The applicants are all NORP nationals . Their details are set out in a list appended to this decision . The applications were lodged by the applicants acting on their own behalf and in their capacity as the heirs of their deceased parents .

They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

The applicants or their ascendants were the owners of immovable property in GPE , but were dispossessed after GPE became independent .

PERSON , PERSON and their mother , PERSON , jointly owned , as part of the family estate , CARDINAL parcels of agricultural land ( CARDINAL in GPE with surface - areas of CARDINAL hectares and QUANTITY , and CARDINAL in PERSON with surface - areas of QUANTITY and QUANTITY ) and CARDINAL properties in GPE , CARDINAL a CARDINAL - roomed house and the other a CARDINAL - roomed house . PERSON also owned a property that was let out to tenants and a wine wholesalers in GPE .

These properties were valued by the NORP authorities using a scale laid down by a law of DATE . The first applicant ’s share was put at MONEY ( ORG ) at the DATE value of the franc , the second applicant ’s share at ORG CARDINAL,CARDINAL,CARDINAL and their mother ’s share at ORG CARDINAL . Pursuant to a law of CARDINAL DATE the properties were revalued at ORG , ORG CARDINAL,CARDINAL,CARDINAL and ORG respectively ( at the DATE value ) . In “ real terms ” the “ DATE value ” of the properties would be ORG CARDINAL , ORG and ORG CARDINAL respectively .

The DATE compensatory payments allegedly received by each of the first CARDINAL applicants since DATE amount to ORG . Their mother has allegedly received ORG ( at the DATE value ) .

Mr PERSON jointly owned , as part of the family estate , a house at PERSON . The property was valued by the NORP authorities , using the scale laid down by the law of DATE , at ORG CARDINAL,CARDINAL ( at the DATE value ) . Pursuant to the law of DATE it was revalued at CARDINAL “ francs at the DATE value ” , which the applicant said came to MONEY at the DATE value ” . The DATE compensatory payments he has allegedly received since DATE amount to FRF MONEY at the DATE value ” .

Further , Mr PERSON , the father of PERSON and PERSON PERSON , owned CARDINAL parcels of agricultural land QUANTITY at FAC ( which was matrimonial property ) and QUANTITY at PERSON – and CARDINAL buildings at GPE ( which was also matrimonial property ) . These properties were valued by the authorities , using the scale laid down by the law of PERCENT , at ORG CARDINAL,CARDINAL,CARDINAL ( at the DATE value ) . Pursuant to the law of DATE these properties were revalued at MONEY at the DATE value ” , which the applicants said came to MONEY at the DATE value ” . As the property was jointly owned by the brother and sister as part of the family estate , each was entitled to ORG CARDINAL,CARDINAL,CARDINAL .

The DATE compensatory payments received by PERSON and his father since DATE allegedly amounted to MONEY at the DATE value ” and by PERSON and her father to MONEY at the DATE value ” .

In addition , the ORG mother , PERSON , owned CARDINAL parcels of agricultural land QUANTITY FAC ( which was matrimonial property ) and CARDINAL hectares at FAC DATE and CARDINAL buildings at GPE , CARDINAL of which were matrimonial property while the third was owned jointly as part of the family estate . These properties were valued by the authorities , using the scale laid down by the law of DATE , at ORG CARDINAL ( at the DATE value ) . Pursuant to the law of DATE the properties were revalued at MONEY at the DATE value ” , which the applicants said came to MONEY at the DATE value ” . As the property was jointly owned by the brother and sister as part of the family estate , each was entitled to FRF CARDINAL,CARDINAL,CARDINAL .

The DATE compensatory payments received by PERSON and his mother since DATE allegedly amounted to MONEY at the DATE value ” and by PERSON and her mother to MONEY at the DATE value ” .

PERSON jointly owned , as part of the family estate , a house situated at PERSON , a flat and a plot of building land in GPE , and CARDINAL parcels of agricultural land QUANTITY at FAC and QUANTITY at ORG . These properties were valued by the authorities , using the scale laid down by the law of DATE , at ORG CARDINAL,CARDINAL ( at the DATE value ) . Pursuant to the law of DATE they were revalued at MONEY at the DATE value ” , which the applicant said came to MONEY at the DATE value ” . The DATE compensatory payments she had allegedly received since DATE amounted to FRF MONEY at the DATE value ” .

Mr PERSON father owned QUANTITY of land at LOC , and CARDINAL building plots and a house at FAC . These properties were valued by the authorities , using the scale laid down by the law of DATE , at ORG CARDINAL,CARDINAL,CARDINAL ( at the DATE value ) . Pursuant to the law of DATE they were revalued at MONEY at the DATE value ” , which the applicant said came to MONEY at the DATE value ” . The DATE compensatory payments allegedly received by the applicant ’s father since DATE amounted to ORG MONEY at the DATE value ” .

Acting on their own behalf or , as applicable , as the heirs and assigns of their ascendants , the applicants sent a demand to the Secretary of ORG in DATE for the payment of the balance of the value of the nationalised properties , together with interest .

They submitted that by virtue of the “ NORP LAW ” and unilateral undertakings given in writing by ORG , ORG had an obligation to pay “ just and fair ” compensation to persons who had been dispossessed of their property . They added inter alia that there had been a violation of LAW No . CARDINAL and of LAW , as they had received only partial compensation , .

In DATE they applied to ORG for an order setting aside the Secretary of ORG ’s decision , which was deemed to have been a refusal as he had not replied within DATE . ORG dismissed their applications on DATE .

The applicants appealed to ORG , which dismissed their appeals on DATE on the following grounds :

“ ... Neither the ORG ’s declarations of CARDINAL DATE regarding GPE , known as the “ LOC ” , nor the leaflet “ the Évian Accords and the CARDINAL - noirs [ NORP born NORP ] ” , which was published and distributed in DATE by ORG of GPE , nor the declarations made at the time by members of ORG , which were confined to comments on the aforementioned accords , contained , contrary to what has been submitted in the appeal , clauses or promises affording NORP nationals living in GPE a guarantee that ORG would compensate them for any loss resulting from their being wrongfully divested of their property by ORG . It follows that the court must reject the argument that the ORG has engaged its responsibility and failed to comply with its undertakings because compensation has been paid for only part of the loss of the property in issue .

The loss sustained ... , which directly originated from the action of a foreign ORG , can not give rise to liability on the part of ORG on the basis of the rule that public burdens shall be borne equally ( principe de l’égalité devant les charges publiques ) .

In accordance with the final paragraph of LAW of DATE on ORG , GPE DATE referred to above instituted a national levy to raise compensation for NORP nationals who had been dispossessed of their property , notably in GPE . The amount of compensation paid to such persons pursuant to that statute has been increased by LAW DATE and DATE referred to above , the amount being limited , however , by the latter statute to MONEY depending on the circumstances . [ Although it has been submitted ] that the payment of compensation for only part of the loss contravenes both the principles of national solidarity and payment of compensation of loss in full and the right to the protection of property guaranteed by the LAW , the LAW DATE and the Declaration of the Rights of Man and of the Citizen of DATE to which it refers , it is not for the administrative courts to determine the constitutionality of those statutory provisions . By instituting a national levy to provide compensation in the form of an advance on the sums owed to NORP nationals by ORG for the dispossession of their property , by making the share of the compensation fund apportioned to each dispossessed person proportional to the value of the property which he or she had lost and by imposing a general limit on the amount of that share in the light of the resources which the nation could reasonably devote to it , the aforementioned statutes do not contain any provision that is incompatible with GPE ’s international obligations under , on the one hand , LAW No . CARDINAL to the Convention ... relating to unlawful interference with private property by any of the GPE that have signed the ORG or , on the other hand , LAW , which prohibit any discrimination between individuals .... ”

The applicants appealed to the ORG d’État , alleging , inter alia , a violation of LAW No . CARDINAL and LAW . They also maintained that , in violation of LAW and of their right to a fair hearing , ORG had not acted as an independent and impartial tribunal , as it had “ regarded itself as being bound in practice by the interpretation of the Minister of Foreign Affairs ” , as reproduced in the PERSON judgment delivered by the PERSON d’État on CARDINAL DATE .

On DATE the ORG d’État dismissed the appeals on points of law for the following reasons :

“ The ground of appeal based on the interpretation of the declarations made by the Government on DATE regarding GPE , known as the ‘ NORP Accords’ :

An examination of the impugned judgment , which contains sufficient reasons , shows that for the purposes of interpreting those provisions of the aforementioned accords which were relied on , ORG did not regard itself as being bound by the interpretation the Minister of ORG may have given and , therefore , did not infringe either the provisions of Article CARDINAL of the ... Convention ... , or , in any event , the first sub - paragraph of LAW . Further , in finding that the said declarations did not contain any clause or promise guaranteeing NORP nationals living in GPE compensation from ORG for any loss sustained in the event of their being wrongfully divested of their property by ORG , ORG has not erred in law . It was entitled in law to deduce from that finding that the ORG ’s responsibility could not be engaged on the ground that it had failed to comply with the terms of the said declarations .

The ground of appeal based on the ORG ’s promises :

ORG did not misconstrue the scope of the leaflet entitled ‘ LAW and the CARDINAL noirs’ , which was published and distributed in DATE by ORG of GPE , by holding that it contained no undertaking or promise by ORG to pay compensation in full for losses sustained by NORP owners dispossessed of their property in GPE should the NORP State fail to pay compensation .

The ground of appeal based on the fact that the compensation award ... contravened various principles and NORP international obligations :

Firstly , the loss sustained ... , which directly originated from the action of a foreign ORG , can not , as ORG rightly held , result in the responsibility of ORG being engaged on the basis of the rule that public burdens shall be borne equally .

Secondly , the administrative courts have no jurisdiction to decide whether the system of lump - sum partial compensation set up by the Laws ... of DATE , CARDINAL DATE and DATE infringe quasi - constitutional rules and principles and ORG rightly declined to examine that issue .

Thirdly , ORG did not err in law in holding that the decision of ORG ( which , as has been explained above , was under no obligation to take the place of the defaulting NORP State in compensating the dispossessed NORP owners in full ) to award partial compensation when the direct cause of the damage was the act of a foreign state could not have infringed LAW No CARDINAL to LAW ... , LAW , or , in any event , LAW .... ”

“ NORP nationals who have been or have considered themselves compelled by political events to leave a territory in which they were settled and which was previously under NORP sovereignty or administration , or was a NORP protectorate , are eligible for assistance from the State ...

Such assistance shall take the form of a series of measures designed to integrate the repatriated NORP nationals into the nation ’s economic and social structures .

These measures shall consist , in particular , of return allowances , temporary subsistence allowances , reduced - rate loans and resettlement and regrading subsidies , measures facilitating access to work and schools , and welfare payments and exceptional relief for repatriated persons ... ”

“ The amount of compensation for conclusively proved wrongful divestment and loss of property belonging to the persons referred to in the first sub - paragraph of CARDINAL and the procedure for its assessment and payment shall be laid down , in the light of the circumstances , in separate legislation ... ”

On DATE the NORP and ORG signed various declarations of principle ( “ the NORP LAW ” ) .

The “ Declaration of Principles governing Economic and Financial Cooperation ” stated , inter alia :

“ GPE shall secure without discrimination free and quiet enjoyment of pecuniary rights acquired in its territory prior to self - determination . No one shall be deprived of these rights without fair compensation determined beforehand . ”

“ As part of the agrarian reform , GPE shall provide GPE with special aid for the repurchase of all or part of the property rights of NORP nationals .

On the basis of a repurchase scheme to be devised by the competent NORP authorities the form the aid will take shall be determined by agreement between the CARDINAL countries that will reconcile the implementation of GPE ’s economic and social policy with the need to stagger GPE ’s financial assistance over a reasonable period . ”

In a referendum of DATE the NORP people approved a bill providing that “ the President of the Republic may enter into all such agreements as shall be drawn up in accordance with the Government ’s declarations of DATE ” and “ may decide on ... any statutory or regulatory measures relating to the application of the ORG ’s declarations of CARDINAL DATE ” .

In a judgment of CARDINAL DATE in the PERSON case , the PERSON d’État , interpreting the declarations in the same way as the Minister of ORG had done , held that they did not contain “ any provision intended to secure NORP residents in GPE who alleged that their rights [ had ] been infringed , a right to compensation from ORG for the damage sustained ” .

A leaflet entitled “ The Évian Accords and the CARDINAL noirs ” , published in DATE by ORG of GPE , stated , inter alia , as follows :

“ ... [ After GPE becomes independent ] your landed property will be protected . For those of you who are farmers your land may only be expropriated under a repurchase scheme and in exchange for fair compensation with financing guaranteed by aid from GPE ...

All these commitments will be honoured . You are assured of that by the cooperation that has been established between GPE and GPE through the NORP Declarations ... ”

Another leaflet , likewise published in DATE by ORG and entitled “ the NORP LAW for NORP ” , indicated that , as the declarations had been approved by the NORP people , they were “ binding on the NORP State ” .

Pursuant to the third sub - paragraph of CARDINAL of the PERSON of DATE , PERSON no . DATE of DATE established a national levy to provide compensation for NORP nationals who had been dispossessed of property situated in a territory that had previously been under NORP sovereignty or administration or had been a NORP protectorate . LAW provided : “ This levy shall constitute an advance payment on the sums owed by the foreign states or by persons who have benefited from the dispossession ” .

Law nos . CARDINAL - CARDINAL of DATE and CARDINAL - CARDINAL of DATE provided for the payment of additional compensation . The PERSON of DATE also stipulated : “ The amount of compensation shall be restricted to MONEY per household ... [ and ] MONEY per person dispossessed ” . The PERSON of DATE provided for the grant of additional compensation calculated on the basis of a revaluation coefficient and limited to FRF CARDINAL or FRF CARDINAL,CARDINAL,CARDINAL , depending on the circumstances .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra

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

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

On DATE the applicant instituted proceedings against FAC in ORG ( PERSON ) seeking payment in the amount of MONEY ( DEM ) ( MONEY ( ORG ) ) .

On DATE the applicant lodged a request for an interim measure .

On DATE the applicant lodged a claim against FAC ( the wife of GPE ) and the proceedings were joined .

On DATE the ORG came into force with regard to GPE .

DATE and QUANTITY DATE the applicant lodged CARDINAL requests for a hearing to be set .

On DATE ORG ( Okrožno sodišče v Mariboru ) issued a first - instance judgment . The defendants appealed .

On DATE the appeal court ( PERSON ) issued a judgment , upholding CARDINAL part of the first - instance judgment and remitting the remainder for re - examination ( default interest and costs ) .

Subsequently , the defendants lodged an appeal on points of law with ORG sodišče ) .

On DATE ORG rejected this appeal .

On DATE ORG issued a judgement regarding default interest and costs . The judgement became final on DATE .

On DATE the applicant instituted execution proceedings with ORG against GPE and GPE

On DATE ORG issued a writ for execution .

Subsequently , ORG appointed an expert and the applicant lodged several requests for determination of a date for the public auction .

The proceedings ended on DATE , when the amount due was paid and the decision terminating the proceedings was issued ( ustavitev postopka ) .

On DATE the respondent Government were given notice of the present application .

On DATE the State Attorney ’s ORG sent a settlement proposal to the applicant under LAW of the LAW on the Protection of the Right to a Trial without undue Delay ( “ the CARDINAL Act ” ) . In its proposal , the ORG Attorney ’s ORG acknowledged that the right to a trial within a reasonable time has been violated and offered to pay monetary compensation in the amount of MONEY ( ORG ) in respect of non - pecuniary damage .

Subsequently , the applicant informed the ORG Attorney ’s ORG that he was not willing to accept the proposal as the sum offered was too low .

See domestic law in the ORG ’s decisions PERSON v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) ) and PERSON v. GPE ( ( dec . ) , GPE , DATE ) .


Violation of Art. 5-3;Violation of Art. 8;No-violation of Art. 6;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;David Thór Björgvinsson;Dean Spielmann;Elisabeth Steiner;Françoise Tulkens;George Nicolaou;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Loukis Loucaides;Mirjana Lazarova Trajkovska;Nicolas Bratza;Nona Tsotsoria;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

DATE the applicant was chairman of the board of ORG . At the time of his arrest in DATE he was a major shareholder and an executive of a corporation called ORG and a founder of a number of affiliated firms . He was also a deputy of ORG .

In DATE the applicant allegedly ordered ORG , a member of his entourage , to kill PERSON , the applicant 's former business associate . ORG did not comply with the order , but on DATE he reported the applicant to ORG of GPE ( “ the ORG ” ) . On DATE PERSON handed in the gun which he had allegedly received from the applicant .

On DATE the Prosecutor of the Severo - Zapadnyy District of GPE opened a criminal investigation in respect of the applicant on suspicion of conspiracy to murder .

NORP On DATE the ORG and the police decided to conduct a covert operation to obtain evidence of the applicant 's intention to murder PERSON

On DATE the police staged the discovery of CARDINAL dead men at LOC 's home . They officially announced in the media that one of those killed had been identified as S. The other man was his business partner , I.

On DATE V. , acting on the police 's instructions , came to see the applicant at his estate . He carried a hidden radio - transmitting device while a police officer outside received and recorded the transmission . He was received by the applicant in a “ guest house ” , a part of the estate connected to his personal residence . In accordance with the instructions , ORG engaged the applicant in conversation by telling him that he had carried out the assassination . As proof of his accomplishment he handed the applicant several objects taken from PERSON and I. : a certified copy of a mining project feasibility study marked with a special chemical agent , CARDINAL watches belonging to S. and NORP and MONEY ( ORG ) in cash . At the end of the conversation PERSON took the cash , as suggested by the applicant . The police obtained a TIME recording of the dialogue between PERSON and the applicant .

On DATE the applicant 's estate was searched . Several watches were seized , including those belonging to S. and I. A chemical analysis was conducted and revealed the presence on the applicant 's hands of the chemical agent which had been used to mark the feasibility study . The applicant was arrested .

On DATE the applicant complained to ORG of GPE that his prosecution had been unlawful because it involved numerous procedural violations of his rights , including the unauthorised intrusion into his home and the use of the radio - transmitting device . On DATE the prosecutor dismissed his complaint , having found , in particular , that the applicant had let ORG into his house voluntarily and that therefore there had been no intrusion . It was also found that no judicial authorisation had been required for the use of the radio - transmitting device because in accordance with ORG , it was only required for the interception of communications transmitted by means of wire channels or mail services , none of which had been employed in the covert operation at issue .

Following the applicant 's arrest on DATE , on DATE the Deputy Prosecutor of the LOC of GPE ordered his detention during the investigation , having found that it was “ in accordance with the law ” and necessary in view of the gravity of the charge and the risk that the applicant might influence witnesses . Further extensions were ordered by the competent prosecutor on DATE ( until DATE ) and on DATE ( until DATE ) . The reasons for the applicant 's continued detention were the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation . The applicant appealed against each of these decisions to a court .

On DATE ORG of GPE examined the applicant 's appeal against his continued detention on remand and confirmed the lawfulness of his detention . The court referred to the gravity of the charge and noted that this measure had been applied in accordance with the law . The applicant lodged a further appeal , which was also dismissed by ORG .

In view of the forthcoming expiry of the term of the applicant 's detention , its further extension was ordered by the competent prosecutor , first on DATE , until DATE , and then on DATE , until DATE , still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation . The applicant challenged the extensions before the court .

On DATE ORG of GPE declared that the applicant 's detention until DATE was lawful and necessary on account of the gravity of the charge . The applicant lodged an appeal with ORG , which was dismissed on DATE . The appeal court considered the applicant 's detention lawful and necessary “ until the bill of indictment had been submitted or until the applicant 's immunity had been confirmed ” .

On DATE the Deputy Prosecutor General extended the applicant 's detention on remand until DATE , still on the grounds of the gravity of the charge and the risk of his influencing the witnesses and obstructing the investigation .

On DATE the case was referred to the ORG of GPE . On DATE the court scheduled the hearing for DATE and authorised the applicant 's further detention without indicating any reasons or the length of the extension . On DATE ORG examined and dismissed an appeal by the applicant , upholding his continued detention without elaborating on the reasons .

On DATE ORG scheduled the hearing for DATE and authorised the applicant 's further detention , citing no reasons . The court did not indicate the length of the prospective detention . It again reviewed the lawfulness of the applicant 's detention on DATE but found that it was still necessary owingAn appeal by the applicant to ORG was dismissed on DATE .

Further applications by the applicant for release were examined on DATE , DATE , DATE and DATE . As before , ORG of GPE refused his release , citing the gravity of the charge and the risk of his evading trial and influencing the witnesses . The applicant was released on DATE following his conviction ( see paragraph CARDINAL below ) .

On DATE , immediately after visiting the applicant in the “ guest house ” , PERSON was questioned by the investigators . He reported on the contents of his conversation with the applicant and submitted that he had handed him the gun , the watches and the feasibility study . He was subsequently questioned on DATE , DATE , DATE and DATE .

The applicant was questioned as a suspect for the first time on DATE . From DATE he was questioned CARDINAL times .

On DATE the applicant and ORG were questioned in a confrontation with each other . The applicant 's legal counsel were present at the confrontation . The statements made by the applicant on that occasion were subsequently summarised in the indictment , of which the relevant part reads as follows :

“ At the confrontation between PERSON and [ ORG ] on DATE PERSON altered , in part , certain substantive details of his previous statements , as follows . [ He ] claims that he has been acquainted with [ PERSON ] for a long time , DATE ; they have normal relations ; the last time he saw him was on DATE , and before that they had been in contact DATE previously . He has never given any orders or instructions to [ ORG ] , including any concerning [ S. ] . When [ ORG ] came to see him on DATE he began to tell him off for coming to him . When he asked [ ORG ] who had told him to kill [ S. ] he replied that nobody had , he had just wanted to prove to himself that he could do it . He began to comfort [ V. ] , saying that he could help with his father ; [ he ] did not suggest that [ ORG ] flee the town [ or ] the country , and did not promise to help him financially . He did not instruct [ ORG ] on what to do if [ ORG ] was arrested ; he asked him what was going to happen if he was arrested ; [ ORG ] said that he would tell how it all happened and would confess to having committed the crime , [ and the applicant ] approved of that . Concerning PERSON , PERSON stated that this was his partner who lived and worked in GPE ; he admitted de facto that he had spoken to him on the phone at DATE ... but had given him no directions about [ V. ] ”

On DATE the applicant was charged with conspiracy to murder . Subsequently the charges were extended to include conspiracy to acquire , possess and handle firearms .

On DATE CARDINAL appointed linguistic experts examined the recording of the applicant 's conversation with PERSON of DATE and answered the following questions put to them :

“ CARDINAL . Is it possible to establish , on the basis of the text of the conversation submitted for examination , the nature of relations between PERSON and [ PERSON ] , the extent of their closeness , sympathy for each other , subordination ; how is it expressed ?

NORP Was PERSON 's verbal reaction to [ V. ] 's statement about the ' murder ' of [ S. ] natural assuming he had ordered the murder of [ S. ] ?

Are there any verbal signs indicating that PERSON expressed mistrust about [ ORG ] 's information ?

Is it possible to assess PERSON 's verbal style as unequivocally aiming at closing the topic , ending the conversation ?

Are there any identifiable stylistic , verbal signs of fear ( caution ) on PERSON 's part in relation to [ ORG ] ? ”

In respect of the above questions the experts found :

– on question CARDINAL , that the applicant and ORG had known each other for a long time and had rather close and generally sympathetic relations ; that ORG had shown subordination to the applicant ; that the applicant had played an instructive role in the conversation ;

– on question CARDINAL , that the applicant 's reaction to ORG 's information about the accomplished murder was natural and that he had insistently questioned PERSON on the technical details of its execution ;

– on question CARDINAL , that the applicant had shown no sign of mistrusting ORG 's confession to the murder ;

– on question CARDINAL , that the applicant had not shown any clear signs of wishing to end or to avoid the conversation ;

– on question CARDINAL , that the applicant had not shown any fear of ORG ; on the contrary , PERSON appeared to be afraid of the applicant .

On DATE the investigation was completed and the applicant was allowed access to the case file .

On DATE the case was referred to the ORG of GPE .

On DATE the ORG declined jurisdiction in favour of ORG , having established that the venue of the attempted murder lay within that court 's territorial jurisdiction .

On DATE PERSON made a written statement certified by the NORP consulate in GPE repudiating his statements against the applicant . He submitted that he had made those statements under pressure from S. CARDINAL deputies of ORG , NORP and GPE , were present at the consulate to witness the repudiation . On DATE they recorded an interview with ORG in which he explained that PERSON had persuaded him to make false statements against the applicant .

On DATE the ORG of GPE began examining the charges against the applicant . The applicant pleaded not guilty . At the trial he challenged the admissibility of the recording of his conversation with ORG and of all other evidence obtained through the covert operation . He alleged that the police interference had been unlawful and that he had been induced into self - incrimination . Furthermore , he claimed that the recording had involved unauthorised intrusion into his home . He contested the interpretation of the recording by the experts and alleged that nothing in his dialogue with PERSON disclosed prior knowledge of a murder conspiracy .

During the trial the court dismissed the applicant 's objection to the covert operation and admitted as lawfully obtained evidence the recording with its transcript , the linguistic expert report , ORG 's statements , and the evidence showing that the applicant had accepted the feasibility study and the watches from PERSON It dismissed the argument that there had been an unauthorised intrusion into the applicant 's LOC , having found , firstly , that the applicant had expressed no objection to ORG 's visit and , secondly , that their meeting had taken place in the “ guest house ” , which was intended for business meetings and therefore did not encroach on the applicant 's privacy . The court refused to admit as evidence the official records of the search at the applicant 's estate because the officers who had conducted the search on DATE had not been covered by the authorisation .

The following persons were examined in the oral proceedings before the court :

S. explained his relations with the applicant and their conflict of interests in the aluminium industry . He confirmed that he had participated in the covert operation ; he also confirmed that in DATE PERSON had told him that he had been paid off to withdraw his statements against the applicant .

CARDINAL witnesses answered questions concerning the business links of the applicant , GPE and PERSON with the aluminium plant and other businesses in GPE ; the relations and connections between them ; the existence of the conflict of interests between the applicant and PERSON ; the events of DATE , namely the arrival of PERSON at the “ guest house ” , his conversation with the applicant and the handing of the documents and the watches to the applicant ; and the circumstances surrounding ORG 's attempted withdrawal of his statements against the applicant .

CARDINAL experts were examined : a technical expert gave explanations about the recording of data received by way of a radio - transmitting device ; a sound expert explained how a transcript of the recording of the applicant 's conversation with ORG had been produced ; CARDINAL expert linguists submitted that they had used both the tape and the recording transcript in their examination ; an expert psychologist answered questions concerning his findings ( evidence subsequently excluded as obtained unlawfully – see paragraph CARDINAL below ) ; and CARDINAL corroborative experts upheld the conclusions of the expert linguists and the sound experts .

CARDINAL attesting witnesses answered questions concerning their participation in various investigative measures : the receipt of the gun handed in by ORG , the copying of the video and audio tapes , the treatment of the material exhibits with a chemical agent , the “ discovery of the corpses ” in the operative experiment , and the house search .

CARDINAL investigation officers were examined : an ORG officer submitted that on DATE V. had written a statement in his presence that the applicant had ordered him to kill S. , and had handed in the gun ; he also explained how the operative experiment had been carried out ; CARDINAL officers of the prosecutor 's office and CARDINAL officer of ORG also described the operative experiment and explained how the copies of the recording of the applicant 's conversation with ORG had been made .

On DATE during the court hearing the prosecutor requested to read out the records of the questioning of CARDINAL witnesses not present at the hearing . The statements made by PERSON during the pre - trial investigation were among them .

The applicant 's counsel said that he had no objections . The court decided to grant the request , having noted that “ the court took exhaustive measures to call these witnesses to the court hearing and found that ... PERSON 's whereabouts could not be established and he could not be called to the courtroom even though a number of operational search measures were taken by the ORG and an enquiry was made to ORG of ORG by ORG ... ” . These statements were admitted as evidence .

NORP The court also examined evidence relating to ORG 's attempted withdrawal of his statements against the applicant . It established that during the investigation ORG had already complained that pressure had been exerted on him to repudiate his statements against the applicant . It also established that the witness NORP , who was present at the consulate when PERSON had repudiated his statements , was a close friend of the applicant . The other witness , GPE , had arrived at the consulate late and did not see the document before it was certified .

It was also noted that both the applicant and ORG had undergone a psychiatric examination during the investigation and both had been found fit to participate in the criminal proceedings .

Other evidence examined by the court included : expert reports produced by chemical , ballistics , linguistic , sound and technical experts ; written reports on the operative experiment ; ORG 's written statement of CARDINAL DATE ; a certified description of the gun handed in by ORG ; and records of the applicant 's confrontation with PERSON on DATE .

The applicant challenged a number of items of evidence , claiming that they had been obtained unlawfully . The court excluded some of them , in particular the expert report by a psychologist who had examined the recording of the applicant 's conversation with ORG and the police report on the search carried out on DATE . The attempt to challenge the audio tape containing the recording of the applicant 's conversation with ORG , and the copies of the tape , was not successful and they were admitted as lawfully obtained evidence .

On DATE the ORG of GPE gave judgment , finding the applicant guilty of conspiracy to murder and conspiracy to acquire , possess and handle firearms . The finding of guilt was based on the following evidence : the initial statement by ORG that the applicant had ordered him to kill PERSON ; the gun ORG had handed in ; the statements PERSON had made in front of the applicant when they had been confronted during the questioning on DATE ; numerous witness statements confirming the existence of a conflict between the applicant and PERSON ; and the physical evidence obtained through the covert operation , namely the watches and the feasibility study . Although the recording of the applicant 's conversation with PERSON was played at the hearing , its contents did not feature among the evidence or as part of the court 's reasoning . In so far as the record was mentioned in the judgment , the court relied solely on the conclusions of the linguistic experts ( see paragraph CARDINAL above ) and on several reports confirming that the tape had not been tampered with .

The court sentenced the applicant to DATE imprisonment and , having deducted the time already spent in pre - trial detention , conditionally released him on DATE probation .

The applicant appealed against the judgment , challenging , inter alia , the admissibility of the evidence obtained through the covert operation and the court 's interpretation of the physical evidence and the witnesses ' testimonies .

On DATE ORG upheld the applicant 's conviction and dismissed his appeal , including the arguments relating to the admissibility of evidence .

On DATE ORG of GPE examined the applicant 's case in supervisory proceedings . It modified the judgment of DATE and the appeal decision of DATE , redefining the legal classification of CARDINAL of the offences committed by the applicant . It found the applicant guilty of “ incitement to commit a crime involving a murder ” , and not “ conspiracy to murder ” . The rest of the judgment , including the sentence , remained unchanged .

Until DATE criminal - law matters were governed by LAW ( CCrP ) .

“ Preventive measures ” or “ measures of restraint ” included an undertaking not to leave a town or region , personal security , bail and detention on remand ( LAW ) . A decision to detain someone on remand could be taken by a prosecutor or a court ( LAW , CARDINAL and DATE ) .

When deciding whether to remand an accused in custody , the competent authority was required to consider whether there were “ sufficient grounds to believe ” that he or she would abscond during the investigation or trial or obstruct the establishment of the truth or reoffend ( LAW ) . It also had to take into account the gravity of the charge , information on the accused 's character , his or her profession , age , state of health , family status and other circumstances ( LAW ) .

Before DATE , detention on remand was authorised if the accused was charged with a criminal offence carrying a sentence of DATE imprisonment or if there were “ exceptional circumstances ” in the case ( Article CARDINAL ) . On DATE the ORG was amended to permit defendants to be remanded in custody if the charge carried a sentence of DATE imprisonment or if they had previously defaulted or had no permanent residence in GPE or if their identity could not be ascertained . The amendments of DATE also repealed the provision that permitted defendants to be remanded in custody on the sole ground of the dangerous nature of the criminal offence committed .

The CCrP provided for a distinction CARDINAL types of detention on remand : the first being “ during the investigation ” , that is , while a competent agency – the police or a prosecutor 's office – was investigating the case , and the second being “ before the court ” ( or “ during the judicial proceedings ” ) , at the judicial stage . Although there was no difference in practice between them ( the detainee was held in the same detention facility ) , the calculation of the time - limits was different .

From the date the prosecutor referred the case to the trial court , the defendant 's detention was classified as “ before the court ” ( or “ during the judicial proceedings ” ) .

Before DATE the ORG did not set any time - limit for detention “ during the judicial proceedings ” . On DATE a new LAW was inserted which established that the period of detention “ during the judicial proceedings ” could not generally exceed DATE from the date the court received the file . However , if there was evidence to show that the defendant 's release might impede a thorough , complete and objective examination of the case , a court could – of its own motion or on a request by a prosecutor – extend the detention by no longer than DATE . These provisions did not apply to defendants charged with particularly serious criminal offences .

The Operational - Search Activities Act of CARDINAL DATE ( no . CARDINALFZ ) provides , in so far as relevant , as follows :

“ In carrying out investigations the following measures may be taken :

NORP supervision of postal , telegraphic and other communications ;

telephone interception ;

collection of data from technical channels of communication ;

NORP operative experiments .

Operational - search activities involving supervision of postal , telegraphic and other communications , telephone interception through [ telecommunication companies ] , and the collection of data from technical channels of communication are to be carried out by technical means by ORG and the agencies of ORG in accordance with decisions and agreements signed between the agencies involved .

“ Operational - search activities involving interference with the constitutional right to privacy of postal , telegraphic and other communications transmitted by means of wire or mail services , or with the privacy of the home , may be conducted , subject to a judicial decision , following the receipt of information concerning :

NORP the appearance that an offence has been committed or is ongoing , or a conspiracy to commit an offence whose investigation is mandatory ;

NORP persons conspiring to commit , or committing , or having committed an offence whose investigation is mandatory ;

Operative experiments may only be conducted for the detection , prevention , interruption and investigation of a serious crime , or for the identification of persons preparing , committing or having committed it .

“ The examination of requests for the taking of measures involving interference with the constitutional right to privacy of correspondence and telephone , postal , telegraphic and other communications transmitted by means of wire or mail services , or with the right to privacy of the home , shall fall within the competence of a court at the place where the requested measure is to be carried out or at the place where the requesting body is located . The request must be examined immediately by a single judge ; the examination of the request may not be refused .

The judge examining the request shall decide whether to authorise measures involving interference with the above - mentioned constitutional right , or to refuse authorisation , indicating reasons .

“ Information gathered as a result of operational - search activities may be used for the preparation and conduct of the investigation and court proceedings ... and used as evidence in criminal proceedings in accordance with legal provisions regulating the collection , evaluation and assessment of evidence . ... ”

Article CARDINAL of the CCrP provided as follows :

Evidence obtained in breach of the law shall be considered to have no legal force and can not be relied on as grounds for criminal charges . ”

The DATE Code of Criminal Procedure of GPE , which replaced the CCrP of GPE from DATE , provides as follows , in so far as relevant :

“ CARDINAL . Evidence obtained in breach of this Code shall be inadmissible . Inadmissible evidence shall have no legal force and can not be relied on as grounds for criminal charges or for proving any of the [ circumstances for which evidence is required in criminal proceedings ] .

ORG If a court decides to exclude evidence , that evidence shall have no legal force and can not be relied on in a judgment or other judicial decision , or be examined or used during the trial .


Violation of Article 6 - Right to a fair trial

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Volodymyr Butkevych

The applicant was born in DATE and lives in the city of GPE , GPE .

The applicant is a former employer of the open joint - stock company “ PERSON ( “ the company ” ) situated in the town of GPE , the GPE region . The ORG have not held any share in the company since DATE .

On DATE ORG ordered the company to pay the applicant ORG CARDINAL.CARDINAL in salary arrears . This judgment was enforced in full on an unspecified date in DATE .

While the enforcement proceedings in respect of the above judgment were still pending , the applicant instituted proceedings in ORG against ORG and the company claiming compensation for pecuniary damage caused to him due to the non - enforcement of the judgment of CARDINAL DATE in due time .

On DATE the court ordered that the company pay the applicant ORG CARDINAL in compensation for inflation losses . By the same judgment , the court rejected the applicant ’s claims against ORG as unsubstantiated . This judgment became final and the enforcement writ was transferred to ORG for enforcement .

On DATE ORG terminated the enforcement proceedings on the ground that the company had been declared bankrupt by the decision of ORG of DATE .

The judgment of DATE remains unenforced .

In DATE , while the enforcement proceedings in respect of the judgment of DATE were still pending , the applicant instituted proceedings in ORG against ORG seeking compensation for the latter ’s failure to act .

On DATE the court found in part for the applicant and ordered ORG to pay him UAH CARDINAL in compensation for non - pecuniary damage caused as result of the non - enforcement of the judgment of DATE .

On DATE ORG terminated the enforcement proceedings in view of their own lack of funds .

The judgment of CARDINAL DATE remains unenforced .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Violation of Art. 6-1;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in Chmielno .

On an unspecified date the applicant applied to the Polish - German Reconciliation Foundation ( “ the ORG ” ) for compensation on the ground that he and his parents had been deported to GPE with a view to performing forced labour in agriculture . 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 “ PERSON , Responsibility and Future ” Foundation ( “ the NORP LAW ” ; “ the GFA ” ) and the subsequent Agreement of DATE between the PERSON , ORG ( “ the NORP ORG ” ) and the Polish - German Reconciliation Foundation .

On DATE ORG decided that the applicant was not eligible for compensation . It informed him that under LAW of the ORG only those forced labourers who had been deported to GPE or to an area occupied by it had been eligible for compensation . In the case of citizens of ORG or persons placed on the List of German Nationals ( PERSON ; niemiecka grupa narodowościowa ) their assignment to work by the NORP authorities was not considered compulsory . ORG established on the basis of documentary evidence that the applicant 's parents had been placed on the List of German Nationals and that accordingly their assignment to work in GPE had not been compulsory .

On DATE the applicant appealed against that decision . He strongly contested ORG finding that the assignment to work of the persons who had belonged to ORG had not been compulsory . He submitted that the farm of his parents had been sequestered by the NORP authorities without compensation . Subsequently , the applicant and his parents had been placed in the NORP germanization camp . On account of his internment in the camp as a child the applicant was granted a veteran status by the NORP authorities . The applicant further argued that the seizure of his parents ' prosperous farm without payment of compensation had been certainly effected against their will , as had been their transfer to work on a farm in GPE . He submitted that the placement on the NORP Nationals ' List had resulted in most cases from various forms of coercion , in particular in LOC and GPE where his family had been from . He concluded that his and his parents ' deportation to perform forced labour in GPE had been compulsory .

On DATE the ORG 's ORG dismissed the applicant 's appeal . It reiterated that the applicant had not met the conditions specified in section CARDINAL of the ORG . ORG did not reason its decision .

On DATE the applicant filed an appeal against that decision with ORG for transmission to ORG . Since the appeal had not been transmitted , on DATE the applicant made an application to the administrative court to impose a fine on ORG .

On DATE ORG rejected his application , finding that it did not have jurisdiction to examine appeals against decisions or inactivity of the ORG . The court relied on ORG Resolution of DATE ( no . OPS CARDINAL/CARDINAL ; see paragraph CARDINAL below ) .

On DATE ORG dismissed the applicant 's appeal against ORG decision .

On DATE the applicant lodged a constitutional complaint , alleging that the exclusion of the administrative court 's jurisdiction in respect of the ORG 's decision had violated LAW , that provision guaranteeing access to court .

On DATE the Constitutional Court discontinued the proceedings on procedural grounds ( case no . SK CARDINAL ) . It found that the claimant had not obtained a “ final decision ” within the meaning of Article CARDINAL of the LAW , since he had mistakenly seized the administrative courts and not the civil courts to pursue his appeal against the ORG 's decision . ORG relied on the constitutional presumption in favour of jurisdiction of the civil courts and ORG Resolution of DATE ( see paragraph CARDINAL below ) .

DATE , which was adopted by ORG on DATE and entered into force on DATE , states :

“ GPE shall respect international law binding upon it . ”

LAW reads :

“ Everyone shall have the right to a fair and public hearing of his case , without undue delay , before a competent , impartial and independent court . ”

LAW of the LAW contains provisions related to the judiciary . LAW CARDINAL of the LAW provides :

“ The administration of justice in GPE shall be implemented by ORG , the ordinary courts , administrative courts and military courts . ”

Article CARDINAL of the LAW states :

“ The ordinary courts shall implement the administration of justice concerning all matters save for those statutorily reserved for other courts . ”

Article CARDINAL , in so far as relevant , provides :

“ ORG and other administrative courts shall exercise , to the extent specified by statute , control over the performance of public administration . ”

On DATE the Governments of GPE and GPE concluded an agreement on the basis of which ORG declared that , prompted by humanitarian considerations , it was prepared to contribute MONEY for the benefit of the Polish - German Reconciliation Foundation . The ORG was to be established by ORG with a view to providing financial assistance to victims of NORP persecution who had been particularly wronged . The ORG was to determine the necessary criteria for the granting of payments , having regard both to serious damage to the victims ' health and to difficulties in their current financial situation . The Government of GPE declared that it would not pursue further individual claims by NORP citizens arising out of NORP persecution . Both Governments indicated that their agreement should not amount to limitation of the rights of citizens of either country .

Subsequently , on CARDINAL DATE , the Minister – Head of ORG ( Minister PERSON Urzędu PERSON ) acting as a Founder , made a declaration before ORG on the establishment of the ORG . He declared that , acting on the initiative of ORG and on behalf of ORG , he was establishing the Polish - German Reconciliation Foundation . The ORG 's aim was to provide assistance to the victims of NORP persecution and to undertake other activities for the benefit of those persons . The Minister also declared that the ORG 's capital fund consisted of ORG CARDINAL , contributed by ORG to ORG . ORG was established in accordance with LAW of DATE , which regulates the activities of foundations in GPE . In principle , supervision of a foundation 's activities is exercised by the regional governor ( Wojewoda ) or the competent minister .

The ORG 's organs were ORG ) and ORG ) . The members of those organs were appointed and dismissed by the Founder ( government minister ) who exercised full control in this respect . The CARDINAL other organs of the ORG were ORG ( PERSON ) , and ORG ( GPE ) .

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 the Joint Statement , 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 ” ; LAW ; the ORG ) . 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 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) In concert with ORG , the partner organizations may subdivide the category of forced labourers , within its quota , in accordance with LAW , LAW , Sentence CARDINAL , Number CARDINAL , insofar as this involves persons interned in other places of confinement , as well as affected persons within the meaning of LAW , LAW , Sentence CARDINAL , Number CARDINAL , into subcategories depending on the severity of their fate and may set correspondingly gradated maximum amounts . This shall also apply to the eligibility of legal successors . ( ... )

( 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 ) ORG under LAW , paragraph CARDINAL , sentence CARDINAL , numbers CARDINAL or CARDINAL , or sentence CARDINAL or sentence CARDINAL are strictly personal and individual and must be applied for in one 's own name . In a case where the eligible person has died after DATE , or where an award under LAW , LAW , Number CARDINAL or Sentence CARDINAL is being applied for , the surviving spouse and children shall be entitled to equal shares of the award . If the eligible person left neither a spouse nor children , awards may be applied for in equal shares by the grandchildren , or if there are no grandchildren living , by the siblings . ( ... )

The partner organizations are to create appeals organs that are independent and subject to no outside instruction . The appeals process itself is to be free of charge . However , costs incurred by the applicant are not to be reimbursed . ”

ORG examined a constitutional complaint against various provisions of the ORG which had been filed , among others , by a former NORP military internee and a civilian who had been subjected to forced labour . The complainants alleged , inter alia , that prior to the entry into force of the ORG they had had claims for compensation for forced labour against GPE , under NORP civil law in conjunction with international public law . They contended that the exclusion of judicial review of decisions by ORG ( one of the partner organisations ) had violated their right to an effective remedy under LAW of LAW . Furthermore , they argued that the exclusion of former prisoners of war from the ambit of compensation under LAW was discriminatory .

On DATE ORG held that the complaint was partly admissible , but unfounded . Referring to LAW ( “ LAW ” ) the court held that international public law had not established individual claims for compensation for forced labour . It noted , however , that it was not excluded that national law might establish such claims , but that in such a case the legislator enjoyed wide discretion . The court held further that the exclusion by LAW § CARDINAL of former prisoners of war from the scope of those eligible for benefits under LAW had not been discriminatory , since under LAW prisoners of war could be compelled to perform labour . In this respect the court observed that the legislator was allowed to distinguish , when awarding compensation , between victims of general hardships caused by the war and victims of particular ideological persecution by the NORP regime , especially as the funds of the ORG were limited .

In respect of the exclusion of judicial review by LAW , ORG found that LAW of LAW required that a right did in fact exist , whose alleged violation could be examined by the courts . The court concluded that the legislator was free to decide not to establish an individual 's claims vis - à - vis a public - law foundation and to exclude judicial review in this connection .

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 payment 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 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 MONEY , 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 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 ( PERSON ) 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 ( PERSON ) . 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 ) .

On DATE the ORG terminated the disbursement of payments under the second scheme .

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 ORG , 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 . ”


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

y be summarised as follows .

On DATE the applicant was injured in an accident at work . The applicant ’s employer had taken out insurance with the insurance company ZT .

On DATE the applicant instituted civil proceedings against ZT in ORG ( Okrožno sodišče v PERSON ) seeking damages in the amount of CARDINAL NORP tolars ( MONEY ( ORG ) ) for the injuries sustained .

DATE and DATE the applicant lodged CARDINAL preliminary written submissions and adduced evidence .

DATE and DATE he made CARDINAL requests that a date be set for a hearing .

During the proceedings the court appointed a medical expert . On DATE the court sought an additional opinion from the appointed expert .

On ORG ’s objection the court , on DATE , declared lack of jurisdiction to consider the case and ordered that it be heard before the ORG ( Okrožno sodišče v Novem mestu ) . The applicant appealed against that decision on DATE . On DATE ORG ( PERSON v PERSON ) allowed the applicant ’s appeal and rejected the defendant ’s objection as to the lack of jurisdiction .

On DATE the first hearing to be held in the case was adjourned until DATE since ZT needed time to prepare pleadings in reply to those of the applicant .

On DATE the court held a hearing on the merits of the case .

The proceedings are currently pending before ORG .

On DATE the applicant lodged a supervisory appeal with ORG under LAW complaining that the civil proceedings had been pending since DATE . He further argued that the proceedings were not of particular complexity and that there were no reasons for such a delay . It would appear that the applicant ’s legal representatives have lodged supervisory appeals in CARDINAL cases pending before the same court .

On DATE the President of ORG dismissed the applicant ’s supervisory appeal as ill - founded . He relied on the fact that the applicant ’s case had not been granted priority ; that the judge PERSON , to whom the applicant ’s case had been assigned on DATE , had to deal with CARDINAL other cases , some of them much older than the applicant ’s ; that the order of precedence had to be respected ; and that the delays in the present case had resulted from systemic problems and were not the fault of the judge . The President of the ORG therefore deemed it impossible to order any of the measures stipulated in LAW . Referring to section CARDINAL , paragraph CARDINAL , the President noted that since other judges were likewise overburdened , it would not be sensible to assign the case to another judge . Moreover , CARDINAL new judicial posts had been created at the court as a result of ORG ( see paragraph CARDINAL below ) , CARDINAL of which had been filled , and the rest of which were in the process of being filled . According to him , this would , reduce delays in the future .

On DATE the applicant lodged a motion for a deadline under section CARDINAL of LAW . He relied on substantially the same reasons as in his supervisory appeal and requested that the case be decided in DATE time .

On DATE the President of ORG , in agreement with the first - instance decision , dismissed the motion for a deadline , finding that the applicant had simply reiterated the general complaints contained in his supervisory appeal and had , in respect of the requirements stipulated in LAW paragraph CARDINAL ( CARDINAL ) , only indicated the date of the beginning of the proceedings .

Following the judgment in GPE v. GPE ( no . CARDINAL , DATE ) , and decision no . GPE of ORG ( DATE ) , both binding ORG to establish conditions in which the right to a trial without undue delay must be afforded , ORG adopted on DATE a ORG on ORG , the so - called ORG . Its goal is the elimination of backlogs in NORP courts and prosecutor ’s offices by DATE , by providing for structural and managerial reform of the judiciary .

The Act on the Protection of the Right to a Trial without undue Delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , No . CARDINAL “ the CARDINAL Act ” ) , as a part of ORG , has been implemented since DATE .

Section CARDINAL of LAW provides for CARDINAL remedies to expedite pending proceedings - a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) - and , ultimately , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) .

Section CARDINAL defines the criteria that domestic authorities should take into account when assessing the complaints :

“ When deciding on the legal remedies under LAW , the circumstances of the particular case shall be taken into account , namely : its complexity in terms of facts and law ; actions of the parties to the proceedings , in particular as regards the use of procedural rights and fulfilment of obligations in the proceedings ; compliance with rules on the set order for resolving cases , or with statutory deadlines for fixing preliminary hearings or for giving court decisions ; the manner in which the case was heard before a supervisory appeal or a motion for a deadline was lodged ; the nature and type of case and its importance for a party . ”

The supervisory appeal is governed by DATE , which provide as far as relevant :

“ ( CARDINAL ) If a party considers that the court is unduly protracting the decision - making , he or she may lodge a supervisory appeal in writing before the court hearing the case ; the decision thereon is taken by the .... president of the court ( hereinafter ‘ the president of the ORG ) .

( CARDINAL ) For the purposes of decision - making concerning the protection of the right to a trial without undue delay , the supervisory appeal shall contain the following elements :

– indication of circumstances or other particulars concerning the case , which demonstrate that the court is unduly protracting the decision - making ;

“ ( CARDINAL ) If the supervisory appeal is manifestly unfounded having regard to the timetable for resolving the case concerned by the supervisory appeal , the president of the court shall dismiss the appeal by a ruling .

( CARDINAL ) If the supervisory appeal does not contain all the required elements referred to in section CARDINAL(CARDINAL ) of this LAW , the president of the court shall dismiss it by a ruling . No appeal shall lie against that ruling .

( CARDINAL ) If no ruling as provided for in DATE or CARDINAL of this section is given , the president of the court shall , in the framework of his court management competence under the statute governing the court system , forthwith request the .... judge or chair of a court panel ( hereinafter ‘ the judge’ ) to whom the case has been assigned for resolution to submit a report indicating reasons for the duration of proceedings , not DATE after receiving the request of the president of the court or after obtaining the file , if necessary for drawing up the report . The report shall include the declaration in respect of criteria referred to in DATE of this LAW and the opinion on the time - limit within which the case may be resolved . The president of the court may also require the judge to submit the case file if he assesses that , in the light of allegations of the party indicated in the supervisory appeal , its examination is necessary .

( CARDINAL ) If the judge notifies the president of the court in writing that all relevant procedural acts will be performed or a decision issued within a time - limit not exceeding DATE following the receipt of the supervisory appeal , the president of the court shall inform the party thereof and thus conclude the consideration of the supervisory appeal .

( CARDINAL ) If the president of the court establishes that in view of the criteria referred to in LAW CARDINAL of this Act the court is not unduly protracting the decision - making in the case , he shall dismiss the supervisory appeal by a ruling .

( CARDINAL ) If the president of the court ...

( CARDINAL ) If the president of the court establishes that the undue delay in decision - making in the case is attributable to an excessive workload or an extended absence of the judge , he may order that the case be reassigned . He may also propose that an additional judge be assigned to the court or order other measures in accordance with the statute governing the judicial service .

Sections CARDINAL and CARDINAL define the motion for a deadline and provide for measures that may be applied by the court dealing with the motion . They read , in so far as relevant , as follows :

“ ( CARDINAL ) If , under section CARDINAL ) or ( CARDINAL ) of this LAW , the president of the court dismisses the supervisory appeal ... , the party may lodge a motion for a deadline under section CARDINAL(CARDINAL ) of this LAW with the court hearing the case .

( CARDINAL ) The party may lodge the motion for a deadline within DATE after receiving the ruling or after the time - limits provided for in paragraph QUANTITY of this section . ”

“ ( CARDINAL ) If the motion for a deadline is manifestly unfounded , having regard to the timetable for the resolution of the case and the actions of the party , the president of the court shall dismiss it by a ruling .

( CARDINAL ) If the president of the court establishes that in view of the criteria referred to in LAW CARDINAL of this Act the court is not unduly protracting the decision - making in the case , he shall dismiss the motion for a deadline by a ruling .

( CARDINAL ) If the president of the court establishes that , in view of the criteria referred to in section CARDINAL of this Act , the court is unduly protracting the decision - making in the case , he shall order , by a ruling , that the appropriate procedural acts be performed by the judge and shall also set the time - frame for their performance , which may not be DATE and not longer than DATE , as well as set the appropriate deadline for the judge to report on the acts performed .

( CARDINAL ) The president of the court shall decide on the motion for a deadline within DATE after receiving it . ”

Section CARDINAL provides for the limitations concerning filing of a new supervisory appeal or a motion for a deadline .

“ ( CARDINAL ) If the president of the court acts in compliance with LAW , the party may not file a new supervisory appeal nor a motion for a deadline concerning the same case before the expiry of deadlines set in the notification or ruling of the president of the court . This provision shall not apply to cases where detention is proposed or ordered or where an interim measure is proposed .

( CARDINAL ) If a ruling was issued in accordance with LAW , the party may file a new supervisory appeal only after DATE have elapsed from the receipt of the decision . This provision shall not apply to cases where detention is proposed or ordered or where an interim measure is proposed . ”

Further to section CARDINAL , just satisfaction may be provided by payment of monetary compensation , a written statement of ORG or the publication of a judgment . A claim can be lodged under the following condition :

“ ( CARDINAL ) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged , the party may claim just satisfaction under LAW .

Section CARDINAL provides for a compensatory remedy and fixes the maximum amount that could be awarded :

“ ( CARDINAL ) Monetary compensation shall be payable for non - pecuniary damage caused by a violation of the right to a trial without undue delay . Strict liability for any damage caused shall lie with GPE .

( CARDINAL ) Monetary compensation for individual finally resolved cases shall be granted in the amount of CARDINAL up to CARDINAL,CARDINAL euros .

( CARDINAL ) When deciding on the amount of compensation , the criteria referred to in section CARDINAL of this Act shall be taken into account , in particular the complexity of the case , actions of the ORG , actions of the party and the importance of the case for the party . ”

Sections DATE and CARDINAL govern just satisfaction proceedings :

“ ( CARDINAL ) Proceedings to enforce a claim for just satisfaction , provided that the condition referred to in section CARDINAL ) of this Act is met , shall be instituted by a party by means of a motion for settlement lodged with the State Attorney ’s Office with a view to reaching an agreement on the type or amount of just satisfaction . The party may lodge such motion within DATE after the final resolution of the case . The ORG Attorney ’s Office shall rule on the motion of the party within DATE if it establishes that the just satisfaction claim is substantiated . Until the expiry of the above - mentioned period , the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court .

( CARDINAL ) If , in accordance with paragraph CARDINAL of this section , the agreement has been reached with the party , the State Attorney ’s Office shall enter into an out - of - court settlement with the party . ”

“ ( CARDINAL ) If no agreement under LAW of this LAW is reached upon the motion for settlement , or the ORG Attorney ’s ORG and the party fail to negotiate an agreement within DATE of the motion being lodged , the party may bring an action for damages .

( CARDINAL ) An action for damages against GPE shall be brought not DATE after the final resolution of the party ’s case .

The relevant provisions of LAW ( Zakon o pravdnem postopku , ORG no . CARDINAL/CARDINAL ) provide :

“ A judgment , against which an appeal can no longer be lodged , shall become final ( pravnomočen ) , insofar as the party ’s claim or counter - claim has been decided therein .

“ The parties may lodge an appeal against a judgment delivered at first instance within DATE from the service of its written grounds ...

An appeal , lodged on time , precludes the judgment to become final in the part which has been challenged in the appeal . ”

“ The parties may lodge an appeal on points of law against a final judgment , delivered at second instance , within DATE from the service of its written grounds . ”