Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant bought a car from a Mr I.G.

On DATE the car was impounded by the police who explained to the applicant that it had been stolen . On DATE the applicant requested the return of the car but received no reply .

On DATE a criminal investigation was opened by ORG against a Mr N.P. for forgery of customs ' declarations for the importation of cars , one of which was the applicant 's . The prosecutor in charge of the case ordered that the car be held as a piece of evidence .

In DATE and DATE the applicant CARDINAL times requested from the prosecution authorities the return of his car , but received no reply .

On DATE the car was handed over to ORG by order of ORG . On DATE the head of ORG made a penal order whereby he confiscated the car on the ground that it had been illegally imported into the country .

The applicant appealed against the penal order to ORG . In a judgment of DATE that court quashed the order and on DATE the car was returned to the applicant .

On DATE the applicant brought an action for damages against ORG and ORG , complaining that the impounding of his car and the unlawful order for its confiscation had prevented him from using it during DATE .

Noting that the applicant had failed to adduce written evidence in support of his allegations , ORG instructed him to do so within DATE . The applicant complied with these instructions and the court set the case down for hearing .

The first hearing took place on DATE . The court noted the absence of a representative of CARDINAL of the defendants , ORG , and ordered that it be summoned for the next hearing . The applicant 's lawyer requested the court to subpoena as a witness the prosecutor who had ordered the car to be handed over to ORG . The court rejected the request by an order of CARDINAL DATE , holding that the prosecutor 's actions could be proved through the official documents he had made and that his testimony would therefore be superfluous .

The second hearing was held on DATE . No representative of ORG appeared but a prosecutor was present in his capacity of “ special party ” to the proceedings . The “ special party ” prosecutor requested that the proceedings be stayed in order to take into account the pending criminal investigation against PERSON , as it related to the same car . In particular , there was information that the number on the engine and on the chassis of the car had been forged and that it had been illegally imported . The applicant 's lawyer agreed and requested that the actions against ORG and against ORG be severed . The court refused to sever the actions and acceded to the request for staying the proceedings , finding that there existed criminal elements the determination of which was decisive for the outcome of the civil dispute before it , within the meaning of LAW ( d ) of LAW ( “ the ORG ” ) .

On DATE the applicant appealed against the order for staying the proceedings to ORG . He argued that the outcome of the criminal investigation had nothing to do with the civil proceedings . Moreover , there were no criminal elements whose determination was decisive for the outcome of the civil dispute , as the prosecution authorities had transmitted the car to the customs authorities , thus excluding it from the evidence in the criminal investigation . The appeal was filed with ORG . Noting that the applicant had not paid the requisite fee , ORG refused to proceed with the appeal , instructing the applicant to pay the fee . The applicant did so and on DATE , after ORG had filed its answer , ORG forwarded the appeal to ORG . In a final order of CARDINAL DATE ORG dismissed the appeal , confirming the lower court 's holding that there existed criminal elements whose determination was decisive for the outcome of the civil dispute , within the meaning of LAW ( d ) of the ORG . In particular , the car bought by the applicant had been impounded as a piece of evidence . The fact that later it had later been delivered to the customs authorities did not change that . Nor was it significant that the criminal proceedings were against CARDINAL party and that the penal order against the applicant had been quashed , because the applicant could still suffer the negative consequences of the criminal proceedings , e.g. the forfeiture of the car .

On DATE the applicant 's lawyer requested ORG to resume the proceedings . In view of the request , on DATE the court sent a letter to ORG , asking whether the criminal investigation against PERSON ORG had been completed . ORG informed the court that the proceedings were still pending .

In DATE ORG made several inquiries about the stage reached in the investigation against Mr PERSON By letters of DATE , DATE , DATE and DATE ORG informed the court that the criminal proceedings were still pending , without specifying whether it was undertaking any investigative actions .

Following a further inquiry by the court , ORG notified it by a letter of CARDINAL DATE that the case had been sent to ORG on DATE . Taking into consideration that the investigation was still pending , by an order of CARDINAL DATE ORG refused to resume the proceedings . It seems that there was no activity during the period between CARDINAL in the criminal investigation against Mr N.P.

On DATE ORG discontinued the criminal proceedings against Mr N.P.

ORG then resumed the proceedings and held a hearing on DATE . The applicant requested a change in the names of the defendants , as during the time when the proceedings had been stayed ORG had been renamed ORG and ORG had become ORG at ORG . The applicant also increased the amount of his claim for damages and requested leave to call one witness . The defendant ORG requested the court to include the case - file of the investigation against PERSON in the record . The court acceded to all of the parties ' requests and adjourned the case .

Three hearings listed for CARDINAL and CARDINAL May and DATE did not take place because ORG had not been duly summoned .

A hearing listed for DATE failed to take place because ORG , despite being duly summoned , did not send a representative . Its counsel requested the court in writing to adjourn the case because he was ill and could not attend .

The court held a hearing on DATE . The applicant and his lawyer did not appear . The court found that the case was ready for adjudication and reserved judgment .

On DATE the applicant 's lawyer requested the court to reopen the oral proceedings , as he had been unable to organise his defence prior to the DATE hearing because DATE and DATE the casefile had been sent to ORG in GPE and he could not therefore prepare for the hearing . The court acceded to his request and scheduled a hearing for DATE .

The last hearing before ORG was held on DATE . The court heard the applicant 's witness and the parties ' closing arguments .

In a judgment of CARDINAL DATE ORG partly allowed the applicant 's claim for damages against ORG , awarding him MONEY , and dismissed his claim against ORG .

On DATE the applicant appealed against the judgment to ORG .

ORG held a hearing on DATE . The applicant and ORG did not appear . ORG requested the court to include in the record the casefile of the administrative case in which ORG had quashed the penal order for the confiscation of the applicant 's car . The court granted the request and adjourned the case until DATE .

A hearing took place on DATE . The casefile of the administrative case was not produced , because it had already been destroyed in the court 's archive . The court adjourned the case until DATE .

On DATE ( date of the latest information from the parties ) the proceedings were still pending before ORG .

The ORG provides , in Articles CARDINAL § CARDINAL ( d ) and CARDINAL , that a court examining a civil action :

“ CARDINAL . ... shall stay the proceedings :

( d ) whenever criminal elements , the determination of which is decisive for the outcome of the civil dispute , are discovered in the course of the civil proceedings ...

Proceedings which have been stayed shall be resumed ex officio or upon a party 's request after the respective obstacles have been removed ... ”

Article CARDINAL of the ORG provides :

“ The findings contained in a final judgment of a criminal court and concerning the issue whether the act in question has been committed , its unlawfulness and the perpetrator 's guilt are binding on the civil court when it examines the civil consequences of the criminal act . ”

In a judgment of DATE ( реш. № CARDINAL от CARDINAL януари DATE г. по гр.д. ORG DATE г. , ORG ) ORG of ORG held :

“ In principle the fact of a crime may only be established under the procedures of LAW . That is why , when an alleged civil right derives from a fact which constitutes a crime under LAW , the civil court , according to LAW ORG ] , is obliged to stay the civil proceedings . This is necessary in order to respect the decision of the criminal court . It is mandatory for the civil courts regardless of the crime in issue . The mandatory binding force of the decisions of the criminal courts is set out in LAW ORG ] . ”

The new Article CARDINALa of the ORG , adopted in DATE , provides :

“ CARDINAL . Each party may lodge a complaint about delays at every stage of the case , including after oral argument , when the examination of the case , the delivery of judgment or the transmitting of an appeal against a judgment is unduly delayed .

NORP The complaint about delays shall be lodged directly with the higher court , no copies shall be served on the other party , and no ORG fee shall be due . The lodging of a complaint about delays shall not be limited by time .

NORP The chairperson of the court with which the complaint has been lodged shall request the case file and shall immediately examine the complaint in private . His instructions as to the acts to be performed by the court shall be mandatory . His order shall not be subject to appeal and shall be sent immediately together with the case file to the court against which the complaint has been filed .

NORP In case he determines that there has been [ undue delay ] , the chairperson of the higher court may make a proposal to the disciplinary panel of ORG for the taking of disciplinary action . ”


Violation of P1-1;Non-pecuniary damage - award;Pecuniary damage - Government to enforce a demolition order

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicants are spouses . They were both born in DATE and currently live in GPE .

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

The applicants and a certain GPE were co - owners of a house and CARDINAL other buildings in GPE .

On DATE M.P. obtained a building permit for the partial reconstruction of the house co - owned by the applicants , authorising him to convert his flat into a duplex and enlarge it by QUANTITY squared .

M.P. started with the construction work immediately thereafter .

On DATE , on the basis of an on - site intervention , the Inspectorate of the Voždovac Municipality ( “ the Municipality ” ) concluded that GPE was not performing the construction work in line with the building permit . It therefore ordered him to stop all work and to file a request for a new permit .

On DATE the ORG ordered GPE to demolish , within DATE , that part of the construction which had been erected contrary to the building permit .

On DATE the ORG issued an enforcement order in this respect .

Meanwhile , GPE filed a request for a new building permit .

On DATE the Municipality issued a favourable interim decision .

On DATE the second - instance authority quashed this decision , remitting the case for re - consideration .

On DATE the GPE dismissed PERSON 's request for a new building permit , finding that his plan did not satisfy the requirements prescribed by the relevant domestic legislation .

On DATE , a technical report noted that “ following the recent precipitation ” and the construction work undertaken by GPE the applicants ' property had been seriously damaged . In particular , mortar had fallen , walls had cracked , and extensive damp and leakages had appeared throughout the LOC .

On DATE and DATE the applicants filed criminal complaints against unidentified officials employed with the GPE , alleging abuse of office .

On DATE this complaint was rejected by ORG ( Peto opštinsko javno tužilaštvo ) in GPE .

Following the entry into force of the new LAW in DATE , ORG filed a request with the Municipality for the “ legalisation ” of the reconstruction of his flat ( see paragraphs DATE below ) .

On DATE and DATE the applicants lodged submissions opposing the said legalisation .

On DATE the Municipality informed the applicants that GPE had filed a request for legalisation .

On DATE GPE supplemented this request .

NORP Over DATE , the applicants had repeatedly requested enforcement of the demolition order dated DATE , but to no avail .

DATE defines a party to an administrative case as a person at whose request the proceedings have been instituted , a person against whom the proceedings have been brought , or , indeed , any other person who is entitled to participate in the proceedings with a view to protecting his or her rights or interests .

Article CARDINAL § CARDINAL provides that an administrative decision shall be executed once it becomes enforceable .

Article CARDINAL § CARDINAL provides , inter alia , that the authority in charge of the enforcement of an administrative decision shall , ex officio or at the request of a party , issue an enforcement order . Such an order shall declare that the decision has become enforceable and determine the means and object of the enforcement .

Article CARDINAL provides , inter alia , that enforcement proceedings shall be terminated ex officio if the enforcement title itself has been repealed in the meantime . These proceedings shall , however , be stayed “ if it is established ” that an interim decision , which was being executed , has subsequently been replaced by a contradicting separate “ decision in respect of the main issue ” .

Article CARDINAL provided , inter alia , that an area 's development was to be carried out in such a way as to : ( i ) protect its natural and man - made characteristics ; ( ii ) respect the relevant planning regulations ; ( iii ) preserve its natural resources ; and ( iv ) protect the environment , as well as the public interest in general .

This Act was repealed on CARDINAL DATE .

Articles CARDINAL - CARDINAL provide , inter alia , that the owner of a building , a flat or , indeed , of any other object erected or reconstructed in the absence of a valid building permit shall have to inform the competent administrative authority ( “ the authority ” ) of this situation by CARDINAL DATE . This authority shall have DATE to advise the owner about the relevant conditions for the “ legalisation ” of the construction in question , as well as the documents needed in this regard . The owner himself shall then have DATE to comply with this instruction . Should he do so and depending on whether the relevant conditions have been met , the authority shall accept the legalisation sought . In the event , however , that the owner does not abide by the set deadlines , the authority shall adopt a demolition order in respect of the said construction .

Article CARDINAL provides , inter alia , that requests concerning the “ issuance of building permits ” , as well as those to do with “ other individual rights and obligations ” , lodged before the entry into force of this Act , shall be dealt with on the basis of prior legislation .

The Planning and Construction Act entered into force on CARDINAL DATE .

Article CARDINAL defines different grounds for claiming civil compensation .

Article CARDINAL § CARDINAL provides that a legal entity is liable for any damage caused by CARDINAL of “ its own bodies ” .

On DATE ORG ( PERSON ) in GPE ordered GPE Grad to pay the plaintiff a specified amount of compensation on account of the lost rent . The court relied , inter alia , on LAW and explained that the plaintiff had been unable to lease his flat for a certain period of time as a result of the LOC 's failure to evict a protected tenant from the flat in question ( ORG br . CARDINAL/CARDINAL ) . On DATE this judgment was upheld by ORG ( Okružni sud ) in GPE ( Gž . br . CARDINAL ) .

On DATE ORG in ORG ordered the respondent ORG to pay the plaintiff a specified amount of compensation for the breach of his rights guaranteed under LAW br . CARDINAL/CARDINAL ) . On DATE this judgment was upheld by ORG in ORG ( Gž . br . CARDINAL/CARDINAL ) . Based on such jurisprudence , the ORG maintained that the NORP courts were willing to directly apply the LAW , as well as the Protocols thereto .

Under LAW § CARDINAL if a builder was aware of the fact that he was building on land owned by another , or was not aware of this but the land 's owner had immediately expressed his opposition to the work undertaken , the latter shall have the right to : ( i ) seek recognition of his ownership of the building erected ; ( ii ) request that this building be demolished ; or ( iii ) seek compensation from the builder for the usurped land , based on its market price .

Under LAW , inter alia , a co - owner shall be entitled to file a claim for the protection of his or her rights in respect of an entire property , as well as the protection of that individual 's stake therein .

Under LAW and CARDINAL , should a ORG reject a criminal complaint filed in respect of a crime prosecuted ex officio , the victim may personally take over the prosecution of his own case before a court and simultaneously file a claim for any civil damages suffered .


Preliminary objection dismissed (exhaustion);Violation of Art 6-1;Not necessary to examine Art 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - award;Costs and expenses award - Convention proceedings;Costs and expenses (domestic proceedings) - claim dismissed

The applicants , PERSON , PERSON , Mr PERSON , PERSON Mykhailenko , PERSON , PERSON , Mr PERSON , and PERSON are NORP nationals , who were born in DATE , and DATE , respectively . PERSON lives in the town of PERSON and the others live in GPE .

In DATE the applicants gave ORG certain amounts of money in order that it could buy cars for them . The company concluded a contract with a third person , pursuant to which the latter undertook to provide the applicants with the cars .

In DATE ORG , acting in the interests of the applicants , together with CARDINAL other persons , instituted proceedings in ORG of Kyiv ( the “ FAC ” ) against the company for failure to fulfil its contractual obligations , namely , to provide the applicants and other persons concerned with the cars . The company denied that it had any contractual obligations in this respect .

On DATE the court ordered an expert examination and suspended the proceedings . On DATE the expert report was completed and the proceedings were resumed .

NORP In DATE the applicants , together with CARDINAL other persons , lodged with the same court their separate claims in respect of the subject matter of the proceedings . The plaintiffs sought the recovery of the amounts which they had paid to the company and compensation .

On DATE the court ruled against the applicants , finding no fault on the part of the company .

On DATE ORG ( the “ ORG

On DATE the court ordered an additional expert examination which was completed on DATE .

On DATE ORG found in part for the applicants . On DATE the same court adopted a supplementary decision , partly changing the operative part of its judgment of DATE , which still remained favourable to the applicants . These decisions were not appealed against and became final .

On DATE the President of ORG lodged a protest with the ORG of that court , seeking initiation of supervisory review proceedings in the case . On DATE the ORG allowed the protest , quashed the decisions of DATE and CARDINAL DATE , and remitted the case for a fresh consideration . It held that the first instance court had failed to establish the legal nature of the contract between the applicants and the company .

On an unspecified date PERSON N. , one of the plaintiffs in the case , requested his claims to be disjoined . On DATE ORG allowed his request .

On DATE ORG found in part for Mr N. This decision was not appealed against and became final .

On DATE the Deputy President of ORG lodged a protest with the ORG of ORG , seeking initiation of supervisory review proceedings in the case . On DATE the ORG allowed the protest , quashed the judgment of DATE , and remitted the case for a fresh consideration . It mostly reiterated the reasons for its decision of DATE .

On an unspecified date Mr ORG joined the original proceedings as a co - plaintiff .

In the course of the proceedings DATE and DATE the applicants amended the claims twice .

Of around CARDINAL hearings held during the aforementioned period CARDINAL were adjourned due to the absence or at the request of the applicants ' representatives . CARDINAL hearings were adjourned due to the absence of the representatives of the defendant company and QUANTITY hearings were postponed because of the witnesses ' failure to appear . CARDINAL hearings were not held due to the absence of the judge .

On DATE , DATE , CARDINAL DATE , and CARDINAL DATE the court fined the representatives of the defendant company for their repeated failure to appear before the court . CARDINAL of the witnesses called by the court was fined twice for the same reasons .

On DATE ORG found in part for the applicants . This decision was not appealed against and became final .

On DATE the Deputy President of ORG lodged a protest with the ORG of ORG , seeking initiation of supervisory review proceedings in the case . On DATE the ORG allowed the protest , quashed the judgment of DATE , and remitted the case for a fresh consideration . It held that the first instance court had wrongly applied the law .

On DATE the President of ORG requested the President of ORG to remit the case to ORG , as this case had been reconsidered by ORG on CARDINAL occasions .

On DATE the President of ORG granted the request of the President of ORG and remitted the case to a judge of ORG for a fresh consideration .

On DATE ORG ( the former ORG ) , acting as a court of first instance , scheduled a hearing for DATE , which was not held because of the judge 's illness .

DATE and DATE there were CARDINAL hearings held , out of which CARDINAL were adjourned at the request of the defendant company and CARDINAL was postponed due to the submission of the amended claims by the applicants ' representative .

On DATE ORG found against the applicants .

On DATE the applicants ' representative lodged an appeal in cassation .

On DATE ORG and Mr PERSON , acting in the interests of all the applicants and other claimants , lodged a separate appeal in cassation .

