Violation of Art. 8;No violation of Art. 10;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

C. Russo;J.A. Carrillo Salcedo;N. Valticos

ORG The applicant is a NORP citizen and was born on DATE . Following the death of his mother , he was received into care by ORG under section CARDINAL of the Children Act DATE ( " LAW " ) on DATE . Save for CARDINAL periods varying DATE and DATE when he was discharged to the care of his father , the applicant remained in voluntary care until DATE . On DATE the applicant appeared before ORG and pleaded guilty to a number of offences including burglary and theft . The court made a care order in respect of him under section CARDINAL of the Children and Young Persons Act DATE . The applicant ceased to be in the care of ORG on attaining the age of majority ( CARDINAL ) on DATE .

During the major part of the period while he was in care the applicant was boarded out with various foster parents , subject to the provisions of the Boarding - Out of Children Regulations DATE ( " LAW " ) . Under the terms of those regulations the local authority was under a duty to keep certain confidential records concerning the applicant and his care ( see paragraph CARDINAL below ) .

The applicant contends that he was ill - treated in care , and since his majority has wished to obtain details of where he was kept and by whom and in what conditions in order to be able to help him to overcome his problems and learn about his past .

ORG On DATE , the applicant was permitted by a social worker in the employment of ORG to see the case records relating to him kept by ORG of the ORG in accordance with its statutory duty . He removed those records without the ORG ’s consent , retaining them in his possession until he returned them to ORG on DATE .

ORG It is the practice of the local authorities to keep a case record in respect of every child in care . In respect of children boarded out they were and are under a statutory duty to keep case records by virtue of LAW , which were made under LAW of GPE , so far as relevant , provides that :

" PERSON ) A local authority shall compile a case record in respect of -

( a ) every child boarded out by them ;

( b ) ...

( c ) ... and the said records shall be kept up - to - date .

( CARDINAL ) ...

( CARDINAL ) Every case record compiled under this ORG or a microfilm recording thereof shall be preserved for DATE after the child to whom it relates has attained DATE or has died before attaining that age , and such microfilm recording or , where there is none , such case record shall be open to inspection at all reasonable times by any person duly authorised in that behalf by the Secretary of ORG . "

In DATE the applicant , wishing to bring proceedings against the local authority for damages for negligence , made an application under LAW of ORG DATE ( " LAW " ) for discovery of the local authority ’s case records made during his period in care . LAW provides , inter alia , that the High Court shall have power to order such disclosure to a person who is likely to be a party to legal proceedings for personal injuries .

The application was heard by ORG on DATE . The local authority objected to the grant of discovery of the records on the ground that disclosure and production would be contrary to the public interest . The principal contributors to those case records were medical practitioners , school teachers , police and probation officers , social workers , health visitors , foster parents and residential school staff . Their contributions to the case records were treated in the strictest confidence and it was in the interest of the effective conduct of the care system that such records should be as full and frank as possible . If discovery were ordered , the public interest in the proper operation of the child - care service would be jeopardised since the contributors to the records would be reluctant to be frank in their reports in the future .

The applicant contended that the case records held by the local authority should be made available to him on the general principles of discovery , for the purpose of his proposed proceedings for personal injuries against the local authority . He further argued that it was also in the public interest that some measure of review of the standard of care provided by a local authority to a child in care be available .

The judge did not read the records in question , but balanced the public interest in maintaining an efficient child - care system with the applicant ’s private interest in receiving access to his case records for the purpose of the proposed litigation . After referring to the case of Re D ( infants ) [ DATE ] CARDINAL Weekly Law Reports ( " ORG " ) CARDINAL , in which Lord PERSON , Master of the Rolls , held that case records compiled pursuant to LAW of the DATE Regulations were regarded as private and confidential , he concluded :

" I am left in no doubt that it is necessary for the proper functioning of the child care service that the confidentiality of the relevant documents should be preserved . This is a very important service to which the interests - also very important - of the individual must , in my judgment , bow . I have no doubt that the public interest will be better served by refusing discovery and this I do . "

The applicant appealed from this decision to ORG . On DATE the ORG unanimously dismissed the appeal . In ORG view , ORG , in its judgment , had correctly balanced the competing interests . It added that the inspection of a document is a course which it is proper for a court to take in certain cases , for example where grave doubt arises and the court can not properly decide upon which side the balance of public and private interests falls without itself inspecting the documents . However , this was not a case in which such doubt arose as would make it proper for the court itself to inspect the documents . ORG decision was accordingly affirmed and leave to appeal to ORG was refused ( PERSON v. ORG [ DATE ] CARDINAL WLR CARDINAL ) .

ORG On DATE , ORG set up ORG ( " ORG " ) to make recommendations on access to personal social services files and to investigate the allegations relating to the applicant .

On DATE , ORG recommended making available case records to ex - clients of the social services , subject to certain safeguards and restrictions relating in particular to medical and police information . As to the applicant , ORG viewed with concern the number of placements which he had while in care , and which they recognised could be detrimental to a young person ’s development , but found no evidence to suggest that " the officers carried out their duties in other than a caring manner " . The applicant was to be allowed access to , and to make photocopies of , his case records , subject however to the exclusion of medical and police information .

On DATE , ORG recommendations , subject to an amendment which would require the consent of members of the medical profession and police services to be sought to the disclosure of information which they had contributed , were embodied in a resolution of ORG . However , PERSON , a dissenting member of ORG , brought an action challenging the resolution and obtained an interlocutory court order preventing ORG from implementing it until the trial of the action or until further order .

On DATE , ORG passed a further resolution . As regards future records this reiterated the general terms of the resolution of DATE and added certain further restrictions to protect information given in confidence and to provide for the non - disclosure of the whole or part of the personal record in particular cases , but as regards information obtained and compiled before CARDINAL March CARDINAL it was resolved that this should be disclosed only with the consent of the suppliers thereof . Pursuant to this policy the resolution went on to instruct the ORG ’s officers to contact the various suppliers of information to the PERSON file immediately with a view to disclosure . The local authority ’s officers were , however , ordered not to implement this resolution pending the outcome of the legal action brought by PERSON . This action was discontinued on CARDINAL DATE and on DATE the local authority confirmed a further resolution to the effect that the resolution of DATE would be implemented as from DATE .

On DATE ORG issued Circular LAC ( ORG ) ( CARDINAL ) CARDINAL to local authorities and health authorities pursuant to section CARDINAL of ORG DATE setting out the principles governing the disclosure of information in social services case records to persons who were the subject of the records . The general policy laid down in paragraph CARDINAL of the circular was that persons receiving personal social services should , subject to adequate safeguards , be able to discover what is said about them in social services records and with certain exceptions should be allowed to have access thereto . Paragraph CARDINAL set out under CARDINAL headings the reasons for withholding information . These included the protection of third parties who contributed information in confidence , protecting sources of information , and protecting social service department staff ’s confidential judgments . Paragraphs CARDINAL to CARDINAL set out in more specific terms the policy governing client access to case records . Paragraph CARDINAL in particular defined the considerations to be weighed on the other side of the balance whenever an application was made for access , the most relevant for the purposes of the present case being that " information shall not be disclosed to the client if derived in confidence from a third party without the consent of the third party " . However , it was then provided in paragraph CARDINAL that since existing records had been compiled on the basis that their contents would never be disclosed , material entered in the records prior to the introduction of the new policy should in no event be disclosed without the permission of the contributor of the information .

On DATE , ORG granted the Attorney General leave to apply for judicial review of the resolution of CARDINAL DATE as amended by that of DATE on the ground that it went beyond what were considered to be the proper limits and , in particular , omitted certain important safeguards which were contained in Circular LAC ( CARDINAL ) CARDINAL . Pending the trial of the action an injunction was granted restraining the local authority from implementing the resolution of CARDINAL DATE .

ORG On DATE , ORG confirmed a further resolution of its ORG of DATE setting out certain additional grounds on which information should be withheld . The resolution provided that the information in the applicant ’s file should be made available to him if the contributors to the file ( or as regards some information ORG ) consented and that the various contributors of the information contained in the file should be contacted for their permission before the release of that information . Following the passing of this resolution , which was in line with Government Circular LAC ( CARDINAL ) CARDINAL ( see paragraph CARDINAL above ) , the Attorney General withdrew his application for judicial review .

The applicant ’s case record consisted of some CARDINAL documents contributed by CARDINAL persons . On DATE copies of CARDINAL documents supplied by CARDINAL persons were sent to the applicant ’s solicitors . These were documents whose authors had consented to disclosure to the applicant . The size of each contribution disclosed varied from CARDINAL letter to numerous letters and reports .

ORG Those contributors who refused to waive confidentiality , although not asked to give reasons , stated , inter alia , that third - party interests could be harmed ; that the contribution would be of no value if taken out of context ; that professional confidence was involved ; that it was not the practice to disclose reports to clients ; and that too great a period of time had elapsed for a letter or report still to be in the contributor ’s recollection .

Furthermore , in DATE , CARDINAL contributor refused his consent to disclosure on the ground that it would be detrimental to the applicant ’s interests .

ORG In a letter of CARDINAL DATE , ORG wrote to the applicant ’s solicitors in the following terms :

" I refer to your letter dated DATE .

I would wish to be as helpful as possible to you , but at DATE suspect that we may have genuine differences of opinion . At least I take that to be the implication of the questions you asked .

I do not think therefore , that we can take this correspondence further in a profitable way because , as I have said , it is , in the last analysis , for the provider of information , retrospectively collected , to release or refuse to release , in their absolute discretion , the information supplied from the ‘ confidential’ embargo originally accorded to it . The reasons for releasing or not releasing are irrelevant whether they are good , bad or indifferent .

I regret I do not feel able to help you further . "

On DATE the ORG Regulations DATE came into force . These regulations , made under ORG DATE and further explained in ORG ( CARDINAL ) CARDINAL , impose upon social services departments a duty to give to any individual access to personal information held concerning him , except for personal health information which originated from a health professional and subject to the exceptions in LAW . This latter provision exempts from the obligation of disclosure , inter alia , any information from which the identity of another individual ( other than a social service employee ) , who has not consented to the disclosure of the information , would be likely to be disclosed or deduced by the individual who is the subject of the information or any other person who is likely to obtain access to it .

According to the Government , the effect of LAW ( CARDINAL ) is that , in future , case records will be compiled on the basis that the information contained therein is liable to be disclosed , except in so far as disclosure would be likely to reveal the identity of the informant or another third party . However , by virtue of section CARDINAL ( CARDINAL ) of ORG , the DATE Regulations apply only to information recorded after the ORG came into force , that is , after DATE . As in the case of Circular LAC ( CARDINAL ) DATE , which governed the adoption of the resolution mentioned in paragraph CARDINAL above and the subsequent partial release of documents to PERSON , ORG Regulations DATE do not have retrospective effect .


LESNÍ SPOLEČNOST PŘIMDA, A.S. v. THE CZECH REPUBLIC

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant , PERSON společnost GPE , a.s . , is a joint - stock company with its seat in GPE . It was represented before the Court by PERSON R. Tunklová , practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr. PERSON , from ORG .

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

By ORG no . CARDINAL of CARDINAL DATE of ORG of GPE and the decision of ORG ( ministerstvo pro správu národního majetku a jeho privatizaci ) of DATE , privatisation project no . CARDINAL of the ORG enterprise GPE státní lesy PERSON was approved . On the basis of that project , the applicant company was founded on CARDINAL DATE . In accordance with the privatisation project approved by ORG , the property transferred to it included the building in issue .

On DATE , further to the applicant company 's notification ( oznámení ) , its title to the building was recorded in ORG .

On DATE ORG Město Přimda ) brought a civil action against the applicant company , seeking to determine that it was the owner of the building . It referred to LAW no . CARDINAL/CARDINAL ) which provided that certain property was to be ipso jure transferred to municipalities with effect from the date on which the law came into force , that was , on DATE .

Judgments of ORG ( okresní soud ) of DATE and of DATE in favour of the Municipality were quashed by ORG ( krajský soud ) on DATE and on DATE respectively . ORG held that the first - instance court had failed to establish the facts of the case properly , and instructed it to supplement the evidence .

On DATE ORG again allowed the GPE 's action , holding that the conditions set forth in section CARDINAL(CARDINAL)(c ) of Act no . CARDINAL/CARDINAL were met , specifically that the plaintiff had been the owner of the property in issue as of DATE and that the property was in ORG ownership on the date on which the LAW entered into force . Responding to CARDINAL of the applicant company 's objections and with reference to the conclusions of an expert opinion drawn up on the court 's request of CARDINAL DATE , it concluded that the building owned by the Municipality as of DATE was the CARDINAL in issue . Notwithstanding the reconstruction works carried out by the applicant company 's legal predecessor , the building had not lost its character , that is , it had not ceased to exist and a new building had not been created .

In an appeal of DATE the applicant company argued that the reasoning of ORG did not comply with the statutory requirements . It further challenged the court 's interpretation of section CARDINAL ) of Act no . CARDINAL/CARDINAL and its finding that a new building had not been created .

In a judgment of DATE ORG upheld the first - instance judgment finding that its reasoning had been in compliance with LAW since it referred , inter alia , to the expert opinion and it had therefore been possible to ascertain the evidence on which the court had based its decision . It further rejected the applicant company 's interpretation of the provision cited above and accepted the interpretation given by ORG . Lastly , it upheld the conclusion that the original building had never ceased to exist . ORG judgment became final on DATE .

On DATE ORG ( PERSON ) , holding that the courts had decided in compliance with the established case - law and that therefore no issue of crucial legal importance arose , rejected an appeal on points of law ( dovolání ) by the applicant company as inadmissible .

On DATE a constitutional appeal ( ústavní stížnost ) by the applicant company alleging a violation of the right to a fair hearing and its property rights was dismissed as manifestly ill - founded . ORG ( PERSON ) found that the applicant company had merely disputed the ordinary courts ' findings of fact and law and had presented the same legal opinion again . However , its status as a party to the proceedings had been respected and the courts had examined enough evidence and reasoned their decisions . As to the alleged violation of property rights , the court held that ownership that was merely the subject of legal proceedings did not enjoy constitutional protection . The decision was served on the applicant 's legal representative on DATE .

On DATE , pursuant to Act no . TIME on LAW , the applicant company brought an action in the GPE CARDINAL ORG ( obvodní soud ) against ORG ( ministerstvo financí ) . The damages sought consisted of ( i ) the price of the building in issue which had been transferred to it under the privatisation project and in respect of which it had later been established that it had been the property of ORG , ( ii ) legal costs incurred in the proceedings for a determination of ownership , and ( iii ) costs incurred for the upkeep of the property .

On DATE ORG excluded the first CARDINAL claims for a separate hearing and transferred the case to ORG ( Vrchní soud ) for a decision which level of courts had jurisdiction to hear the case . In a judgment of DATE , ORG dismissed the applicant company 's third claim .

On DATE ORG remitted the case to ORG . It appears that the proceedings are still pending before that court .

On DATE ORG judgment concerning the third claim was upheld by ORG ( městský soud ) . On DATE the applicant company lodged an appeal on points of law ( dovolání ) in which it submitted , inter alia , that should it not have been possible to infer the ORG 's liability under Act no . MONEY no . DATE , its liability should have been given under general provisions of civil law . The proceedings appear to be pending before ORG .

At the material time , the relevant provisions of Act no . CARDINAL/CARDINAL as amended read as follows :

“ ( CARDINAL ) As of the date when this law comes into force , the following property shall be transferred to municipalities : ...

( c ) Buildings with land constituting a single functional unit with the building , ...

which were owned by municipalities as of DATE and provided that they are owned by GPE ... ”

“ Within DATE after acquiring the ownership of real estate in accordance with this law , municipalities shall be obliged to lodge an application with FAC to record [ the title to ] such real estate in ORG . ”

At the material time , the relevant provision of Act no . CARDINAL/CARDINAL , on the conditions of transfer of ORG property to other persons LAW ) read as follows :

“ ( CARDINAL ) Privatisation proceedings are not subject to general rules on administrative proceedings and a privatisation decision is not subject to judicial review . ”

Act no . TIME on State liability for damage caused by a ORG body 's decision or its incorrect administrative procedure . As of CARDINAL DATE it has been replaced by Act no . CARDINAL/CARDINAL .

Resolution of the Constitutional Court no . III . ÚS CARDINAL/CARDINAL

“ ... a decision ( of the ORG ) on privatisation , under LAW on the conditions of transfer of ORG property to other persons ( Law no . CARDINAL/CARDINAL , as amended ) is a decision of the ORG , however not in its capacity as the holder of public power , but in its capacity as the owner of the privatised property ; it follows ... that any disposition of ( decision on ) the property in the framework of the above - mentioned law is an expression and a consequence of the owner 's will and that the liability of any authority empowered to carry out privatisation falls outside the scope of general liability under domestic legislation . ”

“ The activity of privatisation commissions ... has the character of decision - making by the owner of property on the manner in which the property will be treated , and the ORG does not act as a superior subject . ... A prerequisite for application of PERSON no . PERSON is that the ORG , through its bodies , must act as the holder of public power and exercise that power . If [ in the context of the activity of privatisation commissions ] the ORG acts as the owner of the property and disposes of its property in the framework of civil - law relation , it is clear that the ORG 's liability can not be based on Law no . TIME . ”

“ In the instant case the ordinary courts ... referred to the established case - law of ORG and ORG and held that a decision of the ORG in the context of privatisation is one of the owner , not the holder of public power . ... On the other hand they did not rule out a ORG 's mistake from the point of view of statutory provisions in making a decision . They merely ruled out that such mistakes would be covered by special laws on the ORG 's liability . ”


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in PERSON . He is a selfemployed entrepreneur . In that capacity he had dealings with a private company PERSON which included arranging insurance for its vehicles .

On DATE S. brought a civil action against the applicant in the ORG ( then ORG súd , at present ORG súd ) claiming a sum of money in connection with their previous business .

On DATE the ORG found that the action fell within the jurisdiction of ORG and decided to transmit the case to the latter .

On DATE the ORG quashed its above decision of CARDINAL DATE on the ground that , according to up - to - date information , the defendant ’s business was within its judicial district . The case thus remained with the Košice II ORG .

On DATE and DATE ORG requested the defendant to pay court fees and to specify its claim for legal costs . The defendant replied on DATE and DATE , respectively .

On DATE , in summary proceedings , ORG issued a payment order ( platobný rozkaz ) against the applicant for the amount claimed .

On DATE the applicant successfully appealed ( protest ) . The order was ex lege vacated and the matter fell to be determined in ordinary proceedings .

On DATE and DATE ORG requested the applicant to pay court fees for his appeal . The applicant replied that he could not pay as he had no money , but he eventually paid on DATE .

ORG held hearings on DATE and DATE . Both hearings were adjourned , the former due to the absence of the plaintiff ’s lawyer , the latter at the plaintiff ’s request since he wished to explore the possibility of settling the case out - of - court .

On DATE the applicant counterclaimed that the defendant owed him money and sought an order for repayment .

Another hearing was scheduled for CARDINAL DATE but did not take place because the judge was absent for health reasons .

On DATE ORG ( PERSON súd ) declared the plaintiff company insolvent and appointed a receiver . As a result , by operation of LAW ( d ) of LAW ( Law no . PERSON . , as amended ) , all actions by and against the plaintiff were automatically stayed . However , under that provision , actions by the insolvent entity could resume if their defendants so required .

In a letter of DATE ORG informed the applicant that the proceedings had been stayed .

The proceedings are still stayed .

The insolvency order was issued on DATE and , in the absence of an appeal , it became final on DATE .

On DATE ORG appointed a new receiver as the original one had resigned due to a conflict of interests .

The applicant registered his claim ( see paragraph CARDINAL above ) in the insolvency proceedings .

On DATE ORG held a meeting of creditors ( schôdza veriteľov ) . At the meeting the creditors approved a summary of the insolvency estate and the proposal for its sale . ORG subsequently held a hearing ( prieskumné pojednávanie ) with a view to establishing the claims of the different creditors in the insolvency proceedings . At the hearing , which the applicant did not attend , the receiver rejected his claim . It was decided that the applicant and other creditors whose claims had been rejected and who had been absent would be informed in writing that they could seek judicial recognition of their claims by way of a separate action ( incidenčná žaloba ) under LAW of LAW .

In a letter of CARDINAL DATE ORG informed the applicant of the above possibility . The applicant then brought proceedings for recognition of his claim . They are described in detail below .

The receiver subsequently held CARDINAL rounds of sales of items belonging to the estate . The sales were supervised by ORG .

On DATE the receiver filed a report with ORG on the progress of the proceedings . He stated inter alia that it had not been possible to conclude the proceedings thus far because the estate was involved in CARDINAL other court proceedings which were all still pending .

The insolvency proceedings are still pending .

On DATE the applicant responded to ORG above letter of DATE . From the contents of his letter it can be understood that he insisted on his claim and disagreed with its rejection .

In a letter of DATE ORG informed the applicant that his submission did not meet the formal requirements for an action for recognition of a claim in insolvency and advised him in detail of the relevant requirements .

On DATE the applicant resubmitted the action .

On DATE ORG discontinued the proceedings observing that the applicant had withdrawn the action .

On DATE ORG ( Najvyšší súd ) upheld the decision on the applicant ’s appeal .

On DATE the applicant filed a complaint under Article CARDINAL of the LAW with ORG ( Ústavný súd ) about the length of the above proceedings before LAW .

On DATE ORG declared the complaint inadmissible . In line with its established practice it held that , as the proceedings had been lawfully stayed for a legitimate reason ( the insolvency ) , no unjustified delays could be imputed to the Košice II District Court at that time . The part of the proceedings before ORG before they had been stayed could not be reviewed because they had been stayed outside the statutory DATE time - limit for lodging a constitutional complaint . It was noted that the applicant had not complained of delays in the insolvency proceedings which were pending before ORG .

As regards any delays in the proceedings which might have occurred prior to the decision of DATE to stay the proceedings in the ORG , the applicant had filed his constitutional complaint after the expiry of the statutory DATE time - limit .


The applicant is a NORP national , born in DATE and living in GPE .

He is represented before the ORG by PERSON , a lawyer practising in PERSON .

A.

On DATE the applicant and the CARDINAL other employees of a PERSON association promoting the interests of foreigners elected their works council ( PERSON ) , which , having regard to the number of employees , comprised CARDINAL persons . The employees elected PERSON and the applicant .

On DATE PERSON instituted proceedings with ORG ( PERSON ) challenging the applicant 's election as member of the works council on account of his NORP nationality .

On DATE ORG , sitting as the labour and social court ( Arbeits- und ORG ) , deprived the applicant of his membership of the works council . It found that , as a NORP national , the applicant was not eligible to stand for election to this council , pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( GPE - verfassungsgesetz ) .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant 's appeal . As regards the applicant 's argument that section CARDINAL(CARDINAL)(CARDINAL ) of LAW amounted to a breach of LAW , ORG considered that the restriction of the right to stand for election to a works council of an enterprise did not interfere with the right to form or to join trade unions .

On DATE ORG ( Oberster Gerichtshof ) dismissed the applicant 's appeal on points of law . It also rejected CARDINAL procedural requests concerning a procedure before ORG Verfassungsgerichtshof ) , for the purpose of challenging part of section CARDINAL(CARDINAL ) of LAW , and a case before ORG of ORG . As regards LAW , ORG observed that freedom of association included the right to form and join associations of workers which , as compared to associations in general , pursued special aims and purposes , namely the promotion of working conditions . Trade unions are representative examples of such associations which are formed for a trade or profession ( “ überbetrieblich ” ) . The works council , set up as a statutory organ of staff , could not be regarded as an association within the meaning of LAW . In particular , the works council was not an association formed on a voluntary and private basis , but its organisation and functions were determined by law . In that respect , ORG , referring to a decision of ORG DATE , found that it was comparable to chambers of trade . Moreover , the staff as such did not constitute an independent association within the meaning of LAW , as they were not a group of persons associated on a voluntary basis . As regards the question of discrimination between foreigners , ORG considered that the accession to ORG had required the extension of eligibility to citizens of member GPE of ORG ; and the difference in treatment between NORP nationals and foreigners was generally justified on account of the particular relationship between nationals and their home ORG . Furthermore , as the stay of foreigners other than nationals of Member States of ORG , could be limited in time , the statutory period of their membership in a works council were subject to an administrative decision .

The decision was served on DATE .

B. Relevant domestic law

LAW ) concerns collective agreements ( Part I ) and the works constitution ( GPE ) , i.e. the statutory framework for the rights of employees at work ( Part II ) . Part III relates to ORG ( GPE ) and arbitration committees ( ORG ) .

The representative bodies of staff ( Organe der Arbeitnehmerschaft ) have to promote the economic , social , health and cultural interests of the staff in a work place ( section CARDINAL ) . The legal provisions on the works constitution and their application aim at balancing competing interests to the benefit of the staff and the work place , and these bodies are called upon to cooperate , inter alia , with the competent collective public - law bodies of staff or voluntary staff associations .

Section CARDINAL provides that , in any work place with CARDINAL or more permanent members of staff eligible to vote , representative bodies should be set up : as a rule , a general works meeting ( GPE ) , group meetings of the workers and of the employees ( ORG der PERSON ) , the works council electoral committee ( PERSON für die Betriebsratswahl ) , the respective works councils of the workers and the employees , the works committee ( PERSON ) and the auditor ( PERSON ) .

Section CARDINAL fixes the number of members of a works council in relation to the number of staff at the date of election : in a work place with CARDINAL employees , the works council consists of CARDINAL person , in a work place with CARDINAL employees , it consists of QUANTITY persons , in a work place with CARDINAL employees , it consists of QUANTITY persons , and in a work place with CARDINAL employees , it consists of QUANTITY persons . The number of members then increases by CARDINAL per further CARDINAL employees , and in work places with CARDINAL employees by CARDINAL per further CARDINAL employees . Men and women shall be represented in proportion to their numbers amongst the employees .

Section CARDINAL lays down the principles of equal , direct and secret elections . All members of staff , irrespective of their nationality , are eligible to vote ( section CARDINAL ) . As regards the eligibility to stand for election , section CARDINAL(CARDINAL ) requires that the member of staff is

- an NORP national or national of a member ORG of ORG ,

- DATE at the time of the declaration of the election ,

- employed for DATE at the work place concerned , and

- apart from the requirement of nationality , not ineligible for the national assembly .

Sections CARDINAL to CARDINAL concern the rights of the works council , in particular its supervisory powers regarding compliance with work conditions , the right to intervene on behalf of staff members , the right to be generally informed about matters affecting the interests of staff and the right to regular meetings with the owner of the business .


Violation of Art. 5-3;Violation of Art. 5-5;No violation of Art. 13

On DATE the applicant was convicted of manslaughter and sentenced to DATE in prison . He was released on parole on DATE . On DATE he was arrested on suspicion of incest and indecent assault involving CARDINAL of his daughters . On DATE he was arrested on suspicion of other offences of rape and assault in relation to CARDINAL of his daughters . On DATE ORG approved further remand of the applicant and on DATE he was charged with CARDINAL offences of rape and CARDINAL offence of indecent assault concerning CARDINAL of his daughters . Ultimately , the indictment preferred against him contained CARDINAL counts of rape , CARDINAL counts of indecent assault and CARDINAL count of indecency with a child .

On DATE the applicant applied for bail to ORG . The court did not appreciate that section CARDINAL of ORG and LAW DATE ( “ the DATE LAW ) applied and a full bail application was heard . The court refused bail on the basis that it was feared that he might commit further offences and that he might interfere with witnesses or obstruct justice given the nature and seriousness of the charges . On DATE he again appeared before ORG and was remanded in custody . No bail application was made .

A further date was fixed for a bail application on DATE , the applicant having obtained an assurance of a surety from a captain in the territorial army with whom he could reside during his trial . On DATE , ORG was made aware of the applicability of section CARDINAL of the CARDINAL LAW and the hearing did not take place . On CARDINAL or DATE , DATE and DATE and on DATE the applicant appeared before ORG . ORG record for DATE hearing noted , in the schedule dealing with exemptions to the right to bail , “ no power to grant bail sCARDINAL CJPOA CARDINAL ” . The applicant was tried on DATE , when he was acquitted on all charges and released .

Section CARDINAL of LAW DATE as amended ( “ the DATE LAW ) provided that a person accused of a criminal offence should be granted bail except as stated in Schedule CARDINAL to the Act . Paragraph CARDINAL of Schedule CARDINAL provided that a defendant need not be granted bail if the court was satisfied that there were substantial grounds for believing that the defendant , if released on bail , would fail to surrender to custody , commit an offence while on bail or interfere with witnesses or otherwise obstruct the course of justice , whether in relation to himself or any other person .

Pursuant to paragraph CARDINAL of Schedule CARDINAL to the CARDINAL Act , in taking the above decision , the court was to have regard to such of the following considerations , as well as to any other considerations , as appeared to that court to be relevant :

– the nature and seriousness of the offence or default ( and the probable method of dealing with the defendant for it ) ;

– the character , antecedents , associations and community ties of the defendant ;

– the defendant ’s record as regards the fulfilment of his obligations under previous grants of bail in criminal proceedings ; and

– except in the case of a defendant whose case was adjourned for inquiries or a report , the strength of the evidence of his having committed the offence or having defaulted .

According to paragraph CARDINALA of Schedule CARDINAL to the CARDINAL Act , if a defendant ( who had been charged with murder , manslaughter , rape , attempted murder or attempted rape ) was granted bail and representations had been made as regards the matters mentioned in paragraph CARDINAL of Schedule CARDINAL , the court had to state its reasons for granting bail and cause those reasons to be included in the record of the proceedings .

Section CARDINAL of the Criminal Justice and Public Order Act DATE ( “ the DATE LAW ) came into force on DATE and provided as follows :

“ CARDINAL . A person who in any proceedings has been charged with or convicted of an offence to which this section applies and in circumstances to which it applies shall not be granted bail in those proceedings .

NORP This section applies , subject to subsection CARDINAL below , to the following offences , ... –

( a ) NORP murder ;

( b ) NORP attempted murder ;

( c ) manslaughter ;

( d ) NORP rape ; and

( e ) NORP attempted rape .

This section applies to a person charged with or convicted of any such offence only if he has been previously convicted by or before a court in any part of GPE of any such offence or of culpable homicide and , in the case of a previous conviction of manslaughter or culpable homicide , if he was then sentenced to imprisonment or , if he was then a child or young person , to long - term detention under any of the relevant enactments . ”

Section CARDINAL of the CARDINAL Act has been amended by section QUANTITY of LAW DATE , which entered into force on DATE . LAW reads as follows :

“ In sub - section ( CARDINAL ) of LAW ( no bail for defendants charged with or convicted of homicide or rape after previous conviction of such offences ) , for the words ‘ shall not be granted bail in those proceedings’ there shall be substituted the words ‘ shall be granted bail in those proceedings only if the court or , as the case may be , the constable considering the grant of bail is satisfied that there are exceptional circumstances which justify it’ . ”


Preliminary objection dismissed (non-exhaustion of domestic remedies);Violation of P1-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of a violation sufficient

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

The applicant was born in DATE and lives in GPE .

NORP The legal system of the former GPE ( SFRY ) distinguished CARDINAL types of ownership : private ownership ( privatno vlasništvo ) and social ownership ( društveno vlasništvo ) . While owners of property in private ownership were private individuals ( natural persons ) and some private legal entities called “ civil legal entities ” ( građanske pravne osobe ) such as foundations , associations and religious communities , property in social ownership , according to the official doctrine , had no owner . Nevertheless , the federal ORG , the constituent Republics , municipalities being local government units and other various legal entities called “ social legal entities ” ( društvene pravne osobe ) , among which the most important ones were companies , known at the time as “ organisations of associated labour ” ( organizacije udruženog rada ) and later on as “ socially owned companies ” ( društvena poduzeća ) , were during the socialist period given certain quasi - ownership rights over property in social ownership , such as the right to use it ( pravo DATE ) , the right to administer it ( pravo upravljanja ) or the right to dispose of it ( pravo raspolaganja ) . Private individuals could also acquire certain rights over property in social ownership . Notably , many individuals living in socially owned flats had specially protected tenancies ( stanarsko pravo ) in respect of those flats .

The LAW of GPE of DATE ( ORG , ORG , no . DATE with subsequent amendments ) acknowledged CARDINAL type of ownership : private ownership . Therefore , in order to bring the country ’s legal system in conformity with its LAW , in the period DATE ORG adopted several legislative acts with a view to transforming social ownership into private ownership .

NORP In particular , ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with subsequent amendments – “ the Sale to Occupier Act ” ) , which entered into force on DATE , enabled the holders of specially protected tenancies to purchase their flats which were in social ownership under favourable conditions and thereby become their owners .

ORG o pretvorbi društvenih poduzeća , ORG no . CARDINAL/CARDINAL with subsequent amendments ) , which entered into force on DATE , provided that all “ socially owned companies ” had to transform into commercial companies , in particular into either limited liability companies or joint stock companies .

On DATE both the Ownership and Other Rights In Rem Act ( Zakon o vlasništvu i drugim stvarnim pravima , Official Gazette no . CARDINAL/CARDINAL of CARDINAL DATE – “ the DATE LAW ” ) , and LAW for , and Restitution of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , with subsequent amendments DATE “ LAW ” ) , entered into force . By entry into force of these two Acts the transformation of social ownership into private ownership was largely completed .

The DATE LAW provided that by its entry into force the holders of the rights to use , administer and dispose of socially owned property ( see paragraph CARDINAL above ) were to become the owners of that property . As regards , in particular , commercial companies created through transformation of socially owned companies pursuant to ORG , the DATE LAW provided that those companies were already from the moment of their transformation to be considered the owners of socially owned property in respect of which they previously held the rights to use , administer and dispose of it ( see section CARDINAL(CARDINAL ) of DATE LAW in paragraph CARDINAL below ) .

The Denationalisation Act provided that in respect of certain property that had been through nationalisation or confiscation appropriated from its former owners during socialism and transferred into social ownership there was to be restitution in kind . It thereby enabled some former owners or their heirs to obtain ownership of such property which had until then been socially owned property .

The legislation of the former SFRY , in particular section CARDINAL of LAW of DATE ( see paragraph CARDINAL below ) , prohibited the acquisition of ownership of socially owned property by adverse possession ( dosjelost ) .

When incorporating the DATE LAW into the NORP legal system on DATE , ORG repealed that provision ( see paragraph CARDINAL below ) .

Subsequently , the new LAW of DATE provided in section CARDINAL ) that the period prior to CARDINAL DATE was to be included in calculating the period for acquisition of ownership by adverse possession of socially owned immovable property ( see paragraph CARDINAL below ) .

Following several petitions for constitutional review ( prijedlog za ocjenu ustavnosti ) submitted by the former owners of property that had been appropriated during socialism , on DATE ORG ( Ustavni sud PERSON ) accepted the initiative , and decided to institute proceedings to review the constitutionality of section CARDINAL ) of the DATE LAW ( decision FAC . ORG , U - I-CARDINAL/CARDINAL , PERSON , U - I-CARDINAL/CARDINAL and LAW of DATE , ORG no . CARDINAL of DATE ) .

On DATE ORG abrogated section CARDINAL ) of the DATE LAW ( decisions FAC . ORG , U - I-CARDINAL/CARDINAL , PERSON , U - I-CARDINAL/CARDINAL and LAW of CARDINAL DATE , ORG no . CARDINAL/CARDINAL of DATE ) . It held that the impugned provision had retroactive effects with adverse consequences for the rights of third persons and was therefore unconstitutional .

ORG decision in its relevant part reads as follows :

DECISION

I.

The provisions of section ... CARDINAL paragraph CARDINAL of the [ DATE LAW ] are hereby abrogated .

II .

Reasons

I.

The petitioners consider that the impugned provision tends to favour various users of property , who used it without any title , by enabling them to acquire ownership at the expense of [ former ] owners from whom it was taken during Communism ... They also point out that retroactive [ application of the rules of ] adverse possession should not be allowed .

The petition [ for constitutional review ] is well founded .

The impugned provision attributes a common quality to a certain state of facts even in respect of the period during which that quality was expressly excluded by law .

Namely , section CARDINAL of the [ DATE LAW ] provided that ownership of socially owned property could not be acquired by adverse possession . That provision was repealed by LAW on the Incorporation of the [ DATE LAW ] ( ... ) , as a result of which all immovable property which had been in social ownership before the adoption of the [ new DATE ] LAW , regardless of its status in the transitional period , came under the general regime also as regards [ the acquisition of ownership by ] adverse possession .

Since , in the court ’s view , repealing in the particular case amounts only to abrogation ex nunc [ ukidanje ] and not to annulment ex tunc [ poništavanje ] , it has to be concluded that the period of possession of the socially owned property before DATE ( DATE of entry into force of the Act on the Incorporation of the [ DATE LAW ] ) can not be taken into account for the purposes of acquiring ownership by adverse possession ...

Namely , the possessors of the property , in respect of which the acquisition of ownership by adverse possession was expressly excluded by law , were aware that this property was not susceptible to [ acquisition of ownership by ] adverse possession , which was also known to the holders of [ various ] rights over the same property ( the right to administer , use and dispose of it ) , who therefore did not [ have to ] use relevant remedies against the risk of losing the property on account of its acquisition by its possessors through adverse possession . Therefore , in the application of the impugned provision it may happen that holders of certain property rights lose these rights , which the LAW allows only exceptionally and with compensation .

What is more , the impugned provision makes possible the acquisition of ownership of certain property even before the time - limits for acquisition by adverse possession started to run , while [ at the same time ] the time - limits for acquisition by adverse possession of many types of former socially owned property are actually being extended ( the property owned by GPE , counties and units of local self - government ... ) .

[ For these reasons ] , the court finds that the impugned provision is not , in the substantive sense [ substantive unconstitutionality ] , in conformity with the highest values [ of the constitutional order ] of equality , inviolability of property and the rule of law enshrined in LAW , and the guarantee of property enshrined in LAW paragraph CARDINAL of the LAW .

Furthermore , the court concludes that the impugned provision has retroactive effects , for which reason it is not in conformity with the provision of LAW paragraph CARDINAL of the LAW either .

... , [ T]he court finds that while determining the retroactive effects of the said provision of section CARDINAL paragraph CARDINAL of the [ DATE LAW ] , the procedure prescribed by LAW was not observed .

For the court , when [ in the legislative process ] the legislator breaches its self - prescribed rules of procedure .... ... the legislative act adopted in such improper way , is not in accordance with ... the [ principle of the ] rule of law enshrined in LAW .

This further means that ... the impugned provision ... is not even in the formal sense [ formal unconstitutionality ] in compliance with LAW .

In DATE the applicant instituted civil proceedings before ORG ( PERSON ) against GPE ) and the ORG seeking a declaration of his ownership of certain plots of land and their registration in his name in the land register . The applicant claimed that the property at issue had been owned by his late uncle and confiscated in DATE by the socialist authorities . The applicant ’s late mother had been in possession of the land since DATE , as the applicant had continued to be after her death on DATE . Given that the prescribed period for acquisition of ownership by adverse possession had elapsed , the applicant claimed to have acquired ownership of the land .

On DATE ORG ruled for the applicant and ordered that he be recorded in the land register as the owner of the property . The court held :

“ After finding that the plaintiff ’s mother was a bona fide possessor of the immovable property in question , it needs to be established whether she possessed it during the statutory period necessary to acquire ownership by adverse possession .

Once section CARDINAL of the DATE LAW was repealed ... it has become possible to acquire ownership by adverse possession of socially owned immovable property ... [ Also ] , under section CARDINAL(CARDINAL ) of the DATE LAW , in calculating the period for the acquisition by adverse possession of immovable property which was socially owned on DATE , the period before that date has also to be taken into account .

Section CARDINAL ) of the DATE LAW was abrogated by a decision of ORG ... , which means that , in the period prior to its abrogation , that provision was in force , that is until DATE ...

In order to acquire ownership by adverse possession of ORG - owned immovable property , under section CARDINAL(CARDINAL ) of the DATE LAW , a period twice as long as that set out in DATE and CARDINAL of that section is required , which means that in respect of the land at issue a continuous undisturbed possession in good faith over a period of DATE is needed .

Having regard to the fact that ... the plaintiff was , through his mother , in continuous possession of the land in question since DATE , it has to be concluded that he acquired ownership by adverse possession ... ”

On an appeal by both respondents , on DATE ORG ( PERSON ) reversed the first - instance judgment and dismissed the applicant ’s claim on the following grounds :

“ It is undisputed between the parties that :

- the immovable property at issue was confiscated from the plaintiff ’s legal predecessor ... in DATE ;

- the respondent was recorded [ as owner ] in the land register on the basis of the confiscation decision ;

- the plaintiff and his legal predecessor have had continuous possession [ thereof ] since DATE ...

The first - instance court erred in finding that the plaintiff had acquired ownership by adverse possession of the immovable property at issue because he and his legal predecessor had had continuous possession since DATE , on the basis of section CARDINAL ) of the DATE LAW , which was subsequently abrogated by a decision of ORG ... In its decision ORG held that the unconstitutionality of the abrogated provision existed already prior to it being abrogated , that is , since its entry into force , a conclusion that is also accepted by this court . Consequently , irrespective of the fact that section CARDINAL ) was in force until the publication of ORG decision in ORG , the [ first - instance court ’s ] decision could not be based on an unconstitutional provision . ”

NORP The applicant lodged a constitutional complaint against that judgment , claiming , inter alia , an infringement of his property rights . On DATE ORG dismissed the applicant ’s complaint , finding that :

“ During the ... proceedings ... ORG has established that [ the second - instance judgment ] was reached in application of the relevant provisions of substantive law , and that the legal findings of the second - instance court were well reasoned , and that therefore there has been no infringement of the complainant ’s ownership rights ... ”

In DATE the applicant requested the reopening of criminal proceedings which had ended in DATE and in which his uncle had been convicted .

On DATE the ORG declared the applicant ’s request inadmissible , finding that he had not been entitled to make such a request . On appeal , ORG ( PERSON ) upheld the first - instance decision on DATE .

Subsequently , on DATE ORG declared the applicant ’s complaint inadmissible for lack of jurisdiction .

On DATE the applicant applied to the competent administrative authority seeking restitution of the above plots of land that had been confiscated from his late uncle in DATE by the socialist authorities . In doing so he relied on LAW . It appears that the proceedings were later on stayed and that they are formally still pending .

The DATE LAW on FAC of GPE ( PERSON o PERSON , ORG no . CARDINAL of DATE , which entered into force on DATE – “ LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE , which entered into force on DATE ) , in its relevant part reads as follows :

“ ( CARDINAL ) The Constitutional Court shall abrogate [ ukinuti ] a statute or its provisions if it finds that they are incompatible with the LAW ...

( CARDINAL ) Unless the Constitutional Court decides otherwise , the abrogated [ ukinuti ] statute or its provisions shall cease to have legal force on the date of publication of ORG decision in ORG [ i.e. ex nunc ] .

( CARDINAL ) ... ”

“ ( CARDINAL ) The final sentence for a criminal offence based on a statutory provision that has been abrogated as contrary to the LAW shall cease to produce legal effects from DATE of the entry into force of ORG decision abrogating the statutory provision on the basis of which the sentence was delivered and may be set aside by [ a petition for ] reopening of criminal proceedings .

( CARDINAL ) Every natural or legal person who has lodged with ORG a petition to review constitutionality of a statutory provision , or a constitutionality or legality of a provision of subordinate legislation , and whose petition has been accepted by ORG and [ that ] provision abrogated [ ex nunc ] , has a right to lodge with the competent authority [ a petition for reopening of proceedings ] and ask that the decision based on the abrogated ... provision ... be set aside .

( CARDINAL ) ...

( CARDINAL ) [ The petition for reopening of the proceedings ] referred to in CARDINAL of this section may be lodged within DATE of the publication of ORG decision in ORG .

( CARDINAL ) In proceedings in which no final decision has been adopted before the date of the entry into force of ORG decision abrogating a statute , [ ... ] or its provisions , and this statute [ ... ] is directly applicable in the case , the abrogated statute [ ... ] or its provisions shall not be applied from DATE of the entry into force of ORG decision . ”

Section CARDINAL of LAW ( Zakon o osnovnim vlasničkopravnim odnosima , ORG of ORG nos . CARDINAL/CARDINAL and ORG , which entered into force on DATE – “ the DATE LAW ” ) prohibited the acquisition by adverse possession of ownership of socially owned property .

Section CARDINAL of the Act on the Incorporation of the Act on Basic Ownership Relations ( Zakon o preuzimanju zakona o osnovnim vlasničkopravnim odnosima , ORG no . CARDINAL of CARDINAL DATE ) repealed section QUANTITY of LAW .

The relevant part of the Ownership and Other Rights In GPE ( Zakon o vlasništvu i drugim stvarnim pravima , ORG no . CARDINAL/CARDINAL of DATE , which entered into force on DATE – “ the DATE LAW ” ) , as in force at the material time , read as follows :

Part CARDINAL

RIGHT OF OWNERSHIP

LAW .

ACQUISITION OF OWNERSHIP

“ ( CARDINAL ) Ownership may be acquired by legal transaction , by decision of a court or other public authority , by succession , or by the operation of law . ”

“ ( CARDINAL ) Ownership may be acquired by adverse possession on the basis of the exclusive possession of a certain property ... if such possession has lasted continuously for a period of time determined by law and if the possessor is capable of being the owner of such property .

( CARDINAL ) An exclusive possessor who possesses under just title , in good faith and whose possession is free of vice shall acquire ownership of movable property after DATE and of immovable property after DATE .

( CARDINAL ) An exclusive possessor who possesses at least in good faith shall acquire ownership of movable property after DATE and of immovable property after DATE of continuous exclusive possession .

( CARDINAL ) An exclusive possessor of a property owned by GPE ... shall acquire ownership by adverse possession once his or her ... possession has lasted continuously for a period twice as long as that set out in CARDINAL of this section . ”

Part CARDINAL

TRANSITIONAL AND ORG PROVISIONS

LAW .

ORG

“ ( CARDINAL ) ...

( CARDINAL ) The right of ownership and other rights in rem acquired under the provisions of this LAW on transformation of the rights to administer , use or dispose of socially owned property ... shall be considered acquired under the condition that they are not in collision with the rights of other persons over [ such ] property under the denationalisation legislation .

“ ( CARDINAL ) The right to administer , use or dispose of socially owned property became by the transformation [ privatisation ] of its holder the right of ownership of that person who through the transformation became the former holder ’s universal legal successor ...

( CARDINAL ) The right to administer , use or dispose of socially owned property which before the entry into force of this LAW was not transformed into a subject of the right of ownership , shall by this LAW ’s entry into force become [ its ] right of ownership ...

( CARDINAL ) The provisions of paragraph CARDINAL and CARDINAL of this section shall be applied , mutatis mutandis , to other rights in rem .

( CARDINAL ) Registration of the right to administer , use or dispose of [ socially owned property ] in the land register ... shall be considered registration of the right of ownership . ”

“ ( CARDINAL ) It is considered that the owner of a socially owned immovable property is a person registered in the land register as a holder of the right to administer , use or dispose of that immovable property .

( CARDINAL ) ... ”

“ ( CARDINAL ) Person whose right of ownership is derived from the former right to administer , use or dispose of socially owned property ... shall have the right to protect it as any owner ... ”

LAW .

“ ( CARDINAL ) The acquisition , modification , legal effects or termination of rights in rem after the entry into force of this LAW shall be assessed on the basis of its provisions ...

( CARDINAL ) The acquisition , modification , legal effects and termination of rights in rem until the entry into force of this LAW shall be assessed on the basis of rules applicable at the moment of the acquisition , modification or termination of those rights or of their legal effects .

( CARDINAL ) If the prescribed time - limits for the acquisition and termination of rights in rem set out in this LAW started to run before its entry into force , they shall continue to run pursuant to paragraph CARDINAL of this section ...

( CARDINAL ) In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on DATE , and for the acquisition of [ other ] rights in rem over such property , the period before that date shall also be taken into account . ”

The relevant part of LAW to the DATE LAW ( Zakon o izmjeni i dopuni PERSON vlasništvu i drugim stvarnim pravima , Official Gazette no . CARDINAL of DATE , which entered into force on DATE ) that were enacted following the abrogation of section CARDINAL ) of the DATE LAW by ORG on DATE , reads as follows :

“ In section CARDINAL , a new paragraph CARDINAL shall be added after paragraph CARDINAL , to read :

‘ In calculating the period for the acquisition by adverse possession of immovable property which was socially owned on DATE , and for the acquisition of [ other ] rights in rem over such property , the period before that date shall not be taken into account.’ ”

The Act on Compensation for , and ORG of , Property Taken During ORG ( Zakon o naknadi za imovinu oduzetu za TIME jugoslavenske komunističke vladavine , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL and DATE ( corrigendum ) , which entered into force on DATE – “ the DATE LAW ” ) enables the former owners of confiscated or nationalised property , or their heirs in the first line of succession ( direct descendants and a spouse ) , to seek under certain conditions either restitution of or compensation for the appropriated property .

The DATE LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , ORG and CARDINAL/CARDINAL and ORG nos . CARDINAL , GPE , CARDINAL , CARDINAL and CARDINAL , which entered into force on DATE – “ LAW ” ) , as amended by LAW ( Official Gazette no . CARDINAL , which entered into force on DATE ) in its relevant part reads as follows :

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the finality of the judgment of ORG , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom .