Preliminary objection rejected (ratione temporis);Violation of Art. 6-1;Violation of P1-1;Not necessary to examine art. 14;Just satisfaction reserved

The applicant company , ORG , an international transport undertaking , is a NORP limited company that was set up in DATE and has its registered office in GPE .

DATE the applicant company held PERCENT of the shares in ORG , a NORP public limited company .

On DATE a general meeting of ORG shareholders adopted a resolution altering the company 's memorandum and articles of association , converting it into a private limited company . On DATE ORG ( виконавчий комітет ) , a municipal body legally vested with the requisite power , ratified the decision of DATE .

By decisions of DATE , CARDINAL DATE and DATE , ORG managing director increased the company 's share capital , each time by CARDINAL , and altered its memorandum and articles of association accordingly . These decisions were ratified by ORG on DATE , CARDINAL DATE and DATE respectively .

These increases in GPE share capital enabled its directors to assume sole control of the company 's management and assets . The applicant company 's shareholding fell from PERCENT to PERCENT .

According to the applicant company , DATE some of ORG assets were sold to various undertakings that had been set up by its managing director .

On DATE the applicant company lodged a complaint ( Case no . CARDINAL - CARDINAL ) with ORG ( the court of first instance in the present case ) against GPE and ORG . It sought a declaration that the decisions altering GPE memorandum and articles of association and ORG decision of DATE ratifying the changes were unlawful . It submitted that , contrary to the requirements of the legislation in force and ORG memorandum and articles of association , the general meeting on DATE had been organised without the participation or agreement of the representatives of ORG . Moreover , TIME had not been signed by all the shareholders . On DATE ORG rejected the applicant company 's claim .

On DATE the applicant company lodged with the President of ORG an application for revision under the “ supervisory review ” procedure ( заява про перевірку рішення у порядку нагляду ) [ Note by the Registry . Under the arbitration rules in force prior to DATE , an application for revision was a remedy that allowed the parties to seek “ supervisory review ” of a final judgment or order of an arbitration tribunal ] of the judgment of CARDINAL DATE . In a judgment of DATE , the tribunal 's Vice - President refused the application .

On DATE the applicant company applied to a bench of ORG seeking revision under the “ supervisory review ” procedure of the CARDINAL judgments mentioned above . In a judgment of CARDINAL DATE the bench set aside the judgments of QUANTITY DATE and DATE on the ground that the tribunals concerned had not taken sufficient account of the facts of the case and the applicant company 's arguments . It remitted the case for reconsideration to ORG ( which thus became the court of first instance in the case ) and asked it to pay special attention to the need for a detailed examination of the facts of the case and the documents produced by the parties .

On DATE ORG board sent the NORP President a letter asking him to “ place the case under his personal control ” in order to ensure that “ NORP interests [ were ] safeguarded ” . In a letter of CARDINAL DATE the President of GPE urged the President of ORG to “ defend the interests of NORP nationals ” .

On DATE a general meeting of ORG shareholders adopted a revised version of the company 's memorandum and articles of association . On CARDINAL DATE ORG ratified that decision .

In a coded telegram of CARDINAL DATE the Chief Executive of GPE informed the NORP President that , notwithstanding his resolution of DATE calling for the defence of national interests , ORG had set aside the judgments of DATE and DATE and remitted the case for reconsideration , a decision which , in his opinion , constituted a threat to ORG ability to carry on its business and adversely affected GPE 's interests in GPE 's favour . He asked the President to intervene in the case immediately in order to defend the interests of the NORP company and of NORP nationals .

DATE ORG ( Державна Комісія з цінних паперів та фондового ринку ) , a public body responsible for supervising limited companies , investigated the activities of ORG . On DATE it found that the general meeting of shareholders of DATE and the decisions subsequently adopted by the company 's management had not complied with the legislation in force .

On DATE Mr T. ( a member of the NORP parliament ) urged the President of GPE to “ defend the interests of NORP nationals ” . In a resolution adopted on DATE the President once again drew the President of ORG attention to the need to protect the ORG 's interests .

On DATE , during the trial , PERSON ( the arbitrator appointed by ORG ) publicly refused to conduct the proceedings on account of the heavy pressure brought to bear by the defendants ( ORG and ORG ) . On DATE another arbitrator was appointed .

On DATE the President of ORG sent the President of ORG a copy of the NORP President 's resolution of CARDINAL DATE so that it could be taken into account when the applicant company 's case was considered .

On DATE the applicant company made a further application against ORG and ORG ( Case no . CARDINAL ) to ORG , seeking a declaration that the following decisions were unlawful : firstly , the decisions to increase the share capital and alter the memorandum and articles of association taken by ORG managing director on DATE , CARDINAL DATE and DATE ; secondly , the ratification of those decisions by ORG on DATE , CARDINAL DATE and DATE ; and thirdly , the ratification by ORG on DATE of the resolution to alter the memorandum and articles of association adopted by the general meeting of ORG shareholders on CARDINAL DATE .

On DATE ORG adjourned Case no . CARDINAL until after judgment had been given in Case no . CARDINAL .

By a letter of CARDINAL DATE the Vice - President of ORG asked the President of ORG to “ take the case under his personal control ” .

On DATE ORG tried Case no . CARDINAL and , after stating in a set formula that neither the decision of CARDINAL DATE to alter ORG memorandum and articles of association nor the ratification of that decision on DATE had been unlawful , refused the applicant company 's application .

It then tried , on DATE , Case no . CARDINAL and , after stating in a set formula that the decisions challenged by the applicant company were lawful , refused its application .

On DATE the applicant company lodged with the President of ORG CARDINAL applications for revision under the “ supervisory review ” procedure of the judgments of DATE in Cases nos . CARDINAL - CARDINAL and CARDINAL . It submitted in particular that the defendants had breached PERSON no . CARDINAL of DATE , PERSON no . CARDINAL-XII of DATE and Government Ordinance no . CARDINAL of DATE , governing the activities of limited companies and the procedure for ratifying their decisions . It further complained that the proceedings before the first - instance court had not been public .

In CARDINAL judgments of CARDINAL DATE the Vice - President of ORG refused the applications , after upholding the findings of the first - instance court .

On DATE the applicant company applied to a bench of ORG seeking revision under the “ supervisory review ” procedure of the judgments concerning it . In CARDINAL judgments of CARDINAL DATE the bench dismissed the appeals relating to Cases nos . CARDINAL - CARDINAL and CARDINAL , reproducing the set formulas used by the first - instance court .

In DATE the applicant company asked the NORP Attorney - ORG to intervene in the arbitration proceedings concerning Cases nos . CARDINAL and CARDINAL to verify their lawfulness . It also asked ORG to issue an objection under the “ supervisory review ” procedure ( протест у порядку нагляду ) [ Note by ORG . Under the arbitration rules in force prior to DATE , an objection was a remedy that allowed the Attorney - ORG or , as the case may be , the President of ORG or their deputies to seek the annulment of a final judgment or order of an arbitration tribunal ] seeking revision of all the judgments in the cases in which it was involved .

In a letter of CARDINAL DATE the head of the arbitration proceedings department of the Attorney - ORG refused the applicant company 's application on the ground that in the cases in question the participation of a representative of the ORG was not necessary .

On DATE a general meeting of ORG shareholders , organised , according to the applicant company , without its participation , decided to wind the company up .

In DATE the President of ORG lodged an objection under the “ supervisory review ” procedure to the ORG of that court seeking annulment of all the judgments relating to Cases nos . CARDINAL - CARDINAL and CARDINAL . In a judgment of DATE the Presidium of ORG set aside the judgments of DATE , CARDINAL DATE and DATE and remitted Cases nos . CARDINAL and CARDINAL to ORG for reconsideration . In its judgment it held that the arbitration tribunals ' judgments had been given without a proper , detailed examination of the facts and the parties ' arguments , and that their rulings had been contradictory and premature in that they had not taken into account either the findings of ORG , which had revealed that a number of decisions taken by ORG board had contravened the provisions of the legislation in force , or the requirements of the legislation governing the ratification of the memorandum and articles of limited companies ; moreover , there had been no verification whether ORG memorandum and articles of association complied with the legislation in force .

In a letter of CARDINAL DATE the President of ORG drew the attention of the President of ORG to the fact that “ in a judgment of DATE ORG [ had ] set aside the judgments given by the arbitration tribunals DATE [ before ] in Cases nos . CARDINAL and CARDINAL ” and that “ the Kiev Region Arbitration Tribunal [ had ] already ruled on the matter ” . He observed that “ certain events concerning the case cast doubt on the guarantee that the ORG 's judges [ would ] try the case impartially , a circumstance which [ might ] entail negative consequences ” . He asked the President of ORG to remit Cases nos . CARDINAL and CARDINAL to another tribunal with a view to “ guaranteeing the objectivity and impartiality of the proceedings ” .

In a letter of CARDINAL DATE the President of ORG refused the President of ORG request for Cases nos . CARDINAL and CARDINAL to be remitted to another court , having noted that the judgment of DATE complied with the legislation in force .

On DATE ORG tried Cases nos . CARDINAL and CARDINAL . After examining the documents submitted by the applicant company and noting that ORG had been wound up , it ordered ORG to produce the documents concerning the winding - up and the originals of the documents concerning the registration of a limited company , ORG , that had been set up with ORG assets . It adjourned the case until DATE .

On DATE ORG , after noting that it was necessary for ORG to take part in the proceedings , adjourned the case until DATE .

On DATE ORG , noting that it was necessary for the documents relating to Cases nos . CARDINAL and CARDINAL to undergo further examination by the Attorney - ORG , adjourned the case .

In a judgment of DATE ORG allowed the applicant company 's claims in part , in so far as it ordered LOC , the successor of ORG , to return to the applicant company part of the assets it had owned at the material time , but refused the applicant company 's claim against ORG . In particular , the ORG held that ORG managing director 's decisions of CARDINAL DATE , CARDINAL DATE and DATE to increase the company 's share capital and alter its memorandum and articles of association had been unlawful , as under applicable law such decisions could only be taken by the board . It further held that as a result of those decisions the applicant company 's rights in respect of the management of ORG and control of its assets had been infringed and that the compensation the applicant company had received following the winding - up of ORG had not been in proportion to the applicant company 's shareholding when ORG memorandum and articles of association were ratified in DATE .

By an order of CARDINAL DATE the NORP court bailiffs ' service stayed execution of the judgment of DATE because the defendant company had lodged an application with the President of ORG seeking revision thereof under the “ supervisory review ” procedure .

In a judgment of DATE , following an objection by the NORP Attorney - ORG and an application under the “ supervisory review ” procedure by ORG , the bench of ORG ( the appellate court in the instant case following the reform of the judicial system ) , set aside the order in ORG judgment of DATE for the restitution of the applicant company 's assets and dismissed all the applicant company 's claims .

On DATE the applicant company lodged an appeal on points of law with the bench of ORG ( as the former ORG was now known , following the reform of the judicial system ) against the judgment of DATE .

In an order of DATE , the bench of ORG dismissed the applicant company 's appeal on points of law without examining it on the merits . It found , in particular , that the applicant company had not furnished any evidence that it had paid the court fee due to ORG for the examination of the appeal on points of law . ORG reimbursed the applicant company the sum it had paid in respect of the court fee and advised it that it could resubmit its appeal once it had completed that formality .

The applicant company lodged its appeal on points of law afresh . By an order of DATE , the bench of ORG dismissed the appeal without examining it on the merits , finding , inter alia , that it had been lodged out of time and there had been no application for an extension of time .

Section CARDINAL of the LAW provides :

“ In accordance with LAW , the arbitration tribunals shall have jurisdiction in economic cases .

The arbitration tribunal is an independent entity with jurisdiction in all economic cases between corporations , public or other bodies and litigation arising out of insolvency . ”

The relevant provisions of LAW provide :

“ Judgments and court orders or decisions which have become final may be reconsidered under the supervisory review procedure on an objection [ протест ] lodged by CARDINAL of the officials specified in LAW . ”

“ The following officials are empowered to lodge objections under the supervisory review procedure with a view to securing the revision of judgments and court orders or decisions which have become final :

( CARDINAL ) NORP the President of ORG , the Attorney - General and their deputies ... ;

( CARDINAL ) the presidents of ORG , the regional courts , ORG and ORG and their deputies , and ORG counsel at ORG , the regional courts , ORG and ORG and their deputies ... ;

( CARDINAL ) the presidents of the regional military tribunals and military or admiralty courts , military prosecutors ... and their deputies ... ”

“ The officials mentioned in LAW ... are empowered to require the relevant court to submit the file on a civil case to them so that they can decide whether there are grounds for an objection under the supervisory review procedure .

Where there are no grounds for an objection , the official concerned shall notify his or her decision to the person who requested revision , with a short statement of the reasons for it , the case being remitted to the relevant court . ”

The relevant provisions of LAW Procedure provide :

“ The lawfulness and merits of a judgment , order or decision of an arbitration tribunal ... may be reconsidered under the supervisory review procedure on an application by a party or an objection by ORG or his deputy , in accordance with the said LAW and other NORP laws .

An application by a party for revision of a judgment , order or decision under the supervisory review procedure shall be examined by the President of ORG or his deputy , by the presidents of the regional arbitration tribunals , ORG or ORG or their deputies , or by a bench of ORG .

The following persons are empowered to lodge an objection :

The Attorney - General and his deputies ... ;

State counsel at the courts of GPE , the regions , GPE and GPE and their deputies ... ”

“ The President of ORG of GPE , the Attorney - General or his deputies shall be entitled to lodge an objection with the ORG of ORG seeking revision of a judgment of a bench of ORG in an economic case .

An objection by the Attorney - General or his deputy for revision of a judgment , order or decision under the supervisory review procedure shall not stay execution of the decision concerned ... ”

“ An application by a party for revision of a judgment , order or decision under the supervisory review procedure must be lodged within DATE of the date of the judgment , order or decision in question . ”

“ The parties may participate in proceedings for the revision of a judgment , order or decision under the supervisory review procedure . ...

Revision of a judgment , order or decision under the supervisory review procedure must be completed within DATE of the lodging of an application or objection . ...

The judgment , order or decision of the arbitration tribunal may be revised under the supervisory review procedure DATE after its delivery or issue . ”

“ Following revision of a judgment , order or decision under the supervisory review procedure , an arbitration tribunal may :

( i ) leave the judgment , order or decision as it stands ;

( ii ) vary the judgment , order or decision ;

( iii ) quash the judgment , order or decision and adopt a new decision , adjourn the case for further consideration , close the case or decline to entertain the application .

The judgment , order or decision of the arbitration tribunal shall be examined as a whole , irrespective of the grounds for the application or objection .

An arbitration tribunal examining an application for revision of a judgment , order or decision under the supervisory review procedure shall be vested with all the powers of an arbitration tribunal considering an economic dispute .

Where a judgment , order or decision has been revised under the supervisory review procedure by ORG , its judgment shall be final ... ”

“ Following revision under the supervisory review procedure of a judgment of ORG , a regional arbitration tribunal , ORG or ORG , the arbitration tribunal concerned shall issue , in the name of GPE , a reasoned decision .

The decision shall be signed by the President of ORG or his deputy , the President of the regional arbitration tribunal or his deputy , the President of ORG or his deputy or the President of ORG or his deputy .

Following revision under the supervisory review procedure of a judgment , order or decision of a bench of ORG , the bench concerned shall issue , in the name of GPE , a reasoned judgment signed by all its judges . ”

“ Directions set out in a judgment delivered following the revision of a judgment , order or decision under the supervisory review procedure shall be binding on the arbitration tribunal to which the case is remitted for retrial .

“ Judgment , orders and decisions of arbitration tribunals shall be effective on DATE they are delivered or issued and all undertakings , organisations and public authorities shall be bound to comply with them . ”

The relevant provisions of the LAW read as follows :

“ Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions , acts or omissions by public or municipal bodies or civil servants in the performance of their official duties . ”

“ Municipal bodies shall exercise their powers in accordance with the statutory rules of competence ; decisions of municipal bodies shall be mandatory in the area concerned .

Execution of decisions of municipal bodies shall be stayed , in accordance with the law , if their compatibility with the LAW or the legislation in force is contested in the courts or tribunals . ”

Under this Act , the system of arbitration tribunals was replaced by a system of economic courts with jurisdiction to try disputes relating to economic matters .

Section CARDINAL of the LAW provides that the system shall comprise CARDINAL levels of jurisdiction : district economic courts , economic courts of appeal and ORG of GPE .

The Code of Economic Procedure of CARDINAL DATE ( as renamed and amended on DATE ) abolished the objection ( протест ) procedure .

Article CARDINAL provides that economic courts may grant extensions of time on an application by a party or ORG or on their own initiative .

Article CARDINAL lays down that appeals on points of law may be lodged DATE after the judgment of the district economic court or the economic court of appeal shall have become effective .

Article CARDINAL requires notices of appeal on points of law to be accompanied , inter alia , by evidence that the court fee has been paid to the court or tribunal .

LAW provides that courts and tribunals shall return notices of appeal on points of law to the appellant without examining the appeal on the merits if the appellant fails to furnish evidence that the court fee has been paid to the tribunal .

LAW provides that courts and tribunals shall return notices of appeal on points of law to the appellant without examining the appeal on the merits if it has been lodged out of time and the appellant has not applied for an extension of time .


The applicant , Mr PERSON , was born in DATE and lives in GPE .

On DATE ORG ( GPE ) served an anonymous order ( Anonymverfügung ) upon the applicant in the sum of CARDINAL NORP schillings ( ORG ) . It stated that on DATE the driver of the car , registered in the applicant 's name , had exceeded the city area speed limit of QUANTITY / h .

NORP The applicant did not comply with the anonymous order . Consequently , the order became invalid ( see paragraph CARDINAL , below ) .

Subsequently , ORG opened criminal proceedings for exceeding the speed limit against unknown offenders and , on DATE , it ordered the applicant as the registered car owner , under section CARDINAL § CARDINAL of LAW ( Kraftfahrgesetz ) , to disclose who had been driving his car . The applicant answered that “ C.K.[first and family name in full ] ” , living in “ ORG ” was the person who had used the car .

On DATE ORG issued a provisional penal order ( Strafverfügung ) in which it sentenced the applicant under sections CARDINAL § CARDINAL and CARDINAL of LAW to pay a fine of ORG ( with TIME imprisonment in default ) . It noted that he had submitted inaccurate information .

The applicant filed an objection ( PERSON ) against this decision . On CARDINAL DATE ORG requested the applicant to submit his defence either in writing or to appear at an oral hearing . The applicant did not react to this request .

On DATE ORG issued a penal order ( PERSON ) confirming its previous decision and sentenced the applicant to a fine of ORG ( with TIME ' imprisonment in default ) . In addition it ordered him to pay ORG CARDINAL by way of contribution to the costs of the proceedings . ORG found that the information supplied by the applicant had been inaccurate .

The applicant appealed to ORG ( Unabhängiger Verwaltungssenat ) .

On DATE ORG dismissed the applicant 's appeal and ordered him to pay ORG CARDINAL by way of contribution to the costs of the appeal proceedings . Prior to giving its decision , the Panel held a hearing in the presence of the applicant who stated that he considered the information submitted by him to be sufficiently accurate .

The Panel dismissed the applicant 's defence , noting that section CARDINAL § CARDINAL of LAW required the registered car owner to disclose the name and address of the driver . Further , it referred to ORG case - law according to which not only the failure to give any information at all but also the disclosure of inaccurate information amounted to a failure to comply with section CARDINAL § CARDINAL . Finally , the ORG observed that ORG had CARDINAL different locations in GPE . Therefore the information provided by the first applicant had indeed been inaccurate .

On DATE the applicant lodged a complaint with ORG ) . He raised various issues regarding the tribunal quality of ORG and the fairness of the proceedings . However , given that the relevant sentence of section CARDINAL § CARDINAL of LAW has the rank of constitutional law ( see paragraph CARDINAL , below ) , he did not raise the issue of his right to remain silent and not to incriminate himself .

On DATE ORG refused to deal with the applicant 's complaint for lack of prospects of success .

On DATE ORG ( Verwaltungsgerichtshof ) refused to deal with the applicant 's complaint pursuant to section DATE of LAW ( PERSON ) since the amount of the penalty did not exceed ATS CARDINAL , and no important legal problem was at stake .

The applicant was not prosecuted for exceeding the speed limit .

Section CARDINAL § CARDINAL of LAW ( Kraftfahrgesetz ) , as amended in DATE , provides as follows :

The ultimate sentence of this provision was enacted as a provision of constitutional rank after ORG had , in its judgments of DATE and CARDINAL DATE , quashed previous similar provisions on the ground that they were contrary to LAW which prohibits inter alia that a suspect be obliged on pain of a fine to incriminate himself .

In its judgment of CARDINAL DATE ORG found that the first to third sentences of section CARDINAL § CARDINAL of LAW as amended in DATE were , like the previous provisions , contrary to the right not to incriminate oneself which flowed from LAW and from LAW but were saved by the ultimate sentence of that provision which had constitutional rank . In reaching that conclusion ORG had examined whether the ultimate sentence of section CARDINAL § CARDINAL was contrary to the guiding principles of the LAW , but had found that this was not the case .

Section CARDINAL of LAW , in the version in force at the material time , provided for a fine of up to ORG CARDINAL to be imposed on a person who violates the regulations of this Act .

NORP The DATE amendment of ORG ( GPE ) introduced a possibility to issue and serve an anonymous order ( LOC ) in case of minor administrative criminal offences .

According to section DATE of ORG , the competent authority may determine by decree minor offences for which it may serve an anonymous order .

If the person who has committed a minor administrative criminal offence is unknown to the competent authorities , the latter may serve an anonymous order on the person who is supposed to know the offender . The fine imposed must not exceed ORG CARDINAL and may not be converted into a prison term in default .

The anonymous order is not regarded as an act of prosecution . No remedy lies against it . If the fine imposed is not paid within DATE , the anonymous order automatically becomes invalid and a normal prosecution against unknown offenders is to be commenced . If the fine imposed is paid within DATE , no prosecution is to take place . The anonymous order is not entered into any register and may not be taken into account when determining the sentence for other administrative criminal offences .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively . They both live in PERSON , GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

The applicants own a semi - detached house in PERSON . In DATE their house was considerably damaged by flooding . Subsequently , the applicants intended to build an extension to their house . Under the domestic law they were required to obtain a planning permission and subsequently a construction permit . They instituted administrative proceedings with a view to obtaining these decisions .

On DATE the applicants applied to the Mayor of ORG ) for a planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) for the intended extension of their house . On DATE the Mayor granted them the permission . The applicants’ neighbour appealed against that decision .

On DATE the ORG ( PERSON ) quashed the Mayor ’s decision and remitted the case .

On DATE the Mayor granted the applicants a DATE valid planning permission . The applicants’ neighbour appealed . On DATE ORG of Appeal upheld the Mayor ’s decision . The applicants’ neighbour filed an appeal against that decision with the administrative court . On DATE ORG quashed ORG decision of DATE and remitted the case .

On DATE ORG re - examined an appeal lodged by the applicants’ neighbour . It found that the appeal proceedings were devoid of purpose since the planning permission had meanwhile lost its validity . The applicants’ neighbour again filed an appeal against that decision with the administrative court .

On DATE ORG quashed the Mayor ’s decision of CARDINAL DATE and remitted the case . The applicants and their neighbour lodged appeals against that decision with the administrative court .

On DATE ORG dismissed the appeal lodged by the applicants’ neighbour . On DATE it discontinued the proceedings in respect of the applicants’ appeal since they had withdrawn it .

In the meantime , on DATE the PERSON Mayor issued a new planning permission for the applicants . The permission remained valid until DATE . On DATE ORG upheld the Mayor ’s decision . The applicants’ neighbour filed an appeal against that decision with the administrative court . On DATE that ORG Wojewódzki Sąd Administracyjny ) quashed ORG decision of DATE and remitted the case .

On DATE ORG of Appeal partly quashed part of the Mayor ’s decision of DATE , remitted the case and partly discontinued the proceedings .

On DATE the applicants applied for a construction permit ( pozwolenie na budowę ) for the extension of their house . On DATE the Head of ORG ( ORG ) granted them the construction permit . The ORG neighbour appealed against that decision . On DATE the PERSON Governor ( Wojewoda ) quashed the decision and remitted the case .

On DATE the Head of ORG again granted a construction permit to the applicants . The applicants’ neighbour appealed . On DATE the PERSON Governor upheld the ORG decision .

On DATE the ORG neighbour filed an appeal against the Governor ’s decision with ORG . On DATE ORG quashed the decision and remitted the case to the GPE .

On DATE the Lubuski Governor quashed the Head of ORG decision of CARDINAL DATE and remitted the case to the first - instance administrative authority .

On DATE the Mayor of ORG ) granted the applicants a construction permit . The applicants’ neighbour appealed . However , on DATE the Lubuski Governor upheld the Mayor ’s decision .

Subsequently , the applicants’ neighbour filed an appeal against that decision with ORG and applied for a stay of execution . On DATE the court decided that the execution of the Governor ’s decision of CARDINAL DATE should be stayed .

On DATE the applicants requested ORG to accelerate the examination of the case .

On DATE ORG quashed the Governor ’s decision of CARDINAL DATE and remitted the case to that authority .

On DATE the Lubuski Governor upheld the Mayor of the FAC decision of DATE granting a construction permit to the applicants . The ORG neighbour filed an appeal against that decision with the administrative court . On DATE the ORG ruled that the execution of the Governor ’s decision of DATE should be stayed .

On DATE the Lubuski Governor requested the court to accelerate the examination of the appeal .

On DATE ORG quashed the Governor ’s decision of DATE . It stressed that the Governor ’s decision granting a construction permit to the applicants could not have been issued as the validity of the planning permission had expired in the meantime .

On DATE the PERSON Governor quashed the Mayor of the GPE LOC decision of DATE and remitted the case .

On DATE the Mayor of the Nowa Sól District granted a construction permit to the applicants . On DATE the Lubuski Governor dismissed the appeal of the applicants’ neighbour against the decision of DATE .

On an unspecified date the ORG neighbour filed an appeal against the Governor ’s decision with the administrative court . Subsequently , the ORG became competent to examine the appeal .

On DATE the ORG quashed the Governor ’s decision of DATE and remitted the case .

On DATE the PERSON Governor quashed the Mayor of the FAC Sól District ’s decision of DATE and remitted the case .

On DATE the Mayor of the Nowa Sól District granted a construction permit to the applicants . The applicants’ neighbour appealed .

On DATE the Lubuski Governor upheld the decision of the Mayor of the Nowa Sól District .

On DATE , the Gorzów Wielkopolski ORG quashed both decisions ( of CARDINAL DATE and DATE ) . It is not clear whether the applicants filed a cassation appeal with ORG against this judgment .

The relevant domestic law concerning inactivity on the part of administrative authorities is described in the ORG ’s judgments in cases PERSON v. GPE , no . CARDINAL , DATE , and PERSON v. GPE , no . CARDINAL , DATE .

As regards the remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , they are described in the ORG ’s decisions in cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL-V.


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE , GPE .

In DATE , in the course of court proceedings concerning child support maintenance ORG ( sąd rejonowy ) imposed on the applicant an interim ban on leaving the territory of GPE . She was not notified of that decision until DATE , when she was stopped at an airport , on her way to GPE .

On DATE the applicant filed with ORG ( sąd wojewódzki ) an action in which she claimed damages from ORG . She argued that that ban was wrongful and not served on her , which had made it impossible for her to return to GPE and pursue her application for a residence permit there . The applicant submitted that judge X who had issued that order had known her former husband , who had been a party to those proceedings .

On DATE ORG ( sąd apelacyjny ) transferred the case to ORG .

The latter court held hearings on DATE , DATE and DATE .

On DATE it rejected a part of the applicant 's claim .

At the hearing held on CARDINAL DATE the court , at both parties ' request , stayed the proceedings until the completion of disciplinary proceedings against judge X.

On DATE the court resumed the proceedings .

It held further hearings on DATE and DATE , as well as DATE .

On DATE the ORG court gave judgment . It awarded the applicant damages in the amount of CARDINAL old zlotys with interest . The defendant and judge X , who joined the proceedings as an intervener , appealed .

On DATE ORG quashed ORG judgment and remitted the case for re - examination .

On DATE the applicant challenged the participation in the proceedings of all the judges from the ORG court .

On DATE ORG dismissed that petition .

ORG held hearings on DATE , DATE and DATE . At the former the court decided to request the GPE embassy to submit a certain piece of information . At the hearing of DATE it imposed a fine on a witness for non - attendance before the court .

Hearings were held on DATE , DATE and DATE .

The hearing scheduled for DATE was adjourned because of the presiding judge 's illness .

The court held a hearing on DATE .

On DATE it gave judgment . The court dismissed the applicant 's action . She appealed .

On DATE ORG refused the applicant 's request for exemption from the appellate court costs . On DATE ORG changed that decision and exempted her from part of those costs .

It held hearings on DATE and DATE .

On DATE ORG amended the judgment of DATE in that it awarded the applicant damages in the amount of MONEY ( ORG ) with interest . All the participants to the proceedings lodged cassation appeals against that judgment .

On CARDINAL DATE ORG rejected the applicant 's cassation appeal . She appealed . On DATE ORG quashed ORG decision .

On DATE ORG quashed the judgment under appeal and remitted the case for re - examination .

On DATE ORG held a hearing .

On DATE it gave judgment . The court dismissed the applicant 's appeal against the judgment of DATE given by ORG . The applicant lodged a cassation appeal against that judgment .

On DATE ORG rejected that cassation appeal on procedural grounds .

Subsequently , the applicant 's lawyer requested the re - opening of the case , relying on a recent judgment of ORG concerning the ORG 's liability for damage caused by a ORG official while giving a decision or carrying out other official duties . The request was rejected .

On DATE the applicant 's lawyer lodged a constitutional complaint relating to the rejection of her request for re - opening . On DATE the ORG gave judgment .

Relying on that judgment , the applicant again filed a request for re - opening . On DATE she informed the ORG that her request had not yet been examined .


Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved

The applicant was born in DATE and is serving a sentence of life imprisonment in the GPE .

On an unspecified date in DATE the applicant was detained in the GPE in connection with a request for his extradition to GPE , where he was suspected of murder . During his detention , there were serious indications that the applicant ’s life was at risk from foreign ORG or non - State agents .

Shortly before his release in DATE – after a GPE court had ruled that the applicant ’s extradition to GPE was not permissible – the prison authorities received indications that the applicant and CARDINAL co - detainees harboured escape plans . On DATE , the applicant filed a criminal complaint with the police , alleging that the NORP authorities planned to kill him .

On DATE the applicant was arrested and placed in pre - trial detention ( voorlopige hechtenis ) on suspicion of having committed serious crimes within a violent criminal organisation in which he played a leading role . Criminal proceedings were brought against the applicant , who was sentenced in first - instance proceedings to DATE imprisonment . On DATE , following proceedings on appeal , ORG ( gerechtshof ) of ‘ s - Hertogenbosch quashed the first - instance judgment , convicted the applicant of several offences and sentenced him to life imprisonment . His subsequent appeal on points of law to ORG ( PERSON ) was dismissed on DATE .

The applicant was initially detained in an ordinary remand centre ( huis van bewaring ) . Shortly after he was apprehended , and on the basis of information indicating a risk that he would seek ways to escape and also reports that he was in danger of being “ liquidated ” , he was transferred to ORG ) in a GPE detention facility .

On DATE , on the advice of the special selection board of the maximum security institution ( NORP PERSON – “ ORG ” ) , the Minister of ORG decided to place the applicant in the pre - trial detention unit of the ORG , which is part of the PERSON Penitentiary Complex in FAC . His detention in the ORG prison was reviewed and extended by the Minister DATE . The applicant unsuccessfully challenged each decision to extend before ORG ( beroepscommissie ) of ORG ( Centrale PERSON ) . On DATE ORG was replaced by ORG ( PERSON GPE ) .

NORP By letter of DATE the applicant was informed that the Minister of ORG had decided to extend his detention in the ORG once again . According to information contained in the proposal of DATE to extend the applicant ’s stay in the ORG , he had not had any contact with social workers during DATE and apparently did not feel the need to have such contact . The proposal , which describes in detail the applicant ’s attitude , behaviour and activities in the ORG , does not mention any psychological problems encountered by the applicant caused by his detention in the ORG .

NORP The letter of DATE , in its relevant part , reads as follows :

“ From the information available about you , it appears that you must be regarded as likely to try to escape ( vluchtgevaarlijk ) . On this subject , I would inform you as follows .

Official reports ( ambtsberichten ) that have been received point out that – quite apart from your membership of a criminal organisation – you are suspected of having committed serious crimes . You are suspected of leadership of an international criminal organisation that must be regarded as very violent . You are suspected of having personally instigated very serious and very violent crimes that have seriously undermined law and order . You have since been sentenced at first instance to DATE imprisonment , after a sentence of life imprisonment was sought [ by the prosecution ] . You have lodged an appeal .

When you were being transferred to ORG ( arrondissementsrechtbank ) and ORG in GPE on DATE and DATE respectively , “ suspect ” cars were observed [ whose registered owners ] may have been connected to persons with a criminal background . You have indicated that you(r family ) are wealthy . It is therefore also reasonable to conclude that you are capable of providing financial backing for escape plans , in this instance for the organisation of an escape ( attempt ) via the hiring of third parties .

Also during a previous detention , in the ... detention facility , there were indications , on DATE , that you had plans to mount an escape together with others , in an operation involving a firearm . On DATE , in the same detention facility , information ( was found ) that could be connected to the indications referred to above . Your previous detention was a consequence of the fact that GPE ( unsuccessfully , as it later transpired ) had requested your extradition in connection with serious crimes .

As during your previous detention , you have indicated that you are being threatened with “ liquidation ” , even whilst in detention . You also lodged a criminal complaint to that effect with the GPE police on DATE . Accordingly , as during your previous detention , you were transferred – in view of the seriousness of the information , which became apparent after the investigation – [ to ORG on DATE ] in order to secure not only your safety but also the order , peace and security of the prison where you were detained . The fears which you expressed were confirmed once more in DATE by official reports .

On DATE you and your sister , who was visiting you , acted in breach of the rules governing the regime in the ORG . Your sister allowed you to read uncensored reports which she then destroyed . Disciplinary action was taken against you as a result .

With reference to the contents of the third paragraph , I would inform you that in DATE the presence of another “ suspicious ” car was noted near the ORG around the time of your transfer to ORG . CARDINAL persons who had been travelling in the car were present in the courtroom on DATE . They turned out to have criminal records .

On DATE you and a co - detainee had a conversation about one of the latter ’s escape attempts elsewhere in the GPE . In this context the co - detainee concerned told you that he had paid MONEY for this . It was noted that your co - detainee added that ‘ that would never succeed here because the staff and the Governor work closely together’ .

In the meantime , after life imprisonment was sought [ by the prosecution ] , you have been sentenced at first instance to DATE imprisonment . You have lodged an appeal .

An escape on your part would be unacceptable to society and would seriously undermine law and order , having regard to the serious crimes of which you are suspected and , in this case , of which you have been convicted at first instance . If plans to “ liquidate ” you were to materialise , this would give rise to offences creating social unrest and seriously undermining law and order .

In view of the above , the [ ORG ] selection board , having heard evidence from the selection officer ( with whom you refused to speak ) , has advised me to continue your detention in the ORG . I have taken a decision to that effect .

To give you as full a picture as possible , I would further inform you that the rules governing the ORG regime offer added guarantees for preventing the implementation of ( possible ) plans to “ liquidate ” you . In this connection it must be mentioned , with reference to what has been stated above , that ( at DATE ) “ liquidation plans ” concerning you came to light within the ORG , in this case death threats by third persons . You indicated that you took these threats very seriously ; you appeared frightened and it was clear that they had made an impression on you . ”

On DATE the applicant , as in the case of the previous decisions to extend , again challenged the extension of his stay in the ORG by lodging an appeal with ORG . In his appeal against the decision of DATE the applicant challenged the necessity of his continued detention in the ORG . He also stated that he was suffering both physically and mentally as a result of the ORG detention regime without , however , substantiating that claim . Relying on the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ CPT ” ) in respect of its visit to the ORG in DATE and on the ORG ’s decision on admissibility of CARDINAL DATE in the case of PERSON the GPE ( no . CARDINAL/CARDINAL ) , he argued that his ( continued ) detention in the ORG infringed his rights under LAW and CARDINAL of the LAW on account of the ORG detention regime .

On DATE ORG dismissed the appeal . It held , on the basis of the different elements set out in the impugned decision , that the applicant was extremely likely to try to escape and , in view of the offences of which he was suspected , that he posed an unacceptable risk in terms of the danger of his committing further serious violent crimes . Noting that the applicant was suspected of offences in respect of which a DATE prison sentence had been imposed at first instance and which were a source of grave concern to society and public opinion , ORG was of the opinion that the applicant , in the event of an escape , would pose an unacceptable risk to society . It also took into account the fact that specific threats to kill the applicant or to have him killed had repeatedly come to light . It therefore concluded that the applicant ’s stay in the ORG corresponded to both situations provided for in LAW on the selection , placement and transfer of detainees ( NORP selectie , plaatsing en overplaatsing van gedetineerden ) of DATE . As regards the applicant ’s reliance on the Convention , it held that the proceedings on the extension of the applicant ’s stay in the ORG fell outside the scope of LAW and that the interference with the rights guaranteed by LAW was permissible to the extent that such interference was in accordance with the law and necessary in a NORP society in the interests of , inter alia , the prevention of disorder or crime . Lastly , it held that the decision to extend the applicant ’s stay in the ORG was lawful and that , weighing up all the interests involved , it could not be considered as unreasonable or unjust . It did not deal with the applicant ’s argument that the extension of his stay in the ORG was contrary to LAW .

In the meantime , on DATE , the applicant ’s detention in the ORG had been extended again . His appeal to ORG was dismissed on DATE on the same grounds as those given in ORG decision of DATE .

On DATE the applicant ’s detention in the ORG was extended once more . The applicant lodged an appeal with ORG against this decision on DATE . No further information has been submitted about these appeal proceedings .

On DATE the applicant was transferred from the ORG to another prison with a different regime .

On DATE Dr R.J.P. Rijnders – a psychiatrist attached to ORG ( ORG ‘ CARDINAL ) , a national centre for the medical - psychological treatment of members of the Resistance in the Second World War , victims of war and organised violence , and asylum seekers suffering from post - traumatic stress disorder related to experiences in their country of origin – drew up a report on the applicant ’s state of mental health . According to the report the applicant had developed various mental problems ( chronic post - traumatic stress disorder , depression and a strong tendency towards somatisation ) during his detention in the ORG . The post - traumatic stress phenomena were mainly linked to his experiences in the ORG and only some of his complaints and symptoms were connected with his experiences in GPE .

On DATE the applicant brought a civil action in tort ( onrechtmatige daad ) against ORG before ORG . CARDINAL of the grounds on which he claimed payment of compensation in respect of non - pecuniary damage for unlawful acts for which he considered GPE to be liable was that , from his arrest in DATE until DATE , he had been subjected to inhuman and degrading treatment on account of the conditions of his detention , including “ ( continuous ) sensory deprivation and insufficient social contact ( extensive social isolation ) , humiliating and unnecessary strip - searches , frisking , [ and ] being prohibited ( inter alia ) from communicating in NORP with , for instance , his mother and children ” . The applicant based this part of his claim on the ORG ’s findings in its judgments of CARDINAL DATE in the cases of PERSON the GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL ) and PERSON and Others v. the GPE ( no . CARDINAL ) , the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as set out in CARDINAL reports ( see paragraphs CARDINAL - CARDINAL below ) , a report drawn up on DATE by academic researchers on the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraph CARDINAL below ) , and the report drawn up on DATE by the psychiatrist PERSON ( see paragraph CARDINAL above ) . These civil proceedings are currently pending before ORG .

An overview of the relevant domestic law and practice is given in the ORG ’s judgment of CARDINAL DATE in the case of PERSON the GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-II ) and in GPE v. the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .

On DATE , in view of the ORG ’s findings in its judgments of CARDINAL DATE in the cases of PERSON ( cited above ) and PERSON and Others ( cited above ) , the ORG house rules ( huisregels ) were amended , with the result that the practice of DATE routine strip - searches accompanying the DATE cell inspections was abandoned . Under the amended Article CARDINAL ) of the ORG house rules , strip - searches could be carried out at random during or directly after a DATE cell inspection .

As from DATE , pursuant to a ruling given on DATE by the judge responsible for provisional measures ( voorzieningenrechter ) of ORG in summary injunction proceedings brought against GPE in DATE by CARDINAL ORG detainees , the random strip - searches were no longer linked to cell inspections and the ORG authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for . The situation of each individual detainee is now discussed at the DATE ORG staff meeting on detainees .

On DATE researchers from ORG presented a report on a study , commissioned in DATE by the Minister of ORG , about the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraphs CARDINAL - CARDINAL below ) . It concluded that the ORG regime affected the cognitive functioning of detainees in a negative manner , with particular reference to the speed of processing information and response inhibition . This was probably a result of the lack of stimuli in the detention situation . The report further concluded that the ORG regime caused more depression than a restricted community regime and that strip - searches were perceived as humiliating , constituting an extra burden for persons detained in the ORG . On the other hand , the ORG regime provided a better balance between rest and activity than a restricted community regime , as a result of which ORG detainees maintained a healthier life rhythm . In addition it had not been demonstrated that ORG detainees displayed more physical symptoms of persistent mental stress .

NORP Under GPE law the civil courts have traditionally had jurisdiction to grant relief against the authorities , if and in so far as no other relief is available . Where a person bases a claim against the authorities on an allegation that the latter have committed a tort within the meaning of Article CARDINAL of the Dutch Civil Code ( Burgerlijk Wetboek ) against him or her , the civil courts have jurisdiction in principle . Where the civil courts have jurisdiction , they can also act in summary injunction proceedings ( kort geding ) in which a plaintiff can , inter alia , request the civil court to issue an order against the authorities . An act by the authorities is unlawful and constitutes a tort when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff ’s interests , or to general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) . An action in tort is subject to a limitation period of DATE under LAW .

NORP However , as to the jurisdiction of the civil courts in cases where an administrative appeal lies , it is an established principle under GPE law that DATE given the closed system of legal remedies ( gesloten system van rechtsmiddelen ) in the GPE legal system – the civil court should refrain from examining the lawfulness of an administrative decision , provided that the administrative appeal offers sufficient guarantees as to a fair procedure . On this topic , extensive case - law has been developed by ORG ( PERSON ) over DATE , supported by several authorities , to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure , the civil courts have full jurisdiction to review the lawfulness of the administrative decision . On the other hand , a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings ( see ORG , DATE , PERSON ( GPE Law Reports – “ GPE ” ) DATE , no . CARDINAL ; see also NORP v. the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , § § CARDINAL and § § DATE ) .

In a case in which it gave judgment on DATE , ORG examined the question whether a party which considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the ORG arguing that the judge failed to act with due care in giving that ruling . ORG found that this was not possible , holding that it was solely for the legislature to decide in what cases a remedy was to be provided . It would be incompatible with this principle if an unsuccessful party were to have the possibility , via a civil action , of making the correctness of a [ final ] judicial ruling the subject matter of new proceedings , and thus to obtain a renewed examination in another manner than that provided for by statute . It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles ( fundamentele rechtsbeginselen ) that the case could no longer be said to have been determined in a fair and impartial manner , and if there was no possibility of appeal nor had there ever been such a possibility , could the ORG be held liable for the effects of such a ruling in a civil action in tort ( GPE DATE , no . CARDINAL ; see also ORG , DATE , GPE DATE , no . CARDINAL ; ORG of The Hague , DATE and CARDINAL DATE , GPE DATE , ORG . CARDINAL and CARDINAL ; and ORG of The Hague , DATE and CARDINAL DATE , ORG ( ORG ) DATE , nos . CARDINAL and CARDINAL ) .

In a judgment given on DATE concerning civil proceedings taken against ORG by an association of detainees who wished to challenge a special restricteddetention regime in a specific wing of the prison in GPE , ORG held that , as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned ( that is to say , the individual complaint procedure provided for in Article CARDINAL et seq . of the Prison Act DATE ( Beginselenwet Gevangeniswezen ) as in force at that time ) and it was not in dispute that that remedy offered sufficient procedural safeguards , the plaintiff ’s case had been correctly declared inadmissible , as the association had acted solely “ in the context of promoting the interests of its members ” , which were already safeguarded by the individual complaint procedure under LAW seq . of LAW ( GPE DATE , no . CARDINAL ) .

In a judgment given on DATE ( GPE DATE , no . CARDINAL ) in a civil action against GPE brought by a coaccused of a successful applicant in GPE ( PERSON v. the GPE , judgment of DATE , Series A no . CARDINAL ) , ORG held :

“ It is embedded in the [ GPE ] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should , but must , be executed . It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity , via a claim [ for damage arising from tort ] against the ORG , to bring a fresh set of legal proceedings challenging the decision of the criminal court or the acceptability of the [ criminal ] proceedings leading to the decision and to have [ the subject matter of those proceedings ] reviewed by the civil courts .

Considering the obligations flowing from ORG , CARDINAL and CARDINAL [ of the Convention ] to secure the rights set out in LAW ] and to provide an effective remedy in the event of a violation of those rights , an exception must be made to the above - mentioned rules should a ruling of ORG [ of Human Rights ] , which the criminal court judge could not take into account in his decision , prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article CARDINAL § CARDINAL [ of the Convention ] .

When such an exceptional case occurs , immediate execution of the decision can no longer be regarded as permitted under the legal system , and the person convicted can institute interim injunction proceedings [ before the civil court judge ] seeking DATE depending on the circumstances DATE to have execution prohibited , suspended or limited . The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about , mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of ORG [ of Human Rights ] indeed requires that the above - mentioned conclusion be reached . ”

In this case , ORG accepted ORG finding against the plaintiff in view of the fact that , when the impugned ruling was given on DATE , the ORG had not yet delivered its judgment in the PERSON case .

A number of persons detained in the ORG have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime , or certain aspects of it , relaxed ( for further details , see PERSON and Others , cited above , § § DATE ) .

On DATE an amendment to LAW “ the ORG ” ) entered into force , governing possible means of obtaining revision ( herziening ) of final judgments . This amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by ORG that the criminal proceedings leading to that conviction had been in violation of the LAW . The relevant part of the amended text of LAW ORG reads :

“ CARDINAL . An application for revision of a final ruling ( eindbeslissing ) entailing a conviction which has obtained the force of res iudicata can be lodged :

on the ground of a ruling of ORG in which it has been established that [ the ORG or one of its Protocols ] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of LAW of [ the LAW ] . ”

A request for revision can be lodged with ORG by the Procurator - General , the convicted person or the latter ’s lawyer within DATE after the convicted person has become aware of the ORG ’s ruling referred to in LAW ( CARDINAL ) , subparagraph CARDINAL ( LAW .

If ORG accepts a request for revision based on LAW , subparagraph CARDINAL , it can either itself determine the criminal charges after reopening of the criminal proceedings , or order the suspension of execution of the original judgment and remit the case for a fresh determination to a ORG different from the one that gave the original judgment ( LAW .

In its judgment of DATE in the case of PERSON and Others v. the GPE ( Reports CARDINAL ) , the ORG found a violation of the LAW in that the criminal proceedings against the CARDINAL applicants had not been conducted in compliance with the requirements of LAW CARDINAL and CARDINAL ( d ) of the LAW . In its judgment it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the ORG claim for non - pecuniary damage , considering that that part of the applicants’ claim for just satisfaction was not ready for decision .

On DATE the applicants in that case lodged a request for their immediate release from detention , failing which they would bring summary injunction proceedings against the ORG . On DATE the Minister of ORG decided to grant them temporary release ( strafonderbreking ) and they were released from prison on DATE .

The ORG determined the applicants’ claims for non - pecuniary damage in its judgment of DATE ( PERSON and Others v. the GPE ( LAW ) , Reports of Judgments and Decisions DATE ) , in which it noted that under domestic law it was not possible for the applicants to obtain a retrialCARDINAL . The applicants had claimed MONEY ( NLG ) for DATE spent in detention , resulting in total claims of MONEY and NLG CARDINAL,CARDINAL . After having examined the respondent Government ’s comments on those claims , the ORG awarded CARDINAL applicant NLG CARDINAL ( MONEY ( ORG ) ) and each of the CARDINAL other applicants NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) for non - pecuniary damage , and rejected the remainder of the applicants’ claims for non - pecuniary damage .

On DATE ORG , exercising its supervisory powers under the Convention as regards the execution of the ORG ’s judgments of DATE and DATE , adopted a final resolution ( Res DH(CARDINAL)CARDINAL ) in the case . Having noted the measures taken by the GPE on the basis of the ORG ’s judgments , ORG concluded that the manner in which the GPE had executed both judgments was in compliance with their obligations under LAW .

On DATE CARDINAL of the CARDINAL applicants brought a civil action in tort against GPE before ORG . They sought a declaratory ruling that GPE was liable for pecuniary and non - pecuniary damage arising out of unlawful administration of justice in violation of their rights under LAW and CARDINAL ( d ) . They sought payment of compensation corresponding to LAW for DATE spent in detention , less the compensation amount awarded by the ORG . They based their claims on the argument that , given the ORG ’s findings in its judgment of DATE , it had been established that in the domestic criminal proceedings against them the GPE judge had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful .

In its judgment of DATE , following appeal proceedings taken by GPE , ORG quashed the impugned judgment given on DATE by ORG , and for the time spent in detention ( pre - trial and following conviction ) awarded compensation for non - pecuniary damage to the first plaintiff in the amount of ORG , less ORG CARDINAL,CARDINAL.CARDINAL already awarded by ORG . It awarded the second plaintiff ORG CARDINAL , less ORG CARDINAL,CARDINAL.CARDINAL awarded by ORG , and the third plaintiff ORG CARDINAL , less EUR CARDINAL,CARDINAL.CARDINAL awarded by the ORG . ORG held , inter alia , that :

“ The finding of ORG [ of Human Rights ] that full redress ( volledige genoegdoening ) by means of a ‘ retrial’ in the GPE is not possible , means that ORG may award compensation on grounds of equity ( vergoeding naar billijkheid ) , but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage ( volledige schadevergoeding ) . The ORG ’s argument , that [ the CARDINAL plaintiffs ] requested compensation for damage for the first time before ORG and not previously before the domestic judge , and that ORG would have taken into account in its judgment the same claims for damages ( schadeposten ) as those now in issue in the present procedure , fails because no rule exists prohibiting the bringing of a claim before the GPE judge seeking compensation for damage , a part of which DATE namely an award in equity – has already been awarded in separate proceedings before ORG . ”

In its judgment of DATE on the appeal on points of law brought by ORG against the ruling of DATE , ORG held that the ORG had been correct in not challenging this part of the reasoning in the impugned judgment .

On DATE the ORG delivered its judgment in the case of PERSON and Others ( cited above ) , finding a violation of LAW in respect of the applicant PERSON in that , during his stay in the ORG of DATE , the applicant – who was already subjected to a great number of control measures – had been subjected to DATE routine strip - searches without convincing security reasons . It found no violation in respect of the other grievances raised by PERSON and the other applicants ( his spouse and his children ) under LAW , DATE and CARDINAL of the Convention . As regards damages , the applicants requested the ORG to award them a symbolic amount of NLG CARDINAL,CARDINAL ( ORG CARDINAL.CARDINAL ) , stating that no amount of money would be capable of compensating for the harm suffered by them . Taking the view that PERSON had sustained some non - material damage on account of the treatment which had been found contrary to LAW , the ORG awarded him for nonpecuniary damage ORG MONEY , that is to say , the full amount claimed under that head .

On DATE PERSON brought summary injunction proceedings against ORG before the judge responsible for provisional measures in ORG of ORG , seeking an order against the ORG to cease with immediate effect the execution of the DATE prison sentence that had been imposed on him , to release him immediately from prison and not to seek payment of the fine of NLG MONEY ( ORG CARDINAL,CARDINAL.CARDINAL ) that had also been imposed .

On DATE the judge responsible for provisional measures ruled on the applicant ’s request . This decision , in its relevant part , reads :

“ CARDINAL . The plaintiff has an urgent interest in his claim . The civil court judge DATE in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [ of the case ] , as the plaintiff claims that the ORG has acted unlawfully toward him by , inter alia , continuing his detention .

For the determination of the claim , it is a fact that the ORG has violated the applicant ’s rights under LAW ....

Under LAW of [ the LAW ] the applicant is entitled to reparation ( rechtsherstel ) in respect of this irreparable violation of the LAW . If need be , he can assert that right before the courts . The ORG is deemed to be acting unlawfully towards him if no suitable form of redress is provided .

The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and , if so , whether those measures are suitable and appropriate in this case .

[ The judge responsible for provisional measures rejects ] the argument of the ORG that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the ORG to execute rulings of the criminal courts , militate against this form of redress . In this system , no provision has been made to date for ( a suitable response to ) a violation of the kind at issue in the instant case . There have been no prior similar cases , and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case - law . In principle , early release or non - execution of a fine imposed may constitute a suitable form of redress for a violation of LAW kind in issue . This exception to the closed system of legal remedies in criminal cases is , to that extent , consistent with ORG approach in its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) .

The ORG has referred to the financial compensation awarded by the [ ORG ] and to the just satisfaction which , in the case of the applicant , lies in the fact that his complaint was declared well - founded [ by ORG ] . However , these CARDINAL elements do not form a suitable , and certainly not a sufficient , form of redress for the plaintiff . Consequently , they do not stand in the way of the claims being allowed . The plaintiff can request the domestic judge to order that additional measures be taken .

In reply to a question , the ORG stated that it was possible , in this respect , to consider measures such as the plaintiff ’s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure . ... Again , these options do not form an obstacle to allowing the claims . The first option does not constitute sufficient redress in this case , while the option of a pardon corresponds to ( a request for ) a concession rather than the granting of a right , which is what is at issue here .

In these circumstances , the ORG should release the plaintiff DATE [ when the plaintiff becomes eligible for early release ] and waive the execution of the sentence in its entirety . Having regard to the nature of the violation of the ORG which is an established fact , a form of redress ( genoegdoening ) which relates to the applicant ’s liberty is more suitable , and in any event warrants greater priority than waiving payment of the part of the fine still outstanding .

No fixed standard exists for ‘ offsetting’ the remaining part of the plaintiff ’s prison sentence . There are no pertinent reference points on the subject in the existing legislation . This means that the amount of the compensation must be determined on an equitable basis ( naar billijkheid ) . The seriousness of the violation [ of the ORG ] justifies reduction of the sentence by a period equal to PERCENT of DATE for which the applicant was subjected to the regime in the ORG ... This amounts to a reduction of DATE ( round figure ) ...

On the basis of this solution , the plaintiff ’s claim should be rejected . Indeed , the plaintiff has no urgent interest in a provisional measure which will only take effect after DATE [ when the applicant has served his mitigated sentence ] ... It is assumed that the ORG ( the Minister of ORG ) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here . If need be , the plaintiff can apply again in due course to the judge responsible for provisional measures .

Each of the parties can in fact be deemed to have been ruled against . ”

Both parties agreed to lodge a direct “ leapfrog ” appeal on points of law ( sprongcassatie ) with ORG , which dismissed both appeals on DATE . Although it agreed with ORG that the judge responsible for provisional measures had incorrectly assumed that LAW gave Mr Lorsé an ( independent ) right to redress which , if need be , could be asserted before the domestic judge , it held that this could not lead to the setting - aside of the judgment as , pursuant to the LAW , the ORG was obliged to provide redress . However , relying on the ORG ’s reasoning in the cases of PERSON and Others v. GPE ( ( LAW ) , judgment of DATE , Series A no . CARDINAL ) and PERSON and ORG v. GPE ( [ ORG ] , ORG . ORG and CARDINAL , ORG CARDINALVIII ) , ORG considered that , although the ORG was in principle free to determine the manner in which redress was to be provided , that freedom did not mean that the domestic judge was unable to take a decision on that point , but simply that a suitable form of redress was to be sought within the domestic legal order . As ORG had acted unlawfully towards PERSON in so far as his rights under LAW had been violated , as found by the ORG , PERSON was entitled to claim compensation from the ORG , which would be acting unlawfully if it failed to provide a suitable form of redress . ORG accepted that such compensation could be granted in a manner other than the payment of a sum of money . In cases such as the present one , where the violation found concerned the manner of execution of a custodial sentence , it could take the form of cessation of the execution of the sentence . ORG found that the order of the judge responsible for provisional measures to cease execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of PERSON . As regards the argument raised by the ORG that the closed system of legal remedies and the corresponding obligation for the ORG to execute rulings of the criminal courts precluded the form of redress claimed by PERSON , ORG – while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [ as in the case of PERSON and Others ] and a situation in which the violation found was unrelated to such a conviction or proceedings [ as in the case of Mr PERSON .

In its judgment of DATE in the case of PERSON the GPE ( no . CARDINAL/CARDINAL ) , in which the applicant complained that his telephone conversations with PERSON had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him , the ORG found a violation of LAW on the ground that the conversations in question had not been recorded “ in accordance with the law ” . As the applicant had declined to submit any claims for compensation in respect of pecuniary or nonpecuniary damage , stating that he intended instead to pursue such claims before the domestic courts , the ORG made no award for just satisfaction under those headings . In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings , the ORG rejected the applicant ’s argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case , taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant ’s part , and recalling that it had already at the admissibility stage rejected the applicant ’s complaints touching on the use made of the evidence obtained as a result of the violation found .

On an unspecified date and on the basis of the ORG ’s findings in its judgment of DATE , the applicant PERSON filed a request with ORG for revision of the final domestic judgment of DATE , in which ORG – without the recorded telephone conversations having been relied on in evidence – had convicted him of having sexually assaulted PERSON and another woman and had sentenced him to a suspended term of CARDINAL months’ imprisonment and payment of a fine of NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) , to be replaced by CARDINAL days’ detention in the event of non - payment .

On DATE ORG accepted the request for revision and , in accordance with LAW ORG , determined the matter itself . It held :

“ CARDINAL . ... the ORG has the obligation to provide redress if ORG has found a violation of a LAW provision . Such redress can be provided entirely or in part within the framework of the revision procedure , amended for this purpose .

Having regard to the violation of LAW found by ORG , ORG is of the opinion that revision is necessary for the purposes of redress . To that extent , the request is well - founded . ... The request is aimed primarily at having ORG declare the prosecution inadmissible , while quashing the judgment in respect of which revision is sought .

ORG can not accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible , and the instant case can not be considered as such . In this respect the petitioner relies mistakenly on [ ORG judgment of DATE ; NL DATE , no . CARDINAL ] . In that case ORG held that , in certain circumstances , a serious breach of the principles of proper proceedings may lead to the prosecution being declared inadmissible if , as a result of that breach , deliberately or owing to gross negligence of the defendant ’s interests , the defendant ’s right to a fair hearing has been violated . As ORG , in its decision on admissibility [ M.M .. v. the GPE ( dec . ) , no . CARDINAL/CARDINAL ] of CARDINAL DATE , preceding its judgment of DATE , declared inadmissible the [ applicant ’s ] complaint under LAW as being manifestly ill - founded , it can not be said that there has been a serious breach of the principles of proper proceedings as a result of which , deliberately or owing to gross negligence of the [ applicant ’s ] interests , his right to a fair hearing has been violated .

Taking into account that , in the proceedings leading to the judgment of which revision is sought , there was no breach of LAW and that the contents of the recorded telephone conversations were not used in evidence , there is no ground for referring the case to ORG under LAW , as requested by the petitioner in the alternative .

In the light of the importance of the provision violation and the nature and seriousness of the irreparable defects in the preliminary criminal investigation , as found by ORG , ORG will , after accepting the [ revision ] request , determine the matter itself , in accordance with LAW ORG , and reduce the fine imposed by ORG in the following manner . ”

ORG quashed the original judgment of ORG in part , that is , in respect only of the amount of the fine imposed and the duration of the alternative detention period , reducing the fine by PERCENT to ORG CARDINAL,CARDINAL and the duration of the alternative detention to DATE .

The findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as regards the ORG , as set out in its Report on the visit to the GPE from DATE , together with ORG response to these findings , are set out in the ORG ’s judgment of CARDINAL DATE in the case of PERSON ( cited above , § § DATE ) .

The ORG visited the GPE again from CARDINAL to DATE and , in the course of this visit , carried out a follow - up visit to the ORG . Its findings were the following ( ORG to ORG on the visits carried out to GPE and to GPE by ORG for ORG Treatment or Punishment ( ORG ) in DATE , ORG ( DATE ) CARDINAL , excerpts ) :

“ CARDINAL . At the time of the DATE visit , ORG ( ORG ) at the FAC was being renovated , and the inmates allocated to it were being held in FAC ( ( GPE ) building nearby ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) .

In addition to paying a brief visit to the facilities undergoing renovation , the ORG ’s delegation examined the regime currently being applied , and devoted attention to the procedures governing placement and extension of placement in ORG . In the course of the visit , interviews were held with all CARDINAL inmates , the establishment ’s management and staff , as well as representatives of ORG .

c. regime

Following its first visit to the ORG , the ORG expressed considerable concern about the regime applied within the institution . It recommended that the regime be revised , in particular as regards certain of its features : the group system ( if not discarded , to at least be relaxed and inmates to be allowed more out - of - cell time and a broader range of activities ) ; searching policies ( to be reviewed in order to ensure that they are strictly necessary from a security standpoint ) ; and visiting arrangements ( to be reviewed , the objective being to have visits take place under more open conditions ) ( cf . paragraphs CARDINAL to CARDINAL of ORG ( CARDINAL ) CARDINAL ) .

However , in their response ( dated DATE ) to the ORG ’s visit report , the NORP authorities defended point by point the different aspects of the regime being applied in the ORG ( cf . paragraph CARDINAL of ORG ( CARDINAL ) CARDINAL ) .

In the course of the DATE visit , the Director of the FAC and the Acting Director of the ORG informed the ORG ’s delegation that a limited number of modifications to the regime and its implementation had taken place . For instance , steps were being taken to increase staff / inmate communication through a training programme known as “ Safety at the door ” , as well as by the previously - mentioned adaptations of the exercise yards . Further , a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells . Another positive development was that the special “ handcuffs regime ” ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) had not been applied in respect of any inmate since DATE .

However , despite these welcome developments , the regime in the unit was essentially the same as in DATE , and the prison ’s management acknowledged that there had been “ no change in most of the rules ” . Although the official allowance for activities was generous ( TIME ) , in practice , most inmates’ out - of - cell time did not appear to have increased ( averaging TIME per day ) . The stringing of plastic curtain hooks on short rods , which was performed individually in the cells , continued to be the only work offered . It remained the case that body searches - including anal inspections - were performed on each prisoner at least once DATE , a process which was invariably perceived as humiliating . Conditions under which visits and sessions with non - custodial staff took place also continued to be very restrictive . Inmates’ remarks to the delegation ( e.g. “ losing positivity ” , lacking “ future feelings ” , “ beginning to hate people from the heart ” , and/or having to cope by being “ mentally separate ” ) frequently echoed those made in DATE .

To sum up , inmates held in the ORG remained subject to a very impoverished regime .

In an environment which is potentially hazardous to the mental health of prisoners , it is of critical importance to provide a varied programme of appropriate stimulating activities ( including education , sport , work of vocational value , etc . ) . The ORG calls upon the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff .

Following a recommendation made by the ORG in its previous periodic visit report ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) , the NORP authorities commissioned ORG to carry out an independent study of the psychological state of current and former inmates of the ORG . A preliminary study completed on DATE concluded that “ an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible . ” The NORP authorities have indicated that such an empirical examination has in fact commenced and would be completed by DATE . The ORG trusts that it will receive the results of the study in due course .

CARDINAL point raised by the preliminary study may be noted , i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “ contradiction in the policy ” of the ORG . ORG would like to receive the views of the NORP authorities on this statement .

Each prisoner was also subjected to such a search before and after being interviewed by members of the ORG ’s delegation . ”

ORG responded to these findings in the following terms ( ORG ( DATE ) DATE , excerpts ) :

“ The “ Extra Security Institution ” at the FAC

recommendations ...

- the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff ( paragraph CARDINAL )

Response : Prisoners in the ORG spend a total of TIME a week on out - of - cell activities , and these activities are no less varied than in other prisons . They include exercise , visits , sport , work , education and recreation . Not all prisoners take part in all activities . What they do depends partly on interest and ability . The work in the ORG is simple . However , it is difficult to provide work that is more varied and yet meets security requirements . In principle , work in the ORG is done jointly . The Government refutes the claim that , on average , prisoners participate in activities for no more than between TIME a day . In fact they spend an average of TIME a day in out - of - cell activities .

The Government agrees that prisoners and staff should have more contact . Fenced - off walkways for staff have now been erected in the exercise yards . They provide more opportunities for informal contact and interaction between prisoners and staff .

The number of searches has been sharply reduced since the opening of the ORG . Besides a DATE search during cell checks , searches are carried out after visits to areas containing potentially dangerous objects , such as the hairdresser ’s or the doctor ’s or dentist ’s surgery , and after contact with the outside world , such as visits . Searches are still necessary from the point of view of security . The Government would point out that searches are also conducted in ordinary prisons .

On DATE , in CARDINAL separate cases against the GPE , ORG ruled that : “ the combination of routine strip - searching with the other stringent security measures in the ORG amounted to inhuman or degrading treatment in violation of LAW . There has thus been a breach of this provision . ” ( PERSON the GPE , ORG no . CARDINAL/CARDINAL , DATE , § CARDINAL ; see also PERSON the GPE , ORG no . MONEY , DATE , § CARDINAL ) . These judgments and other considerations have prompted the Government to stop routine DATE searches in the ORG over a long period of time . The ORG ’s regulations will be amended .

requests for information

- the results of the “ empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners ” , being conducted by ORG ( paragraph CARDINAL )

Response : The study is expected to be completed by DATE as indicated . As soon as the findings are available , the ORG will forward them to the ORG .

- the views of the NORP authorities on the statement , made in the preliminary study carried out by ORG , to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “ contradiction in the policy ” of the ORG ( paragraph CARDINAL )

Response : The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime . However , opportunities to exercise influence are necessarily more restricted in the ORG than in other prisons because of the nature of the system . The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society . Placement in the ORG is mainly determined by considerations of safety and security . In this sense the ORG differs from other prisons . The emphasis on safety and security means that placement in the ORG does not depend on a prisoner ’s behaviour but on the risk he represents . ”


Violation of P1-1;Not necessary to examine Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE respectively , and live in GPE .

On DATE ORG expropriated a plot of land belonging to the applicants . A committee of experts assessed the value of the plot and the relevant amount was paid to them when the expropriation took place .

Following the applicants ' request for increased compensation , on DATE ORG of First - instance awarded them additional compensation plus interest at the statutory rate applicable at the date of the court 's decision .

On DATE ORG quashed the judgment of ORG of First - instance .

On DATE ORG rejected the applicants ' request for rectification of the judgment of DATE .

On DATE ORG of First - instance awarded the applicants additional compensation of MONEY ( ORG ) plus interest at the statutory rate running from DATE , the date on which the title deed to the land had been transferred to ORG in the land registry .

On DATE ORG upheld the judgment of ORG of First - instance .

On DATE ORG rejected the applicants ' request for rectification .

On DATE ORG paid the applicants an overall amount of ORG .

The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) .