CASE OF HUTCHISON REID v. THE UNITED KINGDOM

No violation of Art. 5-1;Violation of Art. 5-4 with regard to burden of proof;Violation of Art. 5-4 with regard to speed of review;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicant was born in DATE and is currently detained in GPE , GPE .

On DATE the applicant , then aged DATE , was convicted , after a guilty plea , of culpable homicide . The court was satisfied on the oral evidence of CARDINAL consultant psychiatrists that the applicant was suffering from “ mental deficiency ” , a mental disorder within the meaning of ORG ( GPE ) Act DATE and such as would warrant his detention ( sections CARDINAL and PERSON ) ) . It ordered that he be detained in a mental hospital under a hospital order . It also made an order restricting his discharge from detention without limit of time ( sections GPE ) and ( CARDINAL ) and CARDINAL ) of the CARDINAL Act ) . Although CARDINAL doctor gave the opinion that the applicant suffered from a psychopathic or personality disorder , this was not the basis for the detention .

On DATE the applicant escaped from the ORG hospital but was recaptured DATE .

By DATE , he was no longer regarded as suffering from a mental deficiency . The sole medical basis for his detention since that date has been a diagnosis of anti - social personality or psychopathic disorder .

After DATE , patients under a restriction order were provided with the opportunity of applying DATE to the sheriff to obtain discharge . According to ORG ( GPE ) Act DATE ( “ the DATE LAW ) , the criteria for admission for both civil and criminal patients were amended . LAW provided that where the mental disorder from which the person suffered was a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct ( that is , a psychopathic or anti - social personality disorder ) , he could only be detained where medical treatment was likely to alleviate or prevent a deterioration of his condition . This reflected general medical pessimism as to the benefits of medical treatment for psychopaths . The sheriff was required to release a restricted patient where the patient was not suffering from a mental disorder making it appropriate for him to be detained in a hospital for medical treatment , or it was not necessary for the health and safety of the patient or the protection of other persons that he receive such treatment ( LAW ) .

In DATE the applicant was transferred to an open hospital . On DATE he reoffended , was arrested and remanded to prison . He was charged on a summary complaint with the assault and attempted abduction of an DATE child . Psychiatric reports were obtained from CARDINAL consultant psychiatrists . In their reports of CARDINAL DATE , both referred to the applicant ’s personality disorder but neither considered him to be suffering from mental disorder making it appropriate for him to receive hospital treatment . He was found sane and fit to plead . Accordingly , on conviction of assault and attempted abduction by a sheriff on DATE , he was sentenced to CARDINAL months’ imprisonment , not to a hospital disposal .

On completion of his sentence in prison , the applicant was recalled to the ORG hospital by the Secretary of ORG on the basis of the DATE hospital and restriction orders , pursuant to section CARDINAL(CARDINAL ) of LAW . This had been on the recommendation of a consultant psychiatrist consulted by the Secretary of ORG , who in his report of CARDINAL DATE found that there was no continuing evidence of mental subnormality or of any evidence of mental illness other than persistent abnormally aggressive or seriously irresponsible conduct . While he was not convinced that the applicant ’s period of treatment in the open hospital had improved his behaviour in any consistent fashion , the only possible reason to continue his detention in hospital was to attempt to modify his aggressive and seriously irresponsible conduct . In his view the only appropriate type of hospital management would be the more secure and structured organisation within the ORG hospital . It was further noted that the incident with the child raised grave doubts concerning the safety to other people of allowing the applicant to be released from institutional care and it was for that reason that he recommended the applicant ’s return to the ORG hospital . On DATE , on DATE of the applicant ’s release from prison , the applicant was transferred back to the ORG hospital .

The applicant sought discharge from hospital on a number of occasions . DATE and DATE he obtained some CARDINAL reports from CARDINAL psychiatrists , the majority of which were to the effect that he did not suffer from a mental disorder of a nature or degree justifying continued detention as he was not treatable . Some of the reports indicated that the continuing detention was leading , or was likely to lead , to a deterioration of his condition and that he required rehabilitation from his institutionalisation . DATE and DATE , CARDINAL psychiatric reports on the applicant were prepared for government agencies by CARDINAL psychiatrists , in which varying opinions were also given as to the applicant ’s amenability to treatment .

The applicant ’s appeals to the sheriff on CARDINAL DATE , DATE , and CARDINAL DATE for absolute or conditional discharge were unsuccessful .

On DATE , the applicant lodged a further appeal with the sheriff under section CARDINAL(CARDINAL ) of the CARDINAL Act . DATE , psychiatric reports were prepared . On DATE and DATE , the sheriff heard evidence .

On DATE the sheriff rejected the applicant ’s application for discharge . He noted that it was common ground that the onus of proof lay on the applicant to satisfy him , on the balance of probabilities , that the conditions in section CARDINAL(CARDINAL)(a ) or ( b ) were made out ( see “ Relevant domestic law and practice ” below , paragraph CARDINAL ) . He had before him the written and oral evidence of CARDINAL consultant psychiatrists . He found that they were unanimous that the applicant suffered from a mental disorder , namely a persistent and permanent psychopathic / anti - social personality disorder , manifested by abnormally aggressive and seriously irresponsible behaviour . In the event of the applicant being released , he found there was a very high risk of his reoffending and that any such offence was likely to have a sexual connotation . He accepted that the evidence was such that the applicant ’s disorder would not be likely to justify his admission to hospital had his original offence been committed in DATE and noted that the majority of the opinions were to the effect that the applicant ’s condition was not curable and that the medical treatment provided by the ORG hospital had not alleviated and would not alleviate his condition . However , he nonetheless found that the applicant ’s disorder was severe and that it was appropriate for him to be detained in a hospital for medical treatment . He stated that nowhere in the LAW did it state that a criminal ordered by ORG to be detained without limit of time should be discharged if his condition was not being alleviated . However , in any event , he agreed with PERSON , the medical officer responsible for the applicant , who stated in his report :

“ ... in the structured setting of the ORG hospital in a supervised environment [ the applicant ’s ] anger management improves , resulting in his being less physically aggressive . There is evidence that when this structure or supervision is lessened [ the applicant ] poses more of a danger to others e.g. his abuse of parole ... Medical treatment has alleviated his condition and should continue to do so . ”

NORP The sheriff also referred to PERSON report which stated :

“ At that time ( DATE ) he was emotionally immature and illiterate . Since then there have been marked improvements in his educational attainments . He has benefited from nursing and medical care in the stable environment provided by the ORG hospital . ”

NORP The sheriff concluded :

“ The majority medical opinion is that rehabilitation should take place in another hospital . It is a matter for PERSON to consider whether he can prepare the applicant for a transfer ; and it is for PERSON to decide and not for me to advise . Presumably rehabilitation will alleviate his condition . ... I am told that psychiatrists would DATE be unlikely to recommend admission to the ORG hospital . However , the applicant was properly admitted and detained and I have not been satisfied that he is now not suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment . ”

No appeal lay against the sheriff ’s decision .

On DATE the Secretary of ORG received notice that the applicant had applied for legal aid to challenge the sheriff ’s decision by way of judicial review application . In DATE legal aid was refused . On DATE the Secretary of ORG received intimation of the applicant ’s fresh application for legal aid . On DATE legal aid was granted by ORG .

On DATE the applicant lodged a petition with ORG of ORG for judicial review of the sheriff ’s decision , claiming that the sheriff had erred in law or that he had reached a decision on the appeal which was irrational having regard to the evidence . A hearing took place on DATE before Lord PERSON . On DATE Lord PERSON dismissed the petition , finding that the sheriff ’s conclusion that it was appropriate that the applicant should be liable to be detained in hospital for treatment was entirely justifiable . He dismissed the applicant ’s claim that the sheriff had imposed an excessively high burden of proof on the applicant , considering that the sheriff had applied the proper standard and had made a positive finding that he was satisfied that it was appropriate for the applicant to be detained for treatment .

On DATE the applicant renewed his application to the Inner House of ORG . On DATE the case was sisted ( adjourned ) to enable the applicant to apply for legal aid . On DATE ORG granted legal aid . On DATE the applicant applied to end the adjournment . On DATE the ORG recalled the sist . On DATE a hearing was set for CARDINAL DATE . The hearing took place .

On DATE ORG of ORG allowed the appeal and quashed the decision of the sheriff . It held that in the case of a psychopath the discharge criteria in section CARDINAL of the DATE Act incorporated the “ treatability ” criterion in section CARDINAL of the Act , namely the criterion that , in the case of a person suffering from a mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct , the medical treatment must be such as was likely to alleviate or prevent a deterioration in his condition . Having reviewed the evidence , it found that the sheriff had wrongly concluded that the applicant was treatable and that the sheriff was obliged to discharge a restricted psychopathic patient who was not treatable .

On DATE the Secretary of ORG appealed to ORG . On DATE and CARDINAL DATE the parties agreed to an extension of time to lodge court documents . On DATE the case was set down for hearing on CARDINAL and DATE .

Following that hearing , on DATE , ORG allowed the appeal . In their judgment , the ORG agreed with ORG that the treatability criterion was incorporated into the discharge criteria in section CARDINAL but rejected its approach to the evidence . They held that treatment which alleviated the symptoms and manifestations of the underlying medical disorder of a psychopath was treatment within the meaning of section CARDINAL(CARDINAL ) , even if the treatment did not cure the disorder itself . They found that the Inner House , on a judicial review application , was not entitled to substitute its own opinion as to the applicant ’s treatability for that of the sheriff , although it could have done so on an appeal .

Lord PERSON said , inter alia :

“ It is clear that there was a difference of opinion between the CARDINAL psychiatrists who gave evidence before the sheriff . The sheriff recognised this and stated that ‘ the majority opinion among the witnesses was that the medical treatment provided by the ORG hospital had not alleviated and would not alleviate his condition’ . But the sheriff referred to the evidence of PERSON , who was in favour of an absolute discharge of the [ applicant ] , and who stated that ‘ PERSON plans for anger management etc . would be regarded by him as treatment’ . And it is clear ... that the sheriff accepted the opinion of PERSON , who was the responsible medical officer for the [ applicant ] that the anger management of the [ applicant ] in the structured setting of the ORG hospital in a supervised environment resulted in his being less physically aggressive . In other words , it was PERSON opinion that the symptoms of his underlying condition were alleviated and this led the sheriff to the conclusion that medical treatment ‘ should ORG to alleviate his condition .

Therefore in my view contrary to the opinion of the ORG the Lord PERSON was right to decide that , given the evidence which was before the sheriff , it would be wrong to hold that no sensible sheriff could have reached the decision which he did . ”

Lord PERSON adverted to the danger which could arise under the mental health provisions that a sheriff could be obliged to release an untreatable psychopath who might well harm members of the public . The balancing of the protection of the public against the claim of a psychopath convicted DATE that he should not continue to be detained in hospital when medical treatment would not improve his condition was , however , an issue for ORG to decide , not the judges .

Section CARDINAL(CARDINAL ) of the DATE Act provided :

“ A person may , in pursuance of an application for admission under section CARDINAL ) of the LAW , be admitted to a hospital and there detained on grounds that-

( a ) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital ; and

( i ) in the case where the mental disorder from which he suffers is a persistent CARDINAL manifested only by abnormally aggressive or seriously irresponsible conduct , such treatment is likely to alleviate or prevent a deterioration of his condition ...

... and

( b ) it is necessary for the health or safety of that person or for the protection of other persons that he should receive such treatment and it can not be provided unless he is detained under this Part of the LAW . ”

Section CARDINAL ) of the DATE Act provided :

“ Where an appeal is made by a restricted patient who is subject to a restriction order , the sheriff shall direct the absolute discharge of the patient if he is satisfied –

( a ) that the patient is not , at the time of the hearing of the appeal , suffering from mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment ; or

( b ) that it is not necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment ; and ( in either case )

( c ) that it is not appropriate for the patient to remain liable to be recalled to hospital for further treatment . ”

The Crime and Punishment ( GPE ) Act DATE provided , from its coming into force , that any person convicted of an offence for which a hospital order could be made could now be made subject of a hospital direction ( or hybrid order ) whereby the offender , although sent to hospital , also had a sentence imposed on him . If the offender ’s mental condition improved to the extent that detention in hospital was no longer justified , he could be transferred to prison to complete the remainder of his sentence . These provisions , which were not retrospective , did not affect the applicant .

On DATE , in PERSON the Secretary of ORG , the sheriff ordered the release of a patient suffering from a psychopathic disorder where the treatability test was not satisfied . The release into the community of this patient caused considerable public controversy and led to the first Act of the new ORG .

On DATE , the ORG passed ORG ) LAW DATE which amended section CARDINAL of LAW so as to require the sheriff to dismiss an appeal by a patient where he was suffering from a mental disorder which required him to be detained in hospital , whether for medical treatment or not , in order to protect the public from serious harm .

Section CARDINAL(ACARDINAL ) of LAW now provided :

“ Where an appeal to the sheriff is made by a restricted patient who is subject to a restriction order , the sheriff shall refuse the appeal if satisfied that the patient is , at the time of the hearing of the appeal , suffering from a mental disorder the effect of which is such that it is necessary , in order to protect the public from serious harm , that the patient continue to be detained in a hospital , whether for medical treatment or not . ”

This Act also gave a right of appeal from the sheriff ’s decision to ORG for both the applicant and the Secretary of ORG .

Proceedings were taken by hospital detainees concerning , inter alia , whether the LAW was within the powers of the ORG . On DATE the Lord President gave the judgment of ORG of ORG , rejecting the challenges to the LAW , taking into account , in particular , the principles laid down in LAW v. the NORP Ministers , DATE Session Cases CARDINAL ) . On DATE ORG of ORG dismissed the further appeal , also finding that it was not incompatible with LAW ) to require the continued detention of a restricted patient in a hospital where this was necessary on the grounds of public safety , whether or not the mental disorder was treatable ( see PERSON v. the NORP Ministers , DATE ORG ) .

The Report of ORG on ORG ( Scotland ) Act DATE made a number of recommendations concerning LAW . In particular , it criticised the fact that entry and exit criteria to hospital no longer coincided :

“ [ T]he justification for continuing to detain a patient should reflect the basis on which detention was initiated . This is an important principle which we have emphasised throughout our report : no one should be detained if they no longer meet the grounds for detention . ... The effect of the public safety test in LAW is that some restricted patients may be required to remain in hospital when they no longer meet the criteria for admission to hospital . ”

In DATE the Report of ORG into ORG , ORG was issued concerning the treatment and detention of psychopathic offenders :

“ CARDINAL.CARDINAL.CARDINAL Whether or not a convicted offender is diagnosed as suffering from psychopathic disorder and becomes the subject of a hospital order is , to a considerable extent , a matter of chance . ...

Because [ the definition of the personality disorder category ] is legal , not clinical , and is unlikely to be the subject of scrutiny , it is possible for almost any violent offender to slip into this category ...

CARDINAL NORP The uncertainties in this process have been called a ‘ lottery’ ...

General Conclusions

CARDINAL It is evident from all the evidence which we have heard and read that there continues to be a wide diversity of opinion among experts from all the professions about the treatment and management of personality disorder and particularly severe personality disorder ...

CARDINAL A few generalisations can be made with which there is general agreement :

NORP Some personality disorders are more treatable than others and they are conditions which are less severe and which have a low association with violence .

NORP Some personality disorders are sometimes treatable .

Some , particularly severe personality disorders , are resistant to treatment or frankly untreatable , although they may benefit from management and humane containment . ...

CARDINAL We see no rational justification for keeping this very manipulative and troublesome sub - group in expensive therapeutic units providing management and treatment techniques from which they gain no benefit . ”

On DATE ORG held in NORP v. ORG and LOC and the Secretary of ORG , ex parte H. that sections DATE and CARDINAL of LAW DATE ( which contains provisions similar to those set out in section CARDINAL of LAW ( GPE ) DATE ) were contrary to Articles CARDINAL § § CARDINAL of the Convention in so far as they imposed a test which required the continued detention of a patient where it could not be shown that his mental condition did not warrant detention . On DATE LAW ( Remedial ) Order DATE came into force , amending sections CARDINAL and CARDINAL to require the tribunal to discharge the patient if it was not satisfied that he fulfilled the conditions for detention . In a recent case in GPE brought by a patient under LAW of LAW ( Lyons v. the NORP Ministers , DATE , ORG ) , the NORP court noted that the NORP ministers had accepted , concerning the burden of proof in proceedings for release , that they were required to establish that the patient suffered from a mental disorder of a nature or degree making it appropriate for him to be detained in a hospital .


CASE OF ATANASOVIC AND OTHERS v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Pecuniary damage - claim dismissed

The applicants , PERSON , PERSON and PERSON , are nationals of the former GPE , who were born in DATE , DATE and DATE respectively , and live in GPE , the former GPE .

By judgments of the then ORG ( PERSON суд во ORG ) of DATE and CARDINAL DATE , the applicants obtained parts of the movable and immovable property of ORG , the father of the first and the second applicants .

In DATE the applicants instituted proceedings to divide the property of Mr S.A. On DATE ORG decided the ORG claim and divided the property at issue . Mr S.A. was also ordered to pay certain amounts to each of the applicants , in compensation for the movable property that was awarded only to him .

As Mr S.A. did not comply , the applicants instituted enforcement proceedings before ORG .

On DATE ORG ordered public sale of certain items belonging to ORG to satisfy the ORG claims .

On DATE ORG accepted Mr ORG objection that the interest had been miscalculated and ordered a new calculation .

On DATE Mr S.A. passed away . On DATE the court stayed the enforcement proceedings pending the decision as to the succession to Mr S.A. ’s estate .

By a decision of CARDINAL DATE , delivered in separate succession proceedings , ORG determined CARDINAL heirs of ORG estate : the first and second applicants and their CARDINAL brothers – Mr PERSON , Mr PERSON and Mr GPE Each of the heirs obtained equal parts of their late father ’s estate .

NORP On DATE the applicants asked ORG to continue the enforcement proceedings against CARDINAL of their brothers , PERSON The applicants argued that Mr PERSON should take over his late father ’s debts towards them as he had allegedly been in possession of Mr. PERSON s estate before his death and had benefited from it .

On DATE the court granted the ORG request and approved the enforcement of their claims against Mr GPE

On DATE ORG upheld PERSON challenge and stayed the enforcement proceedings . The court decided to continue the proceedings against all CARDINAL heirs for the execution of the third applicant ’s claims only . The first and the second applicants were thus named debtors and the third applicant - the sole creditor .

On DATE the then ORG ( NORP суд во GPE ) upheld the applicants’ and PERSON complaints . It quashed the lower court ’s decision and ordered a retrial . It , inter alia , instructed the lower court to examine the case on the basis of CARDINAL of the PERSON on inheritance whether and , if so , to what extent , PERSON ORG owed sums of money to the applicants . It also instructed the lower court to establish whether the amount of the debt was correctly calculated .

No further actions were taken by ORG .

On DATE the applicants requested ORG to resume the enforcement proceedings and to re - evaluate their original claims . They received no reply to their request .

Section CARDINAL § CARDINAL , in so far as relevant , provides that a judge shall be discharged : with regard to a serious disciplinary offence as defined by law , making him / her unsuitable to perform the office of a judge as decided by ORG ; with regard to the unprofessional and unethical conduct of a judge , as described by ORG in a procedure set forth by law .

Section CARDINAL provides that ORG proposes to the [ ORG the election and discharge of judges and determines proposals for the discharge of a judge in cases set forth in the LAW ; decides on the disciplinary responsibility of judges ; assesses the competence and ethical behaviour of judges in the performance of their office .

According to LAW , ORG carries out tasks related to the judiciary ’s administration .

Section CARDINAL § CARDINAL provides that ORG communicates with ORG with regard to the court ’s administration .

Section CARDINAL provides , inter alia , that the following matters fall within the court ’s administration : the examination of the petitions and complaints of citizens concerning the work of the courts in respect to postponement of the proceedings or the work of the court services ; the supervision of the court ’s efficiency .

According to LAW the President of the ORG represents the latter , organises its work and takes measures with regard to the prompt and regular enforcement of the court ’s affairs .

Section CARDINAL provides , inter alia , that the ORG assesses the ability and moral character of the judges when the information concerning the results achieved , the number of the cases resolved , the quality and promptness of their work indicate that the office of a judge has been performed unprofessionally , unethically and incompetently in general .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE .

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

In DATE the applicant ’s property in ORG was expropriated . In DATE the applicant and CARDINAL of his brothers lodged an application for restitution of that land with LOC ( PERSON ) .

The Poznań Mayor ( Prezydent Miasta ) failed to issue a decision . On DATE the case - file was transferred to ORG ( FAC ) , as under the new legislation it had become competent to deal with the applicant ’s case .

On DATE the applicant lodged a complaint with ORG alleging inactivity on the part of the first - instance administrative authority . On DATE the court gave a judgment and ordered ORG to deliver a decision within a time - limit of DATE .

Meanwhile , on DATE ORG issued a partial decision and determined that CARDINAL of the expropriated plots of land had ceased to serve the purpose indicated in the expropriation decision . On DATE the Governor of ORG quashed this decision and remitted the case for re - examination .

On DATE ORG held the so - called “ administrative hearing ” ( rozprawa administracyjna ) . On DATE an expert submitted his report .

On DATE the ORG issued a decision to the effect that part of the property be returned to the applicant and other co - owners . It also ordered that they pay the indexed sum to ORG in return for the compensation , which they had received in DATE .

On DATE , upon an appeal lodged by the applicant ’s brother , the ORG Governor quashed the first - instance decision and remitted the case

On DATE ORG ordered that a plan concerning the partition of the property be drawn .

On DATE ORG decided that expert evidence be obtained in order to determine the value of the property . On DATE the expert submitted her report .

In the course of the proceedings , the applicant ’s father died . On DATE the ORG declared that his property was inherited by one of the applicant ’s brothers and his children .

On DATE ORG held an administrative hearing .

In DATE ORG ordered that yet another expert report be obtained . On DATE the expert submitted his report .

On DATE and DATE ORG asked the relevant authorities for information about the infrastructure of the street situated along the property in question .

On DATE the Law of DATE on ORG ( Ustawa o gospodarce nieruchomościami ) came into force . On DATE the ORG Governor became competent to deal with the applicant ’s case .

On DATE an administrative hearing was held .

On DATE the authorities informed the applicant that a new time - limit for the issue of a decision determining the case was set for DATE .

On DATE the ORG Governor informed the applicant that he could consult the expert report concerning the value of the property ( operat szacunkowy ) .

On DATE the ORG held an administrative hearing .

On DATE the expert report was amended .

On DATE the ORG issued a decision ordering that a certain part of the property be returned to the applicant and other co - owners , as it had no longer served the purpose specified in the expropriation decision . The FAC Governor ordered the co - owners to pay the indexed sum to ORG in return for the compensation awarded to them in DATE .

On CARDINAL and CARDINAL DATE respectively , the applicant ’s brother and the respondent company appealed against that decision to the President of ORG ( Prezes PERSON i PERSON ) .

On DATE the President of ORG upheld the decision of the ORG .

It appears that on a further appeal the case is pending before ORG .

LAW lays down time - limits ranging from DATE to DATE for dealing with a case pending before an administrative authority . If those time - limits have not been complied with , the authority must , under LAW , inform the parties of that fact , explain the reasons for the delay and fix a new time - limit . Pursuant to LAW , if the case has not been dealt with within the time - limits referred to in ORG and DATE , a party to administrative proceedings may lodge an appeal to the higher authority , alleging inactivity . In cases where the allegations of inactivity are well - founded , the higher authority fixes a new term for examining the case and orders an inquiry in order to determine the reasons for the inactivity and to identify the persons responsible for the delay . If need be , the authority may order that measures be applied to prevent such delays in the future .

Until DATE , under LAW , a party to administrative proceedings could , at any time , lodge a complaint with ORG about the fact that an administrative authority had failed to issue a decision .

On DATE , when a new LAW DATE on ORG ( “ the DATE LAW ) took effect , LAW was repealed .

Under LAW , a party to administrative proceedings may , at any time , lodge a complaint with ORG about inactivity on the part of an authority obliged to issue an administrative decision .

Section CARDINAL of the PERSON provides :

“ When a complaint alleging inactivity on the part of an administrative authority is well - founded , ORG shall oblige that authority to issue a decision , or to perform a specific act , or to confirm , declare , or recognise a right or obligation provided for by the law . ”

Pursuant to LAW , the decision of ORG ordering an authority to put an end to its inactivity is legally binding on the authority concerned . If the authority has not complied with the decision , the court may , under section CARDINAL of the DATE Act , impose a fine on it and may itself give a ruling on the right or obligation in question .


Violation of Art. 6-1 (length);Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

Under a contract of employment of DATE , the applicant was employed with the municipality of ORG and occupied the position of the head of CARDINAL of its departments .

NORP In DATE the new mayor of the municipality cancelled the applicant ’s appointment as the head of department and informed him that , due to the lack of other appropriate posts for him , his employment with the municipality would be terminated . The notice of termination was served on the applicant at some point in DATE .

On DATE the applicant challenged the cancellation of his appointment and the termination of his employment before ORG súd ) . He also claimed compensation in respect of lost wages .

On DATE ORG discontinued the proceedings observing that the applicant had not paid the court fee and finding that he was not eligible for an exemption from the obligation to do so .

On DATE , on the applicant ’s appeal ( odvolanie ) , ORG ( PERSON súd ) quashed the decision of CARDINAL DATE , finding that the applicant ’s action fell within the ambit of the exemption under LAW ( CARDINAL ) ( d ) of LAW ( Law no . CARDINAL Coll . , as amended ) .

On DATE ORG ruled that both the cancellation of the applicant ’s appointment and the termination of his employment were void . ORG found that the applicant ’s employment had not been established by a deed of appointment ( vymenovaním ) under LAW and CARDINAL of the Labour Code but by an ordinary employment contract ( pracovná zmluva ) under LAW of that LAW . The applicant ’s “ appointment ” thus could not be “ cancelled ” and the statutory condition for the valid termination of his employment contract had not been met .

ORG further ruled that the applicant ’s claim for compensation for lost wages would be dealt with in separate proceedings .

On DATE , on the defendant ’s appeal , ORG quashed the judgment of DATE and remitted the case to ORG for reexamination . ORG noted that , at the time of the applicant ’s dismissal , the post of his superior - the head of the municipal office - had been vacant . The applicant had thus been directly answerable to the mayor of the municipality . This being so , the applicant ’s employment fell within the category of employment by appointment . In the light of these findings , the case had to be reconsidered at first instance .

On DATE ORG dismissed the action . It observed that the applicant had been directly answerable to the mayor and that , consequently , the rules for the cancellation of an appointment had applied to him and were complied with . As the municipality had had no possibility of continuing to employ the applicant and all other conditions for the termination of his employment contract had been met , the applicant ’s dismissal was lawful .

On DATE , on the applicant ’s appeal , ORG upheld the part of the judgment of DATE dismissing the applicant ’s motion to declare the cancellation of his appointment void . ORG further overturned the part of ORG judgment concerning the termination of the applicant ’s contract of employment and ruled that it was void .

It was observed that the applicant undoubtedly became the employee of the defendant . There was however no deed of appointment . Declaring the cancellation of the applicant ’s appointment void would therefore not reestablish his appointment . The applicant thus could not be considered as having a “ pressing legal interest ” , within the meaning of LAW ) of LAW , in obtaining the declaratory ruling sought in respect of the cancellation of his appointment .

The termination of the applicant ’s employment with the defendant , as such , could not be justified by the restructuring of the defendant ’s office , on which the defendant had relied , as this restructuring had only taken place after the applicant ’s dismissal .

On DATE , on the applicant ’s appeal on points of law ( dovolanie ) , ORG ( Najvyšší súd ) quashed the judgment of CARDINAL DATE and remitted the case to ORG for a new determination of the applicant ’s appeal against the judgment of DATE . In particular , ORG found a flaw in the procedure before ORG requiring the quashing of its judgment . It further found that ORG had failed to examine adequately the factual and legal grounds on which the applicant ’s contract of employment had been terminated .

On DATE ORG held a hearing of the applicant ’s appeal against ORG judgment of DATE , following which it upheld the latter ’s judgment . It endorsed the reasoning given by ORG and , in addition , it observed that , in view of the scope of his duties and his working relationship with the mayor , the applicant had clearly been in a “ leading position ” to which the rules on employment by appointment had applied .

On DATE ORG dismissed the applicant ’s appeal on points of law against the judgment of DATE as unfounded .

It was held that , as for its substance and irrespective of the formal designation of the applicant ’s contract , his relation with his former employer was one falling within the category of appointment within the meaning of LAW . The applicant ’s appointment thus could be , and in fact had been , cancelled . As the defendant had no other appropriate posts for the applicant , the termination of his employment was justified and lawful under LAW ( d ) of LAW . On DATE ORG corrected clerical errors in the decision . No appeal lay against it .

Following its decision of DATE to deal separately with the applicant ’s claim for compensation in respect of lost wages , at some unspecified time in DATE , ORG opened a new set of proceedings under a different file number for this purpose .

On DATE ORG dismissed the claim . Referring to the judgments of DATE and DATE , ORG took it as established that the applicant ’s dismissal was lawful . It thus could not have resulted in the loss of any wages .

On DATE , on the applicant ’s appeal , ORG quashed the judgment of DATE observing that ORG had deprived the applicant of an opportunity to assert his rights adequately in that it had determined the claim without having heard him . The matter was remitted to ORG for re - examination .

On DATE ORG again dismissed the applicant ’s claim for compensation for lost wages in substance for the same reason as on DATE .

On DATE , on the applicant ’s appeal , ORG quashed the judgment of DATE finding that ORG had failed to decide on the part of the applicant ’s claim concerning severance pay . The matter was again remitted to ORG where it is still pending .

On DATE , on the applicant ’s petition ( podnet ) under Article CARDINAL § CARDINAL of the LAW , ORG ( Ústavný súd ) found that ORG had violated the applicant ’s right under LAW to a hearing without unjustified delay . It considered that the subject matter of the proceedings was not of particular complexity , that the applicant ’s conduct had been cooperative and that what was at stake for him called for special diligence . As to the conduct of ORG , ORG observed in particular that it had failed to open a new set of proceedings or take any procedural steps in respect of the applicant ’s claim for compensation for lost wages , as it had announced it would do in its judgment of DATE .

In DATE the applicant seized the ORG anew by a complaint ( sťažnosť ) under LAW , as in force since DATE , of continuing undue delays in his proceedings . The complaint was formally directed against ORG .

On DATE ORG declared the complaint inadmissible . It observed that , at the time when the constitutional complaint had been lodged , ORG had no longer been dealing with the case . By then the case had already been transmitted to ORG for a determination of the applicant ’s appeal on points of law . In these circumstances , an examination of the part of the proceedings before ORG could no longer serve to expedite them . Thus , in line with its established practice , ORG found that it was not called upon to examine the complaint .

Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to LAW , as in force until DATE , ORG could commence proceedings upon the petition presented by any individual or a corporation claiming that their rights had been violated .

According to its case - law under the former LAW of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of ORG rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights had been violated ( for further details see , e.g. , ORG v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .

As from DATE the LAW has been amended in that , inter alia , natural and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision , ORG has the power , in the event that it finds a violation of LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , ORG CARDINAL-IX ) .

The implementation of the amended LAW is set out in more detail in sections CARDINAL of LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) . The relevant amendment ( PERSON no . CARDINAL/CARDINAL Coll . ) was published in LAW and entered into force on DATE .

Pursuant to section DATE ( a ) , which applies to all motions for any type of constitutional proceedings to be opened , a motion is inadmissible if it concerns a matter which ORG has already determined .

Section CARDINAL ( CARDINAL ) provides that a constitutional complaint can be filed within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given . As regards the measures and other interferences , the above period commences when the complainant could have become aware of them .

Under section DATE ( CARDINAL ) , which was introduced by the abovementioned amendment no . PERSON . , and which specifically concerns constitutional complaints by natural and legal persons , ORG is to declare inadmissible a complaint if it has already decided on substantially the same matter in proceedings on a complaint or in proceedings on a petition under the applicable legal rules .

In proceedings file nos . IV . ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL and PERSON . ÚS CARDINAL/CARDINAL ORG examined the length of civil proceedings before first instance courts on individual complaints under LAW , as in force from DATE . In all CARDINAL cases ORG had already examined the length of those proceedings at their first instance stage on petitions under LAW of the LAW , as in force until DATE , and had found unjustified delays therein .

In judgments ( nález ) of DATE , DATE and DATE , respectively , ORG found continued unjustified delays in the proceedings under review , in their phase after the previous examinations . ORG awarded the complainants just satisfaction . In determining the merits of the case and amounts of the just satisfaction , it took into consideration that delays in those proceedings had already been found before .

It has been ORG longstanding practice to entertain constitutional petitions or , as the case may be , complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such petitions or complaints are lodged ( see , for example , decisions file nos . I. ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , III . ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , II . ÚS CARDINAL/CARDINAL , ÚS CARDINAL/CARDINAL , ORG CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL and many others ) .

NORP In proceedings file number I. ÚS CARDINAL/CARDINAL ORG examined an individual complaint under LAW of delays in enforcement proceedings concerning a minor ’s claim for maintenance . The enforcement commenced in DATE in GPE ORG and , from DATE , continued in GPE I ORG where it was still pending .

In a judgment ( nález ) of CARDINAL DATE ORG found that there had been unjustified delays in the proceedings before both ORG and awarded the minor complainant just satisfaction in respect of nonpecuniary damage to be paid by both courts .

In proceedings file number I. ÚS CARDINAL/CARDINAL ORG examined a complaint by an individual under LAW of delays in proceedings in his civil action of DATE . The action was partially granted at first instance in DATE . That judgment was however quashed on appeal in DATE and the matter was remitted to the first instance court where it was still pending .

In a judgment of DATE ORG found that there had been unjustified delays in the proceedings before the first instance court and awarded the complainant nonpecuniary damages . ORG also examined the phase of the proceedings before the court of appeal but found no unjustified delays . A similar approach was adopted in proceedings FAC . ORG CARDINAL/CARDINAL and III . ÚS CARDINAL/CARDINAL .

In proceedings file number III . ÚS CARDINAL/CARDINAL ORG examined a complaint by an individual under LAW of delays in proceedings in a civil action against him . The action was lodged in DATE with ORG which , shortly after , transferred it to a ORG for reasons of jurisdiction . The action was then pending at ORG until DATE when ORG ruled that it should be determined at first instance by ORG . The action was eventually withdrawn and the proceedings were consequently discontinued by a final decision of DATE .

In a judgment of DATE ORG found that there had been unjustified delays in the proceedings both before ORG and ORG . The complainant was awarded nonpecuniary damages to be paid by both courts . A similar approach was adopted in proceedings no I. ÚS CARDINAL/CARDINAL .

In proceedings file no . IV . ÚS CARDINAL/CARDINAL ORG examined a complaint by an individual under LAW , inter alia , delays in court proceedings concerning her maintenance . The action was originally filed with LAW in DATE . The question arose whether the first instance and the second instance court judges were impartial . On DATE ORG decided that the question of impartiality of the judges at the first instance would be determined by ORG . The latter decided on DATE that the action would be examined at first instance by ORG which determined it on DATE . On DATE ORG upheld the first instance judgment . In her complaint to ORG of DATE the plaintiff alleged that the ordinary courts had violated her right to a hearing without undue delay .

On DATE ORG declared this complaint inadmissible as being manifestly ill - founded . The decision stated that , in so far as the complaint related to the part of the proceedings leading to ORG decision of CARDINAL DATE , it had been filed out of time since , at the moment of the introduction of the constitutional complaint , the relevant part of the proceedings had no longer been pending . For similar reason ORG rejected the complaint in respect of the subsequent proceedings before ORG which had ended on DATE . As to the appellate proceedings before ORG , ORG noted that they had lasted DATE and found that this period was not excessive . Similar approach was adopted for example in proceedings nos . II . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL and ORG .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON .

The applicant is the sole founder , owner and editor of the ORG newspaper . The newspaper has been published DATE since DATE at the applicant 's expense and has a circulation of CARDINAL copies .

In DATE the applicant was committed for trial on a charge of public incitement to ethnic , racial and religious hatred through the use of the mass - media ( an offence under LAW ) . The prosecution 's case was that the applicant , through a series of publications in his newspaper , called for the exclusion of NORP from social life , alleged the existence of a causal link between social , economic and political discomfort and the activities of NORP , and portrayed the malignancy of the NORP ethnic group .

The case was tried by the ORG .

At the trial the applicant asserted his innocence , maintaining that the “ PERSON - Fascist leadership of the NORP ” was the source of all evils in GPE . He believed that , in the absence of reliable information , the NORP public could not learn the causes and reasons of its predicament . The aim of the publications in his newspaper had been to “ [ educate ] the NORP and NORP who [ had ] suffered from ORG ideology ” .

On DATE ORG acquitted the applicant , finding that it was not proven that he was the author of the publication . On DATE the ORG quashed the acquittal and remitted the case .

On DATE ORG refused the applicant 's petitions for a new socio - humanitarian and authorship report into his publications .

On DATE the applicant asked ORG to commission a history - social report that would clarify the following questions :

“ CARDINAL . Are the NORP a race ?

Are the NORP a nation ?

NORP If the NORP are a nation , from what historical period ?

Are the NORP in GPE a nation or a NORP diaspora ?

May the adjective ' national ' or the term ' national dignity ' be used in respect of a member of the NORP diaspora ? ”

On DATE ORG refused the applicant 's request , noting that the answers to those questions had already been obtained by the initial socio - humanitarian report . ORG also noted :

“ In the court 's view , it is a generally accepted fact that members of any nation , nationality or ethnic group have national dignity , which is determined by their national self - consciousness , on the basis of which they identify themselves as members of that ethnic group . ”

On DATE the ORG found the applicant guilty of inciting to racial , national and religious hatred and prohibited him from engaging in journalism , publishing and disseminating in the mass - media for DATE . The finding of guilt was based , in particular , on socio - humanitarian , socio - psychological and linguistic reports and on oral testimony by the experts . The applicant maintained before the court that he could not have incited to national hatred because the NORP did not exist as a race or nation .

The applicant lodged an appeal , reiterating that ORG wrongly considered that the “ NORP nation ” existed .

On DATE ORG upheld the conviction . It struck down the prohibition on journalistic activity because that particular form of penalty had been introduced into LAW after the imputed events , and instead sentenced the applicant to a fine of MONEY ( MONEY ) .


Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy;Violation of Article 1 of Protocol No. 1 - Protection of property

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Renate Jaeger;Zdravka Kalaydjieva

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

On DATE ORG awarded the applicant CARDINAL NORP hryvnias ( ORG ) in salary arrears and litigation expenses incurred by the applicant , to be paid by the ORG - controlled enterprise ORG PERSON .

On DATE ORG initiated enforcement proceedings in respect of the judgment given in the applicant 's favour .

On DATE the company was declared insolvent . The liquidation proceedings instituted against the company are still pending .

On DATE the applicant received UAH CARDINAL in part settlement of the judgment debt .

In their submissions the ORG stated that on DATE the applicant had also received UAH CARDINAL . The applicant did not disagree .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr Konstantins Petuhovs , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr A. Funck , a lawyer practising in GPE .

On DATE the applicant , assisted by an interpreter , was questioned by the GPE police in criminal investigation proceedings against him . On DATE he was brought before the investigating judge who issued an arrest warrant , charging the applicant with robbery and dangerous bodily injury . The warrant was translated and a copy was handed to the applicant .

On DATE the applicant and an accomplice were indicted for joint robbery and dangerous bodily injury . The account of the offence was essentially the same as in the arrest warrant with CARDINAL exceptions : The arrest warrant mentioned that the victim was knocked down a the second time by the co - accused immediately following the first attack by the applicant , whereas the indictment alleged that the victim was able to take a few steps before being knocked down again . Furthermore , the arrest warrant only mentioned that a bag with a wallet was snatched from the victim , whereas the indictment talked about a blue bag with QUANTITY .

On DATE ORG appointed counsel for the applicant and assigned an interpreter for their conversations . Meetings between counsel and the applicant , assisted by an interpreter , were held on DATE , DATE , CARDINAL DATE and DATE .

After the proceedings against the applicant had been severed and the main proceedings opened , on DATE ORG submitted a decision to refer ( PERSON ) to ORG , finding that the circumstances of the offence might amount to aggravated robbery , and in view of the then higher expectation of punishment might warrant the referral of the proceedings to the higher court . ORG assumed the proceedings after the defence had submitted observations .

At the trial on DATE counsel for the defence applied for the proceedings to be stayed for the reason that the applicant had not received a translation of the indictment of CARDINAL DATE which , according to counsel for the defence , was essential for him to prepare his defence . After deliberations ORG rejected the application , arguing that the arrest warrant , which had been translated , was identical to the indictment and had thus informed the applicant in detail of the nature and cause of the accusation . Furthermore , it had to be assumed that counsel for the defence had discussed the nature and cause of the straightforward accusation with the applicant at one of their several meetings . ORG held that under these circumstances an oral translation had to be considered sufficient .

The trial then continued with the reading and the translation of the indictment . After hearing the applicant ’s pleading to the charges and CARDINAL witnesses ORG found the applicant guilty of aggravated robbery and dangerous bodily injury . He was sentenced to DATE imprisonment .

The applicant ’s appeal on points of law , based on the lack of a written translation of the indictment , was dismissed by ORG on DATE as ill - founded .

On DATE the ORG declined to admit the applicant ’s constitutional complaint for examination . It held the complaint to be inadmissible arguing that the prior appeal on points of law had been inadmissible .


The applicant , PERSON , is an NORP national , who was born in GPE and lives in PERSON . She is represented before the Court by PERSON PERSON , a lawyer practising in GPE .

On DATE the applicant had a road traffic accident .

On DATE the Innsbruck ORG ( Bezirkshauptmannschaft ) withdrew the applicant 's driving licence for DATE as it found that the applicant had caused an accident under the influence of alcohol and was therefore not reliable as a driver in traffic .

On DATE , ORG found that she had been driving under the influence of alcohol , contrary to sections CARDINAL § DATE CARDINAL § CARDINAL ( b ) of LAW DATE ( Straßenverkehrsordnung ) and sentenced her to a fine of ORG CARDINAL ( approximately CARDINAL € ) .

The applicant did not appeal against this decision .

On DATE ORG found the applicant guilty of causing bodily harm by negligence “ after allowing herself ... to become intoxicated ... through the consumption of alcohol , but not to an extent which excluded her responsibility ... ” .

It therefore convicted her under LAW and CARDINAL of LAW of negligently causing bodily harm under particularly dangerous conditions ( fahrlässige PERSON besonders gefährlichen ORG ) , and sentenced her to a fine of ORG CARDINAL , CARDINAL .

The applicant appealed against ORG judgment and submitted that she had already been convicted for drunken driving by ORG . ORG judgment was therefore contrary to LAW .

On DATE ORG partly granted the applicant 's appeal . It found the applicant guilty of negligently causing bodily harm and convicted her under LAW . However , it deleted the reference to the aggravating circumstances of LAW and reduced the fine to ORG CARDINAL suspended on probation . ORG held that whereas ORG , on DATE , had withdrawn the applicant 's driving licence and , on DATE , had sentenced her for driving under the influence of alcohol , ORG conviction of driving under the influence of alcohol in particularly dangerous circumstances was in breach of the principle of ne bis in idem under LAW .

On DATE PERSON ORG ( PERSON ) filed a plea of nullity for the preservation of law ( Nichtigkeitsbeschwerde zur Wahrung des Gesetzes ) .

On DATE ORG ( Oberster Gerichtshof ) quashed ORG judgment of DATE and ORG judgment of DATE .

It found that ORG had based its decision on the same facts which were considered by the ordinary courts . Thus , the applicant 's conviction by ORG constituted in principle a technical bar to prosecution ( Verfolgungshindernis ) of the applicant by the ordinary courts from the point of view of LAW No . CARDINAL . The criminal proceedings before the ordinary courts should therefore be suspended pursuant to LAW ) .

Furthermore , ORG held that the applicant 's conduct clearly fell within the jurisdiction of the ordinary courts , as it constituted a criminal offence and not an administrative offence . It referred in this regard to S. CARDINAL subsection ( CARDINAL ) ( c ) of FAC which provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts . Thus , ORG had convicted the applicant although it had not been competent to do so .

On DATE the Innsbruck ORG informed ORG that the proceedings against the applicant were discontinued and the fine paid by the applicant reimbursed .

In a further statement it confirmed that the decision of DATE had been annulled .

On DATE ORG again convicted the applicant under LAW and CARDINAL of LAW of negligently causing bodily harm under particularly dangerous conditions , and sentenced her to a fine of MONEY suspended on probation . As regards the sentence the court referred to ORG judgment of DATE and the principle prohibiting a “ reformatio in peius ” of the sentence .

The applicant appealed and submitted that the proceedings were contrary to LAW as she had been convicted for drunken driving by ORG . The conditions for reopening the case under LAW No . CARDINAL were not met .

On DATE ORG dismissed the applicant 's appeal . It noted that ORG had annulled its conviction . Thus , the temporary technical bar to prosecution ( Verfolgungshindernis ) of the applicant before the ordinary courts did no longer exist . The courts could therefore resume the proceedings in the applicant 's case which might be qualified as the re - opening of a case within the meaning of LAW No . CARDINAL .

PERSON of LAW DATE ( Straßenverkehrsordnung ) provides that it is an offence for a person to drive a vehicle under the influence of alcohol .

S. CARDINAL of the DATE Act provides , so far as relevant , that :

“ ( CARDINAL ) It shall be an administrative offence ( PERSON ) , punishable with a fine of not less than € CARDINAL and not CARDINAL or , in default of payment , with DATE imprisonment , for any person to drive a vehicle when under the influence of drink ... ”

S. CARDINAL subsection ( CARDINAL ) ( c ) of LAW provides that an administrative offence is not pursued when it is based on facts that constitute an offence falling within the jurisdiction of the ordinary courts

Under LAW of LAW ) , it is an offence , punishable by DATE imprisonment or a fine up to CARDINAL DATE - rates , to cause physical injury by negligence .

Article CARDINAL § CARDINAL increases the sentence in respect of causing injury by DATE imprisonment and CARDINAL DATE - rates , if the special circumstances of LAW § CARDINAL apply .

Article CARDINAL § CARDINAL applies where a person commits the offence “ after allowing himself , even if only negligently , to become intoxicated ... through the consumption of alcohol ... ” .

Article CARDINAL of the Code of Criminal Procedure ( GPE ) provides that criminal proceedings have to be suspended inter alia when the offender temporarily can not be prosecuted by the courts .

According to Article CARDINAL § CARDINAL proceedings have to be discontinued inter alia when prosecution is not possible .


Preliminary objection joined to merits and dismissed (Article 34 - Victim);Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - finding of violation sufficient;Non-pecuniary damage - award

The applicants were born in DATE , DATE , DATE , DATE , DATE , DATE and DATE respectively and live in GPE .

Upon receipt of intelligence reports that on CARDINAL DATE a group of demonstrators would gather in FAC in GPE to read a press declaration and block the tram line to protest against F - type prisons , police officers and members of ORG ” ( çevik kuvvet ) were deployed in the area . At TIME , the applicants , together with QUANTITY others , gathered in FAC to make a press declaration to protest against F - type prisons . The police asked the group to disperse and to end the gathering and informed them that the demonstration was unlawful since no advance notice had been submitted to the authorities . The demonstrators refused to obey and attempted to march along FAC , chanting slogans and reading out a press declaration . Subsequently , at TIME the police dispersed the group , allegedly by using truncheons and tear - gas . The applicants were arrested along with CARDINAL other persons . The applicants PERSON and PERSON were subsequently taken to ORG .

The doctor who examined PERSON noted the following :

“ There are bruises on both arms and a swelling on the left foot . ”

As regards PERSON , the doctor noted the following :

“ There is a QUANTITY long laceration on the left parietal region ... ”

There were no medical reports in respect of the remaining applicants .

The incident report dated DATE stated that the security forces had to use force to disperse the group as they refused to obey the warnings . It was further indicated that CARDINAL police officer was wounded during the incident .

The applicants were subsequently taken to LOC police directorate and NORP police station , where they were kept for DATE .

DATE , they were released upon the order of the ORG public prosecutor .

On an unspecified date , the applicants filed a petition with the ORG public prosecutor against the police officers who had carried out the arrest . In their petition , they complained , inter alia , of the unlawfulness of their arrest and the excessive use of force by the police officers during and after the arrest .

On DATE the ORG public prosecutor issued a decision of non - prosecution in respect of the police officers who had been on duty at the relevant time . In his decision , the public prosecutor considered that the force used by the security forces was in line with LAW . CARDINAL on the Duties and Powers of the Police and had not been excessive . In the public prosecutor 's opinion , the injuries sustained by the complainants had been caused by the use of force which was proportionate .

The applicants filed an objection against the public prosecutor 's decision .

On DATE ORG dismissed the applicants ' objection .

Meanwhile , on DATE , the ORG public prosecutor filed a bill of indictment with ORG . The public prosecutor accused the applicants under LAW no . CARDINAL of taking part in an illegal demonstration without prior authorisation and not dispersing despite the police officers ' warning .

On DATE ORG acquitted the applicants . The court held that making a press statement was a constitutional right and that prior authorisation was not needed to use this right . The court further observed that it was not certain that the warning given to the accused to disperse could be heard by all the demonstrators . It concluded that the accused had used their constitutional rights and , consequently , had not committed any offence .

Article CARDINAL of the LAW provides :

“ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission .

The formalities , conditions , and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law . ”

At the material time section CARDINAL of the Assemblies and Marches Act ( Law no . CARDINAL ) was worded as follows :

“ In order for a meeting to take place , the governor 's office or authorities of the district in which the demonstration is planned must be informed , during TIME and CARDINAL prior to the meeting , by a notice containing the signature of all the members of the organising board ... ”

Section CARDINAL of the same LAW prohibited demonstrations and processions on public streets , in parks , places of worship and buildings in which public services were based . Demonstrations organised in public squares had to comply with security instructions and not disrupt individuals ' movement or public transport . Finally , section CARDINAL provided that demonstrations and processions which did not comply with the provisions of this law would be dispersed by force on the order of the governor 's office and after the demonstrators had been warned .

“ The police may use firearms in the event of :

( a ) ORG defence , ...

( h ) if a person or a group resists the police and prevents them from carrying out their duties or if there is an attack against the police . ”

“ In cases of resistance by persons whose arrest is necessary or by groups whose dispersal is necessary or of their threatening to attack or carrying out an attack , the police may use violence to subdue these actions .

Use of violence refers to the use of bodily force , physical force and all types of weapons specified in the law and it gradually increases according to the nature and level of resistance and attack in such a way as to restore calm .

In cases of intervention by group forces , the extent of the use of force and the equipment and instruments to be used are determined by the commander of the intervening force . ”


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

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

A summary account of historical events in which the present application originated can be found in the ORG ’s decision on admissibility in the case of ORG . PERSON GPE ( see ORG . PERSON GPE DATE . ) , no . ORG , DATE , § § DATE , ORG CARDINAL- ... ) .

The applicant submits that he is an heir of PERSON , who was the owner of an impressive art collection . According to the applicant , PERSON was killed by the NORP in a mental hospital in DATE .

At the end of the Second World War the paintings belonging to the ORG collection were stored in different places which are now within the NORP territory . They were confiscated by ORG under LAW on ORG ( dekret o majątkach opuszczonych i poniemieckich – “ the DATE Decree ” ) as property belonging to NORP . At present the paintings are exhibited in various museums in GPE . The most important part of the ORG collection included the following paintings :

CARDINAL ) PERSON , PERSON of ORG .

On DATE the painting was taken to the FAC in GPE ( at present GPE in GPE ) . In DATE the painting was transferred to ORG at FAC .

CARDINAL ) PERSON , PERSON , GPE the GPE and an FAC .

In DATE the painting was on loan to ORG in GPE ( at present PERSON ) . On DATE it was taken to ORG ( at present FAC ) . After the war the NORP authorities confiscated it under the March CARDINAL Decree . It was taken to ORG .

CARDINAL ) Giovanni Filippo Criscuolo , PERSON with ORG and ORG .

Before the war the painting was in FAC in GPE . In DATE it was confiscated and taken to ORG .

CARDINAL ) PERSON , The Adoration of the Child and Crucifixion .

On DATE the painting was transferred to ORG . The NORP authorities confiscated it under the March CARDINAL Decree and took it to ORG .

CARDINAL ) PERSON , LOC in the LOC .

The painting was on loan to ORG in GPE . In DATE it was transported to ORG . After the war the NORP authorities confiscated the painting and took it to GPE . In DATE the painting was transferred to ORG in ORG .

CARDINAL ) PERSON , PERSON and PERSON .

The painting was loaned out to ORG in GPE . The NORP authorities confiscated it and took it to ORG . At present the painting is stored in ORG in ORG .

CARDINAL ) PERSON , ORG at the Pillar .

The painting was on loan to ORG in GPE . Since DATE it has been exhibited in ORG in ORG .

CARDINAL) PERSON , Lamentation .

The painting was loaned out to ORG in GPE . Since DATE it has been exhibited in ORG in ORG .

CARDINAL ) Portrait of a Family made by a Lombard painter in DATE .

Before the war the painting was being restored in FAC in GPE . After the war the NORP authorities confiscated it . It was taken to ORG in DATE .

CARDINAL ) PERSON , PERSON of a Doge .

During the war the painting was stored in GPE . After the war it was confiscated by the NORP authorities . In DATE it was taken to ORG at FAC .

Details concerning the former place of storage of other paintings are unknown . They were , however , recorded at ORG in GPE as belonging to the former ORG collection and are still there .

The applicant submits that he did not apply for restitution since under NORP law there is no possibility of challenging the validity and lawfulness of the confiscation and expropriation .

A detailed description of the relevant international and domestic law is set out in the above - mentioned case of ORG . PERSON GPE ( ibid . § § CARDINAL - CARDINAL ) .


The applicant , who is a lawyer and former member of ORG ) , lives in PERSON ( GPE of GPE ) . At the material time he was an advocate acting as defence counsel for PERSON who had been placed in detention pending trial ( ORG ) on suspicion of committing a number of thefts .

On DATE Mr S. ’s wife informed PERSON that the CARDINAL district clerks ( Amtsschreiber ) of the NORP district authority ( PERSON ) had urged her to instruct a different lawyer to defend her husband if he wished to be released .

On DATE the applicant then held a press conference in his office in GPE at which he declared that at the NORP district authority offices both the laws of the GPE of GPE and human rights were flagrantly disregarded , and had been for DATE ( werden sowohl die PERSON als auch die ORG in höchstem Grade verletzt , und zwar schon PERSON ) . He pointed out that he was speaking to the press because it was his last resort ( deshalb bleibt mir nur noch der Weg über die GPE ) .

The following day the DATE newspaper ORG ( “ the ORG ” ) published the following article ( at page CARDINAL ) :

“ Former ORG ( ORG ) councillor demands investigation into NORP district authority

‘ I wo n’t let those gentlemen make a fool of me any longer’

Former ORG councillor PERSON makes serious accusations against the NORP district authority .

‘ I ’ve had enough of letting those gentlemen at the NORP district authority make a fool of NORP thundered PERSON . ‘ So the only recourse left to me is to take the matter to the press.’ The former ORG councillor was prompted to take the unusual step of approaching the public during pending proceedings on account of a case entrusted to him as a lawyer in DATE . At that time his client had already been in pre - trial detention at the NORP district authority prison for DATE .

Detained without an arrest warrant

The DATE father of a DATE daughter was arrested on CARDINAL DATE with his brother for the theft of car radios and clothes , and released after admitting the offences . When , on DATE , he went to the GPE cantonal police to ask how his brother was , he was again immediately arrested .

‘ When I enquired at the NORP district authority about the arrest warrant , I was told that the order had been issued to him orally’ said PERSON , who sees the conduct of the police as a clear breach of the cantonal LAW , Article CARDINAL of which provides : ‘ The arrest shall be carried out by the police , duly authorised by a written warrant of arrest.’

When these accusations were put to him , the PERSON prefect [ Mr H. B. ] was giving nothing away . ‘ Where I ’m in charge nobody is arrested without a written arrest warrant’ , he said . ‘ I can not say any more about a pending case.’ On the other hand , PERSON , who was asked by the accused ’s wife to defend her husband , will not remain silent any longer : ‘ The wife came to me because the lawyer appointed under the legal aid scheme had still not contacted his client even though he had been in pre - trial detention for CARDINAL weeks.’

Schöpfer immediately contacted the officially appointed counsel who handed the case over to him . However , the NORP district authority did not want PERSON to take over as defence counsel under the legal aid scheme and refused his request on CARDINAL DATE on the ground that there were no reasons to dismiss the lawyer to whom the case had been assigned until then . He was , however , free to represent his client on a private basis .

Schöpfer as the ground for detention ?

The last straw for PERSON came when the accused ’s wife informed him DATE that [ T.B. ] and [ PERSON ] , the CARDINAL district clerks , had advised her not to keep him on the case . ‘ They told GPE she confirmed for the ORG , ‘ that my husband would not be released as long as PERSON remained his defence counsel.’ But [ T.B. ] denied any involvement : ‘ That ’s ridiculous . I never said anything like that . [ PERSON ] can confirm that . He was present when I spoke with the man ’s wife.’

PERSON will not let the matter drop : ‘ I demand the immediate resignation of the prefect and the district clerks and a thorough investigation of the case by an impartial commission of inquiry from outside the canton.’ ”

In a box inside the article was the following text :

“ Accusations

It is not the first time that serious charges have been levelled against the NORP district authority . Prefect [ PERSON ] was previously prosecuted in connection with the conviction of [ GPE ] , the ORG debt collection officer [ PERSON ] . He was fined MONEY by ORG for disclosure of official secrets . Although ORG also found that the objective elements of the offence had been made out , [ PERSON ] was acquitted on appeal . ”

The article was illustrated by CARDINAL photographs , CARDINAL showing the NORP district authority building and the other Prefect PERSON with the caption : “ Where I ’m in charge nobody is arrested without a written arrest warrant ( Bei mir wird niemand ohne schriftlichen PERSON festgehalten ) . ”

Another DATE newspaper , ORG , also published , on DATE , an article on the press conference under the title : “ PERSON man arrested without a warrant ? GPE lawyer accuses NORP district authority of breaking the law ( PERSON ohne PERSON verhaftet ? PERSON wirft PERSON ) . ”

On DATE the public prosecutor ’s office ( Staatsanwaltschaft ) of the GPE of GPE issued a reply to the effect that the accused person concerned had been arrested in accordance with the law , and that the applicant had not filed an appeal against the refusal to allow him to take over as the officially appointed defence counsel . This reply was published in the press on DATE .

On DATE the ORG published a summary of a press communiqué issued by the applicant in reply to the public prosecutor ’s statement . According to PERSON , PERSON ’s arrest had breached both the Convention and – “ in a crude and unacceptable manner ( in absolut grober und nicht mehr zu verantwortender PERSON ) ” – the cantonal LAW . The applicant also quoted the following passage from a letter he had received from another lawyer : “ The situation in PERSON is far from satisfactory ... What makes it even worse is the fact that the judicial authorities know what is going on in PERSON and even make indirect allusions to the situation . ” In conclusion , PERSON called on ORG and ORG to look into the case .

On DATE , DATE and CARDINAL DATE the applicant had lodged applications for the release of PERSON ) , which the PERSON prefect refused on DATE , DATE and CARDINAL DATE respectively .

PERSON lodged an appeal ( PERSON ) against the last of these decisions . This was dismissed by ORG ) of the GPE of GPE on DATE , on the ground , among others , that the prefect had subsequently validly extended PERSON pre - trial detention , so that PERSON no longer had standing to bring an action challenging the conditions of his arrest . It noted , however , that after his arrest PERSON should have been brought , not before a district clerk , but before the prefect himself , the only person who could be considered a judge or other officer for the purposes of LAW . It therefore ordered that its decision should be brought to the attention of the public prosecutor ’s office , which was the prefect ’s supervisory authority ( PERSON ) .

On DATE ORG ( Aufsichtsbehörde über die Rechtsanwälte ) informed PERSON that his conduct raised certain ethical questions , relating in particular to the need for discretion ( PERSON ) with regard to pending proceedings and to covert publicity , and asked him what he had to say on the matter .

In a letter of DATE which he communicated to the press , the applicant replied that he had acted only in the general interest and in that of his client .

On DATE the PERSON prefect had lodged a complaint ( ORG ) with ORG and asked for disciplinary proceedings to be brought against PERSON . He asserted that by his statements the latter had not only slandered the prefect and his CARDINAL district clerks but had also been guilty of a serious breach of lawyers’ professional ethics ( ORG ) by spreading false accusations through the media rather than making use of the available legal remedies .

On DATE ORG brought disciplinary proceedings against the applicant .

On DATE , pursuant to LAW ( PERSON ) of the GPE of GPE ( see paragraph CARDINAL below ) , it fined him MONEY ( CHF ) for a breach of professional ethics ( PERSON und Standespflichten ) .

In its decision ORG observed in particular that the applicant had omitted to refer his complaints DATE which were serious – in the first place to the public prosecutor ’s office or ORG , which were the relevant supervisory bodies for the district authority . He had therefore failed to observe the discretion which lawyers were required to maintain , in public , with regard to pending proceedings . In addition , he had engaged in covert publicity ( versteckte Reklame ) and cheap showmanship ( Effekthascherei ) , thus demonstrating that he was more concerned about his own public profile than about the merits of the case . In any event , ORG statements to the press always had to be not only of real public interest ( reelles öffentliches ORG ) but also objective and moderate in tone ( objektiv in der Darstellung und sachlich i m Ton ) .

But the tone of a number of passages in PERSON statements to the press left something to be desired . For example he had said : “ I wo n’t let those gentlemen make a fool of me any longer ” and “ I demand … a thorough investigation of the case by an impartial commission of inquiry from outside the canton ” and also “ So the only recourse left to me is to take the matter to the press . ” This last statement was not even true , since at that time PERSON had not even applied to the relevant supervisory bodies for the district authority , nor had he tried exercising the ordinary legal remedies . He had thus disparaged not only the NORP district authority but all the GPE ’s judicial authorities , which was incompatible with a lawyer ’s professional ethics .

The applicant lodged a public - law appeal against the above decision . This was dismissed by ORG on DATE .

It observed that lawyers enjoyed considerable freedom to criticise the judicial authorities , provided that this was done according to the correct procedures , and in the first place in the course of representing and defending their clients . When , however , a lawyer appealed to public opinion , he was under a duty , like any other person employed in the service of justice , to refrain from any conduct inconducive to the proper administration thereof . LAW also enunciated the principle that interference could be justified if its purpose was to maintain the authority and impartiality of the judiciary . Admittedly , there might be circumstances in which the public interest required alleged violations of constitutional or human rights to be made public . In order to determine whether that was the case , it was necessary to ascertain how obvious the alleged violations were , whether pending proceedings were likely to be influenced , whether the available remedies had been exercised and in what form the criticism had been made .

In the instant case PERSON had been punished not so much for denouncing human rights violations as for the way in which he had done so . When considering the case ORG had indeed taken into account the fact that one of the complaints raised by the applicant , concerning the fact that Mr S. had been brought before a district clerk rather than the prefect , had subsequently been upheld by ORG . However , Mr PERSON ’s other criticisms DATE which were likely to influence pending proceedings – had been found by ORG to be unjustified . Furthermore , ORG had ruled that the applicant had not employed the right tone in his criticism and that he had made untrue allegations . It had given sufficient grounds for its decision and the applicant had not adduced any convincing counter - arguments .

Article CARDINAL of the Statute of the Bar ( PERSON ) of the GPE of GPE establishes a ORG ( Aufsichtsbehörde über die GPE ) whose members – CARDINAL judges of ORG , CARDINAL administrative court judge and CARDINAL lawyers DATE are appointed by ORG for DATE . Under LAW has jurisdiction to investigate lawyers’ breaches of professional ethics ( Berufs- und Standespflichten ) and may impose disciplinary penalties . Under LAW these range from a reprimand ( PERSON ) to temporary or permanent disbarment , with fines of MONEY CARDINAL,CARDINAL as intermediate penalties .


UNION EUROPEENNE DES DROITS DE L'HOMME AND JOSEPHIDES v. TURKEY

David Thór Björgvinsson;Ineta Ziemele;Krzysztof Wojtyczek;Päivi Hirvelä;Paul Mahoney

The applicants are the ORG ( “ ORG L’Homme ” ) a non - profit making association based in GPE and PERSON , a NORP and NORP citizen , born in DATE and resident in GPE . The second applicant is the President and legal representative of the first applicant .

CARDINAL .

NORP On DATE , with the intention of celebrating of DATE of the fall of FAC , a group of people , including the second applicant and , it appears , other members of the first applicant association , set out with the intention of demonstrating before the “ FAC ” which was in the buffer zone between GPE and the area occupied by NORP forces known as the “ GPE ” ( “ GPE ” ) , and thus showing their solidarity with the NORP people and seeking their help and support in obtaining the fall of the wall separating the NORP people . They had given notice of their peaceful demonstration to the press and the NORP embassy .

The second applicant and another member of the association carried a large NORP flag and CARDINAL placards bearing slogans ; leaflets were being handed out as they proceeded down FAC . The demonstrators stopped QUANTITY before the GPE checkpoint , which was QUANTITY from the “ TRNC ” checkpoint . The applicant and the other member of the association continued past the checkpoint into the buffer zone , with the intention of placing the flag and placards on the walls within the zone . When they were QUANTITY from the “ NORP ” checkpoint , security forces rushed out and seized them by force . They were taken into the security post and searched . Their mobile phones and identity documents were removed , their flag , placards and leaflets confiscated . After TIME , the CARDINAL men were released .


Preliminary objection partially joined to merits and dismissed (Article 35-3-b - No significant disadvantage);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Constitutional proceedings;Article 6-1 - Access to court);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicants are brothers . They were born in DATE and DATE and live in GPE ( GPE ) and LOC ( GPE ) respectively .

NORP The applicants’ father owned a piece of real estate located in the centre of the city of LOC , which comprised a plot of land and buildings standing on it .

On their father ’s death in DATE , the applicants each inherited CARDINAL of that estate .

The estate was subsequently seized by a ORG - owned enterprise and some of the buildings were torn down and new ones built . The new buildings included a garage .

In DATE the ORG - owned enterprise was privatised and transformed into a joint stock company .

In DATE the applicants brought an action for removal of the garage and vacant possession of their land . This action and its outcome is the main subject matter of the present application . The details are given below .

In DATE title to a portion of the real estate , which included the garage , was transferred from the joint - stock company to CARDINAL individuals . Consequently , the action of DATE was redirected against them .

NORP In DATE the applicants brought another action seeking a judicial ruling declaring them to be the owners of the plot on which the garage was situated and of an adjacent plot . The action was directed against the CARDINAL beneficiaries of the transfer of DATE ( see previous paragraph ) .

On DATE , following a hearing held on DATE , at which the defendants acknowledged the applicants’ title , ORG ( ORG súd ) allowed the action of DATE .

On DATE , on the basis of the ruling of DATE , the applicants and the defendants settled their differences by exchanging title to the garage for title to the adjacent plot , under the judgment mentioned above , and by setting off their mutual financial claims , including those under the judgments mentioned below .

On DATE the applicants lodged an action with ORG seeking a judicial order for removal of the garage and vacant possession of their land .

ORG ruled on the action on DATE and DATE . These judgments were quashed on appeal ( odvolanie ) and the action was remitted by ORG ( PERSON súd ) on DATE and the Prešov Regional Court on CARDINAL DATE respectively .

On DATE ORG ruled on the action anew . It relied on the above - mentioned decision of the ORG of DATE in acknowledging that the applicants were the owners of the land on which the garage stood and that the garage had been constructed on that land without the consent of its owners . The garage was therefore considered an “ unlawful construction ” . It was not practicable ( účelné ) to remove the garage or to have the applicants take over title to it . The situation had to be resolved under Article CARDINAL § CARDINAL of LAW by establishing an easement for the benefit of the owners of the garage and by ordering that they pay the applicants compensation in an amount equivalent to QUANTITY ( ORG ) . The amount of compensation was determined on the basis of an expert assessment with reference to existing prices as opposed to future prices .

On DATE the ORG upheld the judgment of DATE following appeals by both the applicants and the defendants . ORG fully endorsed the reasoning provided by ORG , referred to previous judicial practice and held that in matters such as that at hand the courts were not bound to follow the parties’ specific requests , but rather had to resolve the matter within the parameters set by statute .

On DATE the applicants challenged the judgment of CARDINAL DATE by way of an appeal on points of law ( dovolanie ) . They relied on Article CARDINAL ( e ) of LAW ( “ ORG ” ) and argued that the courts had wrongfully ruled on their action ultra petitum . In particular , the applicants argued that in litigious matters such as theirs the courts were bound by the plaintiffs’ formulation of the claims . The applicants had been seeking a ruling for removal of the garage or alternatively to have them established as the owners of the garage . However , the courts had made a ruling establishing an easement , which had not been sought . In addition , the applicants argued that the lower courts had failed to hear and examine all the evidence they had adduced .

On DATE ORG ( Najvyšší súd ) declared the appeal on points of law inadmissible . It upheld ORG view that when dealing with “ unlawful constructions ” the courts were not bound by the specific requests made by the parties to the proceedings . A specific request for the situation to be resolved by way of establishing an easement had therefore not been required . The applicants did not have a right as such to have all evidence they adduced examined and taken into account . The appeal was thus not admissible on the ground identified by the applicants and neither was it admissible on any other ground envisaged by law .

On DATE , following a complaint by the applicants under Article CARDINAL of the LAW , ORG ( Ústavný súd ) found that ORG had violated their right to a hearing within a reasonable time and ordered that ORG proceed with the case without delay . It awarded each applicant the equivalent of some ORG CARDINAL in just satisfaction in respect of non - pecuniary damage .

On DATE the applicants lodged a new constitutional complaint . They contested delays in the proceedings subsequent to ORG judgment of CARDINAL DATE and challenged the judgments of ORG of DATE and the ORG of DATE as having treated them unequally .

On DATE ORG declared the complaint inadmissible . It discerned no unjustified delays in the proceedings and rejected the relevant part of the application as manifestly ill - founded .

ORG held that an appeal on points of law was a remedy that was available to the applicants , and observed that they had in fact used it ( see paragraph CARDINAL above ) . As it was still pending , that part of their constitutional complaint was premature .

On DATE the applicants lodged a fresh constitutional complaint . They relied , inter alia , on Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Convention and CARDINAL of Protocol No . CARDINAL and challenged the rulings of ORG of DATE ( see paragraph CARDINAL above ) , the Prešov Regional Court of DATE ( see paragraph CARDINAL above ) and ORG of DATE ( see paragraph CARDINAL above ) arguing that these rulings were incompatible with their property rights , of which they had failed to obtain protection .

On DATE ORG declared the complaint inadmissible . It found that the complaint had been lodged outside the statutory DATE time - limit in so far as it concerned the rulings of the ORG of DATE and ORG of DATE .

The complaint in respect of the decision of ORG of DATE was manifestly ill - founded because that decision was not vitiated by any constitutionally relevant unlawfulness , arbitrariness or irregularity .

The written version of ORG decision was served on the applicants’ lawyer on DATE .

The “ right to judicial and other legal protection ” is laid down in Section ( Oddiel ) CARDINAL of Part ( PERSON ) CARDINAL , dealing with “ basic rights and freedoms ” . The relevant part of DATE provides as follows :

“ CARDINAL . Everyone shall be able to assert his or her rights in a procedure provided for by a statute before an independent and impartial court of law and , in cases defined by a statute , before another organ of GPE ...

Conditions and details of judicial and other legal protection shall be provided for by a statute . ”

Article CARDINAL , subsumed under Section CARDINAL ( dealing with ORG ) of Part CARDINAL ( dealing with ORG ) , provides :

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

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

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

Under section CARDINAL(CARDINAL ) , a complaint under LAW is admissible only where the complainant has used effective remedies provided for by the law to protect his or her fundamental rights . A complaint to ORG can be lodged within DATE of a decision finally taking effect or from the date of a contested measure or notification of another interference with a person ’s rights ( section CARDINAL(CARDINAL ) ) .

NORP The settlement of matters related to “ unlawful constructions ” is regulated by Article CARDINALc , which provides that – if a construction is erected on a surface belonging to someone else , the removal of the construction at the expense of its owner may be ordered by a court upon application for this remedy by the owner of the surface ( paragraph CARDINAL ) .

If however the removal of the construction does not prove practicable , and subject to consent by the owner of the surface , the court establishes the owner of the surface to be the owner of the construction , in return for the payment of compensation ( paragraph CARDINAL ) .

The court also has the power to settle the relations between the owner of the surface and the owner of the construction differently , in particular by establishing an easement to enable the exercise of the ownership right in respect of the construction .

The relevant provisions concerning appeals on points of law are laid down in Articles CARDINAL et seq . They are summarised , for example , in the ORG ’s judgment in the case of GPE PERSON Springer GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

In case no . III . ÚS CARDINAL/CARDINAL the complainant alleged a violation of his procedural rights and property rights by virtue of judicial decisions at first instance and on appeal . In parallel to his constitutional complaint he lodged an appeal on points of law relying on LAW ( f ) of the ORG .

On DATE ORG declared the complaint inadmissible . It found that since the complainant had asserted his rights by way of an appeal on points of law , and since that appeal was still pending , the principle of subsidiarity enshrined in LAW and section CARDINAL(CARDINAL ) of LAW precluded a parallel examination of the same subject matter by ORG .

At the same time , however , ORG made a pronouncement concerning the application of the statutory DATE time - limit for lodging a fresh constitutional complaint in the eventuality of a rejection of the complainant ’s appeal by ORG . In that respect , “ bearing in mind the purpose of the fundamental right to judicial protection under LAW ” , and making a specific reference to the ORG ’s judgment in the case of GPE and GPE v. GPE ( no . CARDINAL , § § DATE , DATE and DATE , ORG CARDINALIX ) , ORG held that , in addition to the decision of the court of cassation , the time - limit would be considered as having been respected also in respect of the previous decision of the court of appeal .

This line of reasoning was upheld by ORG in its decision of DATE in case no . III . ÚS CARDINAL/CARDINAL , with reference to the principle of “ substantive protection of constitutionality ” .