No violation of Art. 8;Violation of Art. 13;Remainder inadmissible

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant was born in DATE and lives at FAC in FAC . DATE she had some health problems , having suffered , in particular , from a stroke , pneumonia and atherosclerosis .

On DATE an operational enquiry officer ( оперуповноважений ) of the ORG submitted the following report to the chief of police :

“ ... According to the information received in the course of the search operations ( оперативно-розшукові заходи ) , items [ earlier ] stolen from [ a shop in PERSON ] ... were in the possession of [ Mr NORP , the applicant 's son ] at FAC in FAC . Furthermore , information has been received that the aforementioned person keeps poppy straw and a small calibre handgun .

I therefore request that you seek to obtain a search warrant with a view to searching the household of [ Mr NORP ] . ”

On DATE the ORG ( “ the ORG ” ) issued a ruling stating the following :

“ The investigator ... has requested the court to issue a warrant for searching the household of [ Mr NORP ] , where stolen items could be hidden .

Having heard the investigator and having studied the case , the court considers that there are reasons for allowing the application .

During TIME DATE , food , liquor and cigarettes worth a total of UAH CARDINAL were stolen from [ a ] private [ shop ] ... in Nova Obodivka ...

On DATE [ an operational enquiry officer ] of the Trostyanets Town [ Police Department ] informed the investigation unit that the stolen items , as well as rifled firearms and drugs , could be stored in the household of [ Mr NORP ] .

It can be seen from the investigator 's explanations and the material in the case file that there are grounds for considering that the stolen items could be kept at the household of [ Mr NORP ] .

Pursuant to LAW , the court :

grants the application

authorises the search of the household of [ Mr NORP ] , who resides at FAC in PERSON ...

The ruling is not subject to appeal . ”

On DATE , after the applicant 's son , PERSON , arrived at the applicant 's house at PERSON , QUANTITY police officers entered the yard . Having produced the warrant , they conducted a search of the house and the entire property , in the presence of the applicant , PERSON and CARDINAL attested witnesses . According to the police report of DATE , the search was held at CARDINAL FAC and resulted in the discovery of a gas pistol in the cupboard in the living room , a packet of bullets in the attic above the kitchen and a package of cannabis outside on the ground between the barn and the beet - pulp pit . The report contained a remark by PERSON , according to which the search of his mother 's house had been unlawful and conducted in spite of her objections . He also contended that the bullets and drugs had been planted by the police officers or their driver during the search .

On DATE the police questioned the applicant , who submitted that her son had voluntarily handed over the gas pistol , while the bullets and drugs had apparently been planted by the police , whose actions it had been impossible to follow given the number of the persons involved .

On DATE the investigator decided that there was no reason to initiate criminal proceedings on account of the discovered drugs and bullets , as they had been found in places unsuitable for storage and it was impossible to prove that PERSON was responsible . Following additional investigation ordered by ORG , on DATE the investigator reiterated that conclusion .

DATE and DATE Mr NORP had an officially registered place of residence in PERSON . Subsequently , he changed it to CARDINAL K. Street in ORG .

On DATE ORG issued a certificate to Mr NORP , at his request , stating that he owned , since DATE , a house , a garage and a land plot at the above - mentioned address in ORG .

On DATE ORG issued similar certificates “ to whom [ they ] may concern ” stating that PERSON did not live and had no property in that village .

According to the findings of the criminal investigation into the applicant 's complaint concerning the search of her home ( see paragraph CARDINAL below ) , the actual residence of PERSON with the applicant at PERSON in ORG had been confirmed by witnesses living in that village and corroborated by the presence of his personal belongings there and by the fact that he had been paying electricity bills for the household in question .

On DATE CARDINAL inhabitants of buildings nos . CARDINAL and DATE in FAC in ORG gave a written statement that PERSON had been their neighbour at QUANTITY DATE . They noted that he had been living with and had been taking care of a seriously ill person , PERSON , who had died of cancer in DATE . The ORG certified the authenticity of the above statement .

On DATE , ORG issued a certificate to Mr R. , stating that DATE and DATE he had permanently lived at his own house at QUANTITY in ORG .

The references to CARDINAL FAC and CARDINAL V. Street in FAC in the search warrant and in the police report following the search respectively ( see paragraphs CARDINAL above ) were inaccurate . As later found by the domestic investigation authorities and courts , that was a result of a technical error ( see paragraphs CARDINAL , DATE and CARDINAL below ) .

On an unspecified date in DATE or DATE the applicant complained to the GPE prosecutor and ORG of ORG that the search of her house had been unlawful and sought the criminal prosecution of the respective police officers .

On DATE the second of the above - mentioned authorities wrote a letter to her accepting that her allegations had indeed been confirmed in part . It was noted in the letter that the police officers responsible for the violations of the criminal procedures had been disciplined , while the case file had been sent to ORG ( “ the ORG prosecutor ” ) for criminal investigations to be instituted .

DATE and DATE the criminal case was closed CARDINAL times for a lack of corpus delicti in the actions of the police officers and subsequently reopened following the quashing of the respective rulings of the investigating officers either by the prosecution authorities or by courts on grounds of incompleteness of the investigation .

On an unspecified date ( presumably in DATE ) the case file was marked as “ classified ” for unknown reasons . Following the applicant 's administrative claim ORG found the classification of the file unlawful , ordered its declassification and awarded the applicant CARDINAL NORP hryvnias in compensation for non - pecuniary damage .

On DATE the GPE prosecutor decided , for the seventh time , to terminate the criminal investigations finding that there had been nothing criminal about the police officers ' actions . The fact that there were discrepancies as regards the address indicated in the search warrant ( CARDINAL V. Street ) , the search report ( CARDINAL FAC ) and the actual address of the building where the search had been conducted ( PERSON ) was merely a technical error : the numbering of buildings in the village had changed some time previously , while , in any event , the villagers knew each other and had given the police directions . Having regard to the fact that Mr NORP had a registered domicile in PERSON , kept his gas pistol there and paid the electricity bills , the police had rightly decided that that was his actual place of residence , not in ORG . The prosecutor also considered that there had been a reasonable suspicion that the items stolen from the local shop could have been found at the household of PERSON He referred in that connection to the early investigation information , according to which a car similar to that of PERSON had been seen in the shop 's vicinity during TIME when the theft had taken place . Furthermore , Mr R. was unemployed and had friendly relations with a certain PERSON previously convicted for thefts . As to the applicant 's allegation that the drugs and bullets had been planted by police , it had not been corroborated by any evidence .

On DATE ORG of Vinnytsia ( “ the ORG ” ) quashed the aforementioned decision and ordered an additional investigation . It noted that it remained unclear whether there had indeed been sufficient grounds to believe that the stolen items could have been found at the applicant 's home . The court further pointed out that the submissions of the applicant 's son that , at the time of the events , he had been living in GPE , where he had been taking care of a severely sick person , had not been verified .

On DATE ORG ( “ the Court of Appeal ” ) quashed the above - mentioned ruling on the prosecutor 's appeal and remitted the case back to the first - instance court .

On DATE ORG found against the applicant , concluding that the search had been duly ordered and held in compliance with the procedural legislation .

On DATE and DATE respectively , ORG and ORG upheld the first - instance court 's decision .

In DATE the applicant lodged a civil claim with ORG against the police seeking compensation , under LAW , for non - pecuniary damage on account of the search of DATE which she considered to have been in breach of the constitutional guarantee of the inviolability of her home . In substantiation of her claim , the applicant referred to the fact that the warrant on the basis of which the search had been conducted concerned an address different from hers ( CARDINAL versus CARDINAL FAC ) .

On DATE the court decided that the claim could not be examined under the civil procedure .

The applicant appealed . It appears that her appeal was successful , as the examination of the case continued and on DATE the case was transferred to ORG ( “ the ORG ” ) , with the reasons for the transfer being unknown .

On DATE ORG suspended the proceedings at the applicant 's request pending the outcome of the criminal investigations .

On an unspecified date the proceedings were resumed and the case was transferred back to ORG .

On DATE the applicant increased the amount of her claim .

On DATE the court found against her . It concluded that there were no grounds for compensation in her case as envisaged by the Law of NORP “ On the Procedure for ORG caused to ORG by ORG in charge of ORG , ORG , Prosecutors or Courts ” ( “ the LAW ” ) . In particular , in order for the applicant to be eligible for such compensation , there had to be a guilty verdict in respect of the police officers involved . Given the refusal of the prosecution to institute criminal proceedings in respect of her complaint concerning the alleged unlawfulness of the search , the court considered that the lawfulness of that search was an established fact , which could not be revised within the civil proceedings .

The applicant appealed .

On DATE ORG quashed that judgment and discontinued the proceedings , finding that the claim concerned a public - law dispute and thus fell within the administrative rather than civil procedure .

On DATE ORG quashed the above - mentioned ruling of the appellate court and remitted the case to it , finding that it had wrongly concluded that the administrative procedure applied to the case , when in fact the claim represented an action in tort related to a search conducted within the framework of criminal investigations .

On DATE the ORG quashed the judgment of DATE and remitted the case for fresh examination to the first - instance court , pointing out some shortcomings which could only be rectified by a rehearing . Thus , ORG had failed to involve in the proceedings the investigator in charge of the search , as well as ORG . Furthermore , it had not taken into consideration the amendments to the applicant 's claim of DATE . ORG also noted in its ruling that the applicable procedure for compensation was envisaged by LAW , which “ directly [ concerned ] the dispute at issue ” .

The case remains pending before ORG .

DATE ) guarantees the inviolability of everyone 's home . It prohibits entry into a person 's home or other property and the examination or search thereof , other than pursuant to a reasoned court decision .

Article CARDINAL of LAW ( DATE ) envisages imprisonment of DATE as punishment for unlawful entry into a house or other property and the unlawful examination or search thereof , as well as for other actions in breach of the inviolability of a home committed by an official .

Article CARDINAL of LAW ( DATE ) requires that for a search of a house or other property to be conducted , there must be sufficient grounds to believe that the items to be searched for might be found there and a reasoned court decision authorising the search . Such a decision by a court can not be appealed against . LAW requires the investigating officer in charge of the search to serve the search warrant on the person(s ) occupying the respective premises . If the items searched for are not given to the investigating officer voluntarily , the latter must conduct the search forcibly .

Article CARDINAL of LAW ( DATE ) , in force at the material time , provided that compensation for non - pecuniary damage was to be paid by the person who had inflicted that damage , if he or she did not prove his or her lack of guilt .

Article CARDINAL § CARDINAL of the new MONEY , in force since DATE , provided for compensation to be paid in respect of unlawful actions of inquiry bodies , prosecution authorities or courts in cases where the claimant had been acquitted by a court 's verdict , where an unlawful verdict in his respect had been set aside , or where the criminal or administrative - offence case had been terminated . After the amendments of DATE , the aforementioned list was replaced by the phrase “ in cases envisaged by law ” .

The relevant provisions of LAW , as worded before the amendments of DATE , and the Search and Seizure Activities ' Act are summarised in the judgment of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

Following the amendments to LAW of DATE , the list of cases where the right to compensation would arise was expanded by the following point :

“ CARDINAL - CARDINAL ) where ... unlawfulness of a search conducted in the framework of a criminal investigation or trial ... has been established by a guilty verdict or other judgment of a court ( save for rulings on remittal of cases of additional investigation ) ” .


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

The applicants , Mr PERSON , Mr PERSON and Mr PERSON , are NORP nationals . Mr PERSON and Mr PERSON live in Takeley and PERSON lives in PERSON . The applicants were represented before the ORG by PERSON , a lawyer practising in GPE .

CARDINAL .

The applicants are the owners of residential properties situated near FAC , in the south - east of GPE . FAC is owned and operated by ORG ( “ BAA Stansted ” ) , a private company which was at the relevant time a wholly - owned subsidiary of ORG , a company then listed on the GPE stock exchange .

NORP In DATE , the Government published a ORG , ORG ( a ORG outlines details of future policy on a particular subject and often leads to legislative proposals following responses to the paper ) . The White Paper set out a strategic framework for the development of airport capacity in GPE over DATE and in that context , the Government expressed support for the construction of a new runway at FAC . The executive summary to the FAC identified the ORG ’s objectives as limiting and , where possible , reducing noise impact over time , as well as minimising other local environmental impacts . It noted :

“ Where noise impacts can not practically be limited , the White Paper sets out new measures which it expects airport operators to take to help those affected , by offering to insulate or , in more severe cases , purchase properties . ”

NORP The executive summary also invited airport operators to bring forward plans to increase capacity , including , where appropriate , measures to address blight .

The White Paper explained generalised blight as follows :

“ The prospect of airport development will in many cases have a wider impact on property values in the period before statutory protection is available . This is often referred to as ‘ generalised blight’ . ”

The statutory protection available was set out briefly in the White Paper :

“ Under existing planning law , residential and agricultural owner occupiers directly affected by airport development plans will have access in due course to statutory blight provisions , either when planning permission is granted for the airport development , or when the local development plan has been revised to reflect development proposals .

In addition , the law provides for compensation in respect of loss of value arising from certain indirect effects of future airport development during construction such as noise or dust ( under LAW DATE ) and for loss of value DATE on from the opening of a new development and arising from its operation ( under Part CARDINAL of LAW DATE ) . ”

The White Paper acknowledged that there would be no statutory remedy for generalised blight but accepted the need for some form of redress for property owners affected . It indicated that non - statutory schemes to deal with generalised blight were being developed by airport operators in respect of runways supported by ORG . Specifically , the White Paper stated that the Government expected such non - statutory schemes to minimise the impacts on local people . With regard to the GPE expansion plans , the ORG emphasised that :

“ the airport operator will need to put in place a scheme to address the problem of generalised blight resulting from the runway proposal . ”

The White Paper also addressed separately the issue of noise mitigation . Based on research , the ORG used TIME ( equivalent continuous noise level ) as the level of TIME noise marking the approximate onset of significant community annoyance . The White Paper set out the ORG ’s expectation that relevant airport operators would , with immediate effect , offer households subject to levels of noise at TIME or more assistance with the costs of relocating . As regards households subject to noise levels of TIME or more , the Government expected relevant airport operators to offer acoustic insulation . In respect of future airport growth , the Government indicated their expectation that relevant airport operators would offer to purchase those properties suffering from noise levels of TIME or more and which saw an increase in noise levels of CARDINALdBALeq or more ; and to offer acoustic insulation to those with noise levels of TIME or more and which saw an increase in noise levels of TIME or more .

The Government undertook to monitor and evaluate the impact and effectiveness of the policies set out in the White Paper .

BAA Stansted subsequently announced its intention to seek approval for the construction of a second runway at FAC . In DATE , it outlined , in a consultation document , various proposals to address the problem of generalised blight .

On DATE , in response to a letter from “ GPE ” ( an interest group opposed to the expansion of FAC ) , the then NORP Under Secretary of ORG indicated that :

“ in introducing this voluntary scheme , BAA are taking forward policies set out in ... the White Paper ... BAA will wish to ... try to minimise the impacts on the local community . We will monitor progress by airports in bringing forward blight and noise mitigation schemes ... ”

In DATE , ORG published details of the scheme selected to assist home owners suffering from generalised blight : the Home Owner Support Scheme ( “ HOSS ” ) . Under the terms of the scheme , only properties falling within a contour line based on noise levels of TIME ( “ CARDINAL Leq ” ) and above fell within the ambit of the HOSS . There was no flexibility as regards the contour line and properties outside the contour line were ineligible for the scheme . BAA Stansted accepted that in defining this boundary , a line was drawn between those who would qualify and those who would not and that the line might appear arbitrary in some places . However , it emphasised that the selection of the line contour was based on detailed research , adding :

“ In confirming our intention to work on the basis of the CARDINAL Leq contour , it is important to emphasise that this scheme is about addressing generalised blight and not noise mitigation . However , we intend to introduce specific noise compensation and mitigation packages in the future , including noise insulation programmes . ”

An applicant qualifying under the HOSS could either require PERSON to enter into a legally binding and transferable option to purchase his property , allowing him to sell his property , together with the option to purchase , to a third party ; or he could require PERSON to buy his property once it had announced its intention to construct the runway ( which was subject to the grant of planning permission ) . In addition , where an owner eligible for the ORG was only able to sell his property for MONEY or more below the index - linked market price , an assisted relocation scheme would require ORG to purchase the property subject to terms and conditions . An early moving contribution was available for home owners who did not qualify for the assisted relocation scheme because they could sell their properties for within MONEY of the index - linked price .

In addition to the HOSS , GPE promulgated a Special Cases Scheme ( “ LOC ) aimed at individuals who could demonstrate that a severe medical condition , such as a chronic or degenerative disease , made it necessary for them to move at the earliest opportunity but who were having difficulty selling their homes . CARDINAL criterion of the ORG was that the individual had been unable to sell his home within MONEY of the market price . The CARDINAL Leq contour line did not apply to the LOC .

NORP The applicants’ properties lie outside the CARDINAL Leq contour line . Accordingly , they are not eligible to benefit from the HOSS . Nor are they eligible under the ORG . They nonetheless consider that their properties have been affected by generalised blight . They rely on statistics from ORG which show that while house prices in the county of GPE increased by MONEY on average DATE and DATE , house prices in LOC , the district within GPE in which FAC and their properties are situated , only increased by an average of MONEY .

By letter dated DATE , the then NORP Under Secretary of ORG , responding to a letter from “ GPE ” , stated that :

“ We recognise that the prospect of airport development can have an impact on property values during the period before statutory protection becomes available . We also accept that people should have access to some form of redress , which is why we made our view clear in The Future of Air Transport White Paper that non - statutory schemes should be brought forward locally , by airport operators , where new runways are supported in the White Paper or where land is safeguarded for future development . However , there is no obligation on BAA to do so as you suggest in your letter .

In the case of the proposed development of GPE , ORG ’s Home Owners Support Scheme ( HOSS ) is intended to provide financial support to homeowners close to the site of the proposed new runway , whose property values may be worst affected by the prospect of increased airport noise . I would emphasise that the ORG is a BAA scheme , voluntarily entered into by them . The Government is not a party to it and can not in any way guarantee it . That said we do consider BAA ’s scheme to be consistent with the objectives we set out in ... the White Paper ...

Your letter also explains your organisation ’s view that the ORG scheme does not adequately address all aspects of the generalised blight around GPE . The noise level contours being used by BAA for its HOSS are not arbitrary values , but are research - based and have also formed the basis for past sound insulation schemes at GPE and other airports . It is , however , an unavoidable feature of any amelioration scheme based on environmental noise impacts , whether forecast noise or actual and whatever the noise values used , that it will give rise to a boundary with people living just outside it .

... We consider that the only fair and practical basis for a voluntary blight compensation scheme is one referenced to a recognised level of environmental impact . There may be debate about what the boundary should be and what impacts should be taken into account , but a scheme that is not based on objective and measurable environmental criteria would be very difficult to administer in practice .

As we said in ... the White Paper , we will be monitoring the effectiveness of the policies we have set out , including voluntary blight schemes brought forward by airport operators , and will review progress along with other ORG policies in DATE . ”

Planning permission for the new runway has not yet been granted .

The first applicant , together with ORG ( “ Takeley ” ) , sought leave to apply for judicial review of the ORG complaining that it compensated some home owners affected by generalised blight but not all ; and that it was applied inflexibly . The defendants were GPE and ORG plc . In their summary grounds of defence the defendants sought GBP CARDINAL by way of the costs of defending the application for leave to apply for judicial review . Permission to bring judicial review proceedings was refused on the papers on DATE , with the judge commenting that the level of costs claimed by the defendants appeared disproportionate and that detailed assessment was therefore likely to be required .

The claim for permission to apply for judicial review was renewed at an oral hearing , with a substantially amended statement of facts and grounds which sought to introduce the Secretary of ORG as a third defendant . The argument developed at the oral hearing before ORG was that the Secretary of ORG had acted unlawfully in positively supporting and continuing to support and endorse the ORG scheme in circumstances in which the requirements of the policy set out in the White Paper were not met and/or in continuing to express policy support for the development of GPE in circumstances where insufficient provision had been made to address generalised blight . Accordingly , it was argued , the Secretary of ORG had failed to comply with his duties under LAW and CARDINAL of the Convention and LAW No . CARDINAL .

Takeley and PERSON also made a separate application for a protective costs order ( “ ORG ” ) . Although PERSON was indemnified by Takeley in respect of costs , Takeley itself had limited financial resources . Accordingly , the terms of the ORG sought was that each party pay its own costs in relation to the judicial review proceedings , on the grounds that the case was CARDINAL of general interest and that the prohibitive level of costs which could potentially be awarded against the claimants if unsuccessful would inevitably oblige them to discontinue the application for judicial review .

By order dated DATE , Sir PERSON declined to make an advance order on costs on the basis that the issue of costs should be dealt with on the relevant application for permission . He observed that the condition in R ( on the application of ORG ) v Secretary of ORG ( see relevant domestic law and practice below ) that the claimant should have no private interest in the case in order for a ORG to be awarded “ may be too restrictive but there are substantial arguments against a ORG , although some sort of capping may be appropriate ” .

On DATE , Mr Justice PERSON refused the renewed application for leave to apply for judicial review . He noted at the outset ( at paragraph CARDINAL ) that :

“ The generalised blight is caused by ORG , or its implementation , not by the bringing forward of a voluntary scheme to mitigate its effects . The challenge to the vehicle intended to bring relief [ i.e. the HOSS ] , whatever may be claimed to be its inadequacies , was aiming at the wrong target . Furthermore , it should be noted that the scheme does not affect statutory rights , it simply supplements those rights in the cases where it applies . ”

In respect of the argument that the balance struck between competing rights by the White Paper was not reflected in the HOSS , the judge disagreed . He considered that the White Paper did not contemplate a voluntary scheme which would relieve all cases of generalised blight and that , accordingly , the HOSS scheme was not incompatible with the policy set out in the White Paper .

As regards the argument that in endorsing the scheme , the Secretary of ORG had infringed Convention rights , PERSON considered in turn the various articles relied upon . In respect of DATE , he concluded that the case involved the possible diminution in value of property and that , as a consequence , LAW was not engaged . In any case , the balance struck by the scheme did not raise an arguable claim under LAW . As regards LAW No . CARDINAL , he noted that it was common ground among the parties that the article was engaged and he considered that the case involved a control of the use of the property , rather than deprivation of ownership . He referred to the approach of ORG in R ( Trailer and LOC ( ORG ) v Secretary of ORG and another [ DATE ] CARDINAL WLR CARDINAL in which ORG , citing PERSON v. GPE ( no . CARDINAL ) , DATE , § DATE , Series A no . CARDINAL , explained that in such cases there had to be a reasonable relationship of proportionality between the means employed and the aim sought to be realised ; and that in striking the fair balance between the general interest of the community and the requirements of the protection of the individual ’s fundamental rights , the authorities enjoyed a wide margin of appreciation . PERSON concluded ( at paragraph CARDINAL ) that :

“ [ Counsel for PERSON ] has to put his case very high . He has to say that a fair balance requires his mandatory scheme ; that is one which requires compensation to be available regardless of the noise contour , taking account of and providing compensation for any diminution in value and doing so for all of those who are affected by the generalised blight . To my mind , it is not arguable that approving a voluntary scheme which does not go this far is disproportionate . ”

As for the alternative argument that it would be disproportionate to base the scheme on the noise contour without incorporating some element of flexibility , PERSON held ( at DATE ) :

“ However , here again it does not appear to me that the use of the noise contour is a disproportionate response . Once it is accepted that it is justifiable to compensate only the severely disadvantaged , a line has to be drawn . It seems to me that this is an efficient and fair way of identifying those most severely affected by the generalised blight . ”

Lloyd PERSON noted that the documents setting out the PERSON explained clearly why it was considered desirable to have a contour line and why the CARDINAL Leq noise boundary had been adopted . The deliberate exclusion of discretion did not make drawing a line disproportionate . He concluded that there was an objective justification for the approach adopted , which was the need for legal certainty and a workable rule .

Finally , as regards LAW , ORG held ( at paragraph DATE ) :

“ I doubt that LAW is engaged in the circumstances of this case . This scheme does not discriminate between individuals and groups on the basis of personal characteristics . If it did , then that would be the case whenever a distinction is drawn between different categories of property owners . But , in any event , it seems to me that any discrimination will be justified for the reasons that have already been given . ”

In the circumstances , PERSON found that the issue of the protective costs order did not arise . However , having heard argument from the parties , he limited the extent of the costs order made in respect of the proceedings . No costs order was made against PERSON . Takeley was ordered to pay the first and second defendants’ assessed costs of acknowledging service and resisting the ORG , the latter costs to be limited to GBP CARDINAL , and the third defendant ’s costs of lodging written submissions , limited to GBP CARDINAL . No costs were awarded in respect of the oral hearing .

Mr PERSON and Takeley subsequently sought permission to appeal to ORG against the refusal of leave on the ground that , inter alia , the judge had erred in law in concluding that there was no arguable case that the Secretary of ORG had acted , and continued to act , in breach of his obligations under LAW and CARDINAL of the Convention and LAW No . CARDINAL .

By order dated DATE , Lord Justice PERSON adjourned the application to be heard by the full court , with the appeal to follow if permission was granted . He commented that :

“ I have doubts about the prospects of success but a refusal on paper will almost certainly lead to an oral hearing and this is one of those cases where arguing about prospects could take longer than tackling the points sought to be taken ” .

Following a request for clarification from solicitors acting for Takeley and Mr PERSON , PERSON confirmed on DATE that he would not make a protective costs order .

Takeley and PERSON subsequently sought the advice of leading and junior counsel . Counsel advised that although the case was arguable , the prospects of success on appeal were low and the prospects of success in the substantive judicial review application were even lower . In this respect , PERSON comments in his DATE order that he had doubts about the prospects of success were significant . In view of ORG ’s limited financial resources and the likely considerable level of costs which would be awarded against them if their appeal was unsuccessful , counsel advised the withdrawal of the appeal .

The appeal was subsequently dismissed by consent .

Under statutory planning law , residential occupiers directly affected by airport development plans have access to statutory blight provisions either when planning permission has been granted for airport development or when the local development plan has been revised to reflect the development proposals .

Under Part I of LAW DATE , those affected by airport development can claim compensation for the loss in the value of their property directly attributable to the operation of the new development . However , eligibility for compensation arises DATE have passed since the new runway has entered in operation .

The normal rule in civil proceedings in GPE and GPE , including judicial review proceedings , is that the unsuccessful party pays the reasonable costs of the successful party .

The court may , in certain circumstances , make a protective costs order . The relevant principles governing the making of PCOs in public law cases raising issues of general public importance were set out in R ( on the application of ORG ) v Secretary of ORG [ DATE ] CARDINAL WLR CARDINAL . In that case , ORG held ( at paragraph CARDINAL ) :

“ We would therefore restate the governing principles in these terms : ( CARDINAL ) a ORG may be made at any stage of the proceedings , on such conditions as the court thinks fit , provided that the court is satisfied that : ( i ) the issues raised are of general public importance ; ( ii ) the public interest requires that those issues should be resolved ; ( iii ) the applicant has no private interest in the outcome of the case ; ( iv ) having regard to the financial resources of the applicant and the respondent(s ) and to the amount of costs that are likely to be involved it is fair and just to make the order ; and ( v ) if the order is not made the applicant will probably discontinue the proceedings and will be acting reasonably in doing so . ( CARDINAL ) If those acting for the appellant are doing so pro bono this will be likely to enhance the merits of the application for ORG . ( CARDINAL ) It is for the court , in its discretion , to decide whether it is fair and just to make the order in light of the considerations set out above . ”


Violation of Art. 6-1;Violation of P1-1;Not necessary to examine Art. 13;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic and convention proceedings

The applicants are residents of GPE .

The applicants are in receipt of welfare payments for their children . In DATE they brought separate sets of civil proceedings against a local welfare authority , claiming arrears in those payments .

On the dates set out in the appendix the domestic courts granted the ORG claims and ordered the welfare authority to pay them the respective amounts . The enforcement proceedings were commenced accordingly .

On DATE the bailiffs discontinued the enforcement proceedings in respect of the judgments in the ORG favour and returned them the writs of execution referring to the lack of the debtor ’s funds .

In DATE the applicants unsuccessfully applied to various public bodies seeking to have the judgments in the favour enforced .

On DATE the applicants were paid the amounts due pursuant to the writs of execution .

Section CARDINAL of LAW of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW of the LAW , the enforcement proceedings should be completed within DATE of the receipt of the writ of enforcement by the bailiff .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by PERSON PERSON , a lawyer practising in PERSON . The respondent Government are represented by PERSON , of ORG .

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

On DATE ORG ( prokurator wojewódzki ) instituted an investigation in regard to suspected child trafficking . DATE the prosecutor heard CARDINAL witnesses and conducted several other procedural activities , including the appointment of interpreters for CARDINAL NORP nationals to be heard in the case . The applicant submits that those QUANTITY foreigners were PERSON , who was one of the accused persons , and his wife .

On DATE the prosecutor charged the applicant with child trafficking and incitement to false testimony .

On DATE the applicant was heard . On the same date the prosecutor appointed CARDINAL medical experts in order to assess whether the applicant ’s state of health prevented him from being kept in detention . They found no medical obstacles to the applicant ’s detention .

On DATE the prosecutor remanded him in custody . Between CARDINAL DATE and DATE the prosecutor interrogated other suspects and witnesses in the case .

On DATE the prosecutor decided to submit a letter rogatory to competent authorities in GPE requesting the examination of CARDINAL witnesses . The applicant submits that those letters concerned PERSON , who had been previously heard in the case , and PERSON , who was counsel for PERSON

The applicant appealed against the decision to remand him in custody , but on DATE ORG ( sąd wojewódzki ) dismissed his appeal .

On DATE an expert in cardiology , having been so ordered by the prosecutor , prepared an opinion , according to which the applicant should not be kept in detention .

On DATE the applicant was released on bail .

In DATE the prosecutor heard further witnesses .

On DATE she decided to prolong the investigation , relying , among other reasons , on the NORP authorities’ failure to carry out the letter rogatory .

On DATE the prosecutor refused the applicant ’s request to be released from the bail requirements . On DATE his appeal against that decision was dismissed .

On DATE the prosecutor brought charges against another individual .

On DATE and DATE the investigation was further prolonged in view of the NORP authorities’ failure to execute the letter rogatory .

On DATE the prosecutor refused the applicant ’s further request to be released from the bail requirements .

Subsequently , on CARDINAL occasions the prosecutor again prolonged the investigation , relying each time on the difficulties with the execution of the letter rogatory .

On DATE the prosecutor refused the applicant ’s further request for release from the bail requirements . His appeal against that decision was dismissed on DATE .

On DATE the testimony given by the CARDINAL NORP witnesses was submitted to ORG .

On DATE the prosecutor decided that a part of the case would be examined in a separate set of proceedings .

On DATE the applicant notified the Minister of Justice about criminal offences allegedly committed , inter alia , by ORG in the course of the investigation .

On DATE the prosecutor rejected an evidence motion submitted by the applicant .

On DATE the prosecutor submitted to ORG the bill of indictment . The indictment comprised allegations in respect of CARDINAL individuals , including the applicant . CARDINAL of them was a NORP national . The prosecutor requested the court to summon CARDINAL witnesses , including CARDINAL NORP nationals .

On DATE ORG requested ORG to transmit the case to another court .

On DATE ORG transferred the case to ORG , relying on the fact that the applicant was a lawyer practising in the region covered by ORG jurisdiction .

On DATE ORG dismissed the applicant ’s and another accused person ’s requests for the discontinuance of the proceedings .

The hearing scheduled for DATE was adjourned sine die because of the absence of PERSON In DATE submitted a sick certificate .

On DATE the President of ORG assigned a judge to replace CARDINAL of the judges in the applicant ’s case , who had retired .

The hearing scheduled for DATE was adjourned because of U. K. ’s continuing absence .

On DATE the court requested ORG in GPE and GPE to submit case files of criminal cases similar to the applicant ’s case , examined by those courts .

On DATE the court refused the applicant ’s further request for the discontinuance of the proceedings .

PERSON failed to attend the hearing held on DATE and the court decided to adjourn the examination of the charges against him to a separate set of proceedings .

At the hearing held on DATE the court imposed a fine on witness PERSON , who was a victim in the case , for her failure to attend the hearing despite having been duly summoned . Subsequently , her mother informed the court that PERSON resided abroad and she would not attend the hearing scheduled for DATE .

On DATE the court held a hearing .

On DATE it ordered the police of PERSON place of residence to submit information concerning her whereabouts .

The court held a hearing on DATE . It fined CARDINAL witnesses who failed to appear before it although duly summoned .

The court held further hearings on DATE and DATE .

Subsequently , the presiding judge fixed the dates of further hearings for CARDINAL and CARDINAL DATE , anticipating a possibility to examine witness PERSON could not be heard on the former date and the hearing scheduled for that date did not take place .

The court heard PERSON at the hearing on CARDINAL DATE .

It held another hearing on DATE .

On DATE the court gave judgment . The applicant was convicted of inciting PERSON and PERSON to give false testimony and sentenced to DATE and CARDINAL months’ imprisonment , suspended for DATE . He was acquitted of child trafficking . The judgment was accompanied by CARDINAL pages of reasoning . The applicant , as well as one of the other accused persons and the prosecutor , appealed .

On DATE ORG ( sąd apelacyjny ) acquitted the applicant of inciting PERSON to give false testimony . It dismissed the remainder of his appeal .


By a provisional decision of DATE ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE decided that payments of industrial injury benefits to the applicant , who was born in DATE , should be discontinued as from DATE . This decision was confirmed by a final decision of DATE . The ORG considered that the applicant ’s ability to work was not reduced due to her back problems to such an extent that she was entitled to the benefits in question under the applicable rules of LAW ( Lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE LAW )

The applicant later requested the ORG to review its decision , which it did on DATE . Save for the grant of benefits for DATE , the ORG upheld its previous decision and also found that the applicant was not entitled to a life annuity .

The applicant appealed to ORG ( länsrätten ) of GPE , claiming that she was entitled to continued benefits after DATE . She maintained that the medical evidence , on which the ORG ’s decision was based , in fact showed that she was entitled to the benefits sought .

By a judgment of DATE ORG upheld the ORG ’s decision . The court ’s assessment was based on medical certificates from CARDINAL different physicians who all stated that the applicant was able to work and thus was not entitled to the benefits in question . It did not hold an oral hearing , nor did the applicant request CARDINAL .

NORP The applicant then appealed to ORG ( kammarrätten ) in GPE . In support of her appeal she invoked medical certificates issued by CARDINAL other physicians . Furthermore , without stating any reasons for her request , she asked the court to hold an oral hearing .

On DATE the appellate court rejected the request for an oral hearing . After having restated section CARDINAL of ORG ( ORG , ORG ; hereinafter “ the DATE LAW ; see further paragraph CARDINAL below ) , it gave the following reasons :

“ Having regard to the subject - matter at issue and the information that has so far come to hand in the case , [ the court ] finds that an oral hearing is at present unnecessary . [ The applicant ] is invited to submit her final written observations in the case within DATE after having been notified of this decision .

The case can be determined notwithstanding a failure to submit such written observations . ”

On DATE ORG , relying on the medical evidence submitted in the case , rejected the applicant ’s appeal . It also rejected her renewed request for an oral hearing .

The applicant appealed against the judgment to ORG ( Försäkringsöverdomstolen ) . She complained about the lack of oral hearings in the lower courts . In that respect , she maintained that the case had not been adequately investigated and that an oral hearing had been necessary for her to explain matters of importance to the ORG assessment .

By a letter of CARDINAL DATE ORG informed the applicant that an oral hearing in the case appeared to be unnecessary . She was given the opportunity to submit further observations on the question of leave to appeal .

On DATE ORG refused the applicant leave to appeal .

The applicant was on sick - leave DATE and DATE , during which period she received per diem sickness benefits under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE Act ” ) . However , by a decision of CARDINAL DATE the ORG found that she was no longer entitled to such benefits . At the applicant ’s request , the ORG reviewed its decision on DATE but did not change it .

On DATE ORG , upon the applicant ’s appeal , found that the available medical evidence did not show that she was entitled to benefits as from DATE . The appeal was thus rejected . It does not appear that the applicant asked for an oral hearing before this instance .

The applicant appealed to ORG . She requested also in this case that the appellate court hold an oral hearing and , moreover , asked it to obtain further medical evidence . On DATE the court rejected the requests , giving the same reasons on the issue of an oral hearing as in its decision of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE ORG rejected the applicant ’s appeal and her renewed request for an oral hearing .

The applicant appealed against the judgment to ORG . She requested again that an oral hearing be held in the case . She also complained about the lack of oral hearings in the lower courts .

All gainfully employed persons working in GPE are insured against industrial injuries in accordance with LAW . Anyone who is put on the sick - list as a result of an industrial injury and who is insured under LAW is entitled to the same per diem benefit from the ordinary sickness insurance ( social insurance ) during DATE as if he or she had been sick for a reason other than an industrial injury . When DATE have passed , the insured person is entitled to a per diem sickness benefit in accordance with LAW ( industrial injury insurance ) , if his or her ability to carry on with gainful employment is reduced by PERCENT ( PERCENT prior to DATE ) . After the period of sickness has come to an end and the insured person is no longer on the sick - list , he or she is entitled to a life annuity if the capacity for gainful employment is reduced by DATE .

All NORP nationals and other residents in GPE are insured in accordance with LAW . Anyone who is registered with ORG and has an DATE income of MONEY ( SEK ) has the right to a per diem sickness benefit , if his or her sickness reduces the ability to work by PERCENT .

A decision by ORG under the DATE and DATE Acts may be appealed against to ORG and from there on to ORG and , at the relevant time , subject to leave to appeal being granted , to ORG . The latter court was the final instance in social insurance matters until DATE , when it was abolished and its tasks taken over by ORG ( Regeringsrätten ) .

The procedure in the administrative courts is governed by the provisions of LAW . It also regulated the proceedings before ORG . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances was not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party ’s request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party ’s understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr S. GPE of PERSON , solicitors in GPE .

The applicant committed a series of sexual offences before DATE : CARDINAL rapes , CARDINAL indecent assaults , CARDINAL act of sexual intercourse with a girl DATE , CARDINAL acts of gross indecency with a child , and CARDINAL offences involving photographs or pseudo - photographs of a child . He was tried and convicted in DATE , and on DATE was sentenced to CARDINAL years’ imprisonment on CARDINAL count of rape and to CARDINAL periods of CARDINAL years’ imprisonment on the other CARDINAL counts . On each of the CARDINAL counts of indecent assault on a woman he was sentenced to CARDINAL years’ imprisonment . On the count of sexual intercourse with a girl under DATE he was sentenced to DATE imprisonment , and on CARDINAL of the counts of committing gross indecency with a child he was sentenced to CARDINAL months’ imprisonment , and on the other to CARDINAL months’ imprisonment . On the count relating to the taking of the indecent photograph of a child he was sentenced to DATE imprisonment and he was also sentenced to DATE imprisonment on CARDINAL of the CARDINAL counts relating to distribution of such a photograph . All the above periods of imprisonment were to run concurrently . In respect of the second of the counts relating to distribution of such a photograph he was sentenced to DATE imprisonment to run consecutively to the other offences . The overall effect was that he was sentenced to a total of CARDINAL years’ imprisonment . No appeal against sentence was made .

At the time when the applicant committed the various acts , they all constituted offences under their respective statutory provisions , and at that same time the court would have been entitled to impose periods of imprisonment for the offences which exceeded the periods actually imposed in DATE . In particular , by reason of section GPE ) of , and § CARDINAL(a ) of Schedule CARDINAL to , LAW DATE , the maximum sentence for rape in DATE was life imprisonment . The maximum sentence at the time for distributing an indecent photograph or pseudo - photograph of a child was DATE imprisonment . The position remained the same for both offences in DATE .

At the time the applicant committed the offences the combined effect of section GPE ) of the Prison Act DATE , rule CARDINAL of the Prison Rules DATE and section CARDINAL of LAW DATE meant that a person sentenced to CARDINAL years’ imprisonment would have been entitled , provided he had been of good behaviour , to be released when he had completed CARDINAL of his sentence , and the sentence would then have expired . Release on licence would have been possible after expiry of CARDINAL of the sentence , that is , after DATE .

As a result of the relevant provisions of LAW DATE , which entered into force in DATE , release on licence is an entitlement after CARDINAL of the sentence , and the licence remains in force until DATE of the sentence . In the applicant ’s case , this meant that he was released on licence on DATE , when he had completed CARDINAL of his DATE sentence , and the licence remained in force until DATE . During that period , he was liable to be recalled to prison if he failed to comply with the conditions . After the end of the licence period , he could be required to serve , in whole or in part , the remainder of DATE sentence if convicted of an imprisonable offence .

The applicant took the view that the changes brought about by LAW DATE , which had the effect of imposing licence conditions on release for DATE , with a continuing residual liability to serve the outstanding term if convicted of further offences , amounted to a heavier penalty than the one that was applicable at the time the criminal offences were committed . On DATE he therefore applied for judicial review on that ground , referring to LAW .

The claim was considered by Mr Justice PERSON in the High Court on DATE . PERSON held that the purpose of the licence was “ to enable the prisoner to stay out of trouble for his own benefit and for the benefit of the community ... True it is that , if he breaches the licence , he is at risk of recall , but the licence is itself designed to avoid the risk of further offences and a return to prison ” . The court held that the imposition of a licence as part of the sentence did not amount to a penalty , and dismissed the claim .

On DATE ORG held that LAW had been violated and made a declaration that the relevant sections of the DATE Act were incompatible with the applicant ’s LAW . Lord Justice PERSON stated :

“ ... a sentence which includes a period of licence inevitably extending beyond CARDINAL of the term imposed is , in my judgment , a heavier penalty than a sentence without that requirement . The fiction that the penalty is DATE in custody in each case must not be allowed to obscure the reality of the effects of the licence . While licence conditions vary , and in some cases will be more onerous than others , it is not and can not be disputed that conditions will inevitably be imposed which are impediments on the offender ’s freedom of action . Moreover , the conditions create a potential liability to serve a further substantial period in custody , as to the provisions dealing with the effects of reconviction . Arguments that the purpose of the licence conditions is rehabilitative and preventative , as they undoubtedly are , do not detract from their onerous nature when viewed as part of the sentence . Whatever the purpose , the effect is onerous . ”

In ORG , the Secretary of ORG made CARDINAL principal contentions :

- That the penalty imposed was well within the maximum allowed by law in DATE ;

- That the applicant was complaining about early release provisions , which concern the administration of sentences and are not covered by LAW ;

- That the trial judge was required , by a Practice Statement which was issued on DATE when the DATE Act came into force ( Practice Statement : ( Crime : Sentencing ) [ DATE ] CARDINAL WLR CARDINAL ) , to take changes in early release provisions into account when sentencing , and

- That licensing provisions are not a penalty , but are designed to assist the offender in his rehabilitation and to protect the public against the risk of his re - offending .

ORG allowed the Secretary of ORG ’s appeal on DATE . Referring to PERSON and PERSON v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL/CARDINAL , GPE and CARDINAL , § MONEY , ORG CARDINALVII ) , the ORG considered that the contention that they had to resolve was whether the word “ applicable ” in the second sentence of the first paragraph of LAW to the sentence that would have been actually applied at the time , or the maximum sentence that was available in law . They concluded that LAW only prohibited a retrospective increase in the maximum penalty that was available following conviction and not a particular penalty that might be awarded within that maximum . Lord PERSON summarised the position thus :

“ It follows that LAW will only be infringed if a sentence is imposed on a defendant which constitutes a heavier penalty than that which could have been imposed on the defendant under the law in force at the time the offence was committed ... The maximum sentence that could be imposed for rape at the time the respondent committed the rapes for which he was committed was life imprisonment . That was the applicable penalty for the purposes of LAW . The sentence of DATE imposed on the respondent would seem manifestly a less heavy penalty than life imprisonment . ”

“ Rules made under LAW may make provision whereby , in such circumstances as may be prescribed by the rules , a person serving a sentence of imprisonment for such a term as may be so prescribed may be granted remission of such part of that sentence as may be so prescribed on the ground of his industry and good conduct , and on the discharge of a person from prison in pursuance of any such remission as aforesaid his sentence shall expire . ”

“ ( CARDINAL ) A prisoner serving a sentence of imprisonment for a term of DATE may , on the ground of his industry and good conduct , be granted remission in accordance with the provisions of this Rule :

Provided that nothing in this Rule shall authorise the reduction of the term which the prisoner is serving to DATE .

( CARDINAL ) Remission granted under this Rule shall not exceed CARDINAL [ of the sentence ] ... .

( CARDINAL ) This Rule shall have effect subject to any disciplinary award of forfeiture of remission and shall not apply –

( b ) to a prisoner serving a sentence of imprisonment for life . ”

In practice , remission was invariably granted of a period of CARDINAL of the sentence , subject to the power of a governor to award loss of remission for commission of a disciplinary offence .

“ ( CARDINAL ) The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment , other than imprisonment for life , after he has served not CARDINAL of his sentence or DATE thereof , whichever expires the later . ”

A long term prisoner ( that is , a prisoner serving DATE or more ) is entitled to apply for early release once he has served CARDINAL ( not one third ) of his sentence ( section CARDINAL of LAW DATE ( “ the DATE LAW ) .

By section CARDINAL ( CARDINAL ) of the DATE Act , a long term prisoner is entitled to be released as soon as he has served CARDINAL of his sentence . Such a prisoner must be released on licence , and the licence ( like a licence under LAW ) remains in force until the expiry of CARDINAL of the sentence .

A long term prisoner who is released on licence and recalled must be re - released as soon as he has served DATE of the sentence ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL of ORG ) Act DATE , which replaces section CARDINAL of the CARDINAL Act , empowers a court to make an order returning an offender to custody to serve the balance of his sentence if he commits an offence after his release but before the date on which the sentence would have been served in full .


Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

The applicant was born in DATE and lives in GPE .

On an unspecified date criminal proceedings were instituted in respect of the applicant on account of fraud and burglary under LAW ( CARDINAL ) and ( CARDINAL ) and LAW .

On DATE formal charges were brought against the applicant . It appears that the applicant was considered to be in hiding and a search was initiated .

On DATE the Ararat Regional Court examined and granted the investigator ’s motion seeking to have the applicant placed in pre - trial detention . This decision was based on the nature and degree of dangerousness of the incriminated acts and on the fact that the applicant was in hiding and was capable of hindering the investigation by exerting unlawful pressure on the parties to the proceedings . Detention was imposed for a period of DATE to be calculated from the moment of the applicant ’s arrest .

On DATE the applicant was arrested and taken to ORG where he was informed about the decision of DATE . The applicant was then taken to PERSON detention facility .

On DATE the applicant filed a motion with the ORG seeking to be released on bail . The applicant submitted at the outset that ORG , despite the requirement of LAW CCP ) ( see paragraph CARDINAL below ) , had failed to address the question of his release on bail in its decision of DATE . He further argued that the fact that he was not eligible under the law for release on bail because of the gravity of the charges was in contradiction with the requirements of LAW . He requested the court to apply the requirements of the LAW and to release him , arguing that he had never been in hiding . The applicant alleged that prior to his arrest he had been out of town for business and that he had never been informed of the criminal proceedings against him . He finally argued that he had not been brought before a judge following his arrest , as required by LAW .

On DATE the investigation was completed .

On DATE the ORG examined the motion of CARDINAL DATE . ORG noted at the outset , with reference to LAW , that the norms of international law prevailed over domestic law and therefore the question of the applicant ’s release on bail was to be considered . ORG , however , decided to refuse the applicant ’s request for release , finding that there was a risk of the applicant absconding and thereby evading liability and punishment in view of the fact that he had earlier been in hiding . This decision was subject to appeal within DATE .

On DATE the bill of indictment was finalised .

On DATE the criminal case was transmitted to the Ararat ORG for examination .

On DATE the applicant ’s detention period authorised by the decision of CARDINAL DATE expired .

On DATE the applicant lodged an appeal against the decision of DATE . He also applied to the chief of ORG detention facility and requested that he be released , since the authorised detention period had expired on DATE .

On the same date Judge PERSON of ORG decided to take over the applicant ’s criminal case .

By a letter of CARDINAL DATE the chief of ORG detention facility refused the applicant ’s request to be released , on the ground that the case had been transmitted to ORG .

On DATE the applicant lodged an appeal against this refusal with the ORG and ORG of GPE , arguing that his continued detention was unlawful .

On DATE Judge PERSON decided to set the applicant ’s criminal case down for trial , scheduling a hearing for DATE . This decision stated that it was not necessary to modify or cancel the applicant ’s detention .

On DATE ORG , referring to LAW ORG which prescribes the rules of judicial control over pre - trial proceedings , decided to leave the applicant ’s appeal of DATE unexamined on the ground that the pre - trial proceedings had already been completed .

On DATE the ORG and ORG of GPE dismissed the applicant ’s appeal of DATE , finding that the refusal to release him had been lawful and in compliance with LAW ORG .

On DATE the applicant lodged an appeal against this decision .

On DATE the applicant filed a motion with the ORG seeking to be released .

On DATE the Ararat Regional Court examined and dismissed this motion . ORG found that the applicant ’s detention after CARDINAL DATE was justified under LAW of the ORG ( see paragraph CARDINAL below ) , while his detention after DATE was authorised by the court ’s decision of the same date .

On DATE ORG dismissed the applicant ’s appeal of DATE on the same grounds as ORG .

According to LAW , the accused is entitled , inter alia , to file motions .

According to LAW , preventive measures are measures of compulsion imposed on the suspect or the accused . They include , inter alia , detention and bail . Bail is considered an alternative preventive measure to detention and is imposed only if a court decision has been issued to detain the accused .

According to LAW , detention and bail are applied only by a court decision upon the investigator ’s or the prosecutor ’s motion or of the court ’s own motion during the court proceedings . The court can replace detention with bail also upon the motion of the defence .

According to LAW , when deciding on detention , the court also decides on the possibility of releasing the accused on bail and , if release is possible , sets the amount of bail .

According to LAW , a court decision imposing detention may be contested before the appeal court .

According to CARDINAL § CARDINAL , entitled “ Detention period ” , the detention period of an arrested person shall be calculated from the moment of his actual taking into custody or , if he has not been arrested , from the moment of execution of the court decision whereby detention was imposed .

According to LAW , during the pre - trial proceedings of a criminal case the detention period may not exceed DATE , except for cases prescribed by this Code . During the pre - trial proceedings of the criminal case the running of the detention period shall be suspended on DATE when the prosecutor transmits the criminal case to the court or when detention is cancelled as a preventive measure .

According to LAW and DATE , during the pre - trial proceedings of a criminal case the accused ’s detention period can not exceed DATE . No maximum detention period is prescribed during the court proceedings .

According to LAW , if it is necessary to prolong the accused ’s detention period , the investigator or the prosecutor must submit a well - grounded motion to the court not DATE before the expiry of the detention period . When deciding on the prolongation of the accused ’s detention period , the court shall prolong the detention period within the limits prescribed by this LAW , on each occasion for a period not exceeding DATE .

According to LAW , the administration of a detention facility is obliged , inter alia , immediately to release a person kept in detention without a relevant court decision or if the detention period fixed by a court decision has expired .

According to LAW , a motion seeking to have detention imposed on an accused for whom a search has been declared shall be examined by the court in the presence of the person who has filed the motion and the accused ’s lawyer , if any .

According to LAW , the court of appeal shall carry out the judicial review of the lawfulness and validity of decisions imposing or refusing to impose detention , as well as prolonging or refusing to prolong the detention period .

According to Article CARDINAL , a criminal case received at the court shall be taken over by judges in a procedure prescribed by law . A relevant decision must be adopted .

According to LAW , the judge who has taken over a case shall examine the materials of the case and within DATE from the date of taking over the case shall adopt , inter alia , a decision setting the case down for trial .

According to LAW , the decision setting the case down for trial shall contain , inter alia , a decision cancelling , modifying or imposing a preventive measure .

According to LAW , an appeal must contain ( a ) the name of the court to which it is addressed ; ( b ) information about the appellant ; ( c ) the contested judgment or decision and the name of the court which issued it ; ( d ) an indication as to whether the whole or part of the judgment or decision are being contested ; ( e ) the appellant ’s arguments and complaints ; ( f ) substantiating evidence , if any ; ( g ) a list of attached materials ; and ( h ) the appellant ’s signature . According to LAW , the court of appeal shall leave an appeal unexamined if it does not comply with the requirements set out in this LAW , was lodged by a person who was not entitled to do so , or was lodged out of time .

According to LAW ( CARDINAL ) and ( CARDINAL ) , burglary with breaking into a flat , storage or construction committed anew is punishable by DATE imprisonment .

According to LAW , fraud is punishable by a maximum of CARDINAL years’ imprisonment .

On DATE ORG issued a decision in another criminal case whose relevant parts read as follows :

“ ... [ T]he ORG finds unacceptable the limitation of the right to appeal against decisions imposing detention or prolonging a detention period on the ground whether the appeal was lodged within the scope of judicial control over pre - trial proceedings or during the court proceedings of the case . ...

In the present case , ORG based its decision to leave the appeal unexamined on the fact that the investigation had been over and the case had been submitted to court , which was not envisaged by LAW of [ the ORG ] . Hence , ORG finds that in the present case an appeal was lodged against a judicial act subject to appeal , which was not supposed to be left unexamined . ...

On the violation of ... LAW ... of the LAW by ORG . ... The domestic criminal procedure law does not envisage any limitation on lodging an appeal against the general jurisdiction court ’s decision imposing detention or prolonging a detention period , based on the particular stage of the proceedings . ”

“ ORG finds that [ , inter alia , LAW ORG ] , as regards imposition of a preventive measure on an accused in whose respect a search has been initiated , is incompatible with the requirement of LAW that [ an arrested person ] be promptly brought before a judge . [ The mentioned LAW ORG ] allows imposition of a preventive measure depriving a person of liberty in the absence of that person , without providing a possibility for the person discovered as a result of the search to appear before the court and for the question of his detention to be discussed in his presence .

ORG finds that such rules of the criminal procedure law will breach LAW of the LAW and will constitute a grave violation of a person ’s right to liberty if a person discovered as a result of the search is not brought promptly before a court . ...

... [ T]he ORG finds that a necessary domestic safeguard for the protection of the right to liberty must be an additional examination by [ the relevant ] court of the question of [ detention ] in the presence of [ the affected ] person following his discovery as a result of the search . ”

“ Taking into account the findings reached in the judgment of ORG in the case of PERSON v. GPE , ORG finds that the suspension of the detention period on the ground that the case has been transmitted by the prosecutor to a court constitutes an unlawful limitation of a person ’s right to liberty . Hence , the rules prescribed by LAW of [ the ORG ] contradict LAW of [ the LAW ] and LAW and CARDINAL § CARDINAL of [ the ORG ] .

ORG finds that in cases in which there are DATE left before the expiry of the DATE detention period , that is less than the time - limit within which a judge who has taken over the case is to adopt CARDINAL of the decisions envisaged by LAW [ the ORG ] , the investigating authority , when transmitting the case to the court , must also resolve the question of a person ’s detention , namely release him if the grounds justifying his detention have ceased to exist or file a motion with the court seeking a prolongation of the detention period if there are [ relevant grounds ] . ”


Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Pecuniary and non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in Hakkari . The first CARDINAL applicants are the children of Mr PERSON , who disappeared in DATE , and the remaining CARDINAL applicants are his siblings . At the time of his disappearance PERSON Er was DATE .

The facts of the case are disputed by the parties . The facts as presented by the applicants are set out in Section B below . The Government ’s submissions concerning the facts are summarised in Section C below . The documentary evidence submitted by the applicants and the Government is summarised in Section D.

On DATE an armed clash took place between members of the ORG and members of the security forces in GPE village , which comes within the administrative jurisdiction of the town of GPE in south - east GPE . After the operation the soldiers took the applicants’ relative PERSON and an elderly relative by the name of ORG Er from PERSON to the nearby Işıklı gendarmerie station .

DATE the applicants informed the public prosecutor in PERSON of the incident .

Hacı PERSON was released on DATE but nothing further was heard from PERSON .

The Government submitted that PERSON Er had not been taken into custody . He had assisted soldiers in searching for landmines planted in the area by terrorists and had been released following the ORG return to their barracks .

An effective investigation carried out by the judicial authorities had shown that following his release PERSON Er had joined the terrorists in northern GPE .

The following information emerges from the documents submitted by the parties .

On DATE Mr PERSON , who is the brother of PERSON and one of the applicants , informed the public prosecutor in PERSON in writing about the disappearance of his brother . He also stated that the family feared for PERSON life , and asked for the public prosecutor ’s help .

On DATE the PERSON public prosecutor recorded in a report that he had had a telephone conversation with Major PERSON of the LOC commando headquarters . Major PERSON was also the commanding officer in charge of the soldiers who had carried out the operation on DATE . The major told the public prosecutor that PERSON had been taken from the village by his soldiers on DATE to help them with their operations . However , he had been released on DATE in an area near GPE .

On DATE PERSON Er made submissions to the offices of the governor and the public prosecutor in PERSON . He stated in his submissions that his brother PERSON Er had not been released , contrary to the information given to him by the PERSON public prosecutor on DATE . He added that he had tried unsuccessfully to find his brother in the surrounding villages and towns .

On DATE the PERSON public prosecutor initiated an investigation into PERSON disappearance and issued writs to the PERSON gendarmerie headquarters and PERSON commando headquarters requesting information about PERSON whereabouts . The public prosecutor reminded the military authorities that if PERSON was in their custody they needed to obtain official permission from the public prosecutor ’s office in order to keep him in detention .

On DATE the commander of the PERSON gendarmerie headquarters , Captain S.A.U. , replied to the PERSON public prosecutor ’s letter and informed him that PERSON Er had not been detained at his headquarters . The village of PERSON had been evacuated for security reasons and it was therefore impossible to trace PERSON .

Following the failure of the Çukurca commando headquarters to respond to his request for information , the PERSON public prosecutor repeated his request in a letter of CARDINAL DATE . The public prosecutor also referred to his telephone conversation with Major PERSON ( see paragraph CARDINAL above ) , and asked the commando headquarters to inform him exactly where PERSON Er had been released and whether there had been any eyewitnesses to the release .

In a letter of CARDINAL DATE a military officer from the GPE commando headquarters informed the public prosecutor that PERSON Er and “ his elderly relative ” had been taken from their village by soldiers on DATE to act as guides to the area . The CARDINAL men had helped the soldiers to locate a number of landmines in the area and had then “ left the soldiers at TIME ” DATE . No documents had been drawn up concerning the CARDINAL men as they had not been arrested or detained .

On DATE a public prosecutor questioned the applicant PERSON , who repeated that his brother PERSON had been taken away from their village by soldiers on DATE . The gendarmerie first lieutenant who was with the soldiers had even slapped his brother in front of the villagers before taking him away . Following this incident the villagers had left the village DATE , but the applicant ’s elderly uncle , ORG , had stayed behind to wait for PERSON . The latter had returned to the village with the soldiers the same evening , very distraught . The soldiers had then taken both PERSON and ORG gendarmerie station , where they had tied them to a pole and left them until TIME . The CARDINAL men had also been beaten up . The following morning Hacı Mehrap Er and CARDINAL other villagers who had also been taken away by the soldiers had been released . According to his uncle , PERSON had been unconscious when he left him . Furthermore , PERSON , a fellow villager , had seen the applicant ’s brother being taken from ORG gendarmerie station to the commando unit in a military vehicle .

NORP The public prosecutor summoned PERSON and PERSON to his office . On DATE PERSON told the public prosecutor that he had seen PERSON Er in a military vehicle , wearing handcuffs .

On DATE Hacı Mehrap Er told the public prosecutor that on DATE of the incident the villagers had been preparing to leave their village as ordered by the military . However , some ORG members had heard about the evacuation and the presence of the soldiers in the village and had attacked the soldiers . During the armed clash that had ensued , PERSON had attempted to leave the village in order to find his son , who was out in the fields . However , the soldiers had misinterpreted PERSON intentions and had taken him to ORG gendarmerie station . Subsequently , ORG had also been taken to the same gendarmerie station , where he and PERSON had been tied to a pole and beaten up . The soldiers had also doused them with hot water . The bones in PERSON ’s feet had been broken with a stone . When Hacı PERSON was released the following morning , PERSON was being dragged along the ground by QUANTITY or QUANTITY soldiers . When he returned to the village , the soldiers had already burned it down .

After making CARDINAL unsuccessful attempts to summon him to his office , the public prosecutor finally questioned Major PERSON of NORP commando headquarters on DATE . The major confirmed that he had heard that PERSON Er had been taken from the village by his soldiers on DATE to act as a guide to the area . After his telephone conversation with the public prosecutor he had ordered PERSON release . However , he had later found out that the person released on his orders was not PERSON Er . Major PERSON added that he did not know whether PERSON had been taken away by his soldiers .

First Lieutenant H.Ö. , who was in charge of CARDINAL of the CARDINAL units of soldiers which had taken part in the operation on DATE , was questioned by the public prosecutor on DATE . The first lieutenant confirmed that he and his soldiers had gone to GPE village on DATE of the incident . Following an armed clash with members of the ORG , during which an officer had been killed and CARDINAL soldiers injured , they had seen PERSON Er running away from the village . A number of soldiers had then been sent to catch him . The soldiers had caught him and “ might have slapped him a few times ” because they believed that PERSON Er had been helping the ORG . PERSON Er had then helped the soldiers to find a number of landmines . On their way they had seen Hacı PERSON , who had asked permission to go with the soldiers . They had then taken PERSON ORG gendarmerie station . The first lieutenant had telephoned his superior officers at the battalion ’s headquarters and told them about the CARDINAL men . His superior officers had told them that it was not necessary to take the men to headquarters as there was no evidence against them . PERSON and ORG had spent TIME with the soldiers at Işıklı gendarmerie station . It was possible that the soldiers “ might have got angry with the CARDINAL men and slapped them ” but they had not tortured them or broken the bones in PERSON ’s feet as alleged . The following day the “ old man ” had been released outside the station and PERSON had been released some QUANTITY metres away from the station .

First Lieutenant Ş.Ö. had been in charge of another unit on DATE of the incident . He gave a similar statement to the public prosecutor .

On DATE the public prosecutor questioned CARDINAL other gendarmerie officers who had taken part in the operation on DATE . The officers confirmed that they had taken PERSON Hacı Mehrap Er to Işıklı gendarmerie station but denied that they had ill - treated them . They maintained that the CARDINAL men had been released DATE and added that PERSON Er had even waved to them when he was being released . The officers also told the public prosecutor that it was possible that PERSON Er had subsequently joined the ORG .

On DATE the PERSON public prosecutor issued an instruction to find PERSON Er and asked to be given a progress report DATE . In his instruction the prosecutor stated that PERSON had not been arrested by the soldiers but had been taken by them to act as a guide to the area . He also stated that , since CARDINAL of PERSON sons had joined the ORG , it was possible that PERSON Er himself might also have joined .

It appears from the documents that the police and soldiers searched unsuccessfully for PERSON Er and informed the public prosecutor at regular intervals until DATE . On DATE the PERSON public prosecutor requested the police to continue their search . After the prosecutor ’s letter the police continued to inform the prosecutor at twomonthly intervals about the unsuccessful search for PERSON Er .

On DATE the first applicant , PERSON , applied to the PERSON ORG of First Instance , alleging that his father had disappeared in life - threatening circumstances on DATE and that nothing had been heard from him since that date . He asked the court to issue a decree stating that his father was to be presumed dead . This request was accepted on CARDINAL DATE . On DATE custody of PERSON CARDINAL youngest children – the applicants Mr Hızır Er , Ms PERSON and Ms Belkısa Er – was awarded to their elder brother PERSON Er , who is also one of the applicants .

On DATE the PERSON public prosecutor issued a decision stating that , according to the allegations made and the information given to him by eyewitnesses , PERSON Er had last been seen in a military area , where he had been “ tortured by soldiers ” . Hence , the military were responsible for the incidents in question and the military prosecutor in the city of PERSON had jurisdiction to continue the investigation .

The military prosecutor in PERSON began his investigation on DATE by requesting information from local military units about whether or not anything had been heard from PERSON Er and whether he had sons who were ORG members . He also asked for regular updates DATE .

On DATE the military units informed the military prosecutor that , according to information obtained from intelligence officers , PERSON Er had been taken from his village by soldiers . Following his release on DATE , PERSON had gone to northern GPE to join the ORG . Nothing had been heard from him since DATE .

On DATE the military prosecutor questioned the applicant PERSON , and ORG . Both men reiterated the information they had already provided to the PERSON public prosecutor .

On DATE the applicants’ legal representative requested information from the PERSON public prosecutor about the investigation . He was informed of the transfer of the investigation to the military prosecutor ’s office in GPE .

At regular intervals DATE and DATE CARDINAL identical copies of a document stating that PERSON Er had joined the ORG were signed by various military officers and sent to the PERSON military prosecutor in connection with his request of DATE ( see paragraph CARDINAL above ) .

On DATE the military prosecutor decided that he also lacked jurisdiction to investigate the disappearance . In his decision the prosecutor summarised the steps taken in the investigation and stated that on DATE PERSON Er had been acting suspiciously and had been taken away by soldiers . He had then been taken to various places where he had shown the soldiers explosives planted by members of the ORG . The soldiers had then taken him to the barracks . The military prosecutor concluded that , in taking PERSON Er to their barracks in order to question him , the soldiers had been carrying out judicial rather than military functions . Military prosecutors could only investigate offences committed by members of the armed forces in the performance of their military duties . Hence , the civilian prosecutors had jurisdiction to continue the investigation . The file was therefore sent back to the PERSON public prosecutor ’s office .

The PERSON public prosecutor continued his investigation by instructing the gendarmes to continue to search for PERSON Er .

On DATE the PERSON public prosecutor summarised his investigation in a report . According to the report , on DATE PERSON Er had been acting suspiciously and had therefore been taken away by soldiers . He had then assisted the soldiers in locating CARDINAL landmines . He had stayed at the ORG gendarmerie station and had been “ released ” on DATE . According to “ secret investigations ” conducted by the gendarmes , PERSON Er had joined the ORG following his release . The PERSON public prosecutor concluded that the PERSON public prosecutor ’s office had jurisdiction to continue the investigation , and sent the investigation file there .

On DATE a public prosecutor in the city of PERSON issued a search and arrest warrant for PERSON Er for the offence of membership of an illegal organisation , namely the ORG .

NORP In response to an apparent query from the PERSON gendarmerie , the PERSON public prosecutor noted in a letter of DATE that the fact that PERSON Er ’s family had obtained a decree from a civil court presuming him to be dead did not mean that PERSON Er had indeed died . He decided that the search for PERSON Er should continue with a view to arresting him under the warrant of DATE .

On subsequent dates the PERSON gendarmerie informed the PERSON public prosecutor that their efforts to find and arrest PERSON Er had been unsuccessful .


The applicant , PERSON , is a NORP national , who was born in DATE and lives in GPE . She is represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON , Representative of GPE at ORG .

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

In DATE the applicant brought an action against a private party to recover a debt under a loan contract .

On DATE the ORG of GPE awarded ORG to the applicant , with interest to be charged until DATE of actual payment .

On DATE the judgment entered into force .

On DATE the enforcement proceedings were opened . The defendant 's flat was subject to a charging order .

On DATE the bailiff seized the defendant 's car and lifted the charging order on the flat .

On DATE the bailiff suspended the enforcement proceedings until CARDINAL DATE due to the defendant 's husband 's request to separate his property from that of his wife to preserve his share .

Following the lifting of the charging order the applicant learned that the defendant had sold the flat and bought another one . The applicant alleges that the defendant sold the flat at the price RUR CARDINAL and paid ORG CARDINAL for the new one .

The applicant brought CARDINAL sets of proceedings against the bailiff . Firstly , she challenged the lifting of the charging order . Secondly , she challenged the delay in enforcement .

On DATE the ORG of GPE declared the lifting of the charging order unlawful . The court held , in particular , that “ it reduced the effectiveness of the court 's judgment ” . The bailiff appealed .

On DATE the ORG of GPE declared unlawful the suspension of DATE and the delay in enforcement of the judgment .

On DATE the ORG acting on appeal upheld the decision of DATE . The court dismissed the bailiff 's objection that the flat could not be subject to an injunction for being the defendant 's only dwelling , as having no basis in law . It found that the bailiff 's unlawful act allowed the defendant to dispose of the flat , which impeded the enforcement proceedings .

On DATE the ORG of GPE defined the property shares between the defendant and her husband .

The applicant brought an action against ORG of GPE ( ORG финансов ORG ) and ORG of ORG ( Управление юстиции администрации PERSON области ) . She claimed damages resulting from the bailiff 's failure to enforce her award . She sought a total sum of RUR CARDINAL,CARDINAL.CARDINAL , representing the principal debt and the outstanding interest .

On DATE ORG of GPE dismissed her claim . It stated that “ neither the fact that the lifting of the charging order had been declared unlawful nor the undue delay of enforcement proceedings , although they resulted in a failure to execute the judgment , justifies an action for damages against the [ authorities ] because it was the [ debtor under the loan ] who had caused the damage to the applicant and who was liable pursuant to the judgment . ” The court found “ neither a fault on the part of the bailiff , nor a causal link between the bailiff 's act and the damage caused ” .

On DATE the ORG acting on appeal upheld the judgment of DATE . The court noted that the enforcement proceedings had continued and that on DATE and CARDINAL DATE the bailiff had issued injunctions in respect of a flat and a vehicle , in both of which the defendant had had a share .

On DATE the defendant 's car was seized , and in DATE it was sold . So far RUR CARDINAL has been paid to the applicant .

The LAW of GPE , adopted by referendum on DATE , provides , in so far as relevant , as follows :

“ ... CARDINAL . Decisions and actions or lack of action of state bodies , bodies of local self - government , public associations and officials may be appealed against in court . ”

“ Every person shall have the right to be reimbursed by the state for the damage caused as a result of unlawful actions ( inaction ) of the state bodies and their officials . ”

LAW of GPE , in force as of DATE , provides for compensation for damage caused by the act ( or a failure to act ) on behalf of the ORG :

“ Damage caused to an individual or a legal person as a result of an act or a failure to act by the state or municipal bodies , or their officials , including that caused by a written act issued by a state or a municipal body contrary to a law or a legislative act , shall be reimbursed . The damage shall be reimbursed by the treasury of GPE , the treasury of the subjects of GPE or the municipal treasury respectively . ”

Article CARDINAL of LAW authorises the relevant financial bodies to act on behalf of the respective treasury liable to pay damages .

LAW , in force as of DATE , provides that the damage caused by the bailiff shall be reimbursed in accordance with the civil legislation .

Article CARDINAL of LAW , in force as of DATE , provides that a dwelling can not be subject to a charging order for the purpose of enforcement , if it provides the only eligible residence for the debtor and his family .

No similar provision was in force before the entry into force of this LAW .