András Sajó;David Thór Björgvinsson;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque

The applicant , PERSON , is a NORP national who was born in DATE and is currently being held at ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

According to the applicant , on DATE he was arrested by police officers in connection with crimes he had committed in DATE . Before that date , the applicant had been hiding from investigators .

On DATE the ORG established that the applicant had committed murder , theft and CARDINAL serious assaults . The applicant had committed some of those crimes as part of an organised group . On the basis of a forensic expert examination of DATE the court found , however , that when breaching the law the applicant had been suffering from a chronic mental illness ( paranoid schizophrenia ) and could not understand his actions . Instead of a prison sentence , the court ordered the applicant ’s confinement in a psychiatric institution under strict observation ( griežto stebėjimo sąlygomis ) .

On CARDINAL DATE the applicant was admitted to ORG . The doctors prescribed him compulsory medical treatment and administered various neuroleptics used for treating schizophrenia ( PERSON , PERSON , ORG ) . To counteract the undesirable side effects of those drugs , the doctors also prescribed the applicant PERSON .

In DATE the commission of psychiatrists concluded that the applicant ’s mental state had improved in the course of the treatment and that he showed no aggressiveness towards others . On that ground , in DATE ORG ordered the implementation of the recommendation by a doctor at ORG that the applicant ’s compulsory treatment under strict observation be replaced by a milder regime DATE he was placed under “ intensive observation ” in the psychiatric hospital ( sustiprinto stebėjimo sąlygomis ) .

On DATE the applicant attacked the head of the hospital unit with a knife . He also threatened other hospital personnel . As a result , by a decision of ORG on DATE , the regime of strict observation was re - imposed .

The treatment regimes applied to the applicant during the period relevant to the case were reviewed by ORG on DATE , CARDINAL DATE and CARDINAL DATE ; CARDINAL DATE and DATE ; and CARDINAL DATE and CARDINAL DATE .

On DATE a panel of doctors again diagnosed the applicant with paranoid schizophrenia . The applicant was characterised as aggressive , and uncritical of his crimes or the attack on the doctor .

On DATE the ORG extended the applicant ’s confinement in the psychiatric hospital under strict observation . The court observed that , according to the conclusions of the panel of doctors , the applicant ’s mental condition was unstable , he was aggressive towards the medical staff and was uncritical of his behaviour . The court concluded that the applicant was still a danger to society .

On DATE ORG upheld the decision of ORG . The court stated that the applicant was still dangerous and that the doctors had concluded that his mental condition was still unstable . It appears from this decision that both courts based their decisions on the psychiatric expert report of CARDINAL DATE .

On DATE the ORG extended the applicant ’s confinement in the psychiatric hospital under strict observation , based on the conclusions by the panel of doctors of DATE that the applicant was still a danger to society and that his mental state was still unstable .

In DATE the treating doctor noted in the applicant ’s medical file that she was continuing to treat the applicant with ORG injections once DATE . At the same time she was reducing the dosage of PERSON , because of an absence of any clear side effects .

In reply to the ORG ’s request to provide an independent expert report as to the appropriateness of the treatment the applicant received in DATE and DATE , the ORG submitted a report by ORG , dated DATE .

The report reads that from DATE the applicant was treated with the long - acting neuroleptic ORG , administered once DATE . Given that the applicant showed no contraindications and had no complaints about the treatment , on DATE the doctor decided to stop administering PERSON . After being injected with PERSON on DATE , the applicant expressed a concern that he felt stiffness ( pacientas išreiskė nuogąstavimą , kad jį gali “ sukaustyti ” ) . The doctor then prescribed him CARDINAL mg of PERSON , to be administered once a day . Afterwards the applicant felt well again and the doctor noticed no side effects of the neuroleptics . On CARDINAL DATE the doctor stopped administering PERSON , on the ground that patients could get used to it and abuse it . The applicant did not receive PERSON until DATE , when he complained of having felt a slight tremor in his fingers as a side effect of ORG . Since that date the applicant has been receiving PERSON .

On DATE the ORG approved the applicant ’s continued confinement in the psychiatric hospital under strict observation . The court stated that the decision was based on the conclusions of the panel of doctors .

On DATE the ORG once again approved the applicant ’s continued confinement in the psychiatric hospital under strict observation . Based on an examination by doctors on DATE , the court concluded that the applicant was still a danger to society . The court also noted that on DATE , after a visit from relatives , the applicant had tried to bring his own psychotropic medication into the hospital ward .

By a ruling of CARDINAL DATE ORG maintained its decision that the applicant should be kept in the psychiatric hospital under strict observation . The court based its decision on the ORG conclusion that the applicant was still a danger to society , his mental state was not stable and he was not critical of the crimes he had committed .

According to the aforementioned report by ORG , GPE , a professor and the director of the psychiatric clinic of ORG , had evaluated the applicant ’s treatment as an expert and concluded that from CARDINAL DATE to CARDINAL DATE the applicant had been properly diagnosed and appropriate psychotropic medication had been prescribed to him . Moreover , on DATE the doctor had correctly decided to stop administering PERSON to the applicant . The treatment with PERSON had been temporarily resumed , after the applicant had informed the doctors of side effects . However , as the side effects did not materialise , DATE the doctor again decided to stop administering PERSON . The psychiatrist also pointed out that PERSON , besides being able to correct the side effects of neuroleptics , was a drug capable of causing psychological and physical dependency in patients . Therefore PERSON was to be prescribed only if clear side effects were visible .

ORG concluded that the treatment the applicant had received in ORG in DATE had been appropriate and not in breach of the applicable legislation . The inspectorate also noted that there had been no other health - care related violations at the institution , unrelated to the services provided to the applicant .

At the time relevant to this case , LAW provided that a person who , owing to chronic mental illness or temporary mental incapacity , could not understand or control his or her actions when committing a crime could not be held criminally liable . Pursuant to LAW , the court would take a decision to place a person in a psychiatric institution under general , intensive or strict observation , depending on the danger posed by the person to society and the likelihood that he or she might commit a fresh crime . The person would stay in a psychiatric institution until he or she regained a normal mental state or until he or she ceased to be a danger to society . The court was to review the imposed measure DATE .

A patient ’s right to appropriate treatment is provided for in LAW on the Rights of Patients and Compensation for Damage to Their Health . The same provision is envisaged in LAW . Both of these legal acts provide that where a person considers that his or her rights as a patient have been violated , he or she may complain in writing to the treating medical institution , and , if not satisfied with the answer received , to a court ( Articles DATE and CARDINAL respectively ) .

The Civil Code provides that civil liability may arise from non - performance of a duty established by law or a contract or from violation of the general duty to behave with care ( Article CARDINAL.CARDINAL § CARDINAL ) . When a person ’s health is impaired , the person liable for the damage shall be bound to compensate the aggrieved person for all his suffering , including non - pecuniary damage ( Article CARDINAL § CARDINAL ) .

According to the Regulations of the State Medical Audit Inspectorate at ORG , ORG task is to carry out ORG control and expertise of the accessibility and quality ( adequacy ) of personal health - care services provided by health - care institutions . It may review ORG requests , applications and complaints .

The Government submitted details of domestic case - law as regards domestic remedies in cases of medical malpractice .

They referred , first , to the ruling of DATE in case no . ORG , where ORG pronounced on certain aspects of the legal classification of actions by doctors . With regard to the admissibility of the appeal on points of law , ORG noted that establishment of circumstances proving guilt of a person was a question of fact . However , the legal classification and assessment of such facts constituted a question of law , examining whether or not certain actions of doctors should be found at fault . The court noted that a doctor could not normally guarantee to achieve particular results , that is , that a patient would be cured . Consequently , a patient and a doctor ( or the health - care institution ) were bound by an obligation which encompassed the doctor ’s obligations to do his utmost , namely , to ensure the maximum degree of diligence , care , caution and competence . Moreover , the health - care institutions were liable under the rules of delictual liability if damage was caused by the actions of the institution staff . In that particular case ORG found that a doctor had not been sufficiently diligent , given that he had failed to provide the patient with extensive information about additional risks of complications . In reaching that conclusion the court relied , among other evidence , on a report by ORG .

In the decision of DATE in case no . ORG has examined the legal acts regulating health care and diagnostics for haemothorax . In this case the court also relied on a report by ORG as evidence .

In the decision of DATE in case no . CARDINAL ORG examined whether a proper care regime had been assigned to a patient hospitalised owing to a poorly plastered broken hand . The court emphasised that patients should be accorded high quality health care , treated in such manner that assured a respectful attitude towards their diagnosis , and that the selected treatment should be justified from a medical point of view . To substantiate its conclusions , the appellate court relied upon expert findings and , among other pieces of evidence , on a report by ORG .


Violation of Art. 5-1;Violation of Art. 7-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE ORG convicted the applicant of CARDINAL counts of rape and abduction and of CARDINAL count of attempted rape and deprivation of liberty committed in DATE . It sentenced him to DATE imprisonment and ordered his placement in preventive detention pursuant to LAW ( see paragraphs CARDINAL below ) . The court found that the applicant , acting with full criminal responsibility , had raped CARDINAL young women and had attempted to rape another woman all of whom he had taken with him in his car . It further noted that the applicant had previously been convicted by juvenile courts of attempted rape and of rape ; in respect of the second offence he had been placed in a psychiatric hospital .

The applicant served his full prison sentence in FAC . He was then placed in preventive detention , executed in that same prison , for the first time on DATE ; he had thus served DATE in preventive detention by DATE .

The continuation of the applicant 's preventive detention was ordered by ORG on several occasions .

On DATE ORG , in judicial review proceedings under LAW ( see paragraph CARDINAL below ) , refused to suspend the applicant 's preventive detention and grant probation .

ORG considered that the applicant 's continued preventive detention was necessary because there was still a risk that the applicant , owing to his criminal tendencies , might commit serious offences resulting in considerable psychological or physical harm to the victims if released ( Article CARDINAL of LAW ; see paragraph DATE below ) . Since the court 's last order of DATE , to the reasoning of which it referred , no circumstances leading to a more positive conclusion had become known .

ORG had consulted a psychological expert on the question whether there was a risk that the applicant , if released , might commit offences by which his victims would suffer serious physical or mental harm . However , the expert could only submit a view on the basis of the case file as the applicant had refused to talk to her .

ORG further noted that in his report of CARDINAL DATE a neurologic expert had found that the applicant suffered from a personality disorder which had resulted in his acts of sexual aggression . ORG acknowledged that the applicant had accepted social - therapeutic treatment from DATE until DATE . However , he had then terminated that treatment . In DATE the detention authorities had proposed certain relaxations in the conditions of the applicant 's detention , but the applicant had refused to cooperate . In his report of CARDINAL DATE the neurologic expert had found that the applicant still suffered from the said personality disorder . In DATE the applicant had refused any therapy . Therefore , there was nothing to indicate that the applicant was no longer dangerous . In any event , his release could only be taken into consideration after his conditions of detention had been relaxed , combined with a successful social - therapeutic treatment .

ORG further stated that it did not consider the new version of Article DATE of LAW of DATE ( see paragraph CARDINAL below ) to breach constitutional law in so far as it applied also to persons convicted prior to that change in the law .

By a decision of DATE , served on the applicant on CARDINAL DATE , ORG , fully endorsing the reasons given by ORG , dismissed the applicant 's appeal . In particular , contrary to the applicant 's submission , it considered that Article PERSON of LAW , read in conjunction with LAW to LAW ( see paragraph CARDINAL below ) , which entered into force on DATE , were constitutional . The prohibition on retrospective punishment did not apply to orders of preventive detention , which did not constitute a penalty , but a measure of correction and prevention . In view of the fact that there was a risk that the applicant , if released , might commit sexual offences similar to those he had previously committed , his continued detention was not yet disproportionate .

On DATE the applicant lodged a constitutional complaint with ORG against the decisions ordering his continued preventive detention even on completion of the tenyear period . He argued that these decisions were based on Article CARDINAL of LAW , as amended in DATE , under the terms of which the duration of a convicted person 's first period of preventive detention was extended retrospectively from a maximum period of DATE , applicable prior to the change in the law , to an unlimited period of time . Therefore , this provision violated the prohibition on retrospective punishment under LAW , the prohibition of retrospective legislation enshrined in the rule of law , his right to liberty under LAW , second sentence , of LAW and the principle of proportionality ( see paragraph CARDINAL below ) .

On DATE ORG declined to consider the applicant 's constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) as it was ill - founded . Referring to its leading decision given on DATE in relation to the case of PERSON ( file no . CARDINAL BvR CARDINAL/CARDINAL ; application no . CARDINAL before this Court ) , it found that Article CARDINAL of LAW , read in conjunction with LAW to LAW , as amended on DATE , were constitutional .

On DATE ORG , having consulted a psychiatric expert , PERSON , again refused to suspend the applicant 's preventive detention and grant probation under LAW of LAW .

On DATE ORG dismissed the applicant 's appeal . ORG endorsed ORG view that there was still a risk that the applicant , if released , might commit serious offences resulting in considerable psychological or physical harm to the victims .

ORG had regard to the report of DATE by psychiatric expert PERSON , who , having examined the applicant and the case file , had considered the applicant liable to reoffend . According to the expert , the applicant still suffered from a personality disorder which had , in the past , manifested itself by violent sexualised behaviour .

The Court of Appeal observed that the expert 's negative prognosis was based on a limited factual basis in respect of the applicant 's personal development after his offences . The expert had only found that the applicant 's personality disorder had not been cured by therapy , without assessing whether this disorder would still manifest itself in similar offences in the future . It was for the prison authorities and the regional courts to extend the basis for a prognosis by therapeutic measures and by granting relaxations in the conditions of detention . However , such therapeutic measures had not been taken in the applicant 's case in DATE , even though an expert had already made specific proposals for such measures in DATE and again in DATE . The applicant had refused a dialogue with the prison authorities on his therapy , but it was for the prison authorities to make reasonable offers of treatment and to grant relaxations in the conditions of the applicant 's detention , which it had failed to do . However , without testing and preparing the applicant for release in the course of relaxations in his conditions of detention , there was a risk that he would commit serious sexual offences if released .

On DATE the applicant lodged a constitutional complaint with ORG . He argued that his continued preventive detention violated his right to liberty , the prohibition of retrospective punishment , the prohibition of double punishment for the same offence and the prohibition of inhuman treatment . He argued , in particular , that by the further execution of preventive detention against him , he had been treated as a mere object of ORG action in disregard of his human dignity . Moreover , his right to a fair trial had been breached , in particular in that the criminal courts had failed to decide on his continued preventive detention within the statutory time - limit .

On DATE ORG declined to consider the applicant 's constitutional complaint ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

It found that the applicant 's complaint was inadmissible for non - exhaustion of domestic remedies in so far as he had complained about ORG failure to decide on his continued preventive detention already in DATE , as prescribed by LAW § § CARDINAL and CARDINAL of LAW ( see paragraph CARDINAL below ) . The applicant had failed to apply for judicial review of this failure to comply with the statutory time - limit .

In so far as the applicant had complained about his continued preventive detention for a period exceeding ten years , his complaint was ill - founded . His continued preventive detention on the basis of Article CARDINAL § CARDINAL of LAW , as amended in DATE , was constitutional . The criminal courts had further respected the principle of proportionality in respect of deprivations of liberty in their decisions .

On DATE ORG , reviewing the necessity of the applicant 's continued detention , decided that the applicant was to remain in preventive detention as , owing to his criminal tendencies , he was still liable to commit serious offences resulting in considerable psychological or physical harm to the victims .

On DATE ORG quashed that decision and remitted the case to ORG . It found that ORG had not sufficiently established the facts on which it had based its decision and had failed to hear the medical expert , who had submitted a report in writing on its request , also in person at the hearing .

On DATE ORG dismissed the applicant 's request of CARDINAL DATE that ORG , by way of an interim injunction , request ORG to order the applicant 's immediate release and declare whether the ORG 's findings in its judgment in the case of PERSON GPE , no . CARDINAL , were applicable to other detainees ( file no . CARDINAL BvQ CARDINAL ) . It found that the applicant had failed to explain why he could not be expected to await the decisions to be taken by the courts responsible for the execution of sentences on his further detention .

On DATE ORG again decided not to suspend the applicant 's preventive detention and grant probation .

On DATE ORG declared the applicant 's preventive detention terminated and ordered his supervision of conduct . ORG , referring to a leading decision of ORG of CARDINAL DATE ( see paragraph CARDINAL below ) , argued that it was possible to interpret LAW so as to comply with the LAW as interpreted by this ORG in the case of PERSON GPE . Accordingly , it found that in relation to preventive detention the application of a new statutory provision retrospectively to the detriment of the person concerned was prohibited and the law in force at the time of the offence had to be applied . As Article CARDINAL § CARDINAL of LAW , in its version in force at the time the applicant committed his offences , provided that the first period of preventive detention could not exceed DATE , the applicant 's preventive detention was terminated and the applicant was to be released .

ORG further found that the applicant had no claim for damages under LAW ( Gesetz über die Entschädigung für Strafverfolgungs - maßnahmen ) . A claim for damages under LAW or official liability proceedings had to be brought in the civil courts .

The applicant was released on DATE and has been submitted to constant surveillance by QUANTITY police officers since then .

A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions relevant to the present case can be summarised as follows :

The German Criminal Code distinguishes between penalties ( GPE ) and socalled measures of correction and prevention ( Maßregeln der Besserung und GPE ) to deal with unlawful acts . Preventive detention ( LAW seq . of LAW ) is classified as a measure of correction and prevention . The purpose of such measures is to rehabilitate dangerous offenders or to protect the public from them . They may be ordered for offenders in addition to their punishment ( compare Articles CARDINAL et seq . ) . They must , however , be proportionate to the gravity of the offences committed by , or to be expected from , the defendants as well as to their dangerousness ( Article CARDINAL of LAW ) .

The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention . The penalty is determined by the law which is in force at the time of the act ( LAW ) ; if the law in force on completion of the act is amended before the court 's judgment , the more lenient law applies ( LAW ) . On the other hand , decisions on measures of correction and prevention are to be based on the law in force at the time of the decision unless the law provides otherwise ( LAW ) .

The sentencing court may , at the time of the offender 's conviction , order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public ( LAW ) .

In particular , the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to DATE imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public ( see LAW ) .

Article CARDINALc of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final . Paragraph CARDINAL of the LAW provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention , the court responsible for the execution of sentences ( that is , a special ORG composed of CARDINAL professional judges , see sections ORG and CARDINAL ) of LAW ) must review , before completion of the prison term , whether the person 's preventive detention is still necessary in view of its objective . If that is not the case , it suspends on probation the execution of the preventive detention order ; supervision of the person 's conduct ( GPE ) commences with suspension .

Pursuant to LAW the court ( i.e. the chamber responsible for the execution of sentences ) may review at any time whether the further execution of the preventive detention order should be suspended on probation . It is obliged to do so within fixed time - limits ( paragraph CARDINAL of Article CARDINAL ) . For persons in preventive detention , this timelimit is DATE ( paragraph CARDINAL of Article CARDINAL ) .

Under Article CARDINAL § CARDINAL of LAW , in its version in force prior to DATE , the first period of preventive detention may not exceed DATE . If the maximum duration has expired , the detainee shall be released ( Article QUANTITY § CARDINAL ) .

Article CARDINAL of LAW was amended by the Combating of Sexual Offences and Other LAW of DATE , which entered into force on DATE . Article CARDINAL § CARDINAL , in its amended version , provides that if a person has spent DATE in preventive detention , the court shall declare the measure terminated ( only ) if there is no danger that the detainee will , owing to his criminal tendencies , commit serious offences resulting in considerable psychological or physical harm to the victims . Termination shall automatically entail supervision of the conduct of the offender . The former maximum duration of a first period of preventive detention was abolished . Pursuant to section CARDINAL § CARDINAL of LAW to LAW , the amended version of Article CARDINAL of LAW was to be applied without any restriction ratione temporis .

By a decision of CARDINAL DATE ( file no . CARDINAL StR CARDINAL/CARDINAL ) ORG ( fourth senate ) , in a decision concerning a retrospective order of preventive detention ( nachträgliche GPE ) , found that LAW was to be and could be interpreted so as to comply with LAW as interpreted by ORG in its judgment in GPE , no . CARDINAL . Under LAW of LAW ( see paragraph CARDINAL above ) , decisions on measures of correction and prevention were to be based on the law in force at the time of the court 's decision unless the law provided otherwise . LAW , in its interpretation by this ORG , was such a law which provided otherwise as the ORG had considered that preventive detention was to be qualified as a penalty for the purposes of LAW to which the prohibition of retrospective punishment applied ( the fifth senate of ORG , in its decision of DATE , file no . CARDINAL StR CARDINAL , disagreed with the fourth senate on that point in relation to a different provision on retrospective preventive detention ) . Therefore , court decisions concerning orders of preventive detention had to be based on the law in force at the time of the offence .

Referring , in particular , to these findings of ORG , several ORG found in cases comparable , as regards the temporal course of events , to the LAW v. GPE case that the abolition of the maximum period of DATE laid down in Article CARDINAL § CARDINAL of LAW in its version in force before DATE could not be effected retrospectively and therefore still applied to preventive detention ordered in relation to offences committed prior to that date . As a consequence , these courts declared terminated the preventive detention of the detainees concerned whose first period of preventive detention had been executed beyond that maximum period and ordered their release ( see , in particular , GPE am ORG , decision of DATE , file no . CARDINAL GPE CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; and ORG , decision of DATE , file no . CARDINAL Ws DATE ) .

On the contrary , several ORG considered that the ORG 's findings in the case of PERSON GPE could not be applied at present by the domestic courts responsible for the execution of sentences as LAW as it stood did not permit its interpretation in compliance with LAW Section CARDINAL § CARDINAL of LAW to LAW had expressly stipulated that the abolition of the maximum duration of DATE for a first period of preventive detention also applied to persons who had committed the offences in question prior to the entry into force of that abolition and had thereby unambiguously authorized the application of the amended law with retrospective effect . It was therefore for the legislator to execute the ORG 's judgment in the PERSON case . ORG accordingly did not terminate the preventive detention of the persons concerned ( see , in particular , ORG , decision of CARDINAL DATE , file no . CARDINAL Ws CARDINAL - CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL GPE CARDINAL/CARDINAL ; ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ; and ORG , decision of DATE , file no . CARDINAL Ws CARDINAL/CARDINAL ) . Several of ORG subsequently submitted such cases to ORG for a preliminary ruling under a new provision of LAW ( section CARDINAL § CARDINAL no . CARDINAL ) in force since DATE , which is aimed at securing a uniform case - law of the NORP courts on that issue ( see , for instance , ORG , decision of DATE , file no . CARDINAL Ws DATE ) .


CASE OF MARINICA TITIAN POPOVICI v. ROMANIA

Violation of Article 6 - Right to a fair trial

Alvina Gyulumyan;Corneliu Bîrsan;Elisabet Fura;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

In DATE the public prosecutor initiated a criminal action against the applicant for homicide and grievous bodily harm . On DATE he was placed in pre - trial detention , where he remained until DATE . On DATE ORG ( “ the ORG ” ) acquitted the applicant , finding that he had not committed the crimes concerned . That judgment became final on DATE .

On DATE the applicant lodged an action for pecuniary and non - pecuniary compensation for illegal detention .

On DATE ORG dismissed the request because the applicant had not paid a deposit of PERCENT of the amount claimed , as provided for by Government Emergency Ordinance no . CARDINAL .

On DATE ORG ( “ the Court of Appeal ” ) allowed an appeal by the applicant , quashed the previous judgment and sent the case back for a fresh examination . The court held that the above - mentioned ordinance applied only to violations of non - pecuniary rights committed through the press .

On DATE ORG dismissed an appeal by the authorities and upheld that ruling .

After the retrial , on DATE ORG made awards in respect of pecuniary and non - pecuniary damage .

On CARDINAL DATE ORG allowed an appeal by the applicant and awarded the whole amount claimed by him for pecuniary and non - pecuniary damage .

NORP On DATE ORG upheld an appeal on points of law by the authorities , quashed the CARDINAL previous judgments and sent the case back for fresh consideration . It reiterated that a claimant needs to provide proof of damage , but that judges are also obliged to avoid investigative errors , if necessary by ordering certain evidence to be produced even if the parties refuse . The lower courts had estimated the damage without taking into account that damage must be demonstrable and uncompensated and without giving reasons .

On DATE the case was registered with ORG . The court questioned the applicant , heard a witness , requested information from different institutions , and ordered CARDINAL expert reports .

After the fresh examination , on DATE ORG awarded the applicant CARDINAL old NORP lei ( ROL ) in respect of pecuniary damage and ORG for non - pecuniary damage . It also awarded costs and expenses .

On DATE ORG allowed an appeal by the applicant and increased the amount in respect of non - pecuniary damage .

The parties appealed on points of law . On DATE ORG and ORG received the case file from ORG and fixed the first hearing for DATE .

On DATE ORG , in a final decision , upheld the appeal by the applicant and awarded him the full amount of ROL CARDINAL claimed in respect of non - pecuniary damage , as well as ROL CARDINAL,CARDINAL,CARDINAL for costs and expenses .

On DATE it sent the case file back to ORG .

On DATE that judgment was endorsed with a writ of execution . On DATE the applicant requested ORG to pay the above - mentioned amounts . After securing the official authorisations , the Ministry paid the debt on DATE .


CASE OF BELVEDERE ALBERGHIERA S.R.L. v. ITALY

Violation of P1-1;Just satisfaction reserved

NORP The applicant company , owner of FAC at GPE , also owned CARDINAL sq . m. of land that gave patrons of the hotel direct access to the sea .

On CARDINAL DATE the GPE municipality passed a resolution approving a road - building scheme . The road was to pass over the applicant company 's land .

On CARDINAL DATE the mayor of PERSON issued an order , under an expedited procedure , for the possession of the applicant company 's land . On an unspecified date the authorities took physical possession of the land and began the road - building works .

The applicant company appealed to ORG ( “ the ORG ” ) , contesting , inter alia , the lawfulness of the municipality 's resolution of CARDINAL DATE and of its occupation of the land .

By a judgment delivered on DATE , ORG allowed the applicant company 's appeal ; it quashed the municipality 's resolution of CARDINAL DATE and ruled that all subsequent action taken by it was invalid . The ORG found that the municipality had approved the road - building scheme without carrying out sufficient technical surveys beforehand . As a result , the approved scheme was unlawful and could not be considered as being in the public interest ( non atto a realizzare un interesse pubblico ) .

NORP That decision was lodged at the registry on CARDINAL DATE and became final on DATE .

By letters of CARDINAL DATE , CARDINAL DATE and DATE , the applicant company asked the GPE municipality to reinstate and return the land , pursuant to the judgment of the ORG . However , the municipality took no action .

The applicant company issued enforcement proceedings ( giudizio di ottemperanza ) in ORG for the reinstatement and return of the land in accordance with the judgment of DATE .

On DATE the ORG dismissed those proceedings on the ground that the judgment of CARDINAL DATE could not be enforced as there had been a constructive expropriation .

The ORG observed that although the judgment of CARDINAL DATE had quashed the resolution of the municipality of PERSON for procedural defects during the planning inquiry , that did not prevent the municipality from subsequently restarting the procedure and passing a fresh resolution – though it had not in any event done so . The ORG went on to say that as a result of the constructive - expropriation rule ( occupazione acquisitiva ) , the applicant company was no longer the owner of the land , which had become the property of the municipality of PERSON following completion of the road - building works . Despite its earlier judgment and the fact that the works carried out by the authorities were dangerous and contrary to the public interest , the fact that the authorities had completed the works meant that title to the land had been transferred . Consequently , restitution was impossible . However , as the transfer of property had been unlawful , the applicant company was entitled to claim damages in the civil courts .

The applicant company appealed against that decision to the Consiglio di Stato , its main contention being that , although the ORG had ruled that the authorities ' conduct was unlawful before they had completed the works , the authorities had ignored the judgment . The fact that the constructive - expropriation rule had been applied in the instant case rendered the judgment devoid of purpose , since the authorities were free to act unlawfully with the sole aim of acquiring title to the land .

By an order of CARDINAL DATE , Section V of the PERSON , before whom the appeal was pending , decided to refer the appeal to the full court . The order indicates that the section concerned considered that in the instant case the loss of title to the land as a result of the public works being carried out amounted to a denial of justice . If a decision of an administrative court favourable to the owner of the land , such as the decision of CARDINAL DATE , could not prevent the authorities taking possession of the land , the owner would be at their mercy . Furthermore , Section V of the PERSON noted that the municipality of PERSON had not reopened the planning inquiry or passed any further resolutions following the quashing of its resolution by the ORG .

In a decision of CARDINAL DATE the PERSON , sitting as a full court , dismissed the applicant company 's appeal . It held that the application of the constructive - expropriation rule had not entailed a denial of justice in the instant case . It said that the road - building works had been largely completed by DATE when the ORG had given its judgment . Thereafter , only additional work of minor importance had been carried out , such as the installation of lighting and the completion of the road surfacing . Consequently , CARDINAL DATE had to be considered the date when title to the land was transferred because it was at that point that the change of user of the land had become irreversible , as a result of the completion of the works . The land could no longer be returned owing to the constructive expropriation . That date was also the starting - point of the statutory limitation period for claiming damages .

This statute governs the expedited expropriation procedure , which permits authorities to start building before expropriation . Once a scheme has been declared to be in the public interest and the plans adopted , the authorities may make an expedited possession order , for a limited period not exceeding DATE , in respect of the land to be expropriated . The order will lapse if physical possession of the land is not taken within DATE after its issue . After the land has been possessed , a formal expropriation order must be made and compensation paid .

During DATE , a number of local authorities took possession of land using the expedited procedure but failed subsequently to issue an expropriation order . The NORP courts were confronted with cases in which the landowner had de facto lost use of the land as it had been possessed and building works in the public interest had been undertaken . The question arose whether the mere fact that works had been carried out meant that the owner had also lost title to the land .

There was a substantial divergence in the decisions of ORG over the effects of carrying out building works in the public interest on land where possession had been taken unlawfully . Unlawful possession means possession that is unlawful from the start , in other words obtained without authority , or that is initially authorised but subsequently became unlawful , either because the authority is quashed or because possession continues beyond the authorised period without an expropriation order being made .

Under CARDINAL line of case - law , the owner of land that had been possessed by the authorities did not lose ownership after the completion of the works in the public interest . However , he could not request reinstatement of the land ; his only remedy was to bring an action in damages for wrongful possession . No limitation period applied to such actions as the unlawful nature of the possession was continuing . The authorities could at any time issue a formal expropriation order . If they did so , the action in damages was transformed into a dispute over the compensation for expropriation , with damages for the loss of enjoyment of the land being due only for the period prior to the making of the expropriation order ( see , among other authorities , the judgments of ORG nos . CARDINAL of DATE ; CARDINAL of DATE ; and DATE and CARDINAL of DATE ) .

NORP Under a second line , the landowner did not lose property in the land and could request its reinstatement if the authorities had acted other than in the public interest ( see , for example , ORG judgments nos . CARDINAL of DATE and CARDINAL of DATE ) .

Under a third line , an owner dispossessed by the authorities automatically lost title to the land as soon as it had been altered irreversibly , that is to say on completion of the works in the public interest . He was PERSON entitled to claim damages ( the sole authority is ORG judgment no . CARDINAL of DATE ) .

In a judgment of CARDINAL DATE , ORG , sitting as a full court , resolved the conflict between the case - law authorities and adopted the third solution . In so doing , it established the constructive - expropriation rule ( accessione invertita or occupazione acquisitiva ) . Under the rule , the public authorities acquire title to the land from the outset before formal expropriation if , after taking possession of the land and irrespective of whether such possession is lawful , the works in the public interest are performed . If , initially , the land is possessed without authority , the transfer of property takes place when the works in the public interest are completed . If the taking of possession was authorised from the outset , property is transferred on the expiry of the authorised period of possession . In the same judgment , ORG stated that , on a constructive expropriation , the owner is entitled to compensation in full as the acquisition of the land has taken place without title ( sine titulo ) . However , compensation is not paid automatically : the owner must lodge a claim for damages . In addition , the right to compensation is subject to a DATE limitation period that applies to actions in tort ; the starting - point is the date the land is irreversibly altered .

Initially , it was held that no limitation period applied , since possession of the land without title was a continuing unlawful act ( see paragraph CARDINAL above ) . In its judgment no . DATE , ORG stated that the right to compensation was subject to a DATE limitation period ( see paragraph CARDINAL above ) . Subsequently , ORG said that a DATE limitation period should apply ( judgment nos . DATE ) . On CARDINAL DATE the full court of ORG decided the issue finally , holding that the limitation period is DATE and starts to run from the date the land is irreversibly altered .

Recent developments in the case - law show that the mechanism whereby carrying out building works in the public interest operates to transfer property in the land to the authorities is subject to exceptions .

In its judgment no . CARDINAL of DATE , the PERSON stated that there was no constructive expropriation where resolutions of the authorities and an expedited possession order had been quashed by the administrative courts , as otherwise the judicial decision would be devoid of purpose .

In judgment no . DATE , ORG , sitting as a full court , said that the authorities did not acquire ownership of the land if their resolutions and the declaration that expropriation was in the public interest were deemed to have been null and void from the outset . In such cases , the owner retained title to the land and could claim restitutio in integrum . In the alternative , he could seek damages . The unlawful nature of the possession in such cases was continuing and no limitation period applied .

In judgment no . DATE , ORG , sitting as a full court , said that there was no transfer of property where the declaration that expropriation was in the public interest had been annulled by the administrative courts . In such cases , therefore , the constructive - expropriation rule did not apply . The owner , who retained ownership of the land , was entitled to claim restitutio in integrum . If he brought an action in damages , that entailed a waiver of his right to restitution . The DATE limitation period started to run from DATE when the decision of the administrative court became final .

In judgment no . CARDINAL of DATE , ORG followed the decision of the full court and held that there was no transfer of property by constructive expropriation where the declaration that the building works were in the public interest was deemed to have been invalid from the outset .

In this judgment , ORG was called upon to decide firstly whether the constructive - expropriation rule was compatible with LAW . The court declared that question inadmissible on the ground that it had jurisdiction to examine statutory provisions only , not rules established by the courts . Secondly , it held that the application to an action for compensation of the DATE limitation period laid down by DATE of LAW for claims in tort was compatible with LAW . The fact that the authorities had become owners of the land by taking advantage of their own unlawful conduct did not pose any difficulty under LAW , since the public interest in the preservation of works for the public good outweighed the individual 's interest in the right of property .

Under ORG case - law on constructive expropriations , compensation in full , that is to say damages for the deprivation of the land , is due to the owner in consideration for the loss of ownership caused by the unlawful taking of possession .

The Finance Law of DATE ( LAW no . CARDINAL of DATE ) superseded that case - law by providing that the compensation payable on constructive expropriations could not exceed the amount due on formal expropriations . In judgment no . CARDINAL of DATE , ORG declared that provision unconstitutional .

Under Finance Law no . CARDINAL of DATE , which amended the provision that had been declared unconstitutional , compensation in full can not be awarded for dispossessions effected before DATE . In such cases , compensation can not exceed such amount , plus PERCENT , but without applying the PERCENT reduction , as would have been payable on a formal expropriation ( CARDINAL of the sum of the market value plus the income from the land , PERCENT ) . In a judgment no . CARDINAL of DATE , ORG held that that provision was compatible with LAW . However , in the same decision , it said that compensation in full , up to the market value of the land , could be claimed where the dispossession and deprivation of the land were not in the public interest .

The applicant company complained that it had become impossible for it to recover its land as a result of the constructive - expropriation rule , which had been applied despite the decision of ORG ( “ the ORG ” ) quashing the building scheme and the possession order as being unlawful and not in the public interest . It alleged a violation of LAW No . CARDINAL , which provides :

“ Every natural or legal person is entitled to the peaceful enjoyment of his possessions . No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law .

The preceding provisions shall not , however , in any way impair the right of a ORG to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties . ”

The applicant company maintained that the interference with its right to peaceful enjoyment of its possessions was not compatible with LAW No . CARDINAL .

It contended that constructive expropriation was contrary to the requirement of lawfulness for the following reasons : the authorities became owners of the land through unlawful conduct , namely by taking possession without title ; landowners could not avail themselves of the procedural guarantees available on a formal expropriation ; and the constructive - expropriation rule was not to be found in any statutory provision but had been established by the case - law and was considered to be “ living law ” .

NORP Subsequent events had led the applicant company to consider that the requirement of lawfulness had not been complied with in the instant case . It observed that it was unable to obtain restitution of the land despite the decision of ORG DATE which had become final – retrospectively quashing all the authorities ' acts , including the declaration that the scheme was in the public interest . The decision of the Consiglio di Stato refusing restitution of the land as a result of the application of the constructive - expropriation rule thus represented an unjustified interference with the applicant company 's right to the peaceful enjoyment of its possessions . The applicant company noted that the constructive - expropriation rule left landowners at the mercy of the authorities , who – with the sole aim of appropriating land DATE could carry out works that were not in the public interest after taking possession of the land wholly unlawfully and then refuse to comply with judicial decisions declaring their conduct unlawful .

The applicant company added that ORG had been called upon to rule solely on the lawfulness of the authorities ' acts and could not decide the merits of the case , that is to say whether the road - building works had been finished . On the other hand , the PERSON , on an appeal on the issue of enforcement ( ottemperanza ) , had jurisdiction to hear the merits and could therefore determine the date of completion of the works .

The applicant company observed finally that it was true that the measure of compensation claimable by an owner deprived of his land for works that were not in the public interest was compensation in full ( see paragraph CARDINAL above ) . However , damages could not be considered as compensation for the alleged loss even assuming they could be claimed by the applicant company . The applicant company was not asking the ORG to rule on the authorities ' conduct – ORG had already done so – but to give a decision on the PERSON dismissal of its application for restitution of the land . The applicant company concluded by inviting the ORG to restore legality .

The Government submitted that the loss of the land by the applicant company did not infringe LAW No . CARDINAL .

They observed firstly that the interference with the applicant company 's right to peaceful enjoyment of its possessions was “ provided for by law ” , namely a rule established by the courts that had been consistently and unanimously applied since ORG judgment no . DATE ( see paragraph CARDINAL above ) . The Government referred in particular to ORG judgments nos . CARDINAL of DATE and DATE , the PERSON judgment no . CARDINAL of DATE and the case - law of ORG . The rule established by the case - law thus constituted a clear , accessible and adequate legal norm and was an expression of the “ living law ” , that is to say the law effectively in force .

The Government observed secondly that the applicant company had been deprived of its land “ in the public interest ” . At the outset , the road - building scheme and the authorities ' resolutions had been in the public interest . Although it was true that the authorities ' acts had subsequently been quashed by ORG , the effect of the constructive - expropriation rule was that , once completed , municipal works became de facto a new scheme in the public interest . Completion of the works carried out by the authorities therefore had a dual effect : it entailed recognition that the work carried out was in the public interest and meant that the authorities ' conduct ceased to be unlawful .

As a result of that mechanism , the land could no longer be returned to the applicant company as it was irreversibly deemed to have become public .

The fact that the deprivation of possession was unlawful until the works had been completed nevertheless afforded the owner the right to claim pecuniary compensation in the form of damages before the relevant courts . The ORG maintained that it was still open to the applicant company in the instant case to bring an action in damages before the relevant courts , that such an action would enable it to obtain compensation in full and thus constituted a sufficient remedy for the interference with its right to peaceful enjoyment of its possessions . On that point , the Government referred to the judgment of the ORG in the case of PERSON v. GPE ( judgment of DATE , Reports of Judgments and Decisions PERSON ) .

An action in damages was possible because , in the ORG 's submission , the DATE limitation period which had started to run on DATE on completion of the works had been interrupted by the enforcement proceedings brought by the applicant company before the PERSON . The ORG added that , when dealing with an application for enforcement ( ottemperanza ) the PERSON had jurisdiction to make findings of fact , including as to the date when the works were completed . Consequently , there was no inconsistency between its finding and the fact that the decision of ORG had become final , as the latter could not decide issues of fact .

An action in damages would enable the applicant company to obtain compensation in full since the declaration that the works were in the public interest had been quashed by ORG . The Government referred on that point to ORG judgment no . CARDINAL of DATE ( see paragraph CARDINAL above ) .

Lastly the Government explained that proceedings for pecuniary reparation had to be instituted by the applicant company as it had failed in its attempt to obtain restitution of the land . Damages would compensate it for the interference with its right to peaceful enjoyment of its possessions .

The ORG reiterates that LAW No . CARDINAL contains CARDINAL distinct rules : “ The first rule , set out in the first sentence of the first paragraph , is of a general nature and enunciates the principle of the peaceful enjoyment of property ; the second rule , contained in the second sentence of the first paragraph , covers deprivation of possessions and subjects it to certain conditions ; the third rule , stated in the second paragraph , recognises that GPE are entitled , amongst other things , to control the use of property in accordance with the general interest ... The CARDINAL rules are not , however , ' distinct ' in the sense of being unconnected . The second and third rules are concerned with particular instances of interference with the right to peaceful enjoyment of property and should therefore be construed in the light of the general principle enunciated in the first rule ” ( see , among other authorities , the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , pp . CARDINAL , § DATE , partly following the terms of the ORG 's analysis in the PERSON and PERSON v. GPE judgment of DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ; see also the GPE v. GPE judgment of DATE , Series A no . CARDINAL-A , p. CARDINAL , § DATE , and GPE v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § DATE , ORG CARDINAL-II ) .

The ORG notes that it is common ground that there has been a deprivation of possessions .

In order to determine whether there has been a deprivation of possessions within the meaning of the second rule , the ORG must not confine itself to examining whether there has been dispossession or formal expropriation , it must look behind the appearances and investigate the realities of the situation complained of . Since the ORG is intended to guarantee rights that are “ practical and effective ” , it has to be ascertained whether that situation amounted to a de facto expropriation . ( see the GPE and PERSON judgment cited above , pp . DATE , § CARDINAL ) .

The ORG notes that in the present case , by applying the constructive - expropriation rule in its decision , the Consiglio di Stato deprived the applicant company of the possibility of obtaining restitution of its land . In the circumstances , the ORG finds that the effect of the judgment of the PERSON was to deprive the applicant company of its possessions within the meaning of the second sentence of the first paragraph of LAW No . CARDINAL ( see ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-VII ) .

NORP In order to be compatible with LAW No . CARDINAL , such an interference must be “ in the public interest ” , “ subject to the conditions provided for by law and by the general principles of international law ” and must strike a “ fair balance ” between the demands of the general interest of the community and the requirements of the protection of the individual 's fundamental rights ( see the PERSON and PERSON judgment cited above , p. CARDINAL , § CARDINAL ) . Furthermore , the issue of whether a fair balance has been struck “ becomes relevant only once it has been established that the interference in question satisfied the requirement of lawfulness and was not arbitrary ” ( see PERSON cited above , § DATE , and ORG v. GPE [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-I ) .

The ORG reiterates that the first and most important requirement of LAW No . CARDINAL is that any interference by a public authority with the peaceful enjoyment of possessions should be lawful . The rule of law , CARDINAL of the fundamental principles of a democratic society , is inherent in all the Articles of the Convention ( see PERSON cited above , § DATE ) and entails a duty on the part of the ORG or other public authority to comply with judicial orders or decisions against it .

The ORG does not consider it necessary to decide in the abstract whether the role in the continental - law system of a rule , such as the constructive - expropriation rule , established by the courts is comparable to that of statutory provisions . However , it reiterates that the requirement of lawfulness means that rules of domestic law must be sufficiently accessible , precise and foreseeable ( see the PERSON v. GPE judgment of CARDINAL DATE , Series A no . CARDINAL-A , pp . CARDINAL , § DATE , and the PERSON and Others v. the GPE judgment of CARDINAL DATE , Series A no . CARDINAL , p. CARDINAL , § CARDINAL ) .

In that connection , the ORG observes that the case - law on constructive expropriations has evolved in a way that has led to the rule being applied inconsistently ( see paragraphs CARDINAL to CARDINAL above ) , a factor which could result in unforeseeable or arbitrary outcomes and deprive litigants of effective protection of their rights and is , as a consequence , inconsistent with the requirement of lawfulness .

The ORG also notes that under the rule established by ORG in its judgment no . DATE every constructive expropriation follows the unlawful taking of possession of the land . The unlawfulness may exist at the outset or arise subsequently . The ORG has reservations as to the compatibility with the requirement of lawfulness of a mechanism which , generally , enables the authorities to benefit from an unlawful situation in which the landowner is presented with a fait accompli .

NORP In any event , the Court is required to verify whether the way in which the domestic law is interpreted and applied produces consequences that are consistent with the principles of the Convention .

In the instant case , the ORG notes that on DATE the ORG quashed with retrospective effect the resolution passed by the authorities as being unlawful and not in the public interest . However , that finding of ORG , in which it held that the occupation of the applicant company 's land was unlawful and not in the public interest ( see paragraph CARDINAL above ) , did not result in restitution of the land , since the Consiglio di Stato held that the transfer of property to the authorities had become irreversible .

The ORG considers that the interference in question was not compatible with LAW No . CARDINAL . That conclusion makes it unnecessary for it to examine whether a fair balance was struck between the requirements of the general interest of the community and the need to protect individual rights .

Consequently , there has been a violation of LAW No . CARDINAL .

Article CARDINAL of the ORG provides :

“ If the ORG finds that there has been a violation of the Convention or the Protocols thereto , and if the internal law of the High Contracting Party concerned allows only partial reparation to be made , the ORG shall , if necessary , afford just satisfaction to the injured party . ”

The applicant company sought restitution and reinstatement of the land in question , those being the only measures which in its submission would remedy the alleged violation , since they would enable the position obtaining before the violation of LAW No . CARDINAL to be re - established . The applicant company also claimed compensation for pecuniary damage to be determined on an equitable basis or , if appropriate , through the assessment of an expert ; it put the compensation at not less than CARDINAL,CARDINAL,CARDINAL Italian lire ( ITL ) plus interest and index - linking covering at minimum its loss of enjoyment of the land for the period of deprivation of possession until restitution . The applicant company further claimed ORG CARDINAL plus interest and index - linking for the non - pecuniary damage which the ORG 's conduct had caused it . Lastly , it requested reimbursement of the costs incurred before the national courts and of ORG CARDINAL for costs incurred before the ORG .

The Government stated that restitution of the land was precluded by the constructive expropriation and maintained that the applicant company could obtain compensation for the alleged violation through the action in damages which it could bring in the NORP courts . Referring to the judgments of the ORG in the cases of PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL-C ) , and PERSON , Ooms and PERSON v. GPE ( judgment of DATE ( Article CARDINAL ) , Series A no . CARDINAL ) , the Government argued that the applicant company 's claim for just satisfaction was inadmissible .

Should the ORG not uphold that objection , the ORG said that it would be impossible DATE for the reasons indicated by the Consiglio di Stato – for the land to be returned . They contended that restitution of the land was beyond the scope of LAW . As regards pecuniary damage , the Government submitted that no sum could be awarded under that head since it was still open to the applicant company to seek damages before the national courts . As to non - pecuniary damage , the Government maintained that a finding of a violation would constitute sufficient just satisfaction . The Government considered that the sum requested for costs was excessive and left the issue to the discretion of the ORG .

DATE . In the light of the reasons which led it to find a violation of LAW No . CARDINAL , the ORG considers that the ORG 's objection must be rejected . The act of the NORP government which the ORG held to be contrary to the LAW was not an expropriation that would have been legitimate but for the failure to pay fair compensation ; it was a taking by the ORG of land belonging to the applicant company , for which the latter had no redress ( see , mutatis mutandis , the PERSON v. GPE judgment of DATE , Series A no . ORG , pp . CARDINAL , § CARDINAL ) .

CARDINAL


Violation of Art. 14+8;Non-pecuniary damage - finding of violation sufficient

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

The applicant was born in DATE and lives in PERSON .

The applicant is the father of a daughter born out of wedlock in DATE . The applicant and the mother of the child separated in DATE . Their relationship had lasted DATE . Until DATE , the daughter lived with the applicant , whereas the mother had moved to another flat which was located in the same building . As the parents did not make a joint custody declaration ( gemeinsame GPE ) , the mother obtained sole custody ( alleinige PERSON ) pursuant to LAW of LAW ( Bürgerliches Gesetzbuch , see Relevant domestic law and practice below ) .

In DATE , the child moved to the mother ’s flat . Subsequently , the parents started to argue about the applicant ’s contact with the child . In DATE they reached an agreement with the assistance of the GPE - Nippes ORG ( GPE ) , according to which the applicant would have contact with the child every DATE TIME until DATE TIME , every DATE from TIME Monday TIME and CARDINAL of each holiday , amounting in total to DATE . In DATE , the applicant applied for a joint custody order , as the mother was unwilling to agree on a joint custody declaration , although otherwise both parents were cooperative and on good terms .

On DATE , ORG ( ORG ) dismissed the applicant ’s application . It found that there was no basis for a joint custody order . Under NORP law , joint custody for parents of children born out of wedlock could only be obtained through a joint declaration , marriage or a court order under LAW , the latter requiring the consent of the other parent . ORG considered DATE of LAW to be constitutional and referred to a leading judgment of ORG ( Bundesverfassungsgericht ) of CARDINAL DATE ( see § § DATE , below ) . Having regard to the fact that the pertinent legal provisions did not allow for a different decision , ORG did not consider it necessary to hear the concerned parties in person .

