation in the field of criminal law and to further the ends of justice and the social rehabilitation of sentenced persons . According to the LAW , foreigners who are deprived of their liberty as a result of their commission of a criminal offence should be given the opportunity to serve their sentence within their own society .

Article CARDINAL ( “ Effect of transfer for administering ORG ” ) reads as follows :

“ CARDINAL . The competent authorities of the administering State shall :

( a ) NORP continue the enforcement of the sentence immediately or through a court or administrative order , under the conditions set out in LAW , or

( b ) convert the sentence , through a judicial or administrative procedure , into a decision of that ORG , thereby substituting for the sanction imposed in the sentencing ORG a sanction prescribed by the law of the administering ORG for the same offence , under the conditions set out in LAW .

The administering ORG , if requested , shall inform the sentencing ORG before the transfer of the sentenced person as to which of these procedures it will follow .

The enforcement of the sentence shall be governed by the law of the administering ORG and that ORG alone shall be competent to take all appropriate decisions .

Article CARDINAL ( “ Continued enforcement ” ) provides :

“ CARDINAL . In the case of continued enforcement , the administering State shall be bound by the legal nature and duration of the sentence as determined by the sentencing ORG .

NORP If , however , this sentence is by its nature or duration incompatible with the law of the administering State , or its law so requires , that ORG may , by a court or administrative order , adapt the sanction to the punishment or measure prescribed by its own law for a similar offence . As to its nature , the punishment or measure shall , as far as possible , correspond with that imposed by the sentence to be enforced . It shall not aggravate , by its nature or duration , the sanction imposed in the sentencing ORG , nor exceed the maximum prescribed by the law of the administering ORG . ”

LAW Conversion of sentence ” ) reads as follows :

“ CARDINAL . In the case of conversion of sentence , the procedures provided for by the law of the administering ORG apply . When converting the sentence , the competent authority :

( a ) shall be bound by the findings as to the facts insofar as they appear explicitly or implicitly from the judgment imposed in the sentencing ORG ;

( b ) may not convert a sanction involving deprivation of liberty to a pecuniary sanction ;

( c ) shall deduct the full period of deprivation of liberty served by the sentenced person ; and

( d ) shall not aggravate the penal position of the sentenced person , and shall not be bound by any minimum which the law of the administering ORG may provide for the offence or offences committed .

NORP If the conversion procedure takes place after the transfer of the sentenced person , the administering State shall keep that person in custody or otherwise ensure his presence in the administering State pending the outcome of that procedure . ”

Article CARDINAL

Determination of the custodial penalty

“ CARDINAL . Where the transfer or enforcement of a custodial penalty is accepted , the competent authorities of the administering State shall :

( a ) enforce the penalty imposed in the sentencing ORG immediately or through a court or administrative order ...

or

( b ) through a judicial or administrative procedure convert the sentence into a decision of the administering ORG , thereby substituting the penalty imposed in the sentencing ORG by a penalty laid down by the law of the administering ORG for the same offence ... ”


The applicant , who is of GPE origin , was born in DATE in GPE ) and is currently living in ' s - Hertogenbosch . She is also known to the GPE authorities under the names of PERSON , PERSON , ORG and ORG .

As a young child and after the death of her mother , the applicant left GPE with her father to travel . In DATE , the applicant contracted a traditional GPE marriage with PERSON , who was born in GPE in DATE and who was living in the GPE where he had been granted a residence permit in DATE . His nationality , if any , is unknown .

On DATE , the applicant – under the name GPE DATE was expelled from the GPE to GPE for unspecified reasons .

On DATE , PERSON was granted a GPE permanent residence permit ( vestigingsvergunning ) which he holds to date . On DATE , the applicant – under the name GPE DATE applied for a GPE residence permit for the purposes of stay with her partner PERSON PERSON in the GPE . In DATE , the applicant and PERSON had a son named GPE

On DATE , the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the applicant 's request for a residence permit , as PERSON did not meet the minimum income requirement under the applicable immigration rules , and as it had not been demonstrated that he was actually cohabiting with the applicant . After a request for reconsideration ( herzieningsverzoek ) filed on DATE was denied suspensive effect as regards the applicant 's removal from the GPE , the applicant left the GPE for an unknown destination on or around DATE .

