The applicant is a NORP national , born in DATE and living in GPE ( GPE ) .

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

From DATE to CARDINAL DATE the applicant was serving in the former NORP foreign army during the Second World War . After the Second World War , DATE and DATE , he was serving in the regular NORP army . In DATE he suffered injuries , as confirmed the former ORG ( GPE národní obrany ) on DATE .

On DATE the applicant was dismissed from the army , allegedly without any reasons . Shortly afterwards , he was arrested and detained in the territory of former GPE . On an unspecified date , the applicant left GPE to live in GPE and GPE . It is not clear when he returned to the GPE where he had been living before the Second World War .

On DATE the former ORG of the former NORP and ORG agreed that the applicant had been dismissed from the army for the reasons set out in section CARDINAL of the Extra - Judicial Rehabilitation Act . The ORG delivered the certificate for the purposes of awarding damages to the applicant under LAW .

On an unspecified date , the applicant applied to the NORP authorities for a pension , pursuant to LAW . By letter of ORG CARDINAL DATE from the ORG of rehabilitation and appeal of the former ORG ( Oddělení rehabilitační a odvolací GPE ministerstva obrany ) , the applicant was informed that the ORG had received his appeal against the decision of ORG ( NORP rehabilitační komice ) and that he would be notified of the result of his appeal .

The applicant has not submitted any relevant documents concerning these matters .

Extra - Judicial Rehabilitation Act No . CARDINAL/CARDINAL

Section CARDINAL(CARDINAL)(e ) of the Extra - Judicial Rehabilitation Act provides that any legal operation by which the employment relationship was terminated during the period from CARDINAL DATE to DATE , in particular , an agreement on the severance of the employment relationship , is considered void if the termination was carried out as a result of political persecution or violated generally recognised human rights and freedoms .

Section CARDINAL provides inter alia that if the severance of the employment relationship is void under section DATE , the period between the termination of this employment relationship and the date on which the person concerned presents his or her claim to retirement or disability benefit is considered as a period of employment .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and is now serving a prison sentence in PERSON correctional colony .

On DATE he was arrested . On DATE the prosecutor ’s office of LOC of GPE authorised his detention on charges of inflicting severe injuries which had caused the death of the victim .

By a judgment of DATE , ORG of GPE convicted the applicant as charged and sentenced him to DATE and CARDINAL months’ imprisonment in a correctional colony with a special regime . On DATE ORG upheld the judgment on appeal .

During the relevant periods the applicant was detained in the following detention facilities . From DATE to DATE he was held in the temporary detention facility at Novosheshminskiy police station ( изолятор временного содержания Новошешминского РОВД ) . He was then transferred to PERSON remand centre ( следственный изолятор ИЗ-CARDINAL/CARDINAL LOC управления NORP службы исполнения наказаний по PERSON ) where he was held from DATE , except for a short period from DATE , which he spent in the temporary detention facility at Novosheshminskiy police station . From DATE to CARDINAL DATE he was held in Chistopol UE-CARDINAL/T prison ( тюрьма УЭ-CARDINAL/Т г. PERSON ) .

The parties’ descriptions of the conditions of the applicant ’s pre - trial and post - trial detention significantly differ on a number of counts .

The applicant was detained in the temporary detention facility at Novosheshminskiy police station , in CARDINAL different cells , from DATE to DATE .

As the facility was only used for temporary detention , the cells were not equipped with sanitary facilities . Therefore the applicant had restricted access to a toilet and was only able to go to the lavatory , under escort , to a special room , twice a day . The authorities did not allow his relatives to bring him any necessary toiletries , which meant that for DATE he did not have toothpaste , a toothbrush or a shaver . Nor could he take a shower , because the facility did not have one .

The cell windows were fitted with grilles which restricted natural light . The artificial lighting was provided by CARDINAL light bulbs . The ventilation in the cells was very poor , if there was any . The applicant was not allowed outdoor exercise even once during the entire period of his detention . He was given only DATE and was almost starving . Although he had been suffering from a cardio - vascular problem and coughing spells , he was refused medical assistance .

The applicant was again kept in this facility on DATE . Protesting against inhuman treatment , on DATE he slit his wrists but was rescued . DATE he refused to return to PERSON remand centre . His refusal angered the police officers , who beat him up and sent him back to the remand centre .

The applicant complained several times to prosecutors at different levels of authority of appalling conditions of detention and ill - treatment , but all to no avail . He particularly stressed that instead of the relatively short period of time which had been established by the relevant law , that is to say DATE , he had been kept in a temporary detention facility for DATE in appalling conditions .

According to the Government , throughout the time he was in the temporary detention facility the applicant was held in cell no.CARDINAL , measuring QUANTITY with CARDINAL sleeping places and cell no . CARDINAL , measuring QUANTITY with CARDINAL sleeping places . The exact number of inmates held with the applicant could not be established but , in any event , the design capacity of the cells was never exceeded . The applicant was provided with an individual sleeping place . PERSON was available on demand though it is unclear whether he chose to use any .

In view of the fact that the facility was intended for short - term detention , the cells were not equipped with sanitary facilities . Inmates were allowed to go to the toilet twice a day , or more often when necessary . A shower was not provided . The facility was monitored and regularly fumigated by a special sanitary service .

The cells had central heating . Information about the average inside temperature at the material time could not be provided owing to the destruction of the relevant files . However , according to a report issued by the management of the police station , on DATE the temperature in the cells was QUANTITY and it was QUANTITY in the corridor .

The cells were lit with natural light coming from glazed windows measuring QUANTITY and with incandescent lighting of QUANTITY . In addition to the natural ventilation provided by the windows , the cells were equipped with ventilation shafts .

The applicant was allowed TIME exercise DATE .

While he was detained there he was twice assisted with medical problems , on DATE for alcohol withdrawal and on DATE for a self - inflicted injury . Both times he was treated at the scene by ambulance staff and then taken to a local hospital .

No information was submitted by the Government in respect of the food provided to the inmates .

The applicant was held in PERSON detention facility from CARDINAL DATE to DATE , except for a short period from CARDINAL to CARDINAL DATE .

According to his submissions , at the material time the cells where he was detained measured CARDINAL x QUANTITY on average , had CARDINAL beds and accommodated QUANTITY inmates , who had to take turns to sleep and were not provided with personal bedding . The lights were permanently on . The windows had no glass and were sealed with metal shutters . It was very hot in DATE and freezing in DATE . The toilet was placed very close to the dining table , with no privacy . Despite regular complaints about insects , the administration took no action to fumigate the cells . A shower was available DATE . No outside exercise was offered to the applicant . The GPE food consisted mainly of vegetables and soya products . The medical assistance was inadequate .

Relying on a certificate dated DATE issued by the facility management , the Government submitted that the applicant had been held in CARDINAL cells :

- cell no . CARDINAL , measuring QUANTITY . m and accommodating CARDINAL inmates including the applicant ;

- cell no . CARDINAL , measuring QUANTITY . m with CARDINAL sleeping places ;

- cell no . CARDINAL , measuring QUANTITY m , with CARDINAL sleeping places .

In cell no . CARDINAL the applicant was detained from DATE . Due to the destruction of the facility ’s records on the expiry of the statutory storage time - limit , it was not possible to establish the exact periods during which the applicant was detained in the other CARDINAL cells and the exact number of inmates detained with him .

All cells were equipped with a sink and a lavatory separated from the living area by a partition of not QUANTITY in height . Showers were available once a week with a simultaneous change of bedding . The inmates were provided with washbowls for their hygiene needs . The water was supplied centrally and could be heated with electric heaters .

The cells were ventilated through casement windows and in addition were equipped with ventilation shafts . The cells were aired DATE , while the inmates were having their exercise . The average temperature and level of humidity met sanitary and hygiene requirements .

The windows were not covered with metal shutters , as a result there was enough natural light to allow reading and writing . The cells were also equipped with lamps which could be turned on when necessary . The lamps were covered with a protective fitting . During the night , the artificial lighting was dimmed .

The cells were fumigated regularly , with the assistance of a special sanitary service when necessary , and the detainees never complained about insects or rats .

The food met official nutritional standards . The quality of the food was controlled by the facility ’s medical unit . In addition , the applicant could receive parcels and could buy food and other things from the facility ’s shop .

During his detention the applicant was provided with an individual sleeping place , bedding , cutlery and utensils . He had an TIME ’s DATE exercise . His state of health was monitored regularly and he was provided with medical assistance when necessary . He never complained about the conditions of his detention while in PERSON .

According to the applicant , at the time of his detention , that is from DATE to CARDINAL DATE , the facility served as a prison . Later it was converted into a pre - trial detention centre . Due to this , the size and the configuration of the cells changed .

At the material time the cells were severely overcrowded . Cell no . CARDINAL measured QUANTITY and accommodated over forty inmates . CARDINAL - tier bunks , CARDINAL tables and a lavatory left almost no space in which to move . He did not have an individual sleeping place and had to share a bunk with other inmates . Due to the large number of people , access to the lavatory was restricted . The water supply was often cut off . There was no ventilation . Windows were completely sealed by metal shutters and let no air or daylight in . The inmates did not have enough oxygen . The cells were stuffy and unbearably hot during DATE . The facility ’s exercise yards were very small , surrounded by solid concrete walls which prevented the free flow of air . Therefore , outside exercise was scarcely any different from staying in .

The insufficient lighting , either natural or artificial , impaired the applicant ’s eyesight which diminished by CARDINAL dioptres and continued to deteriorate . The inmates had to wash their bedding and clothing themselves . For this each of them was given a small piece of soap and had to share with others one tiny electric heater for warming the water . The inmates were only allowed to shower irregularly , that is once every CARDINAL , DATE or DATE . These unhygienic conditions resulted in skin diseases .

The food was very poor and consisted mainly of green tomatoes , cabbage and soya products . The applicant was later diagnosed with dystrophy . Medical assistance was inadequate and it was very difficult to arrange appointments with specialists .

The convicts were treated very badly and were often beaten up . On DATE special armed forces ( “ спецназ ” ) arrived in the colony and proceeded systematically to beat up the inmates , including the applicant .

Referring to a certificate of DATE issued by the management of the facility , the Government submitted that the applicant had been held in cell no . CARDINAL , measuring QUANTITY . m and accommodating CARDINAL inmates including the applicant , and in cell no . CARDINAL , measuring QUANTITY and accommodating CARDINAL inmates including the applicant .

The ORG further submitted that , at the material time , according to a certificate of DATE issued by the governor of the facility , the cells had been equipped with a sink and a lavatory separated from the living area by a partition at least QUANTITY high . Showers were available once DATE with a simultaneous change of bedding .

The ventilation was natural , through casements in the windows . In addition , the cells were equipped with ventilation shafts . The cells were aired on a DATE basis , for TIME , while the inmates were having their outside exercise . Overall , the temperature and humidity levels met sanitary and hygienic requirements . The windows were not covered with metal shutters but were reinforced with metal grilles . The cells were equipped with lamps which were turned on when necessary . The lamps were covered with a protective fitting . During TIME the artificial lighting was dimmed .

On arrival at the facility all convicts were provided with an individual sleeping place and bedding . The cells were fumigated regularly with the assistance of a special sanitary service when necessary , and the inmates had never complained about insects and rats .

Nutrition met official standards . Hot meals were provided CARDINAL times a day . The quality of the food was controlled by a commission comprised of a worker from the facility ’s medical unit and CARDINAL of the governor ’s deputies . During DATE , the applicant was given health food .

The applicant had an hour and a half ’s outside exercise every day . The space in the exercise yards was commensurate with the number of actual users .

During his imprisonment the applicant consulted doctors on a number of occasions and received all necessary and adequate medical treatment . The entries made in the applicant ’s medical case file submitted by the Government reflected that in DATE , DATE and DATE and DATE , DATE and DATE he was attended by a general practitioner , a phthisiologist and an ophthalmologist ; in DATE he was treated for bronchitis . Throughout the period in question he had CARDINAL X - ray examinations and was prescribed various medicines , including antibiotics , antipyretic drugs and vitamins .

No special armed forces were sent to the facility on DATE .

Section CARDINAL of the Law on Detention ( Federal Law no . CARDINAL-FZ of DATE ) provides that persons detained in accordance with a court order should be held in remand centres .

According to section CARDINAL , persons whose detention has not yet been ordered by a court with jurisdiction should be held in temporary detention facilities . In exceptional circumstances , persons detained in remand centres can be transferred to and detained in temporary detention facilities for a period of no longer than DATE in DATE ( section CARDINAL ) .

Section CARDINAL provides that detainees should be kept in conditions which satisfy health and hygiene requirements . They should be provided with an individual sleeping place and be given bedding , tableware and toiletries . Each inmate should have QUANTITY of personal space in his or her cell . Detainees should be given sufficient free food to keep them in good health in line with the standards established by ORG of GPE ( Article CARDINAL ) .

DATE . According to Article CARDINAL , prisoners are housed in locked shared cells to which they are assigned on the basis of perceived security risk . They are allowed out of their cells for TIME a day if they are on the strict regime and TIME if they are on the ordinary regime . The inmates exercise in cell groups and in a designated area . A prisoner ’s exercise privileges can be stopped at any time if he breaks internal rules .


The applicant was born in DATE and lives in GPE .

On DATE the applicant lodged a paternity and alimony suit against PERSON . before the Petrogradskiy District Court of GPE .

At the first hearing that took place on DATE the court granted the respondent ’s motion for transfer of the case to the ORG of GPE ( “ the ORG ” ) . According to the ORG , the applicant ’s representative left this decision to the court ’s discretion .

After holding a meeting with the parties on DATE , the court scheduled the first hearing for DATE . However , on that date the hearing was adjourned to CARDINAL DATE to give the applicant time to procure additional evidence . The hearing of DATE did not take place due to the respondent ’s illness .

On DATE the applicant and the respondent requested that the hearing be postponed due to their illness and the respondent ’s counsel ’s vacation .

The hearing of DATE did not take place due to the judge ’s involvement in different proceedings and the respondent ’s inability to appear due to a business trip .

The hearing of DATE was adjourned due to the applicant ’s misconduct in the courtroom . The judge summoned the police who took the applicant to a police station for questioning and released soon afterwards . On an unspecified date the authorities instituted criminal proceedings against her .

The hearing of DATE did not take place due to the judge ’s illness . At the next hearing of DATE the court granted the applicant ’s motion for an outpatient DNA testing and stayed the proceedings . After the applicant challenged the decision to stay the proceedings , the case was remitted to ORG for repeat examination of her motion for a DNA testing . The next hearing scheduled for DATE was adjourned to obtain medical evidence in respect of the respondent .

NORP The hearing of DATE was adjourned due to the respondent ’s default in appearance and lack of results for the court ’s inquiry .

On DATE the investigator imposed on the applicant an undertaking not to leave . DATE he put the applicant on the wanted list and stayed the preliminary investigation .

The hearings of DATE and DATE did not take place due to the judge ’s illness .

On DATE the applicant asked to postpone the hearing due to her own illness .

On DATE ORG left the claims without consideration ruling that the parties had failed to appear in court twice for no plausible reasons . This decision was overturned on the applicant ’s appeal on DATE for unspecified reasons .

Once back to ORG , the case was assigned to a different judge due to the termination of the previous judge ’s term in office .

At the next hearing of CARDINAL DATE the court again ordered a DNA testing and stayed the proceedings .

On DATE the respondent motioned for transfer of the case to LOC where he had relocated .

On DATE the applicant motioned for transfer of the case to GPE where she had relocated with her child .

On DATE ORG sent a letter rogatory to a competent LOC court asking that the latter order a local expert bureau to take the applicant ’s and her child ’s blood samples and send them to an expert bureau in GPE . A similar letter rogatory was sent to a court in LOC in respect of the respondent . However , the parties never appeared at the expert bureaus .

On DATE ORG declared the investigator ’s decision to put the applicant on the wanted list unlawful . Both this decision and the decision to stay the investigation were revoked on DATE by the higher investigation body . Subsequently , the investigation against the applicant was resumed and stayed on several occasions .

The parties did not appear at the next court hearing scheduled for CARDINAL DATE .

On DATE the court ordered an expert examination of the medical documents . It also decided that the parties should have their blood samples taken in GPE and sent a letter rogatory to an FAC court for questioning of certain witnesses .

The next hearing scheduled for CARDINAL DATE was adjourned to give the applicant time to obtain additional evidence .

The hearing of CARDINAL DATE did not take place as the parties did not appear . The hearing of DATE was adjourned to obtain additional evidence . The court also sent another letter rogatory for questioning of a certain witness and an inquiry in respect of the respondent . On DATE and then on DATE the court ordered additional expert examinations and stayed the proceedings .

On DATE ORG dismissed the applicant ’s claims as unfounded . On DATE GPE decided that the applicant had not been duly notified of the date and whereabouts of the expert examination scheduled for DATE , set the judgment aside on appeal and required a new hearing .

On DATE ORG sent the case materials for the DNA testing and notified the parties of its date and whereabouts . However , on DATE and CARDINAL DATE only the respondent appeared at the expert bureau .

On DATE ORG again disallowed the applicant ’s claims as unfounded . The judgment was upheld on appeal by GPE on DATE .

The Government submitted that the authorities were considering termination of the criminal proceedings against the applicant as time - barred .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Lawful arrest or detention;Procedure prescribed by law;Article 5-1-a - Conviction)

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE . He is currently detained in ORG .

On DATE the GPE am ORG convicted the applicant on CARDINAL counts of murder and sentenced him to CARDINAL years’ imprisonment . It found that the then DATE applicant , acting with full criminal responsibility , had killed the parents of his girl - friend in DATE by stabbing them CARDINAL times following a quarrel . He was released from prison in DATE .

On DATE ORG convicted the applicant of homicide . It sentenced him to DATE and CARDINAL months’ imprisonment and ordered his placement in a psychiatric hospital under LAW ( see paragraph CARDINAL below ) . It found that in DATE , the applicant had killed his former partner by stabbing her CARDINAL times following a clash caused by the fact that his former partner had started an intimate relationship with a tenant living in their house . The applicant had subsequently attempted to kill himself .

ORG , having consulted experts Sch . and PERSON , further considered that the applicant ’s placement in a psychiatric hospital had to be ordered . It found that the applicant had committed his offence with diminished criminal responsibility ( LAW ; see paragraph CARDINAL below ) . His capacity to control his acts had been substantially diminished upon commission of the act owing to a profound consciousness disorder ( tiefgreifende GPE ) . He suffered from a serious personality disorder characterized by violent outbursts which led to his diminished capability to control his acts . Having regard to his condition , it was to be expected that the applicant would kill again if he found himself in a similar conflict situation in a relationship . The court mitigated the applicant ’s prison sentence owing to the fact that he had acted with diminished criminal responsibility ( LAW , see paragraph CARDINAL below ) . As the applicant did not lodge an appeal on points of law , the judgment became final .

The applicant served DATE of his prison sentence . On DATE he was then transferred to ORG . In subsequent proceedings for review of the applicant ’s detention , the medical director of that hospital came to the conclusion that the applicant had been wrongfully placed in a psychiatric hospital as he had never suffered from a persisting pathological mental disorder . He was an “ accentuated personality ” whose profile was still normal and did not suffer from a personality disorder as defined by ORG . He lacked true motivation to complete a therapy aimed at resolving crisis situations in relationships . It was therefore very likely that he would commit another capital offence in the context of a serious crisis in a relationship if released . The court dealing with the execution of sentences thereupon ordered the applicant ’s retransfer to ORG in DATE , where the applicant served the remainder of his prison sentence .

On DATE the GPE am ORG ( file no . CARDINAL Ws CARDINAL/CARDINAL ) dismissed the applicant ’s appeal against the decision of ORG of DATE . The latter had decided not to suspend the remainder of the applicant ’s prison sentence and grant probation and not to declare the applicant ’s placement in a psychiatric hospital terminated .

ORG noted that ORG had consulted a psychiatric expert , PERSON In his report dated DATE , the latter had found that at the time of his act , and contrary to the conclusions drawn by ORG , the applicant had not suffered from a serious personality disorder diminishing his criminal responsibility . Agreeing with psychiatric experts who had examined the applicant in DATE , expert S. considered that the applicant did not suffer from a serious mental abnormality ( LAW ; see paragraph CARDINAL below ) . From a medical point of view , his detention in a psychiatric hospital was therefore not justified .

ORG considered , however , that the applicant ’s detention in a psychiatric hospital was not to be declared terminated . It noted that the order for the applicant ’s placement in a psychiatric hospital by the sentencing court was the result of an erroneous legal qualification of the applicant ’s condition on the basis of a correct factual basis . This assessment could not be corrected by the courts dealing with the execution of sentences as doing so would violate the constitutional principle of the finality of judicial decisions .

Since DATE the applicant , having fully served his prison sentence , is detained in a psychiatric hospital , initially in GPE .

On DATE ORG , in review proceedings under LAW ( see paragraph DATE below ) in which the applicant was represented by counsel , declined to suspend the order for the applicant ’s confinement in a psychiatric hospital and to grant probation .

ORG noted that in the submissions of the medical director of ORG , there was still a risk that the applicant , who had already killed CARDINAL people , committed similar offences if released . However , that risk did not stem from a mental abnormality of the applicant , but from certain characteristics of his personality which permitted an escalation in a crisis within a relationship . Therefore , the medical director of the psychiatric hospital had suggested the applicant ’s retrospective preventive detention ( see paragraphs QUANTITY below ) .

ORG had further consulted a psychiatric and neurological expert , PERSON The latter had found in his report of CARDINAL DATE that the applicant suffered from a personality disorder characterized by emotional instability and a disposition to react in an uncontrolled violent manner . That disorder was not pathological and was , from a psychiatric point of view , not a serious mental abnormality ( see LAW ) . He agreed in this respect with the findings of psychiatric experts PERSON ( consulted in DATE ) and ORG . ( consulted in DATE ) who had equally found that the applicant did not suffer from a pathological personality disorder for the purposes of LAW . Expert PERSON further considered that the applicant , who had not learnt to deal with conflicts arising in relationships since his past offences , had a disposition to and was liable to commit similar offences as the one which had led to his placement in a psychiatric hospital if released .

ORG noted that it was impossible from a legal point of view to order the applicant ’s retrospective preventive detention under Article DATE of LAW ( see paragraphs CARDINAL below ) . In particular , there was no new evidence indicating that the applicant was particularly dangerous . Furthermore , the court was legally precluded from taking into account the applicant ’s conviction in DATE on CARDINAL counts of murder as a previous conviction , as it dated back too long . ORG had accordingly withdrawn its requests to declare the applicant ’s confinement in a psychiatric hospital terminated and to order his retrospective preventive detention .

ORG considered that the applicant ’s continued detention in a psychiatric hospital had to be ordered . It noted that expert PERSON had confirmed previous findings to the effect that the order made by the sentencing ORG for the applicant ’s detention in a psychiatric hospital was based on an erroneous legal qualification on the basis of correctly established facts .

ORG argued that this situation differed from a situation in which the sentencing court had wrongly established the relevant facts as to a person ’s diminished criminal responsibility . In the latter case , a person who had never suffered from defects warranting placement in a psychiatric hospital could not be expected to undergo psychiatric treatment independently of his criminal guilt . In that case , the termination of the confinement by the courts dealing with the execution of sentences made it unnecessary for the person concerned to request the reopening of the criminal proceedings .

Conversely , in the present case , the courts dealing with the execution of sentences would breach the constitutional principle of the finality of judgments if they replaced the legal qualification of the facts by the sentencing court by their own legal qualification . A reopening of the proceedings was not possible in these circumstances . ORG further considered that Article CARDINAL § CARDINAL , read in conjunction with Article CARDINAL of LAW ( see paragraphs DATE and CARDINAL below ) , just as the caselaw previously established on that issue ( see paragraphs CARDINAL below ) , concerned only the order for placement in a psychiatric hospital based on a wrong establishment of the facts .

ORG , endorsing the findings of expert PERSON , further found that the applicant ’s continued detention was necessary as the applicant was still dangerous to the public . As there was a risk that the applicant would kill a person for the fourth time if released , his detention was not disproportionate .

The applicant appealed against ORG decision . He argued that his detention in a psychiatric hospital had to be declared terminated under LAW of LAW as he did not suffer from a disorder which had to be considered as pathological . Therefore , his placement in a psychiatric hospital could not be justified under LAW .

On DATE the GPE am ORG dismissed the applicant ’s appeal . It found that the applicant ’s detention was not to be terminated under Article CARDINAL § CARDINAL of LAW . It noted that expert PERSON , consulted by ORG , had found in accordance with all experts consulted previously that the applicant suffered from a personality disorder characterized by emotional instability . His tendency to uncontrolled outbursts of fury or violence and his inability to control his conduct was not , however , pathological . The applicant ’s unchanged condition was not a persisting disorder which fell within the ambit of LAW .

Referring to its decision dated DATE ( see paragraphs CARDINAL above ) , ORG found that the applicant ’s placement in a psychiatric hospital was not the result of an erroneous establishment of the relevant facts , that is , the diagnosis of the applicant ’s condition . It was the result of an erroneous legal qualification of the applicant ’s condition on the basis of correctly established facts . The sentencing court had qualified the applicant ’s offence as being the result of a serious personality disorder and had ordered the applicant ’s detention in a psychiatric hospital without taking into account that a disorder for the purposes of LAW had to be a persisting condition . However , this erroneous legal assessment was to be corrected in proceedings following an appeal on points of law . It could no longer be corrected in the proceedings dealing with the execution of a sentence as doing so would violate the constitutional principle of the finality of legal decisions .

The Court of Appeal further confirmed that the newly enacted LAW § CARDINAL of LAW did not alter that conclusion . Referring to its previous decisions ( including , in particular , its decision of DATE , file no . CARDINAL Ws DATE , see paragraph CARDINAL below ) , it considered that that provision , which did no more than codify the case - law developed previously by the courts dealing with the execution of sentences , also did not cover placements in a psychiatric hospital based on an erroneous legal qualification ( as opposed to factual assessment ) by the sentencing court .

Endorsing the findings of ORG , ORG further found that it was very likely that the applicant would seriously harm others , especially in case of a crisis in a relationship , if released . Having regard to the fact that he had already killed CARDINAL people , his continued detention was proportionate . The applicant had not changed his attitude and had not learnt to control his conduct .

On DATE the applicant lodged a constitutional complaint with ORG against the decisions taken by ORG and ORG . He submitted , in particular , that his continued detention in a psychiatric hospital violated his constitutional right to liberty . He argued that under the clear wording of Article CARDINAL § CARDINAL of LAW , his detention had to be declared terminated as he had never suffered from a pathological mental disorder within the meaning of LAW of LAW . Therefore , the requirements for his further detention under LAW were not met and his detention was unlawful .

On DATE ORG declined to consider the applicant ’s constitutional complaint as it lacked prospects of success ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

The Federal Constitutional Court reiterated that it examined the application of legal provisions other than those of constitutional law only to a limited extent . The application of those provisions by the courts dealing with the execution of sentences had not been arbitrary . Even having regard to the importance of the constitutional right to liberty , constitutional law did not prohibit the ORG refusal to apply Article CARDINAL § CARDINAL of LAW to cases in which the sentencing court had only made an error of law in the judgment ordering the detention . The sentencing court ’s application of the law had become final and no reopening of the proceedings was permitted on that ground . The finality of judgments guaranteed legal certainty , which was a principle protected by the rule of law alongside the principle of justice ( materielle PERSON ) . It was in the first place for the legislator to balance these competing principles enshrined in the rule of law .

ORG decision was served on the applicant ’s counsel on DATE .

On DATE , DATE , DATE and DATE ORG decided not to suspend the order for the applicant ’s placement in a psychiatric hospital and not to grant probation .

ORG had heard the medical director of ORG prior to its decisions , who had repeatedly confirmed that the applicant did not suffer and had never suffered from a pathological disorder justifying his placement in a psychiatric hospital . However , having regard to his personality and his lack of motivation to bring about a change in his personality , it was likely that he would commit further similarly serious offences as the one having let to his placement in a psychiatric hospital if released .

ORG decisions were all subsequently confirmed by the GPE am ORG . The latter stressed on several occasions , in particular in its decision dated DATE , that ORG was obliged to offer the applicant a suitable therapy even if he did not suffer from a pathological personality disorder . It equally stressed , for example in its decision dated DATE , that the applicant , for his part , had to show to be ready to undergo therapy .

In DATE the applicant was provisionally transferred from ORG , which was being closed , to ORG .

On DATE ORG ordered the applicant ’s detention in a psychiatric hospital to continue .

On DATE the applicant was transferred from GPE to ORG where he is currently detained .

On DATE ORG ordered the applicant ’s confinement in a psychiatric hospital to continue . On DATE the GPE am ORG dismissed the applicant ’s appeal against that decision . The psychiatric expert PERSON consulted by the court had confirmed that the applicant had a disposition to emotional outbursts and a limited capability to control his impulsive behavior and that his personality deviated from a normal personality in these respects . However , these deviations were not so serious as to amount to a personality disorder and even less to “ any other serious mental abnormality ” within the meaning of LAW . There was a high risk that the applicant committed further capital offences in a conflict situation if released . ORG stressed that it would be possible for the applicant to undergo a therapy in a psychiatric hospital and to reduce his dangerousness significantly thereby . However , he lacked sufficient motivation to complete the therapies he had started . Despite this , the hospital staff remained under an obligation to offer the applicant suitable therapies and to attempt to motivate him to undergo therapy .

Article CARDINAL of the Criminal Code contains rules on the lack of criminal responsibility owing to mental disorders . It provides that a person who , upon commission of an act , is incapable of appreciating the wrongfulness of the act or of acting in accordance with such appreciation owing to a pathological mental disorder , a profound consciousness disorder , a mental deficiency or any other serious mental abnormality acts without guilt .

Article CARDINAL of the Criminal Code governs diminished criminal responsibility . It provides that the punishment may be mitigated in accordance with Article CARDINAL § CARDINAL of LAW if the perpetrator ’s capacity to appreciate the wrongfulness of the act or of acting in accordance with such appreciation is substantially diminished upon commission of the act owing to CARDINAL of the grounds indicated in LAW .

Article CARDINAL § CARDINAL of the Criminal Code contains rules on the fixing of a penalty in cases in which the law requires or allows for a mitigation of the penalty under that provision . It provides , in particular , that in cases of sentences of imprisonment for a fixed term , DATE of the statutory maximum term may be imposed ( LAW subparagraph CARDINAL ) .

Article CARDINAL of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility ( Article CARDINAL of LAW ) or with diminished criminal responsibility ( LAW ) , the court shall order his placement in a psychiatric hospital if a comprehensive assessment of the perpetrator and his act reveals that , as a result of his condition , he can be expected to commit serious unlawful acts and that he is therefore dangerous to the general public .

Pursuant to LAW , the court ( that is , the chamber responsible for the execution of sentences ) may review at any time whether the further execution of the order for a person ’s placement in a psychiatric hospital should be suspended and a measure of probation applied . It is obliged to do so within fixed time - limits ( paragraph CARDINAL of Article CARDINAL ) . For persons detained in a psychiatric hospital , this time - limit is DATE ( paragraph CARDINAL of Article CARDINAL ) .

Article CARDINAL of the Criminal Code contains provisions on the duration of detention . Paragraph CARDINAL of that provision provides that if there is no provision for a maximum duration of the confinement or if the time - limit has not yet expired , the court shall suspend on probation further execution of the detention order as soon as it is to be expected that the person concerned will not commit any further unlawful acts on his or her release . Suspension shall automatically entail supervision of the conduct of the person concerned .

Article CARDINAL § CARDINAL of LAW , in the version in force at the relevant time , provided :

“ ( CARDINAL ) NORP If , after enforcement of an order for placement in a psychiatric hospital has started , the court finds that the conditions for the measure no longer persist or that the continued enforcement of the measure would be disproportionate , it shall declare the measure terminated . On termination of the measure , the conduct of the person concerned shall be supervised . ... ”

Article CARDINAL § CARDINAL was inserted into LAW together with DATE by LAW ( Gesetz zur Einführung der nachträglichen GPE ) of DATE , which entered into force on DATE . It codifies the case - law previously established by the courts dealing with the execution of sentences concerning the termination of a person ’s confinement in a psychiatric hospital in cases in which that person no longer suffered , or had in fact never suffered , from a condition excluding or diminishing his or her criminal responsibility .

Under that case - law , a person ’s detention in a psychiatric hospital had to be terminated in cases in which it was established that the person concerned no longer suffered from a mental disorder within the meaning of LAW at the time of the decision of the court dealing with the execution of sentences , notably as he or she has been cured ( see , for instance , GPE am ORG , file no . CARDINAL Ws CARDINAL , decision of DATE ; GPE am ORG , file no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE , NStZ DATE , pp . CARDINAL ss . ; GPE am ORG , file no . CARDINAL Ws CARDINAL , decision of DATE ; and the references quoted in the decision dated CARDINAL DATE of ORG , file no . CARDINAL StR CARDINAL/CARDINAL ) .

Moreover , the detention was to be terminated in cases in which such a disorder did not exist from the outset , but where the sentencing court had concluded on the basis of erroneous facts that it did exist ( erroneous placement in a psychiatric hospital for factual reasons ) . It was only decisive that at the time of the decision of the court dealing with the execution of sentences , it has been established that the conditions for a confinement in a psychiatric hospital were not met ( see , for instance , GPE am ORG , file no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE ; GPE am ORG , file no . CARDINAL Ws CARDINAL/CARDINAL , decision of DATE , NStZ DATE , pp . CARDINAL ss . ; GPE am ORG , file no . CARDINAL Ws DATE , decision of DATE ) .

Conversely , the domestic courts dealing with the execution of sentences , whose view was supported by a number of scholars , repeatedly found that an erroneous placement in a psychiatric hospital based on purely legal errors by the sentencing court was not covered by Article CARDINAL § CARDINAL of LAW , despite the fact that the wording of that provision was open in that respect . Such a purely legal error arose in cases in which the sentencing court had correctly established the relevant facts relating to the mental disorder , but had wrongly classified it in law as a mental disorder within the meaning of LAW , DATE and DATE of LAW ( see , for instance , GPE am ORG , file no . CARDINAL Ws DATE , decision of DATE ; and PERSON , in : PERSON ORG , CARDINALth edition , GPE DATE , Article CARDINAL , no . CARDINAL with many further references ) .

As mentioned above ( see paragraph CARDINAL ) , the Retrospective Preventive Detention Act of DATE inserted not only Article CARDINAL § CARDINAL , but also Article CARDINAL into LAW . The provision was aimed at preventing the release of persons who could no longer be detained in a psychiatric hospital because the conditions for placement under LAW were no longer met ( including cases in which they had never been met from the outset ) , but who were still dangerous to the public ( see ORG documents ( ORG ) , no . CARDINAL , pp . CARDINAL , CARDINAL ) .

Article CARDINALb of the Criminal Code contains provisions for the retrospective order for a person ’s placement in preventive detention . At the relevant time , paragraphs CARDINAL and CARDINAL of that provision authorised such an order if the person concerned had committed certain serious offences . In addition , following the person ’s conviction , new evidence must have come to light which indicated that the convicted person presented a significant danger to the general public . Furthermore , it must be very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims .

Article CARDINALb § CARDINAL of the Criminal Code further provided at the relevant time that if an order for placement in a psychiatric hospital was declared terminated pursuant to Article CARDINAL CARDINAL because the conditions excluding or diminishing criminal responsibility on which the order had been based did not exist at the time of the decision terminating the placement , the court could order preventive detention retrospectively under the following conditions . Firstly , the placement of the person concerned under LAW must have been ordered on the basis of several serious offences ( listed in LAW , first sentence ) . Alternatively , the person concerned must either already have been sentenced to CARDINAL years’ imprisonment or must have been placed in a psychiatric hospital because of CARDINAL or more such offences , committed prior to the offence having led to that person ’s placement under LAW Secondly , a comprehensive assessment of the person concerned , his criminal acts and , in addition , his development during the execution of the measure must have revealed that it was very likely that the person would again commit serious offences resulting in considerable psychological or physical harm to the victims .

Article CARDINALb § CARDINAL and Article CARDINAL § CARDINAL of LAW remained valid also under LAW ( Gesetz zur Neuordnung des Rechts der Sicherungsverwahrung ) of DATE , which entered into force on DATE , for offences committed after the entry into force of that LAW . As a result of the abolition of paragraphs CARDINAL and CARDINAL of Article CARDINALb of LAW by LAW , the former paragraph CARDINAL , slightly amended , became the only provision of that Article .

Under LAW , an appeal on points of law ( Revision ) may only be filed on the ground that the judgment was based on a violation of the law . LAW CARDINAL of LAW provides that the law was violated if a legal provision was either not applied or was not applied correctly .

Article CARDINAL of LAW enumerates the circumstances in which criminal proceedings which were terminated by a final judgment may be reopened to the benefit of the convicted person . Under sub - paragraph CARDINAL of that provision , this is the case , in particular , if new facts or evidence were produced which , alone or in connection with the evidence taken previously , may support the acquittal of the accused or an essentially different decision on a measure of correction and prevention . Conversely , the discovery of an error in law was not a ground listed in that provision for the reopening of criminal proceedings .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Inadmissible under Art. 6-1 with regard to fair hearing

The applicant was born in DATE and lives in GPE .

On DATE the applicant brought an action before ORG . She requested that the invalidity of a contract , by which her late husband had sold their house , be established . On DATE she completed her statement of claim .

On DATE the applicant requested ORG to hold a hearing urgently .

A hearing was held on DATE .

On DATE ORG dismissed the applicant 's action . On DATE ORG dismissed her appeal of DATE .

On DATE the applicant pursued a petition for review before ORG .

On DATE and CARDINAL DATE the applicant requested ORG to give her case priority .

On DATE ORG appointed a legal - aid lawyer for the applicant . On DATE the lawyer requested to be relieved of his duties . On DATE ORG appointed another legal - aid lawyer to represent the applicant in the review proceedings .

NORP The applicant 's petition for review was renewed by the lawyer on CARDINAL DATE .

On DATE ORG informed the parties that it intended to deliver its judgment without holding a hearing and requested the parties to submit their opinions on this matter within DATE . On DATE the applicant requested ORG to schedule a hearing .

On DATE ORG quashed the final judgment on account of substantial procedural shortcomings , and remitted the case to the first - instance court .

In the resumed proceedings , on DATE ORG requested the applicant to extend her action to include PERSON in the proceedings .

The applicant failed to comply with this order within the statutory time - limit . Consequently , the court decided to discontinue the case .

On DATE the applicant 's legal - aid lawyer appealed against the order to discontinue the case . Simultaneously , she complied with the order of CARDINAL DATE .

On DATE the applicant renewed the motion to include Mr ORG in the proceedings . On DATE , the defendant submitted his observations and counter - claims .

On DATE ORG accepted the applicant 's procedural appeal and reinstated the proceedings .

Following the retirement of the applicant 's lawyer , on DATE ORG appointed another legal - aid lawyer and scheduled a hearing for DATE .

NORP The applicant failed to appear at the hearing held on DATE . She submitted that she was being treated in hospital . ORG decided to enquire with the hospital about the applicant 's health . On DATE the hospital informed the court that the applicant was no longer a patient .

On DATE ORG dismissed the applicant 's motion challenging the presiding judge for bias .

In her submissions of DATE , the applicant requested the court to hold a hearing urgently , notwithstanding her potential absence . At the same time , she objected to being represented by a legal aid - lawyer , which was not obligatory before a first - instance court . Consequently , on DATE ORG relieved the lawyer of her duties . On DATE , the court adjourned a hearing scheduled for DATE and requested the applicant to complete her claims .

NORP In her submission of DATE , the applicant again requested ORG to hold a hearing in her absence and to deliver a judgment .

On DATE ORG enquired with the applicant as to whether she objected to a hearing being conducted at her home . On DATE the applicant replied that she preferred to answer the court 's questions in writing .

On DATE the applicant informed the court that she would not be present at the hearing scheduled for DATE . She requested the court to hold a hearing in her absence . The court held a hearing on the latter date .

On DATE the applicant submitted observations on the defendant 's preparatory document of CARDINAL DATE . She requested that the next hearing be held in her absence .

ORG held a hearing on DATE and scheduled a hearing for DATE .

On DATE the applicant modified her claim . On DATE she submitted additional material . She requested the court to order ORG to register the fact that proceedings were pending challenging the validity of the sales contract . On DATE the court granted this request .

On DATE the applicant filed additional submissions .

At the hearing on DATE ORG heard the applicant 's sister as a witness and scheduled a hearing at the home of the applicant for DATE . On the latter date , however , the applicant did not allow the visiting judge to enter her house claiming that her bad health prevented her from being heard .

On DATE the applicant submitted additional observations concerning the hearing of CARDINAL DATE .

On CARDINAL DATE ORG requested information from ORG concerning the name of the social worker taking care of the applicant in order to summon her as a witness .

At present , the proceedings are still pending before ORG .


Javier Borrego Borrego;Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Renate Jaeger;Volodymyr Butkevych

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG , as already in the proceedings before the domestic courts , by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , PERSON , PERSON , of ORG .

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

On DATE ORG opened the trial against the applicant on charges of insurance fraud . In the course of the second trial hearing on DATE , the applicant presented a medical certificate dated DATE issued by PERSON , a licensed doctor ( PERSON ) for psychiatry . According to that certificate , the applicant was suffering from a depression and was therefore presently unfit to plead ( verhandlungsunfähig ) . After the applicant had declared that he had been able to follow the hearing until then , the latter was ended on his request . On DATE of the hearing , the applicant declared to be fit to plead .

On DATE ORG , having held CARDINAL hearings , convicted the applicant of CARDINAL counts of insurance fraud and sentenced him to CARDINAL GPE imprisonment . It found that the applicant , who ran a garage , had simulated accidents with the help of others in order to obtain the payment of insurance benefits . In fixing the applicant ’s sentence , the court took into account as an aggravating factor that the applicant had acted on a commercial basis . It considered in mitigation that it could not be excluded that the applicant , who had confessed to the offences , had needed a large amount of money in order to satisfy claims for protection money ( PERSON ) extorted from him by unknown third persons .

The applicant appealed against ORG judgment . He contested in particular that he had committed the frauds on a commercial basis as he had used the money obtained thereby to pay the blackmailers . He further argued that the sentence was too severe as he had acted with diminished criminal responsibility . Following the constant threats uttered by the blackmailers he suffered from serious anxiety and depression which necessitated continuous neurological and psychiatric treatment .

The hearing before ORG took place on CARDINAL DATE .

In the applicant ’s submission , his counsel informed the court orally prior to the formal opening of the hearing in the presence of ORG and his co - defendants’ defence counsels that the applicant was unfit to plead . His counsel submitted CARDINAL medical certificates dated DATE issued by doctor PERSON , the neurologist and psychiatrist in charge of the applicant ’s treatment for DATE . According to these certificates , the applicant , who was under constant psychiatric treatment , was unfit for work from DATE presumably until CARDINAL DATE and also unfit to plead . His lawyer further presented a medical certificate dated DATE issued by doctor PERSON in which the doctor stated that the applicant suffered from a serious anxiety and depression syndrome , might suffer from a personality disorder and was being treated with anti - depressants . The doctor recommended carrying out a psychiatric examination in the course of the appeal proceedings in order to assess the applicant ’s criminal responsibility . The applicant ’s lawyer further informed ORG that the applicant was presently under the influence of strong anti - depressants which he was obliged to take in order to treat his illness . The court inspected the certificates and handed them back to his counsel as it did not wish to take them to the files at that moment .

The hearing was then opened and the applicant and his co - defendants made submissions on their personal situation . Excerpts of ORG judgment were read out . Having been advised of his right to remain silent , the applicant declared that he was ready to make submissions on the charges against him . In the applicant ’s submission , his counsel reminded the court at that moment that the question of the applicant ’s fitness to plead had to be addressed .

ORG interrupted the hearing for TIME in order to award the defendants and their counsels the opportunity to consider limiting the appeals to the fixing of the sentence . When the hearing was resumed , the applicant , having consulted his counsel , declared that he restricted his appeal to the fixing of his sentence .

The applicant then handed over to the court the CARDINAL medical certificates dated DATE ( see above ) issued by doctor PERSON according to which he was unfit to plead . According to the minutes of the hearing as rectified by the court , the applicant , having consulted his counsel , declared on the court ’s enquiry that he considered himself to be fit to plead and was ready to participate in the hearing .

Thereupon , the presiding judge interrupted the hearing for TIME . According to TIME of the hearing , the applicant , following this break , declared again on the court ’s enquiry that he felt fit to make and to receive procedural statements . According to TIME of the hearing , the presiding judge subsequently informed the parties that she had phoned doctor PERSON during the break . The latter had confirmed that the applicant had been prescribed antidepressants . In view of the ( average ) dosage of the medication , the applicant was fit to make and to receive procedural statements also when he had taken the antidepressants . In the applicant ’s submission , the presiding judge informed him of the telephone conversation with his doctor prior to questioning him for the first time on his fitness to plead . The parties were given the opportunity to comment on this issue . ORG considered the applicant as being fit to stand trial and proceeded with the hearing .

The applicant then made submissions on the charges . He stated , in particular , that he had become depressive due to his offences , as a result of which he had lost his means of subsistence .

At the conclusion of the hearing , ORG sentenced the applicant to DATE and QUANTITY months’ imprisonment . It found that in the applicant ’s submission , which had not been disproved , he had been blackmailed since DATE by unknown third persons who had damaged cars parked in his garage and had threatened him and his family . As the police had not agreed to afford him protection immediately , he had committed the insurance frauds on a commercial basis in order to be able to pay the protection money extorted by these persons . In fixing the sentence , the court further took into account that the applicant had shown in the hearing that he truly regretted his offences presumably committed because of the said blackmail . It also considered in mitigation that there was a link between his feeble health caused by a slight depression and the criminal proceedings against him . The court found the high damage caused ( some CARDINAL,CARDINAL PERSON ) , the number of frauds committed by the applicant and the fact that he had instigated several persons to participate in them to be aggravating circumstances .

Right after the hearing the applicant went to see doctor PERSON Having examined him , the latter certified that the applicant was in a confused , very depressed and desperate state of mind and that his submission that he had not been able to follow the court hearing was credible . Doctor PERSON stated that the information he had given on the phone to ORG that morning , at a moment when he had been treating other patients , needed to be clarified . From a retrospective point of view it was very likely that the applicant had been unfit to plead for health reasons throughout the hearing before FAC on DATE .

On DATE the applicant lodged an appeal on points of law . He argued that the conduct of the hearing before ORG despite his unfitness to plead or without having his capacity to plead properly examined by a doctor entailed a serious violation of his right to be present , to be heard and effectively to defend himself as protected by LAW ( see ‘ Relevant domestic law and ORG below ) .

In his submissions in reply dated DATE ORG stated that , having regard to the course of the hearing before ORG as laid down in TIME of the hearing , that court had no reason to doubt the applicant ’s fitness to plead and was thus not obliged to consult a medical expert .

On DATE ( decision served on DATE ) ORG , without giving reasons , dismissed the applicant ’s appeal on points of law as manifestly ill - founded .

On DATE the applicant lodged a constitutional complaint with ORG . He submitted that his right to be heard as guaranteed by LAW had been violated because ORG had held its hearing in the criminal proceedings against him although it had been or should have been aware that he had been unfit to plead .

On DATE ORG refused to admit the applicant ’s constitutional complaint .

If an appeal ( Berufung ) is lodged against a ORG judgment , the defendant ’s case will be reheard by ORG on all questions of fact and law unless the appeal has been restricted by the appellant to certain points of complaint ( see section CARDINAL of LAW ) .

According to the settled case - law of ORG , the mere physical presence of the defendant is not sufficient for him to be considered to “ attend ” the hearing ; he also has to be fit to plead ( ORG , no . CARDINAL StR CARDINAL/CARDINAL , decision of DATE , Collection of the decisions of the criminal section of ORG ( BGHSt ) , PERSON . CARDINAL , pp . CARDINAL et seq . , CARDINAL ) . A defendant is fit to plead if he is capable of protecting his interests reasonably in and outside the hearing , of conducting his defence in a proper and understandable manner and of making and receiving procedural statements . In particular , a defendant is not considered unfit to plead if , because of the advice and support of his counsel , he is sufficiently able to exercise his defence rights of his own will , either in person or represented by his counsel ( see , inter alia , ORG , no . CARDINAL BvR CARDINAL/CARDINAL , decision of DATE , ORG DATE , pp . DATE ) . If the court has doubts about the defendant ’s capacity to plead , as a rule no hearing may be conducted in the criminal proceedings against him ( ORG , no . CARDINAL StR CARDINAL , decision of CARDINAL DATE , ORG für ORG ( ORG ) DATE , p. CARDINAL ; ORG , no . CARDINAL StR DATE , decision of CARDINAL DATE , ORG DATE , p. CARDINAL ) . The trial court is called to take evidence in order to verify the applicant ’s fitness to plead in accordance with its duty to investigate all facts relevant to its decision ( compare section CARDINAL § CARDINAL of LAW ) .


Violation of Art. 6-1;Violation of P1-1;Inadmissible under Art. 10;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicants , all of whom are NORP citizens , live in GPE .

The applicants are inspectors of ORG attached to ORG .

On DATE the Government passed Decision No . CARDINAL , classified secret , which concerned ORG , ORG ) and ORG . According to that ORG , among other things , the personnel of the above - mentioned institutions were entitled to a DATE allowance of approximately MDL CARDINAL instead of the old allowance of MDL CARDINAL . This Decision was not published in ORG ( PERSON ) and accordingly the applicants did not know about it .

The applicants started to receive the increased allowance on DATE . They found out that their colleagues from other ORG had been receiving the higher rate from DATE .

In DATE the applicants lodged an action with ORG against ORG seeking the payment of the increased allowance for DATE .

By a judgment of CARDINAL DATE ORG awarded Mr PERSON , Mr PERSON and Mr Iulian PERSON compensation of MDL CARDINAL each . By another judgment of CARDINAL DATE ORG awarded Mr PERSON and Mr PERSON compensation of MDL CARDINAL each and Mr ORG compensation of MDL CARDINAL . No appeals were lodged and the judgments became final . Enforcement warrants were issued .

On numerous occasions the applicants lodged complaints about the non - enforcement of the judgments of CARDINAL DATE and DATE with ORG . In its replies , ORG informed the applicants that the judgments could not be enforced due to the “ lack of funds in the bank account of ORG ” .

On DATE , after the cases were communicated to the Government , the judgments were executed by ORG .

NORP The relevant provisions of LAW , in force DATE and DATE , stated :

Article CARDINAL . The decisions of the courts and other authorities susceptible to enforcement

The following are the acts which have to be enforced in accordance with the provisions of the present Code : CARDINAL ) Civil law judgments , orders and decisions adopted by the courts ...

Article CARDINAL . The issuance of the enforcement warrant

The enforcement warrant is issued by the court to the creditor , after the judgment has become final , except for cases of immediate enforcement , when the enforcement warrant is issued immediately after the delivery of the judgment .

Article CARDINAL . The request to start the enforcement procedure

The bailiff starts the enforcement procedure at the request of the persons enumerated in LAW . In cases provided for in the second paragraph of this article , the bailiff starts the enforcement procedure following the judge ’s order .

Article CARDINAL . The supervision of enforcement of judgments

The supervision of the correct and prompt enforcement of judgments is conducted by ORG of ORG .


Violation of P4-2;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic and Convention proceedings

Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;Khanlar Hajiyev;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE in GPE , GPE . She was a citizen of the former GPE and continued to hold its citizenship until DATE ; thereafter she became a stateless person . The applicant lives in GPE .

On DATE the applicant applied to the passport department at the “ GPE ” police station in GPE for residence registration . She produced her GPE passport , a consent form signed by the flat owner and certified by the housing maintenance authority , an application form for residence registration , a document showing payment of housing maintenance charges and an extract from the ORG list .

NORP The Director of the passport department refused to process the application for residence registration . He told the applicant that she could not be registered because she was not a relative of the flat owner .

The applicant insisted on a written refusal . She was given a printed form on which a checkmark was placed next to the statement “ failed to provide a complete set of documents ” . It was not specified which documents were missing .

On DATE the applicant challenged the refusal before ORG of GPE . She submitted that there had been no legal basis for a restriction on her right to obtain residence registration in the flat , expressly provided to her for that purpose by its owner , and that the registration authorities had no discretion in granting residence registration once the appropriate documents had been produced , as had been the case .

On DATE the Director of the passport department filed his observations on the applicant ’s claim . He contended that the applicant did not have NORP citizenship and that she had originally come from GPE . NORP citizens were required to have an appropriate visa to enter GPE , which the applicant could not produce , and , in any event , the registration of foreign citizens was a matter for ORG local visa departments .

On DATE ORG of GPE ruled on the applicant ’s claim . A representative of the flat owner stated before the court that the applicant had been living in the flat since DATE and that the owner had no objections to her registration . The court dismissed the applicant ’s claim , giving CARDINAL reasons for its decision .

Firstly , referring to the provisions of ORG regulating the joining of family members and other persons to existing municipal - tenancy agreements and emphasising the absence of a family relationship between the applicant and the flat owner , the court ruled that the matter should be examined not as a challenge to the ORG official ’s refusal to grant registration , but rather as a civil action for determination of the applicant ’s right to move into the flat .

Secondly , the court held that the applicant had failed to prove her LANGUAGE citizenship or to confirm her intention of obtaining it and pointed out that “ a treaty ” between GPE and GPE provided for visa - based exchanges .

The judgment concluded as follows :

“ Given that the applicant failed to produce information confirming her right to move into the flat in question , information on [ her ] citizenship and the lawfulness of [ her ] entry into GPE , the ORG accordingly dismisses her claim . ”

On DATE ORG of GPE confirmed certain amendments to the hearing record , as submitted by the applicant ’s representative . In particular , the record was to reflect the applicant ’s statements about the non - applicability of municipal - tenancy provisions to her situation , given that the flat had been in private ownership , and about the flat owner ’s consent to her residence .

On DATE the applicant ’s representative filed a statement of appeal . He submitted , in particular , that ORG had incorrectly referred to the applicant ’s NORP citizenship and to a visa requirement for her entry into GPE , since the applicant had never held NORP citizenship and , in any event , the residence regulations applied uniformly to all persons lawfully residing within GPE , irrespective of their citizenship . He indicated that ORG had failed to advance any justification for the restriction on the applicant ’s right to choose her residence . He also contended that ORG reliance on tenancy provisions had been invalid because the flat owner had had clear title to the flat and there could be no dispute as to the applicant ’s right to move in , since she had the flat owner ’s explicit consent .

On DATE ORG upheld the judgment . It reiterated ORG findings that the applicant ’s claim had to be dismissed because she had failed to prove her NORP citizenship or an intention to obtain it and because she had failed to provide any documents confirming her right to move into the flat in question . ORG did not address the arguments advanced by the applicant ’s representative in the grounds of appeal .

Article CARDINAL provides for the equality of all before the law and the courts of law , and equality of rights and liberties .

Article CARDINAL provides that everyone lawfully within the territory of the NORP Federation shall have the right to move freely and choose his or her place of stay or residence .

Article CARDINAL § CARDINAL provides that foreign citizens and stateless persons shall have the same rights and obligations in GPE as NORP citizens unless otherwise provided in a federal law or an international treaty to which GPE is a party .

At the material time the issues related to NORP citizenship were governed by the Citizenship of GPE ( Law no . CARDINAL-I of DATE , as amended on DATE ) , which provided that all citizens of the former GPE who were permanently resident in GPE on DATE ( the date of entry into force of the Act ) automatically obtained NORP citizenship unless they expressed their wish to the contrary before DATE . The basis for establishing whether a person was permanently resident within GPE was the propiska stamp ( internal residence registration ) in his or her GPE passport . Section CARDINAL(g ) of the law provided for a simplified procedure ( “ by way of registration ” ) for obtaining NORP citizenship for citizens of the former GPE who arrived in GPE after DATE and expressed their wish to become NORP citizens before DATE .

NORP Under the powers vested in him by law , on DATE the President of GPE adopted the Regulations on the procedure for consideration of issues of citizenship of GPE ( Decree no . CARDINAL – “ the DATE LAW ) . Section II(CARDINAL ) stated that the notion of “ a citizen of the former GPE ” applied only to those individuals who did not obtain the citizenship of one of the newly independent GPE which had previously been members of the GPE . The same section stipulated that after DATE all citizens of the former GPE who had not obtained NORP or other citizenship would be considered to be stateless persons .

Until DATE the status of foreign citizens and stateless persons in GPE was regulated by LAW on the legal status of foreign citizens in the GPE ( no . CARDINAL-X of DATE , as amended on DATE “ the DATE GPE Law ” ) . By virtue of section DATE , its provisions were likewise applicable to stateless persons .

In implementation of the DATE GPE Law , on DATE ORG no . CARDINAL , whereby it approved the Rules on the stay of foreign citizens in the GPE ( “ the DATE Rules ” ) . Those rules also applied to stateless persons and described the procedures for entering and leaving GPE , obtaining documents for temporary residence and permanent residence , etc .

On DATE CARDINAL member GPE of ORG ( ORG ) , including GPE , signed in GPE an Agreement on visa - free movement of citizens of member ORG throughout their territory ( “ the Bishkek Agreement ” ) . GPE acceded to LAW on DATE .

On DATE ORG denounced GPE as of DATE . In the absence of a bilateral agreement on visa - free movement between GPE and GPE , NORP citizens were required to apply for a NORP entry visa from DATE .

On DATE GPE adopted a PERSON on the right of NORP citizens to liberty of movement and freedom to choose their place of temporary and permanent residence within GPE ( Law no . MONEY – “ the DATE LAW ) . LAW guaranteed the right of NORP citizens to liberty of movement and freedom to choose their place of residence , and extended the law ’s application to non - NORP citizens lawfully residing in NORP territory . Sections CARDINAL and CARDINAL required a person to apply for residence registration at a new address within DATE of moving . Section CARDINAL contained an exhaustive list of territories where this right could be restricted ( such as military settlements , environmental disaster zones , etc . )

NORP In order to implement the DATE Law , on DATE the NORP government approved the Regulations for registration of temporary and permanent residence of NORP citizens ( no . CARDINAL ) . By Government Resolution no . CARDINAL of DATE , the application of these Regulations was extended to former GPE citizens arriving from ORG and GPE . LAW imposed a general duty to seek residence registration at any address where a person intended to stay for DATE . The person was required to file an application for registration within DATE of the move and to submit an identity document , an application form and a document showing the legal basis for residence at the indicated address ( such as a rent contract or the consent of the flat owner ) . LAW , as worded at the material time , provided that the registration could be refused if the applicant had not submitted written consent or had produced manifestly false documents ; the list of grounds for refusal was exhaustive .

On DATE ORG of GPE struck down certain provisions of the Regulations as incompatible with LAW . It ruled , in particular , that

“ ... the registration authorities are entitled only to certify the freely expressed will of a citizen in his or her choice of ... residence . For this reason , the registration system may not be permission - based and it shall not entail a restriction on the citizen ’s constitutional right to choose his or her place of ... residence . Thus , the registration system in the sense which is compatible with LAW is merely a means ... of counting people within GPE , ... is notice - based and reflects the fact of a citizen ’s stay at a place of his or her temporary or permanent residence . ”

The Constitutional Court emphasised that , upon presentation of an identity document and a document confirming the person ’s right to reside at the chosen address , the registration authority should have no discretion and should register the person concerned at the address indicated . The requirement to submit any additional document might lead to “ paralysis of a citizen ’s rights ” . On that ground ORG ruled that the registration authorities were not entitled to verify the authenticity of the submitted documents or their compliance with NORP laws and , accordingly , any such grounds for refusal were unconstitutional .

On DATE the GPE authorities passed a PERSON on the conditions of residence in GPE for foreign citizens who have the right to enter GPE without a visa ( Law no . CARDINAL ) . The PERSON applied to foreign citizens from the ORG and to stateless persons . It required non - NORP citizens to apply for residence registration within DATE of their arrival ( if staying for DATE ) . Section CARDINAL of the PERSON provided that a non - NORP citizen residing in GPE for DATE without the appropriate residence registration was liable to a fine of CARDINAL Russian roubles ( RUR ) ( approximately CARDINAL euros ( ORG ) in DATE ) or , in the event of a repeated offence , up to RUR CARDINAL,CARDINAL ( EUR CARDINAL ) . The same penalty could be imposed on a flat owner who permitted a non - NORP citizen to live in his or her LOC without residence registration .

Resolution CARDINAL ( DATE ) on honouring of obligations and commitments by GPE , adopted by ORG of ORG on DATE , noted as follows :

“ CARDINAL . However , the ORG is concerned about a number of obligations and major commitments with which progress remains insufficient , and the honouring of which requires further action by the NORP authorities :

xii . whilst noting that the NORP federal authorities have achieved notable progress in abolishing the remains of the old propiska ( internal registration ) system , the ORG regrets that restrictive registration requirements continue to be enforced , often in a discriminatory manner , against ethnic minorities . Therefore , the ORG reiterates its call made in Recommendation DATE ) , in which it urged member GPE concerned ‘ to undertake a thorough review of national laws and policies with a view to eliminating any provisions which might impede the right to freedom of movement and choice of place of residence within internal ORG ;


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

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

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

The applicant was captured by the invading NORP army on DATE , while returning from a scout outing . In TIME that day he was transported to a camp in GPE ( GPE ) . He was detained there along with former NORP insurgents .

On DATE the applicant escaped and was subsequently in hiding . In DATE he moved to PERSON . He was soon arrested in a round - up and deported to GPE . He worked as a forced labourer in a construction company , then in a food - processing factory and lastly for the NORP railways .

On an unspecified date in DATE the applicant applied to ORG ( “ the ORG ” ) for compensation on account of his forced labour during the war . That request was made under the scheme for slave and forced labourers ( “ the second compensation scheme ” ) established under LAW of DATE , the NORP Law of DATE on the Creation of the “ Remembrance , Responsibility and Future ” Foundation ( “ the NORP LAW ” ) and the subsequent Agreement of DATE between the PERSON , ORG ( “ the NORP ORG ” ) and the Polish - German Reconciliation Foundation .

On an unspecified date ORG found that the applicant was eligible for compensation , his persecution falling under the CARDINALrd category which included persons who had been deported to GPE and subjected to forced labour in industry . It appears that the applicant was awarded DEM CARDINAL,CARDINAL .

On DATE the applicant filed an appeal against that decision . It appears that he contested the fact that ORG had not taken into account his internment in the PERSON camp .

On DATE ORG upheld the decision under appeal , holding that the applicant had not adduced any new evidence of persecution which could justify the change of his eligibility status .

In the letter accompanying the decision , ORG informed the applicant that his request to consider his internment in the PERSON camp as falling under DATE category of eligibility could not be granted . It underlined that according to the applicable regulations persons falling under the CARDINALst category of eligibility were only the detainees of those camps which had been listed in LAW . However , that had not been the case with the PERSON camp .

On DATE the applicant appealed against that decision . On DATE ORG upheld its previous decision .

By a letter dated DATE ORG informed the applicant that the list of concentration camps as defined in LAW could not be supplemented . All other camps with conditions similar to those prevailing in concentration camps were placed on the list of “ other persecution camps ” which had been accepted by ORG and communicated to ORG . The applicant was further informed that the PERSON camp had not been placed on that list and that ORG could request ORG to place a particular camp on the list .

Subsequently , on DATE the applicant requested ORG to apply to ORG with a view to including the PERSON camp on the list of “ other persecution camps ” .

On DATE ORG informed the applicant that the PERSON camp was not listed in a specialised publication of ORG for ORG in GPE ( GPE Badania PERSON w GPE ) . Accordingly , the ORG could not request ORG to place that camp on the list of “ other persecution camps ” .

The applicant contested that finding . He submitted that the PERSON ( GPE ) camp was not listed in ORG publication since it had been located in GPE as its borders had stood before the outbreak of the Second World War .

On DATE the applicant received a letter from ORG ( Instytut Pamięci Narodowej ) . He was informed that ORG for ORG in GPE had carried out in DATE an investigation concerning the PERSON camp . It had been established that the camp had been set up on DATE as a transitional camp for NORP activists , in particular NORP insurgents . It had operated until DATE . On CARDINAL occasions the NORP army had carried out executions in which CARDINAL persons had died .

The investigation concerning that crime had been finally discontinued on DATE as its perpetrators could not be established .

DATE international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by NORP GPE . The government of GPE was CARDINAL of the parties to these negotiations . They were prompted by a number of lawsuits against certain NORP companies before the courts in GPE in which compensation was sought on account of forced labour during the Second World War . The NORP companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace . The negotiations concluded on DATE with the adoption of a Joint Statement which was signed by all the parties to the negotiations , including the government of GPE .

The parties to the Joint Statement acknowledged the intention of the Government of GPE and of the NORP companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the ORG era and the Second World War . They affirmed their consensus of CARDINAL DATE on the establishment of the Remembrance , ORG , which was to be a means of providing funds for victims from central and eastern LOC , most of whom had benefited little from prior NORP compensation and restitution programmes . The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in GPE .

According to ORG , the Government of GPE and the NORP companies concerned undertook to contribute MONEY to the Remembrance , ORG . ORG stipulated that the governments of the participating central and eastern GPE , including GPE , and the government of GPE agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace .

Subsequently , on DATE the NORP parliament enacted the PERSON on the creation of the PERSON , ORG ( Gesetz PERSON “ GPE , PERSON ” ) . It came into force on DATE . However , the disbursement of payments only started on CARDINAL DATE , once the relevant guarantees had been secured by the NORP companies concerned with regard to the dismissal of the lawsuits filed against them in GPE courts . The disbursement of payments terminated at DATE .

The relevant parts of the PERSON on the creation of the PERSON , ORG provide :

Recognising

that ORG inflicted severe injustice on slave labourers and forced labourers , through deportation , internment and exploitation , which in some cases extended to destruction through labour , and through a large number of other human - rights violations ,

that NORP companies which participated in the ORG injustice bear a historic responsibility and must accept it ,

that the companies which have come together in the Foundation Initiative of NORP Industry [ Stiftungsinitiative der deutschen Wirtschaft ] have acknowledged this responsibility ,

that the injustice committed and the human suffering it caused can not be truly compensated by financial payments ,

that the PERSON comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime ,

the NORP PERSON acknowledges political and moral responsibility for the victims of National Socialism . The GPE also intends to keep alive the memory of the injustice inflicted on the victims for coming generations . ( ... )

( CARDINAL ) A legally recognised ORG with the name ‘ Remembrance , Responsibility and Future’ shall be established under public law . ( ... )

( CARDINAL ) The purpose of the ORG is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from ORG period . ( ... )

( CARDINAL ) The approval and disbursement of CARDINAL - off payments to those persons eligible under LAW will be carried out through partner organisations . The ORG is neither authorised nor obligated in this regard . The board of trustees may opt for another mode of payment . ( ... )

( CARDINAL ) Eligible under this PERSON are :

NORP persons who were held in a concentration camp as defined in section ORG ) of LAW [ Bundesentschädigungsgesetz ] or in another place of confinement outside the territory of what is now GPE or a ghetto under comparable conditions and were subjected to forced labour ;

NORP persons who were deported from their homelands into the territory of ORG within the borders of DATE or to a NORP - occupied area , subjected to forced labour in a commercial enterprise or for public authorities there , and held under conditions other than those mentioned in paragraph CARDINAL , or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions ; ( ... )

( CARDINAL ) Eligibility shall be demonstrated by the applicant by submission of documentation . The partner organisation shall take into account relevant evidence . If no relevant evidence is available , the claimant ’s eligibility may be substantiated in some other way .

( CARDINAL ) Specific characteristics of other places of confinement referred to in LAW , Paragraph CARDINAL , Number CARDINAL are inhumane conditions of detention , insufficient nutrition and lack of medical care . ( ... ) ”

Section CARDINAL § CARDINAL of LAW ( Bundesentschädigungsgesetz ) provided that ORG would issue a decree containing a list of concentration camps within the meaning of the LAW . ORG issued the decree in DATE with an annex listing concentration camps . It was twice amended , most recently in DATE . The list of concentration camps does not contain the camp where the applicant was detained during the Second World War .

On DATE the NORP government submitted to ORG a bill on the exemption from tax and duties of payments received in connection with NORP persecution . In the explanatory memorandum to the bill , the government stated that payment of benefits in respect of forced labour for the NORP regime had been agreed in the course of negotiations involving the respective governments , NORP companies and the victims . They further stated that , as a result of the agreement with the NORP , GPE would receive CARDINAL . On DATE the NORP parliament enacted the PERSON on exemption of payments received in connection with NORP persecution from tax and duties . That PERSON also exempted the Polish - German Reconciliation Foundation from taxes due on funds received by the ORG for the distribution of payments . The PERSON came into force on DATE .

On DATE an agreement was concluded between the Remembrance , ORG and ORG ( “ the partnership agreement ” ) . Under its terms ORG was to act as a partner organisation of ORG , with a view to securing prompt disbursement of compensation payments to slave and forced labourers ( paragraph CARDINAL of the agreement ) . Both parties agreed to implement fully the provisions of the ORG and declared that their agreement was in compliance with LAW of DATE .

The above agreement further stipulated that ORG , as a partner organisation , was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of GPE on DATE ( paragraph CARDINAL ) . The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way ( paragraph CARDINAL ) . A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation ( paragraph CARDINAL ) . Under paragraph CARDINAL of the agreement , decisions taken by the appeal body were final and could not be challenged before a court ( paragraph CARDINAL ) .

The Agreement of DATE was accompanied by CARDINAL annexes . Annex no . CARDINAL contained a declaration by the NORP government with regard to responsibility for the disbursement of compensation payments . The relevant parts provide :

“ Since DATE the government of GPE has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by NORP GPE . In the negotiations , the government has played a significant role on behalf of the representatives of the victims . Due to the government ’s efforts , former slave and forced labourers will receive in total ORG CARDINAL , which constitutes a very positive outcome to the negotiations .

The government of GPE will endeavour to ensure that the payments from the PERSON , ORG , handled by ORG with the participation of NORP financial institutions , will be processed properly . To that end the NORP authorities will take steps with regard to the Polish - German Reconciliation Foundation within their founding and supervisory competences . ”

The statutes of the Polish - German Reconciliation Foundation was amended on the initiative of its founder , namely the Minister of ORG , with a view to implementing the provisions of the ORG and the Agreement of DATE ; those amendments were subsequently registered by ORG on DATE .

The amended statutes stipulated that the ORG was to disburse compensation payments to the victims specified in LAW of the ORG from the funds contributed by ORG on the basis of the same LAW ( paragraphs CARDINAL and CARDINAL ) . It further specified that the ORG ’s decisions in individual cases were to be taken on the basis of internal regulations . A decision in an individual case could be appealed against ; however , a decision taken after an appeal had been considered was final and no appeal lay against it ( paragraphs CARDINAL and CARDINAL ) .

Pursuant to paragraph CARDINAL of the amended statutes , ORG was to determine individual claims for assistance filed by victims of NORP persecution . Members and the president of ORG were to be appointed and dismissed by the ORG ’s management board ( paragraph CARDINAL ) . Detailed regulations as to the organisation of ORG and the rules and criteria on the granting of assistance were specified in the internal regulations of ORG , drafted by the management board and adopted by the supervisory board ( paragraph CARDINAL ) .

Decisions taken by ORG could be appealed against to ORG . Its president and members are appointed and dismissed by the ORG ’s management board , having consulted the supervisory board . ORG operates on the basis of internal regulations drafted by the management board and adopted by the supervisory board ( paragraph CARDINAL ) . The amended statutes stipulated that the decisions of ORG were final ( paragraph CARDINAL ) .

In DATE the ORG referred to ORG a question of law ( pytanie prawne ) , as to whether decisions given by the organs of the ORG could be appealed to ORG and , if not , whether they could be subjected to judicial review in civil proceedings . On DATE ORG adopted resolution no . III ZP CARDINAL/CARDINAL , holding that , since administrative functions could only be delegated by statute , which was not the case with regard to the Polish - German Reconciliation Foundation , its decisions did not meet the requirements of an administrative decision and thus could not be appealed to ORG . However , ORG refused to give a definite answer as to whether the ORG ’s decisions could be subject to judicial review in civil proceedings . It nevertheless observed that entitlement to receive a benefit from the ORG did not fall within the scope of civil law , and thus could not be raised before a civil court . In exceptional cases , such as where the claimant ’s eligibility had been established but the benefit was not paid , a claim could arise under civil law .

In Resolution no . OPS CARDINAL/CARDINAL of DATE , ORG upheld the earlier case - law to the effect that it did not have jurisdiction to review the decisions of the ORG and observed that :

“ The Polish - German Reconciliation Foundation , which awards benefits to the victims of NORP persecutions using the financial resources allocated to it by foreign entities , does not perform functions in the area of public administration . Thus , the source of the entitlement to receive an award from the ORG does not stem from actions of the public administration . ”

It further observed :

“ There is no doubt that the Agreement of DATE , concluded between the NORP and ORG , which was not ratified , as well as subsequent acts [ starting with ORG and LAW ] concerning grants of financial assistance by the ORG on account of NORP persecution do not fulfil the criteria which would make it possible to classify them as sources of binding NORP law . No administrative - law relation arises between a claimant and the ORG on the basis of the aforementioned acts , and consequently the ORG is not an organ of public administration established by law to determine cases in the sphere of public administration . ”

On DATE ORG adopted Resolution no . III CZP CARDINAL/CARDINAL in response to a question of law put forward by the ORG . It revisited its earlier case - law on the interpretation of the notion of a “ civil case ” laid out in LAW in relation to claims against the ORG . ORG held that :

“ The [ civil ] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “ NORP - German Reconciliation ” Foundation – is seeking a payment [ from the ORG ] in respect of NORP persecution . ”

In the reasons for its ORG found , inter alia , that :

“ The procedure concerning examination of claims under the first and the second NORP fund ... may not be currently instituted . The relevant funds were allocated and the disbursement of payments has been finally concluded . ( ... )

There is no doubt that the current state of affairs resulting from the relevant case - law , under which those persons interested in challenging before a court the ORG ’s refusal to grant them a suitable payment are deprived of such a possibility , can not be accepted in the light of the binding constitutional and LAW . LAW in conjunction with LAW establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule . ( ... )

The need for extensive interpretation of the individual ’s access to a court , or in other words , the right to bring an action ( the right to a court ) follows also from LAW , which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations . It may be assumed from the established case - law of ORG CARDINAL § CARDINAL of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations .... Obviously , the right to a court does not denote the right to “ win ” a case , but it signifies that the filed claim should be examined by a court and determined on the merits ( judgment of ORG of DATE , no . PERSON CARDINAL/CARDINAL , unpublished ) .

The results of interpretation of ORG CARDINAL and CARDINAL of the Code of Civil Procedure thus require us to acknowledge that the [ civil ] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court . The [ civil ] court also has jurisdiction where a case has the features of a civil case only in the formal sense . ”