Violation of Art. 3;Remainder inadmissible;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

He is a recidivist offender . He served a number prison sentences in various detention establishments in GPE .

Since DATE the applicant has been suffering from epilepsy marked by frequent ( DATE ) seizures and encephalopathy accompanied by dementia . He also suffers from ulcers and syphilis . He has been classified by the social security authorities as a person with a “ first - degree disability making him completely unfit to work ” ( pierwszy stopień inwalidztwa całkowicie niezdolny do pracy ) .

On DATE ORG ( Sąd Rejonowy ) appointed neurology and forensic medicine experts to produce a report on the applicant ’s health in connection with a criminal case pending at that time against him . The experts examined the applicant ’s medical records and the preceding psychological and forensic medicine reports . The extracts from these documents revealed that since DATE the applicant had been suffering from epilepsy accompanied by very frequent seizures and from a personality disorder . He had made several suicide attempts . During CARDINAL medical interview , the applicant had stated that he could not obtain the necessary medical treatment in prison and that his cellmates ignored his epileptic fits . The doctors , who had examined the applicant in the past , agreed that he could remain in prison provided that he received specialised psychiatric treatment on a permanent basis .

On DATE ORG appointed new medical experts to draft a report on the applicant ’s health . The experts found that the penitentiary medical care system could no longer offer the applicant the necessary treatment . They emphasised that his continuous incarceration might put his health and life at risk . It was further indicated that the applicant should obtain a more detailed diagnosis from a specialised clinic and , perhaps , undergo brain surgery .

It appears that the applicant was first remanded in custody on DATE .

From DATE until DATE and from DATE until DATE he was detained in FAC .

It appears that in DATE he was admitted for DATE to an unspecified prison hospital .

On DATE the applicant was committed to FAC where he received medical treatment in the neurology ward . Doctors emphasised the need to provide the applicant with permanent specialised medical care and to ensure his constant supervision by another person .

On DATE he was transferred to FAC .

On DATE the applicant was released home .

On DATE he was again remanded in custody in connection with a new criminal case against him . From that day until DATE he was detained in FAC .

On DATE he was granted conditional release from prison .

On DATE the applicant was once more remanded in custody . He was committed to an unspecified detention facility .

From DATE until DATE the applicant was at liberty .

On DATE the applicant was again remanded in custody . From that day until DATE he was in continuous detention either in ordinary detention facilities or in prison hospitals .

During that time he was detained in FAC during CARDINAL separate periods : ( CARDINAL ) from CARDINAL until DATE ; ( CARDINAL ) from CARDINAL May until DATE ; ( CARDINAL ) from DATE until an unspecified date , presumably DATE ; and ( CARDINAL ) from CARDINAL May until DATE .

It appears that apart from ORG the applicant was detained in the following facilities : from CARDINAL DATE until DATE in FAC ; from DATE until an unspecified date in FAC ; subsequently in GPE , GPE , PERSON and ORG ; from DATE until DATE in the FAC hospital and immediately afterwards in FAC ; from an unspecified date in DATE in FAC ; from DATE until DATE in the FAC hospital ; from DATE until DATE in ORG ; from DATE until DATE in the FAC hospital ; from DATE until DATE in ORG hospital ; from DATE until CARDINAL DATE in FAC hospital .

The applicant submitted that in FAC he was committed to a general and not medical wing . He had shared his cells with healthy prisoners , who , as he submitted , had ignored his epileptic fits and had not offered him any help in his DATE routines . The applicant also submitted that he had been humiliated in front of his fellow inmates because , as a result of his seizures , he had often lost consciousness and had wet himself .

On DATE the applicant was released and he is currently at liberty .

From DATE until DATE the applicant was detained at the internal disease ward of FAC hospital . He was administered PERSON as a main drug in his treatment .

From DATE until DATE he was detained in the neurology ward of the FAC hospital . He was prescribed PERSON and PERSON as the main drugs in his treatment and it was suggested that he should regularly undergo neurological examinations .

From DATE until DATE , during his detention in FAC , the applicant was examined twice by a neurologist and CARDINAL times by the remand centre ’s in - house doctor .

In addition , from DATE until DATE he was placed under medical observation in the FAC hospital . At the hospital new generic drugs were administered to the applicant in place of PERSON , which was an expensive medicine .

From DATE until DATE the applicant was once more admitted to the neurology ward of the FAC hospital , where he resumed taking PERSON .

From DATE until DATE he was detained in the surgery ward of ORG hospital because he had developed gallstones .

From DATE until CARDINAL DATE the applicant was detained in FAC hospital , where he was admitted to the ward for the chronically ill . PERSON was administered to him during this time .

On his release from the hospital , the doctors considered the applicant to be in a good overall shape and self - sufficient . It was recommended that he be assigned a bottom bunk bed , be put on a diet and continue the pharmacological treatment prescribed , comprising PERSON . It was also stressed that the applicant be placed under CARDINAL-hour medical supervision .

Between CARDINAL DATE and DATE , when the applicant was detained in FAC , he continued taking PERSON . It appears that he was examined CARDINAL times by the remand centre ’s in - house doctors .

Copies of medical records furnished by the applicant reveal that towards DATE his epilepsy was still severe , although , his epileptic seizures were less frequent . Moreover , his personality disorder continued to manifest itself in that the applicant sometimes experienced hallucinations . Most of the time , however , he was suffering from serious dementia .

The Government did not submit any medical documents or information regarding the applicant ’s health condition or his treatment .

On DATE a new report was drafted by experts in psychology , psychiatry and neurology , who had been appointed by the ORG ( PERSON ) in the course of social security proceedings for a disability benefit . The experts found that the applicant was suffering from epileptic seizures a number of times per DATE , sometimes even several times per day . He had also been diagnosed with encephalopathy accompanied by dementia , and also with ulcers and syphilis . The experts concluded that , even though the applicant could at that time perform basic DATE activities such as washing , dressing , eating and the toilet without help , he was nevertheless too handicapped to act autonomously in making decisions or in undertaking more demanding DATE routines . The experts were of the opinion that the applicant was incapable of being self - reliant and that he required , at least for the time being , direct and permanent care from another person .

On DATE , DATE and DATE the applicant lodged with the penitentiary administration complaints about his medical treatment in prison . He claimed that he had only received information stating that his complaints had been referred to the “ competent authorities ” ( do właściwych organów ) . In the ORG ’s submission , all CARDINAL complaints had been examined by competent authorities , including the Chief Doctor of ORG of ORG ( ORG PERSON Służby Więziennej ) and considered ill - founded .

On DATE the applicant complained to ORG that he had been prescribed NORP generic medicine in place of PERSON , a more effective drug . That complaint was considered ill - founded because at the time when his medicines had been changed the applicant had been under close medical supervision at the prison hospital and his health had not deteriorated .

Article CARDINAL of the LAW , in its relevant part , reads :

“ CARDINAL . Everyone shall have a right to have his health protected .

Equal access to health care services , financed from public funds , shall be ensured by public authorities to citizens , irrespective of their material situation ... ”

Article CARDINAL of LAW ( NORP karny wykonawczy ) ( “ the Code ” ) provides :

“ CARDINAL . A sentenced person shall receive medical care , medicines and sanitary articles free of charge .

Medical care is provided , above all , by health care establishments for persons serving a prison sentence .

Health care establishments outside of the prison system shall cooperate with the prison medical services in providing medical care to sentenced persons if necessary , in particular

CARDINAL ) NORP to provide immediate medical care because of a danger to the life or health of a sentenced person ;

CARDINAL ) NORP to carry out specialist medical examinations , treatment or rehabilitation of sentenced person ;

CARDINAL ) NORP to provide medical services to a sentenced person who has been granted prison leave or a temporary break in the execution of the sentence ... ”

On the basis of Article CARDINAL , paragraph CARDINAL of the LAW , the Minister of ORG issued the LAW of DATE on the detailed rules , scope and procedure relating to the provision of medical services to persons in confinement by health care establishments for persons deprived of liberty ( ORG w sprawie szczegółowych zasad , zakresu i trybu udzielania świadczeń zdrowotnych osobom pozbawionym wolności przez zakłady opieki zdrowotnej dla osób pozbawionych wolności – “ the DATE LAW ) . It entered into force on DATE .

Under paragraph CARDINAL of the DATE Ordinance , health care establishments for persons deprived of liberty provide , inter alia , medical examinations , treatment , preventive medical care , rehabilitation and nursing services to persons deprived of liberty .

Paragraph CARDINAL of this GPE further provides :

“ CARDINAL . In a justified case , if the medical services as enumerated in subparagraph CARDINAL can not be provided to persons deprived of liberty by the health care establishments for persons deprived of liberty , in particular due to the lack of specialised medical equipment , such medical services may be provided by public health care establishments .

NORP In a case as described in subparagraph CARDINAL , the head of a health care establishment for persons deprived of liberty shall decide whether or not such medical services [ provided by the public healthcare establishments ] are necessary ... ”

Paragraph CARDINAL of the DATE LAW states :

“ CARDINAL . The decision to place a person deprived of liberty in a prison medical centre shall be taken by a prison doctor or , in his absence , by a nurse ...

NORP The decision whether or not it is necessary to place a person deprived of liberty in a ... prison hospital shall be taken by the prison hospital ’s director or by a delegated prison doctor .

NORP In case of emergency the decision whether or not it is necessary to transfer a person deprived of liberty to a hospital may be taken by a doctor other than a prison doctor ... ”

The rules of cooperation between prison health care establishments and public health care facilities are set out in the Ordinance of the Minister of ORG issued on DATE on the detailed rules , scope and procedure for the cooperation of health care establishments with health services in prisons and remand centres in the provision of medical services to persons deprived of liberty ( ORG w sprawie szczegółowych zasad , zakresu i trybu współdziałania zakładów opieki zdrowotnej ze służbą zdrowia w zakładach karnych i aresztach śledczych w zapewnianiu świadczeń zdrowotnych osobom pozbawionym wolności – “ the DATE Ordinance ” ) . It entered into force on DATE .

