Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

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

On DATE , at TIME , the applicant , who was sitting at a cafe in a park , was arrested by QUANTITY police officers from ORG on suspicion of involvement with an illegal armed organisation , namely the ORG ( Workers’ ORG ( Kurdistan Freedom and Democracy Congress ) .

In the application form , the applicant alleged that the CARDINAL police officers had been plain - clothed , that they had asked for his identity papers and that just as he was about to show them , they had physically and verbally attacked him . They had made him lie down in the park and kicked and punched him . The police officers had later handcuffed him and taken him to the police station . Both on the way to and inside the police station the applicant had been subjected to beatings and sworn at .

According to the record of the arrest , drafted by the police officers on DATE , the applicant resisted arrest and as a result one police officer had sustained injuries . The applicant signed the record .

At TIME the applicant was examined by a doctor at ORG , who noted the presence of superficial scratches on the applicant ’s back and a slight bruise on the right side of the back . The doctor further noted superficial scratches on both elbows and the right knee .

CARDINAL of the police officers , PERSON , was also examined by a doctor at ORG at the same time . The doctor noted that he had a QUANTITY superficial cut and a graze on his left elbow , a QUANTITY bruise on his left hand , a superficial graze on his right elbow and a QUANTITY bruise on the left side of his neck .

Mr K.A. , the police officer , gave a statement at the police station , where he submitted that the applicant had resisted arrest and , to avoid having to get inside the police car , had tried to escape , had thrown himself to the floor and had clung to a tree . He maintained that the police had had to force the applicant into the car by holding on to his arms and body and that during this time the applicant had injured him .

At TIME the applicant was examined for a second time at FAC . The report prepared at the end of this examination did not reveal any new findings . Thereafter , the applicant was handed over to policemen from the anti - terrorism branch of ORG .

On DATE at TIME the applicant was examined by a doctor at ORG in GPE . Referring to the findings indicated in the report of ORG , the doctor stated that there were no new marks on the applicant ’s body .

On DATE at TIME the applicant was once again taken to ORG in GPE . No new marks were found on the applicant ’s body .

On DATE the applicant was questioned by Mr DATE , a prosecutor at the LOC public prosecutor ’s office . He was told of his rights and a lawyer was assigned to him from the Bar . The applicant submitted that he was part of the GPE HADEP youth committee and that his job was to organise district youth committees . He claimed that he did not earn any money but ate , drank and stayed as a guest at the places which he visited . The applicant stated that while he was sitting at a café of the president of the HADEP district headquarters , the police had come and invited him to the police station . They had told him that his statement was going to be taken . He had become angry , had told them that they could not take him until the president came and had tried to prevent them from taking him . The applicant maintained that he had not hit the police officers but had only resisted getting into the police car . He said that he regretted his acts and had apologised to the police officers .

On DATE , Mr DATE , the prosecutor , requested ORG to remand the applicant in custody . Before that court , where the applicant was told of his rights in the presence of his Bar - appointed lawyer , the applicant also admitted that he had refused to go to the police station and had resisted arrest . He further maintained that he regretted his acts and had apologised to the police officers . The court dismissed the prosecutor ’s request for the applicant to be remanded in custody and he was released .

At TIME the applicant was examined at ORG , where no signs of ill - treatment were found on his body .

On DATE Mr DATE , the prosecutor , upon a complaint by Mr K.A. , the injured police officer , filed a bill of indictment against the applicant under LAW and CARDINAL of LAW for using physical violence against a police officer in the course of his duties .

On DATE , the applicant contacted his legal representative before the ORG and told him about the ill - treatment .

On DATE criminal proceedings before ORG commenced against the applicant .

On DATE the applicant lodged an official complaint with the Menemen public prosecutor ’s office against the CARDINAL police officers who had arrested him , alleging ill - treatment . In his complaint the applicant submitted that the police , without introducing themselves , had told him to come with them and before he understood what was happening they had started to hit and kick him and had handcuffed him . He maintained that the police had continued to beat and kick him both in the car and later at the police station . They had also sworn at him . The applicant claimed that afterwards he had been taken to GPE , where he had also been ill - treated .

On DATE the prosecutor , PERSON , examined the case file concerning the criminal proceedings brought against the applicant .

On DATE the prosecutor , PERSON , heard evidence from the accused police officers . They submitted , inter alia , that they had introduced themselves and had shown their badges to the applicant and had asked him to accompany them to the police station . However , since the applicant had refused and resisted , force had had to be used to subdue him and make him get into the car . The police officers asserted that CARDINAL of them had been injured during the arrest . They further noted that the applicant had not been taken into custody but had sat with them in their office until a unit of police officers from GPE had come to pick him up .

On DATE the prosecutor , PERSON , taking into account , in particular , the criminal proceedings brought against the applicant for using physical violence against a police officer in the course of his duties , decided not to prosecute the QUANTITY police officers who had arrested the applicant , on the ground that the latter had acted within the scope of their duties in accordance with section CARDINAL of Law no . CARDINAL on the duties and powers of the police . An objection by the applicant to that decision was dismissed by ORG on DATE . Its decision was served on the applicant on DATE .

In his observations the applicant submitted that , subsequently , he had been convicted by LAW .


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in Otwock .

The applicant lives in a block of flats in NORP .

In DATE ( according to the applicant ) or in DATE ( according to the applicant ’s neighbour ) the applicant ’s neighbour fitted bars to his balcony in such a way that they could serve as a ladder to the applicant ’s apartment on the first floor , and subsequently , in DATE , he adapted part of the staircase as a cellar by constructing a wall , allegedly without the required permit .

On DATE the applicant informed the competent administrative authority about the construction works and requested that his neighbour be ordered to dismantle the bars and the wall on the staircase .

On DATE , following numerous letters from the applicant seeking to accelerate the proceedings , ORG ( ORG ) ordered the applicant ’s neighbour to carry out some reconstruction works on the bars . It did not refer to the wall on the staircase .

On an unspecified date the applicant appealed to the GPE Governor ( Wojewoda ) .

The GPE Governor did not give a decision within the statutory DATE time - limit . Therefore , on DATE , the applicant complained to ORG ( PERSON ) .

On DATE the Chief Building Inspector allowed the complaint and ordered the Governor to give a decision within DATE .

On DATE the GPE Governor upheld the first - instance decision . The Governor did not refer to the wall .

On DATE the applicant lodged a complaint with ORG ( Najwyższy Sąd Administracyjny ) .

On DATE ORG quashed the challenged decision and the decision of the first - instance authority .

Apparently ORG scheduled another hearing to deal with a second part of the applicant ’s complaint , concerning the wall constructed on his staircase .

On DATE ORG gave another judgment and ordered ORG to give a decision in the matter of the wall constructed by the applicant ’s neighbour , within DATE of the date of delivery of the judgment .

From DATE on which ORG gave its second judgment , the administrative proceedings were split into CARDINAL separate sets of proceedings .

On DATE ORG ordered that expert opinions concerning fire regulations be obtained and imposed on the applicant ’s neighbour an obligation to produce , within DATE , a new specification for the installation of the bars on his balcony .

The applicant ’s neighbour failed to comply with the abovementioned order and , on DATE , ORG sent him a reminder , set an additional DATE time - limit to carry out the necessary works and informed him that failure to comply with the order within the new time - limit would result in compulsory demolition of the bars .

The applicant ’s neighbour again did not comply with the order .

On DATE ORG ordered compulsory demolition of the bars .

On DATE the applicant appealed against that decision holding that the demolition order should have concerned not only the bars , but also the canopy over the applicant ’s neighbour ’s balcony .

On DATE the applicant complained to ORG of inactivity on the part of the administration .

On DATE the applicant again lodged with ORG a complaint of inactivity on the part of the administrative authorities .

On DATE ORG acknowledged that “ unreasonable delay ” had occurred DATE ( the date on which the applicant had lodged his appeal against the first - instance decision ) and DATE ( the date on which the appellate administrative authority gave its decision , see below ) . However , the court , finding that the decision following the applicant ’s appeal had just been given by ORG , discontinued the proceedings and refused to impose a fine on the authority for delay .

On DATE the NORP Regional Inspector of Construction Supervision quashed ORG decision of DATE and discontinued the proceedings , finding that the challenged decision had been founded on a wrong legal basis .

On DATE the applicant appealed .

On DATE ORG quashed the challenged decision , which meant that the decision ordering demolition of the bars remained in force .

On DATE the NORP Regional Inspector of Construction Supervision upheld the decision of DATE , which had ordered the compulsory demolition of the bars .

On DATE the applicant lodged with the Chief Inspector of Construction Supervision ( PERSON ) , a complaint of inactivity on the part of ORG , who had failed to enforce the final judgment of ORG .

On an unspecified date the applicant ’s neighbour appealed against the decision of DATE to ORG .

On DATE ORG ordered the applicant ’s neighbour to rectify some procedural shortcomings of his appeal . He failed to do so within the prescribed time - limit and consequently on DATE , ORG dismissed his appeal .

On DATE the Chief Inspector of Construction Supervision found the applicant ’s complaint of inactivity ill - founded and informed the applicant that the competent authority to enforce the final judgment and order demolition of the bars was the ORG of Construction Supervision ( Powiatowy Inspektor Nadzoru Budowlanego ) .

On DATE the applicant informed the Registry that the bars had been dismantled in DATE .

On DATE , relying on ORG judgment of DATE , ORG discontinued the proceedings in respect of the wall constructed on the applicant ’s staircase , finding that , at the relevant time , no building permit for such a wall had been necessary .

On DATE the applicant appealed .

On DATE the GPE Governor upheld the challenged decision .

On DATE the applicant lodged a complaint with ORG .

On DATE ORG ordered ORG ) , who had meanwhile become the authority with jurisdiction to deal with that case , to send it the file concerning the challenged decision .

On DATE the applicant lodged with ORG a complaint of inactivity on the part of the administrative authorities .

On DATE ORG dismissed the applicant ’s complaint against the GPE Governor ’s decision of DATE .

The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the ORG ’s judgment in the case of PERSON v. GPE , no . CARDINAL , § § CARDINAL , DATE .


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE at ORG .

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

The applicant is a retired military serviceman . By the judgment of DATE , which became final on DATE , the ORG awarded the applicant MONEY ( RUB ) against his military unit . On DATE the judgment had been fully enforced .

On DATE ORG of ORG in the final instance dismissed the applicant 's another pecuniary claim against the military unit .

On DATE the Spassk - Dalniy Garrison Military Court ordered the respondent authority to pay the applicant RUB CARDINAL in compensation for delayed execution of the judgment of DATE . The judgment was not appealed against and was enforced on an unspecified date .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On CARDINAL DATE ORG informed the applicant that criminal proceedings concerning his public duties ( the applicant was a civil servant in ORG ) had been instituted against him . These proceedings were subsequently transferred to ORG , and on DATE the GPE investigating judge informed the applicant that a charge of corruption was pending against him .

On CARDINAL DATE the applicant was heard by the GPE investigating judge .

On DATE the applicant and CARDINAL other persons were committed for trial before ORG . The first hearing , initially scheduled for DATE , took place on DATE .

In a judgement of DATE , ORG , following the plea bargain procedure ( “ applicazione della pena su richiesta delle parti ” ) sentenced the applicant to DATE and DATE imprisonment . This decision was filed with the registry only on DATE . It became final on DATE .

NORP In the meantime , by an order of DATE , ORG dismissed the applicant from his post as a consequence of his criminal conviction .


András Sajó;Françoise Tulkens;Guido Raimondi;Kristina Pardalos;Nona Tsotsoria

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by Mr PERSON , Agent , ORG and Law Enforcement .

On DATE the applicant was sentenced to DATE imprisonment ( “ first conviction ” ) .

On DATE he was sentenced to DATE and DATE imprisonment in another case ( “ second conviction ” ) .

Meanwhile , from DATE until DATE , he had been detained on remand in the context of yet another case . In these proceedings , on DATE he was sentenced to DATE imprisonment . His pre - trial detention was credited towards the sentence ( “ third conviction ” ) .

In respect of the second and third convictions , a cumulative sentence was passed in which the applicant was subjected to altogether DATE ( i.e. DATE ) imprisonment . This decision became final on DATE . Having regard to the cumulative sentence and to the CARDINAL relating to the first conviction , he was liable to detention for altogether DATE . His detention started on DATE ; consequently , it should have been terminated by DATE . However , he was released only on DATE .

In dismissing the applicant 's ensuing complaint , the prison governor made reference to Decree no . CARDINAL . ( V.CARDINAL . ) IM . of the Minister of Justice on the Determination of the First and DATE of Imprisonment . The governor established that the period theoretically corresponding to the cumulative sentence had indeed been served by the applicant by CARDINAL DATE . However , the decision on the cumulative sentence had become final only on DATE , and it was only from DATE that the applicant 's continued detention could be regarded as corresponding to the DATE prison term flowing from the first conviction . The intervening period of DATE and DATE , although the applicant had spent it in prison , could not be deducted from this term .

Section CARDINAL ) of the Civil Code provides :

“ Anyone who unlawfully causes damage to another person shall be obliged to pay compensation . S / he shall be exculpated if s / he proves that s / he proceeded in such a manner as can generally be expected in the given situation . ”

Section CARDINAL provides :

“ ( CARDINAL ) Liability for damage caused by the ORG administration shall only be established if damage could not be prevented by means of ordinary legal remedies or if the person concerned has resorted to ordinary legal remedies appropriate for preventing damage . ...

( CARDINAL ) These rules shall also apply to liability for damage caused by the courts or the prosecution authorities , unless otherwise provided by law . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms A. PERSON from ORG . ORG ( “ the Government ” ) were represented by their Agent , Mr C. Whomersley of ORG .

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

The applicant ’s wife died on DATE . At the time he enquired about widows’ benefits but was not issued with the relevant form . His claim for widows’ benefits was then made on DATE and was rejected in DATE on the ground that he was not entitled to widows’ benefits because he was not a woman . On DATE the decision was upheld by an appeal tribunal . The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefits were payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


Preliminary objections dismissed (non-exhaustion of domestic remedies, ratione personae);Preliminary objection allowed (ratione temporis);No violation of P1-1

Anatoly Kovler;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

On DATE , CARDINAL DATE and CARDINAL DATE the applicant , then a resident of GPE , GPE , deposited PERSON , CARDINAL and MONEY on behalf of his son , his daughter and himself respectively in CARDINAL savings accounts with the ORG branch of ORG , which was an integral part of ORG .

NORP In DATE hostilities began in GPE and the applicant left for PERSON . On DATE he was registered as an internally displaced person by ORG of LOC .

It appears that at some point the applicant moved and settled in GPE .

In DATE the applicant unsuccessfully requested ORG , the successor of ORG , to transfer his indexed deposits to a branch in GPE .

Following the bank 's refusal , the applicant brought a court action , seeking to have his deposits restored , indexed and transferred to the GPE branch of ORG .

On DATE LOC of GPE found against the applicant . The court confirmed the fact that during the period from CARDINAL DATE until DATE the applicant had made deposits on behalf of himself and his CARDINAL children with the ORG branch of ORG and came to a conclusion acknowledging “ the existence of obligations under the bank deposit agreements between the applicant and the ORG ” . The court continued :

“ According to telegram no . CARDINAL of ORG dated DATE , branches of ORG were closed by virtue of a decision of ORG . These branches were removed from ORG .

It is clear from the case file that all the branches of ORG in the territory of GPE were wound up , and powers of attorney issued to the managers of [ these branches ] were revoked and annulled .

The aforementioned circumstances are confirmed by decision no . CARDINAL of ORG dated DATE .

At present there is no [ legal ] mechanism which could enable the transfer of deposits from branches of ORG to the GPE branch of ORG .

In such circumstances [ the applicant 's ] claim to restore and transfer his indexed deposits from ... the NORP [ Savings ] ORG to the GPE branch of ORG should be denied . ”

On DATE ORG upheld the judgment of DATE on appeal .

Thereafter the applicant applied for supervisory review , but to no avail .

In their memorial of DATE the Government informed the ORG that DATE and DATE the Government of GPE within the territory of this republic , and the branches of ORG in any other regions of GPE , had made a list of the former depositors of ORG who had produced their savings books ( сберегательные книжки ) .

On DATE ORG commenced payment of compensation to those included on the list . As provided by governmental decree no . CARDINAL of DATE , this procedure was applied in respect of savings deposited with ORG prior to DATE .

From DATE until DATE the authorities made an additional list of former depositors of ORG . In the ORG 's submission , “ repayment of deposits to those included on the additional list would be made in the near future ” .

In their additional memorial of DATE the Government informed the ORG , in reply to its specific request to that end , that if the applicant 's deposits had been paid to him on DATE , the date on which LOC of GPE had confirmed “ the existence of obligations under the bank deposit agreements between the applicant and the Savings Bank ” , he would have received the following amounts .

In respect of the deposit made on DATE , the applicant would have received MONEY ( RUB , MONEY ( ORG ) ) , comprising the sum of the original deposit and MONEY compensation totalling RUB CARDINAL , plus accrued interest of RUB CARDINAL .

As regards the deposit made on CARDINAL DATE , the applicant would have received a total of RUB MONEY ( approximately EUR CARDINAL ) , comprising the sum of the initial deposit of RUB CARDINAL plus accrued interest of RUB MONEY .

In respect of the deposit made on DATE the amount payable to the applicant would have been RUB CARDINAL ( approximately ORG MONEY ) , of which RUB MONEY was the amount of the deposit and RUB MONEY the accrued interest .

The Government further submitted a letter dated DATE which ORG had addressed to the applicant , informing him that it was ready to pay all his deposits , along with the accrued interest , as well as preliminary compensation in respect of the deposit made on CARDINAL DATE , in accordance with governmental decree no . CARDINAL of DATE ( see paragraph CARDINAL below ) .

The Government also submitted a letter of CARDINAL DATE addressed by ORG to the then Representative of GPE at ORG . The letter stated that on DATE a representative of the bank had had a telephone conversation with the applicant and had invited him to go to the bank to settle the question of the payment of his deposits ; however , the applicant had refused to accept the amounts due to him , deeming them insufficient , and had stated that he had been prepared to resolve the issue only on condition that he would be paid compensation equal to MONEY ( ORG ) .

NORP In DATE the President of ORG ( Председатель правления Сберегательного PERSON ) ordered that all operations in respect of deposits with ORG be suspended until further notice .

By virtue of decision no . CARDINAL of ORG dated DATE , the branches of ORG in the territory of GPE were wound up and removed from ORG . Powers of attorney issued to the managers of those branches were revoked and annulled .

By CARDINAL of decree no . CARDINAL on payment to certain categories of citizens of GPE in DATE of preliminary compensation ( compensation ) in respect of deposits with ORG and certain insurance organisations , dated DATE , the Government of GPE entitled the former depositors of ORG to compensation for deposits they had made prior to DATE . In particular , individuals who lived outside the territory of GPE could obtain compensation in those branches of ORG which had put them on the list of former depositors of ORG .

Section CARDINAL of governmental decree no . CARDINAL on payment to certain categories of citizens of GPE in DATE of preliminary compensation ( compensation ) in respect of deposits with ORG and certain insurance organisations , dated DATE , reproduces the provisions of section CARDINAL of decree no . CARDINAL of DATE concerning compensation for deposits made prior to CARDINAL June CARDINAL in the territory of GPE . It contains no provisions relating to deposits made after DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy;Peer Lorenzen;Rait Maruste;Renate Jaeger

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

On DATE criminal proceedings were instituted against the applicant in connection with several straightforward episodes of smuggling goods to GPE .

In the period from DATE to CARDINAL DATE criminal proceedings were instituted against PERSON , PERSON and CARDINAL other persons in connection with the same episodes .

On DATE the applicant gave a written undertaking not to abscond .

On DATE , while undergoing a course of treatment in a hospital , the applicant was arrested and remained under arrest in the hospital . On CARDINAL DATE the applicant finished his treatment . On DATE he was placed in custody .

On DATE the proceedings against the applicant , PERSON and PERSON were joined .

On DATE the case was transferred to ORG for examination . On DATE it sentenced the applicant to DATE and DATE imprisonment .

On DATE ORG quashed that judgment and remitted the case for fresh consideration to ORG On DATE the ORG sentenced the applicant to DATE , DATE imprisonment . Since the applicant had already spent an equivalent time in prison he was considered to have served his sentence . By the same judgment the court placed the applicant under an obligation not to abscond . On DATE the applicant was released .

On DATE ORG quashed the judgment of DATE and remitted the case to the prosecutor 's office for further investigation .

On DATE the further investigation was completed and the case was transferred to the GPE ORG of GPE .

On DATE the NORP ORG of Zaporizhzhya sentenced him to DATE imprisonment . The applicant was exempted from serving his sentence under LAW . By the same judgment the court released the applicant from the undertaking not to abscond .

On DATE ORG , acting as a court of appeal , upheld that judgment .

On DATE ORG quashed the ruling of DATE and remitted the case for fresh consideration to the court of appeal since the latter had failed to consider the applicant 's appeal in a due manner .

On DATE the ORG of Appeal quashed the judgment of DATE and remitted the case for further investigation to the prosecutor 's office .

On DATE the case was transferred to the GPE ORG of GPE .

On DATE the GPE ORG of GPE terminated the criminal proceedings against the applicant since the charges against him had become time - barred . On DATE and CARDINAL DATE ORG and ORG , respectively , upheld that ruling .


BRÁS DE MATOS AND DA COSTA TORREZÃO v. PORTUGAL

András Sajó;Egidijus Kūris;Guido Raimondi;Nebojša Vučinić;Paulo Pinto De Albuquerque;Peer Lorenzen

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

NORP The applicant in the second case , PERSON Costa Torrezão , is a NORP national , who was born on DATE and lives in GPE .

On DATE the applicant gave birth to C. in GPE .

On an unknown date , ORG ( PERSON – CPCYP ) of PERSON reported the applicant ’s family situation to ORG at ORG . Proceedings for the protection of children and young persons ( processo de promoção e protecção de crianças e jovens em risco ) were initiated and the prosecutor ordered that C. was not to leave the hospital .

On DATE , C. was provisionally placed in a foster home QUANTITY away from the applicant ’s home . The admission into foster care was decided on the grounds that the applicant was living in substandard housing , without furniture , that she was suffering from a mild psychological and emotional condition and that she was unemployed . The decision was also based on the fact that the applicant ’s partner , who was the father of the child , was alcoholic and had displayed violent behaviour towards the applicant .

On an unknown date , the applicant moved to a new apartment in GPE and left her partner .

On DATE , the prosecutor confirmed the placement of C. in foster care for DATE and the applicant agreed to see a psychiatrist on a regular basis .

DATE and DATE , the applicant , who was then suffering from depression owing to the separation from her child , was admitted to ORG .

On DATE , the placement of C. in foster care was extended for DATE and the applicant renewed her promise to see a psychiatrist and promised to find a job , as well as better housing .

On DATE , the prosecutor confirmed the placement of C. pending review of the interim protection order as provided for by law .

NORP The applicant , who was granted legal aid , opposed the extension of the measure and the case was brought before ORG . The prosecutor requested that the child be placed in foster care with a view to her adoption ; the applicant requested that she be returned to her .

By a judgment of CARDINAL DATE , ORG ordered the final placement of C. , then DATE , in foster care with a view to her adoption . Relying , in particular , on the statements from the social services in PERSON and from the foster home ’s staff , the court considered that the applicant was not in a position to change her situation and fulfil her parental duties . As no other family member was available to take care of the child , the court considered that the placement in foster care , with a view to adoption , would be in the best interests of the child .

The applicant challenged the decision before ORG ( Tribunal da Relação de Évora ) , which , on DATE , dismissed the appeal and upheld the decision of the firstinstance court .

There was no subsequent appeal before ORG ( Supremo Tribunal de Justiça ) .

On DATE , the ORG was informed that the applicant was living in poor conditions and about to give birth . The applicant and her partner were both HIV - positive . The former had an unstable professional and personal life and had previously suffered the loss of a child in circumstances which remained unclear . The latter had a long history of drug addiction .

On CARDINAL DATE the applicant gave birth to GPE in GPE .

The child was immediately admitted to the paediatric service of the hospital and then placed in foster care following an interim protection order issued on CARDINAL DATE .

On an unknown date , the case was brought before the ORG ( Tribunal de Família e Menores de Setúbal ) , which held a hearing on DATE . The applicant alleged that she had not been informed of the hearing and had therefore not been heard by the court .

On DATE , the ORG ordered the placement of the child in foster care with a view to his adoption .

On DATE , the applicant ’s newly appointed lawyer challenged that decision before ORG , which , on DATE , upheld the first - instance decision .

Despite the applicant ’s wish , the appointed lawyer did not bring the case before ORG , considering that an appeal against a decision based on “ suitability and appropriateness ” ( conveniência ou oportunidade ) would be barred by Article DATE , paragraph CARDINAL , of LAW .

On an unknown date , the applicant wrote a letter to ORG , which replied , on DATE , that it could only hear formal appeals against decisions of lower jurisdictions lodged in compliance with the applicable rules .

On DATE , the applicant lodged an administrative request with ORG . The request was closed on DATE and a similar request was again closed on DATE .

On DATE , the applicant was informed that the case was being transferred to ORG do PERSON ) . The reasons for this transfer are unknown .

On DATE the applicant was notified that ORG would discontinue the proceedings as the case had already been settled by ORG .

The relevant legislation relating to interim protection orders is described in the ORG ’s judgments in the cases of PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE and Pontes v. GPE , no . CARDINAL , § § DATE , DATE .

In particular , LAW no . CARDINAL/CARDINAL of DATE on proceedings for the promotion of rights and protection of children and young persons in danger ( processo de promoção de direitos e protecção das CARDINAL e jovens em risco ) , as amended by PERSON no . CARDINAL of CARDINAL DATE , reads as follows :

“ Proceedings for the protection of children and young persons in danger ... are based on voluntary jurisdiction [ ORG voluntária ] . ”

Article DATE , paragraph CARDINAL , of LAW reads as follows :

DATE adopted on grounds of suitability or appropriateness [ conveniência ou oportunidade ] shall not be subject to appeal before ORG .

The relevant case - law of ORG shows a general trend towards recognition of ORG jurisdiction to hear appeals relating to the protection of children and young persons as long as the appeals raise issues of law and do not question the “ suitability or appropriateness ” of the lower court ’s decisions , which are matters of fact . The following are some excerpts from relevant decisions :

“ ... The intervention of ORG in the judgment of appeals is limited to an assessment of the decisions taken in accordance with strict legality . CARDINAL . It can verify compliance with requirements , procedural or substantive , the power to choose the most convenient measure to protect the interests at stake and the compliance with the purpose for which such powers were allocated to the courts , but not the suitability or appropriateness of that choice . ” ( DATE )

“ ... However , this limitation does not imply that the intervention of ORG should be totally excluded with regard to this type of appeal ; it merely restricts it to an assessment of the appealed decisions as far as the strict application of the law is concerned . In particular , [ it restricts ORG assessment ] to the procedural and substantive grounds on which the power to adopt the relevant measure ... is exercised ” ( DATE ) .

“ As proceedings for the promotion and protection of children and young persons at risk are qualified as voluntary jurisdiction proceedings , ... its [ ORG ] intervention can only be limited to verifying the procedural and substantive assumptions legally established for the application of the measure that has been determined by the lower court and its adequacy for the purpose to which the criteria of suitability and appropriateness must be subordinated . ” ( DATE )

“ ... However , this legal provision must be carefully interpreted as , frequently , the appeals do not only relate to lower courts’ decisions based on suitability or appropriateness but also to the enforceability of the legal requirements or other requirements on which the decisions are based , namely their compliance with constitutional or supranational norms , which are subject to the scrutiny of ORG . ” ( DATE ) .

“ Granting custody [ of the child ] to the person selected for adoption or to an institution with a view to future adoption triggers a severance in any existing relation with the biological family of the child . ... Such a measure is based on the general assumption that there is no affective parent - child relationship , or that any such relationship is severely impaired , and can only be decided in the situations described [ DATE , paragraph CARDINAL , of LAW ] where verification is subject , on appeal , to ORG scrutiny . ” ( DATE ) .


Violation of Art. 5-1;No violation of Art. 3

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently detained in a psychiatric hospital in GPE .

On DATE ORG convicted the applicant of CARDINAL counts of sexual abuse of children and gave him a cumulative suspended sentence of DATE imprisonment with probation . The applicant was found to have sexually abused a DATE girl on CARDINAL occasions in DATE . As confirmed by an expert , the applicant suffered from a pathological mental disorder such that diminished criminal responsibility ( Article CARDINAL of LAW ) could not be excluded . On DATE this sentence was remitted .

On DATE ORG convicted the applicant of CARDINAL counts of rape and gave him a cumulative sentence of DATE and DATE imprisonment ( DATE and DATE for each count of rape ) . ORG found that the applicant had raped DATE S. twice within DATE by use of force in DATE . It was reported by a psychiatric and a psychological expert that the applicant suffered from a continuous cerebral decomposition , due to which his criminal responsibility was diminished .

According to ORG finding of facts , the applicant had had an extra - marital relationship with PERSON 's mother NORP since DATE . Since then he had sexually abused PERSON , then aged DATE , at least once DATE . Since DATE he had had himself sexually satisfied also by P. , A. 's elder daughter , then aged DATE . These offences were time - barred when the victims reported them to the prosecution authorities . In DATE the applicant persuaded DATE P. to have sexual intercourse with him in exchange for his paying the family 's electricity bill . P. , who had initially consented , then asked the applicant to stop due to severe pain caused by the intercourse and resisted heavily , whereupon the applicant raped her by use of force . The prosecution of this offence was discontinued in view of the CARDINAL counts of rape of which the applicant was convicted .

ORG did not examine whether preventive detention was to be ordered against the applicant because the relevant LAW was not applicable to offences which , as was the case for those of which the applicant was found guilty , had been committed prior to DATE ( section CARDINAL § CARDINAL of the Introductory Law to LAW , see paragraph CARDINAL below ) .

The applicant served his full sentence of DATE and DATE imprisonment until DATE . CARDINAL prior to that date , on DATE , the applicant was informed by the psychologist of GPE prison that he could possibly be detained beyond DATE under LAW for the placement of particularly dangerous offenders very liable to reoffend ( “ NORP ( Dangerous Offenders ' ) Placement Act ” ) of CARDINAL January CARDINAL ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE ORG , sitting as a chamber responsible for the execution of sentences composed of CARDINAL professional judges , having heard the applicant and his counsel as well as the representatives of GPE prison and CARDINAL medical experts , ordered the applicant 's placement in prison for an indefinite duration under sections CARDINAL and CARDINAL of the NORP ( Dangerous Offenders ' ) Placement Act ( see paragraphs DATE below ) .

ORG found that the applicant was liable to be placed in prison under section LAW . He had served a sentence imposed following his conviction for CARDINAL counts of rape , the offences being serious enough to meet the requirements of LAW of LAW ( see paragraph CARDINAL below ) . ORG further subscribed to the views expressed by both a psychological and a psychiatric and psychotherapeutic expert , who , in their reports dated DATE and DATE respectively , had found that following the applicant 's conviction , new facts had evolved during his detention which warranted the conclusion that the applicant currently posed a serious threat to the sexual self - determination of others . It noted that the applicant had failed to participate in any therapeutic measure to address his sexual problems which had led to his offences and , by denying his offences in prison , had made any therapy pointless . Moreover , due to his organic personality disorder , which led to a continuous decomposition of his personality , the applicant was no longer able to reflect on his possibly deviant sexual behaviour and to discern limits . Statistically , his advancing age also increased his interest in children as substitutes .

ORG further noted that neither the applicant 's placement in a psychiatric hospital ( Article CARDINAL of LAW see paragraph CARDINAL below ) nor his preventive detention ( LAW see paragraphs CARDINAL below ) had been ordered ( section QUANTITY of the NORP ( Dangerous Offenders ' ) Placement Act ) . Moreover , the applicant had not been placed in a psychiatric hospital under LAW on the Placement in an Institution of Mentally Ill Persons and Their Care of DATE ( see section QUANTITY of the NORP ( Dangerous Offenders ' ) Placement Act and paragraph CARDINAL below ) . In fact , ORG had refused to request the applicant 's placement in a psychiatric hospital under LAW after the applicant had served his prison sentence .

Taking into consideration the experts ' findings , ORG found that there was a high risk that the applicant might re - offend . Not least because of his limited faculties , there was a concrete danger that reactions of his victims would result in his committing very serious offences .

ORG stated that it considered the NORP ( Dangerous Offenders ' ) Placement Act to be constitutional .

On DATE ORG dismissed the applicant 's appeal as ill - founded . Endorsing the reasons given by ORG , it found that the applicant was liable to be placed in prison pursuant to CARDINAL of the NORP ( Dangerous Offenders ' ) Placement Act . In particular , as had been convincingly shown by CARDINAL experts , there was a considerable risk of recidivism .

According to ORG , the NORP ( Dangerous Offenders ' ) Placement Act was constitutional . It struck a fair balance between the applicant 's interest in his liberty and the public interest in security . There was no breach of the principle of legitimate trust ( GPE ) , as the applicant had been informed in writing by the prison authorities that it was necessary for him to undergo therapy . Nor did the LAW violate the prohibition on being punished twice for the same offence , as it was not his past offences , but the risk of his re - offending in the future which was decisive for his placement . Furthermore , the NORP legislature had the legislative power to pass the Act in question .

The applicant subsequently lodged a constitutional complaint with ORG against the decisions of ORG of DATE and ORG of DATE . He argued that his detention was illegal because the NORP ( Dangerous Offenders ' ) Placement Act was unconstitutional , notably as the NORP legislature had not had the power to legislate on the subject - matter in question . Moreover , the provisions of the Act violated the prohibition of punishment without law and human dignity as they treated him as a mere “ disturbing object ” .

On DATE ORG , having held a hearing , partly allowed the applicant 's constitutional complaint PERSON ( no . DATE ) , together with that of another complainant ( no . CARDINAL BvR CARDINAL/CARDINAL ) , PERSON , who was the applicant in application no . CARDINAL/CARDINAL before this ORG . It found unanimously that the NORP ( Dangerous Offenders ' ) Placement Act , as well as another comparable Act , GPE ( Dangerous Offenders ' ) Placement Act , were incompatible with LAW CARDINAL no . CARDINAL read in conjunction with Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) as the Länder did not have the power to enact the legislation in question .

According to ORG , the area covered by the ORG statutes regulating the placement of offenders in detention after they had served their prison sentence – so - called retrospective preventive detention ( nachträgliche GPE ) DATE fell within the concurrent legislative powers of the Federation as it involved criminal law within the meaning of LAW . The term “ criminal law ” in connection with the question of power to legislate covered the regulation of all , even subsequent , repressive or preventive penal responses by the ORG which used the offence as a connecting factor , which were aimed exclusively at offenders and which were factually justified by the original offence . This interpretation was compatible with the fact that measures of correction and prevention , such as preventive detention , were not to be classified as “ penalties ” to which the prohibition of retrospective punishment under LAW applied . The objective of this latter provision , laying down a fundamental right , was different from that of a provision on legislative competence such as LAW . Retrospective placement in prison under the ( Dangerous Offenders ' ) Placement Acts enacted by the ORG was very similar to preventive detention under LAW , both in relation to the applicable procedure and in relation to its nature , and had been authorised in order to complement the measures of correction and prevention under LAW by the possibility of a preventive detention which had not been ordered in the judgment of the sentencing court . The LOC therefore did not have the power to make laws on the placement of criminals in detention because the Federation exhausted its concurrent legislative power in this area . The court thus disagreed with the submissions of ORG , which had taken the view that the ORG had legislative competence to regulate the subject - matter at issue .

The Federal Constitutional Court found that placement in prison for an indefinite duration or for indefinitely renewable periods after an offender had served his full prison sentence constituted a particularly serious interference with the offender 's right to liberty as protected by LAW . It stressed that in order for the long - term deprivation of liberty ordered independently of a person 's guilt to remain proportionate , it was necessary for it to be dependent on the prior commission of a serious offence . Moreover , the courts ordering placement in detention had to make their prognosis of the offender 's dangerousness based on a comprehensive assessment of his offences and personality .

ORG , by a majority of CARDINAL votes to CARDINAL in this respect , further found that the fact that the ORG did not have power to legislate did not result in the contested statutes being void . Instead , they were merely declared incompatible with LAW and ORG ordered their continued application until DATE . Until the expiry of that transitional period , the applicant 's detention was covered by the decision of ORG , based on the ( Dangerous Offenders ' ) Placement Act , which remained applicable .

The court argued that ORG did not prescribe that a statute found to be unconstitutional was void under all circumstances , pursuant to section CARDINAL § CARDINAL , first sentence , of ORG ( see paragraph CARDINAL below ) . The LAW also allowed a mere declaration of incompatibility with LAW pursuant to section CARDINAL § CARDINAL of ORG ( see paragraph DATE below ) . Under ORG case - law , a mere declaration of incompatibility and a limited continued application of the unconstitutional statute was possible if the immediate invalidity of the contested law removed the basis for protection of paramount interests related to the public good , and if the result of weighing those interests against the fundamental rights affected was that the interference had to be accepted for a transitional period .

NORP In the instant case , there was a paramount interest in protecting the public against offenders who had been found by CARDINAL experts and by courts to currently pose a considerable danger to the life , physical integrity , freedom or sexual self - determination of others . In the event of the statutes being declared void , persons who were extremely dangerous would have to be released without the federal legislature having taken the decision imposed upon it – because it mistakenly assumed it had no power to do so – as to whether it was necessary to enact federal legislation . Such federal legislation on retrospective preventive detention could be compatible with LAW if it applied only in limited circumstances .

NORP The public interest in effective protection from dangerous offenders could , in exceptional circumstances , outweigh the interest of the offender concerned by the unconstitutional Act in his personal liberty as guaranteed by LAW of LAW . For the interference with the right to liberty to be proportionate , it was , however , necessary for the transitional period , during which ORG order of continued application of the unconstitutional Acts served as the basis for the detention of the offenders concerned , to be short . Moreover , the criminal courts which had ordered placements on the basis of the impugned Acts had to re - examine without delay whether the placements complied with the reasoning set out in ORG judgment . In particular , they had to base their placement decisions on a properly reasoned expert 's opinion as to the dangerousness of the offender in question , in the light of his personality and the offences committed . Furthermore , they were authorised to order that the offender 's placement be executed in a psychiatric hospital ( DATE of LAW ) if the offender 's reintegration into society could better be furthered thereby , as prescribed by Article DATE LAW ( see paragraph CARDINAL below ) .

According to the partly dissenting opinion of CARDINAL judges , the unanimous finding of the ORG that the impugned Acts were unconstitutional should have led to their being declared void . As a consequence , the complainants would have had to be released . During the transitional period , the complainants were therefore detained without a legal basis .

NORP The minority argued that by ordering the continued application of an LAW which it had found to be unconstitutional , ORG took responsibilities which , in accordance with the principle of separation of powers , were for the legislature to assume . Moreover , by ordering a continued application of the LOC statutes , it suggested that the Federal legislature authorise subsequent preventive detention , a measure which the GPE , when reforming the provisions on preventive detention in DATE and DATE , had deliberately chosen not to introduce . The minority of judges stressed that there were numerous other , less intrusive instruments available to the courts , police and social authorities to avert the dangers posed by dangerous convicts on their release .

In the minority 's submission , the court 's order that the ORG statutes continued to apply was also incompatible with LAW ( see paragraph CARDINAL below ) . According to that Article , a person 's liberty could only be restricted by virtue of a statute enacted by ORG and only in compliance with the forms prescribed therein . ORG order that the statutes continued to apply was , on the contrary , based on customary law and , being a court order , did not justify the deprivation of liberty . The minority further stressed that section CARDINAL § CARDINAL , second sentence , of ORG , according to which a decision of ORG had force of law , was applicable only to a declaration that a statute was void and no longer applied , and not to a declaration , based on that court 's case - law , that an unconstitutional statute continued to apply .

Lastly , the minority took the view that the court 's order of continued application of the LOC statutes disregarded the prohibition on the enactment of laws with retrospective effect . After serving the sentence imposed on them by the criminal courts , offenders had a legitimate expectation of release .

On DATE ORG decided to suspend for DATE the applicant 's placement in prison pursuant to its order dated DATE . It instructed him to reside in an old people 's home in PERSON and not to leave the home without the permission of his custodian ( ORG ) . Having regard to the findings of a psychiatric expert , ORG found that the applicant 's placement in the psychiatric department of an old people 's home sufficiently averted the dangers he posed for the sexual self - determination of others .

On DATE the applicant was again detained in GPE prison under a detention order issued under the NORP ( Dangerous Offenders ' ) Placement Act DATE .

On DATE the ORG revoked the suspension of the applicant 's placement in prison . It found that the applicant had repeatedly sexually harassed several old women suffering from dementia in the old people 's home where he had been living . By this behaviour , the applicant had shown that he still posed a serious threat to the sexual self - determination of others .

On DATE ORG ordered that the applicant 's placement under the NORP ( Dangerous Offenders ' ) Placement Act , read in conjunction with the judgment of ORG of DATE , was to be executed in a psychiatric hospital in order to further his reintegration into society . On DATE the applicant was transferred to GPE psychiatric hospital .

On DATE ORG ordered the applicant 's subsequent preventive detention under LAW of LAW ( see paragraph DATE below ) which was to be executed in a psychiatric hospital . On DATE ORG quashed that order and remitted the case to ORG .

On DATE ORG , having regard to the acts committed by the applicant in the old people 's home ( sexual harassment of persons incapable of resisting ) , ordered the applicant 's placement in a psychiatric hospital under LAW . In view of that decision , the prosecution then applied to discontinue the proceedings concerning the applicant 's subsequent preventive detention that were pending before ORG .

Initially , the continued detention of convicted offenders who had served their sentence in order to protect the public was solely regulated in federal legislation , notably in the provisions on preventive detention ( Articles CARDINAL et seq . of LAW ) , a so - called measure of correction and prevention ( GPE der Besserung und GPE ) . A comprehensive summary of the provisions of LAW and of LAW governing the distinction between penalties and measures of correction and prevention , in particular preventive detention , and the making , review and execution in practice of preventive detention orders , is contained in the ORG 's judgment in the case of PERSON GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) . The provisions relevant to the present case will be summarised below .

Pursuant to LAW , the criminal sentencing court may , at the time of the offender 's conviction , order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be a danger to the public .

Paragraph CARDINAL of Article CARDINAL provides that the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to DATE imprisonment and if the following further conditions are satisfied . Firstly , the perpetrator must have been sentenced twice already , to DATE imprisonment in each case , for intentional offences committed prior to the new offence . Secondly , the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for DATE . Thirdly , a comprehensive assessment of the perpetrator and his acts must reveal that , owing to his propensity to commit serious offences , notably those which seriously harm their victims physically or mentally or which cause serious economic damage , the perpetrator presents a danger to the general public .

Under Article DATE § CARDINAL of LAW , the court may transfer a perpetrator against whom preventive detention has been ordered to a psychiatric hospital subsequently if the perpetrator 's reintegration into society can be better promoted thereby .

NORP The provisions on preventive detention underwent a reform in DATE .

By the Combating of Sexual Offences and Other LAW ( Gesetz zur PERSON und anderen gefährlichen ORG CARDINAL DATE , which entered into force on ORG CARDINAL DATE , a new paragraph CARDINAL was inserted into LAW . Pursuant to that provision , preventive detention could also be ordered for certain serious offences ( including rape and sexual abuse of children ) if the perpetrator had committed CARDINAL such offences which were to be punished separately with DATE imprisonment , if he was sentenced to an aggregate sentence of DATE imprisonment for these offences and if he presented a danger to the public as prescribed in LAW , even if the perpetrator had not previously been convicted and detained as required in paragraph CARDINAL of Article CARDINAL . Article CARDINAL § CARDINAL was only applicable if the perpetrator had committed CARDINAL of the offences listed in that provision after DATE ( section CARDINAL § CARDINAL of the Introductory Law to LAW , in its version then in force ) .

However , although the issue had been raised on several occasions in the course of the legislative process ( see the judgment of ORG of DATE in the present case , A.I.CARDINAL . and CARDINAL . , pp . CARDINAL ) , the Federal legislature did not choose to introduce a legal basis for ordering an offender 's preventive detention retrospectively after a sentencing court 's judgment which had not ordered this measure ( retrospective preventive detention – nachträgliche GPE ) if it became apparent only after the final judgment , notably during the convict 's detention , that he was a danger to the public . Unlike several Länder , ORG considered at the relevant time that it was the ORG parliaments , and not ORG , which had the power to enact legislation on that issue ( see , for instance , ORG no . CARDINAL of DATE , pp . CARDINAL et seq . ) .

In view of the foregoing , several ORG parliaments passed Acts , based on their legislative competence for the preventive aversion of dangers ( Gefahrenabwehr ) , introducing retrospective detention of convicted offenders for preventive purposes . In doing so , the ORG were reacting to the fact that the Federation had not enacted corresponding legislation .

The Land of Bavaria , in particular , enacted LAW for the placement of particularly dangerous offenders very liable to reoffend ( Bayerisches Gesetz zur PERSON besonders rückfallgefährdeten hochgefährlichen Straftätern – Bavarian ( Dangerous Offenders ' ) Placement Act ) of DATE , which entered into force on DATE . Pursuant to section CARDINAL § CARDINAL of that Act , ORG could order a convicted offender 's placement in prison if the latter was serving a sentence under the conditions laid down in LAW and if facts having come to light after the offender 's conviction showed that he currently posed a serious risk to life and limb or sexual self - determination of others , in particular because during the execution of his prison sentence he had persistently refused to cooperate in attaining the objective of the execution of his sentence , notably by declining or discontinuing psychotherapy or social therapy aimed at preventing recidivism . Such order was not to be made or was to be quashed if the person concerned was placed in a psychiatric hospital under LAW or in preventive detention under LAW ( LAW NORP ( Dangerous Offenders ' ) Placement Act ) or if he was placed in a psychiatric hospital under LAW on the Placement in an Institution of Mentally Ill Persons and Their Care ( section QUANTITY of the NORP ( Dangerous Offenders ' ) Placement Act ) .

Section CARDINAL of the NORP ( Dangerous Offenders ' ) Placement Act prescribed that retrospective detention for preventive purposes was to be ordered for an indefinite period unless it was to be expected that the person concerned would no longer be dangerous after a certain time .

A chamber of ORG responsible for the execution of sentences had jurisdiction to order a convicted offender 's placement in prison for preventive purposes at the request of the prison in which the person concerned was serving his sentence . ORG had to consult CARDINAL experts on the dangerousness of the person concerned before taking its decision ( see sections CARDINAL and CARDINAL of the NORP ( Dangerous Offenders ' ) Placement Act ) . It had to review DATE whether the placement in prison of the person concerned was still necessary and had to suspend the placement and put him on probation if it was no longer necessary ( section CARDINAL of the NORP ( Dangerous Offenders ' ) Placement Act ) . The placement order was to be executed in a prison ; for the execution of the placement , Articles CARDINAL to CARDINAL of LAW ( which contain special rules for the execution of preventive detention orders made under LAW ) applied by analogy ( section CARDINAL of the NORP ( Dangerous Offenders ' ) Placement Act ) .

On DATE the Federal legislature enacted the Introduction of Retrospective Preventive Detention Act ( Gesetz zur Einführung der nachträglichen GPE ) , which entered into force on CARDINAL DATE .

Pursuant to the newly introduced Article CARDINAL of LAW , the court may order preventive detention retrospectively , in particular , if , prior to the end of a term of imprisonment imposed on conviction for crimes punishable with DATE imprisonment against life , limb , personal liberty or sexual self - determination or for offences listed in LAW , evidence comes to light which indicates that the convicted person presents a significant danger to the general public . An overall assessment of the convicted offender 's personality , his offences and additionally his development during detention must have shown that he was very liable to commit serious offences by which the victims would be seriously harmed ; moreover , the other conditions listed in LAW had to be met ( LAW CARDINALb ) .

The newly introduced Article CARDINAL of LAW was applicable to persons who had been placed in detention under the NORP ( Dangerous Offenders ' ) Placement Act ( section CARDINAL of the Introductory Law to LAW , as amended ) .

The detention of mentally ill persons is provided for , first of all , in LAW as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned . LAW provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility , the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public .

Secondly , pursuant to sections CARDINAL § CARDINAL , CARDINAL and CARDINAL of LAW on the Placement in an Institution of Mentally Ill Persons and Their Care of DATE ( NORP ( ORG ) Placement Act – ORG über die PERSON LOC deren GPE ) a court may order a person 's placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order . Such an order may only be executed as long as no measure under LAW has been taken ( LAW of LAW ) .

The distribution of legislative powers between the Federation and the ORG is laid down in LAW and CARDINAL et seq . of LAW . Pursuant to Articles CARDINAL and CARDINAL § CARDINAL the ORG have the right to legislate in so far as LAW does not confer legislative power on the Federation . Pursuant to LAW no . CARDINAL of LAW , the GPE has concurrent power to legislate ( konkurrierende PERSON ) in the domain of criminal law . In relation to subject - matter in which ORG and the ORG have concurrent power to legislate , the Länder are authorised to legislate as long as and in so far as the GPE has not exercised its power to legislate by enacting a law ( LAW ) .

Article CARDINAL of the Basic Law governs legal guarantees in the event of deprivation of liberty . Under paragraph CARDINAL of Article CARDINAL , personal liberty may only be restricted pursuant to a law enacted by ORG and then only in compliance with the procedures prescribed therein .

Pursuant to section CARDINAL § CARDINAL , second sentence , of ORG , the decision of ORG on a constitutional complaint has force of law ( ORG ) if that court declares a law to be compatible or incompatible with LAW or to be void .

Section CARDINAL § CARDINAL of ORG provides that if a constitutional complaint against a law is upheld , the law has to be declared void . The same applies if a constitutional complaint against a decision is upheld as the decision quashed was based on an unconstitutional law .

Pursuant to ORG well - established ORG case - law , section CARDINAL § CARDINAL of ORG is , however , interpreted in a flexible manner . Instead of declaring a statute to be void ab initio , ORG may also solely declare it to be incompatible with the provisions of LAW . It proceeds in this manner notably in cases in which , by declaring a statute void , it would create a situation which would be even less compatible with LAW ( see , for example , the decisions of ORG , Collection of the decisions of ORG ) vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL , CARDINAL et seq . , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL - CARDINAL , CARDINAL - CARDINAL ) or in which the basis for the protection of paramount interests related to the public good would otherwise be removed ( see , for example , the decisions of ORG , Collection of the decisions of ORG , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL - CARDINAL , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL ) . In such circumstances , the court has on several occasions decided to order the continued application of a statute found to be unconstitutional ( see , inter alia , the decisions of ORG , collection of the decisions of ORG , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL , CARDINAL - CARDINAL , vol . CARDINAL , pp . CARDINAL et seq . , CARDINAL , CARDINAL ; see also , among others , ORG in : ORG , GPE , GPE , GPE DATE , section CARDINAL , § CARDINAL , with many references to ORG case - law ) .

According to statistical material submitted by the ORG , CARDINAL of the CARDINAL NORP ORG had chosen to enact legislation for the placement of convicted offenders who were particularly liable to reoffend that was comparable to the NORP ( Dangerous Offenders ' ) Placement Act . At DATE , CARDINAL persons were placed in prison under LAW . In DATE a total of CARDINAL persons were placed in prison under all of the said PERSON ( Dangerous Offenders ' ) Placement Acts .


The applicant was born in DATE and lives in GPE .

The applicant is a veteran of World War II . Under domestic law the ORG must subsidise his car ’s running costs . Not having received the subsidy in CARDINAL , the applicant applied to a court .

On DATE the NORP ORG of GPE awarded the applicant MONEY against a regional authority . On DATE the judgment became binding , and on CARDINAL DATE it was enforced .

Under LAW of DATE , a judgment must be enforced within DATE .


Giovanni Bonello;Josep Casadevall;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Stanislav Pavlovschi

The first applicant , Mr PERSON ( “ the first applicant ” ) , was born in DATE . The second applicant , PERSON ( “ the second applicant ” ) , was born in DATE . They are married and live in Gdańsk .

The first applicant owns a plot of land and a house situated on it located in the suburbs of Gdańsk . The major part of his property is classified as agricultural land . There are some other houses in the area , but a significant part of it is used for allotments .

It appears that the first applicant ’s father acquired the property in question in DATE . At that time , the property was classified as agricultural land and lay outside the perimeters of Gdańsk . Subsequently , with the enlargement of the city , the property became located in the vicinity of a residential and allotments area .

In DATE and DATE the first applicant ’s father was twice refused planning permission on the ground that the plot had not been designated for construction of a house .

NORP In DATE a local development plan for the area was adopted . The first applicant ’s plot was designated for the construction of a road .

On an unspecified later date the first applicant acquired the property at issue .

On DATE ORG adopted a local development plan which stipulated that a road was to be constructed on the first applicant ’s plot .

On DATE and CARDINAL DATE the LOC informed the first applicant that his property was designated in the relevant local development plan for the building of a new road . Accordingly , the property could not be used for the purposes of constructing a new house or planting an orchard .

On DATE the first applicant requested the Mayor of Gdańsk to acquire his property as it had been designated for the building of a road . On DATE the Mayor transmitted that request to the Head of ORG ( ORG ) which was competent to decide on it . It appears that the request was never examined .

On an unspecified date in DATE the first applicant petitioned the ORG . On DATE the ORG informed him that , following a number of similar complaints concerning the legal status of so - called “ frozen properties ” ( i.e. properties which were designated in a local development plan for public use at an undetermined future date ) , he had requested the Minister of ORG to adopt a general solution to the problem . In particular , the ORG called for a provision in the local planning bill which would impose an obligation on the local authorities to acquire “ frozen properties ” or offer an alternative plot to the owners concerned .

On DATE ORG adopted a general local development plan . The plan maintained the provision that a road was to be constructed on the applicant ’s plot . Prior to the adoption of the new plan , PERSON and the Gdańsk Governor had authorised the change of use of agricultural land for non - agricultural purposes .

On DATE the applicant inquired with the Gdańsk Municipality about the conditions for construction of a temporary building ( zabudowa tymczasowa ) on his property . On DATE he was informed about the relevant conditions for properties designated in local development plans for future public use . He was also informed that he could continue using the property for agricultural purposes or , alternatively , he could construct a temporary storehouse . The municipality further explained that the planned road would not be constructed in the foreseeable future . The applicant was invited to submit concrete proposals for consideration by the municipality and informed that any temporary buildings would have to be removed at his own expense when the planned road was constructed . It appears that the first applicant did not submit any proposals to the municipality .

On DATE the Law of DATE on ORG ( “ the DATE LAW ) entered into force .

On DATE the first applicant ’s lawyer sent a letter to the Mayor of Gdańsk , inquiring about his unanswered request of DATE for the acquisition of the property .

On DATE the first applicant was informed that due to the dissolution of the district offices it was not possible to establish the reasons as to why ORG had not taken any decision on his request . He was further informed that the local development plan of CARDINAL DATE , which had specified that a new road would pass through the first applicant ’s property , was still in force . Furthermore , the municipality ’s investment plan for DATE did not foresee the construction of the road in question . Accordingly , the first applicant could use his land as previously . In addition , the first applicant was informed that according to the DATE Act the municipality could not acquire his property since the relevant local development plan had been adopted DATE and that his use of the property had not become unfeasible . Consequently , his request could not be granted .

The applicants appealed against that decision to ORG . On DATE ORG ruled that the appeal was inadmissible in law . It observed that in accordance with LAW an appeal could be lodged only against an administrative decision . However , ORG noted that the provisions of the CARDINAL LAW ( section CARDINAL ) excluded the possibility of adopting an administrative decision in respect of the ORG request for the acquisition of their property by the municipality . Thus , the letter of the Mayor of ORG could not be considered as an administrative decision .

The applicants appealed against that decision to ORG , relying , inter alia , on LAW No . CARDINAL to the Convention .

On DATE ORG dismissed their appeal .

On DATE the ORG informed the first applicant that according to the local development plan which would remain valid until DATE his property had been designated for a future thoroughfare .

On DATE the ORG informed the first applicant that the old local development plan designating his property for the construction of a road would remain valid until DATE . In addition , he was informed that the municipal investment plan for DATE did not foresee the construction of the road in question . He was also informed that a new local development plan was being drafted and that he was entitled to lodge his objections in that respect .

On DATE the Law of DATE on ORG ( “ the DATE LAW ) entered into force on DATE . It repealed LAW .

On DATE the old local development plan expired .

On DATE the first applicant requested the municipality to provide him with information as to the future development of his land .

On DATE he was informed that pursuant to the DATE Act until the adoption of the new local development plan the manner of development of a particular property was to be determined by means of planning permission . However , such permission could only be granted if a number of conditions specified in LAW of the DATE Act were met , including that the property at issue did not have to be reclassified from agricultural to non - agricultural land . In connection with the last requirement , the first applicant submitted that he was prevented from developing his property until such time as the new local development plan had been adopted .

It appears that as of DATE GPE had not yet adopted a new local development plan in respect of the first applicant ’s land . According to the preliminary draft plan , the applicants’ property will be designated in the major part for housing purposes and in the remaining part for housing and services purposes . The property will adjoin the planned road , but the road will not pass through the applicants’ property .

As of DATE the applicant had not yet applied for planning permission .

From DATE to DATE questions of land development were governed by LAW on ORG . Under this law owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .

On DATE a new LAW was enacted ( “ the DATE LAW ) . It entered into force on DATE .

Section CARDINAL of the DATE Act created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner ’s request , or provide compensation for the damage caused by the designation .

NORP However , pursuant to section QUANTITY , these obligations and the corresponding claims of the owners applied only to plans adopted after LAW had entered into force , i.e. to plans adopted by local authorities after DATE .

Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE . In DATE an amendment to the DATE LAW was adopted under which the validity of such plans was extended for a further two years until DATE . Again , on DATE , ORG passed a law amending LAW which extended until DATE the validity of the land development plans adopted before DATE .

On DATE a new ORG was enacted ( “ the DATE LAW ) . It entered into force on DATE and repealed the DATE Act . Under section CARDINAL of the DATE Act , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by DATE Act , were in essence maintained by LAW . Pursuant to section CARDINAL of LAW , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan had become impossible or had been restricted , it was open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which might arise in this respect between local authorities and owners could be pursued before the civil courts . It would appear that the operation of section DATE is not retroactive , thus limiting the scope of any such claims to the period after the adoption of the CARDINAL Act .

Section CARDINAL of the DATE Act provides , subject to certain conditions , for a possibility of developing a plot of land by way of planning permission in the absence of a local development plan .

Other relevant legislative provisions are extensively set out in the ORG ’s judgment of DATE in the case of GPE v. GPE ( no . CARDINAL , § § DATE , DATE ) .

NORP In its judgment of DATE , ORG examined the ORG ’s request to determine the compatibility with the LAW CARDINAL § CARDINAL of the DATE Act insofar as it excluded the application of section QUANTITY to land development plans adopted before DATE . ORG referred to its established case - law to the effect that the right to property could not be regarded as ius infinitivum . Consequently , its exercise was restrained by many legal and practical considerations , including the necessity of balancing the ORG interests against those of other persons . Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of property rights . In particular , owners of properties “ frozen ” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans . This did not amount to such an interference with property rights that it could be regarded as being incompatible with their constitutional protection .


The applicant , Mr Bonitto Lawrence , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Ms NORP White , a welfare rights worker in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr C. Whomersley of ORG .

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

The applicant ’s wife died on DATE . In DATE , the applicant made a claim for widows’ benefits , namely ORG . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . The applicant did not appeal as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The domestic law relevant to this application is set out in Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .