David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE in GPE . She was represented before the ORG by Mr PERSON of ORG , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr NORP PERSON of ORG .

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

Either on DATE or DATE the applicant arrived in GPE and claimed asylum shortly thereafter .

On DATE , with a friend ’s assistance , the applicant completed a Statement of Evidence form in which she detailed the reasons for her asylum request . She claimed that she had been ill - treated by NORP Government forces since her husband was a canvassing secretary and an active member of ORG ( “ CPN ” ) since DATE . He had been arrested by the police on several occasions . In DATE her husband went missing and her son went missing DATE . Neither has been seen since , both presumably have been either arrested or abducted . Since the police were the source of the problem , she could not report these matters . She replied in the negative to a standard question as to whether there were outstanding charges against her or a member of her family .

On DATE the applicant was interviewed by an immigration officer . As appears from the hand - written record of that interview , the applicant stated that she had claimed asylum on the basis of a fear of persecution by ORG because of her husband ’s activities with the ORG . She recalled his disappearance DATE previously , visits and threats by the police who were looking for her husband both at her home and at her son ’s school , her ill - treatment on CARDINAL occasions by plain - clothed men who came to her home looking for her husband and her son ’s disappearance , DATE after that of her husband .

NORP By letter dated DATE the applicant was notified that the Secretary of ORG had refused her asylum application under LAW , DATE , DATE and CARDINAL of the Convention . He considered that the harm the applicant claimed she would suffer on return to GPE would not constitute “ persecution ” within the meaning of ORG . He pointed out that the unidentified plain - clothed persons whom she claimed ill - treated her could not be considered “ agents of persecution within the meaning of LAW ” . Her claims did not demonstrate a “ sustained pattern or campaign of persecution ” against her which was tolerated by the authorities or in respect of which the authorities were unable or unwilling to protect her . In particular , she could have attempted to seek redress through the proper NORP authorities . She had alleged a fear of return to only certain parts of GPE and could therefore be returned to other parts of GPE . The Secretary of ORG also noted significant discrepancies in her evidence relating to whether her husband had been arrested or had “ disappeared ” and when that had taken place , and concerning her allegations of her own ill - treatment . On the basis of all of the above , there was no “ reasonable likelihood of ( her ) fear being realised ” .

NORP The Secretary of ORG did not consider that ORG and DATE ( her claim that she would be detained without trial and/or killed on return to GPE ) had extra - territorial effect . Therefore GPE was not the ORG responsible for those aspects of her claim . Her evidence disclosed no substantial grounds for believing that there was a real risk of ill - treatment contrary to LAW return . Her LAW claim did not constitute sufficient grounds for asylum . In light of all of the evidence , the Secretary of ORG concluded that she had not established a well - founded fear of persecution on return to GPE .

On DATE the applicant sent a letter of protest , through ORG in GPE , to the monarch of GPE in support of ORG who had been accused of killing members of the royal family in DATE . The applicant accused the monarch ’s son ( Prince Paras ) and a military chief of being involved in these crimes .

The applicant then appealed to the Special Adjudicator ( “ SA ” ) . While the applicant was legally represented before the ORG , the only document submitted containing grounds of appeal to the ORG appears to have been prepared by her . She made numerous submissions concerning the situation in GPE and her fear of persecution . She alleged that she had been arrested and tortured in the past and that she had been detained , had escaped from prison and had left GPE to save her life as soon as her trip to GPE had been arranged . She claimed that her friends and relatives were being arrested and tortured in GPE because of her , that she was receiving threatening letters and that she was on the NORP security forces’ list of targets .

On DATE the applicant sent a further letter of protest through ORG to the monarch of GPE protesting against the proposed accession of his son to the throne .

On DATE the ORG rejected the applicant ’s appeal . He considered that , even allowing for her relative lack of sophistication , language problems and cultural differences , the number and nature of the inconsistencies between her accounts were such that her evidence was unreliable in important respects including in relation to her date of departure from GPE and the circumstances of her husband ’s and son ’s disappearances . In this latter respect , he found that it was speculative as to whether they had left home voluntarily or not and he noted that the applicant had accepted that members of the ORG were in hiding . She had also accepted that the police did not threaten her thereafter . The ORG did not accept her evidence that she had been assaulted by unknown persons as there were a notable number of inconsistencies about this in her previous evidence .

The SA noted the situation between the ORG and the NORP authorities but did not consider that there was any evidence that a wife , with no involvement in politics or public affairs , was likely to have her husband ’s political opinions imputed to her ; nor was there any evidence to suggest that a wife was likely to be targeted , detained , tortured , ill - treated or killed . In the opinion of the SA , there was no reasonable likelihood of the applicant suffering in any of these ways on return to GPE . Even if she had a subjective fear , it was speculative and not well - founded . Accordingly , there was no reasonable risk of GPE responsibility being engaged by her expulsion .

On DATE the ORG gave the applicant leave to appeal against the ORG ’s decision . Her grounds of appeal contested the SA ’s conclusions , and reiterated her account of her husband ’s and son ’s past involvement in the ORG , and of their arrest by the police and gave details of the threats and assaults by the plain - clothed persons who came to her house . The applicant accepted in paragraph CARDINAL of her grounds of appeal that “ it is true that I was not an active political lady but my husband was ( a ) very active worker of the NORP party . ” In the document the applicant further asserted that inconsistencies were to be explained by language and translation issues and stressed that spouses of activists had been arrested and tortured , giving specific examples . The applicant was not represented before the ORG . Having summarised the SA ’s findings , the ORG stated :

“ The grounds restate the applicant ’s case at length . GPE evidence is produced annexed to the grounds none of which appears to have been put in front of the [ SA ] . In these circumstances on balance I am satisfied that this appeal does not merit further consideration by the [ ORG ] . The [ ORG ] will require an explanation for the failure to produce the documentary evidence before the [ SA ] . Accordingly , leave to appeal is granted . ”

Her letter dated DATE addressed to the ORG indicated that she could not attend the hearing fixed for DATE as she was ill . She asked for her case to be decided on the basis of her documents and explained that she had not been able to submit the documents to the SA as she had not yet received them at that stage from GPE . She enclosed a medical certificate dated DATE which indicated that she was unwell and had been started on anti - hypertension medication . She was unable to work for DATE and required rest .

On DATE the ORG heard and rejected her application . The applicant was not present or represented at the hearing . The decision of the ORG was sent to her on DATE . The ORG held :

“ Leave was given on the basis of various credibility points made in the grounds of appeal , and of further documentary evidence submitted with them . This evidence has neither been filed in triplicate for the use of the [ ORG ] , as directed , not has any explanation been given , as also directed , for the failure to put it before the [ SA ] . We have not considered it .

The [ applicant ] and her solicitors were sent notice of hearing on DATE : [ the solicitors ] withdrew by letter on DATE , while she has given no explanation for her failure to appear before us . As required by r. CARDINAL of the Procedure Rules , we have gone ahead with the hearing . While the grounds of appeal assert that the [ applicant ] arrived here on DATE , the statement attached to the statement of evidence form , apparently forwarded by the [ applicant ’s ] own solicitors , not only says she did so on CARDINAL May [ DATE ] , but gives circumstantial details of what is said to have happened then . There has been no explanation ... , either before the [ SA ] or us , for this serious discrepancy , and he [ the SA ] must be regarded as justified in the view he took of the [ applicant ’s ] credibility . ”

The applicant applied to the ORG for leave to appeal to ORG and lodged detailed grounds of appeal . As to her non - attendance at the ORG hearing , she repeated that she had been ill with hypertension and had been advised by her doctor to rest . She had not been able to pay her lawyers so they had to withdraw from her case . Accordingly , she had requested the ORG to decide her case on the basis of the documents presented . It was unfair to reject her asylum claim because she had not lodged documents in triplicate : she would have done so had she been told that it was necessary . As for the inconsistencies referred to by the ORG , she referred to her lack of knowledge of the LANGUAGE language , her memory losses due to the traumas she had suffered and differences between the LANGUAGE and NORP calendars which made for confusing calculations . Indeed her first interpreter spoke Hindi but was not familiar with the NORP calendar : when the applicant indicated that she could not follow , the interpreter reassured her that it did not matter as she would have the chance to change her statement at ORG . Nor could she follow ORG interpreter , as the latter spoke PERSON ( another language spoken in GPE ) and not NORP . She went on to describe again her experiences in GPE , the current situation there and why she feared persecution . She indicated that her husband and son were being tortured in prison and that CARDINAL close relatives had been recently killed by the police on the basis of involvement with the ORG .

On DATE she addressed a further detailed letter of protest to the “ Premier of GPE ” through ORG in GPE .

On DATE the ORG refused leave to appeal on the basis that there was no arguable point of law and that her grounds of appeal did not address the reasons for the ORG ’s decision .

On DATE the applicant applied to ORG for leave to appeal against the ORG decision . She submitted further detailed grounds of appeal : she explained that she could not afford a lawyer for the ORG proceedings , that she was unwell , that she was suffering from depression and that she had language difficulties and difficulties with legal procedures . She explained that she had been unable to submit certain documentation to the ORG as it was impossible to bring the documents with her when she left GPE and she had to wait until friends could deliver them to her . She again explained why there were inconsistencies in her evidence as to her date of arrival in GPE . She pointed out that not all of the circumstances of her case had therefore been taken into account and she again described the situation in GPE , her experiences there and her fears about being returned there . In particular , she claimed that her husband and son had been incarcerated and that she had learnt from friends that they were being “ tortured very much ” and that all her “ fellow comrades ” were being arrested , tortured and killed every day by the NORP government . She also explained that one of the reasons for any inconsistencies in her account was her fear of GPE authorities following her bad experiences in GPE .

On DATE a single judge of ORG heard her application . The applicant was present with an interpreter . The judge rejected her application . The ORG considered that her appeal had no prospects of success because :

“ No error of law was made by the ORG . The [ SA ] did not believe the applicant ’s claim as to her historic persecution , and was not satisfied that there was evidence that she might be at risk if she returned to GPE . In the circumstances before it , the ORG was within the permissible limits of its practice not to look at the new material . Although , in the unusual circumstances of PERSON allegations , the court made enquiries of her former solicitors , any unreasonable failure by them to assist her ( which the court does not find demonstrated ) can not be found an error by the ORG . The explanation for not producing the new material before the [ SA ] is not satisfactory , particularly as some of it ( e.g. some of the material about protests in the GPE ) must have been in PERSON ’s hands at the time of the hearing . I have also to express some scepticism as to whether someone who signs long letters in good LANGUAGE as “ Chair , ORG ” was as incapable of attending to her own defence as PERSON claims to have been .

If PERSON can demonstrate by the new material that her situation is markedly different from that which was before the ORG her only course is to approach the [ Home Secretary ] : although I must not be taken to have formed any view as to whether that course would be justified or successful . ”

On DATE ORG confirmed that no appeal lay to it from a refusal by ORG to grant leave to appeal .

By notice dated DATE the applicant was served with removal directions , the removal being foreseen for DATE .

On DATE the applicant lodged an application against GPE with this Court , submitting a document dated DATE in NORP and its translation . It is said to be a letter from her lawyer in GPE to her and the translation reads as follows :

“ This office has [ received ] this arrest warrant against [ the applicant ] on the instruction of LOC ... dated CARDINAL/CARDINAL/CARDINAL on the charge of treason . I am unable to prepare , ... plead and [ proceed with ] her case because of ... harassment [ by ] the police , court officers and judges and fear of being arrested ... myself due to her protest letters against the present PERSON family , government and army on the direction of [ the ORG ] . Now her son and husband are in PERSON and NORP jails , respectively . Now the Government has declared a state emergency against the [ CPN ] . All ... human Rights are being suspended and [ the ] press totally are being censored . It is certain that PERSON will be arrested , tortured , killed or disappeared at the airport on her arrival to this country . Her protest letters against the royal massacres and against Crown Prince ... have really increased her threat of life . ”

The document referred to in that letter was also submitted in NORP together with its translation . It is described as an arrest warrant issued by ORG and dated DATE and its translation reads as follows :

“ On the instructions of ORG , hereby this office issues an arrest warrant [ in ] the name of PERSON - CARDINAL of Ka . PERSON . Na . GPE no . CARDINAL [ who is ] CARDINAL’ CARDINAL ’’ [ in ] height [ and has ] olive complexion , black hair and CARDINAL broken tooth on the charge of treason . It is ordered to search and arrest and bring her to this office without letting her escape on the way until the withdrawal of this arrest warrant . If she is not arrested in DATE time except[ing ] the period of your journey , be active to arrest her after delivering this arrest warrant to her home on DATE until her arrest . ”

The applicant also submitted to ORG a medical certificate dated DATE which refers to her having undergone treatment for hypertension and cellulitis affecting her legs for which she had been treated in the accident and emergency service of a hospital and a letter dated DATE from the ORG in NORP and its translation . It congratulated and thanked the applicant for her courage in protesting against ORG .

On DATE the applicant submitted a request to ORG for further consideration of her case enclosing a copy of the warrant for her arrest , a copy of the letter from her NORP lawyer and a copy of the letter from the ORG dated DATE .

On CARDINAL DATE ORG decided not to treat her representations as a fresh application . It found , inter alia , that the arrest warrant and the lawyer ’s letter had already been fully considered and dismissed by the domestic courts . Following further representations by the applicant , ORG conceded that the documents had not in fact been considered by the ORG but maintained its refusal to consider the representations as amounting to a fresh application on DATE , explaining that as no reason had been given as to why the originals had not been submitted to them on this occasion , it was unable to examine the new evidence . It concluded that , having considered the findings of fact made by the ORG and the ease with which such documents could be obtained and their timing and content , it was unable to place any reliance on them .

The applicant subsequently applied for permission for judicial review . On DATE , following an oral hearing , ORG refused her application upon the assurance given by the Secretary of ORG that the applicant would not be removed by ORG if further representations were made to it within DATE and until a decision was made on those representations .

On DATE the applicant made further representations to ORG . Her arguments centred on the fact that the above mentioned documents ( namely the copy of the warrant for her arrest in GPE , letters from the ORG and a copy of a letter from her lawyer in GPE ) had never been considered . Her representatives asserted that she could not have produced these documents at the time of her first asylum claim as they were not then available to her . It was further contended that the applicant had become a marked person so far as the Government of GPE was concerned due to her numerous protest letters against the ORG regime during her stay in GPE which had “ doubled her risk to life as compared to her pre - arrival risk as a consequence of imputed political opinion ” . It was finally maintained that the Secretary of ORG had failed to consider the risk the applicant would face in the light of the changed political situation in GPE . In particular , the NORP King ’s actions had “ plunged the country into a human rights crisis and put any NORP , even sympathisers , at a real risk of torture , disappearance or being killed . ”

On DATE these representations were accepted as amounting to a fresh claim by ORG .

On DATE a decision was made to refuse to grant the applicant asylum under paragraph CARDINAL of ORG CARDINAL ( as amended ) and on DATE a decision was made to refuse her leave to remain in GPE .

On DATE the ORG heard the applicant ’s appeal , in the applicant ’s absence on medical grounds without the latter seeking an adjournment , and the appeal was refused on DATE . The presiding Immigration Judge did not find the applicant to be credible and noted numerous inconsistencies in her account . In particular , he found that she had vacillated as to the exact date of her arrival in GPE and she had produced a letter attesting to the fact that she was the Chairperson of a NORP protest committee in GPE , yet , had answered that she was not the Chair but just a member when later questioned on this point . Furthermore , the fact that the applicant had not been cross - examined on the new evidence , thus depriving the Secretary of ORG of an opportunity to challenge her account , did little to enhance her credibility . It appeared also that the applicant had never taken part in any political activity in GPE and that there had been no reason for the NORP authorities to issue an arrest warrant when she had left the country , let alone DATE as the document she had proffered suggested . Ultimately , the ORG concluded that only in an exceptional case would a risk of persecution or treatment contrary to LAW be held to arise by virtue of being , or being perceived , as a NORP and that the present was not such a case . Even assuming that the applicant ’s account was true , country guidance reflected the fact that there was no risk to individuals on the basis of imputed political opinion by way of association with family members and internal relocation to GPE , GPE ’s capital , appeared to be a viable option .

On DATE the applicant ’s application for reconsideration of the ORG ’s decision under section CARDINAL of the Nationality , Immigration and Asylum Act DATE was refused by a Senior Immigration Judge sitting at the ORG on the basis that the grounds on which reconsideration was sought did not disclose any error of law .

Section CARDINAL of ORG Treatment of Claimants , etc . ) stipulates the following :

( CARDINAL ) In determining whether to believe a statement made by or on behalf of a person who makes an asylum claim or a human rights claim , a deciding authority shall take account , as damaging the claimant ’s credibility , of any behaviour to which this section applies .

( CARDINAL ) This section applies to any behaviour by the claimant that the deciding authority thinks—

( a ) is designed or likely to conceal information ,

( b ) is designed or likely to mislead , or

( c ) is designed or likely to obstruct or delay the handling or resolution of the claim or the taking of a decision in relation to the claimant .

( CARDINAL ) Without prejudice to the generality of subsection ( CARDINAL ) the following kinds of behaviour shall be treated as designed or likely to conceal information or to mislead—

( a ) failure without reasonable explanation to produce a passport on request to an immigration officer or to the Secretary of ORG ,

( b ) the production of a document which is not a valid passport as if it were ,

( c ) the destruction , alteration or disposal , in each case without reasonable explanation , of a passport ,

( d ) the destruction , alteration or disposal , in each case without reasonable explanation , of a ticket or other document connected with travel , and

( e ) failure without reasonable explanation to answer a question asked by a deciding authority . ”

The ORG ’s country guidance case entitled KG ( review of current situation ) ORG [ DATE ] PERSON DATE , after examining available country information , concluded the following as to the potential risks to NORP upon return to GPE :

“ So far as the issue of risk on return to NORP from the current government is concerned , we consider that the latest background evidence , which includes reference to the dropping of all terrorism charges against NORP rebels and to a clear commitment from the interim government to include NORP both in the interim government ( at some stage ) and in a new regular government following elections , demonstrates that even active members of the ORG and members of the ORG would not be at risk on return to GPE . In our view it would only be in the exceptional case that an appellant could show a continuing risk of persecution or serious harm or treatment contrary to LAW by virtue of being , or being perceived as , a NORP . ”

ORG published on DATE ( ORG , DATE ) cite at paragraph CARDINAL ORG ( ORG ) Country Profile on GPE , which was last updated on DATE and which states ( at paragraph CARDINAL ) the following as regards the current political climate in GPE :

“ A peace agreement between the Government of GPE and the NORP was signed in GPE on DATE thereby ending DATE of conflict in GPE . Under the terms of the agreement ORG and NORP cadres will be confined to barracks and cantonments . Both sides agreed a permanent ceasefire and an arms management arrangement , which will be monitored by the ORG . The agreement also provides for elections to a ORG by DATE and for the NORP to become part of the political mainstream as a legitimate political party . Subsequently an arms management agreement was signed on DATE between the NORP and the government under the auspices of the ORG . ”

The ORG key documents describe recent events and political developments in GPE at paragraphs CARDINAL and CARDINAL as follows :

“ The ORG of GPE , updated on DATE , observed that “ On DATE ORG was dissolved and the interim parliament was formed , promulgating the interim constitution . On DATE , the interim government was formed which for the first time includes NORP ministers ... ”

“ The ORG Timeline for GPE , updated on DATE , noted that ORG elections due in DATE were postponed in DATE until DATE . In DATE NORP quit the interim government in order to press demands for the monarchy to be scrapped . The NORP withdrawal from the government forced the postponement of DATE ’s constituent assembly elections . There was also a bomb attack in GPE in DATE the first since the end of the NORP insurgency . In DATE ORG approved the abolition of the monarchy as part of a peace deal with the NORP , who agreed to re - join the government . In DATE the already postponed elections for the constituent assembly were set for DATE . Following the DATE polls , the former NORP rebels won CARDINAL of CARDINAL seats in the constituent assembly , while ORG and ORG won CARDINAL and CARDINAL seats respectively . The NORP said they wished to include these “ CARDINAL other big parties ” in a coalition government . ( ORG , DATE CARDINAL) ... The NORP leader , GPE , also confirmed that the first meeting of the assembly would abolish GPE ’s monarchy . ”

On DATE the NORP constituent assembly abolished the monarchy and declared the country a republic , with CARDINAL members of the CARDINAL seat assembly opposing the change ( see ORG “ GPE votes to PERSON , article of CARDINAL DATE ) .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

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

The NORP Government ( “ the Government ” ) were represented by their Agent , Mr J. GPE , succeeded by Ms J. Chrzanowska , of ORG .

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

On an unspecified date in DATE ORG in PERSON instituted proceedings with a view to making the applicant ’s father PERSON undergo treatment for alcoholism . They referred to numerous police interventions at the family apartment as a result of PERSON ’s repeated acts of aggression and violence against his family and to a diagnosis made by a psychiatrist to the effect that he suffered from alcoholism .

He apparently failed to comply with that order .

On DATE the applicant informed the police of acts of domestic violence committed by his father .

On DATE the applicant ’s mother lodged an action for separation with the Bielsko - Biala Regional Court .

On DATE a bill of indictment against PERSON on charges of domestic violence was lodged with ORG .

On DATE the Bielsko - Biala Regional Court allowed the applicant ’s mother ’s separation claim . In its judgment the court established that the applicant ’s mother and father were to use separate parts of the family house .

On DATE the ORG convicted the applicant ’s father of domestic violence ( znęcanie sie nad osobą najbliższą ) . The applicant ’s father submitted himself to the sentence ( dobrowolne poddanie sie karze ) . The court sentenced him to DATE and CARDINAL months’ imprisonment and conditionally stayed the execution of that sentence for a probation period of DATE . The court also obliged him to abstain from alcohol abuse and assigned a probation officer to supervise his conduct .

On DATE the applicant , his mother and younger brother requested the court to lift the stay of the execution of the prison sentence . They submitted that PERSON continued to drink and that his behaviour remained violent .

On DATE the court held the first hearing in the case . It heard evidence from the applicant , his mother , his brother , the probation officer and CARDINAL other persons . It had regard to the police records and to the probation officer ’s file . It found that the applicant ’s father had continued to be violent , had battered his wife , proffered insults and humiliated his sons and had abused alcohol .

The next hearing was held on DATE . The court heard evidence from the applicant ’s younger brother and ordered that an expert report on PERSON ’s mental health be prepared .

On DATE the ORG gave a decision . It noted that the applicant ’s mother had declared that her husband ’s behaviour had slightly improved and that therefore there were grounds for accepting that he was capable of mending his ways . The court was of the view that in these circumstances it would not be justified to order the prison sentence to be executed . However , it ordered the defendant to leave the family apartment within DATE , referring to LAW ) ( b ) of LAW . It observed that this obligation could be imposed on a defendant regardless of his ownership of the apartment and that it only limited him in the exercise of the right to live here , his ownership rights remaining intact .

On DATE the applicant ’s father appealed against this decision . He requested that the obligation to leave the house be lifted . A hearing before the appellate court was scheduled for DATE .

In DATE the probation officer contacted the applicant and his mother on the one hand and PERSON on the other within the framework of the supervision of the execution of the judgment given on CARDINAL DATE on the following dates : CARDINAL , CARDINAL , DATE , DATE and DATE , CARDINAL , CARDINAL , DATE and QUANTITY DATE , CARDINAL and CARDINAL DATE .

On DATE the applicant wrote to the probation officer and complained that his father continued to be violent .

On DATE the Bielsko - Biala Regional Court upheld the decision of CARDINAL DATE . It therefore became final on that date and PERSON was obliged to leave the house by CARDINAL DATE .

He failed to do so .

On an unspecified later date the applicant requested the assistance of a local bailiff . In reply , he was informed orally that it was legally impossible for the bailiff to take any enforcement steps if the person ordered to leave the apartment refused to do so .

By a letter of DATE the probation officer requested ORG to take steps in order to have the decision of CARDINAL DATE executed , referring to PERSON ’s failure to move out .

At the hearing held on DATE PERSON informed the court that he had been trying to find a new apartment , but that he had not found one so far . The court adjourned the examination of the case until DATE .

On DATE , in a civil case for the division of marital property , the applicant ’s parents concluded a settlement on the basis of which PERSON was obliged to move out of the family house within DATE from that date . This settlement became final on DATE .

During the hearing held on DATE ORG was informed of the settlement concluded on DATE . It adjourned the proceedings until DATE in order to read the casefile .

On DATE ORG noted that the applicant ’s father had moved out of the house on DATE . It therefore decided not to order the enforcement of the prison sentence and obliged PERSON not to approach the applicant and his mother .

DATE of the Law on Domestic Violence ( LOC o przeciwdziałaniu przemocy w rodzinie ) was adopted on DATE . It amended LAW by adding to it the following text :

When staying execution of a sentence , the court may impose on a defendant an obligation to : ( ... )

( b ) leave an apartment where the defendant lives with the victim [ of the offence concerned ] .

In its ORG ( CARDINAL of DATE on the protection of women against violence , ORG stated , inter alia , that member GPE should introduce , develop and/or improve where necessary national policies against violence based on maximum safety and protection of victims , support and assistance , adjustment of the criminal and civil law , raising of public awareness , training for professionals confronted with violence against women and prevention .

With regard to violence within the family , ORG recommended that member States should classify all forms of violence within the family as criminal offences and envisage the possibility of taking measures in order , inter alia , to enable the judiciary to adopt interim measures aimed at protecting victims , to ban the perpetrator from contacting , communicating with or approaching the victim , or residing in or entering defined areas , to penalise all breaches of the measures imposed on the perpetrator and to establish a compulsory protocol for operation by the police , medical and social services .


Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

On DATE criminal investigations were instituted against ORG suspects , including the applicant ( a businesswoman ) on suspicion of several counts of tax fraud , involving the issue of CARDINAL fictitious invoices . The applicant ’s company was concerned in each count of fraud . The material of the ensuing investigation amounted to CARDINAL pages .

On DATE tax investigators searched the applicant ’s house for documents and arrested her . The applicant alleges that the tax investigators’ behaviour was harsh and insensitive in that they hindered her for TIME from providing her minor son with a spray - inhaler when he suffered an asthma attack during the search . Moreover , she submits that , on her arrest , she was forcibly seated in the authority ’s car , in which the tax investigators touched her inappropriately and made abusive remarks .

She was kept in police custody for DATE .

On DATE the applicant lodged a complaint about the tax investigators’ conduct . On DATE ORG refused to proceed with the complaint , considering that the investigators had carried out the search and the arrest in accordance with the law . The ORG noted that the applicant had complained about the incident only after a delay of DATE . On DATE and DATE and DATE , respectively , PERSON and ORG and the Attorney ORG dismissed the applicant ’s further complaints .

On CARDINAL DATE the police again searched the applicant ’s house .

In her submissions to the ORG filed on DATE , the applicant stated that on that occasion she had been ill - treated by the police officers and that the latter had not allowed the emergency medical staff , which had been called to her son on account of another asthma attack , to enter the house .

On DATE ORG discontinued the investigation into the incident . On DATE the ORG finally dismissed the applicant ’s complaint .

Meanwhile , on DATE and DATE , CARDINAL DATE and DATE , the applicant was interrogated by ORG . Moreover , DATE and DATE altogether CARDINAL suspects were interrogated on various occasions . CARDINAL witnesses were heard and several house searches and confrontations of witnesses took place . Furthermore , CARDINAL opinions were obtained from expert accountants .

On DATE the proceedings were discontinued against CARDINAL suspects .

On DATE a bill of indictment was preferred . The applicant was charged with CARDINAL counts of tax fraud and CARDINAL counts of document forgery .

The first hearings were scheduled by ORG for CARDINAL and DATE . The proceedings have been pending at first instance ever since .


The applicant was born in DATE and lives in PERSON .

The applicant 's appeal against the detention order , likewise his further appeals against decisions prolonging his detention and all his subsequent applications for release and appeals against refusals to release him , were unsuccessful .

It appears that DATE and DATE the applicant served a sentence of DATE imprisonment ordered in another set of proceedings against him .

In the course of the investigation , the applicant 's detention was prolonged by decisions of ORG ( Sąd Apelacyjny ) delivered on DATE and DATE . In the latter decision the court stressed that an expertise on several documents , due at DATE , had not yet been submitted

On DATE the bill of indictment against the applicant and CARDINAL other defendants was lodged with ORG . It appears that CARDINAL defendants , including the applicant , were charged with offences committed in an organised criminal group .

Further decisions extending the applicant 's pre - trial detention were taken by ORG ( PERSON ) on DATE and by ORG on DATE .

In all their detention decisions the authorities repeatedly relied on a strong suspicion that the applicant had committed the offences in question , which was supported by evidence from witnesses . They attached importance to the fact that the offences had been committed in an organised criminal group . They further stressed that the applicant , if released , could easily abscond , having access to forged identity documents and being in contact with criminal groups abroad . In this respect the courts stressed that in the initial stage of the investigation the applicant had used a false identity and appeared under the name of ORG PERSON , a NORP national . Lastly , the courts found no special grounds , as specified in LAW , that would justify lifting the detention .

In a decision of DATE ORG stressed that CARDINAL wanted notices had been issued in the applicant 's case .

On DATE the trial court held the first hearing . It subsequently held , until DATE , some CARDINAL hearings in the case .

During the court proceedings the applicant 's detention was further prolonged by ORG on DATE . The court repeated the grounds previously given for the applicant 's continued detention .

On DATE ORG lifted the applicant 's detention . The court decided that the applicant could be released under police supervision and a prohibition on his leaving the country .

It seems that on DATE the applicant was again arrested in the same set of criminal proceedings . On DATE ORG remanded him in custody . It would appear that additional charges of organising illegal border crossing were laid against the applicant .

The applicant 's detention was further extended by decisions of ORG delivered on DATE and DATE . The applicant 's interlocutory appeal against the former decision was dismissed by ORG .

On DATE ORG decided to lift the applicant 's detention . The court held that his detention after DATE has lacked a legal basis and had therefore been in breach of procedural criminal law , as ordered and subsequently extended by courts that had not been competent to deal with the case . It stressed that having regard to the fact that the applicant had already been detained in the same set of proceedings for DATE , his re - arrest should have been ordered and extended by ORG .

The proceedings are still pending before the first - instance court .

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

Relevant statistical data , recent amendments to the Code of Criminal procedure designed to streamline criminal proceedings and references to the relevant ORG materials including the DATE ORG can be found in the ORG 's judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL , § DATE and CARDINAL , DATE ) .


CASE OF ALMEIDA GARRETT, MASCARENHAS FALCAO AND OTHERS v. PORTUGAL

Preliminary objection dismissed (Article 35-3-a - Ratione temporis);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Just satisfaction reserved (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

A. De Sousa Inês;Elisabeth Palm;Gaukur Jörundsson

The CARDINAL applicants , who are NORP nationals , were born respectively in DATE , DATE , DATE and DATE . They all live in GPE , except for the last CARDINAL applicants , who live at FAC . All owned land that had been expropriated and nationalised as part of the agrarian - reform policy in GPE .

In DATE Mr PERSON was the owner of CARDINAL plots of agricultural land with a total surface area of QUANTITY .

Under the agrarian - reform policy , CARDINAL of the plots were nationalised by Legislative Decree no . CARDINAL of DATE . The third plot had been expropriated by Ministerial Decree no . CARDINAL of DATE issued by ORG , which was published under LAW no . CARDINAL of DATE . The aforementioned legislative decrees provided that the owner could , subject to satisfying certain conditions , exercise his right to a “ reserved share ” ( direito de “ reserva ” ) over part of the land to carry on agricultural activities . They also provided for the payment of compensation , for which the amount , the time - limit and the terms of payment had yet to be determined .

In accordance with the relevant legislation , the provisional compensation to which the applicant was entitled was assessed in DATE at CARDINAL NORP escudos ( PTE ) . On DATE that sum was made available to the applicant in the form of government securities .

The applicant exercised his right to a reserved share in the plots of land concerned on several occasions such that by DATE at the latest , he was already in possession of part of the land . However , another part of the land , measuring QUANTITY , was not returned to him .

On DATE the applicant brought an action in damages against the ORG before the ordinary courts ( ORG of ORG ) because of its failure to pay the final compensation following the expropriation . He alleged that in view of the length of time he had been kept waiting for payment of the final compensation since the expropriation , the general law on expropriations should have been applied ( not the law relating to the agrarian reform ) . He therefore sought payment of compensation that took into account the period that had elapsed since the expropriation .

In a decision of DATE ORG Instance dismissed the action holding , as a preliminary point , that it had no jurisdiction ratione materiae . The applicant appealed , but ORG Tribunal PERSON ) upheld the impugned judgment in a decision of DATE .

NORP The applicant appealed on points of law to ORG ( Supremo Tribunal de Justiça ) , which , in a decision of CARDINAL DATE , dismissed the appeal holding , inter alia , as follows :

“ Delays in payment of compensation for nationalisation and expropriation must not be regarded as constituting an unlawful omission by the political and administrative authorities ... It has been established that sections CARDINAL and CARDINAL of Law no . CARDINAL , which require the authorities to assess the compensation due for the nationalisation and expropriation of agricultural land situated in the area to which the agrarian reform applies , are not substantively unconstitutional as the assessment of such compensation is also within the province of the administrative authorities ( see the decision of ORG no . CARDINAL of CARDINAL DATE ) ... It must be added that LAW no . CARDINAL of CARDINAL DATE expressly made the administrative authorities responsible for assessing the amount of [ such ] compensation ... It therefore follows from the decrees that compensation due to the former owners of rights in property that has been nationalised , expropriated or requisitioned is assessed by the administrative authorities [ though an appeal lies to ORG against such assessments ] , such that the ordinary courts have no jurisdiction ratione materiae . ”

On DATE the applicant lodged a constitutional appeal with ORG ) . On DATE ORG declared the appeal inadmissible . It said that before the lower courts the issue of constitutionality raised by the applicant concerned only the case - law , not the statutory provisions . Therefore , it could not hear the appeal , since it could only examine the conformity of statutory provisions with the LAW , not the conformity of court decisions . The applicant then applied to ORG to have that decision set aside as being null and void , but his application was dismissed on DATE .

On DATE the applicant brought a claim for damages against the ORG in ORG ( PERSON , which has now become the FAC Administrativo de círculo ) . He sought , inter alia , reparation for the damage he had sustained as a result of the failure to pay the final compensation following the nationalisation and expropriation of his plots of land .

In a judgment of DATE , ORG dismissed the applicant 's claims . Having referred to the relevant legislation , ORG held that no compensation for the alleged damage could be claimed other than by following the administrative procedure .

On an appeal by the applicant , ORG ( Supremo Tribunal Administrativo ) upheld the impugned judgment in a decision of DATE . After recognising the applicant 's right to “ fair compensation ” , it pointed out that under the legislation applicable in such cases the amount of compensation had to be assessed by the authorities .

On DATE ORG dismissed an application for interpretation of that decision . On DATE it dismissed an application by the applicant for a declaration that that decision was null and void .

The applicant lodged a number of claims with the authorities concerning the delays in the payment of the provisional compensation and in the assessment of the final compensation , the first such claim being lodged in DATE . He also requested that an arbitration tribunal be set up in order to decide his dispute with the ORG . His requests were , however , turned down . By an ordinance issued by the Prime Minister on DATE it was decided among other things not to accept the request for the setting up of an arbitration tribunal “ in view of the publication of Legislative Decree no . CARDINAL ” ( see paragraph CARDINAL below ) .

On DATE the applicant requested ORG to assess the final compensation in accordance with Legislative Decrees nos . CARDINAL .

On DATE ORG sent the applicant a proposal for final compensation assessed at PTE CARDINAL,CARDINAL,CARDINAL and requested his observations .

On DATE the applicant submitted his observations , drawing the relevant department 's attention to various inaccuracies in the proposal .

On DATE ORG sent a revised proposal for final compensation replacing the previous one . The revised amount came to PTE CARDINAL .

On an unspecified date the applicant sent his observations on the new proposal to the ORG , drawing its attention to various factual and legal points . The proceedings concerning the assessment of the final compensation are thus still pending .

In DATE the Mascarenhas Falcão family was the owner of a plot of agricultural land with a total surface area of QUANTITY .

Under the agrarian - reform policy , the plot was expropriated by a ministerial decree ( no . CARDINAL of CARDINAL September CARDINAL ) issued by the Minister of Agriculture and published pursuant to Legislative Decree no . CARDINAL of DATE ( see paragraph CARDINAL above ) .

In accordance with the relevant legislation , the applicants received the sum of PTE CARDINAL in government securities in DATE , as provisional compensation .

The applicants exercised their right to a reserved share in the land on several occasions , such that by DATE they were already in possession of the whole of the land .

On CARDINAL DATE the applicants brought an action in damages against the ORG before the ordinary courts ( ORG of ORG ) because of the ORG 's failure to pay the final compensation after the expropriation . They alleged that in view of the length of time they had been kept waiting for payment of the final compensation since the expropriation , the general law on expropriations should have been applied ( not the law concerning the agrarian reform ) . They thus sought payment of compensation that took account of the period that had elapsed since the expropriation .

In a judgment of DATE , ORG declared that it had no jurisdiction ratione materiae , holding , in particular , as follows :

“ It is the ... government which is empowered to assess ... final compensation ... . In view of the administrative nature of the act concerned , an administrative appeal lies against such assessments to ORG ... . It therefore follows that , since the statute does not provide for the intervention of the ordinary courts in the procedure for assessing such compensation , the conclusion that this ORG has no jurisdiction ratione materiae to hear the [ applicants ' ] claims is inescapable . ”

The applicants appealed to ORG , which on DATE dismissed the appeal , holding , inter alia :

“ It is not until after [ the request for assessment of the final compensation ] has been presented and after the corresponding administrative procedure ... that the remedy before the administrative authorities is exhausted . It is therefore for the claimants to appeal to the courts if they disagree with the decision . In view of the administrative nature of the acts in issue , any appeal should be to the administrative courts ... . Nor do the ordinary courts have any jurisdiction to hear requests for compensation for delay or for damage sustained because of delay , since the wording of LAW no . DATE when referring to final compensation due on the nationalisation or expropriation of land under the legislation concerning the agrarian reform – suggests that the decree also covers compensation for such damage to the extent that it results , albeit indirectly , from the expropriation itself . ”

The applicants appealed on points of law to ORG but withdrew their appeal purportedly on account of ORG settled case - law in such cases .

On DATE the applicants had lodged a request for compensation with the Minister of Agriculture for the delay in their recovering the land over which they had exercised their right to a reserved share . On the instructions of the Minister , legal counsel from ORG then issued a legal opinion concerning the request . The relevant part of the opinion reads as follows :

“ [ The ORG ] can have no liability in the instant case other than that which arises under PERSON no . CARDINAL/CARDINAL and the related statutory provisions ... . Otherwise , additional compensation would have to be added to that payable under LAW no . CARDINAL , which would be contrary to the entire body of legislation on compensation payable under the agrarian reform . ”

On DATE the Minister indicated his agreement with the opinion and ordered that the applicants be notified of it .

The applicants then asked the Minister of Agriculture on DATE , CARDINAL DATE and DATE to award final compensation under Legislative Decrees CARDINAL . CARDINAL .

On DATE the Ministry sent the applicants a proposal for final compensation of PTE CARDINAL and requested their observations . It was nonetheless stipulated that from that amount had to be deducted the sum which the applicants had already received as provisional compensation , which meant that they were not entitled to any further sum .

On DATE the applicants submitted their observations . They drew the relevant department 's attention to the fact that the proposal contained a number of inaccuracies . To date , no decision has been taken .

The rules governing expropriations and nationalisations carried out as part of the policy of agrarian reform were set out in Legislative Decrees nos . CARDINAL of DATE and CARDINAL of DATE . The right to a reserved share entitled owners to remain in possession of part of their land . Framework legislation ( PERSON no . CARDINAL of DATE ) concerning the general basis of the agrarian reform amended the rules governing the right to a reserved share and established that the nature of the landowners ' interest in the reserved share was proprietary . The rules governing the right to a reserved share were further amended by subsequent framework legislation ( Law no . CARDINAL of DATE ) .

On DATE ORG adopted PERSON no . CARDINAL laying down the procedures for compensating former owners of nationalised or expropriated property . Under section CARDINAL of that PERSON , compensation , which was initially assessed provisionally before being assessed finally , was to be paid in government securities maturing over a period of DATE and bearing interest at the rates prescribed in the schedule to the PERSON . For amounts exceeding PTE CARDINAL , payment was scheduled DATE ( after a standstill DATE ) with an DATE rate of interest of PERCENT . Section CARDINAL specified that interest started to run from the date of the expropriation or nationalisation since it was due from the date scheduled for the issue of the government securities ( which , in the applicants ' case , by virtue of Legislative Decree no . CARDINAL of DATE , was DATE ) . Lastly , section CARDINAL(CARDINAL ) provided that provisional compensation had to be regarded as a payment on account of final compensation such that the person concerned could be required to pay back provisional compensation to the ORG if either no final compensation was payable or the final compensation came to less than the provisional compensation .

As to the procedure for challenging the decisions of the authorities on this issue , section CARDINAL of the PERSON provided :

“ CARDINAL . Without prejudice to any remedies available before other competent bodies , disputes relating to the right to final compensation and to the assessment , payment and effectiveness of such compensation shall be resolved by way of review of the relevant administrative act by an arbitration tribunal ... ”

As to compensation due specifically in connection with the agrarian reform , section DATE of the PERSON provided that the government would determine the criteria for valuing the expropriated or nationalised property within DATE . The government did not , however , comply with that time - limit .

On DATE the government adopted Legislative Decree no . CARDINAL determining how the general principles on compensation for expropriations and nationalisations set out in PERSON no . CARDINAL/CARDINAL would apply to the agrarian reform . The explanatory memorandum to the legislative decree included the following statement :

“ Although DATE have elapsed since those nationalisations and expropriations , there has yet to be paid , or even assessed , the amount of final compensation due to the private owners who were affected by the measures , since the legislative decree that should have determined the criteria necessary for assessment purposes has never been adopted . It is this serious gap in our legal system which the government now proposes to fill in the light of the general rules adopted by ORG in DATE . ”

New criteria for the calculation of compensation were introduced by Legislative Decrees nos . DATE and CARDINAL of DATE . Compensation due to people who had recovered all or part of the land concerned by exercising their right to a reserved share was to be calculated on the basis that it was intended to cover only the damage caused by the occupation of that land during the period of deprivation of ownership .

The rules of procedure for determining the final compensation were set out in ORG CARDINAL and CARDINAL of Legislative Decree no . DATE . The onus was on the landowners to claim compensation , thereby commencing the procedure . Claims were decided by an arbitration tribunal which included CARDINAL representative of each of the Minister of Agriculture , the Minister of Finance and the landowner . The tribunal then made a proposal to the government , which determined the amount of compensation in a decree issued jointly by ORG .

That procedure was amended by Legislative Decree no . CARDINAL of DATE . The amendments included a right for the authorities to initiate the procedure for assessing the final compensation ex officio . The arbitration tribunals were abolished , the task of assessing the final compensation becoming the sole responsibility of ORG , whose decision was based on a proposal by the relevant departments of the administrative authorities ( the regional directorates of ORG ) . The landowner had the right to comment on the proposal made by the authorities before a final decision was taken by ORG .

Those CARDINAL statutory provisions , Legislative Decrees CARDINAL . CARDINAL and CARDINAL , were silent as to the remedies available to the landowner , although under administrative law it is possible to lodge an application with the administrative courts for judicial review of a ministerial act that gives cause for complaint .

ORG examined the issue of the compatibility with LAW of the system of payment of compensation following a nationalisation or expropriation in its decisions LAW CARDINAL of DATE and CARDINAL/CARDINAL of DATE . With regard to the authorities ' delay in the payment of compensation , it held in the first of these decisions :

“ ... certainly all that [ namely , the payment of the compensation ] was done a considerable time after the nationalisations were carried out . It might be said that such delay constitutes a violation of the principle set out in LAW requiring the payment of compensation . However , that would be wrong . If , as a result of such a situation , there was a breach of the right to compensation on the ground that that right might become uncertain and therefore devoid of substance , the breach would not have been caused by any defect in the provisions under consideration but by the authorities ' inaction or lack of diligence ; and if it was the case that the authorities failed to act owing to the absence of statutory provisions capable of ensuring the effective application of the provisions in force and , consequently , the effective exercise of the right embodied in LAW , then any failure to abide by LAW would be by way of omission ... . ORG is not , however , called upon to examine that issue . ”


The applicant , PERSON , was a GPE national . He was born in DATE and he lived in PERSON . He died in DATE . His widow , PERSON , continues the application on his behalf .

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

Further to a detailed statement given to the police on DATE by Ms E , on DATE the applicant was arrested on suspicion of indecent assault of CARDINAL young children , CARDINAL of whom was his daughter . He denied the offences to the police . He was remanded in custody for DATE after which he was granted bail . His bail conditions forbade him to contact Ms E or her children . Ms E made a further detailed statement on CARDINAL DATE .

On DATE the applicant sent Ms E a DATE card which read as follows :

“ To [ Ms E and her son ] , PERSON bless you both . DATE be as happy as mine and my wife ’s children . May it reflect all the harm you have done to a family that loved one another and still do . Perhaps in the end you will remember all the good that was done for you ; for befriending you was the worst thing we have ever done , but thank you , for they know not what they do . I forgive you , and may God have mercy on you for all your DATE . DATE you wake up thinking how you have destroyed a family . DATE be in torment until you say the truth . PERSON , you need God in your life . Do n’t doubt , believe ; remember everything is possible to those who believe . I forgive you . ”

The card was signed “ PERSON and its post - script read “ Have a nice Christmas ” .

Ms E made a witness statement dated DATE . She described how she had received the card and , after great consideration , had decided not to give evidence .

The case came on for trial before ORG on DATE and the applicant pleaded not guilty . The applicant claims that Ms E did not attend as she knew her statement was untrue .

Ms E made another statement dated DATE which read as follows :

“ I have previously stated that I had decided that I did n’t want to give evidence against [ the applicant ] . The reasons for this are that before I received the DATE card from him , I was prepared to give evidence although I was aware that it would be an unpleasant experience . When I read the DATE card I felt sick and started to shake . I could not bear to be in the same house , and within TIME of receiving it , I had posted it to [ ORG ] . I thought he was trying to get round me ; TIME he seemed to be pleasant , and then he was sounding terrible . After I sent the card off , I blocked it out of my mind as I had no idea when the court case would be . I had a visit from [ a police officer ] to see if I was capable of giving evidence ... I am petrified of [ the applicant ] and very concerned about any reprisals from him . I do n’t think I could bear to be in the same room as him . It is for these reasons only that I have decided not to give evidence . Everything I have previously stated to the police regarding [ the applicant ’s ] actions is the truth . ”

On DATE , when the case was re - listed for trial , counsel for the prosecution explained Ms E ’s position . The trial judge , without opposition from the applicant ’s counsel , ordered as follows :

“ PERSON , I direct that this indictment lie on the file marked in this way : that it not be proceeded with without leave of this court or ORG ... Let me warn you in the clearest possible terms that there is every likelihood of this court granting leave to resurrect this case if there is any repetition of the alleged events contained on that indictment . Do you understand ? ”

The defendant replied that he did and the trial judge went on :

“ I direct this file , together with the latest statement of Ms E to be placed before the [ prosecutor ] for further consideration as to whether or not an offence is disclosed on the face of it , and whether as a consequence , you should be prosecuted therefor . ”

In or around DATE the applicant wrote to the trial judge asking him to re - open the case . By letter dated DATE the chief clerk informed the applicant that the trial judge had decided not to re - open the case . The trial judge had written on the file :

“ I regret that I can not now reconsider the matter . The defendant was fully and well represented at the time and the matter fully canvassed then . Nothing further will be achieved by resurrecting it . ”

In DATE the applicant lodged appeal papers with ORG . On DATE the ORG of Appeal office declined to consider his application as there had been no conviction and advised him that , if he wished to have his case re - opened , he should apply to ORG .

On DATE the applicant instituted proceedings against Ms E for malicious falsehood as regards her statement of DATE . He claims that those proceedings were successful .

In DATE the applicant wrote to ORG again requesting that the matter be re - opened . On DATE the court office responded confirming that a “ not guilty ” verdict had not been entered in DATE and that both counts had been ordered to lie on the file in the usual terms .

By letter dated CARDINAL DATE the applicant ’s solicitors asked ORG ( “ the prosecution ” ) about its intentions concerning the charges left on the file . By letter of CARDINAL DATE the prosecution confirmed :

“ ... that there is currently no intention to proceed upon the outstanding matter . I can not envisage any situation in which this matter would now proceed ” .

On DATE the prosecution indicated to ORG that , given the applicant ’s recent request to have the matter re - listed , it had no objection to a formal verdict of “ not guilty ” being entered under LAW of LAW DATE and , in the circumstances , asked for the matter to be re - listed for that purpose .

The matter was re - listed for CARDINAL DATE . Each party was represented by counsel . Having summarised the facts of the case so far , the trial judge noted that the situation had been brought about by the applicant himself since he had intimidated Ms E and since his counsel had consented to the course of action taken on DATE . Given that conduct and his previous convictions , it was understandable that the prosecution did not wish to offer evidence and that the applicant was satisfied to consent to the matter remaining on the file . The trial judge went on :

“ I am conscious that in considering this matter , the court has a discretion whether or not to re - open it , and that such a discretion must be exercised judicially . I am satisfied that this case did not proceed , solely as a result of the acts of [ the applicant ] . On all the facts before me , and in the exercise of my discretion , I do not propose to give leave to [ the applicant ] to remove the stay on these proceedings ... ”

On DATE the applicant applied for leave to take judicial review proceedings for an order of certiorari to quash the decision of ORG of CARDINAL DATE arguing , inter alia , that the order of DATE was wrong in law . Leave was granted in DATE and , following a hearing on DATE , ORG dismissed the application because it did not have jurisdiction to consider it .

The applicant claims that his CARDINAL children were placed with foster parents in or DATE .

ORG may leave some or all of the counts in an indictment on the file . Counts which are left on the file are marked : “ Not to be proceeded with without the leave of the court or ORG ” . There is a similar practice in ORG , where the same effect is achieved by adjourning a case sine die . In NORP v. ORG ex parte PERSON [ DATE ] CARDINAL Cr . App . CARDINAL , Lord Justice PERSON stated that an order to leave the charges on the file

“ ... starts off by having the same effect as an order for an adjournment , but an adjournment which it is accepted may never result in a trial ... [ the orders ] go beyond the ordinary order for an adjournment since they have the effect of not only postponing a trial but , in effect , ordering that there should be no trial without the leave of the court . ”

An order that charges be left on the file ( “ the order ” ) is often made where an indictment contains several counts and the plea(s ) of guilty entered by the defendant to some of these counts are regarded as adequate by the prosecution . The order is made to protect the position of the prosecution in case a defendant convicted in this manner successfully appeals . The intention is that , if there is no successful appeal , the defendant should never stand trial on the counts left on the file . A successful appeal would allow the prosecution to apply to the trial court to pursue the other counts left on the file .

Section CARDINAL of LAW DATE ( “ LAW ” ) provides that the court may enter a verdict of not guilty without a jury being impanelled :

“ Where a defendant arraigned on an indictment or inquisition pleads not guilty and the prosecutor proposes to offer no evidence against him , the court before which the defendant is arraigned may , if it thinks fit , order that a verdict of not guilty shall be recorded without the defendant being given in charge to a jury , and the verdict shall have the same effect as if the defendant had been tried and acquitted on the verdict of a jury . ”

In NORP v. ORG ex parte Lord PERSON ( The ORG , DATE ) , the prosecution indicated that they would offer no evidence against the accused . Counsel for the accused applied to the judge to enter a verdict of not guilty according to section DATE of LAW . However , the judge instead made an order to stay the prosecution permanently by ordering that the indictment lie on the file marked “ not to be proceeded with ” . The case came before ORG on judicial review and , after ruling that it had jurisdiction to consider the matter , the court found that it was not within the trial judge ’s power to order that the indictment lie on the file and that the only course open to the judge was to record a verdict of not guilty either by an order under LAW or by impanelling a jury and directing them to acquit the defendant . Lord Justice PERSON stated that :

“ [ ... ] LAW [ of LAW DATE ] is merely a piece of machinery which enables a judge to enter a verdict of not guilty where the prosecution offer no evidence instead of going through the process of impanelling a jury and requiring them to do so . That section gives the judge no discretion to adopt some other and different course however much he may think it right to do so . ”

The DATE edition of ORG ( reference book on criminal practice and procedure , the edition concerning the relevant time ) summarises the effect of that case in the following manner ( at paragraph CARDINAL ) :

“ [ An order leaving an indictment on the file ] should never be made where the defendant pleads not guilty and the prosecution are disinclined to proceed , but unwilling to offer no evidence ; in such circumstances , the defendant ’s consent is insufficient reason for ordering a whole indictment to lie on the file . ... NORP v. ORG ex p. PERSON , The ORG , DATE . ”

It is , however , questionable whether ORG in fact had jurisdiction in ex parte PERSON to review the decision of ORG to stay the prosecution permanently by ordering that the indictment lie on the file . The decision of ORG that it had such jurisdiction was based , inter alia , on earlier decisions of ORG in NORP v. ORG ex parte PERSON and NORP v. ORG ex parte PERSON . In the subsequent case of PERSON ( NORP v. ORG and others ex parte Director of Public Prosecutions ) [ DATE ] AC CARDINAL , ORG approved the decision in the case of ex parte PERSON and overruled those in PERSON and PERSON . It was further held that , whether or not the result in ex parte PERSON could be justified on other grounds , it could not be justified on the basis of the reasoning in PERSON and PERSON .

The suggestion that charges should be left on the file typically comes from the prosecution . Only the consent of the trial judge is required for the order to be made but in practice the judge usually requires that the defence also agree . The order , as a decision made in the conduct of a trial on indictment , can not be challenged on appeal to ORG ( NORP v. ORG , CARDINAL Cr . App . PERSON ( CA ) ) . According to NORP v. ORG ex parte PERSON approved in ORG ( both cited above ) , the order can not be challenged on judicial review .

The prosecution may apply for leave to proceed upon charges left on the file . The application is made to ORG if the reason for re - opening the proceedings is that the counts on which the defendant was convicted have been quashed . In other cases , the application would be made to the court which made the order to leave the charges on the file . Applications to re - open proceedings and orders granting such applications are exceptional .

In considering whether to grant an application to re - open proceedings , the relevant court examines whether the re - opening would be fair and whether it would constitute an abuse of process ( for example , on the grounds of excessive delay between the alleged commission of the offence and the new trial or an undertaking of the prosecution to the former defendant that the matter would not be pursued ) . In this latter respect , ORG has found that the prosecution of a person who had received a representation or promise that he would not be prosecuted was capable of being an abuse of process of the court notwithstanding the absence of bad faith ( NORP v. Croydon Justices ex parte PERSON ( [ DATE ] ORG ) .

In NORP v. ORG ex parte PERSON ( cited above ) , Lord Justice PERSON commented that :

“ ... in the majority of cases where such an order is made , there will be no trial and there will certainly come a stage when either the prosecution would not seek a trial or if it did seek a trial , the court would regard it as so oppressive to have a trial that leave to proceed would inevitably be refused . ”


CASE OF FRENDO RANDON AND OTHERS  v. MALTA

Violation of Art. 6-1;Violation of P1-1;Just satisfaction - reserved

David Scicluna;George Nicolaou;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE , CARDINAL , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively . The first CARDINAL applicants live in GPE , the next CARDINAL applicants live in GPE , the penultimate applicant lives in GPE and the last applicant lives in GPE .

The applicants or their predecessors in title ( hereinafter “ the applicants ” ) owned CARDINAL plots of land of varying sizes . The applicants were notified that their land had been made subject to CARDINAL declarations by the Governor General dated CARDINAL DATE and CARDINAL DATE , stating that the land would be expropriated for a public purpose . The intended public purpose was the building of the GPE . The said plots were numbered LAW ( CARDINAL sq.m ) , Plot CARDINAL ( CARDINAL sq.m ) , Plot CARDINAL ( CARDINAL,CARDINAL sq.m ) and Plot CARDINAL ( CARDINAL sq.m ) .

Following notices to treat of CARDINAL DATE and CARDINAL DATE respectively , the applicants were offered MONEY ( ( ORG ) - MONEY ( ORG ) ) for Plot CARDINAL , MTL CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) for Plot CARDINAL , MTL CARDINAL ( approximately FAC , CARDINAL ) for Plot CARDINAL , and ORG CARDINAL ( approximately ORG CARDINAL,CARDINAL ) for Plot CARDINAL . In DATE the applicants refused the above - mentioned offers in respect of Plots CARDINAL , CARDINAL and DATE and submitted their counteroffers . According to the Government , the applicants accepted the offer in respect of Plot CARDINAL ; however , the applicants contested this . Subsequently , the Commissioner of Lands ( CoL ) was required to institute proceedings before ORG ) ( see “ Relevant domestic law below ” ) . Although no such proceedings ensued , the ORG gave possession of the CARDINAL plots of land to ORG .

The applicants unsuccessfully requested the ORG to initiate proceedings a number of times ; however , the latter did not do so , insisting that he wanted further information in relation to the ORG ownership title . The law at the relevant time did not provide for a procedure which would allow the applicants to initiate proceedings for compensation . The initiation of compensation proceedings was an action which could be undertaken only by the authorities , and to which no time - limit applied . However , in DATE it had been confirmed that the ordinary courts had the competence , upon a request made by persons in a similar position to the applicants , to set a time - limit for the performance of that obligation , by virtue of LAW .

Thus , on DATE the applicants lodged ordinary civil proceedings , requesting the court to order the ORG to initiate the necessary proceedings within an established time frame .

On DATE ORG upheld the ORG request , and ordered the ORG to initiate proceedings before the ORG within DATE . It noted that the relevant notices to treat had been issued to all the owners concerned who at the time were still alive . Moreover , it was incumbent on the ORG to establish the identity of the owners of the land and to ensure that they were notified and that the relevant proceedings were pursued properly . No appeal having been lodged , the judgment became final .

On DATE the ORG instituted compensation proceedings in respect of CARDINAL of the plots of land in question ( Plots CARDINAL and DATE ) . These proceedings are still pending , as they were suspended sine die , pending the outcome of the constitutional proceedings mentioned below .

Compensation proceedings in relation to ORG and CARDINAL had not been initiated by the time the applicants instituted constitutional redress proceedings . However , pending the constitutional proceedings , on DATE , a schedule of deposit was filed in court , in relation to LAW , consisting of ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) covering the price of the land and MTL MONEY ( approximately EUR CARDINAL,CARDINAL ) as damages for the delay in payment .

By DATE , only a portion of the CARDINAL plots of land had been used , the remaining portion remaining unused but earmarked for future expansion . More precisely , most of Plot CARDINAL is currently being developed as a stacking area for containers for the purposes of the GPE , the remaining QUANTITY m forming part of an area of land conceded on lease by ORG Plot CARDINAL ( consisting of a farmhouse and adjacent rural structures ) and Plot CARDINAL are outside the GPE zone , and are currently in their original state but may be earmarked for future expansion . Plot CARDINAL is almost entirely within the GPE zone and has been used for that purpose , including the building of roads , except for a piece of land measuring CARDINAL sq.m , which is outside the GPE zone and is currently in its original state but may be earmarked for future expansion .

In consequence , the applicants , who remain uncompensated to date , instituted CARDINAL sets of constitutional proceedings .

In DATE the applicants instituted proceedings in relation to the taking of Plots CARDINAL and DATE , complaining under LAW lack of access to court ; a lack of a fair hearing within a reasonable time ( in respect of DATE before the proceedings started and in respect of the current pending proceedings before the LAB ) , before an independent and impartial tribunal , the latter in that they considered that the ORG ’s constitution did not fulfil the said requirements . They further complained under LAW No . CARDINAL to the LAW about the lack of adequate compensation in relation to the taking ; in particular , they noted that the law as it stood referred to values applicable at the time of taking . At the final stages of oral submissions they further argued that the taking had not been carried out in the public interest as it had been given to a commercial entity and that the unused land was to be returned according to the PERSON jurisprudence ( see relevant domestic law and practice below ) .

On DATE , ORG ( FAC ) in its constitutional jurisdiction found a violation of LAW , in that the applicants had been denied access to court . Indeed , it was only the ORG who could institute proceedings according to domestic law . The fact that recently the law had been applied to allow the applicants to take up proceedings requesting a court to order the latter to act within a time - limit did not detract from the fact that it ultimately remained the duty of the ORG to take up these proceedings , and the affected individuals had no obligation to solicit such an action . Moreover , even in the event that ownership of land was at issue , it referred to ORG earlier reasoning in this respect ( see paragraph CARDINAL above ) and , moreover , considered that the ORG could have instituted proceedings by means of a curator . It awarded them LAW by way of damages and dismissed the remainder of their claims . It held that the taking of the CARDINAL plots of land which were being used for the GPE had been in the public interest , the latter being an important economic venture for the country . The fact that it was later privatised did not take away the element of public interest , despite the fact that the deed of expropriation had not yet been finalised . Moreover , the CARDINAL of the CARDINAL plots which was outside the GPE zone which had remained unused could have been used for future development . It failed to take cognisance of the complaint regarding compensation , holding that this had not yet been determined by the LAB . As to the complaint about the length of the proceedings , namely DATE for the ORG to initiate proceedings , the court held that apart from the fact that this had been related to the previous complaint under LAW , the provision referred to proceedings which had already begun and had taken an unreasonable time to be finally decided ; therefore it was not applicable in the present case which was still pending . Lastly , since the law had been changed , the composition of the ORG clearly satisfied the LAW .

On appeal , by a decision of CARDINAL DATE ORG reversed the said judgment in part . It confirmed that there had been a violation of LAW in so far as the applicants had been deprived of access to a court but only from the period starting on DATE , the date when GPE introduced the right of individual petition . It also considered that there had been a violation of the reasonable time principle DATE and DATE , the date when the compensation proceedings were initiated . It had regard however to the fact that the applicants were also to blame for not having taken up the civil remedy available to solicit the ORG earlier than they had done . Moreover , no proof had been supplied that the proceedings currently pending before the LAB were not satisfying the reasonable time requirement .

The Constitutional Court further found a violation of LAW No . CARDINAL to the Convention . Holding that the public interest had to persist from DATE of the taking to the date of the conclusion of the act of expropriation , it considered that even the land which had remained unused had been taken for such a purpose , since the GPE could reasonably expand to cover such land . Moreover , the privatisation of the GPE did not detract from the public interest involved . The court further confirmed that it was not in a position to consider the amount of compensation which had yet to be decided by the ORG . However , the fact that the process of expropriation had taken DATE had caused the applicants to suffer a disproportionate burden , constituting a violation of the applicants’ property rights .

The Constitutional Court reduced the amount of compensation to ORG CARDINAL,CARDINAL , covering moral damage in relation to the said violations and confirmed the rejection of the remaining complaints .

NORP In parallel , in DATE the applicants instituted proceedings in relation to the taking of Plots CARDINAL and CARDINAL , with identical complaints to those in case no . MONEY ( see paragraph CARDINAL above ) .

On DATE ORG ( FAC ) in its constitutional jurisdiction found a violation of LAW , in that the applicants had been denied access to court , and rejected the remaining complaints on the same ground of the judgment in case no . CARDINAL/CARDINAL ( see paragraph CARDINAL above ) . It added however that the present case was a more serious breach of the applicants’ right of access to court , as the ORG had failed to institute proceedings even after he was ordered to do so by a court . It thus awarded the applicants LAW by way of damages .

On appeal , by a decision of CARDINAL DATE ORG reversed the said judgment in part . It held that the findings of ORG in its judgment in case no . CARDINAL , applied in the same way in this case , except for the fact that the violation of the reasonable time principle was in respect of the period from DATE to the date of this judgment , since the ORG had not yet instituted the relevant proceedings . It awarded the applicants LAW in moral damage .

Shortly before and during the constitutional proceedings certain developments took place . Domestic jurisprudence developed by means of the PERSON case ( see “ Relevant domestic law ” below ) ; and the ORG announced the privatisation of the GPE , by conceding it on a long - term lease ( of DATE at the price of MONEY ( ORG ) per year , to be augmented over DATE to reach a maximum of ORG CARDINAL per year ) ; the jurisprudence in the PERSON case was overturned ; and , in DATE the law was amended to provide a procedure for an individual to initiate compensation proceedings before the ORG in relation to new and recent expropriations .

At the hearing of CARDINAL DATE the ORG informed the LAB of the outcome of the constitutional proceedings . However , neither the applicants nor their lawyers were present at that hearing ; nor were they present at the subsequent CARDINAL hearings . On DATE the applicants requested an adjournment in order to regularise their position .

ORG ) Ordinance ( LAW of LAW ) , in so far as relevant , reads as follows :

Section CARDINAL

“ The President of GPE may by declaration signed by him declare any land to be required for a public purpose . ”

Prior to the amendments introduced in DATE , ORG ) Ordinance provided that :

Section CARDINAL ( CARDINAL )

“ ... the competent authority shall give to the owner a notice ... by means of a judicial act , stating the amount of compensation , as shown in a valuation to be attached to the notice to treat . ”

Section CARDINAL(CARDINAL )

“ The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ... ”

Section CARDINAL

“ If the owner shall by a judicial act decline to accept the offer made by the competent authority , the matter shall be brought before ORG by an application to be made by the competent authority , and the ORG shall give all necessary orders or directions in accordance with the provisions of this Ordinance . ”

Article CARDINAL ( b ) of the Maltese Civil Code , LAW of LAW , in so far as relevant , reads as follows :

“ Where the time for the performance of the obligation has been left to the will of the debtor , or where it has been agreed that the debtor shall discharge the obligation when it will be possible for him to do so , or when he will have the means for so doing , the following rules shall be observed :

( b ) if the subject - matter of the obligation is other than the payment of a sum of money , the time within which the obligation is to be performed shall be fixed by the court according to circumstances . ”

In PERSON vs PERSON u l - Kummissarju ta l - Artijiet ( Rikors Nru DATE , DATE ) ORG held , after giving an overview of the applicable principles under LAW to the LAW , that whenever the process by which an individual is divested of his property is not concluded , the interference therefore remains CARDINAL of control of use , the ORG has the obligation to release the property to its rightful owners as soon as it transpires that there no longer exist grounds on which the ORG had originally , validly and justifiably taken the measure by which the owner ’s use was restricted . It was for the Government to prove that both at the time of the Governor ’s declaration and throughout the proceedings until the transfer of the property concluding the expropriation there existed a public interest for the taking of the property .

In this case the evidence revealed that for DATE the competent authorities had actively considered releasing the property to its rightful owners , as it was no longer needed for the purposes for which it had originally been taken . Moreover , DATE had passed since the date of the declaration and the present application , and thus the lack of public interest was evident . ORG noted that a general interest had indeed existed at the time of the declaration . However , it subsequently emerged that PERSON property would not have been used for that purpose and therefore the ORG should have returned the said property . Failure to comply with this latter obligation amounted to a breach of the applicants’ property rights under the LAW .


Violation of Art. 6-1;Violation of P1-1;Partly inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

The applicants took part in the liquidation of the consequences of the nuclear accident at the GPE nuclear plant . They were recognised as handicapped , becoming entitled to a special disability pension .

In DATE the applicants brought a civil action against the social security authorities , claiming that the amounts of their disability pensions had not been properly calculated . They maintained that the social security authorities should have increased their pensions in line with the increase of the minimal wage in GPE , but failed to do so .

On DATE the Nikulinskiy ORG of GPE satisfied their claims awarding the first applicant MONEY ( RUR ) , and the second applicant ORG DATE . The arrears awarded to the applicants by ORG constituted CARDINAL CARDINAL per cent of the amounts received by the applicants from the social security authorities within the contested period . On DATE this decision was upheld by ORG .

DATE the applicants brought a new action claiming the outstanding amounts of the disability pensions due to them for the period starting from DATE . They also claimed penalties for the delayed payment of their pensions during this period .

On DATE the Nikulinskiy ORG awarded the first applicant ORG CARDINAL and the second applicant ORG CARDINAL as the outstanding amount of their pensions for DATE . The sums awarded by ORG as arrears constituted MONEY of the amount paid to the applicants by the social security authorities during this period . Both applicants were also entitled to penalties , to be recovered from the social security authorities . The penalties were calculated on the basis of the amounts due to the applicants for the period DATE . On DATE this decision was upheld in the main by ORG , which only reduced the amount of penalties to RUR CARDINAL for each applicant .

On an unspecified date DATE the applicants obtained writs of execution in respect of the first judgments of ORG of DATE . In DATE the applicants obtained execution writs in respect of the decisions rendered by ORG in DATE . These execution writs were forwarded to the bailiffs . However , for a certain period of time the judgments of ORG remained unexecuted .

In DATE ORG of GPE , which was in charge of the bailiffs , informed the applicants that the execution of the above judgments was conditional upon the availability of budgetary funds allocated for these purposes by the federal legislature and could not be carried out through the bailiffs . The applicants were advised to send their writs of execution directly to ORG , a ORG body in charge of distributing budgetary funds .

NORP However , as follows from the letter of DATE , ORG was no longer responsible for distributing the pension funds . Consequently , in DATE the execution writs were forwarded to ORG .

NORP In DATE the bailiffs discontinued the enforcement proceedings . The applicants challenged the discontinuation , and on DATE the NORP ORG of GPE ordered the resumption the enforcement proceedings .

On DATE the above judgments were enforced . The authorities paid ORG to ORG and RUR CARDINAL to PERSON . On DATE the money were received by the applicants . On DATE the authorities offered the applicants additional compensation on certain conditions . However , the applicants rejected this offer .

The Russian Law on Enforcement Proceedings ( no . CARDINAL of DATE ) designates the court bailiffs ' service as the authority charged with enforcement of court decisions ( LAW ) . Pursuant to this LAW , any decision of the bailiff can be challenged in court within DATE from the moment when the concerned person learned about this decision ( LAW ) . Articles CARDINAL and CARDINAL of this law stipulate that the damage caused by the bailiffs should be compensated under general rules of civil responsibility .

Article CARDINAL § CARDINAL of LAW of GPE provides that the damage caused to the person or property of a citizen shall be compensated in full by the tortfeasor .

Under LAW of LAW a ORG agency or a ORG official shall be liable to a citizen for damage caused by their unlawful actions or failures to act . Such damage is to be compensated at the expense of the federal or regional treasury .


Violation of Art. 10;Pecuniary damage - award;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants were born in DATE and DATE respectively . The first applicant lives in PERSON .

The first applicant owns a publishing house named “ PERSON ” which publishes a DATE magazine , ORG , and its supplement for children , ORG . The second applicant was the editor in chief of the magazine .

On DATE PERSON published an article referring to an advertising campaign by a company , ORG , for its potato crisps . On the first page of the magazine there was a cartoon showing a boy holding a packet , with the name “ ORG ” on it , saying to PERSON a little dog , a popular cartoon character for children – “ Do n’t worry ! I would be a murderer too if I ate this muck ! ” ( “ PERSON martw się – też bym był mordercą , gdybym jadł to świństwo ! ” ) . Above the cartoon , there was a large heading reading “ NORP children shocked by crisps advertisement , ‘ PERSON is a murderer’ ( PERSON to morderca ) ” .

The article , printed on the second page of the magazine , read as follows :

“ Recently in ORG crisps [ packets ] stickers appeared which terrified parents and their children : ‘ PERSON is a murderer’ .

In the [ packets of ] crisps from the company ORG , which are stocked on the shelves of almost all shops , stickers appeared recently which terrified parents and children . In the packets there are little pieces of paper bearing the slogan : “ PERSON is a murderer ” .

Before the stickers appeared in the packets of crisps the company ordered a market study . CARDINAL of the advertising agencies proposed slogans and sayings used every day by teenagers . Children , however , are terrified by those slogans .

Prepared following ‘ the Super Express’ ”

The above quoted article on the second page was accompanied by a small cartoon featuring CARDINAL cats holding a packet with the word “ crisps ” on it and the dog PERSON in the background . CARDINAL cat holds a piece of paper with the slogan “ PERSON murderer ” apparently taken out from the packet and says to the second cat - “ surely , he is sometimes unpleasant , but a murderer ? ! ” ( “ GPE , nieraz bywa przykry , ale żeby od razu mordercą ? ! ” ) .

On DATE ORG ( “ the plaintiff ” ) lodged against both applicants a civil claim for protection of personal rights . The company sought an order requiring the defendants to publish an apology in ORG and ORG for publishing a cartoon discrediting , without any justification , ORG products . They further sought reimbursement of their legal costs and payment by the applicants of MONEY ( ORG ) to a charity .

On DATE the ORG ( PERSON ) found for the plaintiff . The court ordered the applicants to publish apologies as sought in the statement of claim and to pay ORG MONEY to a charity . The applicants were also ordered to pay the plaintiffs ORG MONEY to reimburse the costs of the proceedings . The court considered that the cartoon in question had breached the personal rights of the plaintiff and discredited the products of the company . The words used by the applicants had an unambiguous meaning relating to disgust and repulsion and were strongly pejorative . Accordingly , the court concluded that the applicants had overstepped the threshold of permissible criticism , in particular in a magazine aimed at children . The court dismissed the applicants’ arguments that the cartoon had aimed to criticise the advertising campaign run by ORG and not their product . It considered that such an attack on the plaintiff ’s personal rights could not have been justified even by the argument that their campaign was ill - considered .

The applicants appealed against the judgment .

On DATE the ORG dismissed the appeal and ordered the applicants to pay the plaintiffs ORG MONEY to reimburse the costs of the appellate proceedings . It agreed with the lower court ’s assessment that the critical statement had not concerned the style of advertisement adopted by ORG . Calling the product of the company “ muck ” was surely not a critical assessment of their advertising campaign but had been aimed at the product , the brand , and the good name of the company . The statement in question “ I would be a murderer too if I ate this muck ” contained an obviously negative assessment of the taste and quality of the product . Thus , the applicants’ action aimed to discredit , without justified grounds , the product of ORG and as such could not enjoy the benefit of legal protection . The appellate court also observed that the applicants had repeatedly relied on the interests of children to justify their actions , while they themselves had repeated , in the supplement for children , the slogan that in their opinion had had a negative impact on children ’s emotions and had terrified them .

On DATE ORG refused to examine the cassation appeal lodged by the applicants .

DATE the Civil Code contains a non - exhaustive list of the rights known as “ personal rights ” ( dobra osobiste ) . This provision states :

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

Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . According to that provision , a person facing the danger of an infringement may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or claim just satisfaction from him / her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .