The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . The respondent Government are represented by PERSON , Director of ORG of ORG .

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

The applicant and ORG , his wife , jointly owned an apartment which was registered in the wife ’s name . On DATE PERSON concluded a pledge agreement in favour of an insurance company , AS PERSON , by which her sister ’s loan of CARDINAL NORP kroons ( EEK ) ( QUANTITY ( ORG ) ) was secured by the apartment . According to the pledge agreement GPE confirmed that she was single and that no third parties had claims to the apartment . The agreement was drafted by a notary in LANGUAGE . It was confirmed in the agreement that its text had been translated by the notary from NORP into LANGUAGE prior to it being signed by the parties . It was also confirmed that the text of the agreement had been read to the parties and that it had complied with their will .

According to the applicant , the content of the agreement had not been translated for ORG who was of NORP origin and did not understand NORP . The notary had only shown her the space for her signature . It had not been explained to her that without her husband ’s consent she was not entitled to conclude the pledge agreement .

As GPE , GPE ’s sister , failed to repay the loan , an insurance company ORG , the legal successor of AS PERSON , lodged an action against her and ORG According to the company , the debt was EEK CARDINAL ( EUR CARDINAL ) by that time , consisting of the original loan , interest and default interest . The insurance company ’s claim lodged with ORG ( PERSON ) was for EEK CARDINAL ( EUR CARDINAL ) . The defendants , GPE and GPE did not appear before the court although they had received the summonses . By a default judgment of DATE ORG upheld the claim against GPE and decided that if she failed to pay the debt , GPE ’s apartment would have to be sold at a public auction .

On DATE PERSON lodged a petition with ORG to set aside the default judgment , as she had been sick at the time of the hearing . On DATE she informed the court that she recognised the claim and agreed to pay the debt . She explained that together with her sister , GPE , she had pledged the apartment . The money received for that had been invested in [ an investment company ] ORG . They had been paid interest for DATE ; thereafter , the investment company had gone bankrupt . PERSON requested that she be given a possibility to repay the debt in several instalments and that the pledged apartment not be sold .

ORG did not respond to the claim .

On DATE ORG held a hearing . The defendants failed to appear , although they had received summonses . PERSON had asked the court to hear the case in DATE or DATE , as she had taken up employment on a ship and could thus pay the debt in the future . The court had not been informed of the cause of GPE ’s failure to appear .

On the plaintiff ’s request , the court made a default judgment on DATE . It upheld the claim and ordered the sale of the apartment at a public auction .

On DATE the applicant accepted the delivery of the judgments addressed to both ORG and her sister .

On DATE the bailiff of ORG recorded and seized the flat in the presence of GPE The latter made no requests or observations .

On DATE the apartment was sold at a public auction . PERSON , the only person who made a bid , acquired the apartment for EEK CARDINAL ( ORG CARDINAL ) . In the applicant ’s opinion , the market value of the apartment was EEK CARDINAL ( EUR CARDINAL ) . According to the auction record , PERSON and PERSON were present as witnesses .

On DATE the applicant brought an action in the ORG against GPE and ORG AS . According to the statement of claim he had obtained information concerning the pledge agreement from the bailiff on DATE . He requested ORG to invalidate the pledge agreement , relying on section DATE ) of LAW ) and LAW of LAW ( General Principles ) Act ( ORG üldosa seadus ) .

In her reply of CARDINAL DATE , GPE recognised the applicant ’s claim . It had been an error on the part of the notary to attest the pledge agreement without the applicant ’s consent .

On DATE the applicant submitted to ORG that on DATE he had become aware of the fact that on DATE the apartment had been sold at a public auction to PERSON He argued that the sale of the apartment at public auction could not have been lawful due to the unlawfulness of the pledge agreement . Therefore , the sale of the joint property at the auction had had no basis in law . He made a reference to LAW seadustik ) . Moreover , he contended that he had unwillingly lost the possession of the apartment . Accordingly , under section CARDINAL(CARDINAL ) of LAW ( NORP ) , the buyer at the auction had not become the owner of the apartment . He requested that the results of the auction be declared invalid , that his entitlement to CARDINAL of the apartment be recognised and that the apartment , which had been unlawfully repossessed , be returned .

On DATE ORG involved PERSON in the proceedings as a defendant .

On DATE the applicant made a request to amend the claim . He argued that the fundamental conditions of the auction had been violated , since joint property could be sold only with the consent of the joint owners . However , he had not given such consent . He relied on ORG CARDINAL - CARDINAL and CARDINAL(CARDINAL ) of LAW .

On DATE ORG involved the ORG in the proceedings as a defendant .

At the hearing of DATE the applicant ’s lawyer argued that the conduct of the auction had been in violation of law . The applicant had not been informed about the auction and he had become aware of the sale of the apartment only after the auction . According to PERSON he had been to see the apartment in TIME of the auction day . He had met the applicant who had told him that he was PERSON ’s husband and that PERSON would not get the apartment .

By a judgment of DATE ORG upheld the claims in part . It found it established that the apartment had been privatised [ bought on favourable conditions from the municipality ] in DATE , when the applicant and GPE were already married . Therefore , the apartment had been in the joint ownership of the spouses . It further observed that , according to section DATE ) of LAW , movable property in the joint ownership of spouses , where it had to be entered in a register , could not be transferred or pledged without the written consent of the other spouse regardless of in which spouse ’s name the property had been registered . ORG concluded that there had been a substantial breach of law and declared the pledge agreement invalid , relying on , inter alia , LAW .

The remainder of the applicant ’s claims were rejected by ORG . The court found that there was no legal ground to invalidate the results of the public auction as its fundamental conditions had not been violated . Nor was there any ground to recognise the applicant ’s entitlement to a CARDINAL legal share in the apartment , since the buyer had acquired the apartment at a public auction arranged in order to secure the execution of a court judgment . The buyer ’s title to the apartment was protected under section CARDINAL(CARDINAL ) of LAW . ORG held that LAW concerning regulations with regard to joint property was not applicable in the case , since the case at issue concerned enforcement in respect of pledged property . Accordingly , LAW , a provision concerning pledged property , had to be applied . The applicant had not alleged a violation of that provision .

In his appeal the applicant argued that it was incomprehensible that ORG , having invalidated the pledge agreement , had refused to recognise the applicant ’s title to the apartment . He argued that he had lost possession of the apartment against his will and , therefore , he was entitled to claim possession of the property . He was of the opinion that due to the invalidity of the pledge agreement the subsequent transactions could have no legal effect . He also raised the question of ORG responsibility in respect of the sale of the apartment , arguing that the ORG should have verified all the relevant circumstances . He noted that he had been entered into a register as GPE ’s husband and that the apartment in issue was his permanent place of residence . He argued that PERSON could not be considered a bona fide owner and that the conduct of the auction had been in breach of law , since it had concerned the spouses’ joint property which had been pledged unlawfully .

On DATE ORG ( Tallinna GPE ) dismissed the appeal . It found that the auction had been lawful and rejected the applicant ’s allegation that PERSON was entitled to claim compensation from the ORG .

ORG noted that according to the principle of abstraction ( abstraktsiooniprintsiip ) underlying LAW , the invalidity of a contract creating obligations ( kohustustehing ) [ e.g. a sales contract or pledge agreement ] did not render invalid the transfer of property ( käsutustehing ) . Even the transfer of property by a person who was not the owner could have legal consequences and was not inevitably invalid . Therefore , the fact that the pledge agreement had been declared invalid in this case did not mean that the remainder of the applicant ’s claims had to be upheld . The court could not declare the auction invalid on the grounds relied on by the applicant . Therefore , his claims concerning the recognition of his title and repossession of the property were also unfounded . Since PERSON had acquired title to the apartment at a public auction held on the basis of a court judgment , his right of ownership could not be affected by challenging the preceding transactions . The right of the holder of the pledge to have the object of the pledge sold at an auction had been confirmed by a judgment . PERSON ’s title was protected against the disputes between the previous owners and other persons . The arguments concerning the bad faith of the buyer were irrelevant in a case where the property was acquired at an auction . A compulsory auction could be invalidated only on grounds provided for by the law , i.e. in case a fundamental breach of law had been involved in the conduct of the auction . The applicant had not relied on any such ground in his claim . The court noted that there existed no register concerning conclusion and dissolution of marriages .

ORG noted that the applicant had the right to lodge a claim against his wife who had concluded the pledge agreement concealing the fact that she had been married .

The applicant appealed to ORG ( NORP ) . He submitted that on the basis of ORG judgment of DATE the apartment , where he also lived , had been sold at an auction . He argued that he had become aware of that when the apartment had already been sold . On DATE ORG had declared the pledge agreement invalid . According to section CARDINAL of LAW ( General Principles ) Act , a void transaction was invalid from inception , it had not to be performed and the parties to it should return what had been received by the void transaction , or if this was not possible , they should compensate for it in money . As the judgment of DATE had been based on an invalid agreement , the judgment itself was also unlawful and invalid . Therefore , the auction sale of the apartment had also been unlawful .

He claimed that ORG had to compensate the material damage caused to him by the unlawful judgment of DATE . Moreover , he contended that he had known nothing about the sale of the apartment . The information concerning public auctions was published only in the “ Official Notices ” ( ORG ) . CARDINAL per cent of the population was unaware of the existence of such a publication . It was published only in the NORP language , while CARDINAL of the NORP population did not know NORP . This was in violation of LAW of LAW , according to which no one should be discriminated against on the basis of language . An auction was business – that was why each inhabitant of the country had the right to be informed about it and the information should be published in several languages . Therefore , LAW , according to which everyone had the right to receive information , was violated . The applicant also argued that section CARDINAL(CARDINAL ) of LAW was ambiguous and contrary to the LAW and international legal practice . He requested that ORG quash ORG judgment in so far as the court had recognised the lawfulness of the acquisition of the apartment by PERSON , since the acquisition that was clearly based on fraud could not be considered lawful . He further requested that the results of the auction be invalidated and that the constitutionality of the auction rules and section CARDINAL of LAW be examined . Finally , he requested that the degree of responsibility of ORG for the unlawful acts of the judge who had made the judgment of DATE be determined .

On DATE ORG refused the applicant leave to lodge an appeal with it .

Section CARDINAL(CARDINAL ) of LAW Perekonnaseadus ) provided that movable property in the joint ownership of spouses , where it had to be entered into a register , could not be transferred or pledged without the written consent of the other spouse regardless of in which spouse ’s name the property was entered in the register .

According to section CARDINAL of LAW ( General Principles ) Act ( ORG üldosa seadus ) , a void transaction was invalid from inception , it had not to be performed and the parties to it had to return what had been received by the void transaction , or if this was not possible , they had to compensate for it in money .

According to section CARDINAL of LAW ( NORP ) a person who had acquired an object by delivery in good faith would not become its owner , if the owner had been deprived of possession of the object against his or her will . An exception was made in respect of objects which had been sold at a public auction . A buyer at a public auction acquired the object regardless of whether its owner had been deprived of possession against his or her will .

LAW seadustik ) provided that the debtor and the claimant had , inter alia , the right to be present at the enforcement actions performed by the bailiff , to have access to the materials of the enforcement case file , to make statements concerning the enforcement procedure , to present opinions about the ownership and price of the property and to lodge an appeal against the bailiff ’s activities to the head of the enforcement department or to the court .

Under LAW § CARDINAL(CARDINAL ) of the Code the head of the enforcement department could suspend the enforcement proceedings in case a complaint concerning the activities of the bailiff had been lodged . According to LAW the decision of the head of the enforcement department could be challenged in a county or city court .

According to LAW had to be conducted in the presence of CARDINAL witnesses or a police officer .

Article CARDINAL - CARDINAL of the Code stipulated that a court had to declare an auction invalid , within DATE from its date , if the object had been sold to a person who had had no right to buy it or if other fundamental conditions of the auction had been violated .

Article QUANTITY of the Code provided that joint property as a whole could be sold only with the consent of the joint owners .

According to LAW , upon signing the report of seizing the property or upon receiving it , the debtor was required to inform the bailiff about the existence of items belonging to joint or common ownership among the seized property . Otherwise the debtor would forfeit his or her right to base a complaint concerning the incorrect drawing up of the report on these grounds .

Article QUANTITY provided that pledged property could be seized or sold only with the consent of the holder of the pledge .

According to LAW the debtor and the claimant could lodge a complaint to the head of the enforcement department in respect of the activities of the bailiff . The complaint could be lodged within DATE of the performance of the action complained of or from DATE on which the complainant became aware of the action . The complaint had to be reviewed with the participation of the claimant and the debtor within DATE . An appeal against the decision of the head of the enforcement department could be lodged with a county or city court . The court had to review the complaint within DATE ; the court ’s decision could be appealed against pursuant to the procedure provided for in the Code of Civil Procedure .

Article CARDINAL of the Code of Civil Procedure ( GPE seadustik ) set forth the requirements in respect of the form and content of a statement of claim . It had to be submitted to a court in writing and had to set out , inter alia , the clearly expressed claim of the plaintiff , the facts on which the action was based and evidence which proved the relevant facts .

According to LAW a plaintiff had the right to amend the cause or object of an action before the summations in a court of first instance by submitting a petition to that effect . The provisions concerning a statement of claim applied to such petition .

LAW provided that in an appeal against a judgment of a first instance court , a plaintiff did not have the right to amend the cause or object of action , or to file a claim which had not been filed in the court of first instance .

According to LAW had to verify on the basis and within the limits of an appeal whether a court of appeal had correctly interpreted and applied the law and whether the court had correctly observed the provisions of procedural law ( LAW ) .

In an appeal to ORG , an appellant did not have the right to amend the cause or object of action or to submit claims that had not been submitted earlier ( § CARDINAL ) .

ORG could not establish the facts underlying the action . It had to base its judgment on the facts established by a lower court ( § CARDINAL ) .

Under LAW ) of the LAW a person whose rights and duties had been adjudicated by a court , but who had not been involved in the proceedings , could request ORG to rectify the judgment concerned ( kohtuvigade parandamise avaldus ) .

According to section CARDINAL(CARDINAL ) of LAW ( Notariaadiseadus ) , notaries’ offices were institutions in public law whose duty was to certify interpersonal legal relationships and legal facts , within the limits determined by the ORG , in order to secure the protection of the lawful rights of persons and the ORG , and the stability of public order .

Section CARDINAL(CARDINAL ) of the Act provided that a notary was an independent person who held a ORG office as a contractor and performed the duties of a notary pursuant to the procedure prescribed in this LAW and other legislation .

Section CARDINAL(CARDINAL ) of the Act stipulated that a notary was liable for damage caused by his or her professional activities to the extent provided for in LAW . The ORG was not liable for damage caused by a notary .

According to section CARDINAL(CARDINAL ) of the LAW a notary was liable for direct proprietary damage caused as a result of wrongful acts performed by him or her intentionally or due to gross negligence . Section CARDINAL(CARDINAL ) provided that a notary was liable for damage caused by negligence only to the extent that the damage remained uncompensated by other persons who had caused it .

ORG of ORG has held a notary responsible for the financial loss the plaintiff suffered as a result of the notary ’s failure in DATE to verify the authority of the parties to enter into a transaction ( ORG settled the case finally on DATE , having heard it on CARDINAL occasions – cases QUANTITY . CARDINAL - CARDINAL - CARDINAL , CARDINAL , CARDINAL )

According to the decision of DATE of ORG of ORG ( case no . CARDINAL ) , complaints against the activities of the bailiff were subject to adjudication in the county or city court , where a person was unsatisfied with the decision taken in the matter by the head of the enforcement department .

In the judgment of DATE , ORG ( case no . DATE ) confirmed ORG view that the failure of a bailiff to inform the debtor of his or her rights in the enforcement proceedings constituted a violation of fundamental conditions of the auction in which case the auction had to be declared invalid . A similar position was taken by ORG of ORG in the judgment of DATE ( case no . CARDINAL - CARDINAL - CARDINAL - CARDINAL - CARDINAL ) . ORG declared an auction invalid since the bailiff had failed to inform the debtor sufficiently about the enforcement proceedings and had thus infringed the latter ’s right to be present during the performing of an enforcement action .


Violation of Art. 6-1;No violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE a certain company U submitted a bill of exchange in the amount of PLN MONEY signed by the applicant and requested ORG ( Sąd Rejonowy ) to issue an order for payment against him and other partners in the civil association K ( spółka cywilna ) .

On DATE the court made the order for payment , allowing the plaintiff ’s application . The applicant lodged an appeal against that order .

Subsequently , the applicant applied for exemption from the court fees . On DATE ORG ( Sąd Apelacyjny ) finally allowed his application .

ORG scheduled hearings for DATE , DATE , DATE and DATE . However , all of them were adjourned . DATE and CARDINAL DATE CARDINAL hearings were adjourned .

On DATE ORG gave judgment in which it upheld ORG order of DATE . The applicant lodged an appeal against that judgment .

On DATE ORG dismissed the applicant ’s appeal .

Subsequently , the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed the cassation appeal .

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

Article CARDINAL of LAW , as applicable until DATE ( see “ C. Constitutional Court ’s judgment of DATE below ) , provided for the following exception in cases where damage resulted from the issue of a decision or order :

“ CARDINAL . If , in consequence of the issue of a decision or order , a ORG official has caused damage , the ORG shall be liable only if a breach of the law has been involved in the issue of the decision or order and if that breach is the subject of prosecution under the criminal law or of a disciplinary investigation , and the guilt of the person who caused the damage in question has been established by a final conviction or has been admitted by the superior of that person .

The absence of the establishment of guilt by way of a criminal conviction or in a decision given in disciplinary proceedings shall not exclude ORG liability for damage if such proceedings can not be instituted in view of the [ statutory ] exception to prosecution or disciplinary actions . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . While the relevant amendments have in essence been aimed at enlarging the scope of ORG liability for tort under LAW of LAW – which included adding a new LAW and the institution of the ORG ’s tortious liability for its omission to enact legislation ( the so - called “ legislative omission ” ; “ zaniedbanie legislacyjne ” ) – they are also to be seen in the context of the operation of a new statute introducing remedies for the unreasonable length of judicial proceedings ( see paragraphs CARDINAL - CARDINAL below ) .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to give them , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”

However , under the transitional provisions of LAW , LAW as applicable before DATE ( see paragraph CARDINAL above ) shall apply to all events and legal situations that subsisted before that date .

On DATE ORG ( PERSON ) dealt with CARDINAL constitutional complaints in which the applicants challenged the constitutionality of Article CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW and CARDINAL § CARDINAL of the LAW .

On DATE the court gave judgment ( no . ORG CARDINAL/CARDINAL ) and held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful action of a ORG official carried out in the course of performing his duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it linked the award of compensation for such damage with the personal culpability of the state official concerned , established in criminal or disciplinary proceedings .

On DATE , the date on which ORG judgment took effect , Article CARDINAL was repealed . ORG opinion on the consequences of the repeal read , in so far as relevant :

“ The elimination of LAW from the legal system ... means that ORG liability for an action of a public authority consisting in the issue of unlawful decisions or orders will flow from the general principles of State liability laid down in LAW . This , however , does not rule out the application in the present legal system of other principles of ORG liability laid down in specific statutes and not necessarily only those listed in LAW . ”

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A party to pending proceedings may ask for the acceleration of those proceedings and/or just satisfaction for their unreasonable length under section CARDINAL read in conjunction with section CARDINAL ( CARDINAL ) of LAW .

Section CARDINAL , in so far as relevant , reads as follows :

Section CARDINAL provides , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL refers to proceedings that have been terminated and that do not fall under the transitional provision of section CARDINAL ( see paragraph CARDINAL below ) in the following terms :

“ A party who has not lodged a complaint about the unreasonable length of the proceedings under LAW ( CARDINAL ) may claim DATE under LAW ... DATE compensation for the damage which resulted from the unreasonable length of the proceedings after the proceedings concerning the merits of the case have ended .

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage had occurred . ”

Section CARDINAL of LAW lays down the following transitional rules in relation to the applications already pending before the Court :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

A complaint lodged under subsection CARDINAL shall indicate the date on which the application was lodged with the ORG .

The relevant court shall immediately inform the Minister of ORG of any complaints lodged under subsection CARDINAL . ”


The applicant was born in DATE and lives in GPE .

On DATE the police authorities impounded the applicant 's vehicle suspecting that it had been stolen .

On DATE the Osijek Municipal State Attorney 's ORG gave a decision by which it refused to institute criminal proceedings against a certain DATE a person from whom in DATE the applicant had bought the car DATE and dismissed the criminal complaint relating thereto . It however failed to decide on returning the vehicle to the applicant .

Meanwhile , on DATE the applicant brought a civil action against the ORG in ORG ( PERSON ) seeking recovery of the impounded vehicle or , alternatively , pecuniary damages . Subsequently , on DATE , the applicant withdrew the first claim maintaining the one for damages .

On DATE ORG gave judgment dismissing the applicant 's claim . The applicant appealed .

On CARDINAL DATE ORG ( Županijski sud u GPE ) quashed the first - instance judgment for misapplication of substantive law and remitted the case .

In the resumed proceedings , ORG held hearings on DATE , DATE , DATE and DATE . The hearings scheduled for DATE and DATE were adjourned owing to the illness of the judge assigned to hear the case , and to the applicant 's absence , respectively .

On DATE the parties reached an in - court settlement ( sudska nagodba ) whereby the ORG was to return the vehicle to the applicant , pay her CARDINAL NORP kunas ( HRK ) in respect of pecuniary damages , cover the costs of the proceedings in the amount of HRK CARDINAL,CARDINAL and pay the statutory default interest on these amounts accruable from the date of settlement , all within DATE . Under NORP law an in - court settlement is equal , in terms of its effects , to a res judicata judgment and constitutes an enforcement title .

NORP Since the ORG failed to perform the assumed obligations , on DATE the applicant applied to ORG for enforcement of the part of the above settlement concerning payment of damages and costs of proceedings . The case was later on transferred to ORG ( PERSON ) .

On DATE ORG issued a writ of execution ( rješenje o ovrsi ) , which was carried out on DATE .

The applicant 's vehicle has not been returned to her . The Government submitted that she had never attempted to enforce that part of the in - court settlement . The applicant , however , submitted that , relying on the settlement , she had attempted to retrieve her vehicle from the police authorities but had been sent from CARDINAL location to another , at none of which her car could be found .

Meanwhile , on DATE the applicant lodged a constitutional complaint under LAW of LAW complaining about the length of the above proceedings . On DATE ORG ( Ustavni sud PERSON ) dismissed her complaint finding that the delay was attributable to the complexity of the case and the applicant 's conduct . In particular , it found that the applicant had contributed to the length of the proceedings in that she had failed to attend the hearing of DATE . As to the conduct of ORG , ORG observed that there had existed CARDINAL substantial periods during which no hearings had been held . However , even though they altogether amounted to DATE , they had been justified because in that period ORG had been taking evidence by corresponding with the competent administrative authorities .

The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

Section CARDINAL

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant 's rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”

The relevant provisions of LAW ( Zakon o krivičnom postupku , ORG nos . CARDINAL , CARDINAL , CARDINAL ( consolidated text ) , CARDINAL ( errata ) and CARDINAL/CARDINAL ) , as in force at the material time , provided as follows :

Objects of evidentiary value shall be impounded temporarily and returned to the owner after the conclusion of the proceedings . If such an object is indispensable to the owner , it may be returned to him or her even before the conclusion of the proceedings but he or she shall be obliged to bring it upon request .

If there is a risk of delay , the police authorities may even before the commencement of the investigation temporarily impound objects pursuant to the provision of section CARDINAL of this Act ...

( CARDINAL ) Objects which have to be seized pursuant to LAW , or which may be used as evidence in criminal proceedings , shall be temporarily impounded and deposited with a court , or their safe - keeping shall be secured in another way .

( CARDINAL ) The police authorities may impound the objects referred to in paragraph ( CARDINAL ) when acting under the provisions of [ inter alia , section ] ... CARDINAL of this LAW , or when executing a court order .

The objects which were temporarily impounded in the course of the criminal proceedings shall be returned to their owner or holder upon the termination of the proceedings if their seizure is not required ( section CARDINAL ) .

( CARDINAL ) Objects that must be seized according to LAW shall also be seized when criminal proceedings do not end with a judgment convicting the accused , provided that this is required by considerations of public safety or the protection of morals .

( CARDINAL ) The authority before which the proceedings were pending at the time they ended or were discontinued shall render a separate decision thereon .

( CARDINAL ) The decision on the seizure of objects referred to in paragraph ( CARDINAL ) of this section shall also be given by a court when it has failed to give such a decision in a judgment convicting the accused .

( CARDINAL ) A certified written copy of the decision on the seizure of objects shall be served on the owner of the object , if he is known .

( CARDINAL ) The owner of the object is entitled to appeal against the decision referred to in paragraphs ( CARDINAL ) and ( CARDINAL ) of this section if he or she considers that no legal ground for the seizure of the object existed . If the decision referred to in paragraph ( CARDINAL ) of this section was not given by a court , the panel of the competent first - instance court shall decide on the appeal .


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

The applicant was born in DATE and lives in NORP .

On DATE the applicant was injured in an accident at work . The applicant ’s employer had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL tolars ( MONEY ) for the injuries sustained .

On DATE the presiding judge was appointed to ORG ( PERSON v PERSON ) and the case was assigned to a new judge .

DATE and DATE the applicant made CARDINAL requests that a date be set for a hearing .

On DATE and CARDINAL March CARDINAL he lodged preliminary written submissions and/or adduced evidence .

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

During the proceedings the court appointed a medical expert .

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

On DATE the applicant appealed to ORG ( PERSON v PERSON ) . ZT cross - appealed .

On DATE the court allowed in part the applicant ’s appeal and remanded the case back to the first - instance court for re - examination .

The judgment was served on the applicant on DATE .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) and requested that one of the judges be recused . ZT cross - appealed .

On DATE the request for recusal was rejected .

On DATE the court allowed in part the ORG ’s appeal , rejected the applicant ’s appeal and upheld the second - instance court ’s decision of remitting the case for re - examination before the first - instance court .

On DATE the presiding first - instance court judge was appointed to ORG and the case was assigned to a new judge for re - examination .

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

On DATE he made a request that a date be set for a hearing .

The court held hearings on DATE and DATE .

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

On DATE the applicant appealed to ORG .

On DATE the court allowed in part the appeal .


No violation of Art. 3 (in case of expulsion to the Democratic Republic of the Congo);No violation of Art. 8 (in case of expulsion to the Democratic Republic of the Congo)

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The applicant , who is a national of the ORG , was born in DATE and lives in GPE .

From DATE until DATE the applicant resided in GPE , at which point he returned to GPE ( as the ORG was then called ) after having obtained a laissez - passer from ORG in GPE .

NORP In DATE the applicant was working in GPE , the ORG , as the personal secretary of a prominent member of the opposition party Union pour la PERSON Progrès Social ( “ UDPS ” ) , who was also the editor of the opposition newspaper ORG . In DATE the applicant was contacted by unknown men who asked him to help assassinate his boss . The applicant refused , but DATE his boss disappeared and was then found unconscious and badly beaten . He died DATE in a local hospital . On DATE the applicant was arrested and put in prison ; he was never shown an arrest warrant . On DATE the applicant was transferred to the central PERSON prison in GPE . During the interrogations he was told he had been arrested because he had refused to help assassinate his boss . He was also told he would not live to see DATE . The applicant was beaten during the interrogation . On DATE the applicant managed to escape with the assistance of a guard who happened to be from the same tribe as the applicant . He stayed in the guard 's house while travel documents were arranged and on DATE the applicant flew to GPE . After arriving in GPE , the applicant was driven to the GPE where he requested asylum on DATE .

The applicant was granted a residence permit for the purposes of asylum for an indefinite period ( verblijfsvergunning asiel voor onbepaalde PERSON ) on DATE since there were sufficient grounds to believe that he would be persecuted should he return to the ORG .

On DATE the applicant filed a request for naturalisation . On the basis of this request , the applicant was interviewed by an official from ORG ( Immigratie- en Naturalisatiedienst ) on DATE . During the interview the applicant was confronted with the fact that , on DATE , he had been convicted and sentenced to DATE imprisonment in GPE for participation in a criminal organisation and possession of cocaine , by the GPE tribunal de première instance .

On DATE the applicant married PERSON with whom he had already had a son who was born on DATE . PERSON , also a national of the ORG , requested a residence permit for the purpose of staying with her spouse ( verblijfsvergunning voor verblijf bij echtgenoot ) and the permit was granted to her .

NORP By letter of DATE the Deputy Minister of Justice ( ORG ) notified the applicant of her intention ( voornemen ) to revoke the applicant 's residence permit pursuant to article CARDINAL of LAW ( Vreemdelingenwet ) , which allows the withdrawal of a residence permit on the basis of a criminal conviction of a certain severity .

NORP In her letter the Deputy Minister noted that the applicant had enjoyed legal residence in the GPE since DATE and that his conviction in GPE dated back to DATE . She further concluded that , according to NORP sentencing guidelines , a sentence of DATE imprisonment would have been imposed on the applicant had the offence been committed in the GPE . The Deputy Minister concluded accordingly that the length of the sentence , compared to the length of time the applicant had been living in the GPE , justified revoking the applicant 's residence permit . Considering that the applicant had been granted asylum in the GPE , the Deputy Minister held that a forced return of the applicant would have to be in compliance with the non - refoulement principle contained in FAC . In this regard the Deputy Minister considered that an individual report ( ambtsbericht ) from ORG explained that there had already been some doubts , given certain inconsistencies in the applicant 's story , when he had applied for asylum and that a new individual report had confirmed these doubts created by the inconsistencies . Moreover , since the applicant had left the ORG , regime changes had taken place in that country in DATE . The Deputy Minister considered that since the applicant had not shown that he had anything to fear from the new regime , he had not established that he would still face a real and personal risk of persecution in his country of origin . Finally , the Deputy Minister considered that revoking the applicant 's residence permit did not constitute an interference with the applicant 's right to respect for family life under the ORG since the interests of public order outweighed the interests of the applicant . Furthermore , it had become known that the applicant and his wife had separated , that he had not had any contact with her or their child for DATE and that there were no indications that he was actively participating in the upbringing of their son . In any event , since the applicant , his wife and their son all had NORP nationality , there were no objective obstacles for them to continue their family life in the ORG .

In his written comments ( zienswijze ) of DATE , the applicant disputed the finding that he would have been sentenced to DATE imprisonment in the GPE for an offence similar to the CARDINAL he had committed in GPE . The applicant argued that there was no set indication of the length of a sentence but that the individual circumstances of the person concerned would always be taken into consideration . It was therefore not possible to determine what kind of sentence he would have received had he been tried by a NORP court . The applicant further submitted that the grounds on which he had been granted his residence permit were still valid and that the reports used by the Deputy Minister in no way detracted from that . A forced return to the ORG would therefore entail a violation of the Convention . The applicant also submitted that he could exercise his family life only in the GPE , since his wife and child were living there .

On DATE the applicant appeared before an official board of inquiry ( ambtelijke commissie ) and on DATE the Minister for ORG ( Minister PERSON Integratie , the successor to the Deputy Minister of DATE hereafter “ the Minister ” ) issued a decision to revoke the applicant 's residence permit . The Minister considered that the estimate of a CARDINAL sentence in the GPE for the NORP offence was indeed correct , as an advisory letter from the prosecutor at ORG of ' s - Hertogenbosch ( “ PERSON ” ) stated that a CARDINAL sentence would have represented the minimum length of sentence the prosecutor could have sought based on the facts available to him . The Minister further noted that the applicant 's statement regarding his arrest in GPE before the official board of inquiry differed from the original statement he had given during the interviews that were conducted pursuant to his request for naturalisation on DATE . From these new statements the Minister concluded that the applicant had been fully aware of his actions when transporting the drugs across the border between the GPE and GPE . The Minister further noted that although the applicant had stated during the hearing before the board that he had had no further contact with judicial authorities , he had in fact been convicted of a number of insurance offences as well as violations of the DATE Road Traffic Act ( Wegenverkeerswet DATE ) . Concerning the risk of persecution that the applicant would face upon his return to the ORG , the Minister considered that the reports of ORG did disclose discrepancies in the applicant 's story . The Minister further considered that it had been concluded in the intention to revoke the applicant 's residence permit that the situation in the ORG had changed since the applicant had last been in that country and that he had failed to establish that he would still be at risk of persecution there . A forced return to the ORG would thus not be in violation of ORG , nor would it be contrary to LAW . Moreover , the applicant had been convicted of a drugs - related offence . For these reasons the Minister considered that the interests of the ORG in protecting public order outweighed the interests of the applicant . Finally , the Minister noted that the applicant and his wife ( with whom he had been reconciled by then ) and child all had NORP nationality and that there were no objective obstacles for them to continue their family life in the ORG .

By submissions of DATE and DATE the applicant appealed against the decision of the Minister to ORG of The Hague . On DATE ORG rejected the applicant 's appeal . ORG considered that the Minister had been correct in applying article CARDINAL of LAW and that the estimated sentence of DATE imprisonment , had the offence been committed in the GPE , was reasonable as well . ORG further determined that the Minister had been correct in taking notice of the reports from ORG in finding that the applicant 's original story contained inconsistencies . The resulting lack of credibility of the applicant 's story was sufficient to show that the applicant would not face a real , personal risk of treatment contrary to LAW upon his return to the ORG . The Minister had therefore been entitled to attach more weight to the protection of public order in relation to the interests of the applicant . ORG finally considered that the applicant had failed to establish a possible violation of LAW .

On DATE the applicant appealed against the judgment of ORG to ORG of ORG ( GPE bestuursrechtspraak PERSON – “ the NORP ” ) on essentially the same grounds . The applicant added , however , that according to a letter dated DATE from the prosecutor in PERSON ( which the Minister had neglected to add to the case file and for which ORG had reopened the proceedings so that it could be introduced ) , the prosecutor in PERSON did not have possession of the complete NORP case file and had thus only been able to estimate the length of the sentence that could be imposed . Furthermore , a judicial sentencing document submitted in the proceedings showed that a similar offence in the GPE would attract a custodial sentence of DATE . A sentence of that duration would not engage the consequences of LAW of LAW , meaning that the applicant 's residence permit would not be in jeopardy .

On DATE the ORG dismissed the applicant 's appeal . The ORG considered that the Minister had correctly applied the provisions of LAW of LAW in determining the length of imprisonment had the offence been committed in the GPE , based on the information obtained from the prosecutor in PERSON . In particular , the ORG considered that the indication of DATE and DATE sentence applied solely in relation to the possession of cocaine and did not include the charge of participation in a criminal organisation . The remaining grounds of appeal submitted by the applicant were dismissed summarily as not raising any points of law warranting determination .

The applicant currently lives in the GPE and has since divorced his wife but continues to visit her and their child regularly .

After the introduction of the application the applicant informed the ORG by a letter of DATE that he had spent DATE in an aliens ' detention centre in GPE after being apprehended there without a valid residence permit .

The applicant 's original asylum application was submitted under article LAW DATE ( PERSON ) , pursuant to which aliens coming from a country where they had a well - founded reason to fear persecution on account of their religious or political conviction , or of belonging to a particular race or a particular social group , could be admitted by the Minister of ORG as refugees .

NORP Since DATE the admission , residence and expulsion of aliens have been governed by LAW ( Vreemdelingenwet CARDINAL ) , LAW ( Vreemdelingenbesluit DATE ) , the Regulation on Aliens CARDINAL ( ORG DATE ) and LAW CARDINAL ( Vreemdelingencirculaire DATE ) . LAW ( PERSON ) is also applicable , except where otherwise stipulated .

Pursuant to article QUANTITY of LAW , an asylum - based right of abode that was valid at the time that LAW entered into force automatically entails a permanent residence permit under that LAW .

Under the policy laid down in article CARDINAL § CARDINAL ( b ) of LAW in conjunction with article LAW ( c ) of LAW , an alien who has been given a custodial sentence ( at least part of which was not suspended ) by a NORP or foreign court in a judgment that has become final and conclusive , for intentionally committing an offence punishable by a custodial sentence of DATE or more , could be refused permission for continued residence in the country . Underlying this policy is the principle that the longer an alien has lawfully resided in the GPE , the more serious the offence has to be before it may justify refusing continued residence ; the authorities thus apply a “ sliding scale ” ( glijdende schaal ) . The seriousness of an offence is determined on the basis of the sentence attached to it . To determine whether an alien may be refused permission for continued residence , the length of the sentence imposed is compared to the length of time that the alien had been living in the GPE when he or she committed the offence .

The revocation of a residence permit is also assessed in the light of the principle of non - refoulement and whether returning the alien to his country of origin would be in violation of LAW .

The respondent ORG 's policy on asylum seekers from the ORG is devised by the Deputy Minister of Justice ( ORG ) and , was temporarily – DATE and DATE devised by the Minister for ORG . It is based on official country reports published by the Minister of ORG and external sources .

At the time of the applicant 's initial request for asylum , his application was assessed on the basis of the official country reports of DATE , DATE , DATE and DATE in conjunction with ORG Country Reports on Human Rights Practices – Democratic Republic of Congo ( formerly GPE ) of DATE and DATE .

In the period when the applicant 's residence permit was revoked , applications from the ORG were assessed on the basis of the GPE official country report of DATE . Since then further reports have been issued by the GPE Minister of ORG in DATE , DATE , DATE , DATE and the latest in DATE .

The GPE authorities operate on the basis that the human rights situation in the ORG remains a cause for concern , but that it is not such that every asylum seeker should automatically be deemed a refugee within the meaning of the DATE Convention relating to LAW . The latest official country report of DATE classifies the general security situation as such :

“ During the entire reporting period the NORP authorities were unable to control their territory in large parts of the country , as well as to ensure the safety of citizens and maintain their monopoly on the use of force . In both the GPE and GPE province the security situation remained under pressure due to military operations of the NORP army against the FDLR , after which the ORG resorted to large scale retaliations . Other rebel factions , including several ORG , caused a large decrease in security . In the Haut- en ORG districts in the LOC province there was an increase in attacks by the PERSON despite military actions by the LAW . In the district of GPE militias of the ORG and FPJC fought with the ORG and launched assaults on villages . In all areas where ORG units were stationed and active the security situation was such that soldiers displayed severe misconduct towards the civilian population . The former rebel faction ORG , which had recently integrated into the ORG , played a key role in these infractions . At the end of the reporting period the security situation in the Equateur province deteriorated because of violent confrontations between a number of ethnic groups who later turned against the ORG . In the remaining parts of the country the security situation remained stable , although some security incidents occurred in the Bas - Congo province . ”

The report describes the overall situation in the ORG as follows :

“ Efforts to stabilize the eastern region of GPE witnessed significant setbacks during the reporting period . The processes relating to the GPE statements of commitment ( actes d'engagement ) and the GPE communiqué stalled , and large - scale hostilities between ORG ( ORG ) and the ORG national pour la défense du peuple ( ORG ) , led by PERSON , resumed on DATE . The fighting , which spread throughout GPE , has further exacerbated the humanitarian crisis , displacing over CARDINAL people and bringing the number of internally displaced persons in the eastern part of the country to CARDINAL . Exchanges of fire across the border between GPE and GPE , as well as a resurgence of armed groups in GPE and a resumption of atrocities committed by the Lord 's Resistance Army ( PERSON ) , further compounded the crisis in the area . While the security situation remained stable elsewhere in GPE , little progress was achieved in the key peace consolidation tasks , including the delivery of basic services and the extension of ORG authority . Preparations for local elections continued , but key legislation , without which the necessary preparatory work can not proceed , has yet to be adopted , risking further delays in the conduct of the elections . ”

Concerning freedom of speech in the ORG and the treatment of ORG supporters , the report stated :

“ Generally individuals could privately criticize the government , its officials , and private citizens without being subject to official reprisals . However , on DATE , ORG agents in GPE arbitrarily arrested and detained a member of ORG Goma for discussing politics with local citizens . The victim , who was released on DATE after the PERSON intervened , claimed that he was subjected to cruel , inhumane , and degrading treatment while in detention . No action had been taken against the responsible ORG agents by DATE . ”

Concerning political rights and parties , the report stated :

“ The ORG is not an electoral democracy . The DATE elections were a significant improvement over previous elections , but serious problems remained . The opposition ORG ( UDPS ) party did not participate as a result of the party leader 's call for a boycott of the recent constitutional referendum . International observers noted voter registration irregularities and corruption . The campaign period included clashes between opposition militants and government forces as well as an attempt on opposition leader PERSON life . The DATE ORG elections were similarly plagued by political corruption , with allegations of vote buying . Local elections initially scheduled for DATE were delayed until DATE . ”

Regarding the treatment of failed asylum - seekers upon return to the ORG , the report noted :

“ CARDINAL.CARDINAL The ORG response on the ill - treatment of failed asylum seekers returned to GPE noted : ' The NORP human rights NGO ' Voix des Sans Voix ' informed the office that rejected asylum - seekers are received upon arrival at the airport by agents of ORG , who question them why they left and applied for asylum . The NGO had an office at the airport and are closely monitoring the situation . They mentioned that there were many failed asylum - seekers who are sent back by western NORP countries , but they are not aware of any of these persons detained and/or tortured upon return . They reported that some of the failed asylum - seekers had to pay some money to the police ( CARDINAL to CARDINAL USD ) . '

CARDINAL ORG 's response also recorded that ORG ) GPE , the Mission of the United Nations in GPE ( MONUC ) , ORG ( ORG ) and ORG staff who were ' ... at times present at the airport [ in GPE ] ... ' did not hold the information to confirm the existence of instances of the detention , abuse or torture of failed asylum - seekers . The ORG response concluded ' With the limited information available to ORG , it does not have evidence that there is a systematic abuse , including detention and mistreatment , of failed asylum - seekers returned to the ORG through GPE airport . '

CARDINAL An e - mail from ORG in GPE via the ORG dated CARDINAL DATE stated that at a meeting with a Policy Officer of ORG of GPE ORG , the officer told them that he had spent DATE talking to NGOs , international organisations and ORG , he said that ORG , ORG , ORG and all the NGOs he spoke to said that , while there were obviously serious human rights issues in ORG , returned failed asylum seekers were not targeted , nor were they singled out as a particular group by the authorities . All of his interlocutors had said that the stories of abuse that they had heard had all come from LOC , and that their investigations had shown the allegations to be either false , or doubtful due to lack of evidence . ”


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

NORP The applicant , TRANSPETROL , a.s . ( “ the applicant company ” ) , is a joint - stock company established in DATE under the laws of GPE with its head office in GPE .

At various stages of the proceedings before the ORG the applicant company was or has been represented by Mr PERSON , PERSON , Mr PERSON , PERSON and PERSON , lawyers practising in GPE .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

NORP The applicant company specialises in transporting , storing , buying and selling oil . It has a registered capital of MONEY .

In the past , including at the time of the contested judgment ( nález ) of ORG ( see paragraphs CARDINAL and CARDINAL below ) , the ORG , in the person of ORG ( “ the Ministry ” ) , owned PERCENT of the shares in the applicant company . The remaining shares were owned by private parties .

At present all of the shares in the applicant company are owned by the ORG , in the person of the Ministry .

The status and functioning of the applicant company are subject to provisions of LAW ( see paragraph CARDINAL in the “ Relevant domestic law ” section below ) . It is subject to the jurisdiction of the ordinary courts .

Under PERSON ORG on the Privatisation of Strategically Important State - owned Enterprises and Joint - stock Companies Act ( “ the Strategic Interests Act ” – see paragraph CARDINAL in the “ Relevant domestic law ” section below ) , the shares in applicant company which were held or owned by the ORG could not be subject to privatisation .

Under the Large - scale LAW ( “ the LAW ” – see paragraph DATE in the “ Relevant domestic law ” section below ) , the applicant company is listed among a list of entities having the character of a natural monopoly ( prirodzený monopol ) .

Since DATE a number of companies and individuals have claimed that they have obtained title to PERCENT of the shares in the applicant company by way of purchase in the context of a forced sale , carried out pursuant to the enforcement of an adjudicated claim for damages by a third party company against the ORG .

CARDINAL such company is a limited liability company , A.

The ownership , possession and other rights in respect of the abovementioned shares have been subject to numerous private - law transactions and a large amount of litigation of various kinds .

Various persons involved in the transactions mentioned above , including the representative of company A , a judicial enforcement officer and an advocate , were put on trial on charges of money laundering and fraud . The proceedings appear to be still pending , following a judgment convicting the defendants at first instance .

More details are summarised in the ORG ’s decision of CARDINAL DATE in the application of PERSON and Others v. GPE ( no . CARDINAL/CARDINAL ) .

On DATE company A. lodged a petition with ORG ( ORG súd ) arguing that it was the owner of PERCENT of the shares in the applicant company , which was above the statutory PERCENT threshold for being entitled to have an extraordinary general meeting ( “ EGM ” ) of shareholders in the applicant company called .

ORG argued that the applicant company had ignored a previous request it had made to call an ORG and sought judicial authorisation to do so itself .

The applicant company was the defendant in those proceedings .

On DATE ORG allowed the petition and authorised company A. to call an EGM , having found it established that company A. was the owner of CARDINAL shares in the applicant company .

On DATE , exercising his discretionary power , the Prosecutor General challenged the decision of CARDINAL DATE in ORG ( Najvyšší súd ) by way of an extraordinary appeal on points of law ( mimoriadne dovolanie ) .

Relying on DATE and CARDINAL § CARDINAL of the LAW ( see paragraphs CARDINAL and CARDINAL in the “ Relevant domestic law ” section below ) and on the relevant provisions of the Strategic Interests Act and LAW – see paragraphs DATE in the “ Relevant domestic law ” section below ) , the Prosecutor General argued , inter alia , that at the relevant time the acquisition of shares in the applicant company by company A. had been excluded by law . PERSON was accordingly not a shareholder in the applicant company and had no power to call an EGM of its members .

On DATE ORG determined the extraordinary appeal for the first time ( see below ) by allowing it , quashing the decision of DATE and remitting the case to ORG for reexamination .

Company A. subsequently challenged the judgment of ORG of DATE by way of a complaint under LAW ( see paragraph CARDINAL in the “ Relevant domestic law ” section below ) .

ORG was named as the defendant in this complaint . The applicant company had no standing in the constitutional proceedings .

On DATE the proceedings on the merits of the DATE petition of company A. ( see paragraph CARDINAL above ) were terminated following the withdrawal by company A. of its petition on the grounds that the EGM had already taken place and that , consequently , the petition had become moot .

The further course of the proceedings , as described below , thus merely concerned the extraordinary appeal of ORG ( see paragraph CARDINAL above ) and the constitutional complaints of company A. ( see the preceding paragraph and paragraphs CARDINAL and CARDINAL below ) .

On DATE ORG ( Ústavný súd ) found that ORG had violated the right of company A. to a fair trial .

Consequently , ORG quashed the judgment of DATE and remitted the case to ORG for re - examination of ORG extraordinary appeal .

In its reasoning , ORG held that “ [ company A. ] had obtained the shares and had done so in the course of enforcement proceedings ” and that “ it was justified and lawful for [ company A. ] to assume that it had legitimately become the owner of the shares , which had provided a basis for it to have the power to call the general meeting ” .

ORG also held that it had been wrong for ORG to have reexamined the question of the lawfulness of the acquisition by company A. of the shares in question . To that end , ORG observed that , in the case at hand , ORG had dealt with proceedings concerning the calling of an EGM and that the acquisition in question had taken place in the course of enforcement proceedings falling within the jurisdiction of the enforcement courts and having been concluded with final and binding effect .

On DATE ORG ruled on the extraordinary appeal by ORG for the second time . It again quashed the decision of DATE and remitted the case to ORG for re - examination .

ORG disagreed with the legal views of ORG and considered that , thereby , ORG had unconstitutionally interfered with its jurisdiction .

Company A. then challenged the judgment of ORG of DATE by way of a complaint under LAW .

On DATE the ORG quashed the judgment of CARDINAL DATE and remitted the case to ORG for a fresh determination of the extraordinary appeal by ORG .

ORG found the contested judgment to be arbitrary , devoid of adequate reasoning and contrary to ORG being bound by legal reasoning expressed by ORG ( see paragraph CARDINAL in the “ Relevant domestic law ” section below ) .

On DATE ORG ruled on the extraordinary appeal by ORG for the third time . It again quashed the decision of DATE and remitted the case to ORG for reexamination .

ORG considered the judgment of ORG of DATE to be incomprehensible and pointed out that the handling of the petition at first instance had been chaotic and riddled with numerous irregularities .

Company A. challenged ORG judgment of CARDINAL DATE under LAW . Its complaint ( registered under file no . PERSON . ÚS CARDINAL/CARDINAL ) was declared admissible on DATE but the proceedings were eventually discontinued on DATE further to the withdrawal by company A. of its complaint .

On DATE company A. again sought judicial authorisation to call an EGM of the applicant company ’s members .

On DATE ORG allowed a fresh petition , following which company A. called the EGM for DATE .

The applicant company was the defendant in those proceedings , being assisted by the ORG in the person of the ORG , acting as an intervenor for the defendant ( vedľajší účastník ) .

In its decision , ORG relied , inter alia , on the judgment of ORG of DATE ( see paragraph CARDINAL above ) .

On DATE , upon motion of the ORG in the guise of ORG , the Prosecutor General challenged the decision of DATE in ORG by way of an extraordinary appeal on points of law . At the same time , the Prosecutor General requested that the legal effect of the challenged decision be suspended pending the outcome of the proceedings on the merits .

On DATE ORG suspended the legal effect of the decision of DATE pending the outcome of the proceedings .

Nevertheless , on DATE , the ORG took place .

On DATE ORG quashed the decision of DATE and remitted the matter to ORG for reexamination .

ORG held , inter alia , that the legal views expressed by ORG in its judgment of DATE ( see paragraph CARDINAL above ) had no directly binding legal effect upon ORG .

NORP On DATE , upon a complaint under LAW by company A. , ORG found a violation of the complainant ’s right to a fair trial under LAW , quashed the judgment of ORG of DATE and remitted the matter to ORG for a new determination of the extraordinary appeal by ORG .

The Constitutional Court found that there had been irregularities related to the serving of a copy of ORG extraordinary appeal on company A. and that , in consequence , ORG could not be said to have ensured service of that appeal on company A. for observations , to the detriment of the latter ’s procedural rights .

The further course and outcome ( if any ) of the proceedings in this matter have not been made known to the ORG .

The above - mentioned pronouncements of ORG , and in particular those in its judgment of DATE ( see paragraph CARDINAL above ) , had been relied on by various parties in a number of transactions and lawsuits concerning shares in the applicant company . These include purported transfers of the litigious shares from company A. and the other alleged shareholders ( see paragraph CARDINAL above ) to company B. , incorporated in GPE , and then to company C. , incorporated in GPE , and proceedings before ORG file nos . CARDINAL Cb CARDINAL/CARDINAL , CARDINAL , CARDINAL and before ORG file no . CARDINAL DATE .

DATE provides that :

“ Mineral resources , caves , underground waters , natural healing sources and streams are the property of GPE . ”

The relevant part of LAW reads as follows :

“ An Act of ORG shall determine which property other than that indicated in LAW , which is necessary for the safeguarding of the needs of society , development of the national economy and public interest , may only be owned by the ORG , a municipality or a specified legal entity . ”

Under LAW :

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

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such a 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 a person whose rights under paragraph CARDINAL have been violated . ”

Details concerning the status , structure and functioning of ORG and procedures before it are defined in LAW .

Pursuant to its section CARDINAL(CARDINAL ) :

“ Should the Constitutional Court quash a final and binding decision , measure or other interference and remit the matter for further proceedings , the body which issued the decision , decided on the measure or carried out other interference shall be bound to e - examine the matter and to decide anew . In such proceedings or process that body shall be bound by the legal view expressed by ORG .

The Strategic Interests Act ( Zákon o zabezpečení záujmov štátu pri privatizácii strategicky dôležitých štátnych podnikov a akciových spoločností ) was adopted with effect from DATE and remained in force until DATE . In the relevant part of section CARDINAL(CARDINAL ) it provides that :

“ Shares in [ the applicant company ] , which are held or owned by the ORG or [ the ORG ] can not be subject to privatisation . ”

LAW ( Zákon o podmienkach prevodu majetku štátu na iné osoby ) regulates the conditions for transfer of property of the State to legal entities and individuals . Under its section CARDINAL(CARDINAL ) the privatisation of enterprises or their parts as well as of proprietary interests in legal entities having the character of “ natural monopolies ” must always be decided upon by the cabinet after the matter has been debated in ORG . The applicant company is recognised as having the character of a “ natural monopoly ” ( section CARDINAL(CARDINAL)(i ) ) .

The status , structure , organisation and functioning of joint - stock companies is regulated by LAW ( Law no . PERSON . , as amended ) , in particular by sections ( Oddiel ) CARDINAL and CARDINAL , chapter ( PERSON ) CARDINAL of its Part ( Časť ) CARDINAL .

On DATE and DATE ORG lodged CARDINAL applications with the ORG , which were registered under application numbers CARDINAL/CARDINAL and CARDINAL respectively .

In applications numbers CARDINAL/CARDINAL and CARDINAL the ORG was represented by PERSON , a lawyer practising in GPE ( for comparison see paragraph CARDINAL above ) .

Relying on LAW , the Ministry complained that the course and outcome of the proceedings leading up to ORG judgment of DATE ( see paragraph CARDINAL above ) and a decision of CARDINAL DATE , by which ORG had rejected the ORG ’s complaint against the judgment of CARDINAL DATE , were contrary to its rights under LAW No . CARDINAL .

On DATE the ORG , sitting in the formation of a ORG under former LAW , declared applications numbers CARDINAL/CARDINAL and CARDINAL inadmissible as being incompatible ratione personae with the provisions of the Convention , within the meaning of Article CARDINAL .


The applicants , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE and live in GPE and GPE , GPE , respectively . The respondent Government are represented by Mr PERSON , Agent , ORG and Law Enforcement .

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

On DATE the ORG preferred a bill of indictment against the applicants , charging them with bribery and other offences .

On DATE the case was assigned to ORG . This court suspended the proceedings on DATE with a view to obtaining ORG ruling on a procedural question .

After the constitutionality proceedings had been terminated on CARDINAL DATE , the bill of indictment was served on the applicants on DATE . In the ensuing proceedings , the applicants were assisted by defence counsel of their choice .

On DATE , CARDINAL and DATE and DATE , ORG held hearings and , on DATE , found the applicants guilty of bribery . They were sentenced to fines .

On appeal , on DATE PERSON held a public hearing , which the applicants did not attend , despite having been properly summoned . Their lawyer was present . The court upheld the applicants’ conviction . In application of section CARDINAL § CARDINAL of the ( Old ) Code of Criminal Procedure , the judgment was served on the applicants’ lawyer on DATE and on the applicants on CARDINAL and DATE , respectively .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in Haninge . He is represented before the Court by Mr W. Pietikäinen , who lives in GPE . The respondent Government are represented by their Agent PERSON , ORG .

The applicant worked as a refrigerator erector for DATE . In DATE while welding he was exposed to phosgene as a result of a Freon leakage . DATE he caught pneumonia . Having recovered therefrom , as from DATE he suffered from headache , dizziness , fatigue and hypersensitivity in his left hand . On DATE claiming that he had been exposed to an on - the - job injury the applicant requested that ORG in GPE ( Försäkringskassan , PERSON ) pay him compensation and a life annuity ( ersättning och livränta ) . The applicant ’s medical records , a medical opinion of QUANTITY DATE by a doctor at a clinic specialising in occupational medicine , and a statement of CARDINAL DATE by the doctor attached to ORG in order to assist with medical matters , were submitted . Both doctors stated that a causal connection between the Freon leakage incident and the symptoms that the applicant later experienced was improbable . It appears that the applicant and his counsel attended a consultation with ORG . On DATE ORG found against the applicant .

On appeal to ORG in GPE ( Länsrätten i GPE ) , the applicant , represented by counsel , requested that an oral hearing be held and that a witness on his behalf , a former refrigerator erector , be heard . He did not specify which issues he wanted to hear the witness about , except the fact “ refrigerator erectors do not live long ” . By decision of DATE the court refused to hold an oral hearing since on the material before it such was found clearly unnecessary . The court indicated that the invoked witness could not contribute to the elucidation of the question whether there was a causal link between the applicant ’s exposure to phosgene and his health problems , and held that the available written evidence was sufficient for a proper assessment of the applicant ’s case . The applicant was given an opportunity to submit his final observation in the case DATE .

On DATE the applicant submitted his final observations , which included a fresh request that the witness be heard at an oral hearing in that “ the best knowledge of industrial injuries comes from the workplace ” . His request was refused on DATE by the court , which on the same date delivered its judgment confirming ORG decision in the light of the material submitted i.e. the evidence which had also been submitted before ORG . Like ORG , the court did not question that the applicant had been exposed to phosgene , but found that no causal link existed between the exposure and the applicant ’s medical problems .

The applicant requested leave to appeal and an oral hearing in the leaveto - appeal proceedings , including an examination of his witness . By decision of CARDINAL DATE ORG ( ORG ) stated as follows :

” The proceedings before ORG are written . According to LAW ( förvaltningsprocesslagen ) the proceedings may include an oral hearing with regard to a particular issue when there is reason to assume that holding a hearing would be to the advantage of the proceedings or further the speedy determination of the case . An oral hearing shall take place at the request of an individual party to the case if such a hearing is necessary and there are no particular reasons against holding a hearing .

Having regard to the nature of the case and the evidence submitted , ORG finds that an oral hearing and a hearing of the witness is unnecessary , and thus refuses the [ applicant ’s ] request ... ”

The applicant was given an opportunity to conclude his claim in writing and by decision of CARDINAL DATE ORG refused the applicant ’s request for leave to appeal .

On DATE the applicant submitted his request for leave to appeal to ORG ( Regeringsrätten ) before which he reiterated his request for an oral hearing and an examination of his witness . On DATE ORG informed the applicant that oral hearings are not normally hold before it . Furthermore , the court invited the applicant to submit his final observations in the case within DATE . By decision of CARDINAL DATE ORG refused the applicant ’s request for leave to appeal .

All gainfully employed persons working in GPE are insured against industrial injuries in accordance with LAW ( lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL ; hereinafter “ the LAW ” ) . The term industrial injury refers mainly to injuries that result from accidents or other harmful effects at a person ’s place of work .

Pursuant to chapter CARDINAL , section CARDINAL of LAW , an industrial injury shall immediately be reported to the employer , who shall report it to ORG . The office shall obtain a medical opinion concerning the injury . A physician shall be attached to the office in order to assist it in medical matters ( the insurance doctor ) . The assessment of whether an injury qualifies as an industrial injury , as well as the degree of reduction of a person ’s ability to engage in gainful employment , shall be made on the basis of the available medical opinions , the insurance doctor ’s assessment of those opinions and any other information pertaining to the matter .

For an injury to be qualified as an industrial injury a causal link must be established between the accident or the harmful effect in the workplace and the insured ORG health problems . At the relevant time , the question of whether a particular injury or illness incurred by the insured was to be regarded as an industrial injury was subject to a rule of evidence relieving the insured person of the burden of proof . If it was clear that the insured person had suffered an accident or had been subjected to some other harmful effect at work , his or her medical problems were presumed to have been caused by the accident or the harmful effect unless there were much stronger grounds for a conclusion to the contrary ( chapter CARDINAL , section CARDINAL of LAW in its wording before DATE , which applied to injuries having occurred before that date and which had been reported to ORG by DATE at the latest ) . ORG

The procedure in the administrative courts is governed by the provisions of ORG ( förvaltningsprocesslagen , lag CARDINAL:CARDINAL - hereinafter “ the DATE LAW ) . Section CARDINAL provides :

“ The proceedings are in writing .

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

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

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

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

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


Violation of Art. 6-1;Not necessary to examine Art. 13 and P1-1;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 , GPE .

In DATE PERSON obtained a loan from ORG . In DATE , due to the failure of PERSON to repay the loan , the bank sold her flat to Mr S. The latter sold the flat to PERSON . , who further sold it to Mr G. On DATE the applicant purchased the flat from Mr G.

In DATE the applicant instituted proceedings in the GPE ORG of GPE ( “ the ORG ” ) , seeking the eviction of PERSON and her minor child from the flat . PERSON lodged a counter - claim and requested the court to invalidate all the sales contracts concerning the flat . The parties to these contracts were summoned to participate in the proceedings .

On DATE the court found for the applicant and ordered the eviction of Mrs S. together with her child .

On DATE the defendant requested an extension for lodging an appeal in cassation . On DATE ORG granted the extension requested on the ground that she had missed the initial deadline through no fault of her own .

On DATE ORG ( “ the ORG ” ) rejected the defendant ’s appeal in cassation against the decision of DATE .

On DATE , the Deputy General Prosecutor of GPE , following the complaint of the defendant , lodged a request for supervisory review ( protest ) of the applicant ’s case with the ORG of ORG . On DATE the ORG allowed the request , quashed the decisions of DATE and DATE , and remitted the case for a fresh consideration . It found that the lower courts misinterpreted the facts and law in the case .

On DATE ORG found for the applicant .

On DATE the defendant requested an extension for lodging her appeal in cassation . On DATE ORG granted the extension requested . It found that ground that the defendant had missed the initial deadline through no fault of her own .

On DATE ORG quashed the decision of DATE and remitted the case for a fresh consideration .

On DATE the Vatutinskyy Court found against the applicant .

On DATE the applicant appealed in cassation against the decision of CARDINAL DATE . On DATE the Vatutinskyy Court granted the applicant an extension for lodging his appeal , as he had not been informed about the decision of CARDINAL DATE in due time .

On DATE ORG quashed the decision of DATE and remitted the case for a fresh consideration on the ground that the first instance court had considered the case in the absence of PERSON and PERSON . , and the third parties to the proceedings , PERSON and Mr PERSON , who had not been informed about the hearings .

By the decisions of CARDINAL DATE and CARDINAL DATE , ORG discontinued the consideration of the applicant ’s claims and the counter - claim of the defendant because of their failure to attend the hearings on the same dates .

On DATE the applicant appealed in cassation to ORG of GPE against the decision of DATE , of which he had been informed on DATE .

On DATE ORG of GPE quashed the decision of DATE and remitted the case for a fresh consideration on the grounds that ORG had failed to inform the applicant about the date and place of the hearing DATE .

On DATE ORG of GPE ( the former ORG ) found for the applicant and ordered the eviction of PERSON together with all other persons residing in that flat . The court held that the applicant had lawfully acquired the flat .

On DATE the defendant appealed against the judgment of DATE . On DATE the Desnyanskyy District Court of GPE granted the defendant a time - limit to rectify the shortcomings of her appeal .

On an unspecified date the defendant lodged with the same court the corrected version of her appeal .

On DATE the ORG rejected the defendant ’s appeal against the judgment of DATE .

On DATE the panel of CARDINAL judges of ORG rejected the defendant ’s request for leave to appeal in cassation .