Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE ( GPE ) . She was represented before the ORG by ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

The facts of the attack at the applicant ’s house are disputed by the parties .

According to the applicant , on DATE federal forces carried out an air strike on GPE . A missile hit the applicant ’s house at CARDINAL FAC , completely destroying it and causing injuries to the applicant . The applicant submitted that her grandson was also wounded .

The applicant submitted CARDINAL undated notes which , according to her , had been issued by ORG district hospital ( the signatures and stamps are unreadable and the notes do not have letterheads ) . The note in respect of the applicant states that she had presented herself at the hospital “ after the air strike of DATE ” and had been diagnosed with splinter wounds to her left shoulder , body and legs .

On DATE an expert from the ORG construction company and the applicant co - signed a damage certificate ( дефектный акт ) . The certificate described the damage to the house situated at FAC in GPE caused by flooding on DATE . It estimated the destruction of the CARDINAL - room house built of sun - dried bricks with metal roofing at PERCENT . It indicated the size of the house at QUANTITY ( CARDINAL LOC , of QUANTITY ) , plus a covered part of the yard with an area of QUANTITY .

On DATE the Urus - Martan district administration issued a note to the effect that the applicant ’s household was situated at CARDINAL FAC in GPE . The household measured QUANTITY . m , including CARDINAL sq . m of habitable space , and had been entirely destroyed on DATE as a result of a direct hit by an aviation bomb .

The Government submitted that no air strike had been carried out on GPE on DATE . They conceded that an air strike had been carried out in DATE on a target in the vicinity of GPE , but argued that the circumstances of the attack on the applicant ’s house had not been established .

On DATE the Commander in Chief of ORG wrote to ORG at the ORG and informed him that there were no documents to confirm the carrying out of a special operation by the army or the deployment of aircraft on DATE in GPE . At the same time , the Government referred to the copy of the expert report , which had concluded that the fragments collected at the applicant ’s house had belonged to a CARDINAL-mm artillery shell ( see below ) . They argued that this shell could have been launched either by the military or by illegal armed groups active in the district .

On DATE the Urus - Martan District prosecutor ’s office opened a criminal investigation in respect of deliberate destruction of property .

On DATE the investigation was suspended as no suspects had been identified .

On DATE the prosecutor ’s office informed the applicant that the case would be transferred to a military prosecutor , as the alleged offence had been committed by military forces .

On DATE the prosecutor ’s office of ORG transferred the applicant ’s case to the military prosecutor ’s office of ORG . On DATE the latter informed the applicant that her complaint had been forwarded to the military prosecutor ’s office of military unit no . CARDINAL .

On DATE a prosecutor of the unit wrote to the applicant that on DATE federal air forces had attacked a ORG base situated DATE kilometres to the south of GPE . The attack had been carried out by military aircraft based in GPE [ GPE region ] . The navigation system used by the air forces allowed a margin of error of CARDINAL kilometres .

On DATE the prosecutor ’s office of GPE informed the applicant that on DATE they had set aside the decision of DATE to suspend the investigation . They further noted that they had sent the case to ORG prosecutor ’s office and had ordered it to carry out a number of investigative measures , in particular to interview the applicant , to grant her the status of victim and civil claimant , and to assess the pecuniary damage inflicted .

In their observations of DATE the Government referred to the statements made by the applicant given on DATE and submitted that she had been accorded victim status on DATE . According to the Government , during the questioning the applicant stated that she had learnt from other villagers that her house had been destroyed by a bomb . No transcript of this statement or of the decision to accord victim status has been provided .

On DATE ORG центр МВД Чеченской PERSON ) produced an expert report in respect of over CARDINAL pieces of metal collected at the applicant ’s house . The report concluded that the fragments were parts of CARDINAL artillery shells , fired from a gun of the same calibre .

The Government informed the ORG that the investigation into the attack had been adjourned and reopened on several occasions and that the latest decision to adjourn the proceedings had been taken on DATE . They submitted that the applicant had been informed of all the relevant decisions taken in the case but had failed to submit any complaints or requests , and had not asked for access to the file . No documents related to the investigation after CARDINAL DATE had been submitted by the parties .

On DATE CARDINAL of the applicant ’s neighbours drew up a list of belongings which on DATE had been destroyed by a missile which struck her house at QUANTITY Street . The list was co - signed by the head of the local municipality .

On DATE the applicant brought an action for damages against ORG . Neither the applicant nor the Government submitted any documents related to these proceedings ; however they described their progress in the following manner .

On DATE the applicant ’s lawyer obtained information from ORG about the average price of QUANTITY of residential property in GPE during DATE and DATE .

On several occasions DATE and DATE the hearings at ORG of GPE were adjourned due to the applicant ’s failure to appear . On DATE the court rejected the applicant ’s claim . The hearing took place in the applicant ’s absence , at her request . The applicant did not appeal against this decision . The ORG stated that a copy of the decision had been sent to the applicant ’s representative on DATE .

The applicant stated that she had not received a copy of the said decision , and that her previous representative , PERSON , had died on DATE . It does not appear that she had taken any steps to obtain a copy of the decision at any stage , to appeal against it or to seek reinstatements of the terms of appeal .

The Government submitted in their observations of CARDINAL DATE that the applicant had obtained compensation for the property lost as a result of the attack . Without providing copies of any documents or indicating the dates on which these events had taken place , they submitted that the assessment carried out by the local ORG construction company had estimated the applicant ’s losses to the house and property at MONEY ( RUB ) . Under the procedure provided for by Government Decree No . CARDINAL ( see Relevant national law below ) , the applicant had been paid compensation of RUB CARDINAL for the lost real estate and RUB CARDINAL for personal belongings .

The applicant submitted a copy of the assessment report of unclear date produced by the ORG construction company , which calculated damages to the house and property at FAC at RUB CARDINAL . She did not comment on the issue of compensation apparently paid to her on the basis of this assessment .

The Federal Law on Suppression of Terrorism of DATE ( Федеральный закон от CARDINAL июля DATE г. № CARDINAL « О борьбе с терроризмом DATE “ the Suppression of Terrorism Act ” ) , as in force at the relevant time , provided as follows :

“ For the purposes of the present ORG the following basic concepts shall be applied :

... ‘ suppression of ORG shall refer to activities aimed at the prevention , detection , suppression and minimisation of consequences of terrorist activities ;

‘ counter - terrorist operation’ shall refer to special activities aimed at the prevention of terrorist acts , ensuring the security of individuals , neutralising terrorists and minimising the consequences of terrorist acts ;

‘ zone of a counter - terrorist operation’ shall refer to an individual terrain or water surface , means of transport , building , structure or LOC with adjacent territory where a counter - terrorist operation is conducted ; ... ”

“ On the basis of the legislation and within the limits established by it , damage may be caused to the life , health and property of terrorists , as well as to other legally protected interests , in the course of a counter - terrorist operation . However , servicemen , experts and other persons engaged in the suppression of terrorism shall be exempted from liability for such damage , in accordance with the legislation of GPE . ”

Governmental Decree no . CARDINAL of DATE established the right of all permanent residents of GPE who had lost their homes and any possessions in them after DATE to receive compensation in the amount of RUB CARDINAL for their home and RUB CARDINAL for possessions .


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

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

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

On DATE the ORG of GPE awarded the applicant against a local welfare authority MONEY ( RUB ) in child benefit arrears . This judgment became binding on DATE but was not enforced immediately .

On DATE ORG awarded the applicant against the regional authority RUB CARDINAL in child benefit arrears . This judgment became binding on DATE but was not enforced immediately .

On DATE the CARDINAL judgments were enforced .

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


Alvina Gyulumyan;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

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

CARDINAL .

At the relevant time , the applicant worked as a prosecutor at ORG attached to ORG .

Prior to the publication of the impugned article , he took a leave of absence from office DATE as he was appointed to political positions by the Government . In particular , he worked as the Secretary of ORG at ORG and then as an Under Secretary of ORG at ORG . He was not affiliated to any political party . The party in power at that time went on to lose elections held in DATE , at which time the applicant returned to work as a prosecutor .

An article concerning the applicant written by ORG was published in DATE issue of the satirical DATE magazine ORG , under the title “ In the balance of justice , PERSON plays on a seesaw ” ( În balanţa justiţiei , PERSON se dă huţa ) .

The relevant parts of the article read as follows :

“ If before the Revolution Mocuţa took advantage of his name , which was identical to that of the county ’s chief secretary , after DATE he had separated himself from the dreaded activist like one would separate [ oneself ] from the PERSON . Whether he was related to PERSON or not , PERSON was appointed straight after graduation to ORG at ORG ... , despite him not being [ ranked ] first in his class ...

No matter how much he would struggle to prove otherwise , PERSON appears on [ Bank B. ’s ] list of shame , side by side with high - ranking officers from ORG and from ORG . What sets the prosecutor apart from the others [ on the list ] is that , whilst the soldiers tormented themselves to pay back their debts , as far as FAC is concerned , we do not yet know that he has reached the last payment of his loan . What we do know for sure is that he was fully dedicated to investigating the criminal file opened against [ the former director of Bank B. ] ”

The article went on to set out details of the applicant ’s real estate acquisitions , which it stated had been made through allegedly suspicious business transactions involving a former director of ORG , an influential local politician and local prosecutors . It also insinuated corruption on the part of the applicant in his office as prosecutor in connection with some real estate deals .

DATE after the publication of that article , a second article on the same matter featured in the magazine , credited to a different journalist , in which it was admitted that ORG had been misinformed and had thus presented false information in his previous article .

On DATE the applicant lodged a criminal complaint with ORG against ORG for insult and defamation of an official in the course of his or her duties ( ultraj ; LAW ) .

NORP The prosecutor decided that the facts fell to be examined under LAW and CARDINAL of LAW and sent the case to ORG .

The applicant joined the proceedings as civil party , seeking damages from the journalist and the publisher of the magazine , which was a company .

On DATE the court acquitted ORG , but ordered him , together with the publisher , to pay the applicant CARDINAL NORP lei in respect of non - pecuniary damage .

The court considered that the article had been insulting and defamatory and had thus damaged the applicant ’s reputation and violated his dignity . It nevertheless considered that the journalist had not acted with a clear intention to offend the applicant , his aim being to inform readers about the applicant ’s conduct as a prosecutor and high representative of the ORG , which was a matter of public interest . The court noted that ORG had relied on previously published articles and on information delivered by protected sources , but considered that he should have been more diligent in checking the information before publishing it .

As regards the civil claim , the court considered that ORG had acted unlawfully as he had failed to thoroughly check the information published or to prove its veracity at trial , and that his behaviour had been prejudicial to the victim .

Both ORG and the public prosecutor appealed against the judgment of DATE . ORG requested that the civil claim be dismissed , while the prosecutor sought to overturn the acquittal .

On DATE ORG allowed the appeal lodged by ORG , quashed the judgment in so far as it concerned the civil action and dismissed the applicant ’s claim , on the grounds that there had been no causal link between the journalist ’s conduct and the detriment suffered by the applicant . It upheld the remainder of the judgment , accepting the reasoning of the lower court in doing so .

The relevant provisions of ORG concerning insult and defamation and liability for paying damages , in force at the material time , as well as their subsequent amendments are described in PERSON v. GPE ( dec . ) , no . CARDINAL , DATE ) .


Preliminary objection dismissed (estoppel);Violation of Art. 6-1;Violation of Art. 8;Violation of Art. 14+6-1 and 14+8;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE ( GPE ) .

The applicant is a well - known businessman in GPE . On CARDINAL DATE he married a NORP national , X , in a NORP ceremony . In DATE X became pregnant ; at that time she was still living together with the applicant , who was aware of the pregnancy . In DATE the applicant and X separated and stopped living together . On DATE X gave birth to a child , Y.

The applicant states that he had had doubts regarding the paternity of Y and wanted to carry out a blood test , although such a test would not have been conclusive under NORP law , which did not allow him to institute an action to rebut the legal presumption that he was Y ’s father . He was registered as the natural father of the child .

DATE after LOC birth , PERSON refused to carry out the blood test . This behaviour intensified the applicant ’s suspicions regarding the child ’s paternity . He alleged that he distanced himself completely from Y and , although legally obliged to pay maintenance for her until she reached the age of majority , he had no relationship with her . This is disputed by Y ( see “ NORP The statements by Y and by the applicant ” below ) .

NORP The applicant legally separated from X on DATE by means of a contract of voluntary separation . Subsequently the marriage was annulled by a decree of ORG of ORG on DATE .

According to the applicant ’s version of events , on an unspecified date after DATE Y contacted him and volunteered to undergo a blood test . Scientific examinations were carried out in GPE and concluded that the applicant was not LOC biological father . However , in a written statement attached to the ORG ’s observations on the merits , Y declared that the DNA test had been carried out in DATE and not in DATE . She further stated that the results of this test had never been shown to her .

On DATE the applicant lodged an application with ORG ( FAC ) , seeking a declaration that notwithstanding the provisions of LAW , he had a right to proceed with an action for disavowal of paternity .

The applicant alleged that the right to respect for his private and family life included the right to have family relationships governed by biological certainty and not by a legal presumption conflicting with the reality of the facts . He considered that the lack of any remedy in that respect violated LAW , as interpreted by ORG in the case of ORG and Others v. the GPE ( judgment of DATE , Series A no . CARDINAL-C ) .

In submissions filed with ORG the applicant also invoked Articles CARDINAL and CARDINAL of the LAW , alleging a potential violation of his right of access to a court and his right not to be discriminated against vis - à - vis the mother of the child , the child herself or any third parties who , unlike the betrayed husband , were free to deny legitimacy without being subject to any time - limit .

In a judgment of CARDINAL DATE ORG allowed the applicant ’s application . It observed that Articles CARDINAL and CARDINAL of LAW had never allowed him to adduce scientific and genetic evidence to prove that the child borne by his former wife was not in fact his daughter . Therefore , there had been a violation of LAW .

ORG considered that the status of father was intimately linked with private life . Therefore , laws establishing how ties of filiation could be created and dissolved could interfere with the right guaranteed by LAW . It furthermore observed that national law had never allowed the applicant to adduce scientific evidence in order for the family relationship in question to be governed by biological certainty and not by a legal presumption . In fact , under LAW , as in force at the relevant time , the father could only repudiate paternity on the grounds either of physical impossibility of cohabitation or of legal separation during the possible period of conception . Moreover , the husband could not repudiate a child on the ground of adultery , except where the birth had been concealed from him . As the applicant had been cohabiting with X at the time of ORG conception and had been aware of her birth , no action for disavowal could have been brought within DATE from the date of the birth as set forth in the relevant domestic provisions . It was true that LAW had been amended in DATE , and that under the new LAW ( d ) , the husband was also allowed to repudiate a child on the ground of adultery subject to the production of further evidence , including genetic tests , ruling out his paternity of the child . However , LAW , such an action should have been brought within DATE from the date of the birth , and by DATE that period had already expired .

In ORG view , such interference could not be justified in terms of paragraph CARDINAL of Article CARDINAL of the Convention . It emphasised that in the case of ORG and Others v. the GPE ORG had stated that respect for family life required that biological and social reality should prevail over a legal presumption . This finding dispensed ORG from ascertaining whether the other rights relied on by the applicant had also been infringed .

The Attorney General appealed against the judgment of CARDINAL DATE to ORG . A third - party appeal was also lodged by Y.

In a judgment of DATE ORG allowed the appeals by the Attorney General and Y and set aside the impugned judgment .

It observed that even before the DATE amendments LAW had not precluded the taking of genetic and scientific tests to establish whether a person was the father of a child or not . In fact , LAW of the LAW simply provided that adultery alone was an insufficient basis for bringing an action to repudiate paternity , the presence of another element being necessary , namely that the birth had been concealed from the person legally designated as the father . Only after this circumstance had been established could the “ father ” produce other evidence , including scientific material . The reason for this limitation of the husband ’s right to proceed with an action for repudiation had been the stand in favour of the status of legitimacy , summed up by the presumption “ pater is est quem iustae nuptiae demonstrant ” . The ratio legis remained the same even after the DATE amendments , which allowed the husband to repudiate the child on the basis of adultery and scientific tests even if the birth had not been concealed from him ( LAW ( d ) of LAW ) . In any case , scientific tests alone merely constituted evidence corroborating other elements , and they had never been sufficient and decisive to disavow paternity , the husband being obliged to prove the adultery or the concealment of the birth .

ORG noted that the applicant was in reality claiming a right to determine paternity uniquely on the basis of biological certainty resulting from scientific proof , independently of any other requirement imposed by the legislator and without any time - limit . It was true that scientific tests , whose results were apparently ascertainable and accessible , could be the most conclusive ; however , in ORG view , this was not a good reason to exclude certainty reached by means of other evidence .

The Constitutional Court examined whether the domestic law had struck a fair balance between the husband ’s right to know whether or not he was the child ’s father and the interests of the child in enjoying certainty as to his or her legal status . It considered that according to DATE ’s social trends , the aim of the interference complained of was the protection of children in the enjoyment of their family ties rather than the protection of the status of legitimacy . The issue raised by the applicant concerned a conflict between factual reality and legal certainty , a matter which was the subject of debate in many other countries . ORG noted that the Kroon and Others judgment did not deny a margin of appreciation to the ORG authorities and that ORG had not made a statement on the conformity of the provisions of NORP law with the ORG , preferring to ruleThe contested judgment had simply followed the position taken in the ORG and Others judgment , the facts of which , however , were completely different from those of the present case , in which both X and Y disagreed with the action taken by the applicant and the “ social reality ” enjoyed by Y corresponded to her birth certificate .

The Constitutional Court moreover pointed out that in the case of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) the ORG had considered that the introduction of time - limits for the institution of paternity proceedings was justified by the desire to ensure legal certainty and to protect the interests of the child , and had consequently found no violation of LAW . That approach had subsequently been confirmed by ORG in the cases of GPE v. GPE ( application no . CARDINAL , decision of DATE ) and PERSON v. GPE , concerning the refusal to order a blood test ( application no . CARDINAL/CARDINAL , decision of DATE ) , as well as by ORG in the case of PERSON ( DATE . ) , no . CARDINAL , DATE ) .

In the light of the above , ORG considered that the interest in having biological and social reality prevail over legal presumptions should be balanced against equally valid principles and values , such as the interests of the offspring , the identity of the family nucleus and the stability of society . This vindicated the right of the ORG to impose , within its margin of appreciation , certain limits on the use of an action to deny paternity , which ORG could review only if they amounted to serious interference with the husband ’s fundamental rights .

The Constitutional Court finally observed that the ideal situation was CARDINAL in which legal certainty corresponded to factual reality . It therefore suggested that the domestic provisions be constantly kept under the legislator ’s scrutiny to be refined and updated as and when necessary , taking into account developments in science , changes in the family and social trends .

Attached to their observations on the merits , the Government produced a statement by ORG , in which she declared that she had used the applicant ’s name for DATE and would like to continue to do so for the rest of her life . Y also stated that the applicant used to visit her during DATE of her life ; he had provided maintenance for her upbringing and had paid a sum for her wedding expenses . Y had been invited several times to parties at the applicant ’s house and on CARDINAL occasion she had been asked to go upstairs to greet the applicant ’s father . On another occasion , Y had played tennis with the applicant at his private house in GPE . At some point DATE the applicant had invited Y and her son to spend DATE at his house by the pool . On that occasion , he had given her son a present .

Y declared that she had undergone the blood test in DATE at the applicant ’s request . At that time she had had no doubt that the applicant was her father . Her intentions were based on purely emotional factors and not on financial considerations . Y alleged that she did not believe the applicant ’s statement that she was not his daughter and added that she had never been shown the results of the DNA test . She felt that the applicant was simply trying to find some justification for the fact that he had not always treated her like a daughter . The reasons behind the applicant ’s legal actions were probably of a merely financial nature . The allegations made in court had caused Y further suffering .

NORP In response to Y ’s arguments , the applicant produced a written statement in which he declared that , having suspected that his wife was having affairs during their marriage , he had not been happy when he had been informed that X was pregnant . The applicant had separated from GPE DATE before Y ’s birth and had been informed of DATE after it had happened . The applicant had not wanted to sign the declaration of birth and had delayed the matter for DATE . He had eventually been incorrectly led to believe that as the presumed father , he was the only person who could declare the birth ; moreover , pressure had been put on him by X and her father , who had promised that a blood test would be carried out . The applicant had asked whether the blood test could be included as a condition in the contract of separation , but he had abandoned that idea in order not to damage PERSON ’s reputation . DATE after the signature of the contract of separation , the applicant had been informed that X had changed her mind as to the blood test . He had therefore declared that he would not regard Y as his own daughter .

The applicant had included access rights in the separation contract and had actually visited Y during DATE of her life because he had not been sure about the results of the blood test . However , he had stopped the visits when it became clear that the blood test would not be carried out and he had never used his right to take Y to his home . The applicant had not seen Y again until she was DATE , when a friend of his had brought her to CARDINAL of his parties without informing him beforehand . There had been CARDINAL guests at the party . The applicant had not recognised Y on that occasion . She had come to parties organised by the applicant CARDINAL more times , always as an uninvited guest . The applicant did not remember whether he had invited her to greet his father , but pointed out that it had been common for his guests to visit his father , who was living with him .

The applicant submitted that he had shown the results of the blood tests to Y ; however , he had kept the documents for himself . He would have given her a copy had she so requested .

On CARDINAL occasion , “ as a matter of courtesy ” , the applicant had invited Y for lunch . Y had asked whether she could bring her son and the applicant had replied that that was possible . On that occasion , the applicant and Y had discussed Y ’s real father ’s identity .

The applicant had not seen Y again after this lunch . She had never been treated as a granddaughter by the applicant ’s parents and the members of the applicant ’s family had not had any direct contact with her . She had never attended family parties or family funerals and had not been given the applicant ’s deceased mother ’s jewellery ( as would be customary in GPE if she were the applicant ’s daughter ) . The applicant had never felt like a father to Y and could not see how she could have felt like a daughter to him . They had seen each other a few times in DATE and always in the company of third persons . Y had never called the applicant “ dad ” .

The applicant submitted that he had included maintenance for Y in the contract of separation because he was in any case obliged to pay for it . The applicant had also felt obliged to contribute to Y ’s marriage expenses , but had not been invited to the wedding .

Before the DATE amendments , the relevant Articles of ORG read as follows :

“ A child conceived in wedlock is held to be the child of the mother ’s husband . ”

“ The husband can repudiate a child conceived in wedlock

( a ) if he proves that during the time from the three hundredth day to the CARDINAL - and - eightieth day before the birth of the child , he was in the physical impossibility of cohabiting with his wife on account of his being away from her , or some other accident ; or

( b ) if he proves that during the said time he was legally separated from his wife ... ”

“ The husband may not repudiate a child on the ground of adultery , except where the birth shall have been concealed from him , in which case he shall be allowed to prove , even in the action for disavowal , both the adultery and the concealment , as well as all other circumstances tending to show that he is not the father of the child ... ”

“ Where it is competent to the husband to bring an action to disown a child , he must bring such action

( a ) within DATE from DATE of the birth , if he was then in GPE ;

( b ) within DATE of his return to GPE , if he was absent at the time of the birth ;

( c ) within DATE of the discovery of the fraud , if the birth was concealed from him ... ”

From DATE ( see Act XXI of DATE ) a number of amendments were made to LAW . In particular , to the cases in which the husband may repudiate a child conceived in wedlock was added the following ( LAW ( d ) of LAW ) :

“ if he proves that during the ... time [ from DATE to DATE before the birth of the child ] the wife had committed adultery or that she had concealed the pregnancy and the birth of the child , and further produces evidence of any other fact ( which may also be genetic and scientific tests and data ) that tends to exclude such paternity . ”

Moreover , the periods set down in LAW were raised to DATE .

By LAW , the legitimacy of a child born in wedlock may be impeached by any interested person if he or she proves that , during the time from the QUANTITY day to DATE before the birth of the child , it was physically impossible for the husband to have been cohabiting with his wife . This action is not subject to any time - limit .

According to the case - law of the domestic courts , a child has the right to challenge his or her paternity without restrictions when the status attributed by the birth certificate conflicts with the factual reality ( see the judgment of ORG of DATE in the case of PERSON Dr G. GPE ) .

By ORG CARDINAL and CARDINAL of LAW , the applicant ’s daughter is entitled , as a legitimate descendant , to inherit CARDINAL of the applicant ’s estate , which is due in full ownership and can not be encumbered by any burden or condition . As a consequence of the amendments introduced in LAW , which entered into force on DATE , if the applicant dies without having made a will or if his will is declared invalid for any reason , Y , as his only child , will be entitled to his entire estate .

Until the child’ reached the age of majority , the applicant was obliged to provide maintenance for his daughter . Should the latter in future become unable to maintain herself , alone or with the help of her husband and children , the applicant would once again become liable to the obligation of maintenance .


Remainder inadmissible;No violation of Art. 3 (substantive aspect);Violation of Art. 6-1;No violation of Art. 6-1;Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient

Alvina Gyulumyan;András Sajó;Anatoly Kovler;Antonella Mularoni;Christos Rozakis;Elisabeth Steiner;Françoise Tulkens;Giorgio Malinverni;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Nicolas Bratza;Renate Jaeger;Sverre Erik Jebens;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

The applicant was placed in detention on DATE .

Several sets of criminal proceedings were brought against him , as a result of which he was sentenced to terms of imprisonment for , among other offences , membership of a mafia - type criminal organisation , drug trafficking and illegal possession of firearms . On DATE the public prosecutor at ORG ordered that the applicant ’s sentences be aggregated and fixed the overall term at DATE .

The applicant was detained in several NORP prisons ( including GPE , GPE , GPE and GPE ) .

On DATE , in view of the danger posed by the applicant , the Minister of ORG issued a decree ordering that he be subject for DATE to the special prison regime provided for in the second paragraph of CARDINAL bis of LAW ( “ Law no . CARDINAL of DATE ” ) . This provision , which was amended by Law no . CARDINAL of DATE ( “ Law no . CARDINAL of DATE ” ) , allows application of the ordinary prison regime to be suspended in whole or in part for reasons of public order and safety .

The DATE decree imposed the following restrictions :

– restrictions on visits by family members ( a maximum of a single onehour visit per month ) ;

– no meetings with non - family members ;

– prohibition on using the telephone ;

– no sums of money above a fixed amount to be received or sent out ;

– CARDINAL parcels to be received per month , but permission to receive CARDINAL parcels per year containing clothing and linen ;

– ban on organising cultural , recreational or sports activities ;

– no right to vote in elections for ORG representatives or to be elected as a representative ;

– no handicraft activities ;

– no food requiring cooking to be purchased ;

– CARDINAL hours’ outdoor exercise per day .

NORP In addition , all the applicant ’s correspondence was to be monitored , subject to prior authorisation by the judicial authority .

The application of the special regime was subsequently extended on CARDINAL occasions for successive periods of DATE or DATE .

Each decree covered a limited period , as follows :

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE – CARDINAL August CARDINAL ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

CARDINAL DATE – CARDINAL DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL)

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE – CARDINAL DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE – DATE ( decree no . CARDINAL )

DATE ( decree no . CARDINAL )

DATE – CARDINAL DATE ( decree no . CARDINAL ) .

The applicant appealed against most of these decrees to the GPE court responsible for the execution of sentences . The case file shows that the applicant did not appeal on points of law against the decisions of the latter court . He maintained that ORG would in any event have dismissed the appeals on the ground that he no longer had an interest in having them examined since the period of validity of the decrees in question had expired .

– Decree no . CARDINAL

On an unspecified date the applicant appealed against the decree of DATE . In a decision of CARDINAL DATE , the court responsible for the execution of sentences dismissed the appeal , taking the view that the application of the special prison regime was justified . However , the restrictions were eased to allow the applicant TIME - long telephone conversation per month with members of his family , in the absence of a visit by the latter ; the restriction on the time spent in outdoor exercise and the prohibition on purchasing food requiring cooking were also lifted .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE . In a decision of DATE , deposited with its registry on DATE and served on the applicant on DATE , the court responsible for the execution of sentences declared the appeal inadmissible on the ground that , in accordance with the restrictive case - law followed at the time , the court hearing the case did not have the power to examine the merits of the restrictions imposed .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE ( served the following day ) . In a decision of DATE , deposited with the registry on CARDINAL DATE and served on the applicant on DATE , the court , while upholding the application of the special regime , relaxed the restriction on visits by family members in order to allow the applicant TIME - long visits per month .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of DATE ( served on DATE ) . In a decision of DATE , deposited with the registry on DATE and served on the applicant on DATE , the court responsible for the execution of sentences , while upholding the application of the special regime , lifted the restriction on the number of visits by family members .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE . In a decision of DATE , deposited with the registry on CARDINAL DATE and served on the applicant on CARDINAL DATE , the court responsible for the execution of sentences dismissed the appeal on the ground that the restrictions imposed on the applicant were justified .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE ( served DATE ) . In a decision of CARDINAL DATE , deposited with the registry on DATE and served on the applicant on DATE , the court responsible for the execution of sentences dismissed the appeal on the ground that the restrictions imposed on the applicant were justified .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE . In a decision of DATE , deposited with the registry on DATE and served on the applicant on an unspecified date , the court responsible for the execution of sentences declared the appeal inadmissible . It observed that the period of validity of the decree had expired on DATE and that , accordingly , the applicant no longer had an interest in having it examined .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE ( served on DATE ) . The ORG has not been informed of the outcome of this appeal .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of DATE . In a decision of CARDINAL DATE , deposited with the registry on DATE and served on the applicant on DATE , the court responsible for the execution of sentences declared the appeal inadmissible as the applicant had declared his intention not to pursue it .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE ( served on DATE ) . In a decision of DATE , the court responsible for the execution of sentences dismissed the appeal on the ground that the validity of the impugned decree had expired .

– Decree no . CARDINAL

On an unspecified date the applicant appealed against the decree of DATE . In a decision of DATE , deposited with the registry on DATE , the court responsible for the execution of sentences dismissed the appeal as unsubstantiated .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of DATE ( served on DATE ) . In a decision of DATE , the court responsible for the execution of sentences dismissed the appeal on the ground that application of the special prison regime was justified in view of the danger posed by the applicant and his links with criminal circles .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE ( served on DATE ) . In a decision of DATE , the court responsible for the execution of sentences dismissed the appeal as unsubstantiated .

– Decree no . CARDINAL

On an unspecified date the applicant appealed against the decree of DATE . He requested the court responsible for the execution of sentences to seek a review by ORG of the compatibility of paragraph CARDINAL bis of section CARDINAL bis ( as amended by PERSON no . CARDINAL of DATE ) with several ORG of the LAW .

In a decision of DATE , served on the applicant on DATE , the court responsible for the execution of sentences ordered that the file be transmitted to ORG . The decision was taken on the ground that , in so far as PERSON no . CARDINAL of DATE did not require the Minister of ORG to give reasons for the decrees , an issue of constitutionality could arise . The court observed in particular that in the instant case the applicant had been subject to the special prison regime since DATE and that the reasons given for the decrees extending application of the regime related to ongoing links between the applicant and the criminal organisation to which he belonged , notwithstanding the fact that he was subject to the special regime .

By decision no . CARDINAL of DATE , deposited with the registry on DATE , ORG dismissed the objection as to constitutionality raised by the court responsible for the execution of sentences , finding that it was manifestly ill - founded .

– Decree no . CARDINAL

On an unspecified date the applicant appealed against the decree of DATE . He argued that the special regime was hindering his rehabilitation , in breach of LAW , and that it failed to respect the needs of his personality , contrary to LAW no . CARDINAL of DATE .

In a decision of DATE , deposited with the registry on DATE , the court responsible for the execution of sentences dismissed the appeal on the basis of the police investigations , on the ground that application of the special regime was justified on account of the applicant ’s links to organised crime .

– Decree no . CARDINAL

On DATE the applicant appealed against the decree of CARDINAL DATE . In a decision of CARDINAL DATE , deposited with the registry on DATE , the court responsible for the execution of sentences allowed the applicant ’s appeal . It took the view that the security considerations which had been the reason for applying the special prison regime were no longer valid ; it therefore ordered the measure in question to be rescinded .

On DATE the prison authorities placed the applicant in a high - supervision ( “ ORG ) unit .

On DATE the GPE judge responsible for the execution of sentences , on a provisional basis and pending the decision of the court responsible for the execution of sentences , ordered a stay of execution of the applicant ’s sentence and his release in order to undergo urgent surgery . This decision was upheld on DATE by the GPE court responsible for the execution of sentences .

The applicant suffers from a number of disorders which oblige him to use a wheelchair . From DATE he served his sentence in the part of the hospital wing of FAC ( ORG ) reserved for prisoners detained under the section CARDINAL bis regime .

On an unspecified date the applicant applied to the GPE court responsible for the execution of sentences for a stay of execution of his sentence on health grounds , under ORG CARDINAL and CARDINAL of LAW . In a decision of DATE , the court responsible for the execution of sentences , basing its decision on a report drawn up by the prison medical team , rejected the application on the ground that the applicant was being held in the prison ’s hospital wing and was receiving treatment appropriate to his state of health .

On an unspecified date the applicant made a fresh application to the judge responsible for the execution of sentences for a stay of execution of his sentence on health grounds . In a decision of DATE , the judge rejected the application on the ground that the applicant ’s state of health was not incompatible with detention in the prison hospital wing . On DATE the GPE court responsible for the execution of sentences upheld that decision .

NORP In DATE , after authorisation had been obtained from the court responsible for the execution of sentences , the applicant was taken to a GPE civil hospital for an operation to remove a kidney .

On DATE the GPE judge responsible for the execution of sentences provisionally stayed execution of the applicant ’s sentence and ordered his release in order to undergo urgent surgery ( see paragraph CARDINAL above ) .

According to the information provided to the ORG by the parties , the GPE court responsible for the execution of sentences ordered a stay of execution of the applicant ’s sentence on DATE on account of his state of health . The applicant had had an operation to remove CARDINAL of CARDINAL brain tumours on DATE and his state of health was found to be incompatible with detention . The court placed him under house arrest for a period of DATE , prohibiting contact with any persons other than family members and medical personnel . The court ’s decision to place the applicant under house arrest was based on the applicant ’s criminal personality and the length of his sentence and on a note from the GPE police authorities dated DATE .

The ORG has not been informed of the applicant ’s current state of health .

On DATE the Minister of ORG issued the first decree subjecting the applicant to the special prison regime and ordered the monitoring of all his correspondence , subject to prior authorisation by the judicial authority ( see paragraphs CARDINAL above ) .

The corresponding decisions of the GPE court responsible for the execution of sentences communicated to the ORG relate to the period DATE and DATE . The first decisions imposed the measure in relation to all correspondence for an unspecified period . On DATE the judge responsible for the execution of sentences fixed the maximum period at DATE and ordered that the applicant ’s correspondence with ORG , in particular , should not be monitored .

The applicant furnished a copy of an undated letter and an envelope , both addressed to his lawyer , PERSON , the latter postmarked DATE . Both documents had been inspected by the prison authorities , but the corresponding stamps were not dated .

On DATE the applicant applied to ORG for prison leave in order to attend his brother ’s funeral . On DATE the court allowed the application but made the leave subject to whatever detailed arrangements might be laid down by the courts responsible for the execution of sentences . It also ordered that “ the other judicial authorities concerned , the public prosecutor ’s office and the applicant ” be informed of its decision .

The case file shows that ORG rejected the applicant ’s application on DATE on account of the risk that he might abscond . The decision was deposited with the registry on DATE .

The applicant stated that he had also applied for prison leave to attend his partner ’s funeral .

The relevant domestic law and practice summarised in the Ospina PERSON v. GPE judgment ( no . PERSON , § § DATE , DATE ) are set out below .

Section CARDINAL bis of LAW ( Law no . CARDINAL of DATE ) , as amended by PERSON no . CARDINAL of CARDINAL DATE , gives the Minister of ORG the power to suspend application of the ordinary prison regime as laid down in Law no . CARDINAL of DATE in whole or in part , by means of a decision stating grounds which is subject to judicial review , for reasons of public order and security in cases where the ordinary prison regime would conflict with these requirements .

Such a measure can be applied only to prisoners charged with or sentenced for the offences mentioned in LAW , which include offences relating to ORG activities .

Pursuant to Law no . DATE , and subsequently PERSON no . CARDINAL of DATE and PERSON no . CARDINAL of DATE , application of the section CARDINAL bis special regime was extended until DATE . It was later extended until DATE pursuant to Law no . CARDINAL of DATE . On the entry into force on DATE of PERSON no . CARDINAL , partly amending LAW , the special prison regime ceased to be temporary in nature .

On the basis of Legislative Decree no . CARDINAL/CARDINAL , the special regime is now applied for an initial period of DATE ( compared with DATE previously ) ; this can subsequently be extended by DATE ( compared with DATE previously ) .

Before Law no . CARDINAL of DATE came into force , the choice of measures resulting from the application of section CARDINAL bis was left to the discretion of the Minister of ORG . However , the measures imposed were generally the following :

– a ban on participating in the preparation of food and organising ORG recreational activities ;

– a ban on visits by persons other than family members , a cohabitant or a lawyer ;

– a maximum of CARDINAL visits by family members and CARDINAL telephone call per month ;

– monitoring of all the prisoner ’s correspondence except for that with his lawyer ;

– not TIME per day to be spent outdoors ;

– restrictions on acquiring or receiving from outside prison personal possessions authorised by the prison ’s internal rules ;

– CARDINAL parcels per month ;

– no sums of money to be received from outside prison or sent out ;

– no handicrafts involving the use of dangerous tools .

Section CARDINAL ter of the Prison Administration Act provides for the possibility of an appeal ( reclamo ) to the court responsible for the execution of sentences against a decree imposing the special prison regime within DATE from the date on which the person concerned receives a copy of the decree . Such an appeal does not have suspensive effect . The court must give a ruling within DATE . An appeal to ORG lies against the decision of the court responsible for the execution of sentences ; again , such an appeal must be lodged within DATE of the date on which the refusal by the court has been served .

Until PERSON no . CARDINAL of DATE came into force , section QUANTITY also applied to complaints about decrees adopted by the Minister of ORG under section CARDINAL bis . Paragraphs CARDINAL quinquies and CARDINAL sexies of section CARDINAL bis have subsequently provided for a special complaints procedure , which is nonetheless modelled on the procedure laid down in section QUANTITY .

ORG was asked to rule on whether such a system complied with the principle of non - encroachment on matters reserved for the legislature . In judgments nos . CARDINAL and CARDINAL of DATE , it held that section CARDINAL bis was compatible with the LAW . It observed that while the special prison regime within the meaning of the provision in question was in practice laid down by the Minister , an appeal lay against a ministerial decree to the courts responsible for the execution of sentences , which had the power to review both the need for such a measure and the actual measures to be applied to the prisoner concerned , which in any event ought never to entail inhuman treatment .

However , on the basis of LAW , which provides , inter alia , that restrictions on correspondence may be imposed only by means of a court decision containing a statement of reasons , ORG held that the power to order monitoring of a prisoner ’s correspondence was vested in the courts alone . As a result , section CARDINAL bis could not be construed as empowering the Minister of ORG to take measures relating to ORG correspondence . Accordingly , from DATE the sole basis for monitoring of correspondence was section CARDINAL of Law no . CARDINAL of DATE , as amended by LAW no . DATE .

Under that provision , the court before which proceedings are pending ( until the delivery of the first - instance judgment ) or the court responsible for the execution of sentences ( during any subsequent proceedings ) may order the monitoring of ORG correspondence , stating reasons for its decision ; the provision does not , however , specify the cases in which such a decision may be taken . In practice , monitoring means interception of all a prisoner ’s correspondence , which is then read by the judicial authority which ordered it , by the governor of the prison or by prison staff designated by the governor . The letters are then stamped to show that they have been inspected . The deletion of words or sentences is not permitted , but the judicial authority may order that CARDINAL or more letters should not be delivered , in which case the prisoner must be informed immediately . Such an order may also be made provisionally by the prison governor , who must inform the judicial authority .

Section CARDINAL of Law no . CARDINAL of DATE also provides that prisoners are allowed to keep books and magazines and to use other means of communication . This right may be restricted in a decision by the judicial authority , in accordance with the same conditions that apply in the case of correspondence .

Under section CARDINAL of the same PERSON , prisoners may make sealed applications or complaints concerning decisions taken in accordance with section CARDINAL of PERSON no . CARDINAL of DATE to , inter alia , the prison authorities and the court responsible for the execution of sentences .

In judgment no . CARDINAL of CARDINAL of DATE , ORG held that the power of judicial review by the courts responsible for the execution of sentences extended to the practical arrangements for implementing a measure , regard being had both to the aim pursued and to the fundamental rights guaranteed by LAW .

On DATE , applying the principles laid down by ORG in judgment no . CARDINAL , ORG of ORG sent a circular to prison governors regarding organisation of the wings where prisoners subject to the special regime were held . The circular contained the following instructions , among others : prisoners would from then on be allowed to use stoves ; they would have access to rooms equipped for sporting activities and to a library ; visits by family members could be replaced by telephone calls ; and the use of glass partitions would continue but , as a result , the searching of visitors need not be so strict .

In judgment no . CARDINAL of DATE to DATE , ORG reaffirmed that section CARDINAL bis was compatible with the LAW , while amending and clarifying the manner in which it was to be interpreted . It considered , in particular , that decrees imposing the special regime had to be based on genuine public - order and security grounds , and that decisions to extend application of the regime also had to be based on sufficient grounds independent of those which had justified its initial imposition . ORG emphasised that the special regime should not entail inhuman treatment or hinder the prisoner ’s rehabilitation , which would be contrary to LAW . It nevertheless stated that at no time did LAW cease to apply , under which the treatment to which a prisoner was subjected had to respect his personality , and a rehabilitation programme had to be prepared and adapted on the basis of scientific observation of the prisoner ’s personality and with his or her cooperation .

On DATE , in accordance with the principles laid down by ORG in judgment no . CARDINAL/CARDINAL , ORG of ORG sent a circular to prison governors regarding organisation of the wings where prisoners subject to the special regime were held . The circular contained the following instructions , among others :

– outdoor exercise time was to be increased to TIME per day , but care was to be taken to ensure that this did not become an opportunity for meeting or making contact with other presumed members of the ORG ;

– the outdoor exercise yards in GPE and ORG were to be equipped for physical exercise and sport ;

– one or more rooms for social , cultural or recreational activities were to be provided in each wing to which prisoners subject to the special regime were permanently assigned or which were occupied by them for medical reasons ;

– on the question of work , the circular stated that where it was not possible to equip a prison appropriately prisoners should have access to premises equipped for this purpose in other prisons , with measures in place to exclude any opportunity of meeting or making contact with other presumed members of the ORG ;

– visits by children DATE could take place without a glass partition ; if the visit took place in the presence of other persons , partition - free access was to be authorised for the children only and was not to exceed CARDINAL of the total duration of the visit in length ;

– prisoners subject to the special regime could receive parcels containing foodstuffs apart from those requiring cooking , because they were not allowed to use stoves except for the purpose of making hot drinks or heating up pre - cooked food .

With regard to the monitoring of correspondence , in judgment no . CARDINAL of DATE , ORG , ruling in a case concerning the refusal of the prison authorities to allow a prisoner to receive an erotic publication , declared unconstitutional sections CARDINAL ( on the remedies available to prisoners ) and CARDINAL ( on the functions and decisions of the judge responsible for the execution of sentences ) of PERSON no . CARDINAL of DATE in that they did not provide for any form of judicial review of decisions likely to interfere with ORG rights , in particular decisions to monitor correspondence or to restrict the right to receive magazines or other periodicals . Decisions by the authorities to which applications were made under LAW were adopted without adversarial proceedings and no appeal to the ordinary courts or ORG lay against them . The lack of such a remedy had , moreover , already been noted and criticised by ORG in the PERSON v. GPE and PERSON v. GPE judgments ( DATE , Reports of Judgments and Decisions PERSON ) .

Following the entry into force of Law no . CARDINAL of DATE , a new section QUANTITY concerning the monitoring of correspondence has been added to LAW . It provides that correspondence may be monitored for a maximum period of DATE in order to prevent the commission of crimes or to maintain security in prisons and to ensure the confidentiality of investigations . Monitoring is ordered in a decision with a statement of grounds by the judicial authority , at the request of the prosecuting authorities or the prison governor . Paragraph CARDINAL of section CARDINAL ter provides that ORG correspondence with , inter alia , their lawyers and international human rights bodies can not be monitored . Lastly , paragraph CARDINAL of section QUANTITY provides that complaints against decisions to monitor correspondence may be lodged in accordance with the procedure laid down in section CARDINAL bis of FAC .

As is stated in the official report by ORG submitted to ORG in DATE , the following measures may result from the application of section CARDINAL bis as amended by PERSON no . CARDINAL of DATE , with a view to preventing contact with the criminal organisation in question or other prisoners belonging to it :

( a ) outdoor exercise time limited to TIME per day in groups of CARDINAL prisoners ( members of each group must be subject to the same type of regime and the groups must be rotated DATE ) ;

( b ) stoves made available to prisoners when the cells are opened and taken back for storage elsewhere when the cells are closed ;

( c ) ban on the use of FM radios , tape recorders and CD players ;

( d ) a minimum of CARDINAL visit per month and a maximum of DATE , in rooms equipped in such a way that no objects may be handed over ; a ban on visits by persons other than family members , a cohabitant or a lawyer , unless exceptional permission has been granted ; after the regime has been in force for DATE , CARDINAL telephone call per month , lasting TIME , to family members , who are required to go to the prison nearest their place of residence ;

( e ) interviews with lawyers , which are unlimited , are subject only to visual surveillance by a warder ; telephone calls are subject to the same conditions regarding frequency and practical arrangements as calls to family members ;

( f ) monitoring of all the prisoner ’s correspondence except for that with members of parliament or the appropriate NORP and national judicial authorities ( the contents of the envelope are checked in the prisoner ’s presence but the correspondence itself is not read ) ;

( g ) restrictions on acquiring or receiving from outside prison sums of money and other possessions and items ( CARDINAL parcels per month , weighing a maximum of QUANTITY , plus QUANTITY parcels a year containing only clothing and linen ) ;

( h ) ban on being elected as a ORG representative ;

( i ) access by ministers of faiths other than catholicism may be permitted .

Having regard to the reform introduced by Law no . CARDINAL of DATE and to the decisions of ORG ( see , most recently , the judgment in PERSON v. GPE , no . CARDINAL , § § DATE , ORG CARDINALXI ) , ORG , in a departure from its previous case - law , held that prisoners had an interest in obtaining a decision even if the period of validity of the impugned decree had expired , as the decision had a direct impact on decrees subsequent to the CARDINAL in question ( Court of Cassation , ORG , judgment of DATE , deposited with the registry on CARDINAL DATE , no . CARDINAL , PERSON ) .

Under the terms of sections CARDINAL and CARDINAL of Law no . CARDINAL of DATE , the treatment of each prisoner must be adapted to the particular demands of his or her personality . The number of inmates in each prison and in each wing of the prison must be limited in order to facilitate individually tailored treatment . The assignment of prisoners to a particular prison or their grouping within a prison wing must be decided with reference to the possibility of rehabilitation and the need to prevent prisoners from exerting a negative influence on one another .

On the basis of the principle of individually tailored treatment of prisoners laid down in the above provisions and of the regulation implementing PERSON no . CARDINAL of DATE , circular no . CARDINAL of DATE issued by ORG provided for CARDINAL levels of detention corresponding to certain categories of prisoner .

“ High - security units ” are designed for prisoners accused or convicted of membership of a mafia - type criminal organisation , false imprisonment with a view to extortion , or drug trafficking . In view of the danger posed by these persons and the risk of their seeking to recruit or intimidate others , particularly stringent measures are put in place aimed at separating them from other prisoners and keeping them under supervision . In addition , activities for these prisoners such as outdoor exercise , visits , vocational training and sport take place within a predefined area .

“ Medium - security units ” are for prisoners accused or convicted of offences committed with a view to facilitating the activities of mafia - type criminal organisations , and who therefore present a substantial degree of danger .

“ ORG units ” are for prisoners who present a degree of danger such that their detention in a medium - security unit would be inadequate to ensure public order and safety . The danger posed by these prisoners stems in particular from their involvement in terrorist crime , the nature or number of the crimes committed , their attempts at escape or serious acts of violence perpetrated by them against other prisoners or prison officers . Under the terms of circular no . CARDINAL , in the absence of any specific provisions governing the matter , ORG units are run along the same lines as the highsecurity units . Contact with prisoners in other units is prohibited and supervision is particularly tight .

The Recommendation reads as follows :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Having regard to LAW and the case law of ORG ;

Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety , security and discipline while also ensuring prison conditions which do not infringe human dignity and which offer meaningful occupational activities and treatment programmes to inmates , thus preparing them for their reintegration into society ;

Recommends that governments of member PERSON :

– be guided in their legislation , policies and practice by the rules contained in the appendix to this recommendation , which replaces Recommendation No . R ( CARDINAL ) CARDINAL of ORG on ORG ;

Appendix to Recommendation Rec(CARDINAL)CARDINAL

Basic principles

All persons deprived of their liberty shall be treated with respect for their human rights .

Persons deprived of their liberty retain all rights that are not lawfully taken away by the decision sentencing them or remanding them in custody .

Restrictions placed on persons deprived of their liberty shall be the minimum necessary and proportionate to the legitimate objective for which they are imposed .

CARDINAL NORP In all buildings where prisoners are required to live , work or congregate :

CARDINAL Prisoners shall be allowed to communicate as often as possible by letter , telephone or other forms of communication with their families , other persons and representatives of outside organisations and to receive visits from these persons .

CARDINAL ORG and visits may be subject to restrictions and monitoring necessary for the requirements of continuing criminal investigations , maintenance of good order , safety and security , prevention of criminal offences and protection of victims of crime , but such restrictions , including specific restrictions ordered by a judicial authority , shall nevertheless allow an acceptable minimum level of contact .

CARDINAL NORP The arrangements for visits shall be such as to allow prisoners to maintain and develop family relationships in as normal a manner as possible .

CARDINAL Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers , periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case .

CARDINAL NORP This regime shall allow all prisoners to spend TIME a day outside their cells as are necessary for an adequate level of human and social interaction .

CARDINAL NORP This regime shall also provide for the welfare needs of prisoners .

CARDINAL Every prisoner shall be provided with the opportunity of TIME of exercise every day in the open air , if the weather permits .

CARDINAL NORP Properly organised activities to promote physical fitness and provide for adequate exercise and recreational opportunities shall form an integral part of prison regimes .

CARDINAL ORG authorities shall facilitate such activities by providing appropriate installations and equipment .

CARDINAL ORG authorities shall make arrangements to organise special activities for those prisoners who need them .

CARDINAL LOC opportunities , which include sport , games , cultural activities , hobbies and other leisure pursuits , shall be provided and , as far as possible , prisoners shall be allowed to organise them .

CARDINAL NORP The prison regime shall be organised so far as is practicable to allow prisoners to practise their religion and follow their beliefs , to attend services or meetings led by approved representatives of such religion or beliefs , to receive visits in private from such representatives of their religion or beliefs and to have in their possession books or literature relating to their religion or beliefs .

Prison authorities shall safeguard the health of all prisoners in their care .

CARDINAL The security measures applied to individual prisoners shall be the minimum necessary to achieve their secure custody .

CARDINAL Each prisoner shall then be held in security conditions appropriate to these levels of risk .

CARDINAL The level of security necessary shall be reviewed at regular intervals throughout a person ’s imprisonment .

Safety

CARDINAL.CARDINAL As soon as possible after admission , prisoners shall be assessed to determine whether they pose a safety risk to other prisoners , prison staff or other persons working in or visiting prison or whether they are likely to harm themselves .

CARDINAL Procedures shall be in place to ensure the safety of prisoners , prison staff and all visitors and to reduce to a minimum the risk of violence and other events that might threaten safety .

CARDINAL LOC high security or safety measures shall only be applied in exceptional circumstances .

CARDINAL.CARDINAL There shall be clear procedures to be followed when such measures are to be applied to any prisoner .

CARDINAL NORP The nature of any such measures , their duration and the grounds on which they may be applied shall be determined by national law .

CARDINAL NORP The application of the measures in each case shall be approved by the competent authority for a specified period of time .

CARDINAL NORP Any decision to extend the approved period of time shall be subject to a new approval by the competent authority . ”


Flogaitis;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen;Spyridon Flogaitis

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is a professor of law at ORG and is represented before the ORG by Mr PERSON and Mr E. Malios , lawyers practising in GPE . ORG ( “ the Government ” ) are represented by their deputy Agents , Mr PERSON PERSON , Adviser , ORG , and Mr PERSON , ORG , ORG .

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

In DATE the applicant bought an apartment of a total surface area of QUANTITY , situated on the fifth floor of a block of flats on FAC , in the centre of GPE . FAC is just off the pedestrian precinct that surrounds the LOC and serves as the main access to the broader archaeological site .

On DATE the block of flats , including the applicant ’s apartment , was expropriated by a joint ministerial decision , for the purpose of building the new ORG .

On DATE the Minister of Finance issued a decision revaluing the “ objective value ” of the properties in the zone where the applicant ’s flat was situated , setting it at MONEY ( MONEY ) per square metre ( decision no . DATE ) .

On DATE the applicant applied to ORG for judicial review of the above - mentioned ministerial decision , claiming that the amount of the objective value was extremely low .

On DATE ORG annulled the ministerial decision on the grounds that it had not taken into consideration the specific features of the area and that it was not clear from the case file that the decision had a solid basis and sufficient justification ( judgment no . CARDINAL/CARDINAL ) .

On DATE ORG and ORG ( GPE FAC και GPE ) lodged an action with ORG for the assessment of a provisional unit amount for compensation per QUANTITY . They submitted that the figure of MONEY ( ORG ) per cubic metre corresponded to the value of the applicant ’s apartment . In his submissions , the applicant proposed the sum of ORG CARDINAL,CARDINAL per cubic metre .

On DATE the case was heard before ORG . On DATE the court delivered its judgment , assessing the provisional unit amount for compensation at ORG CARDINAL,CARDINAL per cubic metre ( judgment no . CARDINAL/CARDINAL ) . After taking into consideration a technical report drawn up by an architect , GPE , and CARDINAL valuations , drafted by ORG and PERSON and submitted by the parties , the court stated that

“ ... The building is situated in a privileged location near the centre of GPE and has an excellent view of the LOC ... It is a fact that the building in issue , like all the buildings that have been expropriated for the construction of the new ORG , is in a prime location on account of its proximity to the historical centre of the city of GPE , [ where ] real estate demand exceeds existing supply . ”

The court also relied on comparative data , such as the compensation awarded for the expropriation of CARDINAL adjacent and CARDINAL neighbouring buildings and the price obtained from the sale of CARDINAL neighbouring buildings .

On DATE ORG and ORG lodged an action with ORG for the assessment of the final unit amount for compensation , claiming that the amounts awarded by judgment no . CARDINAL/CARDINAL were excessive . With regard to the applicant ’s apartment , they claimed that its real value was estimated at ORG QUANTITY ( corresponding approximately to ORG QUANTITY ) .

In reply , the applicant alleged abuse of process by the ORG since it was proposing an amount considerably lower than the one it had proposed before ORG . He maintained , further , that all the relevant reports had been drawn up by the administrative authorities using QUANTITY as the unit of measurement of the expropriated apartments , so the calculation ought to have been made in QUANTITY . Lastly , the applicant contended that the cadastral plan showing the apartments that were to be expropriated expressed the volume in QUANTITY and not the surface area in square metres . Accordingly , the applicant argued that were ORG to estimate the value of his apartment in square metres , the administrative authority concerned would be unable to calculate and pay adequate compensation .

On DATE the case was heard before ORG . On DATE that court delivered its judgment . After having referred to the testimonies of the witnesses who gave evidence before the court and those of the witnesses who had appeared before ORG , to CARDINAL reports drawn up by qualified surveyors , to the technical report drawn up by the architect GPE and to CARDINAL valuations submitted by ORG and GPE , the court considered that the following was proven :

“ ... FAC is part of the historical centre of GPE and is included in the “ FAC of GPE ” programme . It is tree - lined , with CARDINAL traffic and no noise ... The wider area , defined as a traditional zone of the city of GPE , is characterised by the co - existence of older , protected buildings and more modern dwellings with a view of the LOC , such as the fifth and sixth floors of the building in issue . In the technical report , dated DATE , ORG certified that the interiors of the apartments are luxurious and in very good condition ...

The objective value of the building amounts to MONEY ( around ORG CARDINAL ) per square metre according to ministerial decision no . DATE revaluing the “ objective value ” of the properties in the zone where the applicant ’s flat is situated [ decision of DATE ] . However , following an application for judicial review submitted before ORG , the latter annulled the above ministerial decision on the grounds that it did not state that the specificities of the zone had been taken into consideration ( ... )

As far as the market value is concerned , according to the experts appointed by the expropriated party ... it varies between ORG CARDINAL per square metre . According to their technical expertise the value of the ground floor amounted to ORG CARDINAL per cubic metre , to ORG CARDINAL per cubic metre as regards the first floor , to ORG CARDINAL per cubic metre as regards the second floor and to ORG CARDINAL,CARDINAL per cubic metre as regards the third floor . The witness called by the expropriating party referred only to the objective value of the building , which amounted to ORG CARDINAL,CARDINAL per square metre ; as far as the market value was concerned he merely noted that the buildings situated in D.Areopagitou Street were in a more privileged location than the ones in FAC ... whereas another witness called by [ the expropriating party ] declared during the proceedings for the assessment of the provisional unit amount for compensation that he agreed with the market value proposed by the ORG ... ORG assessed the provisional unit amount for compensation ... for the fifth floor at ORG QUANTITY ...

As far as the market value of the apartments is concerned , it should be noted , however , that the fact that the amounts assessed by ORG were PERCENT higher than the amounts proposed by the ORG and ORG was obviously because they [ the ORG and ORG ] had requested , clearly in error ( από προφανή παραδρομή ) , the assessment in QUANTITY , influenced by the measurements used in the cadastral report , which gives the volume [ of the apartments ] in QUANTITY ...

In support of their arguments the parties referred to and submitted the following evidence and comparative information .

The ORG submitted judgment no . CARDINAL/CARDINAL of ORG determining the final unit amount at ... MONEY [ approximately ORG CARDINAL ] per square metre for the building situated at FAC ; judgment no . ORG same court determining the final unit amount of the building situated at CARDINAL FAC at MONEY [ approximately ORG CARDINAL,CARDINAL ] for the third floor ; judgments CARDINAL and CARDINAL/CARDINAL of ORG ... determining the unit amount of CARDINAL buildings situated at CARDINAL and CARDINAL LOC respectively at ... MONEY [ approximately ORG CARDINAL ] for the ground floor and MONEY [ approximately ORG CARDINAL ] per square metre ... All the foregoing comparative data concern less privileged properties than the building in issue , because FAC is noisier than FAC and , moreover , does not have a direct view of the LOC . [ The ORG also submitted ] judgment no . CARDINAL/CARDINAL of ORG determining the final unit price for a building situated in FAC at MONEY [ approximately ORG CARDINAL ] per square metre . This comparative data concerns a less privileged dwelling than the building in issue ... [ The ORG also submitted ] judgment no . CARDINAL/CARDINAL of ORG which had determined the final unit price of a building situated in CARDINAL Mitsaion Street at FAC . This comparative element concerns a less privileged building than the one in issue because it does not have a direct view of the LOC and ORG hill ... [ The ORG also produced ] judgment no . CARDINAL/CARDINAL of ORG determining the final unit amount for a building situated at CARDINAL Dionysiou Areopagitou Street at ... CARDINAL drachmas [ approximately ORG CARDINAL,CARDINAL ] per square metre for the third floor . This comparative data concerns a more privileged building than the CARDINAL in issue as it is related to CARDINAL of the most expensive , if not the most expensive , streets in GPE with an “ objective value ” of MONEY [ approximately ORG CARDINAL,CARDINAL ] per square metre , whereas the objective value of FAC amounts to MONEY [ ORG CARDINAL ] per square metre ... [ The ORG also submitted ] judgments ORG . DATE and DATE of ORG of GPE which had determined the provisional unit price of buildings situated in CARDINAL and CARDINAL α Hatzihristou Street at ( ... ) EUR CARDINAL per cubic metre as regards the ground floor , FAC per cubic metre as regards the first floor and ORG CARDINAL CARDINAL per cubic metre as regards the second floor . These judgments do not constitute solid evidence as the prices included are not definitive .

[ The expropriated party ] submitted judgment no . CARDINAL/CARDINAL of ORG determining the final unit amount of a building situated in CARDINAL Mitsaion Street at ... EUR CARDINAL per square metre . This comparative data concerns a less privileged building than the CARDINAL in issue ... [ The expropriated party also produced ] a sale contract ... of a building ... located at the junction of ORG and FAC , ... for the price of MONEY [ approximately ORG CARDINAL ] per square metre , namely , CARDINAL times higher than the “ objective value ... ” . Finally , [ the expropriated party ] submitted price values taken from small ads published in the newspaper “ I PERSON ” , namely ( ... ) MONEY ( ORG CARDINAL ) per cubic metre for an apartment of QUANTITY located in FAC . These prices may only be indicative of the real value of the properties concerned as it is not certain that they will constitute the final price agreed upon by the contracting parties ” .

ORG concluded , having regard to the aforementioned evidence that the real value of the applicant ’s apartment amounted to ORG CARDINAL per cubic metre ( judgment no . CARDINAL/CARDINAL ) .

On DATE the applicant appealed to ORG on points of law . The applicant alleged , inter alia , that ORG had taken into consideration the ministerial decision revaluing the “ objective value ” of the properties in the zone where his flat was situated even though that decision had been annulled by ORG judgment no . CARDINAL/CARDINAL . He claimed , further , that ORG had distorted the content of judgment no . CARDINAL/CARDINAL of ORG , considering that the assessment in QUANTITY had been made in error . According to the applicant , that consideration allowed ORG to attach less importance to the assessment made by ORG and to avoid giving sufficient and solid reasons for the large divergence from its findings .

On DATE ORG delivered its judgment , dismissing the applicant ’s appeal ( judgment no . CARDINAL/CARDINAL ) . It stated , inter alia , that

“ In the present case ORG considered that ... a report drawn up by the evaluation committee under LAW of PERSON no . ORG did not need to be submitted since the expropriated property was included in the “ objective value determination ” system ; furthermore , it took into consideration the objective value of the expropriated building , which amounted to MONEY per square CARDINAL , as had been determined by ministerial decision no . DATE , even though that decision had been annulled by judgment no . CARDINAL/CARDINAL of ORG . These considerations were sufficiently and clearly reasoned and contained no contradictions ... [ the judgment in issue ] did not infringe LAW CARDINAL para . CARDINAL of the LAW , and did not deal with the latter at all .

[ T]he ORG did not alter the content of that document , since it copied into its judgment in issue ... the operative part of ORG ’s judgment no . CARDINAL/CARDINAL . Furthermore , it is true that it provides some explanation ( which was not necessary ) and notes that : “ As far as the market value of the apartments is concerned , it should be noted , however , that the fact that the amounts assessed by ORG were PERCENT higher than the amounts proposed by the ORG and ORG was obviously due to the fact that they [ the ORG and ORG ] had requested , clearly in error ( από προφανή παραδρομή ) , the assessment in QUANTITY ” ; however , this does not mean that ORG misinterpreted the operative part of the aforementioned judgment or distorted its content by replacing the unit for measuring volume ( cubic metres ) with the unit for measuring surface area ( square metres ) .

The request before ORG is autonomous and is not a remedy against the judgment delivered by ORG . Furthermore , in the above - mentioned explanatory note , ORG considered that it had been “ clearly in error ” that the ORG had requested , before ORG , the assessment of a provisional unit amount for compensation per cubic metre , thus LAW [ abuse of process by the parties ] of LAW was not infringed . ”

The relevant parts of LAW provide as follows :

“ CARDINAL . Property shall be protected by the ORG ; rights deriving therefrom , however , may not be exercised contrary to the public interest .

No one may be deprived of his property unless it is for the public benefit , which must be duly proven in the circumstances and manner laid down by law and only after full compensation corresponding to the value of the expropriated property at the time of the court hearing on the provisional determination of compensation . In cases in which an application is made for the immediate final determination of compensation , regard shall be had to the value of the expropriated property at the time of the court hearing of the application .

Any change in the value of the expropriated property occurring after and solely as a result of publication of the decision to expropriate shall not be taken into account .

Compensation shall in all cases be determined by the civil courts . A court may even make a provisional assessment of compensation after the person entitled has been heard or his attendance requested and , at its discretion , require such person to furnish an appropriate guarantee before receiving the compensation , in accordance with the law ...

LAW ( b ) of PERSON no . ORG provides that the cadastral plan shall contain the surface area of each expropriated property , as well as all the main features of the constructions and other components . Moreover , PERSON no . ORG provides that after an expropriation order has been issued , a CARDINAL - member committee composed of civil servants shall estimate the value of the expropriated properties and the amounts of compensation due . The report drawn up by the committee must be submitted to the courts having jurisdiction and taken into consideration as an advisory opinion . However , such a report is not submitted in cases where an “ objective value determination ” system ( σύστημα αντικειμενικού προσδιορισμού ) is in force . According to that system , taxable values for the purpose of , inter alia , calculating the compensation to be paid in the event of an expropriation , are calculated on the basis of a unit amount fixed by ministerial decision .

In particular , PERSON no . ORG provides in so far as relevant :

“ CARDINAL . Compensation must be made in full and correspond to the value of the expropriated property on DATE of the hearing on the provisional assessment of the compensation , or , in case of an application for final assessment , on the date of the relevant hearing .

When determining the value of the expropriated property , the criterion to be taken into consideration is the value of properties adjacent and similar to the expropriated one at the relevant time . That value is determined mainly on the basis of the “ objective value ” , the prices stipulated in ownership transfer deeds concluded at the time of the expropriation order and the income from the expropriated property . ”

“ CARDINAL . After an expropriation order is issued , a committee shall assess the value of the expropriated property and the amount of any special compensation due under section CARDINAL ) .

The committee shall be convened by its chairman and , after verifying the data submitted , shall draw up within DATE of notification of the order appointing an expert , a report describing in detail the situation of the expropriated property and its components , as well as any special features , and assessing in detail its value according to section CARDINAL(CARDINAL ) and ( CARDINAL ) , as well as the amount of any special compensation due under section CARDINAL ) . ... The report shall then be submitted ... to the court as part of the proceedings for the assessment of the compensation and shall be taken into consideration as an advisory opinion .

The foregoing assessment shall not take place with regard to properties which are included in the system of objective assessment of their value under the provisions in force . In this case , the relevant service within ORG shall draw up a report determining the objective value of the expropriated property . ”

“ CARDINAL . ORG in the area where the expropriated property , or the largest part of it is situated , shall have jurisdiction to assess provisionally the amount of compensation due .

“ CARDINAL . The court which shall carry out the final assessment of the compensation is ORG in the area of jurisdiction where the expropriated property or the largest part of it is situated .

ORG shall , after freely examining the evidence produced by the parties , deliver a final judgment within DATE of the final hearing of the application .

LAW no . DATE provides in so far as relevant :

The verification , correction , completion or reconstruction of the cadastre and the cadastral plan shall be made on the basis of the title deeds and ownership records or on the basis of the boundaries or boundary marks indicated by the municipal authority or the rural police .

The land surveyor , having regard to the decision ordering the compulsory expropriation , the cadastral plan , the cadastral register and all the data produced by the parties , shall proceed , after inviting the parties to attend if necessary , to an inspection of the title deeds and shall draw up in CARDINAL copies and within the set deadline :

a ) the cadastral plan of the expropriated land comprising the separate properties and their special features as well as any contestation of rights over these properties , b ) the relevant cadastral register including the serial number of the property , the name of each owner , the total surface area of the property , the volume of the main buildings , listed according to the nature of construction and their quality , any other building , listed according to type and category , and any other information that may be useful in assessing the price per unit of the expropriated properties .


CASE OF KHVOROSTINA AND OTHERS v. RUSSIA

The applicants are NORP nationals who live in the town of GPE in LOC . They are former employees of ORG of ORG ( hereafter DATE the ORG ) . The CARDINAL applicants were employed as engineers , CARDINAL as a technician and CARDINAL as a land engineer .

NORP In DATE the applicants were dismissed from their positions .

The applicants sued the ORG for reinstatement and wage arrears for the period from DATE .

On DATE ORG dismissed the applicants ' claims for reinstatement but awarded them the amounts listed in the schedule . The judgment became final on DATE when ORG upheld it on appeal . The judgment remains unenforced because the ORG does not have necessary funds .

The applicants asked the Justice of ORG to award them wage arrears for the period from DATE .

On DATE the Justice of the ORG accepted their action against the ORG and awarded them the amounts listed in the schedule . The judgment was not appealed against and became final .

Enforcement proceedings were instituted , but the judgment was not enforced because the ORG did not have funds .

On DATE the sums awarded by the judgment of DATE were credited to the applicants ' accounts .

The applicants lodged an action against the ORG , complaining that the ORG failed to enforce the judgments of DATE and DATE . They sought payment of the amounts awarded under those judgments .

On DATE the Justice of the Peace held that the ORG should pay the applicants compensation for the delay in enforcement of the judgment of DATE for the period from CARDINAL DATE to DATE ( the amounts awarded are listed in the schedule ) . The judgment of DATE was upheld on appeal on DATE .

Enforcement proceedings were instituted but the judgment of DATE , as upheld on appeal on DATE , remains unenforced because the ORG does not have funds .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

She is the owner of CARDINAL flats in GPE , which she had let to GPE , ORG and ORG , PERSON and ORG ..

In a writ served on the tenant on DATE , the applicant informed him of her intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the Rome Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on CARDINAL DATE , the GPE Magistrate upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , she served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

On DATE , the applicant recovered possession of the flat .

NORP In a registered letter of DATE , the applicant informed the tenants that she intended to terminate the lease on expiry of the term on CARDINAL DATE and asked them to vacate the premises by that date .

In a writ served on the tenants on DATE , the applicant reiterated her intention to terminate the lease and summoned them to appear before the Rome Magistrate .

On DATE , the applicant served notice on the tenants requiring them to vacate the premises .

On DATE , she served notice on the tenants informing them that the order for possession would be enforced by a bailiff on DATE .

In a writ served on the tenant on DATE , the applicant informed the tenant of her intention to terminate the lease on expiry of the term on DATE and summoned him to appear before the Rome Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

ORG declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .