CASE OF BĚLEŠ AND OTHERS v. THE CZECH REPUBLIC

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award;Non-pecuniary damage - finding of violation sufficient

On DATE CARDINAL members of ORG , including the applicants , brought an action against ORG under section CARDINAL of ORG ( Law no . CARDINAL ) and LAW ) of LAW . They sought declarations that the amendment of DATE to the internal rules and , consequently , the decision to expel their association were ORG ( neplatnost ) and that ORG remained a member of ORG . They maintained that ORG decision had damaged the reputation of ORG and had caused patients to become wary of doctors practising homeopathy ( a fact which they submitted gave them a relevant interest for the purposes of LAW ( c ) of LAW ) . They said that the decision had been arbitrary , unlawful and subjective , as it had been taken without the benefit of expert professional or scientific advice and was liable to cause unjustified discrimination against certain healing methods .

NORP In a judgment of DATE , ORG ( obvodní soud ) dismissed the applicants ' action without examining the merits , holding :

“ The ORG finds that [ the applicants ] are not entitled [ in their action for a declaration of nullity under LAW ) of LAW ] ... to an order negating the alleged illegality of the resolution adopted by the organ of the society or any inconsistency with the internal rules [ of ORG ] . [ Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL ] only gives the court power to review an impugned decision , not to vary or uphold it . The review procedure is now set out in Chapters I and II of Part CARDINAL of the Code of Civil Procedure , which defines jurisdiction in administrative appeals on points of law and requires the review [ of a decision ] within the meaning of section CARDINAL to be interpreted by analogy . Support for that view is also to be found in other provisions of Law no . CARDINAL/CARDINAL , which confer on the district court certain powers with respect to associations formed under that Act ( see sections CARDINAL ) and CARDINAL ) , it being understood that section CARDINAL(CARDINAL ) refers to the provisions of LAW governing the review of decisions by other authorities ) . ”

On DATE the applicants appealed against that judgment , arguing in particular that section CARDINAL of Law no . CARDINAL did not specify under which provisions of LAW they should have brought their action and that , since ORG was not an administrative authority , Part CARDINAL of the Code of Civil Procedure , which only applied to the judicial review of decisions of the administrative authorities , could not be applicable in their case . They further submitted that having found that it had no jurisdiction to decide the case on the basis of the pleaded provision , the court should have declined jurisdiction , not dismissed their claim . They were not required by the provisions of LAW governing the conditions of form applicable to actions to bring their claims under specific statutory provisions or to specify the procedure the court should follow , as the court was required first and foremost to consider the substance of their claim .

In a judgment of DATE , ORG ( městský soud ) upheld ORG judgment . It found that the applicants should have brought an action for a review of the impugned resolutions . Had they done so , ORG would have decided the case in accordance with Article CARDINAL § CARDINAL of LAW , either dismissing the action if it considered that the resolutions were lawful or quashing the resolutions on CARDINAL of the grounds set out in section CARDINAL(CARDINAL ) , if that was appropriate . ORG also dismissed an application by the applicants for leave to appeal on points of law ( dovolání ) against its decision .

On DATE the applicants lodged a constitutional appeal ( ústavní stížnost ) with ORG ( GPE soud ) . They filed a supplemental pleading on DATE . They submitted that , by an erroneous construction of CARDINAL of PERSON no . CARDINAL/CARDINAL , ORG had restricted , and even deprived them of , their right to the protection of the courts , as guaranteed by LAW práv a svobod ) . They complained that ORG had failed to respond to their arguments that Part CARDINAL of the Code of Civil Procedure was inapplicable in their case . They further submitted that the impugned decisions of ORG had infringed their right to freedom of choice of their profession for the purposes of LAW , to scientific freedom , as guaranteed by LAW charter , and to freedom of association , as guaranteed by LAW and LAW . They added that the domestic courts ' failure to examine the merits of their action meant that the alleged violations were continuing .

On DATE ORG declared the applicants ' appeal inadmissible for failure to exhaust statutory remedies by appealing on points of law . It referred to LAW .

Article CARDINAL of the LAW of GPE ( as worded at the material time ) provided that treaties on human rights and fundamental freedoms that had been ratified and promulgated and were binding on GPE had immediate mandatory effect and prevailed over statute .

Article CARDINAL § CARDINAL of the LAW laid down that all parties to proceedings had equal rights before the courts .

Article CARDINAL § CARDINAL of the Charter on Fundamental Rights and Freedoms provides that everyone has the right to seek justice under a set procedure from an independent and impartial court , or in specified cases , another authority .

Article CARDINAL § CARDINAL of the LAW provides that no one may be denied access to the judge with statutory jurisdiction to hear his or her case . The jurisdiction of the courts and judges shall be determined by statute .

Section CARDINAL(CARDINAL ) provides that if a member of an association considers that an unappealable decision of an organ of the association is unlawful or contrary to the rules of the association , he or she may , within DATE after becoming aware thereof , but in any event DATE after the decision was taken , seek judicial review of the decision by a district court ( okresní soud ) .

Section CARDINAL(CARDINAL ) provides that applications for judicial review have no suspensive effect . Nevertheless , the court may stay implementation of the impugned decision if appropriate .

Article CARDINAL imposed a duty on the courts to inform the parties of their procedural rights and obligations .

Article CARDINAL § CARDINAL , which set out the requirements regarding the form of legal actions , laid down , inter alia , that applications had to be dated and had to state the name of the applicants and the case , and the purpose of the application and the court to which it was made . In addition to those general requirements , Article CARDINAL § CARDINAL required the names , occupations and addresses of the parties ( and the names and head offices of legal entities ) and , if applicable , of their representatives , to be stated in the application , followed by a description of the relevant facts , the evidence relied on by the applicants and the relief sought .

Article CARDINAL § CARDINAL empowered the president of the division to invite applicants to correct or supplement an application that did not comply with the formal requirements , or was imprecise or incomprehensible . In such cases , the president was also required to inform the applicants of the procedure to be followed and to grant them time in which to remedy the defects in the application .

Under LAW ( c ) of LAW , a court hearing a civil action had power to determine whether or not a legal relationship or right existed , provided that an imminent legal interest ( naléhavý právní zájem ) had been shown .

Part CARDINAL of the Code of Civil Procedure concerned appeals and applications for judicial review : ordinary appeals , applications for proceedings to be reopened and appeals on points of law . Article CARDINAL § CARDINAL laid down that an appeal on points of law ( dovolání ) lay solely against immediately enforceable appeal court decisions ( rozhodnutí ) , and then only if the statutory conditions were satisfied .

Article CARDINAL § CARDINAL provided that an appeal court that had upheld a decision of the court below must grant leave to appeal on points of law if it considered that its decision gave rise to a question of crucial legal importance justifying such leave ( rozhodnutí po právní stránce zásadního významu ) . It could grant such leave on its own initiative .

Article CARDINAL § CARDINAL provided that if an appeal court refused to grant an application for leave to appeal on points of law that had been made by CARDINAL of the parties before the decision upholding the decision at first instance was adopted , leave to appeal could only be obtained if ORG itself considered that the appeal court 's decision gave rise to a question of crucial legal importance .

Part CARDINAL of the Code of Civil Procedure concerned jurisdiction in administrative proceedings . Article CARDINAL laid down that , as part of their administrative - law jurisdiction , the courts must , on application or appeal , review the lawfulness of decisions of the administrative authorities .

Section CARDINAL(CARDINAL)(e ) lays down that , save as otherwise provided in the LAW , the judge rapporteur shall dismiss a constitutional appeal without holding a hearing or requiring the parties to attend if , inter alia , it is inadmissible ( nepřípustný ) .

Section CARDINAL(CARDINAL ) provides that anyone claiming to be a victim of a violation by a “ public authority ” of a fundamental right or freedom recognised in a constitutional law or international treaty within the meaning of LAW shall have standing to bring a constitutional appeal .

Under section CARDINAL(CARDINAL ) , constitutional appeals must be lodged within DATE after the appellant has been served with the decision on the final statutory remedy available for the protection of his or her rights .

Section CARDINAL(CARDINAL ) provides that a constitutional appeal shall be inadmissible if the appellant has not used all available statutory remedies , other than an application to reopen proceedings . Section CARDINAL(CARDINAL)(a ) gives ORG a discretion not to declare a constitutional appeal inadmissible for failure to exhaust statutory remedies if the issue at stake goes significantly beyond the appellant 's own interests and the appeal was lodged within DATE after the impugned decision or event .

In its decision no . IV ÚS CARDINAL/CARDINAL of DATE , ORG declared a constitutional appeal inadmissible for failure to exhaust statutory remedies ( see section GPE ) of LAW Law no . CARDINAL ) on the ground that an appellant whose case in a constitutional appeal was identical in substance to that he had pleaded in the ordinary courts and had been planning to plead in ORG was at risk of not satisfying the exhaustion of remedies rule if he failed to exercise his right to lodge an appeal on points of law under LAW .

In its decision no . III ÚS CARDINAL/CARDINAL of DATE , ORG found , inter alia , that , even though the applicants had been refused leave to appeal on points of law by the appeal court , they were still entitled to seek leave under LAW , as they satisfied the necessary conditions . Since they had not made use of that available remedy , their constitutional appeal could not be declared admissible .

In its decision no . II ÚS CARDINAL/CARDINAL of DATE , ORG held that an appellant whose application for leave to appeal on points of law has been dismissed by the appeal court is nevertheless entitled to apply for leave to ORG under Article CARDINAL § CARDINAL of the Code of Civil Procedure . Unless he does so , he will not have exhausted the statutory remedies provided to protect his rights .

In its reasoning in decision no . III ÚS DATE of DATE , ORG stated , inter alia , that if a party to the proceedings is refused leave by the appeal court to appeal on points of law , he must apply to ORG for leave under LAW , otherwise his constitutional appeal will be inadmissible .

In its decision no . III ÚS CARDINAL/CARDINAL of DATE , ORG declared a constitutional appeal inadmissible on the ground that if a party 's application to the appeal court for leave to appeal on points of law was dismissed , he would still be regarded as having failed to exhaust statutory remedies unless he applied to ORG for leave , despite the fact that it was his application to the appeal court that had made the application to ORG necessary .

In its decision no . I ÚS CARDINAL/CARDINAL of CARDINAL DATE , ORG considered , inter alia , the question of the admissibility of a constitutional appeal that had been lodged outside the statutory time - limit in a case in which the appellant was not sure whether he would be granted leave to appeal on points of law . ORG held that when an appellant decides to appeal on points of law against a decision of the appeal court in circumstances in which it is unclear whether leave to appeal will be granted , he must lodge a constitutional appeal at the same time , in order to ensure that it is brought within the statutory time - limit .

NORP In its decision no . I ÚS CARDINAL/CARDINAL of DATE , ORG said that if an appellant was unsure whether an application he had just lodged for leave to appeal on points of law would be granted , then in order to avoid being out of time with his constitutional appeal , he should lodge his constitutional appeal at the same time , without waiting for the decision on the application for leave , since , if leave was refused , the final decision in his case would be the appeal court decision .

Furthermore , applications nos . CARDINAL/CARDINAL and ORG ( PERSON , GPE v. GPE and PERSON v. GPE , respectively ) , which have been lodged with the ORG and communicated to the respondent Government , show that the effectiveness of lodging an appeal on points of law simultaneously with a constitutional appeal may prove to be purely theoretical . In these cases , the applicants lodged both forms of appeal at the same time , but their constitutional appeals were declared inadmissible for failure to exhaust domestic remedies , as appeals to ORG were still pending . They subsequently lodged fresh appeals with ORG , once ORG had refused them leave to appeal . However , their constitutional appeals were again declared inadmissible , this time on the ground that they were out of time .


The applicant is an NORP national , born in DATE and living in GPE ( GPE ) . He is represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

A.

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

The applicant is the father of CARDINAL daughters born in wedlock in DATE and DATE , respectively .

On DATE ORG ( Bezirksgericht ) granted the petition of the applicant and his wife for divorce by consent . In the settlement regulating the legal consequences of the divorce , the applicant and his wife agreed , outside the framework of section CARDINAL of LAW ( ORG ) which was at that time under review by ORG , to exercise joint custody over their daughters . The settlement provided that the applicant and his wife would share responsibility for their children . Further , it stated that the children would mainly live with their mother , the applicant being granted extensive access rights . It also contained provisions for the children ’s maintenance . The settlement was subject to approval in separate custody proceedings .

On DATE the ORG refused to approve the settlement . Referring to section QUANTITY of LAW , the court found that joint custody could not be granted . The ORG granted sole custody to the applicant ’s divorced wife , noting that according to both GPE submissions she was better suited to exercise custody . Thus , the transfer of custody was also in the interests of the children . Further , the court endorsed the settlement insofar as it concerned the applicant ’s rights of access and his maintenance obligations . The applicant did not appeal against this decision .

B. Relevant domestic law and practice

Award of custody over children upon divorce or separation

Section CARDINAL of the Civil Code provides as follows :

“ ( CARDINAL ) In case the marriage of the parents of a minor born in wedlock ends in divorce , or is dissolved or declared null and void , or in case the parents live separately for more than a limited period , they may submit an agreement to the court stating which CARDINAL of them will exercise sole custody over the child in the future . The court will approve the agreement if it corresponds to the interests of the child ’s well - being .

( CARDINAL ) If no agreement is reached within a reasonable time or if the agreement does not correspond to the interests of the child ’s well - being , the court has to decide which parent should have the right to sole custody in the future . In case the parents live separately for more than a limited period , the court only decides upon the request of CARDINAL of them .

( CARDINAL ) Section CARDINAL applies accordingly . ”

Section CARDINAL of the Civil Code provides , for children born out of wedlock , that the court may award joint custody to the parents upon their common request if they permanently live in a common household with the child and if such a ruling is not disadvantageous to the child ’s well - being .

In a judgment of DATE , ORG ruled on the constitutionality of section CARDINAL of LAW . It noted ORG constant case - law according to which section CARDINAL excluded an award of joint custody to both parents in case of divorce , except in the rare case when they continued to live together with the child in a common household . As to LAW , it found that the award of sole custody after divorce to CARDINAL parent was an interference with the other parent ’s right to respect for his or her family life , which was justified under the second paragraph of this Article . Given the legislator ’s margin of appreciation , it was to be considered necessary for the protection of the rights of others . In particular , it was proportionate , as the parent not having custody retained a number of rights , such as the right of access and the right to be informed and heard on certain important matters . Moreover , the law did not prevent parents who wished to share their parental rights after divorce from doing so in practice by mutual agreement , but provided a clear solution in case such agreement ceased to exist . As to LAW , ORG found that this provision did not prevent the legislator from creating different legal positions for spouses after divorce as long as such differences were not based on gender alone . It did not generally demand that joint custody be awarded to parents after divorce .

Rights of the parent not having custody

According to section CARDINAL of LAW , the parent not having custody has a right of access .

Moreover , according to section CARDINAL of LAW , the parent not having custody has the right to be informed by the other parent about certain measures listed in LAW ( which in cases of joint custody require the agreement of both parents ) , and has the right to be heard within a reasonable time . The submissions of the non - custodial parent are to be taken into account if the wishes expressed therein better serve the interests of the child ’s well - being . The measures at issue include the change of the child ’s first or family name , the entry into or secession from a church or other religious group , the child ’s placement in care , the acquisition or renunciation of a particular nationality , the early termination of an apprenticeship or employment contract , the recognition of paternity of a child born out of wedlock , as well as certain important provisions concerning the child ’s property .


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

On DATE the first applicant lodged with ORG a claim for compensation for allegedly unjustified detention during criminal proceedings against him . His case was registered by the court ’s registry on DATE and later transferred to ORG . A hearing was subsequently listed for DATE . On an unspecified date the applicant was granted legal aid .

On DATE the second applicant submitted a claim for compensation for her allegedly unfair criminal conviction and requested that her case be examined jointly with the first applicant ’s claim . At a hearing held on DATE the court decided that her claim should be examined separately .

On DATE ORG dismissed the first applicant ’s claim . It found that he had been detained for DATE in a psychiatric hospital , because he had previously repeatedly failed to comply with summonses to undergo a psychiatric examination ordered to establish whether he could be held criminally liable . He had also absconded for some periods of time . The court had regard to the fact that the applicant had been duly informed about the dates of the planned psychiatric examination . It further observed that the applicant had once been arrested and brought to the hospital for the same purpose , but had left without permission after DATE . Hence , given the applicant ’s manifest unwillingness to co - operate in establishing the circumstances relevant to the assessment of his criminal liability , the decision to remand him in custody had been fully justified .

The first applicant ’s legal - aid lawyer appealed , arguing that the court had wrongly assessed the evidence and wrongly applied the applicable legal provisions .

In addition , the applicant lodged his own appeal with the appellate court . In this appeal he raised in essence the same complaints . He further submitted that his defence rights had been breached in the criminal proceedings . He also complained that his legal - aid lawyer had only been informed about the hearing held on DATE on DATE , which negatively affected the fairness of the proceedings .

On DATE ORG dismissed the appeal brought by the applicant ’s lawyer , fully sharing the conclusions of the first - instance court . The court did not examine separately the appeal lodged by the applicant himself .

In proceedings concerning claims for compensation for unjustified detention or conviction , LAW applies .

According to LAW , a party can lodge an appeal against a decision of a first - instance court with the appellate court . Pursuant to LAW , legal representation is mandatory where a first - instance judgment has been given by a regional court .

In a decision of DATE , ORG held that where legal representation in criminal proceedings was mandatory , arguments contained in an appeal drawn up by a represented person him DATE or herself could be regarded by the court as additional arguments supporting the reasoning underlying the remedy filed by a lawyer ( ORG , II Aka CARDINAL , KZS CARDINAL/CARDINAL/CARDINAL ) .

LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Pursuant to LAW , a constitutional complaint has to be lodged within DATE from the date on which the individual decision was served on the complainant .


Violation of Art. 3;Violation of Art. 34;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;George Nicolaou;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lived , before his arrest , in GPE . He is currently serving a prison sentence in PERSON .

On DATE police arrested the applicant on suspicion of several murders and other serious crimes . The applicant alleged that policemen had refused to get him a lawyer and had beaten him to make him sign an acknowledgment of guilt . The applicant remained in detention pending the investigation and trial .

On DATE the regional prosecutor 's office charged the applicant with planning several murders and the unlawful acquisition and possession of firearms .

The applicant alleged that during the pre - trial proceedings he had been transferred on several occasions from the ORG Novgorod remand prison to different police stations in GPE Novgorod and was kept there for DATE under the pretext of investigative activities . On DATE the regional prosecutor replied to the applicant 's complaint in this connection that he had been transferred to police stations on the lawful orders of the investigator in charge of his case to take part in investigative activities . The prosecutor further stated that his reply could be appealed against to a higher prosecutor or to a court . It appears that the applicant did not lodge any appeal before those authorities .

By a final decision of DATE the ORG ( “ the Regional Court ” ) dismissed the applicant 's complaint against the prosecutor 's refusal to initiate criminal proceedings against police officers who had allegedly beaten the applicant .

On DATE ORG convicted the applicant , along with CARDINAL co - defendants , as charged and sentenced him to DATE imprisonment . The court held that the applicant 's guilt in the impugned crimes had been proven by an extensive body of evidence examined during the trial , such as statements by the applicant 's co - defendants and witnesses , expert examinations and other evidence . The court also observed that the applicant 's allegations of ill - treatment by police to make him sign a confession had already been investigated by the prosecutor 's office , which had refused to initiate criminal proceedings in this respect . The court also noted that the applicant 's confessions could not be regarded as an acknowledgment of guilt since they had been made after he had been arrested on suspicion of the impugned crimes .

On DATE ORG of GPE upheld the applicant 's conviction on appeal .

During the criminal proceedings against him the applicant was detained in GPE PERSON remand prison IZ-CARDINAL/CARDINAL ( “ remand prison no . CARDINAL/CARDINAL ” ) and GPE remand prison IZ-CARDINAL/CARDINAL ( “ remand prison no . CARDINAL/CARDINAL ” ) . The parties agreed on the following timeline of the applicant 's detention in those prisons :

- DATE and DATE the applicant was detained in remand prison no . CARDINAL/CARDINAL

- DATE and DATE he was detained in remand prison no . CARDINAL/CARDINAL

- DATE and DATE the applicant was again detained in remand prison no . CARDINAL/CARDINAL .

On DATE the applicant was transferred to serve his prison sentence at a correctional colony in ORG .

The applicant was detained in different cells . All of them were overcrowded . Most of the time ( DATE and DATE and DATE and DATE ) the applicant was detained in cell no . CARDINAL/CARDINAL , which measured QUANTITY , had CARDINAL beds and accommodated CARDINAL detainees . CARDINAL beds were used to store kitchenware and food . The applicant did not have an individual sleeping place . The cell was equipped with CARDINAL toilet and washstand . The inmates were allowed TIME exercise per day . The applicant was dissatisfied with many other aspects of his detention , such as a lack of bedding , natural light and ventilation , poor state of the drainage and water supply , and the presence of insects in the cells .

The Government provided the following information on the cells in which the applicant was detained . They underlined that the number of detainees indicated by them corresponded to an average number of inmates per cell detained together with the applicant .

The Government further provided a report by the prison department of ORG DATE ( “ prison department ” ) on the investigation carried out into the complaints about conditions of detention raised by the applicant before the ORG . The ORG submitted that it could be seen from that document that other aspects of the applicant 's detention fully complied with the requirements of the LAW . The applicant had been provided with an individual sleeping place and bedding . All cells in the remand prison had windows which let in sufficient fresh air and daylight . The applicant had been able to read and work by natural light . All cells were equipped with the mandatory ventilation system . The applicant had been allowed TIME exercise per day . He had been provided with drinking water . The cells were not overrun with insects or rodents .

During DATE the applicant was kept in cell no . CARDINAL and then he was placed in cell no . CARDINAL which measured QUANTITY and accommodated CARDINAL detainees . He stayed in that cell until DATE . The cell was equipped with bunk beds on which CARDINAL detainees could sleep in DATE time and CARDINAL in DATE time . The applicant did not have an individual sleeping place . He was provided with very old and dirty bedding . The cells were full of insects . Detainees had to sleep close to each other and very often they contaminated each other with different diseases . All cells were equipped with CARDINAL toilet and washstand . The inmates were allowed TIME exercise per day . The applicant was dissatisfied with many other aspects of his detention such as a lack of natural light and ventilation , and the poor quality of the water and electricity supply .

The Government submitted that the other aspects of the applicant 's detention had fully complied with the requirements of the Convention . The applicant had been provided with an individual sleeping place , bedding and kitchenware . He had been able to read and work by natural light . Fresh air came into the cells through the small windows which could be opened and closed without any difficulties . All cells were equipped with the mandatory ventilation system , toilet and washstands which the applicant could have used at any time and which offered privacy . The applicant had been allowed TIME exercise per day . He had been provided with drinking water . The cells were not overrun with insects or rodents .

The applicant suffers from a number of chronic diseases such as renal failure , hypertension and podagra . In DATE he was designated Category CARDINAL disabled , which had to be reassessed on a regular basis by medical examination .

According to the applicant , upon his arrival at remand prison no . CARDINAL/CARDINAL on DATE he asked the prison medical staff to place him in the medical unit for examination . They refused him on the ground that there was no available space and offered to place him there at his own expense . The applicant asked the general practitioner of the prison to prescribe him some treatment . The doctor replied that he ( the applicant ) would not receive any treatment until he agreed to collaborate with the investigating authorities . On DATE the applicant 's relatives paid the amount required , however he was not admitted to hospital .

On DATE the applicant 's lawyer lodged a request with the investigator in charge of the applicant 's criminal case in which he asked for the applicant not to be transferred between remand prisons and different police stations in view of his poor health . In that request he also submitted that the applicant had not been admitted to the prison hospital . On DATE the investigator replied that the investigating authorities had been aware of the applicant 's medical condition and that they had not hindered the applicant 's access to medical assistance in the remand prison .

On DATE the applicant was admitted to the prison hospital and remained there until DATE . Subsequently , he was hospitalised on several other occasions from DATE , DATE and DATE to DATE .

It appears that the applicant did not complain to the remand prison administration that there was a delay in placing him in the hospital . Neither did he contest the fact that he had to pay for his treatment . It also appears that he did not lodge any complaint with competent domestic authorities about the quality of treatment provided to him in the hospital of remand prison no . CARDINAL/CARDINAL .

The Government submitted that upon the applicant 's arrival to remand prison no . CARDINAL/CARDINAL he had been examined by medical staff and had been diagnosed with a number of chronic diseases such as renal failure , podagra and hypertension . During his stay in that prison the applicant had undergone out - patient and in - patient treatment . During his in - patient treatment the applicant had undergone regular blood and urine examinations to monitor his state of health . On several occasions the applicant had been examined by qualified specialists , such as a general practitioner , eye specialist , neurologist , dermatologist , rheumatologist , dentist and surgeon . In DATE and DATE the applicant had also undergone CARDINAL medical examinations which had confirmed that he was Category CARDINAL disabled .

