Preliminary objection rejected (res iudicata);Violation of Art. 5-1 (placement in private clinic from 1977 to 1979);No separate issue under Art. 5-4 and 5-5;No violation of Art. 5 (stay in private clinic in 1981);Violation of Art. 8 (placement in private clinic from 1977 to 1979);No violation of Art. 8 (stay in private clinic in 1981 and treatment in university clinic);No 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 on DATE and lives in PERSON ( GPE ) .

The case concerns the applicant ’s repeated placement in a psychiatric institution , her stay in a hospital , her medical treatment and her various compensation claims .

NORP The applicant is currently PERCENT disabled and receives an invalidity pension . She claims to be constantly suffering from significant pain , especially in her arms and legs and her vertebral column . She has spent DATE of her life in different psychiatric institutions and other hospitals .

From DATE to DATE ( at which time the applicant was DATE ) , and from DATE to DATE ( when she was DATE ) , the applicant was placed in the children and young people ’s psychiatric department at GPE am ORG for DATE at her father ’s request .

From DATE ( when she was DATE ) to DATE , she was placed in a locked ward ( geschlossene Station ) at a private psychiatric institution , the clinic of PERSON in GPE , at her father ’s request . There had been serious conflicts between the applicant and her parents , following which her father believed her to be suffering from a psychosis . The applicant ’s mother had suffered from a paranoid - hallucinatory psychosis .

The applicant – who by that time had attained the age of majority – had not been placed under guardianship , had never signed a declaration that she had consented to her placement in the institution , and there had been no judicial decision authorising her detention in a psychiatric hospital . The private clinic of PERSON was not entitled to detain patients who were to be kept in accordance with LAW on the detention of mentally insane persons , mentally deficient persons and drug addicts ( see paragraphs CARDINAL below ) . On DATE the police brought the applicant back to the clinic by force after she had attempted to escape .

During her forced stay at that clinic , the applicant was unable to maintain regular social contact with persons outside the clinic . When she was DATE , she had fallen ill with poliomyelitis , and following her medical treatment at the clinic she developed post - poliomyelitis syndrome .

From DATE to CARDINAL DATE , the applicant was placed in a psychiatric hospital in PERSON . She claimed that she had by chance been saved from having to stay there any longer by a patient in the hospital who had given her accommodation .

From DATE to DATE , she again received medical treatment at PERSON clinic , having at that time lost her ability to speak and , according to the doctors , showing signs of autism .

On DATE the applicant received medical treatment at Dr PERSON PERSON ’s clinic for neurology and psychiatry .

From DATE to CARDINAL DATE , the applicant received medical treatment ( stationäre PERSON ) at ORG , a public - law institution , where she regained her ability to speak .

From DATE to DATE , the applicant was treated in the orthopaedic department of a clinic in GPE am GPE and , from DATE , she was treated in the orthopaedic department of a clinic in GPE .

On DATE PERSON , a professor of paedopsychiatry at ORG and a member of the federal government ’s investigating committee , prepared an expert report at the applicant ’s request . He indicated that the applicant had “ at no point in time suffered from a schizophrenia - type psychosis ” ( “ zu keinem GPE lag eine PERSON dem schizophrenen GPE ” ) and that her intemperate behaviour had resulted from conflicts with her family .

On DATE Dr Köttgen , a psychiatrist , submitted a second expert opinion , again at the applicant ’s request . Confirming the findings of Dr Lempp , she considered that the applicant had never suffered from an early onset of schizophrenia , but that she had been in the midst of a puberty - related identity crisis ( PERSON ) at the relevant time . Because of the wrong diagnosis given at that time , she had for DATE received medication already known to have adverse side effects . As the applicant had had poliomyelitis , she would have had to be treated with the utmost caution . In that connection , the situation at PERSON clinic seemed to have been particularly serious : deprivation of liberty without a judicial decision , absence of a legal basis for the detention , excessive dosage of medication in order to question the applicant , and methods belonging to “ black pedagogy ” ( PERSON ) .

On DATE the applicant , on the basis of the expert report by PERSON , lodged an application for legal aid and an action for damages against PERSON clinic in ORG . She claimed , firstly , that her detention from DATE to CARDINAL DATE and from DATE to DATE had been illegal under NORP law . Furthermore , the medical treatment she had received had been contraindicated because of her poliomyelitis . She argued that her forcible detention and the medical treatment she had received had ruined both her physical and mental health .

