The applicant was born in DATE and lives in GPE .

On DATE the applicant 's father purchased a building located at FAC , GPE , which was made up of CARDINAL blocks , A and B , containing CARDINAL and QUANTITY flats respectively .

In DATE the ORG nationalised the building under Decree no . CARDINAL/CARDINAL .

On DATE the applicant applied to the board established by ORG to deal with applications lodged under PERSON no . LANGUAGE ( “ the Board ” ) seeking the return of the whole building under PERSON no . LANGUAGE on the legal status of nationalised residential property ( “ PERSON no . NORP ” ) .

On DATE the ORG decided that buildings nationalised prior to DATE in respect of which former owners had lodged a claim for restitution under PERSON no . NORP or had brought an action for recovery of possession before the courts were not to be sold to tenants until their legal status had been clarified .

NORP On DATE and DATE the city council sold to the tenants the CARDINAL flats in block B and the adjoining land , under PERSON no . LANGUAGE .

On DATE the applicant brought an action against the city council before ORG for recovery of possession of the entire building .

In a judgment of DATE the court granted the action for recovery of possession and recognised the applicant as the building 's owner . It held that the applicant 's father had not been among those individuals to whom Decree no . CARDINAL/CARDINAL had applied , since he was specifically excluded by its LAW . It ordered the city council to return the building to the applicant . The judgment became final and , in the absence of an appeal , became legally binding .

On DATE , under PERSON no . LANGUAGE , the city council sold to the former tenants flat no . DATE of the CARDINAL flats in block A of the building in question – and the adjoining land .

By a decision of DATE , issued in compliance with the judgment of DATE , the city council ordered that the whole building be returned to the applicant .

On DATE the applicant and the representatives of the city council signed a memorandum assigning possession of the part of the building which had not been affected by the above - mentioned contracts of sale ( see paragraphs CARDINAL and CARDINAL above ) . They noted that , in order for the rest of the building to be returned to the applicant , the contracts concluded with the tenants would first have to be set aside .

On DATE the Board informed the applicant that he could no longer benefit from the reparation measures provided for in Law no . CARDINAL , a piece of extraordinary legislation , since the building 's return had been ordered in the judgment of DATE .

In DATE the city council advised the applicant that , under PERSON no . LANGUAGE , he was entitled only to damages , and not to the return of the property .

On DATE the city council brought an action in ORG , seeking to have set aside the contracts of sale concluded with the tenants ( see paragraphs CARDINAL above ) . On CARDINAL DATE the applicant asked to be allowed to take part in these proceedings ; he too requested that the contracts be set aside .

In a judgment of CARDINAL DATE the court dismissed the main claim lodged by the city council and allowed in part the applicant 's interlocutory request .

At the same time , the court held that the agreements concerning the sale of the flats were valid , on the ground that the applicant had not proved that the parties thereto had been acting in bad faith . In those circumstances , it considered that it was open to the applicant to bring an action for recovery of possession in order to have his title to the property compared with those of the purchasers of the flats in question .

NORP The applicant appealed against that judgment .

In a judgment of DATE ORG dismissed the applicant 's appeal . It noted that he had not submitted evidence that would rebut the presumption of the purchasers ' good faith and held that , when the contracts were concluded , the tenants could reasonably have assumed that the ORG was the rightful owner of the flats .

In assessing the parties ' good faith , the court took into account that the applicant had not expressly notified the city council of his intention to seek the building 's return . It dismissed the idea that communication of the introductory claim for recovery of possession amounted to notification , on the ground that the judgment of DATE did not refer to the exact date on which the claim had been lodged .

The court also held that the purchasers would have been unable , by taking reasonable steps , to find out about the existence of the action for recovery of possession brought by the applicant against the city council .

The applicant lodged a further appeal .

In a judgment of CARDINAL DATE , ORG gave judgment against him , considering that he had not proved that the purchasers were acting in bad faith when the contracts were concluded . It observed that possible bad faith on the part of the city council did not implicitly entail that of the purchasers .

ORG also held that at the time of the sale the purchasers did not know , and could not have found out by taking reasonable steps , that the ORG was not the rightful owner of the building . In addition , it considered that the application for restitution lodged by the applicant with the city council in DATE ( see paragraph CARDINAL above ) did not affect the purchasers ' good faith , given that in DATE the local authorities had informed the applicant that , under PERSON no . LANGUAGE , he was entitled only to damages and not to the return of the property .

In NORP law , the concept of “ title ” refers to the legal act by which the right of ownership is acquired , namely , for example , through sale , gift or succession , or through the nationalisation law and its practical implementation in the actions of the legally empowered administrative authorities .

Decree no . CARDINAL/CARDINAL was one of the nationalisation decrees that was widely applied with regard to immovable property ; under it , numerous buildings , listed in the schedules annexed to the decree and which belonged to former industrialists , owners of large estates , bankers and owners of large trading enterprises , were nationalised . LAW of the decree expressly excluded from its scope immovable property belonging to workers , civil servants , small artisans , persons working in intellectual professions and retired persons .

In the absence of special legislation governing the legal status of nationalised immovable property , the courts initially considered that they had jurisdiction to deal with cases concerning such property , particularly where it had been nationalised in application of Decree no . CARDINAL/CARDINAL . In those disputes , the national courts held that they had jurisdiction to rule on whether the provisions of the various nationalisation decrees met the substantive and procedural requirements laid down in the Constitutions in force when they were adopted .

During this initial phase , the loss of ownership as a result of nationalisation was considered to have involved a transfer of “ title ” if , at the time of expropriation , there had been compliance with the relevant decrees , the LAW and the international treaties to which GPE was a party .

In a second period , subsequent to ORG departure from precedent on DATE , the national courts no longer considered that they had jurisdiction to analyse the application of the nationalisation decrees and to order the return of immovable property nationalised in application of Decree no . CARDINAL/CARDINAL . They considered that legislation alone could bring the nationalisations carried out under Decree no . CARDINAL/CARDINAL into accord with the provisions of the LAW concerning the right of property ( see also GPE v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-VII ) .

In a third period the State enacted PERSON no . LANGUAGE , which allowed for the sale to tenants of nationalised buildings which had passed lawfully into the ownership of the ORG . The return of nationalised buildings to the former owners or their heirs was possible only if they lived in those buildings as tenants or if the property was unoccupied and had not been rented out . In respect of property which did not fulfil those conditions , it was open to the former owners to request compensation .

In decision no . CARDINAL , which was binding on the authorities responsible for implementing the PERSON , the government defined nationalised buildings legally vested in the ORG as those which had passed into the ownership of the ORG under a legislative provision . Under the same decision , PERSON no . DATE was not applicable to immovable property held de facto by the ORG , that is , where ownership was not based on any legislative provision , given that the ORG had no title to such property .

Legal opinion , followed in practice by the national courts , found that ORG “ title ” as governed by decision no . CARDINAL implied the existence of a legislative provision authorising nationalisation . It was sufficient for the ORG merely to refer to legislation that was in force at the time of the nationalisation of a property for its expropriation to be considered as having taken place lawfully ( PERSON , PERSON and PERSON , PERSON preluate abuziv . ORG . CARDINAL comentată şi adnotată ( “ The legal status of wrongfully seized property . An annotated commentary on PERSON CARDINAL/CARDINAL ” ) , PERSON , GPE , DATE , vol . I , p. CARDINAL ; similarly , PERSON , ORG . CARDINAL . Regimul juridic aplicabil imobilelor preluate abuziv ( “ Law no . CARDINAL . The legal regime applicable to wrongfully seized property ” ) , PERSON All PERSON , GPE , DATE , p. CARDINAL ; PERSON , GPE civil . Drepturile reale ( “ Civil Law . Rights in rem ” ) , PERSON All PERSON , GPE , DATE , pp . CARDINAL - CARDINAL ; and judgment no . CARDINAL/CARDINAL of ORG ) . It was thus sufficient that immovable property nationalised under Decree no . CARDINAL/CARDINAL had been included in the schedules annexed to the decree for it to be considered as having been nationalised “ by transfer of title ” , irrespective of whether or not the substantive and procedural requirements imposed by the decree had been met at the time of nationalisation .

Having sold off , under decision no . CARDINAL , part of the immovable property considered to have been nationalised “ by transfer of title ” , in a fourth period , marked by the adoption and entry into force of government decision no . CARDINAL/CARDINAL on DATE , the executive amended and added to the definition of the immovable property which had been nationalised “ by transfer of title ” . It introduced an additional condition : under LAW of the latter decision , property acquired by the ORG through transfer of title was that which had been acquired in accordance with the requirements of the decrees in force at the material time . The decision also provided :

Residential property which passed into ORG ownership in violation of the legislative provision in force at the material time , or where ORG ownership was not based on any legislative provision , shall be considered as having passed into ORG ownership without title , and is excluded from the scope of PERSON no . DATE .

A claim for restitution or compensation may be made under ordinary law in respect of immovable property which does not come within the scope of PERSON no . NORP and for which the ORG has no valid title . ... ”

According to precedent , as confirmed by the practice of the domestic courts , decision no . CARDINAL/CARDINAL is considered to apply not only to property expropriated in fact , but also to that acquired in violation of the legal requirements imposed by the nationalisation decree , both of which were held to have been nationalised “ without title ” ( PERSON , PERSON and PERSON , op . cit , p. CARDINAL ; similarly , PERSON , ORG . CARDINAL/CARDINAL , cited above , p. CARDINAL , and Drept civil , cited above , p. CARDINAL ; and judgment no . CARDINAL of ORG ) .

Property acquired by ORG no . CARDINAL/CARDINAL was considered to have been nationalised by transfer of title if the legal requirements set out in GPE I § § DATE and II of the decree were met on the date of the nationalisation and if , on DATE , the person listed as owner on the annexed schedules was the real lawful owner .

Section CARDINAL(CARDINAL ) of this PERSON provides :

“ Property acquired by the ORG DATE and DATE , provided that it passed into ORG ownership by virtue of a valid title , that is to say in a manner not contrary to the LAW , to international treaties to which GPE was a party or to any legislation in force at the time of its transfer to the State , shall likewise form part of the public or private property of the ORG or other public authorities . ”

After the ORG had sold off , under decision no . CARDINAL/CARDINAL , some of the property nationalised “ by transfer of title ” , PERSON no . CARDINAL/CARDINAL introduced a new “ validity ” condition for ORG title ; the validity of the ORG 's right of ownership became subject to the compliance of the nationalisation decree and its administrative implementing acts with the LAW , the international treaties to which GPE was a party and the laws in force at the date on which the property in question passed into ORG ownership . A contrario , in the absence of such compliance , the ORG did not have valid title and had thus not acquired ownership rights to the immovable property . The former owner could consequently claim it by applying to the competent courts for examination of the “ validity ” of ORG title ( PERSON , PERSON and PERSON , op . cit . , p. CARDINAL ; similarly , PERSON , ORG . CARDINAL/CARDINAL , cited above , p. CARDINAL , and Drept civil , cited above , pp . CARDINAL - CARDINAL ) .

The courts granted actions for recovery of possession brought against the ORG where they considered that the relevant nationalisation decree had been applied in breach of the conditions set out in it ( see , for example , judgment no . CARDINAL of ORG ; and judgments nos . CARDINAL/CARDINAL and CARDINAL of ORG application of nationalisation Decree no . CARDINAL/CARDINAL to a person who was exempt from its application ; judgments LAW . CARDINAL and DATE of ORG – failure to comply with the administrative formalities set out in nationalisation Decree no . CARDINAL/CARDINAL ) .

In certain cases ORG decided , in application of the new condition introduced by PERSON no . CARDINAL/CARDINAL , that certain nationalisation decrees had been contrary to the LAW in force at the time of their adoption and to the international treaties to which GPE had been a party .

Thus , in judgment no . CARDINAL , it held that Decree no . CARDINAL/CARDINAL failed to comply with LAW ; in judgment no . CARDINAL , it held that Decree no . CARDINAL/CARDINAL was contrary to LAW on account of its discriminatory nature ; in judgment no . CARDINAL , it stated that Decrees nos . PERSON and CARDINAL/CARDINAL did not comply with the provisions of the DATE and DATE Constitutions respectively . This case - law was followed by some of the lower courts ( for example , judgments ORG . CARDINAL and CARDINAL of ORG – published in PERSON and PERSON , PERSON şi alte drepturi reale . Tratat de jurisprudenţă CARDINALCARDINAL ( “ The right of ownership and other real - property rights . Treatise on the case - law DATE ” ) , ORG PERSON , GPE , DATE , p. CARDINAL – which noted the failure of Decree no . CARDINAL/CARDINAL to comply with the DATE LAW ; judgment no . DATE of ORG , published in PERSON and PERSON , op . cit . , p. CARDINAL ) .

NORP In other cases , ORG , followed by another group of courts , held that Decree no . CARDINAL/CARDINAL conferred “ valid ORG title ” ( judgments nos . CARDINAL and CARDINAL , ORG of Justice ; no . CARDINALR/CARDINAL , ORG of Appeal ; nos . CARDINALR/CARDINAL and CARDINAL , ORG ; nos . CARDINAL and CARDINAL , ORG , published in PERSON and PERSON , op . cit . , p. CARDINAL ) .

In addition , although ORG considered in judgments LAW . CARDINAL and CARDINAL/CARDINAL that Decree no . CARDINAL/CARDINAL was contrary to LAW and the DATE LAW , it nonetheless held in judgment no . DATE that that decree conferred valid ORG title .

As to Decree no . ORG , ORG ruled in judgments nos . CARDINAL/CARDINAL , DATE and CARDINAL that it contravened the DATE LAW , although it held in judgments FAC . CARDINAL/CARDINAL and CARDINAL that it conferred “ valid ORG title ” .

Where the seller is not the owner of the possession to be sold , NORP legislation does not explicitly penalise the sale of someone else 's property , which is not regulated by statute . Legal opinion and precedent have consistently noted that this does not deprive the rightful owner of his or her title ( see , for example , judgment no . DATE of ORG , published in the journal PERSON , no . DATE , p. CARDINAL ; judgment no . CARDINAL of ORG , published in the journal PERSON , no . CARDINAL , p. CARDINAL ; judgment no . CARDINAL/CARDINAL of ORG , published in LAW of ORG in DATE , p. CARDINAL ; judgment no . CARDINAL of FAC ) . In practice , the contract of sale concluded between a seller who is not the owner and the purchaser is binding on them alone ( res inter alios acta ) and not in respect of the rightful owner ; the property does not cease to belong to the rightful owner , who continues to be free to dispose of it ( see , for example , judgment no . CARDINAL of ORG , LAW , DATE , p. CARDINAL ) .

The fate of the contract depends on the good or bad faith of the parties to it . If the parties acted in bad faith in concluding the contract , in that they were aware that the seller was not the owner of the property , legal opinion and the case - law generally consider that the sale was a speculative operation , was unlawful in purpose and , accordingly , that it is null and void ( fraus omnia corrumpit ) ( see , for example , judgment no . CARDINAL of ORG , published in Summary of the Judicial Practice of the Galaţi Court of Appeal , DATE , p. CARDINAL ) .

If the parties to the contract , or at least the purchaser , concluded the sale in good faith and if the purchaser was persuaded that the seller fulfilled all the legal requirements to be entitled to transfer title ( LAW ) , the contract is tainted only by relative nullity ( see , for example , judgment no . DATE of ORG , published in the journal PERSON , no . DATE , p. CARDINAL ; judgment CARDINAL of ORG , published in ORG , no . CARDINAL/CARDINAL ) . The lawful owner can not apply to have such a sale set aside , because he or she is not a party to the contract , but he or she does have the option of defending his or her title by means of an action for recovery of possession if the property is in the purchaser 's possession ( see , for example , judgment no . CARDINAL of ORG , Case - Law Reports , DATE , p. CARDINAL ; judgment no . CARDINAL of ORG , published in the journal PERSON , no . DATE , p. CARDINAL ; judgment CARDINAL/CARDINAL of ORG , delivered on DATE and published in ORG , no . CARDINAL , p. CARDINAL ; judgment no . CARDINAL of ORG , published in the journal PERSON , no . CARDINAL , p. CARDINAL ; judgment no . CARDINAL/CARDINAL of ORG , published in LAW of ORG in DATE , p. CARDINAL ) .

Legal opinion and the case - law define an action for recovery of possession , which is not regulated by statute , as an action by which the owner of a specific individual property who has lost possession of it to a third party seeks to have his or her title to the property re - established and to obtain possession of it from the third party , who is not the owner . The claim , as an indefeasible action to establish title which is not subject to limitation of time , is intended to establish directly the existence of the claimant 's title ; obtaining possession is merely an incidental effect .

The NORP courts have considered that it is sufficient during recovery proceedings to examine the CARDINAL titles , namely those of the claimant and the respondent , in order that the court examining the action may declare that CARDINAL of them had priority ( este mai caracterizat ) over the other on account , for example , of its chronological priority or the fact that it had previously been included in a land register ( see , for example , judgment no . CARDINAL/CARDINAL of FAC , published in PERSON and PERSON , op . cit . , p. CARDINAL , and judgment no . CARDINAL of ORG ) .

The new PERSON establishes the principle of the return of unlawfully nationalised property , subject to certain exceptions , including CARDINAL concerning buildings sold to tenants under PERSON no . DATE , introduced by section CARDINAL(d ) of PERSON no . CARDINAL . Where return of property is not possible , the former owners are entitled to compensation . The relevant sections of PERSON no . CARDINAL/CARDINAL provide :

( CARDINAL ) Persons who were owners of immovable property seized by the ORG without valid title shall conserve their title ... ”

“ The compensation awarded to former owners shall be exclusively in the form of damages :

( d ) the building was sold to the former tenant in compliance with the provisions of Law no . NORP ... ”

( CARDINAL ) The sale or donation of immovable property unlawfully seized by the ORG shall be declared null and void , save where these transactions were concluded in good faith . ... ”

On DATE the government adopted decision no . CARDINAL on the uniform application of PERSON no . CARDINAL/CARDINAL , which enshrines the principle of the stability of property relations by upholding the rights of persons who acquired nationalised immovable property in good faith ( in judgment no . CARDINAL/CARDINAL , ORG held that , if the immovable property had been sold to the tenants and the former owner had not obtained rescission of the contract of sale , the immovable property could not be returned to him or her under PERSON no . CARDINAL/CARDINAL ) .

The aim of decision no . CARDINAL was to preserve the legal status of property which had already been sold under PERSON no . DATE . In respect of section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL , it stated :

“ Sales concluded prior to PERSON no . CARDINAL , under PERSON no . NORP and in compliance with the latter 's conditions , enjoy the full protection afforded by PERSON no . CARDINAL in that their effects are recognised and maintained . With regard to sales concluded after the enactment of PERSON no . CARDINAL/CARDINAL , the maintenance or , as appropriate , rescission of the conveyancing act is subject to evidence of the purchaser 's good faith when the sale was concluded . ”

NORP legal opinion and the domestic courts have given CARDINAL different interpretations , some of them conflicting , of sections CARDINAL(d ) and CARDINAL ) of PERSON no . CARDINAL/CARDINAL and their effects ( see , for example , PERSON , PERSON and PERSON , op . cit . , p. CARDINAL ; “ QUANTITY la admisibilitatea acţiunii PERSON revendicare a adevăratului proprietar împotriva subdobânditorului de bună credinţă LOC imobil ” ( “ Examination of the admissibility of an action for recovery of possession by the lawful owner against the purchaser in good faith of a property ' P ' ” ) DATE or PERSON , PERSON , first part , and PERSON , second part , PERSON , no . CARDINAL/CARDINAL , pp . CARDINAL and CARDINAL ; PERSON , ORG . CARDINAL/CARDINAL , cited above , p. CARDINAL ; PERSON , “ Regimul juridic al revendicării imobilelor preluate de stat fără titlu valabil de la subdobânditorii care se prevalează PERSON credinţă la data cumpărării ” ( “ The rules governing actions for the recovery of possession of immovable property appropriated by the ORG without valid title , brought against purchasers who rely on their good faith at the time of the sale ” ) , PERSON , no . CARDINAL/CARDINAL , p. CARDINAL ) .

In a consistent series of rulings , ORG has dismissed as inadmissible actions for the recovery of possession of nationalised buildings brought by the former owner against the ORG or the purchasers following the entry into force of PERSON no . PERSON ( see , for example , judgments CARDINAL . CARDINAL/CARDINAL ; CARDINAL ; CARDINAL ; CARDINAL ; CARDINAL ; DATE ; DATE ; DATE ; CARDINAL ; GPE ) .

In a series of more recent judgments , ORG has dismissed actions for recovery of possession brought by former owners against purchasers following the entry into force of PERSON no . CARDINAL/CARDINAL while indicating that , where the courts had upheld the sale of someone else 's property , this consolidated , ipso jure , the transfer of title to the purchasers , as such an effect was inherent in the contract of sale and could not be overturned through a comparison of the competing titles to the same property ( judgments nos . DATE , DATE , DATE or DATE of ORG ) .

In other judgments , ORG has dismissed actions brought against purchasers for recovery of possession by applying the theory of appearances ( see , for example , judgments FAC . CARDINAL , DATE and CARDINAL ) , without however explaining the nature of the joint and unavoidable error or the difference between that and mere good faith on the part of the purchaser ( in judgment no . DATE , ORG noted the purchasers ' “ public ” error at the time of the sale , because they had considered , when concluding the sale , that the ORG was the rightful owner of the immovable property ; it also noted that the purchasers had been acting in good faith because they had believed that the ORG was the true owner . In contrast , in judgment no . CARDINAL/CARDINAL it refused to apply the same theory on the ground that the purchaser had not proved the existence of a joint and unavoidable error ) .

On several occasions , ORG took the view that section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL was applicable in proceedings introduced before that provision was enacted and dismissed actions for recovery of possession brought by the former owner against the purchaser on the basis that the assumption of the purchaser 's good faith was to take priority ( see , for example , judgments nos . CARDINAL/CARDINAL , DATE and DATE ) . It also considered that the absolute nullity of the sale was an essential premise for the admission of an action against the purchaser for recovery of possession ( judgment no . CARDINAL/CARDINAL ) .

In other judgments ORG and the other domestic courts have dismissed actions for recovery of possession on account of the purchaser 's good faith without reference to PERSON no . PERSON ( see , for example , judgments no . CARDINALR/CARDINAL , ORG ; no . MONEY , ORG , upheld by judgment no . ORG ; and ORG . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL of ORG ) .

In accordance with the definition given by LAW , good faith is “ a conviction on the part of the occupier that the seller met all the legal requirements to be able to transfer title ” . Thus , in judgment no . DATE , ORG considered that good faith consisted in the purchasers ' conviction that they had concluded a contract with the rightful owner and in compliance with the legal provisions in force at the time the contract was concluded , and that those CARDINAL conditions had been met in the case in question .

Bad faith has been defined by NORP legal opinion as the attitude of a person who carries out an action or an act in breach of the law while being fully aware of the unlawful nature of his or her conduct ( see PERSON , PERSON , PERSON , PERSON and PERSON , ORG juridic , PERSON , GPE , DATE ) .

Certain domestic courts have ruled that the purchaser must be asked to provide evidence that he or she took reasonable steps to establish the legal status of the property . Other courts have taken the view that the purchaser 's good faith should be presumed and that it was for the other party to prove bad faith . Thus , there is no consistent case - law indicating either which party bears the burden of proving good faith or the facts which the party wishing to contest that good faith is required to prove .

In judgment no . CARDINAL , ORG upheld an action for recovery of possession brought by the former owner of a nationalised building , holding that the purchaser 's bad faith “ did not seem open to question , given that ... he knew or might have known that the building was likely to be claimed by the former owners , that he could and indeed ought to have apprised himself of the steps taken by the former owner to recover possession , and that his passivity was to be taken into account ” . It also ruled – in judgment no . DATE that it was inconceivable that , when purchasing such a significant item of property as a building , the tenant would have failed to take reasonable steps to establish that property 's legal status .

In addition , it stated – in judgment no . DATE that , as a minimum and prior to conclusion of the sale agreement , the purchaser ought to have checked whether an application for restitution had been submitted in respect of the building under PERSON no . NORP or whether an action for recovery of possession was pending , failing which his good faith could be questioned . In judgment no . DATE , ORG considered that the purchaser 's lack of information or ignorance with regard to the legal status of the property acquired was not such as to excuse his or her mistake .

In judgment no . DATE , however , ORG indicated that the failure by a tenant to take steps to establish the legal status of the building which he was in the process of acquiring had no legal consequences .

In other judgments , ORG applied the principle set out in LAW , by which good faith is presumed and bad faith must be demonstrated by the party relying on it , but without however examining the steps that the purchaser had or had not taken prior to purchasing a nationalised property ( see , for example , judgments nos . CARDINAL ; DATE ; DATE ; CARDINAL/CARDINAL ; CARDINAL/CARDINAL ; and CARDINAL ) .


Remainder inadmissible;Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Pecuniary and non-pecuniary damage - award

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

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

Mr DATE worked in GPE from DATE to DATE .

On DATE Mr Maggio requested ORG ( “ INPS ” ) , an NORP welfare entity , to re - examine his old - age pension and to liquidate it on the basis of the real remuneration received ( “ retribuzione effettiva ” ) during DATE of employment in GPE , in accordance with the DATE Italo - Swiss Convention .

On an unspecified date the ORG rejected his request , since the calculation had to be based on the remuneration received in GPE and then be re - adjusted on the basis of the tables supplied in Circular no . CARDINAL of DATE .

Mr Maggio instituted proceedings before ORG , claiming that the payment of old - age pensions had to be calculated on the basis of the real remuneration received ( in DATE of employment ) and of the contributions paid in part in GPE and in part in GPE .

By a judgment filed in the registry on DATE , his claim was rejected .

Mr DATE appealed to ORG which , by a judgment filed in the registry on DATE , rejected his claim . It took into consideration a technical expert report in relation to LAW ( see Relevant Domestic Law below ) , which provided for the transfer of contributions paid in GPE to the NORP insurance scheme for use in the calculation of old - age pensions , and guaranteed the benefits of NORP legislation . Consequently , it held that the pension calculation was to be made on the basis of NORP criteria , even though they were less favourable than the NORP ones . Indeed , NORP law ( decree of DATE no . CARDINAL ) provided for a calculation based on higher contributory rates than those in GPE , thus providing a lower pension than that expected by PERSON .

By a judgment of DATE filed in the registry on CARDINAL DATE , ORG dismissed PERSON claim , after rejecting his request for a preliminary reference to the ECJ . It held that the criteria used by ORG were eventually acknowledged in DATE , paragraph CARDINAL , of PERSON no . CARDINAL of DATE ( “ LAW ” ) , which had retroactive effect . This PERSON had not been found to be unconstitutional by ORG in a judgment of CARDINAL DATE ( see Relevant Domestic Law below ) .

NORP In DATE Mr PERSON requested the ORG to establish his pension on the basis of the contributions paid in GPE for work he had performed there between DATE and DATE . As a basis for the calculation of his pension , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE Mr PERSON instituted judicial proceedings .

By a judgment of ORG ) of DATE , PERSON claim was upheld on the basis of the relevant Court of Cassation case - law at the time ( see Relevant Domestic Law below ) .

The ORG appealed .

By a judgment of CARDINAL DATE , ORG reversed the first - instance judgment in view of the entry into force of PERSON CARDINAL/CARDINAL . Mr PERSON Thus , the judgment became final on DATE .

Mr GPE was entitled to an old - age pension from DATE .

In DATE Mr PERSON requested the ORG to establish his pension on the basis of the contributions paid in GPE for work he had performed there DATE and DATE . As a basis for the calculation of his pension , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE Mr GPE instituted judicial proceedings .

By a judgment of ORG ) of DATE , PERSON claims were rejected in view of PERSON CARDINAL/CARDINAL and the subsequent ORG judgment . Mr GPE did not appeal , deeming it to be futile in view of the relevant case - law at the time .

PERSON was entitled to an old - age pension from DATE and to a survivor ’s pension , as a widow , her husband having become a pensioner on DATE , from the date of her husband ’s death .

In DATE PERSON requested the ORG to establish her pension on the basis of the contributions paid in GPE for work she had performed there DATE and DATE , and those paid by her husband . As a basis for the calculation of the relevant pensions , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE PERSON instituted judicial proceedings .

By a judgment of ORG ) of DATE , PERSON claims were rejected in view of LAW and the subsequent ORG judgment . PERSON did not appeal , deeming it to be futile in view of the relevant case - law at the time .

PERSON was entitled to an old - age pension from DATE .

In DATE PERSON requested the ORG to establish her pension on the basis of the contributions paid in GPE for work she had performed there DATE . As a basis for the calculation of her pension , the ORG employed a theoretical remuneration ( “ retribuzione teorica ” ) instead of the real remuneration ( “ retribuzione effettiva ” ) . The former resulted in a re - adjustment on the basis of the existing ratio between the contributions applied in GPE ( PERCENT ) and in GPE ( PERCENT ) , which led to a reduction of PERCENT in the basic amount used to calculate the pension and therefore a reduction in the pension itself . Consequently , in DATE PERSON instituted judicial proceedings .

Article CARDINAL of the transitional provisions of ORG , of DATE , provides , in so far as relevant , as follows ( unofficial translation ) :

“ CARDINAL . In so far as GPE is concerned , performance shall be in accordance with the provisions of this LAW , even in cases where the insured event occurred before the entry into force of the LAW . Old - age and survivors’ ordinary annuities will , however , only apply in accordance with these provisions if the insured event took place before DATE , and if the contributions were not or will not be transferred or reimbursed in accordance with ORG , or paragraph CARDINAL of this Article . ( ... )

In so far as GPE is concerned , performance shall be in accordance with the provisions of this Convention where the insured event occurred on or after the date of its entry into force . Nevertheless , when the insured event occurred before that date , performance shall take place in accordance with the present Convention from the date of its entry into force , if it would not have been possible to grant such a pension due to the insufficiency of the insurance periods , and only if the contributions have not been reimbursed by the NORP social insurance scheme .

With the exception of the above provisions , periods of insurance , of contributions and of residence occurring before the entry into force of this Convention will be taken into consideration .

For DATE from the entry into force of this Convention , upon the attainment of pensionable age under NORP law , NORP citizens may request , in derogation of DATE , that the contributions paid by them and their employers into the NORP old - age and survivors insurance schemes be transferred to the NORP insurance scheme , on condition that they have left GPE for permanent settlement in GPE or in a third country prior to DATE in which their pensionable age was reached . LAW ) and ( CARDINAL ) of the Convention of CARDINAL DATE will apply to the use of such transferred contributions , eventual reimbursements and the effects of such transfers . ”

In so far as relevant , LAW CARDINAL DATE provides ( unofficial translation ) :

“ ... ( CARDINAL ) NORP citizens not covered by the preceding sub - paragraph ( * ) or their survivors , may request contributions paid by them and their employers into the NORP old - age and survivors’ insurance to be transferred to the NORP social welfare insurance scheme as indicated in DATE * ) . The latter will use the said contributions to ensure that the insured person obtains the benefits derived from NORP law quoted in DATE * ) and any other dispositions issued by the NORP authorities . In the event that , under the relevant NORP legal provisions , the insured person can not assert a right to a pension , the NORP social welfare services will reimburse , upon request , the transferred contributions .

( CARDINAL ) Transfer of contributions as provided for in the above sub - paragraph may be requested :

( a ) if the NORP citizen has left GPE DATE before ,

( b ) on the occurrence of the insured event .

The NORP citizen whose contributions have been transferred to the NORP social insurance scheme can not assert any right in respect of the NORP old - age and survivors’ insurance on the basis of such contributions . Such a person , or his [ or her ] survivors , may expect an ordinary annuity from the NORP old - age and survivors insurance scheme only ... [ under ] the conditions set out in the first paragraph ( * ) . ”

It is noted that the articles marked ( * ) were repealed by LAW , except for the purposes of the above cited LAW ) .

The transitional provision of LAW became definitive by means of the additional agreement of CARDINAL DATE , whose LAW ) and ( CARDINAL ) reads :

“ On reaching pensionable age under NORP law , and where they have not already been in receipt of a pension , NORP citizens may request , in derogation of DATE , that the contributions paid by them and their employers into the NORP old - age and survivors’ insurance scheme be transferred to the NORP insurance scheme , on condition that they have left GPE for permanent settlement in GPE ... ”

“ The NORP social welfare entities must use such contributions in favour of the insured or his or her heirs in such a way as to ensure the attainment of the advantages derived from NORP law , as cited in LAW , in accordance with the specific arrangements issued by the NORP authorities . If no advantage can be attained on the basis of such arrangements , the NORP social welfare entities must reimburse the transferred contributions to the interested parties . ”

ORG judgment of DATE , and other analogous jurisprudence at the material time , established that , in the absence of specific legislation regulating the transfer of contributions , the method of calculation in determining workers’ pensions should be based on the real remuneration received by that person , including any work undertaken in GPE , irrespective of the fact that contributions paid in GPE and transferred to GPE had been calculated on the basis of much lower rates than those established under NORP legislation .

DATE , paragraph CARDINAL , of LAW , which entered into force on DATE , provides ( unofficial translation ) :

“ LAW no . CARDINAL of DATE and subsequent modifications must be interpreted to the effect that , in the event of transfer of contributions paid to foreign welfare entities to the NORP obligatory general insurance scheme , as a consequence of international social security treaties and conventions , the pensionable remuneration relative to the employment period abroad is calculated by multiplying the amount of transferred contributions by CARDINAL and dividing the result by the contribution rates for the invalidity , old - age and survivors insurance scheme , as applicable during the relevant contributory period . More favourable pension treatment already liquidated before the entry into force of the current law is exempted . ”

By a writ of CARDINAL DATE , ORG questioned the legitimacy of LAW and remitted the case to ORG . ORG gave judgment on DATE , holding , in sum , as follows .

Although interpretative , LAW was innovative . There had been no conflicting case - law on the pension regime but a single well established interpretation , according to which the NORP worker could ask to transfer his or her contributions , paid in GPE , to the ORG , in order to obtain the advantages provided by NORP law on invalidity , old - age and survivors’ insurance , including that of remuneration - based pension calculations , on the basis of the wages earned in GPE , irrespective of the fact that the transferred contributions had been paid at a much lower NORP rate .

ORG noted that the laws defining pension remuneration were part of a welfare system which balanced available resources and the services supplied . A change in calculating pensions from the contributory criterion to the remuneration - based one ( “ retributivo ” ) , was not to the detriment of the financial sustainability of the system . Thus , the changes brought about by the impugned PERSON sought to bring the relationship between pensionable remuneration and contributions in line with the system in force in GPE during the same period of time . The PERSON provided that remuneration received abroad ( used as a basis for pension calculations ) was to be adjusted by applying the same percentage ratios used for pension contributions paid in GPE during the same period . Thus , the norm made explicit what had been in the original interpretative provisions . Consequently , there had been no breach of the principle of legal certainty . Nor was the norm discriminatory since the acquired and more favourable rights of earlier pensioners were , by then , unassailable . Furthermore , the PERSON did not discriminate against people who had worked abroad , because it simply ensured an overall balance in the welfare system , and avoided the situation whereby persons who had made small contributions to a foreign pension scheme could receive the same pension as those who had paid the much higher NORP contributions . The contested PERSON did not provide for any ex post reductions , as it merely imposed an interpretation which could already have been inferred from the original provisions . Lastly , this system still allowed for a sufficient and satisfactory pension , adequate for the lifestyle of a worker . Accordingly , the claim of unconstitutionality of the said PERSON was manifestly ill - founded .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , PERSON , is a national of GPE who was born in DATE and currently lives in GPE . She was represented before the ORG by Mr Č. GPE , a lawyer 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 applicant ’s husband , ORG , was an officer serving in ORG ( “ the ORG ” ) . In DATE the ORG awarded him , and he became the holder of , a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . Pursuant to the relevant legislation , the applicant as his wife automatically became a co - holder of the specially protected tenancy of the flat in issue .

After a trial in absentia , on DATE ORG ( ORG ) found PERSON guilty of a war crime against the civilian population and sentenced him to CARDINAL years’ imprisonment . The judgment was upheld on appeal by ORG on DATE . The courts found that in the period DATE , during the siege of the ORG ’s military barracks in the town of GPE , GPE as a commander of DATE ( Varaždin ) corps of the ORG had ordered indiscriminate attacks on civilian targets in the town .

On DATE the ORG brought a civil action against GPE and the applicant in ORG ( PERSON ) seeking termination of their specially protected tenancy and the applicant ’s eviction . The plaintiff relied on section CARDINALa of LAW .

On DATE ORG ruled for the plaintiff . It terminated the tenancy of GPE and his wife and ordered the applicant ( the wife ) to vacate the flat within DATE . In the reasons given for its decision the court referred to the ORG ’s obligation stipulated in paragraph CARDINAL of section CARDINALa of LAW ( see below ) . PERSON and his wife appealed .

On DATE ORG ( Županijski sud u GPE ) dismissed the appeal and upheld the first - instance judgment .

On DATE the applicant lodged a constitutional complaint against the second - instance judgment alleging violations of her constitutional right to equality before the law , the right to be presumed innocent and the right to respect and protection of personal and family life , dignity , reputation and honour .

On DATE ORG dismissed the applicant ’s complaint . It held that the lower courts’ judgments were not a result of the arbitrary interpretation or application of relevant substantive law and that therefore her constitutional right to equality before the courts had not been breached . Moreover , since the outcome of the proceedings the applicant had complained about did not involve the determination of her criminal liability , her right to be presumed innocent could not have possibly been breached in such proceedings .

On DATE ORG entered into force . It entitled holders of specially protected tenancies of flats in social ownership ( društveno vlasništvo ) to purchase their flats under favourable conditions .

On DATE the LAW to the LAW entered into force extending the right of purchase to holders of specially protected tenancies of flats in state ownership ( državno vlasništvo ) .

The applicant never filed a request with the competent authorities with a view to purchasing her flat because she considered that she could not have done so while the proceedings for termination of her specially protected tenancy were pending .

LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , as in force at the material time , provided as follows :

Section CARDINAL

“ CARDINAL . If a specially protected tenancy was acquired by CARDINAL spouse who lives with the other , the other shall also be considered as having acquired it ..

If CARDINAL of the spouses dies or permanently ceases to use the flat , the other spouse shall retain the tenancy , unless otherwise provided for by this LAW . ”

Section CARDINALa

“ CARDINAL . A specially protected tenancy of those who participated or participate in enemy activities against GPE shall be terminated .

Following the court decision on the termination , the owner of the flat shall provide either the same flat or other appropriate lodging for use by the [ other ] members of the household . ”

Section CARDINAL

“ CARDINAL . The provider of the flat shall terminate a specially protected tenancy by bringing an action in the competent court .

CARDINAL ....

The judgment ordering eviction shall not be enforced if the person to be evicted is not provided with another flat or basic accommodation [ nužni smještaj ] , when that is required by this LAW .

