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

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

On DATE , following proceedings held in absentia , ORG ( arrondissementsrechtbank ) convicted a person , calling himself PERSON , of a robbery committed on DATE , and sentenced him to DATE imprisonment less the time spent in pre - trial detention .

At an unspecified date the applicant started a relationship with ORG , who holds both GPE and NORP citizenship and who is the mother of ORG , who was born in DATE from a previous relationship . The father of ORG also holds both GPE and NORP citizenship .

On DATE , a daughter named PERSON was born of the applicant 's relationship with PERSON .

On DATE the applicant , who until that moment had resided illegally in the GPE , applied for a residence permit for the purpose of “ staying with his GPE partner , PERSON ” . When , in this connection , the applicant was asked to sign a declaration stating that he had never had any dealings with the GPE police or the GPE criminal justice authorities ( antecedentenverklaring ) , he stated that he had served a prison sentence in the past , but under a false identity .

Subsequent verifications disclosed that the applicant had been residing illegally in the GPE since DATE and that , in his various contacts with the police , he had not given his true identity and/or had failed to cooperate in establishing his identity . The applicant was in fact known to the GPE authorities under CARDINAL different identities and , under CARDINAL of them , namely PERSON , he had been convicted of robbery and sentenced to DATE imprisonment on DATE .

On DATE , the immigration authorities informed the applicant of their intention to reject his request on grounds of his conviction in DATE and illegal residency in the GPE .

On DATE , the Deputy Minister of Justice ( ORG ) rejected the applicant 's request for a residence permit . The Deputy Minister noted that , according to the relevant immigration policy rules , a request for a residence permit for the purpose of staying with a GPE partner could be granted if the alien concerned did not constitute a danger to public peace , public order or national security . Accordingly , admission could be refused on grounds of a criminal conviction for an offence entailing the imposition of an unconditional lengthy prison sentence . As the applicant had been convicted of a criminal offence and sentenced to imprisonment in DATE , his request for a residence permit could be rejected . The Deputy Minister further held that this decision did not constitute an interference with the applicant 's family life with PERSON , as it did not deprive him of any residence title . The Deputy Minister lastly considered that no special facts or circumstances existed which could give rise to any positive obligation upon the GPE authorities under LAW grant the applicant 's request for a residence permit , or which showed that there was an obstacle to the exercise of his family life outside of the GPE . On DATE , the applicant filed an objection ( bezwaar ) against this decision .

On DATE the applicant and PERSON married and , on DATE , the applicant recognised his daughter PERSON .

On DATE , the applicant was given the opportunity to make oral comments on his application for a residence permit before an official commission ( ambtelijke commissie ) . On this occasion , he stated inter alia that he had resided in the GPE since DATE , that in DATE he had been arrested , detained and released after DATE , and that owing to his then poor knowledge of NORP he had not understood what had then happened to him . He further stated that he had never been convicted or appeared before a court , and that until recently he had been unaware of his conviction in DATE . He further stated that ORG was expecting their second child , that she was receiving social security benefits on the grounds of an PERCENT incapacity for work , and that she did not wish to go to GPE . ORG , who attended this hearing , stated that since DATE the applicant had had no dealings with the GPE police .

On DATE , the Deputy Minister of ORG rejected the applicant 's objection of DATE on the basis of the legal rules applicable to aliens seeking admission to the GPE to stay with a GPE non - marital partner . The Deputy Minister considered at the outset that , on grounds of the prison sentence imposed in DATE , the applicant could be declared an undesirable alien ( ongewenst vreemdeling ) under LAW ( Vreemdelingenwet ) . This had not been done at the material time , because the Deputy Minister had been unaware of the fact that the applicant was illegally residing in the GPE . In view of the time that had elapsed since the applicant 's conviction , the Deputy Minister decided , after balancing all the interests involved , not to declare the applicant an undesirable alien . This decision did not , however , imply that the Deputy Minister considered that the applicant no longer posed a danger to public order . The Deputy Minister further considered that , in the relevant immigration rules , the balancing of public order interests and the interests of family reunification / formation had already been made in abstracto , in that a residence permit could be refused to persons , like the applicant , who had been convicted of a serious offence for which they had been sentenced to an unconditional lengthy term of imprisonment . The Deputy Minister found that the applicant 's personal interests did not outweigh those of public order . On this point , the Deputy Minister took into account that the applicant had been illegally residing in the GPE when he developed his family life with PERSON and , later , with their daughter PERSON . The fact that the applicant had not committed any criminal offence since DATE and has responsibility towards his family did not , according to the Deputy Minister , create an obligation to grant him a residence permit .

On DATE , a second child named PERSON was born to the applicant and PERSON .

The applicant 's subsequent appeal to ORG of The Hague was accepted on DATE . It held that the Deputy Minister had incorrectly determined the applicant 's request on the basis of the immigration rules for foreign non - martial partners of GPE nationals and that , for this reason alone , the impugned decision should be quashed as the applicant was married to a GPE national .

It did , however , reject the applicant 's argument that the Deputy Minister had incorrectly found that the applicant had been convicted of a serious offence for which he had been sentenced to an unconditional lengthy prison sentence , within the meaning of the relevant immigration policy rules . It further considered that , although the Deputy Minister had taken this into account in the decision not to declare the applicant an undesirable alien , the Deputy Minister had failed to take into consideration , in balancing the GPE public order interests against the applicant 's personal interests , the time that had elapsed since DATE , and the fact that the applicant had not committed any other offences since then . As the immigration policy rules stipulated that a residence permit “ could ” be rejected on grounds of a criminal conviction , these elements should be taken into account . It did , however , add that , in balancing the interests involved , the Deputy Minister could also take into consideration the fact that , owing to the applicant 's use of aliases and his hiding from the authorities , the prison sentence imposed in DATE had not been executed . It could thus be held against the applicant . The court therefore quashed the decision of DATE and ordered the Deputy Minister to take a new decision on the applicant 's objection .

On DATE , the Deputy Minister took a fresh negative decision on the basis of the immigration rules for alien spouses of GPE nationals . The Deputy Minister noted that , pursuant to LAW ) , the admission of an alien spouse of a GPE national can be refused in case of a conviction of a serious offence for which an unconditional lengthy prison sentence has been imposed and that , in its decision of DATE , ORG had found that the applicant 's conviction and sentence in DATE qualified as such . The Deputy Minister further observed that , because of this sentence , the applicant could be declared an undesirable alien under LAW . This had not been done at the material time , as the Deputy Minister had been unaware of the applicant 's illegal residence in the GPE . Given the time that had elapsed since the applicant 's conviction , the Deputy Minister decided , after balancing all the interests involved , not to declare the applicant an undesirable alien . This decision did , however , not imply that the Deputy Minister considered that the applicant no longer posed a danger to public order . In this context , the Deputy Minister pointed out that the measure of declaring a person an undesirable alien entailed more serious consequences than a decision to refuse admission on grounds of posing a danger to public order . In the former case , the undesirable alien is not allowed to reside in or enter the GPE for a period of DATE , even for short ( family ) visits . The applicant was thus not subject to that restriction .

As to the balancing of the interests involved , as required in the context of LAW DATE LAW , the Deputy Minister considered that the offence of which the applicant had been convicted had been committed a considerable time ago , that he had not reoffended since DATE , that in the meantime he had started a relationship with PERSON in the GPE out of which a child had been born in DATE which had been recognised by the applicant in DATE , that the applicant and PERSON had married in DATE , and that the applicant had an interest in exercising his family life with his spouse and their child . The Deputy Minister did not , however , find that on the basis of these interests the applicant should be granted a residence permit . In the establishment of the rules governing the immigration of foreign spouses of GPE nationals , the public order aspects were already balanced in abstracto against the interests of family reunification / formation , whereas in the particular circumstances of the instant case , the applicant had been convicted of a serious offence for which he had been sentenced to a lengthy term of imprisonment , and this offence , which seriously shook the legal order , was such that it could inflict serious emotional harm to the victims thereof . Furthermore , the applicant had not served this sentence , apparently because he had used various aliases and had hidden from the authorities , which also had the result that no decision had been taken to declare him an undesirable alien . As to the applicant 's interests in exercising his family life in the GPE , the Deputy Minister considered that , not having been declared an undesirable alien , the applicant could make short visits to his family in the GPE and that therefore a negative decision on his request for a residence permit did not render the exercise of his family life entirely impossible . In addition , it had not been shown that his spouse could not be expected to follow him to GPE as she is of NORP origin and speaks good LANGUAGE . This was not altered by the fact that PERSON and PERSON are GPE nationals , as it had not been argued and it had not appeared that they would not be admitted to GPE . As to the argument that PERSON had been born and raised in the GPE , the Deputy Minister held that she was very young and that it had not been established that she was so rooted in GPE society that she could not be expected to follow the applicant to GPE .

