DES FOURS WALDERODE v. THE CZECH REPUBLIC

The applicant , Mr PERSON Fours Walderode , was a NORP and NORP national . He was born in DATE and died on DATE .

On DATE the applicant ’s widow , PERSON , informed the ORG that she wished to pursue the application originally lodged by her husband , who had designated her as his universal heir . She is an NORP national , born in DATE , and lives in GPE , GPE . Having regard to its practice in similar cases , the ORG accepted PERSON as the person entitled to pursue the application ( see GPE v. GPE DATE . ) , no . CARDINAL , ORG CARDINAL-XII , with further references ) .

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

PERSON , the applicant ’s stepmother , PERSON and PERSON , his stepbrothers , all NORP nationals , owned real estate in former GPE . In DATE the property owned by the applicant ’s stepbrothers and part of the property owned by the applicant ’s stepmother was confiscated pursuant to Presidential Decree no . CARDINAL/CARDINAL on LAW , NORP , NORP and Enemies of the NORP and NORP nations ( dekret presidenta republiky ze dne DATE . června DATE konfiskaci a urychleném rozdělení zemědělského majetku Němců , ORG , jakož i zrádců a nepřátel českého a slovenského národa ) , which entered into force on DATE . The remainder of the property of the applicant ’s stepmother was confiscated pursuant to Presidential Decree no . CARDINAL/CARDINAL on ORG and National Restoration Funds ( dekret presidenta republiky ze dne DATE . října CARDINAL o konfiskaci nepřátelského majetku a GPE národní obnovy ) , on DATE , on the ground that she had been a NORP and that her sons , PERSON and GPE , had served in PERSON ’s ORG troops .

PERSON , the applicant ’s father , had sold his real estate to third persons on an unknown date before the Second World War .

PERSON died on DATE . PERSON served in ORG during the Second World War and was declared to be presumed dead as from DATE by ORG ( Amtgericht ) on DATE . The applicant ’s stepmother died on CARDINAL DATE . She left her real estate to the applicant , conferring the succession rights of her deceased sons , PERSON and GPE , on the applicant . She had never acquired NORP citizenship .

The applicant left GPE in DATE , thereby forfeiting his NORP citizenship , and returned in DATE . NORP citizenship was granted him on DATE .

On DATE the applicant ’s legal representative lodged a claim for the restitution of the property confiscated from his stepmother and stepbrothers under Presidential Decree no . CARDINAL/CARDINAL and which had been sold by his father before the Second World War . He referred to LAW of DATE ( see the “ Relevant domestic law and practice ” below ) , alleging that he had inherited the property .

On DATE the GPE nad ORG ( pozemkový úřad ) dismissed the applicant ’s claim in proceedings to which CARDINAL municipalities and CARDINAL other legal persons - the owners of the property at the material time - were parties . ORG held that the applicant ’s stepmother and stepbrothers had not been loyal to the NORP State during the NORP occupation ( DATE ) and had not acquired NORP citizenship after the Second World War . It referred to the documentary evidence , including the decision of ORG národní výbor ) of CARDINAL DATE confiscating the remainder of the stepmother ’s property under Presidential Decree no . CARDINAL/CARDINAL on the ground that she had been a NORP and that her sons , PERSON and GPE , had served in PERSON ’s ORG troops .

ORG found that the property at issue had been put under national administration in DATE , that it had subsequently been confiscated pursuant to Presidential Decree no . CARDINAL/CARDINAL , and that the real estate of the applicant ’s father had been transferred to third persons before the Second World War . It concluded , with reference to section CARDINAL(CARDINAL ) of LAW DATE , that the applicant was not the owner of the property as his stepmother and stepbrothers ( the original owners of the property ) had not satisfied the requirements for restitution set out in this LAW , and that the applicant ’s claim in respect of his father ’s former property fell outside the scope of the restitution legislation .

The applicant appealed to ORG ( městský soud ) , through his counsel , against the administrative decision , alleging , inter alia , that ORG had not sufficiently established the facts of the case . He also argued that his stepmother had waived her deceased PERSON succession rights in his favour , and that neither she nor his stepbrothers had been NORP . He maintained that Presidential Decree no . CARDINAL/CARDINAL should not have been applied to his stepbrothers because at the time of its entry into force ( DATE ) his stepbrothers were dead . The applicant further claimed that , during the NORP occupation , the NORP legal system had been in force in the territory of former GPE . He claimed that under LAW of DATE , an estate passed to the heirs upon the death of a testator and that therefore CARDINAL of GPE ’s property had passed to his stepmother , DATE to PERSON and DATE to himself . In these circumstances , he had inherited CARDINAL of GPE ’s property on DATE and part of PERSON ’s property on DATE in the form of hereditas iacens ( ležící pozůstalost ; “ dormant ” inheritance ; ruhender ORG ) ( see page CARDINAL below , LAW ) . He further claimed that , as his stepmother had conferred her deceased PERSON succession rights on him , he had acquired the whole estate .

On DATE ORG , after having assessed a substantial amount of documentary evidence and having heard the parties to the dispute , upheld ORG decision . The court , refusing to grant the applicant leave to appeal , said in particular :

“ The court does not share the applicant ’s opinion that he was the owner of the property as at the time when the confiscation under Presidential Decree no . CARDINAL/CARDINAL took place , PERSON and PERSON were registered in ORG as the owners of the property .

In its legal analysis , the court considered Presidential Decree no . CARDINAL/CARDINAL on ORG , which expresses the principle of the legal continuity of the NORP legal order . The Decree provides that legal provisions enacted up to CARDINAL DATE ... constituted part of the NORP legal order ; those adopted during the NORP occupation ( DATE and DATE ) did not form part of the NORP legal order ... However , the Decree defined certain legal provisions enacted on NORP territory under the NORP occupation which could be applied during a transitional period , provided that they were not contrary to LAW ...

Act no . CARDINAL on the Applicability of Legal Regulations from DATE annulled the applicability of all legal provisions enacted during the NORP occupation ...

By LAW by NORP Citizens of NORP Nationality of DATE , NORP citizens of NORP nationality living on the territory of former GPE on DATE acquired NORP citizenship with effect from DATE ... at the latest .

In order to determine the citizenship of GPE and PERSON , regard has to be had to the President PERSON no . CARDINAL/CARDINAL on the NORP citizenship of NORP and NORP nationals , under which NORP or NORP nationals lost their NORP citizenship by acquiring NORP or NORP citizenship . NORP citizens lost their citizenship on the date when they acquired the citizenship of the foreign occupying power : NORP nationals from the frontier territories of the NORP lands and ORG ( ORG ; GPE ) on DATE , and NORP nationals from other parts of the NORP lands and ORG on DATE .

In these circumstances , it is clear that the applicant ’s stepbrothers acquired NORP citizenship on DATE at the latest ....

In DATE PERSON Fours Walderode was declared to be presumed dead as from DATE , .... His estate , which has not yet been administered , could not have been administered by the national authorities before he was declared to be presumed dead .... Presidential Decree no . CARDINAL/CARDINAL recognised exclusively the foreign occupying power ’s measures on the acquisition of NORP citizenship by NORP citizens of NORP nationality . PERSON therefore died on DATE as a NORP citizen . ...

PERSON died in GPE ( former GPE ) on DATE . Having regard to Presidential Decree no . CARDINAL/CARDINAL , he died as a NORP citizen . His estate has not yet been administered by the national authorities . ...

The applicant ’s objection that civil cases brought by NORP citizens residing in the PERSON had to be dealt with under the NORP legal order , until Act no . CARDINAL came into force , is not correct . Actually , Act no . CARDINAL/CARDINAL annulled only the applicability of those legal acts adopted during the NORP occupation which had been applicable , on a transitional basis , under Presidential Decree no . CARDINAL/CARDINAL to the extent that they had not contravened LAW ...

As PERSON lived in GPE and PERSON lived in GPE , they were , at the time of their respective deaths , subject to ORG , which was in force in the NORP lands until DATE ...

Under LAW Civil Code CARDINAL , an heir acquired an estate upon its distribution . The time of acquisition of the estate and death of a testator did not therefore fall within the same period . From the death of a testator until the time of distribution of the estate , the property was subject to hereditas iacens . Before its acquisition by an heir , property subject to hereditas iacens was considered to have been owned by the testator .... In order to assess whether the property subject to hereditas iacens was confiscated from the testator or his heirs , the stage of the inheritance proceedings concerning the property subject to hereditas iacens at the time of the confiscation is relevant ...

The property at issue was confiscated from GPE and PERSON , who were already dead , but were still the notional owners of the estate as it had not been acquired by an heir . The property in question was confiscated ex lege by Presidential Decree no . CARDINAL/CARDINAL . The court considers that the property could properly be confiscated in the period between the death of the testator and the time of acceptance of the estate by an heir .

On the basis of the aforementioned facts , ORG found , like ORG , that PERSON , PERSON and PERSON had been the original owners of the property which had been confiscated under Presidential Decree no . CARDINAL/CARDINAL . They were NORP nationals , and therefore the confiscation under Decree no . CARDINAL/CARDINAL had taken place in accordance with law , and the applicant ’s restitution claim falls to be considered under LAW DATE .

As the original owners did not reacquire NORP citizenship as provided for in section CARDINAL(CARDINAL ) of LAW DATE , the applicant can not be considered to be entitled to restitution under this provision ... As to the remainder of the real property claimed by the applicant , it had been sold by his father before the Second World War to third persons and is , therefore excluded from restitution ... ”

On DATE the applicant lodged a constitutional appeal ( ústavní stížnost ) with ORG ( GPE soud ) . He alleged , in particular , that ORG had breached LAW freedom and equality regarding dignity and rights ) , LAW non - discrimination ) , LAW ( equal treatment ) , LAW ( the right to judicial review ) and LAW ( property rights ) of LAW ( Listina základních práv a svobod ) . He also requested that section CARDINAL(CARDINAL ) of Act no . CARDINAL and section CARDINAL(CARDINAL ) of LAW DATE be repealed as unconstitutional , that section CARDINAL(CARDINAL ) of LAW and section CARDINAL(CARDINAL ) of LAW be modified , and finally that the latter be amended to apply to the restitution rights referred to in section CARDINAL(CARDINAL ) paragraphs ( o ) , ( p ) and ( r ) of LAW . He submitted , inter alia , that his stepmother had overriden her deceased sons’ succession rights in his favour and that he had been forced to leave GPE after the Second World War . He maintained that , although he had lost his NORP citizenship in DATE , it had been restored to him in DATE . Lastly , he contested ORG findings of fact and law .

On DATE ORG dismissed the applicant ’s appeal as unsubstantiated . It stated that , pursuant to Presidential Decree no . CARDINAL , legal provisions which had been enacted during the NORP occupation had not formed part of the NORP legal order , save those that had not contravened LAW . In any event , Act no . CARDINAL/CARDINAL had annulled the applicability of all legal provisions enacted during the NORP occupation on NORP territory . The applicant ’s objection that civil cases brought by NORP citizens residing in the frontier territories of former GPE had fallen within the NORP legal order until Act no . CARDINAL/CARDINAL came into force , was irrelevant as the Sudetenland had been transferred to ORG by virtue of LAW , which had later been declared null and void ex tunc . The decision stated that , according to international law , the Sudetenland had not ceased to be part of NORP territory and that all legal relations on that territory had been governed by the NORP legal order .

ORG found that , under LAW , GPE and PERSON had been subject to NORP law at the time of their deaths . According to LAW , an heir acquired the estate upon its distribution . In the present case the time of acquisition of the estate and the death of the testator did not fall within DATE . In order to transfer the estate to an heir , special ex officio proceedings before the national courts had to be instituted of the court ’s own motion . If such proceedings were not instituted , the estate was hereditas iacens until delivery of a court judgment . Heirs who wished to acquire the estate had to submit an application within the framework of those proceedings . The estate was considered as being in the possession of a testator until acquired by an heir .

ORG further held as follows :

“ ... in order to determine the persons from whom the hereditas iacens property was confiscated , it is necessary to establish at what stage of the inheritance proceedings the confiscation took place . In the present case the confiscation was carried out when PERSON and PERSON were dead ; however , the estate has not yet been administered by the national authorities ... Therefore , ... the applicant has never acquired the property at issue . ”

ORG stated that as GPE and PERSON had not been entitled to claim restitution of the property under LAW and , since PERSON was of a NORP origin and had never acquired NORP citizenship , the applicant himself could not be entitled to claim restitution pursuant to LAW .

ORG also examined whether the applicant ’s right to a fair hearing had been violated in the restitution proceedings . It found no such violation .

It held lastly that , as the applicant ’s constitutional appeal was unsubstantiated , it was not possible to deal with his application to repeal , modify or amend the statutes specified by him . ORG noted that it was not a legislative body , and was therefore not empowered to enact , modify or amend statutes .

( a ) In DATE the applicant instituted inheritance proceedings before GPE ( Amtsgericht ) in respect of the property claimed in the above restitution proceedings . On DATE ORG issued CARDINAL certificates of succession ( PERSON ) to the effect that the applicant was the universal heir of his stepbrothers .

( b ) On DATE the relevant NORP authority ( ORG für die ORG der nächsten Angehörigen PERSON ehemaligen deutschen ORG ) issued a document certifying that the applicant ’s stepbrothers had not served in the ORG troops .

( c ) The applicant was the owner of real estate in ORG . This was confiscated from him pursuant to Presidential Decree no . CARDINAL/CARDINAL on DATE . On DATE ORG ( PERSON okresního národního výboru v PERSON ) acknowledged the confiscation and granted him leave to appeal to ORG národní výbor v Praze ) .

( d ) On DATE ORG , considering the applicant ’s communication ( no . CARDINAL/CARDINAL ) concerning the ORG real estate at its CARDINAL session , held that LAW , read in conjunction with LAW , had been violated by GPE . It referred to its Views in cases FAC . CARDINAL/CARDINAL ( Simunek et al . ) , CARDINAL ( PERSON ) and CARDINAL ( Blažek et al . ) that a legal requirement of citizenship for restitution of property previously confiscated by the authorities made an arbitrary - and consequently discriminatory - distinction between individuals who were equal victims of prior State confiscation , and constituted a violation of LAW .

LAW regulates , inter alia , the restitution of certain agricultural and other property defined in LAW which was assigned or transferred to the ORG or other legal persons DATE and DATE . Section CARDINAL ) lists the acts giving rise to a restitution claim .

The persons entitled to claim restitution ( “ rightful claimants ” ) are set out in DATE . Under section CARDINAL ) , any natural person who is a citizen of the NORP and GPE and who lost property which once formed his or her agricultural homestead in the period from DATE to DATE , in CARDINAL of the ways set out in section CARDINAL ) , is entitled to claim restitution . The entitled persons are the original owners of the property or , where the original owner is dead or reported missing without trace , the owner ’s heirs or next of kin in a specified order ( section CARDINAL(CARDINAL ) ) . By section CARDINAL(CARDINAL ) restitution can be claimed by natural persons who are citizens of the NORP and GPE and are at the same time , in order of precedence , a ) testamentary heirs who acquired the whole of the estate , b ) testamentary heirs who acquired part of the estate , c ) children and spouses , d ) parents , or e ) brothers and sisters or their spouses and children .

As regards the procedure to be followed , section CARDINAL(CARDINAL ) provides that a rightful claimant must lodge his or her claim with the appropriate ORG and , at the same time , request restitution from the person or entity concerned .

This Act constitutes a lex specialis in relation to LAW .

Section CARDINAL(CARDINAL ) provides that any natural person who is a citizen of the NORP and GPE and lost his or her property under Presidential Decrees nos . CARDINAL/CARDINAL and GPE , and was loyal to the NORP State and reacquired ( NORP ) citizenship either under LAW CARDINAL , FAC and CARDINAL Act no . CARDINAL/CARDINAL , is entitled to claim restitution of any of his or her property which passed into ORG ownership in the circumstances referred to in LAW .

Section CARDINAL(CARDINAL ) provides that if such an entitled person died or was declared to be presumed dead before the time - limit set out in LAW , restitution can be claimed by natural persons who are citizens of the NORP and GPE and are at the same time , in order of precedence , a ) testamentary heirs who acquired the whole of the estate , b ) testamentary heirs who acquired part of the estate , c ) children or spouses , d ) parents , or e ) brothers or sisters or their children . Section CARDINALa provides that a person who satisfied the requirements set out in this LAW on DATE could file a restitution claim until DATE . His or her right lapsed if a claim was not lodged within this time - limit .

Under section CARDINAL(CARDINAL ) , amending section CARDINAL(CARDINAL ) of LAW , any natural person satisfying the condition of section CARDINAL(CARDINAL ) of the latter can claim restitution provided that he or she was a NORP citizen on DATE and acquired NORP citizenship either pursuant to Acts nos . CARDINAL , FAC or CARDINAL/CARDINAL , or pursuant to Presidential Decree no . CARDINAL/CARDINAL , and who did not lose NORP citizenship DATE .

Article CARDINAL provides for the concept of hereditas iacens , which exists from the time of the deceased ’s death to the time when an heir accepts the estate . The principle of hereditas iacens is that , during this period , an estate is considered to be notionally owned by the deceased .

By LAW , a person who has been declared an heir by a decision of a court of law on his or her application , and who has fulfilled his or her obligations , receives the estate , thus closing the inheritance proceedings .

The Civil Code DATE was repealed at DATE , whereupon the legal concept of hereditas iacens ceased to be valid in GPE .

The decree provides for expropriation , with immediate effect and without compensation , of agricultural property for the purposes of programmed land reform . It concerns agricultural property , including buildings and movable goods , owned by persons of NORP and NORP origin irrespective of their citizenship status .

For the purposes of the land reform , section CARDINAL(CARDINAL ) provides , with immediate effect and without compensation , that the property of the following persons shall be confiscated :

a ) persons of NORP and NORP origin irrespective of their citizenship , and

b ) traitors and enemies of the ORG .

Section CARDINAL(CARDINAL ) provides that the property of persons of NORP and NORP origin who were active in the battle for the liberation of GPE is eligible for exemption from confiscation .

Section CARDINAL(CARDINAL ) provides that decisions as to whether the property referred to in section CARDINAL(CARDINAL ) is exempt from confiscation shall be taken by ORG .

Section CARDINAL(CARDINAL ) defines persons of NORP or NORP origin as being those who , in any census after DATE , declared themselves to be of NORP or NORP origin , or who became members of national groups , formations or political parties made up of persons of NORP or NORP origin .

By DATE ( CARDINAL ) , NORP citizens of NORP or NORP origin lost their NORP citizenship on DATE when they acquired NORP or NORP citizenship pursuant to the legislation enacted by the occupying power .

Section CARDINAL(CARDINAL ) provided that other NORP citizens of NORP or NORP origin lost their NORP citizenship on DATE when the decree came into effect .

By DATE ( CARDINAL ) , the decree was not applicable to NORP and NORP who applied for registration as NORP or NORP during the NORP occupation .

By LAW , the NORP citizenship of the persons referred to in section CARDINAL of this Decree was retained , provided that they prove that they had been loyal to the NORP State and active in the battle for its liberation , or had suffered under NORP or fascist terror , and that they had not done any wrong to the NORP and NORP nations .

Section CARDINAL(CARDINAL ) provided that applications to retain NORP citizenship were to be submitted to ORG or to the appropriate embassy abroad within DATE .

Under LAW , persons who lost their NORP citizenship by virtue of LAW could claim its restoration by applying to ORG or the appropriate embassy abroad .

Persons who may be entitled to property falling under a “ dormant ” inheritance ( hereditas iacens ) can be a party to judicial or administrative proceedings .


The applicant is an NORP national , born in DATE and living in GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

The applicant was an employee of ORG whose duty was to supervise the validity of payments made to taxpayers . On DATE , the applicant authorised to pay a company its tax credit although it was not entitled to it .

On DATE , ORG at ORG summoned the applicant to appear before ORG with a view to ascertaining his liability jointly with other employees for the damages caused to the ORG .

By a decision of CARDINAL DATE , ORG ordered the seizure of the applicant ’s property .

By a judgment of DATE , ORG found the applicant liable and ordered him to pay compensation to the ORG . CARDINAL judges of that Court ( D.R. and PERSON ) had also decided in the seizure proceedings .

The applicant ’s appeal against this judgment was dismissed by ORG on DATE .

Pursuant to LAW No . CARDINAL of the code of civil procedure , on CARDINAL DATE the applicant lodged an application with ORG to recall the above - mentioned judgment of CARDINAL DATE by reasons of errors of facts ( revocazione ) . CARDINAL judges of that Court ( G. and A. ) had already participated in the appeal proceedings . The application was declared inadmissible by a decision of DATE .

Pursuant to LAW . CARDINAL , on DATE the applicant lodged a second application with ORG to recall the judgment of DATE in order to be excluded from his joint liability . By a judgment of DATE , ORG declared that application inadmissible .

Under LAW . CARDINAL of DATE and LAW the proceedings before ORG can challenge the judge where there are reasons to doubt his impartiality .

Under LAW seq . of the civil code , civil servants are responsible for damages caused to the ORG during the performance of their duties .

Under LAW No . CARDINAL of the code of civil procedure , final judgments can be recalled if they are based on errors of fact which result from the acts and documents of the case .

Under LAW of LAW . CARDINAL of DATE , final judgments can be recalled with a view to excluding a person from his joint liability .


Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr Grigore Botezat , a lawyer practising in FAC . The Government was represented by their Agent , Mr PERSON .

NORP The facts of the case may be summarised as follows .

NORP The applicant , a farmer , registered with the NORP local council a private company , set up to operate a sheep farm , which the applicant subsequently acquired . The plot of land next to the farm , of a total surface of QUANTITY , was used by GPE under the terms of a CARDINAL-year lease contract which he had signed with the local council on DATE . On DATE , the applicant agreed with ORG that he would replace the latter in the lease contract with the local council . The applicant intended to use the plot of land as a pasture for his farm .

On DATE , the local council adopted a decision annulling the lease contract of DATE and its own decision of CARDINAL DATE .

The applicant filed a court action against the local council , seeking an order obliging the latter to annul the decision adopted on CARDINAL DATE .

On DATE , ORG found in the applicant ’s favour and ordered the local council to mark the boundaries of the plot of land of QUANTITY used by the applicant under the terms of the lease contract and to refrain from any measures which could prevent the applicant from using it , and to issue the applicant with the documents necessary for carrying out the farm ’s reconstruction . The decision was upheld on appeal by ORG on DATE . Despite attempts by the applicant to obtain the enforcement of the final judgment in his favour , it has not been enforced to date .

On DATE the ORG delivered the ORG and others pilot judgment ( see ORG and Others v. GPE , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL , DATE ) in which it found , inter alia , that the problem of non - enforcement of domestic judgments awarding social housing to different categories of individuals disclosed the existence of a “ systemic problem ” . The ORG ordered , inter alia , that the respondent ORG set up an effective domestic remedy which secures adequate and sufficient redress for non - enforcement or delayed enforcement of final domestic judgments ( see ORG and others , cited above , LAW and point CARDINAL of the operative part ) .

On DATE ORG informed the ORG that on DATE a new law ( PERSON no . CARDINAL ) entered into force , instituting a remedy against the problem of non - enforcement of final domestic judgments and against the problem of unreasonable length of proceedings .

On DATE ORG informed the applicant and all other applicants in the same position of the new remedy , asking whether they intended to make use of it within the DATE time - limit set by LAW . DATE ( see paragraph CARDINAL below ) . The applicants’ attention was drawn to the fact that according to LAW , the ORG may only deal with a matter after all domestic remedies have been exhausted and that failure to observe the above rule could constitute a reason for declaring the application inadmissible .

By a letter of CARDINAL DATE the applicant informed the ORG that he intended to make use of the new remedy and that he had already initiated proceedings in accordance with PERSON no . DATE . He did not dispute the effectiveness of the new remedy .

According to PERSON no . CARDINAL anyone who considers him or herself to be a victim of a breach of the right to have a case examined or a final judgment enforced within a reasonable time is entitled to apply to a court for the acknowledgement of such a breach and compensation . Under LAW law , the provisions of the law should be interpreted and applied in accordance with the national law , the LAW and the ORG ’s case - law . LAW law states that the courts are obliged to deal with applications lodged under the law within DATE . LAW law states that if a breach of the right to have a case examined or a final judgment enforced within a reasonable time is found by a court , compensation for pecuniary damage , non - pecuniary damage and costs and expenses have to be awarded to the applicant . LAW the law simplifies the procedure of enforcement of judgments adopted under the law so as no further applications or formalities should be required from the part of the applicants . Under LAW law all individuals who have complained to ORG that their right to a trial within a reasonable time or to enforcement of a judgment within a reasonable time has been violated may claim compensation in domestic courts within DATE of the entry into force of the new law , provided that ORG has not ruled on the admissibility and merits of the complaint .

At the same time LAW was modified in such a manner as to reduce the number of instances of appeal from CARDINAL to one and to waive court fees for such proceedings .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant gave birth to a girl . She stated to the authorities that the father of the child was a NORP national living in GPE .

On DATE the ORG heard the applicant on the issue of the paternity of her child .

On DATE the ORG appointed ORG as guardian to the child for the purpose of bringing paternity proceedings on her behalf and representing her in such proceedings . The decision stated that it had been taken as the applicant had not filed a paternity action . ORG received the decision on DATE , but it did not bring paternity proceedings . On DATE the ORG admitted , in reply to the applicant ’s complaint , that ORG by its failure to file an action had delayed the case .

On DATE paternity proceedings were instituted , at the applicant ’s request , before the ORG . On DATE the applicant paid the court fee .

On DATE the ORG heard the applicant and decided to transfer the case to ORG for reasons of jurisdiction . The file was submitted to the latter court on DATE .

A hearing before ORG was held on DATE .

On DATE the case was assigned to a different judge .

On DATE ORG ordered an official translation of the relevant documents as it was necessary to seek the assistance of NORP authorities . The request for assistance was sent to the competent NORP court on DATE .

ORG received the reply from the NORP court on DATE . According to it , the defendant had denied the paternity of the applicant ’s child . He declared himself ready to undergo a DNA test . The defendant had also explained that he had been granted asylum in GPE and that he could not travel abroad .

On DATE ORG held a hearing at which the applicant maintained her claim . On DATE ORG appointed an expert in genetics . On DATE the expert informed the applicant that he had not yet made a blood analysis of her daughter as ORG had failed to pay an advance on his costs . The letter further stated that the expert had informed ORG how to obtain a blood sample from the alleged father in GPE . ORG sent the relevant request to the NORP court on DATE .

On DATE the expert informed ORG that he had not yet received the blood sample from his NORP counter - part . On DATE ORG informed the applicant that the NORP authorities had not yet obtained a blood sample from the alleged father of the child .

After having made an inquiry from the expert on DATE , ORG again requested the NORP authorities for assistance on DATE . In a reply delivered on DATE the competent NORP court informed ORG that the files relating to its request had already been sent to it . The NORP court enclosed copies of those documents to its reply . It was later established that the original mail from the NORP court had been lost prior to its delivery .

On DATE ORG scheduled a hearing for DATE . It unsuccessfully attempted to have the defendant summoned . On DATE the case was adjourned as the defendant ’s whereabouts were unknown .

On DATE ORG again requested the competent NORP court for assistance in establishing the defendant ’s whereabouts and in obtaining a blood sample from him . It further authorised the expert to proceed with the analysis of samples from the applicant and the child .

On DATE ORG received information about the new address of the defendant .

On DATE ORG again asked the NORP court for assistance in obtaining a blood sample as well as further information about the defendant ’s situation .

On DATE the expert submitted a DNA analysis of the applicant and her daughter .

On DATE ORG received a reply from the NORP court . It stated that the NORP court had heard the defendant on DATE who had agreed to an analysis of his blood . However , the defendant subsequently had not complied with repeated requests to this effect and had failed to appear for a sample to be taken from him . Under NORP law the defendant could not be obliged to submit a blood sample without his consent . According to the letter , the NORP court could take no further action in that respect . ORG obtained a translation of the above reply on DATE .

A hearing before ORG was scheduled for DATE .

On DATE the applicant complained about the length of the paternity proceedings before ORG .

On DATE ORG dismissed the complaint as being manifestly ill - founded . The decision stated that the complaint concerned the proceedings before ORG . ORG found undue delays in the proceedings DATE . However , after that period ORG had proceeded with the case in an appropriate manner . In particular , it had sent several requests to a court in GPE on DATE , DATE , DATE and on DATE . It had further ordered an expert opinion , sent a request for a blood sample to be obtained from the defendant and had the documentary evidence translated . In addition , it had encountered difficulties resulting from the loss of files abroad and the fact that summonses could not be served on the defendant .

ORG concluded that the overall length of the proceedings could not be imputed to ORG as its proceeding with the case had depended on co - operation with the NORP authorities .


The applicant was born in DATE and lives in PERSON .

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

The applicant worked as a deputy Head of ORG in PERSON . On DATE an investigation was initiated against him for unlawfully releasing CARDINAL suspects from detention on remand .

On DATE ORG discontinued the investigation , finding that the charges had been based solely on the statements of CARDINAL witnesses who had subsequently withdrawn them , declaring that they had made the statements as a result of ill - treatment by the police . Their statements were not supported by other evidence . On DATE the prosecutor informed the applicant of the decision by sending a letter to apartment no . CARDINAL , to where the applicant had recently moved . He sent a copy of his decision to the PERSON head prosecutor “ for information and control ” . However , the applicant was dismissed from his position .

The applicant initiated court proceedings seeking his reinstatement and the payment of salary arrears for the entire period of his involuntary absence from work . On DATE ORG accepted his claim . The court found that the criminal investigation against the applicant had not established his guilt and had been discontinued . It also found that the applicant had not prejudiced the proceedings against the released prisoners , one of whom was later found not to have committed any crime and the other re - arrested . His case is still pending .

On DATE the applicant was employed as an officer of ORG ) .

On DATE he was allegedly summoned by his superiors and pressured into arresting Mr ORG , the secretary of GPE . On DATE the applicant arrested PERSON .

On DATE a video recording of the applicant 's statement in connection with Mr ORG 's arrest was broadcast on television . The applicant stated that the criminal investigation against Mr ORG had been invented for political purposes and that there had been no lawful reason for initiating it ( see ORG v. GPE , no . CARDINAL , § DATE , DATE ) .

According to the applicant , on DATE the Head of ORG of ORG requested ORG to forward the criminal case file against him .

On DATE the Prosecutor General re - opened the criminal investigation , finding that its discontinuation in DATE had been unlawful because it had not been based on a proper assessment of all the circumstances , that discrepancies in the evidence had not been entirely resolved and that the alleged facts had not been shown to be true . No order was given to open an investigation against the officer who had discontinued the investigation against the applicant .

On DATE the applicant was requested to appear as a suspect before a prosecutor at ORG . The relevant letter was sent to apartment no . CARDINAL , where the applicant had not lived since DATE . On DATE a prosecutor reported that it had been impossible to serve the summons on the applicant since nobody had been at home , so it had had to be pinned to the front door . On DATE another summons was issued and on DATE a similar report was drawn up , both in respect of apartment no . CARDINAL .

On DATE the prosecutor ordered that the applicant be brought before him , by force if necessary . On DATE another report confirmed the absence of the applicant from apartment no . CARDINAL .

On DATE the prosecutor brought charges against the applicant . No mention was made of his failure to appear before him during the investigation .

On DATE ORG issued a warrant for the applicant 's arrest and detention for DATE , finding that he had been absconding from the investigation , was obstructing the establishment of the facts , could re - offend and was a wanted person .

On CARDINAL DATE the prosecutor sent the relevant documents to ORG in order to have the applicant declared a wanted person .

On CARDINAL DATE the applicant was arrested in the street and was told of the warrant for his arrest issued on DATE . On DATE he was brought before a judge who informed him of the decision of DATE . The applicant appealed , complaining that he had not been notified of the investigation and that it was therefore unjust to accuse him of absconding from it . He argued that he had a permanent residence , a job and a family with CARDINAL children to support . He had no criminal record , and had he intended either to abscond from the investigation or to interfere with it , he could have done so earlier . He also underlined that the criminal investigation against him had been discontinued in DATE . He invoked LAW and asked for his release pending trial , promising not to leave the city .

On DATE ORG rejected his appeal , finding that the lower court had “ given proper reasons for the application of the preventive measure and [ had ] not commit[ed ] any procedural violation ” .

On DATE the prosecution formulated the final charges and on DATE the case was submitted to the trial court .

According to the ORG , the trial court set the date for the first preliminary hearing for DATE . On that date the Prosecutor General designated another prosecutor to the case and the hearing was accordingly adjourned to DATE . Since this new prosecutor already had a case scheduled for that date there was another adjournment . On DATE the prosecutor asked for the case to be transferred to another court , a request which was eventually rejected by ORG on an unknown date . A new date for the preliminary hearing was set for DATE but the hearing was adjourned due to the absence of witnesses . According to the applicant , he made habeas corpus requests at each hearing but none was examined because of the adjournments , and no formal decision was ever adopted . The Government have not denied this .

On DATE the applicant made a written request for the replacement of detention by a different preventive measure . He complained that the summons had been deliberately sent to the incorrect address and that the examination of his case was being delayed without reason .

On DATE ORG rejected that request , principally because it found that the applicant had absconded from the criminal investigation . The court noted that the applicant had twice been served summonses at “ ... apartment no . CARDINAL , where , according to his personal file , he [ is ] registered ” but had not appeared before the prosecutor and could not be brought by force as he was not found at the address . The court concluded that the grounds on which the detention on remand had been ordered remained valid as the applicant could abscond or interfere with the investigation . In rejecting the habeas corpus request the court decided that “ the measure of detention on remand should be maintained ” .

On DATE the applicant made another habeas corpus request , complaining of unnecessary delays in his case . The prosecutor partly agreed and asked the court to release the applicant and to place him under house arrest because no witnesses had been heard by that stage . On DATE , ORG accepted the request and ordered the applicant 's house arrest , prohibiting him from leaving his apartment , talking to prosecution witnesses or using the telephone . Based on the annex to his identity card stating his permanent address as apartment no . CARDINAL , the court ordered the applicant 's house arrest at that address . On DATE the applicant 's house arrest was replaced by an undertaking not to leave the city .

In DATE the applicant asked the trial court to annul ORG decision of DATE to re - open the criminal investigation into his case and to discontinue the investigation . He argued that the re - opening had violated both his right not to be prosecuted twice for the same act and the principle of legal certainty , contrary to Articles CARDINAL and CARDINAL of LAW and LAW .

In its judgment of DATE ORG cited Articles CARDINAL and CARDINAL of LAW ( “ the ORG ” ) and found that :

Having examined all the evidence during the hearing , the court considers it necessary to discontinue the case due to the existence of circumstances which prevent the initiation of proceedings and the pursuance of criminal charges , namely the prohibition on repeated charges being brought against the same person for the same offence .

During the court hearing , it was established that the criminal proceedings in the case of PERSON were initiated on the basis of the criminal proceedings initiation order of CARDINAL.CARDINAL.CARDINAL(vol I / fd I ) .

According to the order of the senior investigator at ORG , PERSON , of CARDINAL , the criminal case against PERSON was dropped due to lack of constitutive elements for the offence ( vol II/CARDINAL ) .

By order of ORG dated CARDINAL , the order of CARDINAL which had discontinued the proceedings was cancelled and the criminal proceedings were resumed . The reason given was the illegality of the order which dismissed the trial , which ran counter to the evidence gathered during the investigation , the [ fact that the ] circumstances allowing such a dismissal did not exist and that the contradictions between the statements of PERSON and those of the witnesses have not been explained and that no procedures had been carried out in order to establish the identity of the persons who had inserted the information in the record registers and statistics cards ( vol II/CARDINAL ) .

The court finds that the above conclusion is contrary to the evidence in the file .

In the order of dismissal of the criminal case , dated DATE , the evidence is described in detail and analysed and a conclusion is drawn . In the order of annulment of DATE , however , there is no analysis of the circumstances and the reasons for rejecting the conclusion regarding the lack of constitutive elements of the offence . A simple statement pointing to the illegality of this procedural act can not serve as a legal ground to resume legal proceedings .

Therefore , the court reaches the conclusion that the order of dismissal of the criminal trial of DATE was determined on the basis of the evidence in the file and issued in accordance with current legislation .

Therefore , in accordance with Art CARDINAL CPP , the conditions necessary for resuming the criminal proceedings are not met ; [ this situation also gives rise to ] a case of a person being tried twice for the same offence , which excludes the resumption of the criminal investigation and the charging of PERSON .

In accordance with Art CARDINAL , Code of Penal Procedure , the court decides :

CESSATION OF PROCEDURE

The criminal proceedings are discontinued against [ the applicant ] ... owing to the existence of circumstances which exclude the initiation of criminal proceedings and the charging of a person , namely the prohibition on repeatedly charging a person with having committed the same offence . ”

This judgment was upheld by ORG on DATE . No appeal was lodged and the judgment became final .

According to the applicant , he was detained at the remand centre of ORG in inhuman and degrading conditions . In particular , there was very limited access to daylight and no exercise outside the cell ; poor quality food ; overcrowding ( CARDINAL men in a QUANTITY cell , part of which was taken up by a toilet which was not separated from the rest of the cell ) ; heat and humidity ; irregular artificial ventilation for short periods despite the fact that the other detainees were smoking in the cell , which created breathing problems for the applicant ; a lack of any kind of bedding ; and access to a shower only once a week . He was not allowed to receive any visits from his wife and was placed in a cell with convicted criminals even though he was a former criminal investigator ( see paragraph CARDINAL below ) . He submitted a video recording of an interview with CARDINAL of the persons with whom he had shared the cell . In that recording the person interviewed confirmed the description given above of the conditions of detention . The Government have not commented on this interview .

The applicant claimed that his health had seriously deteriorated , that he suffered from headaches while in detention and that the medical treatment given to him was not effective . He was refused a specialist medical examination to determine what was wrong with him and how best to treat him .

According to the ORG , the applicant was held in CARDINAL different cells in which each detainee had CARDINAL of space . CARDINAL of the cells in which the applicant was detained ( no . CARDINAL ) measured CARDINAL.CARDINALmCARDINAL and the applicant shared it with CARDINAL others ( including DATE and G.A. ) . There was sufficient ventilation and access to daylight , unlimited access to tap water and the toilet was separated from the rest of the cell by a lateral partition . The food was of adequate quantity and quality and was cooked by staff at a university , as confirmed by the relevant receipts . Moreover , the applicant was allowed to receive bedding from his wife . The applicant 's detention was short and in DATE he was transferred to another remand centre .

In order to show the changes in the conditions of detention in GPE prisons , the Government referred to several documents concerning programmes designed to improve the conditions of detention in GPE prisons ( see paragraph CARDINAL below ) .

In the ORG 's opinion , the applicant was given sufficient medical assistance , as demonstrated by his personal medical file submitted to ORG . All his requests were properly registered and he had been seen by a variety of specialists who recommended treatment , which he had received . In particular , the applicant was subjected to an in - depth ( NMR ) analysis which had not revealed any change in his earlier , satisfactory , state of health . Moreover , the applicant refused to submit the results of his pre - detention medical examinations which meant that there was no medical basis for an additional ORG scan , as confirmed by the prison doctors . The applicant had not been detained along with previously convicted persons , as proved by a letter from the Minister of ORG .

The relevant findings of the ORG read as follows :

“ CARDINAL . ... It appears from the findings of the ORG delegation that in DATE the practice of detaining suspects for prolonged periods – sometimes DATE in EDPs is still largely followed . Yet the visit has confirmed that EDPs of ORG will never be able to offer suitable detention conditions adapted to the needs of persons remanded in custody for prolonged periods .

Conditions of detention .

a. Institutions of ORG

Since DATE , when it first visited GPE , the ORG has had serious concern about the conditions of detention in the institutions of ORG .

Whether CARDINAL refers to the police stations or EDPs visited , the material conditions are invariably subject to the same criticism as in the past . Detention cells had no access to daylight or a very limited such access ; artificial light – with rare exceptions – was mediocre . Nowhere did persons obliged to spend TIME in detention receive mattresses and blankets , even those detained for prolonged periods . Those who had such items could only have obtained them from their relatives ...

In sum , the material conditions remain problematic in the police stations ; they remain disastrous in EDPs , continuing in many respects to amount , for the detainees , to inhuman and degrading treatment . ”

The relevant provisions of the ORG standards ( ORG ( DATE ) DATE ) read as follows :

“ The duty of care which is owed by the police to persons in their custody includes the responsibility to ensure their safety and physical integrity . It follows that the proper monitoring of custody areas is an integral component of the duty of care assumed by the police . Appropriate steps must be taken to ensure that persons in police custody are always in a position to readily enter into contact with custodial staff . ”

The relevant domestic law has been set out in this ORG 's judgment in the case of ORG v. GPE ( cited above , § CARDINAL et seq . ) . In addition , the following provisions are relevant to the present case :

The relevant provisions of the LAW provide :

“ DATE .

( CARDINAL ) Constitutional provisions for human rights and freedoms shall be understood and implemented in accordance with LAW , and with other conventions and treaties endorsed by GPE .

( CARDINAL ) Wherever disagreements appear between conventions and treaties signed by GPE and her own national laws , priority shall be given to international regulations .

Article CARDINAL

( CARDINAL ) Detention takes place on the basis of a warrant issued by a judge for a maximum period of DATE . The lawfulness of the warrant may be appealed , in accordance with the law , to a hierarchically superior court . The period of detention may be subject to extensions only by a court , in accordance with the law , up to a total of DATE . ”

The relevant provisions of LAW provide :

“ Article CARDINAL

( CARDINAL ) No one shall be prosecuted by the investigating authorities , convicted or sentenced by a court several times for the same deed .

... ( CARDINAL ) The decision of the investigating authority to drop the charges ( scoaterea persoanei de sub urmărire penală ) or to discontinue the criminal investigation ( încetarea urmăririi penale ) ... shall prevent the re - opening of the investigation ... , except when new or recently discovered circumstances are discovered or a fundamental flaw in the previous investigation affected that decision .

Article CARDINAL

( CARDINAL ) The re - opening of an investigation after its discontinuation , the dismissal of the investigation ( clasarea cauzei penale ) or the dropping of charges is ordered by the hierarchically superior prosecutor by means of a decision , if it is thereafter discovered that there was no reason for taking the measure or that the circumstance which had led to the discontinuation of the investigation , its dismissal or the dropping of the charges has disappeared .

... ( CARDINAL ) Where a decision to discontinue the investigation , to dismiss it or to drop the charges was adopted lawfully , the investigation can only be re - opened if new or recently discovered circumstances are revealed or if the decision was affected by a fundamental flaw in the previous investigation . Where a fundamental flaw in the investigation is discovered , the criminal prosecution can be re - opened not later than one year following the entry into force of the order discontinuing the criminal investigation , dismissing the criminal case or dropping the criminal charges . ”

The relevant provisions of the LAW no.CARDINAL-XIII on Pre - trial Detention , in force at the time , provide :

“ Article CARDINAL

( CARDINAL ) In placing the accused in cells the following requirements shall be observed :

CARDINAL ) NORP The following shall be detained separately from other detainees :

... ( f ) persons who before their arrest worked for the public authorities , including the courts , the prosecution service , internal affairs , national security ; ... ” .

On DATE the ORG adopted decision no . CARDINAL regarding the National Plan of Action in the Sphere of Human Rights for DATE . The plan includes a number of objectives for DATE aimed at improving the conditions of detention , including the reduction of overcrowding , improvement of medical treatment , involvement in work and reintegration of detainees , as well as the training of personnel . Regular reports are to be drawn up on the implementation of the Plan .


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

On DATE the applicant was arrested by the police and brought before ORG ( Prokurator Rejonowy ) . On DATE , the prosecutor charged the applicant with robbery and detained him on remand because there existed a reasonable suspicion that he had committed the offence and because of the serious nature of that offence .

On DATE the applicant sent a letter to the LOC prosecutor , asking to be informed of the reasons for his detention . That letter was deemed to be an application for release . It was examined as such and rejected on DATE .

On DATE the applicant was indicted on the charge of robbery .

On DATE the ORG convicted the applicant as charged and sentenced him to DATE and DATE imprisonment and DATE deprivation of his civic rights .

NORP The relevant domestic law is described in the judgment PERSON v. GPE , no . CARDINAL , § § DATE and DATE , DATE , unreported .


Anatoly Kovler;Christos Rozakis;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

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

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

The applicant is a farmer . On an unspecified date ORG sued him in order to recover a debt under a loan agreement .

On DATE ORG of GPE ( “ the ORG ” ) ruled against the plaintiff and in the applicant 's favour . The judgment could be appealed against within DATE from the date of its delivery . However , no appeal was lodged within this time - limit by ORG .

On DATE ORG , however , granted the plaintiff 's request for the extension of the time - limit for lodging an appeal and scheduled the appeal hearing for DATE .

On DATE ORG of ORG adjourned the examination of the case . It noted that the applicant did not appear and that he had been duly informed of the hearing by a letter of CARDINAL DATE .

On DATE ORG of ORG , after having noted that the applicant had been duly informed of the hearing and had failed to appear , granted the appeal by ORG and recovered from the applicant the amount of the loan and legal costs . That decision acquired legal force on DATE . It also stated that an appeal could be lodged against it to ORG of ORG within DATE .

On DATE ORG issued a writ of execution .

On DATE a bailiff instituted enforcement proceedings .

According to the applicant , he learnt that the appeal had been lodged and that an appeal hearing had taken place in DATE from the bailiff 's decision of DATE to institute the enforcement proceedings . He did not indicate the exact date when he had received that decision .

On DATE the bailiff summoned him to his office .

The applicant alleged that he had been notified neither of the appeal having been lodged , nor of the date of the appeal hearing . He had not been provided with a copy of the appeal decision either . The applicant did not apply for leave to lodge a cassation appeal out of time .

The applicant submitted that he had informed ORG of GPE that he intended to apply to the ORG and needed to make copies of certain documents from the case file for this purpose . He alleged , that when he had arrived at ORG of GPE he had not been allowed to enter .

The Code of Commercial Procedure of GPE of DATE provides , in its relevant parts as follows :

Parties to the proceedings may appeal against the decisions of ORG of ORG to ORG of ORG ( Article CARDINAL ) .

A cassation appeal may be lodged within DATE from the date of the entry into force of the contested decision . At a request by a party to the proceedings , ORG of ORG may extend the time - limit for lodging a cassation appeal if such a request is lodged within DATE from the date of entry into force of the contested decision and if the court finds that the time - limit has not been met for valid reasons ( Article CARDINAL ) .

ORG verifies the lawfulness of decisions and judgments adopted by ORG , by establishing whether substantive and procedural law has been applied properly during the examination of the case and by having regard to the arguments of cassation appeal ( Article CARDINAL ) .

After having examined the cassation appeal , ORG of ORG may quash the contested decision and remit the case to the court which adopted that decision for a new examination in the case of that court having violated procedural laws ( LAW .

The examination of the case in the absence of a party to the proceedings who was not duly informed of the hearing is a ground for ORG of ORG to quash the contested decision ( Article CARDINAL ) .


Reminder inadmissible;Violation of Art. 5-1;Violation of Art. 6-1;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in LOC .

At DATE the applicant complained to her doctor PERSON about the neighbours , who had allegedly subjected her to electromagnetic emissions , attempted to contaminate her with HIV , created noises and draughts and tortured her in a multitude of other ways . She threatened to pour acid on them .

On DATE the applicant was examined by a medical panel comprising CARDINAL psychiatrists and CARDINAL general practitioners affiliated with ORG . The panel concluded that the applicant suffered from a paranoid personality disorder and was hallucinatory and aggressive . She was therefore dangerous to the public and to herself . The doctors also found that the applicant suffered from hypertension .

On DATE she was taken to the Kaliningrad Regional psychiatric hospital No . CARDINAL ( hereinafter “ the hospital ” ) .

On DATE the applicant was examined by the hospital psychiatrists , who diagnosed her with involutional paranoid psychosis and concluded that she needed compulsory treatment .

On DATE the hospital applied to a court for approval of the applicant ’s confinement .

On DATE the Leningradskiy District Court of FAC ordered that the applicant should provisionally remain in the hospital until the application was examined . The hearing was scheduled for DATE .

On DATE the hearing did not go ahead . The record indicated that the applicant was unable to appoint a representative owing to her grave mental state .

On DATE the applicant consented to medical treatment . She remained in the hospital until DATE .

On DATE the court proceedings were discontinued as the hospital had withdrawn its application .

After her discharge , the applicant complained to the prosecutor ’s office about her allegedly unlawful confinement .

NORP By letter of DATE , the Head of ORG of the Kaliningrad Regional prosecutor ’s office acknowledged that from DATE she had been unlawfully held in the hospital without a judicial decision and advised her that measures would be taken to remedy the situation .

On DATE the ORG informed the prosecutor ’s office that it would take measures to avoid similar violations in future and undertook to observe the time - limits for examining applications from hospitals .

In the meanwhile on DATE the applicant sued doctor PERSON and the hospital in tort . She contested the findings of the medical panels of CARDINAL and CARDINAL DATE , claiming that she had not suffered from any mental disorder and that it had not been necessary to confine her . She further argued that her detention had been unlawful as it had not been based on a court order . She sought compensation in respect of non - pecuniary damage . In reply , the hospital ’s representative argued that the medical findings in the applicant ’s case had been correct and her confinement lawful . He asked the court to reject the applicant ’s claims in full .

On DATE the NORP ORG of FAC found that there had been no reason to question the findings of the medical panels and that the applicant ’s detention had been lawful .

On DATE ORG quashed the judgment and remitted the case . It held that the first - instance court had omitted to address the applicant ’s criticism of the findings of the medical panels of CARDINAL DATE and had failed to verify whether her confinement had been justified by her mental condition .

On DATE the ORG found that expert advice was necessary to assess the applicant ’s mental condition in DATE . It commissioned the hospital ’s medical specialists to perform a psychiatric examination on the applicant . The experts were asked to determine whether the findings of the medical panels of CARDINAL and CARDINAL DATE had been correct and whether the applicant ’s state of mental health in DATE had warranted compulsory psychiatric treatment .

On DATE the experts examined the applicant ’s medical file , in particular the reports of CARDINAL and CARDINAL DATE , and concluded that the medical findings contained in those reports had been correct and that the applicant ’s involuntary placement into the hospital had been justified , taking into account her serious mental condition in DATE .

The applicant challenged the experts’ report . She claimed that the experts were biased because they were employees of the hospital and asked the court to dismiss the report .

On DATE the ORG dismissed the applicant ’s claim . In particular , with reference to the medical reports of CARDINAL and CARDINAL DATE and DATE , it held that the applicant ’s placement in the hospital had been necessary because she had been a danger to the public and to herself . The court held that the expert report of DATE was admissible evidence because the experts had been informed that they would be criminally liable for perjury . Moreover , the panel of CARDINAL DATE had not included the psychiatrists who had examined the applicant on DATE .

As to the lawfulness of the applicant ’s detention from DATE , the court found as follows :

“ ... in accordance with section CARDINAL(CARDINAL ) of the [ Psychiatric Treatment Act ] a judge ordered that [ the applicant ] should remain in the hospital until the decision [ on the hospital ’s application for her confinement ] had been taken . The hospital ’s application was not examined within DATE as required by section GPE ) of the Act because , owing to her mental state , [ the applicant ] could not participate in the hearing or name her representative , whose presence was mandatory under section CARDINAL ) of the Act ...

Since the judicial decision committing [ the applicant ] to the hospital was not set aside or amended , and the hospital had no right to discharge [ the applicant ] in defiance of the order , the court considers that in those circumstances the hospital was not responsible for [ the applicant ’s ] involuntary confinement until DATE . ”

The applicant appealed . In her grounds of appeal she complained , in particular , that the experts who had produced the report of DATE had been partial .

On DATE ORG upheld the judgment , finding that it had been lawful and justified . As to the experts , it held that the judgment had not been based solely on the report of DATE , but was corroborated by other evidence .

Psychiatric medical care in GPE is governed by ORG of Citizens’ Rights , enacted on DATE ( “ LAW ” ) .

An individual suffering from a mental disorder may be taken to a psychiatric hospital against his will or the will of his legal representative and without a court decision having been taken if the individual ’s examination or treatment may only be carried out by in - patient care , and the mental disorder is severe enough to give rise to ( a ) a direct danger to that individual or to others , or ( b ) the individual ’s helplessness , that is , an inability to take care of himself , or ( c ) a significant impairment in health as a result of a deteriorating mental condition , if the affected individual were to be left without psychiatric care ( section CARDINAL ) .

A person placed in a psychiatric hospital on the grounds listed in section CARDINAL shall be subject to compulsory examination within TIME by a panel of psychiatrists of the hospital . The panel is required to take a decision as to the necessity of confinement . If no reasons for confinement are established and the individual expresses no intention of remaining in the hospital , he must be released immediately . If confinement is considered necessary , a representative of the hospital where the person is held is required to file , within TIME , an application for compulsory confinement with a court having territorial jurisdiction over the hospital . The application must contain the grounds for involuntary confinement and must be accompanied by a reasoned conclusion of a panel of psychiatrists as to the necessity of the person ’s in - patient treatment in a psychiatric hospital . A judge who receives the application for a review must immediately order the person ’s detention in a psychiatric hospital for the term necessary for its examination ( sections CARDINAL and DATE ) .

The judge is required to examine the application within DATE of its receipt . The individual concerned has the right to participate in the hearing . If , according to the information provided by a representative of the psychiatric hospital , the individual ’s mental state does not allow him to take part in the hearing , the application must be examined by the judge on the hospital LOC . The presence at the hearing of a public prosecutor , a representative of the psychiatric institution requesting confinement , and a representative of the individual concerned is mandatory ( section CARDINAL ) . LAW does not contain any specific provisions for the appointment of a representative for the individual concerned .

After examination of the application on the merits , the judge must either allow or dismiss it . The judge ’s decision is subject to appeal within DATE by the person placed in the psychiatric hospital , his representative , the head of the psychiatric hospital , or by an organisation entitled by virtue of law or by its charter to protect ORG rights , or by a public prosecutor . The appeal shall be made in accordance with the rules established in LAW ) .

ORG of unlawful actions by medical staff may be made to a court , a supervising authority or a public prosecutor ( section CARDINAL ) .

The use of expert evidence in court is governed by ORG ( “ the LAW ” ) enacted on DATE . It establishes that a forensic expert must be independent from the court , the parties to the proceedings and other interested parties ( section CARDINAL ) .


Violation of Art. 6-1 as regards the length of the proceedings;Violation of Art. 6-1 as regards independence and impartiality;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient (as regards independence and impartiality);Non-pecuniary damage - financial award (as regards length);Costs and expenses partial award

On DATE police officers from ORG arrested the applicant on suspicion of membership of an illegal organisation , the Dev - Yol ( NORP Way ) .

On DATE the Ankara Martial - Law Court ( sıkıyönetim mahkemesi ) remanded the applicant in custody .

On DATE the military public prosecutor filed a bill of indictment with ORG against the applicant and CARDINAL other defendants . The public prosecutor accused the applicant of membership of an illegal armed organisation , namely the Dev - Yol , whose object was to undermine the constitutional order and replace it with a NORP - Leninist regime . He further charged the applicant with having been involved in a number of crimes such as acting as an armed look - out for the killers of several individuals , a bomb attack on a coffee house and opening fire on a house .

The prosecution sought the death penalty under LAW of LAW .

In a judgment of DATE ORG , composed of CARDINAL civilian judges , CARDINAL military judges and an army officer , found the applicant guilty as charged , sentenced him to life imprisonment ( in effect DATE assuming good conduct ) for offences under LAW and permanently debarred him from employment in the civil service . It took from DATE until DATE for the reasons for the judgment to be set down in writing .

NORP The applicant lodged an appeal with ORG ( askeri yargıtay ) .

On DATE ORG ordered the applicant ’s release pending trial .

Following promulgation of the PERSON of DATE , which abolished the jurisdiction of the martial - law courts , ORG ( yargıtay ) acquired jurisdiction over the case and the file was transmitted to it .

On DATE ORG upheld the applicant ’s conviction .

Article CARDINAL § CARDINAL of LAW provides :

“ Whosoever shall attempt to alter or amend in whole or in part LAW or to effect a coup ORG formed under LAW or to prevent it by force from carrying out its functions shall be liable to the death penalty . ”

The provisions governing judicial organisation are worded as follows :

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , officer or other person may give orders or instructions to courts or judges in the exercise of their judicial powers , nor send them circulars or make recommendations or suggestions to them . ”

“ Judges ... shall not be removed from office or compelled to retire without their consent before the age prescribed by LAW ... ”

“ ... Martial - law courts shall be responsible for dealing with offences under special laws committed by civilians against military personnel and offences committed against military personnel in the course of their duties or on scheduled LOC .

The offences and persons falling within the jurisdiction of the martial - law courts in time of war or under martial law , the composition of martial - law courts and the appointment , where necessary , of judges and prosecutors from the ordinary courts to martial - law courts shall be regulated by law .

The personal rights and obligations of military judges ... shall be regulated by law in accordance with the principles of the independence of the courts , the safeguards enjoyed by the judiciary and the requirements of military service . Relations between military judges and the commanders under whom they serve as regards their non - judicial duties shall also be regulated by law . ”

“ ORG shall convene a sufficient number of martial - law courts in areas where martial law applies ... ”

“ ORG advisers , military judges and military prosecutors attached to the martial - law courts are appointed , with the agreement of ORG , from among the candidates nominated by a committee composed of the personnel director and the legal adviser to ORG , the personnel director and the legal adviser to the army corps to which the judge in question belongs and finally the head of ORG at ORG . ”

“ The army officers serving on martial - law courts are appointed , on the proposal of the Chief of Staff , according to the procedure for appointing military judges ... ”

“ The officers serving on the martial - law courts and their substitutes shall be appointed , in DATE , by the commander or the superior of the military establishment within which a martial - law court is formed , from among the officers of that establishment . The officers thus appointed are irremovable for DATE . ”

“ ... The aptitude of military judges for promotion or advancement in salary step , rank or seniority shall be determined on the basis of assessment reports .

( a ) There are CARDINAL types of assessment report , namely the assessment report for generals , the assessment report for officers ( sub - lieutenant – colonel ) and the professional assessment report .

( b ) The superiors in the hierarchy competent to carry out assessment and draw up assessment reports for officers are the following :

First superior in the hierarchy : the commander or superior of the military establishment to which the judge in question belongs and in which a martial - law court is formed .

Second superior in the hierarchy : the commander or the superior immediately above the first superior in the hierarchy .

Third superior in the hierarchy : the commander or the superior immediately above the second superior in the hierarchy ... ”

“ The Minister of Defence may apply to military judges , after hearing their defence submissions , the following disciplinary sanctions :

( a ) a warning ... in writing ...

( b ) a reprimand ... ”


Violation of Article 6 - Right to a fair trial

Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and lives in GPE .

On DATE , the applicant was taken into police custody in GPE on suspicion of aiding and abetting an illegal organisation , namely the ORG ( ORG Party ) . During his police custody , the applicant signed a form explaining arrested persons ' rights , whereby he was reminded of his right to remain silent . On DATE the police officers interrogated the applicant at the Anti - Terrorism department of ORG , in the absence of a lawyer . The applicant admitted that he had aided and abetted the ORG and acted as courier for the organisation . Another accused , GPE was also arrested in the course of the operation . In his police statement , GPE stated that he was a member of the ORG and that he had stayed at the applicant 's house when he had come to GPE and maintained that the applicant had acted as a ORG courier and helped him in certain illegal activities .

On DATE the applicant was questioned by the public prosecutor and he denied that he had been involved in the ORG . He also claimed that he had signed his police statement without reading it .

On DATE , the applicant was brought before the investigating judge , who questioned him and CARDINAL other suspects in relation to their involvement in the ORG . The applicant 's lawyer was also present during the questioning . In his statement to the investigating judge , the applicant denied all the charges against him . After the interrogation , the applicant was placed in pre - trial detention on the order of the judge .

In an indictment dated DATE , ORG at ORG charged the applicant and CARDINAL others with aiding and abetting an illegal organisation . The charges were brought under LAW and LAW no . ORG ( the anti - terrorist law ) .

During the trial , the applicant denied any connection with the ORG . Furthermore GPE , CARDINAL of the co - defendants , admitted to being a ORG member before the court , but stated that although he had stayed at the applicant 's house when he had come to GPE , the applicant did not know that he was a ORG member . In this connection , GPE rejected his police statement , alleging that it had been taken under duress . On DATE ORG convicted the applicant as charged and sentenced him to DATE and DATE imprisonment . In convicting the applicant , ORG relied on the applicant 's police statement , which had been taken in the absence of a lawyer . The court further took into consideration the police statement of GPE who had given evidence that the applicant had been involved in the activities of the ORG . It therefore concluded that the applicant 's police statement , in which he had admitted to his involvement in the ORG , had been confirmed by other evidence in the case file .

On DATE ORG dismissed the applicant 's appeal .


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

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

On DATE the first applicant , PERSON , filed an action with ORG of GPE against a ORG - run enterprise , her employer , claiming unpaid salary and damages . Several hearings were held in DATE and DATE .

On DATE the court allowed the applicant 's claims in part .

On DATE the ORG quashed the judgment on the applicant 's appeal .

On DATE the ORG found for the applicant in part . The applicant did not appeal and the judgment came into force .

On DATE the second applicant , PERSON , an investigator , brought an action with ORG against the police , his employer , claiming his DATE salary , allegedly due to him for the period from DATE to DATE , and damages in this respect .

On DATE the court allowed the claims in part .

On DATE the ORG quashed the judgment on the applicant 's appeal and remitted the case to the first instance .

On DATE , as a result of a new examination of the case , the district court allowed the applicant 's claims in part .

On DATE the regional court quashed the judgment on the applicant 's appeal and remitted the case to the first instance .

On DATE the district court found for the applicant in part . On an unspecified date this judgment was upheld by the appeal court .

On DATE the applicant was dismissed . On DATE he filed an action with ORG against the police claiming reinstatement in his post of investigator and damages . According to the applicant , the case file was lost when being sent from the Chukotka ORG , which considered the applicant 's complaint , to the district court .

On DATE the district court received the applicant 's new action , which was identical to the first one .

On DATE the district court found for the applicant and ordered his reinstatement .

On DATE the regional court quashed the judgment on the defendant 's appeal and remitted the case to the first instance .

On DATE the case was transferred for examination to ORG of the Chukotka Region .

As of DATE the proceedings in the case were still pending .

Under LAW of DATE as well as LAW ( LAW ) , which came into force on DATE , the police investigator is responsible for the institution of criminal proceedings and investigation of crimes , and takes decisions during the investigation phase .


Violation of Article 6 - Right to a fair trial;Violation of Article 1 of Protocol No. 1 - Protection of property

The applicant was born in DATE and lives in GPE , a town in LOC .

The applicant brought CARDINAL civil actions against ORG seeking to liquidate NORP commodity bonds and saving certiﬁcates .

On DATE the ORG awarded the applicant MONEY ( “ RUB ” ) . This judgment became binding on DATE , but was not enforced .

On DATE the town court awarded the applicant RUB CARDINAL . This judgment became binding on DATE , and was enforced on DATE .

On DATE the town court awarded the applicant RUB ORG . This judgment became binding on DATE . On DATE it was quashed in supervisory - review proceedings . Nevertheless , on DATE the sum due was by mistake paid to the applicant . ORG sought to recover the mistakenly paid sum , but on DATE ORG decided that the applicant could keep the money as compensation for the judgment ’s lengthy non - enforcement .

Under LAW of DATE , a bailiff must enforce a judgment within DATE . Under section QUANTITY of LAW of DATE , ORG must enforce a judgment within DATE .


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

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant was seriously injured in an explosion caused by a bomb placed in a house located in the municipality of Aracinovo ( “ the municipality ” ) . The incident happened after the DATE armed conflict in the former GPE .

On DATE and DATE respectively the applicant , represented by counsel , brought CARDINAL separate actions seeking compensation from the municipality and the ORG . They were subsequently joined .

On DATE ORG ( “ the first - instance court ” ) accepted the applicant 's claim in respect of the ORG and ordered the latter to pay MONEY ( ORG ) ( CARDINAL ) in respect of non - pecuniary damage , plus interest . It relied on section CARDINAL of LAW ( see paragraph CARDINAL below ) , stating that it had been in force at the time of the incident and that it was still in force . It dismissed the claim in respect of the municipality , stating that it was not liable to be sued ( поради немање на пасивна легитимација ) . It found that section CARDINAL of the amended LAW ( see paragraph CARDINAL below ) , under which it falls to local self - government units rather than the ORG to pay compensation for any damage caused by acts of violence , had been set aside by ORG decision of CARDINAL DATE . The court declared the ORG liable to pay compensation for the damage , because the applicant was the victim of a clear act of violence and no investigation had been carried out by ORG authorities . This decision was served on the applicant on DATE .

The ORG appealed arguing that ORG decision had not been retroactive and that the ORG accordingly , could not be held liable to be sued . The appeal was received by the first - instance court on DATE and communicated to the applicant on DATE . The applicant did not submit any observations in reply .

On DATE ORG allowed the appeal and overturned the lower court 's decision in part related to the ORG . It confirmed the remainder , because no appeal had been lodged in that respect . The court endorsed the facts established by the first - instance court but held that the substantive law had been incorrectly applied . It found that section CARDINAL of the amended LAW had already entered into force at the time of the incident and applied in the applicant 's case given the non - retroactive legal effect of ORG decision . This decision was served on the applicant on DATE .

On DATE the applicant asked the public prosecutor to institute legality review proceedings ( барање за заштита на законитоста ) before ORG . He argued that both courts had accepted that he had sustained a bodily injury as a result of acts of violence or terrorism . However , no compensation had been awarded owing to the contradictory decisions of the first and second - instance courts as to who had been the proper defendant to his action .

On DATE the public prosecutor informed the applicant that there were no grounds for lodging such a request against ORG decision .

Section CARDINAL ( CARDINAL ) of LAW of DATE provided for the ORG 's responsibility for any damage caused , inter alia , by a bodily injury sustained as a result of acts of violence or terrorism .

On DATE LAW was amended . Under section CARDINAL of the amended LAW , the term “ the ORG ” was replaced with “ the local self - government units where damage occurred ” .

Under section CARDINAL of LAW ( “ the LAW ” ) , as valid at the time , parties can appeal the first - instance decision within DATE of the date of service of this latter decision .

LAW ( CARDINAL ) prescribes the following as a substantial procedural flaw : if the impugned decision contains deficiencies which makes its review impossible , in particular if it is illegible , contradictory , lacks reasoning or does not provide reasons for the relevant findings of fact or if they are unclear or contradictory .

Under section CARDINAL of the Act , the second - instance court examines the first - instance court 's decision in the challenged part . Section CARDINAL § CARDINAL provides that ORG examines the first - instance court 's decision on the basis of the grounds set out in the appeal and having regard to its ex officio capacity to consider any substantial procedural flaw and the correct application of the law .

ORG rejected ( укинува ) section CARDINAL of the amended LAW as unconstitutional . It found that it was the ORG 's responsibility to protect citizens from acts of violence and , accordingly , to cover any damage thereof .