Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr R. Jenkins , a welfare rights officer in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr C. Whomersley of ORG .

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

The applicant ’s wife died in DATE . In DATE , the applicant made his claim for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Violation of P1-1;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE ORG ( ORG PERSON ) seized and later expropriated CARDINAL plots of land belonging to the applicant for the construction of a dam . A committee of experts assessed the value of the plots and the relevant amount was deposited with a bank in the name of the applicant on DATE . However , the expropriation order and the document containing the information about the compensation were not served on the applicant .

On DATE the applicant filed an action with ORG requesting compensation for seizure without an official expropriation ( kamulaştırmasız el koyma ) . The court established that although the applicant was not notified , a de facto expropriation had taken place .

After conducting CARDINAL on - site visits and taking CARDINAL separate sets of expert reports into consideration , the court established what the then - current value of land would have been had the expropriation not taken place . On DATE it awarded the applicant a corresponding in additional compensation plus interest at the statutory rate running from CARDINAL DATE , the date of the applicant 's filing of that case . As the compensation amount was based on the then - current value of the land , and not on its DATE value , the court rejected the applicant 's request to run the interest from the date of the seizure .

On DATE ORG upheld the judgment . On DATE the same court rejected a request for rectification .

On DATE the due amount was paid to the applicant .

NORP The relevant domestic law and practice are set out in the case of GPE v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE , § § CARDINAL ) .


Preliminary objection partially joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

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

Upon the death of her parents , the applicant , together with her brother , ORG , inherited a house and plot of land in GPE , a plot of land in the village of PERSON , and CARDINAL fields .

On DATE ORG brought a claim against the applicant with ORG ( GPE районен съд ) , seeking the division of the house and of the CARDINAL plots .

At the first hearing , held on DATE , the applicant requested that the CARDINAL fields be included in the division as well . The court allowed the request and adjourned the case , instructing the parties to submit evidence , including plans of the CARDINAL plots .

A hearing listed for DATE was adjourned because the plans , which had to be provided by the municipal authorities , were not ready , and another hearing , scheduled for DATE , failed to take place because counsel for ORG was absent .

On DATE the court asked an expert to determine the value of the properties and say whether it was possible to divide them up . A hearing listed for DATE did not take place because the expert report was not ready . The report was apparently never drawn up .

On DATE the court , on a request by the parties , stayed the proceedings to allow them to settle the case . However , as they could not reach an agreement , the proceedings resumed on an unspecified later date in DATE .

QUANTITY hearings , fixed for DATE and DATE , did not take place because the applicant was not duly summoned and was absent . A hearing was held despite the applicant ’s absence on DATE .

In a judgment of DATE the ORG allowed the division of the properties into CARDINAL equal shares . As neither party appealed , the judgment became final and the court proceeded with the second phase of the proceedings .

At a hearing held on DATE the applicant requested that the house be allotted exclusively to her . ORG requested the appointment of an expert to answer the same questions as the one appointed during the first phase of the proceedings .

A hearing listed for DATE was adjourned because the expert report was not ready .

At a hearing held on DATE the court admitted the report in evidence . Its conclusion was that none of the properties was divisible . The parties did not contest that conclusion .

In a judgment of DATE the GPE ORG allotted the house and plot of land in GPE to the applicant , and the plot in PERSON and the CARDINAL fields to ORG

B.R. appealed , requesting , among other things , an expert report on the value of the properties and on the possibilities of their being divided up .

The first hearing before GPE ( GPE градски съд ) was held on DATE . The court refused to order the expert report requested by ORG , and adjourned the case to allow the parties to call witnesses and present additional evidence .

At the next hearing , held on DATE , the court heard CARDINAL witnesses . It agreed to order the expert report sought by ORG

CARDINAL hearings , listed for DATE and DATE , were adjourned because the report had not been drawn up .

The report , which concluded that the house in GPE was divisible but that the plot in PERSON was indivisible , was ready on DATE . It was admitted in evidence at a hearing held on DATE . The applicant objected to the report ’s conclusions , and requested a second expert report , to be drawn up by CARDINAL experts . ORG requested an expert report on the possibility of dividing up CARDINAL of the fields .

At the next hearing , held on DATE , ORG presented a blueprint , approved by the technical services of the municipality , for the division of the house . The court admitted in evidence the expert report on the divisibility of the field , and , on a request by the applicant , ordered an expert report on the current value of the plot in PERSON .

A hearing listed for DATE was adjourned because the expert reports were not ready . The court asked the expert assessing the value of the plot in PERSON to determine the value of the CARDINAL fields as well .

At a hearing held on CARDINAL DATE the court admitted in evidence the additional expert report relating to the house , which also concluded that it was divisible , and the expert report concerning the value of the plot in PERSON and the CARDINAL fields . The applicant disputed the conclusions of the former , and requested a fresh expert report on the divisibility of the house . The court allowed her request , notwithstanding the objection of ORG

At a hearing held on CARDINAL DATE counsel for the applicant stated , without further explanation , that she wished to withdraw the request for an expert report on the divisibility of the house . It seems that the withdrawal was based on the fact that the applicant had failed to pay the required fees for the report to be drawn up .

The last hearing was held on DATE . The court presented to the parties a draft division proposal . The applicant objected to it , arguing , among other things , that the house was indivisible . She requested a further expert report on that point . The court refused the request , observing that the applicant had earlier been allowed to seek such a report , but had failed to pay the required deposit . Evidentiary requests at such a late stage were possible only if truly indispensable for the proper determination of the case .

In a judgment of CARDINAL DATE the ORG set the lower court ’s judgment aside . It decided , among other things , to disregard the initial expert reports on the divisibility of the house and to rely on DATE , observing that it was objective and that the CARDINAL experts who had drawn it up were unanimous . It rejected the applicant ’s objections against that report , noting , among other things , that she had been allowed to request a further expert report but had failed to pursue that possibility . It found that the house was divisible , because it was technically possible to do so and there was a blueprint approved by the municipal administration . It further found that the division could be effected by drawing lots without great inconvenience . Accordingly , the court divided the properties into CARDINAL lots , the first comprising the first storey of the house in GPE and the plot in PERSON , and the second comprising the second storey of the house and the CARDINAL fields .

On DATE the applicant appealed on points of law . On DATE the ORG instructed her to specify her grievances . She did so on DATE , arguing that the court had erred in finding that the house could be divided . The expert report on which it had relied had not taken into account the applicable construction rules . The court had also erred in refusing the applicant ’s request for a further expert report ; she had failed to pay the required deposit because she had been out of the country at the time .

ORG ( NORP касационен съд ) held a hearing on DATE , and in a final judgment of DATE upheld the lower court ’s judgment . It noted that counsel for the applicant had withdrawn the request for a further expert report . The applicant could not therefore validly complain that she had been denied the opportunity to adduce evidence concerning the divisibility of the house . Her objections concerning the plan for the division had been discussed and rejected by the lower court . The court went on to observe that the experts and the municipal administration had found that the division could be effected without too much inconvenience and without infringing the applicable construction regulations . Therefore , the lower court ’s conclusion that the house was divisible was not contrary to the substantive law .

The proceedings then resumed before GPE . At a hearing held on DATE the applicant and ORG drew lots to determine which of the divided properties should go to whom . ORG received the first storey of the house in GPE and the plot in PERSON , and the applicant received the second storey of the house and the CARDINAL fields . The court confirmed the division , ordered the applicant to pay ORG a small sum to equalise their respective shares , and terminated the proceedings .

