The applicant , ORG , is a NORP limited liability company , which was dissolved on DATE . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by PERSON , ORG .

On DATE the shares of the applicant company , which was then called ORG , were sold by ORG , its executive director , to another person , ORG The company changed its name in DATE and S.S. was registered as its director in the official company register in DATE . The applicant company was therefore represented by ORG during the main part of the domestic proceedings in the present case .

Following a tax audit of the applicant company , ORG ( skattemyndigheten ) of GPE , by a decision of DATE , revised upwards its taxable income for DATE by MONEY ( SEK ) and ordered it to pay a tax surcharge ( skattetillägg ) amounting to PERCENT of the increased tax liability . By another decision of the same date ORG also revised upwards PERSON 's taxable income , and ordered him to pay a tax surcharge . The whole of the amounts were payable on DATE .

On DATE both the applicant company and ORG appealed against ORG decisions . They also requested that the execution of the amounts assessed be stayed .

By decisions of DATE and , upon reconsideration , CARDINAL DATE ORG rejected the requests for stays of execution , stating that the prerequisites laid down in section CARDINAL of LAW ( Uppbördslagen , DATE ) had not been fulfilled . The matter was then automatically referred to ORG ( länsrätten ) of GPE for determination .

On DATE and DATE ORG reconsidered its decisions on taxes and tax surcharges but decided not to change them . In the latter reconsideration decision , it was stated that the taxation matter was forwarded to ORG , to which further submissions should be made .

In a letter of CARDINAL DATE the applicant company and GPE requested ORG to decide before the taxes and surcharges became due on DATE on an interim stay of execution until that issue had been finally examined or to grant a stay pending the final examination of the tax cases . They maintained , inter alia , that , under LAW , they had a right to a court determination of their tax liability before the amounts assessed by ORG were enforced , especially since such enforcement could lead to their being declared bankrupt . They also asked the court to hold an oral hearing on the stay - of - execution issue .

By judgments of DATE ORG quashed ORG decisions regarding the requested stay of execution and referred the cases back to the ORG . Having found that the formal prerequisites for granting a stay under LAW , subsections CARDINAL ( CARDINAL ) ( in respect of GPE ) and CARDINAL ( CARDINAL ) ( in respect of the applicant company ) of LAW had been fulfilled , the court noted that the granting of a stay of execution under these provisions was conditional on security being provided if it could be assumed that the amounts for which a stay had been sought would not be duly paid . As ORG had not ruled on the question whether security was required , the cases had to be referred back for such an examination . The court further found that , in view of this outcome , an oral hearing was unnecessary .

On DATE ORG granted ORG stay of execution pending ORG examination of the appeal against the decision of DATE regarding his taxation . However , by a decision of CARDINAL DATE , ORG rejected the applicant company 's corresponding request . It found that the company 's ability to pay was open to doubt , that a stay of execution could not therefore be granted unless security was provided and that , although given the opportunity to do so , the company had failed to provide security .

In a letter of CARDINAL DATE the applicant company asked that the stay - of - execuation issue be examined in its entirety . ORG interpreted this as a new request for a stay and rejected it on DATE and , upon reconsideration , on DATE , as the company still had not provided security . Noting that ORG , in its judgment of CARDINAL DATE , had determined that the formal prerequisites for granting a stay had been fulfilled , ORG found no reason to examine this question .

On DATE the applicant company again appealed to ORG . It reiterated its request for either an interim stay of execution or a final stay pending the outcome of the tax assessment proceedings . In pointing out the potential damage that could be caused to the company , it noted that nothing prevented ORG ( kronofogdemyndigheten ) from filing a petition for the company 's bankruptcy . Stating that it intended to request an oral hearing in the tax assessment proceedings at which it would invoke oral evidence , the company also repeated that it wished the court to hold a hearing on the stay - of - execution issue .

By a decision of CARDINAL DATE ORG rejected the request for an interim stay of execution , finding that it had no legal basis .

On DATE ORG quashed ORG decision of CARDINAL DATE and again referred the case back to the ORG . The court stated that the applicant company , in its new application for a stay of execution , had requested that the issue be examined in its entirety and noted that ORG had not made a new examination of whether any of the prerequisites for granting a stay were at hand . ORG should therefore rule on this question as well as on the question of security . In view of this outcome , the court did not find it necessary to hold an oral hearing .

By a decision of DATE ORG ( kammarrätten ) in GPE found no reason to examine the applicant company 's appeal against ORG decision of CARDINAL DATE as the latter court had later taken a final decision on the stay - of - execution issue . The appeal was thus dismissed . On DATE ORG ( Regeringsrätten ) refused leave to appeal against the appellate court 's decision .

On DATE ORG , representing the ORG , filed a petition with ORG ( tingsrätten ) of GPE , requesting that the applicant company be declared bankrupt . According to a statement submitted by the ORG , the company was registered as being in arrears with taxes and surcharges amounting to a total of SEK CARDINAL,CARDINAL . The ORG noted that an investigation had revealed that the value of the company 's assets was insufficient to cover the debt . In fact , it had no known assets .

On DATE ORG attempted to serve the bankruptcy petition and a summons for a hearing on DATE under the ordinary procedure for serving documents set out in section CARDINAL , subsection CARDINAL of the Act on the Service of Documents ( PERSON ; GPE ) , by sending CARDINAL letters , CARDINAL to the applicant company 's registered address and CARDINAL to the registered address of FAC , its director . The letters contained a so - called “ white card ” to be signed and returned to the court within a specified time - limit . When that notice of delivery was not returned , ORG proceeded to employ a special procedure for serving the documents ( särskild delgivning med aktiebolag ) , set out in DATE , subsection CARDINAL of the LAW . Thus , on DATE it sent the documents by mail to the applicant company 's registered address and on DATE it sent a letter to the same address confirming the earlier dispatch .

ORG held its hearing on DATE . No representative of the applicant company was present . Noting that the company had been notified of ORG bankruptcy petition and summoned to the hearing on DATE after the dispatch of the second letter sent in accordance with the special procedure – , ORG proceeded with the hearing . On the merits , ORG found that it had been shown that the ORG had a claim against the applicant company and that the company must be considered insolvent as it did not have sufficient assets to cover the full debt . Thus , the company was declared bankrupt .

By a judgment of DATE ORG , without having held an oral hearing , upheld ORG reconsideration decision of CARDINAL DATE concerning the underlying tax issues . It thus agreed with the ORG 's assessments in regard to the applicant company 's taxable income and the imposition of a tax surcharge . By another judgment of the same date the court also upheld ORG decision on the taxation of GPE

By a letter of DATE the applicant company appealed against ORG bankruptcy decision to ORG ( PERSON hovrätt ) . It claimed , inter alia , that ORG , its present director , had been abroad for some time and had not been given an opportunity to reply to the bankruptcy petition . ORG had therefore made a gross procedural error , for which reason the case should be referred back to that court .

On DATE ORG found that the applicant company had been notified of the bankruptcy petition and summoned to ORG hearing in due order and that there was thus no reason to refer the case back to ORG . Further noting that the company had not shown that it was not insolvent , the appellate court upheld the declaration of bankruptcy . On DATE ORG ( ORG domstolen ) refused leave to appeal against the appellate court 's decision . The bankruptcy proceedings were terminated on DATE owing to a lack of assets .

On DATE the applicant company and ORG lodged appeals against ORG taxation judgments . They completed their appeals on DATE . They asked ORG to stay the execution of the taxes and tax surcharges involved pending the final determination of the tax issues . In the first place , they requested that the judgments be quashed and the tax case be referred back to ORG as that court had committed a grave procedural error by neither holding an oral hearing nor giving the company and GPE the opportunity to make final submissions in the case . In the alternative , they asked the appellate court to give judgments in their favour .

On DATE ORG , in the stay - of - execution case referred back to it by ORG on DATE , informed the applicant company that it had found that the prerequisites for a stay were at hand but that , due to the company 's economic situation as shown by the fact that it had been declared bankrupt , a stay required that security be provided . The company was therefore invited to provide security . The company having failed to do so , ORG , on CARDINAL DATE , refused to grant a stay . Already having been declared bankrupt , the company found that a stay of execution was no longer useful and thus did not appeal against ORG decision .

By decisions of DATE ORG found , in response to the letter of DATE , that it could not rule on the question of a stay of execution as no decision on this matter had been brought before that court . It stated , however , that the matter was pending before ORG . On DATE ORG refused leave to appeal against the appellate court 's decisions .

By judgments of CARDINAL DATE ORG rejected the applicant company 's and ORG 's appeals against ORG taxation judgments . The appellate court found that their requests for an oral hearing at first instance had to be considered as having been made only in relation to the stay - of - execution issue . Consequently , neither the lack of an oral hearing on the tax issues nor any other part of the written procedure at first instance gave reason for the cases to be referred back . In regard to the substantive tax issues , the appellate court agreed with the assessments made by ORG .

By letters of DATE the applicant company and LOC appealed against the appellate court 's taxation judgments to ORG . While , on DATE , the court granted ORG leave to appeal , it refused the applicant company leave to appeal by a decision of DATE .

The rules on taxes and tax surcharges relevant to the present case were primarily laid down in LAW ( Taxeringslagen , CARDINAL:CARDINAL ) .

Income tax is determined by county tax authorities , to which taxpayers are obliged to submit information relevant to the assessment of taxes . For the purpose of securing timely , sufficient and correct information , there are provisions stipulating that , under certain circumstances , the tax authorities may impose penalties on the taxpayer in the form of tax surcharges .

A tax surcharge is imposed on a taxpayer in CARDINAL situations : if he or she , in a tax return or in any other written statement , has submitted information of relevance to the tax assessment which is found to be incorrect ( chapter CARDINAL , section CARDINAL of LAW ) or if , following a discretionary assessment , the tax authority decides not to rely on the tax return ( chapter CARDINAL , LAW ) . It is not only express statements that may lead to the imposition of a surcharge ; concealment , in whole or in part , of relevant facts may also be regarded as incorrect information . However , incorrect claims are not penalised ; if the taxpayer has given a clear account of the factual circumstances but has made an incorrect evaluation of the legal consequences thereof , no surcharge is imposed . The burden of proving that the information is incorrect lies with the tax authority . A discretionary tax assessment is made if the taxpayer has submitted information which is so inadequate that the tax authority can not base its tax assessment on it or if he or she has not filed a tax return despite having been reminded of the obligation to do so ( chapter CARDINAL , section CARDINAL ) . In the latter case the decision to impose a tax surcharge will be revoked if the taxpayer files a tax return within a certain time - limit . The surcharge amounts to PERCENT of either the income tax which ORG would have failed to levy if it had accepted the incorrect information or the income tax levied under the discretionary assessment . In certain circumstances , the rate applied is PERCENT .

Notwithstanding the fact that the taxpayer has furnished incorrect information , no tax surcharge will be imposed in certain situations , for example when the tax authority has corrected obvious miscalculations or written errors by the taxpayer , when the information has been corrected or could have been corrected with the aid of certain documents that should have been available to the tax authorities , such as a certificate of income from the employer , or when the taxpayer has corrected the information voluntarily ( chapter CARDINAL , section CARDINAL ) .

Moreover , in certain circumstances , a tax surcharge will be remitted . Thus , taxpayers will not have to pay a surcharge if their failure to submit correct information or to file a tax return is considered excusable owing to their age , illness , lack of experience or comparable circumstances . The surcharge should also be remitted when the failure appears excusable by reason of the nature of the information in question or other special circumstances , or when it would be manifestly unreasonable to impose a surcharge ( chapter CARDINAL , section CARDINAL ) .

If dissatisfied with a decision concerning taxes and tax surcharges , the taxpayer may , before the end of DATE after DATE , request the tax authority to reconsider its decision ( chapter CARDINAL , sections TIME ) . The tax authority 's decision may also be appealed against to a county administrative court . As with requests for reconsideration , an appeal must normally be lodged before DATE after DATE ( chapter CARDINAL , sections CARDINAL and CARDINAL ) . Following the appeal , the tax authority shall reconsider its decision as soon as possible and , if it decides to vary the decision in accordance with the taxpayer 's request , the appeal will become void ( chapter DATE , section CARDINAL ) . If the decision is not thus amended , the appeal is referred to the county administrative court . If special reasons exist , an appeal may be forwarded by the tax authority to the county administrative court without reconsidering the assessment ( chapter DATE , section CARDINAL ) . Further appeals lie to an administrative court of appeal and , subject to compliance with the conditions for obtaining leave to appeal , ORG .

If the proceedings before a county administrative court or an administrative court of appeal concern a tax surcharge , the appellant has the right to an oral hearing upon request in all cases except where there is reason to assume that no surcharge will be imposed ( chapter CARDINAL , section CARDINAL ) . Normally , however , the proceedings before the administrative courts are in writing ( section CARDINAL of the Administrative Court Procedure Act ( Förvaltnings - processlagen , CARDINAL:CARDINAL ) ) .

At the material time , the collection of taxes and tax surcharges was regulated by LAW .

A request for reconsideration or an appeal against a decision concerning taxes and tax surcharges has no suspensive effect on the taxpayer 's obligation to pay the amounts in question ( section CARDINAL of LAW and chapter CARDINAL , LAW ) .

However , the tax authority may grant a stay of execution in respect of taxes and surcharges provided that CARDINAL of the following CARDINAL conditions is met : ( CARDINAL ) if it may be assumed that the amount imposed on the taxpayer will be reduced or remitted , ( CARDINAL ) if the outcome of the case is uncertain , or ( CARDINAL ) if payment of the amount in question would result in considerable damage for the taxpayer or would otherwise appear unjust ( section DATE , subsection CARDINAL of LAW ) .

If , in cases where the second or third condition just referred to is applicable , it may be assumed DATE due to the taxpayer 's situation or other circumstances DATE that the amount for which a stay of execution is requested will not be duly paid , the request can not be granted unless the taxpayer provides a bank guarantee or other security for the amount due . Even in these cases , however , a stay may be granted without security if the relevant amount is relatively insignificant or if there are other special reasons ( section DATE , subsection CARDINAL ) .

A taxpayer may request the tax authority to reconsider its decision concerning the stay - of - execution issue and may appeal against its decision to a county administrative court . The procedure is essentially identical to that followed in regard to requests for reconsideration and appeals concerning the main tax issues ( sections CARDINAL , CARDINAL and CARDINAL of LAW ) . Further appeals to an administrative court of appeal and ORG are subject to leave to appeal being granted ( section CARDINAL ) .

The enforcement offices are under an obligation to levy execution on a debtor upon request , even if the tax authority 's decision concerning tax and tax surcharges is not final ( chapter CARDINAL , section CARDINAL and chapter CARDINAL , section CARDINAL of LAW ( ORG ) in conjunction with sections CARDINAL and CARDINAL of LAW ) . If the debtor does not have enough distrainable property , the enforcement office may request a district court to declare the debtor bankrupt . The debtor will normally be considered insolvent if it is discovered during attempts to levy distress in DATE preceding the presentation of the bankruptcy petition that the assets are insufficient to pay the debt in full ( chapter CARDINAL , section CARDINAL of LAW ( PERSON , CARDINAL:CARDINAL ) ) . If the bankrupt 's estate is not sufficient to defray all the existing and expected bankruptcy expenses and other liabilities that the bankrupt has incurred , the bankruptcy proceedings will be terminated ( chapter CARDINAL , section CARDINAL of LAW ) .

If a bankruptcy petition is based on a tax debt determined by a decision that is not yet final , the court examining the petition is required to make an independent assessment of the alleged debt , having regard to the evidence adduced in the bankruptcy proceedings . The court accordingly has to make a prediction about the outcome of the pending tax assessment proceedings ( judgment of ORG of DATE , case no . Ö CARDINAL/CARDINAL ) .

If a limited liability company has been declared bankrupt and the bankruptcy proceedings are terminated without any remaining assets , the company is dissolved ( chapter CARDINAL , section CARDINAL of LAW ( ORG , DATE ) ) .

As taxes and tax surcharges are payable even if the tax authority 's decision is not final , the decision may be varied or quashed after the relevant amounts have been paid . In this situation and also if the tax decision is amended to the taxpayer 's advantage by a court judgment , the amount overpaid is refunded with interest ( chapter DATE , section CARDINAL and chapter CARDINAL , sections CARDINAL and CARDINAL of LAW ) . If distress has been levied on the taxpayer 's property or the taxpayer has been declared bankrupt on account of the tax debt , the distress warrant or bankruptcy decision will be set aside on appeal . Should the warrant or decision have become final , the taxpayer may , upon request , have the case reopened and the warrant or decision quashed ( chapter LAW ( Rättegångsbalken ) ) . Any property that has been distrained upon will , if possible , then be restored ( chapter CARDINAL , section CARDINAL of LAW ) . The same applies to property forming part of a bankrupt 's estate to the extent that it is not required for the payment of the bankruptcy expenses and other liabilities ( chapter CARDINAL , section CARDINAL of LAW ) . If the taxpayer 's property has been sold and the amount obtained from the sale has been used to pay off the alleged tax debt , the taxpayer will receive financial compensation . In addition , it is open to the taxpayer to bring an action for damages against the ORG for the financial loss caused by the distress or the bankruptcy ( chapter CARDINAL , section CARDINAL of LAW ( LANGUAGE - lagen , CARDINAL:CARDINAL ) ) , on the ground that the authorities or the courts have acted wrongfully or negligently .

Service of a document on a legal person shall be effected by delivering the document to someone who has the comptence to represent the legal person ( section CARDINAL , subsection CARDINAL of the Act on the Service of Documents ) . In the event of a failure to serve a document on a limited liability company in the manner mentioned or when such service is deemed to have no prospect of success and provided it is not considered inappropriate in view of the circumstances of the case , so - called special service may be used ( section CARDINAL , subsection CARDINAL of the Act ) . This means that service is effected by sending the document by mail to the company followed by a letter DATE informing it that the document has been dispatched . Both the letter containing the document and the information letter shall be sent to the company 's registered address , as found in the official company register . Service of the document is considered to have taken place DATE after the dispatch of the information letter unless it appears unlikely that the document has arrived at the registered address ( section QUANTITY ) . A precondition for employing the special service is usually that CARDINAL attempt has been made at serving the document in accordance with the ordinary procedure . This may be done by sending the document to the company by ordinary mail including a notice of delivery , which is to be signed by a competent representative and sent back to the authority ( Government PERSON , p. CARDINAL et seq . ) .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

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

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

On DATE the applicant was arrested on suspicion of robbery .

On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand .

The applicant ’s pre - trial detention was extended throughout the trial on numerous occasions .

On DATE ORG ( Prokurator Rejonowy ) lodged with ORG a bill of indictment against the applicant and his coaccused . The applicant was charged with attempted robbery and assault .

On DATE ORG remitted the case to the prosecutor for further investigation .

The applicant remained in detention , which was prolonged on DATE and DATE .

On DATE the ORG again indicted the applicant for assault and attempted robbery .

The applicant ’s detention was further extended .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE imprisonment .

ORG ( PERSON ) upheld the first - instance judgment on DATE .

On DATE ORG ( Sąd Najwyższy ) dismissed the applicant ’s cassation appeal .

From DATE to CARDINAL DATE the applicant was serving a prison sentence imposed on him by ORG in respect of other convictions .

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


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

In DATE , as a result of the GPE nuclear plant disaster , the applicant and her family had to move from GPE , which is situated QUANTITY from GPE ( a so - called “ third zone of radioactive pollution ” ) . The applicant settled in GPE , the LOC . The applicant 's apartment in GPE ( which she had leased from the ORG ) is currently occupied by her son 's family

In DATE ORG provided the applicant with an apartment in a co - operative house . The applicant paid part of the price . The applicant alleges that the apartment was in an unfit state and that she had to spend money to have it repaired .

On DATE the applicant applied to ORG for the reimbursement of the expenses incurred in acquiring the apartment , to which she was entitled as a victim of the GPE disaster .

By DATE the applicant had received , in CARDINAL instalments , a total of ORG CARDINAL ( approximately EUR CARDINAL,CARDINAL ) by way of reimbursement of the cost of purchasing the apartment . In DATE the applicant instituted proceedings against ORG , alleging that the sum received did not cover the amount that she had had to spend on the repair of the apartment and took no account of the effects of inflation .

On DATE the ORG of PERSON rejected the applicant 's claim . On DATE ORG upheld this judgment . The court stated , inter alia , that the case was not a civil but a public law dispute . Therefore , the sum to be reimbursed could not be based on the actual expenses and losses of the applicant but had to be determined by the local authorities on the basis of the PERSON of DATE ( see the “ Relevant law ” below ) and relevant governmental regulations . The court further indicated that , in the applicant 's case , the amount of the reimbursement had been determined by ORG on the basis of the method established by ORG in accordance with the DATE PERSON . The sum was calculated with reference to the value of the apartment on the date of purchase , the time of the payment of the reimbursement and other criteria . Since the applicant 's costs had been reimbursed in full , the applicant had no right under domestic legislation to receive any further sum from the ORG .

According to ORG CARDINAL and CARDINAL of the Law “ On ORG ” of CARDINAL DATE ( “ the DATE LAW ) , the zones of radioactive pollution are determined depending on their level of pollution . Persons living in the third zone of radioactive pollution are entitled to “ guaranteed voluntary resettlement ” . This means that the citizens who live in this zone are entitled to receive objective information about the level of pollution , sufficient to enable them to decide whether to continue living in this territory . If they decide to leave the area , then the authorities are obliged to create the necessary conditions for resettlement .

Article QUANTITY of the PERSON provides that persons who moved from the third zone of radioactive pollution are entitled to receive free housing with CARDINAL options to apply for it . First , they can apply to the local authorities to obtain free municipal housing . In this case :

“ [ the persons ] are put by the organisations they work in or by executive committees of the local councils on a separate waiting list for attribution of municipal housing on the priority basis ”

Or second :

“ the executive committee of the local council , the citizens ' employer as well as the citizens themselves can buy ... homes and apartments from private persons for a market price ... as well as vacant public homes or apartments for residual value ”

In case if persons resettling from the GPE zone opt for acquiring the housing on their own ( either by buying or building it ) they are entitled to have their costs and expenses reimbursed to them by the ORG . The amount of and procedure for reimbursement are determined by the councils , based on the LAW and relevant governmental regulations .


Violation of Art. 3;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant is a merchant with business LOC at FAC . On DATE the police arrived at FAC in response to a bomb alert and required everyone to evacuate the building so that it could be searched . The applicant and several other persons refused to comply with this instruction . Following an argument lasting from TIME until TIME between certain merchants , including the applicant , and the police , the officer in charge decided to detain the applicant , believing him to be responsible for the general disobedience to the order to evacuate .

The Government stated that when QUANTITY police officers grabbed him by his arms and started to hustle him out , the applicant threw himself on the ground .

The applicant stated that he had not resisted the police officers and that he had been grabbed without warning and his legs kicked from under him .

Having immobilised the applicant , QUANTITY police officers dragged him through FAC to the exit . Outside the building he was handcuffed and forced into a police car and then driven to the GPE ORG .

The applicant stated that , while in the car , he was hit repeatedly by a police officer .

On their arrival at ORG , police officers lifted the applicant out of the car , hauling him up by the handcuffs attached to his wrists .

As the applicant had suffered some bruises to his wrists and face , a doctor was called . The applicant did not indicate to the doctor that he had been ill - treated by the police .

The applicant maintained that at the police station he was taken to the basement where CARDINAL police officers repeatedly beat and kicked him . CARDINAL of them stepped on his belly with such violence that it caused bowel movements . Subsequently , he was placed in a cell for TIME . During that time a police lieutenant entered the cell , shouted at him , abused him verbally and spat in his face .

Eventually QUANTITY police officers fetched the applicant and escorted him to the exit at TIME

On DATE and DATE the applicant was examined at ORG and ORG .

On DATE the applicant laid charges of ill - treatment and unlawful detention against the police . In the ensuing criminal proceedings , ORG heard the applicant , his wife and son and CARDINAL other witnesses who had been present in FAC at the time of the incident .

These witnesses , all from the applicant 's side , confirmed that he had been dragged through FAC but they remained inconclusive as to whether the applicant had been kicked off his feet or had thrown himself on the ground in resistance .

ORG also heard Mr F. , who was the commander of the bomb disposal squad in charge of the operation at FAC , as well as the managers of FAC .

The applicant alleged that in the course of his interrogation he identified CARDINAL of the police officers who had assaulted him and that he selected their photographs from several shown to him . However , the photograph of a third officer involved was not among those shown to him .

NORP The prosecutor in charge obtained and watched a video recording shot by a television cameraman outside FAC at the time of the incident , but found nothing of relevance .

The opinion of PERSON , a forensic medical expert , dated DATE , which was prepared at the request of ORG , contained the following conclusions :

“ [ ... ] According to the documents on the medical examination of [ the applicant ] carried out on DATE at TIME at ORG , his right - side upper incisor no . CARDINAL was loosened , he had concentrical bruises on the soft parts of both wrists and hyperaemia could be observed on a palm - sized surface on the left side of the belly wall . He complained of pain in the right side of his chest and the right ankle joint but no exterior signs of any injury could be observed . The X - ray examination did not display any traumatic deviation either . The diagnoses contained in the outpatient medical file , the medical report and the medical opinion read as follows : ' Dislocation of the right - side upper tooth . Bruises on both wrists . Bruises on the right side of the chest and on the left side of the belly wall . Bruises on the right hand . '

[ The applicant 's ] stomatological examination carried out at ORG on DATE at TIME established the traumatic loosening of the upper incisor no . CARDINAL on the right side and that of both incisors on the left side . It also established that the bridgework between the upper teeth LAW . CARDINAL and CARDINAL on the left side became loose in a non - traumatic way . As treatment , his pain was alleviated and ' rehabilitative dental treatment ' was proposed for him on account of the loosening of the bridgework and of the incisors indicated above . The stomatological report contains the diagnosis of ' loosening of the upper incisors ' .

On the basis of the available medical files , it can be established from a forensic medical point of view that [ the applicant ] actually suffered loosening of the upper incisor no . CARDINAL on the right side and of both incisors on the left side and , in addition , bruises on the soft parts of both wrists and circumscript hyperaemia on the left side of the belly wall .

The bruises on the right side of the chest and on the right hand diagnosed in the traumatological medical files can not be substantiated from a forensic medical point of view , given that those diagnoses were based exclusively on pain alleged by [ the applicant ] but no exterior signs of any injury could be observed .

[ The applicant 's ] injuries as described in the medical files jointly and severally healed within DATE . No disability or serious deterioration of health may be expected as a consequence of the injuries suffered .

On the basis of the available medical findings , it can be substantiated that the body sustained CARDINAL non - incisive knocks of maximally medium impact ( közepesnél nem nagyobb erejű tompa erőhatás ) .

CARDINAL knock may have affected the area of the upper incisors , necessarily at a moment when the lips did not cover the teeth . The mouth was probably open since CARDINAL incisors became loose whereas the upper lip was not injured .

CARDINAL knock may have affected the area of both wrists , almost certainly as a result of handcuffing .

CARDINAL knock may have affected the belly wall , most probably in the form of a blow effected with an open hand .

It can not be excluded that the injuries diagnosed in the medical files were occasioned at the time specified by [ the applicant ] in the course of the police action .

It can be stated most definitely that the truth of [ the applicant 's ] allegation as to the degree and severity of the ill - treatment he allegedly suffered can be excluded from a forensic medical point of view . This conclusion is supported by the consideration that if [ the applicant ] had really been seriously ill - treated by several persons for a longer period of time in the form of numerous blows and kicks to his body , he would also have suffered , all over his body , injuries such as bruises of the covered soft parts . In addition , as a result of the alleged fact that he had been dragged on the ground , he would also have had bruises on the epithelium of the lower limbs .

On the basis of the medical files , however , only the fact of handcuffing can be established . In addition to the latter , the mouth and the belly wall areas may each have sustained a non - incisive knock of medium impact . A blow ( ütés ) or a bang ( ütődés ) could equally have caused these latter injuries , which means that they could easily be caused without ill - treatment , and simply result from an impact sustained in the course of the police action during which physical force was applied in order to effect the handcuffing .

The medical reports do not verify the alleged nose bleeding [ of the applicant ] . ”

On DATE ORG discontinued the proceedings concerning the applicant 's complaints against the police . Relying on the above medical report , ORG concluded that the applicant 's allegations of ill - treatment were impossible to prove , whereas his police custody had been justified on account of his resistance to lawful police measures .

On DATE the applicant complained to ORG against the order to discontinue the investigations .

On DATE ORG dismissed the applicant 's complaint . It noted that according to the medical documents in the case – and contrary to his statement of complaint – the applicant 's injuries had healed within DATE . Furthermore , since his allegations were impossible to reconcile with some of the witness testimony , ORG saw no reason to depart from the conclusions of ORG .


Violation of Art. 5-1;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE . He is presently detained in the NORP prison .

During the DATE period the applicant was convicted CARDINAL times of various offences : theft , car theft , deserting military duties and possession of narcotic drugs .

In DATE the applicant fled GPE to GPE , travelling through the former GPE and GPE on a NORP passport . The applicant submits that he left GPE on DATE , but according to ORG judgment of CARDINAL DATE ( see paragraph CARDINAL below ) he committed a rape on DATE and an attempted rape on DATE , both offences taking place in GPE . In DATE the applicant settled in GPE , where he lived until DATE .

On DATE criminal proceedings were opened against the applicant on charges of rape . There is no indication – and it has not been argued by the Government – that the applicant was notified of the proceedings .

On DATE the proceedings were stayed , most probably because the applicant was abroad . The proceedings resumed on DATE and thereafter were conducted in the applicant 's absence .

On DATE ORG submitted an indictment against the applicant to ORG .

The court held a hearing on DATE . The applicant was represented by an ex officio counsel , as mandated by LAW ( CARDINAL ) of LAW ( “ the ORG ” ) .

In a judgment of CARDINAL DATE the ORG found the applicant guilty of rape and attempted rape and sentenced him to DATE imprisonment . The court found that on DATE the applicant had decoyed a PERSON , who vaguely knew him , into following him into a house , where he had threatened and beaten her into having sexual intercourse with him . The court also found that on DATE the applicant had decoyed , in a similar manner , an acquaintance of his , ORG , had likewise threatened and heavily beaten her and had cut her with a knife . She had , however , managed to break out , thus avoiding sexual intercourse with the applicant . The court based its findings of fact on the testimony of PERSON , PERSON , PERSON husband , CARDINAL other witnesses , medical reports and other written evidence , including CARDINAL notes written by the applicant himself .

No appeal having been lodged against the judgment , it came into force on DATE .

On DATE ORG casefile , containing all documents relevant to the proceedings , was destroyed . Only a copy of the judgment was kept in the archive of the court .

On DATE ORG transmitted a copy of the judgment to the police with a view to the applicant 's apprehension for the purpose of enforcing his sentence . The letter accompanying the judgment stated that the applicant was believed to be in GPE , but his exact whereabouts were unknown .

On DATE ORG sent a copy of the judgment to ORG with a view to the applicant 's extradition from GPE . On DATE ORG wrote back to ORG , stating that the legal cooperation treaty between GPE and GPE contained no provisions for assistance in criminal cases , and that therefore there was no possibility to request the applicant 's extradition from GPE .

On DATE ORG sent a second copy of the judgment to the police with instructions to enforce it in the event the applicant returned to GPE .

On DATE the police issued a nationwide search warrant for the applicant . ORG was also requested to establish the applicant 's whereabouts , apparently to no avail .

In DATE the applicant came back to GPE , to visit relatives .

On DATE he went to a police station in GPE to renew his driver 's licence . DATE he was arrested and taken to a prison facility to start serving his sentence .

On DATE the applicant filed with ORG a request for release . He argued that the tenyear limitation period for the enforcement of his sentence had expired in DATE .

On DATE ORG rejected the request , holding that the DATE limitation period had been interrupted on several occasions and had therefore not expired . The latest interruption had taken place on DATE , which was DATE before DATE of the applicant 's arrest .

The applicant appealed to ORG .

On DATE ORG dismissed the appeal , holding that actions had been undertaken for the enforcement of the applicant 's sentence in DATE and in DATE . Therefore , the running of the limitation period had been interrupted and a new period had started to run in DATE , due to expire on DATE .

The applicant appealed to ORG , submitting that the actions which had been undertaken during the DATE period had not in fact had the effect of interrupting the running of the limitation period .

On DATE the ORG dismissed the appeal , holding that the running of the limitation period for the enforcement of a sentence was interrupted by every act of the competent authorities aimed at its enforcement . These acts could be legal acts , or organisational , or technical acts . During the DATE period the competent authorities had undertaken a number of acts for enforcing the applicant 's sentence . In particular , a copy of the judgment had been sent to the police in DATE and a nationwide search warrant had been issued for the applicant in DATE . These had had the effect of interrupting the running of the limitation period .

The applicant appealed to ORG .

On DATE ORG dismissed the appeal , holding that the running of the limitation period had been interrupted on several occasions and that therefore it had not expired as of DATE .

In the meantime , in DATE , the applicant lodged with ORG a request for the reopening of the DATE criminal proceedings against him on the basis of LAW ORG . He also argued that the limitation period for the enforcement of his sentence had expired and requested release on that basis .

ORG rejected the request in a judgment of DATE . It held that the request was partly inadmissible and partly illfounded . The applicant 's request for reopening and rehearing of the case was inadmissible , since that could not be done , the casefile having been destroyed in DATE . Whether the casefile had been destroyed in accordance with the relevant rules was immaterial , the fact remained that as a result , a rehearing was impossible in practice . Insofar as the applicant could be understood as requesting reopening , quashing of the conviction and suspension or discontinuation of the proceedings , that request was illfounded , as it had not been established that at the time of the trial there had existed grounds for suspension or discontinuation of the proceedings . As to the applicant 's request for the application of the statute of limitations , it was inadmissible , as ORG had no primary jurisdiction in such matters .

On DATE the applicant requested the president of ORG to restore the casefile of the DATE criminal case against him . It seems that he has received no reply to his request .

The ORG allows trial in absentia in certain limited circumstances . According to LAW , as in force at the material time , it was possible when :

“ [ the trial in absentia ] would not hamper the ascertaining of the truth ... [ and ] the accused [ was ] outside the territory of GPE , if :

NORP his residence [ was ] unknown ; [ or ]

he [ could not ] be summoned because of other reasons ; [ or ]

he ha[d ] been duly summoned and ha[d ] not indicated a good cause for his failure to appear . ”

Cases where the offence carried a term of imprisonment could be heard in absentia “ only if [ the accused 's ] residence in the country [ was ] unknown and [ had ] not been established after a thorough effort to locate [ him ] ” ( LAW ORG ) .

When an accused is tried in absentia , he must be mandatorily represented by an ex officio counsel ( LAW ( CARDINAL ) of the ORG ) .

Until DATE NORP law did not provide for reopening of criminal cases heard in absentia . Thereafter such reopening became possible in cases where the convicted person was unaware of the criminal proceedings against him or her and submits a request for reopening within DATE after having learned of the conviction ( new Article CARDINALa of the ORG ) . The request is examined by ORG ( Article CARDINAL of the ORG ) , which may quash the conviction and either order rehearing of the case ( LAW ORG ) or discontinue or suspend the criminal proceedings ( LAW ORG ) .

Article CARDINAL § § CARDINAL and CARDINAL of LAW ( “ the ORG ” ) , insofar as relevant , provides that a judgment imposing a sentence from DATE imprisonment can not be enforced DATE after its entry into force . The running of this limitation period is interrupted by every act effected by the competent authorities for the purpose of enforcing the sentence ( LAW of the ORG ) . Such interruptions notwithstanding , the sentence may no longer be enforced if DATE have elapsed since the judgment 's entry into force ( LAW ) .

The ORG does not contain express provisions establishing a procedure to be followed in cases where there is a dispute as to whether a person has been detained in execution of a sentence after the expiry of the limitation period for its enforcement . LAW ( CARDINAL ) of the ORG provides that the court which has delivered a judgment rules on all difficulties or uncertainties relating to its interpretation . In general , the authority responsible for supervising legality in the enforcement of sentences of imprisonment is the competent prosecutor ( LAW ORG , section CARDINAL ) of the Judicial Power Act and section CARDINAL ) of LAW ) . In particular , the competent prosecutor has to order the release of every imprisoned person whom he or she finds deprived of liberty unlawfully ( section CARDINAL(CARDINAL)(CARDINAL ) of LAW ) .

By section CARDINAL(CARDINAL ) of Regulation no . CARDINAL of DATE on the functions of the registries of the district , regional , military and appellate courts ( „ Наредба № CARDINAL за функциите на служителите в помощните звена и канцелариите на районните , окръжните , военните и апелативните съдилища “ ) , in force at the material time and until DATE , criminal casefiles where the sentence had not been enforced were to be kept in the court 's archive for a period equal to the limitation period for the enforcement of the sentence . The superseding regulations provide the same ( see section CARDINAL(CARDINAL ) of ORG in LOC and ORG )

Section CARDINAL of the Regulation provided that if a casefile was lost or destroyed prematurely , it could be restored by order of the president of the respective court , acting ex officio or pursuant to a request by a party . This was technically done by the administrative secretary of the court , who gathered all documents relating to the case which were kept by the court , by other bodies and by the parties to the case . After all available materials were collected , the court held a public hearing , to which the parties were summoned , and ruled on the restoration of the casefile . The court 's order was subject to appeal to a higher court . The superseding regulations are broadly similar ( see section CARDINAL of the Rules on Court Administration in the District , Regional , Military and ORG ) .

Section CARDINAL of ORG of DATE ( „ Закон за отговорността на държавата за вреди , причинени на граждани “ ) , which sets out causes of action for tort claims against the investigation and prosecution authorities and the courts , provides , as relevant :

“ The ORG shall be liable for damage caused to [ private persons ] by the organs of ... the investigation , the prosecution , the courts ... for unlawful :

NORP pretrial detention ... , if [ the detention order ] has been set aside for lack of lawful grounds ;

NORP accusation of a crime , if the accused is acquitted or if the criminal proceedings are discontinued because the crime was not committed by the accused , because the act committed by the accused does not constitute a crime , or because the criminal proceedings were instituted after the expiry of the limitation period or despite an amnesty ;

NORP conviction of a crime ... if the convicted is [ subsequently ] acquitted ... ;

execution of a sentence above and beyond the specified period . ”

The reported caselaw under LAW suggests that the term “ unlawful ” refers to unlawfulness under domestic law ( реш. № DATE г. от DATE г. PERSON № DATE г. на ВКС , реш. № CARDINAL/CARDINAL г. от DATE г. по PERSON № CARDINAL/CARDINAL г. на ORG ) .

Persons seeking redress for damage occasioned by decisions of the investigating and prosecuting authorities or the courts in circumstances falling within the scope of the LAW have no claim under general tort law as the LAW is a lex specialis and excludes the application of the general regime ( section CARDINAL(CARDINAL ) of the LAW ; реш. № DATE г. от CARDINAL декември DATE г. , по PERSON № DATE г. на ВС GPE г.о. ) . The Government have not referred to any successful claim under general tort law in connection with unlawful deprivation of liberty .


The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

s and ORG and GPE pursuant to Rule CARDINAL § CARDINAL ( a ) of ORG , may be summarised as follows .

In DATE the applicants ' father 's villa and an adjacent plot of land were confiscated without compensation by the regime . The ORG subsequently built an annex to the villa .

On an unspecified date ORG informed ORG of their intention to purchase the LOC of ORG . Accordingly , they requested ORG to put at their disposal different proposals for the purchase of LOC .

On DATE the NORP ORG in GPE entered into an agreement to purchase CARDINAL buildings . CARDINAL of the buildings , designated for use as the private residence of the head of the LOC , was the villa confiscated from the applicants ' father .

On DATE the applicants informed the NORP Ambassador in GPE about their property claims to the villa , in view of the fact that it had been illegally confiscated from their father .

The transaction was concluded through an inter - State agreement authenticated by note verbale exchanges between the CARDINAL governments .

Pursuant to the relevant provisions of NORP law , as they stood at the material time , the land was inalienable ; consequently the title to the buildings alone was transferred by ORG to ORG .

The relevant property title was not entered in ORG .

On an unspecified date the applicants brought civil proceedings in ORG claiming their title to the unlawfully confiscated property .

On DATE the ORG allocated to the applicants their father 's villa and ordered ORG to make it possible for the applicants to enter into possession of that property . As ORG did not lodge an appeal , the decision became final .

Pursuant to ORG ( “ LAW ” ) , the applicants lodged an application with ORG ( PERSON i GPE dhe PERSON ) , claiming their title to their father 's property .

On DATE the Commission , confirming the unlawfulness of the confiscation of the property , allocated to them the villa and the adjacent plot of land measuring QUANTITY m.

Moreover , the court also allocated to the applicants the annex to the villa as , pursuant to LAW , the outlay by the ORG in respect of structural changes and annexes to the original building amounted to PERCENT of the property 's original value .

In so far as it was impossible for the applicants to have the whole original plot of land returned to them , the Commission held that the ORG had an obligation to pay them compensation under LAW for a plot of land measuring QUANTITY m. and it ordered the restitution of the original plot of land measuring QUANTITY m.

Lastly , the ORG ordered that the applicants ' title to the properties be entered in ORG .

The applicants were also provided with a certificate of registration of property issued by ORG , registration no . DATE , dated DATE .

In reply to the applicants ' requests for recovery of their property , on DATE the NORP Ambassador to GPE informed them that their property claims to ORG premises had to be settled with the NORP authorities .

On an unspecified date the applicants instituted proceedings against ORG in GPE , before ORG , in order to recover possession of their property .

On DATE ORG held that it did not have jurisdiction to deal with the case .

On an unspecified date the applicants brought proceedings in ORG seeking damages from ORG in GPE for its occupation of the plot of land measuring QUANTITY m.

The proceedings were adjourned several times by ORG because of the absence of the representative of ORG in GPE .

On DATE ORG , in the absence of ORG representative , ordered the ORG to pay the applicants a DATE rental fee , amounting to MONEY , for use of the plot of land measuring QUANTITY m. The decision became final and binding on DATE .

On DATE ORG , in enforcement proceedings , issued a writ for the enforcement of ORG judgment of DATE .

On DATE and CARDINAL DATE , following the failure of ORG in GPE to comply with ORG judgment of DATE and invoking the inactivity of the NORP authorities in enforcing a final decision , the applicants lodged CARDINAL appeals with ORG .

On DATE ORG dismissed the first appeal on the ground that the applicants had not exhausted all the possible means of recourse available to them in order to challenge the inactivity of ORG .

On DATE ORG dismissed the applicants ' second appeal , the reason being that the immunity of ORG and the inviolability of its LOC gave rise to a circumstance where ORG decision could not be enforced in practice .

On DATE , with a view to having the ORG judgment of DATE validated by the NORP courts and enforced , the applicants applied to ORG for a writ of enforcement ( delibazione ) .

On DATE , in a judgment served on the applicant on DATE , ORG rejected the applicants ' request , as the proceedings before ORG that led to the judgment of DATE had been held in breach of the principle of equality of arms , which was an essential requirement for the recognition of a foreign judgment in GPE . According to the court , by sending confused and short - term notifications of hearings , the NORP court had denied ORG in GPE the opportunity to present the case effectively and to be able to enjoy the benefit of an equality of arms .

The applicants , anticipating an unsuccessful outcome , did not appeal against ORG decision of DATE .

Following a request for factual information under LAW CARDINAL ( a ) of ORG , ORG , on DATE , having regard to the fact that the LOC of ORG in GPE had been legally purchased , contested the applicants ' allegations of possession sine titulo .

They maintained that the lawfulness of the property title to the premises of ORG in GPE stemmed from a valid international agreement between the CARDINAL countries .

Furthermore , they stated that the NORP court judgment , which had decided on ORG obligation to pay the applicants a rental fee for use of their property , had no binding effect in GPE ; in fact ORG had dismissed the applicants ' application for the validation of the above - mentioned judgment in GPE .

Following a request for factual information under LAW CARDINAL ( a ) of ORG , ORG stated on DATE that in DATE , following a request by ORG in GPE , ORG had put at its disposal CARDINAL ORG - owned LOC . ORG in GPE had arranged to purchase CARDINAL buildings , CARDINAL of which had been the former property of the applicants ' father . The agreement had been validated by note verbale on DATE .

On DATE , by note verbale no . DATE , ORG transmitted to ORG in GPE the topographic maps of the properties purchased and confirmed the legitimacy of the ownership of the properties .

According to the Government , on DATE , by decision no . CARDINAL , ORG had authorised ORG to use the income from the transaction ( a lump sum of MONEY ) for the purchase of the LOC of ORG in GPE .

“ For the purpose of the present Convention , the following expressions shall have the meanings hereunder assigned to them : ( ... ) ( i ) the ' premises of the mission ' are the buildings or parts of buildings and the land ancillary thereto , irrespective of ownership , used for the purposes of the mission including the residence of the head of the mission . ”

“ CARDINAL . The LOC of the mission shall be inviolable . The agents of the receiving ORG may not enter them , except with the consent of the head of the mission .

The receiving ORG is under a special duty to take all appropriate steps to protect the LOC of the mission against any intrusion or damage and to prevent any disturbance of the peace of the mission or impairment of its dignity .

The LOC of the mission , their furnishings and other property thereon and the means of transport of the mission shall be immune from search , requisition , attachment or execution . ”

In accordance with its LAW and DATE , the Convention was opened for signature from CARDINAL DATE and will remain open for signature until DATE . Neither GPE nor GPE have signed it . In its relevant parts the LAW reads as follows :

“ A ORG enjoys immunity , in respect of itself and its property , from the jurisdiction of the courts of another ORG subject to the provisions of the present Convention . ”

“ CARDINAL . A ORG shall give effect to ORG immunity under LAW by refraining from exercising jurisdiction in a proceeding before its courts against another ORG and to that end shall ensure that its courts determine on their own initiative that the immunity of that other ORG under LAW is respected .

A proceeding before a court of a ORG shall be considered to have been instituted against another ORG if that other ORG : ( a ) is named as a party to that proceeding ; or ( b ) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property , rights , interests or activities of that other ORG . ”

“ Unless otherwise agreed between the GPE concerned , a ORG can not invoke immunity from jurisdiction before a court of another ORG which is otherwise competent in a proceeding which relates to the determination of : ( a ) any right or interest of the ORG in , or its possession or use of , or any obligation of the ORG arising out of its interest in , or its possession or use of , immovable property situated in the ORG of the forum ; ( b ) any right or interest of the ORG in movable or immovable property arising by way of succession , gift or bona vacantia ; or ( c ) any right or interest of the ORG in the administration of property , such as trust property , the estate of a bankrupt or the property of a company in the event of its winding up . ”

“ No post - judgment measures of constraint , such as attachment , arrest or execution , against property of a ORG may be taken in connection with a proceeding before a court of another ORG unless and except to the extent that : ( a ) the ORG has expressly consented to the taking of such measures as indicated : ( i ) by international agreement ; ( ii ) by an arbitration agreement or in a written contract ; or ( iii ) by a declaration before the court or by a written communication after a dispute between the parties has arisen ; or ( b ) the ORG has allocated or earmarked property for the satisfaction of the claim which is the object of that proceeding ; or ( c ) it has been established that the property is specifically in use or intended for use by the ORG for other than government non - commercial purposes and is in the territory of the ORG of the forum , provided that post - judgment measures of constraint may only be taken against property that has a connection with the entity against which the proceeding was directed . ”

“ In the protection of his constitutional and legal rights , freedoms and interests , and in defending a criminal charge , everyone is entitled to a fair and public hearing , within a reasonable time , by an independent and impartial court established by law . ”

“ ( CARDINAL ) Any international agreement that has been ratified constitutes part of the domestic legal system after it is published in ORG . It is implemented directly , except in cases where it is not self - executing and its implementation requires enactment of a law . The amending , supplementing and repealing of laws approved by the majority of all members of the ORG , with the purpose of ratifying an international agreement , require the same majority . ( CARDINAL ) An international agreement that has been ratified prevails over national laws that are incompatible with it . ( CARDINAL ) In case of conflict , the norms issued by an international organisation prevail over the national laws if the agreement ratified by GPE for its participation in the organisation expressly contemplates their direct applicability . ”

“ The Constitutional Court shall determine : ... ( f ) Final complaints by individuals alleging a violation of their constitutional rights to a fair hearing , after all legal remedies for the protection of those rights have been exhausted . ”

“ State bodies shall comply with judicial decisions . ”

ORG GPE për kthimin dhe kompensimin e pronës ) has undergone several amendments over DATE .

The new LAW enacted in DATE provides for CARDINAL forms of restitution of property , namely the return , under certain circumstances , of the original property and compensation in the event of impossibility for the authorities to return the original property . The LAW provides for CARDINAL forms of compensation : ( a ) property of the same kind ; ( b ) property of any other kind ; ( c ) shares in ORG - owned companies ; ( d ) the value of a ORG - owned property in the privatisation process , ( e ) a sum of money ( section CARDINAL ) .

LAW of DATE ( Law no . CARDINAL of DATE , as amended by PERSON no . DATE ) , as in force at the time , in its relevant parts reads as follows :

“ Former owners and their legal heirs have the right of ownership . A former owner of property shall have the right either to restitution of the original land or to compensation in kind if CARDINAL of CARDINAL conditions is met : ( CARDINAL ) the land formerly owned was pasture , meadow , forestry land , or agricultural or non - agricultural land ; ( CARDINAL ) the land is not subject to PERSON no . CARDINAL of DATE ; ( CARDINAL ) the land is currently ORG - owned ; or ( CARDINAL ) the land has now been designated as being suitable for construction and lies within the boundaries of a town or city . The extent of restitution or compensation in kind shall not exceed QUANTITY in accordance with LAW no . CARDINAL of DATE , as amended by PERSON no . DATE . ”

“ Former owners shall be entitled to restitution of their former buildings without having to repay any outlay by the ORG or other owners for structural changes , annexes , or floor additions to former private buildings where such outlay does not exceed PERCENT of the building 's value .

Former owners shall be entitled to restitution of their former buildings once they have repaid PERCENT of the value of the outlay , where such outlay amounts to PERCENT of the building 's value . The value of the outlay shall be calculated on the basis of construction prices at the time of the building 's restitution . A building shall remain in co - ownership where the value of such outlay exceeds PERCENT of the building 's value . ... The courts shall have authority to resolve disputes between parties . ”

“ When building land or agricultural land that has become building land is occupied by a permanent structure , compensation will be provided to the former owner within the limits of expropriation in CARDINAL of the following forms : ( a ) state bonds of an equivalent value and the right of pre - emption of the holders to be exercised in the process of the privatisation of state enterprises , and in other activities funded by loans ; ( b ) an equivalent plot or building land near to land designated as an urban area in the general development plans ; ( c ) an equivalent plot of land designated as a tourist area in the general development plans .

The remaining portion for items ( b ) and ( c ) will be subject to other methods of compensation established under this PERSON . ”

Section CARDINAL of Law no . CARDINAL of CARDINAL DATE ( Reform of the NORP system of ORG ) provides that a foreign court 's judgment shall be recognised in GPE without formal proceedings if it complies with the following requirements :

“ ( a ) the judgment had been delivered by the competent court ; ( b ) the other party had been informed promptly of the civil claim in accordance with the domestic laws of the ORG where the proceedings had been held and the guarantee of defence rights had not been breached ; ( c ) the parties to the proceedings had been duly notified of the hearings or formally declared in absentia pursuant to the laws of the ORG in which the proceedings took place ; ( d ) the judgment had become final according to the laws of the ORG in which it had been issued ; ( e ) it did not contain provisions which ran counter to a final decision delivered by an NORP judge ; ( f ) proceedings are not in progress in GPE in respect of the same act and between the same parties ; ( g ) the judgment did not contain provisions which ran counter to the principles of the rule of law as applied by the NORP ORG ;


The applicant is a GPE national , born in DATE and living in GPE .

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

On DATE , after a marriage of DATE , the applicant ’s husband , PERSON , petitioned for divorce . A decree nisi was granted on DATE . The applicant meanwhile had been seeking legal advice from solicitors concerning inter alia whether to contest the divorce and ancillary matters .

Legal aid was granted to the applicant on a limited basis on DATE concerning ancillary relief . On DATE the decree absolute of divorce was granted .

On DATE , PERSON swore an affidavit as to his financial circumstances . On DATE , the applicant swore an affidavit in support of her application for ancillary relief and in reply to PERSON affidavit .

Directions for the conduct of the dispute on ancillary matters were given by ORG on DATE . Lists of documents were provided in DATE . There was correspondence between the applicant ’s solicitors and PERSON about a possible settlement . Her solicitors stated that they were willing to settle for a capital sum and QUANTITY ( GBP ) per month as maintenance . PERSON counter offer was GBP CARDINAL out of the sale of the matrimonial home and GBP CARDINAL per month . The applicant rejected the counter offer .

The hearing date was set for CARDINAL DATE . The applicant was requested by the solicitor to attend to meet counsel before the hearing began . Her solicitor took attendance notes of this meeting which took place shortly before the hearing was due to begin . According to this note , a decision was reached that it be more advantageous for the applicant to effect a clean break and obtain an enhanced interest in the proceeds of sale of the matrimonial home than pursue future periodic payments . After negotiation with PERSON , a figure of GBP DATE was agreed upon ( PERCENT of the valuation of the property ) and that Mr G would pay the costs . A consent order was made by the court reflecting these terms under section CARDINALA(CARDINAL ) of LAW DATE .

Shortly afterwards , the applicant expressed dissatisfaction with the terms of the settlement . She sought legal advice concerning the possibility of appealing the consent order and was advised by counsel that there were no grounds of appeal . The applicant wrote letters of complaint to ORG about the order and was informed that she had agreed to ORG . She made complaint to ORG in or DATE . On DATE , after inviting her solicitors comments , the ORG concluded that the applicant had been “ properly represented ” and had reached her decision with the benefit of full legal advice . On DATE , the applicant complained to ORG , who in DATE concluded that no further action was justified .

In or DATE , the applicant instructed new solicitors IM , with a view to commencing proceedings against her former solicitors for negligence in advising her to accept the settlement , which had caused her significant loss , inter alia , of pension and inheritance entitlements which had not been taken properly into account . Legal aid was granted in or DATE . Counsel advised at this stage that she had good prospects of success in establishing negligence and would probably recover some GBP CARDINAL damages .

A writ was issued against the former solicitors in ORG on DATE . In their defence , served in DATE , the former solicitors claimed inter alia that they had relied on and been entitled to rely upon advice of competent and properly instructed counsel , PERSON

In DATE , the former solicitors made a payment into court of GBP CARDINAL . The applicant was informed that if the court later awarded a smaller sum , she would liable in costs for DATE . Counsel advised that her prospects of securing more in court were good and the payment into court was not accepted . A further offer of settlement of ORG plus costs was also rejected . Counsel advised the applicant at that stage that she should not settle for less than GBP CARDINAL,CARDINAL .

On DATE , the former solicitors increased the payment into court to GBP CARDINAL .

On DATE , ORG decided , in the case of PERSON v. ORG , that , for public policy reasons , a barrister was immune from suit for negligence in the conduct of a case where a settlement had been reached and a consent order made under LAW , which by law required the approval of the court .

On DATE , the former solicitors sent a copy of the decision to the applicant ’s solicitors IM . On DATE , counsel advised the applicant to accept the payment into court of GBP CARDINAL . He noted that ORG judgment “ has , to put it mildly , flaws in its reasoning ” . However despite his strong doubts that it had been correctly decided , it had to be accepted that on CARDINAL view of ORG judgment , and if it was not overturned on appeal to ORG , the applicant would not be entitled to any compensation at all . Having regard to the new element of uncertainty introduced by PERSON v. PERSON , he considered that it was in her best interests to accept the payment into court .

On DATE , IM solicitors sent the applicant a copy of the advice and informed her that a refusal to accept the advice was likely to lead to a discharge of the legal aid certificate .

Reluctantly , the applicant accepted the payment - in and the claim against her former solicitors was struck off .

For DATE , barristers enjoyed an immunity from actions in negligence . In the case of Rondel v. PERSON ( [ DATE ] CARDINAL A.C. CARDINAL ) ORG unanimously upheld the immunity for alleged negligent conduct of a case in court on considerations of public policy on the basis inter alia that “ it would be a retrograde development if an advocate were under pressure unwarrantably to subordinate his duty to the court to his duty to his client ” and also due to the undesirability of relitigating issues already decided . Though their Lordships were not unanimous about the exact scope of the immunity , they agreed that it should in general terms be confined to acts concerned with the conduct of litigation and should not apply to non - contentious work .

The immunity was again considered by ORG in the case of PERSON v. PERSON Mitchell & Co. ( [ DATE ] ORG CARDINAL ) , where the majority , applying the test from the PERSON v. PERSON case in GPE , found that the immunity only applied to work so intimately connected with the conduct of the case in court so as to amount to a decision as to how it would be conducted at the hearing . A failure by a barrister to advise parties about the expiry of a limitation period therefore was found to fall outside the immunity . Doubts were further expressed as to the various rationales given for the immunity .

Another line of authority applied the doctrine of abuse of process to avoid relitigating between different parties issues already decided by a court of competent jurisdiction or , as sometimes described , to avoid a collateral challenge to an earlier judgment or order of the court ( see e.g. PERSON v. Chief Constable of the West Midlands [ DATE ] A.C.CARDINAL ) . This had been applied in a number of cases brought against lawyers , for example , in GPE v. PERSON ( [ DATE ] CARDINAL WLR CARDINAL ) , where the plaintiff ’s claim against solicitors for wrongly pressurising him to plead guilty in a criminal case was an abuse of process as the action necessarily involved an attack on the conviction and sentence imposed on him by the trial judge and upheld by ORG .

In the case of PERSON v. PERSON ( [ DATE ] QB CARDINAL , judgment given on DATE ) , on DATE of a hearing of a matrimonial ancillary application , the plaintiff ’s barrister had advised her to reach a settlement agreement and this was embodied in a consent order by the court . The plaintiff brought proceedings in negligence against the barrister for negotiating and advising her to accept a settlement which left her unable to finance the mortgage repayments on the matrimonial home after it had been transferred into her name . ORG upheld the decisions striking out the action on the basis of forensic immunity of advocates . Though Judge PERSON considered that the settlement of litigation was not normally encompassed within the principles on which the immunity of the advocate was based , and that there were no public policy considerations justifying a blanket immunity from suit for negligent advice which results in the settlement of a claim , he considered that , where the court had given approval of the settlement and assumed responsibility for the merits of the consent order , the advocate could claim immunity from suit for his role . PERSON and ORG appeared to consider , though with different reasoning , that a consent order made and approved under LAW of DATE had such an intimate connection with the conduct of the case in court that it came within the PERSON v. PERSON test .

The PERSON v. ORG judgment was distinguished shortly afterwards in the case of PERSON v. PERSON and PERSON ( QBD , CARDINAL DATE ) where the plaintiff was suing her solicitors for their advice to settle her ancillary application against her husband at the court door . Toulson J had held that public policy did not require protection of solicitors for negligence in relation to their conduct before a case reached court . Although the court had approved the consent order , the wife had alleged that , due to the solicitors’ negligence , the court had given its approval without all the relevant facts . If through the negligence of a party ’s legal adviser a judge was not properly informed , and therefore exercised his discretion on a flawed basis , it was not contrary to public policy to allow the wife to sue the legal adviser for negligence .

Both the ORG immunity and issues concerning abusive challenge of previous court decisions and orders were considered in the case of ORG v. PERSON and Others . This concerned CARDINAL cases in which clients raised claims in negligence against firms of solicitors in respect of settlements of claims resulting in consent orders by the court and where the solicitors relied on the immunity of advocates from suit .

On DATE , ORG found that the immunity did not apply in these cases . It held that there was no general rule that counsel was , or was not , immune from liability in settling a case or in advising a client to settle . The existence of the immunity depended on the facts of the particular case and whether public policy required it in those circumstances . It found that the PERSON v. PERSON case was a very difficult case to follow and apply , or to derive any clear principle from . On DATE , by a majority , ORG held that the solicitors were not entitled to rely on an immunity in these civil actions and that there were no longer any public policy considerations requiring that such an immunity be retained . Several of their Lordships commented that they would be in favour of some form of the immunity remaining for advocates in criminal cases .