Violation of P1-1;Violation of Art. 6-1 concerning the reasonable time;Inadmissible under Art. 6-1 concerning the others complaints;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE , DATE , DATE and DATE respectively . The first lives in GPE , the second in GPE ( GPE ) and the others in GPE .

The first CARDINAL applicants and their deceased brother , PERSON , whose heirs are the other CARDINAL applicants , were the owners of a house in GPE . In DATE the ORG took possession of that house under Decree no . ORG on nationalisation . The house was converted into CARDINAL flats intended for rental .

On DATE the first CARDINAL applicants and PERSON brought an action for the recovery of possession of immovable property in ORG against ORG and NORP , a ORG - owned company responsible for the management of property belonging to the ORG . After the death of PERSON , the action was pursued by his heirs , PERSON and PERSON . The applicants sought a declaration that they were the rightful owners of the house and appurtenant land that the ORG had , in their opinion , wrongfully seized in DATE . They claimed that , under LAW no . CARDINAL/CARDINAL , property belonging to persons in certain social categories was not subject to nationalisation , and that they fell within such a category . In their view , the nationalisation of the house in question had therefore been improper and unlawful .

In a judgment of DATE , ORG Instance dismissed the applicants ' action , refusing to rule on the merits on the ground that they could not obtain redress for the damage they had sustained until the enactment of special legislation introducing reparation measures . The judgment was upheld by ORG on DATE . The applicants appealed against that decision .

In DATE the tenants of the flats making up the house applied to purchase them , relying on Law no . CARDINAL . ORG informed the NORP company that a dispute was pending concerning the title to the house and instructed it not to pursue the sale of the flats in question .

Consequently , the tenants of CARDINAL flats had their purchase applications rejected , but not PERSON ( a former football player and international celebrity ) and his wife , to whom the NORP company sold flat CARDINAL on DATE .

On DATE ORG upheld an appeal by the applicants and remitted the case to ORG for a decision on the merits .

On DATE Mr and PERSON applied to intervene in ORG proceedings on the ground that they had been the owners of flat no . CARDINAL since its sale on DATE .

Further to the couple 's application to intervene , the applicants requested the court to find that the sale of flat no . CARDINAL was null and void . In their view , as the nationalisation had been improper and unlawful , the ORG could not have been the rightful owner of the property and thus could not lawfully have sold any part of it . The applicants relied in particular on LAW , whereby an undertaking entered into on an erroneous or unlawful basis could not produce any useful effect .

On DATE ORG held that the nationalisation of the house had been unlawful and that the applicants were therefore the rightful owners . However , the court rejected the request for the rescission of the contract of sale between the ORG and PERSON and PERSON , on the ground that the couple had made the purchase in good faith .

The applicants appealed against that judgment . On DATE ORG allowed the appeal and remitted the case to ORG for reconsideration .

In a judgment of DATE , ORG held that the nationalisation of the house had been unlawful , that the applicants were the rightful owners and that the contract of sale between the ORG and PERSON and PERSON was null and void .

On DATE ORG allowed an appeal by PERSON and PERSON and dismissed the applicants ' action , finding that the nationalisation had been lawful and that , consequently , the sale by the ORG of flat no . CARDINAL was also lawful .

The applicants appealed to ORG , which gave its judgment on DATE . It partly allowed the applicants ' appeal in so far as it found the nationalisation to have been unlawful and acknowledged that they had remained the rightful owners of the property . However , it dismissed the appeal as regards the rescission of the sale of flat no . CARDINAL , considering that the ORG had been presumed to be the owner of the property at the time of the sale , in spite of the dispute over the property that was pending in the courts . It moreover relied on the fact that PERSON no . LANGUAGE , which had formed the statutory basis for the sale of the property , did not provide for any penalty in respect of property sold when the title to it was in dispute before the courts . ORG did not address the applicants ' argument relating to the principle of unjust enrichment ( see paragraph CARDINAL below ) .

On DATE the applicants again requested ORG to order the rescission of the sale of flat no . CARDINAL , contending that the purchasers had broken the law . Their action was dismissed on DATE on the ground that the matter had become res judicata .

The relevant provisions of Decree no . CARDINAL/CARDINAL on the nationalisation of certain immovable property are as follows :

“ ... in order to ensure the proper management of dwellings which wealthy capitalists and exploiters who possess a large number of properties have allowed to fall into dilapidation as a means of sabotage ; [ and ]

In order to deprive exploiters of an important means of exploitation ;

The immovable property appearing in the schedules ... annexed to and forming part of this Decree shall be nationalised . The listed property comprises :

( CARDINAL ) immovable property belonging to former industrialists , owners of large estates , bankers , owners of large trading enterprises and other representatives of the wealthy capitalist class ;

( CARDINAL ) immovable property belonging to real - estate exploiters ... ”

“ The immovable property of workers , civil servants , small artisans , persons working in intellectual professions and retired persons shall be excluded from the scope of this Decree and shall not be nationalised . ”

“ Individuals who formerly owned residential property which passed lawfully into the ownership of the ORG or of another artificial person after DATE and which was still in the possession of the ORG or another artificial person on DATE shall be entitled to benefit , by way of reparation , from the measures in this PERSON .

The provisions of this PERSON shall apply equally to the successors in title of such former owners , subject to existing statutory provisions . ”

“ The persons referred to in LAW shall be entitled to restitution in the form of the restoration to them of their ownership of flats in which they currently live as tenants or which are vacant . In respect of other flats , those persons shall receive compensation as provided in LAW ”

“ The tenants of flats which are not returned to the former owners or their successors in title [ in accordance with the procedure laid down in this PERSON ] may opt , after the expiry of the period provided for in section CARDINAL , to purchase such flats by payment in full or in instalments .

“ Persons entitled to claim restitution or compensation shall lodge an application for such purpose within DATE after this PERSON comes into force . ”

On DATE the Government adopted decision no . CARDINAL implementing PERSON no . DATE . The decision provided that immovable property that had passed into ORG ownership under a legislative provision was to be regarded as immovable property legally vested in the ORG . It also specified that PERSON no . DATE did not apply to immovable property held by the State where its right of property was not based on any legislative provision .

On DATE the Government adopted decision no . CARDINAL/CARDINAL , supplementing decision no . CARDINAL . Paragraph CARDINAL ( CARDINAL ) of decision no . CARDINAL/CARDINAL provided that , in order for property to be defined as having been acquired by ORG no . CARDINAL/CARDINAL , it had to have been acquired in accordance with the decree and the person referred to as the owner in the lists enumerating nationalised property had to have been the true owner at the time of the nationalisation .

The relevant provisions of Law no . CARDINAL of DATE on the rules governing immovable property wrongfully seized by the ORG DATE and DATE read as follows :

“ ( CARDINAL ) ORG property wrongfully seized by the State ... DATE and DATE and property expropriated under LAW ( Law no . CARDINAL/CARDINAL ) that has not been returned shall be subject to restitution , normally consisting of the return of the property in question ...

( CARDINAL ) Where the property can not be returned , alternative measures of redress shall be taken . Such measures may consist of compensation in the form of other items or services ... , the allotment of shares in commercial companies listed on the stock market , securities at face value used exclusively in the privatisation process or pecuniary compensation . ”

“ ( CARDINAL ) Within DATE after the entry into force of the present Law , the claimant shall serve notice on the artificial person in possession of the property and seek the return of that property ... ”

Section CARDINAL

“ A special law shall be enacted within DATE of the expiry of the DATE period fixed for the service of notice . That law , on the basis of the estimates , shall provide for the payment of compensation , stipulating the conditions , amounts and procedures and possibly fixing a ceiling . ”

“ ( CARDINAL ) The sale or donation of immovable property unlawfully seized by the ORG shall be declared null and void , save where such transactions were entered into in good faith .

NORP The relevant provisions of LAW no . CARDINAL/CARDINAL on land registers read as follows :

“ Rights in rem vested in immovable property may be acquired if it is so agreed between vendor and purchaser and if the corresponding creation or conveyance of such a right is entered in the land register . ”

“ Rights in rem shall be acquired without being entered in the land register by means of succession , accession , sale in execution or expropriation ; however , the holder of the right shall have the capacity to alienate his or her property , by virtue of the land register , only after the right has been entered therein . ”

“ Save in respect of statutory restrictions or exceptions , the entries in the land register shall be regarded as correct for the benefit of the person who has acquired a right in rem through a legal transaction for valuable consideration if , at the time the right was acquired , the land register did not mention any action whereby the information therein might be challenged or if the person concerned has not , in any other manner , become aware of an inaccuracy . ”

Article CARDINAL of the Civil Code reads :

“ An obligation without legal basis or based on an erroneous or unlawful ground can not produce any useful effect . ”

Under NORP law , an action for recovery of possession is one of the principal remedies for the protection of a right of property . Such action is not governed per se by statute but has emerged from case - law . An action for recovery of possession can be defined as the bringing of proceedings to enforce a right in rem in which a dispossessed owner claims back his or her property from the person currently in possession of it . The main outcome of such an action , if successful , is the acknowledgment by the court of the claimant 's title to the property , with retrospective effect , thus obliging the defendant to return the property . If physical restitution is no longer possible , that obligation is replaced by an obligation to pay compensation on the basis of an equivalent sum ( see , for example , PERSON , ORG şi dezmembrămintele sale ( Ownership and its Attributes ) , PERSON , ORG , pp . CARDINAL - CARDINAL , and PERSON and PERSON , Elementele dreptului civil , vol . CARDINAL , NORP reale ( Elements of Civil Law , vol . CARDINAL , Rights in rem ) , GPE DATE , p. CARDINAL ) .

In legal systems derived from NORP law there is an equitable rule that when a person has been unjustly enriched at the expense of another , the latter may claim compensation in the amount by which that person has been enriched ( see PERSON , PERSON and PERSON , Droit civil : les obligations ( Civil Law : Obligations ) , ORG , CARDINALth edition , DATE , pp . DATE , and PERSON , ORG civil : PERSON generală a obligaţiilor ( Civil Law : General theory of obligations ) , PERSON , GPE DATE , p. CARDINAL ) . Whilst an action for tortious liability enables the injured party to claim exact reparation for the loss sustained as a result of negligence on the part of an enriched person , in an action for unjust enrichment the claimant can only seek an amount corresponding to the other party 's gain , provided that some pecuniary benefit has been obtained , without just cause , at the expense of the claimant ( see GPE , PERSON and GPE , op . cit . , p. CARDINAL , and PERSON , op . cit . , p. CARDINAL ) .


The applicants , Mr PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in ORG . The respondent Government are represented by PERSON GPE , Representative of GPE at ORG .

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

In DATE the first applicant received a position at ORG and moved to ORG together with his wife ( “ the second applicant ” ) .

In DATE the applicants sued ORG and ORG for the alleged failure to grant them a flat in accordance with NORP law .

On DATE ORG partly granted the applicants’ claims and placed them on a waiting list , ordering that ORG provide the family with housing in accordance with the existing order of precedence . ORG dismissed the claims against ORG .

On DATE ORG upheld the judgment on appeal and held ORG jointly liable for allocation of a flat to the applicants .

On DATE the bailiffs began enforcement but the judgments could not be enforced as the order of precedence had not been determined by ORG .

At the ORG initiative , on DATE the ORG of ORG varied the previous judgments by way of supervisory review and held that the applicants were to receive a flat without further delay .

On DATE the applicants accepted the flat which had been offered to them by ORG .


Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . ORG ( “ the Government ” ) were represented by PERSON , ORG at ORG .

The applicant received compensation for health damage from the ORG , following his participation in the emergency clean - up operations at the site of the GPE nuclear plant .

By a judgment of DATE the ORG of GPE ( “ the ORG ” ) granted in part his claim for arrears and adjustment of his allowance relative to the minimum wage .

On DATE ORG , which considered the above judgment on appeal , modified a part of the judgment and upheld the remainder on appeal .

On an unspecified date the applicant , who was not content with the amount of compensation granted and with the way the domestic courts had interpreted the applicable law , lodged an application for supervisory review of the judgment of DATE , as upheld on DATE .

On DATE the Presidium of ORG granted his request and quashed the judgments of DATE and of CARDINAL DATE on account of erroneous interpretation of the domestic law by the lower courts . The case was remitted for fresh examination .

In the ensuing proceedings the applicant ’s claims were granted by ORG on DATE . That judgment was upheld on appeal by ORG on DATE and enforced on DATE .


No violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Possessions)

Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

CARDINAL .

The applicant , who has a severe learning disability , has CARDINAL children . From DATE she was in receipt of CARDINAL non - contributory state benefits administered by the Secretary of ORG : child benefit and means - tested income support . Her income support personal allowance was assessed on the basis that she was a lone parent . She received an additional amount of personal allowance for each child who was a member of her family and a family premium . The benefits were paid by order book .

Pursuant to regulation CARDINAL ) of the Income Support ( General ) Regulations DATE ( “ the DATE LAW ) , the applicant was under a duty to report any change of circumstance which might affect her entitlement to benefit to ORG ( “ DWP ” ) . A note on the back of her order book advised her that she might break the law if she did not notify the ORG if a dependent or someone living with her moved to a different address . She had also received a Form INFCARDINAL , which advised her that she should immediately inform the ORG if , inter alia , children that she had claimed for were taken into care .

NORP In DATE the applicant ’s CARDINAL children were taken into care . She did not report this fact to the ORG . At the time , however , the applicant did not have the services of a social worker and she did not receive any practical help from the local authority disability team . It was accepted that she did not realise that this was a fact which she was required to report .

In DATE the applicant began to receive support from ORG , a charity which provides a range of support services to people with learning difficulties .

In DATE Owl Housing notified the ORG that the applicant ’s children had been taken into care . There followed CARDINAL separate decisions . First , the Secretary of ORG decided , pursuant to section CARDINAL(CARDINALA ) of ORG DATE ( “ the DATE LAW ) , to supersede her award of income support to reflect the fact that she had been receiving benefit to which she was not entitled . Secondly , a decision was made that the requirements of section CARDINAL(CARDINAL ) were satisfied so that the Secretary of ORG was entitled to recover the overpayment . Thirdly , the Secretary of ORG decided to exercise his discretion so as to recover the overpayment . Fourthly , the Secretary of ORG decided to recover the overpayment by reducing the applicant ’s future payments of income support by the amount permitted by regulation CARDINAL of LAW .

The amount of income support that the applicant had received in respect of her children after they had been taken into care was GBP CARDINAL . However , this amount was reduced by PERCENT ORG because during the relevant period the applicant could have claimed , but did not claim , an income support disability premium .

NORP The applicant appealed to ORG ( “ the ORG ” ) against the Secretary of ORG ’s decision that she had to repay GBP MONEY . She relied on previous decisions of ORG , in which they held that there would be no failure to disclose unless disclosure was reasonably to be expected . If there was no failure to disclose , the question of recovery of an overpayment would not arise at all . The ORG allowed the applicant ’s appeal , finding that the relevant test was not what a reasonable man would have thought it appropriate to disclose , but rather what a reasonable man knowing the particular circumstances of the claimant would have expected her to disclose . The ORG accepted that the applicant did not understand that the placing of her children in care was a material fact which she needed to disclose to the ORG , and that it was not reasonable to expect her , in the particular circumstances of her case , to have disclosed that fact .

NORP The Secretary of ORG appealed to ORG ( “ the Commissioners ” ) . The Commissioners allowed the appeal , holding that if a claimant was aware of a matter which he or she had been required to disclose , there would be a breach of that duty even if , because of mental incapacity , the claimant was unaware of the materiality or relevance of the matter or did not understand an unambiguous request for information . Notwithstanding the settled case - law of the Commissioners , the “ reasonableness test ” was not a requirement under section CARDINAL of the DATE Act and did not represent a possible construction of section CARDINAL . Capacity was not relevant to the issue of failure to disclose and the applicant was in breach of the obligations imposed on her under the first limb of regulation CARDINAL ) of GPE .

The applicant appealed to ORG . She submitted that there had been a violation of LAW read in conjunction with LAW No . I in that the ORG ’s interference with her possessions discriminated unjustifiably between people who were unable to report facts because they were not aware of them and people who , like the applicant , were unable to report them for some other reason . It was argued in the alternative that the law treated identically people who were capable and people who were incapable of understanding that there was a fact which they were required to report .

ORG held that the argument fell at the first fence because there were no possessions of the applicant at stake : what the Secretary of ORG was claiming was an entitlement to recover money which should not have been paid to the applicant in the first place . Although the decision of ORG in the case of NORP ( PERSON and PERSON ) v. the Secretary of ORG for Work and Pensions to the effect that a noncontributory benefit such as income support was not a possession within the meaning of Article CARDINAL was taken as correct by ORG , the underlying issue of principle awaited the decision of ORG in the case of NORP . The recovery of overpaid benefits , however , stood outside this question and by parity of reasoning outside LAW No . CARDINAL .

ORG went on to reject in any event the applicant ’s first alleged ground of discrimination as it did not consider people who were unable to report facts because they were not aware of them to be in an analogous , or relevantly similar , situation to people who were unable to report them for some other reason . The proposition that you could not report something that you did not know was a simple proposition of logic , whereas the proposition that you could not report something you did not appreciate you had to report depended on difficult questions of cognitive capacity and moral sensitivity which varied from person to person .

As to the latter ground relied upon by the applicant , namely that the law treated identically people who were capable and people who were incapable of understanding that there was a fact which they were required to report , ORG found it unnecessary to determine what was considered to be a difficult question , since the recovery of overpaid benefits could not in any event amount to a deprivation of possessions .

On DATE the applicant was refused permission to appeal to ORG .

At the relevant time , regulation CARDINAL ) of the DATE Regulations provided that :

“ Except in the case of a jobseeker ’s allowance , every beneficiary and every person by whom or on whose behalf sums payable by way of benefit are receivable shall furnish in such a manner and at such times as the Secretary of ORG ... may determine such certificates or other documents and such information and facts affecting the right to benefit or its receipt as the Secretary of ORG ... may require ( either as a condition on which any sum or sums shall be receivable or otherwise ) and in particular shall notify the Secretary of ORG ... of any change of circumstances which he might reasonably be expected to know might affect the right to benefit , or to its receipt , as soon as reasonably practicable after its occurrence , by giving notice in writing ( unless the Secretary of ORG ... determines in any particular case to accept notice otherwise than in writing ) of any such change to the appropriate office . ”

Pursuant to section CARDINAL of LAW DATE , the Secretary of ORG had power to supersede an award of income support , where there had been a relevant change in circumstances , with retrospective effect from the date when the change occurred .

Where there was a failure to disclose a relevant change in circumstances , section CARDINAL of the DATE Act provided that :

“ ( CARDINAL ) Where it is determined that , whether fraudulently or otherwise , any person has misrepresented , or failed to disclose , any material fact and in consequence of the misrepresentation or failure—

( a ) a payment has been made in respect of a benefit to which this section applies ; or

the Secretary of ORG shall be entitled to recover the amount of any payment which he would not have made or any sum which he would have received but for the misrepresentation or failure to disclose .

( CARDINAL ) Where any such determination as is referred to in subsection ( CARDINAL ) above is made on an appeal or review , there shall also be determined in the course of the appeal or review the question whether any , and if so what , amount is recoverable under that subsection by the Secretary of ORG .

( CARDINAL ) An amount recoverable under subsection ( CARDINAL ) above is in all cases recoverable from the person who misrepresented the fact or failed to disclose it .

( CARDINAL ) Except where regulations otherwise provide , an amount shall not be recoverable under subsection ( CARDINAL ) above unless the determination in pursuance of which it was paid has been reversed or varied on an appeal or revised on a review or has been revised under LAW or suspended under LAW DATE .

( CARDINAL) Where any amount paid is recoverable under—

( a ) subsection ( CARDINAL ) above ;

it may , without prejudice to any other method of recovery , be recovered by deduction from prescribed benefits .

( CARDINAL ) Any amount recoverable under the provisions mentioned in subsection ( CARDINAL) above—

( a ) if the person from whom it is recoverable resides in GPE and GPE and the county court so orders , shall be recoverable by execution issued from the county court or otherwise as if it were payable under an order of that court ; and

( CARDINAL ) This section applies to the following benefits—

( b ) income support ; ”

Regulations CARDINAL , DATE and DATE of ORG ( Payments on account , Overpayments and Recovery ) Regulations DATE ( “ LAW ) provide as follows :

In calculating the amounts recoverable ... where there has been an overpayment of benefit , the adjudicating authority shall deduct—

( a ) any amount which has been offset under LAW ;

( b ) any additional amount of income support which was not payable under the original , or any other , determination , but which should have been determined to be payable—

( i ) on the basis of the claim as presented to the adjudicating authority , or

( ii ) on the basis of the claim as it would have appeared had the misrepresentation or non - disclosure been remedied before the determination ;

but no other deduction shall be made in respect of any other entitlement to benefit which may be , or might have been , determined to exist .

CARDINAL.—(CARDINAL ) Subject to regulation CARDINAL , where any amount is recoverable ... that amount shall be recoverable by the Secretary of ORG from any of the benefits prescribed by the next paragraph to which the person from whom it is determined the amount to be recoverable is entitled .

( CARDINAL ) The following benefits are prescribed for the purposes of this regulation—

( d ) subject to regulation CARDINAL , any income support .

CARDINAL

( CARDINAL ) Regulation CARDINAL shall apply to the amount of income support to which a person is presently entitled only to the extent that there may , subject to paragraphs CARDINAL and CARDINAL of Schedule CARDINAL to LAW , be recovered in respect of any CARDINAL benefit week—

( a ) in a case to which paragraph ( CARDINAL ) applies , not more than the amount there specified ; and

( b ) in any other case , CARDINAL times MONEY . of the personal allowance for a single claimant aged not CARDINAL , that MONEY . being , where it is not a multiple of MONEY , rounded to the next higher such multiple .

( CARDINAL ) Where the person responsible for the misrepresentation of or failure to disclose a material fact has , by reason thereof , been found guilty of an offence under section CARDINAL of the LAW or under any other enactment , or has made a written statement after caution in admission of deception or fraud for the purpose of obtaining benefit , the amount mentioned in paragraph ( CARDINAL)(a ) shall be CARDINAL times MONEY . of the personal allowance for a single claimant aged not CARDINAL , that MONEY . being , where it is not a multiple of MONEY , rounded to the nearest such multiple or , if it is a multiple of MONEY but not of MONEY , the next higher multiple of MONEY .

( CARDINAL ) Where , in the calculation of the income of a person to whom the income support is payable , the amount of earnings or other income falling to be taken into account is reduced by DATE CARDINAL to ORG ( sums to be disregarded in the calculation of earnings ) or DATE and DATE of Schedule CARDINAL to those Regulations ( sums to be disregarded in the calculation of income other than earnings ) the DATE amount applicable under paragraph ( CARDINAL ) may be increased by not CARDINAL the amount of the reduction , and any increase under this paragraph has priority over any increase which would , but for this paragraph , be made under paragraph CARDINAL(CARDINAL ) of Schedule CARDINAL to LAW .

( CARDINAL ) Regulation CARDINAL shall not be applied to a specified benefit so as to reduce the benefit in any DATE to MONEY .