On DATE the applicant appealed against the proposed division . On DATE the ORG instructed her to specify her grievances and pay the requisite fee . The court ’s instructions were served on the applicant ’s counsel on DATE . On DATE he requested an extension of time , citing the applicant ’s being abroad . On DATE the court granted an extension until DATE .

As the applicant did not comply with the court ’s instructions , on DATE the court refused to forward the appeal to the higher court for examination . Despite visits to the applicant ’s home on CARDINAL , DATE and DATE DATE , DATE , DATE , DATE and DATE , and CARDINAL DATE , the court ’s process servers were not able to find the applicant to notify her of the court ’s ruling . On DATE they served notice of the ruling on the applicant ’s counsel . As he did not seek to appeal against the ruling , it became final on DATE .

Under LAW , ORG is the principal body concerned with the administration of the judiciary ( which , in GPE , comprises the courts , the prosecutor ’s offices and the investigation services ) . It has the power to , inter alia , appoint , promote , demote and dismiss judges , prosecutors and investigators ( Article CARDINAL § CARDINAL and LAW ( CARDINAL ) ) and impose the harshest disciplinary punishments ( LAW ( CARDINAL ) ) .

A DATE amendment to the 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 ( Article CARDINALa § CARDINAL ) . 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 ) .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that “ [ e]veryone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ” .

Sections CARDINAL of the Act govern the structure , powers and operations of the ORG attached to ORG ( see paragraph CARDINAL above ) . CARDINAL of the ORG ’s tasks is to check the processing of cases and their completion within the prescribed time - limits ( section CARDINAL(CARDINAL)(CARDINAL ) ) . It carries out planned DATE checks or unplanned checks prompted by reports ( section DATE ) ) . After carrying out a check of the work of an individual judge , prosecutor or investigator , the ORG draws up a report containing its findings and recommendations , if any ( section CARDINAL(CARDINAL ) ) . That report is presented to the judge , prosecutor or investigator concerned and to his or her hierarchical superior ( section CARDINAL(CARDINAL ) ) . The hierarchical superior must then , within the time set in the report , inform the chief inspector about the implementation of the recommendations ( section CARDINAL(CARDINAL ) ) .

At the relevant time divisionofproperty proceedings were governed by ORG CARDINALa of LAW . They consisted of CARDINAL phases .

During the first phase the court had to ascertain the number and the identity of the coowners and of the items of common property , as well as the share to which each coowner was entitled ( LAW ) .

During the second phase the court carried out the division , which could be done either by specifying which item of property went to which coowner ( Articles CARDINAL and CARDINAL ) , or by auctioning an undividable item of property and distributing the proceeds among the coowners ( LAW ) . If one of the divided properties was a flat inhabited by a coowner who did not have another dwelling , he or she could request the flat to be allotted exclusively to him or her in return for reimbursing the other coowners their shares in it ( LAW ) .

In property division proceedings the court could also have cognisance of certain ancillary matters , such as determination of parentage and validity of wills ( LAW ) , reimbursement of expenses incurred in relation to the divided property and indemnity for improvements to the property by CARDINAL of the coowners ( Article CARDINAL § CARDINAL ) , use of the property during the proceedings and indemnity for such use ( Article CARDINAL § CARDINAL ) .

Article CARDINALa of the Code was added in DATE . It provided as follows :

“ CARDINAL . Each party may file a complaint about delays at every stage of the proceedings , including after oral argument , when the examination of the case , the delivery of judgment or the transmitting of an appeal against judgment is unduly delayed .

NORP The complaint about delays shall be filed directly with the higher court . No copies shall be served on the other party , and no ORG fee shall be due . The filing of a complaint about delays shall not be limited in time .

NORP The president of the court with which the complaint has been filed shall request the case file and shall immediately examine the complaint in private . His instructions as to the steps to be carried out by the court shall be mandatory . His order shall not be subject to appeal and shall be sent immediately , together with the case file , to the court against which the complaint has been filed .

Should he determine that there has been [ undue delay ] , the president of the higher court may propose that the disciplinary panel of ORG take disciplinary action . ”

The DATE Code of Civil Procedure came into force on DATE , superseding LAW .

Article CARDINAL of the new Code , entitled “ Examination and disposal of cases within a reasonable time ” , provides as follows :

“ The court shall examine and decide cases within a reasonable time . ”

The new Code contains more detailed provisions in relation to the admission of evidence . It provides that the claimant must set out his or her evidence in the statement of claim , and enclose the written evidence with it ( LAW ) . The defendant must do the same in his or her reply to the statement of claim ( LAW ) . He or she can not do so at a later stage , unless his or her failure was due to special circumstances ( LAW . As a rule , the court should rule on the evidential requests when setting the case down for hearing LAW CARDINAL § CARDINAL ) . At the first hearing , the parties may supplement their evidential requests if that has been made necessary by the other party ’s assertions ( LAW ) . The court must provide them with guidance ( LAW and CARDINAL and LAW ) . After that , fresh evidence may be admitted only if the party had no means of adducing it earlier , or if it relates to newly arisen circumstances ( LAW and CARDINAL ) . Evidential requests in relation to facts which are irrelevant for the outcome of the case and untimely evidential requests are to be rejected ( LAW ) .

In their evidential requests , the parties must specify the facts that they are seeking to prove and the manner in which they intend to do so ( LAW ) . Thus , when calling a witness , a party must say in relation to which facts he or she will be heard ( LAW ) . If it calls several witnesses in relation to CARDINAL fact , the court may admit only some of them , and hear the rest only if the initial ones fail to establish the fact in issue ( LAW ) . When requesting the ordering of an expert report , a party must specify the area in which the expert(s ) should possess special knowledge , as well as the subject matter and the task of the expert report ( LAW ) .

In appeal proceedings , the parties may not rely on fresh facts or adduce evidence that they could have adduced during the firstinstance proceedings ( LAW ) . Again in appeal proceedings , fresh evidence may be admitted only if the party had no means of adducing it earlier ( LAW ( CARDINAL ) ) , if it relates to newly arisen circumstances ( LAW ( CARDINAL ) ) , or if it has not been admitted by the firstinstance court in breach of the rules of procedure ( LAW ) .

Articles DATE of the new Code , which superseded Article CARDINALa of the CARDINAL Code , were inspired by NORP law ( ORG , NORP , GPE , Б. , ORG , ORG , Коментар на новия GPE процесуален кодекс , ORG , DATE г. , стр. CARDINAL ) and provide as follows :

“ CARDINAL . Where the court does not take a procedural step in due time , a party may , at any stage of the proceedings , make a request for an appropriate timelimit to be fixed for that procedural step to be taken .

NORP The request shall be filed with that court for onward transmission to the higher court . The court examining the case shall immediately forward the request to the higher court together with its opinion . ”

“ CARDINAL . If the court immediately takes all steps mentioned in the request , and notifies the party accordingly , the request shall be considered as withdrawn .

NORP If within DATE of receiving the notification mentioned in the previous subparagraph the party states that it maintains its request , the request shall be forwarded to the higher court for examination . ”

“ CARDINAL . The request for fixing of a timelimit shall be examined by a judge of the higher court within DATE of its receipt .

NORP If that court finds that there has been undue delay , it shall fix a timelimit for the procedural step in question to be taken . Should the court find otherwise , it shall refuse the request . No appeal shall lie against its decision . ”

These provisions seem to apply to the administrative courts as well , by virtue of LAW , which provides that all matters not specifically dealt with are governed by LAW . In practice , ORG does examine requests to fix timelimits ( опр. № DATE от CARDINAL май DATE г. по адм. д. № DATE г. , PERSON , петчленен св ) .

The Government provided CARDINAL decisions given by ORG , ORG and ORG in connection with such requests . CARDINAL of those decisions fixed time - limits in which the lower courts were instructed to take certain procedural steps .

According to statistical information provided by the Government , in DATE the regional courts received CARDINAL requests to fix timelimits because of delays . All but CARDINAL of them were dealt with in DATE . In DATE the courts of appeal received CARDINAL such requests . All of them were dealt with in DATE ( the statutory timelimit is DATE see paragraph DATE above ) . The Government did not provide information about the impact the examination of those requests had had on the speed of the proceedings in connection with which they had been made .

Section CARDINAL of the DATE ORG to Citizens Act ( which was renamed “ ORG and ORG ” on DATE “ the DATE LAW , as in force since DATE , provides as follows :

“ The ORG and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials , committed in the course of or in connection with the performance of administrative action . ”

Section CARDINAL(CARDINAL ) of the LAW , as originally enacted , provided for liability of the investigating and the prosecuting authorities and the courts in CARDINAL situations : unlawful detention ; bringing of charges or conviction , if the proceedings were later abandoned or if the conviction was overturned ; coercive medical treatment or coercive measures imposed by a court , if its decision was later quashed as being unlawful ; and serving of a sentence over and above its prescribed duration . A new point , added in DATE , provides that the ORG is liable for any damage the investigating and prosecuting authorities or the courts cause to individuals through the unlawful use of special surveillance means .

According to some legal commentators , the remedies under LAW of the DATE Code and under Articles DATE of the DATE Code were / are not available in respect of proceedings before ORG , because there is no “ higher court ” ( GPE , GPE , GPE гражданско процесуално право , ORG , DATE г. , стр. CARDINAL , PERSON , PERSON , PERSON съдопроизводство , PERSON първи , ORG , DATE г. , стр. CARDINAL ) . Other commentators maintain that the remedy under Articles DATE of the DATE Code , could , in view of its specificities , be applied to cases pending before ORG because its essential purpose is not to apprise the higher court of delays by the lower court but to prompt the latter to expedite the examination of the case ( ORG , GPE , GPE , Б. , PERSON , ORG , Коментар на новия GPE процесуален кодекс , ORG , DATE г. , стр. CARDINAL ) .

On DATE , during its CARDINALth meeting , ORG adopted an Interim Resolution on the execution of the judgments of ORG concerning the excessive length of judicial proceedings in eightyfour cases against GPE ( CM / ResDH ( DATE ) CARDINAL ) . The resolution reads :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of ORG hereinafter “ the Convention ” ) ,

Having regard to the number of judgments of ORG ( “ the ORG ” ) finding GPE in violation of DATE , paragraph CARDINAL and LAW on account of the excessive length of judicial proceedings and the absence of an effective remedy in this regard ( see LAW to this resolution ) ;

Recalling that excessive delays in the administration of justice constitute a serious danger , in particular to respect for the rule of law and access to justice ;

Recalling also its Recommendation Rec(CARDINAL)CARDINAL to member states on the need to improve the effectiveness of domestic remedies for excessive length of proceedings , and emphasising the importance of this question where judgments reveal structural problems likely to give rise to a large number of further similar violations of the Convention ;

Having examined the information supplied by the NORP authorities concerning the measures taken or envisaged in response to those judgments ( see PERSON I ) , including the statistical data on the length of judicial procedures ( see PERSON ) ;

Assessment of ORG

I. Individual measures

Having noted the individual measures taken by the authorities to provide the applicants redress for the violations found ( restitutio in integrum ) , in particular the acceleration , as far as possible , of proceedings which were still pending after the findings of violations by the ORG ;

Noting however with concern that the domestic proceedings in CARDINAL cases are still pending before the domestic courts and that the authorities have been unable to provide information CARDINAL other cases ( see Appendix I ) ;

CALLED UPON the NORP authorities to provide for acceleration as much as possible of the proceedings pending in these cases , in order to bring them to an end as soon as possible , and to inform it of the progress of proceedings in the CARDINAL afore - mentioned cases ;

II . General measures

CARDINAL ) Measures aimed at reducing the length of judicial proceedings

Noting the numerous violations found by ORG on account of the excessive length of civil and criminal proceedings in GPE , revealing certain structural problems in the administration of justice at the time of the relevant facts ;

Welcoming the numerous legislative reforms adopted by the authorities in order to remedy these structural problems and in particular the adoption of the new codes of criminal and civil procedure ( see Appendix I ) ;

Welcoming likewise the other measures taken by the authorities to increase the efficiency of the judicial system , and in particular the establishment of assessment and monitoring mechanisms , including the collection and analysis of statistical data ;

Noting that the DATE statistics show a reduction in the backlog in the NORP courts as a whole , and an increase in the number of cases dealt with in the space of DATE ( see PERSON ) ;

Noting however that , according to the statistics , the backlog in the district courts located in regional centres has increased slightly by reason of the substantial rise in the number of cases registered , and that those courts were responsible for examining CARDINAL the cases pending in the country in DATE ( see PERSON ) ;

Noting also that the legislative reforms introduced DATE have not yet produced their full impact on the length of proceedings and that a longer period of time is needed before the effectiveness of all the measures taken can be fully and completely assessed ;

ENCOURAGED the NORP authorities to pursue their efforts in following up the reforms introduced , in order to consolidate their positive effects , in particular as regards the situation in the district courts located in regional centres ;

CALLED ON the authorities to continue to monitor the effects of these reforms as it proceeds , with a view to adopting , if appropriate , any further measure necessary to ensure its effectiveness , and to keep the ORG informed of the developments in this regard ;

CARDINAL ) Measures relating to the effectiveness of remedies

Recalling that the ORG has found numerous violations of the right to an effective remedy in contesting the excessive length of proceedings in GPE , revealing certain structural problems in this field ;

Recalling its Recommendation Rec(CARDINAL)CARDINAL encouraging states to introduce remedies making it possible both to expedite proceedings and to grant compensation to interested parties for damage suffered ;

Noting with interest that ORG CARDINAL - CARDINAL of the Code of Civil Procedure provide that , if a court does not take a procedural step in due time , the parties may at any time apply to the superior court for a time - limit to be set for the taking of the procedural step in question , thus affording a remedy designed to speed up the civil proceedings ( see Appendix I ) ;

Noting also that there exist in criminal law certain forms of nonpecuniary redress , such as the possibility of reducing the sanction , where there is a finding of excessive length of proceedings ;

Noting however that at the present time no domestic remedy is available for expediting excessively lengthy criminal proceedings or obtaining pecuniary compensation if appropriate ( see Appendix I ) ;

Welcoming in this context the reform undertaken by the authorities aimed at introducing into NORP law a compensatory remedy where excessive length of judicial proceedings is alleged ( see PERSON I ) ;

INVITED the NORP authorities to complete as soon as possible the reform undertaken in order to introduce a remedy whereby compensation may be granted for prejudice caused by excessive length of judicial proceedings , and to keep the ORG informed of its progress and of any other measure that may be envisaged in this field ;

Having regard to the foregoing , ORG

DECIDED to resume its examination of progress made at the latest :

– by DATE , with regard to the question of effective remedy ;

– by PERSON , with regard to the question of the excessive length of judicial proceedings . ”

An appendix to the resolution summarised the information provided by ORG on the measures taken by the NORP authorities in that domain . It reads :

“ I. Individual measures

The proceedings which were still pending before the domestic courts at the time when the ORG gave its judgments have been terminated in most of the cases . At the present time , the proceedings have not yet been terminated in the GPE , GPE , PERSON , PERSON , PERSON , GPE and GPE cases . Information is still awaited also on the state of progress in the proceedings in the GPE and GPE cases .

II . General measures

CARDINAL ) Measures aimed at reducing the length of proceedings

– Legislative measures

In DATE a new Code of Civil Procedure ( “ CCvP ” ) was adopted . The adoption of that code , which came into force on DATE , forms part of the overall reform of the civil justice system in GPE designed in particular to speed up judicial proceedings . The new code seeks inter alia to concentrate decisions relating to the judicial investigation in the proceedings at first instance and to limit appeal and cassation proceedings .

The most important provisions of the new CCvP provide for :

– the express obligation on civil courts to examine cases within a reasonable time ( LAW ) ;

– the “ concentration principle ” whereby evidence is brought together in the first instance proceedings ; according to this principle , the parties may submit evidence or ask for evidence to be taken no later than the first hearing ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL ) ; after the first hearing , the parties may only request the taking of evidence which could not be adduced earlier ; by way of comparison , the DATE [ C]ode allowed evidence to be submitted throughout the judicial investigation , including elements which could have been submitted earlier , subject to payment of procedural costs ;

– the change of second instance from a “ second first instance ” to an appeal instance , examining only the points raised in the appeal ( LAW , at which the parties may no longer submit evidence and arguments which they could have raised in the court of first instance ( Article CARDINAL ) ;

– limitation of the grounds for lodging an appeal in cassation to ORG ; henceforth , there are CARDINAL categories of judgments handed down by the second - instance courts which can be subject to appeal in cassation ( those which are at variance with the caselaw of ORG , those relating to a question on which courts deciding on the merits have handed down contradictory judgments , and those relating to a question considered important for the development of law or for the precise application of the law ) ; under the previous cassation system , ORG was competent to judge the lawfulness and validity of the great majority of judicial decisions taken at second instance ;

– simplification of summons arrangements , with the possibility of serving a summons by delivering it to the letter - box of the person concerned or affixing it to his / her front door .

The authorities consider that a longer period of time will be needed for the real impact of the new CCvP on length of proceedings to be assessed .

– Administrative measures designed to improve the organisation and management of the courts

Among other reforms designed to improve the efficiency of the NORP judicial system , should be mentioned the creation in DATE of an electronic commercial register managed by an administrative agency ( see the commercial register law in force since DATE ) . Thus the regional courts which were responsible for registering commercial companies in the past have been absolved of that responsibility .

Furthermore , following the adoption of LAW in DATE , CARDINAL administrative courts were set up in DATE . These new administrative courts have powers previously exercised by the regional courts . In addition , as an ad hoc measure aimed at lightening the workload of ORG , labour disputes pending before it when the DATE CCvP came into force have been transferred to the appeal courts .

It should also be pointed out that the judicial authorities now have access to the national database containing the population register , which should overcome certain delays arising from requests for information needed to take judicial proceedings forward .

Finally , GPE has achieved a high level of computerisation designed to assist both judges and other personnel ( for further details , see the DATE report of ORG for ORG ) . Moreover , the courts are continuing their efforts to improve their IT equipment in order to communicate with parties . Those efforts were recently rewarded by the award of the DATE “ Crystal Scales of Justice ” prize to the NORP administrative court for the work it has done to improve users’ understanding of judicial procedure .

– Mechanisms for periodic assessment and monitoring of the work of the courts

CARDINAL bodies – ORG and ORG – have the main responsibility for monitoring and assessing the work of the courts , prosecution services and investigating magistrates .

ORG , established in DATE , comprises an inspectorgeneral and CARDINAL inspectors elected by ORG for terms of CARDINAL and DATE respectively ( Article CARDINALa of the LAW ) . It oversees the administrative organisation of the courts , prosecution services and bodies in charge of preliminary investigations , together with the proper organisation of preliminary investigations and cases pending before prosecutors and courts . In particular , the inspectorate oversees compliance with the time - limits laid down by law for dealing with cases . It carries out its tasks ( a ) through planned regional inspections and ( b ) through inspections focussing on particular questions . It may also conduct inspections in response to reported irregularities ( [ sections ] CARDINAL and CARDINAL of the [ DATE LAW ] ) .

Following inspections , it makes recommendations , particularly concerning compliance with the timelimits laid down by law for dealing with cases . Implementation of its recommendations is monitored in the course of followup inspections . The inspectorate may also make proposals to ORG administrative authorities and to ORG for the imposition of disciplinary penalties on judges , prosecutors and investigating magistrates ( see “ Disciplinary measures ” below ) . The work of the inspectorate is covered in the progress report of ORG .

ORG oversees , among other things , the manner in which case registration and handling are managed , as well as closure of cases within the legal time - limits . This inspectorate organises thematic controls in accordance with a programme approved by ORG . It may make recommendations and supervises their implementation in the course of subsequent inspections .

ORG is also responsible for overseeing application of the new CCvP and CCrP. During inspections already carried out , it has observed some of the causes of procedural delays and made recommendations in this regard .

Furthermore , the presidents of ORG and ORG are required to present DATE reports on the functioning of trial and appeal courts , in addition to DATE reports on their own activities ( [ sections MONEY ) and ( CARDINAL ) and CARDINAL ) and ( CARDINAL ) ] of the [ DATE LAW ] ) . Lastly , DATE ORG centralises and analyses the statistics on the work of all the country ’s courts ( cf . PERSON ) .

– Disciplinary measures

Under the [ DATE LAW ] , systematic failure to comply with the time - limits laid down in procedural laws , and action or inaction such as to delay proceedings in an unjustified manner , are disciplinary offences ( [ section ] CARDINAL § CARDINAL ) . ORG has the power to impose disciplinary penalties ( other than comment and reprimand , which are imposed by the hierarchical superior ) on judges , prosecutors and investigating judges . The public bodies responsible for enforcing judicial decisions and the bodies responsible for entries in the land registry may be sanctioned by ORG ( [ section ] CARDINAL ) .

The authorities have stated that during the period DATE the number of disciplinary proceedings before ORG rose steadily ( CARDINAL in DATE , CARDINAL in DATE and CARDINAL in DATE ) . By way of example , in DATE CARDINAL judges and CARDINAL head of administration were sanctioned , mainly for systematic failure to comply with the time - limits laid down by law . Among them , CARDINAL judges were dismissed and CARDINAL others had their salaries reduced by PERCENT for periods of DATE .

– Longterm strategies

The NORP authorities have adopted several strategies on judicial reforms . For example , a criminal policy strategy for the period DATE has been adopted , the principal objective being to further reduce the excessive formalism of criminal procedure . It should be noted that the amendments to the DATE CCrP were decided on the basis of this strategy ( see above ) .

Further , in DATE the government adopted a plan to eradicate the causes of violations of the ORG found by ORG in its judgments concerning GPE . That plan was drawn up by a working party which included representatives of ORG as well as human rights activists . Among the tangible results obtained on the basis of this plan , should be mentioned the working party set up to introduce an application for compensation in cases of excessive length of judicial proceedings ( see below ) . In DATE the government adopted the strategy on continued judicial reforms in GPE following its accession to ORG .

CARDINAL ) Measures relating to the effectiveness of remedies

– Remedy concerning speeding up of civil proceedings

A remedy allowing to question the length of civil proceedings was introduced into NORP law as long ago as DATE ( Article CARDINALa of the former CCvP ) . The provisions governing this remedy were maintained to a great extent in the new CCvP of DATE . Articles CARDINAL to CARDINAL thereof stipulate that , if a court fails to take a procedural step in time , the parties may at any time request the superior court to set a deadline for taking the procedural step in question . The request is lodged through the court seized of the case , which must send it to the superior court together with its own opinion . If the court seized of the case takes the requested steps immediately , the request is deemed to be withdrawn unless the party concerned states that it wishes to maintain the request . In cases where the request is transmitted to the superior court , it must be examined within DATE by a judge of that court . If he finds that there has been unjustified delay , the superior court sets a deadline by which the procedural step must be taken . The order of the superior court is final .

According to the data supplied by the authorities , the regional courts examined CARDINAL applications for speeding up of civil proceedings in DATE . CARDINAL applications were examined in DATE and CARDINAL in DATE . Also in DATE , the appeal courts examined CARDINAL applications for the speeding up of proceedings .

ORG has accepted that the remedy provided for in Article CARDINALa of the former CCvP is effective in principle ( see PERSON against GPE , No . LANGUAGE , § MONEY , DATE , PERSON and others against GPE , No . CARDINAL , § DATE , DATE , and PERSON against GPE , No . CARDINAL/CARDINAL , § CARDINAL , DATE ) . It has however stated that account must be taken of the circumstances of each case ( PERSON , cited above , § CARDINAL ) and of the effect which such application might have on the overall length of the proceedings in question ( PERSON , cited above , § § DATE ) . In several cases the ORG has found that the application in question has not or could not have prevented certain delays by reason of their specific causes , such as for example inactivity on the part of the prosecution , inability of the domestic authorities to ensure that CARDINAL party to the proceedings is properly summonsed , or errors in the application of the law ( PERSON , cited above , § § DATE and CARDINAL , ORG , No . CARDINAL/CARDINAL , § CARDINAL , DATE , PERSON against GPE , No . CARDINAL , § DATE ) .

Furthermore , ORG observed that it was unclear whether this remedy was available before ORG , in so far as there was no higher court .

The authorities have indicated that these shortcomings will be taken into account when defining a new application for compensation in cases of excessive length of judicial proceedings ( see below ) .

– Compensatory remedy

ORG has consistently pointed to the absence in NORP law of a remedy enabling compensation to be obtained for excessive length of judicial proceedings ( see , for example , the PERSON against GPE judgment cited above , § CARDINAL ) .

In this connection the ORG has indicated that , in the context of implementing a plan to eradicate the causes of the violations found by ORG in judgments concerning GPE , it has set up a working party to prepare a bill amending the law on the responsibility of the state and municipalities for prejudice caused to individuals . This bill envisages , in particular , the introduction of an application for compensation in cases of unjustified delay in the proceedings . This working party has drafted a bill providing that the state may be held responsible , in addition to the cases already settled , where unjustified delay in civil , criminal and administrative proceedings are attributable to the judicial authorities .

As regards criminal proceedings , it should also be noted that certain forms of nonpecuniary redress exist in cases of excessive length of proceedings , such as the possibility of reducing the penalties . This form of redress has been recognised by ORG as an effective remedy in certain circumstances ( PERSON against GPE judgment of DATE , § CARDINAL ) . ”

A second appendix to the resolution contained statistical data on the processing of cases in the NORP courts . It reads ( footnotes omitted ) :

“ I. Statistics on length of judicial proceedings before the NORP courts

CARDINAL ) Data for NORP courts as a whole

The general trend which emerges from the data available shows that , despite a resurgence in the number of cases registered , the number of cases terminated for all courts is on the increase ( in DATE it was PERCENT higher than in DATE , and PERCENT higher than in DATE ) . Similarly , the backlog facing the courts as a whole decreased for DATE . Thus the decrease in the number of cases pending at DATE is of PERCENT as compared with DATE and of PERCENT as compared with DATE .

The number of judges , taking all courts together , was CARDINAL in DATE , PERCENT more than in DATE and PERCENT DATE .

CARDINAL ) ORG

– ORG bench

Despite an increase in the number of new cases registered in DATE ( CARDINAL more than in DATE and CARDINAL more than in DATE ) , the backlog before the civil bench decreased at DATE ( CARDINAL cases pending at DATE as compared with CARDINAL in DATE and CARDINAL in DATE ) .

– Commercial bench

The backlog before the commercial bench at DATE was on the increase ( CARDINAL cases pending at DATE as compared with CARDINAL at DATE ) . That increase was the result of the higher number of cases registered ( PERCENT DATE ) , notwithstanding the increase in the number of cases terminated in DATE ( PERCENT DATE ) .

CARDINAL ) ORG

Despite a constant increase in the number of cases terminated by this court DATE ( CARDINAL cases in DATE , CARDINAL cases in DATE and CARDINAL cases in DATE ) , its backlog slightly increased during that period due to the increase in the number of cases registered ( CARDINAL cases in DATE , CARDINAL cases in DATE and CARDINAL in DATE ) . In DATE , PERCENT of cases terminated were concluded within DATE and PERCENT within DATE , while PERCENT took over DATE .

CARDINAL ) ORG courts

The backlog in the appeal courts is constantly decreasing . The number of cases pending at DATE ( CARDINAL ) decreased by PERCENT as compared with DATE and by PERCENT as compared with DATE .

CARDINAL ) ORG courts and GPE [ C]ourt

The creation in DATE of CARDINAL administrative courts , as well as an agency responsible for entries in the commercial register , led to a significant decrease in the number of cases registered by regional courts in DATE ( PERCENT fewer than in DATE and PERCENT fewer than in DATE ) . Cases pending at DATE numbered CARDINAL , a figure PERCENT lower than in DATE and PERCENT lower than in DATE .

CARDINAL ) District courts located in regional centres

The backlog in these courts at DATE had grown by PERCENT as compared with DATE and by PERCENT as compared with DATE . This increase is due to the rise in the number of cases they had to deal with in DATE ( PERCENT more than in DATE and PERCENT more than in DATE ) , and despite a larger number of cases terminated during DATE ( PERCENT more than in DATE and PERCENT DATE ) .

In DATE the district courts located in regional centres registered CARDINAL cases ; CARDINAL cases were registered by the GPE district court , i.e. PERCENT of all cases newly registered with the courts in this category .

CARDINAL) LOC courts located outside regional centres

The backlog in these courts at DATE had fallen ( by PERCENT as compared with DATE and by PERCENT as compared with DATE ) notwithstanding an increase in the number of cases they had to deal with ( PERCENT more than in DATE and PERCENT more than in DATE ) .

This trend was due to the increase in the number of cases terminated in DATE ( PERCENT more than in DATE and PERCENT DATE ) . It is also to be noted that in DATE , CARDINAL cases were concluded within DATE , a figure PERCENT higher than for DATE and PERCENT higher than for DATE .

CARDINAL ) Administrative courts

These courts began sitting in DATE . In DATE they dealt with CARDINAL cases , a figure PERCENT higher than in DATE . The number of cases terminated in DATE was PERCENT higher than in DATE . Despite that increase , the number of cases pending at DATE was PERCENT higher than for DATE .

In its LAW ( DATE ) on the implementation of the ORG ’s judgments , adopted on DATE , ORG of ORG noted “ with grave concern ” the continuing existence of “ major systemic deficiencies which cause large numbers of repetitive findings of violations of the ORG and which seriously undermine the rule of law ” in some Member GPE of ORG . CARDINAL of those was the “ excessive length of judicial proceedings ” ( paragraph CARDINAL ) . The ORG , in particular , urged GPE to , inter alia , “ pursue its efforts to solve the problem of excessive length of court proceedings ” ( paragraph CARDINAL in fine ) .


The applicant is an NORP national , born in DATE and residing in GPE .

A.

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

On DATE the applicant had a car accident at a junction . The traffic police fined him for the decriminalised offence of " not slowing down while approaching the junction and thus causing danger " ( per non aver moderato la velocità all'intersezione costituendo pericolo ) . The fine amounted to MONEY .

On DATE the applicant filed an objection with the Prefect of Milan through ORG . He contested that he had partly caused the accident and also requested that he himself and an eye - witness be heard .

The applicant 's objection was received by the Judicial Police on DATE and sent back to ORG with a view to obtaining information on DATE . On CARDINAL DATE the file was forwarded to another section of ORG .

On DATE and CARDINAL DATE the applicant asked the ORG to issue a decision . He received no reply .

The applicant 's file was never forwarded to ORG , which learned about its existence only in the context of the application to ORG .

The road traffic offence is nowadays time - barred .

In the meantime , the applicant claimed compensation for the damage occurred to his car , but the insurance company only paid CARDINAL of the amount claimed , on the ground that the applicant was partly responsible for the accident .

B. Relevant domestic law and practice

According to Sections CARDINAL - CARDINAL of FAC ( GPE della Strada ) , a person who has been fined for a road traffic offence can file an objection with the competent ORG . The lodging of the objection suspends the effects of the fine . The ORG , within DATE , can either confirm the fine and issue an order for its payment or issue a reasoned order withdrawing the fine ( ordinanza motivata di archiviazione degli atti ) . The party can file an application with the civil Magistrate against a negative decision of the ORG .

ORG , by judgments ORG . CARDINAL/CARDINAL , ORG and CARDINAL , has interpreted Section CARDINAL of LAW as allowing to apply to the Magistrate without previously applying to the Prefect .

In several decisions ( Nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL ) ORG has applied the principle stated by ORG and ruled that the application to the ORG is merely optional , i.e. it is possible to apply directly to the Magistrate .

ORG has also made it clear , by its decision No . CARDINAL , that the above DATE time - limit is peremptory and that , therefore , a decision delivered after the expiry of DATE is to be considered invalid .

According to LAW , road traffic offences become time - barred after DATE .

According to Section CARDINAL of the Code of Civil Procedure , the content of a public document ( atto pubblico ) - such as a traffic police fine - can be challenged in the course of civil proceedings through a written application ( querela di falso ) to the judge .

In its judgment no . CARDINAL of DATE , ORG has made clear that a possible withdrawal of the fine by the ORG , being no judicial decision , can not prevent the civil courts from establishing the possible responsibility of the relevant person in relation to the facts which are the object of the fine .


Violation of Art. 10;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The first applicant , an NORP citizen born in DATE and residing in GPE , is the chief editor and publisher of the newspaper “ FAC ” . The second applicant , a limited partnership ( Kommanditgesellschaft ) is the owner of this newspaper . The third applicant is a limited company , the general partner ( GPE ) of the second applicant . The second and third applicants have their places of business in GPE .

The applicants belong to a large media group which at the relevant time was in strong competition with another media group represented by Mr PERSON , a lawyer practising in GPE . Besides his profession as a lawyer , PERSON was from DATE to DATE secretary general of ORG ( Österreichische Volkspartei ) and , from DATE , a Member of ORG for that party . DATE he was the Chairman of ORG ( ORG . DATE he represented the ORG competitor in several proceedings concerning unfair competition against companies belonging to the ORG media group .

NORP In DATE several NORP laws were amended by ORG Erweiterte PERSON - GPE ) . The Government PERSON ( PERSON ) had also provided for an amendment to LAW ( Exekutionsordnung ) , a section which is of particular relevance for the enforcement of injunctions . The Government PERSON had envisaged raising the fines that could be imposed for non - compliance with injunctions from ORG CARDINAL per enforcement order to ORG CARDINAL per enforcement order .

NORP Under the chairmanship of PERSON , the ORG dealing with the Government PERSON proposed a different version , namely that a maximum fine of LAW could be imposed for each request for enforcement ( PERSON ) instead of for each enforcement order issued by ORG . In its report of DATE , ORG pointed out that the fine had to be multiplied by the number of requests for enforcement , if CARDINAL decision combining several requests was taken . This proposal was adopted by ORG on DATE and published as Article XI of the Extended Pecuniary Limits Amendment Act , ORG ( Erweiterte PERSON - Novelle CARDINAL , BGBl . CARDINAL ) .

DATE , in DATE , the following article written by the first applicant under the pseudonym “ PERSON ” was published in the “ PERSON GPE ” :

“ Moral CARDINAL

Before PERSON became the NORP Minister for ORG , he was one of LOC ’s most famous and most successful lawyers . He administered the gigantic estate of Picasso ; he represented PERSON and an NORP Minister for ORG when the latter found himself in a bad situation . PERSON took it for granted that he had to give up his law firm when he became a member of the government . In every democracy of the world this course of action is followed . Only Mr Graff , who is obviously thick - skinned , does not intend to comply with these moral concepts .

It so happened that at the time when PERSON was presiding ORG , a law was amended which brought about big advantages for the newspaper publishers whom PERSON represented as a lawyer . In order to ensure that in such cases no suspicion , not even one that has no objective justification , can arise , there exists the wise rule of incompatibility ; a lawyer is not allowed to take part in the adoption of laws which lead to advantages for his clients .

Also the Austrian ORG thought that way and they decided to appeal to PERSON conscience . In vain ! It is very telling for the present situation of ORG that it can not convince PERSON . The other parties will be only too pleased , when it becomes so flagrantly evident how powerless ORG is vis - a - vis one of their officials who has his own moral concepts . PERSON was even allowed to present his disreputable attitude on our monopoly - television . PERSON thought that it would be a sign of fear to the ‘ PERSON if he had to resign from ORG .

ORG does not have to fear the ‘ Krone’ but its voters , who will continue turning away from it if the party shows itself incapable of establishing order within its own ranks ; how could CARDINAL then possibly trust that it would succeed in doing this in the ORG ... Cato . ”


PATRICNY and PATRICNA v. THE CZECH REPUBLIC

The applicants , Mr PERSON and ORG , are NORP nationals , who were born in DATE and DATE respectively and live in GPE , GPE .

From DATE to CARDINAL DATE the first applicant was permitted by the NORP authorities to spend his holiday in GPE . The second applicant obtained the same permission for the period from DATE to CARDINAL DATE . As the first applicant had to undergo surgery in GPE , the applicants did not return before the end of the authorised period . On DATE the first applicant asked ORG in GPE whether his permission to stay in GPE could be extended . He was served with a reply stating that his stay in GPE was illegal and was notified that his property would be immediately confiscated as a consequence . He was also notified that he had to file a request for permission to return to GPE . The applicants did not file a request .