On DATE , the applicant returned to the GPE where , on DATE , she married PERSON under GPE civil law . On DATE , submitting a passport in the name of GPE issued on DATE in GPE ) by the authorities of ORG and valid until DATE , the applicant filed a request for a GPE residence permit for the purpose of stay with her spouse in the GPE . However , this application for a residence permit was not considered for DATE .

DATE and DATE , the applicant was convicted on CARDINAL occasions of ( aggravated ) theft and/or robbery and sentenced to terms of imprisonment varying from DATE to DATE .

On DATE , the applicant was heard by the police in connection with the intention to impose an exclusion order on her by declaring her an undesirable alien ( ongewenst vreemdeling ) .

In a letter of CARDINAL DATE , in which he referred to previous letters sent on DATE and DATE , the applicant 's lawyer complained to the Deputy Minister of ORG about the failure to determine the applicant 's request for a residence permit .

NORP By letter of CARDINAL DATE , the Deputy Minister informed the applicant 's lawyer that no letters dated CARDINAL DATE and DATE had been received , that the applicant 's request of CARDINAL DATE had been mislaid due to an internal office removal , that the applicant had been invited on DATE to report to ORG ) to provide fresh information concerning her request for admission to the GPE , and that on DATE she had been heard in connection with the intention to impose an exclusion order . The Deputy Minister admitted that the determination of the applicant 's request for admission had lasted considerably longer than desirable and apologised for this delay . The applicant 's case would now be determined within DATE .

On DATE , the Deputy Minister gave a decision rejecting the applicant 's request for a residence permit . The Deputy Minister noted at the outset that the applicant did not hold the required , valid provisional residence visa ( machtiging tot voorlopig verblijf ) issued by a GPE diplomatic or consular mission in the applicant 's country of origin . Further noting that PERSON sole income consisted of benefits under LAW ( PERSON ) , the Deputy Minister held that PERSON did not comply with the minimum income requirement under the applicable immigration rules whereas he was not dispensed of this requirement . Noting that the applicant had been convicted and sentenced to imprisonment on several occasions , the Deputy Minister also found that public - order considerations opposed granting her request for a residence permit . In so far as the applicant had relied on the so - called “ DATE policy ” ( driejarenbeleid ) , according to which a residence title could be granted if a request for a residence permit had not been determined within DATE for reasons not imputable to the petitioner and provided that there were no contra - indications such as , for instance , a criminal record , the Deputy Minister held that the applicant was not eligible for a residence permit under this policy given her criminal record which comprised various offences committed DATE , i.e. pending the running of DATE . In the same decision , the Deputy Minister declared the applicant an undesirable alien , entailing a DATE exclusion order , on account of her criminal record in the GPE . As regards LAW , the Deputy Minister considered that the applicant 's personal interests in exercising her family life in the GPE were outweighed by those of the GPE authorities in protecting public order and preventing crime .

On DATE , the applicant lodged an objection ( bezwaar ) against this decision . On DATE , she applied to ORG ( arrondissementsrechtbank ) of GPE for a stay of expulsion pending the final outcome of the proceedings .

On DATE , after a hearing held on DATE , ORG of The GPE sitting in ' s - Hertogenbosch accepted the applicant 's request for a provisional measure and ordered the applicant 's expulsion stayed until DATE after the Deputy Minister had given a decision on the objection . Having noted DATE that had elapsed between the filing of the applicant 's request for a residence permit and the first decision taken on that request , ORG failed to see what interest the Deputy Minister had in not allowing the applicant to await the outcome of her objection in the GPE .

On DATE the applicant appealed to ORG of The GPE against the notional dismissal ( fictieve weigering ) of her objection , the Deputy Minister not having given a decision by that date . On DATE ORG accepted the applicant 's appeal and ordered the Deputy Minister to give a decision within DATE or within DATE if there was to be a hearing before an advisory board .

On CARDINAL DATE the applicant was heard on her objection before ORG ( PERSON voor vreemdelingenzaken ) . She stated , among other things , that her son GPE had been suffering from asthma since his birth , and that since her last conviction in DATE she no longer had had any dealings with the GPE criminal justice authorities . Her lawyer referred to a policy , set out in a letter dated DATE from the Deputy Minister of ORG and which had still been in force in DATE , under which requests for residence permits lodged by GPE for marriage purposes were given favourable consideration .

NORP The Deputy Minister gave a decision on DATE . The objection was dismissed on the ground that PERSON ( still ) did not comply with the minimum income requirement under the applicable immigration rules whereas he was not dispensed of this requirement . In addition , when heard on DATE , the applicant had denied that she had had recent dealings with the GPE criminal justice system , whereas in reality she had amassed further convictions of theft since DATE and had been arrested for shoplifting in DATE ; from this it could be concluded that the applicant was a danger to public order . The applicant 's criminal record also rendered her ineligible for a residence permit under DATE policy . The Deputy Minister further rejected the applicant 's argument that – given the uncertainty about her actual citizenship – she should be regarded as a stateless person , as well as her arguments under LAW .

NORP The applicant lodged an appeal against this decision to ORG of The Hague , together with an application for a provisional measure , i.e. a stay of deportation . On DATE , following a hearing held on DATE , ORG endorsed the decision of the Deputy Minister and dismissed the appeal . As regards LAW , it held :

“ It is not in dispute that there is ' family life ' between the appellant , her husband and child . There is no question of an interference with this family life within the meaning of the second paragraph of LAW as the impugned decision does not entail the withdrawal of a residence title that enabled her to exercise that family life . The remaining question is whether [ the GPE authorities ] are under a positive obligation under LAW to enable the appellant to exercise her family life in the GPE . In order to determine the existence of such a positive obligation , a balancing exercise must be carried out DATE on the basis of reasonableness – between the interests of the person concerned and those of society as a whole . ORG accepts the finding of [ the Deputy Minister ] that the appellant 's interests are outweighed by the public interests pursued by [ the GPE authorities ] . In this balancing exercise , ORG puts first that the countless , ever recurring antecedents of both the appellant and her husband weigh very heavily . ORG further considers it of importance that the family 's subsistence needs are met by public funds and that none of the family members holds GPE citizenship . As to the alleged statelessness of the appellant , ORG notes that she stated at the outset of the present proceedings that she was holding NORP citizenship and submitted a NORP passport . It was only later that she declared to be stateless . It appears from the fax message of DATE of the ' s - Hertogenbosch Aliens Police that the appellant presented herself in order to obtain the return of her NORP passport for the purpose of having her son registered in this passport . It is further relevant that the appellant and her son are registered under the above - cited citizenship in ORG ( Gemeentelijke Basisadministratie ) . For the above reasons , ORG is of the opinion that the alleged statelessness of the appellant and her son has not been established and that it has not been demonstrated that the appellant 's son could not follow her to the country of origin .

According to the data from ORG , the citizenship of the appellant 's husband is unknown . [ Pursuant to the relevant immigration rules ] , where it is registered in respect of an alien that the citizenship can not be determined , or where DATE such as in the instant case – in the category citizenship the standard value CARDINAL ( ' unknown ' ) is recorded , statelessness has not been established . Noting this as well as the fact that also the alleged statelessness of the appellant has by no means been established , ORG does not find it demonstrated that the appellant 's husband is stateless . As it has neither appeared that he is a recognised refugee , no objective obstacles have appeared for exercising family life in GPE or at least outside of the GPE .

As an exclusion order has also been imposed on the appellant , the impugned decision does to that extent entail interference with the family life between the appellant , her husband and son . In order to determine whether that interference is justified under the second paragraph of LAW , [ the Deputy Minister ] must strike a reasonable balance between the interests of the individual and of society as a whole . In this , ORG refers to the weighty arguments which it has found decisive in the above balancing of [ competing ] interests . ORG finds that these also justify the interference with the family life [ at issue ] . ”

Also the applicant 's request for a provisional measure was rejected . No further appeal lay against this ruling .

As of CARDINAL DATE , and as the applicant was apparently no longer living at the address she had given to the GPE authorities who were unaware of her whereabouts , the applicant was registered as having left for an unknown destination . On DATE , the applicant 's son GPE was granted a GPE residence permit for the purpose of stay with his father , valid from DATE until DATE . This residence permit was subsequently prolonged until DATE .

The applicant and her family are reportedly living in very reduced circumstances . PERSON is still unemployed , and receives non - contributory general welfare benefits as a single parent , the applicant 's residence in the GPE not being recognised as legal .

The admission , residence and expulsion of aliens were regulated at the material time by LAW DATE ( Vreemdelingenwet DATE ) . Further rules were set out in LAW ( Vreemdelingenbesluit ) , the Regulation on Aliens ( Voorschrift Vreemdelingen ) and LAW ( Vreemdelingencirculaire ; a body of directives drawn up and published by ORG ) .

On DATE , LAW entered into force – replacing LAW DATE along with a new LAW , a new Regulation on Aliens and new LAW .

As a rule , anyone wishing to apply for a residence permit in the GPE must first apply from his or her country of origin to the GPE Minister of ORG for a provisional residence visa . Only once such a visa has been issued abroad may a residence permit for the GPE be granted . An application for a provisional residence visa is assessed on the basis of the same criteria as a residence permit .

The Government pursue a restrictive immigration policy owing to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising from international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .

The admission policy for family reunion purposes is laid down in LAW of LAW . A spouse is in principle eligible for family reunion , if certain further conditions ( relating to matters such as public policy and means of subsistence ) are met . General welfare benefits are not accepted as constituting ( a part of the ) means of subsistence within the meaning of the immigration rules .

According to a letter dated DATE by the Deputy Minister of ORG , the admission to the GPE of foreign marital partners of persons of GPE origin living in the GPE was subject to the same conditions as for other foreign marital partners seeking admission for family formation ( gezinsvorming ) , namely :

“ a. it concerns a marriage on the basis of which residence can be granted . This requirement entails , inter alia , that it should concern a marriage valid under GPE ( international ) private law . Marriages concluded by partners younger than DATE are not recognised in the GPE ;

b. the partner living in the GPE must hold a valid GPE residence title , have sufficient means of subsistence and suitable housing ;

c. the foreign marital partner must not represent a danger for public peace , public order or national security . ”

This letter further specifies that admission is refused when CARDINAL or more of these conditions are not met unless special facts or circumstances constitute a compelling reason of a humanitarian nature warranting admission nevertheless .

Under LAW of the LAW , replaced on DATE by LAW , an exclusion order may be imposed on an alien when he or she has been convicted of an offence punishable by a prison sentence of DATE or more .

According to LAW ACARDINAL/CARDINAL.CARDINAL of the DATE LAW and LAW of the CARDINAL LAW , an exclusion order shall – upon a request thereto from the person concerned – be lifted after a defined number of DATE , depending on the grounds on which basis the decision was taken .

Section CARDINAL of LAW ( GPE ) provides that staying in the GPE while knowing that an exclusion order has been imposed constitutes a criminal offence punishable by DATE imprisonment or a fine of QUANTITY ( ORG ) .

Under the relevant provisions of LAW , theft attracts a prison sentence of DATE ( Section CARDINAL ) , aggravated theft and depending on the circumstances in which it was committed , a prison sentence of CARDINAL DATE ( Section CARDINAL ) , and robbery a prison sentence of CARDINAL , DATE , depending on the circumstances in which it was committed and whether it had resulted in death ( Section CARDINAL ) .