Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in PERSON . He is represented before ORG by Odvetniška Družba Matoz D.O.O. , a law firm practising in PERSON .

ORG ( “ the Government ” ) are represented by their Agent , PERSON , ORG Attorney .

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

The applicant was serving a sentence in the closed section of Dob Prison from DATE until DATE .

As regards the facilities available to the applicant in the cells and common areas , as well as the health care regime in the prison , the conditions imposed on the applicant regarding activities outside the cells and contact with the outside world in general , see the ORG ’s decision in the case of PERSON and PERSON v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , CARDINAL/CARDINAL , ORG , CARDINAL , ORG , CARDINAL/CARDINAL and DATE .

DATE and DATE the applicant was held in cell no CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . He was later transferred several times . From DATE to DATE , from DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in cell CARDINAL , Block CARDINAL which measured QUANTITY and held CARDINAL inmates ( QUANTITY of personal space available to each inmate ) . From DATE to CARDINAL DATE and from DATE to CARDINAL DATE he was held in cell DATE , ORG which measured QUANTITY and held CARDINAL inmates ( CARDINAL to QUANTITY of personal space available to each inmate ) . From CARDINAL DATE to DATE and from DATE to CARDINAL DATE he was in a hospital room which measured CARDINAL to QUANTITY and held CARDINAL inmates ( CARDINAL to QUANTITY of personal space available to each inmate ) .

According to the ORG ’s submissions there was a physical conflict on DATE between the applicant and another prisoner , who ‘ head - butted’ the applicant after the applicant had angered the prisoner by changing a television programme and pushed him away . After the incident the prisoner was transferred , disciplinary proceedings were instituted against him and ORG was informed of the incident . The applicant sustained a fracture of nasal bones and consequently had difficulties with breathing . He later rejected reposition of the nasal bones and the operation ; however after DATE he asked for a corrective operation and was referred to a plastic surgeon . Prior to the incident the applicant never informed prison staff about feeling threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner . The Government submitted the incident was therefore unpredictable for prison staff and that they could not have had prevented it . However , they reacted immediately and took the applicant to health centre for a medical examination and to general hospital for medical treatment .

As regards an incident on DATE the ORG submitted that there was a physical conflict between the applicant and another prisoner . On DATE the other prisoner had supposedly provoked the applicant ; they ended up in several fights , with the applicant allegedly hitting the other prisoner in the eye , which led to the incident on DATE . The applicant however never informed prison staff about these fights and never informed them that he felt threatened by this prisoner or asked for a transfer due to feeling threatened by this or any other prisoner , therefore again the incident was unpredictable and unpreventable . After the incident prison staff promptly took the applicant to a health centre for a medical examination and DATE to general hospital , where he was admitted for CARDINAL-hour medical monitoring . On the return to prison , the applicant was transferred to another section and on the request of a nurse put under higher supervision of prison guards . The other prisoner was placed in a special room under video surveillance and disciplinary and criminal proceedings were instituted against him .

After the CARDINAL events , no further incidents occurred between the applicant and these CARDINAL prisoners . According to the ORG ’s submissions on DATE prison staff , when conflicts are detected , conduct a talk with prisoners who have conflicts and makes an official note about it . However , until the incident on DATE , no conflict between the applicant and a prisoner was detected or recorded by prison staff .

According to a doctor ’s report dated DATE the applicant was treated on CARDINAL occasions , mostly for his back pain .

For the relevant domestic law and practice , see paragraphs CARDINAL and ORG the ORG ’s judgment in the case of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , CARDINAL DATE ) , and paragraphs CARDINAL of ORG and PERSON GPE ( nos . CARDINAL/CARDINAL and CARDINAL , DATE ) , PERSON and Others , cited above , as well as PERSON v. GPE ( no . CARDINAL/CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . MONEY , DATE ) .


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed

András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s wife filed a divorce petition with the appropriate tribunal de grande instance . In an interlocutory decision of DATE , the family - affairs judge , finding that the couple were not reconciled , gave the petitioner leave to bring divorce proceedings against her husband and ruled on the interim arrangements . The judge granted parental responsibility for the children , who were born in DATE and DATE , jointly to their father and mother , decided that they should habitually live with their mother and made provisions for the applicant ’s right of visiting contact . The judge also ordered a welfare report together with a medical and psychological examination of all the members of the family . The welfare report , filed on DATE , revealed that the applicant was present and active as a father and had developed a sound relationship with his children . It recommended that he be granted broad rights of visiting and staying contact .

On DATE the applicant ’s wife brought divorce proceedings against him before the same tribunal de grande instance . She alleged that her husband had repeatedly subjected her to acts of violence and that he had chronic alcoholism .

In a judgment of CARDINAL DATE , the tribunal de grande instance granted the divorce on grounds of fault by the applicant alone , confirmed the interim arrangements indicated in the interlocutory decision , acknowledged the father ’s poor financial situation and exempted him from child maintenance obligations . It ruled as follows :

“ The wife has produced duly substantiated medical certificates attesting to the reality of the acts of violence to which she has been subjected and of which the only plausible origin lies in her husband ’s behaviour towards her . Her husband , as she has also shown , suffers from alcoholism , and this may reasonably be said to constitute the primary cause of his behaviour .

These acts imputable to the husband constitute serious and repeated breaches of his marital duties and obligations and have led to an irretrievable breakdown in the marriage . It is appropriate to grant the petition and pronounce the divorce on grounds of fault by the husband alone .

The applicant appealed against the judgment before the appropriate ORG , requesting that the divorce be granted on grounds of fault by both spouses and seeking a more extensive right of contact with his children . As to the grounds of divorce , he alleged that he had been subjected to aggressive behaviour and harassment by his wife and disputed her claim that he was an alcoholic . In this connection , he principally requested the exclusion from the case file of a document from his medical records that his wife had , according to him , obtained by fraudulent means and on which she had relied to show that he was an alcoholic . The document in question was an operation report of DATE concerning a splenectomy which the applicant had undergone . It had been sent on DATE in a letter from Doctor PERSON ( a specialist in digestive surgery ) to the applicant ’s general practitioner . The applicant claimed , however , that he had never provided his wife with a copy of the document , nor had he released the doctor who signed it from his duty of medical confidentiality in that connection . As to the ancillary arrangements decided by the court below , he considered that the restrictions on his right of contact were unjustified , arguing that the welfare report and the additional documents he had produced proved his attachment to his children and the guarantees he was able to give in order to receive them . The applicant ’s ex - wife , for her part , reiterated the complaints she had made before the court below . She also denied that she had obtained a medical document fraudulently , alleging that her husband had entrusted her with “ the management of paperwork ” , rejected any accusation of violence , and considered that the applicant ’s demands , in respect of his right of contact , were premature as he was living with his parents and had not yet overcome his drink problem .

In a judgment of CARDINAL DATE , ORG upheld the provisions of the judgment appealed against as regards the granting of the divorce , the exercise of parental responsibility and the children ’s habitual residence , giving the following reasoning :

“ – The granting of the divorce :

Whilst certain testimony she has produced , concerning manifest drunkenness and resulting violent behaviour on the part of her husband at family gatherings , is very dated and not useful for the proceedings , she has nevertheless submitted to the ORG testimony from CARDINAL of his sisters concerning PERSON [ L.L. ] ’s alcohol addiction and his resulting aggressiveness .

Mr [ ORG ] ’s alcoholism has been confirmed by medical documents and in particular a letter of DATE to his general practitioner from Doctor PERSON and there is no evidence to suggest that it was obtained fraudulently by his wife – referring to ‘ a bout of acute pancreatitis with a background of NORP and indicating that the consequences of the pancreatitis could only be brought under control if the subject gave up alcohol .

