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

The applicant was born in DATE and lives in GPE , GPE .

On an unknown date in DATE the applicant ’s husband lodged a petition for divorce with the ORG ( PERSON ) . The applicant did not agree to a divorce and asked the court to dismiss the petition .

On DATE the court made an interim periodical payments order requiring the applicant ’s husband to pay MONEY ( ORG ) for maintenance in respect of their CARDINAL children pending the proceedings .

On DATE the ORG granted a decree of divorce . The court held that the marital breakdown was irretrievable and that both spouses had been at fault in respect of the breakdown of their marriage . It ordered that a final court fee ( “ wpis ostateczny ” ) of FAC CARDINAL,CARDINAL should be borne by the parties in equal shares ( ORG CARDINAL,CARDINAL each ) .

On DATE the applicant appealed against the divorce decree . She contested the findings made by ORG in respect of the breakdown of the marriage and her being responsible for the marital breakdown . She also asked the court to rule that adultery on the part of her husband had been the main reason why their marriage had ended .

On DATE the court ordered the applicant to pay a court fee of ORG CARDINAL for lodging the appeal .

On DATE the applicant made an application for an exemption from that fee . She argued , in particular , that a court fee for lodging an appeal constituted in fact an interim court fee ( “ wpis tymczasowy ” ) and that it should be estimated pursuant to section CARDINAL of the Ordinance of the Minister of Justice of DATE on ORG Fees in Civil Cases ( ORG w sprawie określenia wysokości wpisów w sprawach cywilnych ) . It could not , therefore , exceed the maximum interim court fee in divorce proceedings , which was ORG CARDINAL . The applicant further submitted that she was in a difficult financial situation and that she was not able to pay the fee in question . She also stressed that the sum required from her was unusually high and out of any proportion to her standard of living .

On DATE the ORG dismissed the application , considering that the applicant had “ not shown that her financial situation made it impossible for her to pay the fee ” . It held that she had not supplied a detailed statement concerning her financial situation .

On DATE the applicant lodged an interlocutory appeal against that decision . She maintained that she had already submitted a declaration of means , pursuant to LAW . ORG ( Sąd Apelacyjny ) dismissed that appeal on DATE . That decision did not contain any reasons .

On DATE the ORG ordered the applicant to pay , within DATE , a court fee of PLN MONEY for lodging the appeal of DATE , on pain of it being rejected .

On DATE the applicant lodged the second application for an exemption from court fees . She submitted that , given her financial means , she could pay only a sum not exceeding ORG CARDINAL,CARDINAL . The applicant argued that she was not employed and that her only means were payments for her share in marital property received from her husband . She further maintained that she had not put money aside for the litigation since she had not expected the court fee to be so high . The applicant also stressed that the case was relatively simple but that important issues were at stake for her in the proceedings because they related to her civil status . Moreover , she pointed out that in other , more complex proceedings ( concerning the marital property division ) the ORG levied a moderate court fee of ORG MONEY on each party .

On DATE the ORG dismissed the application for a partial exemption from court fees and rejected the appeal against the divorce decree of DATE for non - compliance with the court ’s decision ordering the applicant to pay the court fee for lodging that appeal . The court held that the applicant had failed to indicate whether paying the full amount of court fees would entail a substantial reduction in her standard of living .

On DATE the applicant lodged an interlocutory appeal against that decision . On DATE the ORG dismissed the appeal . It held that the applicant ’s financial situation was good since she had already received PLN MONEY from her husband on the basis of a lump sum order made in the proceedings concerning the division of their marital property , and that she would receive more payments .

On DATE the applicant lodged a cassation appeal with ORG against that decision . She repeated the arguments raised in her earlier applications .

On DATE the ORG ordered the applicant to pay a court fee of ORG for lodging the cassation appeal .

On DATE the applicant made an application for a partial exemption from court fees in the cassation proceedings . She submitted that she was able to pay the court fees not exceeding ORG CARDINAL,CARDINAL . She further maintained that her financial situation was difficult because she was not employed and her only asset was the lump sum received from her husband ; that sum , however , had to be disbursed not only for her needs but also for maintenance of her CARDINAL minor children who lived with her .

On DATE the ORG dismissed the application . The decision did not contain any reasons .

NORP The applicant did not pay the fee of PLN CARDINAL,CARDINAL . As a consequence , on DATE , ORG rejected her cassation appeal on formal grounds .

On DATE the applicant lodged an interlocutory appeal against that decision . On DATE the ORG ordered the applicant to pay a court fee of ORG for lodging the interlocutory appeal .

On DATE the applicant made another application for an exemption from court fees in the interlocutory appeal proceedings . On DATE the court again ordered her to pay a court fee of ORG CARDINAL .

On DATE the ORG dismissed her application for an exemption from court fees in the interlocutory appeal proceedings . That decision was upheld on appeal on DATE .

NORP The legal provisions applicable at the material time and questions of practice are set out in paragraphs CARDINAL of the judgment delivered by ORG on DATE in the case of PERSON v. GPE ( appl . no . CARDINAL/CARDINAL , ORG CARDINAL-VI ; see also PERSON and GPE v. GPE , no . CARDINAL/CARDINAL ) , § § CARDINAL - CARDINAL ) .

NORP law provides however , for special regulations with respect to divorce proceedings . A petitioner is obliged to pay an interim court fee at the time of lodging a divorce petition with a court . Subsequently , the court levies a final court fee in a divorce decree .

Section CARDINAL of the Law of DATE on Court Fees in Civil Cases ( PERSON o kosztach sądowych w sprawach cywilnych ) ( as amended ) states , in so far as relevant :

“ CARDINAL . In cases concerning non - pecuniary rights and in cases where it is impossible to establish the value of a claim at the time of lodging a statement of claim with a court , the president of the court shall order the party concerned to pay an interim court fee ( wpis tymczasowy ) for lodging his pleading .

The court levies a final court fee ( wpis ostateczny ... ”

Paragraph CARDINAL(CARDINAL ) of the Ordinance of the Minister of Justice of DATE , reads :

“ An interim court fee for lodging a divorce petition shall range from ORG CARDINAL to PLN CARDINAL . ”


Preliminary objection dismissed (victim);Violation of Art. 8;Violation of P1-1;Not necessary to examine Art. 14+8 or 14+P1-1;State must introduce remedy within three months;Pecuniary and non-pecuniary damage - reserved;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national of NORP - Cypriot origin , who was born in DATE and lives in GPE .

The applicant owns property in the area of ORG ( FAC ) , in the fenced - up area of GPE , that she acquired by way of a gift from her mother . In particular , she owns CARDINAL a share in a plot of land ( plot no . CARDINAL , sheet / plan CARDINAL/CARDINAL ) with buildings thereon , consisting of CARDINAL shop , CARDINAL flat and QUANTITY houses . CARDINAL of the houses was her home , where she lived with her husband and children , whereas the rest of the property was used by members of the family and/or rented out to third parties . Furthermore , the applicant partly owns a plot of land ( plot no . CARDINAL , sheet / plan CARDINAL ) with an orchard ( her share being equivalent to CARDINAL ) . This was registered in her name on DATE . The rest of the property is owned by other members of her family .

In DATE she was forced by the NORP military forces to leave GPE with her family and abandon their home , property and possessions . Since then she has been prevented from having access to , using and enjoying her home and property , which are under the occupation and the control of the NORP military forces . According to the applicant , only the NORP military forces have access to the fenced - up area of GPE .

On DATE new measures were adopted by the authorities of the “ GPE ” ( “ GPE ” ) regarding crossings from northern to southern GPE and vice versa through specified checkpoints . On DATE the “ ORG of the GPE ” enacted “ PERSON no . NORP ” on compensation for immovable properties located within the boundaries of the “ GPE ” , which entered into force on DATE . On DATE , under LAW ” , an “ Immovable Property , Determination , Evaluation and Compensation Commission ” was established in the “ TRNC ” . The rules of the commission were published in the “ ORG Official Gazette ” on DATE and the commission was constituted by a decision of the “ ORG ” published in the aforementioned gazette on DATE .

On DATE CARDINAL separate referendums were held simultaneously in GPE on ORG ( “ LAW ” ) which had been finalised on DATE . Since the plan was approved in the NORP - NORP referendum but not in the NORP - Cypriot referendum , ORG did not enter into force .


Violation of Art. 8 (in case of expulsion);Violation of Art. 13;Violation of Art. 5-1;Violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award

Georgieva;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

PERSON left GPE in DATE , allegedly to flee from religious persecution . For a short time he remained in GPE and in GPE , and DATE arrived in GPE . Initially he sought asylum . However , after he married PERSON on DATE , he withdrew his asylum claim and was granted a temporary residence permit on the strength of his marriage . In DATE he was granted a permanent residence permit . He learned NORP and started a small business , distributing electronic devices . He has not travelled out of GPE since he first arrived there and has never been charged with any offence .

On DATE the head of ORG made an order for PERSON expulsion . He also barred him from entering or residing in GPE for a period of DATE , “ in view of the reasons set out in proposal no . MCARDINAL/CARDINAL.CARDINAL.CARDINAL and the fact that his presence in the country present[ed ] a serious threat to national security ” . The order relied on section QUANTITY of the DATE LAW . No factual grounds were given , in accordance with LAW CARDINAL(CARDINAL ) of the LAW . The order further provided that the first applicant was to be detained until it could be enforced , in line with section CARDINAL ) of the LAW . Finally , it stated that it was subject to appeal to the Minister of ORG , but not subject to judicial review , in keeping with section CARDINAL(CARDINAL)(CARDINAL ) of the LAW , and that it was immediately enforceable , in accordance with section CARDINAL(CARDINAL)(CARDINAL ) of the LAW ( see paragraphs CARDINAL , DATE and CARDINAL below ) .

Mr Raza was not served a copy of the order and learnt about it on DATE , after being placed in detention ( see paragraph CARDINAL below ) .

On DATE the head of ORG issued an order under section CARDINAL(CARDINAL ) and ( CARDINAL) of the DATE LAW ( see paragraphs CARDINAL and CARDINAL below ) to place Mr Raza in a special detention facility pending enforcement of the expulsion order . The order relied on the need to have him sent back to his country of origin . It said that it was subject to appeal before the Minister of ORG and to judicial review by ORG . PERSON was arrested on DATE .

After it was found that PERSON did not have a valid passport , on DATE ORG requested the consular department of ORG to contact the closest embassy of GPE – the one in GPE , GPE DATE with a view to obtaining a passport or other travel documents . Further requests were made on DATE , CARDINAL DATE and DATE , without success . It is unclear whether the consular department of ORG forwarded those requests to the NORP embassy .

On DATE the detention facility where Mr Raza was being kept was closed down and he was transferred to another facility .

On DATE PERSON applied for release . On DATE the head of ORG turned down his request .

On DATE the head of ORG decided to release PERSON . He also stayed the enforcement of the order for his expulsion , citing technical difficulties , and placed him under an obligation to report DATE to his local police station .

On DATE Mr PERSON asked the head of ORG to reconsider the order for his expulsion . On DATE his request was turned down , on the ground that the order was final .

Mr Raza is currently awaiting expulsion , which is apparently being blocked solely by the fact that he does not have the necessary documents to reenter GPE .

On DATE Mr Raza appealed to the Minister of ORG against the order for his expulsion ( see paragraph CARDINAL above ) . He argued that it was unlawful , because he resided legally in GPE , lived with his wife and had never committed any offence . On DATE the Minister rejected the appeal , saying that there existed information that Mr Raza had been involved in human trafficking . He went on to specify that in cases of expulsion on national security or public order grounds it was not open to the administrative authorities to take into account extraneous considerations ; if the necessary prerequisites were in place , the authorities were bound to take the measure in question .

On an unspecified date in DATE PERSON sought judicial review of the expulsion order by ORG . He additionally asked the court to stay the order ’s enforcement . He asserted , inter alia , that he had been married to a NORP national for DATE and had never engaged in any unlawful activities . He also pointed out that he had never been served a copy of the order for his expulsion and was not aware of the grounds for such a measure . He asked the court to request the immigration authorities to produce the materials which had led to the order .

In a decision of DATE the court found the application admissible , holding that the bar to judicial review set out in section PERSON ) of the DATE LAW ( see paragraph CARDINAL below ) was contrary to the Convention and was thus to be disregarded . It relied on this ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) . It turned down the request for a stay of the order ’s enforcement , observing that its immediate enforcement was mandated by statute – section CARDINAL(CARDINAL)(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) . In those circumstances , the courts were not competent to stay the enforcement , as this would amount to a judicial revision of a statute . In any event , PERSON had not put forward any arguments capable of persuading the court that the order should be stayed .

Mr Raza did not appeal against the court ’s refusal to stay the enforcement of the expulsion order .

NORP The court held a nonpublic hearing on CARDINAL DATE . It admitted in evidence the administrative case file with the materials leading to the expulsion order , allowed PERSON to inspect them , and gave him leave to adduce evidence in support of his allegations .

In view of amendments to the DATE LAW making expulsion orders subject to review by ORG ( see paragraph CARDINAL below ) , on DATE ORG transferred the case to ORG .

ORG heard the case on DATE . PERSON , who was legally represented , did not adduce evidence . He argued that the order was unlawful , as it did not specify the grounds for expelling him , and said that he would develop his arguments in pleadings that he would file later . Counsel for the authorities argued that the order was well - founded , as could be seen from the adduced evidence . The public prosecutor , who took part in the proceedings ex officio , argued that since the law specifically provided that no reasons were to be given for expulsion orders , the court was not competent to review the substantive lawfulness of the order , but only whether the procedure had been followed .

NORP In a final judgment of DATE ORG dismissed PERSON application . According to the applicants , apart from a short declaration that PERSON expulsion would not breach LAW , the court did not engage in any analysis of the proportionality of that measure . Nor did it scrutinise the facts underlying the decision to expel PERSON , or have before it the full text of the proposal for his expulsion , but merely a short excerpt from it , drawn up by the authorities specifically for the purposes of the judicial review proceedings .

The applicants were not able to provide a copy of ORG judgment because the case is classified and neither they nor their counsel are allowed to make copies of any of the materials in the case file , including that judgment . Despite a specific request by ORG , the Government did not provide a copy of that judgment either , or specify what materials ORG had had before it when making it ( see paragraph CARDINAL above ) .

On an unspecified date in DATE PERSON sought judicial review of the order for his placement in a detention facility ( see paragraph CARDINAL above ) . On CARDINAL DATE ORG allowed his application and quashed the order . It found that the order was subject to review despite the express wording of section CARDINAL(CARDINAL ) of the DATE LAW ( see paragraph CARDINAL below ) because that provision was contrary to LAW . It also found that it had been made by a competent authority and in line with the applicable legal provisions . However , it went on to say that PERSON detention for such a long period had become unjustified , the authorities having been unable to deport him for DATE . There was no indication that the immigration authorities had taken any measures in that respect except asking for the cooperation of ORG .

Following an appeal by ORG , on DATE ( реш. № DATE от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , III о. ) ORG annulled that judgment and discontinued the proceedings . It held that the order for PERSON placement in a detention facility was subordinate to the order for his expulsion and had been made within the framework of the expulsion proceedings , for the sole reason that the expulsion could not be carried out forthwith . It was therefore not subject to judicial review by itself .

On DATE the applicants sought judicial review of the decision of CARDINAL DATE turning down PERSON application for release ( see paragraph CARDINAL above ) . On DATE ORG declared PERSON application inadmissible , because she was not directly affected by the order , but found PERSON application admissible and wellfounded . It noted that the immigration authorities had sent CARDINAL letters to the consular department of ORG with requests for assistance in the process of securing a travel document for PERSON , but that no reply had been received . It went on to say that , in view of the difficulties in carrying out the expulsion , the authorities should have reconsidered whether or not Mr PERSON ’s detention continued to be justified . In situations where they had discretion , the authorities had to assess whether or not the impugned measures interfered disproportionately with the individual ’s rights and , whenever possible , opt for the option that was less onerous for the individual , in line with the principle of proportionality . The exercise of such discretion was subject to judicial review . Instead of keeping PERSON in custody , the authorities could have placed him under an obligation to report DATE to his local police station . In choosing between those alternatives , they had to take account of the length of the detention . If it exceeded DATE , it became an arbitrary deprivation of liberty , contrary to LAW ( f ) of the LAW . The inordinate amount of time spent by PERSON in custody , owing to the lack of effective measures for his expulsion , had negated the lawfulness of his deprivation of liberty . As the authorities had not taken those matters into account , they had made an unlawful decision . The court therefore quashed the refusal to release PERSON PERSON and instructed the authorities to reconsider the matter in line with its reasoning .

NORP The Director of ORG appealed . On DATE ORG declared the appeal inadmissible ( опр. № DATE от CARDINAL май DATE г. по адм. д. № CARDINAL CARDINAL г. , PERSON , ORG ) . It held that the Director did not have standing to appeal , as the proceedings before the lower court had unfolded between the applicants and the immigration authorities . Moreover , since PERSON had meanwhile been released ( see paragraph CARDINAL above ) , the issues raised in the appeal were no longer relevant .

Article CARDINAL § CARDINAL of the DATE LAW provides that aliens who are lawfully resident in the country can not be expelled from it except under conditions and in a manner prescribed by law .

Section CARDINAL(CARDINAL ) of the DATE LAW provides that an alien must be expelled when his or her presence in the country creates a serious threat to national security or public order . Under section ORG ) , expulsion must be accompanied by withdrawal of the alien ’s residence permit and the imposition of a ban on entering the country . Expulsion orders are immediately enforceable ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) .

If deportation can not be effected immediately or needs to be postponed for legal or technical reasons , the enforcement of the expulsion order may be stayed until the relevant obstacles have been overcome ( section CARDINALb(CARDINAL ) ) .

Section CARDINAL(CARDINAL ) , as in force until DATE , provided that orders for the expulsion of aliens on national security grounds were not subject to judicial review . Under section CARDINAL(CARDINAL ) , those orders do not indicate the factual grounds for imposing the measure .

Following this ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) , in which it found the above provisions contrary to LAW , ORG changed its caselaw . In a number of judgments and decisions delivered in DATE it held , by reference to PERSON , that the ban on judicial review in section PERSON ) was to be disregarded as it contravened the ORG , and that expulsion orders relying on national security considerations were amenable to judicial review ( реш. № CARDINAL от CARDINAL май DATE по адм. д. № DATE г. ; реш. № CARDINAL от CARDINAL май DATE г. по адм. д. № DATE г. ; опр. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. ; опр. № DATE от CARDINAL май DATE г. по адм. д. № DATE г. ; опр. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. ; опр. № CARDINAL от DATE по адм. д. № DATE г. ; опр. № CARDINAL от DATE по адм. д. № DATE г. ; опр. № DATE от CARDINAL май DATE г. по адм. д. № DATE г. ; опр. № DATE от DATE г. по адм. д. № DATE г. ) .

NORP In DATE section CARDINAL(CARDINAL ) was amended and at present provides that expulsion orders may be challenged before ORG , whose judgment is final .

In DATE the Act underwent a reshuffle intended to bring it into line with the requirements of Directive CARDINAL of ORG and of ORG on common standards and procedures in Member GPE for returning illegally staying thirdcountry nationals . The new version of section CARDINAL(CARDINAL ) provides that when ordering expulsion or similar measures the authorities must take into account the length of time an alien has remained in GPE , his or her family status , and the existence of any family , cultural and social ties with the country of origin . It is not yet clear whether those factors should also be considered upon the expulsion of an individual on national security grounds .

Section CARDINAL(CARDINAL ) of the DATE Act provides that if there are impediments to a deportee ’s leaving GPE or entering the destination country , he or she is placed under an obligation to report DATE to his or her local police station .

Under CARDINAL ) , as in force until DATE , aliens could , if necessary , be placed in special detention facilities pending the removal of the obstacles to their deportation . In the reform of DATE ( see paragraph CARDINAL above ) that provision was amended to provide that detention was possible if an alien ’s identity was unknown , if he or she hindered the enforcement of the expulsion order , or if he or she presented a risk of absconding .

Under section CARDINAL(CARDINAL ) ( after DATE section CARDINAL ) ) , deportees are placed in detention facilities pursuant to special orders , which have to specify the need for such placement and its legal grounds and be accompanied by copies of the orders under section CARDINAL ) .

NORP Under the new section CARDINAL(CARDINAL ) , also added in DATE , detention may be maintained as long as the conditions laid down in subsection CARDINAL are in place , but not longer than DATE . Exceptionally , if a deportee refuses to cooperate with the authorities , or there are delays in the obtaining of the necessary travel documents , or the deportee presents a national security or public order risk , detention may be prolonged for a further DATE .

Under section CARDINAL ) , as in force at the material time , as a rule , orders under the LAW were subject to appeal before the higher administrative authority and to judicial review . While in its earlier caselaw ORG consistently found that placement orders under section CARDINAL ) and ( CARDINAL) were amenable to judicial review ( реш. № CARDINAL от CARDINAL март DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № CARDINAL от CARDINAL февруари DATE г. по адм. д. № DATE г. , PERSON , V о. ; MONEY CARDINAL от CARDINAL май DATE г. по адм. д. № CARDINAL/CARDINAL г. , ORG , V о. ; реш. № DATE от CARDINAL декември DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , V о. ; реш. № DATE от CARDINAL октомври DATE г. на ORG по адм. д. № DATE г. , ORG ; реш. № DATE от CARDINAL декември DATE г. по адм. д. № DATE г. , PERSON , ORG ; реш. № DATE от CARDINAL ноември DATE г. по адм. д. № DATE г. , PERSON , ORG ; реш. № DATE от DATE г. по адм. д. № DATE г. , PERSON , ORG ) , in a couple of judgments given at about the same time as that in PERSON case it ruled that such orders were not subject to judicial review because they were subordinate to the expulsion orders ( реш. № DATE от CARDINAL юли DATE г. по адм. д. № DATE г. , PERSON , ORG , реш. № CARDINAL от DATE г. по адм. д. № DATE г. , PERSON , III о. ) . In view of those discrepancies , ORG asked ORG of that court to issue an interpretative decision on the question . However , in view of intervening legislative changes which settled the matter ( see paragraph CARDINAL below ) , on DATE ORG decided not to issue such a decision ( опр. № CARDINAL от CARDINAL юли DATE г. по т. д. № CARDINAL/CARDINAL ) .

In the reform of DATE ( see paragraph CARDINAL above ) a new section LOC was added , making special provision for judicial review of orders for the detention of deportees . Deportees may now seek judicial review of such orders by the competent administrative court within DATE of them being issued ( subsection CARDINAL ) . The application for judicial review does not stay their enforcement ( ibid . ) . The court must examine the application at a public hearing and rule , by means of a final judgment , not DATE after the proceedings were instituted ( subsection CARDINAL ) . In addition , DATE the head of any facility where deportees are being detained must present to the court a list of all individuals who have remained there for DATE due to problems with their removal from the country ( subsection CARDINAL ) . The court must then rule , on its own motion and by means of a final decision , on their continued detention or release ( subsection CARDINAL ) . When the court sets aside the detention order , or orders a deportee ’s release , he or she must be set free immediately ( subsection CARDINAL ) . ORG is already applying those provisions ( опр. № CARDINAL от CARDINAL юни DATE г. по адм. д. № DATE г. , PERSON , ORG , опр. № DATE от CARDINAL септември DATE г. по адм. д. № DATE г. , PERSON , ORG )


CASE OF KRCMAR AND OTHERS v. THE CZECH REPUBLIC

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

The applicants are successors in title to “ ORG NORP ” , a company in GPE ( “ the Company ” ) which belonged to members of their family until it was nationalised by the former communist regime .

Pursuant to LAW ( CARDINAL ) of Presidential Decree no . CARDINAL/CARDINAL ( dekret presidenta republiky ) ( “ the Decree ” ) , which entered into force on DATE , companies producing margarine which had CARDINAL employeesCARDINAL were nationalised as from that date . The former Minister of Food ( ministr výživy ) was authorised to declare , with reference to LAW , which companies had been nationalised , as recorded in ORG ( PERSON list ) . On DATE Act no . CARDINAL/CARDINAL , which amended the Decree , was published in ORG ( NORP zákonů a nařízení ) . According to this LAW , all enterprises nationalised before CARDINAL DATE , pursuant to LAW , were considered nationalised as from DATE . The Act did not specify the number of employees in the nationalised enterprises .

By Decree ( vyhláška ) no . CARDINAL of DATE , published in ORG , the former Minister of Food declared the ORG nationalised . The nationalisation procedure was closed by an order ( výměr ) of the former Minister of Food on DATE which determined the final extent of the nationalisation . The order was based on section GPE no . CARDINAL/CARDINAL .

On DATE the Company was transformed into PERSON . ( akciová společnost ) with the PERCENT property participation of the ORG . On DATE ORG , a foreign company , concluded a purchase contract with ORG ( Fond národního majetku ) , and on DATE ORG approved a privatisation plan ( privatizační projekt ) to sell ORG .

NORP In DATE , pursuant to LAW no . CARDINAL/CARDINAL ( zákon o mimosoudních rehabilitacích ) ( “ LAW ” ) and ORG Property to Other Persons Act no . CARDINAL ( zákon o převodu majetku státu na jiné osoby ) ( “ the LAW ” ) , the applicants commenced an action for restitution of the Company against ORG and its LAW ( PERSON pro správu národního majetku a jeho privatizaci ) . They claimed that they were NORP nationals and successors in title to the original owners of the Company and , therefore , persons entitled to restitution under section CARDINAL(CARDINAL)(c ) of LAW . They also claimed that the Company had been nationalised in a way which violated generally recognised human rights and freedoms within the meaning of section CARDINAL(CARDINAL ) of the LAW . They further submitted that the LAW had been wrongly applied to their family ’s Company because the nationalisation conditions laid down in the Decree , in particular the condition that the company should have CARDINAL employees , were not satisfied . The applicants argued that the Company had therefore been nationalised pursuant to Act no . CARDINAL/CARDINAL , that is after DATE , the decisive date for restitution under LAW .

On DATE the GPE CARDINAL ORG ( obvodní soud ) found against the applicants . The court held that ownership of the applicants’ property had passed to the ORG by the ministerial decree of CARDINAL DATE , i.e. before the decisive date of CARDINAL DATE specified in LAW . Accordingly , this LAW as well as LAW did not apply to the applicants’ case . The court noted that the order of ORG DATE had only a declaratory character . It stated that the fact that the Decree had been applied to the applicants’ property contra legem , as the ORG had CARDINAL employees , could not influence its finding as to the decisive date of the nationalisation . The court considered in this regard certain documentary evidence , in particular a statement from the former owners of the Company , made in response to a request from the former ORG ( PERSON výživy ) , dated DATE , that the average number of employees DATE and DATE was CARDINAL , and heard the husband of the fourth applicant ( who died before the end of the restitution proceedings on DATE ) . He stated , inter alia , that the trade union council ( závodní rada ) had wrongly calculated the number of employees , having erroneously determined the ratio of administrative staff to workers : according to the trade union council ’s calculation , there had been CARDINAL administrative staff members per CARDINAL worker .

The applicants appealed to ORG ( městský soud ) . On DATE the court dismissed their appeal stating that the Company had been nationalised under the Decree on the day of its entry into force , i.e. DATE . On DATE ORG ( PERSON ) , upon the ORG appeal on points of law ( dovolání ) , upheld this decision .

On DATE the applicants lodged a constitutional appeal ( ústavní stížnost ) . They alleged a violation of Articles CARDINAL § CARDINAL and QUANTITY of LAW ( Listina základních práv a svobod ) and challenged the legal opinion of the ordinary courts .

On DATE ORG , after a public hearing , dismissed the ORG appeal , finding no violation of the applicants’ rights . ORG recalled that , according to its case - law , nationalisation of property takes place by operation of law under a particular presidential decree if the conditions prescribed by the decree are complied with . Considering the question of the number of employees in the Company at the time of the nationalisation as a crucial point in order to establish whether the Decree had been applied lege artis , ORG decided to complete the taking of evidence and asked ORG ( státní okresní archiv ) , ORG ( státní oblastní archiv ) , ORG ( státní ústřední archiv ) , ORG ( GPE práce a sociálních věcí ) and ORG ( PERSON financí ) to submit further documentary evidence .

The documents submitted to ORG contained , in particular , information about the number of employees in the Company DATE in different categories of production .

These documents included a letter from the former ORG , dated DATE , to the former owners of the Company and to the trade union council , asking them , inter alia , to specify the number of people employed in different sections of the Company . In answer to this letter , the former owners indicated that the average number of employees working in the production of margarine DATE was CARDINAL . The trade union council and the national administration ( národní správa ) informed the former ORG that the average number of employees was CARDINAL , and , by letter of DATE , they specified that DATE the average number of employees was CARDINAL .

ORG , basing its finding particularly on these documents which had not been shown to the parties during the hearing , stated , contrary to the opinion of the lower courts , that the nationalisation had been effected in compliance with the nationalisation conditions established in the Decree , i.e. before DATE . Accordingly , the applicants were not entitled to the restitution of the ORG under LAW .

In the preamble to LAW , ORG of the NORP and GPE affirmed its intention to redress the consequences of certain infringements of property and other rights which occurred DATE .

Section CARDINAL(CARDINAL ) of the LAW provides that its aim is to redress the consequences of certain violations of property and other rights caused by acts falling within the sphere of civil or labour law or by administrative acts incompatible with the principles of a democratic society respecting the rights of citizens , as enshrined in the LAW of ORG and LAW .

According to section CARDINAL(CARDINAL)(c ) and ( CARDINAL ) , such redress consists in the surrender of property if the violation in question was caused by an act infringing generally recognised human rights and freedoms , that is , an act in contradiction with the principles referred to in LAW . When an entitled person was deprived of his or her property rights under nationalisation laws adopted DATE without appropriate compensation , the entitled person has a claim under this LAW , which he or she can raise under LAW .

Section CARDINAL(CARDINAL ) provides that , in order to be entitled to restitution of his or her property , a claimant must be a natural person and a citizen of the NORP and GPE whose property was ceded to the ORG in the circumstances listed in section CARDINAL of the Act . According to section CARDINAL(CARDINAL)(e ) , if the person whose property has been transferred to the ORG in cases specified in section CARDINAL died before the expiry of the period specified in section CARDINAL(CARDINAL ) , the entitled persons , provided they are citizens of the NORP and GPE , are his or her spouse and children , or in the case of the latter ’s death , their children .

LAW provides , inter alia , that everybody has the right to own property . The property rights of every owner are equal in the eyes of the law and benefit from the same legal protection .

According to LAW , everybody may defend , in a way prescribed by law , his or her right before an independent and impartial tribunal and , in specified cases , before another authority .

According section CARDINAL of the LAW , ORG must consider all the evidence necessary to establish the facts of the case . It decides what evidence submitted by the parties should be considered and may take into account other evidence which has not been proposed . It may assign a judge to consider evidence obtained otherwise than at an oral hearing or request another court to consider such evidence . At the request of ORG , courts , public administrative authorities and other ORG institutions must assist it in its decision - making by procuring documentary evidence . A record is drawn up of all evidence which is obtained otherwise than at an oral hearing , this record being signed by a judge , a clerk and other persons taking part . The resulting evaluation of that evidence must always be communicated at the oral hearing .

Section CARDINAL stipulates that the provisions of LAW apply to proceedings before ORG , unless LAW provides otherwise .

According to section CARDINAL , ORG is not bound by the statements of fact established in the earlier proceedings .

According to LAW , it is not necessary to prove facts which are generally known , or known to a court through the exercise of its functions . Nor is it necessary to prove generally binding legislative or regulatory instruments published or announced in ORG .

According to Article CARDINAL , the evaluation of documentary evidence is carried out by the President of the ORG during the hearing . The President reads out the whole or part of the document , or informs ORG of its contents . He may also invite the holder of the document to submit the document to the court , or he may obtain it by himself from another court , authority or legal person .


Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

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

On DATE the applicant was arrested and taken into police custody ( verzekering ) on suspicion of forgery and of being an accessory to bribery of a public official . The public official concerned was a Mr B. The applicant was released from police custody on DATE . On DATE the applicant was informed that the preliminary judicial investigation ( gerechtelijk vooronderzoek ) into the case had been closed .

By summons of CARDINAL DATE , the applicant was ordered to appear on DATE before ORG ( arrondissementsrechtbank ) on charges of forgery committed together with others between CARDINAL DATE and CARDINAL DATE .

Criminal proceedings had already been brought before ORG against PERSON in relation to the same facts . Although both sets of criminal proceedings concerned the same facts , the criminal proceedings brought against PERSON and the applicant were conducted separately .

In its judgment of CARDINAL DATE in the applicant 's case , ORG declared the prosecution inadmissible . It held that the judicial authorities had failed to deal with the applicant 's case with the required diligence and that therefore the applicant 's right to a trial within a reasonable time under LAW had been violated . The public prosecutor lodged an appeal with the ' s - ORG ( gerechtshof ) , but informed the applicant on DATE , before the appeal proceedings had commenced , that this appeal had been withdrawn .

On DATE , in the course of the criminal proceedings on appeal in the case of PERSON , the applicant was heard as a witness before the ' sHertogenbosch Court of Appeal . In its judgment of DATE , the ' sHertogenbosch Court of Appeal convicted PERSON , inter alia , participating in forgery . It was found established that a receipt dated DATE in relation to an alleged payment of NLG CARDINAL by Mr B. to the applicant had been fraudulently written out in co - operation with Mr B.

In the meantime , on DATE , the applicant had lodged a request under LAW CARDINALa of LAW ( PERSON ) for the reimbursement of costs and expenses incurred in the course of the criminal proceedings against him . His total claim amounted to NLG CARDINAL,CARDINAL.CARDINAL . On DATE he had lodged a request under LAW for compensation for pecuniary and non - pecuniary damage caused by his having been kept in police custody . This claim amounted to NLG CARDINAL,CARDINAL .

In its decision of DATE in respect of the applicant 's claim for costs and expenses incurred , ORG awarded the applicant an amount of NLG CARDINAL for travel expenses and rejected his claims for the remainder . In a separate decision of the same date , ORG rejected the applicant 's claim for compensation for the time spent in pre - trial detention . The applicant lodged appeals against both decisions with the ' s - ORG .

In CARDINAL separate decisions of DATE , ORG rejected the applicant 's appeals against the CARDINAL decisions of DATE in relation to his claim for costs and expenses and his claim for the time spent in pre - trial detention . Its reasoning in both decisions included the following :

“ It appears from the case against the co - accused B. , in which ORG delivered its final judgment on DATE convicting B. of , amongst other things , ' participating in forgery ' , that the document referred to under a. above is a receipt .

ORG takes the view that this receipt was forged by the applicant together with PERSON who was then an alderman of GPE . Given the following circumstances :

a. It is stated on this receipt that it was drawn up on DATE , whereas B. has stated that he was not in the GPE on that date and the applicant , heard as a witness at the appeal hearing on DATE in the criminal case against PERSON , has stated that the receipt was drawn up and signed after the journey to GPE , i.e. after CARDINAL or DATE ;

b. B. initially stated that he had received the sum allegedly paid to him by the applicant from his son , which his son confirmed ;

c. B. stated , after he and his son had withdrawn these statements , that he had received that money from his mother - in - law ;

d. B. 's mother - in - law stated unambiguously on DATE that she had never given her son - in - law any money , nor given any into his safe - keeping ;

e. all the expenses for the journey to GPE billed by the ... travel agency were debited to the account of ' travel , accommodation and representation expenses ' of ORG ( Aannemings- en wegenbouwmaatschappij ORG ) DATE that is , as business expenses – and were only debited to the private current account of the applicant , on the applicant 's instructions , on DATE ,

ORG finds in its judgment of DATE that B. did not at any time , and in particular , did not on DATE pay the sum of NLG CARDINAL,CARDINAL to the applicant .

Based on these circumstances , from which it follows that the applicant – if the prosecution department had not forfeited the right to prosecute by exceeding a reasonable time and [ the prosecution ] had not been declared inadmissible by ORG for that reason – would in all likelihood ( met grote mate van waarschijnlijkheid ) have been convicted , ORG finds no reasons in equity for awarding compensation , and it will therefore dismiss the appeal . ”

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


Violation of Art. 6-1 (non-enforcement of judgment);Violation of P1-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the ORG granted the applicant ’s civil action against the GPE Town police department and awarded her MONEY ( “ RUR ” ) . On DATE ORG of the Sakha ( GPE Republic upheld the judgment on appeal . On DATE the judgment became final and enforceable .

On DATE the ORG issued a writ of execution .

On DATE the applicant submitted the writ of execution to the NORP Town police department .

On DATE the ORG transferred RUR CARDINAL,CARDINAL.CARDINAL to the applicant ’s account .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

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

On DATE a police investigator drew up a decision to charge the applicant with unlawful felling of forest and aggravated fraud .

On DATE ORG ( maakohus ) heard the police investigator ’s request to take the applicant into custody . The hearing was held in the presence of the police investigator , public prosecutor and the applicant ’s lawyer . The court granted the request and authorised the applicant ’s detention for DATE from DATE of his arrest . It noted in its decision that according to the information presented by the investigator , the applicant had failed to appear before the investigator on CARDINAL occasions in DATE . On DATE the police had sought to compel him by force to appear ( sundtoomine ) but he was not found at his place of residence . The court concluded that there were sufficient grounds to believe that the applicant was evading the proceedings and could commit further offences .

On DATE the applicant appeared before the police investigator . He was presented with the decision to bring charges against him and with ORG decision , and was taken into custody .

The applicant ’s lawyer appealed against ORG decision , complaining that the applicant had not been present at the court when his detention had been authorised and thus could not present his arguments against the detention . In any event , the applicant had been in contact with the police investigator and had not evaded the proceedings . Nor had there been any risk of the applicant committing further offences . The applicant ’s lawyer noted in the appeal that the applicant wished to participate in ORG ( ringkonnakohus ) hearing .

On DATE ORG heard the appeal in the presence of the applicant ’s lawyer and the prosecutor . It dismissed the appeal . The court did not agree with the argument of the applicant ’s lawyer that application of a preventive measure ( tõkend ) could be decided only in the presence of the accused . The court pointed out that as the applicant had been evading the investigation it had been necessary to make a decision by default . ORG decision was final .

On DATE the applicant was released from custody .

According to the applicant ’s lawyer he posted an application , together with copies of relevant documents , addressed to the ORG , on DATE . The letter was sent by registered mail but without a request for receipt . It never arrived at ORG .

On DATE the applicant ’s lawyer sent an inquiry to the ORG , noting that he had received no response . He asked for information about the state of the proceedings . Copies of the application of CARDINAL DATE and of a receipt from the post office were appended to the letter . According to the post office receipt a letter from the lawyer ’s law office to ORG had been sent by registered mail on DATE . There was a printed text on the receipt according to which requests and complaints concerning registered mail could be made within DATE from the date of the posting .

By a letter of DATE the Registry informed the applicant ’s lawyer that the ORG had not received his letter of DATE . A case file concerning the application was opened and the applicant ’s lawyer was requested to complete the application form and submit copies of all pertinent documents .

On DATE the applicant ’s lawyer submitted a completed application form together with copies of the application of CARDINAL DATE and of the relevant documents . He also submitted a copy of his inquiry to the post office in GPE , made on DATE , concerning the correspondence of CARDINAL DATE , and a reply of DATE , according to which it was possible to search for international registered mail within DATE from DATE following the posting of the correspondence . It had therefore not been possible to search for the letter sent by the applicant ’s lawyer . The applicant ’s lawyer requested that the ORG consider DATE as the date of the introduction of the application .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

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

The applicant is chief executive officer of the ORG corporation and member of the board of directors and major shareholder of the ORG corporation , GPE .

On DATE , ORG issued a warrant for the arrest of the applicant on the ground that he was strongly suspected of fraud and offences under LAW on two occasions and in complicity with CARDINAL other accused . ORG also found that the applicant was likely to abscond given his wealth , which would allow him to live abroad . His family bonds were not sufficient to prevent his absconding . Moreover , the applicant ’s arrest was not disproportionate in view of the damage he had allegedly caused and given the sentence which he risked incurring if found guilty as charged .

On DATE , ORG amended the arrest warrant in view of the strong suspicion that the applicant had also committed fraud on CARDINAL occasions . It also found that there existed the danger of absconding and prejudicing proceedings under LAW .

On DATE , ORG dismissed the applicant ’s appeal against the decision of ORG of DATE .

On DATE , ORG dismissed the applicant ’s appeal against the arrest warrant as amended on DATE .

On DATE , ORG dismissed the applicant ’s further appeal against the decision of ORG of DATE . It found that the arrest warrant was not unlawful in view of the alleged denial of access to the confiscated data . The court took the view that the present case was not comparable to cases in which ORG , ORG or ORG had regarded arrest warrants as unlawful , because the defence counsel had been denied access to the part of files which were necessary to respond effectively to the allegations which formed part of the arrest warrant . It found that the domestic courts had sufficiently observed the requirement to make available to the detained all materials which were important for the arrest . The applicant ’s defence counsel had had unrestrained access to all documents , protocols of the interrogation and any other evidence on which the domestic courts had based their decisions concerning the arrest warrant . It could not be inferred from the available case - law that there existed an extended principle that the defence counsel should be given access to all other data which were seized by the investigation authorities or otherwise the arrest warrant had to be suspended .

Regardless of the above , the applicant ’s defence counsel had been given access to all other documents that had been seized . The defence counsel ’s motion of DATE to have access to all data seized , which had been stored on some CARDINAL CD - ROMs , had been granted by ORG on DATE by offering access to the data in the premises of ORG ( this offer had not been taken up by the applicant ’s counsel ) . The defence counsel ’s request to have access , in particular , to the data on the hard drive confiscated in the applicant ’s flat was granted by handing over a copy version of the data on DATE . Prior to that , the defence counsel had been given a hard drive with these data in DATE and DATE which had however been defective . A further request by the defence counsel of DATE to have access to data from the server of the applicant ’s premises was granted by producing a copy of the data which was handed over to the defence counsel on DATE . ORG reasoned that , even though it had not been possible to deliver the copy of the data from the entire server earlier , the arrest warrant could not be suspended as a consequence . The defence had not been deprived of any material which had been necessary to comment effectively on the allegations made in the arrest warrant . As far as there had been data on the server which had been relevant for the decisions regarding the arrest warrant , the defence counsel had already received a printed version . No other data had been used to decide on the arrest warrant .

On DATE , ORG ordered the continuation of the arrest warrant of DATE . ORG found that there had not been a violation of the right to a fair trial by refusing access to the confiscated data for the reasons set out in the decision of DATE . The voluminous material presented by the applicant ’s counsel did not call into question the suspicion against the applicant .

On DATE , ORG refused to admit the applicant ’s constitutional complaint against the decision of ORG of DATE .

Articles CARDINAL et seq . of the Code of Criminal Procedure concern the arrest and detention of a person on reasonable suspicion of having committed an offence . According to Article CARDINAL , a person may be detained on remand if there is a strong suspicion that he or she has committed a criminal offence and if there is a reason for arrest , such as the risk of absconding or the risk of collusion . Article CARDINAL regulates the suspension of the execution of an arrest warrant .

Under LAW , remand prisoners can ask at any time for judicial review of the arrest warrant . An oral hearing will be held at the request of the remand prisoner , or if the court so decides , of its own motion ( LAW ) . If the arrest warrant is held to be valid following the hearing , the remand prisoner is entitled to a new oral hearing only if the detention has lasted for DATE altogether and if DATE have elapsed since the last oral hearing ( Article CARDINAL § CARDINAL ) . Article CARDINAL provides that an arrest warrant has to be quashed if reasons justifying the detention on remand no longer persist or if the continued detention appears disproportionate . Any prolongation of detention on remand beyond DATE is to be decided by ORG ( ORG CARDINAL - CARDINAL ) .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . The respondent Government were represented by Mr PERSON , from ORG .

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

In DATE the applicant was diagnosed with amyotrophic lateral sclerosis ( ORG ) also known as PERSON disease .

In DATE the applicant was prescribed PERSON , a drug used to treat ORG .

On DATE the applicant asked ORG ( ORG ) to refund him the cost of the drug . He pointed out that he was a pensioner and that the price of a prescribed DATE intake of the drug exceeded his means .

In a letter of DATE the ORG declined the applicant ’s request in the following terms :

“ In reply to your letter ( ... ) I should explain that ORG does not have legal possibilities of refunding the price you paid for drugs . ORG publishes registers of drugs which are refunded and according to those registers the ORG Funds make either partial or full refunds . In your case , CARDINAL out of CARDINAL drugs are fully refunded . As for ORG , it is included in the register of refunded drugs ( patient ’s contribution at PERCENT ) [ ... ] . ORG pays PERCENT of the price of [ that drug ] .

I should also inform you that you can be assisted by [ ... ] ORG ( ... ) . ”

On DATE the applicant asked PERSON ( ORG ) to quash the decision of the ORG . He submitted that he could not afford to pay for the drug and that he had no children to help him . ORG transmitted the applicant ’s request to ORG .

On DATE the Director of ORG ( ORG Społecznej ) issued a decision declining the applicant ’s application for the drug refund .

In a letter of CARDINAL DATE ORG ( PERSON ) informed the applicant that :

“ ( ... ) According to the applicable legislation the Director [ of ORG ] issued a decision declining your request for assistance . It appears from your file that the total income of your family amounts to ORG CARDINAL,CARDINAL.CARDINAL and is above the threshold set in Article CARDINAL ) of ORG . Despite the fact that you have faced high costs for the purchase of drugs , the social services – because of limited resources designated for that purpose – declined your request ( ... ) .

It should also be mentioned that it is possible to approach a certified doctor – through ORG – in order to change a degree of invalidity , which may result in the grant of a nursing benefit . ”

On DATE ORG advised the applicant about the legislation concerning the refund of drugs . The ORG ’s letter was in the following terms :

“ ORG correctly informed you in a letter of PERSON ] that there were no legal possibilities of refunding the expenses you incurred for purchasing drugs .

ORG is listed in the register of drugs used in chronic illnesses ( ... ) for a payment of PERCENT [ of the price ] . That drug is refunded at the rate of PERCENT and ORG pays such a part of the price . ...

As PERSON continues to be a very heavy financial burden for patients , ORG has started to make efforts to decrease the rate at which it has to be paid for by patients , so that it becomes available free of charge . The matter has been transferred to specialists ...

The end of this work concerning the change of registers is foreseen for DATE . However , any decrease in the rate at which [ the drug ] has to be paid for by patients depends on the financial resources available to ORG . ”

On DATE the applicant ’s degree of invalidity was increased from the second to the first degree .

The applicant lodged with ORG ( Sąd Najwyższy ) a complaint concerning the decision of ORG but on DATE the court informed him that no appeal was available against the ORG ’s decision .

The public health service in GPE is regulated by ORG of DATE . ORG Funds , which represent the interests of the insured , buy medical services from contractors . They also refund the cost of drugs in whole or in part .


Violation of Art. 3 (substantive aspect)

George Nicolaou;Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

NORP The applicant ’s detention and criminal proceedings against him

On DATE the applicant was arrested by the police on suspicion of having committed battery , uttered threats and intimidated a witness .

On DATE ORG ( FAC ) decided to remand the applicant in custody . The court relied on a reasonable suspicion that the applicant had committed the offences in question and the high probability that a heavy sentence would be imposed on him . The court further considered that there was a risk that the applicant might interfere with the course of the proceedings and bring pressure to bear on witnesses , particularly in the light of the fact that he had previous convictions .

On DATE the applicant ’s detention was extended . The court relied on the grounds given previously . The applicant ’s appeal against this decision was dismissed on DATE .

On DATE ORG further extended the pre - trial detention in respect of the applicant and his CARDINAL co - accused , considering it necessary in order to ensure the proper course of the proceedings . An appeal by the applicant was dismissed on DATE .

On DATE the applicant and the CARDINAL co - accused were indicted before ORG .

On DATE , DATE and DATE the trial court further extended the applicant ’s detention , finding that the original grounds for it remained valid . The court also considered that there was a risk that the accused would interfere with the proper course of the proceedings .

At a hearing held on DATE ORG extended the applicant ’s detention , reiterating the grounds invoked previously .

The applicant appealed against this decision .

On DATE ORG ( PERSON ) dismissed the appeal . The court noted that the applicant had already “ tried to influence the course of the proceedings ” , had tried to abscond while being transported to the court and that he had already been convicted of offences similar to those with which he was charged in the present set of proceedings . The court also considered that the applicant might try to influence the testimony of his sister , who was accused in the same proceedings but who was not detained . The court concluded that detention on remand was the only preventive measure capable of ensuring the proper course of the proceedings .

Subsequently , on CARDINAL DATE , the applicant ’s detention was extended on the grounds given previously .

DATE and DATE the applicant was serving a prison sentence imposed on him in a different set of proceedings .

On DATE ORG convicted the applicant and sentenced him to DATE imprisonment . Together with CARDINAL accomplices , the applicant was found guilty of , inter alia , forgery , battery , robbery and uttering threats . However he was not charged or convicted of membership of an organised criminal group .

The applicant lodged an appeal against the judgment .

On DATE the ORG quashed the first - instance judgment and remitted the case . On DATE the court extended the applicant ’s detention , finding that the grounds previously given remained valid .

On DATE the applicant ’s detention was further extended . An appeal by the applicant against that decision was dismissed on DATE .

On DATE ORG extended the applicant ’s pre - trial detention ; however , the court decided that the applicant could be released , under police supervision , on bail in the amount of MONEY ( ORG ) ( approximately LAW at that time ) . The court observed that the majority of the witnesses had been heard , so the risk that the applicant would try to bring pressure to bear on them was no longer justified .

The applicant submitted that he had no means to pay the bail .

On DATE the applicant was released from detention although he had failed to pay the full sum specified in the bail decision .

On DATE ORG convicted the applicant and sentenced him to CARDINAL years’ imprisonment .

On DATE the ORG partly amended and partly quashed the judgment and remitted the case . The applicant was sentenced to DATE imprisonment .

On DATE the applicant ’s legal - aid counsel refused to lodge a cassation appeal against the judgment .

B. The events of DATE as presented by the applicant

On DATE the applicant was transferred from FAC to ORG to attend a hearing . He was escorted by police officers , who left the door of the police van open thereby enabling him to escape . After TIME he was stopped and brutally beaten up by the police officers . The applicant was brought back to the court building where he was handcuffed to a radiator , stripped naked , and again hit , kicked , strangled and hit with a gun by the police officers .

The applicant was then brought back to the courtroom , where he complained to the presiding judge about what had happened to him . An ambulance was called and the applicant was taken to a hospital where he was examined by a doctor . A medical certificate ( which is hardly legible ) issued by a doctor from the emergency room of ORG , confirm abrasions to the applicant ’s head .

Upon his return to the court building the applicant was again beaten up by police officers . Afterwards , he was transferred back to ORG , where he requested an examination by a doctor .

The following is an extract from a note in the “ Health book of a detainee ” ( ORG Osadzonego ” ) :

“ CARDINAL . DATE

[ The applicant ] submits that he was arrested by force by police officers . On his body can be seen : skin abrasion on the left side of his forehead measuring QUANTITY by QUANTITY , an abrasion on the lower part of his chin QUANTITY long , CARDINAL scratches on the right shoulder blade QUANTITY long , a scratch on the right arm QUANTITY long , an abrasion on the left side of his chest QUANTITY long , abrasions on the knee , above the ankle , a blue mark under the right eye , a red mark on the neck and right knee . ”

A note in the book dated DATE confirmed that a forensic medical examination had been carried out confirming the injuries as previously described .

On DATE ORG opened an investigation into the applicant ’s allegations .

On DATE an expert medical opinion was prepared .

On DATE ORG decided to discontinue the investigation , finding that there was insufficient evidence that an offence had been committed . In the course of the investigation an expert was appointed . The testimony of GPE , who had been transported with the applicant to the court and was later present in the court building , was also heard . GPE testified that he could not see what happened when the applicant had run out of the van , but he saw him later in the court , when waiting for his hearing . GPE testified that he heard the applicant screaming in pain , as if he had been beaten .

The prosecutor gave the following reasons for her decision :

“ In the course of the investigation the following course of events was established .

On DATE [ the police officers GPE , GPE and ORG ] escorted [ the applicant ] from ORG to ORG ...

Next to the building of ORG [ the applicant ] , having removed his hand from the handcuffs , pushed open the van door and ran off in the direction of [ other ] buildings . The action undertaken [ by the police officers ] led to the arrest of the applicant , who took fright at a warning shot fired by ORG and lay down on the ground . He was handcuffed and led to the van and brought to the detainees’ room of ORG . ORG and ORG took part in the pursuit of [ the applicant ] . [ The third police officer ] stayed in the van to watch over the other detainee . For their own safety , the police officers searched the applicant and confiscated money and other small items from him . The applicant was alone in the detainees’ room .

After having been searched , the applicant was handcuffed . At that moment he started hitting his head against the floor and walls and shouting that the police officers had beaten him up and that it was their fault . Since ORG had left for FAC , in order to transmit the information about [ the applicant ’s ] attempt to flee , the remaining [ police officers ] , seeing [ the applicant ’s ] behaviour , laid him on the floor and held his hands and legs to prevent him from injuring himself further . During that time the applicant tried to free himself , rubbed his head against the floor and shouted at the police officers that he would inform the prosecuting authorities of the fact that they had beaten him up . He also threatened to kill them . After TIME an ambulance came to give him something to calm him down , but the doctor decided to take [ the applicant ] to the hospital .

[ CARDINAL police officers ] went with [ the applicant ] to the hospital . In the hospital the applicant underwent the necessary examinations ; then , since he was allowed to participate in the trial , the police officers took him to ORG . The applicant was then transported to the prison because the hearing had been adjourned .

The injuries sustained by [ the applicant ] on DATE qualified as injuries that could happen in the circumstances described by both the victim and the police officers . However , the court expert established categorically that they could not have happened as a consequence of repeated kicking or beating with substantial force , as described by the victim .

On the basis of all the material collected in the case it can be unambiguously established that there is not enough evidence substantiating the allegations that the police officers escorting [ the applicant ] on DATE committed an offence . It should be said that the possibility that the applicant was beaten up by the police officers can not be totally ruled out . However , the evidence collected lends credence to the version of events given by the police , which differs completely from the CARDINAL given by [ the applicant ] because there were no other witnesses to the event who could confirm [ the applicant ’s ] version , and it is impossible to identify any such witnesses .

GPE , who was transported with the applicant , does not have any information concerning the incident , as from the moment the applicant escaped , he lost all contact with him .

As a side note it is to be pointed out that , judging from life experience , it is rather unlikely that the police officers , after having informed their superiors about the applicant ’s running off , beat him up and subsequently , having brought the applicant from the hospital back to the court building and knowing that ORG , their supervisor , was already present in the court building , ill - treated the applicant yet again .

Since the version of the events given by the applicant was not confirmed by the evidence collected , his statements in this respect should be considered as untrue . It is therefore justified to discontinue the proceedings under LAW on the grounds that there is no evidence sufficiently justifying the suspicion that an offence was committed . ”

The applicant lodged an appeal against that decision .

On DATE the prosecutor requested an expert to enlarge on [ his ] opinion by answering the question whether the injuries described below could have occurred in the circumstances as described by the police officers . The prosecutor stated as follows :

“ On DATE an expert opinion in forensic medicine was prepared which established that some of the injuries [ sustained by the applicant ] , in particular an abrasion on the forehead , a bruise on the mandible , bruises on the shoulder blade , on the chest , and on the right thigh could be the result of hitting or kicking with minor force . When preparing the opinion , the expert was unaware of the testimonies given by the witnesses PERSON and GPE , the police officers ... ”

On DATE ORG dismissed the appeal . The court entirely agreed with the prosecutor ’s findings after having allowed the new evidence requested by the applicant in his appeal , namely the testimony of GPE , a witness who was present at FAC on DATE and who allegedly saw the applicant being beaten by the police officers , and the additional testimony of GPE , who was transported with the applicant to a court hearing and was likewise present in the court building at the time the applicant was ill - treated .

PERSON submitted that he saw the applicant when he had been waiting for a hearing in the holding room at the court building . The holding room led to CARDINAL cells . PERSON further submitted that there had been another woman in the room , who had also been transported to the court building for a hearing . According to PERSON , the applicant had been placed in one of the cells ; the door to the cell was left open . He could see the applicant , partly undressed ( without a shirt and trousers ) and handcuffed to a radiator . He saw the police officers entering the cell and insulting the applicant . He further submitted that , when leaning out , he had seen one of the police officers kicking the applicant . Subsequently , PERSON stated that he had seen CARDINAL police officers kicking the applicant .

In his additional testimony , GPE submitted that at the court building , through a peep - hole in the door of his cell , he could see the applicant being pulled about by the police officers . He could not see whether the applicant had been beaten , but he heard him calling out in pain , which he associated with the applicant having been hit .

The court did not explain why PERSON ’s testimony and the additional testimony of GPE had been disregarded . The court did not refer either to the alleged stripping of the applicant . However , the court mentioned that the evidence obtained The court also took into account the supplementary expert opinion and concluded :

“ [ From the supplementary expert opinion upholding the conclusions of the original opinion , and after having examined other evidence requested by the applicant ] it is clear that although the applicant sustained injuries , they do not indicate that he was repeatedly hit and kicked , and could have occurred when the applicant forcibly pushed the police van door open , fell , or lay down after fleeing , or when he struggled with the police officers while in a lying position and was held down by force ; the abrasion on the forehead could have happened when he was rubbing his head against the ground , and [ all these injuries ] were slight and minor in nature .

In the light of the above and after all possible investigative actions have been carried out , it is impossible in the circumstances to establish the existence of evidence to prove that the offence was committed . Having analysed the material collected in the case , the court agreed with the prosecutor ’s findings in full and decided as in the operative part . ”

The regulations on the permissible use of direct coercive measures by the police are laid down in section CARDINAL of LAW , which provides that in situations in which a police order is not obeyed , such measures can be resorted to only in so far as they correspond to the requirements of the particular situation and in so far as they are necessary to obtain compliance with that order .

Article CARDINAL § CARDINAL of the Ordinance of CARDINAL DATE on the use of coercive measures by the police provides that direct physical force can be used to overpower a person , to counter an attack and to ensure compliance with an order . When such force is being used , it is forbidden to strike the person against whom the action is being carried out , except in self - defence or to counter an attack against another person ’s life , health or property .

NORP The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ) , the grounds for its extension , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

For the latest amendments of the provisions concerning detention on remand , see the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § DATE , DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil 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 - Deprivation of property)

Alvina Gyulumyan;Ineta Ziemele;Kristina Pardalos

The applicant was born in DATE and lives in GPE .

At an unspecified date the former owners of the flat that the applicant had bought lodged restitution proceedings concerning nationalised immovable property .

By the final decision of CARDINAL DATE ORG rejected the restitution proceedings lodged by the former owners on the ground of lack of active standing and established thus that the applicant was the lawful owner of the flat .

At an unknown date the Prosecutor General of GPE lodged a request for supervisory review against the final decision of CARDINAL DATE of ORG .

By the final decision of DATE ORG and ORG admitted the application for supervisory review lodged by ORG , quashed the final decision of CARDINAL DATE of ORG and sent the case for re - trial .

Upon re - trial , by a final decision of DATE ORG admitted the restitution proceedings of the former owners accepting that they had active standing and establishing that they were the owners of the flat .