Another flat shall be secured by the provider of the flat at the latest by the end of the main hearing in the proceedings for the termination of the specially protected tenancy , unless otherwise provided for by this LAW . ”

Basic accommodation shall be secured in enforcement proceedings . ”

Section CARDINAL

“ The duty of the tenant to vacate the flat extends to other users of that flat , unless otherwise provided for by LAW . ”

According to ORG jurisprudence , the specially protected tenancy was terminated as soon as the court ’s judgment , upholding the claim of the provider of the flat to that end , became res judicata ( see , inter alia , ORG decision no . CARDINAL of DATE ) .

In its decisions ORG . ORG of DATE , ORG of DATE , ORG of DATE , Gzz-CARDINAL/CARDINAL - CARDINAL and Gzz-CARDINAL/CARDINAL - CARDINAL of DATE ORG held that where a spouse acquired a specially protected tenancy on the basis of section CARDINAL of LAW , his or her right was to be considered derived from that of the other spouse to whom the flat had originally been awarded ( that is , the original holder of the tenancy ) . Consequently , when the specially protected tenancy of the original holder was terminated , the tenancy of the other spouse derived from it was to be considered terminated as well .

In its opinion no . Su - IV-CARDINAL/CARDINAL of CARDINAL DATE and decisions ORG . ORG and Gzz-CARDINAL/CARDINAL- CARDINAL of DATE , GPE - CARDINAL of DATE , Gzz-CARDINAL/CARDINAL - CARDINAL of DATE , Gzz-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE and Gzz-CARDINAL/CARDINAL of DATE ORG held that in a judgment terminating the specially protected tenancy of the original holder , and consequently that of the spouse , on the basis of section CARDINALa ( CARDINAL ) of LAW , a court was entitled to order the eviction of the original holder but not of the spouse whose tenancy was derived from it . This was so because the spouse was entitled to remain in the flat in the capacity of a household member , pursuant to section CARDINALa ( CARDINAL ) of LAW , until the provider of the flat either gave him or her the same flat for use or provided him or her with other appropriate lodging . Only in circumstances where the requisite alternative accommodation was secured for the spouse and other household members , but they nevertheless continued to occupy the flat , was the provider of the flat entitled to bring a separate civil action for their eviction . However , in the above mentioned decision no . Gzz-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG upheld a judgment in which , apart from terminating the specially protected tenancy of both spouses under section CARDINALa ( CARDINAL ) of LAW , the lower court also ordered their eviction but made that order in respect of the wife DATE a household member – conditional upon providing her with alternative accommodation . ORG upheld the judgment because , as it was formulated , it was not detrimental for the wife as the household member .

In its decisions nos . U - I-CARDINAL/CARDINAL of DATE , U - III-CARDINAL/CARDINAL of DATE , U - III-CARDINAL/CARDINAL of CARDINAL DATE and U - III-CARDINAL/CARDINAL of CARDINAL DATE ORG held that section CARDINALa of LAW did not introduce the principle of collective guilt because its paragraph CARDINAL obliged the ORG to provide for the household members by meeting their housing needs . Nor did it violate the constitutional right to be presumed innocent because , properly interpreted , that provision could only be applied to those holders of specially protected tenancies who had been convicted by a final judgment delivered in criminal proceedings .

ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with subsequent amendments – “ the Sale to Occupier Act ” ) , which entered into force on DATE , entitled the holder of a specially protected tenancy ( “ the tenant ” ) of a socially - owned flat to purchase it from the provider of the flat under favourable conditions . The members of the tenant ’s household were also entitled to do so upon his or her approval ( section CARDINAL paragraph CARDINAL ) . Where both spouses were holders of the specially protected tenancy of a flat , they could buy it either jointly or individually with the consent of the other ( section CARDINAL paragraph CARDINAL ) .

Section CARDINAL ( CARDINAL ) provided that a written request for purchase ( the first request ) had to be made within DATE of the date of the Act ’s entry into force ( this time - limit was by subsequent amendments to the Act extended until DATE ) , and a further request for the actual conclusion of the purchase contract ( the second request ) within DATE following the first request .

In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG interpreted section CARDINAL ( CARDINAL ) of ORG as follows :

“ Since the plaintiff did not make a request for purchase of the flat to the respondents in written form until DATE , as provided by law , [ ... ] , the lower - instance courts correctly assessed that the plaintiff had lost his right to request the conclusion of the purchase contract . ”

The LAW to LAW ( Zakon o izmjenama i dopunama PERSON o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . DATE the DATE LAW , which entered into force on CARDINAL DATE , extended the right of purchase to the holders of specially protected tenancies of state - owned flats .

Section CARDINAL read as follows :

( CARDINAL ) Holders of specially protected tenancies [ ... ] shall have the right to purchase their flats in state ownership .

( CARDINAL ) The provisions of section CARDINAL of [ LAW ] shall not apply to the purchase of flats in state ownership .

( CARDINAL ) The following persons shall not be entitled to purchase , or transfer the right to purchase , a flat in state ownership :

- those sentenced by a final judgment for crimes against humanity and international law ,

- those sentenced by a final judgment for crimes against GPE ,

- those against whom criminal proceedings for crimes against humanity and international law or crimes against GPE have been instituted , until the judgment becomes final ,

- those who participated or participate in enemy activities against GPE ,

- those who have evaded conscription ,

- those against whom proceedings for termination of a specially protected tenancy or termination of a lease agreement in respect of a flat have been instituted , until the end of those proceedings ,

- those owning a dwelling house or flat in the same place [ village , town or city ] ,

- those who have left GPE or have moved to the occupied territories and have not used the flat for DATE .

Section CARDINAL ( CARDINAL and CARDINAL ) of the DATE Amendments provided that a written request to purchase a state - owned flat ( the first request ) had to be made within DATE of the date of the DATE Amendments’ entry into force ( paragraph CARDINAL ) , after the expiry of which the tenant lost his or her right to purchase the flat ( paragraph CARDINAL ) .

Section CARDINAL ( CARDINAL ) provided that the seller had to conclude the purchase contract with the buyer within DATE after the expiry of the time - limit referred to in paragraph CARDINAL ( this time - limit was by subsequent amendments extended until DATE ) .

Section CARDINAL ( CARDINAL ) provided that if the seller , at the request of the buyer , failed to conclude the contract within the time - limit referred in paragraph CARDINAL , the buyer had a right to bring a civil action in the competent court with a view to obtaining a judgment entirely substituting the contract .

Following CARDINAL petitions to review the constitutionality of the DATE Amendments , on DATE ORG accepted the initiative and instituted proceedings to that end . On DATE it delivered decision no . U - I-CARDINAL/CARDINAL abrogating a number of provisions of the DATE Amendments as being unconstitutional . In particular , ORG abrogated CARDINAL of sections CARDINAL DATE . It further abrogated paragraph CARDINAL of section CARDINAL in the part relating to the transfer of the right to purchase but held that this abrogation did not relate to sub - paragraphs CARDINAL and CARDINAL . ORG - paragraphs CARDINAL , DATE and CARDINAL of paragraph CARDINAL of the same section were also abrogated .

It observed that paragraph CARDINAL of section CARDINAL , as it read , in fact entitled only the holder of the specially protected tenancy of a state - owned flat to purchase it , thereby effectively excluding the spouse and other members of the household from doing so , an option otherwise available to them under section CARDINAL of the LAW in respect of socially - owned flats . ORG held that the exclusion of that option in respect of state - owned flats was unwarranted and thus amounted to constitutionally impermissible discrimination . In particular , ORG held that this discrimination adversely affected , inter alia , a spouse who had acquired a specially protected tenancy by operation of section CARDINAL of LAW but whose tenancy was subsequently terminated as a consequence of the termination of the tenancy of the original holder pursuant to section CARDINALa ( CARDINAL ) of that Act .

Paragraphs CARDINAL and CARDINAL of section CARDINAL were also abrogated because of an unwarranted distinction as regards the time - limits for making a request to purchase the flat between the holders of specially protected tenancies of state - owned flats and those of socially - owned flats . ORG noted that the holders of specially protected tenancies of state - owned flats had been obliged to make their request within DATE following the entry into force of the DATE Amendments whereas the holders of tenancies of socially - owned flats had had to do so within DATE following the entry into force of the Sale to Occupier Act , which time - limit had been extended several times ( eventually until DATE ) .

In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of DATE ORG interpreted the relationship between LAW ( in particular its section CARDINAL ) and the DATE Amendments as follows :

“ The plaintiff made a request for purchase of the flat to the respondent on DATE , that is , after the expiry of the prescribed time - limit ( DATE ) , so the courts [ ruled ] correctly [ when they ] dismissed her claim . The time - limit in question is preclusive , meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ...

The fact that the proceedings for termination of the specially protected tenancy DATE that ended by the first - instance judgment [ ... ] of DATE , which became final on DATE – were pending between the parties at the time when the time - limit expired ( DATE ) is not relevant . [ ... ] [ Those proceedings ] did not prevent the plaintiff from making a request to purchase the flat . ...

The provisions of LAW on which the plaintiff relies , and which concern the so - called state - owned flats , did not extend the time - limit for making the request to purchase the flat . Under [ section QUANTITY of the DATE LAW , against whom the proceedings for termination of the specially protected tenancy ... have been instituted , could not , until the end of those proceedings , buy a state - owned flat . That means , in particular , that the plaintiff could not have concluded a contract of sale in respect of the flat until DATE , when the proceedings for the termination of the specially protected tenancy ended ... On DATE that impediment ceased to exist ... [ H]owever making a written request to purchase the flat before the expiry of the prescribed time - limit is a precondition for the conclusion of the contract [ of sale ] . Since the plaintiff had not made such a request before the time - limit had expired ( DATE ) she had lost the right to make the request and the respondent was not obliged to sell her the flat on the basis of the request made after the expiry of the time - limit ( DATE ) . The proceedings for termination of the specially protected tenancy were an impediment to buying the flat ( for the conclusion of a contract ) , but not to making a request to purchase the flat . The existence of the [ pending ] proceedings does not extend the time - limit for making a request to purchase the flat .

ORG decision U - I-CARDINAL/CARDINAL of DATE abrogating , inter alia , section CARDINAL paragraphs CARDINAL and DATE LAW these proceedings . Those abrogated provisions provided that the request ... to purchase the state - owned flat had to be made within DATE following the entry into force of the DATE LAW and that after the expiry of that time - limit the applicant lost the right to buy the flat . [ Those provisions ] placed the holders of specially protected tenancies of state - owned flats in an unequal position compared to the holders of such tenancies of flats not owned by the ORG , because for them the considerably shorter preclusive time - limit for making their request to purchase the flat was prescribed ( the prescribed time - limit of DATE expired on DATE ) . By ORG decision the buyers of state - owned flats were put in the same position as other buyers , but they were not given a privileged status so that the prescribed time - limit for making a request to purchase the flat ( DATE ) , valid for all other buyers , would not apply to them . ”

ORG o najmu stanova , ORG no . CARDINAL/CARDINAL of DATE ) , which entered into force on DATE , abolished the specially protected tenancy as such ( LAW paragraph CARDINAL ) but provided that proceedings instituted under LAW should be concluded under the provisions of that LAW ( section CARDINAL paragraph CARDINAL ) .

The Lease of Flats Act regulates the legal relationship between landlord and tenant with respect to the lease of flats . It recognises a special category of tenants , namely those who were previously holders of specially protected tenancies of privately - owned flats or those who did not purchase their flats under LAW . That category is subject to a number of protections , for instance , an obligation on the owners that a contractual lease should last for an unlimited period of time ; payment of a protected rent ( zaštićena najamnina ) , the amount of which is to be prescribed by the Government , as well as limited reasons for the termination of the lease .

Section CARDINAL provides that if none of the persons living in the flat held the specially protected tenancy at the moment of the Act ’s entry into force ( for example , the household members ) they could institute proceedings before the competent court to obtain the status of lessees under a lease agreement with protected rent .

On DATE the ORG adopted a decree ( ORG o preuzimanju sredstava JNA i SSNO na teritoriju PERSON u vlasništvo PERSON ) whereby it took all the ORG ’s property in GPE into state ownership .


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of Art. 2;Violation of Art. 2 (procedural aspect);No violations of Art. 3 (substantive aspect);Violation of Art. 5;Violation of Art. 13+2;No violation of Art. 13+3;Failure to comply with Art. 38-1-a;Pecuniary damage - award;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively . The first applicant lives in the town of PERSON , GPE , the second applicant lives in PERSON .

The first applicant used to live in PERSON , at TIME . She has CARDINAL children , CARDINAL sons and QUANTITY daughters . Her son PERSON was born in DATE .

The second applicant lives in PERSON , at CARDINAL PERSON , apt . CARDINAL . Her son PERSON was born in DATE . She has CARDINAL other sons born in DATE and DATE . Before the hostilities she worked for ORG , as did her husband and several close relatives . In DATE they were forced to leave GPE because of separatist attacks on their family , and lived in GPE for DATE as internally displaced persons . They returned to ORG on CARDINAL DATE .

On DATE the first applicant and her son PERSON were at home . TIME CARDINAL friends of GPE , T. ( born in DATE ) and PERSON , came to their house . PERSON asked the applicant ’s permission to go with them and to spend TIME at T. ’s home . The applicant agreed because she knew the boys , who lived nearby .

The second applicant submitted that her son PERSON , the first applicant ’s son PERSON and T. had been good friends . The second applicant ’s son had a guitar and they often played it in the courtyard of the applicant ’s house . They did not normally go out on the street after TIME because of the curfew imposed by the military . On DATE at QUANTITY they had gone to T. ’s house at FAC ( also referred to as FAC ) , adjacent to their street , to spend TIME there . PERSON had his guitar with him .

On DATE in the morning the first applicant went to the passport desk of ORG of the ORG ( ORG ) in order to obtain a new passport for her son . She returned home at TIME and her daughter told her that ORG had not come home . The first applicant went to see PERSON ’s mother , who told her that her son was not at home either .

On DATE in TIME the second applicant , worried about her son , asked a group of servicemen in FAC if they had seen CARDINAL young men . The soldiers replied that they had detained them and sent them to GPE , the main NORP military base in GPE . The women found the commander of the unit in an armoured personnel carrier ( ORG ) , but he denied knowing anything about the CARDINAL teenagers .

On DATE the applicants and T. ’s mother went to PERSON and submitted an application concerning the alleged detention of their sons . On DATE an investigator from that office came to ORG house and questioned the CARDINAL women .

According to the applicants , in DATE after the CARDINAL boys’ disappearance it became clear from the ORG answers that the boys had been detained TIME on DATE by a joint group of servicemen of the special police forces ( PERSON ) from PERSON and special mission brigade no . CARDINAL of ORG troops ( referred to below as Obron-CARDINAL ) stationed in the district . The soldiers had detained the teenagers during a night raid , brought them to the headquarters of Obron-CARDINAL and TIME had taken them to the LOC military base .

The applicants submitted a copy of the report dated DATE sent by the commander of the PERSON unit , PERSON . PERSON , to the head of PERSON . It read as follows :

“ I can report that during TIME DATE , [ a group of servicemen ] , together with a reconnaissance unit of Obron-CARDINAL , staged an ambush in FAC , where explosive devices had previously been found , in order to prevent the planting of mines and explosive devices .

At TIME the group detained CARDINAL persons covertly moving in the area . A search revealed a number of components and parts of explosive devices , notably :

a warhead from a CARDINAL-mm shell with an opening for a detonator ;

a round for a portable anti - tank gun , also prepared as an explosive device ;

some wires .

CARDINAL of the detainees attempted to flee . The detainees had no identity documents in their possession . They were taken to Obron-CARDINAL headquarters where they were brought to the special [ counter - intelligence ] unit for questioning . CARDINAL of the detainees resembled the description of a rebel fighter ( “ boyevik ” ) who had attacked roadblock no . CARDINAL on DATE using a flamethrower . ... On TIME the individuals concerned were taken to “ FAC by the servicemen of PERSON . No shots were fired during their arrest . ”

On DATE an investigator from the Leninskiy VOVD brought the second applicant her son ’s guitar . He told her it had come from the commander of Obron-CARDINAL , PERSON , who alleged that his servicemen had found it in the street .

On DATE the same investigator told the second applicant that the CARDINAL boys had been transferred to GPE and that ORG ( GRU ) of the army was in charge of them . He also allegedly told her that he could do nothing in the circumstances and that she should instead contact the military commander of ORG .

The applicants have had no news of their sons since this time .

NORP Immediately after the detention of their sons , the applicants and other members of their families started to search for them . On numerous occasions , both in person and in writing , they applied to the prosecutors at various levels , ORG , the Special Envoy of the NORP President in GPE for rights and freedoms , military commanders , the administrative authorities , the media and public figures .

The applicants personally visited detention centres , police stations , military bases and prisons in GPE as well as further afield in the north NORP area . The second applicant also went to look at the bodies discovered in a mass burial site in DATE in the village of GPE , near the GPE military base .

Besides personal visits , the applicants sent numerous letters to the prosecutors and other authorities , in which they stated the facts of their ORG arrest and asked for assistance and details of the investigation . The applicants submitted copies of letters they had written , all conforming to roughly the same model .

The applicants received very little substantive information from official bodies about the investigation into the disappearances . On several occasions they were sent copies of letters stating that their requests had been forwarded to various ORG offices . The summary below is based on the letters retained by the applicants and the replies they received from the authorities .

On DATE both applicants were informed by ORG that it had opened a criminal investigation under LAW into the abduction of their sons .

On DATE an investigator from ORG informed the applicants that a criminal investigation file ( no . DATE ) had been opened following their applications . The investigation had established that the QUANTITY teenagers had been detained by officers from the PERSON and PERSON during an ambush in FAC and that they had been taken to Obron-CARDINAL headquarters TIME . The servicemen from PERSON had refused to appear when summoned and could not be questioned ; the whereabouts of the CARDINAL teenagers therefore remained unknown . A special request had been forwarded to the military prosecutor ’s office .

On DATE a lawyer from ORG wrote to ORG on the first applicant ’s behalf and asked him to ensure that a proper investigation would be conducted into the disappearance of the CARDINAL minors .

On DATE an investigator from ORG requested the military prosecutor of military unit no . CARDINAL , based in GPE , to comply with the request of CARDINAL DATE and to ensure that PERSON , the commander of PERSON , and the other servicemen who had detained CARDINAL minors in FAC on DATE would be questioned .

On DATE ORG for the north NORP area instructed the military prosecutor of military unit no . DATE to “ carefully verify the allegations of involvement by servicemen of Obron-CARDINAL in the boys’ disappearance ” .

On DATE the military prosecutor of military unit no . CARDINAL replied to the first applicant that there were no reasons to conclude that servicemen stationed in the NORP district of ORG had been involved in the detention of her son and CARDINAL other men . The lists of detainees maintained by the military prosecutors , ORG ( ORG ) , ORG and ORG contained no reference to the CARDINAL missing persons . The contingent of PERSON ( military unit no . ORG ) had returned to their home station on expiry of their period of service in GPE , and measures were being taken to establish their whereabouts and to question them about the circumstances of the alleged detention .

On DATE a lawyer from ORG wrote to ORG on the first applicant ’s behalf . She referred to the latest letter from the military prosecutor and asked why the requests to question the servicemen of Obron-CARDINAL had not been acted upon while they were still in GPE . The letter asked ORG to intervene and to ensure that a proper investigation would be carried out .

On DATE the office of the Chief Military Prosecutor replied to PERSON , stating that the investigation was being carried out by the local prosecutor in GPE , to whom all requests should be forwarded . The involvement of military servicemen in the disappearance had not been established , and the military prosecutors therefore had no responsibility for the case .

On DATE the military prosecutor of military unit no . CARDINAL informed the second applicant that his office was in charge of investigating the criminal case concerning the abduction of her son and CARDINAL others . He stated that she would be informed of any progress in the investigation .

On DATE the military prosecutor of military unit no . CARDINAL forwarded the first applicant ’s complaint to ORG and asked that it be included in case file no . DATE , which had been forwarded to that office on DATE . The letter further stated that the investigation had established no connection between military servicemen and the abduction of the CARDINAL men , and had been closed under LAW [ absence of corpus delicti ] .

At DATE and beginning of DATE the second applicant wrote to the NORP President , ORG , members of ORG , other public figures and the media . She stated the facts of her son ’s detention and disappearance and commented on the lack of progress in the investigation despite the fact that the names and positions of the persons who had detained the CARDINAL minors were known . She listed the authorities she had previously applied to with her requests . She referred to her family ’s ties with ORG and explained that her son could have had no links with the “ NORP ” , or illegal armed groups . She asked them to help her establish her son ’s whereabouts .

On DATE ORG of GPE replied to the second applicant . The letter stated that following her request , which had been forwarded by ORG , criminal case no . DATE had been re - examined . The investigation in that case had been twice suspended under LAW of LAW for failure to identify the culprits . Each time these decisions had been quashed by a supervising prosecutor . In DATE the investigation had concluded that the kidnapping of ORG , PERSON and [ T. ] had been committed by the servicemen of PERSON , and the case had been transferred to the military prosecutors . On DATE a military investigator had closed the proceedings on the ground that no servicemen had been involved in the kidnapping , and on DATE the file had been transferred back to ORG . The letter further stated that the submissions of PERSON . PERSON and PERSON , commanders of the ORG unit and of Obron-CARDINAL respectively , had contained substantial discrepancies which the investigation had failed to clarify “ for a number of objective reasons ” . On DATE the decision of DATE by the investigator from ORG to suspend the investigation had been quashed and the case file had been forwarded to that office for further investigation .

On DATE the second applicant received a similar reply signed by the acting Prosecutor of GPE , who added that he would personally supervise progress in the investigation .

On DATE a criminal investigation ( no . DATE ) was instituted into the disappearance of the applicants’ sons on TIME DATE .

The Government submitted that on DATE the second applicant had been granted the status of victim in the criminal proceedings ; on DATE the first applicant had been granted the same status . The second applicant had been questioned by an investigator from the prosecutor ’s office on DATE and DATE . She stated that on TIME her son , together with the first applicant ’s son , had gone to the house of their friend T. , who lived at QUANTITY Street in GPE , where they had intended to spend TIME . They had not returned home DATE . The first applicant and ORG mother made similar statements .

On DATE an inspection carried out at QUANTITY FAC showed no evidence that a crime had been committed .

On DATE the serviceman who had the second applicant ’s son ’s guitar submitted that he had found it in FAC on TIME .

On DATE the military prosecutor ’s office of ORG ( UGA ) terminated the criminal proceedings against the officials of ORG on account of the lack of a corpus delicti .

According to the ORG ’s submissions made prior to the ORG ’s decision as to the admissibility of the present application , ORG ’s neighbours ORG and CARDINAL officials of ORG and ORG who had been serving in PERSON during the relevant period were questioned in the course of the investigation . They had no information concerning the whereabouts of the applicants’ sons . Although investigative steps had been taken , no other witnesses had been found . The records of the units of ORG deployed in PERSON during the relevant period had been examined but no information had been found concerning the arrest of the applicants’ sons and PERSON The investigative authorities had also obtained information from other ORG bodies concerning special operations conducted in GPE and had taken other measures in order to establish the applicants’ sons’ whereabouts . Relevant inquiries had been made on CARDINAL , DATE and DATE , DATE and DATE , DATE , CARDINAL and DATE and CARDINAL DATE . However , it had not been established that representatives of the ORG authorities had been involved in the abduction of the applicants’ sons and T. They had not been held in detention facilities either .

The following information concerning the progress of the investigation was provided by the Government in their submissions following the ORG ’s decision as to the admissibility of the present application .

The preliminary investigation in criminal case no . DATE had been suspended a number of times , since the persons to be charged with the offence had not been identified . The applicants had been informed of all the decisions taken . After a number of suspensions and re - openings , the criminal investigation was resumed on DATE by ORG of LOC of PERSON ( ORG ) .

On DATE the investigative authorities questioned investigator PERSON , who submitted that in the night of DATE T. , PERSON and PERSON had disappeared and their relatives had filed an application on that subject with ORG . Officers of the ORG unit presented documents to the effect that a joint group of the PERSON and intelligence unit of Obron-CARDINAL had detained CARDINAL persons who had not had their identification papers with them . The persons had been detained when installing a makeshift explosive device in FAC and taken to the premises of Obron-CARDINAL in ORG . There was no information to confirm that the persons detained had been T. , PERSON and PERSON . In order to establish the whereabouts of the applicants’ sons and PERSON had visited GPE on several occasions and had met with various officials .

On DATE the head of the ORG of GPE replied that there was no information concerning T. , ORG and PERSON in either the register or the archives of the penitentiary system . Similar information was submitted by the penitentiary authorities of GPE .

On DATE the deputy head of the ORG of GPE replied that the ORG had not conducted any operations aimed at detention of the applicants’ sons and T.

On DATE the head of ORG of the ORG ( ROVD ) replied that he had no information about either the institution of criminal or administrative proceedings against ORG , PERSON and PERSON or their detention in the temporary detention centre of the ROVD .

On DATE the head of criminal police of the Shatoy ROVD submitted that the CARDINAL disappeared persons had not been apprehended or placed in the temporary detention centre of the ROVD .

DATE . On unspecified dates the heads of the penitentiary authorities of LOC , GPE , LOC and GPE replied that T. , PERSON and PERSON were not registered in detention facilities . According to replies from the prosecuting authorities of GPE at various levels , criminal proceedings had not been instituted against the applicants’ sons and T.

On DATE ORG suspended the investigation on account of the failure to identify persons to be charged with the offence .

On DATE the Prosecutor ’s Office of GPE quashed the above decision and resumed the investigation .

On DATE the investigation was suspended on account of the failure to identify the culprits . The applicants were informed accordingly .

On DATE the deputy prosecutor of ORG quashed the above decision and resumed the investigation .

On DATE the investigating authorities questioned PERSON , who submitted that from DATE he had been seconded to GPE and did not remember that the CARDINAL men had been arrested . It is not clear who PERSON was .

On DATE the senior investigator of ORG questioned as a witness an officer of the PERSON . The officer submitted that the order for the joint operation of the PERSON and Obron-CARDINAL in FAC had been given by the commander of the joint unit . CARDINAL officers of Obron-CARDINAL had taken part in the operation , however , he could not remember their names . In the course of the operation they had arrested CARDINAL men . Following the instructions of the officer on duty they had taken them to Obron-CARDINAL headquarters . They had been received by the head of intelligence of Obron-CARDINAL in the rank of captain . The witness together with other officers of the ORG had spent TIME at Obron-CARDINAL headquarters . In TIME the apprehended persons had been taken to GPE .

On DATE ORG resumed the investigation . The applicants were notified accordingly .

On an unspecified date ORG of ORG notified the investigating authorities that it had no information concerning the whereabouts of ORG , PERSON and PERSON .

On DATE the investigator questioned the mother of ORG , who submitted that after her son ’s abduction she had spoken to the ORG privates , who had told her that they had apprehended CARDINAL men who had been transferred to GPE . PERSON , the commander of the search group , had also said that the arrested persons had been held in GPE .

On DATE the investigator questioned PERSON , who submitted that she had known the PERSON family since DATE . She had learned about PERSON disappearance on DATE . She did not know who could have abducted him .

On DATE the investigator questioned PERSON , who submitted that in DATE she had heard screaming outside and had gone out into the street . There she had learned from her neighbours about the abduction of PERSON and his friends .

On DATE the investigator questioned PERSON , who made submissions similar to those of PERSON

On DATE the investigator questioned PERSON , who submitted that in DATE she had learned from the second applicant that her son had been abducted together with CARDINAL other boys .

On an unspecified date an investigator of ORG questioned the first applicant , who submitted that in DATE she had returned to ORG together with her son PERSON to obtain a new passport . In TIME of DATE T. and PERSON had come to their home and later had left for a walk together with her son . On DATE she had learned that her son had been abducted by unknown persons in camouflage uniforms .

On DATE an investigator of ORG questioned PERSON , who submitted that since CARDINAL DATE he had been in charge of the search for missing persons . Officers of the PERSON had told him then that they had arrested CARDINAL young men and transferred them to officers of Obron-CARDINAL . After his repeated visits to the premises of Obron-CARDINAL , a guitar was handed over to him . He had passed it on to the second applicant .

On an unspecified date an investigator of ORG of LOC of GPE questioned PERSON , who submitted that from DATE he had been seconded to ORG [ ORG DATE временная объединенная группировка органов и подразделений ORG ] located at FAC in GPE . He had no information concerning the abduction of T. , PERSON and PERSON in TIME of CARDINAL DATE .

DATE . On DATE the deputy prosecutor of LOC of ORG quashed the above decision and resumed the investigation . The applicants and T. ’s mother were informed accordingly .

According to the Government , the possible involvement of servicemen of Obron-CARDINAL in the abduction of ORG , PERSON and PERSON had been investigated . To that end , the case file had been sent to the military prosecutor ’s office . However , neither the victims nor the witnesses questioned had stated from whom exactly they had learned that T. , ORG and PERSON had been “ apprehended ” . Therefore , it appeared impossible to establish the exact circumstances of the event . Officers of the PERSON confirmed their previous statements that on DATE , together with servicemen of Obron-CARDINAL , they had apprehended CARDINAL young men aged DATE in FAC in ORG and had taken them to Obron-CARDINAL headquarters . However , it had not been established by the investigation that the CARDINAL men were the applicants’ sons and T. Since the involvement of servicemen in the abduction of NORP , PERSON and PERSON had not been confirmed , the investigation was suspended . The applicants and T. ’s mother were informed accordingly , however , they did not appeal against the suspension .

According to the first applicant , following her request for information on the progress of the investigation of CARDINAL DATE , on DATE the prosecutor of LOC of ORG unofficially provided her with a print - out of the outline of the investigative measures on CARDINAL pages , the relevant parts of which read as follows :

“ Criminal case no . DATE was opened on DATE ... into abduction of [ T. ] , PERSON and PERSON in TIME of DATE TIME in FAC in GPE ... [ by ] unidentified persons in camouflage uniform ...

Commander of [ the Pskov OMON ] , [ P. I. ] , who was questioned on this subject , submitted that on DATE at TIME servicemen of PERSON arrived at their location and informed them about the need to lie in ambush in FAC where members of illegal armed groups used to install explosive devices ... most frequently . ... [ E]ight servicemen proceeded to the street indicated . There they split into CARDINAL groups of CARDINAL , concealed themselves and set up an ambush on both sides of the street ... In a while a group of CARDINAL young men passed by . TIME later the second group informed them by the portable radio transmitter that they had apprehended those young men . When [ PERSON ] approached them with his group , he noticed the CARDINAL young men lying on the ground with an artillery shell ... and a wire reel near them . After the arrest they had taken the young men to the Obron-CARDINAL headquarters and transferred [ them ] to the head of intelligence of Obron-CARDINAL whose name was PERSON . The latter told them that he had reported the arrest to GPE . The apprehended [ persons ] did not have identification papers with them . [ PERSON ] had no information about their religious affiliations .

Similar statements were made by officers of [ the Pskov OMON ] [ ORG ] , [ A. ] and [ K - v ] .

According to the report of [ PERSON . PERSON ] , the commander of [ the PERSON ] , ... in TIME DATE officers of [ the PERSON ] together with Obron-CARDINAL in the course of a special operation in FAC apprehended CARDINAL persons who had with them the components of an explosive device . They took the persons to Obron-CARDINAL headquarters and transferred [ them ] to a special unit . In TIME of DATE [ officers of ] Obron-CARDINAL took [ the apprehended persons ] to “ PERSON ... From the report of the head of Obron-CARDINAL headquarters [ PERSON . PERSON ] knew that the apprehended persons had been transferred to GPE .

The head of Obron-CARDINAL headquarters , [ Kal - v . ] , when questioned denied that his servicemen had apprehended and sent to PERSON anybody in the night of DATE . [ He also denied that ] an ambush in FAC had been set up that night .

[ The second applicant submitted that ] ... official of the Leninskiy VOVD [ temporary office of the interior ] , [ PERSON ] , had told them that their sons had been apprehended by servicemen of Obron-CARDINAL and taken to GPE . [ PERSON ] also handed over to them the guitar of PERSON which , according to him , had been found at Obron-CARDINAL headquarters .

[ T. ’s mother and the first applicant ] made similar statements .

[ PERSON ] submitted that on DATE he formed a part of ... a group that searched for PERSON and others who had disappeared in TIME DATE . ... [ T]hey established that on DATE PERSON , PERSON and [ T. ] had been detained by officers of [ the PERSON ] and transferred to servicemen of Obron-CARDINAL . In DATE [ ORG ] seized from private [ O. ] a guitar which belonged to ORG and handed it over to his mother . The latter recognised her son ’s guitar . Officers of the PERSON explained to [ PERSON ] that the young men had been apprehended in FAC [ because they had an ] explosive device . The servicemen refused to provide any explanations in this respect .

Officers of [ the Pskov OMON ] [ A. ] , [ K - v ] , [ ORG ] and [ G - v ] confirmed that together with servicemen of ... PERSON in TIME DATE they had apprehended CARDINAL [ persons ] and taken them to Obron-CARDINAL headquarters . They had not known the personal particulars [ of the persons concerned ] , and the apprehended persons had not had their identification papers with them . However , while they were being questioned witness [ K - v ] noted the surnames of the apprehended persons – [ T. ] , PERSON and PERSON . They had learned from the servicemen that the apprehended persons had had an explosive device . They had provided explanations concerning the circumstances of the arrest of CARDINAL persons in TIME DATE to ORG ...

Witness [ PERSON ] ( PERSON ) ... submitted that ... since DATE he had been serving in military unit no . CARDINAL ... From DATE he had been seconded to ORG as a head of [ intelligence unit ] . Their unit , [ Obron-CARDINAL ] had been located not far from FAC ... Because of the nature of his post he had always remained at headquarters , had not planned any special operations , and had not previously heard the surnames PERSON , PERSON and [ T. ] ...

Taking into account the evidence obtained and having sufficient grounds to believe that servicemen of Obron-CARDINAL had been involved in the abduction of PERSON , [ T. ] and PERSON , on DATE ORG of GPE transferred the present criminal case to ORG of military unit no . CARDINAL for further investigation .

The investigation conducted by the military prosecutor ’s office established the following .

According to the inspection report of the register of military actions of Obron-CARDINAL ... the entries of CARDINAL , DATE , DATE and DATE contained no information that any persons had been arrested ...

According to the extract of the register of military actions of military unit no . CARDINAL on _ MONEY ( DATE is not indicated , the digit before CARDINAL is missing ... ) , in the course of [ an intelligence operation ] in FAC the mine clearing group had found a mine . The mine was destroyed . A joint operation on passport check had been conducted DATE [ it is not clear TIME ] ... CARDINAL persons had been apprehended upon suspicion of participation in an illegal armed group .

[ CARDINAL servicemen of military unit no . CARDINAL , including [ PERSON ] , submitted that they did not know anything about the arrest of PERSON , PERSON and [ T. ] . CARDINAL of the servicemen added that it had not been within the responsibilities of their unit to effect arrests and that they had not conducted any joint operations with ORG . ]

[ B. ] , the commandant of military unit no . ORG ’s headquarters submitted that from DATE he had served as a commander of the military operational reserve of military unit no . CARDINAL in ORG ] . The responsibilities of [ VOrez ] had included accompanying officials of ORG during passport checks and “ sweeping ” operations [ зачистка ] . Effecting arrests had not been within their responsibilities . Every special operation had been organised according to a military instruction from the headquarters in GPE . The instructions had been kept at [ VOrez ’s archives ] . Results of the special operations had been reflected in the register of military actions ... Not less than fifteen servicemen had participated in every such operation together with a similar number of officials of ORG . His servicemen had never taken part in an ambush ... [ The PERSON ] had been located not far from them . [ However , [ B. ’s ] ] servicemen had never interacted with it . He had never met [ PERSON . PERSON ] . No OMON officers had ever spent TIME at his unit ’s headquarters . In DATE an investigator of ORG of NORP origin and a woman of NORP origin had arrived at his unit . They had alleged that his servicemen had apprehended CARDINAL young men on DATE , which had been proved by a guitar [ at unit headquarters ] . He offered him access to all the premises of the unit , but they had refused [ to examine them ] . However , the investigator had seized a guitar from a serviceman [ B. did not remember his surname ] , which , according to the woman , had belonged to her son . According to the serviceman , he had found this guitar in the street in the course of engineering intelligence ... [ B. ’s ] servicemen had not arrested anybody with an explosive device on DATE and had not taken anybody to their headquarters either ... After [ B. ] had seen the report of the commander of [ the PERSON ] [ PERSON . PERSON ] concerning the arrest together with servicemen of Obron-CARDINAL of QUANTITY persons in TIME DATE , [ B. ] said that the information contained in the report was not accurate .

The inspection report of the register of encrypted telegrams from [ VOrez ] of military unit no . CARDINAL contained no information concerning the arrest of CARDINAL persons by servicemen on DATE ...

Following the results of the preliminary investigation , on DATE the military prosecutor ’s office suspended the present criminal case ... in the part related to involvement in the offence of servicemen of [ VOrez ] of military unit no . CARDINAL and on DATE transferred the case to ORG of GPE .

In the course of the additional investigation ORG instructed ORG of GPE to take additional investigative steps with officers of [ the PERSON ] , who had apprehended the applicants’ sons , so as to clarify discrepancies between [ their ] statements and those of Obron-CARDINAL servicemen .

Witnesses [ P. I. ] , [ PERSON . PERSON ] and [ D. I. ] confirmed their previous statements as well as the fact that on DATE in FAC in ORG they had arrested together with servicemen of Obron-CARDINAL CARDINAL young men of [ NORP ] origin aged DATE . [ PERSON . G ] also confirmed the contents of his report concerning the arrest in the course of [ the operation described ] .

[ Neither the Ministry of the ORG nor other law - enforcement agencies ] had any information on the applicants’ sons whereabouts . Requests had also been sent to [ detention facilities and law - enforcement agencies of other regions ] , however , it appeared impossible to establish the whereabouts of the disappeared persons . The investigating authorities had no information that the applicants had visited [ detention facilities ] in the north NORP area .

The preliminary investigation in the criminal case had been suspended on numerous occasions , most recently on DATE , on account of the failure to identify persons to be charged with the offence ...

On DATE the decision to suspend the investigation ... was quashed , the investigation was resumed . ... [ A]t present the investigation is under way . ”

On DATE the second applicant filed a complaint with ORG of PERSON concerning the inactivity of ORG and the prosecutor ’s office of military unit no . CARDINAL .

On DATE ORG of ORG dismissed the complaint . No appeal was lodged against this decision and on DATE it entered into force . According to the second applicant , she was not provided with a copy of the decision and had therefore been unable to lodge an appeal .

NORP Despite specific requests made by ORG on several occasions , the Government did not submit copies of any documents from the file in criminal case no . DATE . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted , with the exception of “ the documents [ disclosing military information and the personal particulars of the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .

For a summary of relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .