Remainder inadmissible;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant lives in LOC .

He is a serviceman employed by ORG ( ORG obrane PERSON ) . In DATE , as a member of the CARDINALth ORG of ORG , the applicant occasionally participated in demining operations in the newly liberated territories in GPE .

On the basis of the Decision of the Minister of Defence of DATE ( see paragraph CARDINAL below ) , he was entitled to a special DATE allowance for such work .

NORP Since the allowances had not been paid to him , on CARDINAL DATE the applicant brought a civil action against the ORG in ORG ( PERSON ) , seeking payment of the unpaid allowances . He sought in total the sum of CARDINAL NORP kunas ( HRK ) together with accrued statutory default interest .

The ORG responded that his action was time - barred because the DATE limitation period for employment - related claims had expired .

NORP In reply , the applicant argued that on several occasions he had asked his commanding officer why the allowances had not been paid . His commanding officer had made enquiries of his superior , who had then contacted ORG PERSON stožer ORG snaga PERSON ) . Eventually , the applicant had been informed through his commanding officer that his claims were not being disputed and that they would be paid once the funds for that purpose had been allocated in the ORG budget . Relying on that information , the applicant argued that the ORG had acknowledged the debt within the meaning of section CARDINAL of LAW and that the running of the statutory limitation period had thus been interrupted .

The court heard the applicant 's commanding officer PERSON and the head of ORG of ORG , Brigadier I.P.

B.B. , who had been the commander of the CARDINALth ORG DATE and DATE , testified that lists of servicemen who carried out demining work , together with DATE worked and the corresponding amount of allowances , had been submitted to him by platoon commanders within the brigade . As the commander of the unit , he had signed them after checking them for accuracy and had then submitted them for certification to the commander of FAC . After the commander of ORG had signed the lists , they had been submitted for payment to ORG in ORG . He had informed the applicant that the lists had been submitted for payment . When the allowances were not paid , the applicant and other members of the unit had approached him , as their commanding officer and the only person they were authorised to approach under internal regulations , asking him when the payment would be made . In their name he had then contacted the commander of ORG . Each time he had been informed that the right to receive payment and its amount were not being disputed and that payment would follow after the funds had been allocated for that purpose . Each time he had transmitted that information to the members of his unit , including the applicant .

I.P. had since DATE been the head of ORG of ORG , which was in charge of financial matters for the CARDINALrd LOC . He testified that he had been aware that members of ORG had been carrying out demining work up to DATE and that the commander of FAC had been submitting lists of servicemen who carried out demining work for payment . Since payment was not forthcoming when the allowances fell due , ORG had informed the relevant financial departments that the allowances had not been paid because no funds had been allocated in the budget for that purpose , whereas no instructions had been given to dispute the right to receive allowances or their amount .

On DATE ORG ruled in favour of the applicant and ordered the ORG to pay him the allowances he sought . The relevant part of that judgment read as follows :

“ [ It ] is undisputed that ... when each instalment became due , up to DATE , the plaintiff asked his commanding officer when the payment would be made , because according to the internal organisation of [ ORG ] that was the only person he was authorised to approach , and that [ his ] commanding officer took this up on behalf of the plaintiff with the ORG of the CARDINALrd LOC and that the commander of FAC informed [ the plaintiff 's ] commanding officer that the right to receive payment and its amount were not in dispute , and that payment would follow after the funds had been allocated in the budget , because currently there were none ; the commanding officer passed this information on to the plaintiff .

The foregoing , in the view of this court , represents acknowledgement of the debt within the meaning of section CARDINAL of LAW , because ... the plaintiff was informed by the person authorised to act on behalf of the respondent that the right to receive payment and its amount were not in dispute and that payment would follow once funds had been allocated in the budget . ”

Following an appeal by the ORG , on DATE the ORG ( Županijski sud u PERSON ) quashed the first - instance judgment and remitted the case . It held that the first - instance court had failed to establish : ( a ) who in this case was the person authorised to acknowledge the debt on behalf of ORG , and ( b ) whether the signed and certified lists of the members of the applicant 's unit who had carried out demining work , indicating DATE on which they had done such work and the corresponding amount of DATE allowances , processed by ORG , in fact constituted requests for payment and therefore an indirect acknowledgment of the debt .

In the resumed proceedings , ORG again heard the head of ORG of ORG , Brigadier I.P. , who testified that the certified lists of servicemen who had carried out demining work constituted requests for payment of the allowances . He further stated that after receiving the lists ORG had checked them for accuracy and submitted them together with the requisite form , which in fact constituted a request for payment , to ORG of ORG in GPE . According to ORG , ORG had been authorised to check the lists and could have returned them to ORG if the request for payment of allowances or their amount had been invalid , which they had not done . After ORG had submitted the lists and request for payment , the head of ORG had informed him that payment would follow once funds had been allocated in the budget for that purpose . Had there been funds , no further action would have been required for the amount requested to be transferred to the applicant 's bank account .

In these resumed proceedings , the respondent argued for the first time that , in accordance with the internal regulations of ORG , the person authorised to acknowledge the debt on behalf of ORG was the head of its ORG before a court action had been brought , and afterwards the head of ORG .

On DATE ORG again ruled in favour of the plaintiff . The relevant part of that judgment read as follows :

“ ORG certified the above - mentioned payment lists ... by first checking that the payment and its amount were justified , and then sent it , together with the [ requisite ] form , namely the payment request form , to ORG ... in GPE . [ That GPE ] , by not returning the lists and the request for payment to ORG , accepted them as justified and well - founded . [ ORG ] had to pay the amounts [ sought ] because ORG did not have ready money . After receiving those [ lists and ] the request for payment , ORG had informed ORG that payment would follow once funds had been allocated in the ORG budget , of which the plaintiff was notified and which was explained to him by his commanding officer between the [ time the instalments ] became due and DATE .

The foregoing , in view of this court , represents acknowledgement of the debt because , by certifying the payment lists with the payment request form and informing the plaintiff thereof as well as of the fact that payment would follow once funds had been allocated in the ORG budget , the plaintiff , as the creditor , was informed by the respondent , as the debtor , in a clear and unequivocal manner , that the claim at issue , that is , the respondent 's debt , was being acknowledged . ”

Following an appeal by the ORG , on DATE the ORG again quashed the first - instance judgment and remitted the case . It held that from the case file it followed that in accordance with the internal regulations of ORG the person authorised to acknowledge the debt on behalf of ORG had been the head of its ORG before the action was brought , and afterwards the head of ORG . Therefore , the applicant 's commanding officer could not have acknowledged the debt on behalf of ORG .

In the resumed proceedings , ORG , in order to establish who was the person authorised to acknowledge the debt on behalf of ORG , heard the head of ORG of ORG , and examined the internal regulations of the Ministry .

NORP The head of ORG , GPE , testified that the person authorised to acknowledge the debt on behalf of ORG had indeed been the head of its ORG before the action was brought and the head of its ORG afterwards . He also testified that ORG request for payment of DATE allowances for demining work had been deemed invalid by a letter of CARDINAL DATE because ORG of DATE applied only to the GPE region of GPE .

On DATE ORG ruled for the third time in favour of the plaintiff . The relevant part of that judgment read as follows :

“ In line with the internal organisation of [ the Ministry ] , the plaintiff , after [ the DATE allowances had become due but ] payment had not been forthcoming , had been addressing his requests for payment to his immediate superior , that is to the commander of his unit , whereupon he [ the commander ] had on behalf of the plaintiff been contacting the commander of FAC of ORG . The commander of LOC had been forwarding such requests to ORG , which had been replying that the right to receive payment and its amount were being acknowledged , and that payment would follow once funds had been allocated for that purpose . The commander of FAC had been sending that information to the commander of the [ plaintiff 's ] unit , who had been notifying the plaintiff of this DATE and DATE , when the commander of the unit received the last information from the commander of the CARDINALrd Operational Zone .

In this way authorised and responsible persons and the department [ within the Ministry ] , in particular the commander of the CARDINALth ORG , the commander of LOC ... and the competent ORG , which certified and acknowledged the amounts of DATE allowances as costs of [ the Ministry ] , and in the form of a request for transfer of funds corresponding to the amounts sought ... , submitted them to [ ORG ] , acknowledged the debt to the plaintiff in a clear and unequivocal manner .

Accordingly , the respondent 's argument raised in the course of the proceedings that only the head of [ ORG ] or the head of ORG were authorised to acknowledge the debt on behalf of ORG , is unfounded because this does not follow from the evidence taken , especially from the documents provided by the respondent , in particular from [ the internal regulations of ORG ] , and [ because ] the time - limits fixed by the court at the request of the respondent 's representative for furnishing evidence [ in support of that argument ] had expired .

... from the letter of DATE it does not follow that the request of the [ Split ] ORG had been regarded as invalid . [ Rather ] , it was only returned to the [ ORG ] GPE for additional examination and checking , and it was suggested that afterwards ORG should decide on the right to receive payment of the allowances at issue .

Consequently , in the light of the foregoing , this court indisputably established that authorised persons of the respondent had continued , throughout the entire period in dispute , that is , from the time the claims had become due until DATE , to inform the plaintiff in a clear and unequivocal manner that the respondent did not dispute [ his ] right to receive DATE allowances in the amount sought . [ T]hereby , the respondent acknowledged the debt to the plaintiff within the meaning of section CARDINAL of LAW , so it is clear that the statutory limitation period did not expire , because its running was interrupted by the acknowledgment of the debt . ”

Following an appeal by the ORG , on DATE the ORG reversed the first - instance judgment by dismissing the applicant 's action . The relevant part of that judgment read as follows :

“ On the basis of the evidence taken , the first - instance court established the following relevant facts :

- that the plaintiff , as a member of the CARDINALth ORG of ORG at the material time , under the command of the CARDINALrd Operational Zone of ORG , had occasionally carried out demining work during DATE ;

- that the Decision [ of the Minister of Defence of DATE ] had established the right of the ... members of ORG to a special DATE allowance for demining work ;

- that , in accordance with the [ above ] Decision , the commander of the CARDINALth ORG had been compiling DATE lists of members of the unit who in DATE had carried out demining work , and had specified DATE spent on demining work and the corresponding amounts of DATE allowances due , and that [ those lists ] had been certified and co - signed by the commander of FAC of ORG and submitted to ORG of the [ ORG ] ;

- that the plaintiff , when the special DATE allowances were not paid , on numerous occasions approached the commander of his unit , in accordance with the hierarchical organisation of the [ Ministry ] ... with a query as to when the payment would be made , and that [ his commander ] , after making enquiries of the command of FAC , informed him that his claims were not in dispute ... and that payment would follow after funds had been allocated for that purpose .

Relying on these facts , the first - instance court found that that the authorised persons of the respondent ( the commander of the CARDINALth ORG , the commander of LOC of ORG , as well as ORG – which had certified and acknowledged the amount of the plaintiff 's special DATE allowances as costs of the respondent and had submitted it in the form of a request to the [ ORG of the [ Ministry for transfer of the amount sought ] ) DATE had , throughout the entire period in dispute , until DATE , unequivocally informed the plaintiff that the respondent did not dispute [ his ] right to receive DATE allowances in the amount sought , and that the respondent had thereby acknowledged the debt to the plaintiff within the meaning of section CARDINAL of LAW , so the statutory limitation period had not expired .

However , having regard to the evidence taken before the first - instance court , this court considers the above finding of the first - instance court erroneous . [ This is so ] because , contrary to the view of the first - instance court , and in accordance with the hierarchical organisation of the [ Ministry ] , the persons authorised to acknowledge the debt on behalf of the [ Ministry ] were the head of [ its ORG – which ORG , in accordance with the [ ORG ] internal regulations , was authorised to ultimately process and check the requests for payment of the plaintiff 's claims submitted by ORG ( until the action was brought in this case ) DATE and the head of the [ ORG ( during the present proceedings ) , as the respondent correctly argued ... as well as the other authorised persons who were , in accordance with the hierarchical organisation of the [ Ministry ] , superior to [ them ] .

That being so , and having regard to the facts established in the proceedings before the first - instance court , it does not follow that it was precisely those authorised persons mentioned above who acknowledged the debt by making a declaration to the plaintiff as the creditor , nor that the debt was acknowledged in some indirect manner within the meaning of paragraph CARDINAL of section CARDINAL of LAW . [ O]n the contrary , the request of ORG to transfer funds [ corresponding to the amounts of DATE allowances sought ] ( which request , together with signed and certified lists compiled by ORG , can not be considered an acknowledgement of the debt within the meaning of section CARDINAL of LAW ) ... was regarded as invalid by ORG and returned to ORG for further checking and additional examination ( ... ) . [ T]herefore , in the instant case the respondent did not acknowledge the plaintiff 's claims in any manner prescribed by law that would lead to an interruption of the statutory limitation period . [ S]ince DATE instalment of special DATE allowances had become due in DATE , and the action in this case had been brought on DATE , the [ respondent 's ] plea that the claims at issue were statute - barred , ... is well - founded because the DATE statutory limitation period set forth in section CARDINAL of LAW in respect of the plaintiff 's claims , which arose from his employment relationship with the respondent , had expired in the instant case . ”

The applicant then lodged a constitutional complaint against the second - instance judgment , alleging violations of his constitutional rights to equality before the courts and to a fair hearing . He argued that his claim for special DATE allowances for demining work was not statute - barred , because ORG had on several occasions acknowledged the debt , thereby interrupting the running of the statutory limitation period , and that the Šibenik ORG had not relied on any provision of substantive law which would justify dismissal of his action .

On DATE ORG ( Ustavni sud PERSON ) dismissed the applicant 's constitutional complaint and served its decision on his representative on DATE .

The relevant part of LAW ORG , ORG nos . DATE , CARDINAL , CARDINAL/CARDINAL ( consolidated text ) , CARDINAL , DATE ( consolidated text ) , CARDINAL and DATE ( consolidated text ) , PERSON ( corrigendum ) ) provides as follows :

“ All citizens of GPE and foreigners shall be equal before the courts and other state or public authorities . ”

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

“ CARDINAL . The right of ownership shall be guaranteed .

Ownership implies duties . Owners and users of property shall contribute to the general welfare . ”

“ CARDINAL . Ownership may be restricted or taken in accordance with the law and in the interest of GPE subject to payment of compensation equal to the market value .

The exercise ... of the right of ownership may , on an exceptional basis , be restricted by law for the protection of the interests and security of GPE , nature , the environment or public health . ”

“ International agreements in force , which were concluded and ratified in accordance with the LAW and made public , shall be part of the internal legal order of GPE and shall have precedence over the [ domestic ] statutes . ... ”

In its decisions nos . U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL/CARDINAL ) and U - I-CARDINAL/CARDINAL of DATE ( ORG no . CARDINAL ) ORG held that all rights guaranteed in the LAW and its Protocols were also to be considered constitutional rights having legal force equal to the provisions of LAW .

The relevant part of LAW on LAW ( PERSON o PERSON , ORG no . CARDINAL of DATE – “ the LAW ” ) , as amended by DATE Amendments ( PERSON o izmjenama i dopunama PERSON zakona o PERSON sudu PERSON , ORG no . CARDINAL of DATE ) , which entered into force on DATE , reads as follows :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that the decision of a state authority , local or regional self - government , or a legal person invested with public authority , on his or her rights or obligations , or as regards suspicion or accusation of a criminal offence , has violated his or her human rights or fundamental freedoms , or right to local or regional self - government , guaranteed by LAW ( “ constitutional right ” ) ...

If another legal remedy is available in respect of the violation of the constitutional rights [ complained of ] , the constitutional complaint may be lodged only after this remedy has been exhausted .

In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law [ revizija ] are available , remedies shall be considered exhausted only after the decision on these legal remedies has been given . ”

“ A constitutional complaint shall contain ... an indication of the constitutional right alleged to have been violated [ together ] with an indication of the relevant provision of the LAW guaranteeing that right ... ”

“ ... [ t]he ORG shall examine only the violations of constitutional rights alleged in the constitutional complaint . ”

On DATE the ORG delivered a decision , no . ORG ( Official Gazette no . CARDINAL ) in a case where the complainant relied in her constitutional complaint on ORG and CARDINAL(CARDINAL ) of the LAW , neither of which , under that court 's jurisprudence , contained constitutional rights . ORG nevertheless allowed the constitutional complaint , finding violations of ORG , CARDINAL ) and CARDINAL of the LAW , on which the complainant had not relied , and quashed the contested decisions . In so deciding it held as follows :

“ Therefore , a constitutional complaint can not be based on either of the constitutional provisions stated [ by the complainant in her constitutional complaint ] .

However , the present case concerns , as will be explained further , a specific legal situation as a result of which this court , despite [ its ] finding that there are not , and can not be , violations of the constitutional rights explicitly relied on by the complainant , considers that there are circumstances which warrant quashing [ the contested ] decisions .

Namely , it is evident from the constitutional complaint and the case file that there have been violations of [ constitutional ] rights , in particular those guaranteed by LAW , equality before the law ) , LAW paragraph CARDINAL ( the guarantee of judicial review of decisions of state and other public authorities ) and LAW before the courts and other state or public authorities ) of the LAW ... ”

Section CARDINAL of LAW ( Zakon o obveznim odnosima , ORG of ORG nos . CARDINAL , DATE and DATE , and ORG no . CARDINAL/CARDINAL with subsequent amendments ) provided as follows :

STATUTE OF LIMITATIONS

GENERAL PROVISIONS

General rule

Section CARDINAL

“ ( CARDINAL ) The right to request performance of an obligation shall be extinguished on the expiration of a statutory limitation period .

( CARDINAL ) ...

( CARDINAL ) A court shall not take a statutory limitation period into account of its own motion if the debtor did not plead it . ”

INTERRUPTION OF A STATUTORY LIMITATION PERIOD

Acknowledgement of a debt

Section CARDINAL

“ ( CARDINAL ) The running of a statutory limitation period shall be interrupted when the debtor acknowledges his or her debt .

( CARDINAL ) A debt may be acknowledged not only by a statement [ that is , a declaration ] to the creditor but also in an indirect manner , such as by making a payment , paying interest or providing security ... ”

In interpreting section CARDINAL of LAW ORG has consistently held that acknowledgement of a debt capable of interrupting a statutory limitation period , regardless of whether it has been made in a direct or indirect manner , has to be done unequivocally and by the persons authorised to act on behalf of the debtor ( see , for example , decisions nos . PERSON CARDINAL/CARDINAL - CARDINAL of DATE , PERSON CARDINAL/CARDINAL - CARDINAL of DATE , PERSON of DATE , PERSON of DATE , and PERSON of DATE ) .

On DATE ORG delivered a judgment , no . PERSON CARDINAL/CARDINAL - CARDINAL , in a case in which the plaintiffs sued the ORG seeking payment of unpaid salaries for the period during which they had been receiving medical treatment and held captive by the enemy , respectively . The question arose whether the letter of ORG , in particular , the General Staff of ORG , of CARDINAL DATE , confirming that the plaintiffs had been members of their military unit and had appeared on its payroll but had not collected their salaries in the above - mentioned period , constituted acknowledgment of the debt . The lower courts dismissed the plaintiffs ' action , finding that the letter had not constituted acknowledgement of a debt capable of interrupting the statutory limitation period . In dismissing an appeal on points of law ( revizija ) by the plaintiffs and upholding the lower courts ' judgments , ORG held as follows :

“ From [ the letter of CARDINAL DATE ] it only follows that the plaintiffs were members of a certain unit at a certain time and that they did not receive a salary for that period . Such [ a letter ] can not per se constitute an acknowledgment of the debt within the meaning of section CARDINAL of LAW and interruption of the statutory limitation period . That is a general statement which can not be considered as an acknowledgment of the debt . The ... letter indicates that the debt may exist but it does not constitute an acknowledgement by the debtor that the debt [ indeed ] exists , that is , acknowledgment that the debtor has [ an obligation ] to settle the debt or that the debtor will settle it . The statement of facts by the debtor , on the basis of which it could be concluded that the debt exists , does not constitute acknowledgment of the debt [ capable of ] interrupting the statutory limitation period . For the acknowledgement of the debt to result in the interruption of the statutory limitation period , it has to be explicit and specific so that the debtor 's will to settle the existing debt is unequivocally expressed . ”

On DATE ORG delivered a decision , no . Rev-CARDINAL/CARDINAL - CARDINAL , in a case where the plaintiff company sued the ORG seeking payment of a certain amount of money . The question arose whether a letter of CARDINAL DATE signed on behalf of ORG of ORG by the head of its ORG informing the plaintiff that its claim had been recorded with ORG but that funds had not been allocated to satisfy that claim , as well as a letter of DATE signed on behalf of ORG of ORG by the head of its ORG notifying the plaintiff that ORG would settle its debt by transferring the money to the plaintiff company 's giro account upon transfer of the funds to ORG from the ORG budget , amounted to acknowledgment of the debt . The lower courts ruled in favour of the plaintiff , finding that the above - mentioned letters had constituted acknowledgement of a debt capable of interrupting the statutory limitation period . ORG allowed an appeal on points of law by the ORG , quashed the lower courts ' judgments and remitted the case . In so deciding ORG held as follows :

“ In the contested judgments no reasons were given for the finding that the head of ORG , who had signed the letter of CARDINAL DATE , would be authorised to acknowledge the debt ( even assuming that the mere recording of the claim and its amount with ORG of ORG could be considered an acknowledgment of the debt ) .

... the letter of DATE [ containing ] the statement that its [ the ORG 's ] debt would be settled by transferring the money to the [ plaintiff company 's ] giro account , but without establishing the amount of the debt that the respondent considered well - founded , and without establishing whether ... the head of ORG ( who signed the letter ) was authorised to give such a statement , can not , at least for the time being , be considered an acknowledgment of the debt .

In this court 's view , an acknowledgement of a debt within the meaning of section CARDINAL paragraph CARDINAL of LAW can be made by the debtor personally or through an authorised person ( if the debtor is a legal entity ) . It follows from the foregoing that declarations of unauthorised persons acknowledging a debt on behalf of a debtor can not produce for the debtor any legal effects of a valid acknowledgement of a debt . It also has to be noted that an acknowledgement of a debt must not be contrary to peremptory norms [ jus cogens ] .

For these reasons , until it is established whether , and on the basis of which legal document , the head of ORG and the head of ORG were persons authorised to acknowledge the debt , there can be no conclusions as to the legal significance of the letters of CARDINAL DATE and DATE . ”

According to the views expressed in NORP legal doctrine , a right is not extinguished by the expiration of a statutory limitation period . Rather , the creditor only loses the right to seek its enforcement through the courts . Therefore , a debtor remains a debtor even after a statutory limitation period has expired . For that reason , if a debtor pays a creditor after the expiry of a statutory limitation period , he or she can not claim the amount paid back ( on account of unjust enrichment ) because he or she paid an existing debt

Section CARDINAL of LAW ( Zakon o radu , ORG nos . CARDINAL , CARDINAL ( corrigendum ) , CARDINAL ( corrigendum ) , CARDINAL , CARDINAL , CARDINAL , PERSON , DATE ( corrigendum ) and CARDINAL ) provides as follows :

Statutory limitation period for an employment - related claim

Section CARDINAL

“ Unless otherwise provided in this or another statute , an employment - related claim expires after DATE . ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG of ORG nos . CARDINAL , CARDINAL/CARDINAL ( corrigendum ) , CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , DATE , DATE , DATE , CARDINAL/CARDINAL and CARDINAL/CARDINAL , and ORG . CARDINAL , GPE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL and GPE ) provides as follows :

“ The court shall proceed on an action even if the plaintiff has not indicated the legal basis for his or her claim ; and if the plaintiff has indicated the legal basis the court shall not be bound by it . ”

“ ( CARDINAL ) When ORG has found a violation of a human right or fundamental freedom guaranteed by LAW or additional protocols thereto ratified by GPE , a party may , within DATE of the judgment of ORG becoming final , file a petition with the court in GPE which adjudicated in the first instance in the proceedings in which the decision violating the human right or fundamental freedom was rendered , to set aside the decision by which the human right or fundamental freedom was violated .

( CARDINAL ) The proceedings referred to in paragraph CARDINAL of this section shall be conducted by applying , mutatis mutandis , the provisions on the reopening of proceedings .

( CARDINAL ) In the reopened proceedings the courts are required to respect the legal opinions expressed in the final judgment of ORG finding a violation of a fundamental human right or freedom . ”

Decision of the Minister of Defence on Payment of Special Daily Allowances for Carrying Out Mining and Demining Works ( ORG o isplatama posebnih dnevnica za vrijeme izvođenja radova na miniranju i deminiranju , unpublished ) of DATE reads as follows :

“ CARDINAL . Permanent and reserve members of ORG carrying out mining and demining works shall have the right to special DATE allowances .

Special allowances shall be calculated in the amounts prescribed by the Decision on the Amount of Daily Allowance for Official Journeys and ORG from ORG [ that is , CARDINAL NORP kunas ( HRK ) at the time ] , and so from the time of departure to [ carry out ] mining and demining works , according to the following criteria :

( a ) the entire DATE allowance for TIME spent on mining and demining works , including periods of CARDINAL to TIME [ that is , QUANTITY ] ;

( b ) half the DATE allowance for periods of TIME .

The lists of persons entitled to special DATE allowances , with details , shall be compiled by the commander at independent battalion level or higher , and shall be certified by the commander of the operational zone ... The certified list shall be submitted for payment to the regional finance department on whose territory mining and demining works have been carried out , at the latest on DATE in respect of DATE .

This Decision shall enter into force on DATE of its adoption , and shall be applicable from DATE . ”


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE the applicant called an ambulance for her son , who was DATE at the time . He had a fever and was complaining of chest pains . The paramedic examined him , and , assuming that he was suffering from intercostal neuralgia , administered a pain - killing injection .

On DATE Mr Korogodin was examined by a general practitioner , who believed him to be suffering from pyelonephritis and advised him to go to hospital . At the hospital PERSON underwent a medical examination including an ECG of his kidneys and liver and an GPE of his lungs . The doctors who examined him confirmed the diagnosis of intercostal neuralgia . PERSON was discharged from hospital .

On DATE the general practitioner examined Mr Korogodin again and diagnosed him with osteochondrosis . Subsequently , PERSON , a doctor whom the applicant 's family knew , examined PERSON , diagnosed him with pneumonia and urged him to go to hospital . Upon arrival at FAC in GPE , PERSON was taken to an intensive care unit .

On DATE Mr Korogodin died in hospital . According to the autopsy , the cause of his death was cardiovascular deficiency provoked by pneumonia and purulent pleurisy .

On DATE and DATE the applicant asked the local prosecutor 's office to open a criminal investigation into the matter , alleging that the doctors ' negligent failure to diagnose her son correctly at the onset of his disease had caused his death .

NORP In response to the applicant 's complaints , the assistant prosecutor of the town of GPE , conducted an inquiry . Within its framework , the regional department of public health formed a commission which comprised specialists from the medical institutions where the applicant 's son had undergone treatment . The commission questioned the doctors who had treated PERSON and concluded that the doctors had provided competent medical service .

On DATE the applicant submitted PERSON medical history file and PERSON examination results . An additional inquiry ensued . On DATE the applicant lodged another complaint with the prosecutor 's office .

On DATE the assistant prosecutor refused to open a criminal investigation against the doctors for lack of corpus delicti . He noted that the death of the applicant 's son had resulted from the rapid development of pneumonia coupled with weakened immunity . The assistant prosecutor referred to the findings made by the commission set up by the regional department of public health . The applicant appealed to a superior prosecutor .

On DATE the regional prosecutor in charge of the investigation quashed the decision of DATE and ordered a criminal investigation into the matter . The prosecutor noted , in substance , that the commission had not been impartial . He referred to the commission 's findings as inconclusive and contradictory .

On DATE the applicant was recognised as a victim of the crime under investigation . She was advised of her rights , including the right to submit a civil claim against the hospital .

On DATE the investigator commissioned a forensic medical expert report to determine whether PERSON had received proper medical treatment .

On DATE the investigator found it impossible to identify those responsible and suspended the investigation into the matter . On DATE the district prosecutor declared the decision of CARDINAL DATE unlawful and quashed it .

On an unspecified date the forensic medical experts completed the report and submitted their findings to the prosecutor 's office . The experts discerned no causal link between Mr PERSON 's death and the treatment administered .

On DATE the investigator discontinued the criminal proceedings for lack of corpus delicti . He based his findings on the medical expert report and statements made by the doctors who had treated Mr Korogodin . The applicant appealed to a superior prosecutor .

On DATE the town deputy prosecutor quashed the decision of DATE . The deputy prosecutor found that the experts had failed to examine the issue of whether the medical treatment that Mr Korogodin had undergone had been adequate . He referred to the experts ' statement that a prompt diagnosis at an early stage of a severe disease could prevent a patient 's death . He further noted that the medical expert , P. , opined that the X - ray examination had not been properly conducted . Finally , the prosecutor indicated which steps the investigator should now take , including , but not limited to , examining the circumstances of the X - ray examination that Mr Korogodin had undergone .

On DATE the investigator yet again discontinued the criminal proceedings for lack of corpus delicti .

On DATE the regional prosecutor in charge of the investigation quashed the decision of CARDINAL DATE owing to the investigator 's failure to fully determine the circumstances of Mr PERSON '

On DATE a new report was prepared by a forensic medical expert bureau in Kursk . The experts noted certain errors committed by the doctors prior to PERSON committal to hospital . They further opined that he had received adequate treatment in hospital albeit that certain additional measures could have been taken by the hospital 's personnel .

On DATE the inter - district prosecutor quashed the decision of DATE as unsubstantiated . The investigation was resumed DATE .

On DATE the inter - district prosecutor discontinued the criminal proceedings for lack of corpus delicti . His findings were based on witnesses ' testimonies , including those provided by the applicant and the doctors who had treated PERSON , and the results of the medical expert reports . The prosecutor concluded that PERSON had not recovered from previous illnesses which had negatively affected his immune system and the rapid development of pneumonia could not have been prevented in the circumstances .

On DATE ORG of GPE sent a letter to ORG noting that the investigation into Mr PERSON 's death had not been complete . It was further recommended that a new forensic medical evaluation be commissioned in order to reconcile the differences in the opinions contained in CARDINAL earlier medical forensic expert reports .

On DATE the regional deputy prosecutor quashed the decision of CARDINAL DATE .

On DATE the investigator commissioned a new forensic medical expert report .

On DATE the NORP ORG of ORG completed a comprehensive forensic medical expert report . The experts noted that PERSON had been wrongly diagnosed prior to his committal to hospital . They opined , nevertheless , that the errors in question had not been the cause of his death . PERSON had died as a result of the “ severity , aggressiveness and rapid development of the disease ” . Lastly , they did not discern that the doctors and paramedics at the medical institutions providing treatment to PERSON had failed to duly perform their professional duties .

On DATE the investigator discontinued the criminal proceedings for lack of corpus delicti on the basis of the witnesses ' testimonies and medical expert reports . The applicant appealed .

On DATE ORG of GPE allowed the applicant 's complaint and ordered the local prosecutor 's office to resume the investigation into the matter .

On DATE the regional deputy prosecutor found the investigation to be incomplete and quashed the decision of DATE .

On DATE the investigator discontinued the proceedings for lack of corpus delicti . The investigator based his findings on statements made by CARDINAL witnesses , including the applicant , the doctors who had treated PERSON , their superiors and the medical experts , and on medical documents , including CARDINAL forensic medical expert reports . The applicant appealed .

Her complaints were dismissed by ORG and ORG of GPE on DATE and DATE respectively .

On DATE the applicant brought a civil claim for damages against the medical institutions where her son had undergone medical treatment . She alleged , inter alia , that her son had died due to the doctors ' failure to diagnose him correctly .

On DATE the court commissioned a forensic medical expert report . The report was completed on DATE . The experts concluded that there was no causal link between the deficiencies in the medical treatment PERSON had received and his death . They further opined that the medical treatment had not caused any harm to Mr PERSON 's condition . His death had resulted from the pathological development of pneumonia .

On DATE the ORG of Orel dismissed the applicant 's claims . The court found that the doctors ' failure to diagnose Mr Korogodin correctly on DATE and a delay in his committal to hospital had not had an adverse impact on his condition . The diagnostics methods and treatment employed by the doctors had been correct but could not have prevented PERSON death . The court based its findings on the testimonies given by the applicant , the medical professionals involved in her son 's treatment , the CARDINAL forensic medical expert reports and the materials of the criminal investigation .

On DATE the Orel Regional Court upheld the judgment of CARDINAL DATE on appeal .

On DATE the applicant sued ORG for damage caused allegedly by the inadequate and lengthy investigation into her son 's death .

On DATE the ORG upheld the judgment of DATE on appeal .

The relevant provisions on liability provide as follows :

Article CARDINAL . Grounds for health damage compensation

Those liable for causing damage to persons ' health shall pay the latter compensation for damage in the amount and pursuant to the procedure as set forth by legislation of GPE ...

Article DATE . Liability of medical professionals and pharmacists for infringement of persons ' rights in the domain of public health

In the event of a violation of persons ' rights in the domain of public health caused through the negligent failure of a medical professional or a pharmacist to carry out their professional duties and resulting in harm to health or death , compensation for damage shall be recovered in accordance with LAW ...

The compensation of the damage shall not excuse the medical professionals and pharmacists from disciplinary , administrative or criminal liability as provided for in [ federal and regional ] legislation .

The general provisions on liability for damage read as follows :

Article ORG . General grounds for liability for causing harm

“ CARDINAL . Damage inflicted on a person or on the property of an individual ... shall be compensated in full by the tortfeasor ...

NORP The tortfeasor shall be released from liability to compensate the damage if he proves that the damage was inflicted through no fault of his own ... ”

Article CARDINAL § CARDINAL of LAW provides that a person who negligently causes the death of another person through the failure to duly carry out his professional responsibilities , shall be criminally liable and may be sentenced to a restriction of liberty or imprisonment for DATE with or without a forfeiture of the right to practise the profession during the said period .

If criminal proceedings are discontinued at the investigation stage , an aggrieved person who joined the proceedings as a civil party may lodge a separate civil claim unless the proceedings were discontinued on the ground that ( a ) the alleged offence had not been committed ( otsutstvie sobytiya prestupleniya ) or ( b ) the suspect had not been involved in its commission ( LAW and LAW ( CARDINAL ) and CARDINAL § CARDINAL ( CARDINAL ) ) .

If the defendant is acquitted by the trial court on the ground that ( a ) the alleged offence was not committed or ( b ) the defendant was not involved in its commission , the trial court will dismiss the civil claim . If the defendant is acquitted for lack of corpus delicti ( LAW ( CARDINAL ) ) , the trial court will disallow the civil claim but it may be lodged again in civil proceedings ( LAW ) .


André Potocki;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Klaus Köpp;Mark Villiger;Renate Jaeger

The facts of the case , as set out by the parties , can be summarised as follows .

The disputed land , having a surface area of CARDINAL sq.m . , including a dwelling house and business premises , is situated in GPE , on the territory of the former GPE ( GPE ) .

Under a notarially - registered agreement of CARDINAL DATE , the PERSON brothers , who were NORP , sold this land for MONEY ( ORG ) to an industrialist , PERSON The PERSON brothers subsequently ORG GPE and took refuge in GPE .

After DATE , the land , which was situated in the NORP - occupied zone , was temporarily requisitioned by the ORG .

On DATE the President of the Land of GPE ( GPE ) appointed an administrator and indicated that the land , which had been sold under duress , fell within the scope of LAW ( Wiedergutmachungsgesetz ) of DATE . It was thus supposed to be returned to the former owners or to their heirs .

Subsequently the restitution procedure was suspended , with a view to the amendment of LAW and to the systematic expropriation of the plots of land concerned .

On DATE the administrator of the disputed property entered into a friendly settlement on behalf of the PERSON brothers with the widow and heir of PERSON , under which the latter would remain the owner of CARDINAL of the land and the PERSON brothers would obtain the remaining CARDINAL , whilst in return waiving any claims against PERSON

Subsequently the PERSON brothers challenged this friendly settlement , arguing that they had not been consulted .

After the death of PERSON , the CARDINAL of the property still owned by her was left to a community of heirs .

Under a notarially - registered agreement of DATE , CARDINAL of PERSON heirs sold an initial share in the joint property ( PERSON an PERSON ) to the applicant for MONEY ( ORG ) and a second share to another purchaser , PERSON , for the same amount . The agreement indicated that the applicant had been provided with a description of the events leading to the current property regime of the property in question ( “ wie es zu den momentanen Eigentumsverhältnissen gekommen ist ” ) and that this description covered the period from DATE to CARDINAL DATE .

On DATE the applicant was registered in the land register as a member of the community of joint owners .

In CARDINAL letters , of DATE and DATE , the heirs of the PERSON brothers sought the restitution of CARDINAL of the land in accordance with section CARDINAL(CARDINAL ) of the law on the resolution of outstanding property issues DATE LAW ( Gesetz über die GPE offener Vermögensfragen - Vermögensgesetz ) of CARDINAL DATE ( see relevant domestic law and practice , paragraph CARDINAL below ) .

In a notarially - registered agreement of CARDINAL DATE the heirs of the PERSON brothers sold CARDINAL of the disputed land for DM CARDINAL to Mrs T. The same agreement contained a clause indicating that the heirs of the PERSON brothers were also selling CARDINAL of the land for ORG CARDINAL under the condition precedent that they obtained its restitution ( the procedure was pending before the domestic authorities and courts – see paragraphs CARDINAL et seq . below ) .

On DATE the applicant acquired a second share in joint ownership from PERSON , which was also registered in the land register on CARDINAL DATE . The ORG pointed out that the applicant had not provided evidence that he had paid for that acquisition , whereas the applicant indicated that the value of that second share had also amounted to ORG CARDINAL as stipulated in the initial agreement of DATE , and that he had acquired that share from PERSON in exchange for debts owed to him by the latter .

On DATE , the applicant entered into a notarially - registered sales agreement for his CARDINAL shares for a total sum of DM CARDINAL to the company ORG , having its registered office in GPE ( GPE ) . This agreement indicated that the parties had released the notary from his obligation to inspect the land register , in spite of his warning that the existence of third - party rights could not entirely be ruled out .

The applicant alleged that , on account of the restitution of the disputed property , he had been unable to fulfil his undertakings under that agreement .

In a decision of CARDINAL DATE ORG ( Amt für die PERSON ) of the town of GPE initially rejected the request by the heirs of the PERSON brothers , on the ground that the friendly settlement reached on DATE had ruled out any request for restitution . The heirs of the PERSON brothers challenged that decision .

NORP In a decision of CARDINAL DATE ORG for ORG ) upheld their request and ordered the restitution of CARDINAL of the land . The ORG took the view that there was a presumption that the disputed land had been sold under duress in DATE , because the sale price had not been appropriate and it had not been established that the sale would have taken place without ORG “ rule ” . Moreover , restitution could not be ruled out , whether because of the friendly settlement reached in the former GPE under the pressure of forthcoming expropriations without the agreement of those concerned , or for any of the other reasons given in LAW , namely an acquisition in good faith at the time of the former GPE ( see relevant domestic law and practice , paragraph CARDINAL below ) . Under section CARDINAL ) of LAW , the applicant was entitled to the payment of consideration ( Gegenleistung ) for a sum equivalent to the sale price of his shares in DATE at the conversion rate of DM CARDINAL for RM CARDINAL , thus DM CARDINAL .

The applicant then took the matter to the LOC administrative court , complaining that the current purchasers were not responsible for the situation under the ORG regime , that the friendly settlement had been valid and that the ORG ’s decision infringed his right to the enjoyment of his possessions under LAW No . CARDINAL .

In a judgment of CARDINAL DATE ORG upheld the decision of ORG , in all its aspects , relying on sections CARDINAL(CARDINAL ) and CARDINAL ) taken together with CARDINAL ) of LAW ( see relevant domestic law and practice , LAW below ) . It explained that LAW had to be regarded as a law controlling the use of property within the meaning of the second paragraph of LAW No . CARDINAL , having the legitimate aim of ensuring reparation for the injustice committed against NORP citizens . Even supposing that the applicant had a possession within the meaning of that LAW , the relevant provisions of LAW had validly defined the scope of his property right ( zulässige LOC ) . He therefore had only a restricted right ( eingeschränkte PERSON ) . ORG concluded that restitution was not ruled out under section CARDINAL(CARDINAL ) of LAW , because the applicant had not acquired title to its pecuniary value ( kein LOC ) and had acquired his share after the entry into force of LAW . Nor had he been able to dispose of ( verfügen ) his property , and for that reason was simply registered in the land register as a member of the community of joint owners of the inherited estate .

ORG did not give the applicant leave to appeal against that judgment or to lodge an application for review with ORG .

In a decision of DATE , ORG dismissed the applicant ’s appeal against ORG decision not to give him leave to lodge an application for review .

In a decision of DATE ORG , ruling in a committee of CARDINAL , rejected the applicant ’s constitutional appeal .

On DATE the applicant filed a request for compensation under the Law of DATE on compensation in accordance with LAW ( Gesetz über die Entschädigung nach dem Vermögensgesetz – Entschädigungsgesetz – see relevant domestic law and practice , paragraph CARDINAL below ) and that procedure is still pending .

On DATE LAW of DATE , which was also to be part of LAW ( Einigungsvertrag ) , came into force . Under LAW would remain in force in GPE after the reunification of the two GPE on DATE . The LAW ’s purpose was , in particular , to settle any conflicts relating to property on the territory of the GPE in a manner that was socially acceptable , in order to ensure long - term legal security in GPE .

Section CARDINAL(CARDINAL ) of LAW provides that it is applicable to rights in respect of property that was expropriated at the time of the GPE and section CARDINAL ) provides that it also applicable to persons against whom proceedings were brought in GPE DATE and DATE on racist , political , religious or ideological grounds ( weltanschauliche GPE ) and who had consequently lost their property “ by forced sale , expropriation or other means ” . Sections CARDINAL and CARDINAL of the LAW complement section CARDINAL .

Section CARDINAL(CARDINAL ) of LAW provides that any property that became “ people ’s property ” will be returned on request unless excluded by the law . LAW ) provides that if a number of parties make a request for restitution concerning the same property , it is the party that was “ first ” injured which is thus entitled . That means that , as in the present case , when property was sold under duress during ORG period , then subsequently expropriated in the former GPE , the heirs of the original NORP owners have a priority right to restitution .

Restitution is ruled out if it proves impossible in practice ( section CARDINAL ( CARDINAL ) of the Act ) or if the purchasers acquired the property in good faith DATE and DATE ( section CARDINAL ( CARDINAL ) of the LAW ) . However , it is not excluded if , as in the present case , the acquisition took place after that date .

Section PERSON ) , first sentence , of LAW provides that applications for restitution had to be lodged no later than DATE .

In the event of the property ’s restitution , section CARDINAL ) of LAW provides that consideration equivalent to the original sale price must be paid to the new purchasers . The conversion rate is DM CARDINAL for RM CARDINAL . In this connection , no distinction is made between the heirs of the initial purchaser in the National - Socialist era and a new purchaser , who , as in the present case , has more recently acquired joint - ownership shares from the community of heirs of the initial purchaser .

Section CARDINALa(CARDINALb ) provides that the heirs of the initial purchaser or the new purchaser may also opt for the payment of compensation in accordance with LAW of DATE if the original sale price had been paid in reichsmarks ( RM ) in ORG era . The objective of this provision was to alleviate the effect of the devaluations resulting from CARDINAL changes of currency since that time . Only those persons who had acted in a manner contrary to the principles of humanity or who had abused their position in ORG era were to be excluded from the possibility of obtaining such compensation .