Violation of Art. 3 (substantive aspect)

Alvina Gyulumyan;Anatoly Kovler;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in GPE .

Late in TIME DATE , PERSON was assaulted at the entrance of her house . CARDINAL of her neighbours apprehended the applicant on suspicion that he had committed the crime and handed him over to the police . The applicant was taken to the GPE ORG ( ORG « PERSON ) for questioning . It appears that at a certain point the applicant 's glasses were partially broken and the police took them away from the applicant , who was short - sighted ( according to the applicant , he needed glasses of CARDINAL dioptres ) .

At the police station the applicant signed a written statement in which he confessed that he had tried to PERSON using a gas handgun , and that there had been a short fight between him and one of her neighbours . The neighbours confirmed that testimony in written statements taken by the police officers .

On DATE the police instituted criminal proceedings against the applicant on suspicion of armed robbery of PERSON and illegal possession of firearms . On an unspecified date the applicant was also charged with CARDINAL counts of fraud , which were not related to the episode with PERSON

On DATE the applicant was taken by the policemen to see a doctor . It appears that the applicant did not complain to the doctor about any injury .

On DATE the applicant was questioned again in connection with the robbery , now in the presence of his lawyer . This time the applicant retracted his initial statement of confession .

On an unspecified date the applicant was transferred from the police department to a pre - trial detention centre ( isolation unit IZ-CARDINAL/CARDINAL ) in GPE . The applicant alleged that he had asked the administration of the unit to provide him with new glasses , but his request had been refused . According to the applicant , he also asked the investigator in charge of his case to arrange for him to have his eyesight examined by an oculist .

On DATE the applicant filed an application for release with ORG , in which he gave his version of the events of DATE . He contended that PERSON had stolen money from him , and that he had tried to retrieve his money or have her arrested . He claimed that he was not guilty of robbery and that his arrest had been unlawful . Among many other arguments , he indicated that he was short - sighted , that his glasses had been taken from him by the police , and that his eyesight was deteriorating .

According to the applicant , on DATE he had complained to the investigator about the deterioration of his eyesight . On DATE the investigator ordered the applicant 's examination at ORG .

On DATE the applicant 's wife filed a complaint with the district prosecutor , claiming that the applicant had been beaten up by the police shortly after his arrest . She also requested the prosecution to return the glasses to her husband .

NORP The prosecutor opened a preliminary inquiry ( прокурорская проверка ) into those allegations . On DATE the prosecutor informed the applicant 's wife that he had decided not to pursue the case .

On an unspecified date the applicant complained about the deterioration of his eyesight to the investigator , who ordered the applicant 's examination by an oculist .

On DATE the applicant underwent a medical examination at an eye hospital . The doctors detected a reduction of his left eye 's mobility as a result of a “ contusion ” . Further , the doctors found that the applicant 's eyesight had dropped to CARDINAL - CARDINAL.CARDINAL and that he needed glasses of CARDINAL dioptres . However , the doctors concluded that the applicant was able to attend to himself , orient himself and move around indoors .

On DATE the applicant 's lawyer lodged a formal request with the investigator in charge of the applicant 's case seeking to have the glasses returned to the applicant .

On DATE the investigator returned the glasses to the applicant . According to him , the glasses were found in the safe box of CARDINAL of the policemen of the Pechatniki ORG who had dealt with the applicant 's case .

On DATE the pre - trial investigation was completed and the case file and the bill of indictment were filed with the GPE ORG for examination on the merits .

On DATE ORG remitted the case file to the prosecutor , stating that the applicant had not had enough time to read the case file because his glasses had been taken away and returned only on DATE . The prosecution authorities were ordered to put the case file at the applicant 's disposal anew in order to enable him to prepare his defence properly .

In DATE the prosecutor re - opened the inquiry into the applicant 's allegations of ill - treatment . She questioned witnesses to the applicant 's apprehension . Further , she requested the ORG bureau of forensic expertise to establish whether the impairment of the applicant 's health could have been provoked by the alleged beatings .

On an unspecified date in DATE the investigator in charge of the case provided the applicant with new glasses instead of his old ones . Some time afterwards the case file with the bill of indictment was re - submitted to the court by the prosecution .

On DATE the forensic expert drew up a report , stating that no evidence of beatings was established , that the applicant had suffered from myopia since DATE and that the impairment of the applicant 's eyesight could have been explained by his chronic myopia .

On DATE the prosecutor closed the inquiry for lack of evidence of a crime . The investigator concluded that the bruises had been received by the applicant in the fight with the neighbours of PERSON , and that his eye problems were not related to the events of DATE . The applicant 's wife challenged that decision . On DATE she was informed that following an additional inquiry the prosecutor had decided not to pursue the investigation .

The applicant raised the issue of ill - treatment during the court proceedings against him . He challenged the admissibility of his initial confessions , claiming that they had been extracted by force . The applicant 's defence counsel requested a new medical expert report in order to determine whether the injuries sustained by the applicant could have been caused by beatings . ORG dismissed that motion on the ground that such an examination had already been carried out .

On DATE ORG found the applicant guilty of CARDINAL count of armed robbery , CARDINAL count of illegal possession of firearms and several counts of fraud and sentenced him to DATE imprisonment . On DATE ORG dismissed an appeal by the applicant and upheld the lower court decision of DATE . ORG confirmed the conclusions of the first - instance court and held that no evidence of ill - treatment had been discovered .


Alvina Gyulumyan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant , a practising lawyer , is a member of ORG advokátska komora ) .

On DATE the PERSON - okolie ORG ( ORG súd ) appointed the applicant as representative for the claimant in a libel action .

In the same decision , ORG exempted the claimant from the obligation to pay court fees on account of his indigence .

The action was aimed , among other things , at obtaining the equivalent of QUANTITY ( ORG ) in damages .

On DATE the action was dismissed and this decision became final and binding .

On DATE the applicant submitted a claim to ORG for the remuneration of his services in the above - mentioned action in the amount equivalent to some ORG CARDINAL,CARDINAL .

The applicant based his claim on the premise that the action of his client was pecuniary in nature and that its value for the purposes of calculating the amount of his costs was the amount of the damages sought ( see paragraph CARDINAL above ) .

On DATE ORG dismissed the applicant ’s claim except for an amount equivalent to some LAW .

ORG held that the action of the applicant ’s client was by definition without a pecuniary basis and that , consequently , the amount of the applicant ’s remuneration was to be determined under section CARDINAL(CARDINAL ) of DATE Decree on Remuneration and Compensation of Advocates ( Ministry of Justice Decree no . PERSON . ) with reference to an economic index rather than the amount of his client ’s claim .

The applicant appealed , arguing that ORG decision was contrary to the law and established practice and that he should be paid the same as lawyers appointed by choice , that is to say , on the basis of the financial amount of the claim they assert .

The applicant drew a parallel according to which , in the circumstances , he should have been considered a sui generis client of the court and entitled to remuneration on the same basis as any lawyer acting upon a contract .

In support of this contention , the applicant also submitted that libel actions combined with a claim for damages were clearly treated as having a pecuniary basis for the purposes of calculating court fees .

In addition to the above legal arguments , the applicant considered that his full remuneration was also justified by factual circumstances in that his client was difficult and the applicant had had to put great effort into controlling his client ’s numerous non - meritorious requests and bringing the case to an end .

On DATE ORG ( PERSON súd ) upheld the first - instance decision , merely correcting an error in the calculation of the amount of the remuneration to be paid to the applicant .

ORG found that there was no dispute as to the essence of the applicant ’s claim for remuneration . However , what remained to be determined was the amount of that remuneration .

To that end , ORG observed that the essence of libel actions was the protection of the claimant ’s personal integrity . It held that , consequently , such actions had to be considered as not having a pecuniary basis irrespective of a claim for damages that may possibly be attached to them .

Therefore , the amount of a lawyer ’s remuneration for bringing a libel action was to be calculated under section CARDINAL(CARDINAL ) of DATE Decree or , as the case may be , section CARDINAL(CARDINAL ) of the CARDINAL Decree ( Ministry of Justice Decree on Remuneration and Compensation of Advocates no . CARDINAL/CARDINAL Coll . ) on the basis of the economic index , as opposed to the amount of the claim for damages .

On DATE the applicant challenged the decisions of DATE and DATE by way of a complaint under LAW ( see paragraph CARDINAL in the “ Relevant domestic law below ) .

Relying on the right to peaceful enjoyment of his possessions , the right to equal treatment and fairness in judicial proceedings , and the prohibition of discrimination , the applicant contended that the impugned decisions had been unlawful , arbitrary and lacking adequate reasoning .

The applicant essentially raised the same arguments as mentioned above and , in addition , submitted that the ordinary courts had erred by confusing the value of the subject - matter of the proceedings , which is a philosophical category , with the value of the claim , which is a procedural category .

On CARDINAL DATE ORG declared the complaint inadmissible . To the extent that it fell within ORG jurisdiction , the complaint was manifestly ill - founded as there was no indication of any constitutionally relevant arbitrariness or error of fact , law or procedure committed by the ordinary courts .

The decision was served on the applicant on CARDINAL DATE .

Article CARDINAL provides that :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such a decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order that authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to a person whose rights under paragraph CARDINAL have been violated . ”

DATE provides :

“ CARDINAL . A party to the proceedings who meets the requirements for being exempted by a court from the obligation to pay court fees may have a representative appointed upon his or her request , if it is necessary for the protection of his or her interests .

NORP Should the protection of the party ’s interests so require , the President of the ORG shall appoint a representative from the Bar . ”

DATE stipulates :

“ CARDINAL . A court - appointed representative shall have the same status as a representative on the basis of a power of attorney for the whole proceedings , provided that he or she has not been appointed solely for particular acts .

NORP Should the court - appointed representative be an advocate , he or she shall have the same status as an advocate to whom a party has given a power of attorney . ”

Under the relevant part of Article CARDINAL :

“ CARDINAL . At the request [ of the party concerned ] , a court may exempt [ that ] party fully or partly from the obligation to pay court fees if it is justified by the situation of that party and provided that it is not a matter of the frivolous or clearly hopeless assertion or defence of a right .

NORP If a representative has been appointed [ by a court ] to a party who has been exempted from the obligation to pay court fees , the exemption , to the extent it has been granted , shall extend to the actual expenses of the representative and remuneration for the representation . ”

Under LAW :

“ If a party has been assigned an advocate as a representative , the latter ’s actual expenses and remuneration for the representation shall be paid by the ORG ; if it is justified , upon the advocate ’s request , the court may make an appropriate advance . ”

Without providing a copy of the decision itself , the applicant submitted that on DATE , in an unrelated libel action registered under file CARDINAL CARDINAL/CARDINAL , the Bratislava V ORG had held that the lawyer ’s remuneration was to be calculated on the basis of the amount of damages that had been claimed in that action .

In a judgment of CARDINAL DATE , file no . CARDINAL M Cdo CARDINAL/CARDINAL , ORG ( Najvyšší súd ) ruled on an extraordinary appeal on points of law ( mimoriadne dovolanie ) lodged by ORG against the lower ORG ruling on costs in an unrelated matter concerning a claim for indemnity in respect of reduced capacity to work ( sťaženie spoločenského uplatnenia ) due to damage to health caused by a work - related injury .

The subject matter of ORG judgment was the interpretation and application of the rules embodied in LAW on awarding costs on the basis of parties’ success in proceedings .

Although it was not directly relevant to the subject matter of ORG judgment , it noted that in proceedings such as those at hand claimants were bound to identify in financial terms the indemnity sought but that the final determination of its amount was at the court ’s discretion . ORG held that , in such circumstances , rulings on costs were to be based on the amount awarded and not with reference to the ratio of success between the amount sought and the amount awarded .


Violation of Art. 6-2;Pecuniary damage - claim dismissed;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

Mr PERSON is an NORP national and lives in GPE .

On DATE he was arrested by the police on suspicion of having murdered his wife . PERSON had fallen from a window of their matrimonial home , on the fifth floor of a building in GPE , on DATE .

DATE after his arrest he was questioned and remanded in custody . He remained in custody until DATE , his detention being extended on several occasions . ORG ( Oberlandesgericht ) ordered the last such extension on DATE ; it ruled , pursuant to Article CARDINAL paras . CARDINAL and CARDINAL of the Code of Criminal Procedure , that the applicant could be kept in detention until he had been in custody for a total of DATE . In addition to the murder of his wife , the applicant was accused of having threatened a fellow detainee in connection with certain admissions relating to the murder charge . The decisions of the NORP courts were based on various items of evidence and testimony .

On DATE an assize court ( Geschworenengericht ) sitting at ORG ( PERSON ) acquitted the applicant on both the charges brought against him . The jury dismissed the first charge by CARDINAL votes to CARDINAL and the second charge unanimously .

The operative provisions and grounds of the judgment read as follows :

" Pursuant to Article CARDINAL para . CARDINAL of LAW , PERSON is acquitted on the charges brought against him , namely :

( CARDINAL ) that he did on DATE intentionally kill his wife , PERSON , by hitting her with a plastic bucket , as a result of which she fell out of the open window of a fifth floor flat and sustained fatal injuries on striking the ground from a height of QUANTITY ; and

( CARDINAL ) that he did at DATE , by making a death threat , namely that ‘ he would catch his cell - mates outside and kill them’ if they ‘ gave him GPE , force PERSON to remain silent about the statements made by PERSON in his detention cell concerning the course of events on DATE .

GROUNDS

The acquittal is founded on the jury ’s verdict . "

With regard to the first charge , the record ( PERSON ) of their deliberations stated as follows :

" There is no conclusive evidence on which to convict PERSON of murder . According to the medical report by Professor PERSON , PERSON could still have called her husband a murderer . The testimony of certain witnesses appears to us to be unreliable . "

On the second charge , they noted that the CARDINAL other fellow detainees of the persons in question had denied hearing serious death threats .

Consequently , the applicant was immediately released . The prosecution did not appeal against the acquittal .

On DATE the applicant applied for a contribution from the ORG to the costs necessarily incurred in his defence , in accordance with LAW ( see paragraph CARDINAL below ) , and for compensation for the pecuniary damage sustained on account of his being kept in detention .

On DATE the public prosecutor ’s office expressed the opinion that the costs sought were excessive and also opposed the claim for compensation , on the ground that the conditions laid down by section CARDINAL ( CARDINAL ) ( b ) of the DATE Law on Compensation in Criminal Cases ( Strafrechtliches Entschädigungsgesetz - the " CARDINAL Law " - see paragraph CARDINAL below ) were not satisfied .

ORG gave CARDINAL separate decisions .

On DATE it awarded Mr Sekanina CARDINAL,CARDINAL.CARDINAL schillings in respect of his necessary defence costs . His appeal against the amount awarded was dismissed by ORG on DATE .

On DATE , on the other hand , ORG had refused to award the compensation sought . In its opinion ,

" A claim to compensation under section CARDINAL(CARDINAL)(b ) of the [ DATE ] PERSON ... is conditional on the applicant ’s being cleared of the suspicion of which he was the object in the criminal proceedings . A person who has been detained is so cleared only if all the suspicious circumstances telling against him have been satisfactorily explained , so that they cease to constitute an argument for the suspect ’s guilt .

Regard having been had to the prosecution evidence considered as a whole , however , it was not possible to dispel all the suspicions concerning the commission of the offence . Serious grounds for suspecting Mr Sekanina still subsist , in particular his numerous and repeated threats , the acts of violence and aggressive behaviour which have come to light , his evident satisfaction at his wife ’s death , the description of events given to a cell - mate , the different versions of how the accident happened , the fact that he was under severe financial pressure , his unsuccessful efforts to obtain care and custody of his CARDINAL children and the consequent build - up of aggressiveness , and his hopes of receiving payment under a life - insurance policy taken out on his wife . In addition , the ORG voting shows that they decided to acquit him only by giving him the benefit of the doubt . "

On DATE ORG upheld this decision . It rejected the argument that section CARDINAL(CARDINAL)(b ) of the DATE Law ( see paragraph CARDINAL below ) was unconstitutional and in breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW in that it required , in addition to an acquittal , the absence of all suspicion . The court held that the presumption of innocence had to be respected in the proceedings prior to the verdict , but did not confer on every detainee the right to compensation in the event of an acquittal . The impugned provision did not refer to guilt but to continuing suspicion . The finding by a court that suspicions subsisted did not conflict with the presumption of innocence . ORG added :

" The appeal also fails on its merits . Contrary to what is argued by the appellant , it can not be inferred merely from the voting of the jury ... that such a clear verdict meant that suspicion had been removed . In order to establish whether or not such suspicion subsists , it might be more useful to refer to the record of the jury ’s deliberations . The content of this record ... suggests rather that in the jury ’s opinion all suspicion had not been removed . However , as the court called upon to rule under the [ DATE ] PERSON ... is not bound , in its assessment of the position as regards suspicion , by the verdict ( of acquittal ) at the trial , not even the record of the jury ’s deliberations is of decisive importance .

It can hardly be denied that following the police inquiries and also after the judicial preliminary investigation there were strong grounds for suspecting the appellant . Indeed , ORG decided on DATE ... that PERSON could be kept in detention on remand for DATE , thereby confirming the strength of the suspicion . In the appealed decision , the finding by the court below that suspicion subsisted was properly founded in particular on the numerous repeated threats made by PERSON , his acts of violence , his evident satisfaction at his wife ’s death , the description of the events given to a cell - mate , the different versions of how the accident happened , the severe financial pressure , his unsuccessful attempts to obtain care and custody of his CARDINAL children , and his hopes of receiving payment under a life - insurance policy taken out on his wife . With respect to the different versions of the accident related by the appellant to third parties , ORG refers in particular to the evidence given at the trial of DATE by the witnesses PERSON ( pp . DATE , CARDINAL DATE of the transcript of the trial ) and PERSON and PERSON ( pp . CARDINAL , CARDINAL , CARDINAL and CARDINAL of the transcript ) . The appellant told his fellow employee PERSON that he had been in another room at the time of the fall ( PERSON , pp . CARDINAL , CARDINAL ) , whereas PERSON noticed during the fall that the claimant - wearing a light - coloured vest - was already at the window , the entire upper part of his body being visible . He had been holding a bucket out of the window with outstretched arms and pouring water ; in addition when he came down to his wife he had , she thought , been wearing a blue vest ( PERSON , pp . CARDINAL and CARDINAL of the transcript ) . During his interrogation ( which was taken down in writing ) by ORG DATE ( p. CARDINAL , volume CARDINAL ) , the appellant placed on record that shortly before the fall his wife had quarrelled with him . According to the evidence of the witness PERSON , the appellant had told him that ‘ during the quarrel he’ - Sekanina - ‘ [ had run ] towards his wife in a GPE ( pp . CARDINAL and CARDINAL of the transcript ) . The appellant was described by several witnesses as quick - tempered and violent ( pp . CARDINAL and CARDINAL of the transcript ) . He is said to have made death threats against his wife several times , the last occasion being DATE before her death ( pp . CARDINAL and CARDINAL of volume CARDINAL , p. CARDINAL of volume CARDINAL , and pp . DATE , DATE , DATE , CARDINAL , CARDINAL , CARDINAL and CARDINAL of the transcript of the trial ) . Finally , it may also be noted that on DATE , DATE before his wife ’s death , the appellant pressed his tailor for a dark jacket he had ordered in DATE , as he now needed it . "

ORG concluded :

" Having had regard to all these circumstances , the majority of which were not disproved at the trial , the jury took the view that the suspicion was not sufficient to reach a guilty verdict ; there was , however , no question of that suspicion ’s being dispelled . "

Under LAW ,

" The accused shall be acquitted by judgment of the court :

... CARDINAL . ... CARDINAL . where the court finds that the act giving rise to the prosecution is not an offence under the law or that the alleged offence was not made out or that it has not been established that the accused committed the act of which he is accused or that circumstances exist which deprive the act in question of its criminal character or that the continuation of the prosecution is ruled out on grounds other than those set out in DATE and CARDINAL . "

According to LAW same code :

" ( CARDINAL ) Where the prosecution is not brought solely on the basis of a private action seeking conviction or a private action for damages ( LAW ) , if an accused is acquitted ... , the federal authorities shall , on an application to this effect , make a contribution to the costs of the defence . The contribution shall cover the expenses necessarily and genuinely incurred by the accused and in addition , except in the case provided for in LAW para . CARDINAL , a flat - rate contribution to the costs of his defence lawyer ...

( CARDINAL ) ...

( CARDINAL ) A claim for compensation shall not be allowed where the accused has deliberately caused the suspicion which gave rise to the criminal proceedings or where the proceedings have come to an end solely because the accused carried out the act in question in a state in which he was not responsible for his actions or because the authorisation for the prosecution was withdrawn during the trial . "

Entitlement to compensation for detention on remand during criminal proceedings in which the person concerned is acquitted is governed by section CARDINAL(CARDINAL)(b ) of the DATE Law , which provides as follows :

" ( CARDINAL ) A right to compensation arises :

( a ) ...

( b ) where the injured party has been remanded in custody or placed in detention by a domestic court on suspicion of having committed an offence which is liable to criminal prosecution in GPE ... and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence is dispelled or prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ;


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

The applicants , Mr PERSON and Mr PERSON ( the applicants ” ) , are NORP nationals , who were born in DATE and DATE respectively and live in PERSON . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

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

NORP Before the Second World War the applicants’ father , PERSON , owned a limestone plant which operated under the name “ PERSON and GPE ” ( PERSON i GPE ) . The company also had a NORP name “ PERSON et Co. ” It was run by the applicants’ father before and during the war , until DATE .

In DATE the plant consisted of CARDINAL furnaces , CARDINAL limestone plant , a smithy , an outhouse , office premises and QUANTITY of land , which included limestone deposits .

On DATE the plant was nationalised by virtue of the Minister of Industry and Commerce ’s ( Minister PERSON ) decision ( “ the DATE decision ” ) issued pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW DATE on the nationalisation of basic branches of the ORG economy ( LOC o przejęciu na własność GPE podstawowych gałęzi gospodarki narodowej ) ( “ the MONEY ” ) . The decision was published in the ORG ’s ORG ) no . CARDINAL of DATE and took effect on that date . It was issued together with an annex listing companies , including the CARDINAL belonging to the applicants’ father , which were subject to nationalisation and stipulated that “ ... enterprises listed in the annex thereto shall be taken over by the ORG in return for compensation ” .

On DATE the applicants asked the Minister for Economy ( Minister PERSON ) to declare the DATE decision null and void .

On DATE the Minister for Economy declared null and void the DATE decision , finding that it had been issued in flagrant beach of the law since at the material time there had been no legal basis for the nationalisation of the applicants’ property . In the course of the proceedings , the authorities obtained expert reports determining the enterprise ’s potential employment capacity on CARDINAL shift vis - à - vis the technical equipment and its condition at the material time , bearing in mind war damage . It emerged from those reports that the plant had been partly destroyed and its potential production capacity had been severely limited due to the lack of electricity . This , in turn , justified the conclusion that its real employment capacity at the material time had been not more that CARDINAL people on CARDINAL shift , not from CARDINAL to CARDINAL as estimated for the purposes of the DATE decision . Consequently , nationalisation of the plant had been unlawful as , pursuant to section CARDINAL(CARDINAL ) B of LAW , it could only be effected in respect of enterprises employing a minimum of CARDINAL persons on one shift .

On DATE , relying on the above decision , the applicants asked the Minister for Infrastructure to annul the decision validating the acceptance protocol on taking over the nationalised property ( orzeczenie o zatwierdzeniu protokołu zdawczo - odbiorczego ) , issued by the Minister for Construction and Building Materials Industry ( Minister PERSON i ORG ) on DATE .

Since no action had been taken for DATE , on DATE the applicants lodged a complaint with ORG , alleging inactivity on the part of the Minister for Infrastructure .

On DATE the Minister for Infrastructure declared the contested decision null and void , concluding that it had been issued in flagrant breach of the law because it had been based on the DATE decision found to have been ab initio unlawful .

On DATE the applicants issued the Prime Minister a legal notice , summoning him to “ remove the state of infringement of a law ” ( wezwanie do usunięcia naruszenia prawa ) by enacting the ORG ’s ordinance ensuring the proper implementation of the DATE Act within DATE from the date of service of that notice .

The applicants relied on section CARDINAL of LAW , by virtue of which a ORG ’s ordinance was to be issued in order to determine the rules governing the calculation and means of payment of compensation for nationalised property ( see also paragraphs CARDINAL below ) . They stressed that , despite the fact that although by that stage DATE had elapsed from the date of entry into force of the DATE Act and despite the ORG ’s legal duty to implement fully its provisions , the ORG had not yet enacted the ordinance , thus making it impossible for the former owners to receive the promised compensation . They further maintained that the State authorities’ failure to act amounted to a constitutional tort ( delikt konstutucyjny ) in the form of a legislative omission ( zaniechanie legislacyjne ) DATE for which both the former Prime Ministers of GPE and the current one had been responsible . Simultaneously , the applicants summoned the Prime Minister to pay them compensation in an amount of MONEY ( ORG ) for the nationalised plant , together with statutory interest from DATE ( DATE after the DATE decision had taken effect ) until the date of settlement .

On DATE the Prime Minister ’s Chancellery , in its reply to the applicants’ notice , stated , among other things , the following :

“ In connection with [ your legal notice ] and acting on the Prime Minister ’s instruction , I should inform you that there is no legal basis for the issuance of the ordinances referred to in sections CARDINAL and CARDINAL of the CARDINAL LAW by the ORG .

The statutory authorisation ( upoważnienie ustawowe ) to issue ordinances referred to in section DATE ) and ( CARDINAL ) [ of LAW ] sets out a range of matters for regulation . These are : the composition of the [ compensation ] commission , the rules for the appointment of its members , the quorum , the rules of procedure before the commission , the rules for appeals against its decisions , the assessment of circumstances relevant for compensation , the means of payment of compensation and determination of the amortisation of securities .

It must be noted that the enactment of ordinances governing most of the above matters would be incompatible with the laws applicable at present . ... The matters regulated by [ LAW ] and [ to be regulated ] by the prospective ordinances relate to the constitutional right of property , a matter which is particularly designated for regulation in the form of a statute . It is therefore doubtful that any statutory authorisation to issue an ordinance could transfer [ to the ORG ] the entirety of the matters included in the authorisation , the more so as there are already in place and in force statutory provisions enacted after the entry into force of [ LAW ] . Issuing DATE , on the basis of this Act , ordinances under its section CARDINAL(CARDINAL ) and ( CARDINAL ) could lead to the incompatibility of statutory solutions ( subsequent to the Act ) with ordinances .

[ P]ursuant to LAW , ... the enactment of an ordinance is admissible only on the basis of a detailed authorisation included in a statute and in order to implement that statute . This authorisation must be of a detailed nature in terms of the subject ( must state an authority competent to issue an ordinance ) , the object ( must state the range of matters delegated for regulation ) and its content ( must state the directions as to the content of an [ ordinance ] ) .... Pursuant to ORG case - law , the absence of directions is sufficient to consider the authorisation unconstitutional , even if the remaining requirements are met .

First of all , the matters delegated in the [ relevant ] authorisation should have been addressed in [ the CARDINAL Act ] itself . The matter left by the legislature for regulation by ordinances ( e.g. the procedure for the appointment of members of the commission , the procedure for appeals , the amortisation of securities , questions of compensation ) are of such importance for an individual and his or her constitutional rights and guarantees that they can not be regulated by any means other than a statute . ... Moreover , the statutory authorisation in [ LAW ] does not contain directions .

In sum , it should be concluded that in the light of the above arguments , it would not be legally admissible to issue the ORG ’s ordinances on the basis of section DATE ) and ( CARDINAL ) of [ LAW ] . ”

On DATE the applicants lodged a complaint under the provisions of the law of CARDINAL DATE on ORG ( “ the DATE LAW ) ( ustawa o Naczelnym Sądzie Administracyjnym ) , alleging inactivity on the part of the Prime Minister in that the ORG had failed to issue an ordinance enabling the full implementation of the CARDINAL Act . This , in their submission , was in breach of several provisions of the LAW .

On DATE ORG rejected the complaint as being inadmissible in law . It stated that under the applicable laws its scope of jurisdiction over the State authorities’ actions or inactions was limited to their duties with respect to public administration and did not encompass any control of their competence in the sphere of the issuing of normative acts .

On DATE the applicant ’s lodged a constitutional complaint against ORG decision of CARDINAL DATE . They challenged the constitutionality of section CARDINAL(CARDINAL ) ( CARDINAL)-(CARDINAL ) of LAW in so far as this provision denied them access to a court to seek compensation granted under LAW , in particular as it excluded the possibility of lodging a complaint about the inactivity of the Prime Minister , i.e. the legislative omission consisting in the failure to enact the relevant ordinance , as required by LAW .

They further asked ORG to declare unconstitutional section CARDINAL(CARDINAL ) ( CARDINAL ) of LAW , in so far as it left to the ORG full discretion as to the date of payment and detailed procedure for compensation and thereby deprived them of access to a court in order to seek compensation for their nationalised property . Alternatively , they asked the court to declare that ORG ) ( CARDINAL ) of LAW was an illusory provision and as such could not be considered part of the legal order and , on the basis of this declaration , to discontinue the proceedings in this part .

They invoked , in particular , LAW rule of law ) , LAW ( protection of ownership ) , LAW ( right of fair trial ) , LAW ( right of ownership ) and LAW ( right to compensation for unlawful action of public authority ) of LAW and LAW . CARDINAL to the Convention .

On DATE ORG discontinued the proceedings . As regards the first limb of the complaint , it ruled so on account of the fact that section CARDINAL(CARDINAL ) ( CARDINAL)-(CARDINAL ) of LAW had lost its binding force . As regards section CARDINAL(CARDINAL ) ( CARDINAL ) of LAW , it discontinued the proceedings holding that ruling on the merits of this part of the complaint was inadmissible in law . In particular , it held that it could not review the constitutionality of section CARDINAL(CARDINAL ) ( CARDINAL ) of LAW since , pursuant to LAW , a constitutional complaint could only be directed against provisions on the basis of which the courts or administrative authorities gave a final decision on rights , freedoms or obligations of the complainant . The contested provision was not a legal basis for the final decision examined by ORG . Accordingly , it was prevented from dealing with the merits of this part of the complaint .

On DATE the applicants asked the Prime Minister to ensure the enactment of an ordinance for the proper implementation of the CARDINAL Act by the ORG or , alternatively , in case of his refusal to do so , to issue an individual , appealable administrative decision refusing to see to the enactment of that ordinance .

On DATE the Prime Minister gave a decision discontinuing the proceedings , relying on section CARDINAL § CARDINAL of the Code of Administrative Procedure ( Kodeks postępowania administracyjnego ) by virtue of which an administrative authority should discontinue proceedings if , for any reason , they had become devoid of purpose . In essence , the reasoning was CARDINAL - fold . First , the Prime Minister found that it was inadmissible in law to regulate the public authorities’ normative activity by means of administrative decisions . Such decisions could be given only in the context of the application of the law , whereas normative acts were created in the completely distinct sphere of lawmaking . Secondly , the public authorities’ normative activity was their exclusive and , at the same time , sovereign competence and there were no grounds for interfering with this activity because , in his view , it would infringe the fundamental constitutional principles of the division of powers and the rule of law , as well as the competences of the constitutional authorities of GPE , namely the ORG .

The applicants asked for the matter to be reconsidered . On DATE the Prime Minister upheld the contested decision , reiterating that the issues raised by the applicants could not be addressed by an individual administrative decision .

The applicants appealed to ORG .

On DATE the court heard , and dismissed , the appeal . It upheld the grounds given in the previous decisions , holding that an administrative decision could be issued only in an individual case concerning a specific person and his or her concrete rights or obligations but not to compel an authority to enact a normative act , which in a general and abstract way regulates the legal situation of an unqualified number of persons . It also held the following :

“ It should be stressed that ORG case - law underlines that the ORG ’s failure to discharge its duty arising from its competence to enact an ordinance ensuring the proper implementation of a statute infringes the constitutional principles of the functioning of a democratic state ruled by law ( Articles CARDINAL and CARDINAL of the LAW ) and , accordingly , may constitute a constitutional tort . ...

This court is of the opinion that the proper judicial protection of the applicants’ interests is secured in the provisions of LAW . LAW invoked in the appeal makes it possible [ for them ] to seek damages caused by the legislative omission of ORG . ”

The applicants lodged a cassation appeal with ORG ( PERSON ) , alleging a number of procedural shortcomings on the part of the first - instance court and the Prime Minister and a breach of LAW in that the contested decisions had prevented them from pursuing their claim for damages arising from the state authorities’ unlawful acts – most notably their failure to enact the ordinance implementing fully LAW .

On DATE ORG dismissed the appeal as lacking any legal basis .

On DATE the applicants sued ORG , statio fisci the Prime Minister , before ORG ( PERSON ) for unpaid compensation for the nationalised company . They sought FAC CARDINAL in damages , with statutory interest from CARDINAL DATE until settlement , and PLN CARDINAL,CARDINAL by way of costs and expenses . They relied on LAW and LAW as applicable on that date ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE the court gave judgment in default and granted the ORG claims in their entirety .

Following the defendant ’s opposition , the case was reconsidered by ORG . The defendant asked the court to quash the judgment in default and to dismiss the ORG claims .

On DATE the applicants modified their claim for payment of statutory interest , seeking payment only from DATE until the date of settlement .

On DATE the court summoned the Minister for the ORG to take part in the proceedings as the second defendant .

In their pleading of DATE the applicants altered the legal basis for their claims , stating that as those claims were based on a legislative omission on the part of the authorities consisting in their failure to enact an ordinance pursuant to section DATE ) and ( CARDINAL ) of LAW , they should be based on LAW , which entered into force on DATE ( see paragraphs CARDINAL below ) .

On DATE ORG quashed the judgment in default . It dismissed the applicants’ claims for PLN MONEY in damages and for costs and discontinued the proceedings in respect of their claim for payment of statutory interest .

The reasoning for the judgment was in essence based on ORG resolution of DATE ( cited below , see paragraphs CARDINAL - CARDINAL below ) . It read , in so far as relevant , as follows :

“ There is no dispute [ between the parties ] over the facts of the case ... The dispute is limited solely to [ the question ] whether the claims brought in this case are wellfounded in the light of the factual and legal bases relied on by the plaintiffs and to the amount of [ compensation ] .

Considering the legal and factual basis invoked by the plaintiffs , their claims should be dismissed .

Section CARDINAL of the CARDINAL Act , on which they rely , in its original version provided that an owner of an enterprise taken over by the ORG would receive compensation from ORG within DATE from the date on which a notice of final determination of the amount of compensation due had been served on him . Such compensation was to be paid in securities , although in exceptional circumstances also in cash or other values , and its amount was to be determined by special commissions . ...

Pursuant to section DATE ) and ( CARDINAL ) the composition of the commissions , the rules for the appointment of their members , the quorum , the rules of procedure and rules for appeals against their decisions and the detailed rules for the calculation of compensation and means of its payment and depreciation of securities were to be determined by the ORG ’s ordinance .

Despite [ this ] statutory authorisation , the above - mentioned ordinance ( the failure to enact it , which was to be the cause of the loss sustained by the plaintiffs ) has never been enacted which , in consequence , made it impossible [ for the authorities ] to establish the relevant commissions and to set up the procedure for the determination of the amount of compensation and its payment .

Accordingly , this legislative omission , which has been relied on by the plaintiffs as the cause of their loss , occurred in DATE or , at the latest in DATE , assuming that in general the absence of any time - limit for the enactment ( a specific action ) is tantamount to a duty to enact an act implementing the law without undue delay . This opinion is supported by [ the fact ] that at the material time the ORG issued ordinances implementing other provisions of LAW . The same point of view was expressed by ORG in a resolution of DATE ... [ ; ] this court shares this point of view , and the applicants , when justifying their claims , have so far done the same .

The provisions of the civil law as applicable at the material time , preceding the entry into force of LAW , did not provide for ORG liability for legislative activity [ or inactivity ] of its agents . This situation did not change after the entry into force of LAW on DATE , providing , in its ORG CARDINAL and CARDINAL , for ORG [ tortious ] liability , the scope of which did not encompass the State authorities’ legislative activity .

By the same token , it can not be assumed that the defendant ’s civil liability for the consequences of the so - called legislative omission is based on Article CARDINAL , which , in contrast to what the plaintiffs tried to plead , does not embody the ORG ’s legislative activity .

This situation did not change radically on DATE , the date of entry into force of the new LAW which , in LAW , proclaimed the right to compensation for any harm caused by an act of a public authority in breach of the law and the possibility of its direct application . While the above - mentioned provision of LAW undoubtedly refers to civil liability including the LOC normative activity ... , this liability can not be taken in the abstract from regulations concerning civil claims laid down in LAW and specific statutes and , accordingly , can not be an autonomous legal basis for this kind of claims .

In view of the foregoing , the plaintiffs’ claims can not be justified under LAW § CARDINAL of the LAW .

Article DATE of LAW , introduced ... on DATE and invoked by the plaintiffs could be a legal basis for their claim .

This provision includes the defendant ’s civil liability for the consequences of the socalled legislative omission in case of a failure to enact a normative act , where there is a statutory duty to do so . However , pursuant to section CARDINAL of [ the relevant law amending LAW ] , setting out the temporal scope of the operation of [ DATE ] , excludes the possibility of its application to events and situations that occurred before the date of its entry into force , requiring [ the courts ] to apply in that regard the hitherto applicable provisions , including LAW , which was repealed by that law .

It should therefore be concluded that both LAW and LAW read in conjunction with LAW can not be legal bases for granting the ORG claims .

The applicants appealed to ORG ( ORG ) . On DATE the appeal was dismissed .

On DATE the applicants sued the ORG staciones fisci the Minister for Economy and the Minister for Infrastructure before the ORG , seeking damages arising from the nationalisation of the limestone plant . They sought MONEY ( ORG ) each and the costs of the proceedings . Later , they limited the claim to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , an amount corresponding to the damage as determined by experts appointed by the court . This sum included ORG CARDINAL for damage caused by exploitation of the limestone deposits by the ORG and ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL for damage caused by nationalisation of the enterprise ’s buildings , machines and technical equipment .

On DATE ORG , relying on LAW CARDINAL and CARDINAL of the ORG granted the ORG claim in its entirety . It awarded each applicant ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ( i.e. the whole amount jointly claimed ) with interest from DATE and ORG CARDINAL for the costs incurred . The court held that there was no doubt that the applicants had sustained loss that should be compensated by the ORG . That loss consisted in the value of the plant on the date of its nationalisation , the value of the limestone deposits exploited by the ORG and the costs involved in the rehabilitation of the nationalised land .

ORG appealed against the judgment

The case was heard by ORG on DATE . The court fully upheld ORG findings of fact and law and its assessment of evidence . It gave partial judgment . It rejected the defendant ’s appeal in so far as it concerned compensation for the value of the enterprise ’s buildings , machines and technical equipment and upheld the award in this respect , granting each applicant ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ( i.e. a total sum of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL ) . This ruling is final .

ORG postponed the examination of the remainder of the claim ( compensation amounting to ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL for damage caused by exploitation of the limestone deposits by the ORG ) . In that respect , it decided to obtain a fresh expert report in order to determine the value of the loss actually sustained . The expert was appointed on DATE . The proceedings are pending .

Following the establishment of the communist regime in GPE nearly all branches of industry , as well as banking , insurance , transport and commercial companies were taken over by the ORG under LAW which , in its section CARDINAL , stated the purposes of nationalisation as follows :

“ NORP In order to ensure the planned rebuilding of the state economy , the economic sovereignty of the ORG and to foster the general well - being , the ORG shall take over ownership of enterprises on the conditions laid down in this law . ”

Pursuant to section CARDINAL(CARDINAL ) , only those industrial , mining , transport , banking , insurance and commercial enterprises that belonged to ORG and the former GPE of Gdańsk , their citizens ( except for those of NORP or other nationality who had been persecuted by the NORP ) , NORP and Gdańsk legal persons ( except for those set up under public law ) , companies controlled by NORP or ORG citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the ORG without payment of compensation .

Section CARDINAL(CARDINAL ) of LAW ( as amended ) states that the owners of the remaining enterprises were to be compensated for their nationalised property . That provision reads , in so far as relevant , as follows :

“ CARDINAL . The ORG shall compensate [ the owners ] for taking over ownership of the following :

A. ORG and industrial enterprises in the following sectors of State economy :

CARDINAL ) NORP mines and mining leases subject to mining law ;

CARDINAL ) NORP oil and gas industry , including mines , refineries , gasoline production and other processing plants , gas pipes and synthetic fuel industry ;

CARDINAL ) NORP companies that generate , process , transmit or distribute electricity ... ;

CARDINAL ) NORP companies that generate , process , transmit or distribute gas ... ;

CARDINAL ) NORP water supply companies serving more than one municipality ... ;

CARDINAL ) NORP steelworks and non - ferrous metals smelting plants ;

CARDINAL ) armaments , aviation and explosives industry ;

CARDINAL) coking plants ;

CARDINAL ) NORP sugar factories and refineries ;

CARDINAL ) industrial distilleries , spirit refineries and vodka production plants ;

CARDINAL ) NORP breweries with an annual output exceeding CARDINAL hectolitres ;

CARDINAL ) NORP yeast production plants ;

CARDINAL ) grain plants with a DATE output QUANTITY of grain ... ;

CARDINAL ) NORP oil plants with an annual output exceeding QUANTITY and all refineries of edible fats ;

CARDINAL ) NORP cold stores ;

CARDINAL ) NORP large and medium textile industry ;

CARDINAL ) NORP printing industry and printing houses ;

B. Industrial enterprises not listed in subsection “ A ” if they are capable of employing in the production CARDINAL persons on CARDINAL shift .

C.

CARDINAL ) Transport enterprises ( standard gauge and narrow - gauge railways , electric railways and aviation transport enterprises ) ;

CARDINAL ) NORP communication enterprises ( telephone , telegraph and radio enterprises ) .

Section CARDINAL lays down general principles for compensation to be paid for nationalised property . It states , in so far as relevant , as follows :

“ CARDINAL . The owner of an enterprise whose ownership has been taken over by the ORG ( section CARDINAL ) shall receive compensation from ORG within DATE from the date on which a notice of final determination of the amount of compensation due has been served on him .

Such compensation shall in principle be paid in securities ; however , in exceptional and economically justified cases it may also be paid in cash or other values .

The amount of compensation due shall be determined by special commissions . The persons concerned shall have the right to participate in proceedings before those commissions . If need be and in any case if so requested by the persons concerned , the commission shall appoint appropriate experts .

NORP The composition of the commissions , the rules for the appointment of their members , the quorum , the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by the ORG .

The following factors shall be taken into account in determining compensation :

a ) general deterioration of the value of ORG property ;

b ) net value of the corporate property on the date of nationalisation ;

c ) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war , occupation in the period from DATE to the date of nationalisation ;

d ) value of expenditures made after DATE ;

e ) special circumstances affecting the value of the enterprise ( concession terms , licenses etc . ) .

A ORG ’s ordinance shall determine detailed rules governing the calculation of compensation , assessment of the circumstances listed in subsection CARDINAL and means of payment of compensation ( subsection CARDINAL ) and depreciation of securities . ”

Pursuant to section CARDINAL , the ORG and the relevant Ministers shall be entrusted with the implementation of LAW . However , since DATE , the date of entry into force of the CARDINAL Act , until the present day the ORG has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section CARDINAL(CARDINAL ) and ( CARDINAL ) .

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability in tort under LAW of LAW including the addition of a new LAW being made for the ORG ’s tortious liability for failure to enact legislation , a concept known as “ legislative omission ” ( zaniechanie legislacyjne ) .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to enact a law [ akt normatywny ] where there is a statutory duty to do so , the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages . ”

However , under the transitional provisions of section CARDINAL of the CARDINAL Amendment , Article CARDINAL as applicable before DATE applies to all events and legal situations that subsisted before that date .

The concept of the ORG ’s civil liability for a constitutional tort was introduced into the NORP legal order on DATE , the date of entry into force of the DATE LAW .

LAW states , in so far as relevant , as follows :

“ Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law . ”

In its resolution of CARDINAL DATE ( “ the DATE Resolution ” ) , ORG ( Sąd Najwyższy ) , sitting as a bench of CARDINAL judges , dealt with the following legal questions submitted to it by ORG of Appeal ( Sąd Apelacyjny ) :

“ Is ORG liable for damage caused by failure to enact a law [ akt normatywny ] if the duty to enact that law , laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] was not fulfilled until the date of entry into force of [ DATE LAW ] ,

and , if so ,

When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the ORG , determined in accordance with the principles laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] ? ” .

The question arose in the context of a case brought by a certain ORG , who sought damages for the nationalisation of her family ’s printing house and , as one of the basis for her claim , invoked LAW , relying on the ORG ’s legislative omission consisting in its failure to issue the relevant ordinance .

ORG answer in the operative part of the resolution reads :

“ Until the date of entry into force of [ LAW ] the ORG ’s failure to issue an ordinance foreseen in section DATE ) and ( CARDINAL ) of [ LAW ] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [ nationalisation ] . ”

The resolution contains extensive reasoning , the main thrust of which reads as follows :

“ [ As regards the time - frame for the issue of the ordinance ] . The determination of the beginning of that situation carries with it a certain element of arbitrariness since [ LAW ] does not lay down any term within which the ordinance referred to in section [ CARDINAL ] ( CARDINAL ) and ( CARDINAL ) should be issued . Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay , it can be considered that the discharge of the statutory authorisation , assuming the existence of willingness of the authorised body ( the ORG ) should have taken place in DATE or in DATE at the latest . This is supported by the fact that the ORG issued ordinances implementing other provisions ( including section CARDINAL(CARDINAL ) of the LAW , a fundamental provision for the interest of the ORG ) .

[ As regards the ORG ’s civil liability for legislative omission ] , ... it should be concluded that before the entry into force of the CARDINAL Constitution the State had not been liable under civil law for the consequences of its legislative inactivity . ...

DATE , marking the entry into force of the LAW is the relevant date as its constitutes the beginning of the existence in the legal order of , inter alia , LAW , proclaiming the right of “ everyone ” to compensation for any harm done to him by any act of a public authority in breach of the law ....

Assuming that LAW does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature ’s inactivity , it must be said that the rules for the ORG ’s liability in the sphere of law - making should be established by means of an ordinary statute , determining in a more detailed manner than LAW premises for an effective claim . ...

Article DATE § CARDINAL of LAW , as introduced by [ LAW ] satisfies the requirement of detailed LOC . The relevant temporal consequences have been clearly set out in its section CARDINAL , evidently indicating the prospective operation of DATE § CARDINAL of LAW . A formulation laying down a non - retroactive character of the provision is telling in that it refers to “ events and legal situation that subsisted before its entry into force ” ... In consequence , the assessment of the effects of legislative omission subsisting DATE was governed by [ earlier provisions ] . The relevant LAW , in its version before the amendment , did not include legislative omission as it was based on a completely different premise , namely , the absence of the ORG ’s civil liability for the legislature ’s acts . ... “

On DATE ORG , sitting as a bench of CARDINAL judges , dealt with a cassation appeal ( kasacja ) lodged by PERSON i Narzędzi Rolniczych “ NORP ” , a limited liability company which was at that time subject to a winding - up procedure . The appellant contested the judgment of ORG of DATE , rejecting its appeal ( apelacja ) against the judgment of ORG of DATE whereby its claim for damages arising from the ORG ’s failure to issue the relevant ordinance , pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of the CARDINAL Act , had been dismissed . The claim was based on LAW of the LAW and Articles CARDINAL and DATE § CARDINAL of LAW .

In dismissing the cassation appeal , ORG essentially reiterated the grounds stated in the DATE Resolution ( see paragraph CARDINAL above ) , stressing that the impugned legislative omission occurred in DATE or , at the latest in DATE and since then had continued . However , LAW CARDINAL of the LAW could not be considered a legal basis for a claim deriving from an “ omission ” by public authorities since that provision clearly covered only their “ acts ” . The provision of DATE , enabling a plaintiff to seek damages for legislative omission , had been introduced only on DATE by virtue of the CARDINAL Amendment . The terms of LAW were unambiguous : DATE of LAW did not apply to events and situations that had subsisted before its entry into force . Consequently , its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier , even if this state of affairs continually existed until DATE .

DATE . On DATE ORG ( PERSON ) heard a constitutional complaint lodged by a company GPE w ORG spółka akcyjna , challenging the constitutionality of section CARDINAL of LAW in so far as it excluded the application of DATE of LAW to situations that had subsisted before the entry into force of LAW , i.e. DATE ( see also paragraphs CARDINAL above ) . The claimant invoked , in particular , LAW § CARDINAL of ( right to compensation for unlawful action of public authority ) read in conjunction with LAW rule of law ) , LAW and CARDINAL ( right of ownership ) read in conjunction with LAW and CARDINAL ( protection of ownership ) and LAW ( equality before the law ) and LAW ( right of fair trial ) of LAW .

Before lodging the complaint , the company , which had been nationalised under LAW , unsuccessfully sought compensation for the Prime Minister ’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by LAW . On DATE the claim was finally rejected by ORG on the grounds stated in DATE Resolution ( see paragraphs CARDINAL above ) .

ORG decision ( no . ORG CARDINAL ) , in its relevant part , reads as follows :

“ CARDINAL . ... Consequently , in the light of the provisions of the LAW it is difficult to assume that non - fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [ the CARDINAL LAW ] amounted to “ [ an ] act of a public authority in breach of the law ” linked with the ORG ’s liability for [ constitutional ] tort under LAW . Even assuming that the state of legislative omission still persists , it should at the same time be concluded that the duty is non - enforceable . Thus , it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant ’s nationalised property . ... Accordingly , ORG considers that the assumption that a legislative omission “ in breach of the law ” still continues is unwarranted , in particular after the entry into force of the LAW , in the light of its standards . ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the ORG by section CARDINAL of the CARDINAL Act .

Article CARDINAL § CARDINAL of LAW ( “ the CAP ” ) ( ORG postępowania administracyjnego ) , which sets out grounds on which a final administrative decision is subject to annulment , states :

“ CARDINAL . A public administration authority shall declare a decision null and void if :

CARDINAL ) it has been issued in breach of the rules governing competence ;

CARDINAL ) NORP it has been issued without a legal basis or in flagrant breach of the law ;

CARDINAL ) concerns a case already decided by means of another final decision ;

CARDINAL ) it has been addressed to a person who is not a party to the case ;

CARDINAL ) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature ;

CARDINAL ) it would give rise to a punishable offence in the event that it has been enforced ;

CARDINAL ) it has a flaw making it null and void by the force of law .

There is no time - limit for a party ’s request to have an administrative decision declared null and void under LAW .

However , there are situations where , even if certain grounds listed in LAW exist , the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure . LAW CARDINAL provides for the following exceptions :

“ A decision shall not be declared null and void on the grounds listed in paragraph CARDINAL ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) if DATE have expired from the date of its service or promulgation , as well as if the decision has produced irreversible legal effects . ”

Article CARDINAL reads as follows :

“ CARDINAL . A ruling on annulment of a decision shall be given by means of a decision .

If it is impossible to declare a decision null and void because of the circumstances referred to in LAW , a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void . ”

For the purposes of compensation , the effects of declaring the original administrative decision “ null and void ” or “ issued contrary to the law ” are the same .

Article CARDINAL set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article CARDINAL § CARDINAL .

This provision was repealed by LAW with effect from DATE ( see also paragraphs CARDINAL above ) and replaced by new LAW . However , under section CARDINAL of the CARDINAL Amendment , which sets out transitional rules , LAW , in the version applicable on the repeal date , still applies to “ events and legal situations ” that subsisted before the entry into force of DATE LAW .

LAW , in the version applicable on the relevant date , read as follows :

“ CARDINAL . A party who has suffered a loss on account of the issuance of a decision in breach of LAW or on account of annulment of such a decision shall have a claim for compensation for actual damage , unless he has culpably caused the circumstances mentioned in this provision .

NORP The provisions of LAW , except for LAW [ provision repealed ] , shall apply to [ such ] compensation .

Compensation is due from an authority that issued a decision in breach of Article CARDINAL § CARDINAL , unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision ; in the latter case a claim for compensation shall be directed against the culpable party .

A public administration authority that has declared a decision null and void or declared , pursuant to LAW , that it has been issued contrary to the law shall rule on compensation due from the authority referred to in LAW . The vindication of compensation from a person who has culpably caused the circumstances mentioned in LAW , shall be effected before a court of law .

A party who is not satisfied with compensation granted by a public administration authority referred to in DATE , may lodge a claim with a court of law within DATE from the date of service of a decision given on that matter .

A claim for compensation shall be time - barred after DATE from the date on which has become final the decision declaring null and void the decision issued in breach of LAW or decision whereby an authority has declared , pursuant to LAW , that the contested decision has been issued in breach of LAW . ”

On DATE ORG of ORG , sitting in plenary , gave a resolution ( no . III CZP CARDINAL/CARDINAL ) on the application of LAW and rules regarding compensation . The resolution was given in response to legal questions submitted by the First President of ORG in connection with certain problems and divergences arising in judicial practice , in particular in respect of the temporal effects of LAW as determined in LAW , the application of Article CARDINAL § CARDINAL of LAW which replaced LAW ( see paragraphs CARDINAL and CARDINAL above ) and rules for adjudicating compensation .

The resolution contains an extensive reasoning which , in so far as relevant , may be summarised as follows :

CARDINAL ) Article CARDINAL § § CARDINAL and CARDINAL of the ORG applies to all claims for damages arising from an issuance of a final administrative decision given before DATE , which has been declared null and void or has been declared as being issued in breach of LAW . In contrast , paragraphs CARDINAL and CARDINAL of LAW , setting out the procedure for vindicating such claims , should be considered as no longer applicable . Consequently , a party seeking compensation under this provision should file an action directly with a civil court .

CARDINAL ) Where an annulled administrative decision has been given before the entry into force of the LAW ( DATE ) , compensation defined in LAW of the ORG shall not include loss of profits sustained in consequence of its issuance , even if such loss has occurred after DATE .

In DATE ORG dealt with CARDINAL bills on reprivatisation , restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in DATE . None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued . In the case of the DATE bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the ORG or by GPE , and on compensation ( Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości TIME fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “ the Restitution Bill DATE ” ) the relevant Act of ORG never entered into force because it had been vetoed by the President of GPE .

Each of those bills , although they differed in specific modalities , contained provisions for compensation for nationalisation of property under LAW .

In DATE the NORP ORG started the first reading of the Government ’s bill on compensation for property or other assets taken over by the ORG ( projekt ustawy o rekompensatach za przejęte przez państwo nieruchomosci oraz inne składniki mienia ) ( “ the DATE Compensation Bill ” ) . In general , compensation claims were to be subject to a statutory ceiling of PERCENT of the value of the original property taken over by the ORG . The claims of the owners of property nationalised under the provisions of LAW were included in the list of claimants entitled to compensation . The work on the CARDINAL Compensation Bill was discontinued in DATE since snap parliamentary elections were called following the collapse of the government coalition .

In DATE the new Government started preparatory work on fresh restitution legislation , i.e. the “ PERSON on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures ” ( projekt ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom , których dotyczyły procesy nacjonalizacji ) ( “ the DATE LAW ” ) .

The DATE Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation , corresponding to a certain – not stipulated in the bill but to be determined in the Minister for ORG ’s future ordinance – percentage of the value of the property in question on the date of its nationalisation .

In ORG report on the assessment of the budgetary impact of the implementation of the DATE Compensation Bill ( drawn up in DATE ) the total value of the claims to be covered by DATE Compensation Bill was estimated at PLN CARDINAL,CARDINAL,CARDINAL,CARDINAL .

It was expected that CARDINAL applications for compensation will be submitted under the provisions of the new legislation . The process of the realisation of cash payments was to be spread over DATE and instalments were to be indexed DATE in accordance with the consumer price index .

The entry into force of the bill was tentatively foreseen for DATE .

In DATE the Minister for Finance was asked to make an analysis of the consequences of the implementation of DATE Compensation Bill .

On DATE the Minister for Finance submitted a report stating that if the bill entered into force in DATE , there would be an abrupt increase in the public debt by ORG which would correspond to PERCENT of ORG ) . In the circumstances , the allocation of PLN CARDINAL,CARDINAL,CARDINAL,CARDINAL for securing nationalisation claims might result in GPE ’s exceeding the permissible limits of the national debt in relation to GNP as set by ORG .

In DATE the Minister for ORG issued a press release on the ORG website , informing the public that the ORG had decided not to submit the DATE Compensation Bill to ORG . That statement gives the following explanation :

“ In view of the considerable savings that have been made in DATE , connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation , in the present economic situation , [ the DATE Compensation Bill ] can not be enacted . ”


CASE OF PÉREZ DE RADA CAVANILLES v. SPAIN

Violation of Art. 6-1;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant had been in dispute with a neighbour concerning a view over her property at GPE in the province of GPE . On DATE a settlement agreement was concluded between the parties before the deputy judge of first instance at Aoiz ( province of GPE ) . In the agreement the neighbour , who had only a life interest in the building he occupied , undertook to block the view from his patio over the applicant ’s property within DATE .

When , on DATE , that period expired without the neighbour having carried out his undertaking , the applicant applied to ORG for enforcement of the agreement .

On DATE the court gave judgment for the applicant and allowed the defendant an additional period of DATE to perform the undertakings made in the agreement .

On DATE the defendant informed ORG that as he was not the owner of the building he occupied , he could not carry out the works needed to fulfil the terms of the agreement . On DATE the applicant renewed her application , stating that the defendant had not brought any action to have the agreement in question set aside under LAW ( see paragraph CARDINAL below ) .

In a decision ( auto ) of CARDINAL DATE the deputy judge of ORG ( not the same judge as before ) dismissed the applicant ’s application and held that the agreement was void on the ground that the neighbour , who was merely a life tenant , could not carry out the works needed to block the view without the consent of the reversioner , since they would change the appearance and structure of the building . The judge added that there was nothing to prevent an agreement being concluded with the person who had the necessary capacity .

As regards the applicant ’s allegation that the defendant had not raised the nullity of the agreement within the prescribed time ( see paragraph CARDINAL below ) , the judge held that LAW covered only cases in which the actual conclusion of the agreement had not complied with the conditions or formalities laid down by law , and not defects such as to negate a consensus ad idem . The agreement was defective because CARDINAL of the parties had no capacity to conclude such an agreement .

On DATE the registrar of ORG ordered that the decision should be served at the applicant ’s home in the village of GPE , QUANTITY from Aoiz .

On DATE the magistrate at ORG ( under whose jurisdiction the village of GPE came ) recorded that the applicant was not at her home at GPE and informed the registry at ORG that her husband , who was at the same time her lawyer , had requested by telephone that the decision should be served at the applicant ’s home in GPE .

On DATE the decision in question was served on the defendant .

In an order of CARDINAL DATE ORG ( QUANTITY from GPE ) ordered that the decision should be served at the applicant ’s home in GPE ; on DATE the decision was at last served on the applicant in the person of her domestic help , since she herself was out at the time .

On DATE the applicant lodged a reposición application and , in the alternative , an ordinary appeal against the decision of CARDINAL DATE with the registry of the duty court in GPE , which initially stamped the document . Noticing , however , that the application should have been lodged at ORG , the head of the registry crossed out the stamp , thereby invalidating it .

On DATE , the applicant sent , by registered letter with advice of delivery , the same reposición application and , in the alternative , an ordinary appeal to ORG . The application was dated DATE and had been signed by the applicant and her counsel at GPE . The first page was DATE .

The registry of ORG received the application on DATE .

In a decision ( providencia ) of CARDINAL DATE ORG declared the reposición application and appeal in the alternative inadmissible as being out of time . After a number of unsuccessful attempts by the ORG magistrate and ORG to serve this decision within their jurisdictions , it was served on the applicant at her home in GPE on DATE .

On DATE the applicant sent to ORG , by registered letter with advice of delivery , a reposición application against the aforementioned decision and this was received at the registry on DATE .

On DATE ORG Instance dismissed the application and upheld the impugned decision , on the ground that the application against the decision of DATE should have been registered at the court registry within the prescribed period of DATE , that is to say on DATE at the latest . The court also noted that the legislation on administrative matters cited by the applicant ( see paragraph CARDINAL below ) was not applicable in the case as proceedings in the ordinary courts were governed by LAW and LAW ( see paragraphs CARDINAL below ) . Lastly , the Court held that allowing an application to be lodged by post would undermine “ judicial authenticity ” , thereby breaching the principle of legal certainty , inasmuch as a post office ( an administrative entity ) could not be equated with a judicial body .

As to the ordinary appeal , the court added that it could not be lodged until the reposición application had been determined and not at the same time as that application , and that it was accordingly pointless to consider whether it had been lodged timeously .

On DATE the applicant lodged an appeal with ORG , which dismissed it in a decision ( auto ) of DATE , emphasising that applications had to be made to the appropriate court or to the duty judge of the same town , particularly where the person making it was assisted by counsel .

On DATE the applicant lodged an amparo appeal with ORG , relying on the right to protection by the courts ( LAW ) .

In a decision of CARDINAL DATE the application was declared inadmissible on the following grounds :

“ … This ORG ’s case - law on the filing of applications ( [ see , ] as a recent authority , ORG judgment no . CARDINAL ) applies to the instant case . Applications are normally to be filed with the registry of the court applied to or with the duty judge and filing [ of an application ] at the headquarters of administrative bodies is , as an exception , permissible only where the litigant is not represented by a lawyer ( abogado or procurador ) . In the instant case the applicant , assisted by counsel , filed her application at a post office ; the ordinary courts , applying the rules of procedure and relying on decisions such as ORG judgment no . CARDINAL/CARDINAL , held , in reasoned decisions , that there was no justification for failing to file [ the application ] at the registry of the court itself or with the duty judge in the town . ”

Article CARDINAL § QUANTITY of the LAW provides :

“ Everyone has the right to effective protection by the courts in the exercise of his rights and his legitimate interests , and in no circumstances may there be any denial of defence rights . ”

The relevant provisions of LAW which concern settlement agreements read as follows :

Article CARDINAL

“ The terms agreed by the parties to a settlement agreement shall be enforced by the same court before which the agreement was concluded and according to the procedure ( juicio verbal ) laid down for the execution of judgments delivered by a court of first instance where the cases are within the jurisdiction of that court .

Article CARDINAL

“ An action to have the terms of a settlement agreement declared void may be brought on the same grounds as CARDINAL for annulling contracts .

Such an action must be brought in the appropriate court within DATE of the conclusion of the agreement , using the procedure corresponding to the amount in dispute . ”

The relevant provisions of LAW concerning time - limits and the filing of applications are worded as follows :

Article CARDINAL

“ To be valid , judicial acts must be authorised by the public officer responsible for authenticating or certifying the act . ”

Article CARDINAL

“ Registrars and secretaries [ of courts ] shall enter the date and time of filing of applications only where it is necessary for checking that a mandatory time - limit ( plazo perentorio ) has been complied with . … ”

Article CARDINAL

“ PERSON applications must be filed within DATE and must specify the provision of this Code that is alleged to have been infringed .

Where these CARDINAL requirements have not been satisfied , the court shall , without further consideration , make a declaration , against which no appeal shall lie , that no ruling will be made on the application . ”

The relevant provisions of LAW are the following :

Section CARDINAL

“ CARDINAL . The rules of good faith must be complied with in all proceedings .

In accordance with the principle of effective protection laid down in LAW , the courts shall always rule on claims and may only dismiss them on the ground of a formal defect where that defect can not be remedied , or at least not in accordance with the procedure laid down by law [ for that purpose ] . ”

Section CARDINAL(CARDINAL )

“ All judicial acts shall be carried out at the seat of the judicial body . ”

Section CARDINAL

“ Procedural documents , decisions and judgments shall be served on all the parties to a case and also , where expressly so provided in such decisions in accordance with the law , on any persons referred to in them or who may be prejudiced thereby . ”

Section CARDINAL

“ Service may be effected by post , telegraph or any other technical means which record its accomplishment and the circumstances thereof in accordance with the laws on procedure . ”

Section CARDINAL

“ CARDINAL . In municipalities in which there are several courts … , a common service , under the authority of the Chairman of the Bar , may be established in order to effect service where this is the court ’s responsibility .

General registration departments may likewise be set up for the filing of instruments or other documents intended for judicial bodies . ”

Section CARDINAL(CARDINAL )

“ Registrars shall record DATE and time of lodging of applications , writs and originating summonses and any other document which must be filed within a mandatory ( perentorio ) time - limit . ”

The relevant provision of PERSON no . CARDINAL of CARDINAL DATE on the rules governing public authorities and on common administrative procedure lays down :

Section CARDINAL(CARDINAL )

“ Applications , pleadings and communications sent by members of the public to public administrative bodies may be filed :

( c ) at post offices , in accordance with the formal requirements laid down in regulations . ”

The rules on the postal service , as enacted in Decree no . CARDINAL/CARDINAL of CARDINAL DATE and amended by the Order of DATE and Decree no . CARDINAL of DATE , provide :

Article CARDINAL

“ Acceptance of applications and documents sent to administrative institutions

The documents and applications in question shall be submitted in an open envelope …

The official who accepts the item for despatch shall stamp it with the date in the upper left - hand corner of the main document , so that the name of the post office and the date of submission are clearly visible … ”

In a judgment of DATE ( no . CARDINAL/CARDINAL , ORG ( Boletín oficial del Estado ) of CARDINAL DATE ) ORG , citing its own case - law , held that the right to effective protection by the courts was infringed “ where a member of the public found it impossible to lodge an application on account of undue hindrances or of unjustified and unexplained refusal or of a mistake attributable to the judicial body ” .

In CARDINAL judgments of CARDINAL DATE ( no . CARDINAL/CARDINAL , ORG of DATE ) and DATE ( no . DATE , ORG of DATE ) ORG held , inter alia , that the rules of procedure on the acceptance of applications must not prevent the practical exercise of the right to effective protection by the courts . The interpretation of them was not to be excessively or unreasonably strict , regard was to be had to their purpose at the time they were adopted and remedies were to be made as accessible as possible .

In CARDINAL judgments of DATE ( no . CARDINAL/CARDINAL , ORG of DATE ) and DATE ( no . CARDINAL , ORG of DATE ) ORG held that applications were to be filed with the registry of the court applied to or the duty judge of the town – in these cases the appeals had been to ORG itself DATE and posting an application was , as an exception , permissible only where the litigant was not represented by a lawyer ( abogado or procurador ) and lived at a distance from the seat of the court .