Violation of Art. 5-3;Violation of Art. 5-4;Non-pecuniary damage - financial award

The applicant was born in DATE .

In DATE ORG instituted investigations concerning suspicion of fraud . On DATE the applicant was charged with fraud committed jointly with other persons . On DATE the Białystok

The applicant requested that detailed written grounds of the detention order be prepared by the prosecuting authorities . On DATE the applicant 's lawyer and on DATE the applicant himself appealed against the detention order , arguing , inter alia , that his bad health was incompatible with his detention .

By a decision of DATE ORG preferred charges against the applicant . It was stated that the suspicion against him was rendered credible by evidence gathered in the investigations . The prosecutor referred in particular to documents concerning the circumstances in which the applicant had taken the loan , to the manner in which the funds had been transferred to the applicant 's bank account , and to the links established between the suspects in the case .

On DATE ORG , at a session held in camera , refused the applicant 's lawyer 's appeal against the detention order and on DATE the applicant 's own appeal was , likewise , dismissed .

On DATE the applicant requested to be released .

On DATE the same court refused to allow the applicant 's appeal against the decision of DATE by which the prosecution had preferred charges against the applicant . The court considered that the case was complex , that there were many suspects , and that the offences concerned were of a very serious nature .

On DATE ORG refused the applicant 's application for release of DATE . On CARDINAL DATE ORG upheld this decision , considering that a medical certificate confirmed that the applicant was suffering from PERSON syndrome which was a connective tissue disorder , so affected many structures , including the skeleton , lungs , eyes , heart and blood vessels . However , the applicant was under the medical supervision of a prison doctor . The grounds on which the applicant had been arrested still obtained , and the offence concerned was of a serious nature .

On DATE the charges against the applicant were supplemented by CARDINAL further counts of fraud , committed by obtaining another CARDINAL bank loans by false pretences . The prosecuting authorities referred , inter alia , to various NORP and foreign documents , to the testimony of witnesses , interviewed during the investigations , and to other evidence . When questioned by the prosecutor on DATE , the applicant requested that detailed written grounds of these charges , giving factual reasons grounding the suspicions against him , be prepared and served on him and on his lawyer . On DATE the applicant was served with this document .

On DATE ORG prolonged the applicant 's detention for DATE , until DATE .

On DATE the applicant requested again to be released . On CARDINAL DATE his request was refused by ORG .

On DATE the applicant requested to be released in order to undergo a specialised ophthalmologic examination , submitting that he suffered from an ailment , which seriously affected his eyesight , and that his eyesight had severely deteriorated as a result of his detention .

On DATE ORG dismissed the applicant 's appeal against the decision of ORG of DATE prolonging his detention for a further DATE .

On DATE ORG upheld the decision of DATE , considering that the evidence against the applicant had rendered the charges against him sufficiently credible .

On DATE the applicant 's new request for release , submitted on DATE , was refused by ORG . An identical decision was given on DATE in respect of his fresh request for release , the prosecuting authorities considering that the evidence gathered so far in the proceedings supported the charges against the applicant , and that there were genuine grounds for believing that , if released , he would exert pressure on the witnesses .

On DATE the applicant 's detention was prolonged until CARDINAL DATE , ORG considering that further measures had to be taken in order to complete the evidence gathered so far during the investigations . On DATE ORG dismissed the applicant 's appeal against that decision .

On DATE , DATE , DATE and CARDINAL DATE the applicant had access to the case file and was informed of his right to submit , within DATE , motions for further evidence to be admitted .

On DATE ORG again refused to release the applicant . On DATE the applicant requested ORG to set aside this decision .

On DATE ORG prolonged the applicant 's detention until DATE . On DATE the court 's registry was served with the applicant 's letter in which he requested the court to allow him to be present at the court session concerning the prolongation of his detention . On DATE the court replied that his request had been included in the case file , noting that it had been served on the court after the session had been held in the applicant 's and his lawyer 's absence .

On DATE ORG upheld the decision of ORG of DATE prolonging the applicant 's detention .

On DATE , DATE and DATE the applicant examined the case file .

On DATE ORG dismissed the applicant 's appeal against the decision of DATE prolonging his detention until DATE .

On DATE the applicant requested that certain pages that had been taken out of the case file and transferred to the file of another case , which had been severed from the applicant 's case in DATE , be re - included into his file so that he could have access to them .

On DATE ORG closed the investigation , considering that the case - file contained enough evidence for a bill of indictment to be lodged with a court . On the same date the prosecutor ordered that the applicant be given access to documents that he had requested on DATE .

On DATE ORG refused to allow the applicant 's appeal against the decision to prolong his detention , given on DATE .

On DATE the applicant requested to be released and on DATE he proposed to pay bail in the amount of PLN CARDINAL .

On DATE the applicant requested to be granted access to the case - file , submitting that he had not been shown items Nos . CARDINAL , DATE , DATE .

On DATE ORG dismissed the applicant 's request to be released on bail .

By a letter of DATE , submitted to the court on DATE , the applicant requested to be allowed to read the case file again .

The refusal to release the applicant , given on DATE , was upheld by ORG on DATE , which considered that the applicant 's appeal had failed to advance any arguments capable of casting doubt on the lawfulness of the decision under appeal .

By a letter of CARDINAL DATE the applicant again requested to be given access to the case file . On DATE the case - file was forwarded by the prosecution to the Białystok detention centre and the applicant read it again on DATE .

On DATE ORG held a session , concerning the applicant 's request for release on bail and the amount of bail to be paid . The applicant 's lawyer attended that session . The court fixed the bail at PLN CARDINAL,CARDINAL . The applicant was released on DATE after bail had been paid .

On DATE the applicant died of ORG syndrome . On DATE ORG discontinued the criminal proceedings against him .

At the relevant time , the authorities competent to decide on detention on remand were provided for in ORG CARDINAL and CARDINAL of LAW Code of Criminal Procedure of DATE , which read as follows :

Article CARDINAL :

“ CARDINAL . Preventive measures [ i.e. detention on remand , bail and police supervision ] shall be imposed by the court ; before a bill of indictment is lodged with the court , they shall be ordered by the prosecutor ( ... ) . ”

Article CARDINAL :

“ CARDINAL . A decision concerning preventive measures may be appealed [ to a higher court ] ...

A prosecutor 's order on detention on remand may be appealed to the court competent to deal with the merits of the case ... ”

These provisions were amended on DATE by LAW DATE on LAW to LAW and Other Criminal Statutes , which entered into force on DATE . Pursuant to this amendment , detention on remand could be imposed only by a court order .

A new Code of Criminal Procedure was enacted by the PERSON ( ORG ) on DATE . Its Article CARDINAL , in its relevant part , reads :

“ CARDINAL . Detention on remand shall be imposed by a court order .

NORP In the investigative stage of proceedings , detention on remand shall be imposed , on a prosecutor 's request , by a district court in the jurisdiction of which investigations are being conducted . After a bill of indictment is lodged with a court , a decision to impose detention on remand shall be given by a court competent to deal with the merits of the case .

NORP The prosecutor , when submitting to a court a request referred to in § CARDINAL , shall at the same time order that the suspect be brought before a court . ”

At the relevant time the presence of the parties at court sessions other than hearings was regulated in Articles CARDINAL and CARDINAL of the Code of Criminal Procedure of DATE , which , insofar as relevant , provided :

LAW

“ The ORG pronounces its decisions at a hearing if the law provides for it ; and otherwise , at a court session held in camera . ... ”

Article CARDINAL :

“ A court session in camera may be attended by a prosecutor ( ... ) ; other parties may attend if the law provides for it . ”

Pursuant to LAW , before deciding on the application of the preventive measures , the court shall hear the person charged with offence . The lawyer of the detainee should be allowed to attend in the court session , if he or she is present . It is not mandatory to inform the lawyer of the date and time of the court session , unless the suspect so requests and if it will not hinder the proceedings .

The court shall inform the lawyer of a detained person of the date and time of court sessions at which a decision is to be taken concerning prolongation of detention on remand , or an appeal against a decision to impose or to prolong detention on remand is to be considered .

At the material time the relations between the organs of the NORP State were set out in interim legislation , i.e. LAW of DATE ( Mała PERSON ) . LAW laid down the principle of the separation of powers in the following terms :

“ The legislative power of the ORG shall be vested in the PERSON and the ORG of GPE ; the executive power shall be vested in the President of GPE and ORG ; and judicial power shall be vested in the independent courts . ”

Under LAW , ORG ( PERSON ) shall be composed of the Prime Minister , Deputy Prime Ministers and Ministers .

In pursuance of LAW of DATE ( Ustawa o sądach powszechnych ) , the courts are entrusted with administration of justice in GPE . The courts are courts of appeal , regional courts and district courts . Under LAW , the ORG exercises supervisory jurisdiction over lower courts .

Article CARDINAL of the Act of DATE on ORG ( Ustawa o Prokuraturze ) which determines general principles concerning the structure , functions and organisation of prosecuting authorities , at the material time read as follows :

“ CARDINAL . The prosecuting authorities shall be ORG , prosecutors and military prosecutors . Prosecutors and military prosecutors shall be subordinate to ORG .

The Prosecutor General shall be the highest prosecuting authority ; his functions shall be carried out by the Minister of ORG . ”

LAW reads :

“ The prosecuting authorities shall ensure the observance of the rule of law and the prosecution of criminal offences . ”

Under LAW , in carrying out his statutory duties , a prosecutor shall abide by the principles of impartiality and equality of citizens before the law .

Pursuant to LAW , a prosecutor is independent in carrying out his or her duties , within the limits set out in this LAW . A prosecutor shall abide by the instructions , guidelines and orders of his superiors . However , if an order relates to the substance of any action to be taken in proceedings , a prosecutor may request [ his superior ] to issue the order concerned with reasons in writing , to alter the order , to relieve him from performing an act prescribed by that order , or to remove him from conducting the case in question . The requests to be removed from a case shall be decided by a hierarchical superior of the prosecutor who issued the order .

Chapter III of LAW of DATE , applicable at the material time , entitled " Parties to proceedings , defence counsel , representatives of victims and representatives of society " , described a prosecutor as a party to criminal proceedings . According to all the relevant provisions of the LAW read together , a prosecutor performed investigative and prosecuting functions in the course of criminal proceedings . In particular , after completing the investigation , he drew up a bill of indictment and represented the prosecuting authority before the court competent to deal with the case .

Under LAW of DATE ” organs conducting criminal proceedings [ including a prosecutor ] shall examine and take into account evidence in favour of as well as against the accused . ”


The applicant is an NORP national , born in DATE , and currently residing in ORG ( GPE ) .

She is represented before the ORG by Mr GPE and ORG , CARDINAL lawyers practising in GPE .

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

The order , which was served on the applicant on DATE , indicated that no appeal lay against it under domestic law .

Article CARDINAL § CARDINAL of Presidential Decree no . CARDINAL of DATE indicates the acts which are subject to appeal before the competent ORG ( “ commissione tributaria provinciale ” ) . It mentions , inter alia , “ the role ” ( “ il ruolo ” ) . ORG decision may be appealed first before the competent ORG ( “ commissione tributaria regionale ” ) and then before ORG ( Articles CARDINAL § CARDINAL and CARDINAL § CARDINAL of Presidential Decree no . CARDINAL ) .


Violation of Art. 3;Non-pecuniary damage - award

Christos Rozakis;Elisabeth Steiner;Giorgio Malinverni;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE and is presently serving a prison sentence in FAC .

Following the institution of criminal proceedings against the applicant , he was apprehended on DATE and placed in pre - trial detention in GPE Prison ( GPE zatvor GPE ) , where he had ORG stayed until DATE . After that date , having being convicted of murder , attempted murder , forgery and robbery , he was sent to serve the remainder of his sentence of DATE and DATE imprisonment in FAC .

According to medical documentation submitted by the parties , the applicant suffers from kidney stones , varicose veins , liver damage and a number of spinal ailments such as scoliosis ( curvature of the spine ) , lordosis ( inward curve of the lower back ) , discopathy ( cervical disc injury ) and discarthrosis ( structural and functional failure of the discal joint ) .

The applicant 's medical record , kept in LOC , and additional medical documentation submitted by the parties provides the following information :

A copy of a medical report drafted at ORG on DATE specifies that the applicant was suffering from CARDINAL stone in his right ureter ( ureters are ducts that carry urine from the kidneys to the urinary bladder ) measuring QUANTITY , and CARDINAL stones in his left kidney , each measuring QUANTITY . It was recommended that the applicant be given painkillers and be seen by a urologist .

After being incarcerated in LOC the applicant was seen by a prison doctor for his kidney and spinal ailments on CARDINAL occasions during the period from DATE to CARDINAL DATE . The applicant was regularly given urological tea for his kidney ailment and , in addition , on each occasion he was given various spasmolytics to prevent or relieve spasms . For the pain associated with his spinal ailments , the applicant was prescribed painkillers , including CARDINAL different types of soothing gels . On CARDINAL DATE the applicant was seen by a urologist in PERSON , who found a stone in the applicant 's left kidney and recommended his hospitalisation .

From DATE to CARDINAL DATE the applicant was hospitalised in ORG , where a medical report was drafted , specifying that the applicant was suffering from CARDINAL stones in his left kidney , measuring QUANTITY each . It was recommended that surgery be carried out . The report notes that the applicant had been put on the waiting list of ORG in GPE and that the exact date of the operation was yet to be determined .

From his return to ORG in DATE until DATE the applicant was seen by the prison doctor on CARDINAL occasions ; on CARDINAL of these he was given spasmolytics for the pain associated with his kidney ailment . He was also regularly given urological tea as well as painkillers for his spinal ailment .

NORP The applicant was again hospitalised in FAC from DATE . A medical report of DATE specifies that the kidney stones from which the applicant was suffering required surgery , although not urgently , as they could not be treated by ultrasound waves ( lithotripsy ) .

From his return to the prison until DATE the applicant was seen by the prison doctor on CARDINAL occasions . Within that period he was given spasmolitycs for the pain associated with his kidney ailment on QUANTITY occasions . On DATE the applicant underwent urological tests in the ORG laboratory . On DATE the applicant refused to go to ORG . On DATE a nurse from the prison reported that , during a telephone conversation with a surgeon from ORG , she had been told that the applicant should not be sent there because they were not going to carry out the surgery . On DATE the applicant again underwent urological tests in FAC .

On DATE the applicant was seen by a urologist in ORG . The diagnosis of kidney stones was confirmed and surgery in this respect was recommended , although not urgently .

From his return to the prison until DATE the applicant was seen by the prison doctor on CARDINAL occasions . Within that period he was given spasmolytics for his kidney aliment on CARDINAL occasions . On several occasions he asked that the recommended surgery in connection with his kidney ailment be carried out .

The applicant was again hospitalised in ORG from DATE to CARDINAL DATE . A report drawn on the latter date specifies that the applicant was suffering from kidney stones and that there was no possibility of carrying out the relevant operation in ORG ; it could only be carried out in an ordinary hospital . The applicant had been offered surgery for his varicose veins in FAC , which he had refused , insisting on his return to the prison .

On his return to the prison the applicant was seen by the prison doctor on CARDINAL occasions , mostly in connection with his spinal ailment . On CARDINAL occasion he was given spasmolytics for his kidney ailment . He was prescribed a supplementary diet ( pojačani obrok ) from DATE until DATE and from DATE to CARDINAL DATE .

On DATE the applicant petitioned both ORG judge responsible for the execution of sentences and ORG complaining about the lack of adequate medical care for his various health problems , including those mentioned in paragraph CARDINAL above .

ORG replied to the applicant 's allegations by a letter of DATE , the relevant parts of which read as follows :

Your medical record shows that since your arrival at FAC on DATE , you have received regular treatment by the prison doctor .

On DATE it was noted that you suffered from kidney stones and were on that account twice hospitalised in [ GPE ] ORG . It was further noted that you suffered from back - pain and varicose veins on your right shin . During your hospitalisation from DATE to DATE it was recommended that surgery be carried out and you were put on the waiting list of ORG in GPE .

Owing to frequent pain in the kidney area you were again hospitalised in [ GPE ] ORG from DATE where a specialist established that your kidney stones could be treated by ultrasound .

You continued to receive regular treatment by the prison doctor and were prescribed adequate medical therapy . On DATE you refused to be hospitalised and said that you would report when you wished to be hospitalised . Since you had refused hospitalisation , on DATE it was communicated from [ GPE ] ORG that you were not going to be operated and it was recommended further that you be seen by a urologist in PERSON . A prescription was issued for consultation with a urologist and prior laboratory tests . Laboratory tests showed the presence of blood in urine and signs of liver damage .

On DATE you were seen by a urologist who found alterations in your kidneys , but established no need for an urgent surgical intervention . A ORG [ computer tomography ] of your abdomen was planned and carried out on DATE . It showed no pathological alterations . You were twice seen by an internist in GPE [ State ] Prison , who recommended that arrangements be made between the prison authorities and [ GPE ] ORG .

On DATE you were sent for an X - ray examination in connection with frequent back - pain . PERSON and discarthrosis were diagnosed . Deforming spondylosis was in an advanced stage . On DATE a prescription for your hospitalisation in [ GPE ] ORG was issued , but you refused hospitalisation . Owing to frequent pain in your left kidney and your back you agreed to be hospitalised in [ GPE ] ORG from DATE to DATE , when laboratory tests were carried out as well as an ultrasound examination of your liver , cholecyst , bile ducts , pancreas , spleen and kidneys . An X - ray examination showed that your heart and lungs were healthy . An X - ray examination of your abdomen showed CARDINAL round calcareous shadows in the lower pole of your left kidney , which was an indication of the [ presence of ] stones . Laboratory tests showed further even and sufficient urinary flow in both kidneys . The ureters had adequate flow , lumen width and porosity ; the urinary bladder was normal . The previously recommended surgery , despite having been scheduled for your stay at the hospital , was not carried out .

Possible surgery on your varicose veins was not carried out since you refused it , and you were returned to the prison at your request .

A GPE [ computer tomography ] of your spine was recommended and the exact date was to be determined . A prescription in that respect was issued on DATE .

In our opinion , regular [ medical ] checks are needed in the Lepolgava [ State ] Prison infirmary as well as regular intake of the prescribed therapy , and an arrangement for another hospitalisation in [ GPE ] ORG is soon to take place with a view to carrying out the surgery for your kidney stones .

In view of the above [ considerations ] it has been established that you received adequate medical care in GPE [ State ] Prison . ”

The judge responsible for the execution of sentences likewise answered the applicant 's allegation by a letter of DATE , the relevant parts of which read as follows :

“ As to your complaint lodged on DATE ... concerning your allegations that you had been denied hospital treatment in connection with a number of diseases ... I reply as follows :

The medical documentation submitted shows that , DATE , you were hospitalised in [ GPE ] ORG in connection with kidney stones , pain in the back and varicose veins on your right shin . It was recommended that surgery be carried out , you were put on the waiting list of ORG [ in GPE ] and that the exact date of the operation was to be communicated . Owing to repeated pain in the kidney area and in order to continue the treatment , in DATE it was established that the stones were to be broken by ultrasound . You then reported to the GPE [ ORG ] Prison infirmary and received regular therapy for pain . On DATE you were offered hospitalisation . However , it was communicated from ORG not to send you there because you were not to be operated . On DATE you were seen by a urologist in PERSON , who established the cause of your kidney ailment and indicated that there was no need for urgent surgery . After that arrangements for your hospitalisation in [ GPE ] ORG took place and you were hospitalised from DATE to CARDINAL DATE . There you were examined and laboratory [ tests ] showed toxic damage to your liver and the presence of stones in your kidneys . An x - ray showed that your heart and lungs were healthy and that you had so - called nephroliths in your kidneys .

According to [ GPE ] ORG , all treatment available there had been exhausted and in order to continue your treatment in an outside hospital it was necessary for an agreement to be reached between the prison and the hospital . There was a possibility that surgery be carried out in [ GPE ] ORG at the same time as surgery for your varicose veins , which you declined . You were returned to the prison where it was recommended that a GPE [ computer tomography ] of lumbosacral spine be carried out , and a prescription was issued in that connection on DATE . The doctor also recommended regular checks in the prison infirmary and regular intake of prescribed therapy , and that an arrangement be made between the prison and the [ GPE ] ORG for your hospitalisation and eventual surgery for the kidney stones .

Therefore , your complaints concerning the alleged denial of hospital treatment are unfounded because the medical documentation shows that care was taken of your [ need for ] ambulant and hospital treatment . Your allegations concerning the prison authorities ' hatred towards you are entirely unfounded .

NORP The applicant also submitted a copy of a letter of DATE drafted by the registry of ORG , stating that his application lodged with that court on DATE had not been suitable for examination .

DATE of LAW ( Ustav PERSON ) provides as follows :

“ No one shall be subjected to any form of ill - treatment ... ”

The Enforcement of Prison Sentences Act ( Zakon o izvršavanju kazne zatvora , Official Gazette no . CARDINAL of DATE , and no . CARDINAL of DATE ( consolidated text ) DATE “ the LAW ” ) came into force on DATE , while the provisions concerning the judge responsible for the execution of sentences came into force DATE , on DATE . The relevant provisions of the Act read as follows :

“ ( CARDINAL ) Inmates shall have the right to complain against an act or decision of a prison employee .

( CARDINAL ) Complaints shall be lodged orally or in writing with a prison governor , a judge responsible for the execution of sentences or ORG . Written complaints addressed to a judge responsible for the execution of sentences or ORG shall be submitted in an envelope which the prison authorities may not open ... ”

“ ( CARDINAL ) An inmate may file a request for judicial protection against any acts or decisions unlawfully denying him , or limiting him in , any of the rights guaranteed by LAW .

( CARDINAL ) NORP for judicial protection shall be decided by the judge responsible for the execution of sentences . ”

“ ( CARDINAL ) Inmates shall be provided with medical treatment and regular care for their physical and mental health ... ”

ORG

Recommendation No . Rec(CARDINAL)CARDINAL of ORG to member states on ORG ( adopted by ORG on DATE at the PERSON meeting of ORG ) :

Section CARDINAL of the recommendation provides as follows :

“ Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals , when such treatment is not available in prison . ”


George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . Her application was lodged on CARDINAL DATE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , ORG .

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

In DATE , the applicant requested a pension forecast from ORG ( “ DWP ” ) . The forecast , provided on DATE , was calculated on the basis that the applicant would become entitled to receive ORG from DATE .

In DATE , the applicant requested a further pension forecast . In that forecast , provided on DATE , the applicant ’s pension forecast was similarly calculated on the basis of the applicable State Pension age being DATE . It stated that at DATE the applicant was expected to be entitled to a DATE pension of GBP MONEY .

Both State Pension forecasts expressly stated that the pension the applicant might receive could be different from the forecast , either because of changes in the applicant ’s circumstances or the law . Both also stated that they were not formal decisions about her pension .

Under the law of GPE , prior to the enactment of LAW DATE ( “ the DATE LAW ) ORG age was DATE for men and CARDINAL for women . The relevant parts of LAW , which came into force on DATE , put in place a mechanism to equalise the respective pension ages for men and women to CARDINAL . The equalisation was to take place progressively over a period of DATE starting from DATE . Any woman born before DATE would continue to receive ORG from DATE . Women born after DATE would attain pensionable age at DATE . Women born between those CARDINAL dates would become eligible for the Pension at various ages DATE , in accordance with a graduated scale set out in Schedule CARDINAL to the Act .

Council Directive CARDINAL/CARDINAL/EEC of DATE ( “ the Directive ” ) concerns the progressive implementation of the principle of equal treatment for men and women in matters of social security . Article CARDINAL ) of the Directive prohibits all discrimination on grounds of sex , in particular as concerns the calculation of benefits . Such discrimination can be justified only under LAW , which provides that the Directive is to be without prejudice to the right of Member GPE to exclude from its scope the determination of pensionable age for the purposes of granting old - age and retirement pensions and the possible consequences thereof for other benefits .


Violation of Art. 3 (substantive aspect);No violation of Art. 3 (substantive aspect)

On DATE , ORG ( hereinafter : “ FM department ” ) , relying on the aforementioned medical reports , concluded that the injuries rendered the applicant unfit for work for DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The first applicant , Mr PERSON , is a NORP national who was born in DATE and resides in the village of PERSON in the PERSON region .

The second applicant , Mr ORG , was a NORP citizen born in DATE who died on CARDINAL DATE . By letter of CARDINAL DATE , the applicant ’s son informed the ORG that he wished to pursue the application .

The applicants were represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

On DATE the first applicant brought a car registered in GPE ( a DATE BMW-CARDINAL ) into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE . He failed to do so , however .

On DATE , after several unsuccessful attempts to summon the applicant , ORG , in the applicant ’s absence , drew up a report on an infringement of customs regulations due to the applicant ’s failure to remove the above car from the customs territory of GPE ( LAW ) .

On DATE the applicant was summoned to ORG of PERSON . Having heard the applicant , who explained that the impugned car had broken down and he had given it to a friend who had taken it away , the court found the first applicant guilty of having failed to re - export the car in violation of LAW . The court ordered the confiscation of the vehicle , but given that the car ’s location was unknown , it replaced the confiscation with payment of CARDINAL NORP hryvnyas ( ORG ) ( MONEY ( ORG ) ) , which corresponded to the value of the car , in accordance with LAW of LAW .

On DATE the President of ORG refused the applicant ’s request to initiate supervisory review proceedings in the case .

On DATE the second applicant brought a car registered in GPE ( a DATE ORG Benz-CARDINAL ) into the customs territory of GPE . When crossing the border he undertook an obligation to re - export the car before DATE . He failed to do so , however .

On DATE , in the applicant ’s absence , ORG drew up a report on an infringement of customs regulations due to the applicant ’s failure to remove the above car from the customs territory of GPE ( LAW ) .

On DATE the second applicant was summoned to ORG of PERSON . Having heard the applicant , who explained that he had given the car to a certain PERSON in payment for debts , but refused to give her address , the court returned the case to the customs authorities because of a number of procedural mistakes made by the latter in drawing up the report on an infringement of customs regulations . The customs authorities drew up a new report and sent it to the court .

On DATE the court examined the case and found the second applicant guilty of having failed to re - export the car , in violation of LAW . The court ordered the confiscation of the vehicle but , given that the car ’s location was unknown , replaced the confiscation with payment of ORG ( about EUR CARDINAL,CARDINAL.CARDINAL ) , which corresponded to the value of the car , in accordance with LAW of LAW .

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


Remainder inadmissible;Violation of Art. 5-3;Violation of Art. 6-2;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant was arrested by the police on DATE . On DATE ORG charged him with CARDINAL offences ( mostly burglaries ) . On DATE ORG ( Sąd Rejonowy ) ordered that the applicant be detained on remand in view of the reasonable suspicion that he had committed a number of burglaries . The court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings , having regard to the severity of the anticipated penalty . The detention order was subsequently extended by ORG ( PERSON ) on DATE and DATE .

On DATE the prosecution filed a bill of indictment with ORG . The applicant was charged with armed robbery , robbery and burglary ( CARDINAL counts ) . There were CARDINAL defendants in the case , including the applicant . CARDINAL of them were remanded in custody . The prosecution asked the court to hear evidence from CARDINAL witnesses . The case file comprised at that time some CARDINAL volumes . The prosecution obtained voluminous evidence , including various expert reports .

On DATE ORG ordered the applicant ’s continued detention until DATE . It observed , inter alia , that there existed a risk of collusion and that the nature of the offences with which the applicant had been charged justified the continuation of his detention .

On DATE ORG ordered that the case be joined to that of a certain GPE

On DATE the ORG prolonged the applicant ’s detention until DATE . It found that the nature of the offences with which the applicant had been charged , the GPE modus operandi and the severity of the likely penalty justified the prolongation of the detention . It further held that there was a risk that the applicant would obstruct the proceedings , given that he had not confessed . ORG found that prolongation of the applicant ’s detention was necessary in order to secure the proper conduct of the proceedings for the time needed for the examination of the case . It held that no other measures could prevent the applicant from attempting to interfere with the proceedings or even from going into hiding .

ORG listed a hearing for DATE . However , it had to be cancelled since the applicant and CARDINAL of the co - defendants had been disorderly and were removed from the courtroom . In addition , CARDINAL other co - defendant and his counsel failed to appear .

On DATE ORG ordered that the applicant be held in custody until DATE , relying on the same grounds as previously . In addition , it observed that the trial court had not yet commenced an examination of the merits due to reasons that were beyond the court ’s control , such as the failure of some of the co - accused or their lawyers to appear before the court or the police ’s failure to bring the detained co - defendants for trial . ORG noted that the continued detention of the applicant and some of his co - defendants was necessary in order to secure the proper conduct of the proceedings in the case . That decision was upheld on appeal on DATE .

On DATE ORG prolonged the applicant ’s detention until DATE . It reiterated the grounds given in its previous decisions . It also noted that all of the CARDINAL hearings scheduled to date had had to be cancelled for various reasons such as : the illness of the trial judge or CARDINAL of the co - defendants , the unwarranted absence of some of the co - defendants , the absence of the legal - aid lawyer of CARDINAL of the co - defendants , the fact that CARDINAL of the lawyers had left the courtroom when the bill of indictment was being read out and the failure of the police to bring the detained co - defendants from prison for trial . The applicant and CARDINAL other co - defendants appealed against that decision .

On DATE ORG ( Sąd Apelacyjny ) upheld the decision . ORG stated in the relevant part of the reasons for its decision that :

“ The appeal is not well - founded . Firstly , it should be stated that , contrary to the defendant ’s claims , they committed the offences with which they are charged ( Na wstępie stwierdzić należy , wbrew zarzutom oskarżonych , że popełnili oni zarzucane i m przestępstwa . ) ” .

The evidence proving this consists not only of the allegations made by ORG , but also by ORG who in the official record of the hearing of DATE ( ... ) described the persons with whom he had committed burglaries of warehouses in ORG and ORG , but later , on DATE , stated that what he had said was not true ; the [ trial ] court will assess which of these accounts is credible ” .

ORG further found that there was a real risk that the defendants would obstruct the proceedings by exerting pressure on ORG a co - defendant who had incriminated them ) , given the fact that they had resorted to very aggressive language in their correspondence when referring to LANGUAGE Further , there was a risk of their going into hiding .

Two hearings had to be cancelled due to the police ’s failure to bring the detained co - defendants from prison ( DATE and DATE ) .

On DATE the trial began . However , ORG was only able to hear CARDINAL defendants . CARDINAL subsequent hearings had to be cancelled due to the absence of CARDINAL of the defence counsel ( DATE ) and the illness of CARDINAL of the defence counsel ( DATE ) .

On DATE ORG made an application under LAW of LAW to ORG for prolongation of the applicant ’s detention until DATE , since the statutory DATE time - limit of detention pending trial was soon to be exceeded ( Article CARDINAL § CARDINAL of the ORG ) . It emphasised that the grounds originally given for his detention were still valid and that the court was not able to proceed with the hearing of evidence due to reasons that could not be attributed to the court . It noted that out of CARDINAL hearings scheduled to date CARDINAL had had to be cancelled . In addition to the reasons specified in the decision of DATE , ORG also mentioned the illness of CARDINAL of the defence counsel and the police ’s failure to bring the detained co - defendants from prison ( on CARDINAL occasions ) . It also observed that the continued detention of the applicant was necessary in order to secure the proper conduct of the trial and that no other measures would prevent the applicant and his co - accused from obstructing the proceedings or going into hiding .

On DATE ORG granted ORG application . In addition to the reasons previously given , it held that the case was particularly complex . It also emphasised that the trial court should take all necessary measures to organise the proceedings in a diligent manner so as to hold hearings at reasonable intervals and terminate the trial by DATE . The applicant appealed against that decision , but to no avail .

On DATE the applicant requested the trial court to lift his detention on the ground that it entailed a difficult financial situation for his wife and child . On DATE ORG refused that request , having regard , inter alia , to the report prepared by a court officer . The applicant ’s repeated request to that effect was refused on DATE .

On DATE ORG made another application to ORG , requesting an extension of the applicant ’s detention until DATE . It stressed that , despite some progress in the trial ( all the co - defendants and CARDINAL out of CARDINAL witnesses called by the prosecution had been heard ) , there were still prosecution witnesses ( CARDINAL ) and witnesses called by the co - accused ( CARDINAL ) to be heard . On DATE ORG granted that application .

The trial court held hearings on the following dates : DATE , CARDINAL and DATE , CARDINAL and DATE , CARDINAL DATE , CARDINAL and DATE , DATE , CARDINAL DATE and DATE . CARDINAL hearings were cancelled for the following reasons : the absence of some of the co - defendants and defence counsel ( DATE ) ; the trial judge ’s illness ( DATE ) ; the failure of CARDINAL of the co - defendants to appear ( DATE ) and the failure of CARDINAL of the defence counsel to appear ( DATE ) .

On DATE the trial court made yet another application to ORG for an extension of the applicant ’s detention until DATE . It referred to the necessity to hear witnesses called by the co - defendants and to obtain an expert report as to the mental health of CARDINAL of the co - defendants . On DATE ORG granted that application . Another similar application of the trial court of DATE was granted by ORG on DATE . The latter court considered that the proceedings had not been terminated due to reasons beyond the trial court ’s control . The applicant ’s detention was prolonged until DATE .

In the course of the proceedings the applicant appealed unsuccessfully against several decisions extending his detention .

On DATE ORG held the last hearing and closed the trial . On DATE it gave judgment . The applicant was convicted of CARDINAL counts of robbery and CARDINAL counts of burglary and sentenced to DATE imprisonment . He was acquitted of CARDINAL counts of burglary .

NORP The applicant appealed against the first - instance judgment . On DATE ORG upheld the judgment of ORG in respect of the applicant . Throughout the proceedings before the trial court and ORG the applicant was represented by a legal - aid counsel .

On DATE , relying on Article CARDINAL of the ORG , the applicant requested ORG to appoint a legal - aid counsel for him with a view to lodging a cassation appeal . On DATE the court granted that request and appointed the same counsel who had represented the applicant at the earlier stages of the proceedings to prepare a cassation appeal . By a letter dated DATE the counsel informed ORG that , having analysed the case file , he had not found any grounds on which a cassation appeal could be based .

On DATE ORG informed the applicant about the legal - aid counsel ’s refusal and that no other legal - aid counsel would be appointed for him . Furthermore , it informed the applicant that he had DATE from DATE following the receipt of that letter to lodge a cassation appeal by a counsel of his own choosing . It appears that the applicant did not lodge a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG sent a letter to the applicant acknowledging the receipt of his letter of DATE .

It appears that that letter was delivered to the applicant after having been controlled by the authorities . The ORG ’s envelope bears CARDINAL stamps that read “ FAC . Received DATE ” and “ FAC . Received DATE ” ( PERSON w PERSON . wpł . CARDINAL DATE and wpł . CARDINAL LIS . DATE ) . There were also CARDINAL hand - written notes “ R[egional ] C[ourt ] K[atowi]ce PERSON ” ( SO K - ce ) and “ return after censorship ” ( zwrot po cenzurze ) .

The relevant domestic law and practice concerning the imposition of detention on remand ( tymczasowe aresztowanie ) , 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 the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

Article CARDINAL CARDINAL of the LAW provides :

“ Everyone shall be presumed innocent until proved guilty in a final decision of a court of law . ”

A similar principle is laid down in LAW .

Pursuant to Article CARDINAL of LAW a defendant who does not have a defence counsel of his own choosing may request the trial court to appoint him a legal aid counsel if he had duly proved that he could not afford legal assistance ( i.e. that the costs of such assistance “ would entail a substantial reduction in his and his family ’s standard of living ” ) .


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

On DATE an officer with ORG of ORG used , in the course of his duties , a computer at a police station in GPE to access a web page which he found on the internet . When he viewed that page he saw people covered in faeces , coprophilia , coprophagia and men involved in fellatio . The page was in the form of a preview for other material that could be viewed on payment of a subscription . Anyone wanting more of that type of material could click on to a link marked “ subscription to our best filthy sites . ” The officer did that and provided his name , address , and credit card details . He was then given access to a second web page which contained similar material to the first . On DATE the officer visited the web site again and viewed a third web page .

The applicant was subsequently arrested and interviewed by police officers about his involvement in the publication of internet sites . He stated in his interviews with the police that the internet site viewed by the officer was operated and controlled by ORG , a company based in GPE that complied with all the local laws and of which the applicant was a majority shareholder .

The applicant was charged with CARDINAL counts of publishing an obscene article , contrary to section CARDINAL of LAW CARDINAL ( “ the DATE LAW ) . The CARDINAL counts related to the CARDINAL respective web pages which the officer had viewed .

The matter came for trial before ORG in DATE . At the start , the applicant entered an admission , through his counsel , that he was legally responsible for the publication of the web pages viewed by the police officer . The issue for the jury was whether those pages were obscene within the meaning of section QUANTITY of LAW . The trial judge directed them as to the definition of “ obscene ” provided by LAW ( see below ) .

On DATE the applicant was convicted on the first count , which related to the preview page , and acquitted him on the CARDINAL other counts . On DATE he was sentenced to DATE imprisonment .

The applicant sought leave to appeal to ORG on the ground , inter alia , that his conviction violated LAW . He submitted that it was an interference with his right to freedom of expression which was neither prescribed by law , nor proportionate . His main point was that LAW was not sufficiently foreseeable because the major steps towards publication of the web pages had taken place outside the jurisdiction : he maintained that LANGUAGE courts should only be able to convict when the major steps towards publication took place within their jurisdiction . He further submitted that section QUANTITY of LAW was not sufficiently clear . As to proportionality , he pointed out that similar material was readily available on the internet and that there were better means of inhibiting access , such as industry self - regulation , blockage by service providers and steps taken at home .

On DATE ORG dismissed his appeal against conviction . It relied on PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL , § DATE ) and PERSON v. GPE ( no . ORG decision of DATE ) in holding that section QUANTITY of LAW was sufficiently precise for the interference in question to be prescribed by law .

In regard to proportionality , it reviewed the LAW case law and observed that there was a margin of appreciation in relation to judgments about morality . It held that the interference with the applicant ’s freedom of expression was limited in that he was only convicted on the first count . It considered that , even if LAW only provided limited protection to vulnerable people , there is no reason why a responsible government should abandon that protection in favour of the limited remedies advocated by the applicant . Finally , it noted , on the jurisdictional point , that the applicant ’s suggestion , that conviction should only be possible where major steps had been taken towards publication in a place over which the court had jurisdiction , would undermine the aim that the law was intended to protect by encouraging publishers to take the steps towards publication in countries where they were unlikely to be prosecuted . It concluded that the interference in question was justified under LAW .

His appeal against sentence was also dismissed , ORG finding as follows :

“ It is pointed out that this was material that had to be sought out . That , of course , is true . As [ counsel for the applicant ] accepts , it was available to the young but they had to seek it . On the other hand , it is precisely the sort of material which some young would seek in the privacy of their own bedrooms and it is they who have to be protected , so far as is possible , by the law . There is , as [ counsel for the applicant ] submits , difficulty with the worldwide web , but it is through the worldwide web that people are able to make very substantial profits ....

Finally , it is submitted that , if CARDINAL looks at the authorities , sentences passed in relation to other offences were not of this magnitude , at any rate where the offence was not , on the face of it , relating to child pornography . That is true so far as it goes , but again the danger in relation to this type of offence was its accessibility to the young and vulnerable . In those circumstances it seems to us that , bearing in mind the statutory maximum of DATE , the judge adopted the right approach in this case , and we see no reason to interfere with the sentence which he imposed . ”

On DATE ORG refused the applicant leave to appeal .

The CARDINAL Act ( as amended by LAW , LAW DATE , LAW DATE , LAW DATE and ORG provides in so far as relevant :

“ CARDINAL . Test of obscenity

( CARDINAL ) For the purposes of this LAW an article shall be deemed to be obscene if its effect or ( where the article comprises CARDINAL or more distinct items ) the effect of any CARDINAL of its items is , if taken as a whole , such as to tend to deprave and corrupt persons who are likely , having regard to all relevant circumstances , to read , see or hear the matter contained or embodied in it .

( CARDINAL ) In this LAW “ article ” means any description of article containing or embodying matter to be read or looked at or both , any sound record , and any film or other record of a picture or pictures .

( CARDINAL ) For the purposes of this LAW a person publishes an article who –

( a ) distributes , circulates , sells , lets on hire , gives , or lends it , or who offers it for sale or for letting on hire ; or

( b ) in the case of an article containing or embodying matter to be looked at or a record , shows , plays or projects it , or , where the matter is data stored electronically , transmits that data ....

Prohibition of publication of obscene matter

( CARDINAL ) Subject as hereinafter provided , any person who , whether for gain or not publishes an obscene article or who has an obscene article for publication for gain ( whether gain to himself or to another ) shall be liable –

( a ) ...

( b ) on conviction on indictment to a fine or to imprisonment for a term not exceeding DATE or both ...

Defence of public good

( CARDINAL ) Subject to subsection ( CARDINALA ) of this section [ which is concerned with moving picture films or soundtracks ] a person shall not be convicted of an offence against section two of this LAW , and an order for the forfeiture shall not be made under the foregoing section , if it is proved that publication of the article in question is justified as being for the public good on the ground that it is in the interests of science , literature , art or learning , or of other objects of general concern . ”


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

On DATE the Bratislava I ORG approved an agreement on exchange of CARDINAL flats used by the applicant and her parents respectively for a single flat in which they intended to live together . The decision stated that the right to use the flat was subjected to an agreement on its transfer to be concluded between the owner and the new user pursuant to LAW .

On DATE a record was drawn about the agreement on the transfer of the flat . It was signed by the applicant ’s father and the applicant ’s parents were mentioned in it as the users of the flat . Another document concerning the fees for the use of the flat established by the owner on DATE mentioned the applicant ’s father as the user of the flat and both the applicant and her mother as persons living in it together with the official user .

On DATE the Bratislava - Staré mesto municipality restored the block of flats in which the applicant and her parents lived to its original owners pursuant to LAW . Subsequently the house was purchased by other individuals .

On DATE the applicant , her parents and CARDINAL other persons living in the house lodged an action with the Bratislava I ORG ( Obvodný súd - “ the ORG ” ) pursuant to LAW ) of LAW . The plaintiffs challenged the lawfulness of the restitution and the subsequent sale of the house . They claimed to have a particular legal interest in lodging the action since the unlawful restitution of the house had prevented them “ from having the ownership of the flats transferred to them for the remainder of their value in accordance with the law ” . They further complained that the new owners were attempting to make them move out of the house in that , for example , they had deliberately broken the central heater .

ORG started proceeding with the case on DATE . On DATE the action was sent to the defendants for observations .

The first hearing was held on DATE . Another hearing was scheduled for DATE . It was adjourned as the case had been transmitted to another judge .

On DATE the applicant and several other plaintiffs complained about delays in the proceedings . On DATE the vice - president of ORG explained that the judge who had taken over the case in DATE had needed time to study the file and that a hearing was scheduled for DATE .

On DATE ORG adjourned the case with a view to obtaining further information .

On DATE ORG granted , in a different set of proceedings , an action of DATE by which the new owners of the house had requested that the tenancy of the applicant ’s parents be terminated . The applicant ’s parents were ordered to move out of the flat within DATE after they were provided with alternative accommodation .

On DATE the applicant lodged a petition with ORG ( Ústavný súd ) . She complained about the length of the proceedings concerning the lawfulness of the restitution of the house .

On DATE ORG found a violation of the applicant ’s right to have her case examined within a reasonable time as guaranteed by LAW ( CARDINAL ) of LAW and LAW . ORG established , inter alia , that ORG had remained inactive DATE and DATE and also between DATE and DATE .

On DATE the vice - president of ORG informed the applicant that following the finding of ORG the judges who had dealt with the case had been disciplined , and that the case had been transmitted , as from DATE , to another judge .

On DATE ORG dismissed the applicant ’s request for interim measures to be ordered . On DATE ORG ( PERSON súd ) modified this decision in that it ordered the owners of the house not to alienate it pending the outcome of the proceedings on the merits . ORG found that the plaintiffs had a legal interest in bringing the proceedings within the meaning of LAW ( c ) of LAW since they would be entitled to purchase the flats if the ownership of the house had not been transferred to the original owners .

On DATE the applicant complained to the president of ORG that ORG had not held a single hearing after the delivery of ORG decision of DATE .

On DATE the applicant extended the action of CARDINAL DATE claiming that the ownership of the house be restored to ORG municipality .

On DATE the applicant complained to the president of ORG that there had been no progress in the case since DATE and that the interim measure ordered by ORG on DATE had not yet been notified to the land registry .

On DATE the applicant extended her action and claimed that the tenancy of the flat be restored to her and her mother . She also claimed compensation for damage which she had suffered in this context .

On DATE ORG dismissed the action . It found that proceedings under LAW ( c ) of LAW aimed at preventive protection of existing rights . As the alleged interference with the plaintiffs’ rights had been prior to the filing of their action of DATE , ORG held that they had no pressing legal interest for having the lawfulness of the restitution determined .

ORG noted that the applicant had extended the action in that she claimed also reparation for the alleged violation of her rights . In this respect it found that the applicant had lived in the flat together with her parents as a member of the household . She had not been , however , formally registered as a tenant . ORG concluded that the applicant lacked standing in the case from the very beginning .

Finally , ORG recalled that the tenants’ right to purchase flats under LAW was subjected to conditions set out in Sections ORG and DATE , and that the restitution had been prior to the entry into force of Act No . CARDINAL on DATE . It held that the restitution had in no way affected the tenants’ rights .

On DATE the applicant appealed . She argued that she had both standing in the case and a pressing legal interest in having the issue determined . She also submitted that ORG had misinterpreted Act No . CARDINAL/CARDINAL .

The appellate proceedings are pending .

Under LAW , the right to use a flat was subjected to an agreement on its transfer concluded between the owner and an individual . A record of the conclusion of the agreement was to be drawn and signed by the owner ’s representative and by the individual acquiring the right to use the flat .

Section CARDINAL ( CARDINAL ) permitted the exchange of flats between users . The exchange was subjected to a written agreement and to its approval by the authority charged with the administration of the flats . LAW CARDINAL provided that the right to use an exchanged flat could be acquired by means set out in LAW .

Section CARDINAL ( CARDINAL ) provides that the right to use a flat , either by an individual or jointly by several persons , existing by DATE is automatically transformed into tenancy or , as the case may be , joint tenancy .

Act No . CARDINAL/CARDINAL on the ownership of flats and other LOC ( PERSON o vlastníctve bytov a nebytových priestorov ) entered into force on DATE . It provides , inter alia , for the transfer of ownership of flats to individuals by means of a contract . LAW reserved the right of municipalities to keep a certain number of flats in their ownership with a view to providing accommodation to persons in need . This provision was deleted as from DATE .

Section CARDINALa , enacted by an amendment which entered into force on CARDINAL DATE , imposes on municipalities the obligation to transfer the ownership of flats to tenants so wishing within DATE in houses in which such a transfer was requested by PERCENT of tenants . This obligation did not apply , until DATE , in respect of flats falling under LAW .

Section CARDINAL ( c ) of LAW gives everyone the right to bring civil proceedings with a view to having the existence of a legal relation or of a right determined provided that it is justified by a pressing legal interest .

Pursuant to ORG case - law , the right to use an exchanged flat was acquired , at the relevant time , upon the conclusion of an agreement on its transfer within the meaning of LAW of LAW . Such a right could also be acquired as a result of an action indicating unequivocal intention of the parties to enter into an agreement , e.g. in that the persons concerned moved into the flat with the owner ’s consent ( opinion published in DATE in the Collected Decisions as No . CARDINAL ) .

According to academic opinion , an agreement on the transfer of a flat the exchange of which had been approved by the competent authority could be concluded in writing , orally or tacitly . The agreement is considered to be valid even in the absence of a record concerning its conclusion mentioned in LAW ( ORG zákoník , PERSON , PERSON , GPE , ORG , DATE , pp . CARDINAL ; PERSON občianske právo , CARDINAL . zväzok , GPE , Obzor , DATE , p. CARDINAL ) .


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

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

In DATE the applicant retired and started receiving an old age pension .

On DATE the applicant and his wife immigrated to GPE , where they were granted refugee status . Before their departure , on DATE , they had been paid their pension for DATE in advance ( CARDINAL DATE – CARDINAL DATE ) with consecutive termination of payments in accordance with LAW .

In DATE the applicant lodged a complaint with ORG claiming that the termination of pension payments to him was unconstitutional . By letter of DATE ORG replied to the applicant that he had no right to lodge a constitutional appeal .

In DATE the applicant raised the same issue with ORG . By letter of DATE , the ORG ’s ORG replied that the only possible solution to the applicant ’s problem was the introduction of legislative changes since the termination of pension payments in case of emigration was directly foreseen by the law .

According to the applicant , in DATE he lodged a complaint with the Poltava Kievsky ORG , but received no reply .

By letter of DATE , ORG of GPE informed the applicant , in reply to his letter , that it had no competence to act as a first instance court in respect of the applicant ’s complaint .

In DATE the applicant again submitted his complaint to ORG , as well as to ORG and the President of GPE . By letter of DATE , ORG replied to the applicant along the same lines as in its letter of DATE . The applicant ’s complaints to ORG and the President of GPE were redirected to ORG , which in reply to the applicant referred to its previous letters of DATE and DATE .

On DATE the applicant lodged an administrative complaint with the ORG of GPE against ORG and ORG , the ORG , ORG and the President of GPE for failure to protect elderly people who emigrated from GPE and failure to consider his complaints . On DATE the court rejected this complaint for failure to comply with procedural requirements .

The relevant provisions read as follows :

“ ... The norms of LAW are norms of direct effect . Appeals to the court in defence of the constitutional rights and freedoms of the individual and citizen directly on the grounds of LAW are guaranteed . ”

“ ORG have equal constitutional rights and freedoms and are equal before the law .

There shall be no privileges or restrictions based on race , colour of skin , political , religious and other beliefs , sex , ethnic and social origin , property status , place of residence , linguistic or other characteristics ... ”

“ ORG of GPE is the sole body of constitutional jurisdiction in GPE .

ORG decides on issues of conformity of laws and other legal acts with LAW , and provides the official interpretation of LAW and the laws of GPE . ”

“ The jurisdiction of ORG encompasses :

CARDINAL ) NORP deciding on issues of conformity with LAW ( the constitutionality ) of the following :

- laws and other legal acts of the Verkhovna Rada of GPE ;

- acts of the President of GPE ;

- acts of ORG of GPE ;

- legal acts of the Verkhovna Rada of GPE .

These issues are considered on the appeals of : the President of GPE ; CARDINAL ORG of GPE ; ORG of GPE ; LAW the Verkhovna Rada of GPE ; the Verkhovna Rada of GPE ;

CARDINAL ) NORP the official interpretation of LAW and the laws of GPE ;

On issues envisaged by this LAW , ORG of GPE adopts decisions that are mandatory for execution throughout the territory of GPE , that are final and shall not be appealed . ”

Article CARDINAL . Payment of pensions to the citizens who left abroad .

“ Pensions shall not be granted to citizens who left for permanent residence abroad .

The pensions granted in GPE before the leave for permanent residence abroad shall be paid for DATE in advance before departure for abroad . During the stay of these citizens abroad only pensions granted for professional disability or illness shall be payable .

The procedure of transferring the pensions granted for professional disability or illness to other countries shall be established by ORG . ”

Article CARDINAL of the PERSON contains provisions similar to those of second paragraph of LAW , cited above . It further foresees that while abroad the person concerned should be paid pension , if such pension payments are foreseen by the international treaty ratified by the ORG .

There is no treaty on social welfare between GPE and GPE .