It was only at that time , on DATE , that the applicant was given access to her medical file from PERSON clinic , despite her previous and repeated requests .

On DATE ORG , after a hearing , allowed the applicant ’s action for damages , as her detention had been illegal under NORP law .

ORG found that the applicant , who had attained the age of majority , had not been placed under guardianship , and her detention had not been ordered by a district court as provided by LAW of DATE of ORG on the detention of mentally insane persons , mentally deficient persons and drug addicts ( see paragraphs CARDINAL below ) .

According to ORG , such a detention would only have been legal if the applicant had given her consent , which had not been the case . Firstly , she had not signed the admission form filled in on DATE of her initial admission to the clinic . Secondly , she had not given her implicit consent ( konkludente PERSON ) to her placement and treatment at the clinic . The mere fact that on DATE of her initial admission she had come to the clinic , accompanied by her father , did not suffice to establish valid consent ( wirksame ORG ) . According to the private clinic ’s submissions , it could not be ruled out that , at that time , the applicant had not been in a position to realise the importance and the consequences of her detention ( “ es ist ... vielmehr nicht auszuschließen , daß die Klägerin zum damaligen GPE die FAC GPE der Unterbringung nicht erkennen konnte ” ) . This was due , in particular , to the fact that the applicant had been given very strong medication from the time of her arrival .

On that point , ORG concluded as follows :

“ Even assuming the claimant ’s initial consent , it would have lapsed as a result of her undisputed attempts to escape and the need to shackle her . From these times at the latest , which have not been specified any further by the defendant , it would have been necessary to obtain a court order . ”

( “ selbst wenn man doch PERSON anfänglichen ORG der Klägerin ausgehen wollte , wäre PERSON unstreitig erfolgten Ausbruchsversuche der Klägerin und die erforderlich gewordenen Fesselungen hinfällig geworden . PERSON , PERSON , wäre die PERSON . ” )

ORG found that , for the second period in which the applicant was placed in the psychiatric hospital ( from DATE to DATE ) , she had likewise not consented to her confinement , as she had shown signs of autism and had suffered from temporary loss of speech . Therefore , a court order would also have been necessary for this period .

As the applicant was therefore entitled to damages in any event , ORG did not examine the question whether her medical treatment had been adequate or not .

ORG also found that the applicant ’s compensation claim was not time - barred . Under LAW ( see paragraph CARDINAL below ) , the limitation period of DATE for tort claims ( unerlaubte GPE ) started running only when the victim had knowledge of the damage and of the person responsible for it . The court observed that a victim could only be perceived to have that knowledge when he was in a position to bring an action for damages that had sufficient prospects of success . Only from then on could he reasonably be expected to bring that action ( “ daß ihm die Klage zuzumuten ist ” ) , regard being had in addition to his state of health . The court referred to the case - law of ORG ( ORG ) on the subject .

Even if the applicant might already have been conscious of the fact that she had been placed in the clinic against her will , it was established that during her long stays in the psychiatric hospital she had been forced to take very strong medication . When she had been released from the clinic , she had still received medical treatment , and she had always been regarded as mentally ill . The applicant had also suffered from serious physical disorders ( schwere körperliche Ausfallerscheinungen ) and had , in particular , subsequently lost the ability to speak for DATE ( from DATE to DATE ) . It was not until the end of this medical treatment and after the submission of PERSON expert report on DATE in which it had been concluded for the first time that she had never suffered from schizophrenia DATE that she had become sufficiently aware of her situation , of her possible right to damages , and of the possibility of bringing an action in court . Her application for legal aid , lodged on DATE , had interrupted the DATE limitation period . Her claim was therefore not time - barred .

On DATE ORG , following an appeal by the clinic , quashed the judgment of ORG and dismissed the applicant ’s action .

The Court of Appeal disagreed with ORG finding that the applicant had illegally been deprived of her liberty during her stay and treatment at the clinic . It noted that ORG had not taken evidence on the issue in dispute . It found that the applicant had conceded in the appeal proceedings that she had to a certain extent voluntarily ( “ bedingt freiwillig ” ) consented to her stay in the clinic in DATE .

