Preliminary objection rejected (victim);Questions of procedure rejected;No violation of Art. 8;Violation of Art. 6-1+6-3-d;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

Mr PERSON , a NORP national , resides at Röschenz in the GPE of GPE .

In DATE , while in GPE , he was charged with trafficking in drugs . On DATE the CARDINALth ORG of ORG ordered the proceedings to be discontinued as a result of various procedural problems , including the intervention of a NORP undercover agent ( V - Mann ) .

On appeal by the public prosecutor ’s office , ORG ( ORG ) set the order aside on DATE and remitted the case to ORG . That court adjourned the case sine die on the grounds that the applicant and his co - defendant , who had been at liberty since CARDINAL September CARDINAL , had returned to GPE .

On DATE the NORP police informed the police of the GPE of GPE that the applicant had asked a fellow countryman whom he had met while in detention for MONEY to finance the purchase of QUANTITY of cocaine in GPE .

In order to obtain fuller information on the drugs deal and seize the drugs in question , the investigating judge at ORG ( ORG ) opened a preliminary investigation on DATE . With the agreement of ORG of ORG ( Obergericht ) of the GPE of GPE and pursuant to LAW ( see paragraph CARDINAL below ) , he also ordered the applicant ’s telephone conversations to be monitored .

On DATE ORG authorised the telephone interception to be extended to DATE .

In addition , the GPE police and the special drugs unit decided that a sworn officer of ORG should pass himself off as a potential purchaser of the cocaine , under the assumed name of PERSON . They acted with the authorisation of cantonal police headquarters , and notified the investigating judge at ORG of their plan .

According to the ORG , PERSON had attended a course on CARDINAL and DATE intended for cantonal officials with responsibility for the fight against drug trafficking , with the aim of drawing their attention to the limits to which their undercover activities were subject and the relevant provisions of the law . Shortly before acting in the present case , PERSON was reminded at a meeting with his superior officers of the limits beyond which he was not to go .

The applicant met PERSON on DATE , CARDINAL May and CARDINAL and DATE , on the latter ’s initiative on each occasion , as the applicant did not know his real identity , address or telephone number .

He was arrested on DATE and charged with unlawful trafficking in drugs . The investigating judge at ORG terminated the telephone interception on DATE . In a letter of CARDINAL DATE he informed the applicant that he had ordered telephone interception and that it had lasted from DATE to DATE .

According to PERSON ’s reports , Mr Lüdi had promised to sell him , as intermediary , QUANTITY of cocaine worth MONEY , and had borrowed MONEY from a third person for the purchase of cocaine or other narcotics .

On DATE the police searched the applicant ’s home and found traces of cocaine and hashish on a number of objects .

On DATE the investigating judge at ORG ordered the applicant to be released on the ground that he had made " extensive admissions as to the essential parts of the investigation [ and that ] there [ was ] consequently no longer any risk of collusion or flight " .

The GPE police , relying on the results of the preliminary investigation , filed a criminal complaint on DATE .

On DATE ORG found the applicant guilty of CARDINAL offences against LAW and sentenced him to CARDINAL years’ imprisonment . In order to preserve the anonymity of the undercover agent , the court declined to call him as a prosecution witness ; it considered that the records of the telephone interception and the undercover agent ’s reports showed clearly that , even without the agent ’s intervention , Mr Lüdi had had the intention of acting as an intermediary in the supply of large quantities of narcotics .

Mr Lüdi appealed against his conviction for CARDINAL of the CARDINAL offences , the attempted supply of cocaine to PERSON and the attempted purchase of cocaine or another drug by means of the loan he had arranged .

On DATE ORG ( ORG ) confirmed the judgment of DATE ( see paragraph CARDINAL above ) . ORG did not call the undercover agent either .

The court found that the evidence adduced before the trial court had in essence corroborated the content of PERSON ’s report , in particular with regard to the general course of events . This had clearly shown that the applicant - as had not been disputed by him - had made great efforts in order to supply PERSON with QUANTITY of cocaine , had contacted PERSON and then PERSON , travelled to GPE and GPE , and arranged meetings between PERSON and a possible supplier . After initially minimising things , he had eventually decided to admit all these facts , which also followed partly from the interception of his telephone conversations and the statements of PERSON It had to be regarded as established that Mr Lüdi had been the first to speak to S. about purchasing cocaine ; besides , PERSON had confirmed this , although he had toned down his original statements on this point to some extent .

The court then dealt with the applicant ’s argument that LAW subsection CARDINAL of LAW did not apply to PERSON ’s actions . The court said that the mere fact that the applicant had planned a significant deal in cocaine before his first contact with the undercover agent brought him within section CARDINAL of that PERSON .

Finally , the detailed reports of the telephone interception showed very clearly that Mr Lüdi had persistently ( beharrlich ) and on his own initiative attempted to carry out a drugs deal , and that he had for this purpose intended to bring PERSON in as the " banker " , as he himself did not have the required funds .

Mr Lüdi then brought a public law appeal and an application for a declaration of nullity to ORG ( PERSON ) .

He alleged in the former that there had been an interference with his right to respect for his private life , which had not been compatible with LAW article CARDINAL) of the Convention . He argued firstly that the monitoring of his telephone conversations had not been " in accordance with the law " and had not been justified under paragraph CARDINAL , as he had been suspected merely of having had the intention of committing an offence . Secondly , he complained of the intervention of an undercover agent , which he alleged had been intended to incite him to take part in drug trafficking . He further claimed that the telephone interception could not be used in evidence and that the mere reading of the agent ’s reports , without the agent being called as a witness , had prejudiced the exercise of the rights of the defence , in breach of LAW ) .

On DATE ORG dismissed the public law appeal , for the following reasons :

( a ) The public law appeal raises CARDINAL objections to the ordering of the telephone surveillance . Firstly , it is argued that at the stage of ‘ generally investigative police enquiries’ telephone interception was ordered for which there was no statutory provision at that stage ; a preliminary investigation was started only for the sake of appearances . Secondly , the appellant complains that NORP criminal procedure law permits of no preventive telephone surveillance and that the present case did not concern an investigation into an offence which had been committed , but the ascertainment of offences which were about to happen .

( b ) Under LAW ( StrV ) an investigating judge can order surveillance of a suspect ’s postal , telephone and telegraph communications ‘ if an offence whose seriousness or particular features justify the interference or an offence committed by means of the telephone is being investigated’ . It is not disputed that in the present case the telephone surveillance was ordered by the competent authority and the procedural rules in LAW StrV were complied with . That telephone surveillance in the initial stage of inquiries is excluded by cantonal law does not follow from LAW , nor has it been demonstrated by the appellant . Depending on the circumstances , telephone interception is often appropriate precisely at the beginning of an investigation . From this point of view there is no indication whatever that the order complained of could have infringed the LAW or that it was made under an arbitrary interpretation of cantonal law .

( c ) There is no need to examine here whether under the wording of Article PERSON StrV telephone surveillance and the other measures regulated thereby are to be strictly confined to investigations of offences already committed , excluding the possibility of preventive surveillance where there is a strong suspicion that offences are about to be committed . Under the sixth paragraph of section CARDINAL subsection CARDINAL of LAW ( Betäubungsmittelgesetz ) a person who takes steps in order to participate in some manner in dealing with drugs , transporting or storing them has already committed an offence . By DATE conduct as reported from GPE , namely his search for finance for a cocaine deal , he had already taken steps as defined above , so that , that being the case , the elements of an offence were already present , and the telephone surveillance ordered related not only to the discovery of planned crimes but also to the investigation of offences which had already been committed .

Moreover , it would not be untenable to interpret LAW by analogy as a legal basis for preventive measures too , where the interference is justified by the seriousness or particular features of the offence which is anticipated . The telephone surveillance ordered in this case on a basis of serious suspicion of a crime was certainly not an abuse of the law .

( a ) The use of so - called undercover agents is not expressly provided for in NORP criminal procedure law , but the dominant opinion is that it is permissible in principle , in so far as the particular nature of the offences is capable of justifying the covert investigative acts and the undercover agent investigates the criminal activity in a predominantly passive manner without using his own influence to arouse willingness to commit the act and induce criminal conduct ... The federal legislature has in section CARDINAL subsection CARDINAL of LAW expressly taken into account the possibility of using an undercover agent in criminal investigations in the field of drug trafficking .

( b ) In the ... public law appeal the permissibility of covert investigation in terms of the rule of law is not denied in general and as a matter of principle , but the view is taken that the use of an undercover agent represents a serious interference with the private life and personal freedom of the person concerned and such an interference is possible in a ORG subject to the rule of law only if founded on a sufficiently precise legal basis ...

Such a requirement of a legal basis for the use of undercover agents has not been discussed as yet in NORP case - law and legal writing , nor expressly acknowledged as a restraint from the point of view of the rule of law . This would be a continuation and extension of the legislature ’s reasons underlying the requirement for statutory regulation of telephone interception and similar investigative measures . While coercive measures in the course of criminal procedure ( such as arrest , house searches , etc . ) clearly interfere against the will of the person concerned with legally protected rights , and surveillance of telephone , postal and telegraph communications without the knowledge of the person concerned interferes in the interests of prosecuting crime with areas of confidentiality which are protected by law , the use of undercover agents is problematic at a somewhat different level : the personal freedom of the person concerned is not restricted , nor does he have to tolerate any other coercive measures , but he comes into contact with a partner who is unknown to him , but with whom he would not have dealings if he knew that he was working for criminal investigation . Where the undercover agent by means of his contacts merely ascertains criminal conduct which would have taken place in the same or similar fashion even without his intervention , the use of an undercover agent is no doubt unobjectionable . On the other hand , it would not be permissible if the undercover agent were to take the initiative , as it were , and provoke criminal activity which would otherwise not have come about at all ; for the prosecuting authorities must not provoke criminality in order to be able to prosecute criminals whose readiness to commit crime , possibly present but latent , would otherwise not have become manifest . If the undercover agent fosters the criminality of the person concerned without it being possible to regard him directly as initiating or inciting , but nevertheless in such a way that it must be assumed that the criminal act would have been of lesser extent and seriousness without the ‘ participation’ of the undercover agent , this is to be taken into account when passing sentence .

ORG investigation does not encroach on a basic right protected by LAW ( or LAW ) . The person concerned is free as regards his decisions and his behaviour towards the undercover agent ; he is , however , deceived as to the identity of his negotiating partner and the latter ’s connection with the police . A criminal is not protected by constitutional law against being observed in the course of his illegal conduct by a police officer who is not recognisable to him as such . Nor can any protection of a criminal against covert investigation be derived from LAW ( Article CARDINAL) ( article CARDINAL) . Whether the investigative methods of undercover agents should because of certain risks of abuse be statutorily regulated , and whether a statutory rule would be likely to counteract any abuses better than is currently done by case - law , is for the legislature to decide . According to current constitutional law and statute law , the use of an undercover agent is permissible within the bounds set by the general principles of the rule of law , without it requiring an express statutory basis . There are other investigative measures too - as for example the constant surveillance of a suspect - which may seriously affect private life and lead to findings which are unwelcome for the person concerned , without it ever having been thought necessary for there to be a statutory basis for such measures .

( c ) If , therefore , as the law stands there is no requirement of a statutory basis for the use of undercover agents , it is not necessary to examine whether section CARDINAL subsection CARDINAL of LAW could be regarded as a sufficient statutory basis in the absence of a corresponding provision in cantonal procedural law . The wording of the subsection shows that it is not an enabling provision of criminal procedure , but a rule of substantive law on the question , which need not be discussed here , as to the circumstances under which acts by an undercover agent which are objectively the elements of an offence are not liable to punishment .

The activity of undercover agent ‘ Toni’ did not go beyond the bounds , described above , of covert investigation acceptable in a ORG governed by the rule of law :

( a ) The investigation of suspected drug offences is often , because of the nature of such offences , possible only by an undercover agent . It is precisely in this sphere that this method proves to be necessary and effective ... Once a report had been received of a definite suspicion that the appellant wished to carry out a substantial cocaine deal , it was not disproportionate to use a police officer to pose as a buyer . This did not involve an arbitrary interpretation of cantonal procedural law , nor was there a breach of a basic right or a human right protected by LAW .

( b ) On the basis of the statements made by the various parties , and assessing the evidence in a reasonable and non - arbitrary fashion , the court below found that Lüdi first mentioned a cocaine deal to ORG and then spontaneously offered ‘ stuff’ to the interested party ‘ Toni’ as well . Although subsequently it was always ‘ Toni’ who contacted PERSON to find out how things were progressing , it does not follow from this that the appellant did not commit an offence . Lüdi of his own accord got in touch with possible suppliers and also tried to find money for drug dealing elsewhere . As he had no telephone number for ‘ Toni’ , he necessarily had to wait for him to ring him . The essential point is that ‘ Toni’ did not act as the instigator , but by posing as a buyer merely made it possible to investigate the appellant ’s activities , which were aimed at a substantial deal in cocaine .

The appeal argues at great length that no account may be taken directly or indirectly of the statements of undercover agent ‘ Toni’ , for the further reason that he was not summoned and heard as a witness ... . If it is recognised that the use of undercover agents is justified in the public interest in fighting as effectively as possible against drug dealing , it follows that the identity and the investigative methods of such agents are not lightly to be given away in criminal proceedings ; for their continued use would thereby effectively be made largely impossible . Preserving the secrecy of undercover agents does not in itself infringe principles of criminal procedure or constitutional rights . It is a matter for the court assessing the evidence to decide what weight can be attached in a particular case to the written statements of an undercover agent who has not appeared before the court , where there are legally relevant facts which are in dispute . The allegations that the appellant carried out preparatory actions which constituted criminal offences have been substantiated by the result of the telephone interception , the appellant ’s own statements and those of the other persons involved . If the court below attributed to the undercover agent a somewhat less active role than that alleged by the appellant in his account of the facts , that was not arbitrary but was based on a tenable assessment of the evidence .

( GPE de droit international , DATE , pp . CARDINAL - CARDINAL and CARDINAL - CARDINAL )

In contrast , in a judgment of DATE , ORG of ORG granted the application for a declaration of nullity . The court said that ORG , when convicting the applicant , had not taken sufficient account of the effect on his behaviour of the actions of the undercover agent , and ORG had not mentioned the outcome of the proceedings brought against the applicant in GPE or the fact that he had no criminal record .

ORG remitted the case to ORG .

On DATE the ORG of that court reduced the sentence to CARDINAL months’ imprisonment , suspended for DATE . It also ordered that the out - patient medical treatment which Mr Lüdi had started while in detention should be continued . As grounds for its decision it cited its concern to take into account the intervention of PERSON , and a psychiatric report stating that the applicant had been under the influence of cocaine at the time of the offences and hence had only limited responsibility .

LAW provides in sections DATE that :

" CARDINAL . Any person who unlawfully cultivates alkaloid plants or hemp in order to obtain drugs ,

any person who unlawfully manufactures , extracts , transforms or processes drugs ,

any person who unlawfully stocks , dispatches , transports , imports or exports them or carries them in transit ,

any person who unlawfully offers , distributes , sells , deals in , procures , prescribes , markets or transfers them ,

any person who unlawfully possesses , holds , purchases or otherwise obtains them ,

any person who takes steps to do so ,

any person who finances unlawful traffic in drugs or serves as intermediary for such financing , and

any person who publicly encourages the consumption of drugs or publicly announces an opportunity for the acquisition or consumption of drugs ,

shall be liable , if he acts intentionally , to imprisonment or a fine . In serious cases the penalty shall be imprisonment for not DATE , which may be accompanied by a fine of MONEY .

A case is serious in particular if the person committing the offence

( a ) knows or must be aware that the offence relates to a quantity of drugs which may endanger the health of a large number of people ;

( b ) acts as a member of a gang formed for the purpose of the unlawful dealing in drugs ;

( c ) obtains a large turnover or a substantial profit by dealing as a business .

" CARDINAL . If an official responsible for the enforcement of this law intentionally commits an offence under sections CARDINAL , the penalty shall be increased as appropriate .

An official who for investigative purposes in person or by the agency of another accepts an offer of drugs or personally or by the agency of another takes possession of drugs shall not be liable to punishment , even if he does not disclose his identity and status . "

Statement of ORG to ORG of CARDINAL DATE relating to an amendment to LAW [ and in particular to the introduction of an amended section CARDINAL ]

The amendment introduced at the end of the sentence is intended to give the court more latitude in determining the sentence where an official responsible for the enforcement of LAW deliberately contravenes that law .

The intention of the draft provisions , which follow on from the present LAW , is to facilitate police investigations in a field where they are particularly difficult . This is a question of allowing the police to enter the environment of dealers and sellers without exposing themselves to criticism for having incited the commission of offences or even having committed them themselves . Illegal drug trafficking has often been cited as a typical example of well - organised international gangs , some of which have been broken up in DATE . The police must be given adequate means for increasing the effectiveness of their campaign against these gangs of traffickers , as ORG asks us to do . Article CARDINAL of LAW ( official duty ) is not sufficient to justify such actions . They must rest on a legal basis in each particular case ( see Prof . PERSON , no . CARDINAL , Fiches juridiques suisses , faits justificatifs ) .

The ORG stated that LAW subsection CARDINAL was regarded by cantonal courts and ORG as permitting only a passive attitude on the part of undercover agents , who incurred criminal liability in the event of instigation or provocation by them . Moreover , the use of such agents could be ordered only in serious cases of organised crime relating to drug trafficking .

ORG has held that the section in question derogates from provisions of cantonal law which may conflict therewith :

" ... it is not necessary for LAW subsection CARDINAL of LAW to have as its purpose the regulation of a procedural point , which the appellant contests ; it is sufficient that the cantonal legislation compromises the anonymity which the federal legislature - whose intentions are not in doubt here , if one considers the extracts from the parliament ’s travaux préparatoires pertinently cited by the cantonal authorities - intended to guarantee to persons pursuing drug dealers .

The anonymity intended by the legislature has CARDINAL purpose only : to allow the investigator to continue his work subsequently to the arrest of the person or persons whom he has exposed and to allow him to carry on several cases at once without the completion of CARDINAL of them terminating his activities in the others . If once an inquiry has been completed the police officer has to disclose his identity and explain in detail the role he has played , it is self- evident that he will have to abandon any further work , as his cover will have been blown in drug - dealing circles . For this reason the observance of ORG DATE of the cantonal Code of Criminal Procedure is in conflict with section CARDINAL subsection CARDINAL of LAW ... " ( ORG , judgment of CARDINAL DATE ) .

LAW Procedure makes provision for various investigative measures :

" The investigating judge may order surveillance of a suspect ’s postal , telephone and telegraphic communications and have his mail seized if an offence whose seriousness or peculiar features justify the interference or an offence committed by means of the telephone is being investigated . "

" CARDINAL . The investigating judge shall within TIME of his decision submit to ORG for approval a duplicate copy of his order together with the case - file and a short statement of reasons .

The order shall remain in force for DATE at most ; the investigating judge may extend it for a maximum of DATE . The extension order is to be submitted to ORG for approval with the case - file and reasons DATE before the expiry of the period .

The investigating judge shall terminate the surveillance as soon as it becomes unnecessary or DATE or if the order is withdrawn . "

Articles CARDINAL and CARDINAL of LAW provide that :

" CARDINAL . A person who intentionally persuades another person to commit an offence shall , if the offence is committed , be liable to the penalty to which the person who commits the offence is liable .

A person who attempts to persuade another person to commit a serious offence shall be liable to the penalty prescribed for the attempted commission of that offence . "

" An act which is ordered by law or by an official or professional duty , or which is stated by law to be permitted or not liable to punishment , shall not be an offence . "


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented by PERSON and PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu .

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

In DATE , the applicant lodged a civil action against the Târgu ORG , company ORG and third parties NORP , PERSON ( private individuals ) , who were seeking to become the owners of CARDINAL sheds constructed by company ORG on her land . The sheds were occupied by the above - mentioned individuals on the basis of a lease contract concluded with ORG . She based her action on LAW and maintained that the competent authority for the application of PERSON CARDINAL/CARDINAL had issued ownership title to the said land in her favour on DATE . She underlined that her ownership right to the land had been confirmed by a final and enforceable decision of the Târgu ORG , rendered on DATE . She also submitted that taking into account that company ORG had acted in good faith when it constructed the sheds on her land , she required the recognition of a property right over the sheds to accompany her obligation to pay compensation to the builder . She based her claim on Articles CARDINAL and CARDINAL of LAW .

NORP The Târgu ORG ordered an expert report which would assess the land and the structures on it and establish their value . The expert concluded that the sheds had been erected on the applicant ’s land DATE before , as a temporary annexe to a building site ; he revealed that their condition had seriously deteriorated and that the period for which they had been intended to be used had long ago expired , and thus concluded that they were worth no more than the raw material used for their construction .

By a judgment of DATE , the court of first instance allowed the action and held that the applicant had a property right over the land , whose value greatly exceeded the value of the structures erected on it . It also held that on the basis of LAW the applicant had become the owner of the structures in her capacity as owner of the land , and that the builder of the structures had the right to obtain their value from the applicant . Moreover , the court noted that the lease contracts concluded by the Târgu ORG with NORP , S. , C. , P. , PERSON were not opposable to the applicant , as neither the company ORG which had built the structures , nor the Târgu ORG which was responsible for them , were owners of the land .

The Gorj County Court dismissed the appeal lodged by the Târgu ORG and company H. as unfounded . It noted that the structures were in an advanced state of disrepair which made them unfit to be used as dwellings by private individuals .

By a final decision of DATE , ORG allowed an appeal on points of law by the Târgu ORG and company ORG and dismissed the applicant ’s action . Admitting that the applicant was the owner of the land on which the disputed sheds had been built , the court of last resort held that the applicant had not proved her right of property over the sheds . It noted that the sheds had been erected in a period when the owner of the land was the ORG and company ORG had the authorisation of the ORG to build . It noted that the structures had been transferred to the Târgu ORG , becoming part of the private sector of the city of PERSON by a decision of the local council of CARDINAL DATE . Therefore , the court reversed the presumption that the owner of the land was the owner of all structures on the land , and recognised the right of the local council over the structures and implicitly the right to use the applicant ’s land on which the structures had been built .

The relevant law and case - law and doctrine regarding the right of superficies and real estate accession are described in PERSON and Palade v. GPE , ( no . CARDINAL , § § CARDINAL , DATE ) , and ORG v. GPE , ( no . CARDINAL , § § DATE , DATE ) .

The Civil Code does not contain any specific provision concerning enrichment without just cause . However , it is unanimously considered in doctrine and case - law that the provisions that should be indicated when referring to it are Articles CARDINAL - CARDINAL of LAW . Enrichment without just cause is defined by doctrine as the legal instrument by which a person obtains any property , service or other benefit from another person without legal cause ; the beneficiary shall indemnify the person at whose expense he has enriched himself to the extent to which he has benefited from his property or work .


CASE OF SULJAGIC v. BOSNIA AND HERZEGOVINA

Preliminary objection dismissed (Article 34 - Victim);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Peaceful enjoyment of possessions;Possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The present case relates to the issue of “ old ” foreign - currency deposits ( foreign currency deposited before the dissolution of ORG – “ the SFRY ” ) .

Until the DATE economic reforms ( the so - called ORG reforms , named after the then Prime Minister PERSON ) , the commercial banking system of the SFRY consisted of self - managed basic and associated banks . Basic banks , founded and nominally controlled by socially owned enterprises , carried on day - to - DATE commercial banking activities . CARDINAL or more basic banks could form an associated bank through a self - management agreement , while preserving their legal personality . In the SFRY , there were CARDINAL basic banks and CARDINAL associated banks ( namely GPE , GPE udružena banka GPE , GPE banka ORG , GPE banka GPE , PERSON banka GPE , GPE banka GPE , GPE banka GPE , GPE banka GPE and PERSON banka ORG ) .

Hard - pressed for hard currency as it was , the SFRY made it attractive for its expatriate workers and other citizens to deposit their foreign currency with commercial banks based in the SFRY : such deposits earned high interest ( the DATE interest rate often exceeded PERCENT ) and were guaranteed by ORG see , for example , section CARDINAL(CARDINAL ) of ORG DATE and section CARDINAL(CARDINAL ) of the PERSON and Other Financial Institutions Act DATE ) .

The Foreign - Currency Transactions Act DATE introduced a system for redepositing of foreign currency by commercial banks with ORG . Although the system was optional , it allowed commercial banks to shift the currency risk to the ORG and practically all foreign currency was thus redeposited . In addition , ORG was required to grant national - currency loans ( initially , interest - free ) to commercial banks to the value of the redeposited foreign currency . It should be underlined , however , that such redepositing was as a rule only a paper transaction , because commercial banks had insufficient liquid funds : it would appear that commercial banks redeposited in total MONEY ( ORG ) , out of which MONEY ( PERCENT ) was actually transferred to ORG ( see PERSON and Others v. GPE [ ORG ] , ORG . CARDINAL/CARDINAL , CARDINAL and CARDINAL , § § DATE and DATE , ORG CARDINAL- ... ; see also decision ORG CARDINAL of ORG DATE , § CARDINAL ) . In DATE the system of redeposits was brought to an end ( see section CARDINAL of ORG DATE , as amended on DATE ) .

Problems resulting from the foreign and domestic debt of the SFRY caused a monetary crisis in DATE . The national economy was on the verge of collapse and the SFRY resorted to emergency measures , such as statutory restrictions on the repayment of foreign - currency deposits ( see section CARDINAL of ORG DATE ) . As a result , foreign - currency deposits were practically frozen .

Within the framework of the ORG reforms , the SFRY abolished the system of basic and associated banks described above . This shift in the banking regulations allowed some basic banks to opt for an independent status , while other basic banks became branches ( without legal personality ) of the associated banks to which they had beforehand belonged .

NORP Some important features of the banking system remained , however , unaffected by the reforms . First of all , commercial banks remained under the regime of “ social ownership ” – a concept which , while it does exist in other countries , was particularly highly developed in the SFRY . Secondly , both commercial banks and the ORG had financial obligations arising from foreign - currency savings : depositors were entitled to collect their deposits at any time , together with accumulated interest , from commercial banks ( see sections CARDINAL and CARDINAL of LAW DATE ) or , in the event of a commercial bank 's “ manifest insolvency ” or bankruptcy , from the State ( see sections CARDINAL(CARDINAL ) and CARDINAL ) of LAW DATE , section CARDINAL of the Banks and Other Financial Institutions Insolvency Act DATE and a decision of ORG of DATE ) .

In DATE the SFRY ceased to exist . It was replaced by CARDINAL successor GPE : GPE , GPE , GPE ( succeeded in DATE by GPE ) , “ the former GPE ” and GPE .

A brutal war started in GPE shortly after its declaration of independence . During the war , GPE took over the statutory guarantee for “ old ” foreign - currency savings from the SFRY ( pursuant to section CARDINAL of LAW DATE ) . Furthermore , the concept of “ social ownership ” was abandoned ( see LAW DATE and ORG DATE ) . As a result , all commercial banks based in GPE were effectively nationalised . While the use of “ old ” foreign - currency savings was allowed in some exceptional situations during the war , it would appear that this possibility remained only theoretical ( see a decision of the Presidency of GPE of DATE and a decision of ORG of DATE ) .

On DATE the General Framework Agreement for Peace in GPE ( “ the GPE Peace Agreement ” ) entered into force . It confirmed the continuation of the legal existence of GPE as a ORG , while modifying its internal structure ( LAW to ORG , named LAW of GPE ” ) . In accordance with LAW , GPE and GPE consists of QUANTITY Entities : ORG and PERSON . ORG failed to resolve ORG in the GPE area , but the parties agreed to a binding arbitration in this regard under ORG rules ( LAW to ORG ) . Meanwhile , the rural parts of the pre - war GPE municipality remained under the control of ORG and the town of GPE under the control of ORG . An arbitral tribunal issued its final award on DATE . It suspended the legal authority of the ORG within the whole territory of the pre - war GPE municipality and transferred all of the Entity powers to the newly - created GPE under the exclusive sovereignty of GPE and international supervision . GPE was formally inaugurated on DATE . Nevertheless , Entity legislation continued to apply in the District until modified by the Supervisor of GPE or ORG . All Entity legislation ceased to have legal effect in LOC DATE .

On DATE ORG assumed full liability for “ old ” foreign - currency savings in locally based commercial banks in order to prepare them for privatisation ( in accordance with section CARDINAL ) of LAW DATE and ORG ) . While withdrawal remained impossible , residents of that Entity were given the possibility of using their “ old ” foreign - currency savings to purchase the ORG - owned flats in which they lived ( where this was indeed the case ) and certain ORG - owned companies ( see section CARDINAL of LAW CARDINAL , as amended on DATE and on DATE ) .

Similarly , the Republika Srpska assumed full liability for “ old ” foreign - currency savings in commercial banks based there ( see section CARDINAL of ORG DATE , as amended on DATE ) . However , unlike in ORG , where the liability shifted simultaneously with respect to all commercial banks , in the Republika Srpska the liability shifted for each commercial bank upon its privatisation . The relevant dates for the CARDINAL main commercial banks with “ old ” foreign - currency deposits , the ORG banka and the PERSON banka , were DATE and DATE respectively . The privatisation process was completed in ORG in respect of commercial banks on DATE . Residents of that Entity were also given the possibility of using their “ old ” foreign - currency savings to purchase the ORG - owned flats in which they lived and certain ORG - owned companies ( see section CARDINAL of LAW DATE ) .

In the course of DATE all commercial banks in LOC were privatised by the Entities through an agreement with the District and with the approval of the Supervisor of Brčko .

Legislation providing for the use of “ old ” foreign - currency savings in the privatisation process had limited appeal and , moreover , led to abuses : an unofficial market emerged on which such savings were sometimes sold for PERCENT of their nominal value . In DATE , in an attempt to remedy the situation , the ORG and the LOC agreed to recompense “ old ” foreign - currency savers in cash and government bonds and set up repayment schemes to this effect . However , pursuant to decision ORG of ORG DATE , the CARDINAL repayment schemes were replaced by CARDINAL for the entire territory of GPE ( see “ Relevant domestic law and practice ” below ) .

The applicant was born in DATE and lives in the vicinity of PERSON , in GPE .

He worked across LOC as a mailman , construction worker and handyman in DATE and deposited foreign currency earned abroad with a basic bank based in GPE , a member of the GPE banka GPE . During the ORG reforms the bank became a separate entity , named PERSON banka . In DATE it was nationalised ( see paragraph CARDINAL above ) and in DATE it was sold to a commercial bank based in GPE banka ) .

After several failed attempts to withdraw his funds , the applicant complained to ORG ( a human - rights body set up under Annex CARDINAL to ORG ) . By a decision of DATE ( decision CH/CARDINAL/CARDINAL et al . ) , ORG , the legal successor of ORG , found the contemporary legislation to be contrary to LAW lack of procedural guarantees ) and LAW No . CARDINAL to the Convention ( on account of the lack of a fair balance between the relevant interests ) . Besides some general measures , it awarded the applicant MONEY ( BAM ) in respect of non - pecuniary damage and legal costs .

On DATE the competent verification agency assessed the amount of the applicant 's “ old ” foreign - currency savings at BAM ORG ( see paragraph CARDINAL below ) .

On DATE the applicant received BAM CARDINAL ( see paragraph CARDINAL below ) . On DATE he received the first instalments of the principal debt and of interest on the bonds , both due on DATE , in the total amount of BAM CARDINAL,CARDINAL.CARDINAL ( see paragraph CARDINAL below ) .

It would appear that the government bonds due on DATE have not yet been issued ( see paragraph CARDINAL below ) and that the second instalment of interest on the bonds , due on DATE , has not yet been paid ( see paragraph CARDINAL below ) .

For the relevant law and practice , see the admissibility decision in GPE v. GPE ( dec . ) , no . CARDINAL , ORG CARDINALXII ; ORG v. GPE ( dec . ) , no . CARDINAL , DATE ; and the judgment in GPE v. GPE , no . CARDINAL , ORG CARDINAL-XII .

Furthermore , ORG DATE entered into force on DATE ( “ the CARDINAL Act ” ) . GPE undertook to recompense original deposits in locally based banks and interest accrued by DATE at the original rate , less any funds already used ( see paragraphs CARDINAL and CARDINAL above ) . Interest accrued from DATE until DATE is to be cancelled and calculated afresh at an DATE rate of PERCENT . The assessment of the amounts due to each claimant is to be carried out under an administrative procedure by verification agencies . The deadline for submitting an application to this effect has been extended on several occasions .

The Constitutional Court of GPE has examined the constitutionality of the provision concerning the reduction of the interest rate to PERCENT for the period from DATE until DATE and considered it to be justified given the overall circumstances , notably the need to reconstruct the national economy following a devastating war ( see decision U CARDINAL/CARDINAL of DATE , § CARDINAL ) .

All claimants that have obtained verification certificates ( see the penultimate sentence of paragraph CARDINAL above ) are entitled to a cash payment of up to BAM CARDINAL,CARDINAL in GPE and LOC and up to BAM CARDINAL,CARDINAL in PERSON . Any remaining amount will then be reimbursed in government bonds .

In accordance with LAW , government bonds were to be issued by DATE . They should be amortised by DATE at the latest and earn interest at an DATE rate of PERCENT . While it had initially been planned to issue ORG bonds through ORG , on DATE PERSON passed its own ORG Act DATE ( “ the RS Act ” ) , cutting the amortisation period for government bonds down to DATE , and issued its own Entity bonds on DATE . On DATE ORG declared LAW constitutional ( decision LAW DATE ) . It decided that the constituent units ( the ORG and the District ) had jurisdiction to regulate the matter of “ old ” foreign - currency savings , provided that they remained within the framework of LAW . Following this decision , ORG refused to issue government bonds only for some constituent units . As a result , ORG and GPE had to issue their own bonds . While LOC did so on DATE , it would appear that bonds have not yet been issued in ORG .

Meanwhile , amortisation plans were adopted on DATE for ORG and on DATE for ORG and GPE . On DATE a new amortisation plan was adopted for GPE which is along the lines of that of DATE .

In the Republika Srpska , bonds are to be amortised by DATE in CARDINAL instalments ( on DATE and CARDINAL DATE from DATE to CARDINAL DATE ) together with interest on the bonds ( at an DATE rate of PERCENT ) . The first CARDINAL instalments were paid , as planned , on DATE , DATE and CARDINAL DATE . In the event of late payment , default interest is to be paid at the statutory rate .

In GPE , bonds are to be amortised by DATE in CARDINAL instalments as follows : PERCENT of the entire debt is to be paid on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE and PERCENT on DATE . Interest on the bonds ( at an DATE rate of PERCENT ) is to be paid on DATE and DATE every year from DATE to DATE . The first instalments of the principal debt and of interest on the bonds ( both due on DATE ) were paid on DATE . It would appear that the instalments due on DATE and DATE have not yet been paid .

Lastly , under the old amortisation plan , the Brčko District paid the first instalments of the principal debt and of interest on the bonds ( both due on DATE ) on DATE and the second instalment of interest on the bonds ( due on DATE ) on DATE . Pursuant to the new plan , bonds are now to be amortised by DATE in CARDINAL instalments as follows : PERCENT of the entire debt is to be paid on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE , PERCENT on DATE and PERCENT on DATE . Interest on the bonds ( at an DATE rate of PERCENT ) is to be paid on DATE and CARDINAL DATE every year from DATE to DATE . The instalment due on CARDINAL DATE has been paid in time . In case of the late payment of any forthcoming instalment , default interest is to be paid at the statutory rate .

NORP Since government bonds are redeemable before their maturity , once issued , they may be traded on ORG . In ORG , their current trade price on ORG is PERCENT of their nominal value . Given that government bonds have been issued in LOC only recently , their trade price on ORG has not yet consolidated . As mentioned above , it would appear that bonds have not yet been issued in GPE .


Violation of Art. 6-1+6-3-c;Non-pecuniary damage - financial award;Costs and expenses (Convention proceedings) - claim dismissed

The applicant was born in DATE and is now serving his sentence in GPE .

On DATE the applicant was arrested on suspicion of having severely beaten a certain Mr D.

On DATE the ORG of LOC found the applicant and his co - defendants guilty of grievous bodily injuries , a criminal offence under LAW ( a ) of LAW . The applicant was sentenced to DATE imprisonment in a correctional colony .

On DATE and DATE the applicant submitted his statements of appeal . He contended that his co - accused had slandered him , that the forensic report had not reflected the facts as established by the trial court and that the investigation had not been sufficiently thorough . He asked that the conviction be quashed and his lawyer , PERSON , be invited to the appeal hearing .

On DATE PERSON submitted her statement of appeal . She pointed to discrepancies between the facts established by the trial court and their description in the judgment and sought re - characterisation of the criminal offence and/or reduction of the sentence .

On DATE the applicant requested the appeal court to examine the case in his absence .

According to the applicant , neither he nor his lawyer was notified of the appeal hearing . According to the Government , on DATE summonses for the appeal hearing were sent to PERSON legal office and to the detention facility where the applicant was held .

On DATE ORG upheld the conviction in respect of the applicant , reduced the sentences for both of his co - accused and attributed a different legal characterisation to the offence committed by CARDINAL of them . The applicant and his lawyer were not present at the appeal hearing , whereas his co - accused were both present and represented . According to the Government , the prosecutor was in attendance and made submissions to the appeal court .

On DATE the applicant received a summons for the hearing before ORG that had taken place on DATE . The summons was dated DATE .

Article CARDINAL of the RSFSR Code of Criminal Procedure of DATE ( the “ CCrP ” , in force at the material time ) provided that persons who had submitted their points of appeal were to be apprised of the date and time of the appeal hearing . If a person had been notified , but failed to appear , the appeal court could hold the hearing in that person ’s absence . Article CARDINAL required that at the beginning of a hearing the presiding judge verify the attendance and the court decide whether to proceed with the hearing .

On DATE the Plenary Session of ORG declared that if the requirements of LAW ORG had not been respected , the appeal hearing was to be adjourned . The examination of a criminal case in the absence of the accused or his counsel , if they had not been notified of the date and time of the appeal hearing , was considered to be a substantial breach of the law on criminal procedure . On DATE the Plenary Session ruled that the appeal court had to verify in each case whether the parties to the proceedings had been notified of the date and time of the appeal hearing , whether their submissions had been sent to the other party and whether the other party had been given an opportunity to comment on them .

On DATE ORG of GPE declared LAW of the ORG incompatible with the LAW to the extent that it allowed appeal courts to reach a final decision on a convicted person ’s appeal if the defendant was absent from the hearing and if he ( she ) had not been provided with an opportunity to study the materials of the hearing and communicate his ( her ) opinion on the issues raised before the appeal court .


HOLDING AND BARNES PLC v. THE UNITED KINGDOM

The applicant , Holding And ORG , is public limited company incorporated in DATE and with a registered office in GPE , GPE . It is represented before the ORG by Mr T. ORG , a solicitor practising in GPE .

The facts of the case , as submitted on behalf of the applicant , may be summarised as follows .

The applicant company is involved in the storage and sale of damaged vehicles . It applied for planning permission to relocate part of its business . On DATE the local authority resolved that it was minded to grant planning permission . However , on DATE the Secretary of ORG for the Environment wrote to the ORG requesting it to direct the application to him under LAW of ORG DATE ( see below ) .

The Secretary of ORG considered that he should exercise his power to “ call - in ” the applicant ’s application because of the nature of the proposed use , the impact it could have on the future economic prosperity of the region , and the proposed site ’s location next to hazardous gas storage installations .

The applicant challenged the Secretary of ORG ’s power to “ call - in ” the application as a breach of LAW , and the case together with CARDINAL others raising a similar issue was heard by ORG on DATE , which found in favour of the applicants . The Secretary of ORG appealed to ORG which held , on DATE , that there had been no breach of LAW . Reversing the decision of ORG , ORG held that , although the Secretary of ORG was not himself an independent and impartial tribunal when dealing with called in or recovered matters , the crucial question under LAW was whether there was sufficient judicial control to ensure determination by such a tribunal subsequently . The jurisprudence of ORG ( in particular , the judgment of the ORG in GPE v. the GPE : see below ) did not require such control to constitute a rehearing on an application by an appeal on the merits . What was required was that there should be a sufficient review by a court satisfying the requirements of independence and impartiality of the legality of the decisions and the procedures followed . The judicial review jurisdiction of ORG constituted such a review ( NORP v. Secretary of ORG , ex parte Holding and ORG , ORG and ORG , [ DATE ] ORG CARDINAL ; [ DATE ] CARDINAL All ER CARDINAL ) .

Following the ORG of Lords’ decision the applicant was forced to abandon part of its relocation plans and substantially to amend its request for planning permission . The Secretary of ORG granted the amended application on DATE .

Under LANGUAGE law , most applications for planning permission are determined by elected local authorities , with the possibility of appeal to an inspector appointed by the Secretary of ORG . However , under LAW of ORG DATE ( “ the DATE LAW ) , the Secretary of ORG has a power to “ call - in ” planning applications for his own determination . The Secretary of ORG has a number of other roles in the field of planning , including the development of policy and the provision of guidance to be taken into account by others determining planning applications and the control of development plans for all areas of the country .

ORG ) ( Departures ) Directions DATE , contained in Circular CARDINAL/CARDINAL , contain guidance on the call - in of applications . LAW advises that the Secretary of ORG will “ maintain his policy of , in general , only calling in for his own determination those applications which raise planning issues of more than local importance ” .

Under section CARDINAL(CARDINAL ) of LAW , before determining a “ called - in ” application , at the request of either the applicant or the local authority , the Secretary of ORG must appoint an inspector to hear oral submissions from both parties . The parties are allowed to call and cross - examine witnesses at these hearings ( ORG ) ( England ) Rules DATE : “ the DATE Rules ” ) . Following such a hearing , the inspector will prepare a report in which he or she sets out his or her conclusions and recommendations . If the Secretary of ORG is inclined to reach a different conclusion because he or she differs from the inspector on any material question of fact or takes into consideration new evidence or new facts , the parties are entitled to be informed before the Secretary of ORG makes a decision , and must be given the opportunity to make written representations or ask for the inquiry to be reopened to assess the new evidence ( DATE Rules , rule CARDINAL ) .

The DATE Act provides in section FAC for judicial review of an order made by the Secretary of ORG following the call - in procedure :

( CARDINAL ) If any person -

( a ) is aggrieved by any order to which this section applies and wishes to question the validity of that order on the grounds -

( i ) that the order is not within the powers of this LAW , or

( ii ) that any of the relevant requirements have not been complied with in relation to that order ; or

( b ) is aggrieved by any action on the part of the Secretary of ORG to which this section applies and wishes to question the validity of that action on the grounds -

( i ) that the action is not within the powers of this LAW , or

( ii ) that any of the relevant requirements have not been complied with in relation to that action ,

he may make an application to ORG under this section . ”

In the ORG of Lords’ judgment in the present case , Lord PERSON of GPE described the scope of judicial review under LAW as follows :

“ It has long been established that if the Secretary of ORG misinterprets the legislation under which he purports to act , or if he takes into account matters irrelevant to his decision or refuses or fails to take account of matters relevant to his decision , or reaches a perverse decision , the court may set his decision aside . Even if he fails to follow necessary procedural steps - failing to give notice of a hearing or to allow an opportunity for evidence to be called or cross - examined , or for representations to be made or to take any step which fairness or natural justice requires , the court may interfere . The legality of the decision and the procedural steps must be subject to sufficient judicial control . ”

Lord PERSON continued that he was further of the view that the court had jurisdiction to quash the Secretary of ORG ’s decision for a misunderstanding or ignorance of an established and relevant fact ( § § CARDINAL and CARDINAL of the judgment ; and see also Lord PERSON at § CARDINAL , Lord PERSON at § CARDINAL and Lord PERSON at § CARDINAL ) .


Violation of Art. 3;No violation of Art. 34;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and lives in GPE . He used to work as a manager of a private building partnership . In DATE the police charged him with embezzlement . They accused the applicant of having fraudulently appropriated a tractor and a tank truck belonging to the partnership .

On DATE , the investigator in charge of the applicant 's case interviewed the applicant and decided to put him in a remand prison . Since the applicant had had a heart condition during the interview , the investigator had to put him in a prison hospital instead .

Diagnosed with a coronary heart disease , the applicant spent DATE in hospital GPE . During this time , he was CARDINAL times examined by a cardiologist and once by a neurologist . The doctors treated the applicant with medicines and made laboratory tests . As soon as the applicant 's condition had stabilised , he was discharged from the hospital .

On DATE , the applicant was relocated to remand prison IZ-CARDINAL/CARDINAL in GPE . The parties ' descriptions of the prison and of the life in it differ .

According to the applicant , prisoners were delivered to the prison in armoured vans . Even though the heat outside reached CARDINAL , each van carried CARDINAL prisoners . The air in the vans was stuffy . Guards clubbed the prisoners and set the dogs on them . The prison building , built in DATE , had never been renovated . Dirt - ﬁlled floors let no air through . Cells were illuminated with QUANTITY ﬁlament lamps , too dim to read by . The prison administration conﬁscated all the medicines the applicant had and gave no replacement .

According to the ORG , the applicant was delivered to the prison in a van that could carry CARDINAL prisoners . The air outside was cool , CARDINAL , and the van carried as few as CARDINAL prisoners . The guards used no clubs or dogs . In CARDINAL–CARDINAL the prison building was renovated : sanitary equipment was replaced , walls were repainted , a forced ventilation system was installed . During the applicant 's stay in the prison , all cells were sufﬁciently lit with ﬁlament lamps . Windows were large enough to read and work by natural light . The temperature and humidity in the cells were within the established norms . The prison had a central continuous supply of potable water from its own artesian well . The quality of the water was routinely inspected by a bacteriological laboratory . Every cell had a cistern of potable water . In addition , DATE at TIME prisoners received boiled drinking water . The applicant always had a separate bed , a mattress , a blanket , CARDINAL sheets , a pillow , and a pillow - case . He could have shower at least once DATE . After each shower , the applicant received fresh bedding and underwear . Prison doctors treated him and gave him necessary medicines . The applicant could not , however , have any medicines of his own .

On his arrival to the prison , the applicant was put in Cell CARDINAL , in which he spent DATE . The parties ' descriptions of this cell differ .

According to the applicant , this cell was in a poor technical condition . Its floor was flooded with excrements .

According to the Government , this cell measured CARDINAL m² . It housed CARDINAL prisoners , even though it was designed to house CARDINAL . There was a doubleglazed window of QUANTITY . The window had a QUANTITY window leaf to ventilate the cell . In CARDINAL corner of the cell there were a toilet and a wash - basin . The toilet was ﬁxed QUANTITY above the floor and could be reached by CARDINAL steps . It was separated from the rest of the cell with a curtain and a tiled wall , CARDINAL high . The toilet had flushing taps and central sewage . The wash - basin provided cold running water .

In TIME of CARDINAL DATE , the applicant was relocated to Cell CARDINAL in which he spent DATE . The parties ' descriptions of this cell differ .

According to the applicant , this cell measured CARDINAL m² . It housed , on average , CARDINAL–CARDINAL prisoners , even though it had CARDINAL beds . The prisoners had to take turns to sleep . Sleeping was impossible because the lights were always on , and because the prisoners listened to music and talked day and night . The windows were covered with metal blinds which let through too little light . No bedding , crockery , or cutlery was available . As the dinner table was small , the prisoners had their meals in shifts , often sharing the crockery with the ill . The food was hardly edible . Cock - roaches , ants , rats , mice , and lice abounded . Hot water supply was limited to QUANTITY a day . The toilet was ﬁxed QUANTITY above the floor , right in front of the guards ' peephole . As the guards were mostly women , using the toilet was a humiliation . The cell was overpopulated , and ﬁve prisoners suffered of dysentery . Therefore , the toilet was always occupied . Once in DATE , a prisoner could spend ﬁve TIME in a shower . Once a day , the prisoners had an TIME - long walk in a small yard on the roof of the building .

According to the Government , this cell measured CARDINAL m² . During the applicant 's stay , the cell on average housed CARDINAL prisoners , even though it was designed to house CARDINAL . There were CARDINAL double - glazed windows of QUANTITY each . Each window had a QUANTITY window leaf to ventilate the cell . In CARDINAL corner of the cell there were a toilet and a wash - basin . The toilet was ﬁxed QUANTITY above the floor . It was separated from the rest of the cell with a tiled wall , CARDINAL high . The toilet had flushing taps and central sewage . The wash - basin provided cold running water . There were no prisoners suffering from dysentery in the cell . Prisoners suffering from intestinal infections , vermin , veneral diseases , and acute tuberculosis were housed apart .

As the applicant 's health had worsened , on DATE he was relocated to a temporary detention unit , and on DATE – back to hospital GPE . He spent DATE in the somatic ward of the hospital . During this period , a cardiologist examined the applicant CARDINAL times and treated him . As soon as the applicant 's condition had stabilised , he was discharged from the hospital .

On DATE , the applicant was returned to the prison and put in Cell CARDINAL where he spent DATE . The parties ' descriptions of this cell differ .

According to the applicant , windows in this cell had no glass . Instead , they were tightly covered with halved metal tubes . Small holes in the tubes let through little light . The cell was located in the basement and had no ventilation . No bedding , crockery , or cutlery was available . The toilet was ﬁxed QUANTITY above the floor . Next to it stood a dinner table . As the cell housed CARDINAL prisoners , the toilet and the table were always occupied , often at the same time . Smokers made non - smokers ' life a misery . Whenever someone fell unconscious , guards dragged him out into the corridor for a breath of fresh air .

According to the Government , this cell was located in the ground floor and measured CARDINAL m² . During the applicant 's stay , the cell on average housed CARDINAL prisoners , even though it was designed to house CARDINAL . There were CARDINAL doubleglazed windows of QUANTITY each . Each window had a QUANTITY window leaf to ventilate the cell . In CARDINAL corner of the cell there were a toilet and a wash - basin . The toilet was ﬁxed QUANTITY above the floor and could be reached by a step . It was separated from the rest of the cell with a tiled wall , CARDINAL high . The toilet had flushing taps and central sewage . The wash - basin provided cold running water .

On DATE , the applicant was taken to the temporary detention unit for interrogation .

On DATE , he was returned to the prison and put in Cell CARDINAL where he spent DATE .

On DATE , the investigating authorities dropped the charges against the applicant under an amnesty law .

On DATE , the applicant was released .

In DATE the applicant left GPE for GPE . The parties ' accounts of the events preceding the departure differ .

On DATE , an investigating ofﬁcer of ORG GPE telephoned the applicant . Without naming himself , the ofﬁcer invited the applicant to an interview concerning a criminal investigation . The applicant was not aware of any investigations .

On DATE , PERSON , a Deputy Director of ORG Department of ORG of GPE , telephoned the applicant . He interrogated the applicant about his application to the ORG . PERSON hinted that the applicant had better withdraw his case from the ORG , or else the police would ﬁnd a pretext for a new criminal case and imprison him again .

On DATE , P. , the Director of ORG , telephoned the applicant and invited him for an interview . During the interview , PERSON ordered the applicant with gestures to speak low because the room was bugged . Afraid to speak , PERSON wrote down all crucial phrases and showed them to the applicant . Such precaution not being enough , PERSON and the applicant continued their conversation in the corridor . PERSON told the applicant that he would start a new criminal case against him , imprison him , and let him languish to death . P. demanded the applicant to withdraw his application from the ORG because it had troubled influential ofﬁcials of LOC .

On DATE , the applicant 's car ran into CARDINAL lorries . The applicant alleges that the accident must have been set up by his persecutors , because the trafﬁc police ignored it .

The accident convinced the applicant that the threats were serious . He and his wife went to GPE , received NORP tourist visas , and left for GPE to seek political asylum .

The applicant had to leave behind his minor daughter , a student , because she had no travel documents . After the applicant 's departure , the police threatened to kill the daughter . She would have joined her parents in GPE , but the parents wished her to ﬁnish the studies . As soon as the daughter had passed her DATE exams , she received a travel passport and on DATE came to GPE .

On an unspeciﬁed date , NORP , the manager of the partnership defrauded by the applicant , requested the police to reinvestigate the applicant 's case . He asserted that the investigation had been superﬁcial , and that the applicant had not made good the damage inflicted to the partnership .

In DATE , PERSON ofﬁcers of ORG Department of ORG of GPE , invited the applicant for an interview in connection with NORP 's allegation . Since the ofﬁcers had failed to record NORP 's oral application formally , their superiors warned them .

The relevant extracts from ORG by ORG for the prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the CPT ” ) read as follows :

“ CARDINAL . Overcrowding is an issue of direct relevance to the ORG 's mandate . All the services and activities within a prison will be adversely affected if it is required to cater for more prisoners than it was designed to accommodate ; the overall quality of life in the establishment will be lowered , perhaps signiﬁcantly . Moreover , the level of overcrowding in a prison , or in a particular part of it , might be such as to be in itself inhuman or degrading from a physical standpoint .

A satisfactory programme of activities ( work , education , sport , etc . ) is of crucial importance for the well - being of prisoners ... [ P]risoners can not simply be left to languish for DATE , possibly DATE , locked up in their cells , and this regardless of how good material conditions might be within the cells . The ORG considers that one should aim at ensuring that prisoners in remand establishments are able to spend a reasonable part of DATE ( TIME or more ) outside their cells , engaged in purposeful activity of a varied nature ...

Speciﬁc mention should be made of outdoor exercise . The requirement that prisoners be allowed TIME of exercise in the open air every day is widely accepted as a basic safeguard ... It is also axiomatic that outdoor exercise facilities should be reasonably spacious ...

Ready access to proper toilet facilities and the maintenance of good standards of hygiene are essential components of a humane environment ...

The ORG would add that it is particularly concerned when it ﬁnds a combination of overcrowding , poor regime activities and inadequate access to toilet / washing facilities in the same establishment . The cumulative effect of such conditions can prove extremely detrimental to prisoners .

It is also very important for prisoners to maintain reasonably good contact with the outside world . Above all , a prisoner must be given the means of safeguarding his relationships with his family and close friends . The guiding principle should be the promotion of contact with the outside world ; any limitations upon such contact should be based exclusively on security concerns of an appreciable nature or resource considerations ... ”

“ CARDINAL . As the ORG pointed out in DATE ORG , prison overcrowding is an issue of direct relevance to the ORG 's mandate ( cf . ORG ( CARDINAL ) CARDINAL , paragraph CARDINAL ) . An overcrowded prison entails cramped and unhygienic accommodation ; a constant lack of privacy ( even when performing such basic tasks as using a sanitary facility ) ; reduced out - of - cell activities , due to demand outstripping the staff and facilities available ; overburdened health - care services ; increased tension and hence more violence between prisoners and between prisoners and staff . This list is far from exhaustive .

The ORG has been led to conclude on CARDINAL occasion that the adverse effects of overcrowding have resulted in inhuman and degrading conditions of detention ... ”

“ CARDINAL . The phenomenon of prison overcrowding continues to blight penitentiary systems across LOC and seriously undermines attempts to improve conditions of detention . The negative effects of prison overcrowding have already been highlighted in previous ORG ...

In a number of countries visited by the ORG , particularly in central and eastern LOC , inmate accommodation often consists of large capacity dormitories which contain all or most of the facilities used by prisoners on a DATE basis , such as sleeping and living areas as well as sanitary facilities . The ORG has objections to the very principle of such accommodation arrangements in closed prisons and those objections are reinforced when , as is frequently the case , the dormitories in question are found to hold prisoners under extremely cramped and insalubrious conditions ... Large - capacity dormitories inevitably imply a lack of privacy for prisoners in their everyday lives ... All these problems are exacerbated when the numbers held go beyond a reasonable occupancy level ; further , in such a situation the excessive burden on communal facilities such as washbasins or lavatories and the insufﬁcient ventilation for so many persons will often lead to deplorable conditions .

The ORG frequently encounters devices , such as metal shutters , slats , or plates ﬁtted to cell windows , which deprive prisoners of access to natural light and prevent fresh air from entering the accommodation . They are a particularly common feature of establishments holding pre - trial prisoners . The ORG fully accepts that speciﬁc security measures designed to prevent the risk of collusion and/or criminal activities may well be required in respect of certain prisoners ... [ E]ven when such measures are required , they should never involve depriving the prisoners concerned of natural light and fresh air . The latter are basic elements of life which every prisoner is entitled to enjoy ... ”


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

On DATE ORG requested the investigating judge to open a judicial investigation against the applicant in connection with the receipt of bribes .

By an additional application dated DATE , the investigation was extended to cover other offences which had come to light in the course of the investigation .

Following numerous investigative measures , the investigation was concluded on DATE and the case was referred to ORG of ORG .

By an order of CARDINAL DATE , ORG decided that there was no call to prosecute the applicant on the basis of the charges brought before the investigating judge in ORG application of DATE . ORG gave the following reasons for its decision :

“ Having regard to ORG application of DATE for an order that it is unnecessary to prosecute [ the applicant ] on a count of bribing public officials ...

The [ relevant ] article of LAW provides that where ORG considers that the relevant actions do not constitute a serious crime or other serious or lesser offence , where the perpetrator remains unknown or where there is insufficient evidence against the accused , it shall declare by an order that there are no grounds for pursuing the action .

ORG notes that the investigation has uncovered cogent evidence that highly suspicious payments were made by various transport companies either to [ the applicant ] himself , who at the material time occupied the post of senior adviser to the government at ORG and was responsible for awarding transport permits to these companies , or to [ the sports club ] of which the accused was chairperson at the material time .

However , the investigation did not gather sufficient evidence to establish all the constituent elements of those corruption offences with which [ the applicant ] was charged by the investigating judge on DATE , and ORG therefore decides to grant ORG applications , which have , moreover , been approved by the investigating judge . ”

On DATE the Advocate - General appealed against this order .

In a judgment of DATE , ORG of ORG set aside the order of CARDINAL DATE and committed the applicant for trial before a criminal division of ORG .

On DATE ORG declared inadmissible an appeal on points of law lodged by the applicant on DATE after delivery of the judgment of DATE .

On DATE ORG summoned the applicant to appear before the criminal court on charges , primarily , of corruption by a public servant and , in the alternative , of intermeddling . Under CARDINAL headings , the summons listed the various offences allegedly committed by the applicant in this connection .

The case was examined at several hearings DATE .

ORG delivered its judgment on DATE . It first dismissed various pleas of nullity and inadmissibility raised by the defence . More specifically , in response to an objection of inadmissibility put forward by the applicant in relation to LAW , the judges expressed their position in the following terms :

“ The accused 's counsel have argued that the reasonable time requirement set out in LAW has not been complied with in the instant case , although the offences with which [ the applicant ] is charged date back DATE .

[ The applicant ] requests that the proceedings against him be declared inadmissible .

Under the terms of LAW of LAW , ' everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ' .

However , neither LAW of the said LAW nor national legislation specifies the inferences that a trial court should draw from a finding by it that a reasonable time has been exceeded .

In particular , the ORG does not provide that the sanction in such an event should consist in the prosecution case being declared inadmissible on the basis of an express finding that the length of the proceedings has been excessive ;

It is for the trial courts to determine , in the light of the specific circumstances , whether the case has been heard within a reasonable time and , if not , to decide what consequences should ensue ;

According to the NORP courts ' established case - law , which has been adopted by the GPE courts , the consequences of a reasonable time being exceeded should be examined , firstly , in terms of the evidence available and , secondly , from the perspective of the criminal penalty which should be attached to the alleged offences ( see PERSON . ORG [ ORG ] , DATE , PERSON , I , p. CARDINAL ; PERSON . ORG , CARDINAL DATE , ORG [ Revue de droit pénal et de criminologie ] DATE , p. CARDINAL ; PERSON [ ORG ] , no . CARDINAL of CARDINAL DATE ) .

It is appropriate to note that , apart from the principle that the institution of proceedings is within the discretion of ORG , our Code of Criminal Procedure permits only the court conducting the investigation to rule that it is unnecessary to prosecute an individual , and then only as specifically provided for by LAW . It follows that , where the trial court finds that a reasonable time has been exceeded , it can not rule that the sentence to be imposed in the event of conviction should be less severe .

Time starts to run from the date on which a person is accused ; depending on the case , this could be the date when the preliminary investigation was opened , the date when the person concerned was charged , or the date of the arrest ( see ORG , DATE , judgment no . CARDINAL/CARDINAL ) .

In the instant case , the offences with which the accused is charged took place DATE . An investigation was begun on DATE . The file was closed by the investigating judge on DATE . ORG held on CARDINAL DATE that there was no case to answer . ORG appealed and on DATE ORG of ORG sent the case back for trial . [ The applicant ] filed an appeal on points of law against that judgment . This appeal was declared inadmissible by decision no . CARDINAL of DATE .

The reasonableness of [ the length of ] in abstracto ( see PERSON , PERSON , ORG pénale , no . CARDINAL , p. CARDINAL , ORG ) . CARDINAL criteria have been established by the case - law of ORG in order to assess whether proceedings have satisfied the ' reasonable time ' requirement , namely the complexity of the case , the conduct of the offender and , finally , the conduct of the national authorities .

The instant case has undoubtedly been of some complexity and has required a painstaking investigation during which international letters of request have had to be issued . As to [ the applicant 's ] conduct , he has , admittedly , not been particularly co - operative , but no dilatory attitude can be attributed to him . As regards the conduct of the national authorities , ORG has decided that GPE are obliged to take all necessary measures to meet the requirement of promptness by their administrations .

In the instant case , the investigation took DATE , which represents an abnormal length of time , even allowing that the offences are of some complexity and that international obligations had to be fulfilled . On the other hand , the trial revealed many shortcomings in the investigation ... and indicated gross negligence , particularly with regard to use of the seized material .

A further DATE expired between the end of the investigation and the date on which the suspect was summoned to appear at a hearing , which represents an abnormally long period even if all judicial remedies had been exhausted following the decision not to prosecute .

It should also be noted that CARDINAL major witnesses have died in the meantime ... ; other witnesses summoned have had difficulties in recollecting the period when the events took place .

In the light of the preceding sequence of events , the court considers that there was a significant lapse of time between the beginning of the investigation and the public hearing , namely DATE . Accordingly , it must be considered that the reasonable time requirement in LAW has not been observed .

The consequence of this [ failure to conduct proceedings within a ] reasonable time is that the suspect has been kept in a state of uncertainty throughout the entire period as to the progress of his case and the outcome of the trial . It is equally regrettable that the memory of numerous witnesses has become unreliable over this period and , in particular , that CARDINAL important witnesses have died .

It follows from the above that the argument that the proceedings have not been conducted within a reasonable time is well - founded . ”

The judges then ruled on the offences with which the applicant had been charged . Of the CARDINAL offences listed in the summons of DATE , they found that CARDINAL had become time - barred and acquitted the applicant on the majority of the other charges . However , they found him guilty of some of the offences listed in the summons under the charge of corruption . As to the sentences to be applied , the judges ruled as follows :

“ Several of the offences ... with which [ the applicant ] is charged coincide . It is therefore appropriate to rule in accordance with LAW .

The [ relevant ] LAW , applicable at the material time , prescribes a penalty of imprisonment of DATE and a fine of CARDINAL .

LAW provides that , where there is a plurality of offences , only the most severe penalty is to be handed down , but that it may even be increased to twice the maximum penalty applicable .

With regard to the penalty to be imposed , it is important to note that corruption is a serious and grave danger to democracy , undermining its very foundation and threatening to discredit it . The moral aspect is particularly important given that , where corruption is unchecked , the principle of equality of treatment for all citizens on the part of those holding authority is flouted in a shocking manner . Consequently , the offence of corruption represents a serious attack on public order . It is also appropriate to emphasise the defendant 's persistent criminal intent .

The ORG considers that , in accordance with the interpretation in previous cases of the inferences to be drawn from failure to observe the reasonable time requirement in LAW above - mentioned LAW [ ORG ] DATE , CARDINAL/CARDINALV MP c / K. , ORG , DATE , p. CARDINAL ) , [ the applicant ] should be given a reduced sentence .

Having regard to the fact that [ the applicant ] has no criminal record , the ORG considers that the offences with which he is charged are adequately punished by a sentence of DATE imprisonment , suspended in its entirety .

In the light of the defendant 's financial situation , the ORG also imposes a fine of MONEY .

In view of the failure to observe the reasonable time requirement , it is no longer appropriate to punish [ the applicant 's ] behaviour through [ deprivation of civil and political rights ] as provided for [ in the ] Criminal Code . ”


No violation of Art. 6-1 with regard to temporal limitation on jurisdiction;No violation of Art. 6-1 with regard to scope of jurisdiction

NORP In DATE PERSON , acting on behalf of his brother PERSON , lodged an application under LAW of DATE on real property in GPE for temporary ownership of CARDINAL plots of land located in GPE Przedmieście Street , GPE , to be awarded to PERSON , the former owner . This application remained unanswered .

On DATE ORG declared that the estate of PERSON had been inherited , pursuant to the relevant provisions of LAW Civil Code , by his wife PERSON for DATE , and by each of his children , PERSON , PERSON , PERSON and ORG , for CARDINAL .

On DATE the second applicant lodged a request with the Governor of GPE for restitution of the CARDINAL plots , indicating that they were listed in ORG under nos . CARDINAL and DATE .

By a decision of CARDINAL DATE the Director of ORG discontinued the administrative proceedings relating to the applicants’ request of DATE .

On DATE ORG quashed the decision to discontinue the proceedings . It stated that it had been established during the proceedings that the plots concerned were situated in GPE . By virtue of the Decree on real property in GPE of DATE , all real property situated in GPE had been expropriated . However , under LAW that decree , former owners had a right to lodge an application for temporary ownership of their plots . The authorities competent to deal with these applications could award temporary ownership if it was established that the plots concerned had not been designated for public use and that the award would not be incompatible with such use . In the ORG case , such an application had been lodged in DATE , but it had remained unanswered . The first - instance administrative authority , when dealing with the applicants’ request of DATE , had overlooked that fact . When reconsidering the case , that authority was required , in particular , to examine whether granting the applicants the right to perpetual use of the plot under ORG of DATE , the provisions of which had replaced the procedural rights afforded to former real - property owners by LAW , would conflict with the public use of the plots concerned , as determined in relevant local land - development plans .

On DATE the Director of ORG refused to return the plots to the applicants and to grant them the right to their perpetual use . He stated that it had been established during the proceedings that in DATE the applicants’ predecessor in title had submitted an application for temporary ownership of the plots , which had then been listed in ORG under entries nos . CARDINAL and DATE . This application had remained unanswered , but the administrative authority had duly examined it in the course of the current proceedings . It was established that the palace built on the plots had been destroyed at PERCENT during the Second World War , as was pointed out in a letter of the Regional Conservator of Historical Monuments of DATE . The palace had subsequently been rebuilt by ORG . Thus it had been ORG which had borne the costs of rebuilding the palace . Accordingly , restitution of the property concerned would have been unjustified , and the administrative authority found no grounds on which the DATE application and the request lodged by the applicants in DATE should be granted .

The applicants lodged an appeal against that decision . They argued that the decision was not in conformity with the applicable laws , in particular as the first - instance authority had failed to establish beyond reasonable doubt that the palace had indeed been destroyed during the Second World War . They also complained that no sound arguments had been advanced in the decision to show that restitution of the property to the applicants would be incompatible with its public use .

On DATE ORG rejected the ORG appeal , finding that it had been lodged DATE after the expiration of the DATE time - limit provided for in LAW .

The applicants filed an appeal with ORG . They argued that the appeal had been posted on DATE , that is on DATE of the time - limit , as was shown by a post - office receipt . The fact that the postmark on the envelope was dated DATE was due exclusively to the incomprehensible negligence of the postal services and could not be held against the applicants .

On DATE ORG quashed the decision appealed against , considering that it was not established that the applicants had lodged their appeal against the decision of DATE outside the time - limit provided for by LAW , in particular because the applicants had submitted the post - office receipt to the court , showing clearly that their appeal had been posted on DATE .

On DATE ORG of GPE , having examined the applicants’ appeal of DATE , upheld the decision of CARDINAL DATE . It pointed out that the administrative authority had established that the property of the applicants’ predecessor - in - title had been designated by relevant land - development plans adopted in DATE , DATE and DATE for use by ORG . That designation had not been changed by any subsequent decision , as was certified by a letter of DATE from the Director of ORG of ORG . The Governor further held that the palace built on the plots had been destroyed at PERCENT during the Second World War , as was certified by a letter of the Regional Conservator of Historical Monuments of DATE . The palace had been rebuilt in DATE by ORG . As it had been ORG that had borne the rebuilding costs , it had acquired ownership of the property concerned . Moreover , at the time when PERSON had lodged the application for temporary ownership , the buildings on the plot had not existed , as they had been destroyed . The administrative authority concluded that , in the light of the above considerations , granting the applicants the right to perpetual use would be unjustified .

On DATE the applicants lodged an appeal with ORG against that judgment , complaining that the impugned decision was not in conformity with applicable substantive law . They first submitted that the decision was in breach of LAW in that the administrative authorities had failed to establish with sufficient clarity that the ORG intentions as to the future use of the palace had not been compatible with the local land - development plan . The applicants emphasised that the authorities had disregarded their argument that they did not plan to alter the public nature of the palace . They had only wanted to reserve a small part of it for their exclusive use , whereas the remainder would be used for cultural and leisure purposes and would be accessible to the general public . Therefore , no issue arose , in fact , regarding the designation of the property for public use as its use was to remain unchanged . Moreover , the authorities had failed to indicate why the restitution of the property to the applicants would be incompatible with its continued public use .

The applicants further stressed that the authorities had failed to establish beyond reasonable doubt that the buildings on the plots had been destroyed during the Second World War and subsequently rebuilt by the ORG , and that they should therefore be considered the ORG ’s property . The findings made in this respect were superficial and based on insufficient evidence . The applicants emphasised in particular that the letter from ORG of Historical Monuments of DATE could not reasonably be regarded as credible , as the conservator operated under the supervision of ORG and thus could not be expected to act against the ministry ’s interests . In view of that flaw , the authorities should have requested a report by an expert on construction technology in order to verify the information in the conservator ’s letter . In conclusion , the applicants requested that the decision under appeal should be set aside and that the case should be re - examined .

The applicants submitted that Articles CARDINAL , DATE , DATE , DATE , QUANTITY , QUANTITY , CARDINAL § CARDINAL , CARDINAL § CARDINAL and QUANTITY of LAW had been breached in the course of the proceedings and that those procedural shortcomings had had a bearing on the outcome of the case .

On an unspecified date a hearing was held before ORG in the appeal proceedings . The applicants’ lawyer submitted that their application of DATE was to be seen both as a reiterated application for temporary ownership , lodged in DATE , and as a new application for restitution of the property concerned and for having a right to perpetual use of the land awarded .

By a judgment of CARDINAL DATE ORG rejected the ORG appeal in so far as it concerned the application for temporary ownership , which had been submitted by PERSON in DATE . In doing so , the court recalled that , pursuant to LAW of DATE , as amended , it was not competent to deal with appeals against administrative decisions given in cases in which proceedings had been instituted before DATE . Accordingly , the court could not review the lawfulness of that part of the contested second - instance administrative decision , given that the relevant proceedings had been instituted in DATE .

In so far as the decision under appeal concerned the applicants’ application of DATE for restitution of their former property and for the right to perpetual use of the land under the provisions of ORG of DATE , ORG first considered that the authorities had failed to show why restitution of the property to the applicants would be incompatible with public use of the plot and the palace , and had therefore breached LAW of LAW , under which an administrative authority , when issuing a decision , was required to point out the facts on which it had relied , to refer to evidence which had served as a basis for its factual findings , and to indicate the grounds on which other evidence had not been considered credible .

The court further considered that despite those procedural shortcomings the decision under appeal had , in any event , been lawful . The court noted that the crux of that part of the case was to assess whether the applicants could , under ORG of DATE , claim to have a right to perpetual use of the plots concerned conferred on them by way of compensation for the expropriation carried out under DATE decree .

The court observed that under section CARDINAL(CARDINAL ) of ORG , a right to perpetual use of land could only be conferred in cases where real property was given back to its former owners . However , that entitlement had been limited to certain categories of real property , namely CARDINAL - family houses or small apartment blocks . The property concerned in the present case did not belong to any of those categories . Moreover , the DATE Act had laid down a time - limit for the submission of such claims , and that limit had expired on DATE . The applicants’ application of CARDINAL DATE to have their former property restored to them and for the right to perpetual use of the property had been lodged outside that time - limit . Accordingly , the restitution could not have been ordered . ORG therefore dismissed the remainder of the ORG appeal .

The Decree of DATE on real property in GPE expropriated real property situated in GPE and transferred ownership to the municipality of GPE .

Pursuant to section ORG ) of ORG of DATE , ownership of property situated in GPE was assigned to ORG .

ORG of DATE re - established local self - government . Pursuant to section QUANTITY ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .

Under LAW decree , former owners had the right to lodge an application for temporary ownership of their plots ( własność czasowa ) . The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use . If they considered that granting temporary ownership to former owners would not be incompatible with public use , a decision could be made in favour of the former owner .

ORG was enacted in DATE . Under section CARDINAL(CARDINAL ) of that Act , former owners of real property were entitled to apply for restitution of property which had been expropriated and to claim the right to perpetual use of the property . However , that entitlement was limited to certain categories of real property , namely CARDINAL - family houses or small apartment blocks . Moreover , this Act laid down a time - limit for such claims . That limit expired on DATE .

The right to perpetual use of land owned by municipalities is regulated in Book CARDINAL of LAW ( Property and other rights in rem , LAW Right to perpetual use ) . It follows from the relevant provisions that this right consists in an entitlement to exclusive use , by a natural or legal person , of land owned by a municipality or by the ORG for DATE against DATE payment of certain rates . A person having such a title can construct buildings on the land , of which he will be the owner . An administrative decision by a municipality to confer the right to perpetual use on a given individual is necessary and sufficient for a final contract to this effect to be concluded between the parties . The contract between the municipality and the perpetual user must be in the form of a notarial deed . A right to perpetual use can be sold or bequeathed .

NORP Under NORP law no special provisions have been enacted whereby redress may be obtained for wrongs relating to expropriations carried out within the framework of the agrarian reforms . There is therefore no specific legal framework to mitigate the effects of certain infringements resulting from the deprivations of property . However , persons whose property was expropriated , or their legal successors , may institute administrative proceedings under LAW , in order to claim that the expropriation decisions should be declared null and void as having been in breach of the laws laying down criteria for expropriation , as applicable at the material time . If it is established that the contested decision was contrary to the legislation applicable at the time of the expropriation , the administrative authority shall declare it null and void . Administrative decisions may ultimately be appealed against in ORG .

Under LAW , in administrative proceedings the competent authorities take all measures necessary to make detailed findings of fact , having due regard to the public interest and to justified individual interests . According to LAW , they are obliged to conduct proceedings in such a manner as to strengthen the confidence which citizens are entitled to have in the ORG authorities .

Article CARDINAL of the Code requires the administrative authorities to ensure that the respective parties to the proceedings have an opportunity to participate actively therein , to adopt , before a decision is given , a position concerning the evidence gathered in the case and other material in the case file , and to submit comments on their own claims .

According to LAW , any lawful material which could serve as a basis for factual findings is admissible as evidence in administrative proceedings . In particular , documents , witnesses’ testimonies , expert reports and inspections may be so admitted . Under LAW , a request to take evidence should be allowed , if the circumstances which are to be established are relevant to the decision to be given .

Article CARDINAL § CARDINAL of LAW , as applicable at the material time , provided that an appeal on points of law against an administrative decision could be lodged with ORG . LAW stated that the court should set the decision aside wholly or in part if it established that the decision was in breach of substantive law or that the proceedings leading to the decision had contained a flaw which made the decision null and void , or that procedural shortcomings in the proceedings were such as to justify the re - opening of the latter .