On DATE the NORP authorities made an inventory of the applicants’ property . They subsequently sold all the movable items and transferred their flat owned by a co - operative , and in respect of which the applicants had a right of beneficial use , back to the co - operative . The co - operative then allocated their flat to a third person .

On DATE the applicants brought proceedings before the GPE nad ORG seeking damages of CZK CARDINAL,CARDINAL from the ORG for having deprived them of their property and for having prevented them from returning to GPE in DATE . They relied on Act No . TIME . They claimed that their property , which they assessed at CZK CARDINAL,CARDINAL , had been confiscated contrary to the law in force at the material time .

On DATE the GPE nad ORG rejected the ORG claim . The court held that the applicants had lodged neither a request for an extension of their permit to stay abroad nor a request for permission to return to GPE . In its view , the NORP authorities had not proceeded contrary to the relevant law . The court concluded that there was nothing to indicate that the ORG was liable for any illegal measure .

In DATE the applicants appealed , challenging ORG material and legal consideration of their case . On DATE the PERSON Regional Court quashed ORG judgment and remitted the case to it . The court stated that the applicants , who had stayed abroad after the expiry of their permits , had not acted illegally and that there was no causal link between their stay abroad and the fact that they had no possibility of using their property . It held that the obligation to request permission to return to GPE had prevented them from exercising their property rights . The court concluded that the national authorities had seized and disposed of the applicants’ property illegally .

On CARDINAL and CARDINAL DATE the applicants extended their original claim for damages to CZK CARDINAL,CARDINAL , claiming that the inventory of their movable property had not been complete and that the value of many objects had been underestimated . On CARDINAL DATE ORG , after having assessed additional evidence including several expert reports concerning the damage incurred by the applicants , and being bound by ORG legal opinion , held that the ORG was to pay damages in the sum of CZKCARDINAL,CARDINAL to the applicants . The court rejected the remainder of their claim . It stated that there was nothing to prove that there had been any movable assets other than those which had been included in the inventory .

On DATE ORG , upon the defendant ’s appeal , upheld this judgment , slightly modifying the rate of the default interest .

On DATE ORG , upon the defendant ’s appeal on points of law , quashed the lower courts’ judgments and remitted the case to ORG for further consideration . ORG held that the applicants’ claim fell within the scope of the Extra - Judicial Rehabilitation Act which was a lex specialis compared to Act No . PERSON and to LAW provisions on liability .

On DATE ORG , being bound by ORG judgment , rejected the applicants’ action for damages in the amount of CZK CARDINAL,CARDINAL . The court stated that the applicants should have lodged their claim under LAW .

The applicants appealed , claiming that their flat had been allocated to a third person after the expiry of the relevant period set out in the Extra - Judicial Rehabilitation Act ( i.e. after DATE ) and that many objects had not been included in the inventory .

On DATE ORG upheld the first instance judgment . The court added that the applicants had wrongly lodged their claim under LAW . TIME . It ruled that the ORG could not be held liable under LAW as it had transferred the property to third persons .

The applicants filed a request for the re - opening of the proceedings prior to the delivery of ORG judgment of DATE . They claimed that the courts , being bound by ORG decision of DATE , had failed to consider assets which had not been recorded in the inventory . On DATE ORG rejected their request as there were no facts , decisions or evidence which could not have been assessed and used in the previous proceedings in the applicants’ favour .

The applicants lodged an appeal on points of law , requesting ORG to adjudicate on whether the Extra - Judicial Rehabilitation Act was applicable to events which had occurred after DATE . They claimed that ORG officials had acted contrary to the relevant law , and that the ORG was liable to pay damages under LAW No . TIME which , they claimed , was a lex specialis compared to the Extra - Judicial Rehabilitation Act .

On DATE ORG rejected the ORG appeal on points of law , quashed ORG judgment of DATE and ORG judgment of DATE to the extent that they concerned the extended claim of CZK CARDINAL filed by the applicants in DATE , and discontinued the proceedings in this respect . It stated that ORG in its judgment of DATE had repeatedly adjudicated on their extended claim despite the fact that the former decision had become res iudicata . The court further examined the lower courts’ legal consideration of the ORG case and concluded that there had been no shortcomings . It added that the legal question of the application of the Extra - Judicial Rehabilitation Act to the applicants’ property , which had been disposed of by the ORG after the relevant period ( i.e. after DATE ) , had not been the subject - matter of the proceedings . It referred in this connection to ORG judgment of CARDINAL DATE .

On DATE the applicants lodged a constitutional appeal , requesting ORG to hold that they were entitled to damages in the amount of CZK CARDINAL,CARDINAL . On DATE ORG rejected their appeal on the ground that it did not satisfy the formal requirements of LAW . It stated that the applicants had submitted a claim for damages , a matter which was outside ORG jurisdiction .


Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE ORG convicted the applicant , who had previously served a prison sentence for , inter alia , sexual assault , rape and theft , of triple murder in coincidence with CARDINAL offences of aggravated robbery , falsification of documents and fraud , and sentenced him to life imprisonment . The court held that the applicant , who had committed the offences while on probation , acted intentionally , in CARDINAL cases motivated by greed ( PERSON ) and to make another offence possible ( PERSON ) , and in CARDINAL case to conceal an offence ( PERSON ) . Based on an expert opinion it further held that the applicant tended to be brutal , had sadistic tendencies and was antisocial .

On DATE , having first served the remainder of the previous sentence after probation had been revoked , DATE of the sentence had been served and the applicant became eligible for parole .

On DATE the prison authorities imposed certain restrictions on the applicant , inter alia solitary confinement . All restrictions were suspended again until , at the latest , DATE . By decision of CARDINAL DATE ORG found the restrictions unlawful as far as they were still in place after DATE .

In DATE and DATE the applicant asked for a relaxation of the conditions of his detention , inter alia , prison leave ( Hafturlaub ) and leave to meet with his lawyer . The prison authorities refused the request ; they found the risk that the applicant would use such leave to commit crimes or flee was too high .

On DATE ORG dismissed an appeal by the applicant . The court held that the prison authorities had not abused their discretion when refusing the prison leave . As to the request for leave to meet his lawyer , it argued that the lawyer could visit the applicant in prison .

On DATE ORG dismissed an appeal by the applicant . On DATE ORG refused to admit the applicant ’s constitutional complaint for adjudication without giving reasons .

In view of his renewed request for a suspension of his sentence on probation in DATE ORG ordered an expert opinion on the question whether the applicant continued to present a danger ; the expert examined the applicant on CARDINAL and DATE .

On DATE ORG , after having heard the applicant and having regard to a report by the prison authorities as well as the expert opinion , refused to suspend the applicant ’s life sentence on probation and decided that the “ particular seriousness ” of the applicant ’s guilt warranted the continuation of his imprisonment until he had served DATE . It primarily relied on the expert ’s opinion , explained by him in person during a hearing , who had diagnosed a dissocial and narcissistic personality disorder and concluded that the risk of the applicant again committing crimes when released had not substantially decreased . The ORG found that these findings alone warranted the refusal of a suspension of the sentence on probation in due consideration of the interests of the security of the public . It further noted that the applicant had been convicted of CARDINAL offences of murder , committed shortly after he had been released from prison and while still on probation . Although ORG observed that in view of his age it was unlikely that the applicant ’s personality would change , it pointed out that a suspension of his sentence on probation could still become possible once he no longer presented a danger because of old age and related health problems .

On DATE ORG dismissed the applicant ’s appeal . It confirmed ORG findings that the degree of guilt , the circumstances of the crimes and the applicant ’s personality , as well as his refusal of therapy , necessitated his further imprisonment , at least until he had served DATE .

On DATE ORG refused to admit a constitutional complaint by the applicant for adjudication . It found no fault in the lower courts’ detailed and reasoned decisions to refuse the suspension of the applicant ’s sentence on probation and to order that he should remain in prison pursuant to the life sentence until he had served DATE . Since the applicant had submitted neither a DATE expert opinion he had referred to nor the DATE expert opinion ORG could especially not find a violation of the lower courts’ duty to clarify the relevant facts ( PERSON ) . Finally , it held that the lower courts had , as far as could be determined without having read the convicting judgment which the applicant had not submitted , correctly determined the “ particular seriousness ” of the applicant ’s guilt .

Pursuant to these provisions the court shall suspend the execution of the remainder of a sentence of imprisonment for life and grant probation , if , inter alia , DATE of the sentence have been served , the degree of the convicted person ’s guilt does not require its continued execution and if this can be justified upon consideration of the security interests of the general public .

When taking the decision , the following shall be taken into consideration ; the personality of the convicted person ; his previous history ; the circumstances of his act ; the extent to which the legal interest would be threatened in the event of recidivism ; the conduct of the convicted person while serving his sentence ; his living conditions ; and the effects suspension could be expected to have .


The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr K. Bernhauser , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Ambassador PERSON , Head of ORG at ORG .

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

The applicant is an estate agent , who has been operating several limited liability companies which dealt with the acquisition , restoration and resale of apartment houses in GPE .

In DATE police investigations were instituted against the applicant . He was accused of having misappropriated his GPE money through an intransigent system of companies . As no proper accounting was set up , he allegedly regularly used revenues coming from CARDINAL company to make up for shortfalls in another one .

Subsequently , on DATE ORG ( PERSON für PERSON ) opened preliminary investigations on suspicion of , inter alia , embezzlement , fraudulent bankruptcy and evasion of social security contributions .

On DATE the preliminary investigations were extended to include the suspicion of aggravated fraud . On the same date PERSON was appointed as accounting expert and requested to prepare a report on the applicant ’s companies .

In the course of DATE a number of witnesses were heard and various premises were searched . In DATE expert NORP submitted an interim report .

On DATE expert NORP submitted a further report .

On DATE ORG ordered the applicant ’s detention on remand for risk of absconding . Further , there was a risk that he might commit another offence similar to the one he was suspected of . Subsequently , ORG extended the applicant ’s detention on remand on DATE , CARDINAL DATE , DATE and DATE .

On DATE and DATE CARDINAL further experts were appointed and ordered to submit reports . On DATE the investigating judge requested expert NORP to supplement her report .

On DATE the applicant was released from detention .

During DATE and CARDINAL all CARDINAL experts submitted interim reports and on DATE expert NORP submitted her final report .

On DATE the applicant was summoned in order to be questioned . He was heard twice in DATE and once in DATE .

On DATE ORG drew up a bill of indictment on charges of embezzlement , fraudulent and negligent bankruptcy , aggravated fraud and misappropriation on numerous counts . On DATE the applicant filed an objection against the indictment .

By decision of DATE ORG ( Oberlandesgericht ) dismissed the objection . It found that there were no formal reasons which would require the proceedings to be discontinued .

DATE and DATE CARDINAL hearings were held before ORG .

On DATE ORG convicted the applicant of fraudulent and negligent bankruptcy and of evasion of social insurance contributions and sentenced him to DATE imprisonment . It acquitted him of the remaining charges .

On DATE the applicant filed a plea of nullity and an appeal against sentence . ORG also filed a plea of nullity .

By judgment of DATE ORG ( Oberster Gerichtshof ) partly confirmed ORG judgment . As regards some of the charges it remitted the case back to ORG .

On DATE the proceedings concerning the remaining charges were discontinued .

Section CARDINAL of LAW ( PERSON ) provides as follows :

“ ( CARDINAL ) If a court is dilatory in taking any procedural step , such as announcing or holding a hearing , obtaining an expert ’s report , or preparing a decision , any party may submit a request to this court for the superior court to impose an appropriate time - limit for the taking of the particular procedural step ; unless sub - section ( CARDINAL ) of this section applies , the court is required to submit the request to the superior court , together with its comments , forthwith .

( CARDINAL ) NORP If the court takes all the procedural steps specified in the request within DATE after receipt , and so informs the party concerned , the request is deemed withdrawn unless the party declares within DATE after service of the notification that it wishes to maintain its request .

( CARDINAL ) The request referred to in sub - section ( CARDINAL ) shall be determined with special expedition by a chamber of the superior court consisting of CARDINAL professional judges , CARDINAL of whom shall preside ; if the court has not been dilatory , the request shall be dismissed . This decision is not subject to appeal . ”


Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Causal link;Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

The applicant 's parents owned a house with a garden and private road . On DATE they donated their property to the ORG . The property was then administered by GPE ( město GPE ) .

On DATE the applicant requested the Municipality to conclude a restitution agreement with her , pursuant to ORG ( hereinafter “ the LAW ” ) . The GPE refused .

On DATE ORG ( okresní soud ) , after having held CARDINAL hearings on DATE and CARDINAL DATE , dismissed the applicant 's action for restitution of the property in question , introduced on DATE and completed on CARDINAL and DATE , stating that the contract of donation had not been concluded under pressure , as envisaged by the LAW .

On DATE the České Budĕjovice Regional Court ( krajský soud ) , upon the applicant 's appeal of CARDINAL DATE , quashed this judgment and remitted the case to ORG .

On DATE and DATE and on CARDINAL and DATE ORG held hearings .

On DATE it ordered the Municipality to restore the property to the applicant . The court , having assessed certain additional evidence , found that the applicant 's parents had signed the contract of donation under pressure .

On DATE ORG , on the defendant 's appeal of CARDINAL DATE , to which the applicant had made her comments on DATE , modified ORG judgment , dismissing the applicant 's claim for restitution . It found that the GPE had not owned the house on DATE , as provided for in the LAW , and that it had not been transferred to the LOC after the entry into force of Act no . CARDINAL/CARDINAL with the obligation to restore it to the former owners .

On CARDINAL DATE the judgment was notified to the applicant who , on DATE , filed an appeal on points of law ( dovolání ) with ORG ( Vrchní soud ) , raising the question of the position of the GPE as defendant .

On DATE ORG , to which the applicant 's case had been transferred for reasons of material competence on DATE , dismissed the applicant 's appeal , endorsing the reasons given by ORG .

On DATE the applicant lodged a constitutional appeal ( ústavní stížnosti ) claiming that the proceedings had been unreasonably long , and that her right to a fair and public hearing respecting the principle of equality of arms had been violated .

On DATE ORG ( PERSON ) dismissed her appeal , stating inter alia that there had been no unjustified delays in the proceedings . It considered that any delay in the proceedings before ORG had been caused by the amendments to LAW ( občanský soudní řád ) . The decision was notified to the applicant 's lawyer on DATE .