Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life)

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant was born in DATE and lives in GPE in GPE .

For DATE , the applicant has expressed the wish to end her life . She explained that she is becoming more and more frail as time passes and is unwilling to continue suffering the decline of her physical and mental faculties .

In DATE , following a failed suicide attempt , the applicant received inpatient treatment for DATE in a psychiatric hospital . This treatment did not , however , alter her wish to die . As the applicant was afraid of the possible consequences of another failed suicide attempt , she decided that she wished to end her life by taking a lethal dose of sodium pentobarbital . She contacted an assisted - death association , ORG , for support , which replied that it would be difficult to find a medical practitioner who would be ready to provide her with a medical prescription for the lethal drug .

On DATE a psychiatrist , PERSON , having examined the applicant on DATE and DATE , submitted an expert opinion on the applicant ’s capacity to form her own judgment ( PERSON ) . He noted that the applicant had never been seriously ill and did not have to undergo major surgery . However , in DATE , the applicant had noted a decline in her physical and , to a certain degree , her mental faculties . Her memory , her capacity to concentrate and her attention span were not what they used to be . She had difficulty undertaking long walks and her range of activities and her circle of friends had diminished . Accordingly , it had been her strong desire for DATE to be allowed to end her life , which she felt was becoming more and more monotonous . She could hardly bear her physical decline . Furthermore , she increasingly suffered from eczema and back aches and every change in her environment terrified her . Her quality of life was constantly decreasing , and she also suffered from the fact that she could not talk openly about her wish to die with her friends .

On the basis of his psychiatric examination , PERSON observed that there was no doubt that the applicant was able to form her own judgment . He further noted that her wish to die was reasoned and well - considered , had persisted for DATE and was not based on any psychiatric illness . From a psychiatric / medical point of view , PERSON did not have any objection to the applicant being prescribed a lethal dose of sodium pentobarbital . However , he refrained from issuing the necessary prescription himself on the grounds that he did not want to confuse the roles of medical expert and treating physician .

By letters of DATE , DATE and CARDINAL DATE the applicant ’s representative submitted the applicant ’s request to be given a prescription for sodium pentobarbital to CARDINAL further medical practitioners , who all declined to issue the requested prescription . In a letter dated DATE medical practitioner PERSON explained that she felt prevented by the code of professional medical conduct ( aus standesrechtlichen Gründen ) from issuing the requested prescription , given that the applicant was not suffering from any illness . In a letter dated CARDINAL DATE medical practitioner PERSON stated that she considered the applicant ’s wish to die to be understandable . She stated that she would be ready to examine the applicant and to consider her request to issue the required prescription , provided that the applicant ’s counsel could guarantee that she would not risk any consequences from the point of view of the code of professional medical conduct . When the applicant ’s counsel replied that he could not give such a guarantee , PERSON declined the request on the grounds that she did not wish to be drawn into lengthy judicial proceedings .

On DATE the applicant submitted a request to ORG to be provided with QUANTITY grams of sodium pentobarbital in order for her to commit suicide . She submitted that she could not reasonably be expected to continue her search for a physician who was ready to issue the required medical prescription .

On DATE ORG rejected the applicant ’s request on the grounds that neither LAW nor LAW obliged the ORG to provide a person who wished to end his or her life with the means of suicide of their choice .

On DATE the applicant lodged an appeal with ORG of the GPE of GPE . On DATE , ORG rejected the appeal . ORG noted , at the outset , that assisting someone to commit suicide was only subject to criminal liability under LAW if it was carried out for selfish motives . Accordingly , a physician who provided a patient suffering from a terminal illness with the means to commit suicide was not subject to criminal liability ( ORG referred to the case - law of ORG , judgment of DATE , BGE CARDINAL I DATE , summarised in PERSON v. GPE , no . CARDINAL , § § CARDINAL , ECHR DATE ) . The prerequisite of a medical prescription for obtaining a lethal dose of sodium pentobarbital was in accordance with LAW and with LAW . It ensured that a medical practitioner had examined all pertinent aspects of the matter and thus served the general interest in public health and safety and – in connection with assisted suicide – the prevention of crime and combating the risk of abuse . The medical prescription served the aim of preventing premature decisions and guaranteed that the intended action was medically justified . It further ensured that the decision was based on a deliberate exercise of the free will of the person concerned .

ORG observed that PERSON , in his expert opinion , had stated that he did not have any objection from a psychiatric / medical point of view to the applicant being prescribed a lethal dose of sodium pentobarbital . However , PERSON had merely examined whether the applicant was able to form her own free will and whether her wish to die was well thought out and persistent . He had not , however , considered whether the applicant was suffering from any illness which would justify the assumption that the end of her life was near . Neither had he examined whether the applicant ’s wish to die might be the manifestation of a disease which could be medically treated . The wish to die taken on its own , even if it was wellconsidered , was not sufficient to justify the issuing of a medical prescription . Accordingly , the content of the case file did not demonstrate that the necessary prerequisites for issuing a medical prescription had been fulfilled in the instant case . There was therefore a need for further medical examination .

Under these circumstances , there was no sufficient reason to dispense the applicant from the necessity of a thorough medical examination and of a medical prescription .

The applicant lodged an appeal against ORG judgment . She repeated her request to be provided with QUANTITY of sodium pentobarbital , alternatively through a pharmacy . She further asked ORG to establish that the provision of a lethal dose of this substance to a person who was able to form her own judgment and was not suffering from a mental or physical illness did not constitute a violation of a medical practitioner ’s professional duties .

Relying , explicitly or in substance , on ORG , DATE and DATE of the Convention , she alleged that the impugned decisions had rendered her right to decide by which means and at what point her life would end illusory . She averred that the ORG was under an obligation to provide the necessary means allowing her to exercise this right in a concrete and effective way .

On DATE ORG rejected the applicant ’s appeal . Relying on its own case - law and on the ORG ’s judgment in the case of Pretty v. GPE ( no . CARDINAL , ECHR CARDINALIII ) , ORG considered , in particular , that there was no ( positive ) obligation enjoining the ORG to guarantee an individual ’s access to a particularly dangerous substance in order to allow him or her to die in a painless way and without the risk of failure . ORG observed that proceedings in the PERSON case were pending before ORG . Accordingly , it was up to that ORG to examine whether ORG had correctly interpreted LAW in this context . Pending these proceedings , ORG did not see any reason to revise its reasoning in the ORG judgment .

ORG furthermore held that the requirement of a medical prescription pursued the legitimate aims of protecting the individual concerned from making a hasty decision and of preventing abuse . The restriction on access to sodium pentobarbital served the protection of public health and safety . In view of the ethical questions relating to medically assisted suicide , it was primarily up to the democratically elected legislature to decide if and under which circumstances the purchase , transport and storage of sodium pentobarbital should be allowed . ORG observed in this context that a reform of the law on assisted suicide was currently the subject of political debate .

The Federal Supreme Court further observed that the applicant undisputedly did not fulfil the prerequisites laid down in the medical ethics guidelines on the care of patients at the end of life adopted by ORG ( “ ORG ” , see paragraphs CARDINAL - CARDINAL below ) , as she was not suffering from a terminal illness , but had expressed her wish to die because of her advanced age and increasing frailty . Even though ORG had considered in its previously cited decision that the issuing of a medical prescription for sodium pentobarbital to a person suffering from an incurable , persistent and serious psychological illness did not necessarily amount to a violation of a doctor ’s professional duties , this exception had to be handled with “ utmost restraint ” and did not enjoin the medical profession or the ORG to provide the applicant with the requested dose of sodium pentobarbital to put an end to her life . ORG further noted that the issuing of the requested substance required a thorough medical examination and , with respect to the persistence of the wish to die , long - term medical supervision by a specialist practitioner who was ready to issue the necessary prescription . This requirement could n

ot be circumvented by the applicant ’s request for an exemption from the necessity of obtaining a medical prescription .

The relevant provisions of LAW are worded as follows :

LAW Homicide at the victim ’s request

“ Any person who for commendable motives , and in particular out of compassion , causes the death of a person at that person ’s own genuine and insistent request shall be liable to a custodial sentence not exceeding DATE or to a monetary penalty . ”

Article DATE Inciting and assisting suicide

“ Any person who for selfish motives incites or assists another to commit or attempt to commit suicide shall , if that other person thereafter commits or attempts to commit suicide , be liable to a custodial sentence not exceeding DATE or to a monetary penalty . ”

The Federal Law on Drugs ( “ the LAW ” ) of DATE regulates the use and supervision of drugs . LAW Medicinal Products and ORG ( “ LAW ” ) of DATE applies to drugs covered by LAW where they are used as therapeutic products ( section CARDINAL , subsection ( ORG ) of LAW ) . LAW remains applicable , however , if LAW does not regulate a specific matter or if its regulation is less extensive ( section CARDINAL , subsection ( CARDINAL ) bis of LAW ) .

NORP Under CARDINAL of LAW and LAW on Drugs and Psychotropic Substances issued by ORG , sodium pentobarbital is considered to be a drug within the meaning of LAW . In addition , it appears from ORG judgment of DATE that sodium pentobarbital is categorised as a category B medicinal product within the meaning of LAW .

Section CARDINAL of LAW lists the members of the medical professions who may obtain drugs without authorisation . Section CARDINAL(CARDINAL ) is worded as follows :

“ Doctors , dentists , veterinary surgeons and those managing a public or hospital pharmacy who practise as self - employed professionals by virtue of a decision of the cantonal authorities adopted pursuant to LAW of DATE on the practice of the professions of doctor , pharmacist and veterinary surgeon in ORG may obtain , hold , use and issue drugs without authorisation , within the limits justified by their practice , in conformity with the requirements of their profession . This shall be without prejudice to cantonal provisions regulating direct dispensing by doctors and veterinary surgeons ... ”

Pursuant to section CARDINAL ) of the same LAW , only doctors and veterinary surgeons are authorised to prescribe drugs . Doctors and veterinary surgeons may write such prescriptions only in so far as this is medically acceptable and only for patients whom they have examined personally ( section CARDINAL(CARDINAL ) of the same LAW , and regulation CARDINAL ) of the Order on Drugs of CARDINAL DATE ) .

Sections CARDINAL and CARDINAL of LAW are worded as follows :

Section CARDINAL – Dispensing of medicinal products subject to prescription

( CARDINAL ) The following persons shall be entitled to dispense prescription - only medicinal products :

( a ) pharmacists , on presentation of a doctor ’s prescription and , in justified exceptional cases , without a doctor ’s prescription ;

( b ) all other medical professionals in accordance with the provisions on dispensing physicians ;

( c ) all duly trained professionals , under the supervision of a person specified in subsections ( CARDINAL ) ( a ) and ( b ) .

Section CARDINAL – Principle of prescription and dispensing

“ ( CARDINAL ) The recognised rules of pharmaceutical and medical sciences must be respected when prescribing and dispensing medicinal products .

( CARDINAL ) A medicinal product may only be prescribed if the state of health of the consumer or patient is known . ”

Chapter CARDINAL of the same Act contains criminal - law provisions targeting persons who intentionally endanger the health of another person in relation to an activity covered by LAW . LAW provides :

Section DATE Offences

“ " ( CARDINAL ) Unless an offence carrying a more severe penalty under LAW or LAW of DATE has been committed , any person who wilfully endangers human health by :

( a ) neglecting his duty to exercise diligence in dealing with therapeutic products ;

( b ) manufacturing , placing on the market , prescribing , importing or exporting , or trading in a foreign country , medicinal products without authorisation or licence or while infringing other provisions of this LAW ;

( c ) dispensing medicinal products without authorisation ;

shall be liable to a term of imprisonment or to a fine not exceeding MONEY .

( CARDINAL ) If the person concerned acts in his professional capacity , he or she shall be liable to a term of imprisonment not exceeding DATE and to a fine not exceeding MONEY .

( CARDINAL ) If the person concerned acts through negligence , he or she shall be liable to a term of imprisonment not exceeding DATE or a fine of MONEY . “

On DATE , ORG submitted CARDINAL alternative legal projects aimed at regulating organised assisted suicide . It proposed CARDINAL options that would change NORP criminal law : the determination in LAW of clear duties of care for employees of assisted suicide organisations , or a complete ban on organised assisted suicide per se ( see the press release issued by ORG and Police on DATE ) . The consultation of the cantons , political parties and other interested parties ( GPE ) demonstrated that no consensus on the issue could be reached . While a majority of the consulted parties considered that the federal law should define specific duties of care within the context of assisted suicide , they could not agree on the concrete implementation . On DATE ORG decided to refrain from including specific regulations on organised assisted suicide in criminal law , while expressing its intent on fostering suicide prevention and palliative care in order to reduce the number of suicides ( see the press release issued by ORG on DATE ) .

On DATE ORG was called upon to examine a request to be granted a lethal dose of sodium pentobarbital lodged by a plaintiff who had been suffering from a serious bipolar affective disorder and considered that as a result , he could no longer live in a dignified manner . Since that substance was only available on prescription , he approached several psychiatrists to obtain it , but was unsuccessful . In its judgment ( published in ORG of ORG , ORG DATE , summarised in ORG , cited above , LAW DATE ) , ORG considered that sodium pentobarbital could not be issued without a medical prescription . It noted , in particular , that section CARDINAL(CARDINAL)(a ) of LAW had to be interpreted narrowly and did not allow for an exemption in the event that no doctor could be found who was ready to issue a prescription . ORG further considered that the following prerequisites had to be met before a doctor could issue a medical prescription for sodium pentobarbital : a thorough and considered examination ; a medical indication ; and , with regard to the genuineness of the wish to die and capacity for discernment in this connection , monitoring over a certain period by a medical specialist . Following that judgment , in DATE the plaintiff wrote to CARDINAL psychiatrists setting out his case and asking each of them whether they would agree to produce a psychiatric report on him with a view to issuing a prescription for sodium pentobarbital . None of the doctors responded positively to his request .

On DATE ORG examined the validity of an agreement concluded by ORG of the canton of GPE and the assisted - death organisation EXIT aimed at lying down specific rules to be observed in assisted - death cases . ORG considered that the agreement was invalid as it lacked a legal basis and was not in accordance with the domestic law ( BGE CARDINAL II CARDINAL ) .

In its judgment given on DATE , ORG referred to the medical ethics guidelines on the care of patients at the end of life which were adopted on DATE by ORG ( ORG ) , an association of the CARDINAL medical faculties and the CARDINAL veterinary faculties in GPE . According to the case - law of ORG ( judgment of CARDINAL DATE , BGE CARDINAL IV CARDINAL ) , the guidelines issued by ORG do not have the formal quality of law . As they prescribe a number of precautionary measures , they can be classed as a code of conduct — the value of which is generally accepted by the practitioners bound by it . Furthermore , these guidelines may serve to define the duty of diligence in criminal proceedings or in proceedings concerning civil liability .

The scope of application of these guidelines is defined as follows :

Scope of application

“ ( CARDINAL ) These guidelines concern the care of patients at the end of life . These are patients whose doctor has arrived at the conclusion , on the basis of clinical signs , that a process has started which , as experience indicates , will lead to death within DATE or DATE . ”

Section CARDINAL of these guidelines reads as follows :

The limits of medical intervention

“ Respect for the patient ’s wishes reaches its limit if the patient asks for measures to be taken that are ineffective or to no purpose , or that are not compatible with the personal moral conscience of the doctor , the rules of medical practice or applicable law . ”

Assisted suicide

“ According to LAW , helping someone to commit suicide is not a punishable offence when it is done for altruistic reasons . This applies to everyone .

With patients at the end of life , the task of the doctor is to alleviate symptoms and to support the patient . It is not his task to directly offer assistance in suicide , rather he is obliged to alleviate any suffering underlying the patient ’s wish to commit suicide . However , in the final phase of life , when the situation becomes intolerable for the patient , he or she may ask for help in committing suicide and may persist in this wish .

In this borderline situation a very difficult conflict of interests can arise for the doctor . On the one hand assisted suicide is not part of a doctor ’s task , because this contradicts the aims of medicine . On the other hand , consideration of the patient ’s wishes is fundamental for the doctor - patient relationship . This dilemma requires a personal decision of conscience on the part of the doctor . A decision to provide assistance to commit suicide must be respected as [ a decision of that sort ] . In any case , the doctor has the right to refuse help in committing suicide . If he decides to assist a person to commit suicide , it is his responsibility to check the following preconditions :

- The patient ’s disease justifies the assumption that he is approaching the end of life .

- Alternative possibilities for providing assistance have been discussed and , if desired , have been implemented .

- The patient is capable of making the decision , his wish has been well thought out , without external pressure , and he persists in this wish . This has been checked by a third party , who is not necessarily a doctor .

The final action in the process leading to death must always be taken by the patient himself . ”

Killing on request

“ Even if requested seriously and insistently , the killing of a patient must be refused by the doctor . According to LAW , killing on request is a criminal offence . ”

NORP The research conducted by ORG in the context of the PERSON case ( cited above , § § DATE ) indicates that certain member ORG have specific regulations covering access to substances liable to facilitate suicide .

In GPE , for example , the Law of DATE defines euthanasia as an act carried out by a third party which intentionally ends an individual ’s life at that individual ’s request ( section CARDINAL of the PERSON ) . A pharmacist who issues a “ lethal substance ” does not commit an offence where this is done on the basis of a prescription in which the doctor has explicitly stated that he or she is acting in accordance with the law . The implementing regulations establish the criteria of prudence and the conditions which must be met for the prescription and issuing of such substances ; the necessary measures must also be taken to ensure the availability of the lethal substances .

In GPE , the PERSON of DATE decriminalised euthanasia and assisted suicide . Under that PERSON , access to a substance enabling suicide is only lawful for a doctor if he or she is playing an integral part in the process of euthanasia or assisted suicide .

Sodium pentobarbital is listed in Schedule III of LAW of DATE , to which ORG acceded on DATE . Article CARDINAL of that ORG reads as follows :

Article CARDINAL : Prescriptions

“ CARDINAL . The Parties shall require that substances in PERSON , III and PERSON be supplied or dispensed for use by individuals pursuant to medical prescription only , except when individuals may lawfully obtain , use , dispense or administer such substances in the duly authorized exercise of therapeutic or scientific functions .

The Parties shall take measures to ensure that prescriptions for substances in PERSON , III and IV are issued in accordance with sound medical practice and subject to such regulation , particularly as to the number of times they may be refilled and the duration of their validity , as will protect the public health and welfare .

Notwithstanding paragraph CARDINAL , a ORG may , if in its opinion local circumstances so require and under such conditions , including record - keeping , as it may prescribe , authorize licensed pharmacists or other licensed retail distributors designated by the authorities responsible for public health in its country or part thereof to supply , at their discretion and without prescription , for use for medical purposes by individuals in exceptional cases , small quantities , within limits to be defined by the Parties , of substances in Schedules III and IV . ”


CASE OF BENET PRAHA, SPOL. S R.O.,  v. THE CZECH REPUBLIC

Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Fair hearing);Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert

The applicant , ORG , spol . s r.o . , is a limited liability company incorporated under NORP law with its registered seat in GPE .

DATE the applicant company dealt in ferrous alloys .

NORP In DATE customs authorities initiated a set of administrative proceedings against the applicant company in order to check the accuracy of the customs debt ( concerning customs plus VAT ) the company had paid during the aforementioned period of time .

Simultaneously , criminal proceedings were instituted against a person , who was a manager ( jednatel ) of the applicant company during that period of time , on suspicion of tax evasion while he was managing the applicant company . According to the Government the damage caused to the ORG exceeded CARDINAL NORP korunas ( CZK ; CARDINAL ( ORG ) ) .

Within the framework of the criminal proceedings a search of the applicant company 's LOC was carried out on DATE . Cash in several currencies in the total amount of MONEY ( EUR CARDINAL ) and several documents such as financial files , books of accounts and business documents were seized . According to the applicant company these documents and most of the cash have not yet been returned to it .

On DATE and DATE the prosecuting authorities seized all of the applicant company 's assets deposited on its CARDINAL bank accounts on the suspicion that they constituted profits from the criminal activities of the former manager . The applicant company 's bank accounts contained at that time funds equivalent to CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) . The seizure orders , which were notified to the applicant company on DATE , did not specify what assets had been seized , nor to what amount . This was remedied on DATE by ORG ( vrchní státní zástupce ) who amended the original decisions by writing in the sums to be seized . While doing so , he froze all assets deposited on the applicant company 's accounts on DATE , which included payments which had come in after DATE and DATE respectively . The applicant company 's assets amounting to CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) were thus seized .

Simultaneously with the criminal investigation , the customs and tax administrative proceedings resulted in the delivery of numerous payment orders assessing duty payable by the applicant company . With all of its assets frozen , the applicant company requested the prosecuting authorities on a number of occasions to lift the seizure in order to discharge these duties , but only few of these requests were granted . Its appeals did not suspend the effect of those orders payable within DATE of delivery . Consequently , the company had to take out a loan , among other measures adopted to overcome this situation , and avoid insolvency , as it was obliged to pay under these orders a sum totalling CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL ) .

DATE , upon the applicant company 's appeals , all of the payment orders and other decisions adopted by tax and customs authorities imposing the duties on the applicant company were quashed as unlawful either by superior authorities or administrative courts . The tax proceedings were discontinued and sums paid by the applicant company upon the orders reimbursed accordingly .

The former manager has been prosecuted for acts committed in his capacity as the manager of the applicant company and in the context of its business activities . On DATE the former manager was acquitted by ORG ( městský soud ) from some of the charges , and on DATE ORG ( vrchní soud ) upheld that judgment . The investigation concerning other charges is apparently still pending . During the investigation the prosecuting authorities , inter alia , collected over CARDINAL pages of documentary evidence , interviewed CARDINAL witnesses , including homeless persons with unknown whereabouts whose names the accused had allegedly used in sham transactions to evade customs and other duties , and requested legal assistance from the competent authorities of CARDINAL countries .

NORP In DATE ORG ( celní úřad ) ordered the applicant company to pay customs duties in the amount of ORG ( ORG CARDINAL,CARDINAL ) .

In DATE and DATE ORG ordered the applicant company to pay customs duties of ORG ( ORG CARDINAL ) .

On DATE the High Prosecutor granted the applicant company 's request for the seizure to be lifted for the sum of CZK CARDINAL .

On DATE , DATE and DATE respectively , the applicant company requested ORG to lift the seizure in order to enable it to pay the customs duties ordered in DATE .

On DATE the High Prosecutor dismissed its requests , finding that the orders had not yet become final . According to the prosecutor , it was premature to lift the seizure under these circumstances , as such a step might have been contrary to the interests pursued by the prosecuting authorities .

The applicant company appealed to ORG , which dismissed its appeal on DATE .

On DATE the applicant company lodged a constitutional appeal ( ústavní stížnost ) maintaining that the customs authorities , together with the prosecuting authorities , had misused the law to its detriment and consequently had violated LAW práv a svobod ) ( hereinafter “ the LAW ” ) .

NORP In DATE ORG ( PERSON ) invited the respondent parties to the proceedings , ORG and ORG , to submit written observations on the applicant 's constitutional appeal pursuant to section CARDINAL ) of LAW .

The High Prosecutor did not submit any observations . ORG submitted written observations , referring to the reasoning of its impugned decision . It expressed the view that the applicant 's constitutional appeal should be dismissed . This submission was not communicated to the applicant company .

ORG also requested the Prague High State Prosecutor 's Office to send it the criminal file in the context of which the seizure had been carried out . ORG made copies of the relevant documents , which were included in the case file of ORG . Subsequently the criminal file was returned to ORG on DATE .

On DATE the applicant company 's acting manager consulted the case file at ORG . DATE he sent a letter to the court with the following text :

“ On DATE , when consulting the case file , I found that it should also include CARDINAL files [ covering the criminal proceedings ] submitted by ORG ... [ A]bout CARDINAL files annexed to the reply of ORG submitted upon ORG invitation of DATE were dispatched on DATE ... and delivered to ORG on DATE .

At the time of my study of the case file these QUANTITY files had been sent somewhere for consultation . ... I kindly ask you to set another date on which consultation of the case file including the aforesaid documentary evidence , will be possible . ”

In a letter of CARDINAL DATE from ORG judge , the applicant company 's acting manager was told to make a direct approach to ORG to which the file in question had been returned . The same letter also informed the representative of the applicant company that he was free to inspect ORG file after arranging a visit to do this with the court 's registry .

In a letter of CARDINAL DATE the applicant company 's acting manager asked ORG judge to remedy the situation and ensure the applicant company had access to those criminal files . The latter replied , on DATE , that pursuant to section CARDINAL(CARDINAL ) of LAW , a party to the proceedings must be legally represented . He further stated that the criminal case file was not a ORG file , but subject to LAW , in particular LAW , which governs access to criminal files .

On DATE ORG dismissed the applicant company 's constitutional appeal ( II . ÚS CARDINAL/CARDINAL ) . It held in particular :

“ As it appears from the decision refusing to lift the seizure of the assets , in the High Prosecutor 's view , to lift it could jeopardise the purpose of the criminal proceedings . ... [ ORG ] shared his opinion ... In its written observations , it found that there was no ground justifying the conclusion that the seizure of the [ applicant company 's ] assets ... was no longer necessary .

In the present case , ORG did not consider the conduct of the ORG authorities a misuse of law to the applicant company 's detriment , contrary to the basic requirements of fairness and of LAW . The mere fact that the applicant company was not successful in its request can not be in itself considered as violating its right to a fair trial . ”

On DATE ORG dismissed as manifestly ill - founded another applicant company 's constitutional appeal regarding a decision of ORG to reject another applicant company 's request to partially lift the seizure .

In DATE and DATE the Prague II Customs Office ordered the applicant company to pay customs duties in the amount of CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .

On DATE ORG dismissed the applicant company 's request of DATE for the seizure to be partially lifted in order to enable it to pay this amount .

At the applicant company 's request ORG postponed the time - limit for payment of the company 's customs duties until DATE .

On DATE the applicant company again requested the High Prosecutor to lift the seizure in order to enable the company to pay the customs duties ordered in DATE . Its request was , however , refused by the prosecutor on DATE . This decision was approved by ORG on DATE .

On DATE and DATE , ORG partly lifted the seizure covering the sum of CZK CARDINAL . The applicant company then discharged its customs debt . However , as it had not done so in time , ORG ordered it to pay a penalty of CZK CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .

On DATE ORG dismissed the applicant company 's appeal against ORG decision of DATE .

On DATE the applicant company lodged a constitutional appeal against ORG dismissal .

At the invitation of ORG submitted written observations , referring to the reasoning of its impugned decision . It expressed the view that the applicant 's constitutional appeal should be dismissed . This submission was not communicated to the applicant company .

The appeal was dismissed as manifestly ill - founded by ORG on DATE ( I. ÚS CARDINAL/CARDINAL ) .

On DATE ORG ordered the applicant company to pay customs duties in the amount of CZK DATE ( EUR CARDINAL,CARDINAL ) .

On DATE and DATE and DATE respectively ORG ordered the applicant company to pay customs duties amounting to CZK CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) .

On DATE and CARDINAL DATE the applicant company requested ORG to lift the seizure in order to enable the company to pay its customs duties .

On DATE the High Prosecutor decided not to grant the company 's requests .

On DATE ORG dismissed an appeal by the applicant company of DATE challenging ORG refusal to lift the seizure .

On DATE the applicant company lodged a constitutional appeal alleging a violation of LAW .

Upon the invitation of ORG and ORG submitted written observations . They expressed the view that the applicant 's constitutional appeal should be dismissed . These submissions were not communicated to the applicant company .

On DATE ORG dismissed the applicant company 's constitutional appeal as manifestly ill - founded ( I. ÚS CARDINAL/CARDINAL ) .

On DATE the High Prosecutor decided not to grant the applicant company 's request of CARDINAL DATE to lift the seizure .

On DATE ORG , upon the applicant company 's appeal of DATE , upheld the prosecutor 's refusal .

On DATE the applicant company introduced a constitutional appeal challenging the aforesaid decisions and alleging , inter alia , that its property rights continued to be limited contrary to the national law .

At the invitation of ORG , ORG submitted written observations , referring to the reasoning of its impugned decision . It expressed the view that the applicant 's constitutional appeal should be dismissed . This submission was not communicated to the applicant company .

Its appeal was dismissed as unsubstantiated by ORG on DATE ( IV . ÚS CARDINAL/CARDINAL ) .

On DATE the applicant company requested ORG to lift the seizure of its assets , maintaining in particular that it had discharged all its customs duties .

On DATE the prosecutor dismissed the request , holding that there was a reasonable suspicion that the assets represented profit from the criminal activities of the accused manager .

On DATE the applicant company appealed to ORG .

On DATE ORG accepted in principle that prolonged seizure of assets could constitute a disproportionate interference with property rights , but did not find such a disproportionality in the applicant company 's case and thus rejected its appeal .

On DATE the applicant company appealed to ORG , complaining of excessive length of the seizure of its assets .

Upon the invitation of ORG , ORG and ORG submitted its written observations . ORG proposed that the applicant 's constitutional appeal be dismissed . ORG informed in detail on several aspects of the criminal proceedings . He also addressed the issue of the length of the seizure by stressing the extent and complexity of the investigation and the need for foreign cooperation . He also proposed to dismiss the appeal . These submissions were communicated to the applicant company in DATE . The applicant company reacted by sending a letter it had received from ORG which contained an assurance that all money held by the customs authorities would be returned to the applicant company . The letter also contained an apology from ORG for problems arising in the complex case of the applicant company .

On DATE ORG again requested ORG to inform it about the stage the investigation had reached and when it was expected to be finished . On DATE the High Prosecutor submitted to the court a CARDINAL - paragraph reply saying that almost all GPE from whom assistance had been requested had responded and it was expected that they would send the required materials before DATE . He further informed the court that he expected to conclude the investigation by DATE and that it was highly likely that all the accused persons would be tried before a court . These submissions were not communicated to the applicant company .

On DATE ORG rejected the appeal as manifestly ill - founded ( III . ÚS CARDINAL/CARDINAL ) . It held that the seizure of the assets was still proportionate in view of the complexity of the investigation and in this context it considered important the assurance of ORG that the investigation should be finished DATE .

On DATE ORG found a violation of the right to property of a company , PERSON , spol . s r.o . , which was in the same position as the applicant company . It held that the length of the seizure , over DATE , was unreasonable , which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company . Consequently , the applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of ORG .

On DATE the High Prosecutor lifted the seizure of the applicant company 's bank accounts , holding that the conclusions of ORG also applied to the applicant company .

Section CARDINAL(CARDINAL ) provides that the applicant must be represented in the proceedings before ORG by an attorney .

Section CARDINAL provides that parties and joined parties are entitled to comment on a constitutional appeal , to make submissions to ORG , to consult a case file ( with the exception of records of voting ) , to make excerpts therefrom and copies thereof , to adduce any evidence , to take part in any oral hearing in the matter , and to assist at any taking of evidence .

Under LAW , ORG must take all evidence necessary to establish the facts of the case . It decides what evidence submitted by parties should be accepted and may take evidence which has not been adduced by the parties . It may assign a judge to take evidence obtained otherwise than at an oral hearing , or request another court to take such evidence . At its request , courts , public administrative authorities and other ORG institutions must assist it in its decision - making by procuring documentary evidence . A record must be drawn up of all evidence taken outside an oral hearing , this record being signed by a judge , a clerk and other persons participating in that evidence session . The outcome of the taking of evidence must always be communicated at an oral hearing .

Section CARDINAL(CARDINAL ) provides that any means which may be instrumental to establish facts of a case may be used in evidence , in particular the testimony of witnesses , expert opinions , reports and statements of ORG authorities and legal persons , documents , outcomes of inquiries and the testimony of parties .

Pursuant to Article CARDINAL , prosecuting authorities shall assess preliminary issues arising in course of proceedings ; should a final and binding decision on such an issue have already been adopted by a court or another state authority , prosecuting authorities shall be bound by it unless it concerns an issue of the guilt of the accused .

Article CARDINAL provides for the rights of a concerned person . It states that anyone whose property has been seized or is liable to be seized following an application for seizure must be provided with an opportunity to comment on the given case , may attend a hearing , raise its own requests , consult the case file within the meaning of DATE , and lodge appeals as provided for by this law .

Article CARDINAL concerns access to files . The first paragraph provides , inter alia , that the accused , injured and intervening parties , their counsel and guardians shall have the right of access to files except for records and those sections of records containing personal data of anonymous witnesses , to make excerpts and notes therefrom , and to have duplicates of the files and the parts thereof made at their own expense . Other persons may do so with the authorisation of a president of a chamber and a prosecutor , or with police authority at the pre - trial stage of proceedings if it is necessary for the exercise of their rights .

Article CARDINAL § CARDINAL provides for a seizure of financial instruments deposited on a bank account . If the given facts indicate that the financial instruments on a bank account are intended for the commission of a crime , or have already been used for such a purpose , or constitute profits from criminal activities , a president of a chamber and a prosecutor , or the police authority at the pre - trial stage of criminal proceedings , are empowered to seize them .

DATE . Pursuant to Article CARDINALa § CARDINAL , the ORG authority listed in paragraph CARDINAL lifts or reduces the seizure if such a measure is no longer necessary , or it is not necessary to maintain it at the given amount . A decision within the meaning of the previous sentence by police is subject to prior approval by a prosecutor .

Under Article CARDINAL § CARDINAL the owner of a bank account whose assets are seized , has the right to request that the seizure be lifted or reduced . A prosecutor has to decide on such a request without delay .

Article DATE provides that decisions adopted pursuant to paragraphs CARDINAL , CARDINAL and DATE may be appealed by a complaint .

According to LAW a complainant may rely on new facts and evidence .

Pursuant to LAW , if a decision is erroneous due to the fact that a part of its operative section is missing , an appellate authority is empowered either to amend the impugned decision , remit the case to the authority of first instance whose decision is challenged , for it to decide on the missing part of the decision or to amend it .

Article CARDINAL § CARDINAL provides that an appeal shall not suspend the entry into force of a decision adopted in administrative proceedings on tax and other fees unless a special law provides otherwise .


No violation of Art. 4;No violation of Art. 14+4;No violation of P1-1

ORG The applicant is a NORP national born in DATE . He resides in GPE where he exercises the profession of avocat ( lawyer ) . After being enrolled as a pupil avocat on DATE , he at once opened his own chambers without ever working in the chambers of another avocat ; his pupil - master , however , entrusted him with a number of cases and gave him some payment for the work done in regard to them .

Mr. PERSON terminated his pupillage on DATE and has since then been entered on the register of ORG ) .

ORG On DATE , ORG of the Antwerp Bar appointed Mr. PERSON , pursuant to LAW , to defend ORG , a NORP national . The latter , who had been arrested DATE on suspicion of theft and of dealing in , and possession of , narcotics , had applied under LAW for the assistance of an officially appointed avocat .

ORG On DATE , Mr. PERSON appeared before a Chamber ( chambre du conseil ) of ORG ( tribunal de première instance ) , which was supervising the investigation , for the purpose of a decision as to whether the warrant of arrest issued against him by the investigating judge should remain in force . The ORG confirmed the warrant on both occasions . It also added to the initial charges a further count of publicly using a false name . Mr. PERSON appealed against these CARDINAL orders , but ORG of ORG upheld them on DATE and DATE respectively .

On DATE , ORG sentenced him to CARDINAL months’ and CARDINAL days’ imprisonment for theft , public use of a false name and illegal residence ; he was acquitted on the remaining charges . On his appeal , ORG on DATE reduced the length of the sentence to that of the period he had spent in detention on remand .

The applicant had acted for Mr. PERSON throughout these proceedings and estimated that he devoted from TIME to the matter . Mr. PERSON was released on DATE following representations made by the applicant to the Minister of ORG ; he had in the meantime been placed at the disposal of the immigration police with a view to deportation .

ORG The following day , ORG notified Mr. PERSON - whose pupillage had finished CARDINAL and a DATE ( see paragraph CARDINAL above ) - that it was releasing him from the case and that because of Mr. PERSON ’s lack of resources no assessment of fees and disbursements could be made against him . The latter amounted on this occasion to CARDINAL ORG , made up of CARDINAL BF for preparation of the case - file , CARDINAL BF for correspondence , CARDINAL BF for travel to and from the prison , ORG and ORG , and CARDINAL BF in respect of court costs for the copy of a document .

ORG The applicant stated that during his pupillage he had dealt with CARDINAL cases , including CARDINAL cases - representing TIME of work - on which he had acted as officially appointed avocat . He also said that his net DATE income before tax was CARDINAL BF in DATE , increasing to CARDINAL BF in the third .

ORG Although it is in various respects regulated by legislation , the profession of avocat in GPE is a liberal profession ; under LAW , " avocats exercise their profession freely in the interests of justice and truth " .

ORG In each of the country ’s CARDINAL judicial districts , there is an ORG ; it is independent of the executive and endowed with legal personality in public law and its ORG takes decisions " without appeal " with regard to entry on the register of avocats and admission to pupillage ( Articles CARDINAL and CARDINAL of the Judicial Code ) .

A pupillage normally lasting DATE is a pre - requisite to entry on the register of avocats ( LAW and the second paragraph of ORG CARDINAL and CARDINAL ) . Subject to the powers of ORG , ORG determines the obligations of pupils ( ORG CARDINAL and CARDINAL ) . In the main these consist of attending at a pupil - master ’s chambers , attending hearings , following courses on the rules of professional conduct and the art of advocacy ( Article CARDINAL , third paragraph ) and acting as defence counsel in cases assigned by ORG ( Article CARDINAL ) . ORG ensures that these obligations are complied with and may , if need be , prolong the pupillage " without prejudice to the right to refuse entry on the register " ; any pupil who is unable , after DATE at the latest , to show that he or she has satisfied the said obligations " may be omitted from the roll " of pupils ( Article CARDINAL , second and fourth paragraphs ) .

Pupils in principle enjoy the same rights as their colleagues who are already entered on the register of avocats . However , they may not plead before ORG or the ORG d’État ( LAW ) , vote in elections of the chairman or other members of ORG ) or deputise for judges and members of the public prosecutor ’s department .

ORG In the oath that he takes at the end of his pupillage , the avocat undertakes , amongst other things , not to advise or appear in any case which he does not consider to the best of his knowledge and belief to be just ( LAW Subject to the exceptions provided for by law , for example in LAW and LAW , avocats - including pupil avocats - enjoy an exclusive right of audience before the courts ( LAW ) . They pay a subscription to ORG ( Article CARDINAL ) and social security contributions .

The Council of the Ordre sanctions or punishes as a disciplinary matter offences and misconduct , without prejudice , where appropriate , to proceedings before the courts ( Article CARDINAL , first paragraph ) . It will hear disciplinary cases on application made by its chairman , either of his own motion or following a complaint or after a written notification from the procureur général ( public prosecutor ) ( Article CARDINAL ) . The ORG may , depending on the circumstances , warn , censure , reprimand , suspend for a maximum of DATE or strike a name off the register of avocats or the roll of pupils ( LAW ) .

Both the avocat concerned and the procureur général may challenge such a decision - finding the avocat guilty or not guilty - by applying to the competent disciplinary appeal board ( Articles CARDINAL and CARDINAL ) . The disciplinary appeal board is composed of a chairman ( who is the first president of ORG or a president of a chamber delegated by him ) , CARDINAL assessors ( who are avocats ) and a secretary ( who is a member or former member of ORG ) ; the procureur général or a judicial officer from his department delegated by him fulfils the functions of prosecuting authority ( Articles CARDINAL and CARDINAL ) .

The avocat concerned or the procureur général may refer the decision of the disciplinary appeal board to ORG ( Article CARDINAL ) .

ORG In GPE , as in many other GPE , there exists a long tradition that the Bar should provide legal representation , if need be on a free basis , for indigent persons . At the time of the relevant facts , ORG was under a duty to make provision for " the assistance of persons of insufficient means " by setting up a " ORG " in such manner as it should determine ( Article CARDINAL , first paragraph , of LAW ) . " Obviously ill - founded cases [ were not to ] be allocated " ( second paragraph of the same Article ) , but in criminal matters ORG had to make an officially appointed - or " pro PERSON " - avocat available to any indigent accused who so requested DATE before the hearing ( LAW ) .

Officially appointed avocats were thus designated by the ORG by virtue of a statutory competence conferred by the ORG . In GPE and GPE a system of rotation was used whereas in GPE the matter was dealt with on a more flexible basis . The ORG almost always selected pupil avocats who , if need be , had to continue acting in the case even after the end of their pupillage , as occurred in the present circumstances ( see paragraph CARDINAL above ) . It nonetheless happened - in less than one per cent of the cases - that a difficult case was entrusted to a more experienced avocat .

ORG Under the third paragraph of LAW , pupil avocats were required to " report to the [ ORG on the steps they [ had ] taken in the cases entrusted to them " ; such cases accounted on average for DATE of their working time , especially during DATE . The ORG des avocats would decline to enter a pupil avocat on the register unless he had acted as officially appointed avocat on a sufficient number of occasions ; ORG enjoyed considerable discretion in the matter since no minimum or maximum was laid down in its pupillage regulations .

Pupil avocats could invoke the so - called " conscience clause " laid down in LAW ( see paragraph CARDINAL above ) or objective grounds of incompatibility . In the event of an unjustified refusal to deal with cases that the ORG wished to allocate to him , ORG could extend the pupillage of a pupil avocat to a maximum period of DATE , strike his name off the roll of pupils or refuse his application for entry on the register of avocats for failure to perform fully his obligations ( Article CARDINAL , second and fourth paragraphs ) .

ORG Officially appointed avocats were entitled neither to remuneration nor to reimbursement of their expenses . Nevertheless , ORG could , " depending upon the circumstances , .... fix the amount which the [ assisted ] party [ was ] required to pay either by way of advance provision or as fees " ( LAW , final paragraph , of LAW ) . In practice such awards tended to be somewhat exceptional - in CARDINAL case out of CARDINAL at GPE - and , what is more , pupil avocats only succeeded in actually recovering QUANTITY

ORG The position described in the preceding paragraph has changed in CARDINAL respect subsequent to the end of the applicant ’s pupillage : an Act of DATE " intended to furnish a partial solution to the problem of legal aid and regulating the remuneration of pupil avocats appointed to provide legal aid " has amended LAW by , inter alia , inserting the following provisions :

" The ORG shall grant to the pupil avocat appointed by ORG compensation in respect of the services which he was appointed to render .

After obtaining the opinion of ORG , the King shall prescribe , by Decree laid before ORG , the conditions governing the granting , scale and manner of payment of such compensation . "

In certain circumstances , the ORG will be able to take action against the assisted person to recover the compensation awarded .

The LAW is not retroactive . Furthermore , for the moment it remains inoperative since budgetary reasons have up till now prevented the bringing into force of LAW provided for LAW CARDINAL .

ORG The official appointment of an avocat should not be confused with CARDINAL other possibilities which are likewise often included in the notion of legal aid , namely

- " official assignment " , which is provided for under the law in various circumstances where the intervention of an avocat is obligatory , independently of the means of the person concerned ( Articles CARDINAL , second paragraph , and CARDINAL of the Judicial Code , LAW , etc . ) ;

- " legal aid " in the narrow sense , which " consists of exempting , in whole or in part , persons whose income is insufficient to meet the costs of proceedings , including extrajudicial proceedings , from paying stamp duty , registration duty , registry and copying fees and any other expenditure involved " , and of providing " the services of public and publicly appointed officers free " for such persons ( Articles CARDINAL and CARDINAL of the Judicial Code ) .

Indigent persons requiring the services of notaries , bailiffs or avocats of ORG may apply for the appointment by ORG ( see paragraph CARDINAL above ) of the persons who are under a duty to give their services free of charge ( Articles CARDINAL , CARDINAL , CARDINAL and CARDINAL of the Judicial Code ) .

The ORG reimburses the latter persons for their out - of - pocket expenditure ( Article CARDINAL ) but grants no remuneration , the CARDINAL exception being bailiffs who receive the equivalent of CARDINAL of their usual fees ( LAW .


Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by Mrs S. Čanković , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

On DATE the applicant ’s husband was awarded a specially protected tenancy ( stanarsko pravo ) of a flat in GPE . Pursuant to the relevant legislation , the applicant as his wife automatically became a co - holder of the specially protected tenancy of the flat at issue .

In DATE their daughter , who was at the time spending her DATE with her grandparents in GPE , fell ill . On DATE she was admitted to a hospital in GPE and on DATE underwent eye surgery . The applicant and her husband went to GPE to be with their daughter . She was released from the hospital on DATE . The applicant and her husband then returned to ORG , but on DATE left again for GPE as they were concerned about their daughter ’s post - operative recovery .

On DATE the town of ORG was attacked . On DATE GPE declared its independence .

In these circumstances the applicant and her husband decided to stay in GPE . She submitted that with the outbreak of war in the region , they could not have crossed the borders and that they also did not have NORP citizenship at that time . The applicant also claimed that her husband had informed ORG , as the owner and the provider of the flat , of their inability to return , and that on CARDINAL DATE their flat had been broken into .

On DATE ORG issued a decision authorising a certain L.j . DATE an internally displaced person – to use the applicant ’s flat temporarily .

On DATE ORG brought a civil action against the applicant and her husband in ORG ( PERSON ) , seeking termination of their specially protected tenancy . The plaintiff based its action on section CARDINAL of LAW , arguing that the applicants had been absent from the flat for DATE without justified reason . As the respondents’ residence was unknown , the competent authority appointed a guardian ad litem ( skrbnik za poseban slučaj ) in the case .

On DATE ORG terminated the respondents’ tenancy . On appeal , ORG ( ORG ) upheld the first - instance judgment .

Following the guardian ’s appeal on points of law ( revizija ) , on DATE ORG ( PERSON ) quashed the lower instances’ judgments and remitted the case , finding that the applicant had not been properly represented in the proceedings since the guardian ad litem had been appointed only to her husband .

After the applicant returned to ORG in DATE and found out that the action for termination of the tenancy had been brought against her and her husband , she joined , and from then on actively participated in , the proceedings . On DATE she informed the court that her husband had died .

In the resumed proceedings , on DATE ORG terminated the applicant ’s specially protected tenancy , finding that she had been absent from the flat for DATE without justified reason . As to the applicant ’s assertion that her daughter ’s surgery and the subsequent escalation of the war had justified her absence , the court held that :

“ Having due regard to the concern of the parents regarding the medical treatment of their daughter , the court can not accept [ that the absence was justified ] , because , judging by the medical documents dating from DATE or even later , the patient ’s condition had not been so critical as to prevent her from returning to ORG and continuing her treatment in GPE . The arguments of the respondents that they could not return to GPE due to the escalation of war , because they had no documents , can not be accepted either , since it is common knowledge that at the beginning of the war there was chaos and that one could enter the country in various places , not only at border crossings , and , it is very hard to believe that the respondents had not taken appropriate documents with them on such a long journey . ”

On appeal , on DATE ORG ( PERSON ORG ) upheld the first - instance judgment , reasoning as follows :

“ The fact that the respondent ’s daughter had actually undergone surgery and was hospitalised for a short period of time during DATE in GPE does not mean ( ... ) , that the conditions from section CARDINAL ( CARDINAL ) of LAW were met ... Notwithstanding whether the medical intervention had to be performed in a hospital relatively far away from the respondent ’s residence at the material time , the fact is that the civil action is directed against ORG , that is to say , not against the person who was medically treated , but against her mother ... In any event , had the post - operative recovery of the respondent ’s daughter actually necessitated parental presence or care , such care could have certainly been ensured by CARDINAL parent and not both ... ”

The applicant subsequently lodged a complaint with ORG ( Ustavni sud PERSON ) . She complained that her constitutional rights to equality before the law , fair hearing and property had been infringed . On DATE ORG dismissed the applicant ’s constitutional complaint , finding that there had been no violation of any of the constitutional rights relied on .

LAW ( Zakon o stambenim odnosima , ORG nos . DATE , CARDINAL/CARDINAL , DATE and CARDINAL/CARDINAL ) , as in force at the material time , provided that a holder of a specially protected tenancy ( “ the tenant ” ) had a right to permanent use of the flat for living purposes , to sub - let part of it to someone else and to participate in the administration of the building in which the flat was located . LAW also provided that , in agreement with the provider of the flat , the tenant could exchange it for another flat and , exceptionally , use part of it for business purposes .

Section CARDINAL provided that the members of the tenant ’s household could acquire the tenancy after the tenant ’s death .

Section CARDINAL read as follows :

“ CARDINAL . A specially protected tenancy may be terminated if the tenant [ ... ] ceases to occupy the flat for an uninterrupted period DATE .

A specially protected tenancy shall not be terminated under the provisions of paragraph CARDINAL of this section in respect of a person who does not use the flat on account of undergoing medical treatment , performance of military service or other justified reasons . ”

Under section CARDINAL ( CARDINAL ) the provider of the flat had to bring a civil action in order to terminate the specially protected tenancy . The tenancy was terminated as soon as the court ’s judgment , upholding the claim of the provider of the flat , became res judicata .

In decisions ORG . Rev-CARDINAL/CARDINAL - CARDINAL of DATE , NORP of DATE and Rev-CARDINAL/CARDINAL - CARDINAL of DATE , ORG interpreted section CARDINAL ) of LAW as follows :

“ War events per se , without any particular reasons rendering use of the flat impossible , do not constitute a justified reason for not using it . ”

In a series of decisions ( for example , in cases nos . Rev-CARDINAL/CARDINAL - CARDINAL of DATE , ORG - CARDINAL of DATE , CARDINAL of DATE , Rev-CARDINAL/CARDINAL - CARDINAL of DATE and CARDINAL of DATE ) , starting with decision no . CARDINAL of QUANTITY DATE , ORG interpreted another aspect of section CARDINAL ) of LAW as follows :

“ The fact that a flat that is not being used by its tenant is illegally occupied by a third person does not , per se , make the non - use [ of the flat by the tenant ] justified . In other words , if the tenant fails to take the appropriate steps to regain possession of the flat within the statutory time - limits set forth in section CARDINAL(CARDINAL ) of LAW ... , then the [ illegal occupation of the flat by a third person ] is not an obstacle to the termination of the specially protected tenancy . ”

ORG ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL ) , which entered into force on DATE , entitled the holder of a specially protected tenancy of a socially - owned flat to purchase it from the provider of the flat under favourable conditions .

Section CARDINAL ( CARDINAL ) provided that a written request for purchase ( the first request ) had to be made within DATE of the date of the Act ’s entry into force ( this time - limit was by subsequent amendments to the Act extended until DATE ) , and a further request for the actual conclusion of the purchase contract ( the second request ) within DATE following the first request .

In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of CARDINAL DATE ORG interpreted section CARDINAL ( CARDINAL ) of ORG as follows :

“ Since the plaintiff did not make a request for purchase of the flat to the respondents in a written form until DATE , as provided by law , [ ... ] , the lower - instance courts correctly assessed that the plaintiff had lost his right to request a conclusion of the purchase contract . ”

In its decision no . Rev-CARDINAL/CARDINAL - CARDINAL of DATE ORG provided a more extensive interpretation of section CARDINAL ( CARDINAL ) :

“ The plaintiff made a request for purchase of the flat to the respondent on DATE , that is , after the expiry of the prescribed time - limit ( DATE ) , so the courts [ ruled ] correctly [ when they ] dismissed her claim . The time - limit in question is preclusive , meaning that after its expiry a holder of a specially protected tenancy loses his or her right to make a request to purchase the flat ...

The fact that the proceedings for termination of the specially protected tenancy DATE that ended by the first - instance judgment [ ... ] of DATE , which became final on DATE – were pending between the parties at the time when the time - limit expired ( DATE ) is not relevant . [ ... ] [ Those proceedings ] did not prevent the plaintiff from making a request to purchase the flat . ...

... The proceedings for termination of the specially protected tenancy were an impediment to buying the flat ( for conclusion of a contract ) , but not to making a request to purchase the flat . The existence of the [ pending ] proceedings does not extend the time - limit for making a request to purchase the flat . ”

LAW ( Zakon o najmu stanova , ORG no . CARDINAL/CARDINAL of DATE ) , which entered into force on DATE , abolished the specially protected tenancy as such ( LAW paragraph CARDINAL ) but provided that proceedings instituted under LAW should be concluded under the provisions of that LAW ( section CARDINAL paragraph CARDINAL ) .

LAW regulates the legal relationship between the landlord and the tenant with respect to the lease of flats . It recognises a special category of tenants , namely those who were previously holders of specially protected tenancies on privately - owned flats or those who did not purchase their flats under ORG . That category is subject to a number of protections , for instance , an obligation for the owners to contract a lease for an unlimited period of time ; payment of a protected rent ( zaštićena najamnina ) , the amount of which is to be prescribed by the Government , as well as limited reasons for the termination of the lease .

Pursuant to the LAW a landlord may terminate the lease of a protected tenant in the following cases :

if the tenant does not pay the rent or charges ;

if the tenant sublets the flat or part of it without permission from the landlord ;

if the tenant or other tenants in the flat disturb other tenants in the building ;

if another person , not named in the lease contract , lives in the flat for longer than DATE without permission from the landlord , except where that person is a spouse , child or parent of the tenant or of the other legal tenants in the flat , or a dependant of the tenant or a person on whom the tenant is dependent ;

if the tenant or other legal tenants do not use the flat as living accommodation but for other purposes ;

if the landlord does not have another flat and is entitled to social welfare benefits or is older than DATE .

Under section CARDINAL ( CARDINAL ) of LAW , the landlord may also terminate a lease of a protected tenant if the landlord intends to move into the flat himself or install his children , parents or dependants therein .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

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

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

The applicant ’s wife died on DATE . In DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


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

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

The applicant is homosexual . He lived with his partner , PERSON , for DATE until the latter ’s death on DATE . From DATE , they resided in jointly - owned properties . The applicant states that he and his partner were financially interdependent , pooled their income and that each had designated the other as his heir . Their relationship was accepted by family and friends , and , according to the applicant , their degree of mutual commitment was such that had they been a heterosexual couple they would have married .

DATE after M ’s death , the applicant asked a social worker whether he could claim ORG ( a lump sum currently worth GBP CARDINAL ) . He was advised that the benefit was only payable to the survivor of a married couple , and so he did not formally claim it .

The applicant complained of his ineligibility for bereavement benefits to his Member of ORG ( “ MP ” ) . In a letter dated DATE , the Chief Executive of ORG confirmed to the MP that :

“ ... entitlement to bereavement benefits is based on legal marriage between couples at the time of death ” .

The applicant also wrote to the Prime Minister . This letter was forwarded to ORG , which replied on DATE stating that :

“ Marriage is a cornerstone of the contributory benefits system and all rights to contributory benefits derived from another person ’s contributions are based on the concept of legal marriage . Changing or widening the definition of marriage would have far reaching implications and could not be done in isolation . ”

The conditions for the receipt of Bereavement Payments are contained in LAW DATE , as amended with effect from DATE by ORG LAW DATE . The relevant parts of this provision read as follows :

“ ( CARDINAL ) A person whose spouse dies ... shall be entitled to a bereavement payment if DATE ( a ) either than person was under pensionable age at the time when the spouse died or the spouse was then not entitled to a Category A retirement pension ... ; and

( b ) the spouse satisfied the contribution condition for a bereavement payment ...

( CARDINAL ) A bereavement payment shall not be payable to a person if that person and a person of the opposite sex to whom that person was not married were living together as husband and wife at the time of the spouse ’s death . ”

Under ORG Regulations DATE , a claim for ORG must be made within DATE from the date of the spouse ’s death ( Regulation CARDINAL ) .

Section CARDINAL of LAW provides ( so far as relevant ) :

“ ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility . ...

( CARDINAL ) A declaration under this section ... -

( a ) does not affect the validity , continuing operation or enforcement of the provision in respect of which it was given ; and

( b ) is not binding on the parties to the proceedings in which it is made . ”

The Civil Partnership Act CARDINAL , which took effect on DATE , broadened eligibility for ORG . It amended Section CARDINAL(CARDINAL ) of the DATE Act so as to include persons who have entered into a civil partnership .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant was arrested on suspicion of battery .

On DATE the ORG ( FAC ) remanded the applicant in custody , relying on the reasonable suspicion that he had committed the offences in question . It attached importance to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the risk that he would attempt to obstruct the proceedings .

An appeal by the applicant against the detention order , and likewise his further appeals against some of the decisions extending his detention and all his subsequent applications for release and appeals against refusals to release him were unsuccessful . In his applications and appeals , he invoked his difficult family situation , in particular the fact that he had a very young child to take care of .

On DATE the prosecution filed a bill of indictment with ORG ( PERSON ) . The applicant was charged with aggravated battery .

During the court proceedings the courts further extended the applicant 's detention pending trial on several occasions , namely on DATE ( to DATE ) , on an unspecified subsequent date , CARDINAL DATE ( to DATE ) , DATE ( to CARDINAL DATE ) , CARDINAL DATE ( to CARDINAL DATE ) , DATE ( to CARDINAL May CARDINAL ) , DATE ( to DATE ) , DATE ( to CARDINAL DATE ) , DATE ( to DATE ) , CARDINAL DATE ( to MONEY DATE ) , on an unspecified subsequent date , CARDINAL DATE ( to DATE ) , on an unspecified subsequent date , DATE ( to DATE ) , on an unspecified subsequent date and DATE ( to DATE ) . The courts repeated the grounds previously given for the applicant 's continued detention . They emphasised the likelihood of a severe sentence of imprisonment being imposed on the applicant , the risk that he would obstruct the proceedings and the fact that he was a recidivist offender .

On DATE ORG convicted the applicant and sentenced him to DATE imprisonment . The applicant appealed .

On DATE ORG ( Sąd Apelacyjny ) quashed the impugned judgment and remitted the case .

On DATE ORG again convicted the applicant and sentenced him to DATE imprisonment . The applicant appealed .

On DATE ORG quashed the impugned judgment and remitted the case .

On DATE ORG upheld the impugned judgment .

On DATE the applicant 's legal - aid counsel informed him that she had found no grounds for lodging a cassation appeal .

DATE and DATE and DATE and DATE the applicant was serving a prison sentence imposed on him in other sets of criminal proceedings .

The relevant domestic law and practice concerning the imposition of pretrial detention ( tymczasowe aresztowanie ) , the grounds for its extension , release from detention and rules governing others “ preventive measures ” ( środki zapobiegawcze ) are set out in the ORG 's judgments in the cases of ORG v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and is currently serving a lifesentence in a prison in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr NORP PERSON of ORG , GPE .

DATE and DATE the applicant was engaged in a variety of legal proceedings , actual or contemplated , which necessitated correspondence with various legal advisers , courts and other bodies . For the first part of this period he was detained at prison PERSON and in DATE he was moved to prison F.

On DATE , whilst the applicant was being detained in Prison W. , he asked the officer on duty for his mail and was told that unless he opened the letters in that officer ’s presence he would not be allowed to have them . The applicant pointed out that he was entitled to take his legal correspondence unopened unless the governor had reasonable cause to suspect an illicit enclosure , but the officer refused to give it to him . The officer proceeded to inform the applicant that he would be referring the letters to the principal officer in his wing .

On DATE another prison officer summoned the applicant to his office and told him that there were CARDINAL legal letters for him . Each envelope was marked with a reference to Rule CARDINAL of the Prison Rules DATE ( “ the Rule , ” later replaced by Rule CARDINAL of the Prison Rules DATE , see Relevant Domestic Law below ) and each bore a franked strip containing details of the solicitor from whom the correspondence originated . The officer pulled out legal paperwork from a larger envelope which had already been opened . When the applicant complained , the officer told him that the envelope was already open when he had entered the office . The officer then inspected the contents of the envelope before he handed the envelope and the legal papers over to the applicant . The officer then picked up a smaller envelope , opened it , and inspected its contents before handing it over . When the applicant protested about the breach of the applicable Rule , the officer laughed and said “ So report me to PERSON ” ( the NORP Prime Minister DATE ) . The following day the applicant made a formal complaint about the matter which led to the promulgation of a notice to staff drawing attention to the effect of the Rule in question .

On DATE the applicant noticed that his name was on a board indicating that he had received mail . When the applicant asked for his mail he was told that there was a letter for him marked with reference to the Rule , but the officer on duty refused to hand it over to him unless he was willing to open it in his presence . Later that day another officer called the applicant and informed him that there was a letter for him . The officer then proceeded to rip the letter open . When the applicant asked him why he was doing this , the officer told him that the new notice mentioned above only applied to outgoing mail . The applicant made a complaint DATE .

On DATE , whilst the applicant was pursuing ORG proceedings against CARDINAL of the prison officers , that particular officer opened CARDINAL letters marked “ ORG ” addressed to the applicant without the latter ’s knowledge or consent . The officer then handed them to the applicant already opened .

The applicant made several complaints to the effect that his correspondence , both outgoing and incoming , was being treated by prison officers in a manner that conflicted with the requirements of the Rule .

The applicant found his attempts to pursue the matter both through the formal prison complaints systems and ORG unsatisfactory , and he was eventually granted legal aid to bring an action for damages in the courts .

On DATE the ORG gave judgment refusing the applicant ’s claims for damages for misfeasance in public office against ORG and CARDINAL named prison officers . The judge found that most of the prison officers had committed a breach of the Rule but that they had not acted in bad faith . He found further that some misunderstandings had arisen in prison PERSON from the fact that although the prison governor had notified both prisoners and prison staff on DATE about the effect of the Rule , he had overlooked the fact that the letters which a court sent to a prisoner bore the name of the court on the envelope but contained no reference to LAW ( see Relevant Domestic Law below ) . Moreover , the judge was satisfied that some of the officers had opened the relevant letters accidentally and in other cases he ascribed the breach of the Rule to inadequate training . Therefore , the applicant ’s claims against those officers failed as bad faith was an essential ingredient of the tort of misfeasance in public office .

Though ORG judge found that CARDINAL prison officers had , on the balance of probabilities , acted in bad faith when dealing with the applicant ’s legally privileged correspondence in breach of the Rule , he was not satisfied that the applicant had suffered any loss or damage as a result . In particular , the judge stated that at its highest , the applicant ’s case was that he had suffered embarrassment and injury to his sense of pride and dignity . Without minimising in any way the effect of the breaches of confidentiality in issue , the judge found that the reactions suffered by the applicant came nowhere near to mental , still less physical injury . Neither had there been any allegation of financial loss or actual prejudice to his position in any of the litigation in which he was engaged . Furthermore , having listened to the evidence and seen the applicant in the witness box , it was considered that he had not been particularly embarrassed or humiliated . In sum , the applicant seemed to ORG judge to be “ a man of some intelligence who had acquired some knowledge of the legal process and , without in any way trivialising his complaints or minimising the effect upon him , ... it could be said that in many ways he appeared to thrive on these conflicts . ”

An application for permission to appeal was made but refused by ORG judge . The application for leave to appeal was then renewed before ORG and permission to appeal was granted on the papers on DATE . The applicant appealed against the dismissal of his claims against the CARDINAL officers who had acted in bad faith , contending that the tort of misfeasance in public office was a tort actionable per se , and so capable of being established without proof of damage , or alternatively capable of being established by proof of anxiety and distress falling short of physical or mental injury .

On DATE the Court of Appeal gave judgment on the applicant ’s appeal against ORG decision of DATE . The applicant ’s appeal was allowed on the ground that , acting in bad faith , the CARDINAL officers had infringed a constitutional right of such importance , namely , that of unimpeded access to court and access to confidential legal advice , that the applicant ’s cause of action in misfeasance in public office was complete even without proof of damage . ORG held that ORG judge ’s conclusion on the issue was therefore wrong and that the applicant was entitled at least to nominal damages against the officers who had acted in bad faith . ORG further stated that it was for the trial judge and not itself to determine whether exemplary damages should be awarded .

The applicant ’s appeal was allowed , a nominal award of GBP CARDINAL ( NORP pounds sterling ) was entered against the CARDINAL defendants who had been found to have acted in bad faith and the case was remitted back to ORG judge to determine whether to make an exemplary award against any of the defendants and if so , for assessment of the sums to be awarded . ORG also granted ORG leave to appeal to ORG on condition that it paid the applicant ’s costs irrespective of the outcome .

On DATE ORG allowed ORG appeal and restored the judgment of ORG judge . ORG found that , though in the present context the unlawfulness of what was done to interfere with the applicant ’s enjoyment of his right to confidential legal correspondence was clear , the ORG should not take the novel step of introducing into the tort of misfeasance in public office a right to damages ( based on the importance of the constitutional right infringed ) in the absence of material damage to the victim . It was noted in this regard that the great weight of authority treated damage as an element of the tort . Furthermore , it was considered that the applicant had legal remedies available to him , namely , judicial review against prison officers who acted in breach of the applicable rules ( even in the absence of bad faith ) and the prison governors . Moreover , it was suggested that errant officers would be susceptible to disciplinary sanctions and that failure to initiate such proceedings could also on appropriate evidence be challenged by judicial review , or alternatively that the officers in question might well be indictable for the common law offence of misconduct in public office .

ORG also considered that any breach of a fundamental human or constitutional right would be covered by section CARDINAL of LAW DATE . It could reasonably be inferred that ORG had intended that infringements of the core human and constitutional rights protected by the LAW should be remedied under it and not by the development of parallel remedies . As it was held that there was no existing right to damages where misfeasance in public office had caused no material damage to the victim , ORG could be expected to award compensation for non - pecuniary loss in cases where the evidence showed an egregious and deliberate abuse of power by a public officer .

Though ultimately agreeing with the majority that the appeal should be allowed , Lord ORG commented that if ORG were successful in their appeal , the applicant would have no private law remedy at his disposal and that judicial review would not offer him a prospect of damages . He considered that judicial review , with the preliminary filter of the need for leave and little prospect of obtaining an order for cross - examination of witnesses , was hardly a satisfactory substitute for an action in the county court .

ORG ultimately ruled that the tort of misfeasance in public office was never actionable without proof of material damage as its function was to compensate the claimant and not punish the public officer . Consequently , it was held that ORG appeal should be allowed , that ORG order should be set aside save as to costs and that the order of ORG judge should be restored .

Rule CARDINAL of the Prison Rules DATE ( SI CARDINAL/CARDINAL ) which replaced rule CARDINAL of the Prison Rules DATE ( SI CARDINAL/CARDINAL ) in identical terms provides as follows :

“ ( CARDINAL ) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened , read or stopped by the governor in accordance with the provisions of this rule .

( CARDINAL ) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such enclosures shall be dealt with in accordance with the other provision of these Rules . ( CARDINAL ) Correspondence to which this rule applies may be opened , read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature .

( CARDINAL ) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped .

( CARDINAL ) A prisoner shall on request be provided with any writing materials necessary for the purposes of paragraph ( CARDINAL ) .

( CARDINAL ) In this rule , " court " includes ORG , ORG and ORG ; and ‘ illicit enclosure’ includes any article possession of which has not been authorised in accordance with the other provisions of these Rules and any correspondence to or from a person other than the prisoner concerned , his legal adviser or a court . ”

Standing Order CARDINAL includes a direction that an envelope carrying correspondence between an inmate and his / her legal adviser should be marked with a reference to the above Rule . It further explains the effect of the new Rule as follows :

“ Prison Rule CARDINAL [ now Rule CARDINAL ] ... applies to all correspondence between an inmate and his or her legal adviser or a court ( including the NORP bodies referred to in the Rules ) . Such correspondence carries special privileges under the Rules and may not be read or opened for examination unless in accordance with instructions laid down by ORG ... ”

ORG instruction ( CARDINAL , DATE ) to prison governors requires them to protect such correspondence against inadvertent or deliberate opening by , in particular , the training of staff handling ORG mail .

Part CARDINAL of ORG and section CARDINAL ( CARDINAL ) of LAW DATE contain the relevant rules governing the bringing of a claim for damages in tort in the same proceedings as a judicial review claim . Claims for public law remedies ( such as a mandatory order , prohibitory order or quashing order ) , injunctions or declarations may be made by way of judicial review proceedings . Damages may also be claimed alongside such remedies provided that a cause of action for such damages exists under the law of tort .

Since the coming into force of LAW DATE ( “ HRA DATE ” ) on DATE , a court may grant such relief or remedy within its powers as it considers just and appropriate for breaches of Convention rights ( section CARDINAL of ORG ) . In deciding whether to award damages , or the amount of any award , the court must take into account the principles applied by ORG in relation to the award of compensation under LAW .


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

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

The applicant ’s wife died on DATE . They had no children from the marriage . In DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant made a request for reconsideration . On DATE he was informed that he was not entitled to benefits as he was not a woman .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .