CASE OF ŠEKEROVIĆ AND PAŠALIĆ v. BOSNIA AND HERZEGOVINA

Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Violation of Art. 14+P1-1;Non-pecuniary damage - award

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

PERSON was born in DATE and lives in GPE , GPE . PERSON was born in DATE and lives in GPE , GPE .

PERSON was granted an old - age pension in DATE and PERSON in DATE .

NORP In DATE they moved from what is DATE GPE ( “ the Federation ” ) to what is DATE PERSON ( each of the Federation and PERSON being an “ Entity ” ) . While they were internally displaced , they received their pensions from ORG ( “ the ORG ” ) .

Having returned to ORG respectively , the applicants unsuccessfully sought to have their pension entitlements transferred from ORG to ORG ( “ the ORG ” ) . Therefore , in DATE they lodged applications with ORG , a domestic human - rights body set up by ORG CARDINAL to ORG for Peace in GPE .

On DATE ORG delivered a landmark decision concerning CARDINAL applicants , including CARDINAL of the applicants in the present case ( PERSON ) and the applicant in PERSON ( cited above ) , who had been granted pensions in what is DATE the Federation before the war , who had then moved to what is DATE PERSON during the war , and who , for that reason only , continued to receive ORG pensions despite their return to the Federation after the war ( pursuant to ORG , see paragraph CARDINAL below ) . They were thus treated differently from those who had stayed in what is DATE the Federation during the war . ORG considered that difference in treatment to be discriminatory and an obstacle to the return of displaced persons to their pre - war homes ( ORG pensions were normally lower than ORG pensions , and the cost of living was normally higher in ORG . Furthermore , it held that the situation complained of had racist connotations ( given the nature of the war , the population that had moved from what is DATE the GPE to what is DATE PERSON during the war had primarily been NORP , and those who had stayed were mostly Bosniacs and NORP ) . ORG ordered ORG ( a ) to take all necessary legislative and administrative actions by DATE to ensure that the applicants were no longer discriminated against , particularly in comparison to those pensioners who had remained in what is DATE the Federation during the war ; and ( b ) to compensate the applicants for the difference between their ORG pensions and the amount they would have received from ORG from DATE of their application to ORG until DATE the GPE ’s compliance with the order under ( a ) above .

Having assessed that her pension from ORG would have been lower than the nominal amount of her pension from ORG , on DATE the ORG informed PERSON that she would not be paid any compensation . ORG disregarded the fact that , at that time , pensioners in PERSON , as opposed to those in the Federation , did not receive the nominal amount of their pensions , but only a fraction thereof , owing to fiscal difficulties in that Entity .

Mr PERSON ’s case was still pending when ORG ceased to exist on DATE . ORG GPE ( “ the Constitutional Court ” ) took over his case and on DATE delivered a judgment similar to that in PERSON case .

On DATE ORG decided to pay Mr MONEY ( BAM ) by way of compensation for the difference between the sum which he had received from ORG DATE and DATE and the sum which he would have received from ORG in DATE . It also decided to continue paying any such difference in the future . In DATE , for example , the applicant received BAM CARDINAL from ORG and BAM CARDINAL from ORG .

After the ORG judgment , cited above , ORG revised its practice and agreed to compensate PERSON for the difference between the sum which she had actually received from ORG ( rather than the nominal amount of her ORG pension , see paragraph CARDINAL above ) and the sum which she would have received from ORG in DATE . In order to determine the amount due , on DATE and CARDINAL DATE ORG asked ORG to indicate the sums actually paid to PERSON . ORG failed to respond . On DATE and CARDINAL DATE ORG sent letters to PERSON ( one to an address in GPE and the other to an address in GPE ) , but they were returned as undeliverable ( addressee unknown ) . In DATE the applicant finally provided the necessary information and in DATE ORG paid PERSON CARDINAL,CARDINAL ( that is , BAM CARDINAL for DATE , BAM CARDINAL for DATE and BAM CARDINAL for DATE ) . Since DATE the applicant had apparently been receiving more from ORG than she would have received from ORG ( in DATE she thus received BAM CARDINAL from ORG whereas she would have received BAM CARDINAL from ORG ) .

On DATE ORG held that its decision in PERSON case of DATE had not been enforced , because he had not yet been granted an ORG pension ( see paragraph CARDINAL below ) .

According to official figures , the average pension has always been lower in LOC than in the Federation . That difference has , however , decreased : while in DATE the average pension was BAM CARDINAL in PERSON and BAM CARDINAL in the Federation , in DATE the figures were BAM CARDINAL in ORG and PERSON in ORG . Furthermore , pensioners in PERSON now receive , as do those in the Federation , the nominal amount of their pensions ( until recently , the former , as opposed to the latter , were only receiving a fraction of their nominal pensions owing to fiscal difficulties in that Entity ) .

The Pension Agreement between the local pension funds entered into force on DATE . Pursuant to LAW , persons who were receiving pensions from , for example , ORG on DATE will continue to receive their pensions from that ORG , even if they subsequently move to the GPE .

All pensioners living in CARDINAL Entity have equal access to health care , regardless of whether they receive their pensions from that Entity or from the other Entity ( LAW ) .

Pensions are not taxable in either of the ORG , regardless of whether they are received from the ORG concerned , from the other ORG or from abroad ( see LAW DATE and LAW ) .

The former ORG and ORG rendered CARDINAL decisions concerning CARDINAL pensioners ( including the present applicants ) who had been granted pensions in what is DATE the Federation before the war , who had then moved to what is DATE PERSON during the war , and who , for that reason only , had continued to receive ORG pensions despite their return to the Federation after the war . They held that this amounted to discrimination and ordered that some general measures be taken by ORG see paragraph CARDINAL above ) . ORG considered that the full enforcement of those decisions required that the applicants be granted ORG pensions and that the applicable legislation be amended so as to render all others in that situation eligible to apply for ORG pensions ( see decisions CH/CARDINAL/CARDINAL of CARDINAL DATE and GPE of CARDINAL DATE ) .

In contrast , as regards those who had been granted pensions in what is DATE the Federation before the war , who had moved to what is DATE PERSON during the war and who had not returned to ORG after the war , the same bodies held that the fact that they received ORG pensions ( instead of higher ORG pensions ) did not amount to discrimination ( ORG decision CH/CARDINAL/CARDINAL of CARDINAL DATE and ORG decision ORG of CARDINAL DATE ) .


CASE OF VLADIMIR POLISHCHUK AND SVETLANA POLISHCHUK v. UKRAINE

Violation of Art. 8;Violation of Art. 13+8;Remainder inadmissible

Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants are spouses . They were born in DATE and live in Tokmak .

According to the applicants , in the period DATE the first applicant lived and worked outside Tokmak .

On DATE an unknown person broke CARDINAL windows in a building near the applicants ' flat .

On DATE the ORG ( “ the Police Office ” ) instituted a criminal investigation into that event .

On DATE ORG , suspecting that the first applicant might have been involved in that event , ordered a search of his residence . The decision to carry out the search was based on the reason that evidence related to the event could be found in the first applicant 's home . On DATE the search order was approved by the local prosecutor .

On DATE , when the applicants ' son was celebrating his birthday with a number of his friends , the police officers entered the applicants ' flat to carry out the search . The second applicant , who was in the early stage of pregnancy , objected to the search , stating that the search order contained no reasonable explanation for her or her husband 's possible involvement in the crime or for the need to search the flat . In response , the police officers allegedly threatened her and began the search operation in the presence of the guests . The first applicant was absent .

In the course of the search nothing was identified or seized for the purpose of the investigation .

On unspecified date the applicants complained to ORG ( “ ORG Office ” ) alleging that the search had been unlawful .

On DATE ORG informed the applicants that following an inquiry it had been established that the search had been carried out without a valid reason , in breach of LAW .

On DATE ORG informed the applicants that the police officers who had carried out the search had been disciplined .

On DATE the applicants instituted proceedings in the ORG against ORG , ORG , and GPE , seeking to have the search operation declared groundless and unlawful . The second applicant additionally claimed compensation for non - pecuniary damage caused by the unlawful act . She relied on ORG CARDINAL - CARDINAL and CARDINAL of LAW and on LAW “ On the procedure for compensation for damage caused to citizens by unlawful acts of bodies of inquiry , pre - trial investigation authorities , prosecutor 's offices and courts ” ( “ LAW ” ) .

On DATE the ORG considered the applicants ' claims . As to the first applicant , the court found that the search had been carried out DATE after the crime and there had not been sufficient grounds to believe that evidence could be found in the applicants ' home . The court therefore allowed his claim and declared that the search had been groundless and unlawful . As to the second applicant , the court examined the invoked provisions of LAW and LAW and concluded that damage caused by the procedural acts of bodies of inquiry , investigative authorities , prosecutor 's offices and courts could be compensated only in cases provided for by LAW . It further stated that the search had been carried out in connection with the suspicion against the first applicant only ; the second applicant was not entitled to claim damages for procedural acts which had been carried out in respect of another person . For those reasons it rejected the second applicant 's claim .

On DATE the applicants appealed against the judgment of CARDINAL DATE , stating , inter alia , that the first applicant had not suffered any damage on account of the unlawful search , and that it had been the second applicant who had incurred damage , as she had been present in the flat at the time .

On DATE ORG endorsed the rejection of the claim of the second applicant , reconfirming that it was only LAW that had to be applied and that under that provision the second applicant could not claim any damages , since the search had been carried out only in connection with the first applicant , who had been a suspect in the criminal proceedings . The court further quashed the judgment of CARDINAL DATE as regards the claim of the first applicant and dismissed it , stating that such a claim had to be considered in the course of relevant criminal proceedings .

On DATE the applicants appealed in cassation against the decision of DATE , reiterating in particular that it had been the second applicant , but not the first , who had suffered damage on account of the unlawful acts . They asked ORG to adopt a new judgment satisfying the claim of the second applicant .

On DATE ORG rejected the applicants ' cassation appeal as unsubstantiated .

The relevant extracts of the LAW provide as follows :

“ Acts and decisions of a body of inquiry can be challenged before the prosecutor , while their decisions on termination of criminal proceedings can also be challenged before the courts ... ”

“ A search shall be carried out if there are sufficient grounds to believe that the means of committing an offence ... and other items and documents important for the case are kept on certain LOC . ... ”

“ Investigators ' acts can be challenged before a prosecutor ... ”

NORP In accordance with LAW , an application for review of the civil case may be submitted on the ground that an international judicial authority , whose jurisdiction was recognised by GPE , found that GPE violated its international obligations in the course of consideration of the civil case by the courts .

“ Non - pecuniary damage caused to a citizen or an organisation ... shall be compensated by the person who has caused that damage unless the latter proves not to have been guilty . ... ”

“ Damage caused to a citizen by unlawful conviction , unlawful bringing to criminal responsibility , unlawful pre - trial detention in the course of criminal proceedings , unlawful imposition of such administrative penalties as arrest or correctional labour shall be compensated for by the ORG in full regardless of the guilt of the officials of the bodies of inquiry , pre - trial investigation authorities , prosecutor 's offices and courts , in accordance with the procedure established by the law . ”

The relevant provisions of the LAW can be found in the judgment of PERSON v. GPE ( no . CARDINAL , § CARDINAL , DATE ) .

NORP In accordance with paragraph CARDINAL of this Resolution , moral ( nonpecuniary ) damage shall be compensated to the physical person or legal entity whose rights have been directly affected by the unlawful acts ( inactivity ) of the other persons .


Violation of Article 5 - Right to liberty and security

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in LOC .

On DATE the applicant was remanded in custody by ORG on suspicion of murder . The court held that there had been a risk that the applicant might obstruct the proceedings or abscond , given the severity of the penalty he faced .

Later , several other persons were detained and charged in connection with the same investigation conducted by ORG . The charges against the applicant were also extended .

The applicant ’s detention was subsequently prolonged on the following dates : DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE and DATE . The courts relied mainly on the reasonable suspicion that the applicant had committed the offences in question and on he might obstruct the proceedings . Regard was also had to the number of suspects and the need to obtain further evidence .

During the investigation and the trial the applicant filed several unsuccessful applications for release and appealed , likewise unsuccessfully , against the decisions prolonging his detention .

From DATE until DATE and from CARDINAL DATE until DATE the applicant served prison sentences imposed in other sets of criminal proceedings against him .

On DATE the ORG delivered a judgment in the case . The applicant appealed .

On DATE the ORG partly quashed the first - instance judgment in respect of the applicant , sentenced him to CARDINAL imprisonment in respect of some of the charges , and remitted the remainder of the case for retrial .

DATE the Gdańsk Regional Court held QUANTITY hearings in the case .

The applicant was released on CARDINAL DATE . The ORG found that the necessary pieces of evidence had been obtained and the case was at its final stage , so there was no need to prolong the applicant ’s detention .

The proceedings are pending .

The relevant domestic law and practice concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) are stated in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .


Violation of Art. 6-3-c;Non-pecuniary damage - financial award

Mr. PERSON , an NORP citizen born in DATE , is a shepherd . He resides at GPE ( Province of GPE ) .

On DATE , the applicant was tried , together with a certain Mr. PERSON , by ORG in connection with various offences . As regards some of the charges ( threatening use of arms , unauthorised possession and carrying of arms and ammunition ) , he was sentenced to CARDINAL months’ imprisonment ( reclusione ) and a serious - offence fine ( multa ) of CARDINAL GPE ; on the other charges ( unauthorised possession and carrying of military weapons , causing damage to property , causing a dangerous explosion in an inhabited area ) , he was acquitted for want of sufficient evidence .

The offenders , the public prosecutor ( procuratore della PERSON ) and the senior public prosecutor ( procuratore generale ) attached to ORG all appealed . Mr. PERSON ’s grounds of appeal were drafted by CARDINAL of the CARDINAL lawyers who had defended him at first instance , namely Mr. PERSON .

ORG set the hearing down for DATE , but Mr. PERSON did not appear , although he had been notified of the date . ORG assigned an officially - appointed lawyer , a Mr. PERSON , to act for the applicant and then adjourned the proceedings indefinitely for other procedural reasons . The President subsequently decided that the hearing should be held on DATE . On DATE , ORG once more ordered an adjournment , since Mr. PERSON had not been notified of the date . The record of the sitting discloses that Mr. PERSON appeared before the ORG assisted by a new lawyer of his own choosing , Mr. PERSON , but not whether the latter was the only lawyer representing the applicant at that time .

On DATE , the President of ORG set the adjourned hearing down for DATE . DATE , the GPE senior public prosecutor asked the GPE public prosecutor , in whose district the applicant was resident , to notify the latter accordingly and to make the necessary arrangements for transporting him to GPE should he be under arrest .

The bailiff was unable to serve the summons either on Mr. PERSON himself or on a person duly authorised by law to accept it and therefore lodged it at the town hall ; the bailiff informed the applicant both by notice left at his home and by registered letter with acknowledgment of receipt . The letter , which had been posted on DATE , was collected by the applicant in person on DATE .

On DATE , pursuant to a warrant issued by the ORG public prosecutor , Mr. PERSON was arrested and placed in custody in GPE in order to serve a sentence of CARDINAL months’ imprisonment imposed on him by ORG on DATE .

The hearing of DATE was held in the absence not only of the applicant and his lawyer but also of the party seeking damages , the co - accused and his lawyer , and the CARDINAL witnesses who had been summoned . ORG was , in fact , unaware of Mr. PERSON ’s recent arrest and declared him to be unlawfully absent ( contumace ) .

The latter asserts , without adducing any proof that he had told the authorities of the criminal proceedings pending against him and of the date of the hearing - which assertion the authorities deny - but that they made no arrangements to enable him to attend .

Mr. PERSON failed to appear , since he had not received the notification : it had been sent to Mr. PERSON and probably also to Mr. PERSON , the other lawyer who had defended the applicant at first instance . According to his own evidence , Mr. PERSON learnt of the hearing only on DATE , DATE after the event , when relatives of his client sought information from him as to the progress of the proceedings .

At the hearing on DATE , ORG assigned another lawyer , Mr. PERSON , to act for Mr. PERSON . The public prosecutor ’s office sought an adjournment so that the witnesses who should have been present on DATE ( see paragraph CARDINAL above ) could attend . After deliberating in private , ORG refused this request and resumed the proceedings .

As regards Mr. PERSON , the public prosecutor ’s office submitted that he should be convicted on the charges which ORG had dismissed for want of sufficient evidence and that the remainder of the first - instance judgment should be confirmed . Mr. PERSON did no more than refer back to the grounds of appeal , which had been drafted by Mr. PERSON .

The hearing was concluded on DATE . ORG accepted the senior public prosecutor ’s submissions and imposed on the applicant heavier sentences , namely CARDINAL years’ imprisonment and a serious - offence fine of CARDINAL GPE , together with CARDINAL months’ " detention " ( arresto ) and a minor - offence fine ( ammenda ) of QUANTITY .

The applicant appealed on points of law ; CARDINAL of his grounds of appeal related to his own and his lawyer ’s absence at the hearing on DATE .

ORG dismissed the appeal on DATE . It held that the notification sent to Mr. PERSON satisfied the requirements of LAW ( see paragraph CARDINAL below ) . As to the finding that Mr. PERSON had been unlawfully absent , ORG noted that the appeal court had been unaware of the impediment on which he relied .

Article CARDINAL of the Code of Criminal Procedure reads as follows :

" An accused who is under arrest shall attend the hearing free from physical restraint , unless precautions are necessary to obviate the risk of escape or violence .

If at any time the accused refuses to attend and none of the circumstances contemplated in LAW obtains , the court shall direct that the proceedings are to continue as though he were present ; in that event , he shall for all purposes be represented by the defence counsel .

Under LAW on the application of LAW , it is for the public prosecutor ’s office to request that an accused who is in custody be escorted to the hearing .

The accused may , by written declaration , decline to appear . If he does not decline , the rules concerning his participation and his assistance or representation by a defence counsel must always be complied with , failing which the proceedings will be null and void ( LAW ) . However , ORG has held that this ground of nullity does not apply if the court was unaware that the person concerned was in custody ( CARDINALnd Chamber , DATE , no . CARDINAL , DATE Reports , p. CARDINAL ) .

Under LAW , where an accused , even if he is in custody , can not attend the hearing on account of a legitimate impediment , the court has to adjourn the proceedings unless he agrees to their continuing without him . However , according to LAW , if the impediment is not a legitimate one and if the notifications have been duly effected , the court has to order that judgment shall be rendered in absentia .

The Code of Criminal Procedure lays down that both the accused and his defence counsel shall be informed on DATE of the hearing .

As regards notification to the lawyer , Article CARDINAL provides :

" In cases before a regional court , an assize court , a court of appeal or an appel court of assize , the registrar shall ensure that the date fixed for the oral proceedings is notified in writing to the defence counsel DATE in advance ... "

The summons to appear is null and void if this LAW has not been complied with ( LAW ) .

On the other hand , ORG , taking its decision in plenary session , held on DATE that where an accused is represented by several lawyers it suffices to address the notice to appear to CARDINAL of them only ( LOC and Others judgment ) .

LAW provides , inter alia , that the proceedings shall be null and void if the accused did not have the assistance of defence counsel ; there is an exception in the case of an offence punishable by a minor - offence fine not exceeding CARDINAL GPE or " detention " for not more than one month , even if these penalties are imposed together . During the trial , the accused can not have CARDINAL defence counsel .

Under LAW paragraph , of MONEY , if the accused has changed the defence counsel of his choice or simply withdrawn his instructions , the change or withdrawal is of no effect if the judge or the public prosecutor ’s office investigating the case is not informed thereof ; during the oral proceedings , such a change or withdrawal is effected by means of a declaration recorded in TIME .

If the accused has not appointed a defence counsel or if the appointed counsel fails to fulfil his obligations , a lawyer will be officially assigned by the court ( Article CARDINAL , first and last paragraphs , of LAW ) .

ORG , for its part , has held that a lawyer loses his status of defence counsel if he does not take part in the oral proceedings and does not arrange to be replaced ( CARDINALth ORG , CARDINAL DATE , GPE ) . ORG stated :

" In that event , the accused will be defended by a lawyer officially assigned to him , unless he renews his instructions to his previous counsel : failing such renewal , ( the latter ) can not lodge an appeal , this rights being reserved to the defence counsel who assisted or represented the accused during the proceedings . Accordingly , notice of a further hearing must be served on the officially - assigned defence counsel ... "


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

The applicant arrived in GPE in DATE . He was granted leave to enter for DATE . In DATE he applied for leave to remain as a working holidaymaker . He was granted leave to remain until DATE .

In DATE he began living with his partner , who is a NORP citizen . On DATE their daughter was born .

On DATE the applicant claimed asylum . The application was refused by the Secretary of ORG for ORG on DATE on the ground that there was no evidence to substantiate the claim . The applicant remained in GPE without leave .

On DATE he was sentenced to CARDINAL months’ imprisonment following his conviction of CARDINAL counts of burglary and a breach of a probation order . On DATE he was sentenced to CARDINAL ORG imprisonment for driving whilst disqualified and driving without insurance .

On DATE the applicant and his partner married . On DATE the applicant applied for leave to remain on the basis of his marriage to a NORP citizen . On DATE he was granted CARDINAL months’ leave to remain on the basis of the marriage .

On DATE his leave to remain expired and he made no application for an extension .

On DATE he was convicted by a ORG of CARDINAL counts of conspiracy to defraud and was sentenced to CARDINAL years’ imprisonment .

On DATE the applicant was served with notice of a decision to deport him .

On DATE his application for indefinite leave to remain as the spouse of a NORP citizen was refused and the Secretary of ORG for ORG made a deportation order against him .

On DATE the applicant was released from custody on licence . On DATE he was convicted by a ORG for possession of a false instrument . He was sentenced to a total of CARDINAL months’ imprisonment . He was released on DATE .

On DATE he was sentenced to CARDINAL years’ imprisonment for significant offences of dishonesty ( including possession and use of a false instrument and attempting to obtain a money transfer by deception ) . His sentence came to an end in DATE but he remained in immigration detention until DATE , when he was granted bail by ORG .

On DATE the applicant ’s appeal against the decision to deport him was dismissed by ORG , which found that in view of his criminal conduct and the separation that had already taken place between himself and his family due to his imprisonment , his deportation would not be a disproportionate interference with his right to respect for his family life . The ORG accepted , however , that the applicant ’s wife was a GPE citizen of NORP origin ; that she would not relocate to GPE with the applicant if he were deported ; that her mother was in poor health , requiring her to visit her CARDINAL times DATE ; that she was in part - time employment in GPE ; and finally , that she had not known that the applicant had no leave to remain when she married him .

On DATE the applicant made a fresh claim to remain in GPE on human rights grounds , namely LAW . This was refused by the Secretary of ORG by letter dated DATE . He appealed to an Adjudicator . The Adjudicator dismissed the appeal on DATE , finding that the interference with the applicant ’s family life was proportionate in view of his criminal conduct .

On DATE ORG allowed the applicant ’s appeal against the ORG ’s decision on the ground that the Adjudicator had misdirected himself on the appropriate standard of proof for a human rights claim and accordingly his determination was “ fatally flawed ” . The appeal was remitted to another Adjudicator to be considered afresh .

On DATE a second Adjudicator dismissed the applicant ’s appeal against the refusal of his human rights claim .

On DATE his application for reconsideration was refused by a ORG Judge on the ground that the Adjudicator ’s decision disclosed no error of law . On DATE ORG also refused the applicant ’s application for reconsideration of the decision .

In DATE the applicant ’s daughter issued an application for judicial review challenging the decision to deport him . The application was based on a breach of domestic policy rather than LAW Permission was refused on the papers on DATE . An application to renew the application was made outside DATE time - limit prescribed by the relevant rule of court . Permission was finally refused on DATE .

The applicant was deported to GPE on DATE .

Section CARDINAL(CARDINAL ) of the LAW DATE provides , insofar as material , as follows :

“ A person who is not a NORP citizen in liable to deportation from GPE if : -

the Secretary of ORG deems his deportation to be conducive to the public good ;

At the time of the applicant ’s deportation , paragraphs LAW of ORG CARDINAL ( as amended ) provided that after a minimum of DATE following his deportation , the applicant would be entitled to apply to have his deportation order revoked . Revocation of the deportation order did not entitle the applicant to re - enter GPE ; rather , it would entitle him to apply for admission under LAW .

Following the applicant ’s deportation , paragraphs CARDINAL of ORG CARDINAL ( as amended ) were amended . They now provide as follows :

“ CARDINAL . An application for revocation of a deportation order will be considered in the light of all the circumstances including the following :

( i ) the grounds on which the order was made ;

( ii ) any representations made in support of revocation ;

( iii ) the interests of the community , including the maintenance of an effective immigration control ;

( iv ) the interests of the applicant , including any compassionate circumstances .

In the case of an applicant who has been deported following conviction for a criminal offence continued exclusion

( i ) in the case of a conviction which is capable of being spent under LAW , unless the conviction is spent within the meaning of that LAW or , if the conviction is spent in DATE , DATE have elapsed since the making of the deportation order ; or

( ii ) in the case of a conviction not capable of being spent under that LAW , at any time , unless refusal to revoke the deportation order would be contrary to LAW or LAW .

will normally be the proper course . In other cases revocation of the order will not normally be authorised unless the situation has been materially altered , either by a change of circumstances since the order was made , or by fresh information coming to light which was not before , or the appellate authorities or the Secretary of ORG . The passage of time since the person was deported may also in itself amount to such a change of circumstances as to warrant revocation of the order .

Revocation of a deportation order does not entitle the person concerned to re - enter GPE ; it renders him eligible to apply for admission under LAW . Application for revocation of the order may be made to ORG or direct to ORG . ”


CASE OF ISTVAN AND ISTVANOVA v. SLOVAKIA

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Nona Tsotsoria

The applicants were born in DATE and DATE respectively . They were a married couple and lived in PERSON .

On DATE the applicants lodged an action with the ORG ( ORG súd ) against their daughter ’s husband seeking restitution of his share in the ownership of a flat , which the applicants had donated to the defendant and their daughter , his wife . They argued that the defendant had been severely abusing their daughter , both psychologically and physically , thus behaving wrongly towards her and , thereby , also themselves .

On DATE the applicants requested that a hearing be scheduled . ORG did so for DATE , CARDINAL DATE , CARDINAL DATE and DATE . It appears that the first of these hearings did not take place since it had proven impossible to have the summons served on the defendant . The later hearing was cancelled at the applicants’ request because there was an application pending before ORG for correction of the records concerning title to the property to be restored .

Meanwhile , the applicants had been ordered to submit evidence ( DATE ) , which they did ( CARDINAL May CARDINAL ) . They also submitted further evidence ( DATE and DATE ) .

On DATE a hearing was held , following which – on DATE ORG suspended the proceedings pending the outcome of criminal proceedings , which had been instituted against the defendant in the meantime .

On DATE ORG ( PERSON súd ) quashed the decision of DATE following an appeal by the applicants .

On DATE the applicants filed a complaint to the president of ORG submitting that since DATE ORG had been completely inactive which , in their view , constituted delays .

The president of ORG replied by a letter dated DATE referring to the ORG complaint as a “ repeated ” complaint and finding it justified . He acknowledged that since DATE the judge in charge of the case had not taken any step with a view to resolving it , and advised the applicants that the judge had been reminded in writing to proceed with the case without delay .

NORP The letter of the president of ORG of DATE was served on the ORG representative on DATE . On the latter date , the applicants challenged the length of the proceedings by way of a complaint under LAW no . CARDINAL/CARDINAL Coll . , as amended – PERSON ) to ORG ( Ústavný súd ) . The details are set out in paragraphs CARDINAL to CARDINAL below .

On DATE ORG held a hearing , following which the applicants were ordered to produce further evidence . They did so on DATE .

Further hearings were held on DATE and CARDINAL DATE and ORG allowed the action on DATE .

The defendant ’s appeal of CARDINAL DATE was dismissed by ORG on DATE , following a hearing held on DATE . It became final and binding on CARDINAL DATE .

NORP The applicants’ complaint to ORG ( see paragraph CARDINAL above ) was received by ORG on DATE .

In their complaint , the applicants submitted that not a single judgment had been given on their action despite its having been pending for DATE and DATE . They claimed a violation of their rights to a hearing without unjustified delay under LAW and LAW and the equivalent of MONEY ( ORG ) each in compensation for non - pecuniary damage .

On DATE ORG declared the complaint inadmissible on the ground that the applicants had failed to satisfy the requirement of exhaustion of remedies under section CARDINAL(CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended – PERSON o organizácii ORG súdu PERSON republiky , o konaní pred ním a o postavení jeho sudcov ) .

Referring to its decisions in cases nos . IV . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL , and II . ÚS DATE , ORG reiterated that a complaint under section CARDINAL(CARDINAL ) of LAW ( Law no . PERSON . , as amended PERSON o súdoch ) to the president of the court concerned was considered to be a remedy to be used prior to the lodging of a constitutional complaint about the length of the proceedings before that court .

The Constitutional Court further reiterated that the remedy in question could only be considered as having been duly used if the complainant had afforded the court in question adequate opportunity to take measures with a view to remedying and correcting the unlawful situation caused by its inaction or ineffective action .

Observing that the applicants’ constitutional complaint had been received by ORG on DATE , it found that their complaint to the president of ORG had only been a formal step without any effect that it otherwise could have had , had the president of ORG been allowed adequate opportunity to take measures against unjustified delays in the impugned proceedings .

The Constitutional Court ’s decision was served on the applicants’ lawyer on DATE .

The relevant part of LAW provides :

“ Everyone shall have the right to have his matter ... heard without undue delay ... ”

Article CARDINAL reads as follows :

“ CARDINAL . The Constitutional Court shall decide on complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”

The relevant part of section CARDINAL :

“ CARDINAL . A[n ] [ individual ] complaint is not admissible if the complainant has not exhausted legal remedies or other legal means , which a statute effectively provides to [ the complainant ] with a view to protecting [ the complainant ’s ] fundamental rights or freedoms , and which the complainant is entitled to use under special statute .

The Constitutional Court shall not declare ORG ] [ individual ] complaint inadmissible even if the condition under sub - section CARDINAL has not been fulfilled , if the complainant establishes that [ the complainant ] has not fulfilled this condition owing to reasons worthy of particular consideration . ”

The Act governs the system and powers of courts and courts’ administration . Its chapter ( PERSON ) CARDINAL in part ( Časť ) CARDINAL lays down the general rules on administration and management of courts . Its relevant part provides :

“ Section CARDINAL

NORP The administration and management of courts may not interfere with their decision making activities .

Section CARDINAL

NORP The administration and management of courts shall be carried out by bodies of administration and management to the extent and by means laid down by statute .

Bodies of administration and management of courts include the president and the vice - president of a court . ...

Section CARDINAL

The ministry [ of justice ] is in charge of the management of courts as the central body of ORG administration for the judiciary ”

LAW in Part CARDINAL deals with the powers of a president of a court . The relevant part of section DATE provides :

“ CARDINAL . The president of a court oversees the judges’ compliance with ethical standards and the principles that judicial proceedings should be smooth and dignified and , for that purpose

( f ) monitors the decision - making activities of judges from the point of view of the smooth conduct of judicial proceedings ,

( g ) examines complaints .

Should the president of a court establish a violation of the principle ... of the smooth conduct of judicial proceedings , the president is duty - bound to debate the shortcomings found with the judge concerned ... and , if necessary , to order measures ... to be taken with a view to eliminating the shortcomings found as well as their cause ...

Chapter CARDINAL in part CARDINAL deals with complaints about a court ’s conduct . Its relevant part provides as follows :

“ Section CARDINAL

A complaint may be brought by a participant or a party to proceedings . A complaint about a court ’s conduct may be brought following a breach of the right to a public hearing without unjustified delay or [ ... ]

Section CARDINAL – Examination of complaints

A complaint shall be dealt with by the president of the court concerned , unless [ LAW ] provides otherwise .

Complaints against the president of the court shall be dealt with by the president of a higher court .

Section CARDINAL

NORP The purpose of dealing with a complaint is to establish whether there has been a delay in proceedings ... and to rectify any shortcomings found .

NORP In order to establish the status of the matter , the body dealing with a complaint is duty - bound to examine all circumstances . Should the proper dealing with a complaint so require , the complainant shall be heard , as shall the persons against whom the complaint is directed and any other persons who may facilitate the examination of the complaint .

Should the body entrusted with dealing with the complaint establish that it is justified , [ it ] shall take and ensure the taking of measures with a view to rectifying shortcomings and , if necessary , call those responsible for the shortcomings to account .

Section CARDINAL

A complaint shall be dealt with within DATE of the date on which it is received by the body liable to deal with it .

Section CARDINAL

The complainant must be informed in writing of the way in which a complaint has been dealt with and of the measures taken with a view to rectifying the shortcomings established . [ ... ]

Section CARDINAL – Review of examination of complaints

Should the complainant be of the view that a complaint which he filed to the competent body of a court has not been dealt with properly , [ the complainant ] may , within DATE of the service [ on the complainant ] of the reply [ to the complaint ] , demand that :

( a ) the president of a ORG review the examination of the complaint by the president of ORG ,

( b ) the ministry [ of justice ] review the examination of the complaint by the president of ORG or ORG .

Section DATE Common provisions

A complaint submitted to a court under section DATE or [ ... ] , shall be considered on its merits . ”

The Act entered into force on DATE ( Article ORG ) . It replaced ( section CARDINAL ) , inter alia , ORG ( Law no . CARDINAL ORG . , as amended PERSON a obvodoch súdov PERSON republiky , štátnej správe súdov , vybavovaní sťažností a o voľbách prísediacich ( zákon o štátnej správe súdov ) ) , which had regulated the issue until then , according to a similar pattern ( see , for example , ORG v. GPE ( dec . ) , no . CARDINAL/CARDINAL , CARDINAL DATE ; PERSON GPE DATE . ) , no . CARDINAL , DATE ; ORG and GPE v. GPE ( dec . ) , no . CARDINAL , DATE ; and PERSON GPE , no . CARDINAL , § DATE , CARDINAL DATE ) .

LAW DATE ( PERSON o zodpovednosti za škodu spôsobenú pri výkone verejnej moci ) was enacted on DATE . It became operative on DATE and replaced , as from that date , LAW of DATE ( Law no . PERSON . PERSON o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom ) .

LAW DATE had no specific provisions for compensation for damage of a non - pecuniary nature ( see , mutatis mutandis , PERSON v. GPE , no . CARDINAL , § DATE , DATE with further references ) .

The explanatory report on LAW DATE provides that the purpose of the LAW is to render the mechanism of compensation for damage caused by public authorities more effective and thus to reduce the number of cases in which persons are obliged to seek redress before ORG .

Section CARDINAL provides :

“ CARDINAL . The ORG is liable for damage caused by wrongful official conduct . Wrongful official conduct includes a public authority ’s failure to take action or issue a decision within the statutory time - limit , general inactivity in the exercise of public authority , unjustified delays in proceedings or other unlawful interference with rights and legally recognised interests of individuals and legal entities .

NORP The right to compensation for damage caused by wrongful official conduct is vested in the person who sustained the damage . ”

Section CARDINAL defines the manner and extent of compensation for damage . Its relevant part provides :

“ CARDINAL . Damage and lost profit shall be compensated for , unless special legislation provides otherwise .

NORP In the event that the finding of a violation of a right alone is not adequate compensation in view of the loss caused by the unlawful official action or wrongful official conduct , monetary compensation shall also be awarded for non - pecuniary damage , if it is not possible to compensate for it otherwise . ”

Part CARDINAL of the Act contains common and transitional provisions . Section CARDINAL reads as follows :

“ CARDINAL . Liability under this Act applies to damage caused by decisions [ issued ] and wrongful official conduct [ taking place ] after DATE of its entry into force .

Liability for damage caused by decisions issued and wrongful official conduct [ having taken place ] before the entry into force of this Act shall be governed by the hitherto applicable statute . ”

In connection with the present application , as well as CARDINAL other individual applications under the Convention of a similar kind , ORG produced a report .

The report is dated DATE and concerns , specifically , the application of the rule of exhaustion of remedies under section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , with reference to a complaint under LAW , in the context of a complaint under LAW of the LAW about the length of proceedings .

The report can be summarised as follows .

In applying section CARDINAL(CARDINAL ) of LAW , the Constitutional Court relies on the principles of an “ available ” and “ effective ” remedy . By this is understood that the remedy is directly accessible to the complainant and that using it has direct procedural consequences capable of achieving redress in the form of restitution , compensation or at least prevention . As to a complaint under LAW in respect of the length of proceedings , its preventive ( accelerating ) effect for the future is central .

In the exercise of their duties , should the presidents of courts establish unjustified delays in proceedings , they are duty - bound to debate them with the judge concerned and , if necessary , to prescribe measures to be taken with a view to rectifying the shortcomings found , as well as their cause . Moreover , they have the power to impose disciplinary sanctions .

The effectiveness of a complaint under LAW and the requirement for it to be used are examined on the specific facts of every individual case , taking into account :

( i ) the outcome of the complaint ( in particular whether it was found justified or not and whether the complainant has been informed of any measures taken ) ;

( ii ) the conduct of the court subsequent to the introduction of the complaint ( whether the court has started examining the matter and begun taking specific procedural steps ) ;

( iii ) the overall length and the subject matter of the proceedings ( whether any accelerating effect of the complaint is of importance and relevance from the point of view of the object and purpose of the right to a hearing without unjustified delay , in view of the past length of the proceedings and their subject matter ) ; and

( vi ) the conduct of the complainants from the point of view of actively asserting their right to a hearing without unjustified delay .

Application of the general criteria mentioned in the preceding paragraph results in CARDINAL contrasting situations , depicted in the following CARDINAL paragraphs .

First , ORG has not required complainants to use the remedy in question in cases where the length of proceedings has been “ extreme ” or “ manifestly disproportionate ” , provided that , in the course of those proceedings , the complainants had been actively seeking their acceleration , even if not by way of a formal complaint under LAW .

Second , ORG has declared inadmissible complaints under LAW on account of the ORG failure to comply with the requirement under section CARDINAL ) of LAW to exhaust remedies – the complaint under LAW – if the complainants lodged their complaints under LAW only formally , that is to say :

( i ) after they had brought their complaints to ORG ,

( ii ) at the same time as they brought their complaints to ORG , or

( iii ) if they lodged their constitutional complaints so soon after their complaints under LAW that it was not objectively possible for the ordinary court to provide redress and for ORG to assess the effect of the complaint under LAW .

A review by the president of the higher court of the examination of a complaint under LAW by the president of a lower court has never been required by ORG for the purposes of the exhaustion rule under section CARDINAL(CARDINAL ) of LAW .

A complaint under LAW , combined with an action for damages under LAW , and a complaint under LAW constitute a set of remedies to be considered compatible with the standards set out in the ORG ’s judgment in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALXI ) , including those under LAW of the LAW .

NORP The report cites , inter alia , the following cases , which ORG declared inadmissible because a complaint under LAW ( or its equivalent under ORG ) :

( i ) had not been lodged ( case no . II . ÚS CARDINAL/CARDINAL , decision of DATE ; case no . III . ÚS CARDINAL/CARDINAL , decision of CARDINAL DATE ; and case no . III . ÚS CARDINAL/CARDINAL , decision of DATE ) ;

( ii ) had not been lodged in the appropriate ( written ) form and , in any event , the alleged telephone complaint had been made DATE before the introduction of the constitutional complaint ( case no . IV . ÚS CARDINAL/CARDINAL , decision of DATE ) ; and

( iii ) could not be considered as having been properly used , as it had been lodged DATE ( case no . IV . ÚS CARDINAL/CARDINAL , decision of CARDINAL DATE ) , DATE and DATE ( case no . III . ÚS CARDINAL , decision of DATE ) , and not DATE and DATE ( case no . III . ÚS CARDINAL/CARDINAL , decision of DATE ) before the introduction of the respective constitutional complaint .

As to ORG decisions , relied on by the applicants ( see paragraph CARDINAL below ) , without further elaboration , the report suggests that they were not comparable and thus relevant to the applicants’ case because :

- the proceedings had commenced on DATE , the complaint under LAW had been lodged on DATE , the president had replied on DATE and the constitutional complaint had not been lodged until DATE ( case no . IV . ÚS CARDINAL/CARDINAL ) ;

- a complaint under LAW could no longer have had any accelerating effect since , prior to it , the proceedings had been transferred to a different court for reasons of jurisdiction ( case no . III . ÚS CARDINAL/CARDINAL ) ;

- the proceedings had commenced in DATE , an application aimed at eliminating unjustified delays had been lodged on DATE and the constitutional complaint had been lodged on DATE ( case no . I. ÚS CARDINAL/CARDINAL ) ;

- although the president of the court concerned had accepted that there had been unjustified delays in the proceedings , these were due to “ objective grounds ” , the proceedings having been conducted in a continuous manner , and no corrective measures were envisaged ( case no . I. ÚS CARDINAL/CARDINAL ) ;

- the action had been lodged on DATE , a complaint under LAW had been lodged on DATE , the response of the president of the court concerned had been served on the complainant on DATE and the constitutional complaint had not been introduced until DATE ( on DATE ) ( case no . I ÚS CARDINAL/CARDINAL ) ;

- in the course of the proceedings the complainants had several times demanded that hearings be scheduled and that the proceedings be conducted in a continuous manner , the proceedings at the relevant time having lasted for DATE ( case no . I. ÚS CARDINAL/CARDINAL ) ; and

- although the complainant had not formally lodged a complaint under LAW , he had actively sought to have hearings scheduled and the proceedings conducted in a continuous fashion on numerous occasions ( case no . III . ÚS CARDINAL/CARDINAL ) .

The applicants argued that , in unrelated cases , which had however been represented by the same lawyer as in the present case , ORG had declared admissible the following constitutional complaints :

( i ) which had been lodged DATE and DATE ( case no . IV . ÚS CARDINAL/CARDINAL , decision of DATE ) , DATE ( case no . III . ÚS CARDINAL/CARDINAL , decision of DATE ) , DATE and DATE ( case no . I. ÚS CARDINAL/CARDINAL , decision of DATE ) , DATE and DATE ( case no . III . ÚS CARDINAL/CARDINAL , decision of DATE ) , DATE ( case ORG , decision of CARDINAL DATE ) , DATE ( case no . II . ÚS CARDINAL/CARDINAL , decision of CARDINAL DATE ) , DATE ( case no . I. ÚS CARDINAL/CARDINAL , decision of DATE ) , DATE ( case no . IV . ÚS CARDINAL/CARDINAL , decision of DATE ) , DATE and DATE ( case no . II . ÚS CARDINAL/CARDINAL , decision of DATE ) , and DATE ( case no . II . ORG , decision of DATE ) after the reply of the president of the court concerned who had accepted that there had been unjustified delays in the proceedings concerning actions of DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE and CARDINAL DATE respectively ; and

( ii ) without examining whether or not prior to the constitutional complaint the complainant had asserted his rights by way of a complaint under LAW in an action of DATE ( case no . I. ÚS CARDINAL/CARDINAL ( decision of DATE ) ) , in an action of DATE ( case no . I. ÚS CARDINAL/CARDINAL ( decision of DATE ) ) and in an action of DATE ( case no . II CARDINAL/CARDINAL ( decision of CARDINAL DATE ) ) .

In an unrelated case no . II . ÚS CARDINAL/CARDINAL , with reference to a complaint under ORG , which was in the relevant aspects comparable to a complaint under LAW ( see paragraph CARDINAL above ) , ORG held that the use of such a complaint was not required prior to a claim before ORG that the length of the judicial proceedings in question was excessive ( judgment ( nález ) of DATE ) .

In cases nos . III . ÚS CARDINAL/CARDINAL and ORG dealt with repeated complaints under LAW of continuing delays in judicial proceedings following and despite previous judgments of ORG finding a violation of the ORG right to a hearing within a reasonable time and ordering the courts in question to proceed with the respective cases without delay .

Case no . III . ÚS PERSON ( decision of CARDINAL DATE ) was declared admissible without a specific examination of whether a complaint had been lodged under LAW .

Case no . I. ÚS CARDINAL/CARDINAL ( decision of DATE ) was declared inadmissible on account of the complainant ’s failure duly to use that remedy , his previous requests for the proceedings to be accelerated not having been taken into account .

In cases nos . I. ÚS CARDINAL/CARDINAL and II . ÚS CARDINAL/CARDINAL ORG dealt with complaints by CARDINAL individuals about the length of the proceedings in their joint action for damages . The complainants were represented by the same lawyer and had both lodged complaints under LAW ( DATE and DATE respectively ) prior to introducing their constitutional complaints ( CARDINAL DATE and DATE respectively ) .

Case no . I. ÚS CARDINAL/CARDINAL ( decision of DATE ) was declared inadmissible because it had been lodged too soon after the reply of the president of the respective court ( DATE ) .

Case no . II . ÚS CARDINAL/CARDINAL ( decision of DATE ) was declared admissible .


André Potocki;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE , in the presence of others , the applicant shot PERSON who eventually died in a hospital .

On DATE the police started criminal investigations into the event .

On DATE the applicant was accused of inflicting bodily injuries ; on DATE he gave an undertaking not to abscond .

On DATE the police also instituted criminal proceedings against the applicant on suspicion of unlawful possession of arms .

On DATE the police changed the legal qualification of the applicant ’s actions and accused him of murder .

On DATE the police accused the applicant of murder and unlawful possession of arms .

On DATE the police submitted the criminal case to ORG for trial .

NORP On DATE the court convicted the applicant of premeditated murder committed in the state of extreme emotional disturbance and sentenced him to DATE and CARDINAL months’ imprisonment .

On DATE ORG upheld that judgment , which thus became final .

On DATE the prosecutor lodged a protest against the decisions in the case . On DATE the Presidium of ORG rejected the protest .

On DATE the Deputy Prosecutor General lodged a new protest .

On DATE ORG found that the lower court had not duly established the motive of the crime , quashed the decisions in the case and remitted it to the prosecutors for additional investigations .

On DATE the investigations were completed and on DATE the case was submitted to ORG for trial .

On DATE the court convicted the applicant of premeditated murder and sentenced him to CARDINAL years’ imprisonment .

On DATE ORG changed that judgment . On DATE ORG found that the court of appeal had not duly established the motive of the crime and remitted the case to that court for fresh consideration .

On DATE ORG , in the applicant ’s absence , upheld the judgment of DATE with some minor modifications .

On DATE ORG quashed the decision of DATE as it had been taken in the applicant ’s absence and remitted the case to ORG for fresh consideration .

On DATE ORG changed the judgment of DATE and sentenced the applicant to CARDINAL years’ imprisonment for murder committed in the state of extreme disturbance . By the same judgment the court amnestied the applicant .

On DATE ORG found that ORG had not duly established the motive of the crime , quashed this decision and remitted the case for fresh consideration on appeal .

On DATE ORG sentenced the applicant to CARDINAL years’ imprisonment and changed the judgment of DATE .

On DATE ORG found that the severity of the applicant ’s sentence did not correspond to the gravity of the crime , quashed the decision of DATE and remitted the case for fresh consideration to ORG .

On DATE ORG upheld the judgement of CARDINAL DATE with minor modifications .

On DATE ORG rejected the appeal in cassation lodged by the applicant ’s lawyer .

In the course of the proceedings CARDINAL forensic examinations were ordered . CARDINAL times the applicant was placed in detention after conviction . Subsequently , he was released twice following the annulment of the convictions and twice on specific conditions . There were CARDINAL witnesses and a number of experts heard by the courts . The applicant and his lawyer lodged CARDINAL procedural requests and CARDINAL appeals against the ORG judgments and decisions .


The applicant , a NORP national , was born in DATE . He is represented by Mr PERSON , a lawyer practising in GPE .

By letter of DATE , the applicant 's representative informed the ORG that the applicant had died on CARDINAL DATE and that his mother , the applicant 's sole heir , wished to pursue her son 's application .

On DATE , the applicant was arrested and detained on remand on suspicion of having committed robbery . By summons of DATE , the applicant was charged with various counts of robbery and extortion and ordered to appear on DATE before ORG ( Arrondissementsrechtbank ) of GPE .

In its judgment of DATE , following adversarial proceedings , ORG of GPE acquitted the applicant of the charges against him for lack of sufficient evidence and ordered his immediate release . The applicant was released on DATE . The public prosecutor filed an appeal with ORG ( Gerechtshof ) of GPE .

In its judgment of DATE , following proceedings in absentia as the applicant had failed to appear , ORG of GPE quashed the judgment of DATE , convicted the applicant of CARDINAL count of robbery and CARDINAL counts of extortion and sentenced him to DATE imprisonment with deduction of the time spent in pre - trial detention . The applicant filed an appeal in cassation with ORG ( PERSON Raad ) .

On DATE , ORG , holding that ORG had unjustly not allowed the applicant 's lawyer to conduct the applicant 's defence in the latter 's absence before ORG , quashed the judgment of DATE and referred the case back to ORG .

By judgment of DATE , following proceedings in absentia , ORG of The Hague acquitted the applicant for lack of sufficient evidence .

On DATE , the applicant filed a request with ORG , under LAW ) , for compensation in an amount of ORG . CARDINAL for the time he had spent in pre - trial detention as well as a request , under for Article CARDINALa of LAW , for reimbursement by the ORG of his legal costs in an amount of ORG . CARDINAL in connection with the proceedings on his request under LAW .

In its decision of CARDINAL DATE , ORG of The Hague rejected the applicant 's request for compensation for the time he had spent in pre - trial detention , holding :

< Translation >

“ LAW opens the possibility for compensation of damages suffered as a consequence of having been detained in pre - trial custody where a case ends without the imposition of a punishment ... Compensation shall be awarded if and to the extent the court , taking all circumstances into account , is of the opinion that there are reasons in equity to do so .

The court considers on this point that , in the applicant 's case , there were witnesses having made incriminating statements as to the applicant 's involvement in the punishable facts as charged , which fully justified the applicant 's detention during that phase < of the proceedings>.

Moreover , sufficient lawful evidence was available , yet doubts as regards the applicant 's role have led to the acquittal . It has therefore not been established that the applicant has not committed the fact , so that , all circumstances having been taken into account , there are no reasons in equity for any compensation . ”

On DATE , in a separate decision , ORG also rejected the applicant 's request under LAW CARDINALa of LAW . It held that , given its decision on the applicant 's request LAW , there were no reasons in equity for the costs claimed .

No appeal lies against the decisions of DATE .


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

The applicant was born in DATE and lives in GPE .

DATE , the applicant ran a company which operated CARDINAL chemist shops . Following financial problems , the company went into liquidation in DATE . On CARDINAL DATE , a bankruptcy petition was presented against the applicant and on DATE , a bankruptcy order was made .

On DATE , the applicant was publicly examined by the official receiver . Under section CARDINAL of LAW DATE , the applicant was obliged to answer the questions put to him by the official receiver and if he failed to comply without reasonable excuse , he would have been guilty of contempt of court and liable to punishment by a fine or imprisonment .

On DATE and DATE , a building society advanced MONEY ( GBP ) and GBP CARDINAL respectively to the applicant . On DATE , the applicant 's wife collected part of the advance , GBP CARDINAL , and took it to GPE in a bin liner .

The applicant was subsequently charged with CARDINAL offences of obtaining property by deception contrary to section CARDINAL ) of the Theft Act DATE on the grounds that he had misled the building society into advancing money by false representations regarding his income , his debts and the bankruptcy proceedings against him . He was also charged with CARDINAL offences of removing property required to be delivered to the official receiver and failing to account for the loss of property while bankrupt contrary to section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW DATE .

At the applicant 's trial in DATE , the prosecution introduced as evidence the transcript of the examination of the applicant by the official receiver in the bankruptcy proceedings . The applicant submitted that the transcript was inadmissible under LAW of LAW DATE which provides that a statement or admission made by a person answering questions in proceedings for the administration of any property or for an account of any property or dealings with property is not admissible in evidence against that person . However , the trial judge ruled the evidence admissible under section CARDINAL of LAW DATE which provided that statements made in pursuance of a requirement imposed by the Act could be used in evidence against the maker of the statement . The full transcript was placed before the jury and in his summing up , the judge stated that the transcript “ could be very important ” .

On DATE , the applicant was convicted of the CARDINAL offences charged and was sentenced to DATE imprisonment . The applicant appealed against conviction and on CARDINAL DATE , ORG dismissed his appeal deciding , inter alia , that the transcript of the bankruptcy examination was admissible under section CARDINAL of LAW DATE which abrogated the privilege against self - incrimination . Leave to appeal was refused by ORG and by ORG .

On DATE , ORG decided to remove the applicant 's licence to practise as a pharmacist on the grounds of unfitness due to his involvement in the deception connected with his bankruptcy proceedings and a previous reprimand relating to the cleanliness of his LOC .

On DATE , ORG ( “ CCRC ” ) referred the applicant 's case back to ORG due to changes in the domestic law on obtaining mortgage advances by false statements . On DATE , the ORG added the ground that , following the decision of ORG in PERSON v. the GPE ( judgment of DATE , Reports of Judgments and Decisions CARDINAL-VI ) and the introduction of LAW DATE , the admission of answers given under compulsion during the bankruptcy examination may have been in breach of LAW and rendered the applicant 's conviction unsafe .

On DATE , ORG overturned the applicant 's conviction on the grounds that the answers given by the applicant in his examination by the official receiver had been wrongly admitted at trial and in breach of LAW . The court found that LAW DATE could apply retrospectively . It certified a point of law to ORG as to whether LAW DATE could apply retrospectively in appeals arising from a reference by the ORG .

The ORG appealed to ORG against the decision of ORG . On DATE , ORG allowed the appeal , holding that they were bound to follow the earlier decision of the ORG in R v. PERSON [ DATE ] CARDINAL WLR CARDINAL , which had decided that LAW DATE could not apply retrospectively to allow a defendant whose trial took place before the LAW came into force to rely on a breach of the LAW in a later appeal .

Section CARDINAL(CARDINAL ) of LAW DATE ( “ the CARDINAL Act ” ) provided as follows :

“ The bankrupt shall give the official receiver such inventory of his estate and such other information , and shall attend on the official receiver at such times , as the official receiver may for any of the purposes of this LAW require ; ... ”

Section CARDINAL(CARDINAL ) went on to stipulate that :

“ If a bankrupt without reasonable excuse fails to comply with any obligation imposed by this section , he is guilty of a contempt of court and liable to be punished accordingly ( in addition to any other punishment to which he may be subject ) . ”

The ORG would deal with such a contempt of court and the sentence could be a fine or imprisonment for a maximum of DATE ( section CARDINAL of LAW DATE ) .

Section CARDINAL(CARDINAL ) of the DATE Act provided that the official receiver could apply to the court for the public examination of the bankrupt . Cases such as ORG ( DATE ) CARDINAL Ch . CARDINAL and NORP v. PERSON ( DATE ) CARDINAL WLRCARDINAL established that the bankrupt was not entitled to refuse to answer questions during the public examination on the grounds of self - incrimination .

At the relevant time , section CARDINAL of the DATE Act provided that :

“ In any proceedings ( whether or not under LAW ) –

( a ) a statement of affairs prepared for the purposes of any provision of this LAW which is derived from LAW DATE and

( b ) any other statement made in pursuance of a requirement imposed by or under any such provision or by or under rules made under LAW ,

may be used in evidence against any person making or concurring in making the statement . ”

In contrast , section CARDINAL(CARDINAL ) of the Theft Act DATE stipulated that a statement or admission made by a person answering questions in proceedings for the administration of any property was not admissible in evidence in criminal proceedings relating to an offence under LAW .

NORP In NORP v. PERSON ( DATE ) CARDINAL Cr . App . PERSON ( the decision on the first appeal of this applicant ) , ORG held that the Insolvency Rules DATE ( S.I. DATE No . DATE ) made it clear that the privilege against self - incrimination was abrogated in any public examination of the bankrupt and that , thereafter , section CARDINAL of the CARDINAL Act rendered the evidence admissible in a criminal trial notwithstanding CARDINAL of LAW .

Following the decision of this ORG in ORG v. GPE ( cited above ) and the planned introduction of LAW DATE , section CARDINAL and Schedule CARDINAL of ORG and LAW DATE amended section CARDINAL of LAW , inserting section CARDINAL(CARDINAL ) ) :

“ ( CARDINAL ) NORP However , in criminal proceedings in which any such person is charged with an offence to which this subsection applies–

( a ) no evidence relating to the statement may be adduced , and

( b ) no question relating to it may be asked ,

by or on behalf of the prosecution , unless evidence relating to it is adduced , or a question relating to it is asked , in the proceedings by or on behalf of that person . ”

This provision was not in force at the time of the applicant 's trial .


Remainder inadmissible;Violation of Art. 5-3;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested by ORG ( Centralne Biuro Śledcze ) on suspicion of having committed fraud .

On CARDINAL DATE ORG ( Sąd Rejonowy ) remanded the applicant in custody in view of the reasonable suspicion that he had committed the offences in question . It further considered that there was a risk that he would induce the co - accused to give false testimony or obstruct the proper conduct of the proceedings by destroying the documentary evidence relevant to the investigation ; at the time of his arrest the applicant was found to be destroying documents which might be important for the further conduct of the proceedings . The court also stressed the likelihood that a heavy penalty would be imposed on him .

On DATE the applicant appealed unsuccessfully against the detention order . In his further applications for release and appeals he maintained that , given his poor health , detention was putting a severe strain on him .

On DATE the applicant lodged a motion with ORG ( Prokurator PERSON ) for the case to be referred to another prosecutor because the prosecutor dealing with his case was not in his view impartial . In his motion the applicant alleged that he had been denied access to his lawyer in breach of his right to defence . On DATE the motion was dismissed by ORG .

On DATE the applicant lodged an application with ORG ( Prokurator Apelacyjny ) for the detention to be either lifted or replaced by another preventive measure . On DATE the application was dismissed .

On DATE ORG extended the applicant ’s detention until DATE . It repeated the grounds originally given for his detention .

On DATE ORG ( PERSON ) , on appeal by the applicant , upheld the decision of DATE . It repeated the grounds previously given for the applicant ’s detention and referred to the likelihood of a severe sentence of imprisonment being imposed on him .

Subsequently , further decisions extending the applicant ’s detention were taken by ORG . The relevant decisions were taken on the following dates : DATE ( extending his detention until DATE ) , DATE ( extending his detention until DATE ) , DATE ( extending his detention until DATE ) and DATE ( extending his detention until CARDINAL DATE ) .

On DATE ORG extended the applicant ’s detention until DATE . The court again relied on the reasonable suspicion that the applicant had committed the offence in question and on the severity of the expected penalty . It also mentioned that the continued detention was justified by reasons referred to in LAW , without however specifying them .

NORP ORG further extended the applicant ’s detention on the following dates : DATE ( extending his detention until DATE ) , DATE ( extending his detention until DATE ) and DATE ( extending his detention until CARDINAL DATE ) .

In the meantime , on DATE , the applicant had appealed against the decision of CARDINAL DATE extending his pre - trial detention . No ruling was given on the appeal . On DATE ORG gave a decision stating that a ruling on that appeal would be purposeless , as the impugned decision had expired on DATE .

On DATE the applicant lodged an application with ORG for his detention to be lifted and replaced by bail . The applicant referred to his health problems . On DATE , ORG dismissed the application , emphasising that the documents submitted in support of the applicant ’s request did not constitute sufficient evidence of the alleged negative effect of detention on his health . On DATE ORG dismissed an appeal by the applicant against the decision of DATE . On DATE the applicant was subjected to a medical examination at his own request . The results of the medical examination did not reveal grounds for release .

On DATE the applicant was served with a bill of indictment .

On DATE the GPE ORG lifted the applicant ’s detention and released him on bail . The court prohibited the applicant from leaving the country and confiscated his passport .

On DATE the applicant asked for the prohibition on leaving the country to be lifted . On DATE ORG dismissed his application .

NORP The applicant appealed . On DATE ORG dismissed the appeal .

The applicant ’s further numerous requests for the prohibition on leaving the country to be lifted were unsuccessful . On DATE ORG again refused the applicant ’s request . The applicant ’s lawyer appealed .

On DATE ORG granted the appeal and lifted the preventive measure in question . The court found that the applicant had not obstructed the proceedings , had not tried to escape and had been always at the disposal of the domestic authorities .

The case is pending before the first - instance court .

On DATE the applicant lodged , under the Law of DATE ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) , a complaint concerning the length of the examination of his appeal against the decision of DATE prolonging his pre - trial detention . He stressed that he had appealed on DATE . He claimed compensation in the amount of MONEY ( ORG ) ( approx . LAW ) . ORG refused to entertain the appeal on DATE .

On DATE ORG declined to consider the complaint . It referred to the fact that the complaint concerned proceedings prior to the entry into force of the CARDINAL Act and that LAW produced legal effects as from the date of its entry into force .

The relevant domestic law and practice concerning the imposition of pre - trial detention ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other , so - called “ preventive measures ” ( środki zapobiegawcze ) is set out in the ORG ’s judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The relevant statistical data , recent amendments to LAW designed to streamline criminal proceedings and references to relevant ORG materials including the DATE ORG can be found in the ORG ’s judgment in the case of ORG ( see ORG v. GPE , no . CARDINAL , § § CARDINAL and CARDINAL , DATE ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Anatoly Kovler;Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE criminal proceedings were initiated against the applicant , a traffic police officer at the time , and his partner on suspicion of theft and abuse of office . In DATE the applicant was served with the bill of indictment . An undertaking not to leave his place of residence was imposed on him .

On DATE the applicant was arrested and placed in detention facility no . CARDINAL in GPE .

DATE ORG of Perm found the applicant guilty as charged and sentenced him to CARDINAL years’ imprisonment . The court relied on numerous witness testimonies and forensic evidence . The applicant appealed . In his grounds of appeal he complained that the trial court had incorrectly assessed the facts and applied the law , and that it had not thoroughly examined the evidence , thus failing to take into account certain important issues . The judgment became final on DATE when ORG upheld it on appeal .

From DATE to CARDINAL DATE the applicant was held in facility no . CARDINAL in GPE . In particular , from DATE to CARDINAL DATE he was kept in cell no . CARDINAL and from DATE he stayed in cell no . CARDINAL . On DATE he was transferred to cell no . CARDINAL from which , on DATE , he was taken to cell no . CARDINAL , having remained there until DATE .

Relying on a certificate prepared by the director of the detention facility on DATE , the Government submitted that cell no . CARDINAL measured QUANTITY and accommodated , in general , CARDINAL inmates . Cell no . CARDINAL measured QUANTITY and on average housed CARDINAL inmates . The average number of detainees staying in cell no . CARDINAL of QUANTITY was CARDINAL , and CARDINAL inmates were usually kept in cell no . CARDINAL which measured QUANTITY . The Government stressed that at all times the applicant had an individual sleeping place and bedding .

Citing the information provided by the director of the facility , the ORG further argued that the sanitary conditions in the cells were satisfactory . In particular , the ORG submitted that the cells received natural light and ventilation through a window measuring QUANTITY . The cells also had artificial ventilation . Each cell was equipped with a lavatory pan , a sink and a tap with running water . The lavatory pan was separated from the living area of the cell by a partition measuring QUANTITY in height . Inmates were allowed to take a shower once DATE for TIME . The cells were regularly disinfected . The cells were equipped with lamps which functioned DATE and TIME . The Government , relying on the information provided by the director of the facility , further stated that the applicant was given food “ in accordance with the established norms ” .

NORP The applicant disputed the ORG ’s submission , arguing that the CARDINAL cells had been smaller and had accommodated a far greater number of inmates than the Government had described . Relying on written statements by PERSON who had also been detained in cell no . CARDINAL in DATE , the applicant submitted that that cell had measured QUANTITY , had CARDINAL sleeping places and housed CARDINAL inmates . Given the lack of beds , inmates had slept in shifts . They were not provided with bedding . He had had to stay in overcrowded conditions for DATE , save for an TIME - long outdoor walk in the recreation yard .

The applicant further submitted that the sanitary conditions had been appalling . The cells were infested with insects but the management had not provided any insecticide . The walls in the cells were covered with fresh paint . Given the absence of natural or artificial ventilation , the strong smell of paint lingered in the cells . The applicant stressed that the windows were covered with metal blinds blocking access to natural light and air . It was extremely hot during DATE with the metal blinds turning into heated “ radiators ” under the direct sunlight . Inmates were allowed to smoke in the cells , which was an additional aggravated circumstance for the applicant , a non - smoker . The lavatory pan was placed on a concrete block elevated QUANTITY above the floor and situated QUANTITY from the dining area . The toilet was not separated from the living area and emitted an unpleasant odour in the cell . At no time did inmates have complete privacy . Anything they happened to be doing – using the toilet , sleeping – was in view of the guard or fellow inmates . No toiletries were provided . The food was of very poor quality and in scarce supply .

Relying on inmate PERSON ’s written statement , the applicant concluded by noting that complaints to the administration of the detention facility had been to no avail .

The relevant provisions of domestic and international law on conditions of detention are set out , for instance , in the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , CARDINAL and DATE , DATE ) .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

On an unspecified date in DATE the applicant made an agreement for sale with the company C. The applicant , who had already paid to C , afterwards withdrew from the agreement since he had not received the agreed goods .

On DATE the applicant instituted civil proceedings against C in the ORG ( ORG sodišče v Ormožu ) seeking reimbursement of the payment .

On DATE the applicant made a request that a date be set for a hearing . On DATE the only judge working at the court at that time informed the applicant that the court lacked capacities and that the applicant ’s case had not yet been allocated to any judge . The applicant made further CARDINAL requests for a hearing on DATE , CARDINAL DATE and CARDINAL DATE .

On DATE and CARDINAL DATE the court held hearings and on DATE issued a decision declaring lack of jurisdiction and transferred the case to ORG ( Okrožno sodišče na Ptuju ) .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and/or adduced evidence .

On DATE , he made a request that a hearing of a witness living in GPE and himself be carried out by an NORP court DATE ORG ( PERSON ) . On DATE and DATE he urged ORG to send a request to the NORP court .

On DATE the applicant filed a request for supervision with the president of ORG because of the delays in the proceedings .

On DATE the request was forwarded to the NORP authorities by ORG ( Ministrstvo za pravosodje ) . On DATE the Ministry forwarded the minutes of the hearing it had received from GPE to ORG and on DATE the applicant was requested to provide a translation of TIME DATE . On DATE the applicant submitted the translation , stating that he had received it from the court ’s translator only on CARDINAL DATE .

Of the CARDINAL hearings held before FAC DATE and DATE , none was adjourned at the request of the applicant .

At the last hearing the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim , was served on the applicant on DATE .

On DATE the judgment became final .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE ( GPE ) . He is represented before the ORG by Mrs M.A. Farrugia and PERSON , CARDINAL lawyers practising respectively in GPE and in GPE ( GPE ) . The respondent Government were represented by their Agent , Mr PERSON , Attorney General .

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

The applicant owned a farm and an adjacent portion of land in GPE , close to a road called FAC . According to the original Government development schemes , a small part of this land should have been expropriated in order to widen the road with QUANTITY .

In DATE the NORP authorities entered into the property of the applicant , demolished parts of it and took QUANTITY of it .

By LAW of DATE ( no . CARDINAL ) , issued in terms of ORG LAW of LAW ) , it was declared that the property taken from the applicant was required for a public purpose .

LAW was published in ORG of CARDINAL DATE , as required by LAW . At the relevant time , this publication did not transfer the ownership of the land to the Government . In particular , it was provided that the Commissioner of Lands should serve a copy of LAW on the owner of the land , together with a “ notice to treat ” informing him or her about the amount that the Commissioner was willing to pay . The owner subsequently had DATE to state the amount which he claimed as compensation .

If the owner and the Commissioner agreed on the amount of the compensation due , either party could request ORG to make an order carrying the agreement into effect . In case of disagreement between the owner and the Commissioner , the latter should file an application with ORG requesting it to determine the amount of compensation due . In either case , a public deed of transfer had to be signed by the ORG and the owner .

In the present case , until DATE the Commissioner of Lands did not serve on the applicant LAW and the notice to treat . Therefore , the procedure to compensate the applicant and to transfer the legal ownership of the land was not initiated .

In DATE LAW of the Laws of GPE was amended . Under the new LAW , ownership of the property is transferred upon publication of LAW in the Government Gazette . According to the new rules , LAW should state the amount that the Government will pay as compensation , to be deposited in an interest - bearing bank account . If the owner of the land does not consider this amount adequate , he may institute proceedings before ORG .

According to a transitory provision of law , when , as in the applicant ’s case , LAW had been issued before the entry into force of the DATE amendments , the President should issue a fresh declaration wherein he shall state the amount of compensation which the Commissioner of Lands is willing to pay . According to the information provided for by the applicant on DATE , on that date no such fresh Presidential Declaration had been served on him . As a consequence , the applicant is still the legal owner of the land .

The applicant alleged that in the meantime one of his neighbours , Mr PERSON , had been planning to develop his property into a petrol station and had been preparing the necessary infrastructures to do so . According to the applicant , PERSON was known as being very well connected with the then current administration . The applicant ’s allegations were disputed by the Government on the ground that they were unsubstantiated .

The original Government development schemes were not followed , and FAC , PERSON was widened and re - aligned differently . According to the applicant , the result of these changes was that motor vehicles were driven into the planned petrol station and evasive action should be taken if a vehicle did not want to enter into it . If a vehicle had continued straight , it would have collided into the wall of PERSON property . Since DATE ORG had requested the road department to re - locate the wall in issue , which was eventually demolished and moved backward .

The applicant produced a plan which was annexed to LAW . According to the applicant , this document showed that the land was expropriated in such a way to make the main road lead directly into the property of PERSON , thus creating an unnatural series of S bends . The re - alignment and widening of the road directed the traffic into CARDINAL deviations , one to the left into the applicant ’s property , then to the right to meet the roundabout alignment and finally to the left again to continue on the main road .

The Government disputed these allegations . They argued that the description given by the applicant was “ charged with poetic licence and substantially misleading ” . Relying on CARDINAL photographs and on an aerial view of the area in question , they challenged the view that the taking of part of the applicant ’s land was done also in order to facilitate access to the petrol station .

The allegedly planned petrol station was never opened .

On DATE the applicant instituted proceedings before ORG ( FAC ) in its constitutional jurisdiction against the NORP Secretary for ORG and against the Commissioner of Lands . He claimed that he had been deprived of his property illegally and without compensation and alleged a violation of ORG CARDINAL and CARDINAL of the LAW of GPE as well as of LAW No . CARDINAL . The applicant submitted that LAW of DATE was null and void and requested to be reinstated in his possession and to be granted a financial compensation for the loss suffered .

In a judgment of CARDINAL DATE ORG dismissed the applicant ’s claims . It held that as the acts complained of took place before DATE ( date of the incorporation of the Convention into the NORP legal system ) , it had no power to decide on the alleged breach of the applicant ’s rights under LAW No . CARDINAL . As far as the LAW of GPE was concerned , there was no doubt that the applicant could have invoked the alleged breach of LAW ( right to the protection of home ) in front of the ordinary courts , asking them to impede the authorities from demolishing his farm .

The same could not be said with regard to LAW ( protection of property ) ; however , it was apparent that the expropriation was done for a “ public purpose ” . This did not exclude the possibility that the expropriation might have involved the interest of third parties , provided that the use made by the said parties was connected with or ancillary to the public interest or utility . In the present case , in DATE the architect of ORG had expressed the view that the realignment of the road was inevitable and in DATE ORG had written to ORG to confirm that the expropriation had to be done . The latter was part of a project involving the entire road linking ORG and the town of GPE .

It was true that according to the original plan , the applicant ’s property was going to be only slightly affected . However , the project was changed and the road went much deeper into the applicant ’s land , leading to a petrol station , owned by PERSON ORG could accept that the expropriation was done also in the interests of third parties , but this did not exclude the existence of a public purpose , as there was no doubt that a petrol station was of utility to the public .

The applicant appealed to ORG .

In a judgment of CARDINAL DATE , ORG declared that the taking of the applicant ’s property before the issuing of LAW of DATE constituted a violation of the plaintiff ’s right of property ( guaranteed by LAW ) and granted him a compensation amounting to CARDINAL NORP Liras ( Lm – approximately QUANTITY ( EUR ) ) . ORG confirmed the judgment of ORG as to the remainder and decided that the legal expenses should be borne CARDINAL by the applicant and CARDINAL by the respondents .

ORG first observed that LAW was only the commencement of the expropriation procedure , which entailed an interference with the right guaranteed by LAW No . CARDINAL lasting until the individual was unable to enjoy his possessions or until there was effective transfer of property . Thus , notwithstanding the fact that LAW was issued before DATE , the matter felt within the competence ratione temporis of ORG .

As to the lawfulness of the expropriation , it was to be noted that the authorities had entered the applicant ’s property and demolished his farm already in DATE . This action was illegal as it was taken prior to the issuing of LAW and without prior notification . Moreover , the applicant did not have at his disposal any adequate means of redress , as any judicial action he might have commenced would have been nullified by the issuing of LAW .

As far as the applicant was complaining that the expropriation was not done for a public purpose , but to serve the interests of PERSON , the Constitutional Court observed that only a deprivation of property effected for no reason other than to confer a private benefit on a private party could not be “ in the public interest ” . As ORG had pointed out in the case of PERSON and Others v. GPE ( judgment of DATE , Series A no . CARDINAL ) , the compulsory transfer of property from CARDINAL individual to another might , depending upon the circumstances , constitute a legitimate aim for promoting public interest . ORG therefore did not see any reason to depart from ORG finding that , after the issuing of LAW , the expropriation pursued a legitimate aim .

The acquisition of land for public purposes is regulated by LAW of LAW . As amended in DATE , the relevant provisions of this LAW read as follows .

Article CARDINAL § CARDINAL

" ( a ) With respect to land subject to a declaration by the President before the coming into force of this article ... article CARDINAL(CARDINAL ) of the Ordinance as amended by this article shall apply ... Provided that the interests as aforesaid shall be calculated on the value of the land on the date of the President ’s Declaration or where no such Declaration was issued prior to the coming into force of this article on the date of taking over by Government of the land in question .

( b ) ( i ) The President may in relation to any land subject of a LAW issued before the coming into force of this article issue a fresh Declaration wherein shall be stated the amount of compensation which the competent authority is willing to pay for the land to which the LAW refers . ... Provided that when such fresh LAW is issued the compensation shall be determined on the basis of the value of such land on the date of the service of any notice to treat in respect of such land , and where no such notice to treat has been so served , on the date of the issue of the fresh LAW by the President . ... ”

LAW

“ ( CARDINAL ) Simple interest at the rate of CARDINAL per centum per annum shall accrue on a DATE basis in favour of any person having a right to compensation in respect of any land acquired by the absolute purchase thereof under this Ordinance , from DATE up to the date when the compensation is paid or deposited in accordance with article CARDINAL . The interest due shall accrue on the amount of compensation as established in accordance with this GPE . ”

LAW , CARDINAL , DATE , DATE , DATE and CARDINAL

“ ( CARDINAL ) If the competent authority and the owner agree as to the amount of compensation for any land , ORG , on the application of any one of the parties , shall make an order carrying the agreement into effect ...

( CARDINAL ) Where the land is to be acquired by the absolute purchase thereof ... , the President ’s Declaration ... , shall state the amount of compensation which the competent authority is willing to pay for the land to which the declaration refers . ...

( CARDINAL ) Within DATE from the publication of LAW as is referred to in subarticle ( CARDINAL ) in the ORG the Government shall deposit in an interest bearing bank account ( which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this subarticle prescribe ) a sum equal to the amount of compensation offered in LOC . Such sum shall be freely withdrawn together with any interests accrued thereon by the person or persons entitled to such compensation upon evidence to the entitlement thereto , in a manner satisfactory to the competent authority .

( CARDINAL ) Where the person entitled to compensation does not accept that the amount deposited is adequate , such person may apply to ORG for the determination of the compensation in accordance with the provisions of this Ordinance . Such application shall , on pain of nullity , state the compensation that in the opinion of the applicant is due .

( CARDINAL ) Such application shall be filed in ORG The Board shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance .

( CARDINAL ) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined , whether by agreement or by decision of ORG , any sum due as compensation over and above any sum deposited in accordance with this article together with interests thereon in accordance with article CARDINAL(CARDINAL ) , shall be paid to the person entitled thereto by the competent authority not DATE from the date on which such compensation was determined as aforesaid . ”

Article CARDINAL § CARDINAL

“ ( CARDINAL ) Without prejudice to any special provision contained in this LAW , in assessing compensation the ORG shall act in accordance with the following rules :

( a ) no allowance shall be made on account of the acquisition being compulsory ;

( b ) the value of the land shall , subject as hereinafter provided , be taken to be the amount which the land if sold in the open market by a willing seller might be expected to realize ... ”