No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Civil rights and obligations)

András Sajó;Christos Rozakis;Dean Spielmann;Egbert Myjer;Elisabet Fura;Elisabeth Steiner;Françoise Tulkens;Ganna Yudkivska;George Nicolaou;Guido Raimondi;Ineta Ziemele;Ireneu Cabral Barreto;Isabelle Berro-Lefèvre;Ján Šikuta;Jean-Paul Costa;Josep Casadevall;Khanlar Hajiyev;Ledi Bianku;Loukis Loucaides;Mark Villiger;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano

NORP The applicant , who was born in DATE , was detained in GPE ( GPE ) Prison on the date the application was lodged . He is currently living in GPE ) .

On DATE he was remanded in custody .

In a judgment of DATE , ORG sentenced him to DATE imprisonment , of which DATE were suspended , for assault occasioning actual bodily harm , rape and false imprisonment accompanied by acts of torture , committed on DATE .

The applicant provided the ORG with copies of several court decisions , given between DATE and DATE , concerning the issue of his visiting rights in respect of his CARDINAL minor children following his divorce , made final on DATE .

While in prison , the applicant submitted requests for conditional release , transfer to Givenich semi - open prison and temporary leave of absence ( “ prison leave ” ) . The requests for prison leave are the subject of the present case .

The applicant stated that he had submitted a request for prison leave to the Attorney - General in DATE .

At the request of the counselling service ’s psychologist , the applicant explained on DATE that he was requesting prison leave for DATE and had no objection to being escorted while on leave . He stated that the reason for the request was to complete certain administrative formalities , which he listed as follows :

“ ( i ) go to a photographer or photo booth to obtain passport photos ;

( ii ) go to ORG to renew my driving licence ( medical certificate already obtained ) ;

( iii ) go to the embassy to renew my consular registration card ;

( iv ) go to see Mr [ B. ] at GPE police station , investigations division , to pick up an envelope containing documents needed by a former client ;

( v ) go to see the manager of [ B. ] bank in ORG ;

( vi ) go to the tax office in ORG ;

( vii ) meet a group of friends in a restaurant near ORG ;

( viii ) go to my flat in Differdange to collect the remaining documents for the same client ;

( ix ) take some measurements for items I might make in the [ prison ] workshop ;

( x ) go to LOC town hall for a personal meeting with the mayor ;

( xi ) go to the home of Ms [ S. ] in GPE to meet her husband ;

( xii ) go to my lawyer ’s office to hand over the missing documents for my former client ;

( xiii ) if possible , go to the bookshop near [ S. ] ’s house . ”

In his reply , the applicant stated further :

“ ... Unfortunately , the civil damages are still far from being paid , as I have not even had enough funds to make a down - payment . At the moment I am still busy repaying my loans and other debts to the various authorities under the arrangements entered into with the legal departments in order to avoid an unending series of seizures of my property . ... ”

On DATE a psychologist issued a certificate stating that the applicant had begun a course of psychotherapy on DATE which had been discontinued on DATE for reasons beyond his control . She stressed that the applicant was anxious to understand what had driven him to commit the offences and to do everything possible to avoid reoffending . On DATE a second psychologist , who certified that he had had regular meetings with the applicant since DATE , agreed with the comments made in the certificate of CARDINAL DATE .

On DATE the Attorney - General ’s representative sent a memorandum to the prison governor stating , in particular , as follows :

“ ... please inform the prisoner PERSON

that by decision of ORG

[ the ] request for prison leave ... [ is ] refused in view of the risk of deportation ( an application was made to ORG on DATE , but no decision has yet been taken ) . There is also a risk that the prisoner might abscond , given that he has failed to reflect on his crime . Before being allowed any privileges he must begin to pay the civil party . ”

On DATE the applicant reiterated his request , giving the same reasons and the same programme for the DATE ’s prison leave . On DATE his lawyer confirmed the request and added , inter alia , the following :

“ ... granting [ the applicant ] a DATE ’s prison leave during which he could begin to put his affairs in order with a view to leading an independent life [ outside ] prison , [ would ] not only aid [ the applicant ’s ] rehabilitation and reintegration into society , but [ would ] also enable him to start paying damages to the civil party as quickly as possible . ... ”

On DATE the Attorney - General ’s representative sent a memorandum to the prison governor containing the following passage :

“ ... please inform the prisoner PERSON

that by decision of ORG

the decision of CARDINAL DATE refusing his request for prison leave ... remains valid . ”

On DATE the applicant lodged an application with ORG ( tribunal administratif ) for judicial review of the decisions of ORG of DATE and CARDINAL March CARDINAL .

At a hearing held on DATE , ORG raised of its own motion the question whether it had jurisdiction to examine the application for judicial review . The government , who had not raised an objection alleging lack of jurisdiction , left the matter to the discretion of the court . The applicant pleaded that the latter had jurisdiction .

On DATE ORG declined jurisdiction to examine the application for judicial review , for the following reasons :

“ ... A distinction must be made between administrative measures relating to the treatment of prisoners in prison ( such as a decision to place them in a more secure wing of the prison , and in particular imposing a strict confinement regime DATE see ORG ruling no . DATE ) , which are administrative decisions taken in the context of the running of the prison service , and decisions which may alter the nature or scope of a sentence imposed by the ordinary courts , which should be regarded as judicial rather than administrative decisions .

In the instant case it should be noted that the granting or refusal of the privilege of prison leave constitutes a measure which alters the ‘ scope’ of the sentence imposed on the applicant by the ordinary court .

Hence , the CARDINAL decisions in question are judicial in nature .

Accordingly , having regard to their nature as identified above , the impugned decisions can not be the subject of an application to the administrative courts ... ”

On DATE ORG ( cour administrative ) upheld that ruling in the following terms :

“ The [ applicant ] submitted that the court had erred in declining jurisdiction to examine his application for judicial review , arguing that : no other remedy existed in respect of such refusal , with the result that section CARDINAL(CARDINAL ) of the Law of DATE on the organisation of the administrative courts should be applied ; the impugned decisions did not alter the scope of the sentence ; and the court had denied him justice in breach of Article [ CARDINAL § CARDINAL ] of the [ Convention ] by depriving him of a fair hearing .

... The [ applicant ] ’s case concerns a request for prison leave , in other words , a decision which alters the terms of execution of the sentence imposed by the ordinary courts and which should therefore be classified as a judicial rather than an administrative decision .

The expression ‘ the scope of the sentence ORG , used by the court , is not to be understood in the present case as the length of the sentence but as the manner of its execution in a broad sense .

ORG was therefore correct in declining jurisdiction to examine the application .

A finding by the administrative courts that they lack jurisdiction can not be construed as a declaration of unwillingness on their part to rule on the issue ; the allegation of a denial of justice should therefore be dismissed as unfounded .

Article [ CARDINAL § CARDINAL ] of the [ Convention ] is not applicable in respect of a body which has no power to rule on the merits . ... ”

On DATE the applicant submitted a third request for prison leave , stating , inter alia , as follows :

“ ... I have successfully attended several classes run by ORG ] and would like to continue with a view to obtaining the corresponding diplomas .

The diplomas concerned are in accounting and computer ( PC ) use . I completed the previous courses successfully , but if I am to achieve my aim it is now essential for me to be able to attend the classes of the DATE session at ORG itself . ... ”

In a decision of DATE , the request was refused on the ground that the applicant could attend courses in prison and that he had as yet made no substantial efforts towards paying compensation to the victim . The decision also referred to the reasoning of the decision of CARDINAL DATE .

On DATE the applicant submitted a fourth request for prison leave DATE which he produced for the first time before FAC – seeking permission to spend DATE with his children over GPE DATE .

In a decision of DATE , the request was refused on the ground that the applicant ’s visiting rights in respect of his children had not yet been clearly established .

In a fifth request submitted on DATE , the applicant stated , among other things , that he could not understand why , in view of the need for him to reintegrate into society , he had been refused permission to attend the final classes required in order to obtain the diplomas in accounting and computing . He added that the reason he had requested prison leave was to renew his identity papers and driving licence and find a solution regarding the repayment of his debts to the various institutions and the civil party .

On DATE his request was refused for failure to give reasons .

On DATE a sixth request for prison leave was refused on the ground that there was a risk that the applicant would not return to prison .

On DATE a seventh request for prison leave was refused on the grounds that the applicant had been making no efforts , especially with regard to paying compensation to the civil party , and had been refusing to abide by the conditions imposed on him .

Following the refusal of CARDINAL DATE , the applicant applied to the Attorney - General ’s Department on CARDINAL occasions DATE and DATE . He requested assistance in putting in place a repayment plan appropriate to his circumstances and the demands of the civil party , and sought an explanation of the conditions imposed on him with a view to his reintegration into society , so that he could comply with them . On DATE the Attorney - General ’s representative wrote to the applicant informing him that , as matters stood , he did not intend to reply to the various letters , which , in his view , did not call for any comment .

On DATE the Attorney - General acknowledged receipt of a request from the applicant for an interview and said that he would meet him during one of his forthcoming visits to the prison . According to the applicant , the meeting never took place .

On DATE ORG granted the applicant DATE prison leave , subject to the condition that he would be collected from the prison and brought back there by his new girlfriend , at whose home he was to spend DATE .

DATE and DATE the applicant was granted CARDINAL periods of prison leave of DATE , to be spent with his girlfriend .

On DATE the applicant was transferred to PERSON semiopen prison . DATE , in a separate decision , he was granted CARDINAL days’ prison leave in order to look for work and complete various administrative formalities ; it was also decided to place him under the semicustodial regime once he had found work .

On DATE the applicant signed a vocational rehabilitation contract as a cook .

On DATE his request for conditional release was granted .

In CARDINAL decisions ( dated DATE and DATE and CARDINAL DATE ) , the requests made by the applicant for suspension of his sentence , due to end on DATE , were refused .

On DATE the applicant started up a business as a sole trader .

On DATE the applicant ’s sentence was suspended . According to his submissions , he left PERSON definitively on that date .

Section CARDINAL of the Law of CARDINAL DATE on certain means of executing custodial sentences ( “ the DATE LAW ) lists the various arrangements which execution of a custodial sentence may entail :

“ The execution of a custodial sentence may entail CARDINAL of the following : serving of the sentence in instalments , semi - custodial regime , prison leave , suspension of sentence , early release . ”

Section CARDINAL of the DATE PERSON defines prison leave as follows :

“ Prison leave shall consist of permission to leave prison either for part of DATE or for periods of TIME . The time shall count towards the length of the sentence . ”

Section CARDINAL of the DATE PERSON provides as follows with regard to the objectives of prison leave :

“ This privilege may be granted to prisoners who are domiciled or resident in the country , either for family reasons or to make preparations for their rehabilitation and reintegration into professional life , or on a trial basis with a view to their conditional release . ”

Section CARDINAL of the DATE PERSON provides that this measure may be granted to first offenders once CARDINAL of their sentence has been served .

Section CARDINAL of the DATE PERSON provides as follows :

“ In applying the arrangements provided for by this PERSON , consideration shall be given to the personality of the prisoner , his or her progress and the risk of a further offence . ”

According to the comments on this provision accompanying the relevant bill when it was submitted , the granting of measures relating to the means of executing a sentence “ will never be automatic and will ultimately remain at the discretion of the postsentencing authority , which will decide freely on the basis of the information it has obtained concerning the prisoner ” .

Under the terms of ORG of DATE laying down , inter alia , detailed arrangements for the granting of prison leave , such leave may be granted at the request of the prisoner concerned or his or her representative ( DATE ) ; the request must be made in writing , unless the prisoner is unable or does not know how to write . The interval between periods of leave must be DATE , except in special circumstances ( DATE ) . Where a request for prison leave is refused , no new request may be made within DATE , unless new evidence comes to light ( Article CARDINAL ) .

Section CARDINAL of the DATE PERSON states as follows :

“ In the case of custodial sentences of over DATE ... the measures provided for by this PERSON ... shall be taken by the Attorney - General or his or her representative in accordance with the majority decision of a board comprising , in addition to the Attorney - General or his or her representative , a judge and a public prosecutor .

The board shall be convened by the Attorney - General or his or her representative and shall be chaired by the judge .

With the exception of the Attorney - General or his or her representative , the full members and their substitutes shall be appointed by ministerial order for a renewable DATE term . ”

In Recommendation No . CARDINAL , set out in his activity report on DATE from DATE to DATE , the ORG expressed the view that the system for the execution of sentences in GPE needed to be overhauled , and advocated the creation of the office of post - sentencing judge . The latter would give decisions , open to appeal , on applications for prison leave following adversarial proceedings .

In his activity report on DATE from DATE to CARDINAL DATE , the ORG took note of the fact that the Minister of ORG , in an article published in a GPE DATE newspaper , had spoken in favour of handing over to a judicial body some of the powers currently exercised by the Attorney - General ’s representative with responsibility for the execution of sentences or by ORG . On DATE the Minister of ORG presented the broad outlines of the planned prison reform , which included a bill approved by the government at a ORG meeting on DATE reforming the system of execution of sentences by establishing , inter alia , a postsentencing court . The bill must now go through the different stages of the legislative procedure .

There are CARDINAL prisons in GPE , with a prison population of CARDINAL . Most prisoners are held in FAC , which is a closed institution . There is also a semiopen prison ( FAC ) which mainly houses prisoners approaching the end of their sentences or serving shorter sentences . Most leave the prison DATE to go to work .

The Government stated that a distinction needed to be made between requests for prison leave made by inmates in FAC and those in PERSON .

NORP In DATE , CARDINAL requests for prison leave were granted and CARDINAL refused ; for DATE , the figures were CARDINAL and CARDINAL respectively .

The Government observed that numerous requests for prison leave were bound to fail as they were submitted before expiry of the statutory period . In other words , the prisoners concerned had not yet served CARDINAL of their sentence ( in the case of a first offender ) or CARDINAL their sentence ( in the case of a repeat offender ) , or the request was made DATE after notification of the refusal of a previous request .

The Recommendation states , inter alia , as follows :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Considering that prison leave is one of the means of facilitating the social reintegration of the prisoner ;

Having regard to experience in this field ,

Recommends the governments of member PERSON :

NORP to grant prison leave to the greatest extent possible on medical , educational , occupational , family and other social grounds ;

NORP to take into consideration for the granting of leave :

– the nature and seriousness of the offence , the length of the sentence passed and the period of detention already completed ,

– the personality and behaviour of the prisoner and the risk , if any , he may present to society ,

– the prisoner ’s family and social situation , which may have changed during his detention ,

– the purpose of leave , its duration and its terms and conditions ;

NORP to grant prison leave as soon and as frequently as possible having regard to the aforementioned factors ;

NORP to grant prison leave not only to prisoners in open prisons but also to prisoners in closed prisons , provided that it is not incompatible with public safety ;

to inform the prisoner , to the greatest extent possible , of the reasons for a refusal of prison leave ;

to provide the means by which a refusal can be reviewed ;

The Recommendation , in its relevant parts , reads as follows :

Bearing in mind the relevance of the principles contained ... in particular [ in ] :

– Recommendation No . R ( CARDINAL ) CARDINAL on prison leave ;

For the purposes of this recommendation , a ... long - term prisoner is CARDINAL serving a prison sentence or sentences totalling DATE or more .

The aims of the management of ... long - term prisoners should be :

– to increase and improve the possibilities for these prisoners to be successfully resettled in society and to lead a law - abiding life following their release .

DATE . Particular efforts should be made to allow for the granting of various forms of prison leave , if necessary under escort , taking into account the principles set out in Recommendation No . R ( CARDINAL ) CARDINAL on prison leave .

The Recommendation reads , inter alia , as follows :

“ ORG , under the terms of Article CARDINAL.b of the Statute of the Council of Europe ,

Stressing that the enforcement of custodial sentences and the treatment of prisoners necessitate taking account of the requirements of safety , security and discipline while also ... offer[ing ] ... treatment programmes to inmates , thus preparing them for their reintegration into society ;

Endorsing once again the standards contained in the recommendations of ORG , ... and in particular ... Rec(CARDINAL)CARDINAL on the management by prison administrations of life sentence and other long - term prisoners ;

CARDINAL NORP As soon as possible after such admission , reports shall be drawn up for sentenced prisoners about their personal situations , the proposed sentence plans for each of them and the strategy for preparation for their release .

CARDINAL ORG prisoners shall be encouraged to participate in drawing up their individual sentence plans .

CARDINAL LOC plans shall as far as is practicable include :

d. preparation for release .

CARDINAL There shall be a system of prison leave as an integral part of the overall regime for sentenced prisoners .

CARDINAL ORG prisoners shall be assisted in good time prior to release by procedures and special programmes enabling them to make the transition from life in prison to a law - abiding life in the community .

CARDINAL NORP In the case of those prisoners with longer sentences in particular , steps shall be taken to ensure a gradual return to life in free society .


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

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

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

The ORG maintained that the applicant began to serve his sentence on DATE , whereas the applicant submitted that the date had been CARDINAL DATE . The date supplied by the applicant was confirmed by a certificate issued by the authorities of ORG on DATE , which stated that the applicant had been committed to ORG to serve his sentence on CARDINAL DATE and had been due to complete this sentence on CARDINAL DATE .

On DATE the applicant was committed to ORG where he remained until DATE .

On DATE he was transferred to FAC and was detained there until DATE .

From DATE to CARDINAL DATE the applicant was detained in FAC . On DATE he was released .

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

The applicant , who submitted that he agreed in general with the facts as supplied by the ORG , nevertheless maintained that during most part of his detention he had been held in overcrowded cells in which the statutory minimum standard of CARDINAL m² per person was not respected .

In the applicant 's submission , the overcrowding and inadequate living conditions had caused him serious distress and many health problems . He has had suicidal thoughts . He suffers from depression , insomnia , regular headaches , problems with orientation and memory , glaucoma and scurvy .

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

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

DATE the applicant was placed in a cell with a surface area of QUANTITY , which he shared with CARDINAL other inmates . From DATE he remained in a cell measuring GPE . From DATE he was held in that cell together with CARDINAL other persons , from CARDINAL to DATE with CARDINAL persons and from DATE with QUANTITY . From DATE he was placed in a cell measuring QUANTITY which he shared with CARDINAL other inmates .

From DATE the applicant was placed in a cell measuring QUANTITY , which he shared with CARDINAL other inmates . From DATE to CARDINAL DATE he was held with CARDINAL other inmates in a cell with a surface area of QUANTITY . From DATE he was placed in a cell that measured QUANTITY . From DATE he shared that cell with CARDINAL other persons , from DATE to DATE with CARDINAL person and from DATE with CARDINAL persons .

DATE the applicant was held in a cell measuring QUANTITY which he shared with CARDINAL other inmates . From DATE to DATE he was held in a cell a the surface area of QUANTITY . From DATE to DATE he was detained with CARDINAL other persons , from DATE with QUANTITY persons and from DATE again with QUANTITY persons .

On DATE the applicant was transferred to a cell measuring QUANTITY in which he remained until DATE . From CARDINAL DATE to DATE he was detained with CARDINAL other inmates and from CARDINAL to DATE with CARDINAL inmates . From CARDINAL to CARDINAL DATE the applicant was detained in a cell measuring QUANTITY with CARDINAL other persons .

The Government submitted that the information obtained from the authorities of ORG was incomplete and they could only supply the periods during which the applicant had been held in cells in which the statutory minimum requirement of QUANTITY per person had not been respected . They listed the following periods :

DATE ;

DATE ;

DATE ;

DATE ;

CARDINAL May-CARDINAL DATE ;

DATE ;

DATE ;

DATE .

NORP Before lodging his application the applicant had not made any formal complaints to the penitentiary authorities . Nor had he brought a civil action in tort to seek an improvement of his detention conditions or compensation for the alleged breach of his personal rights . He submitted that any such actions would have been ineffective . He maintained , however , that he had made numerous oral complaints to the prison administration , raising the problem of overcrowding and inadequate living conditions in the prisons in which he had been held throughout his incarceration .

In the applicant 's observations of CARDINAL DATE his lawyer stated that “ the applicant [ had ] decided to file a lawsuit against the ORG ” . The applicant failed to provide the ORG with further information as to whether he had indeed lodged a civil action under ORG CARDINAL and CARDINAL of LAW for compensation for the infringement of his personal rights .

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

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

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

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

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

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

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

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

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

Paragraph QUANTITY of the CARDINAL Ordinance provided :

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

Paragraph CARDINAL of the Ordinance read :

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

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

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

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

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

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

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

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

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

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

The judgment was published in ORG ) on DATE .

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CARDINAL ) a person sentenced to imprisonment DATE ;

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

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

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

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

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

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

Paragraph CARDINAL reads as follows :

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

Paragraphs CARDINAL state the following :

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

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

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

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

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

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

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

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

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

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

NORP In CARDINAL judgments , namely :

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

ORG quashed ORG judgment and remitted the case .

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

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

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

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

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

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

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

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


The applicant is a NORP citizen , born in DATE and living in GPE . He is a lawyer .

A.

The applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) on DATE , claiming that the LAW on compensation for and restitution of assets taken under the NORP communist regime , as a whole , violated the constitutional guarantees of right to property , social justice , rule of law and right to inheritance . Furthermore , he claims that the provisions of the LAW prevented him from protecting his own legal interests as well as the interests of clients whom he represented as an attorney at law .

After DATE , the applicant requested the speeding up of proceedings before ORG and received no answer .

ORG gave its decision on DATE , which was published in ORG ( ORG novine ) . ORG quashed or changed several provisions of the LAW in question as not being in conformity with LAW . Firstly , changes were made so as to recognise the capacity of persons of foreign ( non - NORP ) nationality to be entitled to the rights stemming from the LAW in question . Secondly , the former owner 's priority right to buy a flat where there existed previously a specially protected tenancy ( stanarsko pravo ) was abolished .

B. Relevant domestic law before the amendments made by ORG ( see above )

The relevant provisions of the LAW on compensation for and restitution of assets taken under the NORP communist regime provide the following :

Article CARDINAL : the Act applies to former owners and their statutory heirs who are relatives of the first degree , excepting those of foreign nationality .

Article CARDINAL : most of the flats that were let under a specially protected tenancy shall not be returnable to their original owners . Compensation may be due .

DATE : company property shall not be returnable . It provides for compensation for such property .

Article CARDINAL : only movable property of cultural , artistic or historical value will be returned to former owners . Where such property is presently considered as a part of the cultural heritage and is in the ownership of collections , museums , galleries or similar institutions , only compensation may be awarded .

Article CARDINAL : real property which formed part of the assets of a company shall not be returnable , but compensation may be due .

Article CARDINAL excludes from restitution property presently in the possession of legal entities in the fields of health , social welfare , education , culture , science , etc . It provides , however , that ORG may decide to return such property in exceptional circumstances .

DATE excludes from restitution a variety of property belonging to legal persons performing public services or dedicated to public use or property extra commercium . Restitution is likewise excluded where it would entail damage to the environment or would prejudice the operation of industrial complexes .

Article CARDINAL establishes the sum of CARDINAL NORP kunas as the maximum amount of compensation .


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

The applicants live in LOC in GPE .

In DATE the applicants engaged company ORG , represented by PERSON , to build a house for them .

On DATE company ORG filed a claim against the applicants with the Bad Kreuznach Regional Court ( ORG ) , seeking CARDINAL,CARDINAL.CARDINAL ORG ) in outstanding payments . The claim reached ORG on DATE .

On DATE , following an extension of the time allowed for submissions , the applicants contested the claim . They argued that company ORG had failed to fulfil its contractual obligations and that the building had serious construction defects .

On DATE , following an extension of the timelimit , company ORG reduced its claim to DEM CARDINAL,CARDINAL.CARDINAL .

DATE and DATE both parties – following several extensions of the set time - limits – submitted extensive written statements .

On DATE the presiding judge of ORG instructed the judge rapporteur to prepare the oral hearing .

On DATE the plaintiff requested ORG to schedule a hearing .

On DATE the presiding judge assigned the case to a new rapporteur .

On DATE ORG held an oral hearing .

DATE both parties submitted further observations .

On DATE ORG instructed the expert PERSON to prepare an expert opinion on the alleged building defects . It further decided to hear evidence from witnesses .

On DATE ORG dispatched the case file to the expert .

On DATE the applicants requested that the questions to the expert be amended .

On DATE the presiding judge rejected the ORG request in order , inter alia , to avoid delays . He further announced that a new rapporteur had been appointed .

On DATE the applicants submitted a document on the progress of the building work ( PERSON ) , totalling CARDINAL pages .

On DATE the presiding judge rejected the applicant ’s request to forward the document to the expert .

On DATE the expert submitted his expert opinion .

On DATE ORG served the expert opinion on the parties for comments within DATE .

On DATE ORG counsel withdrew from the case .

On DATE the applicants lodged a criminal complaint ( PERSON ) against PERSON for having lied during the proceedings .

DATE and CARDINAL DATE the case file was dispatched to ORG .

On DATE the applicants submitted a personal statement totalling CARDINAL pages . On DATE the presiding judge informed them that these submissions could not be taken into consideration , as they had not been drafted by counsel .

On DATE , following several extensions of the set time - limit , the applicants’ new counsel submitted critical comments on the expert opinion . He further requested on several occasions that evidence be taken from the expert in court and that another expert opinion be commissioned .

On DATE , following CARDINAL extensions of the time - limit , the plaintiff submitted further comments .

On DATE the presiding judge transferred the case file to the rapporteur .

On DATE the case file was dispatched to ORG .

On DATE company H. lodged a thirdparty complaint ( PERSON ) against its subcontractor .

On DATE the applicants appointed a new counsel , who had worked on the case previously .

On DATE the plaintiff requested ORG to expedite the proceedings .

On DATE the third party acceded to the proceedings .

On DATE the case file was transferred to a new rapporteur .

On DATE the applicants asked whether ORG intended to schedule a further hearing .

On DATE ORG scheduled a hearing for DATE .

On DATE the plaintiff informed ORG that company ORG had been converted into a limitedliability company .

DATE the case file was dispatched to ORG .

On DATE the plaintiffs increased the amount of their claim .

On DATE and DATE ORG heard evidence from CARDINAL witnesses .

On DATE ORG scheduled an inspection of the building site for DATE .

DATE both parties submitted further observations .

On DATE the applicants lodged an appeal to a higher authority ( Dienstaufsichtsbeschwerde ) against the presiding judge of ORG for breach of his official duties , raising the issue of the length of the proceedings . The applicants simultaneously informed the President of ORG , ORG and ORG of their appeal .

On DATE the President of ORG informed the applicants that she did not intend to impose disciplinary measures on the presiding judge . While conceding that the proceedings in question were lengthy , she found this to be due mainly to the fact that they were extremely contentious and that both parties had submitted lengthy written statements . She further pointed out that both parties had repeatedly requested the extension of deadlines and had failed to pay an advance on the experts’ fees . The proceedings had been further delayed by the public prosecutor ’s repeated requests to obtain the case file and by the fact that the judge rapporteur had been replaced several times . The President concluded that the parties’ counsel should reduce the scope of the litigation in order to permit ORG better to comply with its obligation to speed up the proceedings .

On DATE ORG conducted an inspection of the building site .

DATE . On CARDINAL DATE the case file was dispatched to ORG .

On DATE the presiding judge ordered the preparation of a copy of the case file , in view of its frequent dispatch .

On DATE the plaintiff informed ORG that he had filed for insolvency on DATE . Preliminary insolvency proceedings had been opened on DATE .

On DATE and DATE ORG decided to hear a further expert opinion on the alleged building defects . They also ordered the applicants to pay an advance on the expert ’s expenses .

On DATE the applicants requested an extension of the time allowed for paying an advance on the expenses .

On DATE the applicants lodged an objection of bias ( ORG ) against expert PERSON On an unspecified date , they lodged a criminal complaint against that same expert .

DATE and DATE the case file was dispatched to ORG .

On DATE the applicant requested a further extension of the time allowed to pay an advance on the expenses . They further alleged that the proceedings had been suspended owing to the plaintiff ’s insolvency .

On DATE the applicants lodged an objection of bias against ORG as a whole as well as against its presiding judge , arguing that the judges had committed several procedural errors .

On DATE ORG rejected as inadmissible the complaint against the ORG as a whole .

DATE the case file was dispatched to ORG .

On DATE plaintiff ’s counsel informed the court that insolvency proceedings had been opened on DATE and declared that the administrator in insolvency wished to take over the case .

On DATE the applicants received the rapporteur ’s submissions on the objection of bias , with a request for comments to be submitted by DATE .

On DATE the applicants lodged an appeal against ORG decision of DATE .

On DATE ORG dismissed the applicant ’s appeal against ORG decision of DATE as having been lodged outside the statutory time - limit of DATE , and fixed the value at issue ( PERSON ) at CARDINAL,CARDINAL.CARDINAL MONEY ( ORG ) .

On DATE ORG dismissed the applicants’ objection against the presiding judge .

On DATE the applicants lodged another objection of bias against the presiding judge of ORG , which was dismissed on DATE .

DATE and DATE the case file was sent to ORG .

On DATE ORG dismissed the objection of bias against the presiding judge , finding that there was no indication that the latter had been biased against the applicants .

DATE . On DATE ORG rejected the ORG complaint against the value which it had determined in its decision of CARDINAL DATE .

On DATE expert PERSON died .

On DATE ORG dismissed the applicants’ appeal against ORG decision of DATE and fixed the value at issue at between ORG CARDINAL,CARDINAL and EUR CARDINAL,CARDINAL .

On DATE the presiding judge proposed that evidence be taken from a further expert .

On DATE and DATE the applicants lodged criminal complaints against the judges of ORG .

On DATE the applicants informed ORG that they had entered into negotiations with a view to a friendly settlement .

On DATE , ORG , with the parties’ consent , ordered that the proceedings be suspended ( Ruhen des PERSON ) .

On DATE the trustee in insolvency of company ORG withdrew the action against the applicants . In return , the applicants paid ORG CARDINAL,CARDINAL and waived all their remaining claims against company H.

DATE . On DATE ORG fixed the value of the claim at ORG CARDINAL,CARDINAL.CARDINAL .

On DATE ORG fixed the value of the claim at the same amount .

On DATE the applicants lodged a constitutional complaint concerning the length of the proceedings before ORG .

On DATE ORG refused to entertain the constitutional complaint , finding that ORG had not violated the applicants’ right to a hearing within a reasonable time .

The relevant parts of the decision read as follows :

“ ... the length of proceedings – almost eight years – appears to be still just acceptable ( gerade noch hinnehmbar ) from a constitutional point of view . While the case which had to be adjudicated by ORG was not particularly complex from a legal point of view , it was conducted in a very contentious and lengthy manner . Furthermore , it does not appear from the case file that ORG delayed the proceedings ... by any inactivity on its part or that it neglected to advance the proceedings . ORG constantly advanced the proceedings by exchanging the written statements rapidly , deciding on the taking of evidence and issuing legal instructions .

It must further be taken into account that the applicants repeatedly contributed to the obstructions and delays in the proceedings by requesting that further evidence be taken and time - limits extended and by lodging objections of bias and criminal complaints necessitating the dispatch of the case file . While these actions form part of the parties’ rights in civil proceedings , the relevant court can not be held responsible for the resulting prolongation of the proceedings .

Finally , it must be borne in mind that the applicants , as far as can be established , have not been affected economically by the length of the proceedings .

While no objection can be made to the conduct of the proceedings from a constitutional point of view , ORG – in view of the length of the proceedings – is requested to speed up the proceedings and bring them to an early conclusion . ”

On DATE the applicants lodged a further constitutional complaint alleging a violation of their right to a fair trial . They argued that ORG had committed several material and procedural errors which gave them good grounds for believing that the judges were biased against them . In particular , the applicants claimed that ORG had arbitrarily failed to determine the correct value at issue .

On DATE ORG refused to entertain the ORG complaint .


Violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

C. Russo;J.A. Carrillo Salcedo;N. Valticos;R. Pekkanen

PERSON , a NORP national , resides in GPE .

A District Attorney ( GPE ) of GPE , Mr J. , issued instructions to the police ( PERSON ) requiring her to be brought to give evidence as a witness on DATE . He did so in connection with a criminal investigation concerning QUANTITY persons - PERSON of GPE and PERSON of GPE - suspected of living on the earnings of prostitution and of procuring .

ORG On DATE the applicant was taken by the GPE municipal police to ORG ( PERSON ) in that town , where she was questioned as a witness by LAW , although no summons to appear as a witness ( PERSON ) had been issued . In answer to his questions , she admitted making a living from prostitution , but maintained that she knew PERSON and PERSON only by name and that she did not pass on to them any of her earnings .

ORG On concluding his examination , the District Attorney signed a detention order ( ORG ) remanding the applicant in custody on grave suspicion of having given false evidence .

According to this order , members of the " Hell ’s Angels " of GPE and GPE were strongly suspected of having brought to GPE NORP prostitutes , some of whom had married NORP nationals who received payment for this . The women were then encouraged , partly under threat , to engage in prostitution under the protection of the " Hell ’s Angels " , who were paid a part of the proceeds in exchange . There were strong grounds for supposing that PERSON was one of these women . When appearing as a witness , she had denied any contact with the " Hell ’s Angels " , which appeared unlikely to be true .

The order referred in particular to the danger of collusion and the possibility that evidence might be tampered with . It stated further that the applicant could appeal within TIME to ORG ) of the GPE of GPE .

PERSON was released on DATE .

ORG On DATE District Attorney J. instituted proceedings before the Judge in Criminal Cases ( Einzelrichter in Strafsachen ) at ORG ( Bezirksgericht ) . His indictment ( PERSON ) alleged that the applicant had given false evidence in judicial proceedings and , as a possible additional charge ( eventualiter ) , that she had been an accessory to a criminal offence . He sought the imposition on PERSON of a fine of MONEY .

The trial took place on DATE , after the indictment had been accepted ( zugelassen , LAW , " StPO " ) ; the District Attorney was not present . The accused ’s lawyer stated on that occasion ( translation ) :

" In this case we are confronted in the first place with a violation of ... Article CARDINAL para . CARDINAL ( article CARDINAL ) of LAW which provides that anyone who is arrested or detained in accordance with the provisions of Article CARDINAL para . CARDINAL ( c ) ( article QUANTITY ) ... must be brought promptly before a judge or other officer authorised by law to exercise judicial power . This never happened in the present case . Indeed the person who remanded the accused in custody , District Attorney J. , is now also prosecutor [ Ankläger ] . "

ORG On DATE ORG acquitted PERSON on the ground that she had never been validly summoned to appear as a witness ( vorgeladen PERSON ) , which made her testimony unlawful and inadmissible . The judgment did not refer to the defence argument based on LAW CARDINAL ( article CARDINAL ) of the Convention .

ORG On appeal ( PERSON ) by the prosecution , ORG ( Obergericht ) of the GPE of GPE fined the applicant MONEY for attempting to give false evidence .

In its judgment of CARDINAL DATE , the appeal court found that the accused ’s testimony was not unlawfully obtained and could therefore be used in evidence . In addition , it referred to the monitoring of telephone conversations between PERSON and PERSON , carried out by the NORP authorities who had communicated the transcript thereof to the NORP judicial authorities in accordance with the system of mutual assistance in criminal matters . The court inferred from this evidence that the applicant in fact knew PERSON and PERSON

On the question of the issue raised under LAW para . CARDINAL ( article CARDINAL ) of the LAW , the appeal court said ( translation ) :

" Finally , ... the appellant ’s lawyer ’s objection that , on her arrest and in contravention of LAW para . CARDINAL ( article CARDINAL ) of the LAW , the accused was not brought before a judge or other officer authorised by law to exercise judicial power is unfounded . For , according to the case - law of ORG , the GPE District Attorney also exercises judicial power within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention at the stage of the investigation ( ORG [ ORG fédéral suisse ] CARDINAL Ia CARDINAL ) . "

ORG On DATE ORG ( Kassationsgericht ) of the GPE of GPE dismissed PERSON application for a declaration of nullity ( PERSON ) .

It took the view that the submission relating to LAW CARDINAL ( article CARDINAL ) could not be taken into account in this instance . If PERSON had wished to challenge the District Attorney on this point , she should have done so during the investigation .

ORG On DATE PERSON lodged a public - law appeal with ORG . She complained , inter alia , that , notwithstanding LAW CARDINAL ( article CARDINAL ) , the same LOC Attorney had both ordered her detention on remand and drawn up the indictment .

ORG dismissed the appeal by a judgment of CARDINAL DATE , which was served on DATE . As to the complaint based on LAW CARDINAL ( article CARDINAL ) , it held as follows ( translation ) :

" As the appellant has long since been released from detention on remand , she no longer has a current , practical interest in a ruling on [ her ] complaint , for which reason the ORG can no longer deal with it . The objection would in any event be unfounded since both ORG ( ORG CARDINAL Ia CARDINAL et seq . ) and ORG ( the PERSON judgment of CARDINAL DATE ) have declared that at the stage of the investigation the GPE District Attorney qualifies as an ‘ officer authorised by law to exercise judicial power’ within the meaning of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW . "

ORG The GPE of GPE is divided into CARDINAL districts , each of which has LOC with CARDINAL or more Attorneys . The status and powers of ORG were laid down in LAW of DATE ( Gerichtsverfassungsgesetz , " GVG " ) , which came into force on DATE and which in substance re - enacted the provisions of an Act of DATE .

Ordinary District Attorneys are elected by universal suffrage for a term of office of DATE ( section CARDINAL ORG ) . If necessary , ORG appoints GPE for a specified period ( sections CARDINAL and CARDINAL ORG ) . Both Ordinary and Special District Attorneys are subordinate to ORG who in turn comes under the authority of ORG and ORG ( NORP ) of the GPE of GPE .

ORG carry out CARDINAL different functions .

ORG The investigation ( instruction ) of criminal cases comes within the competence of the prosecuting authorities ( section CARDINAL ORG ) . The District Attorney conducts the investigation except in those cases where it is entrusted by law to ORG or a judge ( LAW ) .

ORG LOC may make a detention order ( MONEY CARDINAL ORG ) , the grounds for which he must state . He has to hear an arrested suspect within TIME ( FAC ) . During this first interrogation , at which the suspect ’s lawyer is not normally present , the suspect must be clearly informed of the reasons prompting the suspicions held against him ( Article CARDINAL ORG ) and of the existence of a right of appeal against the order ( DATE Circular from ORG ) . Detention on remand ordered by the District Attorney may not exceed DATE ; this period may be extended by the President of ORG or , in cases coming within the jurisdiction of ORG , the President of ORG of ORG ( Article CARDINAL ORG ) .

ORG In carrying out the investigation , the District Attorney is under a duty to establish both incriminating and exonerating evidence with equal care ( LAW ) .

ORG LOC is the prosecuting authority before the " Judge in Criminal Cases " and before FAC in cases concerning petty offences and misdemeanours ; for the higher cantonal courts ( ORG and ORG - section CARDINAL ORG ) , this function is performed by ORG .

ORG Unless he finds that there is no case to answer , the District Attorney , or , depending on the seriousness of the offence , ORG , must institute the main proceedings ( GPE ) by drawing up the indictment ( LAW ) . In preparing the indictment , he has to take account of both incriminating and exonerating evidence ( Article CARDINAL para . QUANTITY StPO ) , without setting out the grounds of suspicion or any legal considerations ( Article CARDINAL para . CARDINAL ORG ) .

The President of ORG , or the President of ORG of ORG , as the case may be , decides whether to accept or reject the indictment ( LAW ) .

ORG Before the trial court , LOC has the status of a party in the proceedings ( Article CARDINAL para . QUANTITY StPO ) . He assumes the role of prosecuting authority , but is not required to attend the hearing unless the sentence sought exceeds CARDINAL months’ imprisonment or additional investigative measures are ordered .

ORG Finally , the District Attorney is empowered to issue a punishment order ( Strafbefehl ) if the accused has admitted his guilt and if a fine ( GPE ) or a prison sentence of not DATE is deemed sufficient ( LAW ) ; however , the person concerned is entitled to enter an objection ( ORG ) to the punishment order , as is ORG ( Article CARDINAL StPO ) .

ORG The combination of the functions of investigation and prosecution has given rise to case - law - at cantonal and federal level - which has recently been confirmed .

ORG In a judgment of CARDINAL DATE ( ORG Zürich ) , ORG stated as follows ( translation ) :

" In this connection , ORG has held that the District Attorney of the GPE of GPE exercises judicial power ( ORG CARDINAL Ia CARDINAL , confirmed by ORG of ORG A no . CARDINAL , ... ; see also ORG CARDINAL Ia CARDINAL ) . However , the appellant considers ... that reference to these precedents is not relevant as in the instant case the District Attorney who had drawn up the indictment was the same as the one who had ordered the arrest .

This complaint is unfounded . What is decisive is whether at the time of the arrest the decision was taken by an official who satisfied the requirements of LAW para . CARDINAL ( article CARDINAL ) of LAW in other words by an officer who exercised judicial power . This question has been answered in the affirmative by the eminent courts referred to above . This finding that the functions discharged by that officer are compatible with the provisions of the LAW can not subsequently be called in question on the sole ground that , once the investigation has been completed , the GPE Attorney assumes the role of prosecuting authority . The status of this officer at the time of and in relation to the decision to arrest remains the same , and the arrest , initially regarded as being lawful , can not subsequently become unlawful on this sole ground . Furthermore , it is only natural that the District Attorney , as the investigating authority and acting within his powers , should draw up an indictment after the investigation has been completed if he considers that he possesses sufficient evidence of the accused ’s guilt . Nor can it readily be seen what the accused would gain if the indictment had to be drawn up by an officer other than the LOC Attorney who , at the beginning of the investigation , had ordered his arrest . In other words , MONEY DATE para . CARDINAL ( article CARDINAL ) of the LAW is concerned , the fact that the officer who ordered the arrest is the same as the officer who drew up the indictment is not decisive . "

ORG On a public - law appeal lodged against the judgment cited in the preceding paragraph , ORG held as follows on DATE ( translation ) :

" It has to be recognised that it is possible - as the instant case demonstrates - that the District Attorney may subsequently have occasion to draw up the indictment and even to put the prosecution case before the court . The mere fact that this possibility exists is not , however , decisive in this respect . Firstly , the eventuality can not put in question or negate the Attorney ’s independence from the parties at the time of an arrest . As has been shown , it is far more a matter of looking at the position as it stands at the time when the detention is ordered . Secondly , the possibility in question was held not to be decisive by ORG in its judgment in the PERSON case . In that case it could also have happened that the District Attorney subsequently had to draw up the indictment , since the jurisdiction of ORG at the stage of beginning the investigation or at the time of the arrest had not been established . This eventuality did not , however , prevent ORG from finding that there had been no breach of Article CARDINAL para . CARDINAL ( article CARDINAL ) of the LAW in the PERSON case . That fact likewise shows that the relevant officer ’s independence and impartiality must be considered exclusively at the time of the arrest and not in the light of the mere possibility that he may play a role later in the proceedings and draw up the indictment . "

ORG In DATE , CARDINAL District Attorneys in the GPE of GPE dealt with CARDINAL investigations , of which PERCENT resulted in an indictment , PERCENT in the case being discontinued , PERCENT in a punishment order and PERCENT in the referral of the case to a higher court .

ORG The number of cases in which the District Attorney personally conducted the prosecution in court does not appear in the statistics , but according to the Government it is very low .


CASE OF LESHCHENKO AND TOLYUPA v. UKRAINE

Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicants are NORP nationals , who were born in DATE and DATE , respectively . They reside in the GPE village , GPE . Ms GPE was the second applicant ’s guardian until he reached the age of majority .

On DATE a bus belonging to ORG No . DATE ( the “ TCK ” ) , in which the second applicant travelled to work , had an accident . As a result of the accident he received multiple injuries which left him with a permanent disability , as established by a medical commission .

On DATE the ORG of Makeyevka sentenced ORG ( the bus driver responsible for the accident ) to CARDINAL years’ imprisonment following his conviction for an infringement of road traffic regulations which had had grave consequences . The court did not consider the applicants’ claims for pecuniary damage lodged in the course of the criminal proceedings , and advised them to appeal to the civil courts in separate proceedings .

In DATE the first applicant , the mother and legal representative of the second applicant , lodged complaints on his behalf with ORG against the ORG , seeking compensation for injuries suffered by the second applicant as a result of the accident .

On DATE the court allowed the ORG claims and ordered the ORG to pay him CARDINAL NORP PERSON ( українські карбованці ) in compensation . Later , ORG quashed this judgment and remitted the case for reconsideration .

In DATE the second applicant , after reaching the age of majority ( набуття повнолітнього віку ) , lodged his own complaints with ORG against the ORG , seeking compensation for the damage caused by the accident . On DATE the court allowed his claims and ordered the ORG to pay him UAH CARDINAL,CARDINAL in compensation for non - pecuniary damage . Moreover , it fixed a DATE pension of UAH CARDINAL to be paid to him for the period from DATE until DATE . This judgment was not appealed in cassation and became final .

On DATE the applicants lodged complaints with the Prosecutor of GPE , seeking to institute a supervisory review of the judgment of DATE .

NORP In DATE the Deputy Prosecutor of GPE lodged a protest with the ORG of ORG , seeking to quash the judgment of DATE . On DATE the ORG quashed this judgment and remitted the case to ORG .

On DATE the second applicant was declared to be in the “ first group ” of disabled persons ( перша група інвалідності ) .

On DATE the ORG of Makeyevka allowed the applicants’ petition for a forensic medical examination , suspending the proceedings in the meantime .

On DATE the forensic medical examination fixed the second applicant ’s loss of work capacity at PERCENT ( з повною втратою працездатності ) .

In DATE the ORG of Makeyevka re - examined the second applicant ’s petition on the basis of the first applicant ’s claims regarding the recalculation of the amount of compensation . On DATE the court partially allowed the second applicant ’s petition and ordered the ORG to pay him ORG CARDINAL,CARDINAL.CARDINAL in additional compensation . The court also ordered the ORG to pay the second applicant ORG MONEY as a DATE pension for the period from DATE to CARDINAL DATE . The decision was not appealed in cassation and became final . The claims of the first applicant for pecuniary and non - pecuniary damages were rejected as being unsubstantiated .

On DATE the ORG lawyer lodged a request with ORG , seeking an extension of the deadline for an appeal in cassation against the judgment of CARDINAL DATE . On DATE the court dismissed this request . The applicants appealed further to ORG , which , on DATE , refused to consider the matter due to the applicants’ failure to comply with appeal formalities . The applicants were allowed time until DATE to rectify their mistakes , which they failed to do , according to ORG of GPE decision of CARDINAL DATE , confirmed by ORG on DATE .

On DATE the applicants lodged a complaint with the Prosecutor of GPE , seeking a supervisory review of the case . In DATE the Deputy Prosecutor of GPE lodged a protest with the ORG of ORG , seeking to quash the judgment of DATE . By a resolution of CARDINAL DATE , the ORG quashed the judgment of DATE and remitted the case for fresh consideration .

On DATE the ORG of Makeyevka allowed the second applicant ’s claims and ordered the ORG to pay him UAH CARDINAL,CARDINAL.CARDINAL in compensation for non - pecuniary damage . The court also ordered the ORG to pay him a DATE pension of ORG MONEY for the period from DATE until DATE . It rejected the first applicant ’s claims for pecuniary and non - pecuniary damages . The applicants complained in cassation to ORG .

On DATE the ORG of Makeyevka extended the deadline for lodging the cassation appeal with ORG as the verbatim records of the hearing of DATE were not available to the parties .

On CARDINAL DATE the applicants lodged a cassation appeal with ORG . On DATE ORG rejected the cassation appeal as it failed to correspond to the appeal formalities , laid down in LAW . The applicants rectified the mistakes and ORG considered the cassation appeal on its merits . On DATE it quashed the judgment of ORG of DATE and remitted the case for fresh consideration . The court also gave a separate ruling regarding the unreasonable length of the proceedings , which they held had been caused by the remittal of the case for fresh consideration on CARDINAL occasions . It also acknowledged the inactivity of the judges dealing with the case .

On DATE ORG decided to assume jurisdiction over the case as a first instance court . In particular , it took into account the numerous remittals and the lengthiness of the proceedings . The parties were invited to a pre - trial meeting on DATE .

On DATE ORG decided to hold a hearing on DATE .

In the course of the hearing , the applicants lodged pleas challenging the judge hearing their case as they considered him biased . These pleas were rejected by the President of ORG on DATE and DATE as being unsubstantiated .

On DATE ORG ordered a forensic medical examination concerning the second applicant ’s state of health .

On CARDINAL DATE the ORG lawyer asked for an adjournment of the hearing in the applicants’ case because he had other business commitments . He also complained that the dates were inconvenient for him and , therefore , he could not attend the hearings DATE and DATE . As to his absence from the hearing on DATE , the lawyer maintained that he was not duly informed about it .

On DATE ORG rejected the applicants’ motion for an additional forensic medical examination concerning the second applicant ’s state of health as being unsubstantiated .

On DATE ORG allowed the applicants’ claims in part and ordered the ORG and ORG ( the “ SCM ” ) , jointly , to pay the second applicant ORG in compensation . It also ordered them to pay him UAH DATE ( for the period from DATE until DATE ) , a DATE pension of ORG DATE . for external assistance , ORG CARDINAL for the acquisition of a “ Tavriya ” car ( a special vehicle for the disabled ) , UAH CARDINAL for specialised medical treatment ( санаторно-курортне лікування ) and ORG CARDINAL for the purchase of a wheelchair and crutches ( інвалідна коляска та милиці ) . It also rejected the first applicant ’s claims for pecuniary and non - pecuniary damages .

On DATE the ORG lawyer lodged an appeal with ORG .

On DATE CARDINAL of the respondents , ORG , lodged an appeal in cassation ( касаційна скарга ) with ORG , seeking to have quashed the ruling of ORG which had awarded compensation for non - pecuniary damage to the second applicant and which , in its view , infringed ORG CARDINAL and CARDINAL of LAW .

On DATE ORG decided to allocate the ORG cassation appeal to a ORG composed of CARDINAL judges . On DATE ORG rejected the applicants’ petition challenging the composition of this chamber . It also refused to consider the applicants’ appeal on points of fact ( апеляційна скарга ) as it only had jurisdiction to consider appeals in cassation ( касаційна скарга ) on points of law . The case file was remitted to ORG to determine the admissibility of the applicants’ appeal on points of fact .

On DATE the ORG issued writs of execution for the judgment of DATE .

On DATE the ORG of Appeal allowed the applicants until DATE to rectify the mistakes in their appeal . On DATE the ORG returned the ORG appeal lodged with ORG , without consideration , as the applicants had failed to rectify the mistakes .

On DATE FAC initiated the enforcement of the judgment of DATE .

On DATE the ORG lodged complaints with ORG , seeking suspension of the enforcement proceedings pending the hearing of the case by ORG .

On DATE the Girnytsky ORG of Makeyevka granted the suspension , in accordance with LAW of the PERSON on enforcement proceedings . On DATE the court rejected the ORG ’s complaints as being unsubstantiated .

NORP On DATE and DATE , DATE and DATE LOC terminated the enforcement of the judgment DATE in view of its full enforcement .

On DATE , following the rectification of mistakes in the cassation appeal , ORG transferred the ORG cassation appeal on points of law against its ruling of DATE to ORG for consideration on the merits . In their appeal the applicants challenged the lawfulness of the return of their appeals in cassation by ORG .

On DATE the civil chamber of ORG rejected the ORG cassation appeal against the ruling of CARDINAL DATE as the applicants had failed to comply with the ruling of ORG of DATE , allowing them time to rectify the shortcomings in their appeal in cassation .

On DATE the civil chamber of ORG , composed of CARDINAL judges , rejected the ORG ’s cassation appeal lodged against the judgment of DATE as unsubstantiated . The ruling of ORG was final and not subject to appeal .

The relevant provisions of the LAW of GPE provide as follows :

“ ... The main principles of judicial proceedings are :

CARDINAL ) NORP legality ; ...

CARDINAL) ensuring complaints against court decisions by way of appeal and cassation , except in cases finalised by law ;

CARDINAL ) NORP the mandatory nature of court decisions .

The law may also determine other principles of judicial procedure in courts of specific jurisdiction . ”

The relevant provisions of the Law of DATE read as follows :