Detention and prison establishments in GPE are supervised by penitentiary judges who act under the authority of the Minister of ORG .

Under LAW ( “ the LAW ” ) a convicted person is entitled to make applications , complaints and requests to the authorities enforcing the sentence .

Article CARDINAL , paragraphs CARDINAL and CARDINAL , of the LAW provides that a convicted person can challenge before a court any unlawful decision issued by a judge , a penitentiary judge , a Governor of a prison or a remand centre , a Regional Director or ORG or a court probation officer . Applications related to execution of prison sentences are examined by a competent penitentiary court .

The remainder of LAW reads as follows :

“ CARDINAL . Appeals against decisions [ mentioned in paragraph CARDINAL ] shall be lodged within DATE of the date of the publication or the service of the decision ; decision [ in question ] shall be published or served with a reasoned opinion and instruction as to the right , deadline and procedure for lodging an appeal . An appeal shall be lodged with the authority who had issued the contested decision . If [ that ] authority does not consider the appeal favourably , it shall transfer it together with the case file and without undue delay to the competent court .

The ORG competent for examining the appeal can cease the enforcement of the contested decision ...

Having examined the appeal the court shall rule on upholding the contested decision , [ its ] quashing or changing ; the court ’s decision shall not be a subject of an interlocutory appeal . ”

In addition , under LAW ( “ the LAW ” ) a penitentiary judge is entitled to make unrestricted visits to detention facilities , to be acquainted with documents and provided with explanations from the management of these establishments . A penitentiary judge also has the power to communicate with persons deprived of liberty without the presence of third persons and to examine their applications and complaints .

LAW in its relevant part reads as follows :

“ CARDINAL . A penitentiary Judge shall quash an unlawful decision [ issued by , inter alia , the Governor of a prison or remand centre , the Regional Director or ORG ] concerning a person deprived of liberty .

An appeal to the penitentiary court lies against the decision of a penitentiary judge ...

In the event of finding that the deprivation of liberty is not in accordance with the law , a penitentiary judge shall , without undue delay , inform the authority [ in charge of a person concerned ] of that fact , and , if necessary , shall order the release of the person concerned . ”

Finally , Article CARDINAL , paragraph CARDINAL , of the Code guarantees a convicted person a right to lodge applications , complaints and requests with other competent authorities , such as the management of a prison or remand centre , heads of units of ORG , penitentiary judges , prosecutors and the ORG . The detailed rules on the procedure are laid down in the Ordinance of the Minister of ORG issued on CARDINAL DATE on the manner of proceeding with applications , complaints and requests of persons detained in prisons and remand centres ( ORG w sprawie sposobów załatwiania wniosków , skarg i próśb osób osadzonych w zakładach karnych i aresztach śledczych ) ( “ the DATE LAW ) .

DATE the Civil Code contains a non - exhaustive list of the so - called “ personal rights ” ( prawa osobiste ) . This provision states :

“ The personal rights of an individual , such as in particular health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL paragraph CARDINAL of the Civil Code provides :

“ A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take steps necessary to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest . ”

Article CARDINAL § CARDINAL of LAW , applicable in the event a person suffers a bodily injury or a health disorder as a result of an unlawful act or omission of a ORG agent , reads as follows :

“ ... [ T]he court may award to the injured person an adequate sum in pecuniary compensation for the damage suffered . ”

Under LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”

In addition , Articles CARDINAL et seq . of the NORP LAW provide for the ORG ’s liability in tort .

Article CARDINAL § CARDINAL of the Civil Code provided :

“ The State Treasury shall be liable for damage ( szkoda ) caused by an agent of the ORG in carrying out acts entrusted to him . ”

After DATE amendments LAW provides :

“ ORG or [ as the case may be ] a self - government entity or other legal person responsible for exercising public authority shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . ”

In their submissions on the admissibility and the merits of the case the Government referred to the judgment of ORG ( PERSON ) of DATE and ORG ( Sąd Najwyższy ) of DATE in which domestic courts had examined claims for compensation brought by former detainees on account of the alleged infringement of their personal rights .

On CARDINAL DATE ORG awarded compensation for non - pecuniary damage in a case which had been brought by a certain GPE , a non - smoker detained with smoking inmates ( IC CARDINAL/CARDINAL ) . The plaintiff alleged that by forcing him to be a passive smoker the authorities had breached his right to an environment free from cigarette smoke and had caused him mental suffering . He also alleged that as a result of passive smoking his allergies had increased and his overall immune system had been weakened .

The domestic court examined the case under ORG CARDINAL and CARDINAL of LAW . It was observed that the notion of damage under those provisions was linked with the liability ex delicto based on the fault ( wina ) of the person who had caused the damage . The provisions relied on concerned both material and non - material damage . The former was defined as a physical injury or health disorder resulting from an unlawful act or omission . The latter could be manifested by negative mental experiences suffered by the plaintiff as a result of his physical injury or health disorder . In both cases the burden of proof rested on the plaintiff .

ORG observed that according to the Ordinance of CARDINAL DATE on the principles for the permitted use of tobacco in closed establishments under the Minister of ORG ( ORG w sprawie określenia zasad dopuszczalności używania wyrobów tytoniowych w obiektach zamkniętych podległych PERSON ) ( “ DATE Ordinance ” ) persons detained in remand centres and prisons could smoke only inside the selected cells designated for smokers .

It was held that the administration of the remand centre where the applicant had been detained with smokers had acted in breach of the DATE Ordinance and LAW . The court found that the plaintiff had not proved any material damage , namely the physical injury or health disorder . He had however suffered non - material damage resulting from an unlawful interference with his right to protect himself from passive smoking . The court awarded the plaintiff LAW .

On DATE ORG recognised for the first time the right of a detainee under LAW , read in conjunction with LAW , to lodge a civil claim against ORG for damage resulting from overcrowding and inadequate living and sanitary conditions in a detention establishment .

That judgment originated from the civil action brought by a certain DATE , who was remanded in custody shortly after he had suffered a complicated fracture of his leg and arm . The plaintiff argued that he had not received adequate medical care in detention and that he had been detained in overcrowded cells in poor sanitary conditions .

ORG dismissed the cassation appeal in so far as it related to the allegation of inadequate medical care . In this connection ORG upheld the judgments of the first and second - instance courts which had found no causal link between the deterioration of the plaintiff ’s health and the quality of medical care provided to him in detention .

In so far as the cassation appeal related to the allegation of overcrowding and inadequate conditions of the plaintiff ’s detention ORG quashed the second - instance judgment in which the applicant ’s claim had been dismissed . ORG held that the case should have been examined under LAW , in conjunction with LAW of LAW , and that it was the respondent who had the burden of proving that the conditions of detention had been in compliance with the statutory standards and that the plaintiff ’s personal rights had not been infringed . The case was remitted to the appeal court .

On DATE ORG held that overcrowding coupled with inadequate living and sanitary conditions in a detention facility could give rise to degrading treatment in breach of a detainee ’s personal rights . On the other hand , the court observed that in the light of ORG established case - law , a trial court did not have a duty to award compensation for each personal right ’s infringement . CARDINAL of the main criteria in assessing whether or not to award compensation for a breach of a personal right was the degree of fault on the part of a respondent party . ORG held that in relation to the overcrowding , no fault could be attributed to the management of a particular detention facility since the management were not in a position to refuse new admissions even when the average capacity of a detention facility had already been exceeded . Ultimately , the case was dismissed .


Preliminary objection rejected (six month period);No violation of Art. 6-1;No violation of P1-1 (amount of compensation);Violation of P1-1 (presumption);Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings;Just satisfaction reserved

Gaukur Jörundsson;Luzius Wildhaber;N. Valticos

On DATE ORG , in a decision of the Minister for ORG and pursuant to Legislative Decree no . DATE on expropriations and LAW no . CARDINAL on the obligations of adjoining owners where major roads are built , expropriated CARDINAL properties , some of which belonged to the applicants , in order to build a new major road between LOC . The property expropriated from the applicants included an area of CARDINAL sq . m that was part of a larger piece of land .

Law no . CARDINAL creates a presumption that , on the building of a new major road , adjoining owners whose properties front the road derive benefit .

It accordingly provides that on the expropriation of such properties the owners must contribute towards the costs thereof ( see paragraphs TIME below ) .

Applying that presumption , the authorities considered in the instant case that the applicants had derived an economic benefit from the building of the major road which offset their right to compensation for QUANTITY . m of the expropriated land . Consequently , the applicants were compensated for CARDINAL sq . m.

On DATE the NORP State brought an action in ORG for the assessment of a provisional unit amount for compensation per square CARDINAL .

On DATE ORG assessed the provisional unit amount for compensation at MONEY ( GRD ) per square metre ( judgment no . CARDINAL/CARDINAL ) .

On DATE the applicants brought an action in ORG for the assessment of the final unit amount for compensation .

NORP The hearing before ORG took place on DATE . The applicants maintained that the real value of the land was GRD QUANTITY and produced before the NORP courts CARDINAL expert reports in which it was valued at MONEY per square metre respectively . They also relied in support of their estimation on an official report of ORG ( PERSON ) , in which the land was valued at FAC QUANTITY .

In a judgment of DATE ( no . CARDINAL/CARDINAL ) ORG assessed the final unit amount for compensation at FAC QUANTITY .

On DATE the applicants appealed to ORG on points of law ; however , they did not lodge their submissions with that court until DATE . In their submissions , they maintained that ORG had not given sufficient reasons for its decision and had assessed the final amount for compensation without taking into account the special features of their properties . The hearing took place on CARDINAL DATE .

On DATE ORG dismissed the ORG appeal ( in judgment no . DATE ) . Its judgment was “ finalised ” ( καθαρoγραφή ) on DATE and the applicants obtained a copy on DATE . ORG does not serve its judgments .

The relevant Article of the DATE LAW reads 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 proved , 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 assessment of compensation . In cases in which an application is made for immediate final assessment 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 assessed 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 law .

Until either final or provisional compensation has been paid , all the rights of the owner shall remain intact , occupation of the property being prohibited .

Compensation as assessed shall be paid within DATE of publication of the provisional assessment order or , if immediate final assessment is sought , of publication of the final assessment by the court , failing which the expropriation shall automatically lapse .

“ CARDINAL . Η ιδιοκτησία τελεί υπό την προστασία του GPE , τα δικαιώματα όμως που απορρέουν από αυτή δεν μπορούν να ασκούνται σε βάρος του γενικού συμφέροντος.

Κανένας δεν στερείται την ιδιοκτησία του , παρά μόνο για δημόσια ωφέλεια που έχει αποδειχθεί με τον προσήκοντα τρόπο , όταν και όπως ο νόμος ορίζει , και πάντοτε αφού προηγηθεί πλήρης αποζημίωση , που να ανταποκρίνεται στην αξία την οποία είχε το απαλλοτριούμενο κατά το χρόνο της συζήτησης στο δικαστήριο για τον προσωρινό προσδιορισμό της αποζημίωσης. Αν ζητηθεί απευθείας ο οριστικός προσδιορισμός της αποζημίωσης , λαμβάνεται υπόψη η αξία κατά το χρόνο της σχετικής συζήτησης στο δικαστήριο.

Η ενδεχόμενη μεταβολή της αξίας του απαλλοτριουμένου μετά την δημοσίευση της πράξης απαλλοτρίωσης , και μόνο εξαιτίας της , δεν λαμβάνεται υπόψη.

ORG αποζημίωση ορίζεται πάντοτε από τα πολιτικά δικαστήρια. PERSON να οριστεί και προσωρινά δικαστικώς , ύστερα από ακρόαση ή πρόσκληση του δικαιούχου , που μπορεί να υποχρεωθεί κατά την κρίση του δικαστηρίου να παράσχει για την είσπραξή της ανάλογη εγγύηση , σύμφωνα με τον τρόπο που νόμος ορίζει.

ORG καταβληθεί η οριστική ή προσωρινή αποζημίωση διατηρούνται ακέραια όλα τα δικαιώματα του ιδιοκτήτη και δεν επιτρέπεται η κατάληψη.

ORG αποζημίωση που ορίστηκε καταβάλλεται υποχρεωτικά το αργότερο μέσα σε ενάμισι έτος από την δημοσίευση της απόφασης για τον προσωρινό προσδιορισμό της αποζημίωσης και , σε περίπτωση απευθείας αίτησης για οριστικό προσδιορισμό της αποζημίωσης , από τη δημοσίευση της σχετικής απόφασης του δικαστηρίου , διαφορετικά η απαλλοτρίωση αίρεται αυτοδικαίως.

Legislative Decree no . CARDINAL of DATE and CARDINAL DATE is the main legislative provision governing expropriations . It applies the principles set out in the constitutional provisions .

Chapter A of the legislative decree lays down the procedures and prerequisites for announcing expropriations .

LAW ( a ) provides that expropriations of urban or rural properties and claims to rights in rem over them , if authorised by law in the public interest , are made known by a joint decision of the Minister having authority in the sphere concerned by the intended expropriation and the Minister of Finance .

LAW sets out the prerequisites for a decision announcing an expropriation : in particular , ( a ) a cadastral plan showing the area to be expropriated , and ( b ) a list of the owners of the land , its surface area , its boundaries and the main characteristics of the buildings on it .

Chapter B of the legislative decree specifies the procedures for carrying out an expropriation .

Compensation must be paid to the person concerned in accordance with precisely worded conditions . The acquisition of ownership by the person for whose benefit the expropriation was ordered ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL ) starts on the date of payment or ( in cases where the identification of the beneficiaries has not yet been completed , or where the property is charged or where the identity of the true beneficiary is in issue ) on the date of publication of notice in ORG that compensation has been deposited with ORG .

If the expropriation does not take place in accordance with the foregoing conditions within a period of DATE from the date of the judgment determining the compensation , it automatically lapses ( LAW ) .

Chapter D sets out in detail the procedure for assessing compensation .

Article CARDINAL provides that the parties to the proceedings are ( a ) any party required to pay compensation ; ( b ) any party for whose benefit the expropriation is ordered ; ( c ) any party who claims ownership of , or other rights in rem over , the property .

LAW lays down that compensation is to be assessed by the courts . It expressly provides that the court determines only the unit amount of compensation and not who is entitled to compensation or who is obliged to pay it .

By LAW , compensation is calculated by reference to the real value of the expropriated property on the date of publication of the decision giving notice of the expropriation .

Paragraph CARDINAL of that Article provides :

“ Where part of a property is expropriated and the part remaining in the owner 's possession suffers substantial depreciation in value or is rendered unusable , the judgment in which compensation is assessed shall also include a determination of the special compensation for that part . This special compensation shall be paid to the owner together with the compensation for the expropriated part . ”

“ Εν περιπτώσει αναγκαστικής απαλλοτριώσεως τμήματος ακινήτου , ως εκ της οποίας το απομένον εις τον ιδιοκτήτην τμήμα υφίσταται σημαντικήν υποτίμησιν της αξίας αυτού , ή καθίσταται άχρηστον δια την δι’ην προορίζεται χρήσιν , δια της αυτής περί καθορισμού της αποζημιώσεως αποφάσεως προσδιορίζεται και παρέχεται ιδιαιτέρα δι’αυτήν αποζημίωσις εις τον ιδιοκτήτην. ORG ιδιαιτέρα αυτή αποζημίωσις καταβάλλεται εις τον ιδιοκτήτην ομού μετά της καταβαλλομένης δια το απαλλοτριούμενον τμήμα. ”

The procedure for assessing compensation may comprise CARDINAL phases .

Firstly , the provisional assessment phase , in respect of which a single judge of the court of first instance for the area in which the expropriated property is situated has jurisdiction once a party concerned has lodged an application ( DATE ) .

Secondly , the final assessment phase , in respect of which the court of appeal for the area in which the expropriated property is situated has jurisdiction on application by the parties concerned within DATE from the date on which the provisional assessment decision was served , or DATE from the date of its publication if it is not served ( Article QUANTITY CARDINAL ) .

Paragraph CARDINAL of that LAW provides that only a person who has lodged such an application with a view to an increase or decrease in the provisionally assessed amount may benefit from it .

The provisionally assessed amount becomes final for any person not filing an application expeditiously .

Further , an application may be lodged directly with the court of appeal in order that a final decision may be obtained against which no appeal will lie ( LAW ) .

Chapter E of the legislative decree provides a special procedure for obtaining a court order identifying persons entitled to compensation .

A single judge of the court of first instance for the area in which the expropriated property is situated has jurisdiction to make such an order ( LAW .

Article CARDINAL § CARDINAL provides that entitlement is determined on the basis of information on the cadastral plan and on the list of landowners drawn up by a qualified engineer duly approved by ORG , and any other information supplied by the parties or considered by the court of its own motion .

No appeal lies against the decision taken at the end of this special procedure ( LAW ) .

By paragraph CARDINAL of Article CARDINAL , the court shall not give a decision if

( a ) it is established at the hearing or by means of a declaration by the ORG that a person can claim full ownership of the expropriated property or some other right in rem ;

( b ) there is any dispute between CARDINAL or more persons allegedly entitled to compensation as to ownership or any other right in rem such that an inquiry has to be made into the claims put forward , which inquiry must include a hearing for each party concerned who has brought an action ;

( c ) it is established at the hearing that a party claiming to be entitled to compensation is unable to show that he has any right in rem .

By paragraph CARDINAL of LAW no . DATE , a final decision as to a given person ’s entitlement is necessary before ORG Deposits can pay out a sum deposited as compensation following assessment by the courts .

The relevant provisions of LAW no . CARDINAL of DATE and CARDINAL DATE provide :

“ ( CARDINAL ) Where a major road QUANTITY wide is built in an area not covered by a town development plan , adjoining owners who derive a benefit shall be required to pay for an area QUANTITY wide , thus contributing to the cost of expropriating the properties bordering the road . However , the area to which this obligation applies shall not exceed half the surface area of the property concerned .

( CARDINAL ) For the purposes of this section , adjoining owners whose properties front the roads that have been built shall be deemed to have derived benefit .

( CARDINAL ) Where those entitled to compensation on account of an expropriation are themselves liable for payment of part of that expropriation , there shall be a set - off between rights and obligations .

( CARDINAL ) The method and procedure for apportioning the compensation between the ORG and the adjoining owners shall be laid down in a decree to be published on a proposal by ORG .

“ ( CARDINAL ) ORG περί διανοίξεως , εκτός Σχεδίου πόλεων NORP οδών πλάτους καταλήψεως μέχρι τριάκοντα μέτρων , οι ωφελούμενοι παρόδιοι ιδιοκτήται εκάστης πλευράς , υποχρεούνται εις αποζημίωσιν ζώνης πλάτους δεκαπέντε μέτρων , δια συμμετοχής των εις τας δαπάνας απαλλοτριώσεως των καταλαμβανομένων υπό των οδών τούτων ακινήτων. ORG επιβάρυνσις αύτη δεν δύναται να υπερβαίνει το ήμισυ του εμβαδού του βαρυνομένου ακινήτου.

( CARDINAL ) ORG παρόδιοι ιδιοκτήται δια την εφαρμογήν του παρόντος άρθρου θεωρούνται εκείνοι των οποίων τα ακίνητα αποκτούν πρόσωπον επί των διανοιγομένων οδών.

( CARDINAL ) PERSON οι δικαιούχοι αποζημιώσεως δια την απαλλοτρίωσιν είναι και υπόχρεοι δια την πληρωμήν αυτής , επέρχεται συμψηφισμός δικαιωμάτων και υποχρεώσεων.

( CARDINAL ) Ο τρόπος και η διαδικασία καταμερισμού της αποζημιώσεως μεταξύ ORG και παροδίων ιδιοκτητών κανονίζονται δια ORG εκδιδομένων προτάσει του ORG ... ”

NORP Under the case - law , the presumption created by Law no . CARDINAL is irrebuttable .

The so - called “ objective ” value of property is calculated by reference to actual prices and indices , regard being had to the characteristic features of the property , and is determined periodically by ORG . This method of assessment must be used for calculating any taxes levied in connection with the purchase , possession or transfer of property .


ORG Mr PERSON , a NORP citizen born in DATE , pursued a career as judge advocate in the air force . In DATE he was serving , with the rank of group captain , as the high command ’s director of legal affairs .

ORG By an order of CARDINAL DATE ORG ( ORG ) , composed of the Prime Minister , the Minister of Defence , the Chief of Staff and the CARDINAL highest - ranking generals in the armed forces , ordered the compulsory retirement of CARDINAL officers , including Mr GPE , and QUANTITY non - commissioned officers for breaches of discipline and scandalous conduct . The decision , which was based on section CARDINAL ( c ) of LAW , section CARDINAL ( c ) of ORG and LAW on assessment of officers and non - commissioned officers , made the specific criticism , in the applicant ’s case , that his conduct and attitude " revealed that he had adopted unlawful fundamentalist opinions " .

ORG In a decision of CARDINAL DATE the President of the Republic , the Prime Minister and the Minister of Defence approved the above order , which was served on the applicant on DATE . The Minister of Defence ordered the forfeiture of the applicant ’s social security ( health insurance ) card , his military identity card and his licence to bear arms .

ORG On DATE Mr PERSON asked ORG of ORG PERSON idare GPE ) to set aside the order of CARDINAL DATE and the measures ordered by ORG .

ORG In a judgment of CARDINAL DATE ORG of ORG ruled by CARDINAL votes to CARDINAL that it did not have jurisdiction to entertain the application to set aside the order of CARDINAL DATE , on the ground that under LAW the decisions of ORG were final and not subject to judicial review . In that connection it observed that under the Military Legal Service Act members of the military legal service had the status of military personnel . Their compulsory retirement for breaches of discipline was regulated in the same manner as that of other army officers .

In their dissenting opinion the CARDINAL members of the minority referred to the principle of the independence of the judiciary enunciated in DATE LAW . They expressed the view that security of tenure for both civilian and military judges , which was protected by that LAW , formed a lex specialis in relation to the other provisions of LAW and that decisions of ORG which infringed that principle should therefore be subject to review by ORG of ORG .

The court set aside , however , the refusal to issue social security cards to the applicant and his family .

ORG On DATE the court dismissed an application for rectification lodged by Mr GPE .

ORG The relevant provisions of the LAW are as follows :

" None of the rights and freedoms set forth in the LAW may be exercised with the aim of undermining the territorial integrity of the ORG or the indivisible unity of its people , imperilling the existence of ORG and the Republic , abolishing fundamental rights and freedoms , handing over control of the ORG to a single individual or group or bringing about the dominance of CARDINAL social class over the others , establishing discrimination on the grounds of language , race , religion or adherence to a religious sect or setting up by any other means a ORG order based on such beliefs and opinions . "

" Everyone shall have the right to freedom of conscience , faith and religious belief .

Prayers , worship and religious services shall be conducted freely , provided that they do not violate the provisions of

No one shall be compelled to participate in prayers , worship or religious services or to reveal his religious beliefs and convictions ; nor shall he be censured or prosecuted because of his religious beliefs or convictions .

No one may exploit or abuse religion , religious feelings or things held sacred by religion in any manner whatsoever with a view to causing the social , economic , political or legal order of the ORG to be based on religious precepts , even if only in part , or for the purpose of securing political or personal influence thereby . "

" All acts or decisions of the administration are subject to judicial review ... Decisions of the President of the Republic concerning matters within his sole jurisdiction and decisions of ORG shall not be subject to judicial review .

" Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW ; nor shall they be deprived of their salaries , allowances or other rights relating to their status , even as a result of the abolition of a court or post .

The exceptions laid down by law concerning judges or public prosecutors who have been convicted of an offence requiring their dismissal from the service , those whose unfitness to carry out their duties for medical reasons has been finally established or those whose continued service has been adjudged undesirable shall remain in force . "

" Supervision of judges and public prosecutors as regards the performance of their duties in accordance with laws , regulations , subordinate legislation and circulars ( administrative circulars , in the case of judges ) , investigations into whether they have committed offences in connection with , or in the course of , their duties , or whether their conduct and attitude are compatible with the obligations arising from their status and duties and , if necessary , inquiries concerning them shall be made by judicial inspectors with the permission of ORG . The Minister of ORG may also ask a judge or public prosecutor senior to the judge or public prosecutor in question to conduct the investigation or inquiry . "

" The organisation and functions of military judicial organs , the personal status of military judges and the relations between judges acting as military prosecutors and the commanders under whom they serve shall be regulated by law in accordance with the principles of the independence of the courts and the security of tenure of the judiciary and with the requirements of military service . Relations between military judges and the commanders under whom they serve as regards their non - judicial duties shall also be regulated by law in accordance with the requirements of military service . "

Section CARDINAL ( c ) of ORG provides :

" Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below , as established in one or more documents drawn up during their service in the last military rank they held , shall be subject to the provisions of LAW .

Where their conduct and attitude reveal that they have adopted unlawful opinions . "

Section CARDINAL ( c ) of LAW provides :

" Irrespective of length of service , servicemen whose continued presence in the armed forces is adjudged inappropriate on account of breaches of discipline and immoral behaviour shall be subject to the provisions of LAW .

The Regulations for Military Personnel shall lay down which authorities have jurisdiction to commence proceedings , to examine , monitor and draw conclusions from personnel assessment files and to carry out any other act or formality in such proceedings . A decision of ORG is required to discharge an officer whose case has been submitted by ORG to ORG . "

ORG LAW on assessment of officers and noncommissioned officers provides :

" Irrespective of length of service , the compulsory retirement procedure shall be applied to all servicemen whose continued presence in the armed forces is adjudged to be inappropriate on account of breaches of discipline or immoral behaviour on one of the grounds set out below , as established in one or more documents drawn up during their service in the last military rank they held :

( e ) where by his conduct and attitude the serviceman concerned has provided evidence that he holds unlawful , subversive , separatist , fundamentalist and ideological political opinions or takes an active part in the propagation of such opinions . "


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

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

The applicant ’s lorry was forfeited by ORG FAC postaja ORG ) on DATE in connection with a suspicion held against the applicant of having committed an aggravated theft . The criminal complaint against the applicant was eventually dropped and on DATE the police invited the applicant to take delivery of the vehicle . They also noted that the vehicle was not in good working order . For that reason the applicant refused to take delivery of the vehicle .

The applicant , represented by a lawyer , instituted civil proceedings on DATE in ORG ( PERSON ) against ORG ( ORG unutarnjih poslova PERSON , hereinafter “ the NORP ” ) , seeking repossession of the vehicle and damages .

After holding a public hearing and hearing the evidence , in its judgment of DATE ORG ( PERSON ) ordered the ORG to return the vehicle to the applicant in good working order within DATE after the judgment became final . It found that the applicant ’s vehicle was in good working order at the time of its requisition . ORG also dismissed his claim for damages . The judgment was upheld by ORG ( Županijski sud u GPE ) on DATE and thus became final . Further appeals on points of law lodged by both parties were dismissed by ORG ( PERSON ) on DATE .

The applicant ’s subsequent constitutional complaint was dismissed by ORG ( Ustavni sud PERSON ) on DATE .

The applicant lodged a request for an enforcement order in ORG on DATE , seeking the enforcement of the above final judgment of DATE . On DATE ORG issued an enforcement order requiring the applicant ’s vehicle to be returned to him in good working order .

On DATE the applicant withdrew his initial request and asked instead ORG to order the Ministry to pay a penalty for not complying with the enforcement order . On DATE the Ministry admitted that it had not complied with the initial enforcement order . In view of the applicant ’s new request , the proceedings concerning the enforcement order of CARDINAL DATE were terminated on DATE and the proceedings upon the applicant ’s request for penalty payments continued .

On DATE ORG ordered the ORG to return the vehicle to the applicant within DATE , failing which it was to pay the applicant NORP kuna ( HRK ) CARDINAL for DATE of default from that point on . ORG lodged an appeal and on DATE the appellate court quashed the firstinstance decision , finding that ORG lacked territorial jurisdiction in the matter . The case was transferred to ORG ( PERSON u ORG ) , which on DATE ordered the Ministry to return the vehicle to the applicant within DATE , failing which it was to pay HRK CARDINAL for DATE of default . The appellate court , however , quashed that decision and ordered the first - instance court to establish whether the parties were willing to settle the case . On DATE the ORG offered a settlement , which the applicant refused .

On DATE ORG ordered the Ministry to comply with the judgement of DATE within DATE failing which it was to pay HRK CARDINAL for DATE of default . This decision was upheld by ORG ( Županijski sud u ORG ) on DATE .

The parties met on DATE in the presence of a court expert who established that the vehicle had been repaired and its value had increased .

The parties met again on DATE in the presence of a court expert but the applicant refused to accept the vehicle , objecting that it had not been properly repaired . He sought payment of HRK CARDINAL and MONEY ( ORG ) in order to repair the vehicle and a further HRK CARDINAL,CARDINAL for its registration .

On DATE a commission of ORG established in the presence of the parties and a court expert that the vehicle still had some defects , which had been in existence when the vehicle was examined on DATE . The applicant offered a settlement stipulating that the vehicle be driven to his address and that a sum of HRK CARDINAL be paid to him for the costs of further repair and the registration of the vehicle . On DATE the ORG agreed to deliver the vehicle to the applicant ’s home address , to remove all the remaining defects and pay the applicant a sum of HRK CARDINAL for the costs of registration .

ORG held a hearing on DATE with a view to assisting the parties to reach a settlement . However , the applicant declined the settlement because the ORG refused to pay the court penalties ordered by ORG on DATE .

On DATE a commission of ORG established in the presence of the parties and a court expert that the vehicle still had some defects . These were immediately removed , but the applicant nevertheless refused to take delivery .

On DATE ORG ordered that the vehicle be kept by ORG in a closed garage at the applicant ’s expense , at a rental of HRK CARDINAL per day . The applicant appealed against this decision , arguing that the vehicle had not been properly repaired . On DATE ORG dismissed the applicant ’s appeal finding that the vehicle was in good working order and fit to pass the technical test necessary for its registration . The thus vehicle remained in the possession of ORG as the applicant refused to take possession of it .

On DATE the applicant also sought payment of the court penalties ordered in ORG decision of DATE ( see paragraph CARDINAL above ) up to DATE , in a total amount of HRK CARDINAL,CARDINAL together with costs of HRK CARDINAL . An enforcement order to that effect was issued on DATE and the above amounts were paid to the applicant .

NORP In its decision of DATE , ORG ordered the Ministry to pay the applicant HRK CARDINAL,CARDINAL on account of court penalties for the period DATE and DATE as well as HRK QUANTITY for the costs of the proceedings . In its decision of DATE , the same court ordered the ORG to pay the applicant HRK CARDINAL on account of court penalties for the period between CARDINAL May and CARDINAL DATE together with HRK CARDINAL,CARDINAL for costs . However , on CARDINAL DATE the ORG quashed these orders and dismissed the applicant ’s request for the court penalties to be enforced , on the ground that the ORG had complied with their obligation to return the vehicle in good working order on DATE , that being the date when a court expert had found that the vehicle had been repaired .

On an unspecified date the applicant lodged a constitutional complaint against ORG decision of CARDINAL DATE arguing that further court penalties had to be paid to him . These proceedings are still pending .


CASE OF EDIFICACIONES MARCH GALLEGO S.A. v. SPAIN

Edificaciones DATE Gallego S.A. is a public limited company set up in DATE and its registered office is at GPE ) . Mr PERSON was its sole director .

On DATE proceedings for payment ( juicio ejecutivo cambiario ) were brought against the applicant company and , as guarantor , Mr DATE in ORG of First Instance no . CARDINAL by another company , PERSON , which claimed the sum of MONEY on a bill of exchange . The court registry was instructed to inform the defendants that in default of payment their property would be seized and that they could apply to have the proceedings set aside .

As the applicant company did not have its registered office at the address indicated on the bill of exchange , the plaintiff company requested the court on DATE to order , under Articles CARDINAL and CARDINAL of the Code of Civil Procedure , that the applicant company ’s property should be seized without any prior demand for payment and to summon the company to appear by edictos ( see paragraph CARDINAL below ) .

On DATE appeared before ORG , which assessed what part of his property could be seized and gave him DATE in which to indicate that he intended to apply to have the proceedings set aside , if he so wished ( see paragraph CARDINAL below ) . Notice of the proceedings and of the property to be seized was served on Mr DATE ’s wife .

On DATE ORG appeared before the same court and declared their intention of applying to have the proceedings against the company set aside . The document giving notice of that intention , which was submitted by the company ’s lawyer ( procurador ) , PERSON , stated “ … on DATE last the summons and copies of the application for proceedings for payment were handed to my client … ” .

On DATE the applicant company was given DATE by the court to make its submissions , adduce evidence and apply to set aside , in accordance with LAW ( see paragraph CARDINAL below ) . The court noted that Mr DATE had not appeared within the DATE period he had been granted on DATE and declared that he was in default .

On DATE PERSON , acting on behalf of Mr DATE in accordance with “ the authority to act in the file of the proceedings ” formally applied to have the proceedings in question set aside , within the DATE period granted to the applicant company by the court . In the application to set aside the court was requested to declare that the bill of exchange in question was void since , in view of the amount for which it had been drawn up , an insufficient amount had been paid in compulsory tax on bills of exchange .

On DATE the court held that the application to set aside was inadmissible ( se QUANTITY por no formulada ) on the following grounds :

“ CARDINAL . Mr PERSON did not appear timeously or comply with formal requirements ;

NORP the lawyer [ who submitted the application to set aside ] had not received authority to act from the aforementioned person [ Mr DATE ] or , at the very least , that authority had not been formally submitted and is not in the file ;

the only party which gave notice of intention to apply to set aside within the prescribed time is ORG , who had duly authorised PERSON [ I. ] , in accordance with requirements … ;

NORP the debtors are CARDINAL persons that can be clearly distinguished : on the one hand , a company , ORG , and , on the other , a natural person , PERSON PERSON … ”

It was also stated in the decision ( providencia ) that it was unnecessary to summon the applicant company by edictos , as PERSON ORG had requested on DATE since , although the applicant company did not have its registered office at the address indicated , it had appeared timeously in accordance with LAW . It was noted in the decision that Mr DATE had not appeared ( see paragraph CARDINAL above ) , unlike the applicant company , which , however , had not formally applied to set aside ( see paragraph CARDINAL above ) in accordance with Articles CARDINAL and DATE of the Code of Civil Procedure ( see paragraph CARDINAL below ) .

On DATE the applicant company ’s lawyer made a reposición application to ORG , arguing that the application to set aside had been made on behalf of the company , that the fact that Mr DATE ’s name appeared in the application had been merely a typing error and that it was clear that the intention had been to apply to set aside on behalf of the applicant company and not of PERSON DATE .

In a decision ( auto ) of CARDINAL DATE the court upheld the impugned decision .

On DATE the applicant company appealed . In a decision ( auto ) of CARDINAL DATE the FAC provincial upheld the decision of DATE . The court stated that the mistake went to the applicant company ’s and Mr DATE ’s locus standi in that although the first name , “ DATE ” , was identical in both cases , the second was different , the application to set aside having been made in the name “ DATE PERSON ” , the name of the natural person , and not of “ DATE PERSON ” , the name of the company of which the natural person was the sole director .

In the meantime , on DATE , ORG , having found that Mr DATE had not appeared and that ORG – who had not been summoned but who , having indicated in time their intention of applying to set aside , had been deemed to have appeared – had in the end not applied to set aside , ordered that the proceedings for payment of the bill of exchange should continue ( sentencia de remate ) .

On DATE the applicant company appealed against that judgment . On DATE the FAC provincial dismissed the appeal on the ground that the applicant company ’s application to set aside had been refused by ORG no . CARDINAL on DATE .

On DATE Edificaciones March Gallego and Mr DATE lodged an amparo appeal with ORG on the basis of LAW ( see paragraph CARDINAL below ) , alleging that the ORG refusal to rectify the clerical error in the application to set aside was a breach of fair procedure .

On DATE the amount of the bill of exchange was paid to the plaintiff company .

On DATE ORG held , contrary to the opinion of its ORG office , that there had not been merely a rectifiable error in the identification of the persons who had applied to set aside but a want of diligence that could not be remedied and dismissed the applicant company ’s appeal .

It pointed out , firstly , that as the right to bring an action and obtain a reasoned decision from the courts was subject to statutory requirements , the courts were bound to apply the rules of procedure in the light of the aim that had been sought to be achieved by the legislature , while avoiding both excessive formalism that would breach the fairness of procedure guaranteed by LAW and excessive flexibility such as would render nugatory the procedural requirements laid down in statutes .

The court noted the difference in legal status between the applicant company ( a legal person ) and Mr PERSON ( a natural person ) , and said :

“ The difference in legal status between the parties concerned – CARDINAL of them a legal person and a public limited company ( ORG ) and the other a natural person ( Mr PERSON ) DATE , the obvious identity or divergence of their interests due to the similarity of their names and the fact that PERSON PERSON , as sole director of the company , had given its statutory representatives authority to act DATE as was noted in the decision of CARDINAL DATE – do not justify holding , as the interested parties maintained , that there was an error in the identification of the persons that had formally applied to set aside . On the other hand , those factors do justify finding , like the ordinary courts , that there was a want of diligence in the proceedings that can not be remedied ; nor must it be overlooked that it would have to be remedied after [ the procedure of formally submitting ] the application to set aside had been completed . That fact makes it impossible for the ORG to hold that there was merely an irregularity , omission or imperfection that could be cured by supplying the missing element . In the instant case , apart from the fact that the omission in question concerned an essential element of the act and related to the person carrying it out , it would have to be cured outside the mandatory time - limits laid down for formally submitting an application to set aside ( Article CARDINAL of the Code of Civil Procedure , in conjunction with section CARDINAL of LAW ) , and in such cases of late rectification of an essential element of a procedural step subject to mandatory time - limits , this ORG has held that failure to rectify [ the error ] does not infringe the right to effective protection by the courts . ”

Article CARDINAL § QUANTITY of the LAW provides :

“ Everyone has the right to effective protection by the courts in the exercise of his rights and his legitimate interests , and in no circumstances may there be any denial of defence rights . ”

NORP The relevant provisions of LAW are the following :

“ Any service of process or summons that does not comply with the requirements of this section [ of this code ] shall be invalid .

However , where the person on whom service is being effected or the summons served learns of it during the proceedings , the service of process shall be fully effective as if it had been carried out as prescribed by law .

“ If the debtor ’s permanent address or place of residence is unknown , the ORG may decide , on an application by the plaintiff , to order a seizure without giving notice to pay … ”

“ If the debtor ’s permanent address or place of residence is unknown , the debtor shall be summoned by edictos … ”

[ In the procedure of summons by edictos the summons is posted up on the notice - board of the judicial body concerned and , where appropriate , published in ORG and in the main newspapers of the province ( LAW ) . ]

“ Within a period that may not be extended of DATE from DATE following the summons the debtor may apply to set aside the proceedings for payment by appearing in court assisted by a lawyer [ procurador ] . ”

“ At DATE referred to in the foregoing CARDINAL Articles , a debtor who has not appeared , assisted by a lawyer , shall be deemed in default and the proceedings shall follow their course without it being necessary to summon him again or to send him any notifications other than those provided for in law … ”

“ If , within the time laid down and having satisfied the formal requirements , the debtor gives notice of his intention to apply to set aside , he shall be deemed to be making such an application and must formally submit his application to set aside within DATE , which can not be extended , and shall raise such defences and submit such evidence as he considers necessary … ”

“ Only the following objections shall be admissible in proceedings for payment :

All other objections that may be raised by a debtor shall be reserved for ordinary proceedings and shall not prevent delivery of the judgment in which payment is ordered [ de remate ] . ”

“ Judgments delivered in proceedings for payment [ juicio ejecutivo ] shall not be final , the parties being entitled to bring ordinary proceedings relating to the same issue . ”

“ In accordance with the principle of effective protection laid down in LAW , the courts shall always rule on claims and may only dismiss them on the ground of a formal defect where that defect can not be remedied , or at least not in accordance with the procedure laid down by law [ for that purpose ] . ”

“ Procedural steps carried out after a time - limit shall only be annullable if that is permitted by the nature of the time - limit in question . ”

“ Manifest clerical errors and arithmetical errors shall be rectifiable at any time . ”


Violation of Article 6 - Right to a fair trial;Violation of Article 5 - Right to liberty and security

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

On DATE the applicants were arrested and taken into police custody by officers of the GPE security police in connection with an investigation into an illegal organisation . On DATE the applicants were brought before the GPE public prosecutor and the investigating judge respectively , who remanded the applicants in custody .

By an indictment dated DATE , the public prosecutor at ORG initiated criminal proceedings against the applicants and a number of others , accusing them , inter alia , of membership of an illegal armed organisation and of taking part in its activities .

On DATE ORG sentenced the applicants to life imprisonment , pursuant to LAW . On DATE ORG quashed the judgment of the first - instance court and remitted the case . ORG were abolished by constitutional amendments introduced on DATE . Subsequently , the applicants’ case was resumed before the CARDINALth ORG of GPE .

Referring to recent amendments in domestic law , on DATE the applicants requested to be released pending trial . Relying on the accusations against the applicants , the length of their detention and the content of the case file , the CARDINALth ORG of GPE refused the ORG request on DATE . The applicants appealed . On DATE the CARDINALth ORG of GPE dismissed their appeal without further reasoning .

On DATE the applicants were released pending trial .

On DATE the CARDINALth ORG of GPE sentenced the applicants as charged . According to the information in the case file , as submitted by the parties , the proceedings are pending before ORG .


The applicant was born in DATE and lives in the city of GPE .

On DATE ORG awarded the applicant ORG in industrial disease benefits arrears against the ORG - owned mining company “ PERSON ” , which on DATE was joined to the ORG - owned ORG “ Pavlogradvugillya ” .

On DATE ORG ( hereinafter “ the Bailiffs ” ) instituted the enforcement proceedings .

On DATE ORG assigned the “ Pavlogradvugillya ” as the debtor in the enforcement proceedings .

On DATE ORG rejected the applicant 's complaint against the Bailiffs . The court indicated , inter alia , that the award could not be paid due to the debtor 's lack of funds . The scope of action for the Bailiffs was also limited by the funds allocated from ORG to ORG for payment of the industrial benefits .

On DATE the debtor company was privatised .

On DATE the judgment debt was paid to the applicant and the Bailiffs terminated the enforcement proceedings .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) .


MULDER-VAN SCHALKWIJK v. THE NETHERLANDS

Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

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

CARDINAL

NORP The applicant is the widow of the late Mr PERSON . Mr PERSON was born in DATE . He died on DATE of a gunshot wound .

The applicant and her late husband lived in the GPE district of GPE . At the relevant time , PERSON was an inner - city area beset by social problems including disorder caused by juvenile street gangs .

In TIME CARDINAL DATE , towards QUANTITY o’clock , the applicant telephoned the police to report a disturbance caused by a group of youths outside the front door of the Mulders’ residence . Mr PERSON and his friend , PERSON , both of whom had been drinking heavily , got into a fight with the youths , who would not be persuaded to take themselves elsewhere . They were fought to the ground . Both were hurt . Mr PERSON was bleeding from his nose and from the back of his head . They were freed by the applicant and by PERSON daughter , PERSON

Mr PERSON then went indoors where the applicant attended to his injuries . Mr PERSON then grabbed a baseball bat which he kept in the hallway of his house and took it back into the street with him . His attackers having left , he smashed the baseball bat against the ground ; it broke into CARDINAL pieces .

Mr PERSON was passed by a police officer on a motorcycle . He tried to attract the officer ’s attention but the officer did not stop . CARDINAL other police officers rode by on motorcycles ; both failed to stop when signalled by PERSON PERSON and turned the nearest corner . Annoyed at their failure to heed his signals , Mr PERSON then followed them around the corner .

CARDINAL of the CARDINAL motorcycle - borne police officers who had followed the first was an officer identified in the documents made available to the applicant only as Officer PERSON ( his real name , where it appeared , being blacked out ) .

Questioned afterwards , Officer PERSON stated that he had been stationary but still astride his motorcycle , which he was in the process of parking on its side stand , when he had seen a man with a bloody face and wearing a wild expression approach him holding a large knife above his body in an underhand grip , poised to strike downwards . Caught in an awkward position and fearing that the man would stab him in the neck , where he was protected by neither his protective clothing nor his helmet , Officer PERSON had drawn his service pistol and fired at close range .

The applicant states that Officer PERSON fired entirely without warning in a situation where Mr PERSON posed no immediate threat .

The bullet hit Mr PERSON in the chest , passing through his heart and out through his back . Mr PERSON staggered a few paces , dropped the knife and fell to the ground . Other police officers , who had by now arrived on the scene , tried to resuscitate him but were unsuccessful . After the arrival of the ambulance , TIME , the ambulance crew determined that life was extinct and there was nothing more to be done ; they covered PERSON PERSON ’s body with a white sheet and left .

NORP The site was immediately cordoned off by the police . It proved necessary to restrain members of the public , some of whom tried to force their way through the cordon while others called the police officers “ murderers ” and “ killers ” .

At TIME an officer of ORG ( rijksrecherche ) was ordered to take over the investigation from the GPE police force . The officer arrived on the scene at CARDINAL .

Technical investigations were carried out on the spot by forensic experts of the GPE - Amstelland police force TIME . This is reflected in an official ORG report .

Beginning on DATE , overall responsibility for the investigation was vested in a public prosecutor ( officier van justitie ) of ORG who had no ties with the police station to which Officer PERSON belonged . It was this public prosecutor who ordered officer PERSON ’s identity to be withheld from the public in view of the likelihood of threats to his safety .

Beginning on DATE the investigation was conducted by the GPE - Amstelland police force , though still under the responsibility of ORG .

On DATE , at TIME , the applicant telephoned the police to report a group of rowdy youths outside her front door . Her husband , Mr PERSON aforementioned , and his friend Mr T.W. were trying to persuade the youths to leave ; this however was proving difficult because the group was growing bigger as other youths , summoned by telephone , joined them . The police telephonist informed the applicant that there would be a police presence shortly ; in the meantime , if things got out of hand , the applicant was to call again using the emergency number .

At TIME a woman whose name and telephone number are not recorded called the police on the emergency number to report that fighting had broken out . This information was passed on to a police patrol unit .

At TIME a woman whose name and telephone number are not recorded called the police on the emergency number to report fighting at a slightly different location ( just around the corner from the first reported fight ) . This too was passed on to patrolling police officers .

At CARDINAL.CARDINAL.CARDINAL TIME a patrolling police officer , having arrived on the spot , reported that a fight had taken place between CARDINAL gangs of youths .

At TIME a police officer reported a man with a knife . Almost immediately afterwards , the police officer asked for an ambulance to be sent immediately as there had been a shot fired .

Interviews of witnesses began DATE after the fatal shooting . Except as otherwise stated , all witnesses were interviewed by an officer or officers of ORG ; their statements , in so far as relevant to the case before the ORG , are summarised below .

The first to be interviewed was Officer PERSON , at TIME . He had arrived at the same time as Officer PERSON on a motorcycle and had witnessed events from close by . He had seen a man with a knife making stabbing movements and run towards Officer PERSON . He had seen Officer PERSON draw his service weapon and fire . He estimated the distance between the CARDINAL at the time when the shot was fired as QUANTITY . Officer PERSON had tried to resuscitate the man but had desisted when he saw someone approach him with a piece of wood . Officer PERSON had taken Officer PERSON across the road and made him sit down on the kerb , and had reported the events to the police station by radio .

Mr PERSON was interviewed at TIME He had got into the fight with the youths alongside Mr PERSON . He had seen Mr PERSON leave his house holding a shiny object and pursue the youths around the corner , where the police officers on motorcycles had already gone . He had then heard a bang from around the corner ; when he arrived there , Mr PERSON was lying on the ground with a policeman trying to resuscitate him .

Police Officer H. , interviewed at TIME , stated that he had heard a colleague on the radio call out that there was someone brandishing a knife . He had arrived after the shot had been fired and had tried to resuscitate him .

Police Officer PERSON was heard as a witness , but cautioned that he was not required to incriminate himself . He stated that he had had to draw his weapon DATE before , when a burglar who had been caught red - handed had threatened him with a screwdriver and a crowbar ; he had managed to resolve the situation without firing by kicking the man to the ground . DATE he had disarmed someone of a cocked pistol with which the latter had just committed a robbery ; this had required Officer PERSON to threaten to draw his own service weapon .

On TIME Police Officer PERSON had been patrolling with Police Officer O. on a ORG FCARDINAL motorcycle . His service pistol had a round chambered . When trouble was reported in the area where the shooting later took place , he had gone there , followed by Officer O. Arriving there , he had seen a group of people and had heard shouting ; he had stopped to investigate . As he was shifting gear into neutral and making to park the motorcycle on its side stand , a man had come running towards him from the right , shouting threats and abuse . After checking that the motorcycle was in neutral gear , Officer PERSON had looked up and seen that the man was CARDINAL or QUANTITY away . The man ’s face had been covered in blood , he had been wearing a furious expression and he had brandished a knife with a large blade . Officer PERSON had pointed at the man and shouted at him to drop the knife ; the man had not reacted but had continued towards Officer PERSON . Feeling threatened , and holding the motorcycle upright against his left leg , he had drawn his pistol and fired . The man had staggered and fallen , still holding the knife . Officer PERSON had then parked the motorcycle on its side stand and had attempted to administer first aid . It was only then that he realised that he had shot the man . There had been a smell of alcohol .

Officer PERSON remembered little after that . Police colleagues had taken him off to the police station .

Officer PERSON , interviewed at TIME , had been the first police motorcyclist to arrive in the area . He had pursued a youth , then returned when he had heard about a knife . He had seen a man lying on the ground . He had seen Officer PERSON ’s motorcycle parked on its side stand . He had helped administer first aid to the man .

Officer PERSON was interviewed a second time at CARDINAL . He confirmed his earlier statement and that of Officer PERSON . He added that he too had drawn his service pistol .

Officer PERSON , a woman police officer , was questioned at TIME She had arrived after the shot had been fired . She and another woman police officer , Officer Ha . , had followed the applicant home to take a statement from her . The applicant had told her about the trouble caused by the youth gangs and about Mr PERSON ’s tendency to become aggressive when drunk . Others had been in the house at that time ; the atmosphere had turned threatening and the QUANTITY police officers had had to be escorted out of the house .

Officer Ha . was interviewed the following day , CARDINAL DATE , at TIME She had arrived after the shot had been fired and had helped to cordon off the area . She had met the applicant , who had told her that PERSON PERSON had come home drunk and there was a baseball bat missing from the hallway . She had accompanied the applicant home ; when other inhabitants of the neighbourhood started to arrive , the atmosphere had turned emotional .

Ms V.P. , interviewed on DATE at TIME , was the wife or companion of Mr T.W. She had been told by her daughter , PERSON , that Mr PERSON and Mr PERSON had been beaten up and Mr PERSON had been shot .

The applicant was interviewed on DATE at TIME She stated that the neighbourhood had deteriorated since the decision had been taken to demolish it ; longtime residents had left and youth gangs , previously unknown , had come from elsewhere to make trouble .

She related how she had called the police to complain about the youths in front of her house . She described the fight between Mr PERSON and told how Mr PERSON had gone after the youths with the baseball bat . She had heard the shot , but not seen it fired . She had been very surprised to learn that Mr PERSON had had a knife ; she did not understand and was not aware of a knife being missing from her kitchen .

PERSON , interviewed on DATE at TIME , was the daughter of PERSON She confirmed her father ’s statement . She described the way in which Mr PERSON had held the knife in an underhanded grip , behind his forearm ; she had tried to take it from him but had not been able to .

Mr GPE , interviewed on DATE at TIME , lived across the street from the applicant and Mr PERSON . He had seen Mr PERSON fight the youths , enter his home and come back outside with a piece of wood and he had seen the QUANTITY police officers pass on motorcycles . He had heard , but not seen , the shot fired ; he had heard a woman screaming ; and he had seen the police raise a tent .

PERSON , an DATE girl , was interviewed on DATE by a female vice squad officer belonging to the NORP police force , with a male vice squad officer of the GPE police force in attendance . She stated that she had followed the events from her bedroom window . She said , without being asked , that the police officer had held a weapon and pointed it at a man who had not been holding a knife . Under questioning , she stated that the police officer had held the weapon in both hands and the man might perhaps have been holding a knife after all . She had not seen the police officer straddling a motorcycle . This interview was transcribed by an officer of ORG .

Ms M.J.M. was interviewed on DATE at TIME She lived just across the road from the applicant and Mr PERSON .

She had seen a group of people including QUANTITY women . CARDINAL of the women had been wearing a blouse in a red and white floral pattern ; PERSON had subsequently been told that that was the wife of the later victim , holding a knife . Her sister - in - law , visiting with her husband , had drawn her attention to it . She had heard the shot , but not seen it .

PERSON , interviewed on DATE at TIME , lived in the same street as the applicant and Mr PERSON . She had seen QUANTITY police motorcyclists passing and had heard the shot fired . Very shortly afterwards she had seen a young woman get into a car and drive away . This woman had been wearing something pink or red .

PERSON , who was interviewed on DATE at TIME by the GPE police ( i.e. not by ORG ) , was the Mulders’ next - door neighbour . She had seen Mr PERSON getting beaten up by the youths . She had seen the baseball bat but no knife , and she had not seen the applicant holding anything .

Mr DATE , interviewed on DATE at TIME also by the GPE police , had witnessed a man being beaten up . He had gone home to go to bed . He had later been woken by his wife who had told him that PERSON PERSON had been shot dead .

Mr M. , interviewed on DATE at TIME by the GPE police , was the companion of PERSON He had witnessed the fight , but had seen neither a baseball bat nor a knife .

PERSON was interviewed anew on DATE at TIME , this time by an officer of ORG . She confirmed the statement which she had made earlier to the GPE police .

Ms M.J.M. , who had said earlier that she had seen a woman with a knife , was interviewed again on DATE at TIME She again stated that she had seen a woman with a knife , wearing a blouse in a floral design , standing next to another woman whom she could not identify . She had not seen the knife handed over . She drew a picture showing the CARDINAL women in front of the house inhabited by the applicant and Mr PERSON .

Mr P.C.M. was interviewed on DATE at TIME He had been visiting his sister PERSON He had seen QUANTITY men and QUANTITY women , he had seen a man striking the ground with a baseball bat , which a woman had picked up and taken indoors . He had seen a police officer pass on a motorcycle and a man shouting to draw his attention , and he had heard a shot shortly after the police officer had turned the corner .

Ms S.H. was interviewed on DATE at TIME She was the wife of Mr P.C.M. and sister - in - law of PERSON She had seen a woman with a knife during the fighting . She had seen another woman pick up the baseball bat . She had seen the police officers on motorcycles turn the corner and heard the shot .

The applicant was interviewed again on DATE at TIME She stated that she had got Mr PERSON out of the fight and taken him indoors to clean him up . He had been drunk . He had picked up a baseball bat and taken it out , then broken it on the pavement . She had then picked up the longer piece and disposed of it .

The first police officer had ridden past on a motorcycle . Mr PERSON had tried to make him stop and shouted to draw his attention . CARDINAL others had ridden past . Mr PERSON had gone after them , followed by the applicant . The applicant had just turned around to close the door when she had heard the shot fired . She had run to the corner . She had seen Mr PERSON lying on the pavement . A police officer had stopped her getting any closer .

The applicant had been wearing black trousers and a sweater in black and white stripes . PERSON had been wearing tight trousers and , as she recalled , a brown sweater . She knew nothing of a blouse in a red and white floral print and there had been no other women present .

When it was suggested to her that PERSON might have had a knife , she stated that she had not seen any knife that evening . PERSON and Mr PERSON had told her about the knife afterwards .

Interviewed again DATE , the applicant stated that she had moved to another dwelling . She was prepared to show her kitchen knives to the police . Photographs of knives were included in the file .

Mr PERSON was interviewed anew on CARDINAL DATE at TIME He had seen Mr PERSON holding a baseball bat in his left hand and a knife in his right . He did not remember where the applicant and PERSON had been at that moment . Nor did he recognise the knife . He had been drunk that night .

PERSON was interviewed on DATE at TIME She and the applicant had intervened in the fight . After fighting had stopped , she had seen Mr PERSON holding a baseball bat . He had gone round the corner . She thought that the applicant might have gone back indoors at that point . She had seen a police officer pass on a motorcycle and had tried to wave him down . At that point she had seen Mr PERSON holding a knife . She had tried unsuccessfully to take it from him . He had been holding it by the grip , blade upwards , inside his lower arm . He had been overwrought . She did not know where the knife had come from ; maybe from one of the youths . Nor did she understand how Officer PERSON could have felt threatened ; she thought the distance between him and Mr PERSON had been QUANTITY , but she admitted that she had not seen the shot fired .

Officer PERSON had submitted a written statement ( see below ) . Interviewed on DATE at TIME , he stated that he had seen Mr PERSON get drunk and become aggressive in a football club canteen .

PERSON was interviewed a second time on DATE at TIME She stated that she had seen a woman aged DATE , wearing grey and pink , run after the youths , get into a car and drive away at high speed .

Ms B.C.Z. was interviewed on DATE at TIME She had been visiting her friend PERSON She had heard QUANTITY shots fired . She and PERSON had gone to the window . They had seen a woman leaving the house of the applicant and Mr PERSON ; the woman had got into a car and driven off , then returned later with a man in a different car . Together they had entered the applicant ’s home .

Police Officer PERSON was interviewed by the investigating judge ( rechter - commissaris ) on DATE . He confirmed what he had said earlier . He was still very upset by what had happened .

Officer PERSON submitted a written statement , dated DATE , of the events as he had witnessed them . He had been patrolling in a police car when he was informed of the disturbance caused by the youths . He had heard shouts about a knife on the police radio . Having arrived , he learned that a man had been shot ; the man had been breathing heavily . He had tried to resuscitate the man . When the ambulance arrived , it had driven over the knife . The man having died in the meantime , the ambulance crew had covered the body with a white sheet and left .

Officer PERSON had later gone into the applicant ’s home ; he and woman police officers PERSON and Ha . had been able to leave only with difficulty . They had been addressed as “ killers ” by persons present in the house .

Officer PERSON submitted a written statement dated DATE . He had known Mr PERSON personally . Mr PERSON had told him about the nuisance caused by the youth gangs ; Officer PERSON had advised him to call the police or mobilise the neighbourhood to involve the police in the matter . Mr PERSON had subsequently told him that the annoyance caused by the youth gangs had decreased as a result .

Officer He . submitted a written statement also dated DATE . He had been the emergency aid co - ordinator at the time . He had been patrolling in a car when he had heard shouting about a knife on the radio , and later that there had been a shooting incident . Arriving at the scene of the incident , he had seen a man lying in the recovery position and a motorcycle parked next to him . He had been directed towards Officer PERSON , who had been seated on the kerb across the street and obviously in great distress . He had had ORG taken to the police station and had had the area cordoned off in order to preserve it for forensic investigation . He had had Officer PERSON removed to a different police station from that where Officer PERSON had been taken , so that he could be de - briefed . When the situation threatened to get out of hand – he mentioned a professional criminal who had telephoned his henchmen DATE he had summoned up reinforcements .

Officer Ha . submitted a written statement dated DATE . It relates how she and her woman colleague PERSON had accompanied the applicant to her home . The applicant had told them that she had called the police in anticipation of her husband ’s return , expecting him to be drunk , and had described the fight with the youths . Mr PERSON had gone back into the house , after which the baseball bat had been gone . She had heard , but not seen , the shot . When other people had crammed into the applicant ’s home , the atmosphere had turned aggressive .

Skin and clothing samples taken from Mr PERSON ’s body were tested by a forensic expert of the GPE - Amstelland police force for the presence and concentration of gunshot residue . In a report dated DATE it was determined that the fatal shot had been fired from a distance of QUANTITY .

Officer PERSON ’s service weapon and the spent cartridge and bullet found at the scene of the shooting incident were examined by a forensic expert of the GPE - Amstelland police force . A report dated CARDINAL DATE concluded “ with virtual certainty ” ( met aan zekerheid grenzende waarschijnlijkheid ) that the cartridge and bullet had been fired using that particular weapon .

Mr PERSON ’s body was subjected to autopsy at ORG ( FAC ; “ ORG ” ) on DATE . Following the autopsy , the body was released to Mr PERSON ’s next - of - kin for disposal .

Samples of body tissue and fluids were taken and examined by a toxicologist . In the resulting report , dated CARDINAL DATE , it is stated that alcohol was found in Mr PERSON ’s femoral blood , in a concentration of CARDINAL milligrammes per millilitre , and in his urine , in a concentration of CARDINAL milligrammes per millilitre . These amounts were quite enough to have influenced Mr PERSON ’s consciousness and behaviour .

DATE . The knife found on the ground close to Mr PERSON ’s body was tested at the ORG . In a report dated DATE it was found to bear DNA matching that of Mr PERSON . There was a chance of CARDINAL in CARDINAL that the DNA was someone else ’s , and no match had been found among the DNA profiles stored in the national database .

Photographs were made of the scene of the incident , both before and after Mr PERSON ’s body was removed ; some show Mr PERSON ’s body , both clothed and naked . Others identify objects such as the spent cartridge , the bullets and blood spots . The investigation file also contained detailed street plans showing the location , in so far as they can be determined , of vehicles and witnesses at relevant times .

On DATE ORG officer conducting the investigation sought permission to tap fixed - line and mobile telephones used by witnesses to the shooting incident , including the applicant , PERSON and PERSON , in the hope that information thus obtained might clarify , in particular , the identity of the woman whom certain other witnesses had seen holding a knife .

A preliminary judicial investigation ( gerechtelijk vooronderzoek ) was opened on DATE .

On DATE the same officer requested the termination of the measures , since they had yielded no usable information .

The coroner ( lijkschouwer ) arrived on DATE at TIME and examined Mr PERSON ’s body . He found that the likely cause of death was a gunshot wound caused by a projectile passing through the body .

Other official reports summarise interviews by telephone with other witnesses who had known Mr PERSON in life and with the ambulance crew .

One report , dated CARDINAL DATE , relates that further attempts were made to interview PERSON anew but that these had been abandoned after they had proved unfruitful .

DATE . On DATE in the early afternoon officers of ORG determined the lines of sight from the window of PERSON bedroom ( see paragraph CARDINAL above ) .

It is also recorded in official reports that the precise trajectory of the bullet could not be determined for lack of sufficient reference points , and that a reconstruction of the incident took place on DATE in a shed outside GPE .

On DATE ORG ( PERSON ) , informed of the public prosecutor ’s provisional intention not to prosecute , issued an advisory opinion . It stated , among other things , that PERSON statement was unusable , inter alia because she had volunteered the information that she had not seen any knife without waiting to be asked . Conversely , the statements of Officer PERSON and Officer PERSON were considered plausible .

ORG considered that since Officer PERSON had not warned Mr PERSON that he might fire , his use of his firearm had not conformed with official instructions , but it had constituted legitimate self - defence in the circumstances . It was noted in this connection that police officers were expected to resist violence rather than evade it ; seen in this light , and even assuming that flight had been an option open to Officer PERSON , it was completely understandable that Officer PERSON had first attempted to persuade Mr PERSON to desist and drop the knife rather than flee .

NORP The public prosecutor ’s intention not to prosecute Officer PERSON was thus endorsed .

On DATE the public prosecutor wrote to the applicant ’s counsel informing him of the decision not to prosecute Officer PERSON .

On DATE the applicant , through her counsel , lodged a written complaint against this decision with ORG . She alleged that PERSON statement ( paragraph CARDINAL above ) cast doubt on the version of events according to which officer PERSON had been constrained in his actions through standing astride his motorcycle . Be that as it might , Officer PERSON had placed himself in an awkward position through failing to maintain sufficient distance from Mr PERSON despite the threat posed by the latter . The net result of not prosecuting Officer PERSON was moreover to deny the applicant the opportunity to be heard as a victim and claim damages as an injured party .

On DATE , following a hearing in camera during which Officer PERSON was heard in the absence of the applicant or her counsel , ORG gave a decision declaring the complaint unfounded . It was sufficiently established that Officer PERSON had acted in legitimate self - defence ; the investigation had been extensive , detailed and independent .

The standard service firearm issued to the GPE police is a version of the NORP - made PERSON PCARDINAL double - action semi - automatic pistol . It fires CARDINALxCARDINAL PERSON ( also known as QUANTITY or QUANTITY ) cartridge rounds .

The weapon has a number of safety features , including an internal firing - pin retaining mechanism which prevents the firing - pin from striking the primer of the cartridge unless the trigger is pressed all the way through . This enables the weapon to be carried safely with a round chambered and ready for immediate use while preventing its being fired accidentally .

Standing advice to police officers is to carry the weapon with a round chambered so as to have it ready for immediate use in case of need .

The relevant domestic law is set out in ORG and Others v. the GPE [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , ORG DATE ...


The applicants were born in DATE . PERSON died in DATE . Mr Arapov lives in GPE . He decided to pursue the application of his late wife PERSON .

From DATE to DATE the applicants received their old - age pensions , totalling CARDINAL and MONEY ( RUB ) per month , DATE in arrears .

On DATE each applicant lodged an action against ORG of GPE for index - linking of their delayed pension payments in line with inflation .

On DATE the ORG of GPE granted the applicants ' claims and awarded the applicants RUB PERSON ( Mrs Arapova ) and RUB CARDINAL ( Mr Arapov ) . Both judgments came into force on DATE .

ORG issued writs of execution and forwarded them to ORG of GPE for execution .

NORP In DATE ORG returned the writs of execution to the applicants advising them to apply to the local office of ORG . The ORG refused to execute the judgments .

In DATE the applicants applied to ORG on numerous occasions . ORG refused to accept the writs of execution because the defendant did not have funds .

It was not before DATE that the writs of execution were accepted for payment by ORG of GPE .

NORP The money awarded by the judgments was transferred to the applicants ' bank accounts on DATE , and received by the applicants on DATE .