The applicant appealed and on DATE ORG ( ORG ) dismissed the appeal . It reasoned that , as the applicant and the mother were unmarried , the applicant ’s participation in the exercise of custody was only possible in accordance with LAW . The applicant and the mother had , however , not submitted the required joint custody declaration . In its judgment of CARDINAL DATE , ORG had found that LAW was constitutional with regard to the situation of parents of children born out of wedlock who had separated after DATE . ORG noted that the applicant and the mother of the child had separated in DATE . Thus , they had had a period of DATE before they separated in which they could have made a joint custody declaration . ORG of Appeal further noted that the new legislation , which had entered into force on DATE , had received public attention for a considerable period . Unmarried parents might have been expected therefore to have shown an interest in the matter and to have noticed the new legislation .

On DATE ORG , referring to the pertinent provisions of its Rules of Procedure , declined to consider the applicant ’s constitutional complaint , without giving further reasons .

The statutory provisions on custody and contact are to be found in GPE ( the “ LAW ” ) . LAW provides that the father and the mother have the right and the duty to exercise parental authority ( elterliche PERSON ) over a minor child .

As regards children born out of wedlock , custody was pursuant to the former LAW automatically obtained by the mother . That provision was however declared unconstitutional by ORG in DATE . On DATE , the amended LAW of DATE ( Reform zum Kindschaftsrecht , ORG , p. CARDINAL ) , entered into force to implement ORG judgment of DATE . The relevant law in LAW was changed as follows : under LAW , the parents of a minor child born out of wedlock may exercise joint custody if they make a declaration to that effect ( joint custody declaration ) or if they marry . Otherwise Article CARDINAL § CARDINAL provides that the mother obtains sole custody .

If the parents have not merely temporarily separated and if the mother has obtained sole custody in accordance with LAW , LAW provides that the family court may transfer sole custody to the father if he lodges the relevant application with the consent of the mother . The application is to be granted if the transfer serves the child ’s interest . LAW CARDINAL of LAW provides that in the case of a transfer of the right to custody under LAW of LAW , the family court may subsequently order joint custody on the application of CARDINAL parent with the consent of the other parent unless it would be to the detriment of the child . The same applies if the transfer of custody under LAW of LAW is later annulled .

By contrast , parents exercising joint parental authority before their separation either because the child was born in wedlock , the parents have married following the child ’s birth or they have made a joint custody declaration , retain joint custody following their separation unless the court at the request of CARDINAL parent awards sole custody to the latter in accordance with the child ’s best interest pursuant to LAW .

Under LAW , the family court may order the necessary protective measures if the child ’s physical , psychological or mental well - being is threatened by negligence and if the parents are unwilling to take those measures themselves . Measures which result in the separation of the child from one parent are admissible only if the child would be at risk otherwise ( LAW CARDINAL of LAW ) .

On DATE , ORG found that LAW was unconstitutional because it lacked a transitional period for unmarried couples with children who were living together in DATE but who had separated before the amended LAW entered into force on DATE ( that is , those who were unable to make a joint custody declaration before DATE ) . In order to resolve the above - mentioned constitutional flaws , the NORP legislator introduced LAW ( a ) of LAW to LAW ( Einführungsgesetz in ORG ) , on DATE , according to which a court may substitute the mother ’s consent to joint custody if an unmarried couple have a child born out of wedlock , have lived together with the child and were separated before DATE , provided that joint custody would serve the best interests of the child ( PERSON ) .

In its judgment of DATE , ORG also held that LAW , apart from the lack of a transition period , did not breach the right to respect for the family life of fathers whose children were born out of wedlock . Parents who were married had obliged themselves on marriage to take responsibility for each other and their children . In contrast to this , the legislator could not assume that parents of children born out of wedlock lived together or wanted to take responsibility for each other . There was insufficient evidence that a father of a child born out of wedlock would want to bear joint responsibility as a general rule . The child ’s well - being therefore demanded that the child had a person at birth who could act for it in a legally binding way . In view of the very different life conditions into which those children were born , generally it was justifiable to grant sole custody to the mother , and not to the father or to both parents . This legislation could also not be objected to from a constitutional point of view because the legislature had given both parents of children born out of wedlock the possibility of obtaining custody through a joint declaration .

The Federal Constitutional Court found that the legislator could legitimately assume that joint custody which was exercised against the will of CARDINAL parent would have more disadvantages than advantages for a child born out of wedlock . Joint custody required a minimum of agreement between the parents . If the parents were unable or unwilling to cooperate , joint custody might run counter to the child ’s well - being . The legislator assumed that the will to exercise joint custody which parents explicitly expressed upon marriage also showed their will to cooperate . Unmarried parents could express this will to cooperate through a joint custody declaration . The father ’s right to custody indeed depended on the mother ’s willingness to exercise joint custody , but the mother in turn could not demand joint custody without the father ’s consent . The parents could thus only exercise joint custody if they both wanted to . That limitation on the father ’s right to respect for his family life was not unjustified , given that the joint custody exercised by a married couple was based on their marriage . The applicable law gave unmarried couples the possibility of exercising joint custody , in particular , if they lived together with the child and not after the couple had separated . The legislator could legitimately assume that , if the parents lived together but the mother refused to make a joint custody declaration , the case was an exceptional CARDINAL in which the mother had serious reasons for the refusal which were based on the child ’s interest . Given this assumption , the applicable law did not infringe the father ’s right to respect for his family life by not providing for a judicial review . In the event of such serious reasons it could not be expected that the courts would consider joint custody to be in the child ’s best interest .

In view of the fact that this legal structure had only recently been established , it had not been possible to ascertain whether there was a substantial number of similar cases where joint custody was in dispute or crucially , to reach conclusions as to why this should be the case .

ORG stated that the legislator was obliged to keep developments under observation and to verify whether the assumptions it had made when forming the rules in question were sustainable in the face of reality . If this proved not to be the case , the legislator was obliged to revise the legislation and to provide fathers with the adequate possibility of obtaining custody rights .

A survey on comparative law taking into account the national laws of a selection of Member States of ORG shows that basically all Member GPE included in the survey provide for joint parental authority by unmarried parents over their children born out of wedlock . The main elements referred to as a basis for allowing joint parental authority for unmarried parents are the establishment of paternity and the GPE agreement to exercise joint authority .

NORP However , the solutions in the Member GPE vary as regards the attribution of joint parental authority for children born out of wedlock in the event no agreement between the parents can be reached in this respect .

In only a limited number of countries do the statutory regulations explicitly address this issue . In a few countries , such as GPE , GPE and GPE , the national law stipulates that the exercise of joint parental authority of unmarried parents requires the consent of both parents and thus implies that the non - consenting parent has a right of veto . By contrast , the laws in GPE , GPE and GPE appear to provide for a joint exercise of parental authority even without the GPE consent .

In some Member GPE such as GPE and GPE , while the law itself is not clear on the subject , the domestic courts have interpreted the applicable provisions so as to allow joint parental authority only with the consent of the parents , whereas for example ORG has held that the national law has to be interpreted so as to enable the father of a child born out of wedlock to request joint parental authority with the mother even though the latter disagrees . A similar approach seems to be followed in GPE .

With the exception of the few countries where a right of veto of CARDINAL parent is explicitly stipulated in national law , the most common solution put forward by national legislations is that a court decides on the outcome of a corresponding dispute between the parents at the request of CARDINAL of the parents bearing in mind the best interests of the child . All Member GPE emphasise the importance of the child ’s best interest in decisions regarding the attribution of custody . In determining the child ’s best interest in this connection domestic courts commonly take into consideration the positions of the parents and the child , as regards , inter alia , the demonstrable interest in and commitment to the child by the respective parent .

In summary , and as also pointed out by the ORG , the survey confirms that while different approaches exist in GPE , the majority provide for paternal participation in custody if the parents were not married to each other , either irrespective of the mother ’s will or at least by court order following an evaluation of the child ’s interests .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicants , PERSON ( “ the first applicant ” ) and PERSON ( “ the second applicant ” ) , are NORP nationals who were born in DATE and DATE respectively and live in GPE . The respondent Government are represented by their Agent , Mr PERSON .

In DATE the applicants’ neighbour , PERSON , started reconstruction work on her apartment . The work was completed on an unspecified date in DATE .

On DATE the applicants instituted proceedings in ORG of GPE ( “ the ORG ” ) against PERSON claiming compensation for pecuniary damage . In particular , the applicants alleged that the work had caused partial peeling of the parquet floor in the apartment and damage to tiles in the bathroom .

On DATE ORG , following a request by the applicants , ordered a forensic building report to be prepared by ORG ( “ the Institute ” ) . The court ruled that the fee for the examination should be paid by the applicants .

By a letter of DATE the director of ORG informed ORG that if the fee was not paid within DATE the examination would be cancelled . Since the court failed to inform the applicants about the above letter , on DATE the director of the ORG sent the case file back to the court without examining the request .

On DATE ORG again ordered a forensic building report to be prepared by the ORG . The court suspended the proceedings pending its conclusions .

The report reached the court on DATE .

On DATE the court resumed the proceedings .

In the period from DATE to DATE the court scheduled some QUANTITY hearings . CARDINAL of them were adjourned because PERSON had failed to appear before the court and one because the judge was involved in other proceedings . CARDINAL hearing was adjourned following an application by the first applicant . ORG sent several requests to the local tax office , the Minister of the ORG and other institutions in order to ascertain PERSON whereabouts .

On DATE the applicants slightly amended their claims .

On DATE ORG dismissed the applicants’ claims as unsubstantiated .

On DATE ORG upheld that judgment .

The applicants appealed in cassation . On DATE ORG declined to consider the ORG appeal in cassation because the applicants had failed to comply with procedural formalities . The court gave the applicants a time - limit for rectifying the shortcomings . On an unspecified date the applicants rectified the shortcomings and re - submitted the appeal in cassation .

On DATE ORG refused the ORG request for leave to appeal in cassation as unsubstantiated .

In DATE the applicants instituted proceedings in ORG against PERSON , seeking compensation for non - pecuniary damage allegedly caused by noise and vibration resulting from the reconstruction work .

On DATE the court ruled in part for the applicants , awarding CARDINAL NORP hryvnias ( ORG ) to the first applicant and UAH CARDINAL,CARDINAL to the second applicant . The applicants received the sums on DATE and DATE respectively .

On an unspecified date ORG for ORG instituted proceedings against PERSON , requesting the court to order her to undo the reconstruction work that she had carried out in her apartment .

On DATE ORG allowed this claim . The judgment remains unenforced .

On DATE the ORG acquitted Mr Z. of inflicting bodily injuries on the second applicant , holding that there was no corpus delicti .

On DATE the ORG quashed that decision and remitted the case to ORG , which , on DATE , acquitted Mr Z.

On DATE ORG upheld that judgment , which therefore became final .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE .

The applicant is the owner of a flat in GPE which he had let to G.F.

In a registered letter of DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on CARDINAL DATE and asked him to vacate the premises by that date .

In a writ served on the tenant on DATE the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the LOC be vacated by DATE .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for his daughter .

On DATE , the applicant served notice on the tenant requiring him to vacate the LOC .

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE the bailiff made CARDINAL attempts to recover possession .

On DATE , the applicant made a second statutory declaration that he urgently required the premises as accommodation for his daughter .

Each attempt of the bailiff proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , the applicant served notice again on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

On DATE , the tenant asked ORG to set a fresh date for the enforcement of the order for possession pursuant to LAW . CARDINAL .

On DATE , the bailiff attempted to recover possession of the applicant ’s apartment without success due to the lack of police assistance . He adjourned the enforcement proceedings to DATE .

On DATE , the applicant recovered possession of his flat .

The relevant domestic law is described in the ORG ’s judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V.


Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

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

ORG ( “ the Government ” ) were represented by PERSON , Representative of GPE at ORG .

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

On DATE local policemen arrested the applicant while he was driving his truck near the border between GPE and GPE in LOC and charged him with smuggling .

Further examination of the truck in the presence of witnesses proved that the applicant was carrying merchandise bypassing customs checks .

The applicant was then brought to the local police station for questioning . In a short while his lawyer arrived there . He demanded a meeting with the applicant , but the policemen refused to let him in .

The applicant alleged that while he was at the police station , officer PERSON beat him up in an attempt to force him to confess . The applicant refused to give any statements . It appears that after some time he was released and the subsequent investigative actions took place in the presence of his lawyer .

DATE , the applicant was examined by a forensic expert who reached the following conclusions :

“ ... scratches on the right side of the forehead , small scratches over the right eyebrow , bruises in the area of the right radiocarpal articulation . ”

On CARDINAL of the following days the applicant requested that the local prosecutor ’s office open criminal proceedings against officer PERSON on account of the alleged beatings .

On DATE an investigator from the ORG town prosecutor ’s office , having examined the results of the applicant ’s forensic examination and the testimonies of PERSON and the other policemen who had met the applicant on DATE of the event , decided not to open a criminal case .

On DATE the deputy regional prosecutor of ORG rejected the applicant ’s complaint against the above decision as groundless . It appears that the applicant made no further attempts to appeal against these decisions .

As indicated above , on DATE the applicant was arrested , brought to the police station and charged with smuggling . The applicant claims that while he was at the police station his lawyer tried to reach him , but he was denied access by other police officers .

On DATE an investigator allegedly asked the applicant ’s lawyer to sign an undertaking to keep all information concerning the investigation confidential , but he refused to do so .

The trial commenced on an unspecified date . During the proceedings the applicant submitted that some evidence was inadmissible as he had been subjected to “ physical violence ” at the police station . He gave no further details in that regard .

At the hearing of DATE the defence lodged the motion seeking to question witness PERSON The same day the trial court refused the request .

On DATE the ORG found the applicant guilty of smuggling and gave him a suspended sentence of DATE imprisonment .

On DATE the applicant lodged a statement of appeal drafted with the help of his lawyer . He claimed that the trial court had assessed the facts of his case incorrectly and had applied the domestic law wrongly . He also claimed that the proposal that his lawyer should sign an undertaking to keep the information about the investigation confidential had infringed his right to defence .

On DATE ORG upheld the judgment on appeal .

The Code of Criminal Procedure of GPE in force since DATE ( Law no . CARDINAL of DATE , the “ CCrP ” ) , establishes that a criminal investigation may be initiated by an investigator or prosecutor upon the complaint of an individual ( Articles CARDINAL and CARDINAL ) . Within DATE of receiving such a complaint , the investigator or prosecutor must carry out a preliminary inquiry and take one of the following decisions : ( CARDINAL ) to open criminal proceedings if there are reasons to believe that a crime has been committed ; ( CARDINAL ) to refuse to open criminal proceedings if the inquiry reveals that there are no grounds to initiate a criminal investigation ; or ( CARDINAL ) to refer the complaint to the relevant investigative authority . The complainant must be notified of any decision taken . Refusal to open criminal proceedings is amenable to appeal to a higher - ranking prosecutor or a court of general jurisdiction ( Articles CARDINAL , CARDINAL and CARDINAL ) . A prosecutor is responsible for overall supervision of the investigation ( LAW ) . He or she can order specific investigative actions , transfer the case from one investigator to another or order an additional investigation . LAW ORG provides for judicial review of decisions by investigators and prosecutors that might infringe the constitutional rights of participants in proceedings or prevent access to court .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

Karel Jungwiert;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE and lives in the town of GPE .

NORP In DATE the applicant instituted proceedings in the ORG - gorodskoy ORG ( “ the court ” ) against his former employer , a ORG company “ GPE ” ( “ the company ” ) , claiming compensation for damages resulting from his work - related disease .

On DATE the court awarded the applicant ORG CARDINAL,CARDINAL.CARDINAL . By the same judgment he was entitled to receive an allowance of ORG CARDINAL.CARDINAL , to be paid DATE . On DATE ORG ( “ the Bailiffs’ Service ” ) initiated enforcement proceedings .

On DATE the judgment was enforced in part ; the applicant received UAH CARDINAL .

In DATE the applicant instituted proceedings in the court against the company and ORG ( “ the Fund ” ) seeking re - calculation of the DATE allowance paid to him for his work - related disability and claiming payment of losses sustained on account of the erroneous calculation .

On DATE the court allowed the applicant ’s claims and ordered the company to pay the applicant UAH CARDINAL,CARDINAL.CARDINAL . By the same judgment he was entitled to receive a DATE allowance of UAH MONEY , to be paid by the ORG as from DATE . On DATE ORG initiated enforcement proceedings .

In DATE the applicant instituted court proceedings against ORG seeking compensation for damages caused to him by the non - enforcement of the judgments . On DATE the court found against the applicant . On DATE ORG upheld this judgment . The applicant did not appeal in cassation .

On DATE ORG returned the enforcement writs in respect of the judgments of DATE and DATE to the applicant .

NORP The company failed to enforce the judgments of CARDINAL DATE and DATE in full . The ORG has no judgment debts vis - à - vis the applicant .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .