CASE OF LAZOROSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Remainder inadmissible;Violation of Art. 5-1-c+5-2;Violation of Art. 6-1;No violation of Art. 6-1;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant received a telephone call from an officer of ORG ( Управа за безбедност и контраразузнавање ) who asked him to come to a police station for a “ talk ” . The applicant replied that he would attend with his lawyer provided he received a written request .

Mr PERSON , a high - ranking officer in ORG gave a verbal order for the applicant 's arrest on suspicion that he was armed and might leave the ORG .

At TIME DATE the applicant was arrested by police near the GPE border post with GPE . He was taken to GPE police station and a body search was carried out . A report on the search indicated that a mobile phone , passport , identity card and a licence to carry arms ( “ the licence ” ) had been found . According to the parties , a gun was also found , but was not recorded in the report . The applicant was handcuffed and transferred to GPE police station by ORG . He managed to contact his lawyer on his mobile phone .

At TIME on DATE the applicant signed a report in which he waived his right to a lawyer . No record of questioning was kept . The applicant maintained that he was questioned about the work of his superiors ( CARDINAL of the executive managers of company O. ) , about certain members of the then opposition political party and certain high - profile journalists . His personal belongings were returned and he was released at TIME

On DATE the applicant brought his alleged unlawful arrest to the attention of ORG ( “ the Ministry ” ) and on DATE , to ORG at ORG ( “ the Sector ” ) . Several letters were subsequently exchanged between the applicant and the Sector .

In a report of DATE the ORG noted that the applicant 's arrest and detention had been carried out in compliance with the law . Owing to minor errors in the minutes concerning the body search , the ORG proposed that the police officers responsible be fined and warned . The ORG repeated these findings in its reply to the applicant dated DATE . No explanation was given for the applicant 's arrest .

On DATE the applicant requested an investigating judge at ORG to review the lawfulness of his deprivation of his liberty ( барање за испитување на законитоста на лишувањето од слобода ) . He claimed that he had been detained unjustifiably ; that he had not been informed of the reasons for his arrest ; that his lawyer had been prevented from attending his interview and that the arrest had been carried out without a court order .

DATE and DATE the investigating judge was on sick leave .

On DATE the investigating judge requested the ORG to provide documents concerning the applicant 's arrest . In a reply of DATE , the ORG stated that the applicant 's arrest had been ordered on account of suspicion that he had been involved in arms trafficking and that he had been released after it had been established that there was no evidence to support the allegations and that he had the requisite licence . On DATE and DATE the investigating judge required further written evidence from ORG which the latter submitted on DATE .

On DATE , after CARDINAL requests by the applicant for the proceedings to be expedited and relying on the information provided by the ORG and the reports described in DATE above , the investigating judge found that the applicant had been lawfully deprived of his liberty on suspicion of arms trafficking . She further found that the applicant had waived his right to a lawyer , as noted in the report of DATE , which had been duly signed by the applicant . The applicant was advised that he could appeal within DATE to a CARDINAL - judge panel ( “ the panel ” ) ( Кривичен Совет ) of ORG .

On DATE the applicant appealed , arguing that he had been deprived of his liberty contrary to LAW and the applicable legislation . He maintained that he had been arrested without a court order and that the investigating judge had failed to examine the grounds for his deprivation of liberty . He further submitted that he had not been summoned by the investigating judge to present the arguments in his favour and that there had been witnesses who could have shed light on the circumstances surrounding his arrest .

On DATE the panel dismissed the applicant 's appeal . Finding no reasons to question the established facts , it ruled that the applicant 's deprivation of liberty had been lawful and intended to identify him , verify his alibi and collect necessary information . It noted that he had been informed of his rights and the reason for his arrest , namely a reasonable suspicion that he had committed the offence of “ trafficking in arms ” .

No proceedings were taken against the applicant .

Article QUANTITY § CARDINAL , CARDINAL DATE of the LAW provides that freedom can not be restricted except by a court decision and in cases and proceedings regulated by a law . Individuals summoned , arrested or detained must be informed promptly of the reasons for the summons , arrest or detention and of their statutory rights . They can not be forced to make a statement . Everyone has a right to a lawyer in police and in court proceedings . Detainees must be brought , promptly or within TIME of their arrest , before a court which will examine the lawfulness of their detention .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the LAW , as worded at the material time , provided that everyone summoned , arrested or detained had to be informed promptly , in a language which he or she understood , of the reasons for the summons , arrest or detention and of his or her statutory rights . He or she could not be forced to make a statement . The suspect , that is , the person accused , had to be clearly informed from the outset of his or her right to remain silent , to consult with a lawyer , to have a lawyer of his or her choice present during questioning , and to inform a third party of his or her detention .

Section PERSON ) of the Act provided for a CARDINAL - judge panel of the first - instance court to hear , inter alia , appeals against decisions of the investigating judge .

Section CARDINAL(CARDINAL ) laid down that a person against whom the ORG had taken the measures set forth in subsection CARDINAL ( measures which the ORG was authorised to take on account of suspicion that an offence had been committed ) could request the court to review the lawfulness of those measures and that the court had to issue a decision .

Under section CARDINAL(CARDINAL)(CARDINAL ) of the LAW , pre - trial detention could be ordered on reasonable suspicion that the person concerned had committed an offence if he or she had gone into hiding or his or her identity could not be determined , or when there were circumstances to suggest the possibility that he or she might abscond .

Section CARDINAL ) provided that Ministry officials could arrest without a court order anyone suspected of committing an offence prosecutable ex officio . The arrested person had to be brought promptly before an investigating judge . In accordance with section DATE ) and as an exception to the general rule , Ministry officials could detain a person if it was necessary to determine his or her identity ; to verify his or her alibi or if there were other grounds requiring the collection of information to enable proceedings to be brought against a third party . Such detention could be effected only if the requirements for pre - trial detention , as set forth in sections QUANTITY ) and ( CARDINAL)(CARDINAL ) , were met . Section CARDINAL(CARDINAL ) required the arrested person to be given the information referred to in section QUANTITY . Section CARDINAL ) provided that detention pursuant to section CARDINAL(CARDINAL ) could not exceed TIME . ORG official was required either to release the arrested person or to proceed in accordance with section CARDINAL(CARDINAL ) .

Sections PERSON ) and CARDINAL of the Act , which related to compensation for wrongful conviction and unjustified detention , stipulated that the party concerned had to lodge any claim for damages with ORG in the first instance and to indicate the requested form and amount of any settlement . If the compensation claim was not upheld or ORG failed to decide it within DATE from the date the claim was brought , the party concerned could claim compensation in the court of competent jurisdiction .

In accordance with sections DATE ) ( CARDINAL ) and CARDINAL ) of the LAW , a person was entitled to compensation if he or she had been unjustifiably deprived of his or her liberty through the fault or unlawful conduct of a body . A person unlawfully arrested under section CARDINAL of the LAW could claim compensation .

Section CARDINAL of the amended Act replaced section CARDINAL of the LAW . Under subsection CARDINAL , the person concerned may within DATE request the investigating judge to review the lawfulness of the measures taken by the police . An appeal to the panel may be lodged within TIME . The panel must issue its decision within DATE .

In case no . П.бр.CARDINAL/CARDINAL ORG , on the basis of a court settlement , paid compensation to a claimant who had been held for DATE before being released . The investigation against him was also discontinued .

On DATE ORG paid compensation for non - pecuniary loss sustained by PERSON following his arrest in DATE to serve a prison sentence he had already served in DATE ( бр. CARDINAL - CARDINAL/CARDINAL ) .

In civil proceedings instituted under LAW ( ORG за облигационите односи ) , PERSON was awarded compensation after being unjustifiably held in police custody in order to serve a prison sentence even though no such sentence had been imposed , but rather a security measure - compulsory psychiatric treatment on release .


Violation of Art. 3 (substantive aspect);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5

The applicant was placed in preliminary detention on DATE under an order of an investigator on the suspicion of having raped a minor on DATE , DATE . The arrest was undertaken on the basis of a complaint filed by the victim whereby she had identified the applicant as CARDINAL of the persons who had raped her . On DATE , the preliminary detention of the applicant was extended until DATE by order of a prosecutor .

Based on the complaint filed by the victim and the evidence collected by the police , a preliminary investigation was opened against the applicant on DATE . On DATE , he was charged with aggravated rape of a defenceless minor perpetrated on CARDINAL occasions on DATE together with another CARDINAL individuals . By virtue of the same order , confirmed by ORG later in DATE , the applicant was detained on remand . He was presented with the aforesaid order and countersigned it on DATE .

On DATE and DATE the applicant filed appeals against his detention , which were examined and dismissed by ORG by decision of DATE . The court found that because the applicant was charged with a serious intentional offence there was a risk that he might abscond .

NORP The charges against the applicant were amended on DATE and DATE . On both occasions the detention on remand was maintained on the grounds of the applicant 's personality and the seriousness of the offence .

On DATE the preliminary investigation was concluded with a proposal that an indictment be filed against the accused .

NORP ORG amended the charges against the applicant on DATE .

NORP ORG entered an indictment against the applicant on DATE charging him with being an accomplice to the rape of a minor using threats or force ( LAW ( CARDINAL ) , in conjunction with LAW ) and LAW ) of LAW ) .

On an unspecified date the victim joined the proceedings as a civil claimant .

On DATE the applicant appealed against his detention claiming , inter alia , that he had a permanent address and that the worsening financial situation of his family would preclude any possibility that he might abscond . With a resolution of DATE ORG decreed that the appeal would be examined at the next court hearing .

At a hearing on DATE ORG dismissed the applicant 's appeal . It considered that there were no new circumstances following his previous appeal of DATE , that he was still charged with a serious intentional offence and , therefore , that there was still a risk that he might abscond , attempt to intimidate the victim and the other witnesses , and obstruct the discovery process in the proceedings . The lack of employment of the applicant was considered a contributory element to the risk that he might abscond . The court did not consider the length of the detention to be a reason onto itself which might justify a reassessment of the justification of the applicant 's deprivation of liberty .

On DATE , on appeal by the applicant of DATE , ORG upheld the lower court 's decision on similar grounds .

On DATE the applicant filed another appeal against his detention .

At the court hearing on DATE , ORG dismissed the appeal as it considered that the seriousness of the offence still inferred that he might abscond and re - offend . The court also considered that the length of the applicant 's detention could not in itself warrant his release . At the end of the hearing , the court withdrew to deliver its judgment .

In a judgment of DATE the ORG found the applicant and his CARDINAL accomplices guilty as charged . He was sentenced to DATE imprisonment and ordered to pay damages to the victim .

The applicant appealed against the judgment on DATE claiming that the imposed sentence was unjustified and unsupported by the evidence in the case .

NORP The hearings of CARDINAL and DATE before ORG were postponed due to improper summons of the civil claimant .

The applicant 's appeal was examined at the next hearing on DATE .

In a judgment of DATE the applicant 's appeal was dismissed by ORG . The applicant did not appeal further and the aforementioned judgment became final on DATE .

NORP The applicant was held at ORG from DATE to CARDINAL DATE . He was then transferred to ORG where he remained until DATE before being moved to FAC . It is unclear when he was released .

The applicant claimed , which the ORG subsequently challenged , that at this detention facility ( CARDINAL ) there had been insufficient fresh air and sunlight in the cells ; ( CARDINAL ) there had been no exercise or healthy food ; ( CARDINAL ) hygiene had been lacking ; ( CARDINAL ) he had been denied access to newspapers , books , radio and television ; ( CARDINAL ) he could not meet with his representative in private , and ( CARDINAL ) he could not maintain an active correspondence . In support of his assertions , the applicant submitted signed declarations from himself and another detainee , Mr D.G.

In his declaration , the applicant claimed that he had been held in isolation for the duration of his detention at this facility in a cell which measured QUANTITY m. There had been CARDINAL wooden beds covered with worn and torn mattresses , blankets and pillows . There had been fleas , cockroaches and mice .

There had been no windows and the only fresh air entering the cell had come from the corridor through a grate above the door . There had been only artificial light which had been constantly switched on .

The applicant had to satisfy the needs of nature in a bucket inside the cell , the contents of which were removed twice a day . He had access to sanitary facilities twice a day for TIME during which time he had to throw out the bucket and pour himself drinking water in a dirty plastic bottle . The applicant bathed and shaved once a week with cold water .

The food had been insufficient and lacked any meat . The applicant received QUANTITY of bread every day . He had to eat without cutlery from dirty plastic dishes .

No exercise had been provided and he had not been allowed to read newspapers , magazines and books .

Mr GPE , in his declaration , corroborated the applicant 's statements .

The applicant claimed , which the ORG subsequently challenged , that at this detention facility ( CARDINAL ) there had been insufficient fresh air and sunlight in the cells ; ( CARDINAL ) there had been no exercise or healthy food ; ( CARDINAL ) hygiene had been lacking ; ( CARDINAL ) he had been denied access to newspapers , books , radio and television ; ( CARDINAL ) he could not meet with his representative in private , and ( CARDINAL ) he could not maintain an active correspondence . The applicant also submitted signed declarations from himself and another detainee , Mr PERSON

In his declaration , the applicant stated that the conditions in ORG had initially been similar to those at ORG , but that they had improved in DATE . In addition and contrary to some of his complaints , he stated that he had been allowed to have visitors , that the food had consisted of meat or fish several times a week , that he had the ability to watch television , listen to the radio and read books and newspapers . The applicant also stated that he had access to other pastimes at this detention facility , that the sanitary facilities had been situated in the cell itself and that pest extermination activities had been undertaken on a regular basis .

The relevant provisions of LAW ( the “ ORG ” ) and the NORP courts ' practice before DATE are summarised in the ORG 's judgments in several similar cases ( see , among others , ORG v. GPE [ ORG ] , no . ORG , § § DATE , ORG CARDINAL-II ; PERSON v. GPE , no . GPE , § § DATE , DATE ; and ORG v. GPE , no . CARDINAL , § § DATE , ECHR CARDINAL ( extracts ) ) .

On the basis of the relevant law before DATE , when ruling on appeals against pre - trial detention of a person charged with having committed a “ serious ” offence , the domestic courts generally disregarded facts and arguments concerning the existence or absence of a danger of the accused person 's absconding or committing offences and stated that every person accused of having committed a serious offence must be remanded in custody unless exceptional circumstances dictated otherwise ( see decisions of the domestic authorities criticised by ORG in the cases of NORP and PERSON , both cited above , and PERSON v. GPE , no . PERSON , CARDINAL DATE ) .

ORG of DATE ( the “ ORG ” ) provides that the ORG is liable for damage caused to private persons by ( a ) the illegal orders , actions or omissions of government bodies and officials acting within the scope of , or in connection with , their administrative duties ; and ( b ) the organs of the investigation , the prosecution and the courts for unlawful pretrial detention , if the detention order has been set aside for lack of lawful grounds ( sections CARDINAL - CARDINAL ) .

In respect of the regime of detention and conditions of detention , the relevant domestic law and practice under sections CARDINAL and CARDINAL of the ORG has been summarised in the cases of PERSON v. PERSON ( no . CARDINAL/CARDINAL , § § CARDINAL , DATE ) and PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

The ORG visited GPE in DATE , DATE , DATE , DATE and DATE . All but its most recent visit report have since been made public .

The Pazardzhik Prison was visited by the ORG in DATE , while ORG was visited both in DATE and in DATE . The report from the latter visit has not yet been made public .

There are also general observations about the problems in all ORG detention facilities in the DATE , DATE and DATE visit reports .

The ORG found that most , albeit not all , of the ORG detention facilities were overcrowded . With the exception of CARDINAL detention facility where conditions were slightly better , the conditions were as follows : cells did not have access to natural light ; the artificial lighting was too weak to read by and was left on permanently ; ventilation was inadequate ; the cleanliness of the bedding and the cells as a whole left much to be desired ; detainees could access a sanitary facility twice a day ( morning and evening ) for TIME and could take a DATE shower ; outside of the CARDINAL daily visits to the toilets , detainees had to satisfy the needs of nature in buckets inside the cells ; although according to the establishments ' internal regulations detainees were entitled to a “ DATE walk ” of TIME , it was often reduced to TIME or not allowed at all ; no other form of out - of - cell activity was provided to persons detained .

The ORG further noted that food was of poor quality and in insufficient quantity . In particular , the DATE 's “ hot meal ” generally consisted of a watery soup ( often lukewarm ) and inadequate quantities of bread . At the other meals , detainees only received bread and a little cheese or halva . Meat and fruit were rarely included on the menu . Detainees had to eat from bowls without cutlery – not even a spoon was provided .

NORP The ORG also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that , as a result , detainees ' contacts with the outside world were very limited . There was no radio or television .

The ORG concluded that the NORP authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “ almost without exception , the conditions in the ORG detention facilities visited could fairly be described as inhuman and degrading ” . In reaction , the NORP authorities agreed that the ORG delegation 's assessment had been “ objective and correctly presented ” but indicated that the options for improvement were limited by the country 's difficult financial circumstances .

NORP In DATE the ORG recommended to the NORP authorities , inter alia , that sufficient food and drink and safe eating utensils be provided , that mattresses and blankets be cleaned regularly , that detainees be provided with personal hygiene products ( soap , toothpaste , etc . ) , that custodial staff be instructed that detainees should be allowed to leave their cells during DATE for the purpose of using a toilet facility unless overriding security considerations required otherwise , that the regulation providing for TIME exercise per day be fully respected in practice , that cell lighting and ventilation be improved , that the regime of family visits be revised and that pre - trial detainees be more often transferred to prison even before the preliminary investigation was completed . The possibility of offering detainees TIME outdoor exercise per day was to be examined as a matter of urgency .

The ORG established that ORG had CARDINAL cells , situated in the basement , and at the time of the visit accommodated QUANTITY detainees , including QUANTITY women in a separate cell .

Six cells measuring QUANTITY were designed to accommodate CARDINAL detainees ; the other CARDINAL , intended for CARDINAL occupants , measured CARDINAL - and - QUANTITY . This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the ORG . However , all the remaining shortcomings observed in the other ORG detention facilities – dirty and tattered bedding , no access to natural light , absence of activities , limited access to sanitary facilities , etc . – also applied there . Even the TIME exercise rule , provided for in the internal regulations and actually posted on cell doors , was not observed .

In this report the ORG found , inter alia , that the prison was seriously overcrowded and that prisoners were obliged to spend most of DATE in their dormitories , mostly confined to their beds because of lack of space . It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities .

The ORG noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements .

In most investigation detention facilities visited in DATE , with the exception of a newly opened detention facility in GPE , conditions of detention were generally the same as those observed during the ORG 's DATE visit , as regards poor hygiene , overcrowding , problematic access to toilet / shower facilities and a total absence of outdoor exercise and outofcell activities . In some places , the situation had even deteriorated .

In the ORG detention facility , as well as in CARDINAL other places , detainees “ had to eat with their fingers , not having been provided with appropriate cutlery ” .

DATE . During DATE visit some improvements were noted in the country 's investigation detention facilities , severely criticised in previous reports . However , a great deal remained to be done : most detainees continued to spend DATE on end locked up in overcrowded cells TIME a day .

Concerning prisons , the ORG drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates .


Angelika Nußberger;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert

The applicant was born in DATE and lives in GPE .

NORP Since DATE , the applicant has been on PERCENT sick leave due to various health problems . She has , inter alia , been operated on for cancer as the consequence of which she suffers from recurrent PERSON ( a bacterial infection of the skin , which typically involves the lymphatic system ) and lymphatic oedema in both legs .

Hence , on DATE , the applicant applied for disability benefits ( handikappersättning ) retroactively from DATE . She claimed that , due to her health problems , she had incurred , and still incurred , extra costs for , inter alia , medication , ORG visits , treatment , travel expenses , special clothes and shoes , special soap and creams , and for supplementary vitamins and minerals . She had calculated that these extra costs amounted , in total , to SEK CARDINAL,CARDINAL ( approximately EUR CARDINAL,CARDINAL ) per year .

On DATE ORG ( försäkringskassan NORP “ the ORG ” ) of GPE rejected the request . It accepted certain extra costs for medication , medical treatment and support material as well as for certain travel up to a specific amount . However , in the ORG ’s view , the total of the applicant ’s extra costs per year amounted to MONEY from DATE , SEK CARDINAL,CARDINAL from DATE and SEK CARDINAL,CARDINAL from DATE . Thus , the ORG concluded that the applicant ’s extra costs did not reach the minimum level established for DATE to be granted disability benefits ( namely SEK CARDINAL for DATE , SEK CARDINAL,CARDINAL for DATE and SEK CARDINAL,CARDINAL for DATE , which was equal to PERCENT of the basic amount in line with the price index [ basbelopp ] ) . It further noted that the applicant had claimed that she needed help with shopping and some cleaning and driving but that she had not stated that she had a DATE need for assistance . In this respect , the ORG took into account that the applicant was married and could rely on some help from her husband . Therefore , it considered that she had failed to show that she had a substantial need of assistance in her daily life ( minimum TIME per day ) . Finally , it found that the total need of support was not sufficient for disability benefits to be granted . The decision was based on Sections CARDINAL and CARDINAL of the Act on Disability Benefits and Care Allowance ( Lagen om handikappersättning och vårdbidrag , Act no . CARDINAL:CARDINAL ) and the ORG also had CARDINAL medical certificates at its disposal from different doctors who had treated the applicant .

By letter dated DATE the applicant appealed against the decision to ORG ( länsrätten ) of GPE , requesting that the decision be set aside and that the case be remitted to the ORG for further action . In the alternative , she requested that the court declare her entitled to disability benefits as from DATE . She maintained her claims and developed her reasons for why the various extra costs were essential . She further added that the ORG had failed to investigate her actual need for assistance , which she alleged amounted to TIME per day , in order to estimate the total cost of extra needs due to the disability . Moreover , the applicant stated that she needed manual lymphatic drainage which ORG of PERSON lacked resources to provide . Since her need was medically documented , she had to travel to a neighbouring county for treatment at her own expense . In this connection , she alleged that she was unable , due to her illness , to use public transport for which reason her travel expenses were higher than calculated by the ORG . All these extra costs should , in her view , be included in the calculation to grant her disability benefits .

On DATE ORG rejected the appeal . As concerned the applicant ’s need of assistance in her DATE life , the court considered that it was the common responsibility of a couple to clean and shop , for which reason the applicant was not found to be in need of assistance from a third person in her daily life . The applicant was not considered to be in need of assistance on a DATE basis to such an extent that this alone could constitute a basis for granting disability benefits . Turning to the extra costs , the court shared the ORG ’s conclusions and calculations but added some additional costs for special soap . It also observed that ORG was responsible for the costs related to the treatment for lymphatic drainage and that these costs thus could not be included in the calculation of disability benefits . Furthermore , it found that the medical certificates invoked before it did not show that the applicant was unable to use public transport . The court concluded , in an overall assessment of the applicant ’s need of assistance and of her extra costs , that the conditions for granting disability benefits were not fulfilled and , thus , that the applicant was not eligible for a disability allowance .

NORP By letter dated DATE the applicant appealed to ORG ( kammarrätten ) in GPE , maintaining her earlier claims and insisting that she was in need of assistance for TIME per day . She further noted that according to the calculation based on the lower court ’s judgment , the total amount of extra costs acknowledged by the court was QUANTITY ( approximately ORG CARDINAL.CARDINAL ) below the limit to be granted disability benefits for DATE . Moreover , the applicant alleged that she had to buy custom - made clothes and special shoes due to her deformities caused by the lymphatic oedema and hip problems . These costs , and the costs for the lymphatic drainage , should be included . She requested that the court order the ORG to submit information about how it had calculated her total need for assistance .

On DATE ORG rejected the applicant ’s request for further investigation of the case as it considered that the case had been clarified to the extent that was demanded . The applicant was given DATE to submit , in writing , any further information that she wished to add .

On DATE ORG granted leave to appeal and , by letter dated DATE , the applicant requested that the court hold an oral hearing because she considered the investigation to be incomplete and , for that reason , points about the matter to be decided remained unclear .

In a decision of DATE , ORG declared its intention to obtain supplementary information from the ORG , as it found it necessary to investigate the case further . On DATE ORG ordered the ORG to submit supplementary information about lymphatic drainage treatment .

In a supplementary submission by the applicant , dated DATE , she stated that she had been in contact with PERSON hospital to clarify whether it was now possible to carry out manual lymphatic drainage there . She had received various replies but , according to the latest reply , it was not possible although some private therapist within the county apparently could do it . She demanded that an oral hearing be held by telephone to clarify certain unclear points of the case . During the oral hearing , ORG ought to establish that the hospital lacked resources to provide continuous manual lymphatic drainage treatment , that the frequency of the treatments , as stated in the application for disability benefits , was medically motivated and that costs incurred for treatment performed by private providers were extra costs in the present circumstances . Furthermore , the court ought to clarify contradictions in the ORG ’s submission and calculate the time needed for assistance as well as the total need for support .

On DATE ORG rejected the applicant ’s request for an oral hearing “ per telephone ” as it found that it was not necessary . The applicant was given DATE to finalise her submissions in writing and she was informed that , after that time , the case could be decided on the basis of the case file as it stood .

By a judgment of DATE , ORG upheld the lower court ’s judgment in full . The court , consisting of CARDINAL judges including CARDINAL lay judges , found it established that lymphatic drainage treatment of the kind the applicant needed was to be regarded as medical treatment and that ORG was responsible for costs of such treatment to the extent that it could be considered medically motivated . Accordingly , when assessing the application for disability benefits , the applicant was not entitled to include extra costs for lymphatic drainage treatment . In the light of this and as the court also shared ORG assessment concerning the remainder of the subjectmatter the appeal was to be rejected . The judgment was unanimous .

By letter dated DATE the applicant made a further appeal to ORG ( Regeringsrätten ) , requesting that ORG judgment be repealed and the case returned for renewed examination since it had failed to hold an oral hearing . She referred to LAW and claimed that an oral hearing was necessary in order to clarify the case , in particular her need for assistance . In the alternative , the applicant requested that the court grant her disability benefits .

On DATE ORG refused leave to appeal .

The CARDINAL Act on Disability Benefits and Care Allowance ( Lagen om handikappersättning och vårdbidrag , Act no . CARDINAL:CARDINAL , as in force at the relevant time ) , provides that a person who has reached the age of DATE and who , before reaching DATE , has become functionally impaired for a considerable time and to such a degree that he or she needs time - consuming assistance from another person on a DATE basis or needs continuing assistance from another person in order to be gainfully employed or otherwise has considerable extra expenses , may receive disability benefits ( section CARDINAL , first paragraph ) . If the disabled person needs assistance either on a DATE basis or in order to be gainfully employed and , in addition to this , has extra expenses , the issue of whether he or she is entitled to disability benefits and the amount of compensation shall be decided on basis of the total need of support ( section CARDINAL , second paragraph ) . Thus , when making this assessment , it is necessary to look into the person ’s whole situation and to add together the need for different types of assistance and the extra expenses incurred .

It follows from section CARDINAL of the DATE Act that disability benefits are granted on a yearly basis at a level of PERCENT , PERCENT or PERCENT of the basic amount for social security purposes ( prisbasbelopp ) depending on the extent to which the person in question is in need of assistance and the amount of extra expenses caused by the disability . The basic amount was CARDINAL for DATE , SEK CARDINAL for DATE and SEK CARDINAL,CARDINAL for DATE .

A medical report is required when it comes to the assessment of the functional impairment itself . As to the disabled person ’s need of support , regard must be had to the fact that support may be provided naturally to a certain extent by the person ’s husband or wife or another person with whom the person is living . If the support amounts to TIME per day , the need for assistance is considered time - consuming and may , for that reason , constitute a basis for granting disability benefits amounting to PERCENT of the basic amount , even if there are no extra expenses ( see LAW , PERSON , ORG CARDINAL , applicable at the time of the ORG ’s decision ) . As far as the assessment of extra costs is concerned , account has to be taken of whether and to what extent the disabled person has access to assistance provided by the municipal social services , such as having his or her own personal assistant or having the possibility of using municipal transport services for the disabled . According to the above - mentioned Guidelines , considerable extra expenses incurred as a consequence of the functional impairment may in themselves result in a right to disability benefits amounting to PERCENT of the basic amount , provided the extra expenses come to PERCENT of the basic amount . It is necessary to look at the whole situation of the person in question and to add together the need for different types of assistance and the extra expenses . According to the Guidelines , the total cost of all extra needs due to the disability should attain PERCENT of the basic amount in order to make the individual eligible for disability benefit . Thus , if a person needs support for TIME per day but also extra expenses amounting to PERCENT of the basic amount , he or she is entitled to PERCENT of the basic amount in disability benefits ( see LAW , cited above , p. CARDINAL ) .

NORP In order to be granted disability benefits , the individual has to file an application with a social insurance office ( section CARDINAL ) . The benefits are paid as from DATE when the entitlement to the benefits arose . Disability benefits may be paid for a certain period of time before the insured person filed the application . Such retroactive payment may refer at most to a period of DATE preceding the application ( section CARDINAL ) . The purpose of the latter regulation is to avoid situations where the individual would lose his or her right to the benefits owing to lack of information ( see Government PERSON , p. CARDINAL ) . Since DATE , retroactive payment of disability benefits may at most refer to a period of DATE preceding the application .

Section CARDINAL of the Administrative Court Procedure Act ( ORG , Act no . ORG , as in force at the relevant time ) was worded as follows :

“ The procedure shall be in writing .

Where it may be assumed to be advantageous for the investigation or promote the expeditious determination of the case , the processing may include an oral hearing regarding certain issues .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The travaux préparatoires to ORG emphasise that an oral procedure can be advantageous for the investigation of a case in CARDINAL respects in particular . Firstly , such a hearing may be needed in order to examine a witness , expert or party or in cases where a party has difficulty expounding his or her claim in writing . Secondly , an oral hearing may be needed to clarify the positions taken by the parties in the case and perhaps eliminate unnecessary or meaningless points of dispute . In the latter case , the procedure is typically of a preparatory nature . Moreover , the oral form of procedure envisaged in the DATE Act is not to be seen as an alternative to the written form , but rather as a complement to that form ( see the Government PERSON , p. CARDINAL ) .

The possibility of holding an oral hearing in order to promote an expeditious determination of the case , which was first introduced in DATE , was a clarification of a practice that already applied ( see the Government Bill CARDINAL/CARDINAL:CARDINAL , ORG on Justice JuU CARDINAL , Parliamentary Communication CARDINAL , SFS CARDINAL:CARDINAL ) . The purpose of the legislative amendment was to make it clearer that an oral hearing can and should be used for preparatory purposes in certain cases , to make for speedier and more effective proceedings . The amendment was primarily intended for tax cases associated with tax offence cases before courts of general jurisdiction .

Furthermore , the travaux préparatoires to the DATE Act underlined , in connection with the provision in section QUANTITY concerning the right of a party to an oral hearing in certain cases , that while serious consideration should be given to the wishes of a party for such a hearing , the party could hardly be allowed to have a decisive influence in the matter . The question of whether a hearing is necessary should primarily be assessed in the light of the existing investigation of the case , but it should also be possible to accord significance to other factors , for example , if the case is very important for the party and a hearing would give him a better understanding of the import of the decision to be given in the case . CARDINAL particular reason not to arrange an oral hearing could be that the case is of a trivial nature or that the costs of the hearing are high compared to the value of the object of dispute ( see Government PERSON , p. CARDINAL ) .

NORP In DATE ORG has set aside a number of decisions on appeal and referred the case back to the administrative courts of appeal because of the lack of an oral hearing in the lower courts ( see , for example , ORG CARDINAL ref . CARDINAL , BA DATE note DATE , ORG note CARDINAL and ORG DATE note CARDINAL ; as more specifically regards work injuries , see ORG note CARDINAL and RA CARDINAL note CARDINAL ) . In the last mentioned case , an administrative court of appeal had changed the lower court ’s judgment to the applicant ’s disadvantage without holding an oral hearing . Furthermore , the applicant had requested that a medical doctor be heard as a witness .

In a judgment of DATE concerning a claim for damages brought by an individual against ORG , inter alia , on the basis of an alleged violation of LAW on account of the excessive length of the criminal proceedings , ORG held that the plaintiff ’s right under LAW to have the criminal charges against him determined within a reasonable time had been violated . Based on this finding , and with reference , inter alia , to ORG and CARDINAL of the Convention and the ORG ’s case - law under these provisions , in particular the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALXI ) , ORG concluded that the plaintiff was entitled to compensation under NORP law for both pecuniary and non - pecuniary damages . With respect to the level of compensation for non - pecuniary damage , ORG took note of the criteria established in the ORG ’s case - law stating that the ORG ’s practice constituted a natural point of departure in this regard .

In a decision of CARDINAL DATE , ORG held that the principle concerning a right to damages established in the above - mentioned case of DATE also applied with regard to the rights contained in LAW . ORG stated that the plaintiff ’s right to damages on account of a violation of Article CARDINAL should be assessed in the first place under LAW ( LAW no . ORG ) and GPE and Other Coercive Measures ( NORP om ersättning vid frihetsberövanden och andra tvångsåtgärder , Act no . CARDINAL:CARDINAL ) . To the extent necessary , the relevant provisions of domestic law should be interpreted in accordance with the LAW . If GPE ’s obligations under LAW could not be met by such an interpretation , the domestic courts should award compensation without the support of specific legal provisions . As concerned the determination of the level of compensation , ORG repeated that the ORG ’s case - law was a natural point of departure but also noted that account must be taken of the fact that different national conditions may lead to variations from CARDINAL country to another in what should be regarded as a reasonable level of compensation .

In a judgment of CARDINAL DATE , ORG held that the plaintiffs’ right to respect for their private life under DATE had been violated on the basis that a police decision on a medical examination of some of them had not been “ in accordance with the law ” . Having found that compensation for the violation could not be awarded directly on the basis of LAW , ORG held that there was no reason to limit the scope of application of the principle established in the abovementioned cases of DATE and CARDINAL September CARDINAL to violations of Articles CARDINAL and CARDINAL of the LAW . In view of this and with reference to , inter alia , LAW and the ORG ’s case - law under these ORG , ORG concluded that the plaintiffs should be awarded non - pecuniary damage for the violation of LAW . With regard to the levels of compensation , ORG concluded that they should not be too far removed from the levels which applied when awarding damages under LAW . Generally speaking , these levels should , however , be compatible with the case - law of the Court . In the same case , ORG had also concluded , in a judgment dated DATE , that there had been a violation of Article CARDINAL and that an award for non - pecuniary damage should be made on the basis of the principle established in the case of DATE .

A further ORG judgment of CARDINAL DATE concerned a claim for damages against ORG on the basis of an alleged violation of LAW relating to the suicide of the LAW father while in detention . ORG concluded that the case revealed no violation of LAW . However , in its reasoning leading to this conclusion , ORG noted , inter alia , that according to the ORG ’s case - law there was a right to an effective remedy under LAW connected to the ORG ’s duty under the ORG to take measures to protect the lives of individuals in custody or who were otherwise deprived of their liberty , which should , in principle , include a possibility of obtaining compensation for damage . ORG thus referred in particular to the judgment in PERSON v. GPE ( no . CARDINAL , § CARDINAL , ECHR CARDINAL ) .

Finally , in a decision of CARDINAL DATE concerning a claim for damages against ORG , the Chancellor of Justice held that the right of one of the plaintiffs LAW CARDINAL of the Convention had been violated on account of the excessive length of the civil proceedings . Based on this finding , and with reference to the above - mentioned ORG judgments of DATE and CARDINAL September CARDINAL , the Chancellor of ORG concluded that the individual was entitled to compensation from the ORG for non - pecuniary damage . With respect to the level of compensation , the Chancellor of ORG took note of the ORG ’s case - law , in particular the case of ORG v. GPE ( [ ORG ] , no . CARDINAL , DATE ) .

In DATE the Government decided to set up a working group on tort liability and the Convention to study the current legal situation . In DATE the working group submitted its report ( PERSON , ORG CARDINAL:CARDINAL ) to the Government . In the report it is proposed that LAW be amended in order to allow natural and legal persons to obtain damages from the ORG or a municipality for violations of the LAW . Such an action against public authorities would be examined by a general court which would need first to establish that a right provided by the ORG has been violated . The aim of the proposal is to provide a legal basis for granting non - pecuniary damage arising from disregard of the LAW , and to fulfil , together with the other already existing legal remedies , GPE ’s obligations under LAW .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 34 - Victim);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court;Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

On DATE PERSON brought proceedings against the applicant in the GPE ORG for recognition of the existence of a right of way .

Preparation of the case for trial began on CARDINAL DATE and on DATE the ORG appointed an expert . Of the CARDINAL hearings listed DATE and DATE were devoted to organising expert evidence , CARDINAL to an inspection of the LOC by the pretore , CARDINAL were adjourned by the court of its own motion and CARDINAL was adjourned because the lawyers were on strike . On DATE the ORG set the case down for hearing of oral submissions on DATE . On that date the hearing was adjourned to CARDINAL DATE at the parties’ request . Of the CARDINAL hearings listed between CARDINAL DATE and DATE CARDINAL were adjourned at the parties’ request , CARDINAL at the request of the defendant , CARDINAL by the court of its own motion – one of which was because the registry had not notified the applicant of the date of the hearing CARDINAL because the applicant had changed lawyer and another one to allow the registry to check that the stamps had duly been affixed to a number of documents in the case file . Judgment was reserved on DATE .

In an order of CARDINAL DATE , which was not made at a hearing , the court declared the case reopened and requested the parties to file documents with the registry . On DATE the court reserved judgment .

In an order of CARDINAL DATE the court declared the case reopened , noted that the parties had not yet filed the documents requested and adjourned the case to DATE . On that date judgment was reserved .

In a judgment of DATE , the text of which was deposited with the registry on DATE , the ORG granted PERSON application .

On DATE the applicant appealed to ORG . According to information provided by the applicant on DATE , the first hearing , which was to be held on DATE , was not held until DATE following CARDINAL adjournments of the court ’s own motion and an adjournment of a hearing because the registry had not notified the parties of the hearing date . The parties made their submissions CARDINAL hearings later , on DATE , and the hearing of final submissions was set down for DATE . That hearing was adjourned to DATE following the transfer of the judge directing the preparations for trial , then to CARDINAL DATE . On that date judgment was reserved .

In a judgment of CARDINAL DATE , the text of which was deposited with the registry on DATE , ORG set aside the first - instance court ’s judgment and allowed the applicant ’s appeal . According to information provided by the applicant on DATE , as the judgment had not been served the time allowed for appealing to ORG was still running .

On an unspecified date in DATE the applicant lodged an application with ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining of the length of the above - described proceedings . He requested the court to rule that there had been a breach of LAW and to order the NORP ORG to pay compensation for the distress and other non - pecuniary damage sustained . The applicant claimed CARDINAL ( ORG ) in compensation for distress and other non - pecuniary damage , and sought reimbursement of the costs and expenses but did not quantify them .

NORP In a decision of DATE , the text of which was deposited with the registry on DATE , ORG found that the length of the proceedings had been excessive . It held as follows :

“ ... [ the proceedings ] , given the manner in which they were conducted , can not be deemed particularly complex . That said , it should be pointed out that the proceedings gave rise to many hearings , some of which were mere adjournments , and as such unnecessary . With regard to the conduct of the parties , the adjournments they requested or at least agreed to must be attributed to them . They must therefore be deemed responsible for the adjournments requested by CARDINAL party and which the other parties did not oppose or which were accepted and therefore allowed by the court . ... The fact that the court allowed the parties to exercise ... [ through those adjournments ] their right to a defence can not be blamed a posteriori on the public organisation of the service .

The remaining period does have to be attributed to the conduct of the judicial authorities , however , both regarding the intervals relating to the adjournments of the court ’s own motion and the adjournments for reasons relating to investigation measures which took longer than a reasonable time to carry out .

Indeed , when the situation is analysed in accordance with Law no . CARDINAL/CARDINAL [ Pinto ] , the time that elapsed between the beginning of the proceedings and the end is a central factor : in this sense , the fact that the length of the proceedings , which is not attributable to the parties’ conduct , is otherwise determined – in the sphere of the organisation of the court service and , in general , the services managed by the authorities involved in giving a decision or contributing to the disposal of the proceedings – by personal or structural factors , such as the shortage of staff when compared with the demands of the workload , does not change the conclusion that this time must be attributed to the ORG , which has not assigned the resources necessary to dispose of a trial speedily .

Accordingly , on the basis of that analysis the delays attributable to the parties can be quantified at DATE at first instance . The proceedings are still pending on appeal but the case has already been referred to the appropriate Chamber for the hearing of final submissions on DATE and , given that the first hearing was held on DATE , the period can be regarded as falling within the reasonable time - span of DATE .

On that basis , the delays attributable to the organisation of the courts , less the delays attributable to the parties , amount to DATE and DATE .

Moreover , taking the main thrust of the case - law of ORG as a basis , a reasonable time for the average timescale for the conduct of a case at first instance can prima facie properly be fixed at DATE . For proceedings dealt with also on appeal the reasonable length can be fixed at DATE for proceedings whose subject - matter is nothing out of the ordinary .

In the instant case , therefore , the surplus time must be deemed to be DATE .

The reasonable time must accordingly be deemed to have been exceeded in so far as the case was not particularly complex and the delays attributable to the parties have already been taken into account .

For the rest , the claim for compensation of MONEY appears totally disproportionate and unsupported by evidence . Accordingly , the award must be significantly less .

Consequently , having taken into consideration the parties’ interest in having the proceedings disposed of , as their conduct has shown , the lack of complexity of the case , in the absence of evidence supplied by the parties , and the limited impact of the non - pecuniary damage , the court considers it equitable to award Mr Musci CARDINAL,CARDINAL euros in damages . ”

ORG awarded the applicant ORG CARDINAL on an equitable basis in compensation for non - pecuniary damage . In respect of costs and expenses , ORG noted that the applicant had not given particulars of the claim . Having regard to the quantity and quality of the work done by the lawyer , it awarded him CARDINAL the sum he had considered due EUR CARDINAL ( that is , EUR CARDINAL ) plus tax . That decision became final by DATE at the latest . The applicant obtained payment of the amounts due from the authorities on DATE .

In a letter of DATE the applicant informed ORG outcome of the domestic proceedings and asked it to resume its examination of his application .

In a letter of CARDINAL DATE the applicant informed the ORG that he did not intend to appeal to ORG because an appeal to that court could only be on points of law .

Award of just satisfaction in the event of a breach of the requirement to dispose of proceedings within a reasonable time and amendment to LAW

CHAPTER II

Just satisfaction Section CARDINAL

Entitlement to just satisfaction

“ CARDINAL . Anyone sustaining pecuniary or non - pecuniary damage as a result of a violation of ORG , ratified by PERSON no . CARDINAL of CARDINAL DATE , on account of a failure to comply with the ‘ reasonable - time’ requirement in LAW , shall be entitled to just satisfaction .

NORP In determining whether there has been a violation , the court shall have regard to the complexity of the case and , in the light thereof , the conduct of the parties and of the judge deciding procedural issues , and also the conduct of any authority required to participate in or contribute to the resolution of the case .

NORP The court shall assess the quantum of damage in accordance with LAW and shall apply the following rules :

( a ) NORP only damage attributable to the period beyond the reasonable time referred to in subsection CARDINAL may be taken into account ;

( b ) in addition to the payment of a sum of money , reparation for non - pecuniary damage shall be made by giving suitable publicity to the finding of a violation . ”

Section CARDINAL

Procedure

“ CARDINAL . Claims for just satisfaction shall be lodged with the court of appeal in which the judge sits who has jurisdiction under LAW to try cases concerning members of the judiciary in the district where the case in which the violation is alleged to have occurred was decided or discontinued at the merits stage or is still pending .

NORP The claim shall be made on an application lodged with the registry of the court of appeal by a lawyer holding a special authority containing all the information prescribed by LAW .

The application shall be made against the Minister of ORG where the alleged violation has taken place in proceedings in the ordinary courts , the Minister of Defence where it has taken place in proceedings before the military courts and the Finance Minister where it has taken place in proceedings before the tax commissioners . In all other cases , the application shall be made against the Prime Minister .

NORP The court of appeal shall hear the application in accordance with Articles CARDINAL et seq . of ORG . The application and the order setting the case down for hearing shall be served by the applicant on the defendant authority at its elected domicile at the offices of ORG ( Avvocatura dello Stato ) DATE prior to the date of the hearing before the ORG .

The parties may apply to the court for an order for production of all or part of the procedural and other documents from the proceedings in which the violation referred to in LAW is alleged to have occurred and they and their lawyers shall be entitled to be heard by the court in private if they attend the hearing . The parties may lodge memorials and documents up till DATE before the date set for the hearing or until expiry of the time allowed by the court of appeal for that purpose on an application by the parties .

The court shall deliver a decision within DATE after the application is lodged . An appeal shall lie to ORG . The decision shall be enforceable immediately .

To the extent that resources permit , payment of compensation to those entitled shall commence on DATE . ”

“ A claim for just satisfaction may be lodged while the proceedings in which the violation is alleged to have occurred are pending or within DATE from the date when the decision ending the proceedings becomes final . Claims lodged after that date shall be time - barred . ”

“ If the court decides to allow an application , its decision shall be communicated by the registry to the parties , to ORG at ORG to enable him to start an investigation into liability , and to the authorities responsible for deciding whether to institute disciplinary proceedings against the civil servants involved in the proceedings in any capacity . ”

“ CARDINAL . Within DATE after the entry into force of this LAW , anyone who has lodged an application with ORG in due time complaining of a violation of the ‘ reasonable - time’ requirement contained in LAW , ratified by LAW . CARDINAL of CARDINAL DATE , shall be entitled to lodge a claim under LAW hereof provided that the application has not by then been declared admissible by ORG . In such cases , the application to the court of appeal must state when the application to the said ORG was made .

The registry of the relevant court shall inform the Minister for ORG without delay of any claim lodged in accordance with section QUANTITY and within the period laid down in subsection CARDINAL of this section . ”

“ CARDINAL . NORP The financial cost of implementing this LAW , which is put at MONEY from DATE , shall be met by releasing funds entered in the DATE budget DATE in the chapter concerning the basic current - liability estimates from the ‘ special fund’ in DATE forecast of ORG . ORG deposits shall be set aside for that purpose .

ORG , ORG is authorised to make the appropriate budgetary adjustments by decree . ”

On appeal from decisions delivered by the courts of appeal in “ Pinto ” proceedings , ORG , sitting as a full court ( ORG ) , gave CARDINAL judgments ( nos . CARDINAL , DATE , DATE and DATE ) on DATE , the texts of which were deposited with the registry on CARDINAL DATE , quashing the appeal court ’s decision and remitting the case for a rehearing . It held that “ the case - law of ORG is binding on the NORP courts regarding the application of PERSON no . CARDINAL ” .

In its judgment no . CARDINAL it affirmed , inter alia , the principle that

“ the court of appeal ’s determination of non - pecuniary damage in accordance with LAW no . CARDINAL/CARDINAL , although inherently based on equitable principles , must be done in a legally defined framework since reference has to be made to the amounts awarded , in similar cases , by ORG . Some divergence is permissible , within reason . ”

Extracts from the plenary ORG judgment no . CARDINAL deposited with the registry on DATE

“ ... CARDINAL.- The present application poses the fundamental question of what legal effect must be given – in implementing the Law of DATE no . CARDINAL , and in particular in determining the non - pecuniary damage arising out of the breach of the reasonable length of proceedings requirement – to the judgments of ORG , whether considered generally as interpretative guidelines which the said ORG has laid down with regard to the consequences of the said violation , or with reference to a specific case in which ORG has already had occasion to give a judgment on the delay in reaching a decision . ...

As stipulated in LAW , the legal fact which gives rise to the right to the just satisfaction that it provides for is constituted by the “ violation of ORG , ratified in accordance with LAW DATE no . CARDINAL , for failure to comply with the reasonable time referred to in DATE , paragraph CARDINAL of the LAW . ” In other words , PERSON no . CARDINAL/CARDINAL identifies the fact constituting the right to compensation by reference to a specific provision of ORG . This Convention instituted a ORG ( ORG , with its seat in GPE ) to ensure compliance with the provisions contained therein ( Article CARDINAL ) . Accordingly , the competence of the said court to determine , and therefore to interpret , the significance of the said provisions must be recognised .

As the fact constituting the right conferred by PERSON no . ORG consists of a violation of LAW , it is for ORG to determine all the elements of such a legal fact , which thus ends by being “ brought into conformity ” by ORG , whose case - law is binding on the NORP courts in so far as the application of PERSON no . PERSON is concerned .

It is not necessary therefore to pose the general problem of the relationships between LAW and the internal judicial system , which ORG ( Procuratore Generale ) has amply discussed in court . Whatever opinion one may have about that controversial issue and therefore about the place of LAW in the context of the sources of domestic law , it is certain that the direct implementation in the NORP judicial system of a provision of LAW , established by PERSON no . PERSON ( that is , by LAW in the part relating to “ reasonable time ” ) , can not diverge from the interpretation which ORG gives of the same provision .

The opposite argument , which would permit a substantial divergence between the application accorded to PERSON no . CARDINAL/CARDINAL in the national system and the interpretation given by ORG to the right to reasonable length of proceedings , would deprive the said PERSON no . CARDINAL/CARDINAL of any justification and cause the NORP ORG to violate LAW , according to which ‘ The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in LAW ( including the said LAW , which provides for the right to have a case decided within a reasonable length of time ) .

The reason behind the enactment of PERSON no . PERSON was the need to provide a domestic judicial remedy against violations in respect of the duration of proceedings , so as to give effect to the subsidiary character of intervention on the part of ORG , expressly provided for by LAW CARDINAL : “ the ORG may only deal with the matter after all domestic remedies have been exhausted ” ) . The NORP system for the protection of human rights is founded on the said principle of subsidiarity . From it derives the duty of the GPE which have ratified LAW to guarantee to individuals the protection of the rights recognised by LAW , above all in their own internal order and vis - à - vis the organs of the national judicial system . And this protection must be “ effective ” ( LAW ) , that is , of a kind to remedy the claim without the need for recourse to ORG .

The domestic remedy introduced by Law no . CARDINAL/CARDINAL did not previously exist in the NORP system , with the consequence that appeals against GPE in respect of a violation of LAW had “ clogged ” ( the term used by rapporteur PERSON in the sitting of the ORG of DATE ) ORG . ORG observed , prior to LAW no . PERSON , that the said failures to comply on the part of GPE “ reflect a continuing situation that has not yet been remedied and in respect of which litigants have no domestic remedy . This accumulation of breaches accordingly constitutes a practice that is incompatible with the Convention ” ( see the CARDINAL judgments of the ORG delivered on DATE in the cases of PERSON , PERSON , ORG and PERSON ) .

Law no . CARDINAL/CARDINAL constitutes the domestic remedy to which a “ victim of a violation ” ( as defined by LAW CARDINAL ( failure to comply with the reasonable - time requirement ) must have recourse before applying to ORG to claim the “ just satisfaction ” provided for in LAW , which , when the violation exists , is only awarded by the ORG “ if the internal law of ORG concerned allows only partial reparation to be made ” . Law no . CARDINAL/CARDINAL has therefore allowed ORG to declare inadmissible applications lodged with it ( including before the LAW was passed ) and aimed at obtaining just satisfaction provided for in LAW for the excessive length of proceedings ( ORG v. GPE , decision of DATE ) .

This mechanism for implementation of LAW and observance of the principle of subsidiarity in respect of interventions of ORG of GPE does not operate , however , in cases in which the ORG holds that the consequences of the established violation of LAW have not been redressed by domestic law or that this has been done only “ partially ” , because in such an event the said LAW provides for the intervention of ORG to protect the “ victim of the violation ” . In such cases an individual application to ORG on the basis of LAW is admissible ( Scordino and Others v. GPE , decision of DATE ) and the ORG acts directly to protect the rights of the victim whom it considers not to have been adequately protected by domestic law .

The judge of the adequacy or inadequacy of the protection that the victim has had from domestic law is , obviously , ORG , whose duty it is to apply Article CARDINAL of ORG to ascertain whether , in the presence of a violation of a provision of LAW , the internal law has been able to fully redress the consequences of this violation .

The argument whereby , in applying PERSON no . PERSON , the NORP court may follow a different interpretation from that which ORG has given to the provisions of LAW ( violation of which is the fact giving entitlement to the right to compensation attributed by the said national law ) implies that the victim of the violation , if he or she receives reparation at national level considered inadequate by ORG , must obtain the just satisfaction provided for in LAW from the latter Court . This would defeat the purpose of the remedy provided for in NORP law by PERSON no . PERSON and entail a violation of the principle of the subsidiarity of the intervention of ORG .

It is therefore necessary to concur with ORG , which , in the above - mentioned decision on the PERSON application ( concerning the inadequacy of the protection afforded by the NORP courts in implementing PERSON no . ORG ) , affirmed that “ it follows from the principle of subsidiarity ... that the national courts must , where possible , interpret and apply domestic law in accordance with the Convention ” .

... The preparatory documents of PERSON no . PERSON are even more explicit . In the report concerning the bill of Senator PERSON ( proceedings of the ORG no . CARDINAL of DATE ) it is affirmed that the compensatory mechanism proposed in the legislative initiative ( and then adopted by the LAW ) secures for the applicant “ a protection analogous to that which he or she would receive in the international court ” , as the direct reference to LAW makes it possible to transfer to domestic level “ the limits of applicability of the same provision existing at international level , limits which depend essentially on the ORG and on the development of the case - law of the GPE authorities , especially that of ORG , whose decisions must therefore guide ... the domestic court in the definition of these limits ” .

... CARDINAL . – The considerations expounded in sections CARDINAL of the document refer in general to the importance of the interpretative guidance of ORG on the implementation of PERSON no . CARDINAL/CARDINAL with regard to reparation for non - pecuniary damage .

In this particular instance , however , any possibility for the national court to exclude non - pecuniary damage ( despite having found a violation of LAW of ORG ) must be considered as non - existent because such is precluded by the previous decision of ORG which , with reference to the same proceedings , had already ascertained that the unjustified delay in reaching a decision had had consequences involving non - pecuniary damage for the applicant , which the ORG itself redressed for a limited period . From such a decision of ORG it follows that , once the national court has ascertained that the violation has continued in the period following that considered in the said decision , the applicant has continued to suffer non - pecuniary damage , which must be compensated for in application of PERSON no . PERSON .

It can not therefore be maintained DATE as ORG has done DATE that compensation is not due because of the small amounts at stake in the proceedings in question . Such a reason , apart from being rendered immaterial by the fact that ORG has already ruled that non - pecuniary damage had been sustained because of delay in the same action , is in any case incorrect , because the amount of what is at stake in an action in which non - compliance with reasonable time - limits has been ascertained can never have the effect of excluding non - pecuniary damage , given that the anxiety and distress resulting from the length of the proceedings normally also occur in cases in which the amounts at stake are small ; hence this aspect may have the effect of reducing the amount of compensation but not of totally excluding it .

DATE In conclusion the decision appealed against must be quashed and the case remitted to ORG , which , in a different composition , will order payment to the applicant of the non - pecuniary damages payable as a result of the violation of the reasonable - time requirement for the period following DATE alone , taking as a reference point payments of the same kind of damages by ORG , from which it may diverge , but only to a reasonable extent ( ORG , DATE , PERSON GPE ) ” .

ORG held as follows :

“ ... Where the victim of unreasonably lengthy proceedings dies prior to the entry into force of Law no . CARDINAL of DATE [ known as the “ Pinto Act ” ] this shall preclude a right [ to just satisfaction ] from arising and passing to the heirs , in accordance with the general rule that a person who has died can not become entitled to a right conferred by an Act that is passed after their death ... ”

ORG judges noted that the right to compensation for a violation of the right to a hearing within a reasonable time derived from LAW . The mechanism set in place by the NORP standard did not give applicants a cause of action before the domestic courts . Accordingly , the right to “ just satisfaction ” could neither be acquired nor transferred by a person who had already died by the time the Pinto Act came into force . The fact that the deceased had , while alive , lodged an application with ORG was not decisive . LAW did not constitute , as the applicants had maintained , a procedural standard bringing about a transfer of powers from ORG to the domestic courts .

In this case , which concerned the possibility or otherwise of transferring to heirs the right to compensation deriving from a breach of LAW on account of the length of the proceedings , ORG referred the case to the full court indicating that there was a conflict between the case - law authorities , that is , between the restrictive approach taken by ORG in the earlier judgments regarding heirs and LAW and the CARDINAL judgments delivered by ORG , sitting as a full court , on DATE to the extent that a less strict interpretation would lead to the conclusion that this right to compensation has existed since GPE ratified LAW on DATE .

In the case giving rise to the order mentioned above referring the case to the full court ( see preceding paragraph ) , ORG , sitting as a full court , established the following principles , thus preventing any further conflicting decisions being given by the courts :

( i ) Law no . CARDINAL of CARDINAL DATE , which ratified the LAW and made it enforceable , introduced into domestic legal order the fundamental rights , belonging to the category of rights conferred on the individual by public law , provided for in the first section of the Convention and which correspond to a large extent with those set forth in LAW . In that respect the LAW provisions are confirmatory and illustrative . ...

( ii ) It is necessary to reiterate the principle that the act giving rise to the right to reparation conferred by domestic law corresponds to a breach of the provision in LAW , which is immediately applicable in domestic law .

The distinction between the right to a hearing within a reasonable time , introduced by LAW ( or even pre - existing as a constitutionally protected value ) , and the right to equitable reparation , which was allegedly introduced only by LAW , can not be allowed in so far as the protection provided by the domestic courts does not depart from that previously offered by ORG , the domestic courts being bound to comply with the case - law of ORG . ...

( iii ) Accordingly , the right to equitable reparation for loss sustained as a result of the unreasonable length of proceedings prior to the entry into force of Law no . CARDINAL/CARDINAL must be acknowledged by the domestic courts even in favour of the heirs of a party who introduced the proceedings before that date , subject only to the condition that the claim has not already been lodged with ORG and the ORG has not ruled on admissibility . ...

This judgment of ORG concerned an appeal by ORG challenging ORG award of non - pecuniary damages to a juristic person . ORG referred to the decision reached in the case of Comingersoll v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV and , after referring to the CARDINAL judgments of the full court delivered on DATE , found that its own case - law was not in line with ORG . It held that there was no legal barrier to awarding just satisfaction to “ juristic ” persons according to the criteria of ORG . Accordingly , since ORG had correctly decided the case the appeal was dismissed .

ORG made the following observations :

“ ... [ Whereas ] non - pecuniary damage is the normal , albeit not automatic , consequence of a breach of the right to a hearing within a reasonable time , it will be deemed to exist , without it being necessary to specifically prove it ( directly or by presumption ) , on the basis of the objective fact of the breach , on condition that there are no special circumstances indicating the absence of any such damage in the actual case concerned ( PERSON . ORG CARDINAL DATE nos . CARDINAL and DATE ) ;

- the assessment on an equitable basis of compensation for non - pecuniary damage is subject DATE on account of the specific reference in section CARDINAL of Law no . CARDINAL of DATE to LAW ( ratified by PERSON no . CARDINAL of CARDINAL DATE ) DATE to compliance with the Convention , in accordance with the judicial interpretation given by ORG ( non - compliance with which results in a violation of the law ) , and must therefore , as far as possible , be commensurate , in substantive and not merely formal terms , with the amounts paid in similar cases by ORG , it being possible to adduce exceptional circumstances that suggest themselves in the particular case , on condition that they are reasoned , not excessive and not unreasonable ( PERSON . ORG DATE no . CARDINAL ) ; ...

- a discrepancy in the method of calculation [ between the ORG ’s case - law and LAW ] shall not affect the general vocation of PERSON no . CARDINAL of DATE to meet the objective of awarding proper compensation for a breach of the right to a hearing within a reasonable time ( vocation acknowledged by ORG in , inter alia , a decision of DATE in GPE ( application no . CARDINAL/CARDINAL ) ) , and accordingly shall not allow any doubt as to the compatibility of that domestic standard with the international commitments entered into by GPE when ratifying LAW and the formal recognition , also at constitutional level , of the principle stated in LAW ... ”

In the report ORG , revised on DATE , the ORG deputies made the following indications regarding an assessment of the Pinto remedy :

“ ... CARDINAL . As regards the domestic remedy introduced in DATE by the “ Pinto Act ” , a number of shortcomings remain , particularly in connection with the effectiveness of the remedy and its application in conformity with the Convention : in particular , the law does not provide yet for the acceleration of pending proceedings . ...

In the framework of its examination of the CARDINALst DATE report , ORG expressed concern at the fact that this legislation did not foresee the speeding up of the proceedings and that its application posed a risk of aggravating the backlog of the appeal courts . ...

It should be pointed out that in the framework of its examination of DATE report , ORG had noted with concern that the Convention had no direct effect and had consequently invited the NORP authorities to intensify their efforts at national level as well as their contacts with the different bodies of ORG competent in this field . ... ”

In this interim resolution the ORG deputies indicated as follows :

“ ORG

Noting ...

“ ... the setting - up of a domestic remedy providing compensation in cases of excessive length of proceedings , adopted in DATE ( the " Pinto ” law ) , as well as the recent development of the case - law of ORG , increasing the direct effect of the case - law of ORG in the NORP legal system , while noting that this remedy still does not enable for acceleration of proceedings so as to grant effective redress to all victims ;

Stressing that the setting - up of domestic remedies does not dispense states from their general obligation to solve the structural problems underlying violations ;

Finding that despite the efforts undertaken , numerous elements still indicate that the solution to the problem will not be found in the near future ( as evidenced in particular by the statistical data , the new cases before both domestic courts and ORG , the information contained in the annual reports submitted by the government to ORG and in the reports of ORG at the Court of cassation ) ; ...

Stressing the importance the LAW attaches to the right to fair administration of justice in a NORP society and recalling that the problem of the excessive length of judicial proceedings , by reason of its persistence and extent , constitutes a real danger for the respect of the rule of law in GPE ; ...

URGES the NORP authorities to enhance their political commitment and make it their effective priority to meet GPE ’s obligation under the ORG and the ORG ’s judgments , to secure the right to a fair trial within a reasonable time to all persons under GPE ’s jurisdiction . ... ”

ORG for the efficiency of justice was set up at ORG by Resolution Res(CARDINAL)CARDINAL with the aim of ( a ) improving the efficiency and the functioning of the justice of member GPE with a view to ensuring that everyone within their jurisdiction can enforce their legal rights effectively , thereby generating increased confidence of the citizens in the justice system and ( b ) enabling a better implementation of the international legal instruments of ORG concerning efficiency and fairness of justice .

In its framework programme ( CEPEJ ( DATE ) CARDINAL Rev CARDINAL § ( CARDINAL ) the ORG noted that “ the mechanisms which are limited to compensation are too weak and do not adequately incite the GPE to modify their operational process , and provide compensation only a posteriori in the event of a proven violation instead of trying to find a solution for the problem of delays . ”


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

The applicant was born in DATE and lives in GPE .

On DATE the Government adopted a decree forbidding any transactions with the immovable property situated in GPE and belonging to the former GPE ’s federal institutions or legal entities having seat in CARDINAL of its former federal units ( ORG o zabrani raspolaganja nekretninama na teritoriju PERSON – “ the Decree ” , ORG no . CARDINAL/CARDINAL ) . The Decree entered into force on DATE and was to remain in force pending the process of succession of the former GPE .

In DATE the Decree was challenged on CARDINAL occasions by various petitioners in abstract constitutional review proceedings . ORG refused all the petitions finding that the Decree had not been in breach of LAW .

In the period DATE and DATE , starting with the decree of DATE , the Government adopted several successive decrees forbidding transactions with other property that had remained in GPE and belonging to the legal entities having seat in CARDINAL of the former GPE ’s federal units . Eventually , on DATE ORG passed an act of the same content ( Zakon o zabrani raspolaganja i preuzimanju sredstava određenih pravnih osoba na teritoriju PERSON – “ the LAW ” , ORG nos . CARDINAL and CARDINAL ) .

The applicant was working as a professor at the former ORG in GPE .

On CARDINAL and DATE , FAC of ORG ( “ the ORG ” ) , issued CARDINAL decisions granting the applicant the right to occupy a flat in GPE of QUANTITY that was owned by the ORG . He was also obliged to give back a flat of QUANTITY that had previously been awarded to him by the ORG , in which he had been living with his wife and CARDINAL children until then .

They still live in the last - mentioned flat .

On DATE the applicant brought a civil action against the ORG in ORG ( PERSON ) seeking to use the flat granted to him by the above - mentioned ORG decisions .

On DATE ORG dismissed the applicant ’s claim . It found that the ORG decisions had no legal effect since they had been issued contrary to the peremptory rules of the Decree .

NORP The applicant appealed to ORG ( Okružni sud u GPE ) , which on DATE quashed the first - instance judgment for incomplete facts and remitted the case .

In the resumed proceedings , on DATE ORG again dismissed the applicant ’s claim repeating its previous findings . The applicant again appealed .

On DATE ORG ( Županijski sud u GPE ) dismissed the applicant ’s appeal and upheld the first - instance judgment .

The applicant then lodged an appeal on points of law ( revizija ) with ORG ( PERSON ) . On DATE ORG dismissed the applicant ’s appeal on points of law .

On DATE the applicant lodged a constitutional complaint against ORG decision with ORG ( Ustavni sud PERSON ) .

NORP Before dealing with the applicant ’s complaint , ORG decided first to examine CARDINAL petitions for constitutional review ( prijedlog za ocjenu ustavnosti ) directed against the Decree and the Act – which , in the ORG ’s view , constituted the relevant substantive law applicable to his case . ORG dismissed the CARDINAL petitions against the Decree on DATE and DATE , respectively . On DATE it dismissed the petition against the Act .

At the ORG panel meeting held on DATE the rapporteur informed his colleagues that , meanwhile , a new case had been assigned to him raising apparently the same legal issues as that of the applicant . The rapporteur therefore withdrew the case from the agenda . Subsequently , it was established that no such similarity had existed as it initially appeared .

On DATE ORG dismissed the applicant ’s constitutional complaint . It observed obiter dictum that it could not deal with the applicant ’s argument that the Decree had been adopted ultra vires , since that issue could be examined only in abstract constitutional review proceedings , and not in those concerning a constitutional complaint .