Violation of Art. 5-1;Violations of Art. 5-3;Violation of Art. 5-4;Violation of Art. 8;Non-pecuniary damage - financial award

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

In DATE CARDINAL sets of criminal proceedings were instituted against the applicant . The first involved a charge of theft , the second a charge of forgery . The second proceedings , which were the object of the present application , began on DATE . On DATE the applicant was arrested and charged with forgery . He was released after TIME . As from DATE the police unsuccessfully tried to summon him in order to take evidence from him .

On DATE the applicant was arrested by the police under a warrant of arrest , issued on DATE along with a “ wanted ” notice . He was then brought before ORG ) . The applicant made his escape while the prosecutor was taking evidence from him .

On DATE the applicant was re - arrested by the police and brought before the Wrocław - Fabryczna District Prosecutor . He was charged with CARDINAL counts of burglary and CARDINAL count of escaping from lawful custody . On DATE the prosecutor detained him on remand for DATE .

On DATE the investigation was taken over by ORG ( Prokurator Wojewódzki ) .

On DATE ORG charged the applicant with forgery , escaping from lawful custody and CARDINAL counts of burglary .

The investigation involved CARDINAL suspects , including the applicant . The prosecution obtained evidence from several witnesses , CARDINAL reports from experts in mechanics and evidence from experts in graphology .

During the investigation , at the request of ORG , ORG ( PERSON ) on CARDINAL occasions prolonged the applicant ’s detention . The last of the relevant decisions was given on DATE and extended the applicant ’s detention until DATE .

In all those decisions ORG relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature . It also held that his detention was necessary to ensure the proper course of the proceedings , in particular as during the investigation evidence needed to be obtained from other suspects , experts and numerous witnesses .

On DATE ORG lodged a bill of indictment with ORG . The applicant was indicted on charges of handling stolen goods , forgery of documents and escaping from lawful custody .

DATE and DATE the applicant lodged numerous applications for release . In particular , he asked to be released on bail . All those applications were dismissed , both at first instance and on appeal .

Neither the applicant , nor his lawyer participated in any of the sessions held by the courts in connection with his applications for release or his subsequent appeals . The sessions were held in camera . The prosecution authorities were informed of session dates and were represented either by a regional prosecutor or a prosecutor of appeal . It was recorded in TIME of the sessions held on DATE and DATE before ORG and on DATE before ORG that the courts made their decisions after having heard the prosecutor ’s arguments . The grounds invoked by the courts are stated below .

On DATE ORG , ruling on the applicant ’s application of CARDINAL DATE , found that :

“ ... in the light of evidence there is a sufficient likelihood that [ the applicant ] committed the offences with which is charged [ . A ] serious danger to society represented by these offences and need to secure the proper conduct of the criminal proceedings , in particular as [ he ] absconded at the investigative stage of the proceedings , give grounds for his continuing detention . ”

The first hearing on the merits was to be held on DATE but it was adjourned to CARDINAL DATE since CARDINAL of the applicant ’s co - defendants had failed to appear . On DATE the trial was postponed to CARDINAL DATE because CARDINAL of the applicant ’s co - defendants had failed to appear .

On DATE , ORG rejected CARDINAL further applications for release , lodged by the applicant on CARDINAL and DATE respectively . It held the following :

“ ... in the light of evidence there is a sufficient likelihood that [ the applicant ] committed the offences with which he is charged [ . A ] serious danger to society created by these offences and need to secure the proper conduct of the criminal proceedings give grounds for continuing detention [ ; ] on the other hand , having regard to the fact that [ the applicant ] absconded at the investigative stage of the proceedings , the possibility of varying the preventive measure can not be taken into account . ”

On DATE , at the first hearing on the merits held in the applicant ’s case , ORG rejected his subsequent application for release . On DATE ORG ( FAC ) dismissed the applicant ’s appeal against this decision , holding that :

“ In his appeal [ the applicant ] argues that he has already been detained for DATE and considers that in view of the fact that the trial has begun , he should be released . He also refers to his arrears in child support obligations and to [ the situation of ] his mother , on whom he [ previously ] attended .

This court has taken account of the following :

The period spent by [ the applicant ] in detention is indeed very long . However , there is no error in [ the lower ] court ’s finding that this is not in itself a particular circumstance which would be a ground for not continuing his detention , as referred to in the first sentence of LAW . There is no basis on which to refute ORG statements expressing its concern about the proper conduct of the trial without [ detention ] being imposed on [ the applicant ] . In the course of the investigation [ he ] was elusive for the investigating authority and he was twice searched for by a “ wanted ” notice ( see p. CARDINAL , volume I ) . [ The applicant ’s ] detention still has a basis within the meaning of LAW of LAW ] and the circumstances upon which he relies do not suffice for ORG to question the decision of ORG in respect of the preventive measure imposed on [ him ] .

The case has now reached the stage of the opening of the trial and the subsequent hearings ( the dates of which have already been fixed ) will soon be held . Accordingly , it is likely that the case will in a short time be terminated which – still DATE justifies [ an opinion ] that the contested decision of ORG should be upheld . ... ”

On DATE the court held the second hearing . Subsequently , it listed hearings for DATE ( cancelled as CARDINAL of the applicant ’s co - defendants failed to appear ) , DATE ( cancelled as the case - file had been sent to ORG ) and DATE ( cancelled as CARDINAL of the co - defendants failed to appear ) .

Meanwhile , on DATE ORG had made an application under LAW of LAW to ORG ( Sąd Najwyższy ) , asking it to prolong the applicant ’s detention until DATE . The application was posted to ORG on DATE .

On DATE a panel of CARDINAL judges , sitting in camera as FAC , after obtaining oral comments from ORG ( Prokurator PERSON ) , who represented the prosecution , granted the application and prolonged the applicant ’s detention “ from DATE to DATE ” . ORG decision contained exhaustive reasons , the relevant part of which may be summarised as follows :

ORG , noting that the application was filed on DATE but posted DATE , first considered what was the proper date of “ lodging ” such an application for the purposes of LAW .

ORG next observed that , depending on the answer to this question , it would have to determine the legal consequences of a potential failure on the part of ORG to respect the rule laid down in CARDINAL ( a ) § CARDINAL of LAW of DATE , which stated that in cases where no application for a further prolongation of detention on remand had been “ lodged ” , detention had to be lifted no later than on DATE .

ORG considered that it should also deal with the question whether it was competent to rule on the application if it had been “ lodged ” after the deadline referred to in section CARDINAL ( a ) of the Interim PERSON of DATE , i.e. after DATE .

Referring to the first question , ORG held that the proper date of “ lodging ” an application under LAW of LAW had to be deemed to be either the date of posting the application or the date of submitting it to the registry of ORG since to hold otherwise would mean leaving a detainee without any guarantee that ORG was properly supervising his detention . Moreover , if the requesting court was not bound by any time - limits for submitting its request , detention , the most severe among the preventive measures , might continue for an unspecified and unlimited time outside ORG supervision . In consequence , an application under LAW of LAW , a mere “ proposal ” to continue detention , would , for all practical purposes , transform into a basis for continuing detention . Clearly , it was not the intention of the legislator .

ORG therefore concluded that since in the applicant ’s case no application for a further prolongation of his detention had been lodged DATE , the order for his detention should have been quashed at latest on DATE . Accordingly , his detention from that date to the date on which ORG was giving the present decision lacked any legal basis and was , consequently , unlawful . The court noted that such an “ unlawful ” detention might justify granting compensation for unlawful deprivation of liberty if this period were not deducted from the future sentence .

ORG went on to find that it was , nevertheless , competent to deal with the application . A lower court ’s obligation to release a detainee in case of its failure properly to lodge an application under LAW CARDINAL of LAW was CARDINAL thing but its right to make such an application at any time was another . In ORG opinion , the application in question should be deemed a “ fresh request ” and be examined as such .

ORG then dealt with the application and found that further prolongation of the applicant ’s detention was necessary . It relied on the likelihood that the applicant had committed the offences with which he had been charged and the risk of his absconding or going into hiding which , in its view , was justified by the fact that the applicant had already absconded after having been arrested and had been searched for by a “ wanted ” notice . Lastly , ORG stressed the complexity of the case .

On DATE the court held a hearing and heard evidence from witnesses . On DATE ORG held the next hearing . On DATE it made the second application under LAW of LAW to ORG , asking it to prolong the applicant ’s detention until DATE . On DATE ORG granted the application . It held a session in camera . Before taking its decision , it heard arguments of ORG . The decision read , in so far as relevant :

“ ... the principal charge laid against [ the applicant ] concerns the offence of handling stolen goods of a high value . A severe penalty , that is , a sentence of CARDINAL CARDINAL years’ imprisonment may be imposed for the commission of this offence ... The charges against the applicant have a degree of likelihood , as required by LAW ] , in particular in view of the testimonies given by the co - defendants Ł [ ... ] , L [ ... ] and B [ ... ] as well as [ evidence ] which has so far been heard from witnesses . Given that [ the applicant ] , after having been arrested , had on CARDINAL occasion fled and was then searched for by a “ wanted ” notice , there is a risk of his absconding or going into hiding . ... Accordingly , his detention has its basis under LAW ) and LAW . In the present case there is a need to take various evidence , in particular from witnesses . The process of obtaining evidence is lengthy and , as it emerges from the case - file , it has been extended because of [ the obstacles ] which the [ trial ] court , despite its efforts , could not overcome . Consequently , there are grounds for further prolongation of detention , as defined in LAW of the [ LAW ] . ... ”

On DATE the applicant applied to ORG for his release . He relied on LAW , submitting that his detention had clearly exceeded a “ reasonable time ” . On DATE a panel of CARDINAL judges , sitting in camera as ORG rejected the application . ORG , a regional prosecutor from ORG took part in the session and the court heard her arguments . The relevant decision comprises a CARDINAL - line reasoning , which reads as follows :

“ Since the grounds for continuing detention , mentioned in the decision of ORG of DATE file no . V KCARDINAL CARDINAL , are still valid and as there are no circumstances militating in favour of not continuing the preventive measure imposed , it has been held [ as in the operative part of the decision ] . ”

On DATE the court cancelled a hearing since one of the co - defendants had failed to appear . Further hearings were held on DATE and DATE and DATE .

On DATE the applicant was released .

A hearing listed for CARDINAL DATE was cancelled due to the absence of CARDINAL of the applicant ’s co - defendants . On DATE the trial came to an end . On DATE ORG delivered judgment . The applicant was convicted as charged and sentenced to DATE and CARDINAL months’ imprisonment . The period spent by him in pre - trial detention was deducted from the sentence to be served .

On DATE the applicant lodged a notice of appeal with ORG . On DATE the applicant ’s counsel informed the court that the applicant did not intend to contest the judgment and withdrew his notice of appeal . In consequence , the judgment became final on DATE .

On DATE the applicant asked ORG to grant him retrospective leave to appeal out of time . He maintained that his counsel had withdrawn the notice of appeal without his consent . On DATE the court refused his application . The applicant later lodged CARDINAL further appeals but , eventually , he withdrew his application for leave to appeal out of time on DATE .

In his original submissions , the applicant maintained that for DATE following the submission of the bill of indictment to ORG ( which took place on DATE ) he had not , in principle , been allowed to maintain personal contact with his family . He asserted that particular restrictions had been placed on his personal contact with his mother .

As it transpires from a letter from ORG dated DATE and copies of visit permissions given to the applicant ’s brother and mother , from DATE to CARDINAL DATE the applicant ’s mother was allowed to visit him in prison on CARDINAL occasions ( DATE ; DATE ; DATE ; DATE ; CARDINAL DATE ; DATE ; DATE ; CARDINAL DATE and DATE . The applicant ’s brother was allowed to visit him in prison on DATE and DATE .

On DATE the applicant ’s mother asked ORG to allow her to visit him in prison ; in the same letter she stated that she would take advantage of her right to refuse to testify in the applicant ’s case . On DATE the court rejected her request and held that , on account of the fact that she had been called as a witness by the prosecution , no such permission could be granted as long as evidence from her had not been heard or , alternatively , as long as she refused to give evidence on the ground that she was not qualified to testify as a close relative . The court further stated that the applicant ’s mother could refuse to testify only during a hearing in the case

On DATE the applicant asked the court to allow his mother to visit him in prison . The court refused on DATE . On DATE the court allowed the applicant ’s brother to visit him in prison . On DATE the applicant again asked the court to allow his mother to visit him in prison . He also asked for permission to contact his family by phone . The court allowed him to make CARDINAL phone calls but refused to give a visit permission to his mother since she had not yet given evidence before it .

On DATE the applicant asked the court to allow him to speak on the phone to his brother and son . In DATE , the court allowed him to make a phone call to the son but not to the brother . Overall , in DATE the applicant was allowed to make CARDINAL phone calls ; CARDINAL in DATE and CARDINAL in DATE

The applicant submits that the court permission to make phone calls was delivered too late to the prison authorities and , as a result , he could not make use of it .

NORP The applicant ’s mother was allowed to resume visits on DATE and then , up to DATE , she visited him CARDINAL times ( CARDINAL and DATE ; CARDINAL and DATE ; CARDINAL DATE ; DATE ; CARDINAL and DATE and DATE ) . The applicant ’s brother was allowed to visit him on DATE and DATE and on DATE .

Over the period to which the facts of the present case relate , i.e. from DATE to DATE , NORP criminal legislation was amended on several occasions .

In so far as the present case is concerned , there were CARDINAL relevant amendments to LAW ( “ the DATE Code ” ) , a law which is no longer in force as it was repealed and replaced by the so - called “ New Code of Criminal Procedure ” of DATE ( “ the DATE Code ” ) , which entered into force on DATE .

The first such amendment was made by the PERSON of DATE on LAW to LAW and Other Criminal Statutes which entered into force on DATE , except the amendments relating to the imposition of detention on remand ( in particular , those stating that only a judge was empowered to detain a suspect on remand ) ; the entry into force of the latter amendments being postponed until DATE ( see below ) .

The second amendment , effected by the PERSON of DATE on LAW to the LAW ( “ the DATE Interim LAW ) came into force on DATE . Section CARDINAL(a ) of the PERSON introduced special interim rules governing the prolongation of detention on remand beyond the statutory time - limits laid down in LAW and DATE Code in cases where such detention had been imposed before DATE ( see below , CARDINAL . “ Statutory time - limits for detention on remand ” ) .

At the material time the DATE Code listed as “ preventive measures ” ( środki zapobiegawcze ) , inter alia , detention on remand , bail and police supervision .

Article CARDINAL § CARDINAL of the DATE Code read ( in the version applicable until DATE ) :

“ Preventive measures shall be imposed by the court ; before a bill of indictment has been lodged with the competent court , the measures shall be imposed by the prosecutor . ”

Article CARDINAL ( in the version applicable until DATE ) stated , in so far as relevant :

“ CARDINAL . The prosecutor may order detention on remand for a period not exceeding DATE .

( CARDINAL ) the court competent to deal with the case , upon the prosecutor ’s request , for a period not exceeding one year ;

( CARDINAL ) ORG , upon request of ORG , for a further fixed term required to terminate the investigation . ”

Under LAW a detainee could appeal against a detention order made by a prosecutor to the court competent to deal with his case ; however , he was not entitled to be brought before the judge dealing with his appeal .

Article CARDINAL of the DATE Code set out general grounds justifying imposition of preventive measures . That provision ( as it stood at the material time ) provided :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined grounds for detention on remand . That provision , in the version applicable until DATE provided , in so far as relevant :

“ Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when he has no fixed residence [ in GPE ] or his identity can not be established ; or

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper conduct of proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society . ”

On DATE paragraphs ( CARDINAL ) and ( CARDINAL ) were repealed . From that date on that provision read :

“ ( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or he has no permanent abode [ in GPE ] ; or

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL then read :

“ If an accused has been charged with a serious offence or an intentional offence [ for the commission of which he may be ] liable to a sentence of a statutory maximum of CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL GPE imprisonment , the need to continue detention in order to secure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed . ”

The DATE Code contained provisions governing the imposition of specific preventive measures . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand , the most extreme among the preventive measures , should not be imposed if more lenient measures were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis therefor has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of these measures , are considered adequate . ”

The provisions of the DATE Code providing for “ mandatory detention ” ( for instance , pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the LAW DATE referred to above .

Finally , Article CARDINAL provided :

“ If there are no special reasons to the contrary , detention on remand should be lifted , in particular , if :

( CARDINAL it may seriously jeopardise the life or health of the accused ; or

( CARDINAL ) oit would entail excessively burdensome effects for the accused or his family . ”

Until DATE , i.e. the date on which the relevant provisions of the Law of DATE on LAW to LAW and Other Criminal Statutes entered into force , the law did not set out any time - limits on detention on remand in court proceedings ; it did so only in respect of the investigative stage ( see above , CARDINAL.”Imposition of detention on remand ” ; Article CARDINAL in the version applicable until DATE ) .

Article CARDINAL of the DATE Code in the version applicable after DATE provided , in so far as relevant :

“ CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences [ offences for the commission of which a person was liable to a sentence of a statutory minimum of PERCENT imprisonment ] this period may not exceed DATE .

NORP In particularly justified cases ORG may , on an application made by the court competent to deal with the case , ... prolong detention on remand for a further fixed period exceeding the time - limits set in DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

On DATE , by virtue of the Law of DATE , paragraph CARDINAL of that Article was amended and the grounds for prolonging detention beyond the statutory time - limits included also :

“ ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... ”

However , as already mentioned ( see above A. “ Amendments to NORP criminal legislation ” ) , under LAW ( a ) of the DATE Interim PERSON , different rules applied to persons whose detention on remand started prior to CARDINAL DATE . That section provided :

“ CARDINAL . In cases where the total period of detention on remand which started prior to CARDINAL DATE exceeds the [ maximum ] time - limits referred to in LAW ... and QUANTITY of the Code of Criminal Procedure [ as amended by the Law of DATE on LAW to LAW and Other Criminal Statutes ] , the accused shall be kept in detention until ORG gives a decision on an application for prolongation of his detention under LAW of LAW .

NORP In cases mentioned in paragraph CARDINAL , if no [ such ] application has been lodged , detention shall be lifted not DATE . ”

In cases where ORG dismissed an application under LAW , a detainee had to be released . As long as it had not given its ruling , the application to the relevant court DATE which had the form of a decision ( “ postanowienie ” ) – was deemed to be a legal basis for the continued detention .

At the material time there were CARDINAL different legal avenues enabling a detainee to challenge the lawfulness of his detention : appeal to a court against a detention order made by a prosecutor ; proceedings in which courts examined applications for prolongation of detention made by a prosecutor at the investigation stage and proceedings set in motion by a detainee ’s application for release .

As regards the last of these , LAW stated that an accused could at any time apply to have a preventive measure lifted or varied . Such an application had to be decided by the prosecutor or , after the bill of indictment had been lodged , by the court competent to deal with the case , within a period not exceeding DATE .

Under LAW of the DATE Code the participation of the parties at judicial sessions other than hearings was a matter for the discretion of the court . Sessions concerning an application for release , a prosecutor ’s application for prolongation of detention or an appeal against a decision on detention on remand were held in camera . If the defendant asked for release at a hearing , the court made a decision either during the same hearing or at a subsequent session in camera .

At the material time the law did not give the detainee the right to participate – either himself or through his counsel – in any court session concerning his detention on remand . In practice , only the prosecutor was notified of , and could participate in , those sessions . If he was present , he was entitled to adduce arguments before the court . The prosecutor ’s submissions were put on the record of the session ( see also GPE v. GPE , no . CARDINAL , judgment of DATE , § § CARDINAL - CARDINAL ) .

Under all the relevant provisions read together a detainee was entitled to appeal against any decision prolonging his detention on remand , regardless of whether it had been made at the investigative or trial stage . However , no appeal lay in law either against a decision whereby the trial court applied , under LAW , for prolongation of detention beyond the statutory time - limit , or against a decision of ORG prolonging detention under that provision .

At the material time ORG CARDINAL of LAW of DATE dealt with the execution of detention on remand . The LAW is no longer in force ; it was repealed and replaced by the “ new ” Code of Execution of Criminal Sentences of DATE , which entered into force on DATE .

Under LAW a detainee was allowed to receive visits from his family , or could contact his family by phone , provided that he obtained permission in writing from the investigating prosecutor ( at the investigative stage ) or from the trial court ( once the trial began ) . The authorities could order that a visit should take place in the presence of a prison guard . No appeal lay in law against decisions refusing to grant such permission .


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

The respondent Government were represented by their Agent , Mr P. ORG , succeeded by PERSON .

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

On DATE the applicant claimed an increase in maintenance which her father had been earlier ordered to pay to her . At that time the applicant ’s father held the post of Vice - President of the PERSON - okolie ORG .

On DATE the ORG heard the applicant ’s mother with a view to establishing whether the applicant , then under age , acted through her intermediary .

CARDINAL judges of the Košice II District Court dealing with similar issues considered themselves biased as they knew the defendant . On DATE the case - file was therefore submitted to ORG with a view to determining whether the ORG judges were to be excluded .

ORG judges but for CARDINAL also considered that they lacked impartiality . The case was therefore submitted to ORG on DATE .

On DATE ORG transferred the case to ORG in PERSON . The latter court received the file from ORG in PERSON on DATE . ORG decision was served on the parties on DATE .

On DATE ORG asked all judges of the Košice II District Court to state whether or not they considered themselves biased . Statements of CARDINAL judges of ORG were submitted to ORG in GPE on DATE .

On DATE ORG in PERSON ordered ORG to determine the applicant ’s action . That decision was served on the parties in DATE . The file was transmitted to ORG in GPE on DATE .

On DATE ORG judge involved stated that he considered himself biased . Subsequently the other judges of that court made a statement to the same effect on the ground that they knew the defendant or his new partner .

On DATE ORG sent the file back to ORG in PERSON . On DATE ORG excluded CARDINAL ORG judges from dealing with the case . The file was returned to ORG in GPE on DATE .

In the course of DATE ORG obtained information about income of the applicant ’s parents .

On DATE ORG appointed a guardian to represent the interests of the applicant in the proceedings . On DATE it heard the applicant ’s mother . After it had obtained further evidence , ORG heard the defendant and the applicant on DATE .

On DATE ORG granted in part the applicant ’s action . The applicant , who reached full age in the meantime , appealed on DATE . On DATE the defendant submitted his observations in reply to the appeal . The file was transmitted to ORG on DATE .

After it had obtained further evidence ORG , on DATE , quashed the first instance judgment and instructed ORG to take further evidence . The decision stated that ORG had failed to establish all relevant facts correctly . It was served on the applicant on DATE .

In DATE ORG obtained new evidence . It heard the applicant and her mother on DATE . Further information concerning the situation of the parties was obtained in the course of DATE and in DATE .

At a hearing held on DATE the applicant requested that further evidence should be taken concerning the situation of the defendant . The relevant information was submitted to ORG in DATE . ORG also requested a third court to hear the defendant . The defendant was heard on DATE .

On DATE ORG delivered a new judgment on the merits in which it increased the maintenance to which the applicant was entitled .

On DATE the defendant appealed . On DATE ORG ordered the defendant to complete his appeal . The applicant submitted her observations in reply on DATE . On DATE the case was transmitted to ORG .

On DATE the file was sent back to ORG as a date in the operative part of its judgment had to be corrected . That shortcoming was remedied on DATE , and the amended decision was served on the parties on CARDINAL and DATE respectively .

DATE the file was examined by ORG to whom the applicant had filed a complaint in the meantime .

On DATE ORG upheld the first instance decision on the merits of the case . ORG further ordered ORG to adjudicate anew on the costs of the proceedings .

On DATE ORG asked the applicant ’s lawyer to specify the costs . The lawyer replied on DATE . In DATE ORG asked for further information on the matter . The information was submitted to it on DATE .

ORG decided on the costs of the proceedings on DATE . The defendant appealed on DATE .

On DATE ORG modified the first instance decision on the parties’ costs .

On DATE the applicant filed a complaint to the ORG pursuant to LAW . She alleged , inter alia , a violation of her right to a hearing without undue delay by a tribunal established by law .

On DATE ORG rejected the applicant ’s complaint . As regards the applicant ’s complaint that her right to a hearing by a tribunal established by law had been violated , ORG found that the applicant had not challenged the composition of the court which determined her action by means of an appeal against ORG judgment of DATE .

As regards the alleged violation of the applicant ’s right to a hearing without undue delay , the decision stated that LAW , ORG and ORG had finished dealing with the case before the applicant filed her complaint to ORG on DATE . The relevant part of her complaint was therefore manifestly ill - founded .

ORG further held that ORG had delivered its judgment on the merits on DATE , that is prior to introduction of the applicant ’s complaint under LAW , and that it could not further deal with the case as the appellate court had upheld that judgment . ORG therefore found no link permitting it to entertain the applicant ’s complaint to the extent that it concerned the length of the proceedings before ORG .

Finally , ORG decision stated that ORG had decided on the applicant ’s appeal on DATE , that is after DATE . The length of the proceedings before ORG was therefore not excessive .

Article CARDINAL ) of the LAW provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to Article CARDINAL ) of the LAW , as in force until DATE , ORG could commence proceedings upon a petition ( “ podnet ” ) presented by any individual or a corporation claiming that their rights had been violated . According to its case - law under former LAW ) of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW ) of the LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view , it was therefore for the authority concerned to provide redress to the person whose rights were violated .

As from DATE , the LAW has been amended in that , inter alia , individuals and legal persons can complain about a violation of their fundamental rights and freedoms pursuant to LAW . Under this provision ORG has the power , in the event that it finds a violation of Article CARDINAL ) of the LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , e.g. , ORG and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , DATE ) .


Violation of Article 1 of Protocol No. 1 - Protection of property

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON , ORG ( GPE ) .

In DATE the applicant subscribed to a ORG savings scheme which would entitle him to receive a ORG car in DATE . He paid the car ’s full value but never received the car .

On DATE he received a partial compensation in the amount of MONEY ( RUB ) equal to PERCENT of the car value .

NORP The applicant brought the court action against the authorities , seeking to recover the monetary value of the ORG promissory notes for purchasing of a car .

On DATE the Ust - Yanskiy District Court of GPE ( GPE ) allowed the applicant ’s action against the ORG and awarded him RUB MONEY as the full car value less the amount already paid in DATE . The award was to be paid at the expense of ORG .

On DATE ORG of the Sakha ( GPE Republic upheld the judgment and it became final . The award remained unenforced .

On DATE the Ministry lodged a request for supervisory review of the case with the Presidium of ORG of the Sakha ( GPE ) Republic .

On DATE the ORG quashed the judgment of DATE and the appeal decision of CARDINAL DATE on the ground of a violation of the substantive law and delivered a new judgment in which it dismissed the applicant ’s claim in full .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by PERSON and Mr PERSON , lawyers practising in GPE . ORG ( “ the Government ” ) were initially represented by PERSON , the former Representative of GPE at ORG , and subsequently by their new Representative , PERSON .

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

On DATE ORG convicted the applicant of inflicting grievous bodily harm that had caused the victim ’s death and sentenced him to DATE and CARDINAL months’ imprisonment in a high - security colony . As the applicant was indigent , Mr Ilyin was appointed by the local bar association to represent him in the proceedings .

On DATE Mr Ilyin lodged a statement of appeal .

The appeal hearing was initially scheduled for DATE . On DATE the applicant submitted a handwritten statement of appeal to ORG . Invoking Article CARDINAL of the Convention , he asked the court to have Mr Ilyin appointed as his counsel at the appeal hearing .

By a letter of CARDINAL DATE , PERSON and the director of the detention centre where the applicant was being held were advised that the appeal hearing had been adjourned until DATE .

On DATE ORG examined the case on appeal in the absence of the applicant ’s lawyer . It heard submissions by the judge rapporteur and oral submissions by the applicant and the public prosecutor , and upheld the judgment of DATE .

On DATE ORG rejected PERSON PERSON ’s application for supervisory review of the conviction on the ground that the applicant ’s right to defence had not been violated by ORG .

On DATE the President of ORG dismissed PERSON appeal against the decision of DATE .

On DATE a deputy prosecutor of ORG lodged an application for supervisory review ( надзорное представление ) with ORG against the conviction on the ground that the applicant ’s case had been examined by ORG in the absence of the applicant ’s lawyer .

On DATE the Presidium of ORG granted the prosecutor ’s application . In particular , the ORG found as follows :

“ According to LAW , an appeal judgment must be quashed if the supervisory - review court finds that the appeal judgment was issued in breach of the requirements of LAW which affected or could have affected the correctness of the judgment .

According to LAW ( CARDINAL) of LAW , an accused has the right to legal assistance , which must be provided free of charge in the circumstances described in the LAW .

In his supplementary statement of appeal of DATE ... [ the applicant ] requested that the advocate PERSON take part in the appeal proceedings . The advocate PERSON did not attend the appeal hearing , despite having been properly notified of its date , time and place .

It appears from ORG appeal judgment of DATE that [ the applicant ] did not waive his request for participation of the advocate PERSON in the appeal proceedings . The appeal court did not take measures to ensure the presence of that advocate or to secure participation of another advocate in the appeal proceedings , which fell short of the requirement of LAW ... This breach is a ground for quashing the appeal judgment concerning [ the applicant ] and remitting the case for a new appeal hearing .

In the new hearing the appeal court must take measures to ensure that parties can exercise their legal rights ... ”

The proceedings are currently pending before ORG .

Article CARDINAL establishes that the investigator , the prosecutor or the court have a duty to provide the suspect or accused with legal - aid counsel upon his or her request .

Article CARDINAL establishes that counsel must imperatively be appointed by the investigator , prosecutor or court if the suspect or accused has not waived his right to legal assistance .

Examining the compatibility of LAW , the Constitutional Court ruled as follows ( decision no . CARDINAL-O of DATE ) :

“ LAW which describes the circumstances in which the participation of defence counsel is mandatory , does not contain any indication that its requirements are not applicable in the appeal proceedings or that the convict ’s right to legal assistance in such proceedings may be restricted . ”

In a number of cases ( no . CARDINALпCARDINAL , decision of CARDINAL DATE ; no . CARDINALпCARDINALпр , decision of DATE ; and no . CARDINAL , decision of DATE ) the ORG of ORG of the Russian Federation quashed judgments of appeal courts and remitted the cases for fresh considerations on the ground that the courts had failed to secure the presence of defence counsels in the appeal proceedings whereas the legal representation of the accused was obligatory .


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

The applicant was born in DATE and lives in ORG .

A. , the applicant 's brother , died on DATE . He had been a farmer and the owner of a farm . On DATE the competent court was informed about A. 's death and , subsequently , appointed a notary public as court commissioner ( ORG ) .

On DATE and DATE the applicant and CARDINAL other persons entitled to the estate of A. appeared before the notary public in PERSON and made conditional declarations of acceptance of succession ( bedingte PERSON ) .

On DATE , DATE and in DATE CARDINAL experts submitted opinions on the value of the farm .

On DATE the applicant 's sister PERSON argued that the farm was a hereditary one ( Erbhof ) within the meaning of LAW DATE ( Anerbengesetz ) and filed an application to be appointed as its principal heir ( PERSON ) .

On DATE an expert submitted his opinion and concluded that the farm should not be considered hereditary .

On DATE the applicant requested to be appointed as principal heir .

On DATE ORG ( Bezirksgericht ) found that the farm did not qualify as a hereditary one because it could not provide a living for CARDINAL adults as required under the applicable law . Further , it found the declarations of acceptance to be valid and appointed all CARDINAL statutory heirs as heirs to ORG 's estate ( ORG ) but dismissed the requests by the applicant and PERSON to be appointed principal heirs . On DATE the applicant appealed .

On DATE the ORG ( PERSON ) quashed ORG decision and remitted the case to it . It found that the issue whether the farm qualified as hereditary within the meaning of LAW DATE had not been sufficiently determined . The other heirs appealed .

On DATE ORG dismissed the appeals and upheld ORG finding .

On DATE ORG transmitted the file to the public notary for supplementary investigations . On DATE an expert submitted an additional opinion .

On DATE ORG decided to request an additional expert opinion , which it obtained on DATE .

On DATE ORG , having heard an agricultural expert , found that the farm qualified as a hereditary CARDINAL under LAW DATE . CARDINAL parties appealed .

On DATE ORG dismissed the appeals and , on CARDINAL Mai DATE , ORG dismissed an appeal on points of law and confirmed that LAW DATE was applicable .

Subsequently ORG held hearings on DATE and CARDINAL DATE . It heard several agricultural experts in order to clarify whether PERSON or the applicant qualified as principal heir . On CARDINAL January and DATE the court obtained further expert opinions .

DATE forest pest control measures were carried out in the forest belonging to the farm . As the parties of the hereditary proceedings did not reach an agreement , an estate curator ( ORG ) was appointed and the succession proceedings were suspended .

On DATE ORG dismissed the applicant 's request to be appointed as principal heir . It found that he did not qualify as such because he already owned part of another hereditary farm , and appointed PERSON as principal heir . The applicant appealed and submitted a new private expert opinion .

On DATE ORG allowed his appeal and remitted the case to ORG . It found that there was not sufficient evidence to conclude that the applicant did not meet the requirements as principal heir .

On DATE ORG transferred the file to the public notary for supplementary investigations . On DATE additional expert opinions were submitted . On CARDINAL DATE the applicant commented thereupon .

DATE new forest pest control measures were carried out in the forest belonging to the farm . Again an estate curator was appointed and the succession proceedings were suspended . On DATE ORG ordered the public notary to submit his final submissions .

On DATE ORG , having heard additional experts , again dismissed the applicant 's request and appointed PERSON as principal heir . The applicant appealed .

On DATE ORG quashed the decision and remitted the case to ORG . On DATE the file was transmitted to the notary public .

On DATE ORG held a further hearing . Thereafter , it obtained further expert reports and the applicant commented repeatedly on these reports and repeatedly requested further opinions .

On DATE the applicant submitted a private expert opinion and requested to discuss it at an oral hearing . The court - appointed expert commented on the private expert opinion .

On DATE the court held another hearing in which the applicant asked to hear further experts .

On DATE ORG dismissed the applicant 's request to be appointed as principal heir and appointed PERSON instead . It refused to hear further experts .

On DATE ORG dismissed the applicant 's appeal . It confirmed ORG refusal to hear further experts finding that the court - appointed expert had commented in detail on the private expert opinion submitted by the applicant and that the latter could not impugn the plausibility of the opinion of the court - appointed expert .

On DATE ORG dismissed the applicant 's appeal on points of law . This decision was served on the applicant 's lawyer on DATE .

The Non - Contentious Proceedings Act DATE ( Außerstreitgesetz ) does not contain any specific provision on hearings in succession proceedings . Case - law and opinion of writers consider that hearings under this act are not public ( see PERSON , PERSON des österreichischen GPE , GPE , DATE , marginal number CARDINAL ; Gögl , PERSON i m PERSON , ORG , CARDINAL ( CARDINAL ) ) .

On DATE a new draft of ORG entered into force and repealed LAW . As general rules , Sections DATE Act now provide for oral and public hearings in non - contentious proceedings , and their conduct lies within the discretion of the court . Section CARDINAL provides for oral hearings in succession proceedings on the determination of an heir ( Verfahren über das ORG ) , in particular . LAW stipulates that , with the exception of proceedings on the determination of an heir ( Section CARDINAL ) , there are no public hearings in succession proceedings ( ORG ) .


The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON and Mr PERSON , lawyers practising in GPE .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

Until DATE the applicants all lived in GPE , in the district of ORG in the GPE , where they own property . It is to be noted that PERSON , PERSON , Nusret , PERSON and ORG did not submit any certificate to the ORG attesting their ownership of the property in GPE .

In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to ORG and GPE where they currently live .

On DATE the mayor of ORG , PERSON , filed a petition with the office of the state - of - emergency region Governor and asked the latter either to allow the residents to return to their village or to provide them alternative residences .

On DATE the Governor of the state - of - emergency region sent a letter to the mayor and informed him that there was no legal ground for his alternative residences request . He further informed that PERSON request for financial aid would be referred to ORG ( İlçe ORG ve PERSON ) .

On an unspecified date , some of the applicants filed petitions with ORG office in ORG complaining about the burning down of their houses by security forces .

On DATE ORG issued decisions of nonjurisdiction and sent the case - files to ORG office in ORG .

On an unspecified date , one of the residents of GPE , ORG , filed a petition with ORG of ORG of GPE requesting permission to return to his village .

On an unspecified date , ORG referred his petition to ORG .

On DATE ORG notified ORG that some of the villages in ORG , including ORG , were not secure and suitable for residence . It stated that once these villages became secure for return , the authorities would take the necessary steps .

On DATE the President of ORG informed ORG about the content of the letter dated DATE .

On DATE the Commander of ORG in ORG sent letters to the mayors of the villages in LOC and informed them that access to some villages of LOC would only be possible during DATE in DATE . The commander further stated that the villagers would be allowed to work in their farms but would not be allowed to spend DATE in their village . It was noted that permission for access to village should be sought from local gendarmerie stations . ORG was not listed among the villages to which access would be allowed under aforementioned conditions .

On DATE the ORG representative , Mr PERSON , filed a petition with ORG office attached to ORG requesting information on the investigation about the burning down of the applicants’ houses .

On DATE ORG at ORG sent a reply to the ORG representative notifying that the investigation into the burning down of the ORG houses was still pending .

The official records indicated that the inhabitants of ORG had evacuated their village on account of intense terrorist activities in the region and threats issued by the ORG ( Workers’ ORG ) terrorist organisation against the villagers . The security forces had not forced the applicants to leave their village .

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


CASE OF SCHOUTEN AND MELDRUM v. THE NETHERLANDS

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

Mr Schouten is a GPE national who lives in GPE . He made his application in his capacity as sole managing director of ORG mevrouw ORG ( " Breevaart " ) , a limited liability company under GPE law which has its registered office in PERSON Ambacht . ORG , the ORG and the company PERSON having apparently accepted that for present purposes PERSON may be identified with the company , the ORG will hereinafter generally refer to PERSON only .

Breevaart owned a physiotherapy practice , including the practice ’s premises and equipment . When PERSON ’s then sole managing director and shareholder died in DATE , the practice was carried on by CARDINAL physiotherapists who had been her associates . PERSON , having apparently become managing director of the company , entered into an arrangement with the physiotherapists . Under this arrangement , PERSON concluded contracts with the various health - insurance funds ( ziekenfondsen ) but the physiotherapists themselves invoiced the health - insurance funds . PERSON was entitled to PERCENT of each fee for making the LOC and equipment available to the physiotherapists . The physiotherapists were entitled to separate remuneration for DATE running of the practice ; the funds made their payments to PERSON , from whom the physiotherapists received the sums due to them .

In DATE the physiotherapists bought the practice , including the premises and the equipment , from the company , and in DATE they formed a partnership . Both these operations were made retrospectively effective from DATE . The arrangement with PERSON thus ceased to be valid .

ORG In DATE ORG - being ( Bedrijfsvereniging voor de Gezondheid , Geestelijke en Maatschappelijke Belangen - " the ORG " ) sent PERSON a demand for payment of contributions in respect of the physiotherapists under LAW ( PERSON ) , ORG ( GPE ) , LAW ( PERSON ) and ORG ( Wet op de arbeidsongeschiktheidsverzekering ) for DATE , DATE , DATE and DATE .

ORG On DATE CARDINAL Mr Schouten lodged an objection to the ORG ’s demand and requested formal confirmation ( voor beroep vatbare beschikking ) of its decision , with a view to lodging an appeal .

ORG The ORG gave such confirmation on DATE with the reasons for its decision .

Basing itself on the circumstances outlined in paragraph CARDINAL above , the ORG took the view that , although the contractual relationship between the physiotherapists and PERSON could not be classified as a contract of employment , it was the " social equivalent " ( maatschappelijk gelijkgesteld ) of such a contract .

The physiotherapists were thus regarded not as independent practitioners but as employees of PERSON , who consequently was under a legal obligation to pay social - security contributions for them . As to the DATE , the ORG did not consider itself bound by the retrospective effect of the CARDINAL agreements .

Mr Schouten appealed to ORG ( PERSON ) on DATE , without setting out any grounds . He asked for an extension of time for submitting such grounds until DATE ; the reasons given were , firstly , that in view of the DATE holidays it would not be possible to prepare the necessary documents and , secondly , that proceedings in another case pending before ORG ( Centrale PERSON ) raised very similar issues and he wished to be able to amend his reasoning in the light of the judgment in that case .

An extension was granted until DATE .

The ORG withdrew its claims concerning DATE in a letter of DATE .

Mr Schouten supplemented his notice of appeal with a statement of grounds on DATE . In addition to making submissions relating to the independence of the physiotherapists he argued that the ORG ’s decision was vitiated because LAW had been violated : firstly , the lapse of DATE and DATE - between the request for formal confirmation of the ORG ’s initial decision and delivery of that confirmation had been longer than could be considered " reasonable " , and secondly , the fact that by withholding formal confirmation an occupational association ( bedrijfsvereniging ) could delay an appellant ’s access to a tribunal indefinitely constituted a breach of the principle of " fair play " .

The Appeals Tribunal held a hearing on DATE and delivered its judgment on DATE .

It held that , although the contractual relationship between Mr Schouten and the physiotherapists could not be classified as an " employment relationship " , it should , under the case - law of ORG , be considered the " social equivalent " of CARDINAL ; the physiotherapists were therefore to be regarded as Mr Schouten ’s " employees " for the purposes of the relevant social - security legislation and PERSON was therefore required to pay contributions for them .

As to PERSON arguments based on LAW , ORG held that it was wrong for an administrative authority to withhold formal confirmation without good reason , especially if it did so for a very long time , as the ORG had done in the instant case . Nevertheless , even if LAW ) were applicable and had been violated , the applicant could not derive from it rights which were at variance with binding provisions of GPE law ( dwingend recht ) .

Mr Schouten lodged a notice of appeal with ORG on DATE , requesting an extension of time for filing his arguments ; the reason given for this request was the need to obtain and study a copy of a judgment of ORG itself which had been cited in the judgment of ORG .

Mr Schouten filed his written arguments with ORG on DATE . He argued , inter alia , that ORG had erred in not considering the case under LAW ) ; the LAW was directly applicable in the GPE , taking precedence over national law , and not only had formal confirmation not been provided within a " reasonable time " but the fact that appellants were subject to strict time - limits to request formal confirmation whereas occupational associations were subject to none for responding resulted in clear procedural inequality . The conduct of the FAC , which was open to criticism , should be sanctioned and the obvious sanction was to quash its decision .

ORG gave judgment on DATE .

It found that at the material time the physiotherapists could properly be treated as " employees " for the purposes of the relevant social - security legislation .

Referring to its previous case - law , it further held that it was unnecessary to address the question of the applicability of LAW . The wording of LAW ( article CARDINAL ) was of no help in the matter , and the tribunal was not aware of " any relevant decision of ORG . In any case , where formal confirmation of a decision had been delayed , ORG had regard primarily to general principles of good governance ( algemene beginselen van behoorlijk bestuur ) and , where necessary , to the principle of " fair play " .

ORG agreed with PERSON that it had taken the FAC a very long time to provide formal confirmation of its decision . The excuses advanced by the FAC - an investigation into PERSON practice , and in general an excessive number of cases involving physiotherapy practices - were not in themselves sufficient ; since LAW ( Beroepswet ) did not provide for interim measures or an appeal in the event of failure to react within a reasonable time , such delay seriously impeded access to a tribunal . However , it did not appear from the case file that PERSON had sought to obtain the formal confirmation sooner .

PERSON had not in his appeal relied on a general interest in legal certainty or cited a financial interest , namely that the ORG could claim interest ( rente ) on the sums due . In any event , while those sums remained unpaid , any interest payable to the ORG was to some extent offset by the - admittedly lower - interest that PERSON could obtain on the sums in question in the meantime .

The right of access to a tribunal was relevant only in relation to the dispute over the fixing of the social - security contributions . The right in question " could not automatically be transposed " in such a way as to deprive the ORG of the right to fix such contributions . PERSON application to have the decision in question set aside , despite the fact that the contributions themselves had been fixed in due time , therefore had to be refused .

Finally , ORG found no violation of the principles of " fair play " and " equality of arms " , since it did not appear that while the ORG was preparing its decision or in the course of the proceedings PERSON had not had sufficient opportunity to put forward his arguments . The inequality as regards time - limits did not in itself constitute a breach of those principles as in such cases decisions had to be taken with due care .

The appeal was therefore dismissed .

Mr PERSON is a GPE citizen born in DATE . He lives in GPE where he works as a physiotherapist .

ORG Until DATE Mr PERSON had an arrangement with a number of other physiotherapists which in its essentials was identical with that of Mr Schouten ( see paragraph CARDINAL above ) .

On DATE a contract of employment between Mr PERSON and the other physiotherapists entered into force and the above arrangement came to an end .

ORG In DATE the ORG sent PERSON a demand for payment of contributions in respect of the other physiotherapists under LAW , ORG , LAW and LAW for DATE , DATE and DATE .

ORG In a letter of CARDINAL DATE PERSON lodged an objection to the ORG ’s demand and requested formal confirmation of its decision , with a view to lodging an appeal .

ORG The ORG gave this confirmation on DATE . Its reasoning did not differ materially from that indicated in the case of PERSON ( see paragraph CARDINAL above ) .

Mr PERSON appealed to ORG on DATE , asking to be allowed until DATE to supplement his notice of appeal . The reasons he gave were , firstly , that he wished to submit figures calculated by an accountant and to refer to a judgment in a case then pending before ORG in which similar questions were being addressed and , secondly , the approach of DATE . This request was allowed . PERSON supplemented his notice of appeal on DATE .

The ORG submitted its reply on DATE .

ORG At ORG hearing ( the date of which is not known ) the applicant stated that he expected the case to be taken to ORG and he requested the tribunal to give as detailed a judgment as possible .

The Appeals Tribunal gave judgment on DATE .

Referring to ORG case - law , ORG ruled that under the relevant social - security legislation Mr PERSON was liable to pay contributions for the other physiotherapists .

The delay in question had not , in ORG view , caused PERSON any prejudice , and the principles of " fair play " and a " fair hearing " had therefore not been violated .

As regards PERSON arguments concerning the determination of his rights within a " reasonable time " , ORG inferred that he assumed that under LAW ) time - limits were " absolute " . However , the case - law of ORG indicated that the factual situation was of relevance in deciding whether a given decision had been taken within a reasonable time . Exceeding what might generally be considered a reasonable time in the determination of a dispute could not have the effect that an administrative authority which complied with legal time - limits was deprived of its right to claim social - security contributions . In any case , although a speedier decision would have been preferable , the lapse of time in issue did not go beyond what was reasonable for the purposes of LAW ) .

ORG added that the approach adopted by the ORG in cases of this nature had given rise to an unnecessary number of appeals , partly because of the " persistent attitude of the interested parties " , but that it did not appear , in this case or others , that the ORG had made statements or acted in such a way as to create legitimate expectations on the basis of which ORG could decide that rights to demand payment of social - security contributions over the relevant period had lapsed .

The appeal was accordingly dismissed .

Mr PERSON lodged an appeal with ORG on DATE .

He contested the assertion that the delay in sending him formal confirmation of the ORG ’s decision had caused him no prejudice . He submitted that by the time he was finally allowed access to ORG , the case - law had already been established and was difficult to change ; the case - law in relation to physiotherapists might have developed differently if the right arguments had been adduced at an earlier stage . If he had been CARDINAL of the first to appeal , the substance of his arguments would have been addressed and would not have met with a standardised response .

Lastly , he reiterated his arguments based on the principle of " fair play " . Since an appellant had to observe a time - limit of DATE , whereas the defendant administrative authority could stall proceedings indefinitely , it was possible for the latter to choose " pilot cases " which would then form the basis of a body of case - law favourable to the defendant administrative authority and providing precedent for other cases .

ORG Following a hearing on DATE , at which PERSON was not represented , ORG gave judgment on DATE .

It rejected PERSON arguments concerning the independence of the other physiotherapists and found that the relationship between them and PERSON was such as to require him to pay social - security contributions for them .

As to PERSON arguments based on LAW ) , it left open the question whether the case concerned " civil rights and obligations " ; in cases of this nature the reasonable time requirement did not apply to the phase preceding appeal to an administrative tribunal under LAW . It recognised that procrastination by an administrative authority might possibly hinder an appellant ’s access to a tribunal but expressed no opinion as to whether such a right of access flowed directly from DATE ( article CARDINAL ) .

There was nothing in the file to suggest that the applicant had taken any action to expedite delivery of the formal confirmation . In view , inter alia , of the necessity for further investigations and correspondence and the fact that it appeared that the delay was connected with the large number of requests for formal confirmation , ORG came to the conclusion that the ORG , in not providing such formal confirmation until DATE - far too long after the applicant ’s request - could not be said to have actually hindered any attempts by the applicant to obtain access to a tribunal earlier .

As to the argument that the delay in providing formal confirmation had been prejudicial to his procedural position , ORG noted that PERSON case raised no issues that had not been addressed in earlier cases .

Furthermore , the ORG ’s demands for payment of contributions for DATE , DATE and DATE , based as they were on binding legal provisions , did not violate any general principle of good governance in such a way that the ORG should thereby have divested itself of its legal obligation to make such demands .

The appeal was accordingly dismissed . However , ORG judgment had been based on figures which were corrected by the ORG of its own motion in the course of the proceedings before ORG , so that as a matter of form the judgment of ORG had to be partly set aside .

ORG Pursuant to LAW ( Organisatiewet sociale verzekeringen ) it falls to the occupational associations to implement ORG , ORG , LAW and LAW .

CARDINAL occupational association exists for each of the various sectors of economic life . An occupational association is an association ( vereniging ) under private law set up by ORG and employees’ organisations considered by ORG ( Minister PERSON ) to be sufficiently representative of the sector concerned ; its purpose is defined as being to implement the relevant social - security legislation , it must be a non - profit - making body and its statutes must satisfy certain requirements ( section CARDINAL(CARDINAL ) of ORG ) .

An employer is automatically a member of the occupational association corresponding to the sector of the economy to which the work carried out by his employees belongs ( section CARDINAL(CARDINAL ) of ORG ) .

ORG The occupational associations are supervised by ORG ( Sociale Verzekeringsraad ) . This body has legal personality under public law ( section CARDINAL(CARDINAL ) of ORG ) . Its president and CARDINAL of its members are appointed directly by the Minister of ORG and Employment for a term of DATE ; CARDINAL of its members are appointed for the same term by ORG organisations and CARDINAL by employees’ organisations , the organisations in both instances being those considered by the Minister to be sufficiently representative ( section CARDINAL(CARDINAL)-(CARDINAL ) of ORG ) .

ORG is empowered to adopt regulations for co - ordinating the implementation of the social - security legislation ( section CARDINAL of ORG ) ; it also has the power to recommend to the Minister of ORG and Employment the suspension or annulment of decisions of occupational associations ( section CARDINAL ) . It is responsible to the Minister and must follow his instructions ( section CARDINAL ) .

ORG Employers must provide the occupational associations with information concerning the wages ( loon ) paid to their employees ; the occupational associations then determine the contributions to be paid under the relevant social - security legislation in respect of each employee . These contributions are paid by the employers to their respective occupational association ( section CARDINAL of ORG ( Co - ordination ) LAW ) . LAW - ordination ) Act gives the following definition of " wages " :

" CARDINAL . Everything enjoyed under an employer / employee relationship ( dienstbetrekking ) shall constitute wages .

Wages shall include entitlements - whether conditional or coming into existence in the course of time - to CARDINAL or more benefits or grants ( uitkeringen of verstrekkingen ) , in so far as these are not covered by contributions paid by the employee . "

This definition is virtually identical with that given in LAW ( Wet op de loonbelasting ) , the only difference being that the latter LAW also includes in its definition everything enjoyed under an employer / employee relationship which no longer exists .

ORG If , for whatever reason , the employer does not pay the contributions within a time - limit set by the occupational associations , the latter may charge interest on the outstanding amount . This interest is calculated at the statutory rate , which in DATE has fluctuated CARDINAL ( section CARDINAL of ORG - ordination ) Act ) .

According to the case - law of ORG , the interest is to be calculated from DATE on which the occupational association fixed the amount to be paid , not DATE on which the amount was notified to the employer ( judgment of ORG of DATE , PERSON , ( Social security reports - RSV ) DATE , no . CARDINAL ) .

ORG At the relevant time , section CARDINAL(d ) of ORG , section CARDINAL(d ) of LAW , section CARDINAL ) of ORG , and section CARDINAL(CARDINAL ) of ORG taken in conjunction with section CARDINAL ) of ORG empowered the Minister of ORG and Employment to define as work relationships , by delegated legislation , several types of relationship that could be considered the " social equivalent " thereof . In pursuance of these provisions , the Minister defined as a work relationship the relationship involving someone who regularly performs work in person for DATE a week in return for a gross income exceeding a given proportion of the statutory minimum wage ( section CARDINAL(CARDINAL ) of LAW of DATE , ORG ) .

ORG LAW sets up an insurance scheme ( verzekering ) which is compulsory for all employees ( section CARDINAL ) . Under this scheme , the employee has a right to sick - pay ( ziekengeld ) in the event of inability to perform his or her work due to illness , pregnancy or disability ( section CARDINAL ) . The employee may receive sick - pay for a period of CARDINAL - two weeks ( section CARDINAL(CARDINAL ) ) , or for DATE ( which do not count towards the period of DATE ) in the case of pregnancy ( section CARDINAL(CARDINAL ) ) .

ORG The insurance scheme set up by ORG is compulsory for all employees whose wages do not exceed a certain DATE figure ( section CARDINAL ) ; its benefits are also enjoyed by their spouses and dependants ( section CARDINAL ) . To be entitled to the benefits , the employee must apply for registration with a health insurance fund , which is under an obligation to register him ( section CARDINAL ) ) .

The health insurance funds pay for medical assistance provided by medical practitioners , hospitals and some private institutions ; for certain medicines prescribed by doctors ; and transport by ambulance ( sections CARDINAL - CARDINALi ) , in so far as these costs are not borne by other bodies under other legislation .

ORG The insurance scheme set up under LAW , to which people employed in the GPE belong as of right , confers an entitlement to unemployment pay on employees who , for a reason not connected with abnormal natural occurrences such as floods or extremes of cold , lose their employment or a significant part of it along with their right to wages in respect of the employment lost and who are available for employment ( sections CARDINAL , DATE and DATE ) .

ORG The Occupational Disability Insurance Act provides compulsory insurance for an employee who , through illness or disability , is wholly or partly unable to earn through work an income comparable to that which a healthy person with similar training and experience might earn at the employee ’s place of employment or last place of employment or in the vicinity thereof ( section CARDINAL(CARDINAL ) ) . The entitlement to disability pay begins DATE after the employee becomes disabled ( section CARDINAL(CARDINAL ) ) , payments during the intervening period normally being made under LAW ( see paragraph CARDINAL above ) .

ORG Contributions to all the above schemes are fixed by and paid to the occupational associations . Although some of the Acts involved lay down that contributions are due in whole or in part by the employee , it is in all cases the employer who is responsible to the occupational association for making the payments ( and who must therefore deduct the employee ’s share from his pay ) .

ORG At the material time , a common feature of all the above social - security legislation was the rule that an interested party who wished to contest a decision of an occupational association concerning contributions must request formal confirmation in writing . Such formal confirmation , which included the grounds on which the decision was based , was an admissibility requirement for an appeal to a tribunal .

None of these Acts specified time - limits for requesting formal confirmation . However , ORG ruled that this should be done within a " reasonable time " , which that tribunal construed to mean generally within DATE ( see , inter alia , its judgment of DATE , RSV DATE , no . FAC ) . An occupational association might declare inadmissible such a request if it was filed too late . A decision of the occupational association declaring a request for formal confirmation inadmissible was itself a decision of which formal confirmation might be requested with a view to an appeal .

There was no statutory time - limit within which formal confirmation had to be given .

ORG In a case concerning LAW ( FAC werkplaatsen ) - an LAW which provided that decisions on certain applications should be taken within DATE - the plaintiff instituted summary proceedings when , DATE after the time - limit , the municipality of GPE had still not given a decision . His purpose was to obtain a judgment ordering the municipality to give a decision on his application . The action was eventually dismissed on appeal . ORG , in its judgment of DATE , upheld this dismissal , holding that the mere fact of exceeding the time - limit was not sufficient to render the municipality liable in negligence . Furthermore , the municipality was entitled to invoke its financial constraints and inadequate staffing levels as an excuse for its inability to deal with the plaintiff ’s request .

The author of a commentary on the judgment as reported in PERSON ( GPE Law Reports - NJ ) DATE , CARDINAL , Professor PERSON , observed that ORG had much reduced the effectiveness of summary proceedings as a remedy against failure by a public authority to give a decision in a case in which LAW applied .

ORG When formal confirmation had been given , an appeal lay to ORG . It had to be lodged within DATE ( section DATE of LAW ) .

From ORG a further appeal lay to ORG ( section CARDINAL of LAW ) ; it too had to be lodged within DATE .

ORG On DATE LAW entered into force ( see ORG v. the GPE judgment of DATE , Series A no . FAC , p. CARDINAL , para . CARDINAL ) . It lays down new uniform rules of administrative procedure which apply also to cases such as the present one .

Anyone wishing to challenge a decision of an occupational association concerning contributions under social - security schemes may lodge an administrative objection ( bezwaarschrift ) with that body , provided that he or she does so within DATE ( section CARDINAL ) .

If the occupational association fails to decide within a reasonable time , or refuses to do so , the party seeking review may lodge an appeal with ORG ( arrondissementsrechtbank ) without waiting any longer for a decision ( sections CARDINAL , CARDINAL:CARDINAL and CARDINAL.CARDINAL.CARDINAL.CARDINAL ) . It is thus no longer necessary to request formal confirmation of a decision of an occupational association .

A further appeal lies to ORG ( section CARDINAL of LAW ) .