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

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

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

NORP On DATE the applicant started to serve a prison sentence . He was initially committed to FAC and remained there until DATE .

From DATE he was detained in FAC PERSON ) .

From DATE to CARDINAL DATE he was detained in ORG .

On DATE the applicant was moved to ORG , a “ CARDINAL - open ” detention facility , where he had an opportunity to work outside prison . On DATE the applicant escaped from the workplace and was on the run until DATE , the date on which he was detained in FAC .

On DATE the applicant was transferred to the Strzelce Opolskie Prison , where he remained until DATE .

Lastly , on DATE , he was transferred to FAC , where he is currently detained .

The parties gave partly differing accounts of the conditions of the applicant 's detention in the above - mentioned establishments .

The applicant submitted that during the entire period of his detention he had been held in overcrowded and dirty cells .

In FAC he was assigned to a cell designed for QUANTITY persons . In fact , he shared it with CARDINAL other inmates . The cell in question measured CARDINAL m² ( CARDINAL m² per person ) but most of its space was taken up by a toilet annex , CARDINAL beds , CARDINAL tables and CARDINAL stools . As a result , the prisoners could not move around the cell and they spent their entire day sitting on their beds . The furniture and cell fittings were old and shabby . There was no ventilation in the cell .

Later , after his transfer to ORG , the applicant was held in a cell which measured CARDINAL ORG and was designed for CARDINAL persons . The applicant shared that cell with QUANTITY other inmates , which meant that they had at their disposal CARDINAL m² per person .

The Government submitted that the period of the applicant 's detention in cells in which the minimum statutory requirement of QUANTITY per person was not respected amounted to DATE .

They supplied the following details concerning the conditions of the applicant 's detention in each establishment .

From DATE to CARDINAL DATE the applicant was placed in a cell which measured QUANTITY and in which the space available to each prisoner was less than the statutory minimum of QUANTITY per person .

From DATE to DATE he was held in the same cell but the minimum space requirement was respected .

During that period the applicant was held in a cell which did not meet the statutory minimum space per prisoner .

NORP Over that term the applicant was placed in a cell measuring FAC which , at different times , he shared with CARDINAL inmates . The Government supplied a table showing the movement of inmates at any given time , from which it emerges that the space available to CARDINAL person ranged from QUANTITY .

From DATE to CARDINAL DATE the applicant was detained in a cell measuring QUANTITY in which the space available to each prisoner was less than the statutory minimum .

From DATE the applicant was placed in CARDINAL different cells . The statutory minimum size requirement was complied with .

NORP Since the prison belonged to the category of so - called “ half open ” prisons , cells were open day and night and inmates could move freely within the LOC . They could walk and also play football and volleyball .

NORP Over that period the applicant was placed in CARDINAL different cells , measuring QUANTITY , QUANTITY and QUANTITY respectively , which he shared with CARDINAL inmates . The space per person ranged from QUANTITY to QUANTITY .

The applicant was placed in a cell complying with the statutory requirement .

From DATE the applicant was held in cell no . CARDINAL measuring QUANTITY . Later , he was placed in cell no . CARDINAL measuring QUANTITY . In both cells the statutory minimum size requirement was complied with . The applicant is apparently still detained in FAC .

NORP The applicant did not lodge any formal complaints with the penitentiary authorities . Nor did he bring a civil action in tort to seek an improvement of his detention conditions or compensation for the alleged breach of his personal rights . He submitted , however , that he had raised the issue of his detention conditions at many meetings with the supervisors and the administration of the detention facilities in which he had been held .

At the material time , LAW ( NORP karny wykonawczy – “ the Code ” ) provided :

“ CARDINAL . A sentenced person shall be placed in an individual cell or a cell shared with other inmates .

NORP The area of the cell shall be QUANTITY per detainee . ”

Article CARDINAL of the Code , which constituted a legal basis for a possible temporary placement of detainees in cells below the statutory size of QUANTITY , as applicable at the material time , read as follows :

“ CARDINAL . In particularly justified cases a governor of a prison or remand centre may decide to place detainees , for a specified period of time , in conditions where the area of the cell is QUANTITY per person . Any such decision shall be communicated promptly to a penitentiary judge .

NORP The Minister of Justice shall determine , by means of an ordinance , the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ... ”

Acting on the basis of Article CARDINAL of the Code , in DATE and DATE the Minister of ORG issued CARDINAL subsequent ordinances bearing the same title : “ Ordinance on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments ( ORG w sprawie trybu postępowania właściwych organów w wypadku , gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali ORG ogólną pojemność tych zakładów ) .

The first ordinance ( “ the DATE Ordinance ” ) was issued on DATE . It was repealed on CARDINAL DATE by the second ordinance ( “ the DATE Ordinance ” ) , which entered into force on DATE ( see PERSON , cited above , § DATE ) .

On DATE , the third ordinance ( “ the DATE Ordinance ” ) was issued ; it entered into force on DATE . It repealed DATE Ordinance and remained in force until DATE , i.e. the date on which ORG judgment of CARDINAL DATE took effect ( see PERSON , cited above , § CARDINAL ; and paragraph CARDINAL below ) . All the ordinances contained similar provisions authorising the prison authorities to place – temporarily – detainees in cells with surfaces below QUANTITY in situations where the overall capacity of NORP detention facilities was exceeded on a nationwide scale .

Paragraph QUANTITY of the CARDINAL Ordinance provided :

“ In the event that the number of detainees placed in prisons and remand centres , as well as in subordinate detention facilities , hereinafter referred to as ' establishments ' , exceeds on a nationwide scale the overall capacity of such establishments , the Director General of ORG , within DATE from DATE on which the capacity is exceeded , shall convey information thereof , hereinafter referred to as ' information ' to the Minister of ORG , the regional directors of ORG and the governors of the establishments ... ”

Paragraph CARDINAL of the Ordinance read :

“ CARDINAL . Having received the relevant information , the regional director of the prison service and the governor of the establishment are under a duty , each within their own sphere of competence , to take action in order to adapt quarters not otherwise included in the establishment 's [ accommodation ] capacity , to comply with the requirements for a cell .

Detainees shall be placed in supplementary cells for a specified period of time after the establishment 's capacity is exceeded .

In the event that the additional accommodation in the supplementary cells is used up , detainees may be placed , for a specified period of time , in conditions where the area of a cell is QUANTITY per person . ”

On DATE the Constitutional Court gave its landmark judgment concerning the unconstitutionality of Article CARDINAL of the Code ( see paragraph CARDINAL above ) in that it allowed , for all practical purposes , the indefinite and arbitrary placement of detainees in cells below the statutory size of CARDINAL m² per person , thus causing chronic overcrowding in NORP prisons and exposing detainees to the risk of inhuman treatment .

The most relevant parts of that ruling are rendered in paragraph CARDINAL of the PERSON judgment and in paragraphs CARDINAL of the PERSON judgment , which also contain extensive citations from the reasoning .

For the purposes of the present decision the judgment can be summarised as follows .

ORG held that Article CARDINAL of the Code was in breach of Article CARDINAL ( prohibition of torture or cruel , inhuman , or degrading treatment or punishment ) , Article CARDINAL § CARDINAL ( right of a detainee to be treated in a humane manner ) and LAW ( the principle of the rule of law ) of the LAW . It expressed the view that overcrowding in itself could be qualified as inhuman and degrading treatment . If combined with additional aggravating circumstances , it might even be considered as torture . In that connection the court noted that already the statutory minimum standard of CARDINAL m² cell space per person was CARDINAL of the lowest in LOC .

The Constitutional Court further stressed that the provision in question was meant to be applied only in particularly justified cases , for example the occurrence of an engineering or building disaster in prison . A legal provision designed to address exceptional situations should not leave any doubt as to the definition of those permissible circumstances , the minimum size of the cell and maximum time when the new standards would apply . It should also lay down clear principles on how many times a detainee could be placed in conditions below the standard requirements and the precise procedural rules to be followed in such cases .

In contrast , Article CARDINAL of LAW Sentences gave a wide discretion to prison governors to decide what constituted “ particularly justified circumstances ” and in consequence condoned the permanent state of overcrowding in detention facilities . It allowed for the placement of detainees in a cell where the area was below the statutory size for an indefinite period of time and it did not set a minimum permissible area .

Having regard to “ the permanent overcrowding of the NORP detention facilities ” , ORG ruled that LAW should lose its binding force within DATE from the date of the publication of the judgment .

The judgment was published in ORG ) on DATE .

ORG justified the delayed entry into force of its judgment by the need to undertake a series of measures to reorganise the whole penitentiary system in GPE in order to , ultimately , eliminate the problem of overcrowding . It was also noted that , in parallel , a reform of criminal policy was needed with the aim of achieving a wider application of preventive measures other than deprivation of liberty . The court observed that an immediate entry into force of its judgment would only aggravate the already existing pathological situation where , because of the lack of cell space in NORP prisons , many convicted persons could not serve their prison sentences . At the time when the judgment was passed , the problem of overcrowding affected CARDINAL persons .

A detailed description of the relevant domestic law and practice ( as applicable at the relevant time ) concerning a detainee 's right to make complaints , applications or to challenge unlawful decisions given by the prison authorities before a penitentiary judge and penitentiary court in the course of the enforcement of a criminal sentence or detention order , is included in paragraph CARDINAL of the PERSON judgment and paragraphs CARDINAL of the PERSON judgment .

DATE the Civil Code contains a non - exhaustive list of socalled “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as , in particular , health , liberty , honour , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements , shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL , paragraph CARDINAL , of the Civil Code provides :

“ A person whose personal rights are at risk [ of infringement ] by a third party may seek an injunction , unless the activity [ complained of ] is not unlawful . In the event of infringement [ the person concerned ] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this LAW [ the person concerned ] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest . ”

Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) suffered to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”

Articles CARDINAL et seq . of the NORP LAW provide for the ORG 's liability in tort .

Article CARDINAL § CARDINAL of LAW ( as amended ) provides :

“ ORG , or [ as the case may be ] a self - government entity or other legal person responsible for exercising public authority , shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . ”

Article DATE of the Civil Code sets out limitation periods for civil claims based on tort , including claims under LAW read in conjunction with ORG and CARDINAL of LAW . This provision , in the version applicable as from DATE , reads , in so far as relevant , as follows :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse after the expiration of DATE from the date on which the claimant learned of the damage and of a person liable for it . However , this time - limit may not be longer than DATE following the date on which the event causing the damage occurred . ”

In its judgment ORG acknowledged for the first time that a detainee might , under LAW , read in conjunction with LAW , lodge a civil claim against ORG and seek compensation for infringement of his personal rights , in particular , the right to dignity and private space ( intymność ) , on account of overcrowding and inadequate living and sanitary conditions in a detention establishment . It further held that the burden of proof that conditions in a detention establishment complied with the required standards and that there was no infringement of personal rights lay with the defendant prison authority .

In that context , ORG referred to the statutory minimum space of QUANTITY per person , recalling that only in justified cases defined in Article CARDINAL of the Code and in accordance with the procedure laid down in the CARDINAL Ordinance could that minimum be reduced for a specific period , which had to be precisely determined and not be excessively long – as it constituted an exception to the rule .

ORG also reiterated CARDINAL essential principles underlying LAW . First , a defendant was liable under this provision regardless of whether or not there was any fault on his part . Second , there was a presumption of unlawfulness of actions infringing personal rights , which meant that a plaintiff was absolved from proving this circumstance , whereas a defendant had a duty to demonstrate before the court that his actions were in accordance with the law .

Further details of the civil action in which the judgment originated ( and which was ultimately dismissed ) are stated in paragraphs CARDINAL of the PERSON judgment and in CARDINAL of the PERSON judgmentt .

In the cases of PERSON and PERSON , the ORG submitted CARDINAL judgments delivered by the NORP civil courts in DATE and DATE and CARDINAL final judgments delivered in DATE , which concerned claims brought by former detainees on account of the alleged infringement of their personal rights . Those claims derived from various situations , including detention with inmates who smoked , food poisoning , bodily injury caused by an inmate , risk of HIV infection and , also , overcrowding in prison .

In CARDINAL final judgments delivered in DATE and in CARDINAL final judgments delivered in DATE the plaintiffs were awarded compensation for the infringement of their personal rights on account of overcrowding and insanitary conditions in their cells . In certain cases the plaintiffs were detained together with smokers or persons with hepatitis C.

A more detailed description of the relevant rulings is included in DATE and CARDINAL of the PERSON judgment and in DATE and CARDINAL of the PERSON judgment .

In implementation of the above - mentioned ORG judgment , whereby Article CARDINAL of the Code lost its force on DATE ( see paragraph CARDINAL above ) , ORG adopted the law of CARDINAL DATE on amendments to LAW ( ustawa o zmianie ustawy – Kodeks karny wykonawczy ) ( “ the DATE LAW ) . The law entered into force on DATE and introduced a number of new detailed rules governing temporary placement of detainees in cells below the statutory minimum size of QUANTITY .

In LAW , after paragraph CARDINAL , new paragraphs CARDINAL - i were added .

Paragraph CARDINAL gives a list of emergencies where the reduction of the cell space per person can be applied for a maximum period of DATE . It reads , in so far as relevant , as follows :

“ CARDINAL . The Governor of a prison or remand centre may place a detainee for a specified period not longer than DATE ... in a cell , in which the area per detainee is less than CARDINALmCARDINAL but not less than CARDINAL mCARDINAL in the event of :

CARDINAL ) NORP introduction of martial law , state of emergency or natural disaster ...

CARDINAL ) NORP announcement of an epidemic risk or an epidemic in the region in which the prison or remand centre is located or an outbreak of an epidemic or risk of an epidemic in the prison or remand centre – regard being had to the level of threat to life and health ;

CARDINAL ) NORP need to prevent other events amounting to a direct threat to security of a [ detainee ] or security of the prison or remand centre or to mitigate the consequences of such events ;

Paragraph CARDINAL lists specific circumstances where the prison authorities may reduce the cell space per person below QUANTITY for a period not exceeding DATE .

The Governor of a prison or remand centre may place a detainee , for a specified period not longer than DATE ... in a cell , in which the area per detainee is CARDINAL mCARDINAL but not QUANTITY if it is necessary to place him immediately in the prison or remand centre that have no free places in cells :

CARDINAL ) a person sentenced to imprisonment DATE ;

CARDINAL ) NORP a person referred to in LAW and LAW [ recidivist ] ;

CARDINAL ) NORP a person sentenced for the offences defined in Articles CARDINAL - CARDINAL of LAW [ sexual offences and offences against morals ] ;

CARDINAL ) a convicted person who [ has escaped ] from prison ;

CARDINAL ) a convicted person who , during leave from prison or a remand centre has not returned to prison ;

CARDINAL ) a person transferred from another prison or remand centre under a decision given by the court or prosecutor , in order to take part in a hearing or other procedural acts ;

CARDINAL ) a person detained on remand , committed to prison for contempt of court or person in respect of whom other coercive measures have been applied ;

Paragraph CARDINAL reads as follows :

The period referred to in paragraph CARDINAL , may be extended only after approval by a penitentiary judge . The whole period of the placement in conditions defined in paragraph CARDINAL may not exceed DATE .

Paragraphs CARDINAL state the following :

A decision issued pursuant to paragraphs CARDINAL shall specify the period of the placement and the reasons for placing a [ detainee ] in conditions where the area per detainee is QUANTITY and state the term for which a [ detainee ] shall be held in these conditions .

The court shall examine a complaint against a decision issued pursuant to paragraphs CARDINAL within DATE .

CARDINAL g . A decision to place a [ detainee ] in conditions referred to in paragraphs CARDINAL shall be quashed immediately if the reasons for which it has been issued no longer exist .

NORP In situations referred to in paragraphs CARDINAL and CARDINAL , a [ detainee ] shall be assured DATE walks , TIME longer [ than regular ones ] and the possibility of taking advantage of additional cultural and educational activities or sports activities .

NORP The provisions of paragraphs CARDINAL or CARDINAL may not be applied in respect of the same [ detainee ] DATE from DATE of the period of the placement in conditions referred to therein .

Following LAW , in LAW , which lists circumstances in which the enforcement of a sentence may be suspended , a nationwide overcrowding in detention facilities was included as an additional circumstance justifying the suspension . This provision , in so far as relevant , reads as follows :

“ CARDINAL . The court may suspend the enforcement of a sentence of imprisonment for a period of DATE if the immediate enforcement of the penalty would entail too harsh consequences for a convicted person or his family or if the number of persons detained in prisons or remand centres exceeds on a nationwide scale the overall capacity of such establishments . ”

The DATE amendment repealed the DATE Ordinance ( see also paragraphs CARDINAL above ) and added a new paragraph CARDINAL to LAW . Pursuant to that paragraph , the Minister of Justice shall determine by means of an ordinance the rules to be followed by the relevant authorities in a situation where the number of persons detained exceeds , nationwide , the overall capacity of prisons and remand centres .

On DATE the Minister of ORG issued the LAW on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded , nationwide , the overall capacity of such establishments . It entered into force on DATE .

The Government , as they did in the PERSON and PERSON cases , produced a list of cases where the plaintiffs DATE detainees – sought , and were in some cases awarded , compensation for the infringement of their personal rights . The list partly overlapped with the one submitted in the pilot cases . It comprised CARDINAL civil cases involving various claims for compensation under Articles CARDINAL and CARDINAL read in conjunction with LAW brought by detainees against the prison authorities .

In CARDINAL judgments , namely :

no . IACa CARDINAL/CARDINAL , ORG , of DATE ; case brought by PERSON ;

no . IACa CARDINAL/CARDINAL , ORG , of CARDINAL DATE ; case brought by GPE ;

no . IACa CARDINAL/CARDINAL , ORG , of DATE ; case brought by PERSON ( for details of the action and its outcome , see PERSON cited above , § § DATE ) ;

no . IACa CARDINAL/CARDINAL , ORG , of CARDINAL DATE ; case brought by PERSON ;

no . IVCa CARDINAL/CARDINAL , ORG , of DATE ; case brought by GPE

the courts awarded plaintiffs compensation for damage to their health caused by their prolonged detention with inmates who smoked . No awards were made on account of overcrowding .

In the case of a certain LOC ( judgment of ORG of DATE , no . IACa CARDINAL ) , the court held that there was no legal basis to grant the plaintiff compensation for overcrowding since the reduction of the cell space below the standard minimum had been applied under the provisions of the DATE Ordinance . This measure could not , therefore , be considered an unlawful act justifying the application of provisions for the protection of personal rights ( for further details see PERSON , § DATE ) .

In the remaining CARDINAL cases the relevant courts awarded plaintiffs compensation on account of overcrowding and insanitary conditions in their cells . The judgments were delivered on various dates DATE .

The Government also supplied copies of CARDINAL further final judgments delivered in civil cases brought by detainees .

However , the first judgment , given by ORG on DATE in the case no . IACa CARDINAL/CARDINAL , brought by a certain PERSON , a mentally ill person , concerned a claim for damages arising from a wrong diagnosis and resultant lack of psychiatric treatment in detention . The issue of overcrowding was not raised in that case .

The second judgment was given by ORG on DATE in the case no . IACa DATE brought by a certain PERSON

The plaintiff 's claim for compensation for the infringement of his personal rights caused by overcrowding , insanitary conditions of detention and placement in cells with persons infected with HIV and ORG was dismissed at first instance by ORG . While the court held that it was undisputed that PERSON had been held in overcrowded cells , which undoubtedly constituted an infringement of his personal rights , it concluded that he had not demonstrated that , as a result , he had suffered any damage to his health . Accordingly , it found no basis for awarding him any compensation .

ORG amended the judgment and granted the applicant MONEY ( MONEY at the material time ) in compensation . It further reiterated a number of principles relevant for the determination of claims for the infringement of personal rights .

First , ORG stressed that under LAW a plaintiff was not obliged to prove that he had suffered any damage to his health but to show that he sustained non - material damage caused by the infringement of his personal rights . Second , he had to produce evidence demonstrating the extent of the damage suffered . In determining an award , the court , for its part , should take into account such factors as the intensity of the suffering , whether the damage was permanent or irreversible and whether it was possible for a plaintiff to reverse its consequences by recourse to other civil remedies . It should also have regard to the nature of the right infringed , the degree of culpability on the part of the defendant and the defendant 's financial situation . The ratio of LAW was not purely compensatory – another aim was to provide the plaintiff with satisfaction , which meant that an amount awarded should constitute a tangible financial sanction for the defendant . However , the court explained further that , in general , sums awarded under LAW should be moderate and reflect the prevailing national financial circumstances . They should not be a source of enrichment for the plaintiff .

On DATE ORG examined , and allowed , a cassation appeal ( skarga kasacyjna ) lodged by a certain PERSON against the judgment of ORG of DATE ( case no . IACa CARDINAL/CARDINAL ) upholding the first - instance dismissal of the plaintiff 's claim for compensation for the infringement of his personal rights caused by overcrowding in prison .

The lower courts established that from DATE to DATE , that is to say for DATE , the applicant had been held in a cell designed for QUANTITY persons with QUANTITY or even more inmates . However , they considered that those conditions had not been in breach of LAW torture , cruel , inhuman or degrading treatment or punishment ) , LAW ( duty to treat detained persons in a humane manner ) and LAW ( right to protection of private life ) of the LAW but had been a normal consequence of the execution of a penalty and constituted a form of suffering normally associated with serving a prison sentence . The prison authorities had informed the penitentiary court of the overcrowding in their establishment and the need to apply the measures foreseen by LAW . It was true that no specific term had been fixed for the application of those measures but Article CARDINAL did not oblige them to set any specific time - frame . The applicant had not made any complaints about the conditions of his detention to the relevant authorities . Moreover , he had refused a proposal of transfer to a “ half - open ” prison , thus renouncing the possibility of improving his situation .

In view of the foregoing , the courts found that the actions taken by the defendant authorities had been legitimate and could not be considered unlawful for the purposes of Articles CARDINAL and CARDINAL of LAW .

ORG quashed ORG judgment and remitted the case .

Referring to its earlier judgment of DATE ( see paragraphs PERSON above ) , it restated the principle that the right to be detained in conditions respecting one 's dignity undoubtedly belonged to the catalogue of personal rights and that actions infringing this right could involve ORG liability for the purposes of ORG and CARDINAL of LAW .

ORG observed that ORG , in determining the lawfulness of the defendant 's actions , had failed to consider whether the requirements of Article CARDINAL of the Code had been complied with . First , it had not established whether there had been a “ particularly justified case ” as required under this provision , allowing the authorities to place the plaintiff in a cell below the statutory minimum size of QUANTITY . The fact that there had been a temporary overcrowding in prison , without any explanation of the cause of this situation , was not sufficient to justify the application of Article CARDINAL . The notion of “ particularly justified case ” should be understood as an exceptional or special circumstance and not simply any given situation . It could conceivably include such situations as an increase in crime and in sentences of imprisonment , imposition of martial law , emergency , epidemics or natural disasters . Accordingly , in order to establish whether there was a “ particularly justified case ” the court could not rely on a general phenomenon of overcrowding in prisons within the whole country .

Moreover , ORG had been wrong in finding that the absence of any specific time - frame in Article CARDINAL absolved the authorities from setting a precise period for which the measures would be applied in the plaintiff 's case . Thus , the relevant rule spoke of a “ specified period of time ” , which by no means meant an indefinite and unforeseeable term .

Finally , ORG referred to the argument that the plaintiff , by his refusal of a transfer to another prison , legitimised the authorities ' decision to continue his placement in a reduced - size cell . This , ORG stressed , could not eliminate the unlawfulness of their actions . In that respect , it reiterated that , pursuant to LAW , the inherent and inalienable dignity of the person was inviolable and the respect and protection thereof was a duty incumbent on the authorities . This principle had a particular meaning in situations where the ORG imposed repressive measures . The exercise of this power could not restrict the right to dignity and the right of persons detained to be treated in a humane manner as these rights had an absolute character .

Data relating to the total capacity of NORP detention establishments published by ORG ( available on ORG official website ORG ) show that those establishments can admit CARDINAL persons ( the figures given by the authorities range from CARDINAL to CARDINAL ) .

According to DATE statistical reports published by ORG , as of CARDINAL DATE the number of persons detained in NORP prisons stood at CARDINAL , of whom PERCENT were serving their sentences and PERCENT were detained on remand ; the remaining persons served short sentences of imprisonment imposed for commission of administrative offences . As of DATE the number of detained was CARDINAL and as of DATE it decreased to CARDINAL . The proportion of persons detained on remand and those serving sentences remained essentially unchanged . Over the period from DATE the prison population gradually decreased – by CARDINAL persons in DATE and by CARDINAL and CARDINAL in DATE and DATE respectively .

On DATE ORG published a communiqué on the prison population , stating that as of DATE the number of persons detained in prisons and remand centres had not exceeded the overall capacity of those establishments on a nationwide scale within the meaning of the DATE Ordinance and that the occupancy rate was PERCENT , which meant that the overcrowding no longer existed .

On DATE a similar communiqué was issued . It stated that as of that date the occupancy rate in detention facilities was PERCENT , which demonstrated that the problem of overcrowding had been handled . The summary statistical report of DATE indicated that the total capacity of detention facilities was CARDINAL persons and that the number of persons detained stood at CARDINAL .


Violation of P1-1;Violation of Art. 6-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

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

They are the owners of CARDINAL flats in GPE .

On DATE , the whole property was transferred to the first applicant , Mr PERSON .

In a registered letter of CARDINAL DATE , the applicants informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE .

In a writ served on the tenant on DATE , the applicants reiterated their intention to terminate the lease and summoned the tenant to appear before the Florence Magistrate .

By a decision of CARDINAL DATE , which was made enforceable on DATE , the Florence Magistrate upheld the validity of the notice to quit and ordered that the premises be vacated by CARDINAL DATE .

On DATE , the applicants served notice on the tenant requiring her to vacate the premises .

On DATE , they informed the tenant that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE , the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicants were not entitled to police assistance in enforcing the order for possession .

At DATE , the applicants recovered possession of the flat .

In a registered letter of CARDINAL DATE , the applicants informed the tenant that they intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

By a decision of DATE , which was made enforceable on CARDINAL DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicants served notice on the tenant requiring him to vacate the premises .

On DATE , the applicants entered into a new lease with the tenant 's wife .

On an unspecified date at DATE , Mr PERSON recovered possession of the flat .

On DATE , Mr PERSON recovered possession of the flat .

On an unspecified date of DATE , the applicants recovered possession of the flat .

Since DATE the public authorities in GPE have frequently intervened in residential tenancy legislation with the aim of controlling rents . This has been achieved by rent freezes ( occasionally relaxed when the Government decreed statutory increases ) , by the statutory extension of all current leases and by the postponement , suspension or staggering of the enforcement of orders for possession . The relevant domestic law concerning the extension of tenancies , the suspension of enforcement and the staggering of evictions is described in the ORG 's judgment in the case of ORG GPE [ ORG ] , no . CARDINAL , § § DATE , ORG CARDINAL-V. Lastly , for some cases , a suspension of the enforcement of the orders for possession until DATE was introduced by Legislative Decree no . CARDINAL of DATE , which became PERSON no . CARDINAL of CARDINAL DATE .

As regards the control of the rents , the evolution of the NORP legislation may be summarised as follows .

The first relevant measure was the PERSON no . CARDINAL of DATE which provided machinery for “ fair rents ” ( the so - called equo canone ) on the basis of a number of criteria such as the surface of the flat and its costs of realisation .

The second step of the NORP authorities dated DATE . It was taken in the view of progressive liberalisation of the market of tenancies . Accordingly , a legislation relaxing on rent levels restrictions ( the so - called patti in deroga ) entered into force . Owners and tenants were in principle given the opportunity to derogate from the rent imposed by law and to agree on a different price .

Lastly , PERSON no . CARDINAL of DATE reformed the tenancies and liberalised the rents .

The tenant is under a general obligation to refund the owner any damages caused in the case of late restitution of the flat . In this regard , Article CARDINAL of the NORP Civil Code provides :

“ The tenant who fails to vacate the immovable property is under an obligation to pay the owner the agreed amount until DATE when he leaves , together with other remaining damages . ”

NORP However , PERSON no . CARDINAL of DATE set out , inter alia , a limit to the compensation claimable by the owner entitling him to a sum equal to the rent paid by the tenant at the time of the expiration of the lease , proportionally increased according to the cost of living ( LAW no . CARDINAL of DATE ) plus PERCENT , along the period of inability to dispose of the possession of the flat .

In the judgment no . CARDINAL of DATE , ORG was called upon to decide whether such a limitation complied with LAW . ORG held that it was compatible with the LAW with regard to periods of time during which the suspension of the evictions was determined by law . ORG explained that the introduction of that limitation was intended to settle the tenancies of the time of the emergency legislation , when the housing shortage made the suspension of the enforcement necessary . While evictions were suspended ex lege , the law predetermined the quantum of the reimbursement chargeable to the tenant , both measures being temporary and exceptional . Besides , the interests of the owner were counterbalanced by the exemption for him from the burden to prove the damages .

The Constitutional Court declared the limitation to the compensation claimable by the owner unconstitutional with regard to cases where the impossibility for the owner to repossess the flat depended on the conduct of the tenant and was not due to a legislative intervention . Accordingly , it opened the way to owners for the institution of civil proceedings in order to obtain full reparation of the damages caused by the tenant .


KORANDOVA AND OTHERS v. THE CZECH REPUBLIC

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicants , PERSON , Mr PERSON , PERSON , PERSON , PERSON and PERSON , were CARDINAL NORP nationals born in DATE , CARDINAL , DATE and DATE respectively . They reside in GPE , PERSON , GPE nad ORG , PERSON and PERSON , respectively .

ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

The ORG mother owned a share in an agricultural cooperative in GPE . On DATE she died .

On DATE bankruptcy proceedings concerning assets of the cooperative were instituted before LOC ) .

On DATE ORG ( okresní soud ) approved an agreement on the distribution of the assets of the applicants’ mother , including her share in the cooperative , among her heirs . The decision became final on DATE .

It appears that the bankruptcy proceedings are still pending

The relevant domestic law and practice concerning remedies for the allegedly excessive length of judicial proceedings are set out in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


CASE OF ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN (ASLEF) v. THE UNITED KINGDOM

Preliminary objection dismissed (non-exhaustion);Violation of Art. 11;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

The applicant is a trade union , representing mainly train drivers on GPE railways . Founded in DATE , it has CARDINAL members and most train drivers are members of ORG . It is an independent trade union . The various companies on the GPE rail network do not operate a “ closed shop ” and railway workers , including drivers , are free to join ORG or other unions or not to join a union at all .

Its Rules provide that its objects include , as well as regulating relations between workers and employers and protecting the welfare of members and the industry , that it “ assist in the furtherance of the labour movement generally towards a NORP society ( Rule CARDINAL.CARDINAL(vii ) and to “ promote and develop and enact positive policies in regard to equality of treatment in our industries and ORG regardless of sex , sexual orientation , marital status , religion , creed , colour , race or ethnic origin ” ( Rule CARDINAL.CARDINAL(viii ) ) .

In DATE the Annual Assembly of Delegates(“AAD ” ) of ORG , its governing body , resolved , pursuant to rule PERSON ) of ORG rules , that " this ORG being concerned with the rise of ORG activists and groups instruct ORG to campaign vigorously to expose the obnoxious policies of political parties such as ORG . "

NORP In DATE , a Mr PERSON ( a member of the far - right , lawful , ORG ( ' BNP ' ) , previously known as ORG ) applied for membership in ORG and was accepted . In DATE Mr PERSON stood as a candidate in the local elections in GPE for the ORG .

On DATE an ORG trade union officer sent a report to the General Secretary concerning PERSON , attaching information that PERSON was an activist in the ORG , had handed out anti - NORP leaflets dressed as a priest and that in DATE he had stood as a candidate for the ORG in GPE . The report included an article written by PERSON ( the ORG magazine ) and a fax from ORG stating that Mr PERSON had seriously harassed PERCENT pamphleteers , including taking pictures of them , taking their car numbers , making throat - cutting gestures and following CARDINAL woman in his car and visibly noting her home address , which matters had been reported to the police .

On DATE , an ORG meeting of ORG voted unanimously to expel PERSON , who was so informed by a letter of DATE , which stated that his membership of the ORG was incompatible with membership with ORG , that he was likely to bring the union into disrepute and that he was against the objects of the union .

Mr PERSON appealed against the expulsion and was informed that a hearing would take place on DATE . On DATE , he stated that he would not attend . On DATE , ORG of ORG met and rejected his appeal .

On DATE , ORG resolved " that membership of the ORG or similar NORP organisation is incompatible with being a member of ORG as determined under Rule CARDINAL . Therefore any members of ORG who are members of , or apply for membership , of ORG shall be removed from membership or refused membership . " The rules were changed accordingly to read :

Rule CARDINAL ) :

“ No person shall be admitted into membership of ORG if by choice they are members of , supporters of , or sympathisers with , organisations which are diametrically opposed to the objects of the union , such as a fascist organisation . ”

In the meantime , PERSON had brought proceedings in ORG ) in respect of his expulsion , on the basis of section CARDINAL ORG and ORG DATE ( ' section CARDINAL ' ) , which prohibits trade unions from excluding a person or expelling a member wholly or to any extent on the ground that the individual is or was a member of a political party . The ORG found in favour of PERSON on DATE . The applicant appealed to ORG ( ' ORG ' ) , which on DATE found that the first ORG had fallen into serious errors of law , quashed the decision and remitted it to a second ET .

The ORG considered that it could construe section CARDINAL without the need to resort to LAW . It noted the parties ' submissions , including the applicant 's reliance on the decision in PERSON v. GPE ( no . CARDINAL , ORG . DATE , PERSON , p. CARDINAL ) and continued :

“ As we have indicated [ counsel for the applicant ] accepts that we are not in a position to grant a declaration of incompatibility , on the one hand ... But it is also clear to us that the very existence of competing claims under LAW ( albeit that it would seem to us , on the authorities , that , absent a case of prejudice to livelihood , in this case [ the applicant 's ] right of negative association for the Union and its members would seem likely to override the asserted right of association of [ Mr PERSON ] ) renders it more appropriate for us to seek to resolve the construction of the statute without reference to those competing rights . [ Counsel for the applicant ] , while reserving his position , does not dissent from that course , and [ counsel for Mr PERSON ] said that he understood , and indeed accepted that it was thereby being assumed in [ his favour ] that there is at least arguable an LAW right , such as he asserts . ”

The ORG 's conclusion on the meaning of section CARDINAL was that a union could rely as a legitimate ground for expulsion on the conduct of the expelled member so long as that conduct was not the fact of being a member of a political party . It found that a union could not rely on conduct which was a “ necessary act for the purpose of being or continuing to be a member ” ( at paragraph CARDINAL of its judgment ) . It specifically rejected the submission advanced by the applicant that included in the concept of membership ( and thus amounting to conduct on which the union was not permitted to rely ) was conduct as a member , or in the capacity as a member , of a political party ( paragraph CARDINAL of the ORG judgment ) .

A second ET again upheld Mr PERSON 's complaint by way of decision promulgated on DATE . It rejected the applicant 's defence that Mr PERSON 's expulsion was entirely attributable to his conduct ( apart from the fact of membership of the ORG ) for the purpose of section CARDINAL , holding that the expulsion was “ primarily because of his membership of the BNP ” ( paragraph CARDINAL of its judgment ) .

The applicant did not appeal to the ORG against the second decision of the ET .

In consequence of the second decision of the ET , the applicant has been obliged to re - admit PERSON to the membership of the Union . It is in breach of its own Rules in so doing . Had the applicant not re - admitted Mr PERSON , it would have been liable to pay him compensation in such sum as the ET considered just and equitable ( subject to a statutory minimum of , currently , just over CARDINAL,CARDINAL euros ( ORG ) , with no upper limit ) . Even though it has re - admitted PERSON , the applicant remains exposed to an application from PERSON for compensation in such sum as the ORG considers just and equitable but subject to an upper limit of around ORG CARDINAL . It does not appear that PERSON has made any such application .

Section CARDINAL of ORG DATE reads in relevant part :

( CARDINAL ) The exclusion or expulsion of an individual from a trade union is permitted by this section if ( and only if ) –

( d ) the exclusion or expulsion is entirely attributable to his conduct .

( CARDINAL ) For purposes of subsection ORG ) ' conduct , ' in relation to an individual , does not include –

( a ) his being or ceasing to be , or having been or ceased to be -

( iii ) a member of a political party , or ... ”

Subsequent to the decision of the second ET in PERSON case , section CARDINAL was amended ( with effect from DATE ) to read as follows ( again in material part only ) :

“ ( CARDINAL ) An individual shall not be excluded or expelled from a trade union unless the exclusion or expulsion is permitted by this section .

( d ) the exclusion or expulsion is entirely attributable to conduct of his ( other than excluded conduct ) and the conduct to which it is wholly or mainly attributable is not protected conduct .

( CARDINAL ) For purposes of subsection ( CARDINAL ) “ excluded conduct , ” in relation to an individual , means –

( a ) conduct which consists in his being or ceasing to , or having been or ceased to be , a member of another trade union

( b ) conduct which consists in his being or ceasing to be , or having been or ceased to be , employed by a particular employer or at a particular place , or

( c ) conduct to which LAW ( conduct for which an employer may not be disciplined by a union ) applies or would apply if the references in that section to the trade union which is relevant for the purposes of that section were references to any trade union .

( CARDINAL ) For the purposes of subsection ( CARDINAL ) “ protected conduct ” is conduct which consists in the individual 's being or ceasing to be , or having been or ceased to be , a member of a political party .

( CARDINALB ) conduct which consists of activities undertaken by an individual as a member of a political party is not conduct falling within subsection ( CARDINAL ) . .. ”

Section CARDINAL(CARDINAL)(b ) provides that “ ' conduct ' includes statements , acts and omissions . ”

DATE of NORP Social Charter DATE provides for the following “ right to organise ” :

“ With a view to ensuring or promoting the freedom of workers and employers to form local , national or international organisations for the protection of their economic and social interests and to join those organisations , the Contracting Parties undertake that national law shall not be such as to impair , nor shall it be so applied as to impair , this freedom . The extent to which the guarantees provided for in this Article shall apply to the police shall be determined by national laws or regulations . The principle governing the application to the members of the armed forces of these guarantees and the extent to which they shall apply to persons in this category shall equally be determined by national laws or regulations . ”

In that context , ORG ( formerly ORG ” , which is the supervisory body of the European Social Charter CARDINAL has given consideration on numerous occasions to sections CARDINAL - CARDINAL of the DATE Act . Concern with the interference by section CARDINAL in the right of trade unions to fix their own rules and choose their own members was expressed by ORG , p. CARDINAL ; Conclusions XV-CARDINAL p. CARDINAL ; and in DATE , Conclusions PERSON , p. CARDINAL where it held :

“ Section CARDINAL of the DATE Act limits the grounds on which a person may be refused admission to or expelled from a trade union to such an extent as to constitute an excessive restriction on the rights of a trade union to determine its conditions for membership and goes beyond what is required to secure the individual right to join a trade union .... ORG concludes that , in light of the provisions of ORG ) DATE referred to above ( sections DATE , CARDINAL and CARDINAL ) the situation in GPE is not in conformity with LAW ”

In Conclusions XVII-CARDINAL ( DATE ) it again concluded that GPE was not in conformity with LAW as section CARDINAL constituted an excessive restriction on trade unions ' right to determine their membership conditions .

The ( ILO ) Freedom of Association and Protection of the Right to Organise Convention , DATE ( no . DATE ) provides , inter alia :

“ Part ORG

Article CARDINAL

Workers and employers , without distinction whatsoever , shall have the right to establish and , subject only to the rules of the organisation concerned , to join organisations of their own choosing without previous authorisation . ”


The applicant is a NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr A. J. Mullem of PERSON and GPE , a firm of solicitors practising in GPE . The respondent Government are represented by their Agent , PERSON of ORG .

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

The applicant was released from prison in or around DATE , having served a DATE sentence for attempted rape and indecent assault . On CARDINAL DATE the applicant applied to ORG ( “ CLBC ” ) for accommodation . In response CLBC told him that he did not fall within any of the priority categories as set out in Part III of LAW DATE ( “ the DATE LAW ) . The applicant made a further approach to CLBC on DATE , whereupon ORG agreed to make initial inquiries pursuant to section CARDINAL of the CARDINAL Act ( see below ) . Since the applicant appeared to have a priority need owing to health problems , CLBC provided him with temporary accommodation in accordance with CARDINAL of LAW ( see below ) , in a hotel room . On DATE , before CLBC had completed its inquiries under section CARDINAL , the applicant was evicted from the hotel following complaints about his behaviour there , including allegations of nuisance and assault on female residents . He was advised by CLBC to go to a night shelter pending a decision on permanent housing , but he failed to do so .

The applicant informed CLBC that he wanted permanent accommodation and was thus unwilling to accept anything on a temporary basis . A search for suitable accommodation was conducted by CARDINAL different ORG . The applicant was offered a tenancy on DATE , but he refused it as he believed that the majority of the surrounding tenants were aware of his past history and claimed that he had been threatened . In DATE all CARDINAL ORG indicated that they were finding it difficult to find permanent accommodation for the applicant due to his specific housing requirements designed to minimize his exposure to women . In or around DATE the applicant refused an offer of permanent bed - sit accommodation because it shared a bathroom and toilet . In DATE the applicant decided to accept an offer of temporary accommodation .

The applicant had remained on the streets , to the detriment of his health , since his eviction from the hotel . In particular , the asthmatic condition and chest infection of which the applicant had been suffering when he first contacted ORG had deteriorated following his eviction , leading Dr PERSON to advise CLBC in DATE that the applicant should be rehoused urgently .

On DATE the applicant refused permanent bed - sit accommodation because he said he wanted a CARDINAL - bedroom flat . On DATE he was offered a secure tenancy , which he accepted subject to repairs and decorations being carried out . The applicant ’s tenancy commenced on DATE .

Some time in DATE the applicant commenced an action for breach of statutory duty and damages against CLBC . On DATE his claim was struck out by ORG as disclosing no cause of action . The applicant appealed to ORG which decided , on DATE , that the aspect of the claim concerning ORG ’s failure to provide alternative accommodation following the applicant ’s eviction should not have been struck out .

CLBC then appealed to ORG which , on DATE , allowed the appeal . In the course of delivering the leading judgment in ORG , Lord PERSON stated that :

“ The question is whether s CARDINAL ) creates a duty to Mr O’Rourke which is actionable in tort . There is no doubt that , like several other provisions in Pt III , it creates a duty which is enforceable by proceedings for judicial review . But whether it gives rise to a cause of action sounding in damages depends upon whether the LAW shows a legislative intention to create such a remedy . ”

Having considered the relevant domestic legal principles and authorities , Lord PERSON concluded that :

“ Both in principle and on the authority of the actual decision of this ORG in ORG [ DATE ] CARDINAL All ER DATE , ( ... ) I would therefore hold that the breach of statutory duty of which the plaintiff complains gives rise to no cause of action in private law and I would allow the appeal and restore the order of Judge PERSON striking out the action . ”

LAW DATE ( “ the DATE LAW ) provides in Part III , section CARDINAL(CARDINAL ) that , in respect of a person applying to a local authority , if the local authority “ have reason to believe that he may be homeless ... they shall make such inquiries as are necessary to satisfy themselves as to whether he is homeless ... ” .

Under section CARDINAL(CARDINAL ) of the DATE Act , if the authority “ have reason to believe that an applicant may be homeless and has a priority need , they shall secure that accommodation is made available for his occupation pending a decision as a result of their inquiries under section CARDINAL ” .

Both of these sections appear at Part III of the DATE Act .

Administrative decisions by public authorities are generally challengeable under LANGUAGE law by way of judicial review proceedings under LAW . Such proceedings must generally be brought within DATE of the offending decision .

LANGUAGE law recognizes a dichotomy between public authorities’ public and private law functions . In the leading case of O’Reilly v. LANGUAGE [ DATE ] CARDINAL A.C. CARDINAL , Lord PERSON stated :

“ [ I]t would ... as a general rule be contrary to public policy , and as such be an abuse of the process of the court , to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of LAW for the protection of such authorities . ”


The applicant was born in DATE and lives in GPE .

On DATE ORG upheld the applicant 's action against ORG and ordered that the ORG should :

“ ... provide PERSON , whose family comprises CARDINAL member , with separate well - equipped living LOC that meet sanitary and technical requirements , situated in the town of PERSON , having a living surface of CARDINAL square metres ” .

The judgment was not appealed against and became final .

On DATE enforcement proceedings were instituted . On DATE the bailiffs ' office informed the applicant that the judgment of DATE remained unenforced because the administration had no available housing or financial resources to purchase a flat .

The judgment of DATE was enforced on DATE when the applicant was provided with a flat measuring QUANTITY .


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

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

On DATE the applicant sued the ORG before ORG ( Sąd Wojewódzki ) , seeking payment .

The proceedings were terminated on DATE . On DATE , the date on which the application was lodged with the ORG , they were pending before ORG ( Sąd Najwyższy ) .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


Preliminary objection dismissed (victim);Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - award

Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in LOC .

While working with a circular saw on CARDINAL DATE the applicant sustained an injury in the workplace resulting in the loss of CARDINAL fingers . The injuries were of such a degree that on DATE the applicant had to retire and was awarded a disability pension .

On DATE the applicant brought a civil action against the company , S. , in ORG ( PERSON ) seeking damages in connection with the above accident . The applicant subsequently designated company ORG as the respondent because he considered it to be the legal successor of company S. , which had gone bankrupt and had been erased from the ORG register in DATE .

In a judgment of CARDINAL DATE ORG declared the applicant ’s action inadmissible for lack of jurisdiction and referred the case to ORG ( Trgovački sud u ORG ) . The applicant appealed and on DATE ORG ( Županijski sud u ORG ) quashed the first - instance decision and referred the case to ORG ( PERSON ) as the competent court .

On DATE ORG gave judgment dismissing the applicant ’s claim . The judgment was quashed upon an appeal lodged by the applicant on DATE by ORG and the case was remitted to the court of first instance .

Meanwhile , on DATE the applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) complaining about the length of the above proceedings . On DATE ORG found a violation of his constitutional right to a hearing within a reasonable time , awarded him CARDINAL NORP kunas ( HRK ) in compensation , and ordered ORG to give a decision in the case in the shortest time possible but no later than DATE following the publication of the decision in ORG . ORG decision was published on DATE .

In the resumed proceedings , on DATE ORG again gave judgment dismissing the applicant ’s claim . The applicant again appealed and on DATE ORG dismissed the appeal and upheld the first - instance judgment .

On DATE the applicant lodged an appeal on points of law ( revizija ) with ORG which was dismissed on DATE .

NORP The relevant part of LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE – “ LAW ” ) reads as follows :

Section CARDINAL

“ ( CARDINAL ) The Constitutional Court shall examine a constitutional complaint whether or not all legal remedies have been exhausted if the competent court fails to decide a claim concerning the applicant ’s rights and obligations or a criminal charge against him or her within a reasonable time ...

( CARDINAL ) If a constitutional complaint ... under paragraph CARDINAL of this section is upheld , the Constitutional Court shall set a time - limit within which the competent court must decide the case on the merits ...

( CARDINAL ) In a decision issued under paragraph CARDINAL of this section , the Constitutional Court shall assess appropriate compensation for the applicant for the violation of his or her constitutional rights ... The compensation shall be paid out of the ORG budget within DATE from the date a request for payment is lodged . ”


Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE and GPE respectively . They were represented before the ORG by Mr J. Kalista , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , from ORG .

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

In DATE a GPE company having belonged to the applicants’ family was nationalised .

On DATE the first applicant made a request to the company and ORG and its Privatisation ( GPE pro správu národního majetku a jeho privatizaci ) under LAW for restitution of the company which , according to him , had been nationalised contrary to the law then in force . He claimed restitution on his behalf and on behalf of the second applicant , who had originally owned CARDINAL of the property , and CARDINAL successors in title to the other original co - owners .

As the company apparently refused to restore the property , the first applicant brought an action in the GPE CARDINAL ORG ( okresní soud ) for its recovery .

On DATE , ORG granted the restitution action .

On DATE ORG ( městský soud ) quashed the judgment and remitted the case to ORG which , on DATE , dismissed the restitution action , finding that the first applicant had not proved that the property had been unlawfully nationalised .

On DATE ORG upheld this judgment .

On DATE ORG ( PERSON ) rejected the first applicant ’s appeal on points of law ( dovolání ) .

On DATE ORG ( GPE PERSON ) quashed ORG judgment , finding that the company had been nationalised contrary to Presidential Decree no . CARDINAL/CARDINAL and , therefore , should be restored under section CARDINAL(CARDINAL)(k ) of the Extra - Judicial Rehabilitation Act .

On DATE , ORG , being bound by the legal opinion of ORG , granted the restitution action , ordering the company to conclude a restitution agreement with the first applicant . On DATE ORG upheld this judgment in respect of the CARDINAL fourths of the property , modifying it in respect of the remaining fourth which had belonged to the second applicant .

ORG quashed ORG judgment in respect of the above fourth of the property and , at the same time , quashed the relevant part of ORG judgment of DATE .

On DATE ORG dismissed the remainder of the restitution action , holding that the second applicant was the only person who was entitled to seek restitution of the outstanding fourth of the property and , therefore , could not validly assign her restitution entitlement to the first applicant .

On DATE ORG , upheld the operative part of this judgment with certain modifications to the reasoning .

On DATE ORG dismissed the first applicant ’s constitutional appeal .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the ORG ’s decision in the case of PERSON v. GPE , no . MONEY ( dec . ) , § § CARDINAL - CARDINAL , DATE ) .


No violation of Art. 6-1 with regard to the fact that the Government Commissioner's submissions were not communicated;Violation of Art. 6-1 on account of the Government Commissioner's participation in the deliberations;Violation of Art. 6-1 on account of the length of proceedings;Non-pecuniary damage - finding of violation sufficient (fairness);Non-pecuniary damage - financial award (as regards length);Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

On DATE the applicant , who was then aged DATE , underwent a gynaecological operation under general anaesthetic at ORG .

On wakening , she suffered a neurological syndrome . In DATE that followed she suffered a further vascular accident and her shoulder was scalded when a cup of tea was upset . Since then she has been PERCENT disabled ; she is hemiplegic , has difficulty coordinating her upper limbs , can speak only with difficulty and suffers from double vision .

On DATE the applicant made an urgent application to the President of ORG seeking the appointment of an expert . In an order of CARDINAL DATE the President appointed an expert , who filed a report on DATE in which he concluded that there had not been any medical error .

On DATE ( after a preliminary claim of CARDINAL DATE had been refused ) the applicant brought an action for damages against ORG in ORG .

In submissions of CARDINAL DATE the applicant criticised the findings set out in the report of DATE and applied for a detailed , thorough expert opinion .

NORP In letters of CARDINAL DATE and CARDINAL DATE the applicant ’s lawyers sought to have the case set down for hearing . The clerk of ORG replied ( in letters of CARDINAL DATE and CARDINAL DATE ) that on account of the backlog of work , it was not currently possible to foresee the date on which the case might be set down for hearing .

The hearing was eventually listed for DATE .

In a judgment delivered on CARDINAL DATE ORG ordered further inquiries into the facts with a view to commissioning a report from a panel of CARDINAL experts .

On DATE the experts filed the following findings :

“ As regards the cerebral arterial thromboses that occurred on DATE and DATE , nothing in PERSON clinical condition or in the results of the tests made them foreseeable . The treatment of this complication was appropriate to the patient ’s state of health and in accordance with the current state of scientific knowledge . As regards the scald on the left shoulder , the experts attribute it to a lack of assistance and organisation in the department . ”

The applicant criticised that expert report and in reasoned submissions of CARDINAL DATE quantified the damage she had sustained .

At the request of ORG the hearing set down for DATE was postponed to CARDINAL DATE .

In a judgment delivered on CARDINAL DATE ORG assessed the amount of damage sustained by the applicant as a result of her scalded shoulder at MONEY and dismissed the rest of the claim for damages .

The applicant appealed against that judgment to ORG . In a judgment of DATE that court dismissed the appeal on the ground that whatever the seriousness of the consequences of the surgical operation , the circumstances of the hospitalisation had not disclosed any failure to provide information about the nature of the operation and its foreseeable consequences or any negligence or presumption of negligence in the organisation or running of the relevant department .

On DATE the applicant , represented by a member of ORG and PERSON d’Etat Bar , appealed on points of law against that judgment to the ORG d’Etat and filed full pleadings on DATE . She referred to a judgment of ORG of the ORG d’Etat of DATE that had been delivered in the meantime ( the PERSON judgment of DATE , Revue française de droit administratif DATE , p. CARDINAL ) , in which no - fault liability in hospital cases had been extended to cover the risks of treatment , and in her sole ground of appeal relied on the fact that the hospital should in her case have been found liable without fault . She submitted that there had been a causal link between the operation and the damage , that the existence of the risk had been known , even if it was statistically only a very slight one , and that she had , within the meaning of the PERSON judgment , sustained extremely serious special damage .

ORG filed a defence on DATE and the applicant replied on DATE . The hospital lodged a rejoinder on DATE .

The case was heard in public on DATE by the CARDINALth and CARDINALrd sections sitting together and considered on the basis of a report by the CARDINALth section . After hearing the observations of the reporting judge , those of the parties’ lawyers and , last , the Government Commissioner ’s submissions , the ORG d’Etat reserved judgment . Counsel for the applicant then produced a memorandum for the deliberations ( note en délibéré ) in which it was argued that the Government Commissioner had wrongly expressed doubts as to the extreme seriousness of the applicant ’s afflictions since the operation of CARDINAL DATE .

In a judgment delivered on DATE the ORG d’Etat dismissed the applicant ’s appeal on the following grounds :

“ It appears from the evidence submitted to the courts below that PERSON underwent a hysterectomy on DATE at ORG . Following that operation , which took place normally , post - operative complications , which supervened twice , caused serious , disabling after - effects and damage for which PERSON and PERSON sought compensation , relying in the courts below on mistakes that they alleged had been made by the hospital . Before this Court PERSON and PERSON have maintained for the first time that the hospital should have been held liable without fault .

On the basis of the unappealable assessment it made of the facts , ORG inevitably held that no - fault liability on the part of ORG for the damage relied on by PERSON had not been made out . In so doing , that court did not make any error of law , seeing that it is apparent from the evidence submitted to the courts below that the circumstances in which such liability could be incurred did not obtain . ”

The history of GPE ’s administrative courts is essentially that of the ORG d’Etat . In DATE ORG implemented the theory of the separation of powers and organised matters so that the executive would not be subject to the judiciary . It preserved the ancien régime principle that administrative authorities should be tried by a special court , in accordance with the idea that judging the administrative authorities was “ also an administrative act ” . Such a special court was set up by the ORG in DATE . This was the ORG d’Etat , which was instituted by LAW ( DATE ) . It was given responsibilities in CARDINAL areas : administrative ( contributing to the drafting of major enactments ) and judicial ( settling disputes connected with the administrative authorities ) .

In DATE an Act vested it with the administration of “ delegated ” justice ( la justice déléguée ) , and thereafter it accordingly gave its rulings “ in the name of the NORP people ” . During GPE the ORG d’Etat acquired an organisational pattern that it still largely has DATE . Its function was laid down in the Act of DATE , which amended the CARDINAL Act and established delegated justice permanently .

The main feature of the post - war period was the organisation of the administrative jurisdiction . In DATE the administrative courts ( of first instance ) succeeded the prefectural councils , which had existed since DATE . LAW , which contains CARDINAL ORG – CARDINAL , DATE and DATE relating to the judiciary , in particular , to provide that judges ( but not members of ORG offices ) are irremovable , does not mention the ORG d’Etat or the other administrative courts under this head . LAW of DATE , which came into force in DATE , added to the courts vested with administrative jurisdiction the administrative courts of appeal , to which the bulk of the appellate jurisdiction was transferred . From these new courts and various specialised courts , such as ORG , an appeal on points of law lies to the ORG d’Etat as the supreme administrative court .

The judges of the administrative courts have a special status different from that of the judges of the ordinary courts and the members of ORG at those courts . They are governed by the general rules on the civil service ; however , they are in practice both independent and irremovable ( see paragraph CARDINAL below ) . In DATE a decision of ORG ( DATE , ORG of DATE , p. DATE ) established the existence and independence of the administrative jurisdiction as being among the fundamental principles recognised in the laws of the LOC having constitutional rank .

The PERSON d’Etat has CARDINAL members , CARDINAL of whom work within the PERSON and CARDINAL outside it . Its nominal President is the Prime Minister and in practice the Vice - President of the PERSON d’Etat presides . By DATE paragraph , of the LAW , concerning the powers of appointment of the President of the Republic , all the senior members of the ORG d’Etat ( conseillers d’Etat ) are appointed by decree of the President of the Republic adopted in ORG , while the junior legal assistants ( auditeurs ) and the middle - ranking maîtres des requêtes are appointed by an ordinary presidential decree , under LAW CARDINAL DATE on civil and military appointments .

The members of the ORG d’Etat are recruited in CARDINAL of CARDINAL ways : through competitive examination or directly from other parts of the civil service . Legal assistants , recruited through competitive examination , are promoted to the rank of maître des requêtes after about three years’ service and become conseillers d’Etat DATE . ORG appointments are subject to approval by the Vice - President of the ORG d’Etat .

The status of the members of the ORG d’Etat is not so much laid down in writing as guaranteed in practice . As regards written rules , mention must be made of the decree of CARDINAL DATE laying down the rights and duties of members of the ORG d’Etat . These rights and duties are very similar to those applying to the civil service ( and , in particular , no provision is made for irremovability ) , with a number of exceptions : no provision is made for assessment , no promotions table is drawn up and an advisory committee replaces both ORG and ORG .

It is thus , rather , practice which provides the guarantees enjoyed by the members of the ORG d’Etat . CARDINAL traditional practices are both very long - standing and decisive : firstly , the PERSON d’Etat and its members are managed internally by ORG ( bureau ) of the ORG d’Etat , consisting of the Vice - President , the CARDINAL division presidents and the Secretary - General of the ORG d’Etat , without any outside interference . In particular , there is no distinction in the ORG d’Etat between judges and members of ORG as there is in the ordinary courts , where the members of ORG are subordinated to the Minister of ORG .

Secondly , even though there is no written provision guaranteeing the irremovability of members of the PERSON , that guarantee exists in practice . Lastly , while promotion is theoretically by selection , it is in DATE by a custom which goes back to DATE strictly by seniority , and this guarantees the members of the PERSON d’Etat great independence , vis - à - vis both the political authorities and the authorities of the ORG d’Etat themselves .

Most duties within the ORG d’Etat can be performed by members of any grade . Thus the duties of Government Commissioner , although generally given to maîtres des requêtes , can also be carried out by auditeurs or conseillers d’Etat .

The Act of DATE instituted a ORG , whose membership ensures that it is independent and representative . The ORG has a general advisory role in relation to matters concerning the staff of all the administrative courts ( individual measures affecting judges’ careers , promotion and discipline ) .

Procedure in the administrative courts has developed essentially under the influence of the courts themselves . It attempts to achieve a compromise between the public interest – represented in the proceedings by the administrative authorities DATE and the interests of individuals , who must be effectively protected from misuse of public authority . The procedure is inquisitorial , written and inexpensive , and its distinctive feature is that CARDINAL of the parties is a public body .

The ORG d’Etat consists of CARDINAL administrative divisions ( ORG , ORG , ORG , Social , and ORG ) and a ORG , itself subdivided into CARDINAL sections ( sous - sections ) .

Where a case has been assigned to a section , the president of the section appoints one of its members as reporting judge to examine the case . After careful study of the file the reporting judge draws up a draft decision . The draft is accompanied by a memorandum whose purpose is to set out the reasoning leading from the application to the draft . The memorandum includes a consideration of admissibility issues ( including jurisdiction and verification that there is no defect rendering the application inadmissible as a matter of public policy ) and must answer each ground raised in the application , with reference either to the evidence or to legal provisions or to case - law . The reporting judge appends to the memorandum a copy of the provisions and case - law relied on in the draft decision .

The file subsequently goes to the reviser , an office assumed in each section by the president or CARDINAL of the other CARDINAL assesseurs constituting the bench . The reviser re - examines the evidence and forms a view as to how the case should be decided . He may himself prepare another draft decision in the event of disagreement with the reporting judge . Once the draft decision has been revised , the case is listed for consideration at a preparatory sitting of the section , at which it will be discussed in the presence of the Government Commissioner , who does not , however , take part in the vote on the draft . Only when the draft decision has been adopted by the section will the file be forwarded to the Government Commissioner to enable him either to prepare his submissions or to ask for a fresh preparatory sitting to be convened or for the case to be transferred to a differently constituted court .

The institution of Government Commissioner dates from an ordinance of CARDINAL DATE . Originally , as its name indicates , it was designed to represent the government ’s point of view , but that function very rapidly disappeared ( at the latest in DATE ) . The title has remained but is now a misnomer . Since then the institution has become , to the outside observer , CARDINAL of the most distinctive features of NORP administrative justice , in particular because ORG rapidly established themselves as judicial officers totally independent of the parties .

The Government Commissioner plays a traditionally very important role in the creation of administrative case - law and most of the major judicial innovations have come about as a result of celebrated submissions by the Government Commissioner . Furthermore , given that the judgments of the PERSON d’Etat are always drafted very elliptically , it is often only by reading the submissions of the Government Commissioner , where published , that one can discern the ratio decidendi of the judgments .

By the terms of Decree no . CARDINAL - CARDINAL of DATE on the organisation and functioning of the ORG d’Etat , ORG are taken from among the maîtres des requêtes and auditeurs at the ORG d’Etat or , exceptionally , from among the conseillers . By Article R CARDINAL - CARDINAL of FAC , they are appointed by a decree of the Prime Minister , adopted on a proposal by the Minister of Justice , after being put forward by the Vice - President of the ORG d’Etat in consultation with the division presidents . In practice , the PERSON d’Etat ’s proposals are always endorsed . Appointment as Government Commissioner DATE which is not a rank – is for an unlimited duration but a Government Commissioner can not remain in post for DATE and in practice does not generally do so for CARDINAL or three years .

There are CARDINAL Government Commissioners for each of the CARDINAL sections that make up ORG but there is no hierarchy of ORG , who do not constitute a separate “ corps ” .

The Government Commissioner is a member of the ORG d’Etat who is attached to the section from which the bench designated to hear a case is constituted and he attends – without voting and generally without speaking – the sitting at which the cases are prepared for trial , when the cases are presented by the reporting judges , and he receives a copy of the draft judgment adopted by the section and revised by the reviser . When his view of a case differs from that of the section , he can come and discuss it with the section at another preparatory sitting . If the disagreement remains and he considers that the case is of sufficient importance , he has the right ( rarely exercised in practice ) to request that the case should be referred to ORG or to ORG ( Article CARDINAL of the decree of DATE on the organisation and functioning of the ORG d’Etat ) . Only after that will he prepare his submissions for the actual trial , which is open to the public . These submissions , which are generally exclusively oral ones , are not communicated either to the parties or to the reporting judge or to the members of the trial bench .

It has become an established practice to communicate to lawyers who so request , before the hearing , the general tenor of the submissions which the Government Commissioner will make at the hearing . In view of the number of cases to be tried ( CARDINAL a year for each Government Commissioner ) , the Government Commissioner ’s submissions , which remain his exclusive property , are often solely oral . He has complete freedom as to whether or not to place those he has decided to put in writing in the ORG d’Etat ’s archives or to publish them in important cases as an annex to ORG d’Etat judgments reported in the official reports or in legal periodicals .

At the hearing the Government Commissioner is under an obligation to make his submissions , which must be reasoned , since he is not allowed to say that he wishes to leave matters to the court ’s discretion .

The Government Commissioner ’s role at the hearing was described as follows by a former member of the ORG d’Etat , PERSON , in DATE :

“ Once the case has reached the public hearing , and the reporting judge has read his report , which is merely a summary of the evidence and makes no mention of the section ’s opinion , and the lawyers have made oral submissions if they considered it appropriate , the Commissioner stands up and is the one who speaks last , even after counsel for the defence . He sets out the whole case , making a critical analysis of all the grounds and of all the case - law that could be relied on ; often he will indicate how the case - law has developed , highlighting the stages it has already gone through and hinting at possible future developments . Lastly , he will submit that the application should be dismissed or allowed . He does so in his own name , without any obligation to share the section ’s opinion or to take instructions either from ORG ( for there is none ) or from any superior , presiding judge or minister . He is answerable only to his own conscience . He is a vital cog in the machinery of administrative procedure , which perhaps owes its real distinctiveness to him . The submissions in many cases go far beyond the bounds of the individual case and amount to legal treatises , to which litigants and commentators will long refer . ”

In the terms used by the ORG d’Etat itself ( DATE , Gervaise , PERSON , p. CARDINAL , reiterated on DATE in ORG ) the Government Commissioner ’s function is

“ to set out for the PERSON the issues which each application raises for decision and to make known , by making his submissions completely independently , his own assessment , which must be impartial , of the facts of the case and the applicable rules of law , together with his opinion as to whether the manner in which , according to his conscience , the case submitted to the ORG to which he belongs should be disposed of . ”

At the hearing , therefore , the parties to the case can not speak after the Government Commissioner , since he speaks after counsel for the opposing parties have addressed the court . Even if they are not represented by a lawyer , they do , however , have the possibility , hallowed by usage , of sending the trial bench a “ memorandum for the deliberations ” to supplement the observations they have made orally or to reply to the Government Commissioner ’s submissions . This memorandum for the deliberations is read out by the reporting judge before he reads out the draft judgment and before the discussion begins .

Furthermore , it is settled case - law of the ORG d’Etat that if the Government Commissioner were to raise a ground DATE even CARDINAL involving an issue of public policy DATE that had not been relied on by the parties during the proceedings , the presiding judge would stay the proceedings , communicate the ground to the parties so that they could present argument on it , and relist the case for a fresh hearing DATE , since grounds raised of the court ’s own motion have to be notified to the parties .

After the public hearing it is customary for the Government Commissioner to attend the deliberations but he has no vote . As a general rule , he intervenes orally only to answer any specific questions that are put to him . He is , after all , the member of the ORG who has seen the case file most recently and is therefore supposed to have the most detailed knowledge of it .

Cases in the ORG d’Etat may be tried either by a single section ( and in that event all the members of the trial bench already know the case ) or by combined sections ( in that event , CARDINAL members , representing the section which prepared the case for trial , out of the CARDINAL judges who have to deliberate on it know the case ) or by ORG or ORG ( so - called solemn constitutions of the court for hearing the most important cases ) , in which only the President and the reporting judge , out of the CARDINAL judges who will have to deliberate on it , know the case .

Lastly , it should be pointed out that there are Government Commissioners not only at the ORG d’Etat but also at the other administrative courts ( of first instance and appeal ) and at ORG . Furthermore , the function of Advocate General at ORG of ORG was closely modelled on the institution of Government Commissioner , with the difference that under LAW , only the judges who sat at the hearing may take part in the deliberations – to the exclusion , therefore , of ORG .

In connection with the hearing of a reference for a preliminary ruling made to ORG at ORG by a NORP court ( the Arrondissementsrechtbank te ‘ s - Gravenhage ) , Emesa Sugar ( Free Zone ) GPE ( a company ) , relying on LAW , applied on DATE to submit written observations after the Advocate General had delivered his opinion at the hearing on DATE .

In an order of CARDINAL DATE ORG refused that application on the following grounds :

In accordance with Articles CARDINAL and CARDINAL of LAW , ORG consists of ORG and is assisted by Advocates General . LAW lays down identical conditions and the same procedure for appointing both Judges and Advocates General . In addition , it is clear from Title I of LAW of ORG , which , in law , is equal in rank to the LAW itself , that the Advocates General have the same status as the ORG , particularly so far as concerns immunity and the grounds on which they may be deprived of their office , which guarantees their full impartiality and total independence .

NORP Moreover , the Advocates General , none of whom is subordinate to any other , are not public prosecutors nor are they subject to any authority , in contrast to the manner in which the administration of justice is organised in certain Member GPE . They are not entrusted with the defence of any particular interest in the exercise of their duties .

The role of the Advocate General must be viewed in that context . In accordance with LAW , his duty is to make , in open court , acting with complete impartiality and independence , reasoned submissions on cases brought before ORG , in order to assist ORG in the performance of the task assigned to it , which is to ensure that in the interpretation and application of the LAW , the law is observed .

Under LAW of LAW of ORG and LAW , the Opinion of the Advocate General brings the oral procedure to an end . It does not form part of the proceedings between the parties , but rather opens the stage of deliberation by ORG . It is not therefore an opinion addressed to the judges or to the parties which stems from an authority outside the ORG or which ‘ derives its authority from that of the procureur général ’s department ... ’ ( judgment in GPE v. GPE , cited above , paragraph CARDINAL ) . Rather , it constitutes the individual reasoned opinion , expressed in open court , of a Member of ORG itself .

The Advocate General thus takes part , publicly and individually , in the process by which the ORG reaches its judgment , and therefore in carrying out the judicial function entrusted to it . Furthermore , the ORG is published together with the ORG ’s judgment .

Having regard to both the organic and the functional link between the Advocate General and the ORG ... , the aforesaid case - law of ORG does not appear to be transposable to the Opinion of the Court ’s Advocates General .

NORP Moreover , given the special constraints inherent in Community judicial procedure , connected in particular with its language regime , to confer on the parties the right to submit observations in response to the Opinion of the Advocate General , with a corresponding right for the other parties ( and , in preliminary ruling proceedings , which constitute the majority of cases brought before the Court , all the Member States , the Commission and the other institutions concerned ) to reply to those observations , would cause serious difficulties and considerably extend the length of the procedure .

Admittedly , constraints inherent in the manner in which the administration of justice is organised within the ORG can not justify infringing a fundamental right to adversarial procedure . However , no such situation arises in that , with a view to the very purpose of adversarial procedure , which is to prevent the ORG from being influenced by arguments which the parties have been unable to discuss , the ORG may of its own motion , on a proposal from the Advocate General or at the request of the parties , reopen the oral procedure , in accordance with LAW , if it considers that it lacks sufficient information , or that the case must be dealt with on the basis of an argument which has not been debated between the parties ...

In the instant case , however , ORG ’s application does not relate to the reopening of the oral procedure , nor does it rely on any specific factor indicating that it would be either useful or necessary to do so . ”