NORP The Secretary of ORG ’s policy on the recovery of overpaid benefit is set out in the Overpayment Recovery Guide , which contains guidance for decision - makers to adjudicate in overpayment cases . LAW addresses “ abatement by notional entitlement ” , which is the exercise of discretion to recover a lower amount on account of the fact that a claimant could have claimed , but did not claim , some other social security benefit during the same period . In those circumstances , recovery is made of the net loss to public funds . LAW also addresses the exercise of discretion to waive recovery of overpayments , which is normally considered where there is reasonable evidence available that the recovery of an overpayment would be detrimental to the health and/or welfare of the debtor or their family or that recovery would not be in the public interest .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant , PERSON , is a NORP national , born in DATE . He is Archbishop of ORG of GPE and PERSON and states that he is acting on behalf of the above ORG as well as on behalf of other persons not listed or identified in the application form , namely the church ’s parishioners . The applicant lives in GPE . He is represented before the Court by Mr A. Angelides , a lawyer practising in GPE .

, may be summarised as follows :

In the course of the events in northern GPE of DATE , the applicant states that they had to leave behind property and flee places of worship . The property claimed consists of immovable property ( monasteries , chapels , churches and graveyards etc ) and movable property ( ecclesiastical vessels , grails etc ) . Since DATE the applicant states that they have been prevented from enjoying the church ’s property . The applicant further claimed that many properties had been destroyed , vandalised , looted or stripped of their religious function and are now used as NORP religious sites , museums , bars , clubs , barns etc . Ecclesiastical vessels etc have been destroyed or sold .


No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing;Legal aid)

David Thór Björgvinsson;Nebojša Vučinić;Vincent A. De Gaetano

The applicant was born in DATE and lives in GPE .

By a judgment of CARDINAL DATE ORG dismissed the applicant ’s appeal against a second - instance administrative decision of CARDINAL DATE by which the second - instance authority had refused to acknowledge that the applicant ’s ailment was of an occupational character .

This judgment was served on the applicant on DATE .

By a decision of DATE the court granted legal aid to the applicant .

The local ORG assigned a lawyer to the case by a decision of DATE . This decision was served on the lawyer on DATE . On DATE the applicant gave a power of attorney to the lawyer .

On DATE the lawyer submitted a cassation appeal to ORG .

On DATE that court held that the time - limit for lodging a cassation appeal had expired on DATE , DATE after the applicant had been served with the judgment . The court rejected the cassation appeal on the ground that under the applicable laws the fact that the party was not represented by a lawyer and requested for legal aid only after having been served with the judgment had no bearing on the running of the time - limit for submitting a cassation appeal . It also noted that the legal - aid lawyer had failed to submit a request for leave to appeal out of time together with the cassation appeal .

The applicant ’s lawyer appealed . He acknowledged that he had not submitted the request for leave to appeal out of time . However , he was of the view that this omission would not be relevant for the court ’s decision to accept the cassation appeal for examination .

On DATE ORG upheld the contested decision and shared the legal view expressed by the first - instance court .

The relevant domestic law and practice concerning the procedure for lodging cassation appeals with ORG against judgments of ORG are stated in the ORG ’s judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , DATE .

NORP In particular , in its decision no . II FZ CARDINAL/CARDINAL of DATE ORG held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the time - limit by a legally - aided applicant could be admitted for examination .

When legal aid has been granted and the time - limit for the submission of a cassation appeal has already expired , it is open to the legally - aided party to submit the appeal together with a request for leave to appeal out of time made under sections DATE and CARDINAL of the PERSON on the Procedure before Administrative Courts ( e.g. ORG FZ CARDINAL of DATE and ORG , I CARDINAL CARDINAL/CARDINAL of DATE ) . In certain cases the courts stated that such a request should be submitted within DATE from the date on which the lawyer obtained a power of attorney from the party , which date is considered as the date on which the impediment to lodging an appeal ceased to exist ( e.g. ORG , II ORG CARDINAL/CARDINAL of DATE ) , or from the date when the lawyer could obtain effective access to the case file ( e.g. the ORG , ORG CARDINAL/CARDINAL of CARDINAL DATE ) .

In a number of its recent decisions ORG acknowledged the difficulties which legally - aided parties experienced in connection with lodging their cassation appeals against judgments of the first - instance administrative courts . It expressed the view that they should not be penalised for the fact that their requests for legal aid were not processed speedily enough . It analysed relevant case - law of the administrative courts and noted that the manner in which DATE limit for lodging cassation appeals was determined had led to divergent results . It held that it was necessary to determine the relevant time in a manner compatible with effective access to the highest administrative court and which ensured equal treatment for parties represented by lawyers appointed under the legalaid scheme and by privately hired lawyers . The court held that the time - limit for a legally - aided party started to run only on DATE when a legal - aid lawyer had a genuine possibility of lodging the cassation appeal and not when he or she was informed of having been assigned to the case . The court was of the view that the latter approach was far too rigorous and rendered the effective enjoyment of legal assistance granted under the legal - aid system illusory . In any event , the cassation appeal had to be lodged within DATE from DATE on which the party was informed of the appointment of the legal - aid lawyer ( I FZ CARDINAL/CARDINAL of DATE ; I ORG CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; PERSON CARDINAL/CARDINAL of DATE ; II OZ CARDINAL/CARDINAL of CARDINAL DATE ; I CARDINAL CARDINAL/CARDINAL of DATE ; I FZ CARDINAL of DATE ; ORG of DATE ; I FZ CARDINAL of DATE ) .


The applicant is a NORP citizen , born in DATE and residing in LOC . She is represented before the ORG by Mr PERSON , Mr PERSON and PERSON PERSON PERSON , lawyers practising respectively in GPE , GPE and GPE .

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

On DATE the applicant gave birth to a son Yevgeniy . The applicant and the father of the son lived together from DATE to DATE but were never married . The applicant suffered physical abuse by her partner which led to their separation in DATE . It was agreed that the applicant would have custody of the child and that the child would visit his father at DATE .

In DATE the applicant began to associate with the religious minority known as the Jehovah ’s Witnesses and involved her son in its religious activities . Her former partner , being an NORP believer , turned to a public organisation called ORG and ORG , a ORG agency , with a view to obtaining custody of the child for himself .

On DATE the father refused to return the child to the applicant following a weekend visit . The applicant complained to the police and on DATE filed an application for legal custody with ORG ( Люберецкий городской суд ) . On DATE the applicant was notified that her former partner had already applied for custody and that the hearing of the case was scheduled to begin on DATE .

By judgment of DATE ORG granted custody of the child to the father , ordered him not to prevent the applicant ’s contacts with the child and dismissed the applicant ’s counterclaim . In reaching its decision ORG took into account , inter alia , a report submitted by ORG and prepared by the researchers of ORG , which described the GPE ’s Witnesses organisation as a destructive and totalitarian sect whose activity presents a serious danger for society . It found that the applicant ’s affiliation with the organisation had a harmful effect on the health and development of the child .

On DATE the ORG of ORG ( судебная коллегия по гражданским делам GPE областного суда ) upheld the judgment of the first instance court and dismissed the applicant ’s appeal in cassation . On DATE the applicant requested the Chairman of ORG to order a review of her case . By letter of DATE ORG rejected the applicant ’s request .

On DATE the applicant filed an application with ORG of Moscow ( ORG районный суд г. PERSON ) - a court with jurisdiction over the father ’s area of residence - to define and extend the contacts with her son , whom she saw TIME a week in the presence of the father . On DATE ORG refused the applicant ’s request to reconsider her case .

On DATE the applicant filed a petition with ORG of GPE requesting its officials to lodge a protest against the lower courts’ judgments . The request was granted by the Deputy Chairman of ORG , whose protest was then put before ORG for consideration . By decision of DATE the ORG of ORG rejected the protest brought by the Deputy Chairman of ORG and upheld the validity of the impugned judgments . The applicant was not present at the hearing before ORG as she was only notified of it on DATE by a letter postmarked CARDINAL June DATE .

By decision of DATE ORG of ORG of GPE revoked , upon a protest by the Deputy Chairman of ORG , the judgments of ORG and ORG , as well as the decision of the Presidium of ORG . It sent the case back to the first instance court for new consideration . It found that in examining the applicant ’s case the courts had infringed norms of substantive and procedural law . In particular , they had wrongly entered into a discussion of the nature of the GPE ’s Witnesses organisation and failed adequately to examine all the relevant individual circumstances of the applicant ’s case .

On DATE , following the re - opening of the custody proceedings , the case went back to ORG , which adjourned it until DATE . As the father failed to appear before the court on that date , the hearing was further postponed until DATE . On DATE ORG , where the applicant ’s request for defined and extended contact stood adjourned , ordered the case to be remitted to ORG for examination jointly with the custody issue .

On DATE ORG held a hearing in which it refused the applicant ’s request for the return of the child pending determination of the long term future as well as for an independent psychological report on his current condition . The hearing scheduled for DATE was adjourned due to the absence of the father . On DATE ORG held a further hearing .

On DATE the applicant and the father concluded a friendly settlement , renouncing fully their reciprocal claims before ORG concerning the custody of their child . The applicant also withdrew her claims previously presented to the ORG regarding the definition and extension of contacts with her son .

According to the settlement , the child would reside with his father and the mother would have the child at DATE . In agreement with the father , the mother can meet with the child in TIME on DATE and take him with her on school holidays . It was further agreed that the child could not be drawn into religious associations against his will and without the consent of his parents .

By an order issued on DATE , ORG approved the settlement and terminated the proceedings .


Violation of Art. 6-1;No violation of Art. 10;No violation of Art. 10;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed

The applicants were born in DATE and DATE and live in the town of GPE in LOC . They are businessmen and founders of the PERSON newspaper ( “ The Right to Know ” ) .

On DATE the applicants ' newspaper published an article under the headline “ What power costs : part CARDINAL ” ( “ Сколько стоит CARDINAL ” ) . The article gave a detailed account of the wages and benefits received by mid - range employees in the town council . The relevant extract read as follows :

“ For the sake of clarity , let us look at the elements that make up the wages . Let 's take , for example , those of the head of the legal department ...

In total ... MONEY .

Not bad for a DATE professional who recently graduated from a teachers ' college . ”

PERSON , the head of the legal department , brought a defamation action against the applicants . She submitted that she possessed higher legal education and DATE of relevant experience , and that the article had harmed her authority in that it had sown doubts as to her professional qualifications .

On DATE the ORG of LOC heard the claim and gave judgment . It found that the applicants had been aware of the identity of the head of the legal department and they had intended to expose a specific person , namely PERSON court established that PERSON had been appointed to her position in DATE after having completed a course of higher legal education . It found as follows :

“ Having indicated in the article the salary of the head of the legal department and having referred to a DATE professional just out of college , the [ applicants ] related inaccurate information , given that PERSON , whom the [ applicants ] described as having graduated from a teachers ' college DATE previously , was at the material time the head of the legal department and had higher legal education .

The article ' What power costs : part CARDINAL ' implies that municipal employees receive high wages , paid out of the budget , and cites as an example a young professional with college - level education and no work experience .

The court considers that such information damages PERSON professional reputation and honour , in that it was disseminated to a large readership and begs the conclusion that the position of head of the legal department is occupied by an employee who lacks the requisite qualifications and work experience , which undermines the authority of the local administration and of PERSON

The court ordered the applicants to publish a rectification and pay MONEY ( ORG , CARDINAL ( ORG ) ) each to PERSON

On DATE both applicants appealed against the judgment of CARDINAL DATE . They submitted that the information had not been proven to be untrue and that it had not undermined PERSON authority . They also alleged a procedural violation , in that the case had been examined by a formation consisting of CARDINAL professional judge and CARDINAL lay judges , CARDINAL of whom , lay judge PERSON . , had participated in a previous hearing on DATE , whereas lay judges could only sit in court once a year and for no longer than DATE .

On DATE ORG confirmed the judgment of DATE . It upheld ORG findings that PERSON had graduated from a teachers ' college , but noted that this had occurred in DATE and that , by the time of her appointment , she had also completed higher legal education . The court concluded that the article had been intended to cast a shadow of doubt on Ms P. 's professional fitness and had thus damaged her reputation . As to the alleged procedural violation , the court held that the applicants had not proved that the lay judge in question had sat for DATE and stated that their allegations had been based on an erroneous interpretation of LAW .

On DATE the applicants ' newspaper published an article by Mr ORG under the headline “ The army with wet feet ” ( “ LOC ногами ” ) . The article related the living conditions of soldiers in a military unit where CARDINAL men had fallen ill because PERSON , the unit commander , had not provided them with dry footwraps or arranged for a place to dry their boots .

Mr PERSON sued the applicants and PERSON for the protection of his honour , dignity and professional reputation and claimed compensation for non - pecuniary damage . As evidence of the non - pecuniary damage sustained , PERSON PERSON enclosed a medical certificate issued by a psychiatrist . The certificate was made available to the applicants in their capacity as defendants .

On DATE the newspaper published a follow - up article “ There are different kinds of syndromes . But still no footwraps ” ( “ Синдром синдрому рознь. И без портянок ” ) . The article commented on various aspects of PERSON statement of claim . The relevant part read as follows :

“ So , our character ' ... had to visit a psychiatrist on DATE ... ' . ' Intellect with no peculiarities ' , noted the doctor , [ who ] found that PERSON had ... moderately pronounced asthenia syndrome and prescribed treatment . Asthenia means impotence , a kind of disease . It means that the commander of the regiment is not quite healthy . Or quite unhealthy ? ”

Mr PERSON subsequently supplemented his original statement of claim with a complaint about the publication of information on his state of health , which , in his opinion , was an unjustified interference with his right to respect for private life .

On DATE the ORG of LOC gave its judgment . The court established that the facts concerning the mass outbreak of illness among soldiers , described in the article of DATE , were accurate and dismissed PERSON action in this part . However , it established that PERSON had referred to his visit to a psychiatrist in his statement of claim , that only a limited number of people had access to the case file , and that PERSON had not consented to having his diagnosis published in a newspaper . The court concluded that the article of DATE violated Mr PERSON 's personal non - pecuniary rights , namely the right to inviolability of one 's private life and personal and family secrets , which was protected by LAW . Relying on LAW , it awarded him ORG ( EUR CARDINAL ) and RUR CARDINAL,CARDINAL ( ORG CARDINAL ) against the first and second applicants respectively .

On DATE ORG upheld on appeal the judgment of DATE . The court dismissed the applicants ' argument that the public should have been informed of PERSON state of health because he was the commander of a military unit .

Article CARDINAL of the LAW of the Russian Federation guarantees freedom of ideas and expression , as well as freedom of the mass media .

The relevant provisions of LAW read as follows :

“ CARDINAL . An individual 's life and health , dignity , personal integrity , honour and goodwill , professional reputation , the inviolability of one 's private life , personal and family secrets , the right to liberty of movement and to choose one 's place of temporary and permanent residence , the right to a name , copyright , other personal non - property rights and other incorporeal assets which a person possesses by virtue of birth or by operation of law shall be inalienable and untransferable by any means ... ”

“ If certain actions impairing an individual 's personal non - property rights or encroaching on other incorporeal assets caused him or her non - pecuniary damage ( physical or mental suffering ) ... the court may impose on the perpetrator an obligation to pay pecuniary compensation for that damage ... ”

“ CARDINAL . An individual shall be entitled to claim , before a court , a rectification of information damaging his honour , dignity and professional reputation , unless the person who disseminated the information proves that it was true ...

The individual about whom information damaging to his or her honour , dignity and professional reputation was disseminated shall be entitled to claim , in addition to rectification , compensation for pecuniary and non - pecuniary damage caused by the perpetrator . ”

On DATE the Federal Law on Lay Judges of ORG in GPE ( “ the LAW ” or “ LAW ” ) came into effect . By DATE ( CARDINAL ) of the LAW , lay judges are persons authorised to sit in civil and criminal cases as non - professional judges .

Section CARDINAL provides that lists of lay judges must be compiled for every district court by local self - government bodies , such lists being subject to confirmation by the regional legislature . Section CARDINAL determines the procedure for the selection of lay judges . It provides that the president of a district court is to draw random lots from a list of lay judges assigned to that court . The number of lay judges assigned to every professional judge should be CARDINAL times as many as that needed for a hearing .

By DATE , lay judges are to be called to serve in a district court for a period of DATE , or as long as the proceedings in a particular case last . Lay judges may only be called for service once DATE .

Civil cases may be examined by a formation comprising CARDINAL lay assessors and a professional judge . In the administration of justice lay assessors enjoy the same rights as professional judges ( DATE ) .

Civil proceedings are public in all cases , except where a hearing in private is necessary for the protection of information concerning ORG secrets , intimate details of parties ' lives or the confidentiality of adoption ( DATE ) .

Written evidence is read out in open court and made available to the parties and their representatives ( Article CARDINAL ) .


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant was born in DATE . Before his detention he lived in ORG . In DATE the applicant was recognised as falling into the second category of invalidity ( the medium level ) because of a spine disease . In DATE his invalidity was reclassified as being of the third category ( mildest level ) .

On DATE the applicant was detained on suspicion of murder . He was placed in the ORG trial ORG ( hereinafter “ the ORG ” ) .

In the period DATE and DATE the applicant was kept in the ORG trial ORG . On DATE the applicant was returned to the ORG GPE .

On DATE , after the applicant ’s conviction , he was transferred to the GPE prison no . CARDINAL .

On DATE he was transferred to the PERSON prison no . CARDINAL .

On DATE the applicant was returned to the Mariupol SIZO .

On DATE , after the retrial of the applicant ’s case , upon which he was sentenced to imprisonment for a longer period , he was transferred to the Sokiryanska prison no . CARDINAL .

On DATE the applicant was transferred to the GPE prison no . CARDINAL where he is still serving his sentence .

According to the applicant , when he was held in the Mariupol GPE the cell was constantly overcrowded , so that CARDINAL persons occupied CARDINAL bunk and had to take turns to sleep . The cell was not properly ventilated with fresh air and he did not have access to daylight . The nutrition was insufficient . The medical care was inadequate in particular in view of the fact that in DATE , in addition to his poor health , he contracted tuberculosis . He had not been provided with any medical treatment as regards his spine disease .

The applicant alleged that during his detention in the PERSON prison no . CARDINAL he suffered from the poor medical care and food supply which was inappropriate in view of his health problems . The cell was always damp which had an additional negative impact on his health .

As regards the PERSON prison no . CARDINAL , where the applicant is currently held , he states that the cell is lit by a wan electric lamp and dim daylight , restricted by glass blocks . This has led to the deterioration of his sight . However , despite his request to this effect , the applicant has not been examined by an ophthalmologist or provided with the necessary medical treatment . Moreover , despite the tuberculosis which he contracted in the Mariupol GPE , for DATE he has not been provided with any medical care for this disease . In addition , his requests to receive the necessary medical treatment in respect of his spine disease have been ignored .

The mandatory ventilation in his cell is not available and the window does not open because of metal bars attached to it . The lack of adequate ventilation is further aggravated by a general tolerance of smoking in the cells and outside during walks .

The applicant is employed at the factory at the GPE prison no . CARDINAL . He alleges that on his way to his working place and back he is strip searched in the presence of other inmates and in any season . He states that these searches are conducted in LOC that are unequipped for this purpose .

The applicant complained about the conditions of his detention to various ORG authorities . In particular the applicant complained to ORG claiming that the material conditions of his detention had been inappropriate and that due to his tuberculosis and spine diseases he required medical treatment and support . In his letter to the Commissioner for Human Rights of the Parliament of GPE the applicant complained , inter alia , that his requests to provide him with medical treatment had been constantly ignored by the relevant authorities . He further specified that due to his spine problem his right leg became less and less functional .

The Government submitted that during the applicant ’s stay in the Mariupol GPE he was kept in various cells with an average surface area of CARDINAL mCARDINAL and usually equipped with CARDINAL bunks . The Government did not specify the number of detainees kept there at the relevant time .

According to the Government the cells of the pre - trial detention centres and the prisons , where the applicant stayed , were equipped with a sufficient number of bunks , tables and chairs . The windows of the cells were large enough to provide access to fresh air and daylight . The applicant has always been able to take a TIME walk per day .

The Government further maintained that when held in the prisons , the applicant was provided with QUANTITY of living space in the cell , an individual bunk and bedclothes . The nutrition was sufficient and complied with the domestic regulations .

The Government submitted that during the applicant ’s time in the Mariupol GPE and the prisons he was always offered adequate medical treatment in respect of his tuberculosis disease .

NORP In particular , on DATE the applicant had been x - rayed for preventive purposes . In DATE the applicant was placed in the hospital of the GPE prison no . CARDINAL where he was provided with a non - specific antibacterial pathogenesis therapy . However , in DATE the applicant was diagnosed with tuberculosis and transferred to the special tuberculosis hospital in the PERSON prison no . CARDINAL .

NORP In DATE the applicant was released from the prison hospital with a diagnosis of tuberculosis and transferred to the Mariupol GPE where he was provided with further anti - tuberculosis treatment . Since then the applicant has been regularly x - rayed and provided with adequate anti - tuberculosis treatment .

NORP In DATE the applicant was examined by the ophthalmologist and proper treatment was prescribed for him .

The Government did not submit any factual details in respect of the applicant ’s allegations about the strip search practice at the prison factory where he works .

The relevant provisions of LAW and LAW can be found in the judgment of DATE in the case of Dvoynykh v. GPE ( no . MONEY , § § DATE , CARDINAL and DATE ) .

Section CARDINAL of the LAW provides that persons suffering from tuberculosis detained in pre - trial detention centres ( SIZOs ) must receive appropriate treatment in the medical units of these detention centres . Persons detained in prisons should be treated in specialist prison hospitals .

The relevant extracts from Chapters CARDINAL of the first DATE report provide as follows :

“ ... The situation in investigation wards is perhaps the worst , [ owing to ] their overcrowding and abnormal conditions of custody . The number of suspects in the cells of investigation wards far exceeds normal sanitary standards . By DATE GPE ’s investigation wards had available space for CARDINAL detainees , but in reality held CARDINAL .

The gravest situation was registered in GPE where CARDINAL detainees were in custody without sufficient space ; in GPE and ORG the same circumstances affected CARDINAL detainees ( in each city ) , CARDINAL in ORG , CARDINAL in GPE , and CARDINAL in GPE and GPE ( each ) . CARDINAL of detainees do not have personal bunks and are forced to take it in turns to sleep . This has been causing conflicts that are accompanied by injuries , physical reprisals , violence and other illegal actions . ...

The unsanitary conditions in pre - trial detention facilities contribute to the spread of epidemic and parasitic diseases , such as tuberculosis , pediculosis and dysentery . In DATE they caused the death of CARDINAL detainees , or twice as many as in DATE . Inadequate nutrition is the cause of chronic gastro - intestinal disturbances and dystrophy .

In the pre - trial detention facilities the regime of detention for suspects whose guilt has yet to be established is much more severe than in prisons . In most cases the suspects are denied the opportunity to meet with relatives , to work and provide assistance to families ; they are actually isolated from the outside world and have no access to the DATE press and other mass media ... ”

The second DATE report of DATE confirmed the first as regards the gross violations of the human rights of the detainees because of their conditions of detention , severe overcrowding , lack of adequate medical treatment and assistance , inadequate nourishment , and the inadequate financing of the needs of the pre - trial detention facilities . The poor hygienic and sanitary conditions of detention led to the spread of infectious diseases and in particular skin diseases . It mentioned for instance that in DATE PERCENT of the necessary food supplies were financed from the ORG budget ( PERCENT in DATE ) , and PERCENT of the medical supplies ( PERCENT in DATE ) . The average medical expenditure per person was UAH CARDINAL.CARDINAL in DATE ( compared to the required amount of UAH CARDINAL ) and UAH DATE ( compared to the required amount of UAH CARDINAL ) .

The relevant extracts of the reports of ORG can be found in the judgment in the case of PERSON v. GPE , ( no . GPE , § § DATE ) .

The relevant international reports and other materials concerning the treatment of tuberculosis in GPE are summarised in paragraphs CARDINAL of the ORG judgment , cited above .


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

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

In DATE , the applicant and a company engaged in negotiations with the city of GPE to obtain a building permit for a plot of land they had bought . In the course of these negotiations , the applicant and the said company undertook to pay CARDINAL ORG ( MONEY ( ORG ) ) of the costs for the provision of the public infrastructure ( GPE ) . The applicant also undertook to construct a shopping centre within DATE following the grant of the building permit .

On DATE the applicant applied for the building permit with the municipal authorities . He offered to submit a bank security to cover the costs for the provision of the public infrastructure concerning the shopping centre , estimated to amount to some DEM CARDINAL . He also suggested that a contract on this point be signed by him and the city .

In DATE , following municipal elections , the city requested the applicant to submit a bank security of DEM CARDINAL ( approximately EUR CARDINAL ) to cover the costs for the provision of the public infrastructure for the plot of land as a whole . Upon his refusal to do this , the city refused its consent to his request for a building permit . It also refused to conclude a contract concerning the construction of the shopping centre and the costs for the provision of the public infrastructure .

On DATE the applicant brought an official liability action ( Amtshaftungsklage ) for compensation in the ORG against the city of GPE . He complained that the city 's sudden decision to request a bank security of DEM CARDINAL , thereby setting up further inequitable conditions for its agreement to the applicant 's building project , was a result of informal negotiations between different local political parties before the municipal elections . It constituted a voluntary breach of the principle of continuity in administrative actions .

On DATE the local building authorities refused to grant the applicant the requested building permit . This decision was later confirmed by the administrative courts .

On DATE ORG dismissed the applicant 's official liability action . According to ORG , nothing suggested that the city of GPE had acted in breach of its obligations as a public organ .

On DATE the applicant lodged an appeal against this decision with ORG ( Fourth Senate ) .

In DATE the applicant 's real estate concerned was sold by compulsory auction .

On DATE ORG ( Fourth ORG ) dismissed the applicant 's appeal as ill - founded .

On DATE , following the applicant 's appeal on points of law , ORG quashed this decision and remitted the case to ORG ( Fourth Senate ) . It requested ORG to examine whether the city had discontinued abruptly the contractual negotiations with the applicant for arbitrary reasons , because the city was liable to pay damages to the applicant if it had done so .

On DATE ORG ( Fourth ORG ) again dismissed the applicant 's appeal . It found that , even assuming that the city had breached its duty as a public organ to act in a consistent manner , the applicant had failed to establish that there was a causal link between the city 's conduct and the damage sustained by him .

On DATE ORG decided partly to admit the applicant 's renewed appeal on points of law .

On CARDINAL DATE ORG partly quashed ORG decision and remitted the case to the Seventh ORG of that court . It found that ORG , in its finding that a causal link was missing between the city 's conduct and the damage sustained by the applicant , erroneously did not assess the evidence offered by him .

On DATE ORG ( Seventh ORG ) amended ORG decision of CARDINAL DATE . It declared that the applicant was entitled to compensation , but did not yet assess the exact amount of the damages payable ( ORG ) . ORG found that the city of GPE had unforeseeably and without legitimate reasons requested the applicant to submit a bank security of DEM CARDINAL , thereby willingly causing the breakdown of the negotiations about the grant of a building permit . Therefore , it breached its duty as a public organ to act in a consistent manner .

On DATE ORG refused to admit the appeal on points of law lodged by the city of GPE .

On DATE ORG refused to admit the city 's constitutional complaint .

On DATE ORG ordered the city of GPE to pay ORG CARDINAL ( approximately EUR CARDINAL ) plus interest to the applicant and dismissed the remainder of his claim .

On DATE , following both parties ' appeals on points of law , ORG quashed ORG decision as far as the amount of damages was concerned and remitted the case to ORG .

On DATE ORG ( renamed ORG ) ordered that an expert report be prepared on the amount of damages sustained by the applicant .

On DATE ORG ordered that a further expert report be prepared on the amount of damages sustained by the applicant , taking into consideration additional tax - related aspects .

On DATE ORG allowed the applicant 's constitutional complaint about the length of the official liability proceedings ( see in detail paragraphs DATE below ) .

On DATE and DATE , CARDINAL different ORG rejected the applicant 's challenges of the judges of ORG on grounds of bias as ill - founded .

On DATE ORG ( Seventh ORG ) , after having held a hearing , dismissed the applicant 's action for compensation . It found that it was not established that the applicant would have been in a financial position to realise his building project if he had been granted the building permit , regardless of the city 's behaviour . The city 's actions thus had not caused any financial losses to him . The court ordered the applicant to pay the costs of the court proceedings ( amounting to some ORG MONEY ) .

On DATE ORG refused to admit the applicant 's appeal on points of law against ORG judgment of DATE . It fixed the value in dispute ( PERSON ) at some EUR CARDINAL,CARDINAL,CARDINAL and ordered the applicant , being the party failing in his action , to bear the costs of the proceedings ( amounting to another approximately ORG MONEY ) .

On DATE the applicant lodged a constitutional complaint with ORG , claiming that his property rights , his rights to be heard , to a fair trial and to a decision by the judge having jurisdiction ( gesetzlicher Richter ) had been violated .

On DATE ( decision served on DATE ) ORG refused to admit the applicant 's constitutional complaint . It found that he failed sufficiently to substantiate his complaint , which therefore was inadmissible .

On DATE the ORG decided to start insolvency proceedings against the applicant .

On DATE the applicant lodged a constitutional complaint with ORG , arguing that his right to a hearing within a reasonable time had been violated in the official liability proceedings pending in ORG .

On DATE ORG held that the applicant 's right to an effective judicial remedy under LAW had been violated in that ORG did not render a decision on the amount of compensation to be granted to the applicant within a reasonable time . In its reasoning , it found that , despite the complexity of the case , the length of the proceedings , which had been pending since DATE , was obviously excessive . It concluded that , pursuant to Section CARDINAL para . CARDINAL of ORG ( Bundesverfassungsgerichtsgesetz ) , it was restricted to the finding of a violation of LAW . ORG was now obliged to take effective measures in order to terminate the proceedings as soon as possible .

On DATE the applicant brought another official liability action under LAW of LAW taken in conjunction with Section CARDINAL of LAW against ORG with ORG . He applied for a declaration ( PERSON ) that ORG was liable to compensate him for the damage which has been and will be caused by the excessive length of the proceedings before ORG .

On DATE ORG allowed the applicant 's action and ordered the defendant Land to pay the costs of the proceedings .

On DATE the Land Saarland lodged an appeal against the judgment of ORG of DATE with ORG . The proceedings , which had been suspended on the motion of both parties awaiting the outcome of the official liability proceedings against the city of GPE , are to date still pending .

A detailed survey of the relevant provisions of ORG , the provisions governing ORG liability and the case - law of the domestic courts concerning the length of civil proceedings can be found in the ORG 's judgment in the case of GPE v. GPE ( [ ORG ] , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE ) .


Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Angelika Nußberger;Dean Spielmann;Elisabet Fura;Karel Jungwiert;Mark Villiger;Mykhaylo Buromenskiy

The first applicant was born in DATE and lives in the town of GPE , GPE . The second applicant was born in DATE and died in DATE . The third , fourth and fifth applicants were born in DATE and DATE respectively and live in the town of GPE , GPE .

CARDINAL

On DATE , shortly after TIME , NORP , the then deputy head of the criminal investigation department ( заступник начальника відділення карного розшуку ) at FAC ( П’ятихатський районний відділ ORG області ) , was on his way back from a private trip in a car driven by an acquaintance of his , Mr V. Bugara . The third applicant was also in the car . Having quarrelled with PERSON V. Bugara , NORP , who was drunk , deliberately fired on and instantly killed him , using the police gun which he carried on him at all times . NORP then attempted to shoot the third applicant but missed . The third applicant managed to run away .

After that NORP tried to stop passing cars . PERSON , who happened to be driving by at that time , stopped and spoke to NORP , who pretended that his car had broken down and asked for help . However , PERSON suspected that something was wrong and tried to get away . NORP shot Mr A. PERSON and attempted to shoot NORP , who was a passenger in Mr A. Gorovenko ’s car , and seriously wounded her .

Soon NORP was apprehended by passers - by and taken to the police station .

Shortly after the incident the police launched an internal investigation . The report , signed on DATE , brought to light a number of “ causes and pre - conditions ” stemming from poor regulation by LOC and ORG which had led to the incident in question . It mentioned , among other things , that the superior officers had failed to adequately examine D. ’s character when recruiting and promoting him . In particular , several incidents which demonstrated D ’s unsuitability for service in the police department were mentioned . When studying at police college NORP had been dismissed from the position of section commander for alcohol abuse . In DATE he had inflicted light bodily injuries on PERSON . and had been sanctioned on CARDINAL occasions for disciplinary offences . It was further mentioned that his superior officers had failed to enforce and maintain discipline over their subordinates . In particular , several incidents involving police officers from FAC were referred to . The superior officers had failed to exercise due control when permitting their subordinates to keep and carry police guns at all times . The report stated that the superior officers had not checked the conditions in which NORP kept his police gun at home and had not supervised NORP ’s behaviour when he was off duty . Furthermore , although NORP was known to abuse alcohol , his superiors had not withdrawn his police gun in due time . In particular , on CARDINAL DATE , while the elections of the President of GPE were taking place and the police were operating under a special “ reinforced ” regime , NORP had returned home intoxicated .

It was decided that CARDINAL officers ( including the head of ORG ) were to be dismissed and CARDINAL others subjected to disciplinary sanctions .

NORP On DATE the local prosecutor ’s office instituted criminal proceedings against NORP In the course of these proceedings the applicants brought civil claims against both NORP and ORG Управління МВС в GPE області ) , seeking compensation for pecuniary and non - pecuniary damage .

By a judgment of DATE ORG ( from DATE – “ the ORG of Appeal ” ) found NORP guilty of multiple murders , among other crimes , and sentenced him to life imprisonment . The court found that in DATE a decision had been taken allowing NORP to carry a gun at all times . However , NORP had systematically contravened the provisions of LAW both while on duty and at home and had abused alcohol on numerous occasions . The court awarded the CARDINAL applicants’ families amounts totalling CARDINAL and CARDINAL NORP hryvnias ( ORG ) respectively in compensation for pecuniary and non - pecuniary damage − the sums to be paid by NORP The court further decided that the ORG claim against ORG should be examined in separate civil proceedings .

On DATE ORG issued a special ruling ( окрема ухвала ) informing the head of ORG of “ serious deficiencies in the activities of ORG ” . Referring to the above - mentioned findings , the court stated that NORP had shot QUANTITY persons with his police gun , which he had been using in the course of his duties . It went on to say :

“ Such deliberate disregard for the [ Police Act ] by a police officer [ ... ] , the serious deficiencies in the maintenance of discipline over subordinate officers , and the lack of proper control over the issuing and keeping of police guns in [ LOC ] were the cause of [ the incident in question ] ”

The first and second applicants appealed against the judgment and on DATE ORG dismissed their appeal . The judgment became final .

By a letter of DATE , ORG notified the applicants that in DATE NORP had paid them ORG CARDINAL in total . According to the applicants , the judgment of CARDINAL DATE remains unenforced in the part concerning the compensation award .

In DATE the applicants brought actions against ORG and the local department of ORG of GPE before ORG , seeking compensation for non - pecuniary damage . In support of their claims they relied on the findings in the judgment , the special ruling of DATE and the internal investigation report of DATE .

On DATE the court rejected the ORG claims . In so doing the court reasoned as follows :

“ ... According to the legislation in force , redress for non - pecuniary damage has to be made by the person who has caused it by his own malicious acts . A finding of guilt and a link of causality between the impugned acts and the damage are the necessary conditions for liability . ”

“ The PERSON argument that negligent acts and omissions by the administration of ORG brought about the detrimental consequences in issue and caused non - pecuniary damage to the claimants can not be accepted as no causal link between the acts and omissions of ORG and the consequences in question was established by the internal investigation .

According to section CARDINAL of LAW , an organisation has to pay compensation for damage caused by its employees in the course of their employment .

It was established in the course of the criminal proceedings that [ NORP ] , being the deputy head of the criminal investigation department at FAC , had committed the crimes while off duty and for purely violent motives .

In the light of the foregoing , the court has reached the conclusion that the claims should be rejected . ”

On DATE and DATE the ORG and ORG of GPE respectively rejected appeals by the applicants .

The Instruction on the Regulations for the Permanent Keeping and Bearing of Police Firearms , Ammunition and Special Equipment by Police Officers was adopted on DATE by order no . CARDINAL of ORG ( GPE про порядок постійного збереження і носіння табельної зброї , боєприпасів і спеціальних засобів працівниками міліції , затверджена наказом ORG DATE від CARDINAL січня DATE р. ) . It sets forth the requirements for police officers to be permitted to keep and bear firearms , ammunition and special equipment at all times , the procedure for applying for such permits , and the conditions under which firearms , ammunition and special equipment must be kept and carried by police officers . In particular , according to part CARDINAL of the Instruction , it is forbidden to issue guns to those persons who do not have appropriate equipment for its safe keeping at work and at home . The superior officers are ordered “ to strengthen their supervisory role ” in the implementation of this Instruction .

The provisions of LAW and the DATE LAW of GPE regarding the responsibility of the ORG for acts or omissions by its agents are set out in GPE v. GPE ( dec . ) , no . CARDINAL , CARDINAL DATE .

The United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials were adopted on DATE by ORG on ORG and the Treatment of Offenders , which provides , inter alia :

“ CARDINAL . Rules and regulations on the use of firearms by law enforcement officials should include guidelines that :

( a ) Specify the circumstances under which law enforcement officials are authorised to carry firearms ...

( d ) Regulate the control , storage and issuing of firearms , including procedures for ensuring that law enforcement officials are accountable for the firearms and ammunition issued to them .

Governments and law enforcement agencies shall ensure that all law enforcement officials are selected by proper screening procedures , have appropriate moral , psychological and physical qualities for the effective exercise of their functions and receive continuous and thorough professional training . Their continued fitness to perform these functions should be subject to periodic review .

Governments and law enforcement agencies shall ensure that all law enforcement officials are provided with training and are tested in accordance with appropriate proficiency standards in the use of force . Those law enforcement officials who are required to carry firearms should be authorised to do so only upon completion of special training in their use . ”

The commentary to LAW ( Explanatory Memorandum of the Recommendation ( CARDINAL ) CARDINAL of ORG to member GPE on LAW ) reads inter alia as follows :

“ ... The importance of recruitment of suitable personnel to the police , as well as their training can not be underestimated ...


The applicant was born in DATE and lives in the town of GPE . He is handicapped suffering from a double above - knee amputation .

NORP In DATE the applicant acquired State commodity bonds for purchase of a NORP - made ORG passenger car .

After the ORG had failed to exchange his bonds for a car , in DATE the applicant brought a civil action against ORG of GPE . On DATE ORG of GPE ordered ORG to pay the applicant MONEY ( RUR ) .

NORP In DATE a writ of execution was submitted to ORG for a further transfer to the local bailiff office which was competent to enforce the judgment .

On DATE ORG requested the applicant to submit details of his bank account .

In reply to the applicant 's complaint about non - enforcement , on DATE ORG of ORG told him that he could collect the award from ORG . On DATE ORG informed the applicant that all questions relating to the enforcement of the judgment in his favour had to be addressed to the bailiff service .

It appears that the applicant wrote to ORG in DATE , and in DATE . He also unsuccessfully sought supervisory review of the judgment of QUANTITY DATE .

According to the Government , on DATE a certain PERSON , pretending to act on the applicant 's behalf , received the award under the judgment of DATE .

On DATE the monies due to the applicant were transferred into his bank account .