On DATE the ORG granted the applicants a time - limit to rectify the shortcomings of the appeal in cassation of DATE and to pay the court fees .

On CARDINAL and DATE CARDINAL of the applicants , PERSON , PERSON and PERSON , submitted to the court copies of the receipts , conforming that they had paid the court fees in respect of the latter appeal in cassation .

On DATE the ORG rejected the appeal in cassation lodged by the applicant 's representative on DATE for failure to pay the court fees .

On DATE the same court sent the appeal in cassation lodged on DATE by ORG and PERSON PERSON , acting in the interests of all the applicants and other claimants , to ORG .

On DATE the panel of CARDINAL judges of ORG decided to submit the latter appeal for consideration by ORG of ORG .

On DATE the ORG quashed the decision of DATE and remitted the case for a fresh consideration .

ORG , sitting in a different composition , held DATE hearings . QUANTITY hearings were postponed because of the absence of the applicants ' representative or at his request , while QUANTITY hearings were adjourned at the request of the defendant company .

In the course of the proceedings before that court , the applicants modified their claims twice .

On DATE the ORG found in part for the applicants . It held that the company had been under the obligation to provide the plaintiffs with the cars , which the company had failed to fulfil . The court ordered the company to pay each plaintiff ORG CARDINAL .

On CARDINAL and DATE , respectively , the defendant company and the applicants appealed in cassation .

On DATE ORG rejected the parties ' appeals in cassation .


Violation of Art. 10;No separate issue under Art. 6;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and currently lives in GPE . On DATE he was formally certified as unemployed by the respondent ORG 's authorities .

The applicant was the President of the LOC branch of ORG stranka ORG ) and a member of ORG ( PERSON odbor ) of the same political party .

In DATE , during an election campaign , an article written by the applicant , entitled “ A Despotic Mayor ” ( PERSON predsednik ) , appeared in issue no . CARDINAL , page CARDINAL , of a newsletter called ORG lužnicke novine . In the relevant part , this piece read as follows :

“ The citizens of GPE have not had a Mayor for quite some time now because the former Mayor [ PERSON ] has been expelled from JUL [ a political party ] and has thus lost his mandate by virtue of law ... Despite the official Opinion of the Ministry of Justice and Local Self - Government that he can not continue being the Mayor in accordance with LAW ... [ PERSON ] ... considers it no sin to stay on ... [ in this capacity ] ... because he is ... indispensable for ... [ the LOC 's ] ... future development and prosperity ...

Why is [ PERSON ] pushing so hard to remain as the fictitious Mayor of Babušnica , committing at the same time , as he is , legal infractions amounting to crimes ... Perhaps he needs the position of Mayor to defend his personal integrity which has been seriously threatened by the criminal complaints filed against him , indicating that he had abused his authority as the Director of a ORG - owned company called ORG in order to acquire enormous material gain ? ... [ PERSON ] ... well knows that ... [ as a former Mayor ] ... his position as the Director of ... PERSON , where he is suspected of having committed certain criminal offences , would also be seriously jeopardised . He understands that ... [ as an ordinary citizen ] ... he would no longer ... [ carry any weight ] ... with the local [ police chiefs and others ] ...

Therefore , ... in his ' JUL euphoria ' , in line with the slogan “ money talks ” [ para vrti gde burgija neće ] and for his own existential needs , [ PERSON ] has continued with his near - insane spending of the money belonging to the citizens of the LOC [ sumanuto troši novac građana PERSON ] on ... sponsorships ... [ and ] ... gala luncheons ... not understanding that his time is up and that his place is in the political dustbin ... ”

NORP In response to the publication of this article , on DATE , the Mayor filed a private criminal action ( privatna krivična tužba ) against the applicant with ORG in Babušnica ( “ the ORG ” ) .

On DATE ORG found the applicant guilty of criminal defamation ( kleveta ) and ordered him to pay a fine in the amount of MONEY ( “ CSD ” ) plus CSD CARDINAL for costs , which was at that time equivalent to MONEY ( “ EUR ” ) in all . The fine , however , was suspended and was not to be enforced unless the applicant committed another crime within DATE of the judgment becoming final .

In the operative part of this decision ( u izreci presude ) only the following text was found to amount to defamation , namely to be “ untrue ” and , as such , “ harmful to the honour and reputation ” of the Mayor ( Mr PERSON ) :

“ Therefore , ... in his ' JUL euphoria ' , in line with the slogan “ money talks ” [ para vrti gde burgija neće ] and for his own existential needs , [ PERSON ] has continued with his near - insane spending of the money belonging to the citizens of the LOC [ sumanuto troši novac građana PERSON ] on ... sponsorships ... [ and ] ... gala luncheons ... ”

In its reasoning , the court explained that the applicant had failed to prove the veracity of this statement or even that he had reasonable grounds to believe that it was true . Further , the use of the term “ near - insane ” ( sumanuto ) was deemed to imply the Mayor 's mental illness . The court therefore held that the applicant 's intent was not to inform the public but to belittle the Mayor . In conclusion , it noted that politicians have a special duty to communicate with each other and the public appropriately and stressed that a suspended sentence should “ educationally influence the defendant so as to avoid committing ... similar crimes ” in the future .

Concerning the remainder of the impugned article , however , the court ruled that it was not written with intent to disparage the Mayor and was thus a legitimate way of expressing one 's political opinion , in accordance with LAW ( see paragraph CARDINAL below ) .

On DATE the judgment of ORG was upheld on appeal by ORG in GPE ( “ the ORG ” ) and thereby became final . ORG fully accepted the reasons given by ORG and added that , below the article at issue , there had been only the applicant 's name and surname and no indication that it had been written by the President of the local branch of ORG .

On DATE the Mayor filed a separate civil complaint for damages with ORG , alleging that he had suffered mental anguish as a result of the publication of the impugned article . The Mayor sought CSD CARDINAL in compensation , which was at that time equivalent to approximately EUR CARDINAL .

On DATE ORG ruled partly in favour of the Mayor and ordered the applicant to pay CSD CARDINAL in compensation , together with default interest plus costs in the amount of CSD CARDINAL , which was at that time equivalent to approximately ORG CARDINAL,CARDINAL in all .

The applicant 's argument that the Mayor , being an elected politician , had to accept criticism and display a greater degree of tolerance was dismissed , as was his reference to the relevant international standards ( see paragraph CARDINAL below ) . In so doing , ORG found : ( i ) that the applicant had already been convicted of defamation within the criminal proceedings ; ( ii ) that the Mayor could be criticised but that such criticism had to be “ constructive , argued and within the limits of decency ” ; ( iii ) that , in any event , criticism could not consist of untrue statements which “ deeply offend ” one 's “ honour , reputation and dignity ” ; and ( iv ) that the honour , reputation and dignity of the Mayor , as an elected official and Director of a very successful local company , “ had more significance than ... [ the honour , reputation and dignity ] ... of an ordinary citizen ” .

On DATE ORG rejected the applicant 's appeal , except for the part concerning costs , which were reduced to CSD CARDINAL , at that time equivalent to approximately FAC . This court , further , noted that the applicant had relied on , inter alia , LAW but then went on to repeat , in substance , the detailed reasoning of ORG , as described above . Finally , ORG , added , as in the earlier criminal proceedings , that below the published article there had only been the applicant 's name and surname and no indication that it had been written by the President of the local branch of ORG . In any event , the statements made by the applicant were untrue and his intent was to belittle the Mayor , rather than to inform the public or draw the attention of the authorities “ to their obligations ” . The compensation as well as the costs awarded would appear not to have been paid as yet .

Page CARDINAL contained a statement by Mr GPE , at that time a candidate in the presidential elections supported by a number of allied political parties , including ORG and ORG . PERSON also contained Mr PERSON 's short biography .

Page CARDINAL contained an appeal by ORG . It invited the public to support the newsletter which was needed , inter alia , in order to counter the Mayor 's self - promotion in other locally printed media .

Page CARDINAL contained an open letter , addressed to the LOC police department , signed by the applicant in his capacity as the President of the municipal branch of ORG .

Page CARDINAL contained photographs and campaign slogans in support of Mr GPE

Most other pages also carried articles concerning various political issues and the newsletter itself was handed out free of charge .

On DATE ORG and ORG informed GPE that , in accordance with the relevant legislation , a councillor 's mandate in ORG ( odbornički mandat ) must be terminated if the councillor in question is expelled from the political party on whose list he was elected . ORG explained that the same provisions should also be applied in the Mayor 's case .

On DATE , in a letter sent to the applicant , ORG stated that , as of DATE , they had been looking into a number of complaints indicating that the Mayor had abused his authority as the Director of a ORG - owned company called ORG . Additional investigation had also been undertaken in response to the criminal complaints filed by the tax authorities ( finansijska policija ) and reports concerning each of these have since been forwarded to the competent public prosecutors .

On DATE ORG sent a letter to the applicant 's political party . Therein it stated that in DATE and DATE several criminal complaints , all of which concerned PERSON , were filed against the Mayor . Those lodged with ORG in GPE were still being investigated by the local police while ORG Office in Babušnica , having initially dismissed the criminal complaint , had also subsequently decided to reopen the investigation into the Mayor 's conduct .

Finally , on DATE ORG informed the applicant 's political party , that all of their findings concerning PERSON had been sent to ORG in GPE .

The relevant provisions of this Code read as follows :

“ Whoever , in relation to another , asserts or disseminates a falsehood which can damage his [ or her ] honour or reputation shall be fined or punished by imprisonment not exceeding DATE .

If an act described in [ the above ] paragraph has been committed through the press , via radio or television ... [ or otherwise through the mass media ] ... or at a public meeting , the perpetrator shall be punished by imprisonment not exceeding one year . ...

If the defendant proves his [ or her ] claims to be true or if he [ or she ] proves that there were reasonable grounds to believe in the veracity of the claims which he [ or she ] had made or disseminated , he [ or she ] shall not be punished for defamation , but may be punished for the offence of insult ... or the offence of reproaching someone for the commission of a criminal offence ...

Whoever , in relation to another , falsely claims or disseminates claims to the effect that he [ or she ] has committed a crime prosecuted ex officio , shall be punished for defamation even if there were reasonable grounds to believe in their veracity , unless such claims have been made or disseminated pursuant to LAW . The veracity of the claim that someone has committed a crime prosecuted ex officio may be proved only by means of a final court judgment and through other means of proof only if criminal prosecution or a trial are not possible or are legally precluded . ”

“ ... [ No one ] ... shall ... be punished for insulting another person if he [ or she ] so does in a scientific , literary or artistic work , a serious critique , in the performance of his [ or her ] official duties , his [ or her ] journalistic profession , as part of a political or other social activity or in defence of a right or of a justified interest , if from the manner of his [ or her ] expression or other circumstances it transpires that there was no [ underlying ] intent to disparage .

In situations referred to above , ... [ the defendant ] ... shall not be punished for claiming or disseminating claims that another person has committed a criminal offence prosecuted ex officio , even though there is no final judgment to that effect ... , if he [ or she ] proves that there were reasonable grounds to believe in the veracity of ... [ those claims ] ... ”

The relevant provisions of this LAW read as follows :

“ If the fine can not be collected , the court shall order DATE of imprisonment for each MONEY of the fine , providing that the overall term of imprisonment may not exceed DATE .

If the convicted person pays only a part of the fine [ imposed ] , the rest shall accordingly be converted into imprisonment , and if the convicted person [ subsequently ] pays the remainder of the fine , his [ or her ] imprisonment shall be discontinued . ”

“ ... [ T]he purpose of a suspended sentence ... is that punishment ... for socially less dangerous acts not be imposed ... when ... it can be expected that an admonition with a threat of punishment ( suspended sentence ) ... will ... [ be sufficient to deter the offender ] ... from committing any [ other ] criminal acts . ”

“ In handing down a suspended sentence , the court shall impose punishment on the person who had committed a criminal act and at the same time order that this punishment shall not be enforced if the convicted person does not commit another criminal act for a ... [ specified ] ... period of time which can not be CARDINAL nor DATE in all ( period of suspension ) ... ”

“ In deciding whether to impose a suspended sentence , the court shall take into account the purpose of [ this ] sentence , the personality of the offender , his [ or her ] conduct prior to and following the commission of the criminal act , the degree of his [ or her ] criminal liability , as well as other circumstances under which the act has been committed . ”

“ The court shall revoke the suspended sentence if , during the period of suspension , the convicted person commits CARDINAL or more criminal acts for which he or she is sentenced to imprisonment for a term of or exceeding two years .

If , during the period of suspension , the convicted person commits CARDINAL or more criminal acts and is sentenced to imprisonment for a term of DATE or to a fine , the court shall , upon consideration of all the circumstances ... including the similarity of the crimes committed ... decide whether to revoke the suspended sentence ... ”

“ A suspended sentence shall be expunged DATE following the date of expiry of the period of suspension , if the convicted person does not commit another criminal act during this time . ”

“ When a conviction has been expunged , information about the conviction may ... be given ... [ only ] ... to the courts , the public prosecution service and the police in connection with an ongoing criminal case against the person ... [ concerned ] ... ”

Article CARDINAL § CARDINAL enshrines the defendant 's right to be presumed innocent until proved guilty by a final decision of a court of law .

Article CARDINAL provides , inter alia , that the competent public prosecutor “ may ” ( može ) file a Request for ORG ( zahtev za zaštitu zakonitosti ) against a “ final judicial decision ” , on behalf of or against the defendant , if the relevant substantive and/or procedural “ law has been breached ” ( ako je povređen zakon ) .

On the basis of the above request , under ORG CARDINAL , CARDINAL and CARDINAL , ORG may uphold the conviction at issue or reverse it . It may also quash the impugned judgment , in its entirety or partly , and order a re - trial before the lower courts . If ORG , however , finds that there has been a violation of the law in favour of the defendant , it shall only be authorised to declare so but shall leave the final judgment standing .

Under ORG CARDINAL and CARDINAL , inter alia , anyone who has suffered mental anguish as a consequence of a breach of his or her honour or reputation may , depending on its duration and intensity , sue for financial compensation before the civil courts and , in addition , request other forms of redress “ which may be capable ” of affording adequate non - pecuniary satisfaction .

Articles CARDINAL provided general rules as regards the means of establishing the value of a plaintiff 's civil claim .

Article CARDINAL § CARDINAL provided , specifically , that an appeal on points of law ( revizija ) was “ not admissible ” in pecuniary disputes where the “ value of the part of the final judgment being contested ” did “ not exceed MONEY ... ” .

In accordance with ORG CARDINAL and CARDINAL - CARDINAL , inter alia , ORG could have , had it accepted an appeal on points of law lodged by one of the parties concerned , overturned the impugned judgment or quashed it and ordered a re - trial before the lower courts .

Article CARDINAL provides that a civil court is bound by a final decision of a criminal court in respect of whether a crime was committed , as well as concerning the criminal liability of the person convicted .

This Act entered into force on DATE , thereby repealing LAW DATE . LAW , however , states that an appeal on points of law ( revizija ) shall be considered in accordance with the relevant provisions of LAW DATE , if the proceedings at issue were instituted prior to DATE .

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

The relevant provisions of this Declaration read as follows :

“ Political figures have decided to appeal to the confidence of the public and accepted to subject themselves to public political debate and are therefore subject to close public scrutiny and potentially robust and strong public criticism through the media over the way in which they have carried out or carry out their functions . ”

“ Political figures should not enjoy greater protection of their reputation and other rights than other individuals , and thus more severe sanctions should not be pronounced under domestic law against the media where the latter criticise political figures . This principle also applies to public officials ; derogations should only be permissible where they are strictly necessary to enable public officials to exercise their functions in a proper manner . ”

Paragraph CARDINAL of these Observations reads as follows :

“ The ORG is concerned at the high number of proceedings initiated against journalists for media - related offences , in particular as a result of complaints filed by political personalities who feel that they have been subject to defamation because of their functions .

ORG , in its application of the law on criminal defamation , should take into consideration on the one hand the principle that the limits for acceptable criticism for public figures are wider than for private individuals , and on the other hand the provisions ... which do not allow restrictions to freedom of expression for political purposes . ”


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was born in DATE and lives in ORG .

The applicant worked for ORG , supervising the clearance of imported goods at a seaport customs post . In DATE criminal proceedings were instituted against him and certain others for the alleged smuggling of considerable amounts of vodka .

On CARDINAL DATE ORG of GPE , composed of Judge PERSON and CARDINAL lay judges ( народные заседатели ) , PERSON and PERSON , found the applicant guilty of being an accessory in the avoidance of customs duties and of abuse of office .

NORP Immediately upon his conviction , the applicant was dispensed from serving the sentence partly because of the expiry of a statutory limitation period and partly because of a DATE amnesty law .

NORP On CARDINAL and CARDINAL May and DATE the applicant and his counsel filed appeals against the judgment .

On DATE the applicant requested from the President of ORG a list of lay judges currently serving in the court and a copy of the President ’s decision selecting those lay judges who were to sit in cases under the presidency of Judge PERSON DATE .

On DATE the applicant supplemented his appeal with new points . He challenged the bench that had delivered the judgment of CARDINAL DATE , alleging a breach of the rules on the appointment of lay judges . In particular , the applicant submitted that , whereas LAW on ORG of ORG ( “ the LAW ” ) allowed lay judges to be called once a year for a maximum period of DATE , or for as long as a specific case lasted , the lay judges PERSON and PERSON had been engaged earlier in the course of DATE in several other trials . In addition , it was claimed that PERSON statutory term of office had expired before DATE of the applicant ’s trial .

On DATE ORG dismissed the applicant ’s appeals . The court also refused an application by the applicant and his counsel for access to copies of earlier judgments delivered by ORG under the presidency of Judge PERSON . The court held that the applicant had been informed of his right to challenge the bench at the outset of his trial , but he had failed to do so . No breach of the rules for the appointment of lay judges had been established .

On DATE the President of the Rostov ORG refused an application for supervisory review ( принесение протеста в порядке надзора ) of the applicant ’s case . In his application to the President , the applicant had raised a new argument in support of his allegation that the judges had not been appointed according to the applicable rules : it was claimed that there was nothing to indicate that the judges had been drawn at random by lot as required by LAW . The President rejected the applicant ’s earlier argument as to the expiry of the judges’ term , referring to LAW of DATE , whereby the terms of lay judges already in office had been extended pending the appointment of new ones . The President noted that the list of lay judges for GPE had been drawn up on DATE , after the applicant ’s conviction . No answer was given to the applicant ’s allegation that the judges had not been drawn by lot .

On DATE the President of the Rostov ORG refused another application by the applicant for a supervisory review .

In DATE and DATE the applicant requested the President of the Legislature of LOC to provide information concerning the lay judges who had been authorised to sit in cases during the period DATE .

On DATE ORG informed the applicant that the pertinent list of lay judges for LOC had been compiled on DATE and confirmed by ORG on DATE .

On an unspecified date following communication of the present application to the Government , the President of the Rostov ORG lodged an application for a supervisory review of the case on the ground that the judgment of CARDINAL DATE had not described in sufficient detail the offence committed by the applicant and his accomplices .

On DATE the Presidium of the Rostov ORG granted the application , partly quashed the judgment of CARDINAL DATE and the appeal judgment of CARDINAL DATE , and ordered a fresh examination of the case .

On DATE ORG found the applicant guilty of the same offences but dispensed him from serving the sentence because the case was time - barred .

An appeal by the applicant was dismissed by ORG on DATE and the judgment became final .

Following another application for supervisory review lodged by the President of the Rostov ORG on an unspecified date , the Presidium of the Rostov ORG on DATE quashed the decisions given on DATE and DATE . It found that the courts were not in a position to decide on the applicant ’s guilt because the whole case was time - barred .

Following the request of the applicant ’s lawyer , on DATE ORG informed the applicant that the list of lay judges serving in the district had been adopted by a decision of LOC on DATE and confirmed by a decision of the Rostov Regional Legislature on DATE .

On DATE , ORG informed the applicant that there was no record of any adoption of lay PERSON lists before DATE [ The original letter indicated the date as “ DATE ” , apparently a typographical error ] .

Article CARDINAL of the Code of Criminal Procedure provides that hearings in first - instance courts dealing with criminal cases should , subject to certain exceptions , be conducted by a single professional judge or by CARDINAL professional and CARDINAL lay judges . In their judicial capacity , lay judges enjoy the same rights as the professional judge .

On DATE , LAW on ORG of ORG in GPE ( “ the LAW ” or “ LAW ” ) came into force . By LAW , lay judges are persons authorised to sit in civil and criminal cases as non - professional judges .

Section CARDINAL of the LAW provides that lists of lay judges should be compiled for every district court by local self - governing representative authorities , such lists being subject to confirmation by the legislature of the respective Federation entity . LAW , which determines the procedure for the selection of lay judges , provides that the president of a district court should draw lots at random from a list of names of a certain number of lay judges to be assigned to the competent district court . The number of lay judges assigned to every professional judge should be CARDINAL times greater than that needed for a hearing . Since most criminal cases in GPE are examined by a court composed of CARDINAL professional judge and CARDINAL lay persons , it appears that every judge must have CARDINAL lay judges attached to him or her . Out of these six , a judge picks CARDINAL at random to sit in a particular case .

By DATE , lay judges should be called to serve in a district court for a period of DATE , or as long as the proceedings in a particular case last . Lay judges may not be called more than once a year .

Under LAW Acting President of GPE issued on DATE , lay judges serving in the courts of general jurisdiction were authorised to remain in office until the courts received new lists of lay judges , as confirmed by the legislatures of the ORG ’s entities .


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

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

The realities of the international situation following the end of the Second World War prevented GPE from asserting any claims arising out of persecution of its citizens by NORP GPE , including as forced labourers .

In the period immediately following the Second World War Poland did not conclude a specific agreement with GPE regarding the issue of reparations . It relied on LAW of DATE , concluded by ORG , GPE and GPE and ORG .

On DATE ORG on GPE 's ORG ) was concluded by GPE , GPE , GPE and GPE . Under LAW , consideration of claims arising out of the Second World War by countries which were at war with or were occupied by GPE during that war , and by nationals of such countries , against the PERSON or agencies of the PERSON was deferred until final settlement of the issue of reparations .

On DATE , DATE after a similar declaration by the Government of GPE , the Government of GPE declared that it renounced any claims against GPE in respect of war reparations as of DATE . In a declaration of CARDINAL DATE , made at ORG , ORG clarified that the renouncement of DATE did not affect individual claims arising out of unlawful acts .

In DATE GPE made an ex - gratia payment of ORG CARDINAL to ORG for the victims of pseudomedical experiments .

It was only after the conclusion of LAW on the Final Settlement with respect to GPE of CARDINAL DATE ( the socalled TwoPlusFour LAW ) and the conclusion of CARDINAL treaties between GPE and GPE in DATE and DATE that the issue of persons persecuted by the NORP regime was addressed in the bilateral Agreement of DATE ( see paragraph CARDINAL below ) .

NORP The issue of compensation for slave and forced labour during the Second World War was addressed in the Joint Statement of DATE and the NORP Law of DATE on the Creation of the “ Remembrance , Responsibility and Future ” Foundation ( see relevant law below ) .

The applicant lived in the GPE region of pre - war GPE . It appears that following GPE invasion of GPE in DATE he was detained by the NORP authorities .

Subsequently , in DATE , following the outbreak of the GermanSoviet war , the applicant was interned in the PERSON ( PERSON ) POW camp for DATE . He submitted that he had not been a member of the military personnel of either side in that war and had been interned with many other NORP civilians , alongside captured NORP soldiers . He claimed that the said camp had served as an extermination camp for DATE of its operation . The applicant further submitted that he had been subjected to forced labour in the camp under very harsh conditions .

On DATE the applicant was released from captivity on the basis of forged documents . Subsequently he worked as a forced labourer on a farm until DATE .

NORP The applicant received a payment from the “ NORP ORG ( “ the ORG ” ) under the first compensation scheme in respect of DATE during which he was obliged to provide forced labour .

On DATE the applicant applied to the ORG seeking compensation from the funds of ORG Remembrance Responsibility and Future ” ( “ the NORP ORG ” ) on account of his detention and forced labour in the PERSON ( PERSON ) camp and his subsequent forced labour on a farm . He submitted that from DATE he had been imprisoned in the said camp . The applicant enclosed various documents in evidence . That request was made under the scheme for slave and forced labourers ( “ the second compensation scheme ” ) established under LAW of DATE , the NORP Law of DATE on the Creation of the “ PERSON , Responsibility and Future ” Foundation ( “ the NORP LAW ” ; “ the GFA ” ) and the subsequent Agreement of DATE between the PERSON , ORG ( “ the NORP ORG ” ) and the Polish - German Reconciliation Foundation ( see relevant law below ) .

On DATE ORG ( PERSON ) found that the applicant was eligible for compensation payment , as his persecution came under the CARDINALth category , which included persons subjected to forced labour in the agricultural sector who had been deported to ORG . It consequently awarded him CARDINAL in compensation . The decision did not contain any specific reasoning , in particular with regard to the period of the applicant 's forced labour which was taken into account by ORG .

On DATE the applicant appealed against the decision of DATE . It appears that he alleged that ORG had not taken into account the forced labour during his CARDINALmonthinternment in the PERSON ( PERSON ) camp . He submitted that he had been detained in particularly harsh conditions .

On DATE ORG ( PERSON ) upheld the decision of ORG , holding that the applicant had not adduced any new evidence of persecution which could justify a change in his eligibility status .

In the letter accompanying the decision , ORG informed the applicant that his request for consideration of his internment in the POW camp as falling under DATE category of eligibility could not be granted . It stated that pursuant to LAW of the ORG he was not eligible for compensation on account of his internment and forced labour in the POW camp . ORG emphasised that , under the applicable regulations , the only persons who came under DATE category of eligibility were the detainees of those camps which had been listed in LAW . However , the applicant 's camp had not been listed in that Act .

On DATE the applicant appealed against that decision . He submitted that he had been unlawfully detained in inhuman conditions and subjected to forced labour in the PERSON ( PERSON ) camp for CARDINAL DATE following the outbreak of the NORP - Soviet war . In support of his appeal he relied on a number of documents which had already been filed with the ORG .

One of those documents was a letter which had been sent to him by ORG for ORG ( Okręgowa PERSON Badania PERSON ) on DATE , confirming that the PERSON ( PERSON ) camp had served as a POW camp for NORP soldiers , who had been interned there following the outbreak of the NORP war . However , the letter stated that a considerable number of NORP nationals who had not served in the NORP army had been interned in the same camp . They had been captured by the NORP army in the pre - war NORP territories which had originally been occupied by GPE .

The applicant also relied on a letter received from ORG in DATE regarding the eligibility conditions . The letter stated that persons eligible for compensation under the ORG were , inter alia , those who had been detained and subjected to forced labour in a concentration camp listed in LAW or detained in another place of confinement or a ghetto in conditions comparable to those existing in a concentration camp . The applicant further relied on CARDINAL witness statements by individuals who had been interned with him .

NORP In a letter of DATE ORG informed all Partner Organisations , including ORG , about the new interpretation of the ORG . Pursuant to that interpretation , civilians who had been subjected to forced labour during their detention in a POW camp were henceforth , subject to certain conditions , entitled to receive payments . In consequence , the ORG decided to recognise the period of the applicant 's forced labour in the PERSON ( PERSON ) camp .

On DATE ORG , having reopened the proceedings in the applicant 's case , held that the applicant was eligible for compensation on account of persecution coming under the CARDINALrd category , that is , persons subjected to forced labour in the industrial and public sectors who had been deported to ORG . The decision did not contain any reasoning .

On DATE ORG informed the applicant that he would receive payment from the funds of ORG in the amount of ORG CARDINAL ( ORG MONEY ) on account of his forced labour in the industrial or public sectors . It appears that the applicant did not appeal further .

Article CARDINAL

Prisoners of war are in the power of the hostile Government , but not of the individuals or corps who capture them .

They must be humanely treated .

All their personal belongings , except arms , horses and military papers , remain their property .

Article CARDINAL

The ORG may utilize the labour of the prisoners of war according to their rank and aptitude , officers excepted . The tasks , however , shall not be excessive and shall have no connection with the operations of the war .

DATE , which was adopted by ORG on DATE and entered into force on DATE , states :

“ GPE shall respect international law binding upon it . ”

LAW reads :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”

LAW of the LAW , entitled “ Sources of Law ” , refers to the relationship between domestic law and international treaties .

LAW provides :

“ CARDINAL . The sources of the universally binding law of GPE shall be : the LAW , statutes , ratified international agreements , and regulations . ... ”

Article CARDINAL , in so far as relevant , states :

“ CARDINAL . After promulgation thereof in LAW ( PERSON ) , a ratified international agreement shall constitute part of the domestic legal order and shall be applied directly , unless its application depends on the enactment of a statute .

An international agreement ratified upon prior consent granted by statute shall have precedence over statutes if such an agreement can not be reconciled with the provisions of such statutes . ”

Chapter VIII of the LAW contains provisions related to the judiciary . LAW CARDINAL of the LAW provides :

“ The administration of justice in GPE shall be implemented by ORG , the ordinary courts , administrative courts and military courts . ”

Article CARDINAL of the LAW states :

“ The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts . ”

Article CARDINAL , in so far as relevant , provides :

“ ORG and other administrative courts shall exercise , to the extent specified by statute , control over the performance of public administration . ”

On DATE the Governments of GPE and GPE concluded an agreement on the basis of which ORG declared that , prompted by humanitarian considerations , it was prepared to contribute MONEY for the benefit of the Polish - German Reconciliation Foundation . The ORG was to be established by ORG with a view to providing financial assistance to victims of NORP persecution who had been particularly wronged . The ORG was to determine the necessary criteria for the granting of compensation payments , having regard both to serious damage to the victims ' health and to difficulties in their current financial situation . The Government of GPE declared that it would not pursue further individual claims by NORP citizens arising out of NORP persecution . Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country .

Subsequently , on CARDINAL DATE , the Minister – Head of ORG ( Minister PERSON Urzędu PERSON ) acting as a ORG , made a declaration before ORG on the establishment of the ORG . He declared that , acting on the initiative of ORG and on behalf of ORG , he was establishing the Polish - German Reconciliation Foundation . The ORG 's aim was to provide assistance to the victims of NORP persecution and to undertake other activities for the benefit of those persons . The Minister also declared that the ORG 's capital fund consisted of ORG CARDINAL , contributed by ORG to ORG . ORG was established in accordance with LAW of DATE , which regulates the activities of foundations in GPE . In principle , supervision of a foundation 's activities is exercised by the regional governor ( Wojewoda ) or the competent minister .

The statutes of the Polish - German Reconciliation Foundation were drafted and subsequently registered by ORG on DATE . On DATE the ORG began its activities . Under paragraph CARDINAL of the statutes , the ORG 's primary aim was to render direct financial assistance to those victims of NORP persecution whose health had been seriously damaged and who were in a difficult financial situation as a result of that persecution .

The ORG 's organs were ORG ) and ORG ) . The members of those organs were appointed and dismissed by the Founder ( government minister ) who exercised full control in this respect . The CARDINAL other organs of the ORG were ORG ( PERSON ) , and ORG ( GPE ) .

DATE international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by NORP GPE . The government of GPE was CARDINAL of the parties to these negotiations . They were prompted by a number of lawsuits against certain NORP companies before the courts in GPE in which compensation was sought on account of forced labour during the Second World War . The NORP companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace . The negotiations concluded on DATE with the adoption of a Joint Statement which was signed by all the parties to the negotiations , including the government of GPE .

The parties to the Joint Statement acknowledged the intention of the Government of GPE and of the NORP companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the ORG era and the Second World War . They affirmed their consensus of CARDINAL DATE on the establishment of the Remembrance , ORG , which was to be a means of providing funds for victims from central and eastern LOC , most of whom had benefited little from prior NORP compensation and restitution programmes . The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in GPE .

According to the Joint Statement , the Government of GPE and the NORP companies concerned undertook to contribute MONEY to the Remembrance , ORG . ORG stipulated that the governments of the participating central and eastern GPE , including GPE , and the government of GPE agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace .

Subsequently , on DATE the NORP parliament enacted the PERSON on the creation of the PERSON , ORG ( Gesetz PERSON “ GPE , PERSON ” ) . It came into force on DATE . However , the disbursement of payments only started on CARDINAL DATE , once the relevant guarantees had been secured by the NORP companies concerned with regard to the dismissal of the lawsuits filed against them in GPE courts . The disbursement of payments terminated at DATE .

The relevant parts of the PERSON on the creation of the PERSON , ORG provide :

Recognising

that ORG inflicted severe injustice on slave labourers and forced labourers , through deportation , internment and exploitation , which in some cases extended to destruction through labour , and through a large number of other human - rights violations ,

that NORP companies which participated in the ORG injustice bear a historic responsibility and must accept it ,

that the companies which have come together in the Foundation Initiative of NORP Industry [ Stiftungsinitiative der deutschen Wirtschaft ] have acknowledged this responsibility ,

that the injustice committed and the human suffering it caused can not be truly compensated by financial payments ,

that the PERSON comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime ,

the NORP PERSON acknowledges political and moral responsibility for the victims of National Socialism . The GPE also intends to keep alive the memory of the injustice inflicted on the victims for coming generations .

( CARDINAL ) A legally recognised ORG with the name ' Remembrance , Responsibility and Future ' shall be established under public law .

( CARDINAL ) The purpose of the ORG is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from ORG period .

( CARDINAL ) The approval and disbursement of CARDINAL - off payments to those persons eligible under LAW will be carried out through partner organisations . The ORG is neither authorised nor obligated in this regard . The board of trustees may opt for another mode of payment .

( CARDINAL ) Eligible under this PERSON are :

NORP persons who were held in a concentration camp as defined in section ORG ) of LAW [ Bundesentschädigungsgesetz ] or in another place of confinement outside the territory of what is now GPE or a ghetto under comparable conditions and were subjected to forced labour ;

NORP persons who were deported from their homelands into the territory of ORG within the borders of DATE or to a NORP - occupied area , subjected to forced labour in a commercial enterprise or for public authorities there , and held under conditions other than those mentioned in paragraph CARDINAL , or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions ;

( CARDINAL ) Eligibility shall be demonstrated by the applicant by submission of documentation . The partner organisation shall take into account relevant evidence . If no relevant evidence is available , the claimant 's eligibility may be substantiated in some other way .

( CARDINAL ) Specific characteristics of other places of confinement referred to in LAW , Paragraph CARDINAL , Number CARDINAL are inhumane conditions of detention , insufficient nutrition and lack of medical care .

Section CARDINAL § CARDINAL of LAW ( Bundesentschädigungsgesetz ) provided that ORG would issue a decree containing a list of concentration camps within the meaning of the LAW . ORG issued the decree in DATE with an annex listing concentration camps . It was twice amended , most recently in DATE . The list of concentration camps does not contain the POW camp where the applicant was detained during the Second World War .

ORG examined a constitutional complaint against various provisions of the ORG which had been filed , among others , by a former NORP military internee and a civilian who had been subjected to forced labour . The complainants alleged , inter alia , that prior to the entry into force of the ORG they had had claims for compensation for forced labour against GPE , under NORP civil law in conjunction with international public law . They contended that the exclusion of judicial review of decisions by ORG ( one of the partner organisations ) had violated their right to an effective remedy under LAW of LAW . Furthermore , they argued that the exclusion of former prisoners of war from the ambit of compensation under LAW was discriminatory .

On DATE ORG held that the complaint was partly admissible , but unfounded . Referring to LAW ( “ LAW ” ) the court held that international public law had not established individual claims for compensation for forced labour . It noted , however , that it was not excluded that national law might establish such claims , but that in such a case the legislator enjoyed wide discretion . The court held further that the exclusion by LAW § CARDINAL of former prisoners of war from the scope of those eligible for benefits under LAW had not been discriminatory , since under LAW prisoners of war could be compelled to perform labour . In this respect the court observed that the legislator was allowed to distinguish , when awarding compensation , between victims of general hardships caused by the war and victims of particular ideological persecution by the NORP regime , especially as the funds of the ORG were limited .

In respect of the exclusion of judicial review by LAW , ORG found that LAW of LAW required that a right did in fact exist , whose alleged violation could be examined by the courts . The court concluded that the legislator was free to decide not to establish an individual 's claims vis - à - vis a public - law foundation and to exclude judicial review in this connection .

On DATE the NORP government submitted to ORG a bill on the exemption from tax and duties of payments received in connection with NORP persecution . In the explanatory memorandum to the bill , the government stated that payment of benefits in respect of forced labour for the NORP regime had been agreed in the course of negotiations involving the respective governments , NORP companies and the victims . They further stated that , as a result of the agreement with the NORP , GPE would receive CARDINAL . On DATE the NORP parliament enacted the PERSON on exemption of payments received in connection with NORP persecution from tax and duties . That PERSON also exempted the Polish - German Reconciliation Foundation from taxes due on funds received by the ORG for the distribution of payments . The PERSON came into force on DATE .

On DATE an agreement was concluded between the Remembrance , ORG and ORG ( “ the partnership agreement ” ) . Under its terms ORG was to act as a partner organisation of ORG , with a view to securing prompt disbursement of compensation payments to slave and forced labourers ( paragraph CARDINAL of the agreement ) . Both parties agreed to implement fully the provisions of the ORG and declared that their agreement was in compliance with LAW of DATE .

The above agreement further stipulated that ORG , as a partner organisation , was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of GPE on DATE ( paragraph CARDINAL ) . The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way ( paragraph CARDINAL ) . A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation ( paragraph CARDINAL ) . Under paragraph CARDINAL of the agreement , decisions taken by the appeal body were final and could not be challenged before a court ( paragraph CARDINAL ) .

The Agreement of DATE was accompanied by CARDINAL annexes . Annex no . CARDINAL contained a declaration by the NORP government with regard to responsibility for the disbursement of compensation payments . The relevant parts provide :

“ Since DATE the government of GPE has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by NORP GPE . In the negotiations , the government has played a significant role on behalf of the representatives of the victims . Due to the government 's efforts , former slave and forced labourers will receive in total ORG CARDINAL , which constitutes a very positive outcome to the negotiations .

The government of GPE will endeavour to ensure that the payments from the PERSON , ORG , handled by ORG with the participation of NORP financial institutions , will be processed properly . To that end the NORP authorities will take steps with regard to the Polish - German Reconciliation Foundation within their founding and supervisory competences . ”

The statutes of the Polish - German Reconciliation Foundation was amended on the initiative of its founder , namely the Minister of ORG , with a view to implementing the provisions of the ORG and the Agreement of DATE ; those amendments were subsequently registered by ORG on DATE .

The amended statutes stipulated that the ORG was to disburse compensation payments to the victims specified in LAW of the ORG from the funds contributed by ORG on the basis of the same LAW ( paragraphs CARDINAL and CARDINAL ) . It further specified that the ORG 's decisions in individual cases were to be taken on the basis of internal regulations . A decision in an individual case could be appealed against ; however , a decision taken after an appeal had been considered was final and no appeal lay against it ( paragraphs CARDINAL and CARDINAL ) .

Pursuant to paragraph CARDINAL of the amended statutes , ORG was to determine individual claims for assistance filed by victims of NORP persecution . Members and the president of ORG were to be appointed and dismissed by the ORG 's management board ( paragraph CARDINAL ) . Detailed regulations as to the organisation of ORG and the rules and criteria on the granting of assistance were specified in the internal regulations of ORG , drafted by the management board and adopted by the supervisory board ( paragraph CARDINAL ) .

Decisions taken by ORG could be appealed against to ORG . Its president and members are appointed and dismissed by the ORG 's management board , having consulted the supervisory board . ORG operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board ( paragraph CARDINAL ) . The amended statutes stipulated that the decisions of ORG were final ( paragraph CARDINAL ) .

In DATE the ORG referred to ORG a question of law ( pytanie prawne ) , as to whether decisions given by the organs of the ORG could be appealed to ORG and , if not , whether they could be subjected to judicial review in civil proceedings . On DATE ORG adopted resolution no . III ZP CARDINAL/CARDINAL , holding that , since administrative functions could only be delegated by statute , which was not the case with regard to the Polish - German Reconciliation Foundation , its decisions did not meet the requirements of an administrative decision and thus could not be appealed to ORG . However , ORG refused to give a definite answer as to whether the ORG 's decisions could be subject to judicial review in civil proceedings . It nevertheless observed that entitlement to receive a benefit from the ORG did not fall within the scope of civil law , and thus could not be raised before a civil court . In exceptional cases , such as where the claimant 's eligibility had been established but the benefit was not paid , a claim could arise under civil law .

In Resolution no . OPS CARDINAL/CARDINAL of DATE , ORG upheld the earlier case - law to the effect that it did not have jurisdiction to review the decisions of the ORG and observed that :

“ The Polish - German Reconciliation Foundation , which awards benefits to the victims of NORP persecutions using the financial resources allocated to it by foreign entities , does not perform functions in the area of public administration . Thus , the source of the entitlement to receive an award from the ORG does not stem from actions of the public administration . ”

It further observed :

“ There is no doubt that the Agreement of DATE , concluded between the NORP and ORG , which was not ratified , as well as subsequent acts [ starting with ORG and LAW ] concerning grants of financial assistance by the ORG on account of NORP persecution do not fulfil the criteria which would make it possible to classify them as sources of binding NORP law . No administrative - law relation arises between a claimant and the ORG on the basis of the aforementioned acts , and consequently the ORG is not an organ of public administration established by law to determine cases in the sphere of public administration . ”

DATE . On DATE ORG adopted Resolution no . III CZP CARDINAL/CARDINAL in response to a question of law put forward by the ORG . It revisited its earlier case - law on the interpretation of the notion of a “ civil case ” laid out in LAW in relation to claims against the ORG . ORG held that :

“ The [ civil ] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “ NORP - German Reconciliation ” Foundation – is seeking a payment [ from the ORG ] in respect of NORP persecution . ”

In the reasons for its ORG found , inter alia , that :

“ The procedure concerning examination of claims under the first and the second NORP fund ... may not be currently instituted . The relevant funds were allocated and the disbursement of payments has been finally concluded .

There is no doubt that the current state of affairs resulting from the relevant case - law , under which those persons interested in challenging before a court the ORG 's refusal to grant them a suitable payment are deprived of such a possibility , can not be accepted in the light of the binding constitutional and LAW . LAW in conjunction with LAW establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule .

The need for extensive interpretation of the individual 's access to a court , or in other words , the right to bring an action ( the right to a court ) follows also from LAW , which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations . It may be assumed from the established case - law of ORG CARDINAL § CARDINAL of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations .... Obviously , the right to a court does not denote the right to “ win ” a case , but it signifies that the filed claim should be examined by a court and determined on the merits ( judgment of ORG of DATE , no . PERSON CARDINAL/CARDINAL , unpublished ) .

The results of interpretation of ORG CARDINAL and CARDINAL of the Code of Civil Procedure thus require us to acknowledge that the [ civil ] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court . The [ civil ] court also has jurisdiction where a case has the features of a civil case only in the formal sense . ”

A certain PERSON filed a constitutional complaint with ORG after the administrative court rejected his appeal against inactivity of the ORG , stating that it did not have jurisdiction . He challenged the constitutionality of certain provisions of the LAW DATE on ORG and of the Law of DATE on Procedure before ORG , which delineated the jurisdiction of the administrative courts . On DATE the Constitutional Court discontinued the proceedings on procedural grounds . It found that the claimant had not obtained a “ final decision ” within the meaning of Article CARDINAL of the LAW , since he had mistakenly seized the administrative courts and not the ordinary courts to pursue his appeal against the ORG 's decision . ORG relied on the constitutional presumption in favour of jurisdiction of the ordinary courts and ORG Resolution of DATE .


Violation of Art. 5-3;Violation of Art. 5-5;Violation of Art. 6-1;Remainder inadmissible

The applicant was born in DATE and lives in GPE .

On DATE a criminal case was opened into smuggling of consumer goods .

On DATE ORG of ORG ( “ ORG ” ) declared the applicant to be a suspect in the criminal case . His whereabouts , however , could not be established . On DATE the applicant 's name was put on the list of fugitives from justice .

On DATE the applicant was arrested by the NORP police in GPE , GPE , where he lived with his family .

On DATE the applicant was extradited to GPE where he was taken into custody by the ORG . He was charged with several counts of aggravated smuggling .

DATE the applicant was granted access to the materials in the case file .

On DATE the case was referred for trial before ORG of PERSON . According to the Government , the case materials comprised CARDINAL binders ; charges had been brought against CARDINAL individuals who had acted in conspiracy ; the witnesses ' list included CARDINAL prosecution witnesses from several cities in GPE , GPE , GPE , GPE and GPE , as well as CARDINAL witnesses and experts for the defence .

On DATE ORG held the preliminary hearing and fixed the opening trial date for DATE .

On DATE ORG ordered that the case be returned to ORG for correcting defects in the indictment against the applicant . That decision was set aside by ORG on DATE , which referred the case back to ORG .

On DATE the trial resumed but it was subsequently stayed from DATE to DATE .

On DATE the applicant was released on bail .

According to the information provided by the parties and the elements available in the case - file to date , the criminal proceedings are still pending before the trial court .

On DATE ORG of GPE ordered the applicant 's detention on the grounds that he was charged with a particularly serious offence and could abscond , or interfere with , the investigation . On DATE ORG upheld the detention order , following an appeal by the applicant 's counsel .

On DATE , DATE and CARDINAL DATE ORG extended the applicant 's detention . Each time ORG referred to the gravity of the charge against the applicant and to unspecified grounds to believe that he would abscond .

Further extensions were granted by ORG on DATE , DATE and CARDINAL DATE . By way of justification , ORG invoked the gravity of the charges against the applicant and noted that the applicant had been in hiding DATE [ sic ] and that CARDINAL other co - defendants had also absconded . The extension order of CARDINAL DATE specified that the applicant should remain in custody “ until the defendants and their counsel had finished studying the case file , the prosecutor had referred the case for trial and the trial court had decided on the measure of restraint ” .

The applicant 's appeals against the extension orders were rejected .

On DATE the applicant was moved to remand centre no . IZ-CARDINAL/CARDINAL in GPE .

On DATE ORG extended the applicant 's detention , referring to the gravity of the charges against the applicant , his history of absconding , and the risk that he would “ otherwise ” interfere with the course of the trial because CARDINAL other defendants had gone into hiding . On DATE the Nizhniy ORG upheld that decision on appeal .

On DATE ORG , by a single decision , ordered to extend the applicant 's and his co - defendant 's detention until DATE , holding as follows :

“ In deciding on extending the period of detention , the court takes into account that the measure of restraint in respect of [ the applicant and his co - defendant ] was imposed in accordance with Articles CARDINAL to CARDINAL and CARDINAL of LAW as there existed sufficient grounds to believe that they would abscond investigation and trial or interfere with the criminal proceedings . The grounds justifying the application of the measure of restraint still obtain to date . Positive references of the defendants and their medical ailments do not remove the grounds to believe that they can abscond because they are charged with particularly serious offences ” .

Counsel for the applicant filed an appeal . He submitted , in particular , that the first - instance court had failed to take into account the facts mitigating for the applicant 's release , such as the absence of a prior criminal record , positive references , a need to provide for his minor son , his chronic ailments , and the long period of detention which had already exceeded DATE .

On DATE the Nizhniy ORG upheld on appeal the extension order of DATE , noting that the initial grounds justifying the holding of the applicant and his co - defendant in custody still obtained and that the defence had not put forward any arguments warranting a change in the preventive measure .

On DATE and DATE ORG granted further extensions of the applicant 's and his co - defendant 's detention , invoking CARDINAL grounds : that they were charged with particularly serious offences punishable with up to DATE imprisonment , and that the applicant had once absconded , whereas the investigation had established that his co - defendant had planned to abscond .

In the decision of CARDINAL DATE ORG found that :

“ ... if the preventive measure is replaced with a more lenient one , there exists a risk that the defendants would not appear at trial ; thus , only the custodial measure may ... ensure the protection of the interests of the ORG and society against crime and the possibility of a fair trial . ”

The decision of DATE employed a somewhat different wording which read as follows :

“ Another , more lenient preventive measure , such as bail , would not be able to ensure a fair trial in this particular case . For that reason the need to ensure an effective protection of the public interests – notwithstanding the presumption of innocence and long periods of detention of both defendants – justifies a departure from the principle of individual liberty . ”

On DATE and DATE ORG upheld , in a summary fashion , the above decisions .

On DATE the ORG granted the applicant 's and his co - defendant 's application for release on bail . It found that , although the risk of absconding still existed , with the passage of time that risk was no longer sufficient to justify a breach of the principle of individual liberty . The bail was set at MONEY ( MONEY ) . On DATE the applicant was released .

Since DATE detention matters have been governed by LAW ( Law no . CARDINAL of DATE ) .

“ Preventive measures ” or “ measures of restraint ” ( меры пресечения ) include an undertaking not to leave a town or region , personal surety , bail and detention on remand ( LAW ) . If necessary , the suspect or accused may be asked to give an undertaking to appear ( LAW ) .

When deciding on a preventive measure , the court is required to consider whether there are “ sufficient grounds to believe ” that the accused would abscond during the investigation or trial , re - offend or interfere with the establishment of the truth ( LAW ) . It must also take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Detention may be ordered by a court if the charge carries a sentence of DATE imprisonment , provided that a less restrictive preventive measure can not be applied ( LAW ) .

After arrest the suspect is placed in custody “ during the investigation ” . The maximum permitted period of detention “ during the investigation ” is DATE but it can be extended for DATE . Further extensions for CARDINAL or DATE may be authorised only if the accused is charged with serious or particularly serious criminal offences ( Article QUANTITY ) .

From the date the prosecutor forwards the case to the trial court , the defendant 's detention is “ during the trial ” . The term of detention “ during the trial ” is calculated to the date the judgment is given . It may not normally exceed DATE , but if the case concerns serious or particularly serious criminal offences , the trial court may approve CARDINAL or more extensions of no longer than DATE each ( LAW and CARDINAL ) .

The ORG or regional treasury is liable – irrespective of any fault by ORG officials DATE for the damage sustained by an individual on account of , in particular , unlawful criminal prosecution or unlawful application of a preventive measure in the form of placement in custody ( Article CARDINAL § CARDINAL of LAW ) .

A court may hold the tortfeasor liable for non - pecuniary damage incurred by an individual through actions impairing his or her personal non - property rights , such as the right to personal integrity and the right to liberty of movement ( Articles CARDINAL and CARDINAL of LAW ) . Non - pecuniary damage must be compensated for irrespective of the tortfeasor 's fault in the event of , in particular , unlawful conviction or prosecution or unlawful application of a preventive measure in the form of placement in custody ( LAW ) .


The applicants are NORP nationals , born in DATE and DATE respectively , and living in GPE of GPE .

They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

On DATE security forces burnt down the applicants’ houses along with all the other houses in GPE in the province of GPE , in south - east GPE . The village was subsequently evacuated .

The applicants did not apply to the competent authorities for compensation for their losses as they were intimidated by the security forces in the region .

On DATE the applicant PERSON filed a petition with the FAC Governor ’s office . He stated the following :

“ In DATE my house in GPE of our province was burnt down . I would request you to give me a written document from the archives of the state of emergency office or from other institutions which confirms that my house was burnt down . ”

The applicant has not received any reply to his petition .

B. Relevant domestic law and practice

Administrative liability

LAW of LAW provides as follows :

“ All acts or decisions of the administration are subject to judicial review ...

The administration shall be liable to indemnify any damage caused by its own acts and measures . ”

The above provision is not subject to any restrictions even in a state of emergency or war . The latter requirement of the provision does not necessarily require proof of the existence of any fault on the part of the administration , whose responsibility is of an absolute , objective nature , based on a concept of collective liability and referred to as the theory of “ social risk ” . Thus the administration may indemnify people who have suffered damage from acts committed by unknown or terrorist authors when the ORG may be said to have failed in its duty to maintain public order and safety , or in its duty to safeguard individual life and property .

The principle of administrative liability is reflected in the additional section CARDINAL of Law no . CARDINAL of DATE on ORG , which provides :

“ ... actions for compensation in relation to the exercise of the powers conferred by this PERSON are to be brought against the administration before the administrative courts . ”

Criminal responsibility

LAW makes it a criminal offence :

( a ) to deprive an individual unlawfully of his or her liberty ( Article CARDINAL generally , Article CARDINAL in respect of civil servants ) ,

( b ) to oblige an individual through force or threats to commit or not to commit an act ( Article CARDINAL ) ,

( c ) to issue threats ( LAW ) ,

( d ) to make an unlawful search of an individual ’s home ( Articles CARDINAL and CARDINAL ) ,

( e ) to commit arson ( Articles CARDINAL , CARDINAL , CARDINAL , CARDINAL ) , or aggravated arson if human life is endangered ( Article CARDINAL ) ,

( f ) to commit arson unintentionally by carelessness , negligence or inexperience ( Article CARDINAL ) , or

( g ) to damage another ’s property intentionally ( Articles CARDINAL et seq . ) .

For all these offences complaints may be lodged , pursuant to Articles CARDINAL and CARDINAL of the Code of Criminal Procedure , with ORG or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings .

If the suspected authors of the contested acts are military personnel , they may also be prosecuted for causing extensive damage , endangering human lives or damaging property , if they have not followed orders in conformity with Articles DATE and CARDINAL of LAW . Proceedings in these circumstances may be initiated by the persons concerned ( non - military ) before the competent authority under LAW , or before the suspected ORG hierarchical superior ( sections CARDINAL and CARDINAL of Law no . CARDINAL on the LAW and Procedure of Military Courts ) .

If the alleged author of a crime is an agent of the ORG , permission to prosecute must be obtained from local administrative councils ( ORG of ORG ) . The local council decisions may be appealed to ORG ; a refusal to prosecute is subject to an automatic appeal of this kind .

Provisions on compensation

Any illegal act by civil servants , be it a crime or a tort , which causes material or moral damage may be the subject of a claim for compensation before the ordinary civil courts .

Proceedings against the administration may be brought before the administrative courts , whose proceedings are in writing .