CASE OF SAGHINADZE AND OTHERS v. GEORGIA

Remainder inadmissible;No violation of Art. 5-3;Violation of Art. 5-3;No violation of Art. 5-4;Violation of Art. 5-4;Violation of Art. 8;Violation of P1-1;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria

The first and second applicants are husband and wife . They were both born in DATE . Their son , the third applicant , and his wife , the fourth applicant , were born in DATE and DATE respectively . The fifth and sixth applicants are the daughters of the first and second applicants and were born in DATE and DATE respectively .

The applicants , with the exception of the fourth applicant , are internally displaced persons ( “ IDPs ” ) from GPE , GPE . As a result of the armed conflict in DATE , they , along with CARDINAL other mostly ethnic NORP , fled GPE , abandoning their homes and property there .

As the first applicant had been a high - ranking official of ORG , the NORP Minister of the ORG offered him , in DATE , the post of Head of ORG within his Ministry . After the first applicant accepted the offer , he and his family were settled in a cottage belonging to the Ministry situated at no . CARDINAL ORG , in the outskirts of GPE ( “ the cottage ” ) .

According to the case file , the cottage became the ORG 's property on DATE . Under Order no . CARDINAL of the Minister of the ORG issued on the above - mentioned date , the ORG retrieved possession of the cottage from the ORG sports club ORG , and ORG became responsible for its use . The order of CARDINAL DATE stated that the retrieval of the cottage was justified in the light of “ a substantial increase in the number of staff members , ... coupled with the fact that , in view of the current hostilities in GPE , exiled staff members of ORG need to be provided with employment and accommodation . ”

The first applicant and his family started using premises adjacent to the cottage to create a small household economy by installing various fixtures and fittings for growing fruit and vegetables , and keeping poultry and small livestock . Later , the PERSON family gave free accommodation to CARDINAL homeless relatives who had been similarly displaced from GPE ( “ the PERSON family 's relatives ” ) . In DATE or DATE the third applicant married the fourth applicant , and the couple also stayed in the cottage .

In DATE the first applicant retired from service with ORG of the Interior .

On DATE the ORG issued a letter confirming the legitimacy of the possession of the cottage and the adjacent premises by the first applicant ( “ the ORG 's letter of DATE ” ) . The letter stated that the first applicant and his family had been settled in the cottage in DATE on the basis of an ordinance issued by the then Minister under the Internally Displaced Persons and Refugees Act of DATE ( “ the IDPs Act ” ) . The letter further noted that the possession was of a temporary nature , its period not being specified , and that the possessor had a duty of care . A copy of that letter was also addressed to the relevant local government authorities for information .

As made clear by the case materials , in DATE the fifth applicant left the cottage to settle with her husband in GPE . On DATE the sixth applicant became the registered owner of part of the land adjacent to the cottage .

Almost immediately after the Rose Revolution in DATE ( for more details , see ORG v. GPE , no . CARDINAL , § § CARDINAL , DATE ) , the newly appointed Minister of the ORG recalled the first applicant from retirement , asking him to lead the investigation into the PERSON case . This high - profile criminal case , which the authorities had been unable to investigate since DATE , concerned the abduction and disappearance of the brother of PERSON , a well - known NORP footballer with the NORP football club ORG . Having accepted the offer , the first applicant was promoted to the rank of police colonel and appointed as head of an independent investigative unit in charge of the PERSON case and other high - profile abduction cases , by a ministerial order of DATE .

According to the first applicant , his investigative unit elucidated the circumstances of the PERSON case over DATE . Allegedly , those findings were embarrassing for certain high - ranking officials who had been covering up criminal machinations in NORP football , and on DATE the then Prosecutor General , PERSON , personally requested the first applicant to drop the investigation .

NORP In DATE the Prosecutor General , PERSON , was appointed as Minister of the ORG . Allegedly , the newly appointed Minister removed the first applicant from the PERSON case and ousted him from office in a degrading manner on DATE .

On DATE the first applicant submitted a confidential file to ORG , a consultative body of the President of GPE . Allegedly , that file contained information revealing abuses of power by Mr GPE and other high - ranking officials .

On DATE the police visited the PERSON family at home and requested , on the basis of an oral instruction given by the Minister of the ORG , Mr GPE , that they vacate the cottage . The first applicant showed the police the ORG 's letter of DATE as proof of the legitimacy of his possession and requested the officers to leave .

On DATE the police visited the PERSON family again , with the same eviction request . However , as the police could not produce a court decision , the first applicant did not let them in .

On DATE the police made another attempt to evict the applicants . This time the cottage was allegedly besieged by CARDINAL policemen and several special forces agents wearing black balaclavalike masks . They reiterated that they had an oral order from ORG to evict the applicants . The first applicant engaged in heated argument with the officers , demanding that they either show a court authorisation to enter his home or leave immediately . On witnessing the tense situation , the second applicant fainted . The fourth applicant , who was pregnant at that time , also suffered a nervous reaction . As the police did not have the necessary court decision , they withdrew .

According to the applicants , on DATE a group of CARDINAL armed special forces agents wearing black balaclava - like masks broke into their cottage . The Head of ORG was in charge of that operation . The police , who did not have any legal document authorising such an action , forcibly ousted the second applicant and the PERSON family 's relatives from the cottage ( the other applicants , including the first applicant , were not at home during the incident ) . After the eviction , several police officers remained stationed in the cottage . An adjacent plot of land , which was the sixth applicant 's registered property , was also occupied by the police .

Subsequent to the incident of DATE , the first applicant brought civil proceedings and filed criminal complaints , challenging the arbitrary taking of the cottage and the obstruction of his professional activities by high - ranking officials of ORG .

In those proceedings , which are described below , the first applicant acted throughout on his own behalf as the sole claimant / complainant . None of the remaining CARDINAL applicants issued any document authorising either the first applicant or a lawyer to act on their behalf . Consequently , in so far as the first applicant 's claim for recovery of possession was concerned , the domestic courts limited the scope of their examination to the first applicant 's title to the cottage ( see paragraphs CARDINAL , DATE and DATE below ) .

NORP In addition to the proceedings pursued by the first applicant , the sixth applicant brought a successful action concerning the occupation of her plot of land ( see paragraph CARDINAL above ) . As a consequence of her complaints , ORG vacated the land on DATE .

On DATE the first applicant filed a civil action against ORG , seeking to recover possession of the cottage under LAW , CARDINAL of ORG . The first applicant complained that the cottage had been in his legitimate possession and had served as the home for him and his family since DATE . Stating that all his personal and household belongings had remained in the sealed cottage and that he and his family had no other place to live , the first applicant also sought an injunction enabling them to remain in the cottage pending resolution of the dispute . On DATE , FAC in GPE refused the request for an injunction as unsubstantiated but declared the main action admissible for examination on the merits . The first applicant then requested that , if his action were allowed , an immediately enforceable judgment be delivered under LAW ( “ the ORG ” ) .

In a judgment dated DATE , LOC allowed the first applicant 's action , ordering the respondent Ministry to hand the cottage back to the first applicant . Noting that the ORG 's letter of DATE had been proof of the fact that he and his family had settled there as IDPs from GPE on the basis of a ministerial ordinance , the court found that his possession of the cottage had been legitimate . The court further reasoned that section QUANTITY of LAW of DATE on Internally Displaced Persons and Refugees ( “ the IDPs LAW ” ) prohibited eviction of IDPs already in accommodation , unless ( a ) an agreement had been reached with them , ( b ) alternative accommodation had been offered , ( c ) the eviction had been made necessary by acts of nature and adequate compensation had been provided for , or ( d ) the IDPs had occupied the disputed LOC vexatiously , without any lawful basis . In so far as none of the above - mentioned conditions had been met in the first applicant 's case , the court reasoned that the eviction of DATE had been unlawful . ORG also criticised the respondent Ministry for taking the cottage without any legal decision , on the sole basis of the Minister 's oral instruction . It pointed out that , pursuant to LAW , an administrative act such as a ministerial order could be issued orally only in urgent situations and should be followed by a written copy within DATE ; this had not occurred in the present case . In the light of the above considerations , the court concluded that possession of the cottage should be restored to the first applicant on the basis of LAW .

NORP However , FAC refused to order immediate enforcement of its judgment . It stated that the refusal was justified in the light of the respondent ORG 's allegation that , after the eviction , it had stationed a unit of special forces at the cottage , which needed time to withdraw .

On DATE supporters of the first applicant visited the cottage . Having found it empty , they learned from the CARDINAL policemen guarding the LOC that , after the eviction of the PERSON family , the rooms had been sealed and no unit had ever been stationed there . A record of those findings was drawn up at the scene .

On DATE the respondent Ministry lodged an appeal against the judgment of DATE . Acknowledging that it had authorised the first applicant to use the cottage , the Ministry specified that his possession of the property had been of a temporary nature only . Consequently , the termination of the first applicant 's possession rights , and the attendant eviction of his family , could not be said to have been unlawful . ORG also claimed that the cottage and the adjacent land represented a strategic object for the ORG .

On DATE the first applicant also lodged an appeal against the judgment of DATE in so far as the refusal to order its immediate enforcement was concerned . Relying on the relevant record ( see paragraph CARDINAL above ) , he complained that the respondent Ministry had misled the lower court about the stationing of a police unit . As another argument for urgent recovery of possession of the cottage , he referred to the difficult social and housing situation of some of his family members . Thus , amongst other arguments , he claimed that the fifth applicant was about to return from GPE with her new - born child and that she had nowhere to live in GPE other than in the cottage .

On DATE ORG held a hearing on the merits . During that hearing the respondent Ministry acknowledged again that , apart from “ Mr I.O. 's oral order ” , no legal basis for the taking of the cottage had existed . ORG also stated that it had offered the first applicant on CARDINAL occasion the opportunity to recover his personal and family belongings from the cottage , but that the latter had refused to cooperate .

ORG also examined written and oral submissions from CARDINAL witnesses , PERSON and PERSON , who had been Deputy Ministers of the Interior when the first applicant was settled in the cottage . Those witnesses stated that the first applicant had written to the then Minister of the ORG in DATE , requesting employment and accommodation . The Minister had approved that request by appending his signature , and , consequently , the first applicant had been offered a new post within ORG and accommodated in the cottage . The decision had been prompted by the fact that the first applicant , a qualified agent praised for his investigative skills , had been left homeless by the hostilities in GPE .

The NORP ORG delivered its judgment on DATE , allowing the respondent ORG 's appeal in full . The court acknowledged the fact that the first applicant had used the cottage and the adjacent premises DATE and DATE . Referring to the order of CARDINAL DATE of the Minister of the ORG ( paragraph CARDINAL above ) , the court further found it established that the cottage had been the ORG 's property at the material time . It was also acknowledged that the first applicant had never obtained a registered title to the real property in question .

The appellate court then addressed the issue of whether or not the first applicant could be said to have possessed the cottage in good faith . It stated that , under LAW , the main consideration in that regard was whether he could be said to have acquired possession legitimately . Legitimacy would be excluded if the first applicant could have realised that he had taken possession unlawfully . Conversely , if his possession had turned out to be unlawful but the applicant could not have known it , he should be regarded as having possessed the property in good faith .

Reasoning in the light of the above - mentioned principles ORG stated that , in so far as the first applicant had failed to submit a legal document which would show that the cottage had been transferred to him on a lawful basis , his entry into possession could not be said to have been legitimate . The ORG 's letter of DATE was not accepted as valid proof in that regard , owing to the inconsistency of the information it contained . Thus , the appellate court noted that , whilst the letter stated that the first applicant had obtained the cottage in DATE on the basis of the IDPs Act , the latter statute had in reality entered into force much later , on DATE . In addition , a simple letter could not give rise , in the opinion of the court , to the creation of a legal relationship . ORG further reasoned that the first applicant could not rely on the IDPs LAW , in so far as it had been adopted subsequent to his settlement in the cottage . In any case , section CARDINAL § CARDINAL of that LAW , prohibiting the eviction of IDPs without a court order , was not applicable to his situation , as it had been added to the LAW on DATE , that is , after the taking of the cottage on DATE .

In the light of the above considerations , the Tbilisi ORG concluded that the first applicant should have realised that his possession of the cottage was unlawful . That being so , the respondent Ministry , as the rightful owner of the cottage , had been entitled to claim its property back from the first applicant 's dishonest possession , under Articles CARDINAL and CARDINAL § CARDINAL of the Civil Code .

One of the CARDINAL appellate judges , disagreeing with the majority , delivered a separate opinion . She was of the view that the respondent ORG 's letter of DATE clearly showed that the first applicant had obtained the cottage on the basis of a ministerial ordinance . Consequently , he should not be regarded as a dishonest possessor . The judge further noted that ORG had evicted the applicants without a court decision . Consequently , whilst ORG had a superior title to the cottage , the first applicant was nevertheless entitled to recover possession under LAW in fine of LAW .

On DATE the first applicant filed an appeal on points of law . Referring to the respondent ORG 's letter of DATE , the statements of the ex - Deputy Ministers of the ORG and other evidence in the case file , the first applicant challenged the appellate court 's conclusion as to his possession in bad faith . He emphasised that he had not occupied the cottage vexatiously but had been offered it by the respondent Ministry . The legitimacy of his possession further followed from the ministerial order of DATE , to which the appellate court had referred in its judgment . The first applicant noted that the order clearly stated that , at the time he had been resettled in the cottage , the Ministry had been authorised to use the cottage for the very purpose of housing displaced staff members .

The first applicant further argued that the main reason why the cottage had been transferred to him without extensive formalities was the humanitarian crisis prevailing in GPE in DATE , when CARDINAL homeless IDPs from GPE needed to be urgently housed by central Government . Referring to the statistical data , according to which around CARDINAL IDPs had been provided with accommodation by the ORG in the aftermath of the ORG conflict , the first applicant argued that it was unrealistic to expect that all property - transfer formalities should have been meticulously followed in every such case . The first applicant referred to numerous domestic legal acts – ordinances of the Head of ORG dated DATE , DATE and CARDINAL DATE , resolutions dated DATE and DATE of , respectively , ORG and ORG , the IDPs Act of DATE , a Presidential Decree dated DATE , and so on DATE by which ORG had assumed the obligation to house IDPs . In view of that responsibility on the part of the ORG , his settlement in and consequent possession of the cottage had been fully legitimate .

NORP The first applicant further complained that , before depriving him and his family of their home , the Ministry should have proved its case in a court . However , the eviction had been carried out not only without a court decision but also without any written administrative act . In this connection , the first applicant alleged that the appellate court had arbitrarily disregarded section QUANTITY of the IDPs LAW which had been in force at the time of their eviction and explicitly prohibited the eviction of IDPs who were already settled , without due process and proper compensation . In support of his arguments , the first applicant referred to ORG decision of DATE in the similar case of GPE and Others ( see paragraph CARDINAL below ) . Finally , referring to his difficult social and financial situation , the first applicant requested either full exemption from the court fee or deferral of its payment until after the examination of the case .

On DATE ORG criticised the first applicant for his failure to pay the court fee , ordering him to do so within DATE on pain of having his appeal rejected without examination . On DATE the first applicant paid a fee of CARDINAL NORP laris ( QUANTITY ( ORG ) ) , corresponding , in line with the relevant statutory requirement , to PERCENT of the value of the cottage . He also submitted an agreement showing that the money had been lent to him by a private individual for DATE .

On DATE , ORG dismissed the first applicant 's appeal on points of law and fully upheld the appellate judgment of DATE .

Endorsing the appellate court 's reasoning , ORG reiterated that the first applicant could recover possession of the cottage from the owner , the respondent Ministry , under ORG CARDINAL and CARDINAL of ORG only if his initial possession had been legitimate . Legitimacy meant that possession had to have been exercised on a lawful basis . However , since the first applicant had failed to produce a legal decision of the relevant authority authorising his occupation of the cottage in DATE , his ensuing possession could not be considered to have been exercised in good faith . As to the respondent ORG 's letter of DATE , ORG refused to accept it as a valid document , reasoning that , by virtue of Decree no . CARDINAL issued by the President of GPE on DATE , only ORG had been competent to enter into such transactions with private individuals . ORG further stated that only ORG and IDPs ( “ the Ministry of IDPs ” ) was competent to accommodate IDPs under section CARDINAL § CARDINAL of the IDPs LAW . Given that the cottage had not been offered to the first applicant by ORG , ORG reasoned that the housing guarantee contained in the IDPs Act did not apply to his situation . In the light of the above considerations , ORG concluded that the Ministry , as the rightful owner of the cottage , had been entitled to retrieve its property from the first applicant 's dishonest possession under ORG CARDINAL and CARDINAL § CARDINAL of LAW .

CARDINAL of the judges of ORG delivered a dissenting opinion . The judge in question stated that the facts of the case proved that the first applicant had at least possessed the cottage in good faith . Even assuming that he had not been a legitimate possessor , the respondent Ministry was not entitled to retrieve the cottage without due process and by force , in breach of the requirements of LAW . The dissenting judge therefore concluded that the first applicant was entitled to reclaim possession of the cottage under LAW in fine of LAW .

The criminal remedy was pursued by the first applicant concurrently with the civil one described above .

On DATE the first applicant requested ORG ( “ the ORG ” ) to open a criminal case concerning the arbitrary and violent eviction of CARDINAL DATE and the obstruction of his investigation into the PERSON case by high - ranking officials of ORG .

On DATE the ORG replied in writing that criminal proceedings could not be initiated “ owing to the absence of any relevant materials . ”

On DATE the first applicant lodged a court complaint against the ORG 's reply of DATE .

In a letter dated DATE ORG , in reply to a query from ORG , provided its version of the incident of DATE . Acknowledging that the cottage had been transferred to the first applicant 's possession in DATE by a decision of the then Minister of the ORG , the letter stated that the possession in question had “ recently become unlawful ” . Consequently , the ORG had decided to reclaim possession of its cottage , but the first applicant had refused to cooperate . Eventually , after several unsuccessful attempts , ORG , acting through the police , had persuaded the second applicant and the PERSON family 's relatives to vacate the cottage , in the absence of the first applicant . The letter emphasised that the eviction had not been forcible but , on the contrary , had been voluntary and peaceful , and that the second applicant had been able to take her personal belongings with her on eviction . As to the remaining movables in the cottage , including poultry and small livestock , the ORG 's letter stated that the applicants had been invited to retrieve them on CARDINAL occasion and could still do so . The letter noted that , subsequent to the eviction of DATE , the cottage had been sealed in order to prevent its being looted . It was also noted that the actual value of the cottage was GEL PERSON ( EUR CARDINAL ) .

In a decision of CARDINAL DATE the ORG rejected the first applicant 's complaint against the ORG 's reply of DATE . Stating that an informal letter from the prosecution authority could not be subjected to judicial review , the court advised the first applicant to challenge the letter before a senior prosecutor .

On DATE the first applicant lodged with ORG an interlocutory appeal against the decision of DATE and simultaneously lodged a hierarchical complaint within the ORG .

On DATE ORG dismissed the first applicant 's interlocutory appeal of CARDINAL DATE for the same reasons as those given by PERSON District Court on DATE . As to the hierarchical complaint , the ORG replied on DATE , paraphrasing the impugned letter of DATE as follows : “ Your request to initiate criminal proceedings for the eviction ... can not be satisfied owing to the absence of any relevant materials ” .

On DATE the Public Defender recommended that the ORG open a criminal case for abuse of power by high - ranking officials of ORG . ORG noted that if there had been lawful grounds for dispossessing the first applicant , the ORG should first have brought civil proceedings to that end , as required by the relevant domestic law .

On DATE the police conducted a search of the cottage , as an urgent investigative measure and in the absence of the first applicant or his lawyers . Local municipality officials attended the search as witnesses . On completion of the search the police drew up a report recording the discovery of firearms and of copies of documents concerning various criminal cases , including the PERSON case . On DATE a criminal case was opened against the first applicant for unlawful storage of a gun and confidential official documents . He was not however arrested at that time .

On DATE ORG , having examined the lawfulness of the urgent search , decided to legalise its results ex post facto .

On DATE the ORG , in view of the information obtained in the course of its investigation into the PERSON case , opened a criminal case for abuse of power allegedly committed by the first applicant 's investigative unit in DATE ( see paragraphs CARDINAL and CARDINAL above ) . In particular , several members of the unit , including the first applicant , were suspected of having wilfully misled the investigation into that case by extorting , under duress , false statements from a witness , Mr M. , and otherwise fabricating evidence .

On CARDINAL DATE the CARDINAL above - mentioned criminal cases were joined , and on DATE the first applicant was charged with unlawful possession of a gun , misappropriation of confidential official documents , illtreatment of a person , fabrication of evidence and other abuses of power committed in public office . The charges were based , inter alia , on the legalised results of the search of DATE and the incriminating statements of the victim , PERSON , as well as other documents and information including statements from several relevant witnesses , collected by the ORG in the course of its own investigation into the PERSON case ( see the preceding paragraph ) .

On DATE the first applicant was arrested and , DATE , the prosecutor requested ORG to remand him in custody pending trial . The reasons given for the request were the risk that the first applicant might abscond in view of the gravity of the charges and that he might impede the investigation , given that he could use his authority as a former high - ranking law - enforcement officer to influence the parties to the proceedings .

On DATE the ORG examined the prosecutor 's request at an oral hearing . The first applicant was assisted by CARDINAL lawyers during that hearing . Refusing the first applicant 's application for bail , the court ordered his detention for DATE . Having reviewed the criminal case materials and heard the parties ' oral pleadings , the court confirmed the existence of a reasonable suspicion that the offences had been committed . The imposition of pre - trial detention was found to be further justified , under LAW , by the assumption that the accused could abscond in view of the severity of a possible sentence . Lastly , without giving detailed arguments in that regard , the court shared the prosecutor 's fear that , if released , the first applicant could unduly influence the parties to the proceedings .

On DATE the first applicant appealed against the detention order of DATE , complaining , inter alia , that it had been based only on the gravity of the charges , and that the lower court had disregarded such elements as his age , his state of health , the difficult social situation of his family , his reputation and social esteem . Calling into question the credibility of the incriminating evidence against him , the first applicant also stated that there could be no reasonable suspicion of his having committed the offences in question .

On DATE , without holding an oral hearing , ORG dismissed the first applicant 's appeal . The court did not solicit written comments from the prosecutor , and its decision was based on the examination of the first applicant 's arguments only in the light of the case materials . Noting that it was premature to assess the wellfoundedness of the charges , the appellate court , after reviewing the available evidence , confirmed the existence of a reasonable suspicion against the first applicant . It upheld the detention order , reasoning as follows :

“ When selecting a measure of pre - trial restraint , account should be taken of the nature of the charges ( the repeated abuses of power committed in public office by the use or threat of force , actions which are particularly dangerous to public safety ) as well as their gravity ( the charges carry long - term prison sentences ) . Moreover , the investigation has still to establish the origins of the seized firearms , whether they could have been used in other crimes ... In view of the above , the prosecutor 's fear that the accused might abscond and/or unduly influence the parties to the proceedings is justified . Despite the fact that the accused is DATE , ... a more lenient measure of restraint would not secure the aims mentioned in LAW . ”

The appellate court further stated that the first applicant had failed to submit recent medical documents in support of his health complaints . Overall , the appellate court answered all the main arguments submitted by the first applicant .

On DATE the investigation was terminated and the prosecutor sent the bill of indictment , accompanied by all relevant documentation about the first applicant 's detention as well as other case materials , to ORG for trial . On DATE the trial judge , without holding an oral hearing , reviewed the first applicant 's continued detention . He issued a standard decision on a page - long template with pre - printed reasoning . The judge added in the blank spaces the name of the accused , the definition of the offence and the measure of pre - trial restraint . The preprinted reasoning read as follows :

“ In selecting the measure of pre - trial restraint , both the formal ( procedural ) grounds and the factual grounds ( sufficient evidence for imposing a restraint measure ) have been taken into account . The defendant is charged with a serious offence and the imposition of any other measure of restraint would not secure the aims mentioned in LAW .

Having examined the criminal case materials I consider , in the light of the arguments which were relied on when the restraint measure was first imposed , that there exist no grounds for cancelling or amending that measure at this stage of the proceedings either . ”

On DATE the first applicant was convicted at first instance of the offences with which he had been charged and was sentenced to DATE in prison . The case file shows that the conviction was upheld at last instance by ORG on DATE and that the first applicant is currently serving his prison sentence .

The relevant provisions of the Civil Code bearing on the notions of possession and ownership read as follows :

LAW of abuse of rights

“ Civil rights must be exercised lawfully . It is prohibited to exercise a right with the intention to harm somebody . ”

LAW and CARDINAL – Concept and types [ of possession ]

“ CARDINAL . Possession arises from the intentional acquisition of actual dominion over an asset . ...

A person who possesses an asset on the basis of a legal relationship which either confers entitlement for a definite period or confers an obligation shall be considered as the direct possessor , whilst the person who conferred the above - mentioned right or obligation shall be considered as the indirect possessor . ”

DATE in good faith

“ A possessor shall be considered to be in good faith if he or she possesses an asset on a legitimate basis or if such an assumption could be made by diligently observing his or her transactions . ”

LAW for recovery of possession by a possessor in good faith

“ A possessor in good faith who has been dispossessed may claim recovery of the disputed asset from the new holder within DATE . This rule shall not apply if the new holder has a superior title to the asset . A claim for recovery of possession may also be directed against a holder with superior title if the latter acquired the disputed asset under duress or by fraud . ”

Articles CARDINAL , CARDINAL and CARDINAL of the Civil Code differentiated between the following types of possession , affording them diminishing degrees of protection : ( i ) clearly legitimate possession ( a notion which , as shown by LAW , already contained the element of good faith ) , ( ii ) possession in good faith but without a legitimate title and ( iii ) possession in bad faith .

LAW of possession on a reasoned request by the owner

“ Possession is terminated on the submission by the owner of a reasoned claim against the possessor . ”

Article CARDINAL § DATE Concept of ownership

“ CARDINAL . The exercise of ownership in a manner which causes harm to others , unless justified by the owner 's overriding interests or other justifiable needs , shall be considered an abuse of a right . ”

Article CARDINAL § § CARDINAL and CARDINAL

“ CARDINAL . The owner can claim the asset back from the possessor unless the latter is entitled to possess it .

In the event of interference with the exercise of ownership other than the taking of the asset , the owner may request the trespasser to put an end to such an action . If the interference persists the owner may bring a court action against the trespasser . ”

Articles CARDINAL - CARDINAL contained the rules on liability for civil wrongs , socalled tort law . In particular , whilst the general provision , Article CARDINAL , stated that a civil wrong gave rise to a claim for compensation , Article CARDINAL specified that ORG agencies were jointly liable for damage caused to a private party by intentional or negligent actions on the part of their officials which amounted to an abuse of power .

Under LAW § CARDINAL and CARDINAL an administrative act could be issued orally in urgent situations only , when any delay could harm the legitimate interests of the ORG , the public or an individual . If an oral administrative act limited an individual 's rights or legitimate interests it had to be re - issued in writing within DATE .

The relevant provisions of the LAW concerning pre - trial detention are summarised in paragraphs CARDINAL and QUANTITY of the ORG 's judgment in the case of PERSON v. GPE ( no . CARDINAL , ECHR DATE ... ( extracts ) ) .

From its adoption on DATE , sections CARDINAL § CARDINAL and CARDINAL of the IDPs LAW stated that ORG and IDPs , together with other agencies of central Government and the local authorities , was responsible for the practical implementation of the rights conferred upon IDPs by LAW . Section CARDINAL further specified that the ORG stood as the guarantor of the protection of IDPs ' rights .

On DATE section CARDINAL was amended as follows :

Section CARDINAL § § CARDINAL and CARDINAL

“ CARDINAL . The ORG shall provide internally displaced persons with temporary accommodation .

Housing disputes shall be settled in court . Moreover , pending the restoration of the ORG 's jurisdiction over the whole of the territory of GPE , internally displaced persons shall not be evicted from dwellings in which they have been settled collectively , except where :

( a ) an agreement has been concluded with the internally displaced persons concerned ;

( b ) the internally displaced persons have been offered another appropriate dwelling which will not represent a worsening of their existing housing situation ;

( c ) an act of nature has occurred and appropriate compensation is provided for ... ;

( d ) the contested dwelling has been occupied by the internally displaced persons vexatiously . ”

Section CARDINAL remained in force , in the version cited above , until DATE . On that date an amendment to the IDPs Act removed the abovementioned provisions from section CARDINAL and incorporated them , with some – mostly textual – corrections , into section CARDINAL § CARDINAL .

DATE . Under sections CARDINAL , DATE and DATE of LAW , a person 's eviction from his or her home could be carried out only on the basis of a final and binding court decision and the corresponding enforcement order , and was a prerogative of the enforcement authority , which formed part of ORG .

As it emerges from the circumstances of that case , several homeless IDPs from GPE occupied vacant dwellings in GPE in DATE . The dwellings were ORG property at that time , being owned in particular by the ORG publishing house . The IDPs had settled there with the consent of the management of the publishing house but without any formal authorisation or supervision from either the Ministry of IDPs or any other central or local authority . Subsequently , some staff members of the publishing house claimed ownership of the dwellings in question and the management brought a court action in DATE requesting the IDPs ' eviction .

ORG finally resolved the dispute in the IDPs ' favour , reasoning as follows :

“ [ t]he ORG has undertaken to accommodate IDPs . Hence , by a resolution of DATE of ORG ... as well as by LAW of DATE , the central and local authorities were instructed to ensure the protection of IDPs by settling them in vacant buildings ... pending final resolution of the [ Abkhazian ] conflict . ...

vexatiously , ... the dwellings were vacant at that time , and the management did not contest the IDPs ' right to possess them until DATE .

The condition subject to which the ORG has undertaken to provide IDPs with accommodation – the resolution of the conflict – has not been fulfilled yet . It is objectively impossible for [ the IDPs in question ] to return to their homes [ in GPE ] .

The case file shows that the disputed dwellings ... were and still are ORG property . Consequently , the ORG may not request [ the IDPs in question ] to vacate these dwellings without offering them adequate alternative accommodation .

On the basis of the above - mentioned obligation of the ORG , the [ IDPs ' ] possession of the dwellings is legitimate within the meaning of LAW of LAW . [ Consequently ] , their eviction , [ which would amount to ] the termination of their possession rights , is prohibited under LAW . ”

Principles DATE and CARDINAL read as follows :

Principle CARDINAL § CARDINAL

“ CARDINAL . All internally displaced persons have the right to an adequate standard of living . ”

Principle CARDINAL § § CARDINAL and CARDINAL

“ CARDINAL . No one shall be arbitrarily deprived of property and possessions .

The property and possessions of internally displaced persons shall in all circumstances be protected ... ”

Principle CARDINAL § CARDINAL

“ CARDINAL . Competent authorities have the primary duty and responsibility to establish conditions , as well as provide the means , which allow internally displaced persons to return voluntarily , in safety and with dignity , to their homes or places of habitual residence , or to resettle voluntarily in another part of the country . ”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and lives in GPE .

On DATE PERSON , the current applicant 's mother , brought proceedings in the Benevento Magistrate ’s Court , sitting as an employment tribunal , seeking acknowledgment of her right to an invalidity pension ( pensione di inabilità ) and an attendance allowance ( indennità di accompagnamento ) .

On DATE the magistrate 's court fixed the first hearing for DATE . On DATE the court appointed an expert and adjourned the proceedings to a hearing on DATE .

In a judgment of DATE , the text of which was deposited with the registry on DATE , the court dismissed PERSON claim .

On DATE PERSON lodged an appeal with ORG . The president of the court designated a judge rapporteur and set the appeal down for a hearing on DATE .

In the meantime , also on DATE , PERSON died . On DATE the applicant joined the proceedings . A hearing was to be held on DATE . In a judgment of DATE , the text of which was deposited with the registry on DATE , the court upheld PERSON claim as of DATE .

On DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto ” Act , complaining of the excessive length of the above - described proceedings . The applicant requested the court to rule that there had been a breach of LAW and to order ORG to pay compensation for the non - pecuniary damage sustained , which he assessed at MONEY ( MONEY ( ORG ) ) .

In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that a reasonable time had been exceeded . It awarded the applicant ORG CARDINAL in compensation for non - pecuniary damage and EUR CARDINAL for costs and expenses . The decision became final by DATE at the latest .

NORP In a letter of CARDINAL DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of the application . According to the information provided by the applicant on DATE , the authorities had not yet enforced ORG decision .