The applicant , PERSON , is a NORP national of the NORP ethnic origin , born in DATE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

Proceedings determining the applicant ’s status in GPE

The applicant entered GPE illegally on an unspecified date in DATE . He immediately claimed asylum on the ground that he had allegedly taken part in various hostilities against the NORP military forces and that he feared persecution if returned to GPE . He alleged that he had been previously detained by NORP military officers , that he had been beaten and tortured during that detention , and that he had only been released after his relatives had “ paid a ransom ” .

On DATE the immigration authorities refused asylum and applied to a court for the applicant ’s deportation to GPE . In reaching their conclusion , the immigration authorities referred to the “ danger to national security ” which the applicant represented . No factual elements were specified to support that statement , the immigration authorities having reached the conclusion on the basis of a letter sent to them by ORG . The decision of CARDINAL DATE mentioned that the applicant had the right of appeal to a court within DATE of the notification of the decision , pursuant to LAW .

The decision of CARDINAL DATE was translated into NORP and given to the applicant on DATE , as confirmed by his signature on a copy of the decision submitted to the ORG .

On DATE ORG accepted the immigration authorities’ request to deport the applicant to GPE on the basis of his presenting a danger to national security .

On DATE the applicant was accommodated at ORG ( ARC ) pending the final determination of his legal status in GPE .

On DATE the applicant applied to a court , claiming asylum and alleging persecution in GPE .

On DATE ORG dismissed the application on the ground that the applicant had missed DATE time - limit for the submission of an appeal , laid down in LAW . In this regard it was noted that the applicant had sent his application by post only on DATE . The court also noted that the applicant had not specified whether his application was an appeal against the immigration authorities’ decision of CARDINAL DATE , or against the court decision of DATE . In either event , the applicant had submitted his appeal out of time . It was further noted that he had not requested an extension of the time - limit for appeal .

On DATE the applicant received the court decision of CARDINAL DATE . On DATE he consulted a lawyer , who helped him to draft a further appeal against the immigration authorities’ decision of CARDINAL DATE . In that appeal , dated DATE , the applicant stated that he had only taken cognisance of the impugned decision on DATE , and that he had appealed against it on DATE . Since he did not have a lawyer until DATE , the applicant requested the reinstatement of the time - limit for appealing against the decision of CARDINAL DATE . In his appeal , the applicant argued that the authorities’ conclusions on his alleged “ danger to national security ” were not supported by any evidence . He claimed that he would be subjected to persecution if returned to GPE .

On DATE ORG dismissed the applicant ’s request to reinstate the time - limit . The court held that the time - limit mentioned in LAW could only be reinstated in cases where it had been missed as a result of circumstances independent of the applicant ’s will . However , the court observed that the applicant had not invoked any circumstances which could show that he was not in a position to submit his appeal before DATE .

On DATE the applicant filed an appeal against the decision of DATE . The applicant stated that from DATE , after having taken cognisance of the decision of CARDINAL DATE , he had been unable to submit his appeal within the DATE period since he did not know the NORP language or legislation and , moreover , had no postage stamps or envelopes to send an appeal . According to the applicant , on DATE he had given his appeal , which had been written in LANGUAGE , to a representative of the ORG High Commissioner for Refugees ( ORG ) , who in turn sent the appeal to the court . The applicant also stated that the ORG representative had promised the applicant that he would inform certain immigration lawyers about his situation . As a result , the applicant had been able to meet a lawyer for the first time on DATE , and to draft a properly motivated appeal on DATE .

On DATE ORG dismissed the applicant ’s appeal against the decision of DATE . The court reiterated that the applicant ’s first appeal against the decision of DATE had only been sent on DATE , i.e. DATE after the applicant had familiarised himself with the decision ( of DATE ) . The court observed that the fact that the applicant had access to a lawyer for the first time only on DATE did not constitute a circumstance absolving him from the obligation to comply with the time - limit . The court also stated that the other allegations relied on by the applicant ( i.e. ignorance of language and laws , and no stationery ) could not be reviewed on appeal as these facts had not been alleged before the first - instance court on DATE . That decision was final .

On DATE ORG communicated the applicant ’s complaints about his imminent expulsion from GPE to GPE under LAW .

On DATE ORG suspended the execution of the expulsion order of DATE .

On DATE the immigration authorities authorised the applicant ’s stay in GPE on humanitarian grounds .

On DATE the President of ORG petitioned ORG to resume the proceedings concerning the applicant ’s expulsion . On DATE ORG accepted the President ’s petition . The case was transmitted for a fresh examination by ORG .

On DATE ORG quashed the expulsion order of DATE inter alia because of a risk of the applicant ’s possible persecution if deported to GPE .

On DATE the immigration authorities issued the applicant with a temporary residence permit on humanitarian grounds .

In his letter of DATE , the applicant stated that , in view of the regularisation of his stay in GPE , he no longer wished to pursue his complaints under LAW .

The applicant ’s detention

The applicant had not been arrested or detained upon his entry into GPE in DATE or immediately thereafter . In DATE he lived at an address in GPE .

On DATE the immigration authorities informed ORG that the applicant had not been found at his permanent place of residence , and that as a result he not been acquainted with the decision of CARDINAL DATE refusing asylum .

On DATE the applicant was arrested by the NORP police in view of the expulsion order of DATE .

On DATE the applicant ’s detention ( sulaikymas ) and placement ( apgyvendinimas ) at the ARC were authorised by GPE to ensure the applicant ’s eventual expulsion from GPE on the basis of LAW ( see the “ Relevant domestic law and practice ” part below ) . Detention was authorised until DATE .

On the same date the applicant escaped from the police . A search for him was launched . On DATE he was again arrested , brought to and accommodated at the ARC .

On DATE , DATE and DATE , ORG extended the term of the applicant ’s detention , by the latter decision until DATE .

On DATE ORG dismissed his appeal against the decision of DATE . In this connection the appeal court noted that the decision on the applicant ’s expulsion had not been quashed , although its execution had been suspended by ORG on DATE . It held that the applicant ’s continuing detention was compatible with LAW and CARDINAL of LAW ( see the “ Relevant domestic law and practice ” part below ) .

On DATE ORG refused to order the applicant ’s release . On DATE the ORG further authorised the applicant ’s detention at the ARC until DATE . The court noted that on DATE the immigration authorities had decided to authorise the applicant ’s stay in the country on humanitarian grounds , and that , as a result , the ground specified in LAW , namely the unlawfulness of his stay in the country , could no longer justify his detention . However , the court observed that the continuing validity of the expulsion order of DATE warranted his detention in accordance with LAW and CARDINAL of LAW .

On DATE ORG rejected the applicant ’s appeal against the decision of DATE .

In view of this decision , on DATE ORG decided that there were no longer any grounds for the applicant ’s detention under LAW . The decision of DATE was accordingly quashed .

On DATE , upon the applicant ’s request , his further stay at the ARC was authorised by the immigration authorities under a different regime , namely without any restrictions on his liberty of movement .

Following the decision of DATE to issue the applicant with a temporary residence permit , he left his accommodation at the ARC on an unspecified date in DATE . It appears that he now lives in a place of his own choice in GPE .

According to LAW of DATE , an alien can be arrested ( sulaikytas ) by the police and held for TIME , in order to determine the legality of his stay in the country . The alien can thereafter be deprived of his liberty only on the basis of a court order .

Pursuant to LAW , an alien may be detained ( sulaikytas ) if his stay in the country is illegal ( LAW ) , where a decision has been taken to expel him ( LAW ) , or when he presents a danger to public safety and national security ( LAW ) .

According to LAW , the immigration authorities shall apply to a court for a detention order if one of the grounds specified in LAW exists .


CASE OF RUNIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants live in GPE .

By CARDINAL judgments of different courts of first instance ( the application no . CARDINAL/CARDINAL concerns the non - enforcement of CARDINAL judgments ) of DATE , DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE and DATE , which became final on CARDINAL October CARDINAL , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL DATE , DATE and DATE , respectively , ORG ( an Entity of GPE ) was ordered to pay , within DATE , the following amounts in convertible marks ( BAM ) in respect of war damage together with default interest at the statutory rate :

( i ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the PERSON and PERSON ;

( ii ) BAM CARDINAL,CARDINAL in respect of pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to Mr PERSON ;

( iii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to PERSON ;

( iv ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the GPE ;

( v ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to PERSON ;

( vi ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage to PERSON ;

( vii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage , BAM CARDINAL,CARDINAL in respect of pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to the PERSON ;

( viii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage , BAM CARDINAL,CARDINAL in respect of pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to the PERSON ;

( ix ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage , BAM CARDINAL,CARDINAL in respect of pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to the PERSON ;

( x ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage to PERSON ;

( xi ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the PERSON ;

( xi ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the ORG ;

( xiii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the PERSON ;

( xiv ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to PERSON ;

( xv ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to PERSON ;

( xvi ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the PERSON ;

( xvii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the ORG ;

( xviii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL in respect of pecuniary damage to the ORG ;

( xix ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage to Mr ORG ;

( xx ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of pecuniary damage to the GPE ;

( xxi ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL in respect of pecuniary damage to PERSON ;

( xxii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to Mr PERSON ;

( xxiii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL in respect of legal costs to Mr Ćelić ;

( xxiv ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL in respect of legal costs to PERSON ;

( xxv ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to PERSON ;

( xxvi ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage , BAM CARDINAL,CARDINAL in respect of pecuniary damage and BAM CARDINAL,CARDINAL in respect of legal costs to Mr GPE ; and

( xxvii ) BAM CARDINAL,CARDINAL in respect of non - pecuniary damage , BAM CARDINAL,CARDINAL in respect of pecuniary damage and BAM CARDINAL in respect of legal costs to the PERSON ( this is the total amount awarded by the domestic judgments of DATE and DATE ) .

The Banja Luka Court of First Instance issued writs of execution ( rješenje o izvršenju ) on DATE , CARDINAL DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL DATE , DATE , DATE and DATE , respectively .

The applicants complained of non - enforcement to ORG or to ORG . On DATE and DATE ORG ( the legal successor of ORG ) found a breach of LAW No . CARDINAL in the cases of Mr PERSON , PERSON , the PERSON , the PERSON , the PERSON and Mr PERSON . On DATE , DATE , CARDINAL DATE , DATE and CARDINAL DATE ORG ruled likewise in the cases of the remaining applicants . The applicants did not claim compensation , but even if they had done so , their claim would have most likely been refused ( see , for example , ORG decisions ORG CARDINAL of DATE , § CARDINAL ; ORG CARDINAL of DATE , § CARDINAL ; ORG CARDINAL of DATE , § CARDINAL ; and ORG CARDINAL/CARDINAL of DATE , § CARDINAL ) .

After the extensive information campaign explaining the available options for the settlement of ORG public debt ( including its debt arising from domestic judgments ) , DATE and DATE the applicants informed the authorities that they agreed to be paid only the legal costs in cash and the principal debt and default interest in bonds . Government bonds were then issued on the following dates :

( i ) on DATE to the PERSON and PERSON ;

( ii ) on DATE to Mr PERSON ;

( iii ) DATE to Mr Višekruna ;

( iv ) DATE to the GPE ;

( v ) DATE to PERSON ;

( vi ) DATE to Mr PERSON ;

( vii ) DATE to the PERSON ;

( viii ) DATE to the PERSON ;

( ix ) DATE to the PERSON ;

( x ) DATE to PERSON ;

( xi ) DATE to the PERSON ;

( xi ) DATE to the ORG ;

( xiii ) DATE to the PERSON ;

( xiv ) DATE to PERSON ;

( xv ) DATE to PERSON ;

( xvi ) DATE to the PERSON ;

( xvii ) DATE to the ORG ;

( xviii ) DATE to the ORG ;

( xix ) DATE to Mr PERSON ;

( xx ) DATE to the GPE ;

( xxi ) DATE to PERSON ;

( xxii ) DATE to Mr Zlovolić ;

( xxiii ) DATE to Mr Ćelić ;

( xxiv ) DATE to PERSON ;

( xxv ) DATE to PERSON ;

( xxvi ) DATE to PERSON ; and

( xxvii ) DATE to the PERSON .

CARDINAL applicants have already sold some or all of their bonds on ORG ( namely , Mr GPE , Mr PERSON , Mr PERSON , PERSON , ORG , PERSON Pantić , PERSON , Mr PERSON , PERSON , Mr PERSON , PERSON , PERSON , Mr PERSON Jović , Ms PERSON , PERSON , Mr ORG , Ms Zorica Mišić , Mr PERSON , Mr PERSON Ćelić and Ms Ilinka Simendić ) .

Around CARDINAL domestic judgments ordering PERSON to pay war damages ( including those under consideration in the present case ) became final by DATE . After a stay of DATE on such civil actions under LAW DATE , a number of new judgments have been rendered since DATE . As pursuant to section CARDINAL § CARDINAL of LAW DATE and settled domestic case - law , such claims became statute - barred on DATE ( that is , DATE from the cessation of the state of war ) , the total number of new judgments should not exceed CARDINAL according to information provided by the Government in the context of the leading case concerning this matter ( Čolić and Others , cited above ) . The CARDINAL of cases , which were lodged after that date and were stayed DATE , would eventually be rejected as statute - barred .

Pursuant to LAW , only legal costs awarded by the domestic judgments in question are to be paid in cash , whereas principal debt and associated default interest are to be paid in government bonds which earn interest at an DATE rate of PERCENT . There have thus far been CARDINAL issues of bonds : on DATE ( to be amortised in CARDINAL DATE instalments DATE ) , on DATE ( to be amortised in CARDINAL DATE instalments DATE ) , on DATE ( to be amortised in CARDINAL DATE instalments DATE ) , on DATE ( to be amortised in CARDINAL DATE instalments DATE ) and on DATE ( to be amortised in CARDINAL DATE instalments DATE ) . If CARDINAL is unable or unwilling to wait until the maturity of bonds , he or she may sell them on ORG ( their current price is PERCENT of their nominal value ) . With the aim of making such bonds attractive , ORG has accepted that they may be used to pay direct taxes accrued by DATE .


Violation of Art. 6-1 with regard to the right to a court;Not necessary to examine Art. 6-1 with regard to procedural fairness;No violation of P1-1

The applicant was born in DATE and lives in GPE , a village in the NORP region of GPE .

On an unspecified date the applicant brought proceedings against the ORG branch of ORG , ORG and the ORG . She claimed that the value of her personal savings that had accrued in her accounts by DATE had significantly dropped following the economic reforms . Her savings were the result of DATE of hard work , and she had intended to buy a flat with the money . However , the ORG had not revalued the amounts on deposit to offset the effects of inflation , as it had been required to do by the PERSON on revaluation and protection of the savings of citizens of GPE enacted on DATE ( Федеральный закон « О восстановлении и защите сбережений граждан Российской Федерации » – “ the Savings Act ” ) .

On DATE ORG , presided over by Judge PERSON , found in the applicant 's favour and awarded her MONEY ( ORG ) payable by the ORG treasury . The court rejected the defendants ' main argument that the reimbursement scheme under LAW could not be implemented in practice since no special secondary legislation had been passed . Noting that LAW recognised the guaranteed deposits as the ORG 's internal debt and that the ORG had not introduced the necessary rules in time to enable the debt to be repaid , the court held that the defendants were liable under the civil law .

On DATE the judgment was set aside on appeal by ORG and the case remitted for a retrial .

On DATE the ORG , sitting in the same composition , delivered a judgment similar to its judgment of DATE . The award , however , was readjusted to ORG CARDINAL,CARDINAL.CARDINAL . No appeal was lodged against the judgment and it became final DATE , on DATE .

Enforcement proceedings commenced on DATE .

On an unspecified date in DATE , while the enforcement proceedings were in progress , the President of ORG lodged an application for supervisory review ( протест в порядке надзора ) of the judgment of DATE , on the ground that it conflicted with substantive laws .

The application was examined on DATE by the ORG of ORG . Having accepted the reasons set out in the application , the ORG set aside the judgment of CARDINAL DATE and dismissed the applicant 's claims altogether . The applicant was not informed that the application for supervisory review had been lodged , or invited to attend the hearing before the ORG .

On DATE the enforcement proceedings were discontinued .

On DATE a deputy president of ORG lodged an application for supervisory review of the judgment of the ORG of DATE .

On DATE ORG granted the application for supervisory review . It upheld the reasons given by the ORG for setting aside the judgment of CARDINAL DATE , but ruled that the applicant 's case should not have been dismissed in full , as she had thereby been unjustly deprived of the right to seek reimbursement of the money . It also acknowledged that the applicant 's right to be informed that the ORG was reviewing her case had not been respected . The case was remitted to ORG for a fresh examination .

On DATE the same composition of the ORG delivered its third judgment in the applicant 's favour . The award included RUR CARDINAL,CARDINAL as compensation for devaluation and RUR CARDINAL,CARDINAL in respect of non - pecuniary damage . The court stated that the government 's systematic delaying of its obligation to revalue the applicant 's savings had caused her moral suffering and anguish .

On DATE the judgment was set aside on appeal by ORG and the case remitted for re - examination .

On DATE the ORG , sitting in the same composition , once again reaffirmed its position by awarding compensation in the same amount as in its judgment of DATE .

On DATE the appellate court quashed the judgment and remitted the case for a fresh examination by ORG . As it was permitted to do by LAW , it ordered that the case should be retried by a different bench .

On DATE the ORG , presided over by Judge PERSON , dismissed the applicant 's case on the ground that her claims had no basis in law .

On DATE that judgment was upheld by ORG .

On DATE the Presidium of ORG quashed the judgment following an application by the President of ORG for supervisory review . The ORG held that the courts below had disregarded the applicant 's fundamental rights under LAW and the Convention .

On DATE the ORG , sitting in the same composition , delivered a new judgment in which , having regard , inter alia , to LAW , it granted the applicant 's claim in part and awarded her ORG .

The defendants ' appeal was dismissed on DATE by ORG , following which the judgment of DATE became final .

On DATE the applicant and a deputy president of the government of ORG signed a settlement agreement , in which the applicant promised to abandon her claims arising out of the judgment of DATE for a consideration of RUR CARDINAL . On DATE the agreement was approved by ORG in a consent order , as requested by the parties .

On DATE the applicant lodged an application with ORG to have the consent order of DATE set aside .

On DATE the applicant withdrew that application . She said that the government had bought her a flat in ORG for ORG CARDINAL , and that she had no more claims against the ORG .

On DATE the applicant informed the ORG that the price of the flat did not cover the damage sustained by her because the money she had had in her savings account in DATE , if converted into GPE dollars , would exceed the price of the flat . The applicant asked ORG for an order enabling her to recover the difference from the ORG .

Under LAW Code of Civil Procedure , which was in force at the material time , judgments became final as follows :

“ Court judgments shall become legally binding on the expiration of the time - limit for lodging a cassation appeal if no such appeal has been lodged . If the judgment is not quashed following a cassation appeal , it shall become legally binding when the higher court delivers its decision . ... ”

The only further means of recourse was the special supervisory review procedure that enabled courts to reopen final judgments ( пересмотр в порядке судебного надзора ) :

“ Final judgments , decisions and rulings of all NORP courts shall be amenable to supervisory review on an application lodged by the officials listed in LAW . ”

The power of officials to lodge an application ( протест ) depended on their rank and territorial jurisdiction :

“ Applications may be lodged by :

( CARDINAL ) the Prosecutor General – against judgments , decisions and rulings of any court ;

( CARDINAL ) NORP the President of ORG – against rulings of the Presidium of ORG and judgments and decisions of ORG of ORG acting as a court of first instance ;

( CARDINAL ) Deputy Prosecutors General DATE against judgments , decisions and rulings of any court other than rulings of the ORG of ORG ;

( CARDINAL ) NORP Vice - Presidents of ORG – against judgments and decisions of ORG of ORG acting as a court of first instance ;

( CARDINAL ) the Prosecutor General , Deputy Prosecutor General , the President and Vice - Presidents of ORG – against judgments , decisions and rulings of any court other than rulings of the Presidium of ORG ;

( CARDINAL ) NORP the President of ORG of an autonomous republic , a regional court , a city court , a court of an autonomous region or a court of an autonomous district , the public prosecutor of an autonomous republic , a region , a city , an autonomous region or an autonomous district DATE against judgments and decisions of district ( city ) people 's courts and against decisions of civil divisions of , respectively , ORG of an autonomous republic , regional court , city court , court of an autonomous region or court of an autonomous district that examined the case on appeal . ”

The power to lodge such applications was discretionary , that is to say it was solely for the official concerned to decide whether or not a particular case warranted supervisory review .

Under Article CARDINAL officials listed in LAW who considered that a case deserved closer examination could , in certain circumstances , obtain the case file in order to establish whether good grounds for lodging an application existed .

Article CARDINAL of the Code empowered the relevant officials to stay the execution of the judgment , decision or ruling in question until the supervisory review proceedings had been completed .

Article CARDINAL of the Code provided that the official concerned should draft the application and forward it – in sufficient copies for each of the parties – with the case file to the relevant court .

Article CARDINAL read as follows :

“ The parties ... shall be served copies of the application . If circumstances so require , the parties ... shall be informed of the time and place of the hearing .

The copies of the application shall be served on the parties by the court [ examining the application ] . The court shall give the parties sufficient time before the hearing to submit a written reply to the application and any additional material . ”

Under LAW , proceedings on an application for supervisory review were normally oral and the parties were invited to make comments once the judge concerned had reported to the court .

Courts hearing applications for supervisory review had extensive jurisdiction in respect of final judgments :

“ The court that examines an application for supervisory review may :

( CARDINAL ) uphold the judgment , decision or ruling and dismiss the application ;

( CARDINAL ) quash all or part of the judgment , decision or ruling and order a fresh examination of the case at first or cassation instance ;

( CARDINAL ) quash all or part of the judgment , decision or ruling and terminate the proceedings or leave the claim undecided ;

( CARDINAL ) uphold any of the previous judgments , decisions or rulings in the case ;

( CARDINAL ) quash or vary the judgment of the court of first or cassation instance or of a court that has carried out supervisory review and deliver a new judgment without remitting the case for re - examination if substantive laws have been erroneously construed and applied . ”

The grounds for setting aside final judgments were as follows :

( CARDINAL ) NORP wrongful application or interpretation of substantive laws ;

( CARDINAL ) significant breach of procedural rules which led to the delivery of an unlawful judgment , decision or ruling ... ”

There was no time - limit for lodging an application for supervisory review , and , in principle , such applications could be lodged at any time after a judgment had become final .


David Thór Björgvinsson;Geoffrey Valenzia;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , ORG , is a limited liability company registered in GPE . It was represented before the Court by Dr T. PERSON and Dr PERSON , lawyers practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Dr PERSON , Attorney General .

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

In DATE the applicant company acquired a piece of land measuring CARDINAL sq.m in GPE . The land is situated in an area where both commercial and residential properties are to be found . It adjoins on one side a public main road . However , the land in question is currently situated outside development zones and its development is subject to strict limitations .

By a declaration published in ORG of DATE , under ORG ( “ PERSON ” ) , LAW of LAW , it was stated that a portion of the land measuring MONEY was to be directly expropriated by the ORG by way of outright purchase . The declaration did not state the aim of the expropriation but only the sum offered as compensation , CARDINAL NORP Liras ( MTL – approximately MONEY ( ORG ) ) .

According to the information provided by the applicant company on DATE , by that date the sum offered in compensation had not been deposited . Consequently , according to law ( see relevant domestic law ) , it was prohibited from commencing proceedings before ORG ( “ LAB ” ) , the competent authority , to assess the amount of compensation payable .

According to the ORG and as evidenced by the documents submitted , the amount of compensation was deposited in an interest - bearing bank account on DATE , DATE after the official declaration . By a letter of DATE the applicant company was informed of the said acquisition . However , the applicant company did not take steps to prove its ownership or to withdraw the said compensation . In DATE the amount of compensation plus interest stood at MTL CARDINAL , CARDINAL ( MONEY ( ORG ) ) , an amount which the applicant could freely withdraw . This procedure is still open to the applicant company .

On an unspecified date the applicant company instituted proceedings before ORG ( FAC ) asking it to declare that the expropriation was in violation of its rights under LAW No . CARDINAL to the Convention . It claimed that the expropriation had not been effected for a public purpose since the land was to be used for the building of stables for the commercial use of other private persons . Moreover , the applicant company had been made to suffer an excessive burden , since the land in question offered the only means of access to the rest of its land . Consequently , the expropriation had not been proportionate vis - a - vis the aims pursued .

On DATE ORG rejected the applicant company ’s claims . It held that the expropriation had been needed for a public purpose , namely the redevelopment of slum housing and the construction of a new system of flood relief . The fair balance principle had been maintained since construction for social housing was in the public interest and it had not been proved that an alternative area of land in the vicinity could be used .

On an unspecified date the applicant company appealed , claiming that the project could have been restructured differently in order to limit the individual and excessive burden suffered by the applicant company and that the taking had been necessary solely for the benefit of third parties .

By a judgment of DATE ORG rejected the applicant company ’s appeal . It held that slum clearance was a social housing project which fell within the definition of public interest . The residents of the slum area kept animals for commercial purposes and it was thus understandable that the new redeveloped area would provide stables and that for public health reasons it had been subsequently decided to locate the stables on the periphery of the residential area . As indicated by the court of first instance , it had not been proved that there was other land which could have been used for this purpose . It was not correct to say that more land had been taken than was necessary , or that the land expropriated blocked access to the remainder of the land owned by the applicant company . Moreover , the applicant company would have received compensation for the land expropriated and the adequacy of the compensation had not been contested . Thus , it could not be said that the applicant company had been made to bear a disproportionate burden .

The relevant sections of ORG ) Ordinance ( LAW of LAW ) , read as follows :

Section CARDINAL

“ The President of GPE may by declaration signed by him declare any land to be required for a public purpose . ”

Section CARDINAL

“ No person shall require any proof of the public purpose referred to in articles CARDINAL and DATE and in article CARDINAL(CARDINAL ) other than the declaration of the President of GPE . ”

Section CARDINAL

“ ( CARDINAL ) Whenever the President of GPE declares that any land is required for a public purpose , the competent authority shall cause a copy of such declaration , ... to be published in ORG ... ”

Section CARDINAL

“ ( CARDINAL ) If the competent authority and the owner agree on the amount of compensation for any land , ORG , on the application of either of the parties , shall make an order putting the agreement into effect ...

( CARDINAL ) Within DATE from the publication of LAW as referred to in sub - article ( CARDINAL ) in the ORG , the Government shall deposit in an interest - bearing bank account ( which will guarantee a minimum of interest per annum as the Minister responsible for lands may by regulation under this sub - article prescribe ) a sum equal to the amount of compensation offered in LAW ...

( CARDINAL ) Where the person entitled to compensation does not accept that the amount deposited is adequate , such person may apply to ORG for the determination of the compensation in accordance with the provisions of this Ordinance ...

( CARDINAL ) Such application shall be filed with ORG within DATE from the date of notification of the judicial act by the competent authority ... ORG shall determine such compensation and shall give all necessary orders and directives in accordance with this Ordinance .

( CARDINAL ) Where the compensation payable in respect of land acquired by the absolute purchase thereof is determined , whether by agreement or by decision of ORG , any sum due as compensation over and above any sum deposited in accordance with this article together with interest thereon in accordance with article CARDINAL(CARDINAL ) , shall be paid to the person entitled thereto by the competent authority not DATE from the date on which such compensation was determined as aforesaid . ”

An agreement on the compensation could be reached at any time . Sections CARDINAL(CARDINAL ) and CARDINAL of the Ordinance in issue provided that :

Section CARDINAL ( CARDINAL )

“ The amount of compensation to be paid for any land required by a competent authority may be determined at any time by agreement between the competent authority and the owner ... ”

ORG mentioned in LAW was the ORG . According to Section CARDINAL(e ) , it was competent to :

“ ... assess the amount of compensation payable under any of the provisions of this ordinance and for that purpose to declare whether any area is a building site or agricultural or waste land . ”

For the purposes of compensation Section CARDINAL(CARDINAL ) ( b ) , provided that :

“ the value of the land shall , ... be taken to be the amount which the land if sold on the open market by a willing seller might be expected to realise . ”


No violation of Art. 3;Not necessary to examine Art. 8

At TIME on DATE , the first applicant , a social worker , drew up outside the back entrance to the block of flats in GPE where she lived . She was accompanied by her daughter PERSON , who , at the time of the incident that gave rise to the complaint , was DATE . After she had opened the gate she was stopped by CARDINAL police officers who had followed her and were standing in the gateway . They accused her of having driven through a red traffic light and of having tried to get away - an allegation denied by the applicant . The police officers claimed to have detected a strong smell of alcohol on her breath when they checked her driving licence . She agreed to be breathalysed . Despite having been shown what to do , she proved unable to provide a specimen of breath satisfactorily and was therefore told that she would have to accompany the police officers to the local hospital in order to have a blood test .

An altercation followed during which PERSON was arrested . The precise course of the events is disputed by the applicants ( see paragraph CARDINAL below ) and the police officers ( see paragraph CARDINAL below ) .

She was then driven to the hospital for the blood test , which showed the level of alcohol in her blood to be CARDINAL.CARDINAL per ml ( milligrammes per millilitre ) . She was subsequently released .

According to the applicants , PERSON agreed to have a blood sample taken , but explained that she wished first to accompany her daughter to a neighbour . CARDINAL of the police officers refused to allow this and dragged her to the police car . She was warned that she could be charged with obstructing a public officer in the execution of his duties ( Widerstand gegen die PERSON ) . When she called her daughter , the police officers said that they would look after the child . Thereupon she took her daughter by the hand , went to the back door , rang her neighbour ’s doorbell and opened the door . At that moment CARDINAL of the police officers grabbed her , twisted her left arm behind her back and her head knocked against the corner of the window- ledge . The police officers then handcuffed her . She lost consciousness for a short while . When she came round , she found herself by the police car and noticed severe pain in her left shoulder , which was being pressed towards her back by CARDINAL of the police officers . She was subsequently able to get into the police car and was driven to the hospital .

The first applicant underwent CARDINAL medical examinations . On DATE , Dr Schwering certified that he had examined the applicant on DATE and noticed bruises which were QUANTITY long on her right arm , considerable problems in moving her left shoulder , and bruises on that shoulder . He also stated that she would suffer long - term problems , in particular with her left shoulder . She was put on sick - leave until DATE . Furthermore , on DATE , PERSON , the chief surgeon at the local hospital , certified that he had examined the first applicant on DATE and had reached an almost identical diagnosis .

On DATE , Police Constable ( Polizeimeister ) PERSON laid an information against the first applicant . She was charged with obstructing a public officer in the execution of his duties contrary to LAW ) , and of driving while under the influence of alcohol contrary to LAW said code .

Police Constable PERSON stated in his report that after PERSON had been informed that she had to undergo a blood test , she had attempted to escape into the darkness of the back - yard , whereupon he had grabbed her arm and stopped her .

The applicant had been very aggressive . When informed that she was to be arrested , she had suddenly calmed down and declared that she would come along when she had taken her daughter , whom he had assumed to be DATE , to a neighbour . The police officers had agreed in order to avoid a further escalation of the events . They had followed the applicants to the back door of the house .

The first applicant had been about to follow her daughter into the house . She tried to close the door behind her but Police Constable PERSON blocked the door open and Police Constable PERSON grabbed the first applicant ’s right arm and pulled her outside . The child went upstairs .

According to the report , PERSON struggled , struck out and tried to free herself from the police officer ’s grip . Police Constable PERSON took her left arm and twisted it behind her back , whilst Police Constable PERSON kept a tight grip on her right arm .

With great difficulty the officers managed to control the applicant , who was putting up a fight . They handcuffed her in order to avoid further criminal offences being committed , in particular injury to the person . On their way to the police car she had attempted to throw herself to the ground , and he and his colleague had had to hold her arms . At that point another police car arrived . However , by that time , the applicant ’s neighbour had already offered to take care of the child .

The officers noted on arrival at FAC that PERSON had a graze on her right temple .

On DATE the criminal proceedings against the first applicant were discontinued by the public prosecutor ’s office ( Staatsanwaltschaft ) at ORG ( Landgericht ) for CARDINAL different reasons , namely that the offence of driving while under the influence of alcohol was not proven and that the applicant ’s guilt in resisting the police officers had been minimal ( gering ) and there was no public interest in prosecuting .

In DATE the competent administrative authority imposed an administrative fine of DM CARDINAL for having committed the " regulatory offence " ( PERSON ) of driving with a blood alcohol content level of CARDINAL per ml when QUANTITY was the legal limit . A driving ban of DATE was also imposed .

ORG ( ORG ) confirmed this decision . The first applicant ’s subsequent appeal to ORG ( Oberlandesgericht ) and to ORG ( Bundesverfassungsgericht ) were dismissed .

On DATE the first applicant laid an information against the police officers concerned . She alleged that they had assaulted her contrary to Articles CARDINAL and CARDINAL of the Criminal Code . In her pleadings of DATE and CARDINAL DATE , PERSON claimed that the police officers had used a disproportionate amount of force , causing injuries to her head , left shoulder and upper right arm .

On DATE , following a telephone conversation between her lawyer and an official of the public prosecutor ’s office in which PERSON allegations were withdrawn - allegedly after a warning that criminal proceedings against her would otherwise be continued - the proceedings against the police officers were discontinued .

On DATE , the first applicant filed a complaint ( Dienstaufsichtsbeschwerde ) with the Head of ORG ) against the police officers involved in the arrest . She stated that she had wanted to wait for her neighbour to come to the door but that she had not been able to as the bearded police officer had twisted her arm behind her back and her head knocked against the brick window - ledge . Subsequently she was forcibly taken to the police car where she was held with her back up against the rear of the car . The bearded man continued to pull her left shoulder back at regular intervals . At some point she was dazed .

She maintained that the blood test showed the level of alcohol to be QUANTITY . It was argued that the degree of force used against an unarmed woman was incomprehensible on an objective or subjective analysis ; the mildest means of achieving the objective should have been employed .

On DATE , the Head of ORG , acting as ORG authority ( PERSON ) , dismissed her complaint . In the decision , it was stated in particular that after she had been informed that she would have to give a blood sample , she had attempted to run away . However , CARDINAL of the police officers seized her arm and told her that she was under arrest . Her request to take her daughter to a neighbour ’s first was granted . When the first applicant opened the door and tried to enter with her daughter , CARDINAL of the police officers held her right arm fast , whereupon she started to kick and to hit out with her left hand . When the police officers held her tight she tried to escape . She had to be handcuffed . It was not accepted that her head knocked against the window - ledge at any moment in the course of the arrest . He concluded that the use of force had been justified and was not disproportionate to the aim pursued , namely the taking of a blood test .

The first applicant instituted civil proceedings in DATE against the Land North - Rhine Westphalia and the police officers concerned . She claimed compensation for the injuries sustained on DATE .

On DATE the ORG , in a partial judgment , dismissed her complaint against the police officers on the ground that an official acting in the exercise of his duties does not incur personal liability .

On DATE the ORG held a hearing in the case .

The applicant ’s neighbour was the first to give evidence . She said that she had noticed PERSON very blotchy and tear - stained face despite the dim light , had seen the blond police officer holding her arms behind her back and had feared that she would collapse at any moment as her knees had given way and she had bent forward suddenly several times . The neighbour stated on further questioning that , judging from the first applicant ’s behaviour , she must have been in terrible pain . The first applicant complained about the pain in her left shoulder and asked the police officers to remove the handcuffs . This request was repeated by the neighbour but refused by the police officers .

Police Constable PERSON confirmed the facts as set out in his report of CARDINAL DATE ( see paragraph CARDINAL above ) . He added that he was not sure whether the first applicant had deliberately not blown into the breathalyser for a sufficient time or whether she had had genuine difficulties . He stated that she had not knocked her head against the wall when she was pulled outside , however he remained unable to account for the injury to her right cheek to which he had referred in the aforementioned report . Upon further questioning he corroborated the neighbour ’s evidence that PERSON had requested that the handcuffs be removed and he explained that they had refused this request as they had feared more trouble . He said that she had not complained about any pains in her shoulder and that she had certainly not knocked her head against the wall . However , he acknowledged that she did not have the head injury before they spoke to her and said that he did not know whether she had got the injury to her right cheek during the scuffle when the handcuffs had been put on . He could not remember who had kept hold of PERSON until they had put her into the police car , or whether she had bent forward suddenly owing , for instance , to a jerking on her handcuffs and the resulting pain .

Police Constable PERSON was the next to give evidence . He confirmed the general circumstances of the first applicant ’s arrest as described by Police PERSON , although he was not prepared to say that she had run away . After the applicant had opened the front door she had attempted to close it behind her but he had held on to it while his colleague kept a tight grip on her . As it was completely dark just outside the door he could not exclude the possibility that she could have knocked her head on the wall or on something else . In any event he did not notice it happening and it was DATE that he became aware of her head injury . He stated that PERSON had vehemently resisted arrest which was why he had taken her left arm and twisted it behind her back and then handcuffed her arms in that position . He could not remember whether she had been handcuffed in the back - yard or whether they had first taken her to the street . He confirmed that she had requested that the handcuffs be removed but did not remember her complaining about any pain - in particular pain in her left shoulder . She continued , without success , to resist accompanying them , but he could not be sure who had been holding on to her while they waited for the second police car .

On further questioning Police Constable PERSON stated that he did not remember whether she had bent forward suddenly while she was still handcuffed . She had resisted arrest and had been lashing out when he had twisted her arm behind her back , but he assumed that she had not intended to assault either him or his colleague . He denied that he had pushed the first applicant ’s head against the window - ledge .

Finally , the second applicant , PERSON , gave evidence . She stated that she remembered the incident with her mother and the police officers in their back - yard . She said , in particular , that her mother had rung the doorbell and opened the door using a key . PERSON had then gone into the house and closed the door behind her . She was not aware that CARDINAL of the police officers had forcibly kept the door open . Having closed the door behind her , she said that she had managed to see through the plain glass door panel that CARDINAL of the police officers had pushed her mother ’s head against the wall . She emphasised that the police officer had repeatedly pushed her mother ’s head against the wall next to the door using his hand . The officer concerned had blond hair . Her mother and the police officer had been close to the door , QUANTITY away from it . She herself had not been right in front of the glass panel . She had subsequently run upstairs to their neighbour . She further explained that , when her mother had rung the doorbell and opened the door , she had been standing to PERSON ’s right . Her mother had opened the door only a little bit , and she had just been able to get in . She had then immediately closed the door behind her .

Whilst she did not recognise the police officers involved she thought that the dark - haired police officer had a beard . She confirmed that the light had been poor , but said that it had been light in the staircase . She had not seen either of the police officers twisting her mother ’s arm behind her back .

On DATE the ORG dismissed the first applicant ’s compensation claims against the Land North - Rhine Westphalia . It held as follows :

" The plaintiff has no claim under ORG CARDINAL and CARDINAL of LAW ( ORG ) taken together with LAW for breach of official duty to her on the part of Police PERSON and PERSON .

The ORG is admittedly convinced that the plaintiff incurred the injuries complained of when she was arrested by the QUANTITY police officers . In any event the plaintiff ended up with a graze on her temple , contusion of the left shoulder and probably also concussion , as was also confirmed in part by witnesses PERSON and PERSON and moreover does not seem to be seriously contested by the defendant Land . These injuries were probably sustained by the plaintiff in the context of her arrest .

It does not follow , however , that the defendant Land is liable in damages .

The arrest itself was not unlawful . Even if the plaintiff had no intention whatsoever to abscond , the situation nevertheless appeared otherwise to the police officers . The plaintiff was under suspicion of having committed a criminal offence , namely driving under the influence of alcohol in road traffic contrary to LAW , as the police officers had found that the plaintiff ’s breath smelt of alcohol . On the basis of the credible statements of witnesses PERSON and PERSON , the ORG also assumes that the plaintiff ’s conduct , first after failing to blow satisfactorily into the breathalyser and then later at the front door , gave both witnesses the impression that she intended to evade further investigation , namely the taking of a blood sample , by absconding . The ORG can understand that the police officers could have foreseen very considerable difficulties if the plaintiff managed to get into the building without the CARDINAL witnesses . First , the police officers could not know whether the plaintiff would have allowed them access to her flat at all . Secondly , the plaintiff would have had an opportunity of consuming more alcohol or at least claiming that she had done so , thereby making ascertainment of her blood alcohol level impossible or significantly more difficult to obtain .

In the light of these circumstances the arrest does not appear to be disproportionate either , but a perfectly reasonable means of ensuring that the further investigations could be carried out .

It is for the plaintiff to prove that in this initially lawful exercise of their duty the police officers went further than was necessary , by handling the plaintiff too roughly and in so doing injuring her or even by deliberately inflicting the injuries on her . Just as an attacker must prove that a person attacked by him , acting in self - defence , exceeded the limits of necessary self - defence ( see ORG - , ORG , pp . CARDINAL et seq . ) , so also , in the ORG ’s opinion , must this apply in a case such as the present one : a person who puts forward claims in respect of injuries suffered during a lawful arrest must prove that the police officers went beyond what was necessary and thereby caused the injuries .

The plaintiff , however , has not succeeded in providing such proof . On the evidence which has been taken , the ORG is not convinced that the police officers caused the plaintiff ’s injuries by exceeding what was necessary when arresting her .

With respect to the origin of the graze , the evidence of witness PERSON , the plaintiff ’s daughter , conflicts with that of witnesses PERSON and PERSON . Whereas witness PERSON claims to have seen one of the police officers repeatedly knocking the plaintiff ’s head against the wall by the door , the CARDINAL police officers deny this . None of these QUANTITY witnesses can be regarded as not having an interest in these proceedings ; the QUANTITY police officers could certainly expect disciplinary proceedings and a resumption of the criminal investigation if these proved to be the facts , while witness PERSON has a natural interest in supporting her mother ’s claim and account of the facts . It is not clear to the ORG which of the statements corresponds to what really happened . Definite findings of fact can therefore not be made in this respect .

The largely disinterested witness PERSON [ the neighbour ] was unable in her testimony to confirm the plaintiff ’s assertion that witness PERSON had pulled her arms upwards while she was handcuffed . Neither can such a conclusion be drawn merely from the fact that according to witness PERSON ’s statements the plaintiff leant forward jerkily several times while witness PERSON stood behind her .

Neither the balance of probability nor general experience militate in favour of accepting the plaintiff ’s version of events . The ORG considers it by no means improbable that the plaintiff sustained all her injuries when she resisted being handcuffed . In the process her head could easily have knocked against the wall ; the shoulder contusion could also have occurred when she struggled while being restrained by the police and when the handcuffs were being put on her .

For these reasons the claim must be dismissed . "

On DATE the ORG dismissed the first applicant ’s appeal . It upheld the decision of ORG that PERSON had not proved that excessive force had been used against her by the police officers .

On DATE a panel of CARDINAL judges of ORG declined to accept for adjudication the first applicant ’s constitutional complaint on the ground that it did not offer sufficient prospects of success . It considered in particular that ORG assessment of the evidence did not appear arbitrary or otherwise in violation of constitutional law .