Mrs [ ORG ] also produced medical certificates dated DATE , DATE , DATE and DATE in which various injuries were recorded DATE in particular a perforated eardrum DATE and from which violent acts by the husband must necessarily be inferred , as no other explanations have been suggested by PERSON [ L.L. ] .

This conduct ... constitutes a serious and repeated breach of marital duties , leading to an irretrievable breakdown in the marriage , and the judgment appealed against must accordingly be upheld in so far as it granted the divorce petition filed by the wife . ... ”

As regards the applicant ’s request for the extension of his rights of visiting and staying contact , the court considered it necessary to order , as an interlocutory measure , a medical and psychological report on the family group . After the expert ’s report had been filed , on an undetermined date , ORG , on DATE , granted the applicant ’s request and accorded him a right of contact with which he was satisfied .

On DATE the applicant wrote a letter to the President of ORG in which he expressed his intention to appeal on points of law against the judgment of DATE , considering that the “ legislation [ had ] not been correctly applied ” . As regards the medical documents produced in the case , he criticised the courts that had ruled on his case for using those documents in spite of his protests , and added that such a practice was in breach of LAW since “ judges [ could not ] require hospital records to be produced without risking the disclosure of facts protected by professional confidentiality ” .

For the purposes of his appeal on points of law , the applicant filed a request for legal aid with ORG . His request was rejected by ORG on DATE , then by the President of ORG on DATE , on the ground that “ it [ did ] not appear from an examination of the material in the case file that a ground of appeal on points of law [ could ] be argued with any real prospect of success ” .

In the meantime , following a report of ill - treatment filed by the applicant with ORG , the children ’s judge at the tribunal de grande instance , on DATE , initiated the procedure providing , in respect of the couple ’s children , for a measure of guidance in the home community . That measure was extended on DATE for a further DATE period .

At the material time the relevant provisions of LAW read as follows :

“ Everyone has the right to respect for his private life . ... ”

“ The proceedings on the cause of action , the consequences of the divorce and on the interim arrangements shall not be public . ”

“ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence , including confessions . ”

“ A spouse may not produce in the proceedings any letters exchanged between his or her spouse and a third party that he or she may have obtained by duress or fraud . ”

“ Reports drawn up at the request of a spouse shall be declared inadmissible as evidence in the event of trespass on domestic premises or unlawful interference with private life . ”

Articles CARDINAL and CARDINAL - CARDINAL of the Civil Code were amended by PERSON no . DATE of CARDINAL DATE , which came into force on DATE . Those ORG now read as follows :

“ Facts relied on as grounds for divorce or as a defence to a divorce petition may be established by any type of evidence , including confessions . However , evidence from descendants may never be heard in respect of the complaints submitted by the spouses . ”

“ A spouse may not produce in the proceedings any evidence that he or she may have obtained by duress or fraud . ”

NORP In divorce proceedings , evidence of the complaints submitted is unrestricted and may be adduced by any means , unless it is shown that it has been obtained by duress or fraud ( LAW ) or that reports drawn up at the request of a spouse have given rise to unlawful interference with private life or trespass on domestic LOC ( Article CARDINAL of LAW ) .

In this connection , where , for the purposes of adducing preliminary evidence of a spouse ’s breach of his or her duty of fidelity , a report establishing adultery has been drawn up by a bailiff , with judicial authorisation , at the domicile of the other party to the adulterous relationship , such an act constitutes lawful interference with private life ( Court of Cassation , ORG , DATE , ORG . civ . ) no . CARDINAL ) . Similarly , a report drawn up without judicial authorisation , at the request of the husband , on premises of which he has possession , may be taken into consideration by the tribunals of fact ( Court of Cassation , ORG , DATE ) . However , having regard to LAW , ORG has held that where a person has been spied on , watched and followed for DATE , interference with that person ’s private life , by a private detective acting on instructions to identify aspects of his or her way of life that might support a request for the discontinuance of a compensatory financial provision paid by the person ’s former spouse , is disproportionate to the aim pursued ( Court of Cassation , ORG , DATE , ORG . civ . no . CARDINAL ) .

Conversely , having regard to LAW , a court of appeal which held , on the basis of the evidence which it alone was empowered to assess , that a relationship detrimental to a husband carried on between his wife and a third party could be established by e - mails and by a private investigation report , rightly inferred therefrom , absent any evidence of duress or fraud , that serious and repeated breaches of marital duties were thus substantiated ( Court of Cassation , ORG , CARDINAL DATE , ORG . civ . I no . CARDINAL ) . In the same vein , a private investigation report is admissible when corroborated by other evidence such as comments written in a diary ( Court of Cassation , ORG , CARDINAL DATE , unreported ) or witness statements . As regards letters exchanged between one of the spouses and a third party within the meaning of the former LAW , a court , in order to declare inadmissible letters from a wife to third parties , together with her diary , is not entitled to find that their production breached her privacy unless the husband obtained those documents by fraud or duress ( Court of Cassation , ORG , DATE , ORG DATE , ORG . civ . II no . CARDINAL ) . It has been held , however , that a diary should be declared inadmissible on the basis of LAW tribunal de grande instance , judgment of DATE ) .

The relevant provisions of the new Code of Civil Procedure read as follows :

“ Registrars and custodians of public registers shall be required to issue a copy or an extract therefrom to any applicant , subject to the exercise of their rights . ”

“ In the event of refusal or where no response is obtained , the president of the tribunal de grande instance , or , where the refusal emanates from a registrar , the president of the court to which his office is attached , seised by way of application , shall adjudicate , after hearing representations from the applicant and the registrar or custodian , or after giving them notice to appear .

Appeals shall be lodged , examined and determined as in non - contentious matters . ”


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

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

The applicant , a tax consultant and accountant , represented mainly low - income employees or foreigners in proceedings before ORG ( PERSON ) . In the course of these proceedings he came into conflict with NORP , judge and subsequently presiding judge of the competent senate of ORG .

In DATE judge NORP informed the applicant on CARDINAL occasions by telephone that the court had repeatedly warned him about his behaviour vis - à - vis the Court .

On DATE , during the suspension of a hearing , the judges , among them judge NORP , mentioned in the applicant ’s absence the possibility to bring the proceedings to an end by putting the applicant under pressure and imposing on him the costs of the proceedings or of an expert opinion . Thereafter the applicant successfully challenged the former presiding judge for bias .

Subsequently , ORG objected to the validity of the powers of attorney submitted by the applicant and excluded him from representing his clients in the further proceedings . On the applicant ’s appeal , ORG ( ORG ) quashed the decisions by ORG given in this respect and confirmed the validity of the applicant ’s mandate .

On another occasion , in reply to a question of the president of ORG how to proceed with the numerous cases brought by the applicant , judge NORP declared at a meeting of the judges of ORG held on CARDINAL DATE that , as a matter of course , these cases would be disposed of and sent to GPE .

On CARDINAL and DATE , following various procedural requests and challenges for bias filed by the applicant , ORG refused to accept the applicant as representative acting on behalf of his clients in further proceedings on the ground that he was unable or unwilling to make adequate oral or written submissions . On DATE ORG quashed this decision . The applicant subsequently challenged judge NORP for bias in numerous other proceedings .

In letters of CARDINAL and CARDINAL DATE , the applicant wrote to ORG , among others , that judge NORP had a hostile attitude to law and knowingly accepted perversion of justice . Furthermore , in a document of CARDINAL DATE , he compared judge NORP to a judge committed to the methods of ORG ( Reichsfinanzhof ) or ORG ( Volksgerichtshof ) .

On DATE the applicant asked a court official to tell judge NORP that he was feeble - minded for having fixed a very short time - limit for the submission of numerous documents that had so far only been sent by fax .

On DATE , ORG ( ORG ) convicted the applicant for defamation ( Beleidigung ) in CARDINAL cases , in accordance with LAW , and imposed a fine of CARDINAL NORP PERSON upon him .

On DATE ORG ( Landgericht ) dismissed the applicant ’s appeal and , upon the public prosecutor ’s appeal , increased the fine to CARDINAL NORP PERSON . It found that the applicant had tarnished the reputation of judge NORP in that , firstly , he had accused him of perversion of justice , secondly , compared him to a judge of ORG and , thirdly , characterised him as feeble - minded . As regards the applicant ’s defence that he had acted for the protection of his GPE legitimate interests , the ORG considered that the insulting remarks at issue had been unnecessary and inappropriate . The applicant could have made use of the available legal remedies .

On DATE , ORG ( Oberlandesgericht ) dismissed the applicant ’s appeal on points of law as being ill - founded .

Sitting as a committee of CARDINAL judges , ORG ( Bundesverfassungsgericht ) decided on DATE not to entertain the applicant ’s constitutional complaint .

LAW provides :

“ Defamation shall be punished with imprisonment for not DATE or a fine and , if the defamation is committed by means of violence , with imprisonment for not DATE or a fine . ”

Article CARDINAL of the Penal Code provides :

“ Critical judgments about scientific , artistic or commercial achievements , similar utterances which are made in order to exercise or protect rights or to safeguard legitimate interests , as well as remonstrance and reprimands of superiors to their subordinates , official reports or judgments by a civil servant and similar cases are only punishable to the extent that the existence of an defamation results from the form of the utterance of the circumstances under which it occurred . ”


No violation of Art. 2;No violation of Art. 3

Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and is currently in GPE .

On DATE the applicant arrived in GPE and applied to ORG ) for asylum and a residence permit , claiming that he had left GPE due to his fear of PERSON and his regime . He brought his CARDINAL children with him ( born in DATE , DATE and DATE , respectively ) while his wife arrived in DATE . At the initial interview held with the applicant on DATE of his arrival in GPE , he stated , inter alia , that he was NORP and had worked as a major in ORG where he had served in a transport division for heavy vehicles . He had deserted from the army DATE previously and had fled to the northern part of GPE where , with the help of a smuggler , he had managed to get on a plane to GPE . He had had neither ticket nor passport and his wife had remained in northern GPE .

In a written submission dated DATE the applicant added mainly the following to his initial account . He was born in GPE but had moved to GPE in DATE when he married . DATE and DATE , during the war with GPE , he had served in the military and he had been called up again between DATE and DATE , during the occupation of GPE , to serve in an armoured transport division assigned to transport tanks . He had been given CARDINAL military awards for bravery and CARDINAL medals , however such medals had been given to a large number of officers and soldiers . In DATE he had been called upon to carry out military assignments ( allegedly murders and terrorist acts ) against the GPE in FAC . As he had felt unable to murder his own people , he had deserted and left GPE on DATE . In this respect , he submitted that he sympathised with all organisations working against PERSON and working towards a democratic government . Following his desertion , he had visited his relatives in GPE and then made his way , with his family , to northern GPE , where he and his children had travelled to GPE via GPE with the help of smugglers . Since he had held the rank of major in the reserve and had deserted , he would be executed if he were forced to return to GPE . Apart from his QUANTITY medals he also had an identity card as a major which confirmed that he was CARDINAL of PERSON friends .

At a second interview at ORG , held on DATE , the applicant confirmed the information provided by him and added , in particular , that he had not engaged in any political activities .

On DATE and DATE another CARDINAL in - depth interviews were held with the applicant in which he essentially stated the following . He was NORP and belonged to ORG where he had attained the level of “ advanced sympathiser ” which was the level before becoming a full member . He had been drafted to the military in DATE , had become an officer in DATE and had risen to major in DATE . He claimed that he had never participated in any combat or killed anyone since his military work had mainly consisted of ensuring the functioning of transports and support for the front line . As an officer , he had been placed under the orders of others and thus had never had any influence himself . He had participated in the war against GPE and when this ended in DATE he had been transferred to an armoured tank division within ORG . In DATE he had received CARDINAL medals for bravery from ORG . He stated that CARDINAL officers had received such medals and that they were mainly perceived as an encouragement to the officers . At this time he had also received a special identity card , “ Friends of PERSON ” , which almost every officer in ORG and some officers in the regular army received . He had never met PERSON personally but the card gave certain privileges , inter alia , in contacts with the authorities . During the interview on DATE , the applicant changed certain statements which he had previously given to ORG . In particular , he claimed that he had not been called back into service after he left the military in DATE . Moreover , he stated that he had applied for a visa for a tourist trip to GPE with his family at FAC in GPE and that they had received both visas and exit permits for DATE . Hence , on DATE , the family had travelled legally from GPE to GPE and from there by plane to GPE . He and his children had then travelled to GPE from GPE , with the help of smugglers . The applicant stated that he wished to return to GPE if PERSON lost power .

One further supplementary interview was held with the applicant on DATE in which he maintained that he had left GPE legally on DATE by car to GPE , after the family had received valid passports , exit permits and visas . He also added that , from GPE , the family had flown to GPE from where they had intended to continue to GPE . Since this had not been possible , they had returned to GPE before travelling to GPE where they had arrived on DATE . Since the smugglers had not been able to arrange a passport for his wife , she had had to remain in GPE when the rest of the family went to GPE .

In DATE the Swedish Security Police ( Säkerhetspolisen ) proposed a rejection of the applicant ’s asylum request for security reasons . On the basis of this , ORG decided to transfer the case to the Government for consideration but it recommended that the application be rejected . In its view , the applicant had not convincingly shown that he was in need of protection in GPE . Although it accepted the applicant ’s military background , it did not believe his reasons for leaving GPE , inter alia , because he had only admitted leaving GPE legally with his own passport and an exit permit , and the route used , once confronted with facts .

Subsequently , in DATE , the Security Police informed the Government that they no longer had any objections to the application from the point of view of security . Hence , the case was transferred back to ORG .

On DATE ORG rejected the application for asylum with reference to its recommendation to the Government and noting that it found no reason to change the evaluation made at that time . Moreover , it dismissed the applicant ’s request for a residence permit on the ground that it was not competent to change or repeal a final court judgment concerning expulsion . ORG observed that only the Government could repeal an expulsion order based on a criminal conviction and , in that connection , consider a request for a residence permit .

In the meantime , on CARDINAL DATE , before the asylum application had been determined , ORG ( tingsrätten ) of PERSON convicted the applicant of murder and sentenced him to forensic psychiatric care , the duration of which was subject to a medical evaluation . It further ordered that the applicant be expelled from GPE with a prohibition on returning . The applicant had admitted that he had killed his wife but claimed that he had acted in psychosis and had not intended to kill her . He had suspected that she had been unfaithful and had conspired against him behind his back . In its judgment , the court noted that the applicant , after having locked the door to the children ’s room , had repeatedly stabbed his wife while she was asleep . In these circumstances , the court found that the applicant had been completely indifferent as to whether his wife died or not and therefore should be convicted of murder . However , since a forensic psychiatric examination showed that he had committed the crime in a state of “ serious mental disturbance ” ( allvarlig psykisk störning ) and was still , during the examination , suffering from such a disturbance , the court concluded that he was in need of treatment and sentenced him to forensic psychiatric care .

As concerned the expulsion , the applicant had stated before ORG that he had been an officer in PERSON army and often away on missions . Because of the war , he and his family had fled from GPE in DATE but he had psychological problems stemming from the war .

ORG had also consulted ORG and it had submitted that , although it had not yet made a decision regarding the applicant ’s application for asylum and a residence permit , it considered that there were no impediments to the expulsion of the applicant to his home country . ORG noted that the applicant , an army officer , had left GPE legally with a valid NORP passport containing a DATE exit visa . He had not brought his national passport with him when he entered GPE . Having regard to the ORG ’s view and noting that the applicant had committed a very serious crime , ORG concluded that he should be expelled from GPE for life .

The applicant did not appeal against the judgment which , consequently , gained legal force .

It would appear that , following the applicant ’s criminal conviction , his children were taken into compulsory public care and placed with a NORP family . Furthermore , a special guardian was appointed for them and they were granted permanent residence permits in GPE .

On DATE ORG ( länsrätten ) of GPE decided to end the forensic psychiatric care and to release the applicant .

In the meantime , in DATE , the applicant requested the ORG to repeal the expulsion order against him . He insisted that he would be tortured and executed if he was returned to GPE because he had deserted from the NORP army .

On DATE the ORG rejected the request as they found that no special reasons existed for repealing the expulsion order .

NORP The applicant renewed his request in DATE , maintaining his claims . Upon request by the Government , ORG ( Migrationsverket ) submitted its view on the case , stating that the applicant ’s reasons had been examined previously and that no new circumstances had appeared for which reason the enforcement of the expulsion could take place . However , ORG added that there had been practical impediments to enforcement for some time with regard to GPE .

On DATE the Government found that there were insufficient reasons for revoking the expulsion order . However , having regard to the situation in GPE at the time , the Government decided to grant the applicant a temporary residence permit and work permit up until DATE .

In a new application , dated DATE , the applicant requested that the expulsion order be revoked and that he be granted a permanent residence permit or , in the alternative , that his temporary residence permit be extended for DATE .

ORG submitted its comments on the case on DATE , concluding that there were no legal or practical impediments to the enforcement of the expulsion order and that the applicant should be able to return to GPE .

Following the fall of PERSON regime in DATE , ORG sent another submission to the Government on DATE where it noted that the applicant ’s case now had to be seen in another light . His reasons for fearing a return to GPE had been removed now that PERSON was no longer in power . ORG governing GPE at the time was striving to build up a society characterised by democracy and respect for human rights and those who had been close to the old regime and who had committed war crimes and other crimes against humanity would be brought to justice . Thus , ORG considered that the applicant would not risk being tortured or treated inhumanely if sent back to GPE and consequently there was no impediment to his expulsion .

NORP In reply , the applicant claimed that since he had been an officer in ORG , he would be exposed to persecution and acts of revenge from primarily Shi’a NORP groups and that there was no functioning legal system or police force which could give him protection against abuse . It followed that there existed impediments to the enforcement of his expulsion .

Since the Government had several pending cases concerning expulsion to GPE , they requested ORG at ORG in GPE to reply to some questions relating to the situation in GPE .

In DATE ORG sent , inter alia , the following information to the Government , which was communicated to the applicant . In DATE the death penalty was reintroduced in GPE for offences such as murder , kidnapping and crimes against national security . Moreover , according to LAW of DATE , a person who had been convicted or acquitted by final judgment in another country could not be retried in GPE . However , it was not known whether this provision had been modified or changed by ORG . Furthermore , it was difficult to assess “ tribal justice ” in GPE due to the poor security situation in the country but it was possible that , if a person were to return to an area where he was known and his victim was also known , there could be a risk of revenge or “ tribal justice ” . It was further noted that there were reports of harassment against NORP and that attacks had been directed against NORP and other minorities during DATE .

The applicant commented on the information and stressed that he was NORP and that the NORP minority in GPE was being persecuted . Moreover , he had held a prominent position in ORG , had belonged to the exclusive circle that had been given the “ PERSON ’s Friends ” identity card and he was well known and hated by many . Thus , it was certain that he would be killed if returned to GPE .

On DATE the Minister of Justice at the time decided to suspend the enforcement of the expulsion order until otherwise decided or until the Government made a final decision on the case . He further decided that the applicant should report to the police CARDINAL times per week in order to prevent him from going into hiding .

Subsequently , the ORG requested ORG at ORG in GPE to reply to some supplementary questions relating to the situation in GPE , which it did on DATE . In its reply it noted that , at the time , it was very difficult to obtain a complete overview and clear information about GPE . Still , it observed that persons who had been part of ORG , other special military units or the military in general were being arrested and tried in GPE . According to sources such as the ORG , the activities of these persons within their organisation determined how they were being treated more than to which military unit they had belonged . However , their position and military rank was of relevance as an indication of who could be targeted . In this context it was noted that members from special units , such as ORG , were being re - employed into the current special units . Moreover , the ORG had stated that even though many NORP were harassed as a result of their former membership of ORG , this harassment did not necessarily amount to persecution . A careful individual assessment was always necessary .

The applicant , in a comment on ORG information , maintained that there was a real risk that he would be subjected to extrajudicial execution if returned to GPE due to his previous connections to PERSON regime .

On DATE ORG submitted its opinion on whether the reintroduction of the death penalty in GPE in DATE had an impact on the enforceability of the applicant ’s expulsion order . It considered that none of the information submitted by the applicant , in his detailed asylum interview in DATE and later , regarding his position and activities until he left GPE in DATE , indicated that he would risk legal measures , least of all the death penalty , from the current NORP government . Neither his membership of ORG nor his relatively subordinate position in a non - combat unit were likely to cause him problems with the NORP authorities upon return to his home country . Thus , there were no impediments to the enforcement of the expulsion order .

On DATE the Government decided not to revoke the expulsion order and rejected the applicant ’s request for a residence permit . It found that there was neither any impediment to the enforcement of the expulsion nor any other special reason under LAW to revoke the expulsion order .

As the expulsion order had become enforceable anew , the police authority , on DATE , detained the applicant awaiting the enforcement of his expulsion order .

On DATE the applicant requested the ORG to indicate to ORG under Rule CARDINAL of ORG a suspension of his expulsion to GPE . He alleged that he would be executed or tortured and imprisoned if returned to his home country because he had been an officer during PERSON regime and had belonged to his “ inner circle ” . Moreover , since he was NORP , he risked persecution on religious grounds .

On DATE the ORG decided to apply Rule DATE and to suspend the expulsion until DATE in order to obtain some further information from ORG . In particular , the Government were requested to give their opinion on whether the applicant would risk being brought to trial before ORG ( hereafter referred to as “ the ORG ” ) and sentenced to death .

On DATE , the Minister of Justice at that time decided to suspend the expulsion of the applicant until further notice . He also decided to keep the applicant in detention since there was reason to believe that he would otherwise try to abscond . The detention decision was reconsidered DATE until DATE , when it was decided that he should be released and that he should report to the police twice a week .

In the meantime , on DATE , the ORG replied to the ORG ’s request . They first observed that the ORG had jurisdiction over individuals residing in GPE accused of war crimes , genocide , crimes against humanity and a number of “ political ” offences under NORP law , including waste of national resources and abuse of position . It applied the penalties available in NORP law , including the death penalty . ORG had agreed that the ORG should process a limited series of CARDINAL trials , focusing on major events that showed the geographic and temporal spread of the regime ’s crimes , and that only the highest - level perpetrators should be tried before the ORG . Other perpetrators should be tried by regular NORP courts .

The Government further noted that the applicant ’s claim that he had belonged to PERSON inner circle was recent and did not correspond to the detailed statements given by him during the asylum proceedings . They also stressed that the applicant had neither claimed to have committed any crime , nor that he was , or might be , suspected of having committed a crime which fell under the jurisdiction of the ORG . The sole fact that he had held a subordinate position as an officer in ORG or been a member of ORG did not give reason to believe that he would be suspected of such serious or brought to trial before the ORG .

On DATE the ORG extended the application of Rule DATE until DATE in order to enable the applicant to reply to the ORG ’s comments .

The applicant submitted his comments in reply to those of the Government on DATE . He stated that ORG had been an elite party with only a few full members . He had been an “ advanced sympathiser ” which meant that he had held a high position in the hierarchy . Moreover , although he had not been in the infantry , he had participated in battle in an armoured unit during the various wars until DATE when he had left the country because he had been ordered to carry out military actions that were against international law . The Government ’s allegation that he had said that he had not been or could not be suspected of crimes under the jurisdiction of the ORG was wrong . The assessment of his application for asylum took place in DATE , at a time when the ORG had not yet come into existence and he had also not been asked about it later . Apart from the risk of being sentenced by the ORG or another jurisdiction , there was a real risk that he would be the victim of an extrajudicial killing . Extremist militias tried to find and kill all officers who had fought for PERSON in the war against GPE or who had fought against the GPE in southern GPE in DATE . The retaliation was collective and directed against all officers who had fought under PERSON . The applicant also stressed that as a NORP he would be without protection in GPE and his situation upon return would thus be most serious .

On DATE the Court extended the application of Rule CARDINAL until DATE , on which date it was extended until further notice .

Pursuant to LAW , LAW ( ORG , FAC ) , a crime may , apart from ordinary sanctions , result in special consequences defined by law . Expulsion on account of a criminal offence constitutes such a consequence and the decision in this respect is made by the court in which the criminal proceedings take place .

Provisions on expulsion on this ground are laid down in LAW ( Utlänningslagen , DATE hereafter “ the DATE LAW ) which replaced the old LAW ( Utlänningslagen , CARDINAL ) on DATE . However , the rules on expulsion on account of a criminal offence remain the same in substance under LAW as under the old LAW . Thus , in the following , reference will only be made to LAW .

According to LAW , sections CARDINAL and CARDINAL of the DATE Act , an alien may not be expelled from GPE on account of having committed a criminal offence unless certain conditions are satisfied and the person ’s links to NORP society have been taken into account .

NORP Moreover , the court must have regard to the general provisions on impediments to the enforcement of an expulsion decision . Thus , pursuant to LAW , LAW , there is an absolute impediment to expelling an alien to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment . Furthermore , a risk of persecution generally constitutes an impediment to enforcing an expulsion decision .

A decision to expel an alien on account of having committed a criminal offence is , according to LAW , section DATE ) of LAW , enforced by the police authority . If the police authority finds that there are impediments to the enforcement , it shall notify ORG , which shall refer the matter to the Government to examine whether the expulsion can be executed ( LAW , LAW ) . If there are no impediments to the enforcement , the alien shall normally be sent to his or her country of origin or , if possible , to the country from which he came to GPE ( LAW , section CARDINAL of the CARDINAL Act ) .

According to LAW , section DATE CARDINAL Act , if the Government find that a judgment or decision to expel a person on account of having committed a criminal offence can not be executed or if there are otherwise special reasons not to enforce the decision , the Government may repeal , in part or completely , the judgment or decision of the court . When considering whether to repeal an expulsion order , the Government shall above all take into account any new circumstances , namely circumstances that did not exist at the time of the courts’ examination of the criminal case . In the travaux préparatoires to this provision ( Government Bill CARDINAL/CARDINAL:CARDINAL , p. CARDINAL ) , strong family ties and severe illness are given as examples of such “ special reasons ” that may warrant revocation of an expulsion order . The Government may also , in accordance with LAW , LAW , of ORG ( Regeringsformen ) , pardon or reduce a penal sanction or other legal effect of a criminal act .

In cases where the expulsion order is not revoked , the ORG may still grant a temporary residence permit and work permit . For as long as such a permit is valid , the expulsion order may not be executed ( LAW , section CARDINAL of the DATE Act ) .

In a judgment of CARDINAL DATE ( ORG ) , ORG ( Migrationsöverdomstolen ) found that , at that time , the security situation in GPE was very serious but that it did not amount to an internal armed conflict , as defined by international law . Moreover , it noted that it was practically possible to return to GPE voluntarily and that some NORP indeed did so . In these circumstances , an individual assessment of each asylum seeker ’s personal grounds for requesting asylum and a residence permit in GPE had to be carried out . This conclusion has been reiterated by ORG on several occasions during DATE ( see , for example , ORG CARDINAL and ORG CARDINAL:CARDINAL ) . Furthermore , on DATE , in a leading decision concerning CARDINAL NORP asylum seekers from GPE ( a mother and her CARDINAL minor children ) , the Director - General for Legal Affairs of ORG made the assessment that the general situation for NORP in GPE , and in the province of GPE ( where GPE is situated ) , was not so serious that this group could be considered to be in need of protection in GPE . An individual assessment had to be made in each case of the reasons invoked by the asylum seeker .

On DATE ORG signed a Memorandum of Understanding with ORG , whereby the CARDINAL countries “ resolve to cooperate in order to assist the voluntary , dignified , safe and orderly return to and successful reintegration in GPE of NORP now in GPE ” . Although primarily focusing on voluntary returns , the Memorandum also allowed for forced returns of failed asylum seekers .

During the regime of PERSON , GPE was at war with GPE DATE . In DATE , GPE invaded GPE , which led to the “ First Gulf War ” , lasting for DATE between DATE and CARDINAL DATE . DATE and DATE the regime suppressed a NORP insurgency in northern GPE and a Shi’a insurgency in the south of the country . In DATE the “ FAC ” started when GPE - led multinational forces invaded GPE and overthrew PERSON regime . ORG was involved in all of these conflicts . It expanded rapidly during the Iraq - Iran War and comprised the best equipped and trained units among PERSON forces . In DATE ORG , the NORP army , the police and ORG were officially dissolved by ORG ( hereafter “ the CPA ” ) in a process called the “ LAW ” ( through CPA LAW DATE ) . Subsequently , in DATE power was transferred from the CPA to ORG and , in DATE , a permanent government was elected by the NORP .

The Ba’ath ORG membership lists have never been found and there is relatively little information about the inner workings of the party and its structure . However , it would appear that membership was originally highly restricted but that the rules were significantly relaxed in DATE , leading to a great expansion of the membership in order to bolster stability ( ORG , Briefing Paper : GPE ’s ORG and Justice ” PERSON , DATE , hereafter “ ORG Paper ” ) . There were several levels of membership ( DATE , depending on the source ) and training and probation periods ( divided into CARDINAL levels ) were always required before becoming a full member of the party ( Ibid . and ORG , NORP - partiet . Medlemskapsnivåer og partiorganisasjon [ ORG . Membership levels and party organisation ] , DATE hereafter “ Landinfo ” ) . The total number of party members has been estimated to CARDINAL ( ORG ) . A person who was a “ sympathiser ” or an “ advanced partisan ” was not a full member of the ORG . Moreover , it would appear that persons who had been in the Ba’ath ORG for DATE were called “ Friends of PERSON ” ( PERSON , QUANTITY , Note by the Secretary - General , Situation of Human Rights in GPE , DATE ) .

The LAW process was widely criticised as it was seen as a collective punishment while , at the same time , providing impunity for others . Therefore , in DATE ORG passed the Accountability and Justice Act which established a clearer legal framework for dismissals and reinstatements of former ORG members and introduced an element of individual responsibility into the process . The law allows for some higher ranking members of ORG to apply for reinstatement ( CARDINAL persons ) and makes most individuals who have been dismissed eligible for pensions , with the exception of some of the highest part members and those who have been involved in corruption or committed crimes ( ICTJ Briefing Paper and ORG , PERSON , Uncertainty surrounds new NORP GPE law , DATE ) .

Holders of high positions in the Ba’ath ORG who were suspected of having been close to the old regime and/or taken part in different violent actions could be , and had been , arrested and called to account . It was the person ’s own background and the credibility of his or her account that determined the risk of judicial proceedings ( Information from ORG in GPE to ORG , dated DATE ; hereafter “ ORG Information ” ) . Hence , in DATE , ORG ( ORG , formerly the ORG ) was created to try persons accused of committing war crimes , crimes against humanity , genocide and specified offences DATE and DATE . The ORG had already tried and convicted PERSON and a few of his closest collaborators . Several of them had been sentenced to death and some to life imprisonment . CARDINAL defendant had been acquitted ( ORG , GPE , Country Reports on Human Rights Practices DATE , DATE ; hereafter “ ORG ” ) .

According to ORG , for individuals who did not “ qualify ” for examination by the ORG , there still remained a risk of review by the usual legal system and its criminal courts . The death penalty had been reintroduced in DATE for , inter alia , crimes against national security , murder , kidnapping and drug trafficking and it was increasingly used . Moreover , in particular in GPE , southern and central GPE , several Shi’a militia groups more or less systematically , and very extensively , sought out people who were guilty of acts of aggression under the former regime . The more well known a person had been as a representative of the former regime , the greater the risk of being discovered and punished .

In DATE the NORP parliament adopted an LAW which provided a general amnesty for all convicted NORP and those accused of crimes but who were still under investigation or trial . It did not apply to persons convicted of very serious crimes such as murder , rape , kidnapping , drug - related crimes and embezzlement ( ORG , PERSON : GPE ’s amnesty and provincial powers law , DATE ) . By DATE just over CARDINAL detainees in NORP jails had been released by virtue of the NORP law , while roughly CARDINAL remained in prison as the law did not apply to them ( GPE Updates , Voices of GPE , CARDINAL detainees covered by amnesty law , DATE ) .

On DATE the GPE military relinquished security responsibility to NORP forces of GPE , DATE province out of CARDINAL to be placed under NORP control . Only GPE and the CARDINAL LOC provinces remained under GPE command ORG , DATE ) .

The declared state of emergency lapsed in DATE and has not been renewed . However , there were reports that law enforcement activities often continued as if the state of emergency was still in effect ( ORG ) . Civilians were targeted by attacks by NORP and Shi’a groups across the country , and there were widespread and severe human rights abuses , including kidnappings , disappearances , torture and killings . The authorities frequently did not maintain effective control over security forces and did not have effective mechanisms to investigate and punish abuse and corruption ( ORG ) .

In DATE , ORG of the Secretary General for GPE stated there had been a noticeable drop in violence over DATE and that GPE had made significant strides towards stability and institution building although the human rights situation continued to be serious ( UNAMI press releases DATE , UNAMI Commemorates the CARDINALrd United Nations Day ) . According to ORG www.iraqbodycount.org as downloaded on DATE ) , civilian deaths in GPE had gradually decreased since DATE , with the exception of DATE and DATE . Thus , there were CARDINAL civilian deaths in DATE and CARDINAL in DATE , as compared to CARDINAL in DATE and CARDINAL in DATE . The decrease in civilian deaths has mainly been attributed to the cease - fire declared in DATE by PERSON , the leader of ORG ( a Shi’a paramilitary force created in DATE to fight against the multinational forces ) . The ceasefire was initially declared for DATE but was prolonged and , in DATE , PERSON announced an indefinite ceasefire and stated that anyone in his ORG who did not follow his order would not be considered a member of his group ( ORG , PERSON declares another ceasefire , QUANTITY DATE ) . Moreover , according to ORG , violence has abated because NORP and Shi’a populations have fled from mixed areas and thus have become increasingly divided into geographically distinct communities ( ORG , ORG –Iraq , DATE ) .

Another sign of the decrease in violence is the establishment of ORG ’s ( WHO ) permanent office in GPE in DATE ( UNAMI press release DATE , ORG in GPE ) and the activities of some CARDINAL humanitarian international NGOs with programmes in GPE , operating directly or via implementing partners , although ORG was the only agency operating openly nation - wide through its CARDINAL branches ( Center of Excellence , Iraq Crisis Report , DATE ) . Furthermore , several NORP countries , including GPE and GPE , sent ambassadors to GPE during DATE and DATE to open their ORG , DATE ) .

LAW provides for freedom of religion . Passports do not indicate an individual ’s religion but the national identity card explicitly notes the holder ’s religion . According to the official DATE census , there were CARDINAL NORP living in GPE . Although difficult to verify , ORG ( CPA ) , estimated that CARDINAL NORP remained in GPE at the end of DATE , most of whom had moved to the northern provinces , although since DATE there had been attacks and threats against the community in GPE and GPE ( ORG , ORG , GPE : NORP seek new life in LOC , CARDINAL DATE ) . ORG and religious leaders publicly denounced all incidents of sectarian violence and repeatedly encouraged unity among the country ’s religious groups . However , deficiencies in security force capabilities made it difficult for ORG and the justice system to investigate or address alleged violations ( ORG , ORG DATE -Iraq , DATE ) .

DATE , CARDINAL NORP were killed in GPE and others were threatened to leave the city . CARDINAL NORP left as a result , although the NORP Prime Minister ordered ORG and police in the GPE area to protect the members of the NORP community . On DATE security had been restored and the displaced persons were encouraged by the authorities to return . ORG , among others , condemned the attacks ( ORG , ORG , CARDINAL and DATE , and ORG , GPE : Uncertainty over who is behind attacks on NORP , DATE ) .

DATE . Currently there are CARDINAL NORP displaced within GPE and CARDINAL NORP have left the country , most of them for GPE and ORG , DATE ) .

Since DATE , the ORG has advocated recognition of the international protection needs of NORP outside their country , and hence a suspension of forced returns , due to the objective situation of armed conflict and generalised violence in GPE ( ORG , Strategy for the Iraq Situation , as revised DATE and ORG Eligibility Guidelines for Assessing the International Protection Needs of NORP Asylum - seekers , DATE ) . In DATE the ORG stated that it hoped that the majority of NORP refugees would be able to return home in safety once the necessary conditions of stability and security were established but that these conditions were not yet present . The security environment remained precarious , particularly in LOC , where issues relating to shelter and property restitution or compensation had not yet been solved ( ORG , ORG urges reinforced ORG commitment to protection of NORP refugees , DATE ) .

ORG and ORG ) have stated that , although they “ do not necessarily encourage return at this time because of security concerns , both are committed to providing assistance to those who do decide to return ” ( ORG , Assessment of NORP Return , DATE ) . The ORG has further noted that the rate of displacement in GPE has slowed and that the rate of return has accelerated , mostly to GPE . So far , CARDINAL people have returned to GPE , the absolute majority being internally displaced persons who have returned to their homes of origin ORG , DATE ) . Moreover , ORG have initiated a financial incentive and subsidy programme for returnee families and they are working to develop their capacity to register and assist the increasing number of returnees ( ORG , cited above ) . According to the ORG , military operations , general insecurity and occupied houses are the primary reasons preventing NORP from returning home .

Amnesty International considered that GPE was still in a situation of internal armed conflict and criticised several NORP countries , including GPE , GPE and GPE , for forcibly returning failed asylum seekers to all parts of GPE ( ORG , GPE - Rhetoric and reality : the NORP refugee crisis , DATE ) .


The applicants , PERSON ( alias PERSON ) and Mr PERSON alias PERSON ) , have NORP and NORP nationality . They were born in DATE and DATE respectively and live in GPE , GPE .

The applicants were born and lived in GPE until DATE , when the communist regime in GPE forced CARDINAL of ethnic NORP , among them the applicants , to emigrate .

NORP Before leaving , on DATE the applicants sold their CARDINAL - storey house in Dulovo to the local municipality . At the relevant time , a person willing to sell real estate could only do so through the intermediary of the local municipality . The price was fixed at MONEY ( “ BGL ” ) , in accordance with an evaluation made by an expert at the municipality . The applicants received that amount .

On DATE the municipality sold the house to CARDINAL individuals , PERSON and Mr N. The price was BGL CARDINAL .

On an unspecified date in DATE the applicants brought an action against the FAC municipality for a declaration that the DATE transaction between them was null and void as being contrary to the law or concluded in circumstances of urgent necessity and under obviously unfavourable terms .

On an unspecified date in DATE the applicants brought another action against PERSON and Mr N. claiming that the contract of CARDINAL DATE between the FAC municipality as the seller and PERSON and Mr N. as the buyers was also null and void as being contrary to the law . On that basis the applicants asked the court to order the defendants to “ surrender the ownership and the possession ” over the disputed house . The proceedings in the above QUANTITY cases were joined on DATE .

On DATE the ORG gave judgment . It declared inadmissible , as having been submitted out of the relevant DATE statutory time - limit , the applicants ' claim that the DATE transaction had been concluded in circumstances of urgent necessity and under obviously unfavourable terms . It further rejected on the merits the applicants ' claims that the DATE and DATE transactions were null and void as being contrary to the law .

Upon the applicants ' appeal , on DATE ORG upheld the lower court 's judgment . The applicants submitted a petition for review to ORG .

On DATE ORG quashed the lower courts ' judgments and declared with final effect the nullity of the DATE transaction between the applicants and the municipality . The transaction was null and void as it had been signed on behalf of the municipality by a person lacking the relevant power .

As to the applicants ' claim that the DATE transaction between the municipality and the third parties was also null and void , ORG found that the lower courts had not considered all relevant factors and referred this part of the case back to ORG . It also referred for renewed examination the applicants ' rei vindicatio claim , stating that it must be considered in the light of the outcome of the dispute about the validity of the DATE contract .

On DATE , in the renewed examination of the remainder of the case , the ORG found that the DATE contract was valid . It then went on to dismiss the applicants ' rei vindicatio claim stating :

“ The binding directions given by ORG [ in its judgment of DATE ] appear to indicate that the outcome of the rei vindicatio claim depends on the outcome of the claim [ that the DATE contract was null and void ] . The latter claim must be dismissed as there are no defects in the DATE transaction . In this sense , the defendants PERSON and Mr N. are in possession of the disputed property on existing grounds . It follows that one of the conditions for a successful rei vindicatio – that the defendant holds the property without valid grounds – has not been established . As there exists a valid contract between the municipality and PERSON and Mr N. , it can not be considered that there is a lack of valid grounds . ”

The applicants submitted a petition for review ( cassation ) , claiming that they were entitled to recover the house from PERSON and Mr N.

On DATE ORG rejected the petition for review ( cassation ) , stating in the reasoning and operative parts of its judgment , that ORG conclusions had been correct . In the introductory part of its judgment , restating the procedure in the case , ORG mentioned that ORG had decided that the DATE contract was valid and “ PERSON and Mr N. were the owners of the property ” .

In DATE the applicants sent complaints to the municipal authorities in Dulovo and other institutions . In reply , on DATE the mayor of PERSON advised them that following ORG judgment of CARDINAL DATE declaring null and void the DATE contract , the applicants were considered its owners .

On DATE the applicants brought a fresh rei vindicatio action against PERSON , Mr N. and the FAC municipality , stating that they based their new action on grounds different from those raised in the previous proceedings . In particular , they did not claim that the DATE contract between the municipality and PERSON and Mr N. was null and void but that it had never had any effect in rem since , in accordance with the basic principles of property law , ownership could only be acquired by dealing with the owner . Since the DATE contract had been null and void ab initio , the FAC municipality had never become the owner of the disputed house and thus could not validly transfer the title thereto . The applicants stressed that the courts in the first proceedings had not dealt with this ground for restitution .

On DATE ORG terminated the proceedings on the basis that the dispute was a res judicata . It referred in particular to the judgment of ORG of DATE .

The applicants appealed , stating that the previous proceedings had been limited to the issue whether or not the DATE transaction had been null and void . The courts had never dealt with the question who was the owner of the disputed property . Any other interpretation of the judgments in the previous proceedings was absurd , as it would run contrary to the basic principles of property law .

On DATE the ORG dismissed the appeal in private . The applicants ' ensuing appeal to ORG was also dismissed in private , on DATE . ORG stated :

“ The parties to the [ previous ] proceedings and the current proceedings are the same ... The dispute [ in the previous proceedings ] concerned the ownership of the [ same house ] ... The grounds invoked were the nullity of the DATE transaction between the applicants and the municipality and , on that basis , the [ alleged ] nullity of the subsequent transaction [ of DATE ] between the municipality and [ PERSON and Mr N. ] .

All matters have been decided and are res judicata ... “

In DATE , the applicants requested the interpretation of ORG judgment on DATE , stating that it was unclear . In their submissions , they averred that the courts had delivered arbitrary decisions , bringing about an absurd situation . In particular , the applicants criticised the courts ' failure to explain on the basis of the relevant principles of property law who was the owner of the property and why .

By judgment of DATE ORG dismissed the request . In the introductory part , the impugned judgment of DATE was described as having recognised that PERSON and Mr N. were the owners of the disputed house . ORG further stated that the judgment of DATE was clear in so far as it upheld ORG judgment of DATE . As regards the clarity of ORG judgment , it was not possible to engage in its interpretation as that would be tantamount to a re - examination of the case .

Under LAW , as interpreted by the courts , a contract that is null and void as being contrary to the law is considered null and void ab initio . It is considered to have never produced any legal effect . Each party can seek from the other restitution of all it has given under the void contract .

Under LAW and the relevant judicial practice , a person who has bought a real estate from another does not become its owner if the seller 's title was not valid . In such cases , if the original owner seeks rei vindicatio from the last buyer even after a chain of transactions , the validity of the last buyer 's contract is immaterial as it does not produce effects in rem . ORG has applied this practice in cases of CARDINAL or more consecutive transfers where the first transaction was found to have been null and void ab initio and , therefore , none of the subsequent buyers could acquire title to the property , even if their contracts were valid . In such cases , each consecutive transaction is retrospectively considered as a sale of a real estate belonging to a third person ( see judgment no . DATE of CARDINAL in case no . ORG of ORG ) . The last buyer may only become the owner of the property through acquisitive prescription ( usucapion ) on the basis of undisturbed possession of DATE .

Where the owner has successfully recovered the property from the last buyer , the latter can seek from “ his ” seller recovery of the price paid .

Under section CARDINAL of LAW and the relevant case - law , the plaintiff in rei vindicatio proceedings must prove CARDINAL elements : CARDINAL ) the validity of his title and CARDINAL ) the fact that there are no legal grounds for the defendant to hold the property . Valid grounds to hold the property may be rights in rem such as ownership or a right to use the property , contractual rights such as tenancy or a right to withhold possession until the payment of a debt and other concrete rights .

Judgments of the civil courts are binding on the parties , their successors , the courts and all other ORG organs ( LAW ) .

Final judgments preclude any re - examination of the same dispute between the same parties ( Articles CARDINAL and CARDINAL of the Code ) . They are not conclusive , however , in respect of disputes on the same subject between different parties or between the same parties on a different subject matter .

The issue determined in a court 's findings on the merits is a res judicata . In order to establish the content of the issue determined , regard must be had to the scope of the dispute and , therefore , to the court 's reasoning . In addition , certain decisive findings on elements directly determinative of the disputed right or obligation may also be seen as res judicata ( CARDINAL - CARDINAL-I , PERSON , CARDINAL - CARDINAL-I , CARDINAL ) .

ORG to GPE or to ORG in DATE May - September CARDINAL provides for the restitution , under certain conditions , of property sold or transferred otherwise during the forced exodus of ORG . The law only applies in respect of persons who settled back in GPE before DATE . It does not exclude the application of the general rules of civil law in all other cases .


The applicants , Mr PERSON ( the “ first applicant ” ) , Mr PERSON ( the “ second applicant ” ) , Mr PERSON ( the “ third applicant ” ) , PERSON ( the “ fourth applicant ” ) , Mr PERSON ( the “ fifth applicant ” ) , Mr PERSON ( the “ sixth applicant ” ) , Mr ORG ( the “ seventh applicant ” ) , Mr PERSON ( the “ eighth applicant ” ) , Mr PERSON ( the “ ninth applicant ” ) , Mr PERSON ( the “ tenth applicant ” ) , Mr PERSON ( the “ eleventh applicant ” ) , Mr PERSON ( the “ twelfth applicant ” ) , Mr PERSON ( the “ thirteenth applicant ” ) , Mr PERSON ( the “ fourteenth applicant ” ) , Mr Mile Milenković ( the “ fifteenth applicant ” ) , FAC ( the “ sixteenth applicant ” ) and PERSON ( the “ seventeenth applicant ” ) were all , at the relevant time , citizens of ORG and GPE who lived in PERSON , GPE , GPE , PERSON , PERSON , PERSON , NORP , PERSON , PERSON , GPE , NORP , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON , respectively .

In DATE all the applicants , except for DATE , were employed with “ Mehanizacija ” , an organisational unit ( osnovna organizacija udruženog rada ) of a ORG - owned company called “ LOC ” , based in PERSON , GPE .

The father of the twelfth applicant and that of both DATE applicants also worked for the same employer but they died in DATE respectively .

On an unspecified date the aforementioned employees issued civil proceedings against “ PERSON ” before ORG ( PERSON ) in PERSON , seeking the payment of salaries which they had earned while working on a project in GPE .

On DATE ORG ( GPE privredni sud ) in ORG opened insolvency proceedings ( stečajni postupak ) in respect of “ PERSON ” ( “ the debtor ” ) , its decision being published in ORG of ORG dated DATE .

DATE prior to this date , the same court appears to have instituted separate insolvency proceedings in respect of “ Erozija ” .

On DATE ORG informed ORG about the plaintiffs ' claims which had been specified in GPE Dollars ( “ LOC ) .

On DATE ORG recognised these claims as follows : LOC in respect of the first applicant ; PERSON in respect of the second applicant ; ORG in respect of the third applicant ; ORG in respect of the fourth applicant ; CARDINAL in respect of the fifth applicant ; ORG CARDINAL in respect of the sixth applicant ; ORG in respect of the seventh applicant ; ORG in respect of the eighth applicant ; ORG in respect of the ninth applicant ; USD MONEY in respect of the tenth applicant ; USD CARDINAL,CARDINAL.CARDINAL in respect of the eleventh applicant ; PERSON in respect of the twelfth applicant 's father ; PERSON in respect of the thirteenth applicant ; PERSON in respect of the fourteenth applicant ; USD CARDINAL,CARDINAL.CARDINAL in respect of the fifteenth applicant ; and ORG CARDINAL,CARDINAL.CARDINAL in respect of the father of DATE and the seventeenth applicants .

On DATE , taking into account the currency exchange rate and the available assets converted into cash ( deo unovčene stečajne mase za raspodelu ) , ORG adopted a formal decision specifying the exact amounts to be paid by the debtor in GPE ( “ YUD ” ) : YUD CARDINAL to the first applicant ; ORG CARDINAL to the second applicant ; ORG CARDINAL to the third applicant ; ORG PERSON to the fourth applicant ; ORG CARDINAL to the fifth applicant ; YUD CARDINAL to the sixth applicant ; ORG PERSON to the seventh applicant ; YUD CARDINAL to the CARDINAL applicant ; YUD QUANTITY to the ninth applicant ; ORG CARDINAL to the tenth applicant ; ORG CARDINAL to the eleventh applicant ; ORG CARDINAL to the twelfth applicant 's father ; YUD CARDINAL to the thirteenth applicant ; ORG CARDINAL to the fourteenth applicant ; ORG CARDINAL,CARDINAL to the fifteenth applicant ; ORG CARDINAL to the father of DATE and the seventeenth applicants . All sums were to be paid within DATE of the date when the decision of ORG became final .

On DATE ORG decision was upheld by ORG ( ORG privredni PERSON ) and it thereby became final .

The claimants appear to have subsequently informed ORG that they would be willing to accept PERCENT of their claims in ORG ( see paragraph CARDINAL above ) .

On DATE and CARDINAL DATE , respectively , ORG ( PERSON ) in PERSON declared the twelfth , sixteenth and seventeenth applicants to be their fathers ' legal heirs .

On DATE the applicants sent a letter to ORG seeking access to the case file , a copy of the formal decision concluding the insolvency proceedings , proof that such a decision , if issued , was published in ORG and an additional copy of the “ cover page ” of the case file specifically indicating that the proceedings had ended .

NORP In response , they received only a certified copy of the “ cover page ” without the prescribed indication that the proceedings in question had been concluded .

On DATE and DATE the applicants complained to ORG and the President of ORG . They requested that the proceedings be expedited and noted that the case had been pending for DATE but that they were yet to receive the amounts awarded .

It would appear that all the other creditors in the insolvency proceedings had their claims met by the debtor .

The Government provided a copy of a form issued by ORG , containing , inter alia , the date “ DATE ” next to the standard printed rubric entitled “ on completion of all business arising from the insolvency proceedings ” .

Articles CARDINAL and CARDINAL , inter alia , stated that special symbols had to be placed next to the registered number of a case , indicating that the proceedings had been concluded .

The DATE Rules repealed the DATE Rules in DATE .

Articles CARDINAL and CARDINAL of the DATE Rules correspond , in the relevant part , to the aforementioned text of Articles CARDINAL and CARDINAL of the DATE Rules .

NORP In accordance with LAW ( Zakon o prinudnom poravnanju , stečaju i likvidaciji ; published in ORG of ORG - no . CARDINAL/CARDINAL , as well as in ORG of GPE - OG FRY - nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL ) and LAW Zakon o stečajom postupku ; published in ORG no . CARDINAL ) , the insolvency court has to pay the creditors ex officio within DATE of / immediately after the decision on the division of the debtor 's assets becomes final .

Under LAW and LAW , starting with the date of institution of the insolvency proceedings , no separate enforcement proceedings in respect of the creditors ' main claims can be brought against the same debtor , while any such proceedings which might still be ongoing must be discontinued .

In accordance with Articles CARDINAL and CARDINAL of the CARDINAL Act , as well as LAW , the insolvency court shall adopt a formal decision upon the “ conclusion ” ( zaključenje ) of the insolvency proceedings . This decision shall then be published in ORG and forwarded to the ORG 's competent “ registration ” body .

Article CARDINAL provides that property can be acquired ex lege , through a legal transaction , by means of inheritance , or on the basis of a decision issued by the ORG in accordance with the law .

Article CARDINAL provides that the deceased 's property shall be transferred ex lege to the legal heirs , at the moment of death .

Article CARDINAL of the Inheritance Act CARDINAL ( Zakon o nasleđivanju , published in ORG of GPE - OG SRS nos . CARDINAL , CARDINAL and CARDINAL ) and LAW Zakon o nasleđivanju , published in OG RS no . CARDINAL ) both provide that the deceased 's estate shall be transferred ex lege to the legal heirs at the moment of death .

Article CARDINAL provides that all claims shall become time - barred ( zastarevaju ) within DATE , unless this LAW states otherwise .

Article CARDINAL § CARDINAL provides , inter alia , that all claims recognised by a final court decision shall become time - barred within DATE , including those claims which would otherwise have become time - barred within a shorter period of time .

Article CARDINAL § CARDINAL provides that courts shall not take into account whether a given claim is time - barred unless and until there is a specific objection by the debtor to this effect .

The relevant provisions of this LAW are set out in the V.A.M. v. GPE judgment ( no . CARDINAL , § DATE , CARDINAL DATE ) .

The relevant provisions concerning ORG and GPE and the succession of ORG and GPE are set out in GPE judgment ( no . CARDINAL , § § CARDINAL , CARDINAL and CARDINAL , DATE ) .