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

ORG The applicant , a NORP national born in DATE , is a businessman resident at GPE in GPE .

Until DATE , he lived with his wife and their CARDINAL children at GPE ( in GPE ) . On CARDINAL DATE , the chairman of ORG for co - ordinating the disbandment of the NORP / LAW ( ORG ) and the ORG ( ORG ) " ordered the applicant ’s immediate arrest on the grounds that he was a " dangerous reactionary " and that it was necessary to " investigate his reactionary activities " . At the time , following the attempted coup of CARDINAL DATE , GPE was going through a difficult period , which lasted until the adoption of the new LAW on DATE .

Having learned that he was about to be arrested , the applicant fled to GPE with his family and did not return to GPE until DATE , after the warrant for his arrest had been revoked .

ORG In his absence the employees of his civil - engineering firm took over the company and other assets of his , including his house , furniture and bank accounts . On DATE , ORG declared the applicant ’s business insolvent . Furthermore , ORG , a public bank from which the applicant had bought his house , repossessed the house for default on payment and sold it to someone else .

The applicant was later able to reach a friendly settlement and recover possession of the house on payment of certain sums to the bank and to the other person involved .

ORG On DATE , the applicant brought a civil action in ORG ( auditoría administrativa ) of GPE seeking damages from ORG no . CARDINAL of DATE on the ORG ’s non - contractual liability for acts of public administration ( see paragraph CARDINAL below ) . He contended that the warrant for his arrest had been illegal as it did not specify an offence and did not have a " proper purpose " . The applicant claimed CARDINAL escudos in compensation for pecuniary and non - pecuniary damage .

DATE , the court registered the originating application ( petição inicial ) and issued a summons to the defendant - represented by ORG ( ministério público ) - requesting a reply within DATE , in accordance with Article QUANTITY Civil Procedure ( see paragraph CARDINAL below ) .

ORG On DATE and again on DATE , ORG granted a DATE extension of time applied for by ORG under LAW of LAW ( see paragraph CARDINAL below ) .

ORG On DATE , ORG again applied for an exceptional DATE extension on the ground that he needed more information in order to prepare his submissions in reply ( contestação ) . The court granted the application on DATE . CARDINAL further applications for exceptional DATE extensions were made by ORG on DATE and CARDINAL DATE , on the ground that he did not yet have all the material with which to prepare his reply . The court granted these applications on DATE and DATE respectively .

ORG On DATE , the applicant complained to the court of this series of extensions and requested copies of some of the documents in the file in order to complain to ORG and to ORG breach of LAW ( article DATE ) of the Convention .

ORG On DATE , he lodged notice of an appeal against an interlocutory order ( de agravo - " interlocutory appeal " ) to ORG ( Supremo Tribunal Administrativo ) in respect of ORG decision of DATE in allowing ORG more time . He lodged the appeal with the lower court , with a request that it should be forwarded immediately to the higher court .

On DATE , ORG declared the interlocutory appeal admissible but ordered that it should be placed on the file with the main appeal and not separately forwarded to ORG straightaway . It added that the interlocutory appeal had no suspensive effect .

ORG In his statement of grounds of appeal ( alegações ) dated DATE , the applicant contended that ORG had infringed LAW in extending the time allowed to ORG to file his pleadings by DATE without exceptional cause , and that ORG had failed to specify what evidence and information he still needed . Such an extension of time could not be granted by the court arbitrarily , but only on exceptional grounds , and it could not exceed DATE . Yet on this occasion DATE had passed without ORG submitting his pleadings or giving valid reasons for not doing so .

ORG On DATE , ORG applied for another exceptional DATE extension on the ground that ORG had moved into other LOC and that for a time this had halted his office ’s work . When invited by the court on DATE to comment on this application , the applicant replied - on CARDINAL DATE - that he considered it unjustified ; he further demanded that it should be refused and that the time allowed to ORG should be declared to have expired .

ORG State Counsel ’s pleadings were filed with ORG on DATE and immediately forwarded to Mr. PERSON by the registrar of the court .

In the belief that ORG had decided to include these in the file and have a copy served on him , the applicant lodged with that court notice of an interlocutory appeal to ORG on DATE and requested that the appeal should be forwarded immediately to the higher court and should have suspensive effect .

On DATE , the applicant nevertheless filed his reply ( réplica ) to the pleadings lodged by ORG , who made a rejoinder ( tréplica ) on DATE .

ORG On DATE , ORG submitted his observations ( contra - alegações ) on the applicant ’s interlocutory appeal of DATE . As grounds for the requested extensions , he alleged the need not only to assemble evidence but more particularly to decide on the general thrust of his pleadings , especially as regards objections . Moreover , there was no requirement under LAW of LAW to give detailed reasons for his application ; a general justification was sufficient . Admittedly , LAW required the court to remove any hindrance delaying the proceedings , but that was a discretionary power which in the present case could not be usefully exercised .

ORG On DATE , ORG reversed its decision of CARDINAL DATE to allow ORG more time and instead refused the application . Relying on LAW , it ruled that an extension of time could only be granted if ORG neither had the necessary information nor could obtain it in the time allowed . In addition , he had to specify the subject on which he needed information and the steps he had taken to obtain it . In the present case he had simply said he needed more information , without giving further particulars .

The court accordingly excluded as having been filed out of time all pleadings submitted by the parties after DATE , that is to say ORG pleadings of CARDINAL DATE , the applicant ’s reply of DATE and the rejoinder of DATE , and ordered that they be removed from the file .

Noting , lastly , that ORG pleadings had been sent to the applicant by the registrar and not by the court itself , the court refused to entertain the applicant ’s interlocutory appeal of CARDINAL DATE , as no appeal lay to the higher court against actions by the registrar , and a complaint should be made to the court itself .

ORG On DATE , the court ordered a number of investigatory measures , including a search for the warrant issued for Mr. PERSON ’s arrest in DATE .

When it became apparent that no trace of the warrant could be found , ORG gave a preliminary decision ( despacho saneador ) on DATE declaring the case admissible and setting out a list of the facts agreed by the parties ( especificação ) and a list of matters to be clarified at the hearing ( questionário ) .

ORG On DATE , under LAW of LAW , the applicant lodged a complaint against this decision . He argued that , as ORG pleadings had been withdrawn from the case file , all the allegations he had made in his own statement of claim were to be regarded as admitted , since LAW sub - paragraph ( b ) and LAW ( see paragraph CARDINAL below ) had been abrogated by LAW ( article LAW , which laid down the principle of equality of arms . Consequently , all the matters which the court had considered needed clarification at the hearing should have been put in the especificação as having been conceded .

ORG comments on the complaint were lodged with the court on DATE .

ORG On DATE , the registrar submitted the file to the court , and on DATE the judge dismissed the complaint , apologising for the delay caused by his absence abroad on official business from DATE . He acknowledged that the applicant ’s arguments were lent support by a learned article and by a court decision at first instance ; but the latter had been set aside by ORG on DATE , and he stated his agreement with that court ’s decision : ORG had less opportunity to meet those it represented , particularly where the defendant was a ORG body . In addition , the law , in order to be fair , sometimes had to treat the parties differently if they were not to be equal on paper only ; the principle of equality of arms entailed compensating for initial inequality - for example , by providing legal aid or setting more generous time - limits in the case of persons resident in a distant country or whose whereabouts were unknown .

ORG On DATE , this decision was communicated to Mr. PERSON , who on DATE lodged notice of an interlocutory appeal against it to ORG .

On DATE , ORG decided to forward the appeal to the higher court together with the entire case file and to give it suspensive effect .

In his statement of grounds of appeal dated DATE , the applicant put forward substantially the same arguments as in the complaint he had made to ORG on DATE . On DATE , ORG and the latter court submitted their observations on the appeal .

ORG The file reached ORG in DATE , whereupon ORG was asked to submit his opinion , and CARDINAL judges of the court then drew up their report .

On DATE , ORG dismissed both interlocutory appeals , of CARDINAL DATE and CARDINAL DATE .

With regard to the first appeal , against ORG decision of CARDINAL DATE , ORG found that on DATE the judge below had himself rectified the situation by rescinding the impugned decision and excluding all pleadings submitted after DATE as being out of time .

With regard to the second appeal , against ORG decision of CARDINAL DATE , ORG ruled that , contrary to the applicant ’s contention , LAW sub - paragraph ( b ) of LAW had not been abrogated by LAW ( article LAW . The ORG was in any case differently placed from private companies . Accordingly , not all Mr. PERSON ’s submissions as to the facts were to be regarded as having been conceded ; it was for ORG to consider them in the light of evidence adduced at the hearing .

ORG On DATE , the applicant appealed against this decision ( acordão ) to ORG , asking it to rule whether LAW sub - paragraph ( b ) was still in force .

The Constitutional Court registered the appeal on DATE . The applicant and ORG filed their pleadings on DATE and DATE respectively . ORG submitted that the court had no jurisdiction , as no breach of the LAW had been alleged by the applicant either at first instance or before ORG . Mr. PERSON replied on DATE that a breach of the principle of equality of arms was contrary both to the Convention and to the LAW .

On DATE , ORG dismissed the objection and proceeded to consider the question of the principle of equality of arms . In a judgment on DATE , it dismissed the appeal , and the applicant immediately challenged the judgment as being null and void ; but it was confirmed on DATE .

ORG The proceedings in ORG have since resumed and are at the preliminary stage .

ORG Following the revolution of DATE , ORG promulgated PERSON no . DATE , of DATE , which upheld the existing schedule of basic rights and freedoms in LAW and also laid down fundamental principles concerning judicial independence and defence rights . Article CARDINAL § CARDINAL of the DATE LAW recognised " the right to reparation for actual infringements of rights " ; as to non - pecuniary damage , statutory provision could be made for financial compensation .

Most of the existing provisions of civil and criminal law were retained , in particular Legislative Decree no . CARDINAL of DATE on the ORG ’s non - contractual liability .

By Legislative Decree no . CARDINAL of DATE , the powers of ORG for co - ordinating the disbandment of the NORP / LAW and the ORG " - a commission which had been set up pursuant to an order ( despacho ) issued by the ORG Chief of Staff on DATE - cover the preparation of proceedings against individuals who belonged to the relevant police forces or collaborated with them ( LAW ) ; the chairman of ORG had the same powers as those conferred on commanding officers of the military regions under LAW ( LAW ) .

ORG By LAW of DATE :

" CARDINAL . The ORG and other public bodies shall be jointly and severally liable in civil law with the members of their agencies , their officials or their agents for actions or omissions in the performance of their duties , or caused by such performance , which result in violations of rights , freedoms or safeguards or in prejudice to another party .

Wrongly convicted persons shall have a right to retrial and to compensation for damage sustained , on conditions to be laid down by law . "

The LAW was amended by LAW no . CARDINAL of DATE , LAW which reproduces the foregoing LAW unchanged , however .

ORG LAW of DATE , which is still in force , deals with the ORG ’s civil liability but only in respect of acts of " private administration " ( LAW . As regards acts of " public administration " , Legislative Decree no . CARDINAL of DATE contains provisions on the non - contractual liability of the ORG and other public bodies for acts due to negligence , abuse of authority or deceit by their agencies or officials . The most important of these are as follows :

" LAW

ORG The ORG and other public bodies shall be liable to third parties in civil law for such breaches of their rights or of legal provisions designed to protect the interests of such parties as are caused by negligent acts ( actos ilicitos culposamente praticados ) of their agencies or officials in the performance of their duties or as a consequence thereof .

ORG Where any compensation is paid pursuant to the previous paragraph , the ORG and other public bodies shall have a right of recourse against the members of the agency or the officials at fault if they failed to act with proper diligence .

Article CARDINAL

ORG Members of the agency and officials of the ORG and other public bodies shall be liable to third parties in civil law for unlawful acts in breach of their rights , or of legal provisions designed to protect the interests of such parties , where they have exceeded their powers or if they acted with wrongful intent in exercising them .

ORG The public body shall always be jointly liable with the members of the agency or the officials concerned for acts performed with wrongful intent .

Article CARDINAL

ORG The negligence ( culpa ) of the members of the agency or of the officials concerned shall be assessed in accordance with LAW .

ORG Where CARDINAL person is liable , LAW shall apply .

Article CARDINAL

ORG The right to compensation under the foregoing provisions shall be time - barred after expiry of the periods laid down in LAW .

Limitation of actions by the ORG to enforce its right of indemnity is likewise governed by civil law .

ORG Under LAW , actions for damages in respect of liability of public authorities come within the jurisdiction of the administrative courts ( auditores - Articles CARDINAL and CARDINAL ) . With the exception of certain rules regarding locus standi and limitation ( Articles CARDINAL and CARDINAL ) , LAW explicitly refers to the provisions governing ordinary civil procedure .

Decisions of administrative courts are subject to appeal as to the merits , interlocutory appeal and complaint ( LAW . Certain interlocutory appeals have a suspensive effect and must be referred forthwith to ORG , in particular those made against a decision to dismiss a complaint against a preliminary decision ( Article CARDINAL sub - paragraph ( d ) ) , while others must be forwarded with the case file when the final decision is appealed , and have no suspensive effect ( Article CARDINAL ) .

ORG The procedure in question must therefore comply with the rules in LAW .

LAW provides that " if the defendant fails to submit pleadings in reply notwithstanding the proper issue of a summons ... , the facts as pleaded by the plaintiff shall be deemed to have been admitted " .

Article CARDINAL lays down certain exceptions to this principle , however ; in particular , sub - paragraph ( b ) states that the rule does not apply where the defendant is a legal person .

Under LAW the defendant has DATE in which to reply to the claim , but paragraph CARDINAL of the same LAW provides :

" State Counsel shall be granted more time when he needs information he can not obtain within the time - limit or when he is awaiting a reply from a higher authority . The extension may not exceed DATE unless exceptional cause is shown . "

Article CARDINAL § CARDINAL of the Code of Civil Procedure stipulates that " the defendant shall reply clearly to each item of fact in the originating application ; items not expressly ( especificadamente ) disputed shall be regarded as agreed between the parties except where obviously inconsistent with the defence as a whole , or not capable of being admitted , or provable only by written document " .

By paragraph CARDINAL , however , this provision applies neither to defence counsel assigned by the court nor to ORG .

Under LAW , once the parties have been informed of the preliminary decision they may make " any complaints they wish about the list of the facts agreed by the parties or the list of matters to be clarified at the hearing on grounds of procedural irregularity ( deficiência ) , irrelevance ( excesso ) , complexity or obscurity " .


The applicant is a NORP national , born in DATE and living in GPE ( GPE ) . He is represented before the ORG by Mr PERSON , PERSON and PERSON V. ORG , lawyers practising in GPE .

A.

In DATE the applicant went to GPE to study law at ORG .

In TIME of DATE , he was with some friends at a night club celebrating carnival . At TIME he left the club with a friend of his . He had had a number of drinks ( mix of wine and ouzo ) and was intoxicated when he left the club .

At a flat , QUANTITY away from the club , a robbery and attempted murder of an old lady had taken place at about that time . The neighbours had called the police because they heard loud cries and the lady , after the arrival of the police was transferred to hospital where she died from her wounds caused by a broken glass TIME .

The applicant was arrested by the police at TIME on DATE at the home of the victim , in a state of unconsciousness due to his intoxication . The applicant ’s leather jacket , golden chain and ring , watch , lighter and wallet were missing .

As soon as he recovered , the applicant was informed that he was being arrested for attempted murder of the lady . He maintained that he did not know the lady and that he could not remember the events of TIME or how he was found at the scene of the crime . He also requested to undergo a blood test to verify the level of alcohol in his blood , but the police refused to do so until TIME following the arrest .

At the police station , the applicant was not allowed to meet with his lawyer and the police put pressure on him to confess . As he refused to do so , he was beaten , taken to a special room and handcuffed , beaten on the soles of his feet and the wrists and on other parts of his body and the police threw urine over his body . During the interrogation , the police swore at him and his country . The applicant was kept at the police station for DATE where at TIME he was taken to a special cell . He was tied up TIME naked , without any blankets ( even though it was DATE ) or food and was not allowed to go to the toilet . At times the police opened the cell and they spat at him and cold water was thrown over him .

On DATE , at TIME the applicant was transferred to ORG office . Allegedly , the police took no steps to ensure his safety and this gave the opportunity to a relative of the victim to strike the applicant on the head and other parts of his body . On DATE the applicant was sent to ORG , where he was detained in a room with no beds or blankets , full of rubbish and with no toilets or heating facilities .

On DATE the applicant was transferred to the prison of PERSON . For DATE the applicant was locked in a corridor as there was no space in any of the cells in the prison . There was neither heating nor access to a toilet or a shower . Then the applicant was transferred to an overcrowded cell , where many inmates , apparently ill , were left without any medical care . The applicant alleges that CARDINAL of the inmates was left to die from his illness in that cell since the prison authorities refused to send him to the hospital , although they had been repeatedly invited to do so .

In DATE , the applicant was transferred to the PERSON prison , as his trial before ORG of GPE was scheduled in DATE .

The applicant appointed a lawyer specialising in criminal cases and paid him CARDINAL CARDINAL CARDINAL drachmas . However , DATE before the trial , the applicant maintains that the lawyer suggested to him to pay MONEY more , of which amount CARDINAL would be for the lawyer and CARDINAL for the judge ; the plan was for the applicant to plead guilty and the judge to impose a sentence of DATE . As the applicant completely disagreed with this method , he changed lawyer .

On DATE , the proceedings started before ORG of GPE . In view of the recent change of his lawyer , the applicant requested an adjournment of the hearing in order to permit the lawyer to study the case file . However , ORG noted that the new lawyer had assisted the previous CARDINAL throughout the investigation proceedings and adjourned the hearing until DATE . On DATE , the applicant requested a further adjournment until DATE , because he had in the meantime appointed a second lawyer who was unable to attend the hearing on DATE due to another professional obligation . ORG granted the request and also ordered ORG to submit its report on the finger prints which was missing from the case file . Furthermore , ORG decided to summon the coroner who examined the body of the victim .

During the hearing , the applicant complained that certain vital evidential elements had not been provided to the Public prosecutor ’s office or to him . Namely , the coroner ’s report which showed that the victim had died from a wound that was caused by a stable hand . Counsel for the defence also complained that the evidence file did not contain the report on the finger prints found on the glass by which the old lady was wounded and that this report had been hidden . ORG proposed to call as witnesses the man who heard the screams of the victim and ORG of the police station of the place in which the robbery was perpetrated . However , ORG refused to hear them on the ground that their testimony could not add any elements to the facts as they had already been established .

Counsel for the defence pleaded the acquittal of the applicant for lack of evidence . He stressed that , although the wounds of the lady had been caused by a broken glass , there were no excoriation on the hands of the applicant and his shirt bore only a few blood stains of the victim . In addition , a sum of money belonging to the victim was missing and not found on the applicant .

On DATE ORG , by CARDINAL votes to CARDINAL , found the applicant guilty of intentional homicide and sentenced him to DATE imprisonment . The minority did not contest that it was the applicant who committed the homicide but concluded to the absence of criminal responsibility owing to his state of drunkenness . The applicant appealed before ORG against this judgment .

The applicant maintains that following the conclusion of the trial , he ascertained that one of the judges of ORG was a close relative of CARDINAL of the prosecution witnesses . He also maintains that during his detention he had very little support in his effort to obtain his law books in order to finish his studies and that he was not allowed to attend the exams despite being legally entitled to do so . Furthermore , the Minister of ORG , in an interview he gave on the television in DATE , stated that the applicant being a criminal should not be allowed to be a student .

On DATE , ORG quashed the judgment of ORG for lack of evidence . ORG stressed that the finger prints found on the broken glass by which the lethal blows were carried did not belong to the applicant and the damages to the apartment of the victim could not have been caused by a single person in such a short time . However , ORG refused to grant the applicant any compensation for his detention and imprisonment . It held that the applicant had been detained and convicted for a “ very immoral and dishonest offence ” on the basis of evidence that he had actually committed the offence ; consequently , his detention and conviction were not attributable to a breach of law on the part of the judges and the jury who had pronounced them ( articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code of Criminal Procedure ) . ORG had invited the ORG not to grant such a compensation and the applicant ’s lawyers , as well as the applicant himself , had stated that they were leaving it to the ORG to decide on that issue .

On DATE the applicant returned to GPE . In the meantime , his grandfather to whom he was very close had died on DATE and the applicant had not been allowed to attend the funeral . His mother ’s condition , who was ill , deteriorated because of the events that took place in relation to the applicant and she died on DATE .

B. Relevant domestic law

The relevant provisions of LAW read as follows :


Gaukur Jörundsson;N. Valticos;R. Pekkanen

The firm of PERSON , which at the material time was a limited partnership ( Kommanditgesellschaft ) and was subsequently converted into a limited company ( Gesellschaft mit beschränkter PERSON ) , is based in GPE , GPE . Mr Zumtobel was its manager and sole shareholder .

The case concerns expropriation proceedings instituted with a view to the construction in the province of PERSON of a provincial highway , the L CARDINAL , intended as a bypass for part of the municipality of PERSON . It appears that the scheme in question dated back to DATE , but that opposition from local landowners had prevented its realisation .

The authorities conducted an investigation into inter alia whether the projected road was compatible with the requirements of environmental protection ( ORG ) . The proposed route was published ( zur öffentlichen Einsichtnahme aufgelegt ) and the file made available for consultation at the PERSON council offices from DATE .

Pursuant to LAW Landesstraßengesetz ) , on the initiative of ORG ) , expropriation proceedings relating to a parcel of land of CARDINAL belonging to the LOC partnership were opened on DATE . The expropriation would have had the effect of dividing the first applicant ’s property , which covered an area of some CARDINAL,CARDINALmCARDINAL , into CARDINAL parcels of approximately CARDINAL and CARDINAL,CARDINALmCARDINAL .

The authorities consulted several experts . The first applicant repeatedly but unsuccessfully requested to be allowed to study various documents in the file , namely a report of ORG ( ORG ) , an expert report on the environmental implications , the decision taken by the local authorities of ORG , GPE and PERSON on the proposed section of the road , and an opinion of the environmental department of ORG .

On DATE a hearing took place before ORG ( Amt der Landesregierung ) , attended by its chairman , the first applicant ’s lawyer , and CARDINAL of its official experts ( PERSON ) , specialising in environmental protection , highways and road traffic respectively . They submitted their reports and made additional observations . According to the highways expert and the road traffic expert , the proposed section of highway was important because it would improve traffic links between PERSON and PERSON , which went through densely populated built - up areas .

On DATE the ORG made an order for expropriation and fixed compensation at QUANTITY . At the same time it dismissed CARDINAL requests by the first applicant , CARDINAL for full details of the planning procedure for the L CARDINAL , and the other for the appointment of an independent road traffic expert to assess whether the planned road was necessary . The ORG considered the first request to be irrelevant to the case ; as to the second , it stated that the official expert had not shown any bias in favour of the authorities and had submitted a convincing report .

LOC partnership thereupon applied to ORG ) . It claimed that the expropriation proceedings , which were subject to final review by ORG ( Verwaltungsgerichtshof ) and ORG , had violated its right of access to a court with full jurisdiction , guaranteed inter alia by LAW CARDINAL ( article CARDINAL ) of the Convention . It also alleged that there had been a breach of the principle of equality of arms , as the ORG had heard its own experts but refused to consult independent ones .

On DATE , at the conclusion of a hearing held in private ( Article CARDINAL para . CARDINAL of LAW , Bundes- Verfassungsgesetz ) , ORG decided not to entertain the application since , in view of its case - law on LAW and the authorities’ discretion in determining the routes of highways , the application did not have sufficient prospects of success . Moreover , the alleged violations resulted at the most from the erroneous application of an ordinary law ( einfaches PERSON ) and their examination did not involve any constitutional considerations . Finally , the case did not fall outside ORG jurisdiction .

The first applicant also challenged the decision of CARDINAL DATE ( see paragraph CARDINAL above ) in ORG . Relying on substantially the same arguments as in ORG , it now complained of breaches of procedural and substantive law ; it also asked for an expert to be appointed .

ORG dismissed the appeal on CARDINAL DATE , after a purely written procedure ; the applicants had not asked it to hold a hearing ( see paragraph CARDINAL below ) .

In the court ’s opinion , the complaint that the scheme objected to was not based on any reasonable overall plan was not enough to establish that the contested decision had been unlawful . The court added as follows :

" In the context of the power of review conferred on it by LAW ( PERSON ) , ORG can not hold to be unlawful the fact that the respondent authority had regard to road traffic requirements and based its decision principally on the consideration that no other more appropriate solution - than the construction of the proposed section of the L CARDINAL over the land in issue - was possible . As can be seen from the findings of fact in the contested decision , the respondent authority took the view that it was in the interests of road users to divert through- traffic from the NORP built - up area , which at the same time would create a useful addition to the existing road network in the NORP area . "

The court held that the applicant partnership had also failed to cast doubt on the official experts’ reports such as could disclose a procedural irregularity capable of affecting the decision . The fact that ORG had not made the commencement of construction work for the L CARDINAL subject to a final decision on the length of the route was not incompatible with LAW . Contrary to the applicant partnership ’s arguments , the ORG had indeed taken environmental protection into account when assessing the various relevant interests . The commencement of expropriation proceedings before the adoption of a decree ( ORG ) defining inter alia the route and length of the highway and the failure to consult the association of local authorities ( Gemeindeverband ) of PERSON did not vitiate the impugned decision either . As for compensation in kind ( GPE ) or an exchange of land ( ORG ) , the documents in the case showed that these had not been available as alternative solutions . Finally , the fact that notice of the hearing of DATE ( see paragraph CARDINAL above ) had not been given in ORG ( PERSON ) could not have infringed the applicant partnership ’s rights , as it had been directly notified of the hearing .

The court also rejected the complaints relating to the hearing of the official experts . It noted to begin with that the ORG was obliged to consult them , under LAW of DATE ( ORG , " the DATE Law " ) . The court considered that mere general remarks on the independence of official experts were not enough to prove a specific legitimate doubt for the purposes of LAW ) , sub - paragraph CARDINAL , of the DATE Law . The fact that such an expert took part in proceedings to which the GPE was a party did not , unless there were special circumstances , constitute a serious reason within the meaning of the DATE Law to doubt his complete impartiality . In the absence of any formal requirement , there was nothing to prevent a written record being made of an orally delivered expert report , without the expert having to supplement it in writing . Nor had the authorities been obliged to summon the parties to attend the inquiry ( GPE ) .

With reference to the complaints of lack of access to the case file , the court stated that it could not find that the ORG had disregarded procedural rules , compliance with which could have led to a different decision . As the applicant partnership had not been a party to the environmental protection proceedings ( GPE ) , it could not claim a right of access to that file . As to ORG report , the observations of the department for planning and the environment ( Raumplanungs- bzw . GPE ) and those of the relevant local authorities , there was nothing to show that these documents could have been material to the applicant partnership ’s case or that the ORG had based its decision on them . The report of expert PERSON had been included in the expropriation proceedings file but , contrary to the applicant partnership ’s arguments , the authorities were not obliged by law to supply photocopies of the entire case file or of certain documents in it .

ORG also found that there had been no breach of LAW and declined to refer the matter to ORG .

With regard to the request for an independent expert to be appointed to report inter alia on " the economic viability , the reasonableness and hence the lawfulness " of the proposed route of the L CARDINAL , the court cited a judgment given by an enlarged chamber in DATE and stated :

" [ That judgment shows that ] ORG is not allowed , in a case which has been before the respondent administrative authority , to put itself in the place of that authority and take evidence , which the latter may have omitted to take , or to supplement the investigation by itself taking investigative measures to establish the facts . ORG can , however , take evidence in order to determine whether an essential procedural requirement has been breached , and it is therefore entitled to take investigative measures in order to establish whether a procedural defect is essential or whether the respondent authority could have reached a different decision if that procedural defect had been avoided ; it can also do so for the purpose of reviewing the assessment of the evidence . In view of the above findings with reference to the weighing up by the respondent authority of the interests at stake and the facts on which its decision was based , however , ORG sees no reason to order the investigative measure sought . "

The first applicant had meanwhile applied to ORG ( Bezirksgericht ) to determine the amount of compensation . On CARDINAL DATE this was set at CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP schillings ( ORG ) .

On DATE , on appeal ( PERSON ) to ORG ( PERSON ) , the amount was reduced to ORG CARDINAL . On DATE the first applicant ’s appeal on points of law ( Revisionsrekurs ) against this decision was dismissed by ORG ( Oberster Gerichtshof ) .

In PERSON expropriation for the purpose of construction of a provincial highway can take place only after ORG has issued a decree giving a brief description of the route of the highway and stating its approximate length ( LAW . Landowners who are affected by the measure can , once the plan has been made public , contest its appropriateness before the administrative authorities , and then challenge the decree in ORG .

Such an expropriation is permissible only if it is not possible to construct or retain a section of highway which is more suitable from the point of view of traffic requirements , environmental protection and the financial implications ( LAW ) .

On an application ( Beschwerde ) ORG will determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed to the applicant under LAW or whether the decision applied a decree ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law ( Article CARDINAL para . CARDINAL of LAW ) .

Under LAW , ORG has jurisdiction to hear inter alia applications alleging that an administrative decision is unlawful .

Article CARDINAL ( CARDINAL ) of LAW ( PERSON ) reads as follows :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority ’s lack of jurisdiction or from breaches of procedural rules ( LAW ( CARDINAL ) , sub - paragraphs CARDINAL and CARDINAL ) ... , it must examine the contested decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to one of the parties might be decisive for ruling on [ one of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Under LAW ( CARDINAL ) of the LAW ,

" The Administrative Court shall quash the impugned decision :

if it is unlawful by reason of its content ,

[ or ] because the respondent authority lacked jurisdiction ,

[ or ] on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

Proceedings in the ORG consist essentially of an exchange of written pleadings ( Article CARDINAL ) . If CARDINAL of the parties so requests ORG may hold an adversarial hearing which in principle is held in public ( Articles DATE and DATE ) .

If the court quashes the challenged decision , " the administrative authorities are under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( ORG ) " ( LAW .

If an expert opinion proves necessary in expropriation proceedings , the authority consults , in accordance with LAW ( see paragraph CARDINAL above ) , " the official experts attached to the authority or placed at its disposal " . Under LAW in conjunction with LAW that law , such experts must stand down " if there are ... serious reasons liable to give rise to doubts as to their complete impartiality " .


The applicant is a NORP citizen of NORP origin , born in DATE and living in GPE , GPE .

He is represented before the ORG by Mr PERSON and PERSON , both university teachers at ORG .

A.

The applicant was the deputy district leader of ORG ) and a member of the party ’s executive board . He later became the chairman of PERSON of ORG ( DEP ) . He resigned from the DEP before it was closed down .

On DATE the applicant was taken into custody by members of the security forces . During his detention , he was beaten with sticks , punched in the face and his testicles were squeezed . He was blindfolded throughout the detention and subjected to continuous interrogation . He was sworn at and forced to sign a statement . When he refused to sign without first reading the statement , he was hosed with water and subjected to electric shocks and “ hung ” for a period of time . He did not receive food , nor was he allowed to rest .

In a statement to ORG ( Sulh Ceza Mahkemesi ) dated DATE , ORG requested that the applicant be remanded in detention . He stated that the applicant was suspected of collecting money for the ORG and disseminating propaganda against the indivisibility of the ORG .

On DATE the applicant was brought before ORG ) . Before the court the applicant denied the allegations . He requested his release . The court found no grounds for remanding the applicant and released him .

DATE the applicant was taken from the town centre by the Anti - Terror Police . The police threatened him that he would be killed if he stayed in the area . He was further threatened that he would be taken to the police headquarters DATE .

On DATE the applicant filed a complaint with ORG . He complained about the treatment to which he was subjected during his custody and his subsequent surveillance . He alleged that that the police “ were coming to his address and disturbing him . They even threatened me indicating the flat of a NORP police officer downstairs . They are provoking that family , encouraging them to commit an offence against us . I suspect that they listen to my house and my telephone . ” The applicant deposed that he lived in fear of being killed , accused Constable PERSON of being responsible and requested that an investigation be opened , that witnesses be heard and that Constable PERSON GPE be punished .

In a statement dated DATE to ORG , Hatice Gül , who had been taken into custody by the security forces , stated that during her detention she had been questioned about the activities of the applicant . The police had asked her whether she had any information on the applicant ’s connections with the ORG and whether she knew that the applicant had been assisting the ORG . In her statement , she stated that she had been persecuted and tortured during her detention and that a police officer made a threat against the applicant ’s life . She stated that she too had lodged a complaint against Constable PERSON .

The Government dispute the applicant ’s account . They maintain that the anti - terror department of ORG carried out operations in GPE against the ORG between CARDINAL and DATE . The house of ORG was searched during these operations and CARDINAL video tapes were seised . These tapes depicted the ORG engaged in unlawful activities including raids . ORG subsequently confessed to the police on DATE and on DATE to the public prosecutor that the applicant had entrusted these tapes to him . The applicant ’s house was searched on DATE with his permission and he was taken into custody . The applicant denied the accusations put to him and remained silent when confronted with ORG statement about the provenance of the video tapes . The applicant refused to sign the protocols indicating that he had been taken into custody and that he had heard ORG oral statement regarding the video tapes . He wrote on both protocols “ I can not sign . ”

In his statement to ORG taken on DATE the applicant denied that he had made ORG watch the impugned video tapes and stated there was no serious dispute between the CARDINAL of them . He asserted that a certain PERSON Can had given him a video recorder but not for the purpose of watching NORP tapes . He declared that he did not have any sympathy for the ORG and had never viewed the tapes in question .

The interrogation ended on DATE whereupon the applicant was brought to a clinic for a medical check up . A medical report dated DATE states that no traces of ill - treatment or torture were founded on the applicant ’s body .

On DATE the applicant was brought before a magistrate . He was released pending trial .

ORG sent the preliminary investigation file to ORG together with a decision of non - jurisdiction dated DATE . ORG attached to ORG filed an indictment dated DATE accusing the applicant of having violated LAW in that he had made ORG video tapes available to third parties for unlawful propaganda purposes .

On DATE the applicant lodged a complaint with ORG alleging that he had been tortured during his detention and on being released was subjected to surveillance . ORG took a statement from the applicant DATE . The applicant accused Constable PERSON of being responsible and of continuing to threaten him . The applicant stated that he only suspected that his house was being watched and his telephone tapped . He requested ORG to hear the evidence of PERSON and PERSON . The applicant declared that these witnesses had been forced to give evidence against him .

The Public Prosecutor heard the statements of PERSON and PERSON on DATE and DATE respectively . PERSON stated that the police had asked him questions when he was in the police station about the applicant ’s involvement in the ORG . However , he could not say if the applicant had been tortured since the applicant had not been in the police station at the time . PERSON mentioned that he was blindfolded when in detention . PERSON stated that she did not know anything about the applicant ’s allegations that he had been tortured . She stated that Constable PERSON had questioned her and she had replied that she did not know the applicant .

On DATE ORG issued a decision not to bring charges against Constable PERSON for lack of evidence . The decision was served on the applicant on CARDINAL DATE . In the decision the applicant was informed of his right to appeal against it . The applicant did not appeal and the decision became final on CARDINAL DATE .


NORP In a judgment of CARDINAL DATE ORG convicted the applicant of a criminal offence , which had been , according to this court , committed during the applicant 's probationary period after his early release from prison , and sentenced him , inter alia , to serve the remainder of the sentence from his prior conviction , which the applicant did , DATE and DATE . In a judgment of CARDINAL DATE ORG quashed that judgment and ruled that the applicant should not have served the remainder of his prior prison sentence .

In DATE the applicant brought proceedings against ORG under section PERSON ) ORG ( see paragraph CARDINAL below ) , seeking CARDINAL old NORP levs ( ORG ) as compensation for the time he had spent in custody DATE and DATE .

In a judgment of DATE ORG found that the applicant 's deprivation of liberty during that period had been unlawful within the meaning of above - mentioned provision and awarded him ORG CARDINAL in nonpecuniary damages , together with interest at the statutory rate , from CARDINAL DATE until the final settlement of the judgment debt . It dismissed the remainder of the applicant 's claim .

As none of the parties appealed , the judgment entered into force on DATE .

The applicant obtained a writ of execution against ORG on DATE . On DATE he presented it to the chairperson of that court for payment . The chairperson made a copy of the writ and returned the original to the applicant .

As no payment was made , the applicant complained to numerous ORG agencies and bodies .

In a letter of DATE ORG informed the applicant that the amount owed to him was BGL CARDINAL . Since this was a significant amount for the budget of ORG , the chairperson of that court had made an express request for funding before ORG – the body responsible for managing the judiciary 's budget . The debt would be paid fully or in part , depending on the amount of the available funding .

On DATE the applicant asked ORG to issue him a duplicate of the writ of execution , because the original had been stolen . His request was examined at a hearing on DATE and the duplicate was issued on DATE .

NORP In the meantime , on DATE , ORG allotted to ORG CARDINAL new NORP levs ( ORG ) with a view to paying the debt towards the applicant . On DATE ORG paid the applicant LAW , apparently intended to be imputed to the principal of the debt . However , the remainder of the debt remained outstanding .

The applicant subsequently complained to various authorities , such as the President of the Republic , ORG , ORG and ORG . In a letter of DATE the chief secretary of ORG informed the applicant that the processing of the payment had been delayed because the amount due was not a usual line item in the judiciary 's budget and had to be specifically allotted to ORG .

In a further letter of DATE the administration of ORG informed the applicant that on DATE the chairperson of ORG had apprised the ORG that the court lacked funding to pay the remainder of the debt towards the applicant and had requested an increase of its budget appropriation for DATE .

On DATE the accountant of ORG paid the applicant the remainder of the judgment debt ( BGN CARDINAL,CARDINAL.CARDINAL ) and the applicant signed a declaration that he had received the amount and had no further claims against the court or ORG .

Section CARDINAL of ORG of DATE ( formerly PERSON за отговорността на държавата за вреди , причинени на граждани “ , presently „ Закон за отговорността на държавата и общините за вреди “ ) , which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts , provides , as relevant :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :

execution of a sentence above and beyond the specified period . ”

By paragraph CARDINAL of LAW , a person who has an enforceable pecuniary claim ( e.g. a judgment debt ) against a state authority receives payment out of the funds earmarked for that purpose in the authority 's budget .

The writ of execution evidencing the claim must be submitted to the authority 's financial department . If there are no funds available in the authority 's budget , the higher administrative authority has to ensure that funds become available in the budget for DATE .

Enforcement proceedings are not possible where the judgment debtor is a state authority . Until DATE paragraph CARDINAL of LAW contained an express prohibition to that effect . Although this provision was repealed in DATE , the legal framework remained unchanged , as paragraph CARDINAL of Article CARDINAL was not amended .

Section CARDINAL of LAW of DATE ( „ Закон за задълженията и договорите “ ) provides that the creditor is not bound to accept partial payment even if the obligation is severable . Section CARDINAL(CARDINAL ) of that PERSON provides that when a payment by the debtor is not sufficient to extinguish the interest , the expenses and the principal of the debt , the money paid is imputed first to the expenses , then to the interest , and at the end to the principal . This rule is in the interest of the creditor ( реш. № CARDINAL от CARDINAL април DATE г. по гр.д. ORG DATE г. , V GPE на ORG ) and reflects the idea that he or she should not be deprived of an interestbearing debt and remain only with the claim in respect of the interest ( реш. № CARDINAL от CARDINAL януари DATE г. по гр.д. GPE DATE г. , I GPE на ВС ) .