CASE OF EREMIA v. THE REPUBLIC OF MOLDOVA

Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for home;Respect for private life);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Positive obligations);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicants were born in DATE respectively and live in GPE .

The first applicant was married to A. , a police officer based at the NORP police station . The second and third applicants are their daughters . According to the first applicant , following the birth of the second daughter PERSON would often come home drunk and assault her , sometimes in the presence of their daughters . On DATE the first applicant petitioned for divorce , having been assaulted by DATE before and having witnessed him verbally abuse their teenage daughters . A. subsequently became more violent , regularly assaulting the first applicant and insulting both her and their daughters .

On DATE the first applicant contacted the local police to report that she had been punched in the head by DATE . On DATE was fined by an administrative court the sum of CARDINAL NORP lei ( ORG , then worth MONEY ( ORG ) ) . On DATE he was given a formal warning by the authority in charge of the police , ORG , to stop his violent behaviour .

On DATE came home drunk and assaulted the first applicant . On DATE she reported the incident to the local prosecutor ’s office .

According to the applicants , on DATE again assaulted the first applicant in the presence of their daughters . He did the same on DATE , this time almost suffocating the first applicant , following which she lost her voice for DATE . On an unknown date the deputy head of the NORP police station invited the applicant to undergo an examination by a forensic physician in order to establish the extent and nature of injuries to her body . The examination took place on DATE but no such injuries were found .

On DATE the applicants applied to ORG for a protection order . A protection order was made on DATE , the judge finding that A. had been abusive towards the first applicant by beating her , insulting her , imposing his will upon her , causing her stress and psychological suffering , threatening her and mistreating their pet . Moreover , this violence had often taken place in the presence of their teenage daughters , whose psychological well - being was being adversely affected as a result . A. was ordered to stay away from the house for DATE and an exclusion zone of QUANTITY was attached to the order , prohibiting A. from contacting the applicants or committing any acts of violence against them . The applicants notified the local police , prosecutor ’s office and social services of the order , which on DATE was served on A.

NORP On DATE the first applicant requested that Judge PERSON from the NORP ORG revoke the DATE waiting period he had insisted the parties observe when the first applicant petitioned for divorce . She based her application on the protection order made DATE and submitted that A. ’s history of violence prevented any possibility of reconciliation . The first applicant alleged that she was informed by Judge PERSON ’s secretary that the judge had refused to treat her divorce as an urgent case . On CARDINAL DATE the first applicant complained to the President of LOC about the judge ’s refusal .

On DATE GPE police opened a case against A. to oversee enforcement of the protection order of DATE . DATE and DATE the local police visited A. on CARDINAL occasions to warn him against alcohol abuse , bringing shame upon his family , insulting his relatives and breaching the protection order .

On DATE was cautioned by local police for his violent behaviour and was made to confirm in writing that he had understood the terms of the protection order . It was established that A. had moved out of the family home and was in temporary local authority housing .

On DATE saw the first applicant in the street and followed her , using insulting and threatening language and trying to apprehend her . He continued to harass her in a shop where she had tried to seek refuge .

On DATE entered the family home notwithstanding the terms of the protection order . According to the Government , however , the applicants had given their permission for him to return until DATE . The applicants maintained that they had not given such permission , A. having assaulted the first applicant , destroyed certain possessions and verbally abused the third applicant on his return . On DATE the first applicant reported the incidents of CARDINAL and DATE to the police . Most of the complaints to various authorities were then forwarded to ORG .

On DATE the first applicant was invited to give statements at GPE police station regarding her complaints against A. She submitted that she was then pressured by the police into withdrawing her criminal complaint , because if A. had a criminal record and lost his job , this would have a negative impact on their NORP educational and career prospects . A meeting with the local prosecutor was fixed for DATE , this time with A. being present . During that meeting the first applicant told the prosecutor that she wanted a divorce but did not want to cause any trouble for her husband .

On DATE the first applicant was informed that the prosecutor would not be initiating a criminal investigation . On DATE returned to the family home . He again assaulted and verbally abused the first applicant , simulating strangling her , and threatened to kill both her and her aunt if she did not withdraw her criminal complaint . On DATE a medical expert found CARDINAL haematomas on the first applicant ’s neck and one on her clavicle , which could have been sustained in the way the first applicant had described .

The Government alleged that on DATE telephoned the third applicant to wish her a happy birthday . They further submitted that having obtained permission from the first applicant , PERSON returned to the home to congratulate his daughter in person , spending TIME there in the presence of all CARDINAL applicants and his father - in - law .

ORG The first applicant reported the incident to LOC on DATE , informing it that she had rejected a request by A. to visit the family home DATE , but that he had turned up nonetheless , in clear breach of the protection order . She asked the court to extend the duration of the order for DATE . On DATE was called before the court and served with an extension of the order .

On DATE ORG informed the first applicant that owing to a clerical error the protection order of DATE had never been enforced by the local social services .

On DATE ORG upheld A. ’s appeal , partly revoking the protection order of DATE . The appellate court found that the law neither expressly provided for the minimum exclusion zone of QUANTITY , nor did it expressly prohibit the abuser from harassing or using physical violence against the victim , although these were implied in the general obligation not to make contact . The appellate court therefore decided to remove these terms from the order .

On DATE the first applicant requested that a criminal investigation be initiated into DATE acts of violence . On DATE the applicants requested that the second and third applicants be officially recognised as victims of domestic violence for the purposes of the investigation .

On DATE the applicants’ lawyer complained to ORG that she had not been invited to the meeting on DATE at ORG ( see paragraph CARDINAL above ) at which the first applicant had been pressured into withdrawing her criminal complaint in ORG ’s presence . Also on CARDINAL DATE a criminal investigation was finally initiated in respect of A. On DATE the applicants again requested that the prosecutor ’s office officially recognise the second and third applicants as victims of domestic violence for the purposes of the investigation .

On DATE the first applicant was invited to a meeting with social workers , who allegedly advised her to attempt reconciliation with A. since she was “ neither the first nor the last woman to be beaten up by her husband ” . On DATE the applicants complained to ORG about the social workers’ attitude .

On DATE the applicants asked the NORP police to fine A. for breaching the protection order on DATE , DATE and DATE and DATE , her main reason being that A. had contacted the first applicant and pressured her into withdrawing her criminal complaint . In response she was informed that on DATE the administrative case file against ORG had been sent to ORG .

On DATE a prosecutor from ORG established that A. had admitted DATE to having physically and psychologically abused CARDINAL members of his family . A. then concluded a plea bargain with the prosecutor asking to be conditionally released from criminal liability . The prosecutor found that there was substantive evidence of A. ’s guilt in the form of various medical reports , witness statements , documents relating to his fine and warnings issued by his employer , ORG . However , given that he had committed a “ less serious offence ” , did not abuse drugs or alcohol , had CARDINAL minors to support , was well respected at work and in the community and “ did not represent a danger to society ” , the prosecutor suspended the investigation for DATE subject to the condition that the investigation would be reopened should PERSON commit another offence during that time .

On DATE the applicants appealed against the prosecutor ’s decision of DATE . On DATE the senior prosecutor rejected that appeal on the grounds that suspending the investigation against A. would afford better protection to the applicants .

“ A criminal investigation may be conditionally suspended , with subsequent release from criminal liability , in respect of a person accused of having committed a less serious offence who admits his or her guilt and does not represent a danger to society , if the rehabilitation of that person is possible without criminal punishment . ”

“ ( CARDINAL ) ORG violence , that is the intentional action or inaction manifested physically or verbally , committed by a member of a family against another member of that family , and which caused physical suffering leading to light bodily harm or damage to health , or moral suffering , or to pecuniary or non - pecuniary damage , shall be punished by unpaid work for the community during TIME , or a prison term of DATE .

( CARDINAL ) The same action :

( a ) committed against CARDINAL or more members of the family ;

( b ) which caused moderate bodily harm or damage to health

- shall be punished by unpaid work for the community during TIME , or a prison term of DATE .

( CARDINAL ) The same action which :

( a ) caused serious bodily harm or damage to health ;

( b ) provoked the victim ’s suicide or an attempt thereof ;

( c ) caused the victim ’s death

- shall be punished by a prison term of DATE . ”

“ ( CARDINAL ) The intentional failure or avoidance from enforcing a court decision , if it was committed after an administrative sanction , shall be punished by a fine of CARDINAL conventional units or by unpaid work for the community during TIME , or with a prison term of DATE ... ”

The relevant provisions of PERSON no . CARDINAL on the prevention of and combat against domestic violence ( DATE , “ the Domestic Violence ( Combat and Protection ) Act DATE ” ) read as follows :

“ ( CARDINAL ) The courts shall , within TIME of receipt of the claim , issue a protection order to assist the victim , by applying the following measures to the aggressor :

( a ) an order to temporarily leave the common residence or to stay away from the victim ’s residence , without making any determination as to the ownership of jointly owned assets ;

( b ) an order to stay away from the victim ;

( c ) a prohibition on contacting the victim , his or her children or other dependants ;

( d ) an order not to visit the victim ’s place of work or residence ;

( e ) an order to pay maintenance for his or her children pending resolution of the case ;

( f ) an order to cover the costs incurred and to compensate for any damage caused as a result of his or her violent acts , including medical expenses and the cost of replacing or repairing any destroyed or damaged possessions ;

( g ) restrictions on the unilateral disposal of jointly owned assets ;

( h ) an order to undergo special treatment or counselling if the court determines that this is necessary to reduce or eliminate violence ;

( i ) an interim contact order for the aggressor to see his or her children below the age of majority ;

( j ) a prohibition on possessing and carrying weapons ...

( CARDINAL ) The protective measures set out in subsection ( CARDINAL ) above shall be applied for DATE and may be discontinued upon the elimination of the threat or danger which caused the adoption of such measures and extended if a further claim is submitted or if the conditions set out in the protection order have not been complied with . ”

Article CARDINAL of the Law on the Police ( no . CARDINAL , republished on DATE ) provides that the main tasks of the police include , inter alia , the protection of the life , the rights and dignity of others , prevention of crime and protection of public order . Under LAW ( CARDINAL) of the same law , a police officer could be dismissed for committing offences discrediting the police .

A summary of the relevant international materials concerning protection from domestic violence , including its discriminatory nature against women , has been made in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , ECHR DATE ) .

In its Recommendation Rec(CARDINAL)CARDINAL of DATE on the protection of women against violence , ORG stated , inter alia , that member GPE should introduce , develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims , support and assistance , adjustment of the criminal and civil law , raising of public awareness , training for professionals confronted with violence against women and prevention .

ORG recommended , in particular , that member States should penalise serious violence against women such as sexual violence and rape , abuse of the vulnerability of pregnant , defenceless , ill , disabled or dependent victims , as well as penalising abuse of position by the perpetrator . The Recommendation also stated that member States should ensure that all victims of violence are able to institute proceedings , make provisions to ensure that criminal proceedings can be initiated by the public prosecutor , encourage prosecutors to regard violence against women as an aggravating or decisive factor in deciding whether or not to prosecute in the public interest , ensure where necessary that measures are taken to protect victims effectively against threats and possible acts of revenge and take specific measures to ensure that children ’s rights are protected during proceedings .

With regard to violence within the family , ORG recommended that Member states should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order , inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims , to ban the perpetrator from contacting , communicating with or approaching the victim , or residing in or entering defined areas , to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police , medical and social services .

In its General Recommendation No . CARDINAL on LAW Parties under LAW ( CEDAW / C/CARDINAL/CARDINAL/GC.CARDINAL ) , ORG found that “ States parties have a due diligence obligation to prevent , investigate , prosecute and punish ... acts of gender based violence ” .

In her report concerning the visit to GPE from DATE ( document ORG , CARDINAL DATE ) , ORG on violence against women , its causes and consequences noted , inter alia :

“ ... patriarchal and discriminatory attitudes are increasing women ’s vulnerability to violence and abuse . In this context , domestic violence in particular is widespread , largely condoned by society and does not receive appropriate recognition among officials , society and women themselves , thus resulting in insufficient protective infrastructure for victims of violence . ...

... CARDINAL . Moldovan women suffer from all forms of violence . However , domestic violence and trafficking are major areas of concern . The CARDINAL are intimately connected and are linked to women ’s overall subordinate position in society . ...

While reliable data and a systematic registering of cases on the nature and extent of the phenomenon is lacking , domestic violence is said to be widespread . According to a Ministry of Labour , ORG and Family report : “ [ ... ] At present , the frequency of domestic violence , whose victims are women and children , is acquiring alarming proportions . Unfortunately , it is very difficult for the ORG to control domestic violence since in most of the cases it is reported only when there are severe consequences of the violence , the other cases being considered just family conflicts .

NORP Despite this acknowledgement , unless it results in serious injury , domestic violence is not perceived as a problem warranting legal intervention . As a result , it is experienced in silence and receives little recognition among officials , society and women themselves .

According to a survey conducted in DATE , CARDINAL per cent of women interviewed reported encountering some form of violence within the family at least once during their lifetime . The survey revealed that psychological violence , followed by physical violence , is the most widely reported form of abuse in the family . CARDINAL of the women interviewed indicated having been subjected to multiple forms of violence . The study notes that domestic violence runs across lines of class and education ; however , women with a higher level of education or economic status may tend not to disclose incidents of violence . Sexual violence remains the least reported form of violence . This may be due to lack of recognition of sexual abuse within the family as a wrongdoing or the fear among victims that they will be held responsible and become outcasts .

The perpetrators of violence against women are often family members , overwhelmingly husbands or former husbands ( CARDINAL per cent ) , followed by fathers or stepfathers ( MONEY ) and mothers or stepmothers ( MONEY ) . Staff at the shelter in GPE indicated that husbands of many of the women who seek help at the shelter are either police officers or from the military , which makes it far more difficult for these women to escape the violent environment and seek divorce . ...

There are also a number of widely held misconceptions about violence against women which treat the problem as isolated cases concerning a particular group . These misconceptions are : ( a ) violence against women is a phenomenon that takes place in poor and broken homes ; ( b ) victims of violence are inherently vulnerable women needing special protection ; ( c ) violent men are deviants who use alcohol and drugs or have personality disorders ; ( d ) domestic violence involves all members of the household , including men . It has been my experience that such misunderstandings often result in misguided and partial solutions , such as rehabilitation programmes for abusers , restrictions over women in order to protect them or gender neutral solutions that overlook the causes of gender - based violence . ”


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre

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

The applicant is the father of a son born on DATE . Following the GPE separation in DATE , the child lived with his mother . The parents divorced in DATE , both parents jointly exercised parental authority . On DATE ORG ( ORG ) appointed ORG as curator ( Ergänzungspfleger ) with the task to organise contacts between the applicant and the child .

On an unspecified date the applicant , represented by counsel , instituted contact proceedings with ORG .

On DATE the ORG commissioned a psychological expert to examine whether contacts between father and son were contrary to the child ’s best interests and in which way contacts could be prepared and established .

On DATE the expert , having examined both parents and the child , submitted his expert opinion . He considered that the child had been traumatised by the “ pathogenic , tense and hostile ( lebensfeindliche ) ” atmosphere which prevailed within the family prior to his GPE separation . As a consequence of this , he was deeply disturbed on an emotional level and with regard to his ability to bond . Even before his GPE separation , he had not been able to build an enduring relationship with his father . Following the GPE separation , and supported by psychotherapeutic measures , he was able to emotionally stabilise . He felt safe with his mother . It was subjectively impossible for him to entertain contacts with his father , as he unconsciously made a connection between his father and the extremely unfavourable circumstances of his early childhood . As a result , he felt massively threatened by his father and refused any contact with him . The expert further noted that the child ’s personality development remained endangered . He considered that any contacts and any form of preparation of contacts between the child and his father would jeopardise his positive development because of the imminent danger of re - traumatisation . It was necessary to grant the child a period of respite of DATE in order to allow him to further stabilise and to pursue his positive development .

On DATE the applicant submitted his comments . He alleged , in particular , that the child ’s mother systematically prevented contacts between father and child . He further submitted that the expert had based his recommendation on false and incomplete facts .

During a hearing which took place on DATE the child ’s curator ad litem stated that the child ’s rejection of his father was so extreme that he did not know how to mitigate it . He considered that forced contacts between father and son could jeopardise the child ’s well - being . The applicant ’s counsel requested ORG to hear further expert opinion .

On DATE the expert stated that the tape recordings he had made of his examination interview were not comprehensible enough to allow for a transcript . However , the applicant ’s factual objections , even assuming they were correct , were irrelevant for the outcome of the expert examination . Furthermore , there was no indication that the child had been influenced by his mother or that he was suffering from the so - called “ parental alienation syndrome ” .

The expert considered that it was presently impossible to establish contacts between father and son . It was essential to grant the child a time of respite in order to allow him to continue his positive development ; this included his protection from further expert examination .

On DATE ORG rejected the applicant ’s request for personal contact and merely allowed the applicant to contact his son in written form and by telephone on specific holidays ; it further obliged the mother to inform the applicant on his son ’s development and to encourage him to get in touch with his father .

ORG noted that contacts between father and son had been increasingly problematic and no immediate contacts had taken place for a longer period of time . While section DATE of LAW ( see relevant domestic law , below ) granted the parent a right of contact to his child , such contacts primarily had to serve the child ’s best interests and well - being . In this respect , the court noted that the expert had insistently and convincingly advised against forced personal contacts between father and son . This assessment was in line with an expert opinion submitted by another psychological expert in the preliminary proceedings . The expert ’s recommendation was further supported by the child ’s curator ad litem and ORG and was in line with the impression the court had gained through hearing the child in person . According to all these sources , the child vehemently refused any contact to his father , felt massively threatened by such contacts and reacted to the mere mentioning of such contacts by showing clear signs of psychological disturbance . It followed that any personal contacts between father and son would be seriously opposed to the child ’s best interests .

ORG further considered that the applicant ’s objections against the expert opinion were irrelevant with respect to the question at issue . It was not the court ’s task to examine the deeper reasons for the child ’s refusal of contact unless those were based on the other parent ’s conduct . In his expert opinion , the expert had examined the reasons for the child ’s refusal and had stated that the mother was not responsible for the child ’s attitude . A further examination would be out of proportion as it was not necessary to decide the legal questions raised by the case .

On DATE ORG ( Oberlandesgericht ) rejected the applicant ’s appeal and suspended the applicant ’s right to personal contacts to his son until DATE . Applying Section DATE § CARDINAL ( CARDINAL ) of LAW and relying on the expert opinion , which was corroborated by the statements made by the curator ad litem and by ORG , ORG considered that a suspension of personal contacts for DATE was indicated in order to allow the applicant to examine the impact of his contacts on his son and in order to reduce the risks for the child ’s development .

On DATE ORG refused to accept the applicant ’s constitutional complaint .

According to LAW , a child is entitled to have contact with his or her parents ; each parent is obliged to have contact with , and is entitled to such contact with , the child .

Pursuant to subsection CARDINAL , each parent is obliged to refrain from any actions which could disturb the relationship of the other parent with the child .

The family courts can restrict or suspend a parent ’s rights of contact if such a measure is necessary for the child ’s welfare . A decision restricting or suspending that right for a lengthy period or permanently may only be taken if otherwise the child ’s welfare would be jeopardised ( LAW ) .


Preliminary objection joined to merits;Preliminary objection rejected;Violation of Art. 5-3;Not necessary to examine Art. 5-4;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a GPE national , born in DATE . At the relevant time , he resided in GPE , GPE , and was a storekeeper .

On TIME DATE , at TIME , he was arrested by the police .

On DATE the applicant was brought before a magistrate of ORG . The charge was read out by a police inspector and alleged that the applicant had defiled his minor daughter ( an offence involving sexual acts ) and committed acts of violent assault on her . The applicant pleaded not guilty .

After the hearing , the applicant contacted a lawyer who arranged to meet with him DATE , DATE , which was a DATE . On TIME Monday DATE the applicant ’s lawyer filed a written application for bail . It stated that the applicant lived in GPE , was employed there , and although he had problems with his NORP wife he had nevertheless very good relations with his in - laws . There was no fear of him absconding . Even if he were to go to GPE , extradition provisions would make it impossible for him to avoid being brought to trial if the Attorney - General decided to indict him . The application further stated that the applicant strenuously denied the charges and was being detained on the basis of mere unfounded allegations . The magistrate before whom he had been brought had no power to order his release . He had not been assisted by a lawyer and his application was being filed with the registry of ORG at the first opportunity . He requested the court to release him as there were no reasons justifying his continued detention .

The application was immediately sent to the Attorney - General who was given TIME in which to reply .

On DATE , that is on DATE , the Attorney - General , by a declaration in writing , stated his opposition to the applicant ’s release .

Still on DATE , a magistrate of ORG took the decision to reject the applicant ’s bail application . The recollection of the magistrate is that this decision was taken either TIME or early in TIME of DATE . The magistrate in question was not the same magistrate before whom the applicant had appeared on DATE and had not himself examined the applicant . On DATE the registrar of ORG entered the second magistrate ’s decision in the court ’s records .

On DATE the second magistrate began hearing evidence and on DATE he ordered the applicant ’s release on bail .

On DATE ORG convicted the applicant and gave him a DATE suspended prison sentence . On DATE ORG upheld the applicant ’s conviction .

Section CARDINAL of the Criminal Code provides as follows :

“ Any magistrate who , in a matter within his powers , fails or refuses to attend to a lawful complaint touching an unlawful detention , and any officer of ORG , who , on a similar complaint made to him , fails to prove that he reported the same to his superior authorities within TIME shall , on conviction , be liable to imprisonment for a term from DATE . ”

In its judgment of DATE in PERSON v. Attorney - General ORG rejected the appellant ’s argument that section CARDINAL of LAW only provided for a penalty and not for a remedy . According to ORG , if the way in which this section had been applied were to be examined , the conclusion would be the same as that reached by Chief Justice PERSON . The latter in his academic writings asserted that although habeas corpus is not essentially a part of the ordinary law of GPE , there are in LAW two provisions , namely sections CARDINAL and CARDINAL which , taken together , may be regarded as providing an equally effective safeguard of personal freedom .

The parties before ORG referred to the following examples of cases in which section CARDINAL had been invoked .

On DATE the ORG ordered PERSON to be detained for TIME for contempt of court . The detainee appealed under section CARDINAL of LAW . The Attorney - General , with reference to ORG having invoked section CARDINAL of LAW , requested ORG to order the acting registrar of the court and the Commissioner of Police to bring ORG before the court and order either of them to set him free at once . ORG ’s appeal had suspensive effect on the execution of the judgment and , as a result , his continued detention was illegal . ORG acceded to the Attorney - General ’s request .

PERSON , later christened PERSON , invoked section CARDINAL of LAW to challenge his prolonged and indefinite detention further to a removal order . He claimed that his detention , which had started in DATE , had been rendered illegal because of its length and indefinite duration . On DATE ORG ordered that the Attorney - General be notified and , having heard his views , still on DATE , decided to reject the application .

On DATE PERSON relied on section CARDINAL of LAW to challenge the lawfulness of his prolonged detention pending an investigation into his assets , which had been sequestrated by court order . He claimed that the detention had been unduly prolonged . Moreover , he asserted that he had very little property . On DATE ORG transmitted the case file to the Attorney - General and abstained from further consideration of the application .

On DATE ORG rejected an application for release by PERSON . It observed :

“ As results from the records several applications have been filed , before this ORG and before ORG , so that the person charged may be released , which applications have always been dealt with expeditiously , which fact makes it manifest in the most glaring manner how superfluous and incomprehensible the first paragraph of the present application is , where it refers to section CARDINAL of LAW . ” ( unofficial translation from GPE )

Moreover , the Government claimed that if it appeared to the magistrate that the arrest was unlawful the magistrate was obliged to order the arrested person ’s release . The magistrate had this obligation by virtue of the provisions of section CARDINAL of LAW . Every person in GPE was assured that an arrest could not last beyond TIME and the appearance before the magistrate ensured that if the arrested person had any submissions to make , he or she could do so in the presence of a totally independent person and not before a representative of the prosecuting authority . In connection with habeas corpus decisions , under section CARDINAL of LAW the magistrate did not need to hear the Attorney - General . However , since this was an adversarial procedure where the prosecution was led by the police , the magistrate was expected to hear the police as parties to the case in observance of the principle audi alteram partem and the principle of equality of arms . This was a power quite separate and distinct from the power to grant bail . If the arrest was found by the magistrate to be unlawful then the magistrate had to order the release of the person arrested and the question of bail did not therefore arise . Only if there was nothing to show that the arrest was unlawful did the question of bail arise .

Section CARDINAL of LAW , read together with section CARDINAL , is considered by the Government to provide an effective safeguard of personal freedom equivalent to habeas corpus ( see paragraph CARDINAL above ) . Section CARDINAL addresses the powers and duties of the police in respect of criminal prosecutions and reads as follows :

“ CARDINAL . ( CARDINAL ) Every officer of ORG below the rank of inspector shall , on securing the person arrested , forthwith report the arrest to an officer not below the rank of inspector who , if he finds sufficient grounds for the arrest , shall order the person arrested to be brought before ORG ; otherwise he shall release him .

( CARDINAL ) Where an order is given for the person arrested to be brought before ORG , such order shall be carried into effect without any undue delay and shall in no case be deferred beyond TIME . ”

The powers of ORG in respect of arrested persons who are brought before it under section CARDINAL of LAW were discussed in extenso in the PERSON case .

On DATE PERSON , who had been arrested on suspicion of having committed a criminal offence punishable with more than CARDINAL years’ imprisonment , was brought before ORG . He claimed that the prosecution at that stage was obliged to convince the magistrate that the arrest was lawful .

This request was dealt with by ORG on DATE in the following manner :

“ The procedure which should be followed by ORG as a ORG is set out in sections CARDINAL to CARDINAL of LAW . Subsection ( CARDINAL ) of section CARDINAL provides how proceedings should start before this court : it ‘ shall hear the report of the police officer on oath , shall examine , without oath , the party accused , and shall hear the evidence in support of the PERSON . The time - limit for the conclusion of this inquiry is DATE as indicated in section CARDINAL . In no way is the ORG bound to hear any evidence in support of the report . Moreover , the fact that the prosecuting officers confirm the report on oath is meant to satisfy the ORG that there is a reasonable suspicion for the person charged to be presented under arrest in view of the charges brought against him .

ORG does not find anything to censure in the fact that the report confirmed on oath consists of a confirmation on oath of the charges ; after all , in this contest , the word ‘ PERSON means ‘ ORG . This is the procedure followed in this case and it is the correct procedure .

Consequently , the ORG declares that the requests of the person charged are unfounded and therefore rejects them . ” ( unofficial translation from NORP )

Mr PERSON lodged a constitutional application arguing that there had been a breach of LAW . On DATE the First Hall of the Civil Court found that Article CARDINAL § CARDINAL did not impose any obligation on the magistrate before whom an arrested person appeared to examine whether or not that person ’s arrest had been made on a reasonable suspicion . Moreover , the court considered that Article CARDINAL § CARDINAL did not impose on the prosecution any duty , on presenting the arrested person , to adduce evidence that the police had a reasonable suspicion at the time of the arrest . On DATE ORG upheld the decision of FAC .

CARDINAL

“ According to the constant practice of this ORG and according to LAW , this ORG can not consider any circumstances at this stage and has to regulate itself according to the charges brought forward by the prosecution .

The ORG , furthermore , can not enter into any question to consider ex officio the release from arrest , but first an application has to be filed which has to be notified to the Attorney - General , and after his reply or failing such a reply after the time set by law , it may decide on release under guarantees .

Therefore what the defence is requesting is outside the functions of this ORG .

Having regard to sections CARDINAL ) , CARDINAL ) and CARDINAL(CARDINAL ) of LAW , the ORG declares itself not competent to comply with the request and directs the person charged , that if his request for release is to be considered , he has to comply with what is provided in the sections herementioned . ” ( unofficial translation from NORP )

The Criminal Code contains the following sections concerning bail :

“ CARDINAL . ( CARDINAL ) Any accused person who is in custody for any crime or contravention may , on application , be granted temporary release from custody , upon giving sufficient security to appear at the proceedings at the appointed time and place .

( CARDINAL ) The demand for bail shall be made by an application , a copy whereof shall be communicated to the Attorney - General on DATE , whenever it is made by –

( c ) NORP persons accused of any crime punishable with more than three years’ imprisonment …

( CARDINAL ) The Attorney - General may , within DATE , by a note , oppose the application , stating the reasons for his opposition .

The amount of the security shall be fixed within the limits established by law , regard being had to the condition of the accused person , the nature and quality of the offence , and the term of the punishment to which it is liable .

( CARDINAL ) ORG for bail is given by the production of a sufficient surety who shall enter into a written recognisance in the sum fixed .

( CARDINAL ) It may also be given , whenever the court shall deem it proper , by the mere deposit of the sum or of an equivalent pledge , or by the mere recognisance of the person accused .

( CARDINAL ) ORG may not ex officio grant bail , unless it is applied for by the person charged or accused .

GPE ”

By virtue of LAW of DATE the ORG became part of the law of GPE .

In its GPE judgment of CARDINAL DATE , ORG held that judges in GPE have to take into consideration the case - law of ORG .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lived in PERSON . She died on DATE , in the course of the proceedings , and she was represented before the ORG by her husband PERSON PERSON . Her heirs , PERSON and PERSON , the late applicant ’s daughter , have elected to pursue the application before the ORG .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , ORG Attorney - General .

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

On DATE the applicant instituted denationalisation proceedings with GPE ( PERSON ) seeking restitution of nationalised land that had previously belonged to her late father . It seems that after the reform of public administration the case was transferred in due course to ORG enota PERSON , “ KAU ” ) .

On DATE the administrative authority asked the applicant to complete her request , giving her detailed instructions regarding the missing documents .

On DATE the ORG came into force in respect of GPE .

On DATE and DATE the applicant lodged CARDINAL complaints , with ORG ( Ministrstvo za okolje in prostor , “ MESP ” ) and ORG kmetijstvo , gozdarstvo in prehrano , “ GPE ” ) respectively , on account of ORG ’s failure to render a decision ( silence of administrative authorities , pritožba zaradi molka organa ) . She did not , however , pursue the complaints further as prescribed by law .

On DATE and DATE KAU forwarded progress reports on the case to both ministries , emphasizing that the applicant ’s request was incomplete . Afterwards the applicant submitted several documents but , despite ORG ’s instructions , failed to duly complete the request .

On DATE and DATE hearings were held by the administrative authority regarding the correct completion of the request .

On DATE issued a decision rejecting the applicant ’s request for denationalisation in part and upholding the remainder . She appealed to the MESP .

On DATE appointed an expert surveyor .

On DATE MESP issued a decision upholding the appeal and remitting the case for re - examination .

On DATE the expert opinion was issued .

On DATE the applicant lodged a complaint with ORG and ORG on account of ORG ’s failure to render a decision ( pritožba zaradi molka organa ) .

On DATE the administrative authority invited the applicant ’s attorney for a consultation regarding the completion of the request .

On DATE the administrative authority held a hearing .

On DATE the applicant ’s attorney withdrew from the case .

On DATE the administrative authority appointed an expert in building construction .

On DATE the administrative authority received the expert ’s opinion .

After several requests from KAU for the applicant to complete the request for denationalisation , she duly completed it on DATE .

On DATE and DATE CARDINAL hearings were held .

On DATE KAU issued a partial decision holding that ORG ( PERSON odškodninska družba , “ ORG ” ) was to pay the applicant compensation for part of the nationalised property . The ORG lodged an appeal with ORG .

On DATE and CARDINAL DATE the applicant lodged CARDINAL complaints , with ORG and ORG , for failure to render a decision ( pritožba zaradi molka organa ) .

On DATE MESP issued a decision and remitted part of the case for re - examination .

On DATE and DATE KAU issued CARDINAL partial decisions . The ORG appealed against both decisions .

On DATE the administrative authority accepted that PERSON , the applicant ’s sister - in - law , had locus standi as a third party in the domestic proceedings for CARDINAL parcel of the disputed nationalised property .

On DATE MESP allowed the CARDINAL complaints and annulled the partial decisions . MESP reduced the amount of damages awarded for part of the nationalised property and remitted the remainder of the case to KAU for re - examination

On DATE the applicant died . On DATE her husband ( Mr PERSON ) and her daughter ( PERSON ) were declared the sole heirs ( hereinafter referred to as the heirs ) in the inheritance proceedings and they continued the applicant ’s claims before the NORP authorities and domestic courts as provided by LAW .

On DATE and DATE the administrative authority held hearings .

On DATE the heirs lodged a hierarchical complaint against the public officer dealing with the case , requesting her to step down .

On DATE KAU issued a partial decision . Both parties appealed to MESP .

On DATE the heirs lodged a complaint with MESP for failure to render a decision ( pritožba zaradi molka organa ) .

On DATE MESP upheld the heirs’ appeal , annulled KAU ’s partial decision and remitted the case for re - examination .

On DATE the heirs lodged another complaint with MESP for failure to render a decision ( pritožba zaradi molka organa ) .

On DATE the heirs instituted proceedings against MESP with ORG ( ORG sodišče PERSON , ORG ) , for failure to render a decision in the pending denationalisation proceedings .

On DATE ORG dismissed the claim as premature , since the heirs had failed to comply with the set time - limits and therefore to properly avail themselves of the above - mentioned remedy .

On DATE the heirs lodged another complaint with the MESP for failure to render a decision ( pritožba zaradi molka organa ) .

On DATE KAU issued a decision regarding CARDINAL plot of nationalised land . Both parties appealed .

On DATE ORG rejected both appeals as unfounded .

On DATE the heirs challenged the ORG ’s decision before ORG .

On DATE a judgment was issued , rejecting the heirs’ claim as unfounded .

On DATE ORG issued a judgment following an appeal against ORG ’s decision of DATE lodged by the third party in the proceedings ( see paragraph CARDINAL above ) .

On DATE the administrative authority requested the heirs to pay the procedural costs as provided for in the decision issued on DATE .

On DATE the administrative authority lodged a request for enforcement against the heirs , which was withdrawn on DATE .

On DATE the heirs lodged a complaint with the MESP for failure to render a decision .

On DATE the applicant lodged another request for restitution of nationalised property with KAU .

On DATE issued a partial decision rejecting the applicant ’s request for being lodged out of time ( the deadline for submitting requests for denationalisation expired in DATE ) .

On DATE the applicant appealed to ORG , gozdarstvo in prehrano , “ GPE ” ) .

On DATE the applicant lodged a supervisory complaint with ORG as it had not rendered a decision on her appeal of DATE .

DATE . On DATE issued a decision dismissing the applicant ’s appeal on procedural grounds .

On DATE the applicant instituted proceedings in the ORG seeking annulment of ORG ’s decision .

On DATE a decision was issued dismissing the applicant ’s claim . The decision was served on the applicant on DATE .

On DATE the applicant appealed to ORG sodišče ) . On DATE ORG dismissed the applicant ’s appeal .

On DATE the heirs lodged a constitutional complaint with ORG ( PERSON sodišče ) .

On DATE ORG rejected the heirs’ constitutional complaint as unfounded .

On CARDINAL DATE the applicant lodged a request with ORG ( PERSON sodišče v PERSON ) for determination of damages for the seized property .

On DATE a hearing was held and she withdrew the request as premature , due to the pending denationalisation proceedings .

The DATE Act on Denationalisation

“ Should the recoverers referred to in ORG ( ... ) be deceased or legally proclaimed as such , their legal successors shall be considered as the recoverers .

“ The decision of the body of first instance concerning the request ( ... ) must be issued and served on the applicant within DATE at the latest following the filing of any such properly presented request .

The DATE Administrative General Procedure Act

The DATE LAW

If the appellate body does not rule on the applicant ’s appeal against the first - instance decision within DATE or within a shorter period , if any , provided by law , and fails to make an award upon a subsequent request within a further period of DATE , the applicant may then bring an administrative action , as if his request had been dismissed .

The applicant may also act in accordance with the preceding paragraph when an administrative body of the first - instance fails to give a decision from which no appeal lies .

If in matters where a right to an appeal exists a body of the first instance fails to give a decision upon the individual ’s application within DATE or within a shorter period , if any , provided by law , the individual may then submit his application to the appellate administrative body . Should the latter find against him , the individual may then bring an administrative action . The individual may also bring an administrative action under the conditions set out in paragraph CARDINAL . ”

The Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . CARDINAL “ the CARDINAL Act ” )


CASE OF GIUSEPPINA AND ORESTINA PROCACCINI v. ITALY

Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE Mr ORG , the applicants’ father , brought proceedings against PERSON , a company , in ORG to have a contract for the installation of windows in his flat set aside and seeking compensation for the damage incurred .

Preparation of the case for trial began on DATE . Of the CARDINAL hearings listed between CARDINAL DATE and CARDINAL DATE CARDINAL were adjourned by the court of its own motion and CARDINAL because PERSON ’s lawyer had failed to appear , CARDINAL were devoted to organising expert evidence , CARDINAL to hearing evidence from witnesses , CARDINAL was adjourned because the judge had withdrawn from the case , another one was adjourned because PERSON lawyer had failed to appear and a further one was adjourned at his request . The applicants declared their intention to continue the proceedings following PERSON death on DATE .

On an unspecified date the case was referred to the bench of judges dealing with the oldest cases ( sezione stralcio ) .

Of the CARDINAL hearings listed DATE and DATE CARDINAL were adjourned by the court of its own motion , CARDINAL was adjourned by the judge responsible for preparing the case , CARDINAL was devoted to a request to set the case down for hearing of oral submissions and CARDINAL to hearing the submissions .

In a judgment of DATE , the text of which was deposited with the registry on DATE , the court granted the ORG claims in part and awarded them MONEY ( ORG ) in compensation for the damage sustained .

On DATE the applicants lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the excessive length of the above - described proceedings . The applicants requested the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the non - pecuniary damage sustained . The applicants claimed MONEY ( EUR CARDINAL,CARDINAL.CARDINAL ) each in non - pecuniary damages plus an unquantified amount for costs and expenses .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that the proceedings had been excessively long . It held as follows :

“ Whereas ...

the applicants , as Mr PERSON ’s heirs , continued the proceedings he had instituted in LOC by a summons served on DATE seeking an order against the defendant company to replace a number of defective frames that it had installed ;

– during the proceedings an expert report was ordered and produced ;

– the proceedings are still pending before the sezione stralcio bench ;

– there has without any doubt been a breach of the reasonable - time requirement in respect of proceedings that have lasted DATE ;

– for want of proof of pecuniary damage , a total amount of CARDINAL can be awarded under the head of non - pecuniary loss for damage to quality of life plus statutory interest to accrue from the date of the claim , on account of the very low stakes involved in the proceedings . ”

ORG dismissed the claim for pecuniary damages for lack of proof and awarded a global sum of ORG CARDINAL , on an equitable basis , in compensation for non - pecuniary damage and ORG CARDINAL for costs and expenses . That decision was served on DATE and became final in DATE .

When payment was not forthcoming , on CARDINAL DATE the applicants served notice on the authorities to pay the amounts owed . When that proved unsuccessful they applied for a garnishee order , which was granted them on CARDINAL DATE against ORG . According to the information provided by the applicants at the hearing on DATE , ORG decision had not yet been executed .

In a letter of DATE the applicants informed ORG outcome of the domestic proceedings and asked it to resume its examination of their application .

In the same letter the applicants also informed the ORG that they did not intend to appeal to ORG because an appeal to that court could only be on points of law .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW

CHAPTER II

Just satisfaction

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable - time’ requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

Section CARDINAL Procedure

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

Section CARDINAL Time - limits and procedures for lodging applications

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

Section CARDINAL Communications

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

Section CARDINAL Transitional provisions

“ CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable - time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

NORP The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”

Section CARDINAL Financial provisions

“ CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ‘ special fund’ in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

The Ministry of the ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court ’s decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal ’s determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . ”

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE

“ ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “ violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . ” In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being “ brought into conformity ” by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .

It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to “ reasonable time ” ) , can not diverge from the interpretation which ORG gives of the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ‘ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : “ the ORG may only deal with the matter after all domestic remedies have been exhausted ” ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be “ effective ” ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had “ clogged ” ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE “ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention ” ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a “ victim of a violation ” ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the “ just satisfaction ” provided for in LAW , which , when the violation exists , is only awarded by the ORG “ if the internal law of ORG concerned allows only partial reparation to be made ” . Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .

This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only “ partially ” , because in such an event the said LAW provides for the intervention of ORG to protect the “ victim of the violation ” . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply LAW of LAW to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing LAW no . PERSON ) , affirmed that “ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention ” .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant “ a protection analogous to that which he or she would receive in the international court ” , as the direct reference to LAW makes it possible to transfer to domestic level “ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits ” .

... CARDINAL . – The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

CARDINAL – In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) ” .

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the “ Pinto Act ” ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

The Court of Cassation judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...

This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .

ORG made the following observations :

“ ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) .

– the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) . ...

– a discrepancy in the method of calculation [ between the ORG ’s case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . CARDINAL/CARDINAL ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle stated in LAW ... ”

In the report ORG , revised on DATE , the ORG deputies made the following indications regarding an assessment of the Pinto remedy :

“ ... CARDINAL . As regards the domestic remedy introduced in DATE by the “ Pinto Act ” , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... ”

In this interim resolution the ORG deputies indicated as follows :

“ ORG

Noting ...

“ ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the " Pinto ” law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE ’s obligation under the ORG and the ORG ’s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE ’s jurisdiction . ... ”

ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § ( CARDINAL ) the ORG noted that “ the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . ”


A list giving the names of the applicants is appended to the present decision .

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

and apparent from documents available to the public , may be summarised as follows .

In TIME CARDINAL to CARDINAL DATE a fire broke out in a detention centre at GPE ( GPE ) FAC . The detainees were aliens due to be deported to other countries . CARDINAL detainees were killed , QUANTITY persons ( mostly detainees ) were injured . Surviving detainees were taken to other detention facilities .

Technical investigations led to the finding that CARDINAL of the detainees had started the fire by negligently tossing a burning cigarette into a waste paper basket .

CARDINAL of the original applicants wrote to ORG ( officier van justitie ) of ORG ( rechtbank ) of GPE on DATE asking for the prosecution of the then Minister of ORG and Minister for ORG , who in their submission bore responsibility for the events complained of . On DATE ORG informed the applicants of his refusal , ORG lacking competence in the matter ( LAW , see below ) .

On DATE the applicants lodged a complaint about the failure to prosecute with ORG ( gerechtshof ) of GPE . On DATE ORG gave a decision finding that it was not competent to order the prosecution of Government ministers and referring the matter to ORG ( PERSON ) .

On DATE the Procurator General gave an advisory opinion expressing doubts as to whether all the applicants could be found to have a sufficient interest in the case . Be that as it might , under international law – including LAW under its procedural head – it was left to domestic law to appoint the competent authority ; it was therefore not incompatible per se with LAW to make the prosecution of the CARDINAL ministers conditional on LAW or a decision of ORG of ORG .

On DATE ORG gave a decision noting the absence of LAW or decision of ORG of ORG and declaring the ORG complaint about the failure to prosecute inadmissible . This brought the domestic proceedings to an end .

In the meantime , an independent committee ( PERSON , ORG ) undertook an investigation based on the following CARDINAL questions :

Firstly , why were CARDINAL detainees killed in the fire ?

Secondly , how were the other persons involved received and taken care of afterwards ?

It submitted its report to ORG of ORG on DATE . The report itself ran to CARDINAL pages , not including CARDINAL pages of appendices and CARDINAL page of recommendations .

On the first point , the report found fault with the following CARDINAL Government institutions for having insufficient regard to fire safety :

ORG , in particular ORG ( ORG ) , responsible for laying down the applicable technical specifications and for securing the safety of the detainees ;

ORG and the Environment ( Ministerie van Volkshuisvesting , PERSON en Milieubeheer ) , and in particular ORG ( GPE ) , responsible for ordering the detention centre to be built and as owner of the building ;

the Municipality of PERSON , within whose territory the detention centre was located , responsible for issuing the necessary building licences and supervising compliance and for the local fire services .

Primary responsibility was imputed to ORG , although each of the CARDINAL parties had shown a tendency to count too heavily on the other QUANTITY doing what was needed .

As a technical matter , it was found after extensive testing that the fire could well have been started by a cigarette end and that technical failure was so unlikely a cause as to be excluded .

On the second point , the report criticised certain shortcomings in the care given to the surviving detainees following relocation but noted that some of the detainees had themselves failed to co - operate , some for example claiming false identities .

The report made recommendations to the above CARDINAL Government institutions and the Minister of the Interior and ORG ( PERSON en GPE ) .

ORG was not among the Government bodies found at fault .

The Minister of ORG and the Minister of ORG and the Environment both resigned on grounds of political responsibility shortly after this report was published .

The original applicants are a non - governmental organisation ( ORG , “ ORG ) and CARDINAL individuals . Of the latter , CARDINAL claim kinship with individuals killed in the fire ; they are applicants no . CARDINAL , PERSON , sister - in - law of the late Mr PERSON , and no . CARDINAL , Mr PERSON , cousin of the late Mr PERSON . CARDINAL , applicant no . CARDINAL , PERSON , claims kinship with a survivor , Mr PERSON .

The original applicants were later joined by former detainees who had survived the fire , namely applicants nos . CARDINAL and DATE , Mr PERSON and Mr Chafik Chnachi ( letter of CARDINAL October CARDINAL ) , and applicants ORG . CARDINAL and CARDINAL , PERSON and PERSON ( letter of DATE ) .

The detainee found to have set the waste paper basket alight , Mr PERSON , was among the survivors . He was tried for having started the fire through criminal negligence and convicted both at first instance and on appeal ; the conviction and sentence are not yet final as both the prosecution and Mr PERSON himself have appealed on points of law to ORG . Mr PERSON has also joined the case as an applicant ( no . DATE , letter of DATE ) .

At the time of the events complained of , relevant provisions of LAW provided as follows :

“ CARDINAL . If the perpetrator of a punishable act is not prosecuted , or if the prosecution is not pursued to a conclusion , then anyone with a direct interest ( rechtstreeks belanghebbende ) may lodge a written complaint with ORG within whose area of jurisdiction the decision has been taken not to prosecute or not to pursue the prosecution to a conclusion .

“ If the complaint is not within the competence of ORG , that court shall declare that it lacks competence . If ORG considers that ORG or ... ORG has competence , it shall refer the case to the court which it considers to have competence , at the same time forwarding the written complaint and a copy of its decision . ”

Article CARDINAL of the LAW for GPE ( PERSON voor het FAC ) provides as follows :

“ Members of ORG , Ministers and Deputy Ministers shall be tried for crimes committed in their official capacity by ORG , even after their resignation . The prosecution order shall be given by LAW ( koninklijk besluit ) or by a decision of ORG of ORG . ”

No such prosecution has ever been brought .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in the village of GPE , the GPE region of GPE .

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

In DATE the applicant instituted proceedings in the GPE City Court of GPE against the “ ORG - a ORG - owned enterprise - to recover unpaid salary for DATE .

On DATE the ORG found in favour of the applicant ( рішення PERSON міського суду PERSON області ) and awarded him UAH CARDINAL,CARDINAL.CARDINAL in salary arrears and compensation for devaluation . The decision became effective on DATE and was sent for execution to ORG ( ORG виконавчої служби PERSON міського управління юстиції ) . However , the decision was not executed , allegedly due to the failure of ORG to act in not selling the property of ORG .

NORP In the course of the enforcement proceedings , it was established that on DATE ORG ( ORG суд PERSON області ) had instituted bankruptcy proceedings against the “ ORG .

The applicant instituted proceedings in the Novogrodivsky City Court of GPE against GPE for failure to execute the court decision in his favour . On DATE ORG rejected the applicant ’s claim , finding no fault had been committed by that ORG . The court stated that ORG had presented a decision of ORG of GPE of DATE to the respondent company . This decision prohibited the enforcement of judgments against the company by selling its property , due to the bankruptcy proceedings which had been initiated against it .

On DATE ORG dismissed the applicant ’s appeal . On DATE the panel of CARDINAL judges of ORG of ORG of GPE rejected the applicant ’s request for leave to appeal .

On DATE the ban on the forced sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital was entrenched in the PERSON on the Introduction of a Moratorium on the Forced Sale of Property . On DATE the Constitutional Court found the moratorium to be compatible with the provisions of the LAW .

On DATE the full amount awarded to the applicant was transferred to his bank account , and on CARDINAL May CARDINAL the enforcement proceedings were completed .

Under LAW ( ORG PERSON відновлення платоспроможності боржника або визнання його банкрутом ” ) , a commercial court is entitled to order a moratorium on debt recovery from a company which is the subject of bankruptcy proceedings . The moratorium implies a prohibition on ORG to execute judgments against such a company . The same LAW provides that the company protected by moratorium shall be immune from any fines and other sanctions for non - fulfilment or improper fulfilment of its financial obligations during the moratorium .

The Law ( ORG Про введення мораторiю на примусову реалiзацiю TIME ” ) aims at protecting ORG interests on the sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital . A moratorium on the enforcement of judgment debts has been introduced until such time as the mechanism for the forced sale of the property of such undertakings has been improved . No time - limit has been set . LAW provides that the prohibition on the forced sale of property includes the execution of writs by ORG on property belonging to such companies . The PERSON therefore stays the execution of all writs by ORG against the assets of or undertakings in which the ORG holds PERCENT of the share capital .

Under LAW , in case of delay in the fulfilment of its financial obligations , the debtor must , upon a claim by the creditor , pay the amount of the debt , plus any interest payable at an officially established inflation rate during the default period .

Under LAW ( ORG PERSON виконавче провадження ” ) , the enforcement of judgments is entrusted to ORG . Under LAW , the creditor may file a complaint against actions or omissions of ORG with the head of the competent department of that ORG or with a local court . Article CARDINAL of the PERSON entitles the creditor to institute court proceedings against a legal person , entrusted with the enforcement of a judgment , for the inadequate enforcement or non - enforcement of that judgment , and to receive compensation .

LAW ( ORG “ Про державну виконавчу службу ” ) provides for the liability of bailiffs for any inadequate performance of their duties , and compensation for damages caused by a bailiff when enforcing a judgment . Under LAW , acts and omissions of the bailiff can be challenged before a superior official or the courts .

In its judgment , ORG of GPE mentioned in particular :

“ ORG considers that the PERSON [ on the moratorium ] does not violate the constitutional requirement about the binding nature of court judgments . Court judgments on the forced attachment of the property of enterprises , given both prior to and after the PERSON was adopted , have not been abolished by it ; they remain in force , and their enforcement is suspended until the mechanism for the forced sale of property is improved . That means that the PERSON established an extended term of enforcement during this period ....

... ORG has decided :

To recognise that the PERSON “ on the Introduction of a Moratorium on the Forced Sale of Property ” of CARDINAL DATE complies with LAW ( is constitutional ) . ... ”


SPASESKI AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Anatoly Kovler;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Peer Lorenzen

The present application invokes a total of CARDINAL applicants . Their personal details are set out in the annex to this decision . All applicants are NORP nationals . All applicants were represented before the ORG by Mr B. Šokoski , with the exception of PERSON and PERSON GPE , who were represented by PERSON , both lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The first , second , third , fourth , eighth and ninth applicants are former employees of the private company ORG , and the remaining applicants of the private company ORG ( “ the former employers ” ) . They all brought civil actions against the former employers claiming payment of employment - related benefits , namely DATE - leave allowance ( регрес за годишен одмор ) , food ( хранарина ) and travelling allowances that they had not received during their employment ( “ the reference period ” ) . The only exception was that the first , second and third applicants did not claim payment of the travelling allowance . All claims were submitted to ORG . The ORG cases were finally decided by ORG with decisions rendered DATE and DATE . The relevant facts concerning the applicants’ claims , the reference period and the outcome of the domestic proceedings are contained in LAW , CARDINAL and CARDINAL below :

Article CARDINAL § CARDINAL of the LAW provides that employees’ rights are regulated by law and collective agreements .

Under LAW , ORG is the highest court , providing for the uniform application of laws by courts .

Under LAW , employment - related issues were regulated by this LAW or other laws and collective agreements .

Section CARDINAL of this Act provided that an employer could not take any action or decision restricting employment - related rights regulated by the LAW , law and collective agreements .

Under section CARDINAL § CARDINAL ( CARDINAL ) and ( CARDINAL ) of the DATE LAW , employees were entitled to food and travelling allowances .

Under section CARDINAL , proceedings that were pending when this Act entered into force would be completed in accordance with the law valid at the relevant time , unless the present Act was more favourable for the employee .

This Act entered into force DATE after it was published in the “ ORG ” on DATE ( section CARDINAL ) .

Under section CARDINAL of LAW , the plenary session of ORG could adopt general legal opinions in order to ensure the uniform application of laws by the courts . The opinions were binding for all panels of ORG . The same provision appears in section CARDINAL § § CARDINAL ( CARDINAL ) and CARDINAL of LAW .

Section CARDINAL of the then valid ORG provided for DATE - leave , food and travelling allowances .

Sections CARDINAL , CARDINAL and CARDINAL of ORG provided for and specified the amount for DATE - leave , food and travelling allowances .

Section CARDINAL of ORG on the graphic and paper production industry provided for and specified the amount for annualleave , subsistence and travel allowances .

( a ) On DATE ORG , in proceedings following a legality review request submitted by the public prosecutor , found that the employer in the case was not allowed to restrict the payment of the food allowance . That the allowance had not been paid to the claimant ’s colleagues did not mean that he was not entitled to obtain that allowance ( Gzz.no.CARDINAL/CARDINAL ) .

( b ) On DATE the civil department of ORG adopted a “ conclusion ” according to which , inter alia , if a trade union disagreed with an employer ’s decision restricting the payment of the food and DATE - leave allowances , courts were required to establish the facts regarding the employer ’s financial situation for DATE .

( c ) On an unspecified date in DATE , a joint opinion of the civil departments of all ORG in the respondent ORG at the time ( GPE , GPE and PERSON ) was published in ORG ( PERSON ) . According to this opinion , in case of reduced working hours due to employer ’s business losses an employee was entitled to obtain the full amount of the annual - leave allowance .

( d ) On DATE ORG , in proceedings following a legality review request submitted by the public prosecutor , dismissed a claim for the payment of DATE - leave allowance on account of the employer ’s business losses in the reference period ( PERSON ) . ORG decided likewise in another case where a legality review request had been submitted by the public prosecutor ( Gzz.no.CARDINAL/CARDINAL of DATE ) .

( e ) On DATE the civil departments of all CARDINAL ORG adopted a “ conclusion ” according to which courts were required , in cases concerning the payment of food and DATE - leave allowances , to establish facts concerning the ORG financial situation .

( f ) In “ conclusion ” dated DATE and CARDINAL DATE , the civil department of ORG stated that after the entry into force of the DATE LAW , courts should accept claims for the payment of the employment - related allowances specified in CARDINAL of that LAW ( see above ) irrespective of the employer ’s financial situation . The only exception was the annual - leave allowance .

The applicants submitted copies of several final decisions rendered before DATE in which the same first- and second - instance courts had accepted similar claims by the applicants’ colleagues ( P.no.CARDINAL/CARDINAL ; P.no.CARDINAL/CARDINAL ; P.no.CARDINAL/CARDINAL ; P.no.CARDINAL/CARDINAL ; ORG ; P.no.CARDINAL/CARDINAL ; and P.no.CARDINAL/CARDINAL ) . They further submitted copies of other final decisions adopted after DATE , the relevant details of which are contained in the table below :

Table CARDINAL

The Government also submitted copies of other decisions of the domestic courts , including the first- and second - instance courts , adopted after DATE . All these cases concerned claims for the payment of the same employmentrelated allowances against the former and other employers . In these cases , the courts accepted claims for the payment of food and travelling allowances for reference periods that post - dated the entry into force of the DATE LAW irrespective of the employer ’s financial situation at the relevant time . The acceptance of identical claims for reference period that pre - dated the entry into force of that LAW was dependent on the employer ’s financial situation . This was also the case with claims concerning the payment of the annual - leave allowance , irrespective of the reference period . According to the ORG , such practice was in compliance with both ORG decision of CARDINAL DATE and the “ conclusions ” of ORG and DATE ( see above ) .