An examination to reassess the applicant 's disability status was to have taken place in DATE . The applicant alleged that upon his transfer to remand prison no . CARDINAL/CARDINAL in DATE the head of the prison had informed him that the meeting of the commission could not take place there owing to the absence of qualified specialists in their medical unit . Therefore , the applicant 's disability status was not renewed until DATE .

The applicant further alleged that most of the medicines provided to detainees in the remand prison had been out of date . There had been no dentist at the prison . In case of severe toothache the detainees had been transferred to another remand prison to have teeth removed . The food in the prison had been of very poor quality and the applicant had had stomach pains as a consequence .

It appears that the applicant did not lodge any complaints about the quality of medical assistance in remand prison no . CARDINAL/CARDINAL with the competent domestic authorities .

The Government submitted that in remand prison no . CARDINAL/CARDINAL the applicant had undergone out - patient treatment . Since the applicant 's state of health had been stable he had not been placed in the prison hospital .

The applicant submitted that on DATE a certain PERSON . , an official of the prison department questioned the applicant about his complaints to the ORG and , in particular , about the conditions of his detention in remand prison no . CARDINAL/CARDINAL . The applicant explained which aspects of his detention had been unsatisfactory to him . PERSON asked the applicant to testify in writing that he had no complaints about the staff of the remand prison since the conditions of detention in the prison had been poor owing to a lack of funds . The applicant refused to produce such a statement .

On DATE a prison doctor asked the applicant about his health and examined him . Also on the same date the prison authorities measured cell no . CARDINAL/CARDINAL , in which the applicant was detained , disinfected the floor and the mattresses .

On DATE the head of CARDINAL of the units of remand prison no . CARDINAL/CARDINAL interviewed the applicant about his application to the ORG . He promised to provide him ( the applicant ) with bedding and asked him to prepare a written statement indicating that during his stay in the prison he had been provided with bedding . The applicant refused .

On DATE the medical assistant of the remand prison asked the applicant to provide a written statement saying that he had no complaints about the medical staff of the prison . The applicant replied that he had a number of such complaints , which he had described in his application to the ORG .

On DATE PERSON . again asked the applicant to provide a written statement saying he had no complaints about the staff of remand prison no . CARDINAL/CARDINAL . The applicant refused .

In DATE the applicant 's representative forwarded letters to the ORG from PERSON , the applicant 's acquaintance , and PERSON , the applicant 's mother , as well as copies of the complaints lodged with the prosecutor 's office by counsel PERSON . , who had represented the applicant in the criminal proceedings against him .

PERSON , who had been a witness for the applicant during his trial , claimed that on DATE at TIME a certain PERSON from the regional prosecutor 's office had phoned her and invited her to come to the prosecutor 's office to discuss the circumstances of the applicant 's arrest in DATE . PERSON had refused since she had already given testimony in this respect during the applicant 's trial and she had nothing to add to her previous statements . She added that , should there be any further questions in this connection , the prosecutor 's office should send her an official summons . PERSON was not contacted again by any state officials .

The applicant 's mother submitted that on DATE at TIME CARDINAL officers from ORG of the ORG had come to her apartment and questioned her about her son 's whereabouts . At TIME on the same date she had received a phone call from an unknown man who had told her to dissuade her son from writing complaints abroad or he would have problems in prison . On DATE the applicant 's mother complained to the regional prosecutor about the events of DATE .

NORP On DATE counsel Ya . complained to the regional prosecutor that on DATE an unknown man had called him and asked him to advise the applicant to stop writing complaints abroad and that , if he did not , he would have big problems in prison .

On DATE the prosecution authorities replied to counsel Ya . that the investigation carried out in respect of his allegations had established that the applicant had had no problems in prison .

On DATE and DATE the regional prosecutor interviewed Mr PERSON . , the official of the prison department , PERSON , deputy head of the hospital of remand prison no . CARDINAL/CARDINAL and PERSON . , head of the unit of that hospital and drafted records of those interviews .

PERSON confirmed that on DATE and DATE he had met the applicant to find out his reasons for lodging an application with the ORG and to verify his complaints . He had not asked the applicant to produce any written statements nor had he put any pressure on him .

PERSON and PERSON . submitted that during his stay in the remand prison the applicant had been admitted to the prison hospital on several occasions . Hospital staff had never asked him to produce any written statements retracting his complaints lodged with the ORG .

On DATE the investigator with the prosecutor 's office of LOC of PERSON refused to initiate criminal proceedings in respect of the applicant 's mother 's complaints of threats sent to her address . The decision stated that CARDINAL officers of ORG had interviewed the applicant 's mother in connection with the criminal proceedings initiated in DATE in respect of her other son , Mr NORP ORG , who had fled the investigation . In particular , they had asked her about her son 's whereabouts . The CARDINAL officers had not threatened the applicant or his mother . On DATE the deputy prosecutor of LOC of PERSON quashed the decision of DATE on the ground that it had not been properly substantiated and referred the materials for additional verification .

On DATE , DATE and CARDINAL DATE an official from ORG interviewed officers who had visited the applicant 's mother on DATE . He also interviewed counsel Ya . , PERSON and the applicant 's mother in connection with their complaints of threats directed at the applicant .

It appears from the ORG 's submissions that on CARDINAL DATE the regional prosecutor refused to initiate criminal proceedings in respect of the complaints lodged by the applicant 's mother , counsel PERSON . and PERSON .

The PERSON “ On the conditions of detention of suspects and accused persons ” of DATE ( as amended ) provides that detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and be given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell ( Article CARDINAL ) . It also provides that inmates are entitled to medical assistance ( Article CARDINAL ) . If an inmate 's health deteriorates , the medical officers of the remand prison are obliged to examine him promptly and inform him of the results of the examination in writing . If the inmate requests to be examined by staff of other medical institutions , the administration of the detention facility is to organise such an examination . If the administration refuses , the refusal can be appealed against to a prosecutor or court . If an inmate suffers from a serious disease , the administration of the remand prison is obliged immediately to inform the prosecutor , who can carry out an inquiry into the matter ( Article CARDINAL ) .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Anatoly Kovler;Erik Møse;Mirjana Lazarova Trajkovska

The applicants are mother and son who were born in DATE and DATE respectively and live in LANGUAGE in LOC .

On DATE the applicants’ husband and father Mr GPE died . Before his death Mr PERSON was a recipient of the GPE social benefits .

On DATE the first applicant brought proceedings before the Naro - Fominsk Town Court of LOC ( “ the ORG ” ) against ORG of GPE ( Управление пенсионного фонда РФ по Наро-Фоминскому району ) seeking reassessment of the amount of benefits that she and the second applicant were entitled to after Mr GPE ’s death .

Her claims were rejected by a judgment of ORG , as upheld by ORG ( “ the Regional Court ” ) on DATE .

On an unspecified date at the first applicant ’s request the president of ORG lodged an extraordinary appeal for supervisory review against the above court decisions .

On DATE the Presidium of ORG granted the appeal , quashed the judgment of DATE and the decision of CARDINAL DATE by way of supervisory review and remitted the matter to the first instance for fresh consideration .

On DATE ORG granted the first applicant ’s claims for reassessment and recovery of the benefits . However , on DATE the judgment was set aside on appeal by ORG which required a new hearing .

On DATE ORG granted the first applicant ’s claims against ORG of the GPE ( PERSON социальной защиты населения администрации Наро-Фоминского района ) for recovery of the benefits , awarding her lump - sum compensation amounting to MONEY ( RUB ) and DATE payments in the amount of RUB CARDINAL .

On DATE the above judgment was upheld by ORG on the respondents’ appeal . The appeal court did not recite the reasoning of the grounds of appeal but mentioned that the arguments of the appellant had been considered by the trial court .

In respect of the lump - sum compensation award , the first applicant received the first instalment on DATE and the second instalment on CARDINAL DATE . She has not received the remaining RUB CARDINAL ( MONEY ( ORG ) ) to date .

On DATE the respondent lodged an application for supervisory review on account of allegedly erroneous application of the material law in the judgment of DATE and the appeal decision upholding it .

The applicants were notified that a hearing of the application for supervisory review by the Presidium of ORG was scheduled for DATE .

On DATE the ORG representative appeared in court but was informed that the hearing had been rescheduled to a later date of which he would be notified in due course .

On an unspecified date the applicants received the decision of the Presidium of ORG of DATE to quash by way of supervisory review the impugned judgments for incorrect application of the material law and a failure to subtract a previously received payment from the total amount due . The ORG remitted the matter for fresh consideration to the first instance . The applicants had not been notified of the hearing of DATE and did not appear in it .

On DATE the first applicant brought proceedings for compensation of pecuniary and non - pecuniary damage resulting from the delayed enforcement of the judgment of DATE . Her original claims and damages action were joined in CARDINAL case against the ORG of GPE and ORG of ORG ( ORG социальной защиты населения Московской области ) , where the claimant party was eventually represented by the second applicant who had come of age .

On DATE ORG delivered a new judgment which partially granted the applicant ’s claims for recovery of the benefits but dismissed the damages action .

On DATE ORG upheld on appeal the part of the judgment dismissing the claim for damages and remitted the rest of the judgment for fresh consideration due to erroneous application of the material law .

On DATE ORG again granted the second applicant ’s claims in part awarding him RUB CARDINAL in DATE payments and a lump - sum amount of RUB CARDINAL . According to the Government , this judgment was enforced on DATE , but the applicants submitted that they had received the payment on DATE .

By a final decision of DATE ORG indexlinked the lump - sum amount awarded by the judgment of DATE . This amount was paid to the applicants on DATE .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-1;Violation of Art. 5-2;Violation of Art. 5-4;Violation of P7-1;Non-pecuniary damage -award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

In DATE the applicant was charged with assaulting a certain A.B. On an unknown date criminal proceedings against him were instituted .

NORP In DATE the applicant left GPE for GPE . Before leaving , he informed the court that he could be contacted at a correspondence address in PERSON . He also telephoned the court several times to ask about progress on his case . He was informed that the proceedings had been stayed .

In DATE he started working in GPE , GPE . In DATE his residence registration was extended until DATE and at the same time the applicant was reprimanded by the administrative court for submitting his registration documents late .

Meanwhile , on CARDINAL DATE ORG in GPE remanded the applicant in custody for DATE for failure to comply with a summons .

At TIME the applicant went to a police station in GPE to report that his friend ’s car had been stolen . The police checked his passport , verified his personal details and locked him up in a cell . When he asked for the reasons for his arrest he was told that he was an “ international thief ” . He was subsequently questioned by officers . The applicant submits that during the questioning the officers severely beat him and extinguished cigarettes and matches on his wrist and forearm . He further maintains that he was not given any food or drink for DATE .

On DATE a decision of the NORP police of DATE to expel him from the country was served on him . The decision stated that the applicant had arrived in GPE for private purposes in DATE and held a residence permit , valid until DATE . It further mentioned that on DATE the GPE police received a cable to the effect that the applicant was wanted by the NORP law - enforcement authorities on a charge of theft . On those grounds and in accordance with section CARDINAL of GPE Law “ on ORG ” , it was decided to expel the applicant from GPE with a DATE ban on re - entry .

NORP The applicant was kept at the police station until TIME DATE , when he was transported to the NORP border control post in PERSON , where he arrived at TIME He was arrested there by the NORP police on the basis of the detention order of CARDINAL DATE and a wanted notice issued by the GPE police station on DATE . He was then transferred to ORG in GPE .

At TIME on DATE the applicant was examined by a doctor in an emergency centre for cigarette burns on his left hand and prescribed treatment .

On DATE the applicant was examined by a prison doctor , who stated that the applicant had CARDINAL QUANTITY cigarette burns on his left hand , plus CARDINAL similar marks on his left wrist and CARDINAL on his forearm . He also had abrasions on his upper and lower lip and a broken front tooth .

On DATE the applicant complained to ORG that he had been ill - treated in police custody in GPE on DATE . He submitted that he had been severely beaten by the NORP police . He further claimed that they had stolen MONEY ( ORG ) , MONEY ( ORG ) and CARDINAL NORP hryvnias ( ORG ) from him .

On DATE ORG sent the investigation materials relating to the applicant ’s allegations to ORG .

On DATE the applicant lodged a claim for compensation with ORG against the NORP police . On DATE the court rejected his statement of claim as inadmissible in law for lack of jurisdiction .

By letter of DATE , in reply to the applicant ’s query , ORG stated that they had received no information from ORG .

The applicant submitted that despite several phone calls and queries from him , ORG had not informed him of any progress with the investigation .

The relevant extracts from the LAW provide as follows :

“ Foreigners and stateless persons who are lawfully in GPE enjoy the same rights and freedoms and also bear the same duties as citizens of GPE , with the exceptions established by the LAW , laws or international treaties to which GPE is a party .

Foreigners and stateless persons may be granted asylum under the procedure established by law . ”

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

“ Every person has the right to freedom and personal inviolability .

No one shall be arrested or held in custody other than pursuant to a reasoned court decision and only on grounds and in accordance with a procedure established by law .

In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody .

Everyone who has been arrested or detained shall be informed without delay of the reasons for his or her arrest or detention , apprised of his or her rights , and from the moment of detention shall be given the opportunity to personally defend himself or herself , or to have the legal assistance of defence counsel .

Everyone who has been detained has the right to challenge his or her detention in court at any time .

Relatives of an arrested or detained person shall be informed immediately of his or her arrest or detention . ”

Chapter CARDINAL-a of the Code lays down the procedure for considering complaints by citizens about decisions , acts and omissions of ORG bodies , legal persons and officials in the sphere of administration . In particular , Article DATE from the said chapter of the Code provided , in so far as relevant :

“ Every citizen has the right to apply to court ... with an application , should he consider that a decision , action or inaction on the part of a public authority , legal person or official during the exercise of their administrative functions has violated his rights or freedoms ”

Relevant provision of the LAW provides :

“ CARDINAL . ORG - pecuniary damage caused to an individual or legal person by illegal decisions , activity or inactivity , shall be reimbursed by the person who caused it , if their guilt can be established ... except in the cases established by the second part of this Article ...

ORG - pecuniary damage shall be indemnified irrespective of guilt :

CARDINAL ) NORP if damage to a physical person has resulted from his or her illegal imprisonment ... ”

The relevant provisions of the LAW read as follows :

Article CARDINAL

Role of the administrative justice system

“ CARDINAL . The role of the administrative justice system is the protection of the rights , freedoms and interests of physical persons , and the rights and interests of legal entities in the field of public - law relations , from violations by public authorities ...

Any decisions , actions or inaction on the part of public authorities can be appealed against in administrative courts , except for cases in which the LAW and laws of GPE foresee a different procedure of judicial appeal against such decisions , actions or inactivity ... ”

Article CARDINAL

Competence of the administrative courts in deciding administrative cases

“ CARDINAL . The competence of the administrative courts shall cover :

CARDINAL ) NORP disputes between public authorities ...

CARDINAL ) NORP disputes following an application by a public authority in situations set out in the law ...

NORP The competence of the administrative courts shall not cover public law cases :

that shall be decided under the criminal justice procedure ... ”

Article CARDINAL of the LAW provides that the court , prosecutor or investigator shall , within their competencies , institute criminal proceedings in every case where signs of a crime have been discovered , take all necessary measures prescribed by law to ascertain whether a crime has been committed and identify and punish the offenders .

The relevant provisions of LAW provided :

“ ORG Office of GPE is an integral system , which according to LAW and the present PERSON is entrusted with the following functions :

... ( CARDINAL ) NORP supervision over the observance of laws in the course of enforcement of judgments in criminal matters , as well as in the course of application of other compulsory measures connected with restriction of personal liberty of citizens . ”

“ The public prosecutor examines applications and complaints of violation of rights of individuals and legal entities , except for those complaints which are within the competence of the court .

A decision taken by the public prosecutor can be appealed against before a higher public prosecutor or a court . ”

“ The matters subject to the public prosecutor ’s supervision are ... the compliance with the regulations ... on conditions of detention or those for serving prison sentences by persons in such institutions and on the protection of their rights ...

A public prosecutor exercising such supervision shall be empowered :

( CARDINAL ) to visit places of detention , pre - trial detention facilities , institutions in which convicted persons serve their sentences , at any time ...

( CARDINAL ) ... to request the officials to give explanations as regards violations which have occurred ... ”

Section CARDINAL of the LAW provides :

“ Foreigners and stateless persons who have committed a crime or misdemeanour , after serving their sentence or after the administrative sanction imposed on them has been enforced , may be expelled from GPE . A decision on expulsion from GPE after serving their sentence or the enforcement of the administrative sanction shall be taken by the police department at the person ’s place of temporary residence with notification within TIME by the prosecutor of the reasons for that decision . The decision of the police department on expulsion of foreigners and stateless persons from GPE may be accompanied by a prohibition on further entry into GPE for DATE . The time - limit for a ban on further entry into GPE is calculated from the date of this decision . The procedure for enforcement of the decision on the ban on further entry into GPE shall be set forth in the legislation of GPE .

Apart from the situations specified in part CARDINAL of this article , foreigners and stateless persons may be expelled from GPE by a decision of the police , State border guard ( relating to persons detained within controlled border areas , during or after an illegal crossing of the border of GPE ) or ORG of GPE and further notification within TIME by the prosecutor of the reasons for that decision , if the actions of foreigners and stateless persons have grossly violated the law on the status of foreigners and stateless persons , or are contrary to the interests of GPE ’s security or public order , or when necessary for public health considerations or for protection of rights and lawful interests of citizens of GPE .

Foreigners and stateless persons must leave the territory of GPE within the period stated in the decision on expulsion . If the decision on expulsion of a foreigner or stateless person from GPE is taken , the visa in his passport shall immediately be cancelled and the person ’s residence permits withdrawn .

Foreigners and stateless persons may be given up to DATE to leave GPE after the adoption of the relevant decision .

With the approval of the prosecutor , foreigners and stateless persons may be arrested and subjected to administrative forced expulsion by the police or the State border guard , if such persons fail to leave after the decision on expulsion , or if there are reasonable grounds to believe that they will not leave .

Foreigners and stateless persons detained for being in GPE illegally ( in violation of a ban on entry to GPE , in the absence of grounds set forth in laws and international treaties of GPE on presence in GPE ( transit through its territory ) , including stays with a visa ( permit ) or passport which belongs to another person , which is counterfeit or damaged or which does not meet the established standards ) shall be placed in a temporary detention centre for foreigners and stateless persons who are in GPE illegally , with internal regulations for the period required for the preparation of their forced deportation from GPE , but for no longer than DATE .

A standard regulation on temporary detention centre for foreigners and stateless persons who are illegally staying in GPE shall be approved by ORG .

The decision of the police , the State border guard or ORG of GPE on deportation of a foreigner or stateless person from GPE may be appealed against to the court . The appeal suspends the decision on expulsion , unless immediate expulsion is required in the interests of GPE ’s security or protection of public order .

Expulsion of foreigners and stateless persons who are detained within controlled border areas during or after illegally crossing the border of GPE shall be carried out by the State border guard and in other cases by the police . Monitoring of correct and timely execution of decisions on expulsion shall be performed by the body that adopted the decision .

Foreigners and stateless persons that are subject to deportation shall reimburse the costs of their deportation under the procedure established by law . If these foreigners and stateless persons have no means to cover costs associated with their expulsion from GPE , expulsion shall be carried out at the ORG ’s expense .

Individuals or entities who have invited or received these foreigners and stateless persons , arranged for their illegal entry , residence or employment or assisted them to remain in GPE after the expiry of their term of stay , shall reimburse , under the procedure established by law , the costs incurred by the ORG when deporting the said foreigners and stateless persons . ”

Article CARDINAL of the Agreement provides :

“ Materials for prosecution shall be submitted by the regional prosecutor ’s offices [ of GPE ] and PERSON prosecutor ’s offices [ of GPE ] to address of those Voivodeship ( regional ) prosecutor ’s offices of the requested ORG , whose jurisdiction covers the territory in which the suspects or accused persons reside permanently . ”


András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

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

On DATE the authorities adopted a new local construction plan ( imar şuyulandırması ) and decided to merge plots nos . CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE and to register them as plot no . DATE in the GPE neighbourhood in the GPE district of GPE . Previously the applicants’ predecessors had been the owners of plot no . CARDINAL . Following the implementation of the said plan , the applicants’ predecessors had kept a share measuring QUANTITY on plot no . CARDINAL ( which measures QUANTITY in total ) , and owned a CARDINAL - storey house on the plot in question . Given that the aforementioned decision designated plot no . CARDINAL as a school area and indicated that the buildings on this plot would be expropriated , the applicants’ predecessor , Mr PERSON , moved out of his house in DATE .

NORP In a letter dated DATE the deputy director of ORG attached to ORG ( hereinafter “ the ORG ” ) sent a letter to the ORG predecessors , informing them that their building would be expropriated since the ORG was planning to build a primary school on the land on which it was situated . The ORG also noted that a commission would proceed to the determination of the value of the applicants’ building and its annexes .

Subsequently , the ORG built the school . However , the ORG did not conclude the expropriation proceedings for the applicants’ building , which remained in the schoolyard .

On DATE the ORG predecessor filed a petition with the ORG requesting the return of his plot of land , which had been occupied since the decision of expropriation in DATE and the construction of the school . He noted that despite the expropriation decision , the authorities had done nothing despite continuing to occupy his plot of land and that this situation had restricted his right to the enjoyment of his property . He therefore asked the authorities to overturn the decision ordering expropriation . It is unknown whether the ORG replied to the petition .

In DATE , after inheriting the property in question , the applicants brought an action seeking a declaratory judgment ( tespit davası ) before ORG to the effect that their building was situated in the schoolyard . ORG appointed an expert , who found that the building in question was indeed situated in the zone belonging to ORG .

The applicants brought an action before ORG of First Instance against ORG for compensation . They submitted , inter alia , that the ORG was in actual possession of their property , without having conducted expropriation proceedings , and had failed to compensate them for the damage resulting from the interference with their property .

NORP In a letter dated DATE the ORG informed ORG of First Instance that the LOC was situated in block no . CARDINAL , plot no . CARDINAL , and that the applicants owned a share of that plot measuring CARDINAL out of a total of QUANTITY . It noted further that , in the local building and settlement plan , plot no . CARDINAL had been designated as a primary school zone and that the building and share of the land of the applicants had not been expropriated .

ORG of First Instance appointed an expert , who conducted an on - site inspection . According to his report of DATE , the building in question was situated in the schoolyard .

On DATE the First ORG partially granted the ORG request for compensation and ordered ORG office to pay the applicants MONEY ( TRL ) . Relying particularly on the annotations in the land registry and the response given by the ORG as well as other evidence contained in the file , the court found it established that the administrative authorities were in actual possession of the applicants’ property .

On DATE ORG quashed the judgment of DATE , considering that the GPE Governor ’s office could not be considered to have been in actual possession of the applicants’ building , since the administrative authorities had not prevented the applicants from using the building in question . ORG further noted that the fact that the building was in the schoolyard did not necessarily mean that there had been a de facto expropriation , and concluded that the applicants’ request should be dismissed . The case was remitted to ORG .

On DATE the First Instance Court abided by ORG decision and dismissed the ORG request . In its decision , the court noted that the school building and the building belonging to the applicants were both on plot no . DATE , which was used by the applicants themselves . The court therefore found that there had not been a de facto expropriation even though plot no . CARDINAL had been allocated to the primary school in the local building and settlement plan ( imar planı ) .

On DATE ORG upheld the judgment of CARDINAL DATE .

On an unspecified date the applicants requested the rectification of ORG decision of DATE , claiming that there were clerical errors as well as errors of law in the decision .

On DATE ORG granted the applicants’ request and decided to rectify the clerical errors .

In their observations , the applicants submitted that following the communication of the present to the ORG , the authorities had brought road blocks to the school yard with a view to delimiting the school yard from the applicants’ house . In this connection the applicants furnished photos taken on DATE .

NORP In a letter dated DATE , furnished by the Government , the mayor of the neighbourhood ( muhtar ) stated that there were currently a number of tenants living in the applicants’ house situated in the yard of the LOC primary school .

According to section CARDINAL of the Expropriation Law no . ORG , as amended in DATE , when an expropriation decision was taken in respect of an immovable property , the administrative authorities shall inform the relevant land registry office for annotation of the said decision in the register . However , if the authority fails to furnish the land registry office , within DATE of the annotation , with a document to be obtained from a court indicating that it had determined the price and requested the registration of the immovable property , the land registry office shall automatically remove the annotation .

Article CARDINAL § CARDINAL of the LAW stipulates that the administrative authorities shall be liable to compensate for damage resulting from their actions and acts . LAW no . CARDINAL on administrative procedure provides that any person who has suffered damage as a result of an act committed by the administrative authorities may request compensation from them . In the event of complete or partial rejection of a compensation request , or if no reply has been received within a time - limit of DATE , the person involved may initiate administrative proceedings .