Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

The applicant is married with CARDINAL children . Prior to her early retirement she had been employed for DATE and had paid social security contributions to the ORG .

On DATE the applicant filed an application with ORG ( ORG ) to be granted the right to an early - retirement pension for persons raising children who , due to the seriousness of their health condition , required constant care , the so - called “ EWK ” pension .

Along with her application for a pension , the applicant submitted , among other documents concerning her daughter ’s health condition , a medical certificate issued by a specialist doctor on DATE . The certificate stated that her daughter PERSON ( born in DATE ) had suffered in particular from chronic rhinitis ( przewlekła zapalenie nosa ) and chronic bronchitis ( zapalenie oskrzeli ) .

On DATE ORG ( “ the SSB ” ) issued a decision granting the applicant the right to an earlyretirement pension in the net amount of MONEY .

On DATE ORG asked ORG doctor ( PERSON ) to inform it whether the applicant ’s daughter required the permanent care of her parent . On an unknown date the doctor stated that , on the basis of the medical documents , the child could not be considered as ever having required such care .

On DATE ORG issued simultaneously CARDINAL decisions for the applicant . By virtue of the first decision , the payment of the applicant ’s pension was discontinued with immediate effect . By virtue of the other decision , ORG reopened the proceedings and revoked the initial decision granting a pension and eventually refused to award the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance .

NORP The applicant appealed against the respective decisions divesting her of the right to an early - retirement pension .

On DATE ORG ( PERSON ) quashed the ORG ’s decisions and granted the applicant the right to an early - retirement pension under the scheme provided for by the DATE Ordinance . The court considered that the ORG should not have reopened the proceedings ex officio . The parties appealed .

On DATE the Rzeszów Court of Appeal ( ORG ) quashed ORG judgment and remitted the case .

On DATE ORG dismissed the applicant ’s appeal . ORG concluded on the basis of the evidence that the applicant ’s child did not require her mother ’s permanent care since her health condition did not significantly impair her bodily functions . The domestic court held that the applicant had been rightfully divested of her right to a pension under the scheme provided by the DATE Ordinance as she did not satisfy the requirement of necessary permanent care .

On DATE ORG dismissed the appeal .

On DATE ORG refused to entertain a cassation appeal lodged by the applicant ’s lawyer .

Following the revocation of her right to the early - retirement pension the applicant was not ordered to return her early - retirement benefits paid by ORG .

The applicant did not provide details about her financial situation after the revocation of EWK pension . She only submitted that she was unemployed .

The Government submitted that following the revocation of the ORG pension the applicant did not work and most likely benefitted from social assistance . They stressed that DATE and DATE the applicant ’s husband was employed . His DATE income amounted to MONEY in DATE and MONEY in DATE . As of DATE the applicant ’s husband became eligible for a work disability pension which he has been receiving ever since .

In addition , the Government submitted information as regards the various types of social benefits available in GPE . However , they have failed to specify which of those benefits , if any , were available in the applicant ’s situation .

Under the relevant laws currently in force , the applicant will qualify for a regular retirement pension when she turns CARDINAL in DATE .

CARDINAL applications arising from a similar fact pattern have been brought to the ORG . The majority of the applicants form ORG ( ORG przez ZUS ) ( “ the Association ” ) , an organisation monitoring the practices of ORG in GPE , in particular in the ORG region .

Out of all applications lodged with the ORG , CARDINAL applicants decided not to lodge a cassation appeal against the judgment of ORG given in their case .

CARDINAL - and - CARDINAL applicants lodged cassation appeals against the final judgments given in their cases . ORG entertained and dismissed on the merits DATE appeals . In CARDINAL applications ORG refused to entertain cassation appeals on the ground that they did not raise any important legal issues or require ORG to give a new interpretation to legal provisions which raised serious doubts or gave rise to ambiguity in the jurisprudence of the domestic courts . In the remaining CARDINAL cases cassation appeals were rejected for failure to comply with various procedural requirements .

NORP The legal provisions applicable at the material time and questions of practice are set out in the judgment in the case of GPE , no . CARDINAL , § DATE , DATE .

The reopening of the proceedings concerning the early - retirement pension is regulated in CARDINAL ( CARDINAL ) of LAW DATE on the system of social insurance ( Ustawa o systemie ubezpieczeń społecznych ) , which at the relevant time read as follows :

“ The right to benefits or the amount of benefits will be re - assessed upon application by the person concerned or , ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

On DATE a new subparagraph CARDINAL ( CARDINAL)(a ) was added , which reads as follows :

“ Section CARDINAL shall apply respectively , if , after the validation of the decision it is discovered that the evidence that had been submitted did not give the right to a pension , disability pension or its amount . ”

A party to civil proceedings could , at the material time , lodge a cassation appeal with ORG against a judicial decision of a second - instance court . A party had to be represented by an advocate or a legal adviser .

Article CARDINAL of LAW as applicable at the material time listed the grounds on which a cassation appeal could be lodged . It read as follows :

“ The cassation appeal may be based on the following grounds :

CARDINAL ) a breach of substantive law as a result of its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Pursuant to LAW , having allowed a cassation appeal , could quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG failed to find non - conformity with the law , it dismissed the cassation appeal . According to Article CARDINAL if the cassation appeal was well - founded ORG could also amend the impugned judgment and adjudicate on the merits .

On DATE the ORG made an application to ORG , asking for section CARDINAL ( CARDINAL ) of the LAW DATE on retirement and disability pensions paid from ORG ( LOC o emeryturach i rentach z Funduszu Ubezpieczeń Społecznych ) ( “ the DATE LAW ) to be declared unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . More specifically , the ORG submitted that the introduction of an age - limit in respect of persons taking care of a child , which in essence amounted to a deprivation of the right to a benefit , constituted a violation of the principle of equality set forth in LAW .

On DATE ORG ( KCARDINAL/CARDINAL ) declared the impugned section CARDINAL ( CARDINAL ) of the DATE Law unconstitutional in so far as it restricted the application of the DATE Ordinance to persons born before DATE . ORG reiterated among other things the constitutional principle of acquired rights which guarantees particularly strong protection for the right to receive social welfare benefits .

On DATE the ORG made an application to ORG , asking for CARDINAL ( CARDINAL)(a ) of the DATE Law to be declared unconstitutional in so far as it allowed the ORG to reopen ex officio proceedings relating to the grant of a pension or a disability pension on the basis of a new assessment of evidence which had already been submitted .

On DATE ORG ( GPE declared the impugned section CARDINAL ( CARDINAL)(a ) of the DATE Law unconstitutional in so far as it allowed the ORG to reopen such proceedings following a new assessment of evidence which had already been submitted .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicant was born in DATE and lives in GPE .

In DATE the applicant ’s mother and her CARDINAL siblings jointly inherited CARDINAL estates – Marum CARDINAL:CARDINAL and Marum CARDINAL:CARDINAL – from their father . The ownership of the estates , consisting of several islands in the archipelago of GPE , was over DATE partly transferred to other members of the family . Disagreements arose between the family members . Some of them wished to divide the property ( klyvning ) and thus dissolve the joint ownership , but the applicant ’s mother opposed this idea .

On the land managed by the applicant ’s mother DATE which formed part of Marum DATE the mother owned a number of houses . CARDINAL of the houses were used by the applicant ’s CARDINAL sisters . A third house situated on the property was considered too small for the applicant ’s needs and it was therefore decided to enlarge it . The applicant applied for a building permit to FAC ( byggnadsnämnden ) . On DATE , finding that the enlargement could not be approved as the house in question was situated too close to the shore , the committee nevertheless granted a permit for the building of a new house further away from the shore . The new house was built in DATE .

On DATE the applicant ’s mother died , leaving CARDINAL children , namely the applicant , her brother and her QUANTITY sisters . However , no distribution of the mother ’s estate was made before DATE . By a partial division on DATE , the new house was transferred to the applicant .

On DATE practically all the other joint owners of the CARDINAL estates brought proceedings against the applicant in ORG ( tingsrätten ) of PERSON , requesting that she be ordered to remove the new house on PERSON CARDINAL:CARDINAL as it had been built without their consent , contrary to the requirements of LAW ( NORP om samäganderätt , DATE the LAW ” ) . The applicant disputed this and argued , inter alia , that it was her mother who had built the house and that accordingly it belonged to her mother ’s estate . Thus , she was not the proper defendant in the case .

By a judgment of CARDINAL DATE ( “ the removal judgment ” ) ORG declared that the applicant was to remove the house , or risk having it demolished at her expense . The court stated , inter alia , that it was the applicant who owned the house and that she had built it without the necessary consent of all the other joint owners .

NORP In DATE CARDINAL of the joint owners applied for the sale of PERSON CARDINAL:CARDINAL and Marum CARDINAL:CARDINAL at a public auction . On CARDINAL DATE ORG decided to stay those proceedings .

On DATE ORG removal judgment was upheld on appeal by ORG ( PERSON hovrätt ) .

The applicant appealed to ORG ( ORG domstolen ) . She later requested , inter alia , that no further action be taken on the case pending the outcome of division proceedings which she had begun in DATE . In these proceedings , the applicant claimed that the joint ownership of the CARDINAL estates should be dissolved and individual plots be assigned to the family members . Following several decisions taken by ORG ( GPE – “ the GPE ” ) and the courts , the case had to be referred back by ORG to the GPE for re - examination as the latter had made procedural errors . Subsequently , by a decision of DATE , the ORG allowed the creation of CARDINAL individual plots on PERSON CARDINAL:CARDINAL but rejected the applicant ’s request for the creation of an individual plot around the new house on account of ORG ruling that that house be removed . The applicant appealed against the PERSON ’s decision to ORG ( fastighetsdomstolen ) in GPE . As an alternative ground for staying the proceedings before ORG , the applicant pleaded that , in DATE , she had requested that ORG give a declaratory judgment on the question of ownership of the new house .

By a decision of CARDINAL DATE ORG rejected the applicant ’s request to have the removal proceedings stayed and refused her leave to appeal against ORG ruling .

Following ORG decision , several family members requested that ORG ( kronofogdemyndigheten – “ the Office ” ) enforce the removal judgment . On DATE the ORG ordered the applicant to remove the house before DATE or risk having it demolished by the ORG at her own expense . By a later decision the time - limit was extended until DATE .

On DATE , at ORG request , ORG of ORG ( LOC – “ the Central Office ” ) gave its opinion in the division proceedings . It considered that the removal judgment did not prevent the creation of an individual plot around the house in issue . On the contrary , this could preserve the house and reduce the risk of adverse consequences for the applicant . Thus , ORG recommended that the applicant be assigned an individual plot .

NORP However , on DATE ORG refused the applicant a further postponement of the enforcement of the removal judgment . On CARDINAL DATE ORG upheld ORG decisions and rejected the applicant ’s request for a stay of the enforcement . Subsequently , ORG , on DATE , decided that the house was to be demolished by a construction firm on DATE .

The applicant appealed to ORG , requesting an immediate stay of the demolition order . She submitted that enforcement of the removal judgment should be stayed until the division proceedings or , in the alternative , until the ownership proceedings had been concluded . She also claimed that she had not been given the opportunity to remove the house herself in accordance with ORG judgment of CARDINAL DATE . She stated that she had started to dismantle the house but was not able to complete the work before DATE . Furthermore , the applicant requested a DATE respite in order to substantiate her appeal .

By a decision of CARDINAL DATE ORG ordered the applicant to complete her appeal by TIME on DATE . On DATE , that is on DATE , ORG received a letter from the applicant in which she requested an immediate stay of the demolition order . She submitted , inter alia , that enforcement of the removal judgment should be stayed until the division proceedings had been concluded or , in the alternative , until ORG had decided the question . She also requested a DATE respite to substantiate her appeal .

The appellate court ’s order for the completion of the appeal DATE which was sent to the applicant ’s address at the time in Spånga – was allegedly not received by the applicant until TIME of CARDINAL June , as she had been at the site of the house in issue . On TIME CARDINAL June she sent a fax to the appellate court , asking for a DATE respite for the completion of her appeal .

NORP However , at a session held on DATE ORG had already examined the case and , by a decision delivered the following day , refused the applicant leave to appeal against ORG decision of CARDINAL DATE . Thus , no further stay of the enforcement proceedings was granted . It appears from the court files that the applicant called ORG on DATE and was told that the case had already been examined and that regard had been had to the contents of her letter of DATE On DATE ORG refused leave to appeal against the appellate court ’s decision .

The house in issue was therefore demolished by a construction firm . The applicant had claimed that her appeal against ORG decision of CARDINAL DATE prevented the enforcement of the removal judgment . However , this claim was rejected by ORG on DATE , referring to LAW , section DATE , of LAW ( ORG ) . The demolition of the house began on DATE and was concluded DATE . On DATE ORG declared that the house had been demolished and that accordingly the removal judgment had been duly enforced . However , this decision was appealed against by the other joint owners on the ground that the building material had not been removed from the property . On DATE ORG , finding in favour of the appellants , quashed ORG decision that the enforcement had been finalised and referred the matter back to the ORG . Leave to appeal against ORG decision was refused by ORG and ORG on DATE and DATE respectively . On DATE ORG ordered the applicant to remove the building material from the property before DATE .

On DATE ORG ordered the applicant to pay the enforcement costs of MONEY . The applicant appealed and applied for legal aid in the matter . By a decision of CARDINAL DATE ORG rejected the applicant ’s application for legal aid on the ground that she did not have a legitimate interest in having the case heard as the enforcement had been concluded . The applicant ’s further appeal was rejected by ORG on DATE . On DATE ORG refused leave to appeal .

On DATE ORG gave judgment in the division proceedings . It decided that PERSON CARDINAL:CARDINAL should be divided into CARDINAL individual plots and CARDINAL common plot . The applicant was assigned a plot where the now demolished house had been situated . In this respect , ORG thus agreed with the opinion given by ORG of the National Land Survey on DATE . ORG judgment was upheld on appeal by ORG on DATE . On DATE ORG refused leave to appeal .

By a judgment of CARDINAL DATE ORG decided another removal case which had been brought by the applicant and her sister in DATE . Apparently in response to the removal proceedings brought against the applicant , they had claimed that several other joint owners of PERSON CARDINAL should remove buildings they had erected on the estates . However , ORG rejected the claims , finding that the buildings had been erected DATE when the applicant and her sister , through the partial division of their mother ’s estate , had become joint owners of the CARDINAL properties – and that the other joint owners at the time had expressly or impliedly consented to the various building projects . Furthermore , considering that the claimants did not have a legitimate interest in having their cases heard , the court also decided that further litigation in this respect should not be paid for through public legal aid . Thus , with effect from the date of the judgment , the legal aid previously awarded was withdrawn . The applicant and her sister appealed against the judgment , submitting , inter alia , that ORG decision on legal aid should be quashed . However , on DATE ORG upheld the legal - aid decision . On DATE ORG refused leave to appeal . Stating that they were unable to plead their case properly without legal aid , the applicant and her sister , by a letter to ORG DATE , withdrew most of their claims in the removal case .

By a declaratory judgment of DATE in proceedings concerning the ownership of the house in issue , the ORG agreed with the applicant ’s argument , submitted to the court in DATE , that the house had been erected on her mother ’s behalf and thus formed part of the latter ’s estate . Accordingly , at the time of ORG removal judgment of CARDINAL DATE , the house had not belonged to the applicant . Thus , in this respect , the court came to a different conclusion from the CARDINAL reached in the removal judgment . Following an appeal , the declaratory judgment was upheld by ORG on DATE . No further appeal was lodged and the appellate court ’s judgment consequently acquired legal force .

By decisions of CARDINAL DATE and DATE , ORG granted the applicant building permits for the reconstruction of the demolished house and the construction of CARDINAL smaller outbuildings .

Domestic provisions of relevance in the present case are found in LAW ( “ the LAW ” ) , ORG förvaltning av vissa samägda jordbruksfastigheter , CARDINAL DATE “ the DATE LAW ) , ORG , DATE the DATE LAW ) , LAW and LAW ( PERSON ) .

At the time of the building of the house in issue , the ownership of Marum DATE and CARDINAL was governed by LAW . LAW provided that a joint owner wishing to dispose of real estate must have the consent of all the other joint owners . According to ORG case - law , a joint owner who was of the opinion that another joint owner had acted in a way which conflicted with section DATE that is had not had the necessary consent – could challenge the action in court ( Nytt juridiskt arkiv ( “ NJA ” ) DATE , p. CARDINAL ; the same right to bring proceedings is afforded to a joint owner under LAW – see NJA DATE , p. CARDINAL ) . Under section CARDINAL , a joint owner who disagreed with the administration or use of real estate could request the court to appoint an administrator . Further , under section CARDINAL , a joint owner had the right to apply for a sale of real estate at public auction . The only way for another joint owner to prevent such a sale was to request division proceedings in accordance with section CARDINAL . If such proceedings had been started , the court could not decide on the question of a sale until the division proceedings had been concluded .

As the real estate in the present case is assessed , for tax purposes , as agricultural property , the provisions of the DATE Act are applicable as from DATE . The relevant provisions of that LAW are essentially the same as in LAW . Thus , section CARDINAL(CARDINAL ) of the DATE Act contains a rule that corresponds to section DATE CARDINAL Act .

Under LAW , LAW CARDINAL , of LAW , jointly owned real estate may , on application by a joint owner to ORG ( “ the GPE ” ) , be divided into individual plots , provided that each plot created is deemed permanently suitable for its purpose in accordance with LAW , LAW . LAW , section CARDINAL(CARDINAL ) , provides that if a court has ordered real estate to be offered for sale at a public auction , the estate may be divided only if no sale has taken place .

The enforcement rules are laid down in LAW . According to LAW , sections CARDINAL and CARDINAL , a court judgment may be enforced as soon as it has acquired legal force . LAW of the same chapter deals with objections against enforcement . Such objections may only be raised in respect of circumstances that have occurred after the delivery of the enforceable judgment , and ORG is accordingly not entitled to reconsider the judgment itself . Thus , under section ORG ) enforcement can not take place if the defendant shows that he or she has fulfilled the obligation set forth in the judgment in question . Furthermore , according to section CARDINAL ) , enforcement can not take place if the defendant claims that there are other circumstances which hinder enforcement , provided that the court finds that the objection can not be dismissed . This rule concerns substantive objections , for example an objection that property which the defendant is obliged to deliver has been conveyed or encumbered .

Under LAW , section DATE , of LAW , an application for enforcement becomes void if the applicant in the enforcement proceedings grants the defendant a respite which lasts DATE from the date of the application . However , there are no rules empowering ORG to grant the defendant a respite at his or her own request . A decision by the ORG to refuse a stay of the enforcement proceedings is , in accordance with LAW , LAW , subject to appeal before a court .

When it is of utmost importance for deciding a case that a question subject to other court proceedings be determined first , the court may , under LAW , section CARDINAL , of LAW , order a stay of proceedings ( vilandeförklaring ) . According to the preparatory documents ( NJA II CARDINAL , p. CARDINAL ) , the relationship between the CARDINAL court cases may be such that the decision in CARDINAL set of proceedings has a binding effect on the outcome of the other set of proceedings . An action for pecuniary compensation for damage to real property and another action concerning the ownership of the property is given as an example . The outcome of CARDINAL set of proceedings may also have evidential significance in another set of proceedings . In these situations the relevant court has to decide whether it is in the interests of all parties concerned to stay the proceedings or not .


CASE OF BUSCARINI AND OTHERS v. SAN MARINO

Violation of Art. 9;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

The applicants were elected to ORG ( the parliament of GPE ) in elections held on DATE .

Shortly afterwards , they requested permission from ORG , who act as the heads of government in GPE , to take the oath required by section CARDINAL of LAW ( Law no . DATE ) without making reference to any religious text . The LAW in question referred to a decree of DATE , which laid down the wording of the oath to be taken by members of the ORG ’s parliament as follows :

“ I , … , swear on the Holy Gospels ever to be faithful to and obey LAW , to uphold and defend freedom with all my might , ever to observe the Laws and Decrees , whether ancient , modern or yet to be enacted or issued and to nominate and vote for as candidates to the ORG and other ORG only those whom I consider apt , loyal and fit to serve the Republic , without allowing myself to be swayed by any feelings of hatred or love or by any other consideration . ”

NORP In support of their request the applicants referred to LAW of DATE , which guarantees the right to freedom of religion , and LAW .

At the General Grand Council session of DATE the applicants took the oath in writing , in the form of words laid down in the decree of CARDINAL DATE save for the reference to the Gospels , which they omitted . At the same time , the first applicant drew attention to the obligations undertaken by GPE when it became a party to ORG .

On DATE the ORG of ORG gave an opinion , at the request of ORG , on the form of the oath sworn by the applicants , to the effect that it was invalid , and referred the matter to the ORG .

At its session of CARDINAL DATE ORG adopted a resolution proposed by ORG ordering the applicants to retake the oath , this time on the Gospels , on pain of forfeiting their parliamentary seats .

The applicants complied with the ORG ’s order and took the oath on the Gospels , albeit complaining that their right to freedom of religion and conscience had been infringed .

Subsequently DATE before ever the applicants applied to ORG no . CARDINAL of DATE ( “ Law no . CARDINAL ” ) introduced a choice for newly elected members of ORG between the traditional oath and one in which the reference to the Gospels was replaced by the words “ on my honour ” . The traditional wording is still mandatory for other offices , such as that of Captain - Regent or of a member of the government .


Remainder inadmissible;No violation of P1-1

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in LOC .

In DATE the first applicant ’s husband and the second applicant ’s father , Mr PERSON , born in DATE , was granted a retirement pension under a regular retirement pension scheme and on the strength of premiums which he had been paying into the centralised social insurance fund . In DATE he requested ORG ( ORG ) to grant him a disability pension , together with so - called “ veteran status ” ( “ uprawnienia kombatanckie ” - see paragraphs CARDINAL below ) since from DATE he had been imprisoned , together with his parents , in a labour camp in LOC in GPE . Subsequently , Mr GPE underwent a medical examination .

On DATE ORG conferred veteran status on the applicant which entitled him to a veteran ’s disability pension . It found , on the basis of the results of his medical examination , that his ill - health had been caused by his deportation and imprisonment by the NORP authorities in DATE .

NORP Apparently in DATE and DATE doubts arose as to the accuracy of certain medical examinations , on the basis of which social insurance benefits had been granted by ORG . By a letter of DATE ORG requested that ORG to review , under LAW of the LAW DATE on retirement and disability pensions ( ustawa o emeryturach i rentach z systemu ubezpieczeń społecznych - see paragraph CARDINAL below ) , the final decisions issued in CARDINAL disability pension cases . The request referred to a pending investigation in the case of a certain PERSON and other doctors who had been assessing claimants’ health for the purposes of social insurance proceedings . The prosecutor submitted that it was highly likely that in those cases serious irregularities concerning the assessment of the claimants’ eligibility for social insurance benefits had occurred . The list of cases attached to that request included Mr GPE ’s case . No allegation was ever made that the DATE decision had been obtained by Mr GPE in a fraudulent manner .

NORP In DATE Mr GPE was invited to undergo a fresh medical examination . After that examination ORG , by a decision of DATE , withdrew his veteran ’s disability pension , referring to the ORG conclusions . They found that there had been no causal link between his deportation by the NORP authorities and the health problems from which he suffered . From that date onwards his status was again covered by the regular social insurance scheme and he was entitled to an ordinary disability pension .

He appealed against that decision to ORG .

During the ensuing judicial proceedings , Mr GPE was examined on DATE by a cardiologist and on DATE by a psychiatrist . According to their opinions , he suffered from numerous serious ailments and he was completely unable to work . However , they concurred that his ailments had been caused by his age and not by his earlier deportation and imprisonment .

On DATE Mr GPE died . The applicants joined the proceedings as his legal successors under the provisions of domestic law which expressly allowed them to seek payment of his pension covering the period from the date of the contested decision until the plaintiff ’s death , and which gave them locus standi in the proceedings ( see paragraph CARDINAL below ) . The applicants sought payment of Mr GPE ’s veteran ’s disability pension from DATE until his death on DATE and challenged the decision divesting him of his veteran ’s status and of his veteran ’s disability pension .

On DATE the ORG dismissed their appeal against the decision of DATE . The court had regard to the medical experts’ opinions and findings . It held that in the absence of a causal link between Mr GPE ’s deportation in DATE and his medical condition in DATE , he did not meet the requirements for veteran ’s status laid down in section CARDINAL ( CARDINAL ) of the PERSON of DATE on NORP and Victims of War and Post - War Persecutions ( PERSON o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego - the ( “ the DATE Law , ” see paragraph CARDINAL below ) .

The applicants appealed . They submitted that the first - instance judgment was in breach of the applicable laws , in that the court had wrongly and illogically accepted that a medical assessment finding a causal link between the claimant ’s health and his or her suffering in the past , on the strength of which veteran ’s status and a veteran ’s disability pension had been granted , could later be reversed . The existence of a causal link was not something that could reasonably change over time .

Furthermore , Mr GPE had considerably aged DATE and his health had seriously deteriorated throughout that time . The medical examination carried out in DATE could not therefore assess the link between the deportation and his health at the time when he applied for veteran ’s status , the existence of such a link being decisive for entitlement to that status to arise . The applicants argued that there was no legal basis on which to challenge the medical assessment made during the examination of PERSON GPE ’s original request for a veteran ’s pension in DATE , as this pension had been granted by way of a final decision of ORG . The contested decision of DATE had also violated the principle that acquired rights should not be taken away .

On DATE the ORG dismissed the applicants’ appeal , sharing the conclusions of the lower court .

On DATE ORG refused to entertain the ORG cassation appeal . On DATE the applicants requested the court to serve on them the written grounds for that refusal , to no avail .

Article CARDINAL of the LAW of Poland , which entered into force on DATE , reads :

“ GPE shall be a democratic ORG ruled by law and implementing the principles of social justice . ”

Under the provisions of the Law of DATE on NORP and Victims of War and Post - War Persecutions ( PERSON o kombatantach oraz niektórych osobach będących ofiarami represji wojennych i okresu powojennego - “ the DATE LAW ) , veterans are entitled to privileged status in comparison with other employees or retired persons . This status includes , for example , a lower age of retirement and various financial benefits paid in addition to the normal pension calculated in accordance with the rules of the general social insurance system . In particular , an especially favourable method for calculating periods of employment is used in respect of veterans .

At the time when the applicant was divested of his “ veteran status ” , a retired veteran was , inter alia , entitled to a “ veteran ’s benefit ” equal to PERCENT of the average DATE salary in the public sector ; a fare discount of PERCENT on travel by municipal transport , rail and public long - distance buses ; a special allowance covering PERCENT of such household expenses as electricity , gas and heating ; and a discount of PERCENT on motor - vehicle insurance .

Section CARDINAL ( CARDINAL ) ( b ) of the DATE PERSON provides that its provisions also apply to persons who have been subjected to forced deportation to GPE during the Second World War and afterwards .

Under section CARDINAL ( CARDINAL ) of the DATE Law , veterans who have acquired the status of war or military invalids ( that is to say , who have been declared unfit for work and whose ailments have been caused by , inter alia , deportation in conditions provided for by LAW b ) of the DATE PERSON ) are entitled to receive benefits defined in LAW ( ustawa o zaopatrzeniu inwalidów wojennych lub wojskowych – “ the DATE LAW ) including , in particular , veteran ’s disability pension ( renta inwalidy wojennego ) . Pursuant to LAW CARDINAL ( CARDINAL ) of the DATE Law , certain family members , including widows and widowers aged over DATE , those who are invalids themselves and those who raise children DATE , and also certain categories of children , are entitled to certain benefits provided for by LAW . In particular , the DATE PERSON provides that they are entitled to family benefit ( renta rodzinna ) . At the material time , if there were CARDINAL family members eligible for that benefit , it was to be paid to them in the amount of PERCENT of a basic amount of CARDINAL NORP złotys ( ORG ) .

Under section CARDINAL of the DATE PERSON , a person divested of veteran ’s status retains an entitlement to his or her pension calculated under the rules applicable to the general social insurance scheme .

Section CARDINAL of the Law of DATE on retirement and disability pensions paid from ORG ( ustawa o emeryturach i rentach z systemu ubezpieczeń społecznych – “ the DATE LAW ) , applicable from DATE until DATE , read :

“ The right to benefits or the amount of benefits will be reassessed upon application by the person concerned , or ex officio , if , after the validation of the decision concerning benefits , new evidence is submitted or circumstances which had existed before issuing the decision and which have an impact on the right to benefits or on their amount are discovered . ”

ORG , in a judgment of DATE ( II AUa CARDINAL ) , held that the provisions of the social insurance legislation , in particular section CARDINAL of the DATE Law , allowed for the reopening of proceedings terminated by a final decision awarding a benefit only where new evidence or circumstances pre - existing prior to that decision came to light after that decision had become final .

The same court , in a judgment of DATE ( III AUa CARDINAL ) , held that the legal impossibility of applying section CARDINAL in situations where benefits had been awarded , despite the eligibility conditions not having been satisfied , would have been tantamount to endorsing decisions issued in manifest breach of substantive law .

ORG held on DATE ( I GPE CARDINAL/CARDINAL ) that in the context of social insurance proceedings the principle of res judicata operated differently than in the context of judicial decisions in civil cases , in a manner which limited its practical significance . Judicial decisions given in such proceedings established legal relationships between the insured person and the insurance system on the basis of the situation existing when such decisions were given . New developments , relevant to the question of compliance with the eligibility requirements , could justify changes in these legal relationships .

The Law of CARDINAL DATE on the social insurance system ( LOC o systemie ubezpieczeń społecznych ) , in its LAW , provides that if a person entitled to receive social insurance benefits provided for by that law dies , the benefits due until the date of his or her death are to be paid to his or her spouse and children living in the same household .

It further provides that the affected spouse and children have a right to participate in the proceedings concerning eligibility for social insurance benefits if the claimant died whilst they are pending .


CASE OF VENERA-NORD-VEST BORTA A.G. v. MOLDOVA

Government's request for a strike-out rejected;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On CARDINAL DATE the applicant concluded a contract with another private company . According to the contract , the applicant would locate assets belonging to the debtors of the second company in exchange for a commission . Since the second company failed to comply with the contract , the applicant brought an action against it seeking damages for breach of the contract .

On DATE ORG found in favour of the applicant and awarded it CARDINAL Moldovan lei ( MDL ) ( the equivalent of CARDINAL euros ( ORG ) at that time ) .

On DATE and DATE ORG of GPE and ORG respectively dismissed the second company ’s appeals and upheld the judgment of the first - instance court , which thus became final .

On DATE the Prosecutor General lodged with the Plenary of ORG a request for annulment of the judgment in favour of the applicant .

On DATE the Plenary of ORG upheld ORG request for annulment and quashed the judgment . It adopted a new judgment dismissing the applicant ’s action .

Following the communication of the case by ORG , ORG asked ORG to lodge a request with the Plenary of ORG in order to quash its judgment of DATE and to discontinue the request for annulment proceedings . He considered that the quashing of a final judgment in favour of the applicant following the annulment proceedings had breached the applicant ’s rights under the Convention .

On DATE the Prosecutor General complied with ORG request . He lodged a revision request relying on section CARDINAL § CARDINAL ( j ) of LAW ( the “ ORG ” , see paragraph CARDINAL below ) and indicated that the applicant and the Government intended to conclude a friendly settlement agreement .

By a judgment of CARDINAL DATE the Plenary of ORG dismissed the Prosecutor ’s request for revision on the ground that the parties had not submitted any evidence of the alleged friendly settlement .

NORP The relevant domestic law concerning the quashing of a final judgment was set out in LAW , no . CARDINAL/CARDINAL , § CARDINAL , DATE .

The Code of Civil Procedure of DATE , insofar as relevant , reads as follows :

Revision may be requested :

j ) When the Government of GPE , represented by ORG , or ORG has started a procedure of friendly settlement in a pending case against GPE , and the Government consider that by a final decision of a court a fundamental right guaranteed by LAW or by LAW has been breached .

k ) When ORG has found a violation of fundamental rights and liberties , as well as when it has found that the interested person could obtain , in accordance with domestic law , at least partial reparation by way of annulment of a judgment pronounced by a domestic court .

In NORP v. ORG on DATE ORG upheld the Prosecutor ’s request for revision lodged in accordance with section CARDINAL § CARDINAL ( j ) following the Government ’s Agent request . It discontinued the annulment proceedings , acknowledged the violation of the applicant ’s rights under LAW and awarded her compensation in respect of pecuniary and non - pecuniary damage and for costs and expenses .

In Dumitru Grosu v. ORG on DATE ORG upheld the Prosecutor ’s request for revision lodged on DATE in accordance with section CARDINAL § CARDINAL ( j ) following the Government ’s Agent request . It discontinued the annulment proceedings , acknowledged the violation of the applicant ’s rights under LAW No . CARDINAL to the LAW and awarded him compensation in respect of pecuniary and non - pecuniary damage and for costs and expenses .

In ORG v. ORG on DATE ORG upheld the applicant ’s action following the re - opening of the proceedings upon the ORG ’s request for revision lodged in accordance with section CARDINAL § CARDINAL ( j ) . It acknowledged the violation of the applicant ’s rights under LAW and LAW No . CARDINAL to the Convention and awarded him compensation in respect of pecuniary and non - pecuniary damage and for costs and expenses .

In ORG v. JSC PERSON on DATE ORG dismissed the Prosecutor ’s request for revision lodged in accordance with section CARDINAL § CARDINAL ( j ) following the Government ’s Agent request . It found that the Government had failed to submit any evidence of the violation of the applicant company ’s rights under the Convention . ORG also stated it could not re - open the case until the ORG had adopted a judgment on the merits of the case .


The applicant , born in DATE , is an NORP national of NORP origin and resident in GPE , GPE .

In DATE criminal proceedings were instituted against the applicant on the suspicion of insult . In these proceedings defence counsel assisted him .

On DATE , following a hearing , the GPE ( GPE ) ORG ( ORG ) convicted the applicant of insult and of having caused false suspicion , and imposed a fine of CARDINAL DATE rates of MONEY ( ORG ) .

According to section CARDINAL of LAW ) , insult ( PERSON ) is an offence punishable with a maximum of DATE imprisonment or a fine .

ORG found that in the course of a dispute between the applicant and the foreign couple Mr and PERSON about their alleged unlawful parking , he had stated that “ they came from the LOC and did not know about NORP law ” , and he had called them “ GPE ” , a term used in NORP language to disparage foreigners . Moreover , in the investigation proceedings instituted at PERSON and PERSON request , he laid information against them pretending that they had insulted him in the course of the above dispute , that PERSON had threatened him with force and that they had committed a parking offence . Subsequently , the applicant had also laid information against a witness of the above dispute , PERSON , pretending that this person had also insulted him . ORG established these facts on the basis of the applicant ’s statements as well as on the evidence given by PERSON and PERSON , Mr DATE PERSON , the applicant ’s life companion , and PERSON , a customs officer having witnessed the dispute in the course of an observation of the place . It also had before it photographs of the place in question .

On DATE , following oral hearings , ORG ( Land - gericht ) , upon the applicant ’s appeal , reduced the fine to CARDINAL DATE rates of DEM CARDINAL and dismissed the remainder of the appeal . ORG , on the basis of its own taking of evidence , confirmed in essence the establishment of facts by ORG . Thus the applicant had started a dispute with PERSON and PERSON about their allegedly wrong parking , stating that “ they were not on the LOC and had to comply with NORP traffic regulations ” and , in his annoyance , he had called them “ GPE ” . The court found that PERSON statements were refuted by the evidence given by PERSON , a neutral witness who had credibly explained that as a dog - fancier he would have seen PERSON and her dog . ORG , having regard to the material before it , including a site plan and photographs , also considered that an inspection of the place of the events had not been necessary . Furthermore , ORG rejected the applicant ’s arguments that the expression “ GPE ” was a neutral denomination of LOC NORP , considering that in NORP language this expression was unfortunately used , in a disparaging manner , in relation to foreigners .

On DATE ORG ( Oberstes PERSON ) dismissed the applicant ’s appeal on points of law .

On DATE ORG ( Bundesverfassungsgericht ) refused to entertain the applicant 's constitutional appeal . The decision was served on DATE .


Violation of Art. 3;Violation of Art. 13

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

The applicants were born in DATE and DATE respectively and live in GPE . They are father and son .

On DATE the applicants and friends of theirs were holidaying beside a lake near GPE . In turns , members of the group were riding a jetboat . On several occasions some of them rode close to a sports centre on the opposite shore .

NORP Some time later , unexpectedly , CARDINAL cars without licence plates arrived at the lakeside location where the applicants ' group was situated . CARDINAL men wearing camouflage uniforms got out of the cars , some of them wore vests with “ Police ” written on the back . The men were armed with sub - machine guns . They started insulting the applicants and their friends and threatening them , both verbally and by pointing their guns at them . The men made the applicants and their friends lie flat on the ground and then hit and kicked them repeatedly . The beating continued for TIME . At the same time , the men repeatedly shot at the applicants ' jetboat . After that they left .

On DATE the first applicant was examined by doctors who established that he had CARDINAL broken ribs , a superficial wound on his left temple and several bruises on his face , back and legs . The second applicant suffered bruises on his face , head and right leg .

On DATE the applicants complained to the prosecution authorities . On CARDINAL and DATE the first applicant lodged additional submissions , stating that he and his son were being followed and that he had been threatened in an attempt to induce him to withdraw his complaints .

The prosecution authorities opened criminal proceedings in relation to the beating and , on unspecified dates , brought charges against QUANTITY police officers working in ORG , a specialised unit of ORG . It was established that , at the relevant time , the accused had been dispatched to the area where the beating had taken place , with the task of guarding a Ministry of the Interior training centre and a forest reserve .

NORP The prosecution authorities collected witness testimonies from the applicants and their friends , as well as from other witnesses , including eyewitnesses to the beating . They commissioned a ballistic expert and carried out confrontations and identity parades .

On an unspecified date the applicants were admitted as civil claimants in the criminal proceedings .

Up to DATE the investigation had not resulted in indictments against the accused .

On an unspecified date after DATE the accused , relying on a new LAW , Article CARDINAL ( see paragraph CARDINAL below ) , requested that their case be brought to court or terminated .

NORP In DATE or DATE the prosecution indicted the QUANTITY police officers for causing bodily harm and for disorderly conduct .

On DATE the ORG remitted the case , finding that the prosecution authorities had committed procedural violations . In particular , it found that : CARDINAL ) it was not clear from the indictment whether the accused had been armed with sub - machine or automatic guns during the attack against the applicants ; CARDINAL ) the indictment had been based on insufficient evidence , and , in particular , on no material evidence ; CARDINAL ) CARDINAL of the witnesses had been examined superficially ; and CARDINAL ) the prosecution had failed to comment on exonerating witness testimony .

On DATE the prosecution filed a revised indictment against the police officers .

In a decision of CARDINAL DATE ORG established that the procedural violations found earlier had not been remedied . In addition , new deficiencies were identified : CARDINAL ) the prosecution had not commented on the possibility of bringing charges for the verbal threats ; CARDINAL ) the date of the record of the examination of a witness had been amended , but this had not been certified by a valid signature of the witness ; and CARDINAL ) the records showing that the accused had been notified of the results of the investigation had been printed out on a printer but the respective dates and hours had been added on a typewriter ; again , this additional information had not been certified by the accused 's signatures .

Concluding that the deficiencies thus identified amounted to material procedural breaches within the meaning of Article CARDINALa of the Code of Criminal Procedure ( see paragraph CARDINAL below ) , ORG terminated the criminal proceedings .

The applicants and the prosecution authorities appealed against this decision arguing that ORG had erred in concluding that the prosecution authorities had committed material procedural breaches . On DATE those appeals were rejected by ORG because decisions under LAW were not subject to appeal .

NORP Apparently , some internal inquiry into the officers ' conduct was carried out by ORG , but the ORG has not been informed of its course and findings . No disciplinary punishments were ever imposed on the police officers allegedly involved in the beating .

Articles CARDINAL , CARDINAL and CARDINAL of the Criminal Code make it an offence to cause a light , intermediate or severe bodily injury to another person . Article CARDINAL § CARDINAL ( CARDINAL ) provides that if the injury is caused by a police officer in the course of , or in connection with , the performance of his or her duties , the offence is an aggravated one . This offence is a publicly prosecutable one .

Persons claiming that they have been beaten by police officers can seek damages under LAW DATE . The remedy has been described in more detail in the ORG 's judgment in the case of NORP v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .

NORP In DATE the new Article CARDINALa of the Code of Criminal Procedure CARDINAL , in force at the relevant time , introduced the possibility for an accused person to request to have his case examined by a court if the preliminary investigation has not been completed within the statutory time - limit ( DATE for investigations concerning serious crimes and DATE for all other investigations ) . In such instances , the courts would send the case to the relevant public prosecutor 's office with instructions to either enter an indictment against the accused within DATE or discontinue the criminal proceedings . If the prosecutor 's office failed to take action , or if the case was remitted for material procedural breaches , which were not remedied within a new time - limit of DATE , the courts would terminate the criminal proceedings themselves . The alleged victims could not participate in the proceedings under Article CARDINALa of the Code of Criminal Procedure .

NORP Under domestic law , as it stood at the relevant time , victims of crimes could only participate in pre - trial proceedings as civil claimants . In this capacity they could acquaint themselves with the case file , present evidence , make requests and appeal against acts of the courts to the extent that this was related to their civil claim .


No violation of Art. 3 (substantive aspect);No violation of Art. 5-4;Remainder inadmissible

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE . He is currently serving a life sentence in GPE , following the commutation of the death penalty to which the courts sentenced him .

An initial application lodged by the applicant led to the finding of a violation of LAW because of the severity of the regime and conditions of detention imposed on him in PERSON prison DATE ( PERSON v. GPE , no . CARDINAL , DATE ) . The present case concerns events subsequent to the commutation of the applicant 's death penalty in DATE to CARDINAL of life imprisonment and his transfer to Pleven prison .

DATE the applicant was convicted on CARDINAL count of rape , CARDINAL of robbery , CARDINAL of aggravated robbery and CARDINAL of disturbing public order ( хулиганство ) . As a result he was given CARDINAL prison sentences and spent a total of DATE and DATE in prison before being released on DATE .

On DATE he was arrested near the border between GPE and GPE . In the course of the ensuing investigations he confessed to having murdered CARDINAL minors not far from his town , PERSON , on CARDINAL DATE , and explained that he had intended to leave the country illegally in order to avoid conviction . On DATE he was remanded in custody .

In the criminal proceedings against him he was charged with the murder of the CARDINAL children , aged DATE and CARDINAL respectively , with the attempted rape of CARDINAL of the CARDINAL victims , with attempting to leave the country illegally and with CARDINAL counts of trespassing followed by rape committed DATE . In a judgment of CARDINAL DATE ORG found him guilty of the murder of the CARDINAL children , of the attempted rape of CARDINAL of the victims , of attempting to leave the country illegally , and of rape committed in DATE after unlawful entry into the victim 's home .

On the strength of the evidence produced , the court established the circumstances of the the triple murder as follows . The applicant , a lorry driver , had known the CARDINAL victims because he had spent some time with their families on a festive occasion . On DATE he was asked to transport part of the harvest from the fields around PERSON . TIME he chanced upon the CARDINAL children playing by a river not far from the town . He persuaded them to get into his lorry and drove them to a wood QUANTITY away . There , he tied up the youngest CARDINAL and tried to rape the girl , who was DATE . Then , fearing that they would report him , he strangled the children CARDINAL by CARDINAL . To make sure they were dead , he kicked each child in the head several times and slit their throats with a knife . DATE he returned to the scene of the crime and buried the CARDINAL bodies .

NORP The court sentenced him to death for the murder of the CARDINAL children , considering that , under the circumstances , that was the only penalty that fulfilled the purpose of criminal repression set forth in Article CARDINAL of LAW : this was an exceptionally serious crime , with several aggravating circumstances ( the victims were all young children and had been killed in a particularly cruel manner in order to cover up another crime – the rape of CARDINAL of them ) , and the accused had already been convicted of other crimes , but the sentences he had served had not had the desired deterrent effect . The court 's decision was upheld by ORG on DATE . The applicant then submitted a request for the revision of the judgment , which was rejected on DATE .

The last executions of convicts sentenced to death in GPE took place in DATE . On DATE ORG placed a moratorium on all executions of prisoners sentenced to death . On DATE ORG abolished capital punishment and replaced it in LAW with a new penalty , life imprisonment without commutation ( доживотен затвор без замяна ) . By a decree of DATE , the Vice - President of GPE commuted the death sentences of the CARDINAL convicts who had been awaiting execution since the introduction of the moratorium , including the applicant , to sentences of life imprisonment without commutation .

On DATE , when news of the parties was last received , the applicant was still in Pleven prison . He had already served DATE and DATE of his life sentence .

On DATE the applicant was transferred to Pleven prison . In a decision of CARDINAL DATE ORG ordered him to be placed under the strictest regime , the “ special regime ” . It based its decision on section PERSON of LAW .

The applicant was placed in the section of the prison reserved for prisoners serving life sentences , located on the third floor and separated from the rest of the building by a locked door . It comprised CARDINAL cells , a corridor and a bathroom with lavatories .

Each cell measured CARDINAL ORG and was separated from the neighbouring cells by CARDINAL solid metal panels , and from the corridor by iron bars . The dividing panels jutted out QUANTITY past the bars , making visual contact between the prisoners impossible . Each cell had a metal bed and bedside table . A metal plate welded to the bars served as a table and another , welded to the bed served as a bench . There was a shelf on the wall for the detainees ' clothes .

The only daylight came from the windows in the corridor , which were too small to provide sufficient light or ventilation . There was a fluorescent lamp , controlled by the warder , on the ceiling outside each cell . At night light was provided by a CARDINAL-watt electric bulb fixed to the end of the metal partition panel , out of reach of the detainees . It was left on TIME , but the light it gave out was not bright enough to read or write by . There was a window in the bathroom , but it was covered with a metal plate . Heating was provided by radiators attached to the corridor walls , QUANTITY from the cell bars .

The applicant went to shower once DATE , and that was his only access to hot water . He was allowed to use the sanitation facilities in his detention quarters CARDINAL times a day . The rest of the time he had to use a plastic bucket as a toilet .

The applicant had the right to TIME exercise in the open air per day . Until DATE prisoners serving life sentences were taken out for their open - air exercise CARDINAL by CARDINAL , handcuffed and escorted by guards . It was then decided to take them out CARDINAL at a time , still in handcuffs , and after a while the use of handcuffs was dropped . In DATE the applicant and the other prisoners serving life sentences were allowed to play table tennis once a week in the activity room adjacent to DATE . They were also allowed to watch a film and see a priest once DATE . From DATE onwards the prison authorities allowed the applicant to work in his cell , folding envelopes .

NORP In DATE , at the applicant 's initiative , the prison governor took certain steps to improve the detention conditions of prisoners serving life sentences : the cells were left open TIME , allowing the prisoners to communicate and to use the lavatory when necessary , and giving them access to running water . The metal plate over the bathroom window was removed to let the daylight in . The electric light bulbs were moved closer to the cells and the metal wall by the applicant 's bed was covered with insulating material .

In DATE and DATE the applicant 's detention regime was relaxed twice in succession . On DATE he joined a group of ordinary prisoners and left the quarters reserved for prisoners serving life sentences . Since that date he has been sharing a CARDINAL m² cell with CARDINAL other prisoners . The door of the cell is left open in the daytime and he can talk to the other prisoners in his group in the corridor .

According to a report by ORG presented by the Government , the applicant regularly took part in sporting activities ( table tennis , football , volleyball ) and in the organisation of various concerts and festivities on national holidays , at GPE and over DATE . He regularly spoke to his close relatives on the telephone and received parcels from them . Since DATE he has worked as a cleaner in charge of the cells on the third floor of the prison .

NORP The applicant suffers from back pain ( discopathy ) , for which he was treated in hospital in DATE . According to him , the pain subsequently grew worse and on DATE he was examined by a doctor , who recommended physiotherapy . He received no such treatment and complained about it to the Minister of ORG . In a letter of DATE the Director ORG informed the applicant that the treatment recommended was not the usual method for treating his condition and , as he was under medical supervision , medicine could be administered to him in ORG prison .

According to a report by the director of the prison 's medical centre , presented by the ORG , the applicant consulted neurology specialists about his back pains on several occasions . In DATE he apparently underwent thorough medical examinations which revealed no complications .

In DATE , following a skin infection , the applicant underwent surgery at the GPE prison hospital . He was there from DATE to DATE . The doctors noted an improvement in his health by the time he left the hospital . The applicant says that since he was transferred to a shared cell he has had no particular health problems .

According to the report by the director of the prison 's medical centre , the applicant consulted the prison dentist over a CARDINAL times for different types of dental treatment DATE .

Under LAW ( CARDINAL ) and CARDINAL of LAW ( ORG ) as applicable prior to the abolition of capital punishment , the courts could pronounce the death penalty only for particularly serious crimes and only if they considered that the punitive and deterrent purposes of a criminal penalty could not be achieved by a lesser sentence . Until DATE the harshest sentence after the death penalty was imprisonment , for DATE in exceptional cases ( DATE the ORG ) . In DATE a new penalty was introduced : life imprisonment ( доживотен затвор ) , defined by LAW as “ confinement of the convicted person in a prison establishment until the end of his life ” . This sentence could be commuted by a court to DATE imprisonment after the convict had served DATE of his sentence ( Article FAC ( CARDINAL ) of the ORG ) .

The death penalty was abolished on DATE . A new penalty was introduced : life imprisonment without commutation ( доживотен затвор без замяна ) . This penalty replaced capital punishment in the provisions of LAW . At present it is considered as an alternative to imprisonment and ordinary life imprisonment for crimes considered particularly serious , such as murder or aggravated armed robbery . The relevant part of the explanatory memorandum that accompanied the law abolishing the death penalty read as follows :

“ ... It is proposed in the draft law to replace the death penalty with a new penalty , life imprisonment without commutation , which differs from life imprisonment . This penalty will remove the prisoner from society , depriving him of the possibility of committing new offences , and the penalty will have a deterrent effect on other would - be offenders ... ”

Thus , since the abolition of the death penalty , NORP legislation has provided for CARDINAL types of custodial penalty : imprisonment , for a period of DATE , life imprisonment with a possibility of commutation , and life imprisonment without the possibility of commutation . According to the statistics produced by the respondent Government , on DATE there were CARDINAL people serving life sentences without the possibility of commutation in NORP prisons . CARDINAL prisoners were serving ordinary life sentences .

Under the provisions of LAW , release on licence is applicable only to fixed - term prison sentences . Offenders sentenced to life imprisonment , with or without the possibility of commutation , are not eligible for release on licence .

The Code of Criminal Procedure DATE ( the ORG ) and the new LAW ( the ORG ) provide for the possibility for a regional court , at the request of the regional prosecutor , to commute a life sentence to an ordinary prison sentence ( ORG CARDINAL and CARDINAL of the CCP DATE and ORG CARDINAL and CARDINAL of the ORG ) . The regional court gives a reasoned decision ; a negative decision may be challenged in the higher courts . If the prosecutor 's proposal is rejected , no further commutation request may be submitted for DATE . The legislation makes no provision for the prosecuting authorities to apply for adjustment of the sentence of offenders sentenced to life imprisonment without commutation .

Under LAW , the power of clemency is a presidential prerogative . LAW , which explains the scope of this presidential power , reads as follows :

“ The President may use his power of clemency to grant a pardon in respect of all or part of the sentence and , in the case of the death penalty , a sentence of life imprisonment without commutation or a sentence of life imprisonment , grant a pardon or commute the sentence . ”

It is a discretionary power which the President has delegated to the Vice - President of the Republic . The Vice - President may decide to exercise the power , in either form , at any time while the sentence is being served . His decision is unconditional and irrevocable . Refusal by the Vice - President to exercise his power is not subject to judicial or administrative review .

NORP In practice a committee of experts from the President 's administration examines requests for presidential clemency and makes proposals to the Vice - President . In forming its opinion in each case the committee takes into account the position of the president 's legal advisers on criminal policy and relies on the information communicated by the prison administration about the convict concerned . Before reaching a decision , the Vice - President may interview the prisoner .

In the period from DATE to CARDINAL DATE the ORG received CARDINAL applications for clemency . CARDINAL of these were granted .

According to a report by ORG dated DATE , submitted by the Government , prisoners serving a life sentence without commutation had submitted CARDINAL applications for clemency to the successive Vice - Presidents of the Republic . None was granted . According to a letter from the head of the Vice - President 's Office submitted by the Government , from DATE to CARDINAL DATE the advisory ORG received CARDINAL applications for clemency from CARDINAL prisoners sentenced to life imprisonment without commutation . None was granted . The letter explains that the Vice - President is not required to give reasons for his refusal , but the prisoners concerned can renew their applications for presidential clemency without any restrictions .

According to Article PERSON of the DATE version of the PERSON on the Execution of Punishments CARDINAL , in the event of an ordinary life sentence the court was to order the offender 's placement under the strictest regime , called the “ special regime ” . Prisoners placed under that regime were confined to locked single cells kept under special surveillance ( LAW of the implementing regulations ) . Following its amendment on DATE , the PERSON on the Execution of Punishments expressly provided for prisoners sentenced to life imprisonment without commutation to be placed under the same prison regime as those serving an ordinary life sentence . The different regimes for custodial sentences , including the special regime , were defined in sections CARDINAL of the Law on the Execution of Punishments .

On DATE that PERSON was replaced by a new PERSON on the Execution of Punishments , which retained its provisions concerning the execution of the CARDINAL types of life sentence . The implementing regulations defined the different prison regimes , including the special regime , and the means of execution of custodial sentences ( sections DATE ) .

NORP CPT delegations visited Pleven prison in DATE and DATE . The reports on the CARDINAL visits were published ( in LANGUAGE only ) .

The parts of the report on the visit in DATE concerning the conditions of detention of prisoners serving life sentences and the medical care dispensed in prison read as follows :

“ ... iii . life - sentenced prisoners

In its previous reports , the ORG made recommendations concerning the conditions under which life - sentenced prisoners were held , and the regime applicable to them . The evidence gathered during DATE visit suggests that steps have been taken by the NORP authorities to improve the situation of life - sentenced inmates in the light of these recommendations . In this regard , the ORG 's delegation was pleased to learn of plans to progressively integrate life - sentenced prisoners into mainstream prison regimes . Pursuant to the recent amendments to the PERSON on the Execution of Punishments ( cf . Art . PERSON ) , the commission set up at each prison for the purpose of making decisions on prisoners ' regime can decide , on the basis of individual risk assessment , to transfer life - sentenced prisoners to ordinary units with the right to participate in work , education , sport and other activities .

... the CARDINAL life - sentenced inmates at FAC ... were accommodated in individual front - grilled cells of CARDINAL m² , in a specific section of the third floor . Access to natural light and fresh air was through small windows in the corridor situated in front of the cell ; as a consequence , lighting and ventilation were poorer than elsewhere in the establishment and the cells could apparently become very hot and stuffy in DATE . The cell equipment consisted of a bed , locker , table and chair ; in addition , prisoners could have a personal television set .

The ORG recommends that immediate steps be taken to improve material conditions of detention of life - sentenced prisoners at ORG . These improvements should include providing larger cells ( cells of CARDINAL m² are unsuitable for use as prisoner accommodation ) and better access to natural light and ventilation .

... , life - sentenced prisoners ' access to the toilet facilities was restricted to CARDINAL times a day . At other times , they had to use a bucket within their cells . ...

... life - sentenced inmates referred to recent improvements to their regime , involving ... the possibility of playing table - tennis . Further , ... the inmates concerned had been given some productive / creative work which they could carry out in their cells . Finally , they were now allowed to use the phone . These are all steps in the right direction .

However , life - sentenced prisoners complained about the lack of possibilities for associating among themselves and with other prisoners . The little time available for face - to - face interaction during DATE outdoor exercise ( which , at FAC , they took in groups of CARDINAL ) and recreational / sports activities did not offer adequate scope for human contact . ORG recommends that life - sentenced prisoners at FAC be allowed to take outdoor exercise together ( and not only in groups of CARDINAL ) .

The delegation heard hardly any complaints about access to the doctor and no particular difficulties were noted as regards the transfer of prisoners to outside hospitals or other specialist medical services . However , ... , there were some complaints about the standard of treatment and care , in particular as regards the range of medication prescribed and the quality of dental care . ... ”

The relevant provisions of the report on the DATE visit state :

“ iii . life - sentenced prisoners

In its previous visit reports , the ORG paid close attention to the situation of prisoners serving life sentences ( see paragraph CARDINAL of ORG ( DATE ) CARDINAL ; paragraphs CARDINAL - CARDINAL of ORG ( DATE ) . The delegation which carried out the DATE visit examined progress made in this area .

At the time of the visit , ORG was holding CARDINAL life - sentenced prisoners , of whom CARDINAL were held in a special section and CARDINAL had been placed in a unit for prisoners serving sentences under strict regime . ...

Since DATE , ORG had embarked on an “ experiment ” of integrating certain life - sentenced prisoners into the general prison population . At the time of the DATE visit , CARDINAL such prisoners were being accommodated in a unit for prisoners serving sentences under strict regime ( and CARDINAL more was expected to be moved there soon ) . They were held in a cell measuring CARDINAL ORG with CARDINAL other prisoners . Conditions in the cell were generally adequate ( large windows , various items of furniture , elements of personalisation ) . CARDINAL of the prisoners had a job as a cleaner and the other CARDINAL occasionally made gift bags in the cell . The cell doors were open throughout DATE and life - sentenced prisoners enjoyed the same rights as the remainder of prisoners under strict regime . It appeared from conversations with other prisoners and staff that the arrival of the life - sentenced prisoners in the unit had not caused any particular dissatisfaction or problems .

The “ experiment ” at ORG of integrating life - sentenced prisoners into the general prison population is a positive example to be followed in the rest of the country 's prisons . At present , the formal criteria for changing the regime of a lifer is to have served DATE under special regime ( not counting the period on remand ) , to have good behaviour and to have formally applied for the change of regime . The ORG wishes to stress that , whereas initial segregation of a person awaiting or starting a life sentence might be deemed appropriate on the basis of individual risk assessment in a specific case , persons awaiting or serving a life sentence should not be subject to a systematic policy of segregation . ... ”


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

ORG The applicant , Mr. PERSON , was born in DATE . He is a NORP citizen resident in GPE and a car driver by profession . He owned , together with his brother Mr. PERSON , the properties PERSON , CARDINAL:CARDINAL and TIME .

ORG On DATE , ORG ( kommunfullmäktige ) adopted an area plan ( områdesplan ) with a view to the development of a housing estate in an area including the applicant ’s properties . On DATE , ORG decided to apply to the Government for an expropriation permit for this area .

ORG The applicant objected to the expropriation in respect of CARDINAL of the CARDINAL properties concerned , because , as he submitted to the Government , he doubted that they were needed for the development contemplated and , further , he wanted to live with his mother in his GPE home situated on CARDINAL of the properties . He claimed that , when working out and adopting the area plan , ORG had not taken his interests sufficiently into account , something that would have been possible within the framework of a somewhat modified plan . However , the Government , taking the view that ORG had shown the need to include the applicant ’s properties , concluded that the conditions laid down in LAW DATE ( expropriationslagen CARDINAL - " the DATE LAW ) were satisfied . On DATE , they issued an expropriation permit .

ORG The decision indicated that the issue of the permit had to be followed by the institution of proceedings by the GPE before a real estate court not DATE . An action , the object of which was to settle the terms of the expropriation ( see paragraph CARDINAL below ) , was commenced on DATE before ORG at the Falun ORG ( tingsrätten ) .

ORG The applicant , his brother and the Municipality were involved in negotiations for a settlement until DATE . On DATE , before the main hearings started , they finally concluded an agreement : the applicant and his brother were to sell the properties to the Municipality , which was to lease back to the applicant for DATE , with a possibility of prolongation , a house situated thereon . On DATE , ORG struck the case off its list since , as a result of the settlement , the Municipality had withdrawn its claim for expropriation .

ORG On DATE , after the present case had been brought before ORG , GPE concluded an agreement with the applicant for the repurchase by him of the properties for CARDINAL NORP crowns , the same amount as it had paid for them in DATE .

LAW ( byggnadslagen CARDINAL:CARDINAL - " LAW " ) is the main legal instrument governing planning in respect of the use of land for construction and urban development . It provides for the drawing up of a master plan ( generalplan ) , which establishes within a municipality the framework for other and more detailed plans , namely city plans ( stadsplaner ) and building plans ( byggnadsplaner ) .

As in the present case , a municipal council may draw up an area plan , instead of a master plan . The manner in which area plans are elaborated and their content are not expressly governed by LAW but general principles of administrative law are , of course , applicable .

ORG The issue of expropriation permits is governed by LAW . Under LAW , LAW , such a permit is normally granted by the Government .

For cases like the present , the grounds justifying the issue of a permit are stated in LAW , section CARDINAL , of the CARDINAL LAW as amended by LAW ) , which reads as follows ( translation from NORP ) :

" Expropriation is allowed in order to enable a municipality to acquire rights over land which is needed , as a result of future societal requirements , for urban development ( tätbebyggelse ) or constructions in connection with such development . ... Within areas of urban development expropriation is allowed only if there is reason to assume that , within a foreseeable time , the area will be subject to building or other construction activities which are deemed important in the general interest , or if there is an urgent necessity for the municipality to acquire rights over the land for the furthering of planned building or for any other similar reason . ... "

However , a permit must not be granted if the purpose of the expropriation can be attained by other appropriate means , or if the disadvantages of the expropriation would outweigh , from general and individual points of view , its advantages ( LAW , section CARDINAL , of the CARDINAL Act ) .

ORG Under LAW , section CARDINAL , of the CARDINAL LAW , the sole effect in law of the issue of an expropriation permit is to confer on its holder an entitlement to acquire the designated property . Consequently , the issue of a permit leaves legally intact the owner ’s right to use , sell , let or mortgage his property ( see also paragraph CARDINAL below ) , and does not automatically lead to expropriation .

Before the expropriation can be finalised , its terms - such as the compensation to be paid to the owner and the boundaries of the expropriated area - have to be settled in proceedings before a real estate court . Moreover , the expropriation is not completed until the compensation - in principle equivalent to the market value - has been paid .

ORG The proceedings before the real estate court have to be instituted by the holder of the permit within the time - limit which it specifies , failing which the permit will lapse ( LAW , section CARDINAL , of the CARDINAL LAW ) .

The DATE Act is silent as to the length of this time - limit and as to the criteria upon which it is to be fixed . However , LAW , section CARDINAL , provides that it may be extended in special circumstances , or reduced if the owner so requests and establishes that the inconvenience for him in the expropriation remaining pending has increased significantly . No decision to reduce the time - limit can be taken until DATE has elapsed since the issue of the expropriation permit .

ORG Some reasons for restricting the time - limit and , hence , the duration of the validity of expropriation permits were stated in LAW , page CARDINAL , which led to the CARDINAL Act ( translation from NORP ) :

" Naturally , the mere issue of an expropriation permit often places [ the owner ] in a state of uncertainty . In practice , his opportunities for disposing of his property by selling it , assigning the use thereof or having premises erected thereon are considerably restricted . He may also have difficulty in deciding whether to incur expenditure on upkeep or modernisation . The disadvantages resulting from an expropriation permit are evidently increased if the judicial proceedings are not set in motion for a long time . "

Generally speaking , the NORP administration is not subject to supervision by the ordinary courts . Those courts entertain proceedings against the ORG only in contractual matters , on questions of extra - contractual liability and , under some statutes , in respect of administrative decisions .

Judicial review of the administration ’s acts is therefore primarily a matter for administrative courts . These courts comprise CARDINAL levels : the county administrative courts ( länsrätterna ) ; the administrative courts of appeal ( kammarrätterna ) ; and ORG ( regeringsrätten ) . They are composed of independent judges and enjoy , as a rule , wide powers which enable them not only to set aside administrative acts but also to vary or substitute them . There is , however , an important exception to this principle , in that no appeal may be made against decisions of the Government ( see paragraph CARDINAL below ) .

Chapter CARDINAL , section , CARDINAL of LAW of DATE ( kommunallagen CARDINAL:CARDINAL ) provides for and regulates , in a general way , the right to appeal ( kommunalbesvär ) against decisions by municipalities . This Act enables residents of the municipality to challenge , for instance , a municipal council ’s decision to adopt an area plan or apply for an expropriation permit .

At the relevant time , this remedy was exercisable before ORG ( länsstyrelsen ) , but only on the following grounds : failure to observe the statutory procedures , infringement of the law , ultra vires conduct , violation of the complainant ’s own rights , or other unfairness . The appeal had to be filed within DATE from the date on which approval of the TIME of the decision had been announced on the municipal notice - board . ORG decision could , within DATE from its notification to the complainant , be the subject of an appeal to ORG .

These provisions were slightly amended in DATE , with effect from DATE , in that the first appeal now has to be made to ORG and not to ORG .

ORG NORP law contains no provision for appeals to the ordinary or the administrative courts against the Government ’s decisions to issue expropriation permits . Accordingly , such decisions are in principle not subject to court review .

However , there is a limited possibility to file a petition before ORG for re - opening of the proceedings ( resningsansökan ) . Further particulars of this remedy appear in the GPE and PERSON judgment of DATE ( Series A no . CARDINAL , pp . CARDINAL , § CARDINAL ) .

ORG LAW does not in principle provide for compensation for prejudice resulting from the length of the validity of , or failure to utilise , an expropriation permit . It does , however , contain CARDINAL exception ( LAW , section CARDINAL ) : compensation is payable for prejudice occasioned by the issue of an expropriation permit if the authority or person to whom it was granted has instituted , but subsequently abandoned , proceedings before a real estate court ( see paragraphs CARDINAL above ) .

ORG According to LAW , section CARDINAL , of LAW DATE ( skadeståndslagen CARDINAL:CARDINAL ) , acts of public authorities may give rise to an entitlement to compensation in the event of fault or negligence . However , under section CARDINAL , an action for damages will not lie in respect of decisions taken by ORG , the ORG , ORG , ORG or ORG .