ORG left open the question whether the applicant had a compensation claim in tort ( Schadensersatzanspruch aus unerlaubter GPE ) on account of her unlawful deprivation of liberty or the damage caused to her body by her medical treatment . In any event , such a claim would be time - barred under LAW , which provided for a DATE time - limit . ORG considered that the applicant had always been conscious of the fact that she had purportedly been detained against her will , independently of the expert opinion submitted by PERSON . She had also been aware that she had allegedly been forced to take antipsychotic medication . Therefore , she had also been in a position to bring an action in court , despite her physical problems . According to the case - law of ORG , it sufficed to be aware of having suffered damage , without knowledge of the entirety of the damage being necessary .

Furthermore , ORG found that the applicant was likewise not entitled to bring a compensation claim on a contractual basis ( FAC aus PERSON ) following her medical treatment . According to ORG , the applicant had not sufficiently proved that she had expressly objected to her stay in the psychiatric hospital . Moreover , a contract between the applicant and the clinic concerning the applicant ’s medical treatment could also have been concluded implicitly ( konkludenter PERSON ) . It could not be assumed that this contract had been terminated by each of the applicant ’s attempts to escape , which were attributable to her illness ( “ LOC kann nicht angenommen werden , daß dieser konkludent geschlossene QUANTITY krankheitsbedingten LOC worden ist ” ) . In fact , when the clinic prevented the applicant from escaping , it had complied with its duty of care ( PERSON ) . According to the expert opinion of PERSON , a psychiatrist appointed by ORG , the applicant had been seriously ill at that time and in need of medical treatment .

Irrespective of this , ORG pointed out that the clinic had disputed the applicant ’s assertion that she had been detained against her will , so that it remained uncertain whether this assertion was true ( “ so daß offenbleibt , ob dieser Vortrag überhaupt zutrifft ” ) .

Even if a contract concluded between the clinic and the applicant , who had at that time attained the age of majority , could not be presumed , there was in any event a contract between the clinic and the applicant ’s father , concluded implicitly for the applicant ’s benefit . This contract had run at least from DATE to DATE , when attempts had been made to place her in a different psychiatric institution .

Furthermore , ORG did not consider that the applicant ’s treatment had been erroneous , or that the dosage of her medication had been too high . It relied in this connection on the conclusive expert report by PERSON . In assessing the opinion expressed by the expert , who had submitted his report both in writing and orally during the hearing , the court thoroughly considered the partly different conclusions reached in the expert reports by PERSON and PERSON , which had been prepared at the applicant ’s request .

The applicant also brought an action for damages in the Mainz Regional Court against the doctors who had treated her at ORG and against the clinic itself . She claimed that she had been treated for psychosomatic symptoms , although she had in fact been suffering from post - poliomyelitis syndrome . As the applicant ’s medical file concerning her treatment at the clinic had temporarily disappeared , the clinic compiled a substitute file ( PERSON ) of CARDINAL pages , to which the applicant ’s lawyer was subsequently granted access .

In a judgment delivered on CARDINAL DATE , ORG dismissed the applicant ’s claim . It found that , according to the expert report by PERSON , chief physician of the neurology clinic at ORG , there had not been sufficient evidence that her post - poliomyelitis syndrome and her contemporaneous mental ailments had not been treated correctly .

During the appeal proceedings subsequently brought by the applicant in ORG , the original of the applicant ’s medical file was found , and the applicant ’s lawyer was granted access to it .

In a judgment delivered on DATE , ORG confirmed its own judgment by default of DATE , given on account of the applicant ’s failure to attend the hearing ( FAC ) . It upheld the judgment of ORG . Relying on the expert report by PERSON and another two reports submitted by orthopaedic experts , the court found in particular that the applicant had neither intentionally nor negligently been given the wrong medical treatment . It stated that the fact that one of the expert reports had been drawn up with the aid of doctors assisting the court - appointed expert did not preclude its use in court . The court - appointed expert had taken full responsibility for the report and had been examined in person in court . Moreover , even assuming that there had been an error in treatment , the applicant , on whom the burden of proof fell in the matter , had not shown that there was a causal link between the error in treatment and the damage to her health . In particular , as there had not in any event been a serious error in treatment , it was not necessary , in accordance with the settled case - law of ORG , to apply a less strict rule on the burden of proof ( Beweiserleichterungen ) .

The applicant lodged an appeal on points of law with ORG against ORG judgment of DATE and against the judgments delivered by ORG on DATE and ORG on DATE .

On DATE ORG refused to admit the applicant ’s appeal against the judgment of ORG .

On DATE the CARDINAL judges of ORG with jurisdiction to adjudicate on the applicant ’s case refused to grant her legal aid for her appeal on points of law against the judgments of the GPE and GPE courts . They argued that her appeal did not have sufficient prospects of success . On DATE the same CARDINAL judges of ORG dismissed the applicant ’s appeal against the judgments of the GPE and GPE courts as inadmissible , the applicant not having submitted grounds for her appeal within the statutory time - limit .

On DATE the applicant lodged a constitutional complaint against the judgments delivered by ORG on DATE and ORG on DATE . Quoting the relevant provisions of LAW , she claimed that her rights to liberty and human dignity and to a fair trial had been violated . She argued that her physical integrity had been infringed . She set out in detail the conditions of her stay in the various psychiatric institutions , the hearings in and the judgments delivered by the GPE courts and explained why she considered that her rights had not been respected .

DATE . On DATE the applicant lodged a constitutional complaint against the judgments delivered by ORG on DATE and ORG on DATE , and against ORG decision of DATE not to grant her legal aid . She claimed that her right to a fair trial had been violated and argued that she had been given the wrong medical treatment . She set out in detail how she had been treated at ORG , how the proceedings in the GPE and GPE courts had progressed and why she considered that her constitutional rights had thereby been violated .

On DATE ORG refused to allow the applicant ’s constitutional complaints . The court argued that the complaints were not of fundamental importance ( “ keine grundsätzliche GPE ) , as the questions raised by them had already been resolved in its case - law . Furthermore , it was not the function of ORG to deal with errors of law allegedly committed by the competent civil courts . The applicant ’s complaints did not disclose a violation of her constitutional rights .

At the time of the applicant ’s first placement in the clinic in GPE , the rules governing the detention of individuals in a psychiatric hospital were notably laid down in GPE of DATE on the detention of mentally insane persons , mentally deficient persons and drug addicts ( PERSON über die PERSON , PERSON ) .

Section CARDINAL(CARDINAL ) of the Act provided that it covered cases where confinement took place against the will or without the consent of the person concerned .

By LAW , a detention was legal if the person concerned , by his conduct towards himself or others , posed a serious threat to public safety or order that could not be otherwise averted .

Under the terms of section CARDINAL of the LAW , the detention had to be ordered by the district court ( ORG ) on a written application by the competent administrative authority .

Section CARDINAL of the Act provided that an application for the detention of an individual had to be accompanied by an expert report on the mental illness of the person concerned , submitted by the competent public health officer ( ORG ) or a specialist in mental illnesses . This report had to set out whether and to what extent the individual , by his conduct towards himself or others , posed a serious threat to public safety or order .

By section CARDINAL of the LAW , the district court was obliged to assign counsel to the person concerned if this was necessary for the protection of his interests .

Under LAW , the court , in principle , had to question the person concerned before reaching its decision . A hearing in person was exceptionally considered unnecessary if it was likely to have negative effects on the state of health of the person concerned or if communication with him was not possible . In such cases , the court had to assign him a guardian ad litem ( Verfahrenspfleger ) , if he had not already been placed under guardianship .

An appeal ( sofortige Beschwerde ) lay against the district court ’s decision ordering the detention ( section CARDINAL of the Act ) . After a period of in principle DATE , the district court had to decide whether the detention was to be continued . The continuation of the detention could only be ordered on the basis of a new medical expert report ( sections CARDINAL and QUANTITY ) .

On DATE a new LAW on measures of aid and protection in cases of mental disorders ( PERSON über PERSON bei psychischen GPE ) came into force . It replaced the provisions of LAW on the detention of mentally insane persons , mentally deficient persons and drug addicts of DATE with a view to securing ORG rights .

Section CARDINAL of the Act , among other things , established a ORG . Without prior notice and at least once DATE , it visits psychiatric hospitals in which persons are detained following a court order in accordance with LAW . The task of ORG is , in particular , to check whether the rights of the persons so detained are respected , and to give patients the opportunity to raise complaints . DATE after the LAW came into force , ORG extended its visits to all psychiatric hospitals , whether or not the hospitals detained patients pursuant to a court order . These visits , which went beyond the strict wording of section CARDINAL of the said Act , were carried out with the consent of the institutions concerned .

Under the terms of CARDINAL of ORG ) , in its version in force since DATE , private hospitals and private psychiatric institutions needed a licence issued by the competent ORG authority . The licence could notably be refused if there were facts raising doubts as to the reliability of the institution ’s management .

By LAW , a person who deprives another person of his liberty is to be punished by up to MONEY imprisonment or a fine . Paragraph CARDINAL of the same LAW provides that a person who deprives another person of his liberty for DATE or causes serious damage to the health of the victim by the detention itself or by an act committed during that detention is to be punished with a prison sentence of DATE . Under Articles CARDINAL to CARDINAL of LAW , assault is punishable by up to DATE imprisonment or a fine . A person who unlawfully compels another through force to commit , acquiesce in or omit to carry out an act is punishable by up to CARDINAL years’ imprisonment or a fine ( LAW ) .

Compensation claims in tort are governed by LAW , paragraph CARDINAL of which provides that a person who intentionally or negligently causes bodily injury to , or damage to the health of , another person or deprives that person of his liberty , is liable to compensate the victim for the damage so caused . By Article CARDINAL § CARDINAL of LAW , the same obligation to compensate the victim rests with a person who intentionally or negligently violates a legal provision designed for the protection of others , such as ORG to CARDINAL , CARDINAL and CARDINAL of LAW . Under LAW of LAW ( in the version in force until DATE and applicable to damage caused before that date ) , damages for pain and suffering can be claimed in the event of injury to the body or damage to health , or in the event of deprivation of liberty . According to LAW , in the version in force at the relevant time , compensation claims in tort are time - barred DATE after the date on which the victim learned of the damage and of the person liable to compensate him .

At the relevant time , there were no explicit provisions on contractual compensation claims in LAW in cases involving the defective performance of a contract ( positive Vertragsverletzung ) concluded by a doctor and his patient . However , in accordance with the well - established case - law of the civil courts , a person could claim damages if his contract with another person had deliberately or negligently been performed defectively by that other person and if this had caused damage to him .


Violation of Art. 11;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

András Baka;Elisabet Fura;Jean-Paul Costa;Mindia Ugrekhelidze

The applicant was born in DATE and lives in GPE .

On DATE the applicant , a lawyer and member of the administrative board of ORG , organised a demonstration in FAC in GPE , in the form of a march followed by a statement to the press , to protest against plans for “ F - type ” prisons .

At TIME a group of CARDINAL persons brandishing placards and signs gathered in the square , under the leadership of the applicant and PERSON , a lawyer and President of ORG . The police asked the group to disperse and to end the gathering , and informed them via a loudspeaker that the demonstration , for which advance notice had not been submitted , was unlawful and was likely to cause public - order problems at a busy time of day .

The demonstrators refused to obey and attempted to continue marching towards the police , who dispersed the group using a kind of tear gas known as “ pepper spray ” . The police arrested CARDINAL demonstrators , including the applicant , and took them to a police station .

After an identity check , and in view of her profession , the applicant was released at TIME

On DATE the applicant lodged a criminal complaint with the ORG prosecutor ’s office against the head of the GPE security police and the police officers concerned , alleging that she had been ill - treated through the use of pepper spray , unlawfully arrested and prevented from making the public statement scheduled for the end of the demonstration .

On DATE the public prosecutor ’s office discontinued the proceedings on the ground that no offence had been committed .

On DATE the applicant applied to the ORG seeking to have that decision set aside .

On DATE ORG upheld the decision that there was no case to answer .

DATE LAW provides :

“ Everyone has the right to hold unarmed and peaceful meetings and demonstration marches without prior permission .

The formalities , conditions , and procedures governing the exercise of the right to hold meetings and demonstration marches shall be prescribed by law . ”

At the material time section CARDINAL of Law no . CARDINAL on assemblies and marches was worded as follows :

“ In order for a meeting to take place , the governor ’s office or authorities of the district in which the demonstration is planned must be informed , during TIME and CARDINAL prior to the meeting , by a notice containing the signature of all the members of the organising board ... ”

Section CARDINAL of the same Act prohibits demonstrations and processions on public streets , in parks , places of worship and buildings in which public services are based . Demonstrations organised in public squares must comply with security instructions and not disrupt ORG movement or public transport . Finally , section CARDINAL provides that demonstrations and processions which do not comply with the provisions of this Act will be dispersed by force on the order of the governor ’s office and after the demonstrators have been warned .

ORG ) at its CARDINALth plenary session ( DATE ) adopted an opinion interpreting the OSCE / ODHIR guidelines on drafting laws on freedom of assembly with regard to the regulation of public meetings . It set out its approach in this area , particularly with regard to advance notice of demonstrations in public places .

“ CARDINAL . Establishing a regime of prior notification of peaceful assemblies does not necessarily extend to an infringement of the right . In fact , in several NORP countries such regimes do exist . The need for advance notice generally arises in respect of certain meetings or assemblies – for instance , when a procession is planned to take place on the highway , or a static assembly is planned to take place on a public square – which require the police and other authorities to enable it to occur and not to use powers that they may validly have ( for instance , of regulating traffic ) to obstruct the event . ”

However , ORG clearly emphasised that the regime of prior notification must not in any circumstances indirectly restrict the right to hold peaceful meetings by , for instance , providing for too detailed and complicated requirements , or imposing too onerous procedural conditions ( paragraph CARDINAL of the opinion ) .

Under Article I § CARDINAL of the Convention on the Prohibition of the Development , Production , Stockpiling and Use of Chemical Weapons and on their Destruction of DATE ( “ the ORG ” ) , ORG undertakes not to use riot control agents as a method of warfare . Tear gas or so - called “ pepper spray ” are not considered chemical weapons ( the ORG contains an annex listing the names of prohibited chemical products ) . The use of such methods is authorised for the purpose of law enforcement , including domestic riot control ( LAW ( d ) ) . Nor does the ORG state which ORG bodies may be involved in maintaining public order . This remains a matter for the sovereign power of the ORG concerned .

The ORG entered into force with regard to GPE on DATE .

It is recognised that the use of “ pepper spray ” can produce effects such as respiratory problems , nausea , vomiting , irritation of the respiratory tract , irritation of the tear ducts and eyes , spasms , chest pain , dermatitis or allergies . In strong doses , it may cause necrosis of tissue in the respiratory or digestive tract , pulmonary oedema or internal haemorrhaging ( haemorrhaging of the suprarenal gland ) .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Krzysztof Wojtyczek;Zdravka Kalaydjieva

The applicant was born in DATE and lives in NORP .

The applicant ’s father owned a vineyard in NORP . In DATE part of the land was expropriated .

NORP In DATE the applicant ’s father requested restitution of the land in its “ actual boundaries ” . In a decision of CARDINAL DATE the NORP land commission decided that the land should be restored through a land redistribution plan .

The applicant ’s father died in DATE and was inherited by the applicant and CARDINAL other heirs . It appears that only the applicant , but not the other heirs , participated in the subsequent proceedings concerning the vineyard .

In a decision of CARDINAL DATE the land commission decided that the restitution procedure envisaged in paragraph CARDINAL of the transitional and concluding provisions of LAW of DATE ( “ the restitution procedure under paragraph CARDINAL of the ORG ” ) was applicable to the area in which the applicant ’s vineyard was situated because that area comprised both land restored in “ actual boundaries ” and land allocated to usufructuaries . That procedure envisaged the preparation of a plan of newly formed plots ( “ план на новообразуваните имоти ” ) based on the cadastral plan for the area .

A cadastral plan for the area in which the vineyard was situated was drawn up in DATE but was never approved . On an unspecified date the governor of LOC ordered the elaboration of such a plan and appointed a contractor .

On DATE the land commission decided to compensate the applicant and the other heirs of the applicant ’s father with another property . The applicant appealed .

NORP In a judgment of CARDINAL DATE the ORG quashed the decision of DATE and held that the heirs of the applicant ’s father were entitled to the restitution of QUANTITY of the vineyard in their “ actual boundaries ” . The judgment was not appealed against and became final on DATE .

In a decision of CARDINAL DATE the land commission ordered the restitution of the land to the heirs in its “ actual boundaries ” . However , it expressly noted that a plan showing the precise boundaries of the real estate was to be drawn up after the approval of the cadastral plan so as to enable the heirs to conclude any transactions with the property .

Since the vineyard was possessed by third parties , in DATE the applicant brought a rei vindicatio claim against them . During the proceedings the municipality informed the court that it could not issue a plan of the vineyard because the cadastral plan for the area had not been finalised .

In a final decision of DATE ORG rejected the claim as premature . It held that since the plan was not ready , the restitution procedure could not be deemed completed because the property was not sufficiently individualised .

On an unknown date in DATE the applicant retained a licensed expert to prepare a plan of the vineyard and requested the land commission to validate it . The latter refused . Following an appeal , in a final judgment of CARDINAL DATE ORG upheld the refusal . It held that the plan of newly formed plots for the area had not yet been approved and therefore no plans for particular properties could be issued .

On DATE the applicant requested the local ORG ( “ AFD ” ) to issue a plan for the vineyard . On DATE it refused . Following an appeal , in a final judgment of CARDINAL DATE ORG upheld the refusal . It held that the plan of newly formed plots for the area was not yet in force , which prevented the ORG from issuing a plan for the property . It went on to note that if the applicant deemed that his claim should have been examined under a more simplified restitution procedure than the CARDINAL under paragraph CARDINAL of the ORG ( see paragraph CARDINAL above ) , he should have appealed against the respective decision , which he had not done .

On DATE the Governor of the Silistra Region approved the plan of newly formed plots for the area in which the applicant ’s land was situated .

On an unknown date in DATE the applicant brought a second rei vindicatio claim against the third parties , seeking to recover the entire vineyard . A plan of the property was issued on DATE and submitted to the court . In a judgment of CARDINAL DATE ORG granted the claim in respect of all heirs .

Following an appeal , on DATE ORG upheld the judgment of DATE only in respect of the applicant ’s CARDINAL share . Relying on section CARDINAL of LAW , it held that a rei vindicatio claim was more than a simple act of property management . Therefore , the applicant could not seek to vindicate the rights of the other heirs in such proceedings . Accordingly , ORG ordered the defendants to deliver the possession of a CARDINAL share of the vineyard to the applicant .

NORP The applicant appealed to ORG , arguing that the judgment of DATE went against the established case - law , which considered a rei vindicatio claim an act of property management that could be carried out by any co - owner on behalf of the others .

In a decision of CARDINAL DATE ORG dismissed the applicant ’s appeal on points of law , finding that the applicant had failed to show that an important substantive or procedural issue had been decided by the lower courts out of line with ORG case - law .

The applicable domestic law and practice concerning the restitution of agricultural land is summarised in the ORG ’s judgments in the cases of PERSON and Others v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , and ORG , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

Section CARDINAL of the ORG and ORG DATE ( “ the ORG ” ) , as in force since DATE , provides as follows :

“ The ORG and the municipalities shall be liable for damage caused to individuals and legal persons by unlawful decisions , actions or omissions by their organs and officials , committed in the course of or in connection with the performance of administrative action . ”


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

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

The applicant was born in DATE and lives in LOC .

The applicant had been previously convicted of burglary on DATE and his prison sentence had been commuted to a fine .

On DATE at TIME the applicant was arrested , together with a friend , and taken into custody on suspicion of having committed several burglaries . The arrest was effected on the basis of incriminating information received regarding the applicant and his friend .

Later , at TIME , the applicant was examined by a doctor , who noted a QUANTITY graze on his left shoulder and a graze under his right knee .

It appears that at some point the applicant and his friend confessed to committing a number of burglaries and , as a result , on CARDINAL and DATE , were required to participate in a number of reconstructions of events . According to the record drafted by police officers and signed by the applicant , the latter indicated CARDINAL by CARDINAL the houses and other LOC he had broken into , the times of the incidents , the methods used to enter the buildings and the exact amount of goods which had been stolen from each place .

On DATE the police heard evidence from the applicant 's father . It appears from PERSON police statement and the seizure report drafted on DATE that the applicant 's father helped the police recover CARDINAL stolen guns , CARDINAL from his own basement and another near a bus stop , on the basis of information he had received from a certain Mr H.P. , who had participated in burglaries with his son .

On DATE the police heard evidence from the owner of CARDINAL of the guns and the person to whom the suspects had sold it .

In the meantime , on an unspecified date , the applicant signed a preprinted form explaining the rights of arrested persons , including the right to remain silent and the right to legal assistance .

On DATE the applicant was questioned by CARDINAL police officers in respect of CARDINAL incidents he had confessed to during the reconstruction of events . According to the verbatim records signed by the applicant , he was reminded of his legal rights , including his right to remain silent and his right to legal assistance .

On DATE the applicant 's friend was also questioned . He admitted committing CARDINAL offences with the applicant . The statements provided by him regarding these incidents were worded in similar fashion to the applicant 's statements .

DATE and DATE , the police heard evidence from the owners of the houses and businesses which had been robbed . It appeared that some of the owners had not made any prior complaints to the police about the burglaries committed in their houses .

On DATE the police returned a watch found on the applicant 's friend to its owner .

On DATE , on the release of the applicant from police custody , ORG issued a medical report indicating that no signs of beating or violence had been observed on his body and that the applicant did not have any complaints .

On DATE ORG heard evidence from the applicant . According to TIME of the hearing he was reminded of his legal rights and his statements to the police were read out to him and accepted by him . He further stated that , at that juncture , he did not remember with whom and where he had committed the burglaries . The reports and other documents in the case file were read out to him . The applicant did not contest their veracity .

On DATE the ORG public prosecutor filed a bill of indictment against the applicant with ORG , accusing him of having committed CARDINAL burglaries .

At the hearing held on DATE , the applicant retracted his earlier statements , claiming that when he had given evidence to ORG he had been in custody for DATE , during which time he had been electrocuted , hosed and beaten with a stick in order to force him to confess to the offences . The applicant claimed that he did not remember how he had been brought before ORG and that before the judge he had just sat there while the verbatim record was written , which he had not signed . The court heard evidence from the other accused and CARDINAL complainants , who all stated that the accused had accepted the accusations during the reconstruction of events .

In the hearing held on DATE , the prosecutor submitted his opinion on the merits . The applicant 's legal representative submitted that some of the evidence in the case file had been unlawfully obtained .

At the hearing held on DATE , the applicant reiterated that he did not accept the charges against him . When asked about the medical reports , the reports of the reconstruction of events and the arrest and seizure form , the applicant submitted that he had nothing to say .

On DATE ORG , relying on the evidence in the case file and , in particular , on the statements made by the applicant and Mr PERSON before the police and ORG , found the applicant guilty as charged and sentenced him in total to DATE , DATE and DATE imprisonment .

On DATE the applicant appealed against the trial court 's judgment . In particular , he claimed that there was no evidence to demonstrate his guilt and that his statements to the police had been written in accordance with the complainants ' testimonies . The applicant submitted that he had not been reminded of his legal rights under LAW and that his statements before both the police and ORG had not been given of his own free will . In part of his appeal petition the applicant submitted that he had not been in a fit condition to give a statement before ORG since he had been exhausted from the torture , coercion and duress he had been subjected to in police custody .

On DATE ORG , relying on LAW , dismissed the applicant 's request for an oral hearing and upheld the judgment of the first - instance court . The opinion of the principal public prosecutor submitted to this court was not communicated to the applicant .

On DATE the decision of ORG was returned to the registry of ORG .

A request by the applicant dated DATE for a rectification of ORG judgment was dismissed by the principal public prosecutor at ORG on DATE .

On DATE ORG , taking into account the relevant provisions of the new LAW ( Law no . DATE ) , ordered the applicant 's release from prison . By an additional judgment dated DATE the first - instance court adjusted the applicant 's sentence in accordance with the provisions of LAW ( Law no . DATE ) .

The relevant domestic law and practice in force at the material time as well as recent developments can be found in the following judgments : PERSON GPE ( no . CARDINAL , § § DATE , DATE ) , PERSON v. GPE judgment ( [ ORG ] , no . CARDINAL , § DATE , ORG PERSON ) , and NORP v. GPE ( no . CARDINAL , § DATE ) .