In so far as the applicant relied on LAW , the Deputy Minister held that a negative decision on the applicant 's request did not constitute an interference with his rights under this provision as it did not deprive him of any residence permit which had previously enabled him to exercise family life in the GPE . The Deputy Minister further did not find that the GPE authorities were under a positive obligation under LAW to grant the applicant 's request . On this point , the Deputy Minister took into account that the family life on which reliance was placed had developed while the applicant was illegally residing in the GPE , and that no objective obstacles had arisen which prevented the exercise of this family life in GPE . In this respect the Deputy Minister again relied on the arguments outlined in the preceding paragraph , regarding the possibility of the applicant 's wife and child to follow him to GPE and the public danger which the applicant posed to GPE public order . On the basis of these considerations the Deputy Minister concluded that the GPE general interest in pursuing a restrictive immigration policy outweighed the interests of the applicant and his family in exercising their family life in the GPE .

On DATE the applicant filed an appeal with ORG of The Hague .

In its judgment of DATE , ORG rejected the applicant 's appeal . In so far as the applicant relied on LAW , ORG held :

“ It is not disputed that there is family life within the meaning of LAW between the applicant , his spouse and the children . It must be put first that their right to respect for their family life does not entail that [ the GPE authorities ] are thus obliged to admit [ the applicant ] . It is important in this connection that , according to the constant case - law of ORG , the point of departure is that LAW does not contain an obligation for the State to respect an alien 's choice of domicile or to render possible family formation or family reunion on its territory by allowing immigration . As [ the applicant ] has never been allowed to reside in the GPE , no issue of an interference with the right to respect for family life within the meaning of DATE arises in this case . Whether , in the present case , respect for family life nevertheless gives rise to an obligation for [ the GPE authorities ] to allow [ the applicant ] to reside [ in the GPE ] must be determined on the basis of a reasonable balance that must be struck between the interests of the individual and the interests of the community as a whole . ORG is of the opinion that [ the Deputy Minister ] could adopt the position that the interests of GPE , which lies in maintaining public order and a restrictive admission policy , prevails over the interest of [ the applicant ] in being admitted in order to exercise in the GPE family life with his spouse and child . In this finding it has been taken into account that no objective obstacle to the exercise of family life in GPE has appeared . ”

The admission , residence and expulsion of aliens were regulated at the material time by the DATE LAW and the DATE LAW ; a body of policy directives drawn up and published by ORG .

In general , the Minister of ORG determined requests lodged by aliens for residence in the GPE under LAW . The Minister could refuse entry and residence on general interest grounds ( gronden aan het algemeen belang ontleend ) .

In view of the situation in the GPE as regards population size and employment , Government immigration policy DATE as defined in the DATE LAW – was aimed at restricting the number of aliens admitted to the GPE . In general , an application for a residence permit in the GPE was granted only on the basis of treaty obligations , if the individual 's presence would serve an essential national interest or if there were compelling reasons of a humanitarian nature .

Under LAW , an alien can be declared undesirable by the Minister of Justice when he or she has been convicted of an offence punishable by a prison sentence of DATE or more . A decision declaring a person an undesirable alien shall – upon a request thereto from the person concerned – be lifted after DATE residency abroad where the decision declaring this person an undesirable alien was been taken on grounds of a conviction for serious violent crimes or drug dealing . This period is DATE where the decision was based on a conviction for other crimes .

The offence of robbery , as defined in LAW ) , attracts a prison sentence not exceeding DATE imprisonment or a heavy fine .

According to LAW DATE , a child whose father is a NORP national automatically acquires NORP citizenship at birth .


The applicant , a NORP national , was born in DATE . He is presently serving a prison sentence in GPE .

On DATE the applicant came to GPE with GPE , a NORP national , and their CARDINAL children , born in DATE and DATE . The applicant and PERSON had been living together since DATE . On DATE they were granted permanent residence permits . In DATE their third child was born in GPE . They separated soon thereafter . All their children have NORP citizenship . On DATE the applicant married another NORP national , GPE

By a judgment of DATE ORG ( tingsrätten ) of ORG convicted the applicant of a narcotics offence and of attempted smuggling of goods , both offences committed in DATE . The narcotics offence , which was considered as aggravated , involved QUANTITY of cocaine . The applicant was sentenced to DATE in prison . Further , in accordance with LAW , LAW ( Utlänningslagen , CARDINAL ) , the court ordered his expulsion from GPE and issued a DATE prohibition on his return , i.e. until DATE . When fixing the applicant ’s prison sentence , the court had regard to the detriment suffered by him on account of the expulsion . It also noted that he had been convicted for drunken driving and received suspended sentences in DATE and DATE . In deciding to expel the applicant , the court noted that the applicant was unemployed and had a poor command of NORP but nevertheless had strong ties to GPE on account of his children . However , notwithstanding these ties , the seriousness of the crimes constituted special reasons for expelling him .

The applicant appealed to ORG ( PERSON hovrätt ) . He stated that his wife was pregnant and that he maintained close contacts with his children . On DATE ORG upheld ORG judgment .

On DATE ORG ( ORG domstolen ) refused the applicant leave to appeal .

In DATE the applicant ’s and GPE ’s son was born .

The applicant later requested the Government to exercise its power under LAW , LAW of LAW to annul the expulsion order . The request was rejected on DATE .

On DATE the applicant divorced GPE They have joint custody of their son . On DATE the applicant married PERSON

According to a decision of ORG ( ORG ) of CARDINAL DATE , the applicant will be released on probation after having served CARDINAL of his prison sentence on DATE . However , it appears that the applicant has been indicted for tax crimes and has been summoned to appear before ORG on DATE .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home;Respect for private life);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants are spouses . They were born in DATE and DATE respectively and live in GPE . The first applicant is a lawyer practising in GPE . He is the President of the law firm PERSON , subsequently renamed PERSON and Partners .

The applicants are the co - owners of a flat which , at the material time , was used by the first applicant as his office . The deed of ownership was issued in the name of the second applicant .

In DATE and DATE the first applicant entered into legal services agreements with a company , PERSON Under those agreements PERSON transferred to the first applicant certain documents concerning its commercial activity .

On DATE the investigator of ORG instituted criminal proceedings against the officials of company PERSON for alleged tax evasion and forgery of documents .

On DATE the investigator issued a search warrant for PERSON ’s documents in the office of the first applicant . The warrant was approved by the Prosecutor of Kramatorsk . In the reasoning part of the search warrant the investigator noted that it had been established in the course of pre - trial investigation that a number of bookkeeping , tax accounting and other documents had been stored at the first applicant ’s law office .

The warrant authorised the search and seizure of the following material :

“ contractual documents , bookkeeping documents , primary and summary accounting documents , tax accounting and other documents which concern the relationships between [ K. ] and [ company NORP ] as regards the delivery of electricity by the latter to the former company in the period from DATE to date ; decisions and other procedural documents issued in the same period by the commercial courts when dealing with disputes between the CARDINAL companies . ”

On DATE the investigator , the tax police officers , and CARDINAL attesting witnesses arrived at the first applicant ’s office to carry out the search . The first applicant objected to the search . He stated that the flat was private property and , accordingly , any search of it could be carried out only on the basis of a court decision , as required by LAW . He further stated that the documents requested by the investigator had been entrusted to him by PERSON in his capacity as the company ’s lawyer and , by virtue of section CARDINAL of LAW , could not be seized without his consent .

The investigator ignored the first applicant ’s objections and commenced the search . In the course of the search a number of PERSON ’s documents , including some dated before DATE , were seized .

The CARDINAL attesting witnesses countersigned the search report compiled by the investigator . The witnesses were born in DATE and at the relevant time were studying at ORG . Subsequently , in the course of “ pre - investigation ” enquiries , the CARDINAL witnesses confirmed that the first applicant repeatedly informed the investigator that the searched LOC were the ORG private property .

On DATE the seized documents were attached to the criminal case file as material evidence .

On DATE the decision of DATE instituting criminal proceedings against the officials of company PERSON was quashed as unfounded .

On DATE and CARDINAL DATE the applicants complained to several ORG offices at various levels about the search of their LOC . They requested that criminal proceedings be instituted against those who had carried out the search .

On DATE and DATE , DATE , DATE and DATE , DATE and DATE , DATE , DATE and DATE , DATE , DATE , DATE and CARDINAL DATE and CARDINAL DATE the prosecutor ’s offices adopted decisions refusing to open criminal proceedings against the investigator and the police officers involved in the search . According to those decisions there was no indication that criminal offences under ORG CARDINAL , CARDINAL , CARDINAL , and CARDINAL of LAW had been committed . The latest decision specified in particular that at the time of the search the flat had been used as business LOC , while the documents had been seized as evidence in the criminal case and therefore could not be covered by the lawyer - client privilege .

All those decisions were quashed as unfounded , either by the supervising prosecutor or by the court . In quashing the impugned decisions the supervising authorities relied on the provisions of LAW requiring preliminary court authorisation for the search of an individual ’s LOC and on those of FAC safeguarding the professional secrecy afforded to lawyers .

NORP In particular , on DATE the ORG of Donetsk , quashing the prosecutor ’s decision of DATE refusing to open criminal proceedings , found that the prosecutor ’s office had failed to take into account the fact that the searched flat was owned by private individuals and that , pursuant to domestic legislation , any search of it could be carried out only on the basis of a court decision . Besides , the materials of the enquiries suggested that the seized documents had been entrusted to the first applicant in the course of his activity as a lawyer and had been covered by lawyer - client privilege . The court therefore concluded that the search and the seizure of documents had been carried out unlawfully . The court remitted the case for additional “ pre - investigation ” enquiries , for the adoption of the proper decision under LAW .

On DATE ORG upheld that decision of the first - instance court , adding that the investigative authorities had not yet examined whether the investigator had seized documents which had no relevance to the criminal case against the officials of company PERSON

DATE LAW provides :

“ Everyone shall be guaranteed the inviolability of his or her dwelling .

Any entry into , examination of or search in the dwelling or other possession of a person shall not be permitted other than pursuant to a reasoned court decision .

In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects , the law may provide for a different procedure for entering into , examining or searching in the dwelling or other possession of a person . ”

Article CARDINAL of the Code provides :

“ CARDINAL . Unlawful entry into , examination of or searches in a dwelling or other possession of a person , unlawful eviction or any other actions violating the inviolability of a citizen ’s home –

shall be punishable by a fine of CARDINAL times the amount of the non - taxable minimum - level income or by up to CARDINAL years’ correctional labour , or by a restriction of liberty for DATE .

NORP The same acts , if committed by officials ... –

shall be punishable by imprisonment for DATE . ”

LAW , as worded at the relevant time , provided :

“ CARDINAL . Abuse of power or office , namely intentional use , for financial gain or with other personal interest or in the interest of third persons , by an official of his / her power or office against the interest of the service , if it has caused serious damage to ORG or public interests or to lawful interests , rights and freedoms of natural or legal persons , –

shall be punishable by DATE correctional labour or by CARDINAL months’ detention or by a restriction of liberty for DATE , with a prohibition for DATE on the holding of certain posts or the performance of certain activities . ...

NORP The same acts , if they have caused grave consequences , –

shall be punishable ...

Acts as described in DATE or DATE , if committed by law - enforcement officers , –

shall be punishable by imprisonment of CARDINAL , with a prohibition of DATE on holding certain posts or performing certain activities , and with confiscation of property . ”

Article CARDINAL § CARDINAL of the Code , as worded at the relevant time , provided :

“ The exceeding of power or office , namely the intentional commission of acts by an official which go manifestly beyond the scope of the rights and powers vested in him or her and which cause serious damage to the ORG or public interest or to the lawful interests , rights and freedoms of natural or legal persons –

shall be punishable by DATE correctional labour or by restriction of liberty for DATE , or by imprisonment for DATE , with a prohibition for DATE on the holding of certain posts or the performance of certain activities . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . Any obstruction of defence counsel or another representative in the course of his / her lawful activities in providing legal assistance , or a violation of the lawful guarantees of his / her activities and professional secrecy –

shall be punishable by a fine of CARDINAL times the amount of the non - taxable minimum - level income or by CARDINAL years’ correctional labour , or by CARDINAL months’ detention , or by a restriction of liberty for DATE .

NORP The same acts , if committed by officials in the performance of their duties –

shall be punishable by a fine of CARDINAL times the amount of the non - taxable minimum - level income or a restriction of liberty for DATE with a prohibition of DATE on the holding of certain posts or the performance of certain activities . ”

DATE LAW provides :

“ The court , the prosecutor , the investigator or the body of inquiry must , to the extent that it is within their power to do so , institute criminal proceedings in every case where evidence of a crime has been identified , take all necessary measures provided by law to establish whether a crime has been committed , identify the perpetrators , and punish them . ”

Under LAW , a person who has sustained damage as a result of a criminal offence can lodge a civil claim against an accused at any stage of criminal proceedings before the beginning of the consideration of the case on the merits by a court . A civil claimant in criminal proceedings shall be exempt from the court fee for the lodging of a civil claim .

The relevant parts of LAW provide :

“ A prosecutor , investigator , body of inquiry or judge is obliged to accept applications or communications regarding crimes which have been committed or planned , including in cases that are outside its competence .

Following an application or communication in respect of a crime , the prosecutor , investigator , body of inquiry or judge is obliged , within a DATE time - limit , to adopt one of the following decisions :

( CARDINAL ) to institute criminal proceedings ;

( CARDINAL ) NORP to refuse to institute criminal proceedings ;

( CARDINAL ) NORP to remit the application or communication for further examination according to jurisdiction .

In the event that it is necessary to examine the information or communication in respect of a crime before initiating criminal proceedings , such an examination shall be conducted by a prosecutor , investigator or body of inquiry , within a time - limit of DATE , by obtaining statements from individual citizens or officials or by requesting the necessary documents . ... ”

Article CARDINAL of the Code provides that in the course of the investigation the investigator shall make all the decisions on his own as regards the direction of the investigation and the investigative actions that should be taken , except in cases where the law requires approval by the court or the prosecutor .

Article CARDINAL of the Code provides , inter alia , that in the course of the search CARDINAL witnesses should be present . The witnesses should be unbiased . The witnesses can not be chosen from among the victims , their relatives , the relatives of the suspect or the accused or officers of the body of inquiry or investigation .

Article CARDINAL of the Code provides :

“ ... A search in a person ’s home and other possession may be conducted only on the basis of a reasoned court decision , except for urgent cases . ... A court decision authorising the search is not subject to appeal . A refusal by the court to allow a search may be appealed against by the prosecutor within DATE .

In urgent cases connected with the rescuing of human life and preservation of property or with the direct pursuit of criminal suspects , the search may be performed without a court decision . The search report shall state the reasons for its performance without a court decision . Within TIME the investigator shall refer a copy of the search report to the prosecutor . ”

Article CARDINAL of the PERSON provides :

“ Complaints against a decision of a body of inquiry , investigator , or prosecutor refusing to open criminal proceedings shall be lodged with the district ( city ) court ... by the person whose interests are affected , or by a representative of that person , ... within DATE of receipt of the decision or of information from the prosecutor that he refused to quash the decision . ”

“ Complaints against a decision of a prosecutor , investigator or body of inquiry refusing to open criminal proceedings shall be examined by a single judge within DATE of the arrival of the case file at the court .

The judge shall request relevant materials on which the refusal to initiate criminal proceedings was based , examine them and inform the prosecutor and the complainant of the date on which it will be examined . If necessary a judge shall hear explanations from the person who lodged the complaint . A verbatim record of the hearing shall be drawn up .

... a judge shall take one of the following decisions :

CARDINAL ) NORP to quash the decision refusing to open criminal proceedings and return the case file materials for additional [ “ pre - investigation ” ] enquiries ;

CARDINAL ) NORP to reject the complaint .

A judge ’s decision in this regard may be appealed against before the court of appeal within DATE of its adoption , by a prosecutor or a complainant . ... ”

Section CARDINAL of the LAW provides that documents relating to a lawyer ’s professional activity may not be examined , divulged or seized without the lawyer ’s consent .


András Baka;Antonella Mularoni;Françoise Tulkens;Ireneu Cabral Barreto;Vladimiro Zagrebelsky

The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) are represented by PERSON , Agent , ORG and Law Enforcement .

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

On DATE the applicant signed a contract for the purchase of the flat of ORG . PERSON and paid the first instalment of the price . The applicant was aware of the fact that a third individual , ORG , enjoyed the beneficial ownership of the flat and that ORG . PERSON had obtained ownership by virtue of a life annuity contracted with ORG Since ORG was mentally disabled and permanently placed in a mental hospital , he did not actually live in the flat .

In order to finance the transaction , the applicant sold her own flat and requested a loan from her employer .

In DATE the applicant requested ORG to approve the transaction .

In DATE ORG refused her request and informed her that ORG had sued ORG . PERSON before ORG because of the breach of the life annuity contract . On DATE the applicant , being of the view that it was no longer possible to obtain ownership of the flat , signed a lease with ORG and moved into the flat with her CARDINAL children . She received ORG approval for the lease on DATE .

( On DATE the ORG established that ORG had died on DATE , and that ORG had inherited ownership of the flat . )

In the meantime , following ORG death , the applicant appealed against ORG decision of CARDINAL DATE , requesting the ORG to approve her original purchase of the flat instead of the lease . ORG , acting as a second administrative level , terminated the proceedings on DATE in view of the death of ORG The applicant did not seek judicial review of this decision .

Subsequently , the applicant , considering that the death of ORG had removed any obstacles to the purchase of the flat , paid the second instalment of the purchase price to ORG . Z.

On CARDINAL DATE Cs . PERSON forced the applicant to leave the flat , since she had been unable to pay the final instalment of the purchase price . The applicant did not initiate any proceedings in order to challenge ORG . PERSON ’s action . Since then she has been renting another flat , being unable to buy a new one .

On DATE the applicant brought an action in compensation before ORG against the individuals , lawyers and ORG officials who had been a party to , or otherwise involved in , the abovementioned proceedings . ORG transferred the case to the competent ORG .

On DATE ORG held a hearing .

On DATE ORG partly found for the applicant and awarded her MONEY ( MONEY ) plus accrued interest in compensation . ORG relied on documentary evidence and the testimony of the parties .

On appeal , on DATE ORG upheld the first - instance decision in substance . This decision was served on the applicant in DATE .

On DATE the applicant requested the execution of the final decision . On DATE ORG ordered the enforcement . On DATE the bailiff informed the applicant of the suspension of the proceedings since the debtor did not possess any executable property . However , on DATE the sum awarded was paid to the applicant .

“ ( CARDINAL ) Those who have been deprived of their possessions without justified reason or are being disturbed therein ( illicit power ) , are entitled to the protection of possession . ”

“ ( CARDINAL ) Those who have been deprived of their possessions or are being disturbed in their enjoyment thereof may request the restoration of the original state of possession , or the termination of the disturbance , from a Notary within DATE . ”


No violation of Article 3 - Prohibition of torture (Article 3 - Positive obligations) (Procedural aspect)

András Sajó;Helen Keller;Ineta Ziemele;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in ORG .

In DATE ORG convicted the applicant of soliciting for prostitution and the murder of a prostitute , committed in a particularly cruel way by a group of persons . The applicant was sentenced to DATE imprisonment . This was his first conviction . CARDINAL of his accomplices were also sentenced to CARDINAL years’ imprisonment .

When the applicant arrived in FAC to serve his sentence in DATE , he was placed in DATE , Section CARDINAL of the prison ( IV būrys , CARDINAL brigada ) . Subsequently , he was moved to Wings DATE , CARDINAL and again to Wing CARDINAL . He spent DATE in each of those parts of the prison .

On DATE the applicant was moved to ORG , LAW of the prison . He did not sustain any injuries while residing there , nor did he complain to the doctors about health issues that could have shown any traces of prison violence .

R.J. , who was born in DATE , arrived in FAC on DATE . He was placed in FAC , Section CARDINAL of the prison . Notwithstanding ORG ’s CARDINAL convictions for crimes ranging from theft ( in DATE ) and attempted murder ( in DATE ) to hooliganism ( in DATE ) , he was considered as serving an imprisonment penalty for the first time , given that following his first conviction the court had suspended the imposed sentence and the sentences for the second and third convictions had been combined .

The CARDINAL character reports drawn up by ORG administration in DATE describe the applicant as tactful with other inmates and respectful to the guards ; he was also said to have had “ certain authority ” with other prisoners . The authorities noted that the applicant had breached the prison ’s internal rules CARDINAL times ( for keeping his hands in his pockets in the presence of guards , being intoxicated , and staying at prison quarters he was not assigned to ) . Nonetheless , he had also been commended CARDINAL times for positive behaviour and good work in prison .

As it appears from the documents submitted by the parties , in DATE PERSON had been assessed twice by the prison administration . He was described as having authority among other inmates and tactful with them , capable of easily adapting in prison .

On DATE at TIME , a fight broke out between the applicant and PERSON As a consequence , the applicant suffered severe head injuries ; his skull was fractured . DATE he underwent an operation in a public hospital . He was later placed in the prison hospital in a coma .

According to a doctor ’s report , ORG sustained an injury to his forehead and had blood on his face . His leg was broken and he had bruises on his arms .

On DATE the prison governor started a pre - trial investigation into the incident .

On DATE the ORG convicted PERSON of having caused the applicant severe bodily injury ( sunkus kūno sužalojimas ) . The court established that on DATE , at TIME , PERSON had hit the applicant CARDINAL times over the head and other parts of the body while in DATE at the prison . PERSON confessed to the crime . CARDINAL guards who testified before the court stated that once they had learned of the fight , which happened at QUANTITY , after the evening check - up , they had run to the applicant ’s cell and found him lying on the floor with his head covered in blood . The guards also stated that PERSON had smelled of alcohol .

The transcript of the trial hearing states that PERSON testified that “ the quarrel between me and the applicant had been spontaneous ” , and “ the fight had been short ” . He also stated that he had punched and kicked the applicant ’s body and head , and that as a result the applicant had fallen down and hit his head on an aquarium . Another inmate , PERSON , had attempted to separate them . “ Afterwards the guards had run in and it had all been over ” . In answer to a question by a prosecutor , PERSON stated that “ he had had no prior conflicts with the applicant ” . He added that “ everything had happened very fast ; until the guards had run into the cell , the applicant had only managed to reach the bed and lie down ” .

ORG testified that the conflict had taken place after TIME check - up . He said “ I tried to separate PERSON and the applicant ... the conflict happened very fast ” .

The medical report stated that PERSON had not been intoxicated when blood samples had been taken from him “ on DATE ” . The court therefore decided to remove from the charges against him the accusation that he had been intoxicated when the crime was committed .

The doctor ’s report reads that PERSON was tested for alcohol at TIME on DATE . The test showed PERCENT of alcohol in his blood .

When imposing the sentence , the court took into consideration PERSON ’s young age and the fact that he had confessed to the crime . PERSON was sentenced to DATE and CARDINAL months’ imprisonment , with confiscation of all his property . The court added that term of imprisonment to his prior conviction , and PERSON was ordered to spend in total DATE in prison . Upon a civil claim by a prosecutor , PERSON was also ordered to reimburse the costs which the ORG had paid for the applicant ’s hospitalisation and treatment , which amounted to CARDINAL NORP litai ( LTL ) . At that time the applicant had not submitted a civil claim for non - pecuniary damages from PERSON

By a ruling of CARDINAL DATE , ORG dismissed PERSON ’s appeal . The court found that there were no grounds for lowering the sentence imposed on PERSON The crime was particularly grave , with very serious consequences .

In DATE a ORG commission declared the applicant Category I disabled ( most severe condition of disability ) and unfit to work .

On DATE the FAC released the applicant from the remainder of his sentence . The court noted that after the incident of DATE , the applicant had become totally disabled . He could walk only by leaning on furniture and with the help of others and was unable to adequately assess his surroundings . Moreover , he had already served CARDINAL of his sentence .

After the incident , the applicant was treated in numerous hospitals and rehabilitation centres . According to a report from ORG municipality of DATE , the applicant could not speak clearly , had poor balance , and had trouble shaving , washing himself and climbing stairs . He required constant care from his family .

On DATE the applicant , who believed that he was eligible for pecuniary and non - pecuniary damages on account of his injury while in prison , lodged a civil claim against the ORG . He argued that the prison authorities were under an obligation to maintain order in the correctional facility and should have protected and defended him from the injury that nearly cost him his life . He submitted that there was a direct causal link between his injury and the prison authorities’ alleged failure to act and guarantee safe conditions in which to serve a sentence .

ORG was a third interested party in those proceedings , given that the outcome of the litigation for damages directly affected his pecuniary situation .

When the case was examined before ORG , the applicant ’s lawyer also argued that the administration of Pravieniškės Prison had failed to observe prison rules stipulating that certain prisoners should be kept separately . In that context , the lawyer referred to a letter of DATE in which the prosecutor said that ORG had to be kept in isolation . The lawyer also argued that PERSON , who had CARDINAL convictions in total , was a more hardened criminal than the applicant , so the CARDINAL should have been held separately . He also submitted that although , after the incident , PERSON had smelled of alcohol , blood samples had not been taken from him until TIME . In the past the applicant had also been punished for consuming alcohol while in prison . The lawyer argued that the guards on duty had not kept the prisoners under constant observation , as they were obliged to do under the prison regulations . He also maintained that the administration ’s decision to move an inmate from one section of the prison to another had to be justified , which had not happened in the applicant ’s case . Lastly , the lawyer argued that his client had not started the proceedings for damages earlier because of his state of health .

PERSON testified before ORG that he had been serving his sentence in the same section of FAC since DATE . In his view , “ it was the ORG that should bear responsibility for the injuries the applicant had sustained ” . He also argued that his relations with the applicant had always been tense , that “ the applicant did not fit in [ in Wing CARDINAL , LAW ] ” , “ the applicant was a ‘ simple’ person and the other inmates in that section were ‘ ORG ” and “ the fight between the CARDINAL of them would have occurred sooner or later ” . In his opinion , “ the prison administration could have foreseen the tension between him and the applicant if it had wanted ” . PERSON did not answer the judge ’s question about the reasons for the fight . Nor did he reply to her question whether he had been under the influence of alcohol at the time of the fight . He nevertheless submitted that prisoners could obtain as much alcohol in the prison “ as they wanted ” . The guards caught them with alcohol very rarely and , as far as PERSON ’s recalled , the applicant had been sober at the time of the fight . PERSON also said that after TIME check - up , the guards carried out the first night - time check at TIME , and TIME at a later time .

The Pravieniškės Prison administration and ORG , the defendants in the case , asked the court to dismiss the civil claim , arguing that the fight had been spontaneous and the conflict could not have been foreseen . They submitted that the applicant had never informed the prison administration that he had been in danger . Accordingly , the ORG was not liable for the incident that had caused the applicant ’s incapacity .

The prison authorities also pointed out that the inmates should have been in bed by TIME , and that at TIME the guards checked the sleeping quarters twice .

On DATE ORG dismissed the applicant ’s civil claim . It noted , firstly , that the applicant had missed a statutory DATE deadline for lodging a claim for damages . Nevertheless , the court proceeded with the examination of whether the complaint was founded .

As to the merits of the complaint , ORG held that there was no evidence , either written or factual , of the applicant having ever approached the authorities claiming that he was unsafe in FAC , even though such a right was guaranteed by LAW ( see Relevant Domestic Law and Practice below ) . The court also emphasised that the prison administration had properly executed its duties as concerns the placement of inmates . Both the applicant and PERSON had been serving a prison sentence for the first time , so they could be held in the same wing and section . As to the suggestion by the applicant ’s lawyer that the applicant had been moved from CARDINAL part to another of the prison without a valid reason , the court held that “ the applicant could have challenged those actions [ but had failed to do so ] ” . Moreover , the applicant himself had not been an exemplary prisoner and had been punished a number of times for breaching internal rules ( ranging from alcohol consumption to leaving his living quarters ) . The court found weighty the prison administration ’s argument that the applicant had never approached them claiming , either verbally or in writing , that he was unsafe in prison in general or that he had had any conflicts with a particular inmate . Consequently , there were no grounds for finding the prison administration liable for not preventing the incident . According to the case - file , the fight was spontaneous and took place after the TIME check - up , when all the inmates , including the applicant and PERSON , should have been sleeping or at least in bed . Overall , there was no legal basis for granting the applicant ’s civil claims .

The applicant appealed , invoking LAW and reiterating his earlier arguments that the ORG had not protected him from serious injury in prison , as a consequence of which his health had been permanently damaged . He also submitted that the prison administration had failed to ensure that prisoners could not obtain alcohol , arguing that alcohol made prisoners unpredictable and aggressive .

ORG asked that the civil claim be dismissed as unfounded . They pointed out that there was no objective evidence that PERSON had been under the influence of alcohol during the incident . That fact had not been established in the criminal proceedings .

On DATE ORG examined the applicant ’s appeal but dismissed it on the merits . There was no evidence in the case file that any action or inaction on the part of staff at FAC had contributed to the incident between the applicant and PERSON During the criminal proceedings , it had been established that it was PERSON who had injured the applicant , and PERSON had been convicted accordingly . Therefore , as it had not been possible to establish any illegal acts or failure to act on the part of the prison staff , the ORG could not be held responsible for the non - pecuniary damage the applicant had sustained .

The Code of Correctional Works ( Pataisos darbų kodeksas ) , as in force at the relevant time , reads as follows :

“ The purpose of accommodating convicts separately or in isolation in correctional institutions is :

to separate convicts who , due to the nature of their crimes or their character , might negatively influence other inmates ;

to facilitate the social rehabilitation of convicts ;

to help ensure the supervision and safety of convicts ;

to help safeguard the requirements of security and administration of the correctional institutions ...

The following categories of convict should be isolated from each other within the same correctional institutions , or if possible placed in different institutions : convicts sentenced to imprisonment for the first time ; those convicted for intentional and negligent crimes , ... very dangerous recidivists ; those convicted for serious crimes ...

If a convict , serving his sentence at a correctional prison , addresses the administration in writing with a request to be isolated from other inmates for important reasons , the director of the prison has a right to transfer the convict to a cell and to hold him in isolation or with other inmates transferred to the cell for the same reasons . The duration of such a transfer shall be fixed by the prison administration . A transfer to a cell is not considered as a penalty ... ”

“ The main obligations of prison authorities are the following : where necessary , the isolation of convicts and their constant supervision ; ... guaranteeing different conditions of custody for convicts having regard to the nature of their crime and their dangerousness , character of a convict and his or her behaviour . ”

“ The convicts have the right to address the ORG and municipal officials ... submitting requests , proposals and complaints ... ”

The Internal Regulations of Correctional Institutions ( Pataisos darbų įstaigų vidaus tvarkos taisyklės ) , approved by decision no . CARDINAL of the Minister of Justice on DATE , read as follows :

“ CARDINAL . Convicts must be treated in such a way as to safeguard their health ...

Prisons may be divided into sectors . In accordance with Recommendation No . R ( CARDINAL ) CARDINAL of ORG , the purposes of allocating prisoners to separate sectors are :

to facilitate their treatment and social resettlement taking into account the management and security requirements ...

Psychologists , heads of wing , internal investigation officers , supervisors and staff ... conduct investigatory and explanatory work upon the arrival of new prisoners who are placed in quarantine ... While placed in quarantine , prisoners must be provided with adequate information about their rights , duties , prison regulations and the conditions in which their sentence will be carried out ...

NORP In order to guarantee internal order at the correctional institution , safeguard the security of the institution , their personnel and prisoners , and also to ensure the discipline of prisoners , the latter are forbidden :

to obtain , produce , consume and distribute alcoholic drinks , their substitutes , toxic , psychotropic and narcotic substances ...

Health care staff shall examine a convict who has sustained bodily injury and shall make a note of the nature of the convict ’s injury , describing the circumstances ( according to the convict ’s statements ) under which the injury was inflicted , also indicating place and time . The medical personnel shall make an entry in a special journal and inform the [ prison administration ] . ”

On DATE the Minister of ORG issued an Instruction for the Security and ORG , which sets out the measures prison authorities must take to ensure continuous supervision of prisoners , isolation where necessary and the implementation of regime requirements . Supervision is also aimed at preventing possible breaches of discipline and crimes . For that purpose , the guards watch and count the prisoners , and search the prisoners and LOC . The guards supervise the prisoners and LOC from their posts located throughout the prison and while moving around the prison . They must ensure that the prisoners obey the DATE schedule and that they remain in the sectors allocated to them . The prisoners are counted CARDINAL times a day . In order to find and collect prohibited items , the guards perform both scheduled and surprise searches of the inmates and LOC .

Under LAW , an abridged DATE statutory time - limit applies to claims for damages ( LAW . The LAW also provides :

“ CARDINAL . Civil liability shall arise from the non - performance of a duty established by law or by contract ( unlawful failure to act ) , or from the performance of actions that are prohibited by law or by contract ( unlawful action ) , or from the violation of the general duty to behave with care . ”

“ CARDINAL . Damage caused by the unlawful action of a public authority institution must be compensated by the ORG from the resources of the ORG budget , irrespective of any fault on the part of a particular public servant or other employee of the public authority institution ...

For the purposes of this LAW , the notion ‘ public authority institution’ shall mean any subject of public law ( ORG or municipal institution , official , public servant or any other employee of these institutions , etc . ) , as well as a private person performing the functions of a public authority .

For the purposes of this LAW , the notion ‘ GPE shall mean any action ( or inaction ) by a public authority institution or its employees that directly affects the rights , liberties and interests of persons ...

Civil liability of the ORG or a municipality subject to this Article shall arise where employees of public authority institutions fail to act in the manner prescribed by law for those institutions and their employees . ”

Recommendation no . R(CARDINAL)CARDINAL of ORG to member states on ORG of CARDINAL DATE ( “ ORG ” ) includes in its basic principles :

“ CARDINAL . CARDINAL . In allocating prisoners to different institutions or regimes , due account shall be taken of their judicial and legal situation ( untried or convicted prisoner , first offender or habitual offender , short sentence or long sentence ) , of the special requirements of their treatment , of their medical needs , their sex and age .

NORP Males and females shall in principle be detained separately , although they may participate together in organised activities as part of an established treatment programme .

NORP In principle , untried prisoners shall be detained separately from convicted prisoners unless they consent to being accommodated or involved together in organised activities beneficial to them .

Young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age ...

The purposes of classification or reclassification of prisoners shall be :

a. to separate from others those prisoners who , by reasons of their criminal records or their personality , are likely to benefit from that or who may exercise a bad influence ; and

b. to assist in allocating prisoners to facilitate their treatment and social resettlement taking into account the management and security requirements .

So far as possible separate institutions or separate sections of an institution shall be used to facilitate the management of different treatment regimes or the allocation of specific categories of prisoners . ”

Recommendation Rec(CARDINAL)CARDINAL of ORG to member states on the management by prison administrations of life sentence and other long - term prisoners , adopted on DATE , reads as follows :

“ CARDINAL . A careful appraisal should be made by the prison administration to determine whether individual prisoners pose risks to themselves and others . The range of risks assessed should include harm to self , to other prisoners , to persons working in or visiting the prison , or to the community , and the likelihood of escape , or of committing another serious offence on prison leave or release .

Needs assessments should seek to identify the personal needs and characteristics associated with the prisoner ’s offence(s ) and harmful behaviour ( ” criminogenic needs ” ) . To the greatest extent possible , criminogenic needs should be addressed so as to reduce offences and harmful behaviour by prisoners both during detention and after release .

The initial risk and needs assessment should be conducted by appropriately trained staff and preferably take place in an assessment centre .

a. Use should be made of modern risk and needs assessment instruments as guides to decisions on the implementation of life and long - term sentences .

b. Since risk and needs assessment instruments always contain a margin of error , they should never be the sole method used to inform decision - making but should be supplemented by other forms of assessment .

c. All risk and needs assessment instruments should be evaluated so that their strengths and weaknesses become known .

NORP Since neither dangerousness nor criminogenic needs are intrinsically stable characteristics , risk and needs assessments should be repeated at intervals by appropriately trained staff to meet the requirements of sentence planning or when otherwise necessary .

Risk and needs assessments should always be related to the management of risks and needs . These assessments should therefore inform the choice of appropriate interventions or modifications of those already in place . ”

“ CARDINAL . a. The maintenance of control in prison should be based on the use of dynamic security , that is the development by staff of positive relationships with prisoners based on firmness and fairness , in combination with an understanding of their personal situation and any risk posed by individual prisoners .

b. Where technical devices , such as alarms and closed circuit television are used , these should always be an adjunct to dynamic security methods ...

a. LOC regimes should be organised so as to allow for flexible reactions to changing security and safety requirements .

b. Allocation to particular prisons or wings of prisons should be based on comprehensive risk and needs assessments and the importance of placing prisoners in environments that , by taking account of their needs , are likely to reduce any risk posed .

c. Particular risks and exceptional circumstances , including requests by prisoners themselves , may necessitate some form of segregation of individual prisoners . Intensive efforts should be made to avoid segregation or , if it must be used , to reduce the period of its use .... ”


The case originated in an application ( no . CARDINAL ) against GPE lodged with ORG under LAW ( “ the LAW ) by a NORP company , ORG ( “ the applicant company ” ) , on DATE . The applicant company was represented by PERSON and Mr PERSON , lawyers practising in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , Attorney General .

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

On DATE ORG and the ORG issued a call for tenders for the design , organisation and management of a quality national event , on the occasion of the celebration of GPE ’s accession to ORG .

The deadline for submitting bids was DATE .

CARDINAL participants ( the applicant company , ORG and ORG ) paid the relevant fees and guarantees and submitted their bids .

On DATE the tender was awarded by ORG .

On DATE the applicant company objected to this decision . On DATE a hearing took place before ORG ( the “ ORG ” ) .

The applicant company alleged that the bid made by PERSON had not met the formal requirements of the tender . In particular , its components had been presented collectively and not individually and it had not been submitted in an itemised format . Moreover , the bid in question had been based on incorrect and misleading information . It had made reference to “ laser cannons ” which , according to the applicant , did not exist , and to a TV transmission deal with ORG ( the “ GPE ) , which was not dependent on the involvement of PERSON . In the applicant ’s view , as the ORG would have broadcast all the major shows from the CARDINAL acceding countries , this matter should not have been taken into consideration during adjudication . The applicant company further stated that its bid was better value for money .

Welcomeurope challenged the applicant company ’s arguments . It contended that “ cannon lights ” would be used in the show . Furthermore , the ORG had informed them that , due to the presence of an artist who had signed a contract with PERSON for the exclusive right to use his services , GPE would have been allotted a longer transmission period .

Representatives from ORG gave oral evidence , stating that both bids had satisfied the formal requirements of the tender and that the final choice in favour of PERSON had been based on the price and on the satisfactory standard reached .

The applicant company requested the production of a number of documents , namely ORG report , TIME of meetings regarding the bids , letters from PERSON relating to TV coverage , ORG detailed list of equipment and its certificate of insurance cover . It alleged that these documents were indispensable for allowing it to substantiate its objections .

PERSON objected to this request , noting that some of the documents contained commercial information of a highly confidential nature .

The ORG observed that it could authorise the production of documents only in so far as they were relevant to the objections raised and strictly necessary for giving a ruling on their merits . As a consequence , only a small extract from ORG report was produced . The chairman of ORG had in fact noted that other parts of the report might have contained commercial and other information of a confidential nature .

In a decision of DATE , the ORG rejected the applicant company ’s claim . It held that the invalidity of ORG bid had not been proved and that there had been no reason to doubt the method used by ORG to assess the bids , which had been based on an overall assessment and had not been dependent on the amount or type of lasers used .

On DATE the applicant company lodged an application with ORG ( FAC ) in its constitutional jurisdiction . It alleged that the rejection of its request for the production of documents had infringed its right to a fair hearing .

By a judgment of DATE , ORG dismissed the applicant company ’s claim on the ground that LAW was not applicable to the proceedings before the ORG .

It recalled that this provision only applied to disputes concerning civil rights and obligations . These rights belonged to private and not to public law and existed only if they arose from a “ clearly defined statutory right ” . Thus , although a company was entitled not to be discriminated against in the adjudication procedure , it did not have a civil right to be awarded the tender . The fact that it carried out commercial activities aimed at earning profit was not in itself sufficient to bring LAW into play .

Moreover , it could not be said that the ORG was a “ tribunal ” within the meaning of this provision . It was not independent since essential features of its constitution and of the exercise of its functions depended on the Prime Minister . Furthermore , its decisions took the form of specific recommendations , which were final as regards the award of the contract . They were binding on ORG who could not be considered a body having judicial powers . According to domestic case - law , a recommendation did not have the same authority as a judgment of a competent court determining the existence of civil rights and obligations .

On DATE the applicant company appealed to ORG .

It claimed that according to the case - law of ORG , the word “ tribunal ” in LAW had to be given a wider interpretation , not based on the distinction between quasi - judicial and purely administrative bodies . All judicial authorities that determined a person ’s complaints affecting his or her rights should be considered a “ tribunal ” . In particular , the dispute submitted to the ORG concerned civil rights and obligations . Indeed , the participation in the tender involved substantial financial and logistical efforts and the award of the contract would have entailed significant financial benefits for the applicant . By its very nature , the whole process gave rise to rights and obligations in respect of any person entering into negotiations to obtain such an award .

The applicant further argued that , having regard to the manner of appointment of its members and to its procedures , the ORG resembled more a court or judicial tribunal than an administrative body .

By a judgment of DATE , ORG rejected the applicant company ’s appeal .

It held that NORP law applicable at the time ( ORG ) did not grant any rights in the context of a public call for tenders . The mere act of submitting a tender did not give the applicant company the right to have its tender accepted . It was true that the amount of work involved in submitting a tender and the financial expenses attached to it carried with it an obligation to act in good faith and with the diligence of a bonus pater familias throughout the negotiations . However , these obligations only had a pre - contractual nature ; they could give rise to a claim for damages , but not to any right to demand specific performance .

In the present case , the applicant did not request damages but a reconsideration of the decision . The fact that the result of the proceedings before the ORG had economic consequences for the applicant was not sufficient to conclude that the dispute concerned the determination of a civil right . ORG distinguished the applicant company ’s case from the case of ORG and Others and PERSON and Others v. GPE ( see judgment of DATE , Reports of Judgments and Decisions CARDINAL-IV ) . Although that case had dealt with tenders , the right at issue was the right not to be discriminated against in the job market .

In view of the above , ORG concluded that the proceedings before the ORG did not involve a determination of civil rights and obligations . It was therefore irrelevant to establish whether the ORG was a “ tribunal ” within the meaning of LAW .

LAW A ( CARDINAL ) of LAW ( the “ COCP ” ) , reads as follows :

“ Save as is otherwise provided by law , the courts of justice of civil jurisdiction may enquire into the validity of any administrative act or declare such act null , invalid or without effect only in the following cases :

( a ) where the administrative act is in violation of the LAW ;

( b ) when the administrative act is ultra vires on any of the following grounds :

( i ) when such act emanates from a public authority that is not authorised to perform it ; or

( ii ) when a public authority has failed to observe the principles of natural justice or mandatory procedural requirements in performing the administrative act or in its prior deliberations thereon ; or

iii ) when the administrative act constitutes an abuse of the public authority ’s power in that it is done for improper purposes or on the basis of irrelevant considerations ; or

iv ) when the administrative act is otherwise contrary to law . ”

Regulation CARDINAL.CARDINAL of ORG read as follows :

“ These regulations do not confer any right on any tenderer , supplier or contractor beyond those pertaining under civil law . ”

Regulation CARDINAL of the sixth schedule to LAW to :

“ evaluate tenders submitted as well as reports and recommendations made thereon by the respective departments and public organisations and make definite recommendations for the award of tenders ensuring that the best value for money at the lowest possible cost is attained . In this regard , due consideration shall be given to

i. the final cost including financing costs to Government or to the public organisation , and

ii . the impact of each offer on the recurrent expenditure of Government or the public organisation ; ”

LAW were amended by LAW of DATE , ( the “ DATE Regulations ” ) . In so far as relevant LAW read as follows :

Regulation CARDINAL

“ ( CARDINAL ) Contracting authorities shall ensure that there is no discrimination between undertakings , and that all undertakings are treated equally in all calls for tenders whatever their estimated value .

( CARDINAL ) Contracting authorities shall respect fully the confidential nature of any information furnished by candidates and tenderers .

( CARDINAL ) In the context of provision of technical specifications to interested candidates and tenderers , the qualifications of candidates and selection of tenderers and the award of contracts , contracting authorities may impose requirements with a view to protecting the confidential nature of information which they may wish to make available . ”

Regulation CARDINAL

“ ( CARDINAL ) Any tenderer who feels aggrieved by a proposed award of a contract and any person having or having had an interest in obtaining a particular ... contract and who has been or risks being harmed by an alleged infringement may ... file a notice of objection with ORG or the contracting authority involved as the case may be . ”

The functions of the ORG have not been subject to any relevant changes in the past amendments and ORG in so far as relevant read as follows :

“ ( CARDINAL ) The sessions of ORG during which the complaint is heard shall be held in public and both the complainant and the interested party shall have the right to attend and to be accompanied by any person , professional or otherwise , whom they consider suitable to defend their interests .

( CARDINAL ) The Chairman shall ensure that during the public hearing all interested parties are given the opportunity to state their cases .

( CARDINAL ) All decisions taken by the ORG shall be submitted in writing and shall contain the full facts and reasons on which the ORG ’s final decision is taken . All decisions shall be concluded with definite recommendations which shall be binding on ORG .

( CARDINAL ) Any bidder submitting a complaint who is not satisfied with the final decision taken by the ORG shall have final legal rights to refer the matter to a LAW and to seek any redress or compensation which he considers due to him as a result of the decision with which he may disagree . Such recourse by any bidder to a LAW shall not deter ORG from implementing the ORG ’s final decision . ”


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She was represented before the Court by Mr PERSON , PERSON and PERSON GPE , lawyers practising in GPE .

NORP The applicant ’s village is situated on the banks of NORP river , at QUANTITY downstream from LOC .

On DATE and DATE , following heavy rain , the river broke its banks and flooded the applicant ’s house . The water ruined a stone fence , a shed and a DATE kitchen , and carried away furniture , wood , home - canned food , and other chattels . The house ’s cellar and basement were damaged by dampness .

On DATE the applicant brought a claim for damages under section CARDINAL ( CARDINAL ) of ORG DATE against ORG and the Governor of GPE . She alleged that the flood water had carried away trees and branches which had cluttered the riverbed . As the defendants had failed to clean it , this had impeded the flow of water and had caused flooding . She also alleged that no embankments or other protective facilities had been built to protect her village from flooding , and that no monitoring or alert systems had been put in place . She claimed that those omissions had been in breach of the defendants’ obligations under several provisions of LAW DATE that expressly envisaged such measures .

Having initially decided to proceed with the case , in a decision of CARDINAL August CARDINAL , ORG dismissed the applicant ’s claim as inadmissible . It held that the administrative courts were not competent to examine it because the alleged omissions of the defendants did not constitute administrative action within the meaning of Article CARDINAL § CARDINAL of the Code of Administrative Procedure and section CARDINAL ( CARDINAL ) of LAW . The relations between the applicant and the authorities in connection with the flood were not characterised by an exercise of authority and were therefore not governed by the rules of administrative law . The impugned omissions of the authorities did not form part of their administrative activities .

NORP On appeal , on DATE ORG upheld that decision , with almost identical reasoning . It went on to say that the applicant could bring a claim before the civil courts .


Violation of Art. 8;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award

The applicants were born in DATE , DATE and DATE respectively . When they introduced the application , they were all living in GPE .

The first applicant went to GPE in DATE to live with his parents and siblings . As from DATE he cohabited with the second applicant , who was born in GPE and has lived there all her life . They married under NORP law in DATE and under NORP civil law in DATE . Their daughter , the third applicant , was born on DATE .

On DATE the first applicant was sentenced to CARDINAL ORG imprisonment on probation for shoplifting by ORG .

On DATE ORG ( Bezirksgericht ) convicted him of theft without pronouncing a sentence . The court established that in DATE the first applicant had stolen moped - accessories , cutlery and other commodities , CARDINAL gold rings and a gold bracelet , worth altogether CARDINAL NORP schillings ( ORG ) , equivalent to MONEY ( ORG ) . A probation period of DATE was fixed .

In DATE and DATE the first applicant was convicted of CARDINAL minor breaches of traffic rules and sentenced to pay fines of ORG CARDINAL , CARDINAL respectively . DATE he was convicted CARDINAL times of driving a car without a driving licence and sentenced to pay fines of ORG CARDINAL,CARDINAL , CARDINAL , respectively ( equivalent to EUR CARDINAL , CARDINAL and CARDINAL ) .

On DATE , still without a driving licence , he overran a red traffic light and exceeded the speed limit of QUANTITY , driving at CARDINAL km / h . On DATE ORG ( GPE ) convicted him of these offences and sentenced him to a fine of ORG CARDINAL .

On DATE ORG imposed a DATE residence ban on the first applicant .

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

The authority referred to section QUANTITY of the DATE LAW , which paragraphs provide that a residence ban has to be issued against an alien , inter alia , if he has been convicted more than once for similar offences by a domestic or foreign court , or if a fine has been imposed on him more than once for a grave administrative offence by an administrative authority . The ORG found that both conditions had been met in this case .

Further , ORG , referring to the first applicant ’s stay in GPE since DATE , the fact that his close family was living in GPE , his co - habitation with a NORP national who was born in GPE , and his employment , found that the residence ban constituted an interference with the applicant ’s right to respect for his private and family life . However , it was necessary for the aims set out in LAW , namely for the prevention of crime and the protection of the rights of others . Given the first applicant ’s continuous disregard of NORP law , the authority assumed that it was probable that he would commit similar offences in the future . Thus , despite the first applicant ’s high degree of integration in GPE , the public interest in issuing a residence ban outweighed the first applicant ’s interest in staying . This decision was served on the first applicant on DATE .

On CARDINAL DATE the applicant was taken into detention with a view to his expulsion .

On DATE ORG refused to deal with the first applicant ’s complaint as it lacked sufficient prospects of success .

Subsequently , the first applicant lodged a complaint with ORG . He requested that the decisions relating to the residence ban against him be quashed for errors of law . He submitted that the contested decisions violated his right to respect for his private and family life . In particular , he complained that the competent authorities had failed duly to weigh his interests in staying in GPE against the public interest of issuing a residence ban against him . Although he had been convicted of theft , no punishment had been imposed on him . The other convictions only concerned administrative offences . Neither his fiancée , the second applicant , who was born in GPE and worked there , nor their daughter , the third applicant , could be expected to follow him to GPE .

Furthermore , the first applicant submitted that GPE had become a member of ORG on DATE and was therefore bound by ORG between ORG and GPE . According to this Agreement , and the decisions on its implementation , NORP workers who had been legally employed in a member ORG for a certain period had a right of free access to the employment market and also to a residence permit . In this context the first applicant requested ORG to refer the case to ORG of ORG for a preliminary ruling under LAW of LAW . Moreover , measures of public security against such workers were only possible if the public interest was massively and actually endangered . Therefore , it would contradict GPE - law to issue a residence ban against the child of a migrant worker ’s family who has never committed anything else than petty crimes .

On DATE ORG granted the first applicant ’s complaint suspensive effect . Thereupon , on CARDINAL DATE , the applicant was released from detention with a view to his expulsion .

On DATE ORG dismissed the first applicant ’s complaint . It found that the contested residence ban served aims set out in LAW , namely the prevention of crime and the protection of the rights of others . Furthermore , ORG had duly weighed the interests involved . Given the fact that the first applicant had committed several criminal and administrative offences during a protracted period , the public interest weighed more heavily than the private interest , even in cases where an alien was integrated as the first applicant .

As to ORG between ORG and GPE , and in particular decree no . CARDINAL of ORG , ORG noted that the rights contained therein only applied after a certain number of DATE of lawful employment . The first applicant had failed to submit the relevant facts to the administrative authorities , in particular whether he had been working in GPE for the requisite period . Thus , ORG could not be reproached for not having taken into account that ORG and the above decree . The decision was served on the first applicant on DATE .

On DATE an order to leave NORP territory was served on the first applicant , with which he complied on DATE .

The first applicant is currently living in GPE . The validity of his residence ban expired in DATE . However , according to his submissions , which were not contested by the Government , the possibilities of legally returning to GPE are very limited and involve long waiting periods .

It appears that the second and third applicants visited the first applicant on a number of occasions in GPE and spent a longer period of time there at DATE and in DATE . In DATE the first and second applicants divorced . According to the divorce decree issued by a NORP court , the second applicant has sole custody over the third applicant while the first applicant has a right of access . In DATE the second applicant returned to GPE . She has a settlement permit and a work permit . She has left the third applicant temporarily in GPE where the latter is being cared for by relatives but intends to bring her back to GPE .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

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

NORP In DATE the applicant was initially diagnosed with narcolepsy ( chronic sleep disorder ) . That diagnosis was confirmed in DATE . Narcolepsy is characterised by excessive sleepiness and sleep attacks . Since DATE the applicant has been followed by a psychiatrist and received pharmacological treatment . In DATE the applicant was diagnosed with diabetes and hypertension ( DATE ) , sleep apnoea ( DATE ) as well as epilepsy ( DATE ) . He was hospitalised following an epileptic seizure ( DATE and DATE ) and a cardiac arrest ( DATE ) .

In DATE a psychiatrist treating the applicant advised the applicant to take PERSON ( PERSON ) which , in contrast to previous drugs , had positive effects on his condition . The drug was initially provided by a pharmaceutical company free of charge to the applicant ’s doctor . Subsequently , the drug became available in pharmacies but was not listed on ORG register of refunded drugs . The applicant could buy the drug at his own expense .

In DATE the applicant was admitted to ORG at ORG in GPE . He was diagnosed with narcolepsy and breathing difficulties while sleeping . On the certificate dated DATE Doctor PERSON stated that PERSON ( PERSON ) was the basic drug used in the treatment of narcolepsy .

In DATE the applicant underwent a bypass surgery in the ORG . In DATE he was hospitalised for pneumonia .

On DATE the applicant requested the Szczecin Branch of ORG ( “ the NHF ” ) to refund him the cost of the drug . He submitted that he suffered from narcolepsy as well as from diabetes . He also had a stroke . He had frequently lost consciousness and was hospitalised on account of those ailments . He claimed that the psychiatrists and neurologists treating narcolepsy were of the view that PERSON ( PERSON ) was the only effective drug for his condition . He submitted opinions of CARDINAL doctors from private practice to that effect . The applicant was not able to afford to buy the drug and submitted that there was no generic drug available .

By a letter of CARDINAL DATE the applicant was informed that the ORG refunded the cost of drugs in accordance with the Ordinance of ORG on the register of drugs which were distributed free of charge , against the payment of a lump sum or against a partial payment ( “ the LAW ” ) . The contents of the register of the refunded drugs and related matters were determined by ORG . The applicant was informed that there was no possibility to refund the cost of those drugs which were non - refundable according to the Ordinance . Lastly , he was advised that he could be assisted by the social services .

On DATE the applicant requested ORG of ORG to prepare an opinion as to whether PERSON ( PERSON ) could be considered a life - saving drug in his case . In the opinion of DATE Doctor PERSON , having regard to the applicant ’s medical history , replied in the affirmative . She noted that PERSON ( PERSON ) was the basic drug used in the treatment of narcolepsy and that it had improved the applicant ’s condition . The expert established that the first attacks of narcolepsy had been diagnosed in DATE and that from DATE he has been under psychiatric care .

It appears that on an unspecified date in DATE the applicant again requested to be refunded the cost of the drug . On DATE the ORG informed him that according to the opinion of the regional consultant in neurology , Professor ORG , PERSON ( PERSON ) was not a drug routinely used in the treatment of narcolepsy and that it was not a life - saving drug . Furthermore , the limited financial resources of ORG of the ORG did not permit the refunding of all expensive drugs which were fully at the charge of a patient .

In an opinion dated DATE , which appears to have been commissioned by the applicant , Doctor PERSON noted that PERSON ( PERSON ) was the only tested and widely used drug in the treatment of narcolepsy .

NORP On DATE the applicant sued the Szczecin Branch of the NHF for reimbursement of expenses incurred in purchasing PERSON ( PERSON ) DATE ( PLN CARDINAL,CARDINAL.CARDINAL ) . In support of his claim he relied on the opinions of DATE and DATE . ORG ordered that an opinion be prepared with a view to determining whether PERSON ( PERSON ) was a lifesaving drug given the applicant ’s condition .

The opinion was submitted to the court on DATE . The expert established that the applicant suffered from narcolepsy ( he had been diagnosed in DATE ) , sleep behaviour disorder and breathing difficulties in sleep . In addition , the applicant suffered from hypertension , ischaemic heart disease , type CARDINAL diabetes and epilepsy . The applicant ’s sleep disorders increased the risk of strokes . The expert concluded that the applicant ’s narcolepsy together with his numerous ailments required that he was treated with PERSON ( PERSON ) , which in his case was a life - saving drug . The conclusions of the opinion were similar to those in the opinion of DATE .

In its letter of DATE LOC of the ORG again informed the applicant that , despite the positive opinion of the regional consultant in neurology , there was no possibility of individual reimbursement of the cost of the drug which remained fully at the patient ’s charge since PERSON ( PERSON ) was not a life - saving drug and narcolepsy was not a fatal condition . The drug PERSON ( PERSON ) was not listed on the Minister of ORG ’s register of refunded drugs and thus it was to be purchased exclusively at the expense of the patient . He was further informed that persons in a difficult financial situation could have recourse to social services .

On an unspecified date LAW transmitted the case to ORG of the court , since the latter instance was competent to hear the case . ORG of the District Court found that it did not have jurisdiction to hear the case since it examined appeals against administrative decisions , and in the applicant ’s case the ORG had not issued any such decision . On DATE ORG found that it did not have jurisdiction to hear the case and transmitted it to LOC of the NHF for a decision in respect of the reimbursement of the cost of the therapy .

On DATE the applicant requested the Szczecin Branch of the ORG to reimburse him for the cost of the drug . In reply , he was informed that no decision could be given until the delivery of a decision in the case pending before ORG .

On DATE the applicant submitted a similar request . On DATE the ORG refused his request . It found that PERSON ( PERSON ) was neither included on the relevant register of refunded drugs of ORG nor on the separate register of specific serious diseases and drugs which could be refunded in the treatment of those diseases . The drugs which were not listed in those registers were nonrefundable and remained fully at the patient ’s charge . The applicant was further advised that the regional branch of the ORG could , in necessary cases , authorise non - standard medical treatment at the request of ORG , the establishment where he was treated .

The applicant appealed , arguing , inter alia , that he was unable to afford to buy PERSON ( PERSON ) .

On DATE the President of the ORG upheld the contested decision . He noted that LAW provided that citizens were ensured equal access to health care services , financed from public funds . However , the conditions and the scope of the provision of services should be established by statute . At the material time those issues were regulated by ORG from LAW ( “ the LAW ” ) . In accordance with the LAW , the ORG was to refund to a pharmacy the price of a drug which appeared on the list of fully or partially refunded drugs .

The LAW introduced the rule that patients were to pay a part of the price of drugs sold by pharmacies and designated the Minister of Health as the competent authority to determine the scope of the partial payment as well as of the financing from public funds . It was noted that the ORG had no discretion to exercise in this respect . The Minister of ORG was competent to establish the list of drugs which were to be fully or partially refunded in his CARDINAL ordinances of DATE and the drug PERSON ( PERSON ) did not appear on that list . Lastly , it was noted that the refund of the cost of a drug by the ORG was only allowed in cases of administering the drug in the framework of the provision of health services by health establishments to patients in accordance with contracts concluded between the ORG and those establishments .

The applicant filed a complaint against that decision with ORG . He alleged that the refusal to refund the cost of PERSON ( PERSON ) amounted to a violation of NORP CARDINAL ( equality ) , CARDINAL ( protection of life ) and CARDINAL of the LAW ( equal access to health care services ) and a breach of section CARDINAL and CARDINAL of LAW . He pointed out that for DATE he had been suffering from a rare neurological disease and that according to medical expert opinions PERSON ( PERSON ) was a life - saving drug in his case . Furthermore , the cost of the DATE intake of the drug was in the region of PLN CARDINAL,CARDINAL , while the joint income of the applicant and his wife ( both retired ) was ORG and they were already spending DATE LAW on various medications .

On DATE ORG declared the decision of the President of the NHF and the preceding decision null and void for the lack of competence on the part of that authority to deal with the matter . It noted that LAW did not envisage the possibility that a patient could seek reimbursement of the cost of medical treatment . Such a possibility was reserved exclusively for entities providing health care services . The court observed that there was no legal basis for the ORG ’s decision in respect of the refund for a particular drug . It appears that the applicant did not lodge an appeal with ORG .

On DATE the applicant again requested the President of the NHF to refund the cost of PERSON ( PERSON ) . In his reply of CARDINAL October DATE the Director of ORG of the NHF informed the applicant that , in accordance with ORG judgment , the ORG was not competent to issue decisions in respect of the refund of costs of health care services .

On DATE the ORG declined to examine the applicant ’s constitutional complaint .

On DATE the applicant again sued ORG of the NHF for reimbursement of expenses incurred in purchasing the drug . On DATE ORG rejected his statement of claim , having found that the branch of the NHF did not have standing in the proceedings .

On DATE the applicant unsuccessfully requested the President of the NHF to refund the cost of the drug . His request was forwarded to the Minister of Health as the competent authority to list a drug on the register of drugs which were partially or fully refunded .

On DATE ORG informed the applicant that the company making PERSON ( PERSON ) had not applied for the listing of the drug on the register of refunded drugs and therefore the Ministry could not act on the matter .

By a decision of DATE LOC of the NHF , acting in line with ORG judgment , discontinued the proceedings in respect of the applicant ’s request for refund .

It appears that the applicant continues to buy PERSON ( PERSON ) at his own expense .

DATE the LAW reads in so far as relevant :

“ CARDINAL . Everyone shall have the right to have his health protected .

Equal access to health care services , financed from public funds , shall be ensured by public authorities to citizens , irrespective of their material situation . The conditions for , and scope of , the provision of services shall be established by statute .

Public authorities shall ensure special health care to children , pregnant women , handicapped people and persons of advanced age . ”

The CARDINAL Act defined the conditions for and the scope of health care services financed from public funds . It stipulated that the Minister of Health shall set out in an ordinance the list of basic and complementary drugs and the rules concerning payment for those drugs ( section CARDINAL ) and the list of drugs in respect of certain serious conditions which were prescribed free of charge , against payment of a lump sum or against a partial payment ( section CARDINAL )