Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON .

The

The applicant and her former husband have a son , born on DATE . After the separation of his parents in DATE the child initially lived with the applicant in GPE .

On DATE , ORG advised the applicant that she was not allowed to take the child elsewhere without the father ’s consent .

On DATE the applicant took the child to GPE without the father ’s consent , although she knew that the father did not agree .

On DATE she returned the child to the father after ORG had decided that the child had to be returned to his place of habitual residence . Since then the child has lived with his father and his new wife in GPE .

On DATE a court - appointed expert submitted an opinion on the distribution of parental authority drawn up on the basis of information collected DATE . He found that the child , who had lived with his father in GPE since DATE , was well integrated . The child ’s primary attachment to his father , the latter ’s ability to promote the child ’s emotional development and to tolerate its attachment to the other parent , and continuity were arguments clearly in favour of the child staying with his father . The applicant ’s ability to promote the boy ’s linguistic competencies , even though it exceeded that of the father , was not as important for him as the father ’s ability to promote his emotional development , which was greater than that of the applicant .

On DATE ORG held a hearing during which it heard the expert and the child .

On DATE ORG dismissed the applicant ’s motion for bias against the expert , finding that the expert ’s opinion did not contain any factual errors .

On DATE ORG transferred sole parental authority to the father . On the basis of the expert opinion it found that this was in the child ’s best interests . Having regard to the GPE difficulties in communicating , joint custody could not be awarded . There was no indication that the father had impaired the applicant ’s access to the child to an extent as to merit a different result .

On DATE the ORG dismissed the applicant ’s request for legal aid for appeal proceedings for lack of prospects of success . The transfer of sole parental authority was in accordance with LAW of LAW , according to which a request to transfer sole parental authority is granted where this is in the best interests of the child . ORG considered that nothing warranted uprooting the child from his current environment . According to the reliable findings of the expert the father was fully able to raise the child . He had strong empathy for the child . The child liked his father and had an at least equally good relationship with both parents . The father had meanwhile even become the child ’s main reference person . Uniformity and regularity were factors in favour of the child remaining where he had lived for DATE and where he was content . ORG stressed in this respect that since the separation the applicant had exposed the child , CARDINAL times , to changes in his personal and social environment . After CARDINAL moves in the area of her place of work in DATE and DATE she had moved with the child to GPE in DATE , contrary to prior agreement and infringing upon the father ’s co - parental authority . Thereby she accepted that the child had to be returned DATE on the basis of return proceedings initiated by the father , which had been foreseeable to her . The child ’s needs for stability would not be met by a further move . ORG stressed that no meaningful weight could be attached to the fact that the applicant , who at the time worked part - time in contrast to the father , had more time to care for the child , since the applicant ’s course of action in DATE raised at least doubts as to her ability to act in accordance with the child ’s best interests and to thereby also appropriately take into account the father ’s interests . The fact that she had departed from her word in order to carry out her plans probably called into question her capacity to act as a role model in CARDINAL essential educational area .

On DATE ORG , without holding a hearing , dismissed the applicant ’s appeal , referring to the reasoning in the decision at first instance and its decision of DATE . Having regard to the applicant ’s allegation that living conditions in GPE were inadequate , the fact that the father had meanwhile moved with the child to GPE was consistent and in line with the child ’s best interests . Furthermore , it had not been necessary to appoint a curator ad litem . In the event of a conflict of interests between parents this was only necessary where the GPE dispute was of such a nature that the child ’s interests had to be defended against those of his parents . This could be the case where both parents predominantly sought to enforce their own interests . In the present case only the applicant had demonstrated such behaviour . Contrary to the applicant ’s allegations the child had been heard at first instance as evidenced by TIME of the hearing . It was irrelevant that this was not explicitly reflected in the decision at first instance as the hearing had not produced any findings deviating from those of the expert . ORG explained that it had refrained from orally examining the parents and the child because the relevant facts had already been established and because the case file did not contain any indication that a renewed hearing would have provided the court with any additional information that could have been of importance to its adjudication .

On DATE the ORG declared the applicant ’s appeal on the ground that she had not had a sufficient opportunity to make submissions ( Anhörungsrüge ) inadmissible . It found that the applicant did not allege that she had not had an opportunity to comment on the arguments put forward during the proceedings or that her comments had not been taken into account . Rather , she only criticised the failure to conduct a renewed oral hearing at second instance . ORG considered that the right to be heard did not principally comprise the right to an oral hearing . In its decision of DATE it had given reasons for refraining from an oral hearing . The applicant had not submitted why the outcome of the proceedings might have been different if an oral hearing had been held .

On DATE ORG refused to accept the applicant ’s constitutional complaint for adjudication because it was inadmissible . It also refused to accept the applicant ’s joint requests for an interim order for adjudication . It dismissed the applicant ’s requests for legal aid and to be assigned an attorney .

On DATE ORG reprimanded the applicant for child abduction .

By decisions taken DATE the domestic courts regulated the applicant ’s access to her son .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection dismissed (Article 35-1 - Effective domestic remedy);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Public hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Disciplinary proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Associations called “ ORG ” , whose object is to provide emergency medical services on call to patients , have been set up in each département ; they have formed regional associations which in turn are part of a national association known as “ ORG , GPE ” . The applicants , who are medical practitioners in ORG , are all members of this organisation .

A number of ORG unions and département councils of the ordre des médecins ( ORG ) lodged complaints with the professional disciplinary bodies against the members of those associations . They maintained , inter alia , that by using a flashing blue light without permission from the authorities and displaying the name “ ORG ” on their vehicles , in telephone directories and in advertising brochures , the members of the associations were contravening LAW , which prohibited advertising .

On DATE ORG lodged a complaint against each of the applicants with the regional council of ORG des médecins . ORG did likewise on DATE .

It was alleged that the applicants had contravened LAW by displaying the name “ ORG ” on their vehicles and prescriptions .

On DATE the regional council , composed of ORG , chairman , and PERSON , PERSON , PERSON , PERSON , Dr Delamarche , PERSON , PERSON , PERSON , PERSON and PERSON , members , held that there had been a breach of LAW and suspended PERSON and PERSON from practising medicine for DATE and PERSON and CARDINAL other doctors for DATE ; the remaining CARDINAL applicants received a reprimand .

The applicants appealed against those decisions to the disciplinary section of ORG ordre des médecins .

On DATE that section , chaired by PERSON , honorary member of the PERSON d’Etat , and composed of PERSON , PERSON , Dr GPE , PERSON , PERSON and PERSON , members , upheld the decisions of the regional council as to the finding that there had been a breach of ORG , but reduced the penalties : Dr Gautrin and PERSON were suspended from practising medicine for DATE , the doctors who had received a DATE ’s suspension were given a reprimand and those who had been reprimanded were given a warning only . The applicants were informed of the decision on DATE . They did not appeal to the ORG d’Etat .

DATE provided :

“ Medicine must not be practised as if it were a trade . Doctors shall not use any form of advertising or publicity , whether direct or indirect .

No medical exhibition shall be held or demonstration performed unless their purpose is exclusively scientific or educational . ”

The Code of Professional Conduct was reformed by Decree no . CARDINAL of DATE . It now provides that any doctor participating in a duty , emergency or on - call doctor scheme “ ... shall be permitted , when carrying out his task , to affix a removable badge to his vehicle bearing the words ‘ doctor on emergency NORP , but no others ... ” and that the badge must be removed “ ... as soon as his role in the emergency is over ... ” ( Article CARDINAL ) . The code also now sets out , among other things , the information which doctors are allowed to reproduce on their prescriptions and in directories available to the public ( Articles CARDINAL–CARDINAL ) .

It is compulsory for all doctors entitled to practise their profession in GPE to belong to the ordre national des médecins . This body ensures , among other things , that the principles of morality , probity and dedication essential to the practice of medicine are upheld and that all its members fulfil their professional duties and comply with the rules laid down in LAW . It discharges this function through département councils , regional councils and ORG ( Articles CARDINAL and CARDINAL of ORG ) .

NORP The regional councils exercise disciplinary jurisdiction at first instance within the ordre des médecins . Cases may be brought before them by , among others , the département councils , and ORG unions and individual registered medical practitioners within their territorial jurisdiction ( Article L. CARDINAL of LAW ) .

ORG councils may only deliberate validly if CARDINAL of their members are present . Decisions are taken on a majority vote and must be reasoned ( ORG CARDINAL and CARDINAL of Decree no . DATE of DATE , as amended ) .

NORP The regional council of the ordre des médecins for the GPE area is made up of CARDINAL full members divided into CARDINAL chambers and of CARDINAL substitute members ; they are all elected by members of the département councils ( Articles L. CARDINAL et seq . ) . Each chamber elects a chairman from among its members ( LAW ) .

ORG ordre des médecins is composed of CARDINAL members , CARDINAL of whom are directly elected by the département councils .

After each election of a proportion of its members ( DATE ) ORG elects CARDINAL of its CARDINAL members to constitute a disciplinary section – chaired by a senior member of the LOC d'Etat – with jurisdiction to hear appeals ( Articles L. CARDINAL to CARDINAL and L. CARDINAL of LAW ) . Substitute members are elected in the same way as full members ( LAW no . DATE of DATE , as amended , concerning , inter alia , the functioning of the disciplinary section ) .

The disciplinary section may only deliberate validly if , in addition to its chairman , CARDINAL of its members are present . Where the number of members present is an even number , the youngest practitioner must withdraw ( DATE first paragraph , of the Decree of DATE , as amended ) .

Appeals have , in principle , suspensive effect ( Article L. CARDINAL of LAW ) .

An appeal on points of law against decisions of the disciplinary section lies to the ORG d'Etat ( LAW of DATE , as amended , and LAW ) “ as provided in ordinary administrative law ” ( LAW in fine of LAW ) .

Section DATE which came into force on DATE of PERSON no . CARDINAL of DATE reforming administrative proceedings provides :

If it quashes a decision by an administrative tribunal of last instance , the ORG d'Etat may either remit the case to the same tribunal , which shall , unless the nature of the tribunal makes it impossible , be differently constituted , or remit the case to another tribunal of the same type , or determine the merits of the case itself where the interests of proper administration of justice warrant it .

Where a second appeal on points of law is brought in a case , the PERSON d'Etat shall give a final ruling on it . ”

At the time the events in the instant case occurred , the PERSON d’Etat held , following its settled case - law ( extracts from its judgment of CARDINAL DATE in the case of PERSON ) :

“ ... the provisions of LAW of LAW are not applicable to disciplinary tribunals , which do not hear criminal proceedings and do not determine civil rights and obligations . Mr PERSON accordingly can not challenge the decision appealed against on the grounds that it contravened the provisions of LAW of the aforementioned LAW relating to the holding of hearings in public and the impartiality of tribunals .

... although LAW of the PERSON of DATE provides that a tribunal to which a case has been remitted by the ORG d'Etat must , unless the nature of the tribunal makes it impossible , be differently constituted from the CARDINAL that gave the original decision , the disciplinary section of the ordre des médecins was , having regard to its nature , entitled , for the purpose of hearing the case remitted to it by the PERSON d'Etat acting in its judicial capacity in a decision of CARDINAL DATE , to be constituted as it had been on DATE , when it had given its first ruling . The grounds of appeal based on an infringement of the principle of the impartiality of tribunals and on the statutory provisions previously cited must therefore fail .

The following penalties may be imposed on doctors found guilty of disciplinary offences : a warning ; a reprimand ; temporary or permanent disqualification from performing some or all of the medical duties carried out for or remunerated by the ORG , départements , municipalities , public corporations or private corporations promoting the public interest , or the medical duties carried out pursuant to welfare legislation ; temporary disqualification from practising medicine ( for a maximum of DATE ) ; and striking off the register of the ordre .

The first CARDINAL penalties also entail loss of the right to be a member of a département council , a regional council or ORG for DATE ; the other penalties entail permanent loss of that right . A doctor who has been struck off can not have his name entered in another register ( Article PERSON of LAW ) .

A doctor against whom proceedings are brought may exercise a right of challenge before a regional council or ORG , as laid down in Articles CARDINAL to CARDINAL of LAW ( LAW of LAW ) .

Article CARDINAL of LAW provides that a judge may be challenged :

if he or his spouse has a personal interest in the dispute ;

if he or his spouse is a creditor , debtor , heir presumptive or donee of CARDINAL of the parties ;

if he or his spouse is a blood relative or a relative by marriage of CARDINAL of the parties or of the spouse of CARDINAL of the parties up to the fourth degree inclusive ;

if there have been or are still legal proceedings pending between him or his spouse and one of the parties or the spouse of CARDINAL of the parties ;

if the case has earlier come before him as a judge or arbitrator or if he has advised CARDINAL of the parties ;

if the judge or his spouse is responsible for administering the property of CARDINAL of the parties ;

if there is a relationship of subordination between the judge or his spouse and CARDINAL of the parties or the spouse of CARDINAL of the parties ;

if it is common knowledge that friendship or enmity subsists between the judge and CARDINAL of the parties ;

A party wishing to challenge a judge will be estopped from doing so unless he makes his challenge as soon as he becomes aware that a ground exists . “ Under no circumstances ” may a challenge be made after the hearing ( LAW ) . The challenge must “ clearly set out the grounds and be accompanied by supporting evidence ” ( Article CARDINAL ) .

On receipt of a challenge , the judge concerned shall “ withdraw ” until the question has been decided ( Article CARDINAL ) . He has DATE in which to inform the court in writing whether he accedes to the request that he stand down – in which eventuality he shall be replaced immediately DATE or , if he does not propose to stand down , of the reasons for his resisting the challenge ( Articles CARDINAL and CARDINAL ) ; in the latter eventuality , or if he does not reply , the challenge is “ decided as soon as possible by a court of appeal or , if made against a member of a lay tribunal , by the president of the court of appeal , from whose decision no appeal shall lie ” ( Article CARDINAL ) . If the challenge is upheld , the judge is replaced ( Article CARDINAL ) ; if it is rejected , the challenger may be ordered to pay a civil fine of CARDINAL French francs without prejudice to any claim for damages that may be made ( Article CARDINAL ) .

To prevent an estoppel arising , challenges against CARDINAL judge shall be made together unless a ground for challenge subsequently comes to light ( Article CARDINAL ) .

A challenge against all the judges of a chamber or a court of appeal is equivalent to an application for transfer of the case to another tribunal of the same type on grounds of bias ( ORG , DATE , ORG DATE , CARDINAL ) . No such application may be made in respect of the disciplinary section of ORG ordre des médecins as there is no other body of that type to whom the case can be transferred ( ORG d’Etat , CARDINAL DATE , PERSON , GPE , pp . CARDINAL–CARDINAL ) .

DATE no . DATE of DATE , as amended , provides , inter alia :

“ Members of regional councils may be challenged for the reasons set out in Article [ L.CARDINAL - CARDINAL of the Judicature Code ] . Challenges shall be made DATE before the hearing starts . Members of the council who are related by blood or marriage up to the fourth degree inclusive to another member of the council or to the doctor ... concerned , members of regional councils who individually or as part of a group have occupational interests in common with each other or with the practitioner concerned , and any member who initiated the complaint that led to the disciplinary proceedings shall be precluded from hearing the challenge . ”

The grounds for challenge set out in LAW are the same as those set out in LAW .

Article CARDINAL , second paragraph , and LAW paragraph , of Decree no . DATE of DATE , as amended , provided :

“ Hearings shall not be held in public and the deliberations shall remain secret . ”

While the decisions of the disciplinary bodies of the ordre des médecins contained the names of the members who were present , they were recorded in a special register to which third parties did not have access and were not published . They were notified to certain individuals and institutions only ( Articles CARDINAL and CARDINAL of the decree ) .

Those rules were amended by Decree no . CARDINAL of DATE .

Hearings before a body of the ordre sitting to determine disciplinary charges are now held in public . However , the chairman of the body in question may , of his own motion or on an application by CARDINAL of the parties or by the person whose complaint has led to the case being brought before a regional council , exclude the public from all or part of the hearing in the interests of public order or where respect for private life or medical confidentiality so justifies ( Articles CARDINAL , CARDINAL and CARDINAL of the Decree of CARDINAL DATE , as amended by LAW DATE ) .

Decisions are now made public , but the bodies in question may decide not to include in the certified copies any details – such as surnames DATE which might be incompatible with respect for private life or medical confidentiality ( Articles CARDINAL and CARDINAL of the Decree of DATE , as amended by LAW DATE ) .


Violation of Art. 6-1;Violation of Art. 8;No separate issue under Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings

The applicant was born in DATE and lives in GPE . At birth , she was registered as male , with the forenames PERSON .

In DATE the applicant instituted proceedings before LOC , asking it to change her forenames to PERSON .

On DATE ORG granted the applicant ’s request . The court found that the conditions under LAW ( PERSON über die GPE der FAC die Feststellung der Geschlechtszugehörigkeit in besonderen NORP ) were met in the applicant ’s case .

ORG , having heard the applicant and having regard to the written opinions of the psychiatric experts Prof . NORP and PERSON of DATE DATE , and of the psychological expert Prof . NORP of CARDINAL DATE , considered that the applicant was a male - to - female transsexual . It noted that , although Prof . NORP and PERSON had indicated that the applicant was not a typical transsexual , LAW required only that the condition of transsexuality be met , irrespective of the particular form it took . Moreover , the court found that the experts had convincingly shown that the applicant had been for DATE under the constraint of living according to these tendencies and that there was a high probability that the she would not change these tendencies in the future .

NORP In DATE the applicant , represented by counsel , brought an action with ORG against a NORP health insurance company . Having been affiliated to this company since DATE , she claimed reimbursement of pharmaceutical expenses for hormone treatment . She further requested a declaratory judgment to the effect that the defendant company was liable to reimburse PERCENT of the expenses for gender reassignment operations and further hormone treatment . As an employee of ORG , she was entitled to allowances covering CARDINAL of her medical expenses ; the private health insurance was to cover the other CARDINAL .

On DATE ORG decided to take expert evidence on the questions of whether or not the applicant was a male - to - female transsexual ; whether or not her kind of transsexuality was a disease ; whether or not the gender reassignment operation was the necessary medical treatment for the transsexuality ; and whether or not this treatment was generally recognised by medical science .

NORP The psychiatrist PERSON , having examined the applicant in DATE , delivered his opinion in DATE . In his conclusions , he confirmed that the applicant was a male - to - female transsexual and that her transsexuality had to be regarded as a disease . He further indicated that gender reassignment surgery was not the only possible medical treatment in cases of transsexuality . In the applicant ’s case , he recommended such an operation from a psychiatric - psychotherapeutic point of view , as it would improve her social situation . He noted that gender reassignment surgery was not generally recognised by medical science and that there were several comments in the specialised literature questioning whether the operation was effective ; however , it could be assumed that the fact that transsexuals accepted themselves and their bodies contributed to their stabilisation . According to him , many transsexuals reached such stability only after an operation . In his view , this was the case for the applicant and an operation should therefore be approved . The expert concluded that the gender reassignment operation formed part of the curative treatment of a mental disease .

On DATE ORG , following an oral hearing , dismissed the applicant ’s claims . The court considered that under the relevant provisions of ORG ( Allgemeine Versicherungsbedingungen ) governing the contractual relations between the applicant and her private health insurance company , the applicant was not entitled to reimbursement of medical treatment regarding her transsexuality .

In its reasoning , the court , having regard to the opinion prepared by Dr H. and to the expert opinions prepared in the proceedings before LOC , considered that the applicant was a male - to - female transsexual and that her condition had to be regarded as a disease . The question whether the treatment in question was recognised by medical science was irrelevant . In the court ’s view , hormone treatment and gender reassignment surgery could not reasonably be considered as necessary medical treatments . Having regard to the relevant case - law of ORG , the court found that the applicant ought first to have had recourse to less radical means , namely an extensive course of CARDINAL psychotherapy sessions , as proposed by the psychiatric expert Prof . NORP and terminated by the applicant after CARDINAL sessions ( according to the Government , the original manuscript decision referred to CARDINAL sessions ) . The court was not convinced that , on account of the applicant ’s resistance to therapy , the intended operation was the only possible treatment .

NORP Moreover , ORG found that the evidence did not show conclusively that the gender reassignment measures would relieve the applicant ’s physical and mental difficulties , a further criterion for assuming their medical necessity . The expert PERSON had merely recommended the operation from a psychiatric - psychotherapeutic point of view , as it would improve the applicant ’s social situation . His submissions , according to which the effect of gender reassignment surgery was often overrated , did not show that the gender reassignment measures were necessary for medical reasons . The court had not , therefore , been required , of its own motion , to summon the expert to explain his opinion orally .

On DATE the applicant lodged an appeal with ORG . In the written appeal submissions , the applicant objected to the findings of ORG in so far as they denied the necessity of gender reassignment measures . The applicant also submitted that she had unsuccessfully attended CARDINAL psychotherapy sessions . In this connection , she referred to the written expert opinions and also mentioned the possibility of taking evidence from these experts .

In DATE the applicant underwent gender reassignment surgery . According to her , having been unfit for work since DATE , she had agreed with the physician treating her that her suffering would not permit her to await the outcome of the appeal proceedings .

On DATE ORG , following an oral hearing , dismissed the applicant ’s appeal . ORG valued the claims at stake at MONEY .

ORG noted that the applicant was a male - to - female transsexual and that , according to the opinion of the expert PERSON , her transsexuality constituted a disease , a matter not in dispute between the parties to the proceedings .

Referring to clause CARDINAL of ORG , ORG upheld ORG conclusions that the expert PERSON had not confirmed the necessity of gender reassignment measures . ORG had regard to various passages of the expert opinion . Thus , it noted that the expert had considered gender reassignment surgery as CARDINAL possible medical treatment ; however , the question of necessity could not be clearly affirmed given the diverging scientific opinions and results . In his view , consensus existed on the improved psycho - social situation following the change of the sexual role , although the effect of the operation as such was often overrated . In the applicant ’s case , the advantages of an operation would , in the expert ’s view , prevail , while psychotherapy could not cure the transsexuality on account of the applicant ’s chronic narcissistic character structure ; even extended psychotherapy was not likely to result in any changes . Turning to the expert ’s statement that gender reassignment was not the only possible curative treatment , but recommendable from a psychiatric - psychotherapheutic point of view in order to improve the applicant ’s social situation , ORG found that , with this cautious formulation , the expert had not clearly affirmed the necessity of an operation . The applicant had therefore failed to prove that the conditions for reimbursement of medical treatment were met in her case . ORG added that , while the expert had mentioned that the gender reassignment operation “ formed part of the curative treatment of a mental disease ” , taking his other statements into account , he had regarded success as rather uncertain . Such a vague hope could not justify the necessity of medical treatment , bearing the aim of health insurance in mind . Thus , the health insurance had to bear only costs of treatment suitable to cure a disease . In the applicant ’s case , the expert had explained that gender reassignment measures could not be expected to cure the applicant ’s transsexuality , but at best to improve her psycho - social situation . This result was insufficient , as such an improvement did not affect the applicant ’s transsexuality as such . With regard to these remaining doubts , ORG concluded that the applicant had failed to prove the necessity of her treatment .

The Court of Appeal further considered that , in any event , the applicant was not entitled to reimbursement under clause CARDINAL ) of ORG on the ground that she had herself deliberately caused the disease , as argued by the defendant in earlier submissions .

Referring to the details of her case history as contained in the expert opinion of Dr O. of DATE , ORG found in particular that the applicant was born as a male child and did not claim that she was a female on account of chromosomal factors . Initially , she had not adopted female behaviour . On account of her male orientation , she had been able to resist feelings that she would have preferred to be a girl and that this would have been more appropriate , and had controlled her emotional life at an early stage .

ORG considered that the applicant had continued to live as a man . In its view , the applicant ’s “ fear of bigger boys ” at school was not gender - specific . Furthermore , applying to join the armed forces did not indicate female feelings , and she had left the armed forces not because of the feeling that she was a “ woman ” but because she had experienced degrading treatment . The applicant had married in DATE , likewise a sign of her male orientation at that time . As from DATE , the spouses had wished to have a child .

According to ORG , the “ turning - point ” , as stated by the applicant , had been the moment when , after an unsuccessful operation in DATE , she had realised that she was infertile . ORG quoted the following passage from the expert opinion of DATE :

“ The recognition that he was infertile is a decisive factor confirming the subsequent transsexual development . ”

It continued in the following terms :

“ Fully aware of this position , the plaintiff concluded for herself : ‘ If you can not have children , you are not a man’ , and as a consequence she went CARDINAL step further and wanted to be a woman from then on . She had never otherwise felt that she was , or that she had to become , a woman , but was merely making a statement that she could do without a penis and still have satisfying relations with his [ sic ] wife ... Doing without the one is not the same as an irresistible desire for the other . In furtherance of the self - imposed goal of wishing to be a woman , from DATE without medical advice , assistance or instruction – she took female hormones ...

That was deliberate . Having recognised – no doubt painfully – that she could not have children , she decided to distance herself from her past as a man ... It was this deliberate act of self - medication that led the plaintiff ever more to her decision that she wanted to be a woman and to look like one , although it was biologically impossible . This was based on her limited preparedness or ability to reflect critically ... but was wrongfully deliberate because the plaintiff was at all events at that stage in a position to see what the consequences of her ‘ self - medication’ would be , and to act accordingly .

On DATE ORG refused to admit the applicant ’s constitutional complaint .

The German Transsexuals Act ( ORG über die GPE der FAC die Feststellung der Geschlechtszugehörigkeit in besonderen NORP ) of CARDINAL DATE ( ORG I , p. DATE ) was adopted following the decision of DATE of ORG according to which the refusal to change the sex of a post - operative transsexual in the register of births was an unjustified interference with human dignity and everyone ’s fundamental right to develop his personality freely ( Reports of ORG , BVerfGE DATE , pp . CARDINAL et seq . ) .

Sections CARDINAL to CARDINAL of LAW govern the conditions , procedures and legal consequences of a change of a transsexual ’s forenames without gender reassignment surgery . Under section CARDINAL , persons may request that their forenames be changed if , on account of their transsexual orientation , they no longer feel they belong to the sex recorded in the register of births , they have been for DATE under the constraint of living according to these tendencies , and if there is a high probability that they will not change this orientation in the future . The competent civil courts have to obtain CARDINAL medical expert opinions in order to establish whether the medical conditions are met ( section CARDINAL ) .

Following gender reassignment surgery , section CARDINAL provides for a change of the sex entered in the register of births , if , in addition to the conditions laid down in section CARDINAL , the persons concerned are not married and are not able to procreate . The forenames will be changed , if proceedings under section CARDINAL have not yet taken place .

Since DATE the NORP health insurance system , which previously formed part of ORG PERSON ) of DATE has been governed by LAW , ORG , ORG ( GPE , PERSON , PERSON ) , on the basis of ORG ( Gesetz zur Strukturreform i m Gesundheitswesen ) of DATE . Subsequently , further reform legislation was enacted . Under the relevant provisions , persons insured under the health system are entitled to medical treatment which is necessary in order to diagnose or to cure a disease , in order to prevent its aggravation or to offer relief for its symptoms .

ORG , in a decision of CARDINAL DATE ( Reports of Decisions , ORG , pp . CARDINAL et seq . ) , confirmed the lower social courts’ decisions that the cost of gender reassignment surgery had to be reimbursed if , in the circumstances of the individual case , the psychophysical state of the transsexual amounted to a disease and if gender reassignment was the sole means of finding relief , psychiatric and psychotherapeutic treatment having remained unsuccessful .

The basic rules for private health insurance , as for any other private insurance , are laid down in LAW ( Gesetz über den GPE ) of DATE , as amended . According to section CARDINAL.b , private health insurance covers expenses for curative treatment which is medically necessary on account of a disease or injuries suffered as a result of an accident or for other medical services for illness , as far as stipulated in the contract . The insurer is exempted from liability if the insured person has deliberately caused his or her own disease or accident ( section CARDINAL.l ) . The contractual relations are standardised in general insurance conditions .

ORG , in a decision of DATE ( ORG , pp . CARDINAL et seq . ) , endorsed the lower court ’s finding that gender reassignment surgery had to be considered as necessary medical treatment of a disease if the insured person ’s change of gender had been recognised under sections CARDINAL et seq . of LAW .

In its judgment of DATE in PERSON ORG . DATE , p. I-CARDINAL ) , ORG ( ECJ ) found that discrimination arising from gender reassignment constituted discrimination on grounds of sex and , accordingly , LAW of DATE , on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion and working conditions , precluded dismissal of a transsexual for a reason related to a gender reassignment . It held , rejecting the argument of ORG that the employer would also have dismissed PERSON if PERSON had previously been a woman and had undergone an operation to become a man , that

“ ... [ w]here a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment , he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment .

To tolerate such discrimination would be tantamount , as regards such a person , to a failure to respect the dignity and freedom to which he or she is entitled and which the ORG has a duty to safeguard . ” ( paragraphs CARDINAL - CARDINAL )

In its judgment of CARDINAL DATE , in PERSON v. ORG ( C-CARDINAL/CARDINAL , ORG . DATE , p. GPE ) , the ECJ clarified the resulting position as follows

“ ... That reasoning , which leads to the conclusion that such discrimination is to be prohibited just as is discrimination based on the fact that a person belongs to a particular sex , is limited to the case of a worker ’s gender reassignment and does not therefore apply to differences of treatment based on a person ’s sexual orientation .

... Community law as it stands at present does not cover discrimination based on sexual orientation , such as that in issue in the main proceedings .

It should be observed , however , that LAW amending LAW , the Treaties establishing ORG and certain related acts , signed on DATE , provides for the insertion in LAW of an LAW which , once LAW has entered into force , will allow the ORG under certain conditions ( a unanimous vote on a proposal from the ORG after consulting ORG ) to take appropriate action to eliminate various forms of discrimination , including discrimination based on sexual orientation . ”

The ECJ concluded that the refusal by an employer to allow travel concessions to the person of the same sex with whom a worker has a stable relationship , where such concessions are allowed to a worker ’s spouse or to the person of the opposite sex with whom a worker has a stable relationship outside marriage , does not constitute discrimination prohibited by LAW CARDINAL/CARDINAL .


The applicant is an NORP national , born in DATE and living in GPE . He is represented before the Court by PERSON and PERSON , lawyers practising in GPE .

The applicant is the owner of an apartment in GPE , which he had let to GPE

In a registered letter of CARDINAL DATE , the applicant informed the tenant that he intended to terminate the lease on expiry of the term on DATE and asked him to vacate the LOC by DATE .

On DATE , he served a notice to quit on the tenant , but he refused to leave .

In a writ served on the tenant on DATE , the applicant reiterated his intention to terminate the lease and summoned the tenant to appear before ORG .

By a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises be vacated by DATE .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .

On DATE , the applicant served notice on the tenant requiring him to vacate the premises .

On DATE , he served notice on the tenant informing him that the order for possession would be enforced by a bailiff on DATE .

DATE and DATE the bailiff made CARDINAL attempts to recover possession . Each attempt proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On DATE , after having reached a friendly agreement with the tenant , the applicant recovered possession of the apartment .


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

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

The applicant ’s parents were members of an agricultural cooperative in which they had included their agricultural land . The applicant who inherited their ownership title to that land was also a member .

The cooperative underwent a transformation under ORG ( Law no . PERSON . – “ the DATE LAW ) so as to make it compatible with the new economic system and legal order . Former members who did not become members of the transformed ORG , like the applicant , were entitled to compensation in respect of their membership interest . LAW contained no express provisions as to the form of such compensation .

In DATE the applicant lodged a demand with the cooperative for compensation in respect of his membership interest under LAW . Despite promises , the demand has not been satisfied .

On DATE the applicant brought an action against the cooperative in ORG ( ORG súd ) . He sought a judicial order for a determination of his membership interest . The cooperative then provided assurances that it would settle the claim voluntarily . In response , the applicant withdrew the action and , on DATE , the proceedings were discontinued .

On DATE the applicant re - submitted his claim to ORG arguing that the cooperative had not honoured its pledge .

On DATE an amendment ( Law no . PERSON . – “ the DATE amendment ” ) to LAW entered into force which introduced special provisions concerning the form of compensation to be provided in respect of membership in ORG . Former members who had not been compensated in another form were to be issued shares ( družstevné podielnické listy ) in the cooperative in question .

On an unspecified date the applicant extended the action in that he also sought financial compensation for the use of his land by the cooperative . This claim was the subject of a friendly settlement and ORG approved the settlement on DATE .

On DATE the applicant further extended the action by seeking compensation under LAW ( Law CARDINAL/CARDINAL Coll . – “ the DATE LAW ) in respect of among other things livestock ( živý a mŕtvy inventár – “ the stock ” ) brought into the cooperative . He also claimed interest for the late payment of the compensation sought .

On DATE ORG ruled that the remaining claims , that is to say the claims for compensation for membership and for the stock , would be determined in a new set of proceedings which was at the same time opened under a different file number . In DATE the action was registered again under a new file number .

The action was determined on DATE by ORG and , on appeal , on DATE by ORG ( Krajský súd ) . The courts established the financial value of the applicant ’s membership interest in the cooperative and found that he fulfilled all the conditions for being compensated . As to the form of the compensation , they relied on the DATE amendment and ordered that the cooperative was to choose between granting the applicant agricultural equipment , issuing him shares or paying him an amount of money corresponding to the value of his interest . The applicant ’s membership interest in fact represented his rights in respect of the estate of the cooperative . Although it could be settled in several ways , a share in the cooperative was the most appropriate way of compensating him for that interest . The nature of this claim was not financial and , therefore , no late payment interest could be imposed . The courts further established the financial value of the stock and ordered that the cooperative pay the relevant amount plus late payment interest to the applicant . The matter became res iudicata on DATE .

The applicant filed a petition for judicial enforcement of the above judgments . The enforcement commenced but was subsequently stayed on the defendant ’s appeal on the ground that the judgments had been challenged by way of an extraordinary remedy ( see below ) .

On DATE the Prosecutor General acceded to the defendant ’s request and exercised his discretionary power to challenge the judgments of DATE and DATE by means of an extraordinary appeal on points of law ( mimoriadne dovolanie ) on the defendant ’s behalf .

On DATE ORG ( Najvyšší súd ) dismissed ORG appeal . Its judgment was final .

The applicant then unsuccessfully sought the reopening of the proceedings .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8 - Positive obligations;Article 8-1 - Respect for private life);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

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

At the relevant time the applicant was a businessman and the owner of company P. Among other activities , he held a number of contracts with the ORG for the rehabilitation of public roads .

On DATE ORG ( “ DNA ” ) of the prosecutor ’s office attached to ORG and ORG ( “ the prosecutor ” ) started criminal proceedings against the applicant on suspicion of trading in influence ( cumpărare de influenţă ) . In particular , the prosecutor alleged that : ( i ) the applicant had asked a senator , ORG , to talk to judges of ORG in order to influence the outcome of a case pending before that court which concerned a dispute between company ORG and the ORG agency responsible for public roads ; ( ii ) that ORG had asked ORG , the then President of ORG , to convince the judges handling the case to decide it in favour of company P. ; and ( iii ) that he had paid ORG money for their intervention .

On DATE the applicant , with his lawyer , went to the prosecutor ’s office . The prosecutor informed the applicant that on DATE he had started criminal proceedings ( urmărirea penală ) against him and ordered him not to leave town for DATE .

On DATE the applicant was summoned to appear at the prosecutor ’s office . At TIME the prosecutor informed him that he would be taken into custody for TIME and that the criminal trial against him had been set in motion ( punerea în mişcare a acţiunii penale ) by a decision of the prosecutor taken on DATE .

Following the arrest of the applicant and his co - accused , the prosecutor sought , on DATE , ORG approval for their pretrial detention for DATE . The prosecutor presented the facts of the case as they appeared from the evidence gathered , including transcripts of telephone conversations between the defendants that had been intercepted during a surveillance operation . Upon the GPE request , ORG , sitting in private as a single - judge bench , postponed the hearing to DATE in order to allow defence counsel to prepare their case .

On DATE ORG held a further hearing . The applicant and his co - accused gave statements to the court . During the hearing , at TIME , the ORG noted that the applicant ’s detention had expired and released him . He nevertheless remained in the courtroom of his own free will .

The High Court approved the prosecutor ’s request and ordered that the applicant be placed in pre - trial detention for DATE starting on DATE .

The applicant appealed and on DATE ORG , sitting as a CARDINAL - judge bench , quashed the decision given on DATE and annulled the detention order .

At the request of defence counsel , ORG prohibited journalists from taking photographs , filming or using any electronic devices during the court hearing .

On DATE at the prosecutor ’s office , the applicant acquainted himself with the prosecution file ( prezentarea materialului de urmărire penală ) .

On DATE the prosecutor committed the applicant and the other defendants to trial before ORG and ORG .

The case is currently under examination by ORG and ORG .

On DATE the applicant was arrested at the DNA ’s headquarters ( see paragraph CARDINAL above ) . DATE , he was handcuffed to GPE , CARDINAL of the co - accused , and taken out of the building through the main door with a view to his transfer to a police detention facility .

The applicant and the co - accused to whom he was handcuffed had to get into a police van through the back door , despite it being clear that they were encountering difficulties climbing in . They had to drag each other into the van while journalists were pressing close to them seeking statements . They were accompanied by police officers from the special intervention forces , who were wearing masks . Newspaper and television crews were present and the events were given widespread media coverage . Footage of the applicant ’s arrest was broadcast live and shown again on the main ORG evening news programmes .

On DATE ORG issued an official protest concerning the use of handcuffs on ORG judge GPE , the co - accused . They argued that the measure had not been justified , had been abusive , contradicted the ORG ’s standards in the matter , and represented a means of intimidating and discrediting the judiciary .

From DATE to DATE news reports about the criminal investigation and the prosecution , accompanied occasionally by images of the defendants wearing handcuffs , were given significant airtime .

When the applicant was transferred from the police detention facility for court hearings , he was taken to and from ORG , as well as around the inside of the ORG building , in the following manner : the applicant was handcuffed to the co - accused ORG , surrounded by masked police officers , taken through the main doors and exposed to journalists for photographing and filming . The footage obtained by the journalists was broadcast afterwards .

From the beginning of the criminal prosecution against the applicant , numerous panel discussions were broadcast and journalists and politicians commented publicly on the events . Excerpts from conversations between the defendants which had been obtained through telephone tapping during a criminal surveillance operation conducted prior to the criminal prosecution made it into the newspapers before the applicant and his co - accused had been committed for trial . Those excerpts let believe that , on behalf of the applicant , senator PERSON and judge GPE tried to manipulate some of the judges from the panels ruling in a commercial case involving the applicant , and reported back to him on the progress of those alleged manoeuvres ; in the conversations among them , the senator , the judge and the applicant expressed in harsh words their disappointment that the outcome had not been favourable to the applicant , and made assumptions as to whether the remaining judges had been influenced by someone else .

Other pieces of evidence from the prosecution file were likewise published and commented on in the press .

The transcripts of telephone conversations intercepted during the surveillance operation first appeared in the press DATE and DATE .

NORP The applicant was held in the GPE police detention facility from DATE until TIME of DATE , when he was released .

He describes the conditions of his detention as follows : he was stripsearched when he arrived at the police detention facility , and was searched every time he was taken out of , or back to , his cell .

NORP Throughout his detention he was held in cell no . CARDINAL along with CARDINAL other detainees . The cell measured QUANTITY m and had CARDINAL bunk beds , a squat toilet and a sink . The pipes carrying water to the sink were broken , so there was water around the sink . On top of the toilet there was an improvised shower made out of a plastic barrel with a hose connecting it to the sink . Privacy was ensured by an oilcloth screen .

The cell had a window measuring QUANTITY with iron bars over it . The cell looked onto the interior courtyard of the building . The window was the only source of fresh air , but the amount of air let through was insufficient to clear bad smells from the cell . The only furniture in the cell was a table made out of boxes . A fluorescent lamp above the bed was constantly switched on , which made it difficult to sleep in the cell .

The applicant and his fellow detainees were allowed TIME of daily outdoor exercise , which took place in a small yard measuring CARDINAL x QUANTITY , surrounded by a brick wall . The yard had a metal door and was covered with a wire net .

According to the information provided by the ORG , the window in the applicant ’s cell measured QUANTITY and the artificial light in the cell was switched on or off at the request of the inmates . Personal hygiene was ensured by free medication and medical check - ups on request . The amount of time allowed for DATE outdoor exercise was TIME , but it was left to the detainees whether to take advantage of it or not .

On DATE the co - accused ORG lodged a criminal complaint against unknown persons for facilitating the publication of fragments from the prosecution file . He alleged a breach of professional secrecy ( încălcarea secretului profesional ) and abuse of office to the detriment of private ORG interests ( abuz în serviciu contra intereselor persoanei ) .

In a decision of CARDINAL DATE the prosecutor ’s office attached to ORG and ORG noted that the publication of the information from the prosecution file had occurred DATE and its source was the prosecutor ’s report to the ORG concerning the placing in pre - trial detention of senator PERSON , CARDINAL of the coaccused ( see paragraph CARDINAL below ) . The prosecutor also observed that it was not possible to determine which institution was responsible for the leak , but that it was most likely at the ORG that the breach had occurred . The prosecutor noted that the report in question did not belong to the category of non - public acts , which only covered the actual documents from the prosecution file and did not extend to the related correspondence .

It therefore concluded that no criminal offence had occurred .

On DATE ORG ( PERSON – “ the ORG ” ) began of its own initiative an internal inquiry into leaks to the press in several high - profile cases . The ORG also took account of an open letter addressed to it by ORG and the ORG whereby investigations were requested into how parts of prosecution files , in particular telephone interceptions , had been leaked to the press , with the result of pressure being put on the impartiality of judges . The ORG also had regard to a press release by ORG PERSON ) , which consisted of major non - governmental organisations specialising in the monitoring of the press in GPE , in connection with the above leaks to the press . The opinion expressed in the press release was that the publication of telephone conversations between private individuals was unlawful and breached the right to respect for their private life of the persons concerned .

The ORG limited its examination to CARDINAL such cases – CARDINAL of them being the present case – chosen because of their high profile and the media interest in them and because of the intense political debate they generated .

With regard to the present case , the ORG noted that the information leaked to the press was part of the prosecutor ’s report to the ORG made with a view to obtaining ORG ’s approval for placing senator PERSON , the applicant ’s co - accused , in pre - trial detention .

The prosecutor ’s request , dated DATE , had been sent to the ORG on DATE . ORG had granted it on DATE and its decision had been sent to the prosecutor ’s office on DATE .

The articles in issue , which had appeared in the press on CARDINAL , DATE and DATE , gave the prosecutor ’s report to the ORG as the source of the information .

The ORG examined the circuit of the prosecution file and concluded , on the basis of the evidence at its disposal , that the leak must have occurred while the case was before the ORG and that no judicial authority was responsible for the breach .

For these reasons , it decided to verify through which courts and prosecutor ’s offices the file had circulated , to publish a press release concerning that inquiry , and to forward the resulting report to the associations concerned .

The decision was given on DATE . It was not published .

Articles CARDINAL and CARDINAL of the former Civil Code , applicable at the time of the facts of the present case , provide that any person who has suffered damage can seek redress by bringing a civil action against the person who has intentionally or negligently caused it .

“ Any act committed by a person which causes damage to another shall render the person through whose fault the damage was caused liable to make reparation for it . ”

“ Everyone shall be liable for damage he has caused not only through his own acts but also through his failure to act or his negligence . ”

In order for the action to be admitted , the interested party must prove in court that the defendant committed an illicit act with responsibility under the civil law , that the claimant sustained damage , and that there is a causal link between the illicit act and the damage sustained .

According to LAW , the responsibility of the employer for the acts committed by an employee in the exercise of his functions may be engaged if the plaintiff proves that an illicit act was committed by that employee and that he has suffered damage as a result .

The relevant provisions of Decree No . CARDINAL concerning remedies for persons claiming damage to their dignity or reputation ( “ Decree No . CARDINAL ” ) , which was applicable at that time , are set out in GPE v. GPE ( [ ORG ] , no . CARDINAL , § CARDINAL , ECHR CARDINAL-V ) .

According to LAW , the accused person may only acquaint him or herself with the prosecution file at the end of the criminal prosecution . It follows from the ORG regulating criminal investigation and prosecution that before that date , the content of the criminal file is not public .

The ORG ( see paragraph CARDINAL above ) adopted best practice guidelines for the cooperation of courts and prosecutor ’s offices with the media . The document was published on the ORG ’s website and was communicated to all courts and prosecutor ’s offices . Recommendation no . CARDINAL § CARDINAL of those guidelines reads as follows :

“ Information released to journalists may not jeopardise the judicial proceedings , the principle of confidentiality or any other right recognised by domestic laws or by international treaties on fundamental rights to which GPE is a party . ”

On the question of access to the file , recommendation no . CARDINAL of the guidelines provides :

“ ( CARDINAL ) Journalists may not study the files during the criminal prosecution stage [ în faza de urmărire penală ] , unless the law or the internal regulations allow for it .

( CARDINAL ) During court proceedings the files and the records concerning the court ’s activities are public and may be consulted by any person who can justify a legitimate interest , and by journalists ... Exempted from this rule are ... files concerning ... proceedings for the confirmation and authorisation of telephone interceptions and the recordings thereof ; [ these files ] may only be consulted by the prosecutor , the parties , and experts and interpreters appointed in the cases concerned . ”

NORP The internal regulations of the courts were adopted by the ORG on DATE and first published in the Official Bulletin no . CARDINAL of DATE . The relevant provisions on the publicity of case - files applicable at the time of the facts of the present case state as follows :

“ ( CARDINAL ) Files and records concerning a court ’s activities are public and may be consulted by any person who can justify a legitimate interest ... requests made by journalists will be examined by the spokesperson ...

( CARDINAL ) Files concerning ... proceedings for the confirmation and authorisation of telephone interceptions and recordings may only be consulted by counsel , the parties , and experts and interpreters appointed in the relevant cases in accordance with the applicable regulations ... ”

“ ( CARDINAL ) The court ’s clerk will be present in the hearing room TIME before the beginning of the court hearing , to enable the files to be consulted ... ”

The Government submitted to the ORG several examples of domestic court decisions ordering journalists and public institutions to pay compensation for damage to reputation caused by press articles .

Among those decisions there are a few whereby the courts ordered public institutions to pay damages to private individuals who proved that they had been damaged by press releases issued by those institutions ( notably ORG police : final decision no . CARDINAL of DATE of ORG , or ORG : decision no . CARDINAL of DATE of ORG ( not final ) ) . They also ordered ORG to pay compensation to the claimants in a criminal case where the local prosecutor ’s office had sent to the press for publication the prosecutor ’s decision to prosecute and the request for detention pending trial , and by so doing , that authority had allowed the accused persons to be identified and had given information implying their criminal guilt before their conviction by a final court decision ( decision no . CARDINAL of DATE of ORG ( not final ) ) .

Extracts from the relevant ORG texts on freedom of the press and protection of the right to private life are set out in ORG v. GPE [ ORG ] , no . CARDINAL/CARDINAL , § § DATE , DATE .

ORG for the Prevention of Torture ( “ CPT ” ) visited a number of police detention facilities in GPE in DATE , including the one where the applicant was held . Its observations concerning the GPE police detention facilities were : that the living space available to detainees was QUANTITY . m per person , which fell short of its requirements of QUANTITY m ; that overcrowding remained a problem ; that there was not enough natural light and fresh air ; that the sanitary facilities , including the toilet , were not completely separated from the living space ; that a significant number of cells were dirty and badly maintained ; and that the detainees were not provided with the necessary products for maintaining personal hygiene . It also noted that the detainees were only allowed TIME of daily outdoor exercise , and the exercise areas were small , austere and without any exercise equipment . It found there had been no significant improvement since its DATE visit despite its recommendations following that visit . It therefore renewed its recommendations and requested that the ORG take action to improve the conditions of detention in those facilities in order to bring them into line with the applicable standards .

The ORG further noted that the judge responsible for examining actions lodged under PERSON no . LAW delegat - “ the delegate judge ” ) did not visit the police detention facilities on a regular basis .


Violation of Art. 6-1;Violation of Art. 13;Remainder inadmissible;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant instituted civil proceedings against a company , ORG , and ORG ( “ the ORG ” ) in ORG ( PERSON sodišče v Mariboru ) seeking compensation and restitutio in integrum in respect of damage caused by the construction of a motorway near real estate he owned .

On DATE the ORG entered into force in respect of GPE . Thereafter , the ( renamed ) ORG ( Okrožno sodišče v Mariboru ) held CARDINAL hearings in the case . The hearing held on DATE was adjourned sine die in order for the applicant to submit further submissions . The next hearing scheduled for DATE was called off at the applicant ’s request due to a change in his legal representation . Subsequently , the hearing held on DATE was adjourned sine die since the parties were given DATE to reach an out - of - court settlement . On DATE the applicant informed the court that the settlement had not been reached . The next hearing , held on DATE , was adjourned until DATE ( see paragraph CARDINAL below ) in order for the applicant to reply to the ORG ’s late submissions . However , due to another change in his legal representation , the applicant failed to submit his reply .

During the proceedings , the court appointed CARDINAL experts in construction science . The first expert , appointed on DATE , withdrew on DATE . DATE , the court appointed the second expert , who submitted a report on DATE . The third expert was appointed on DATE and submitted a report on CARDINAL DATE .

DATE and DATE the applicant submitted CARDINAL preliminary written submissions .

At the hearing held on DATE the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on the applicant on DATE .

On DATE the applicant appealed to ORG ( PERSON ) . In his appeal , the applicant referred , inter alia , to the building permits obtained by the ORG in DATE and DATE , which allegedly obliged the ORG to compensate the damage caused as a result of the construction work on the motorway .

On DATE the court allowed the applicant ’s appeal in part and remitted the respective part of the case to the first - instance court for re - examination .

On DATE the applicant lodged a constitutional appeal against the second - instance judgment . The appeal was dismissed by ORG on DATE due to non - exhaustion .

Meanwhile , in the remitted part of the proceedings , the applicant lodged , DATE and DATE , CARDINAL preliminary written submissions and adduced evidence .

On DATE the court held the first hearing in the remitted proceedings , which was then adjourned sine die . Although the reasons for the adjournment were not stated in the records of the hearing , it appears that the applicant asked the court to allow him a DATE time - limit to prepare his answer to the ORG ’s preliminary written submissions of CARDINAL DATE which he had received only at the hearing . He further asked the court to adjourn the hearing until ORG had decided on his constitutional appeal ( paragraph CARDINAL above ) . At the same time he also made a request for the withdrawal of the sitting judge . That request was rejected on DATE .

On DATE the court forwarded a document concerning an assessment of certain plots of the relevant real estate to the parties . They submitted their pleadings in reply by DATE .

On DATE the court appointed another expert in construction science and an agricultural expert . The experts submitted their reports on DATE and DATE respectively .

The court held hearings on DATE and DATE .

At the hearing held on DATE the court decided to deliver a written judgment . The judgment , upholding the applicant ’s claim in part , was served on him on DATE .

On DATE the applicant appealed to ORG .

On DATE the court dismissed the applicant ’s appeal .

On DATE the applicant lodged an appeal on points of law with ORG sodišče ) .

On DATE the latter dismissed the appeal as unfounded in so far as the compensation was concerned and as inadmissible in respect of the remainder .

On DATE the applicant lodged a constitutional appeal . The proceedings are currently pending before ORG .

The Act on the protection of the right to a trial without undue delay ( Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja , ORG , no . DATE CARDINAL Act ” ) became operational on DATE . It provides for CARDINAL remedies to expedite pending proceedings – a supervisory appeal ( nadzorstvena pritožba ) and a motion for a deadline ( rokovni predlog ) DATE and , under certain conditions , for a claim for just satisfaction in respect of damage sustained because of the undue delay ( zahteva za pravično zadoščenje ) . The relevant provisions read as follows :

“ ( CARDINAL ) If a party considers that the court is unduly protracting the decision - making , he or she may lodge a supervisory appeal in writing before the court hearing the case ; the decision thereon is taken by the ... president of the court

“ ( CARDINAL ) If , under section CARDINAL ) or ( CARDINAL ) of this LAW , the president of the court dismisses the supervisory appeal or fails to respond to the party within DATE or fails to send the notification referred to in section CARDINAL(CARDINAL ) of this LAW within the said time - limit or if appropriate procedural acts have not been performed within the time - limit set in the notification or ruling of the president of the court , the party may lodge a motion for a deadline under section CARDINAL(CARDINAL ) of this LAW with the court hearing the case .

“ ( CARDINAL ) The president of the higher court in the judicial area covering the local court , district court or other court of first instance , shall be competent to decide on the motion for a deadline concerning cases heard by the local court , district court or other court of first instance .

( CARDINAL ) The president of ORG shall have the competence to decide on the motion for a deadline concerning cases heard by a higher court or a court having the status of higher court .

( CARDINAL ) The president of ORG shall have the competence to decide on the motion for a deadline concerning cases heard by ORG .

“ The president of the court hearing the case shall forthwith refer the motion for a deadline together with the case file and the supervisory appeal file to the president of the court competent to decide on the motion for a deadline . ”

“ ( CARDINAL ) If the supervisory appeal lodged by the party was granted or if a motion for a deadline has been lodged , the party may claim just satisfaction under the present Act .

“ ( CARDINAL ) Proceedings to enforce a claim for just satisfaction , provided that the condition referred to in section CARDINAL ) of this Act is met , shall be instituted by a party by means of a motion for settlement lodged with the State Attorney ’s Office with a view to reaching an agreement on the type or amount of just satisfaction . The party may lodge such motion within DATE of the final resolution of the case . The ORG Attorney ’s Office shall rule on the motion of the party within DATE if it establishes that the just satisfaction claim is substantiated . Until the expiry of the above - mentioned period , the party may not assert any claim for monetary compensation by way of just satisfaction by bringing an action before the competent court .

( CARDINAL ) If , in accordance with paragraph CARDINAL of this section , the agreement has been reached with the party , the State Attorney ’s Office shall enter into an out - of - court settlement with the party . ”

“ ( CARDINAL ) If no agreement under LAW of this LAW is reached upon the motion for settlement , or the ORG Attorney ’s ORG and the party fail to negotiate an agreement within DATE of the motion being lodged , the party may bring an action for damages .

( CARDINAL ) An action for damages against GPE shall be brought not DATE after the final resolution of the party ’s case .

“ ( CARDINAL ) In cases where a violation of the right to a trial without undue delay has already ceased to exist and the party had filed a claim for just satisfaction with the international court before the date of implementation of this LAW , the ORG Attorney ’s ORG shall offer the party a settlement on the amount of just satisfaction within DATE of the date of receipt of the case referred by the international court for the settlement procedure . The party shall submit a settlement proposal to the ORG Attorney ’s ORG within DATE of receipt of the proposal of the ORG Attorney ’s ORG . The State Attorney ’s Office shall decide on the proposal as soon as possible and within DATE at the latest . ...

( CARDINAL ) If the proposal for settlement referred to in paragraph CARDINAL of this section is not acceded to or ORG and the party fail to negotiate an agreement within DATE of the date on which the party filed its proposal , the party may bring an action before the competent court under this LAW . The party may bring an action within DATE of receiving notification from ORG that the party ’s proposal referred to in the previous paragraph was not acceded to , or after the expiry of the period fixed in the previous paragraph for ORG to decide to proceed with settlement . Irrespective of the type or amount of the claim , the provisions of LAW concerning small claims shall apply in proceedings before a court . ”

NORP The relevant provisions of LAW ( Zakon o pravdnem postopku , ORG , no . CARDINAL/CARDINAL ) provide :

“ A judgment , against which an appeal can no longer be lodged , shall become final ( pravnomočen ) , in so far as the party ’s claim or counter - claim has been decided therein .

“ The parties may lodge an appeal against a judgment delivered at first instance within DATE from the service of its written grounds ...

An appeal , lodged on time , precludes the judgment from becoming final in the part which has been challenged in the appeal . ”

“ The parties may lodge an appeal on points of law against a final judgment , delivered at second instance , within DATE from the service of its written grounds . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

In DATE the applicant ’s car was seized by the police in connection with criminal proceedings instituted against him on charges of alleged forgery of the car ’s registration numbers .

On DATE the applicant was acquitted of the charges , the court having found , in the light of expert opinions , that there were no grounds on which to find that the car ’s registration numbers had ever been tampered with .

In DATE the car was returned to the applicant . Having established that the car ’s condition had deteriorated during the period when it had been seized by the police , he lodged a compensation claim against the prosecuting authorities who had dealt with his case . The applicant claimed ORG CARDINAL [ ORG CARDINAL ] as compensation . The statement of claim read as follows :

“ The defendant ORG seized the car concerned in the present case ( ... ) owned by the applicant .

Evidence : The seizure orders of CARDINAL and DATE .

The plaintiff twice requested the defendant to lift the unlawful seizure order , which was eventually done on DATE on the strength of an order of ORG of DATE given in the pursuance of the enforcement of the final judgment of that court of DATE .

Evidence : The summonses of DATE and CARDINAL DATE ; judgment of ORG ( ... ) and the order of DATE .

As a result of the plaintiff having been deprived of the use of the car and its having been parked on an open car - park for DATE , the car was irreparably damaged which reduced its value by ORG . A detailed description of the damage is to be found in the attached expert opinion of DATE , Ref . No . CARDINAL . ”

The applicant attached CARDINAL expert opinions to his statement of claim : the opinion Ref . No . CARDINAL and another one , from which it appeared that the car ’s market value had diminished , from DATE to DATE , from ORG ( appr . CARDINAL ORG ) to LAW ( appr . CARDINAL ORG ) .

The defendant ORG , represented by the prosecutor ’s office , in its pleadings requested that the action be dismissed in its entirety . It argued , inter alia , that before the seizure the car had already been parked for DATE in conditions similar to those at the car - park where it had been parked after the seizure . No description of the car ’s condition at the date of the seizure had been prepared , which called into question the plaintiff ’s conclusion that the car had been damaged after that date .

On DATE ORG dismissed his action . The written grounds of the judgment , insofar as relevant , read as follows :

“ On DATE police officers of the GPE police station seized a car owned by the plaintiff . ( ... ) they established that the registration number on the car ’s chassis had been tampered with . By a decision of the same date investigations were instituted . Minutes of the seizure were drawn up without providing a detailed description of the car ’s technical condition .

On DATE the prosecutor of PERSON confirmed the seizure , finding , in the light of available evidence , that it was justified . ( ... ) Subsequently , by a decision of DATE ( ... ) the car was declared to be material evidence in the case and it was put in a supervised car - park . ( ... ) On DATE ORG admitted evidence from an expert opinion . Subsequently , ORG of the Silesian Police examined the car and submitted , on DATE , its opinion . It transpired therefrom that the car had its original numbers . [ However ] a part of the car ’s bodywork on which these numbers were fixed had characteristics indicating that it had been placed on the car after it had been produced .

As a result of these findings , on CARDINAL DATE ORG filed a bill of indictment against the plaintiff , charging him with an offence punishable under LAW in that the original numbers had been tampered with in such a way that a part of the bodywork had been taken off a car of the same make and fixed to the applicant ’s car .

During the criminal proceedings ORG in GPE gave an opinion ORG of DATE in which it established that the car in question had its original identification numbers and that there were no indications that these had been tampered with .

By a judgment of DATE ORG acquitted the applicant of the charge and ordered that the seized car be returned to him . No appeal had been lodged against this judgment . By a decision of DATE the enforcement of this judgment was ordered and on DATE the applicant collected the keys of the car .

( ... ) the plaintiff claimed compensation for , in his opinion , unjustified and unlawful seizure of the car , for the fact that he could not use it and for the reduction in the car ’s value caused by the fact that it had been parked in an open car - park . He referred to LAW . ( ... )

The liability of the ORG for damage caused by its agents is governed by LAW . The prosecutor , LAW of this provision , is a ORG agent . ( ... ) ORG is to be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him or her if he or she was at fault for the actions or omissions concerned and when a normal causal link can be established between such acts or omissions and the damage sustained .

The fault of the ORG official is a necessary condition for the ORG ’s liability in tort to arise . If such a liability is to arise , the ORG agent must be at fault for his acts , which also means that his or her conduct must be wrongful . The wrongfulness of the agent ’s conduct is to be understood in such a way that it is at variance with the legal order , i.e. in breach of applicable provisions of law and also contrary to universally accepted principles of community life . For the assessment of the fault of the ORG agent LAW , which obliges the debtor to act with due diligence , is also relevant .

Hence , in the present case for a finding of the ORG ’s liability it is necessary to establish that the conduct of the agent concerned , i.e. the prosecutor of the GPE prosecuting office , was wrongful and that he was at fault .

In the court ’s opinion , there are no grounds on which such a finding can be made . The actions of the prosecutor were taken pursuant to valid provisions of procedural law . He had recourse to his competences laid down by law . It can not be said that his conduct was unlawful , either when he confirmed the seizure of the car , or when he filed the bill of indictment against the plaintiff with the court . The prosecutor undertook these steps on the basis of the material obtained in the case , including the expert opinion prepared during the investigations . His conduct can not be deemed to have been wrongful .

Not every acquittal of an accused must necessarily lead to the liability of the ORG for the acts of the prosecutor involved in the case . For such liability to arise it is necessary to make a finding of the agent ’s fault . The fact that certain decisions given in the proceedings are erroneous because , for instance , the agent erred in the assessment of facts , does not by itself give rise to liability . It must be taken into consideration that the expert opinion prepared during the judicial proceedings in the present case fundamentally differed from the opinion prepared for the purposes of the investigations . There are no grounds on which to find that the prosecutor failed to act diligently in the conduct of the case .

As regards the conditions in which the car was stored during the time of seizure , it has to be noted that it was effected in compliance with applicable provisions . The car had been parked in a supervised car - park . The plaintiff has failed to show that during that time his car was damaged , or to establish what was the car ’s technical condition at the date of its seizure . In particular , he failed to show that the damage resulted from any wrongful conduct on the part of ORG agents .

Consequently , his action had to be dismissed . ”

The applicant appealed . On DATE ORG dismissed his appeal . The court first recalled the background of the proceedings . It summarised the applicant ’s appeal in the following way :

“ In his appeal the plaintiff argued that the first - instance judgment was in breach of LAW as well as of LAW . ( ... ) He argued that it was not open to any doubt , in the light of legal writing and case - law , including that of ORG , that when damage was caused by a public official , the fact that damage occurred was sufficient for civil liability to arise – see the judgment of ORG . In his submission , the arguments advanced by the first - instance court concerning fault , due diligence and unlawfulness were in breach of the LAW and amounted to a clumsy polemic . ”

The grounds for the judgment further read :

“ The plaintiff ’s appeal can not be allowed .

The opinion of ORG that Article CARDINAL of LAW constitutes the legal basis for the plaintiff ’s claim must be shared ; however , it can not be interpreted without LAW being taken into account .

Article CARDINAL of the PERSON reads as follows : ( See Relevant domestic law ) . Its analysis must lead to a conclusion that the civil liability of the ORG agent is dependent on provisions of law having been breached and is independent of the agent ’s fault . In the light of LAW , [ an interpretation used by civil courts before the judgment of ORG made the agent ’s fault a constitutive requirement for the ORG ’s liability to arise ] is inadmissible .

The LAW in its LAW clearly indicates that the organs of the ORG are obliged not to act in breach of law ; consequently , the liability of the ORG is independent of the fault of the agent . In the opinion of ORG the objective unlawfulness of the acts of public officials is a sufficient premise for the liability of the ORG to arise .

ORG is in disagreement with the opinion expressed by ORG that the fault of the ORG agent was material for the finding of the ORG ’s liability . However , it transpires from the findings made by that court that the prosecutor had been acting in compliance with applicable procedural provisions . When acting [ during the criminal procedure ] he had been making use of his competences . He had been acting within limits as defined by law and had not breached it , which excludes the ORG ’s liability .

Consequently , the appeal had to be dismissed . ”

Article CARDINAL of the LAW reads :

“ CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .

Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .

The right of ownership may only be limited by means of a statute and only to the extent that it does not violate the substance of such right . ”

Article CARDINAL § CARDINAL of the LAW reads :

“ Everyone shall have the right to compensation for any harm done to him by any action of an organ of public authority which is contrary to law . ”

Articles CARDINAL et seq . of ORG ( ORG cywilny ) of DATE provide for the ORG ’s liability in tort . In the version applicable until DATE , Article CARDINAL § CARDINAL read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the course of carrying out the duties entrusted to him . ”

According to the old case - law of ORG , a plaintiff seeking damages under LAW had to show that the act in question was unlawful and that the ORG agent had committed a fault ( ORG judgments : No . I PR CARDINAL/CARDINAL of CARDINAL , unpublished , No . I CR CARDINAL/CARDINAL of DATE , unpublished and No . I CR CARDINAL/CARDINAL of CARDINAL , unpublished ) .

Under the former LAW , if damage was caused by the ORG official as a result of his / her giving a decision or other official act , ORG was liable only if the giving of the said decision amounted to an infringement of laws punishable under criminal law or under any disciplinary regulations , and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority , or was otherwise recognised by a superior authority .

On DATE the Law of CARDINAL DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to give a ruling ( orzeczenie ) or decision ( decyzja ) where there is a statutory duty to do so , reparation for [ the damage ] may be sought after it has been established in the relevant proceedings that the failure to give a ruling or decision was contrary to the law , unless otherwise provided for by other specific provisions . ”

However , under the transitional provisions of LAW , LAW as applicable before DATE shall apply to all events and legal situations that subsisted before that date .

On DATE ORG ( PERSON ) gave a judgment in respect of CARDINAL constitutional complaints in which the applicants challenged the constitutionality of ORG CARDINAL and CARDINAL of LAW . They alleged , in particular , that those provisions were incompatible with LAW and CARDINAL § CARDINAL of the LAW insofar as they guaranteed access to court and a right to compensation for damage caused by acts of public authorities .

In its judgment the ORG held that LAW was compatible with LAW in so far as it provided that ORG was liable for damage caused by the unlawful action of a ORG official carried out in the course of performing his duties . It further held that even though LAW was compatible with LAW , it was contrary to LAW since it made the award of compensation for such damage dependent on the personal culpability of the ORG official concerned , established in criminal or disciplinary proceedings . This restriction on access to a court , in the opinion of ORG , put excessive obstacles in the way of an individual ’s right to have damage caused by actions of public authorities compensated .

On DATE , the date on which ORG judgment took effect , LAW was repealed .

Pursuant to LAW , objects to be used as evidence in a criminal case or for the purposes of securing the payment of fines , can be seized by the police or by the prosecuting authorities .


CASE OF PLAKHTEYEV AND PLAKHTEYEVA v. UKRAINE

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively and live in GPE , the GPE region . The first applicant is a farmer who specialises in arable crops . The second applicant is his mother , a pensioner .

On DATE the first applicant was stopped by tax police officers when driving a lorry leased from his mother . On checking the lorry the officers discovered QUANTITY of wheat , QUANTITY of flour and QUANTITY of wheat middlings for which the applicant had no proper documents . The police officers drew up a report on an administrative offence and seized the lorry and the load pending adjudication of the case by the court .

On DATE ORG ( the “ ORG ” ) found that the first applicant had transported the property of a third person for sale without a relevant business permit and was therefore guilty of unlawful business activity ( an administrative offence ) . ORG fined the applicant CARDINAL NORP hryvnias ( ORG ) and ordered the confiscation of the flour and wheat middlings . It further held that the QUANTITY of wheat were not subject to forfeiture as they belonged to the first applicant .

According to the applicants , after the judgment of CARDINAL DATE they applied on several occasions to ORG ( ORG ” ) , requesting that the lorry and the wheat load , which were not covered by the confiscation order , be returned to them . Their requests were rejected however .

On an unspecified date the confiscated products were sold and the funds were transferred to the ORG budget .

On DATE the President of ORG ( subsequently renamed as ORG ) , following an extraordinary review , quashed the judgment of DATE , stating that the conviction of the first applicant and the imposed penalties had been unsubstantiated . He therefore closed the case .

On DATE ORG returned the lorry and the wheat load to the applicants . According to the applicants the wheat load had deteriorated significantly and the lorry was damaged when returned .

On DATE the applicants lodged a claim with ORG against ORG and ORG seeking damages for the wrongful conviction ; for the groundless seizure and lengthy detention of their property ; and for the deterioration of their property when in charge of ORG . They claimed in particular that ORG unlawfully retained the lorry and the wheat load despite the fact that those objects were not covered by the confiscation order ; and that the lorry and the wheat load had significantly deteriorated when returned .

On DATE ORG declared the claim inadmissible , stating , in particular :

“ According to LAW , compensation for pecuniary and non - pecuniary damage caused in the course of the administration of justice can be paid by the ORG to a person who has been groundlessly sentenced provided that the judgment in a criminal case has been quashed as unfair .

However , even in such a case the damage is compensated by the ORG , and not by a court or a judge .

Therefore , the court ( or judge ) as a body ( or individual ) administering justice can not be a defendant in civil litigation , as the law provides another mechanism for correcting mistakes and irregularities committed in the course of the administration of justice . ”

The court did not give any reasons why the part of the applicants’ claim submitted against ORG could not be considered by the court .

By a letter of DATE the Deputy Chairman of ORG confirmed to the first applicant that he could claim compensation for damage , allegedly inflicted by ORG , by filing a relevant civil suit with a court .

On an unspecified date ORG , having made an internal inquiry , established that ORG had failed to take the necessary steps to return to the owners the lorry and the wheat load in time . It further concluded that disciplinary measures were needless since the relevant official had retired .

On DATE the applicants lodged with ORG a cassation appeal against the decision of DATE , contending that the refusal to consider their claim against ORG and ORG had been unlawful .

On DATE , following their request of CARDINAL DATE , ORG reimbursed to the applicants the value of the confiscated products .

On DATE ORG rejected the ORG cassation appeal against the decision of DATE , finding that there had been no procedural irregularities . The applicants were not present at the hearing . By a letter of DATE ORG informed the applicants of that decision .

Section CARDINAL of the LAW provides , inter alia , that everyone is guaranteed the right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers .

Section QUANTITY of the LAW provides that everyone has the right to receive compensation from the ORG or municipal authorities for pecuniary and non - pecuniary damage incurred as a result of the unlawful actions or omissions of ORG bodies , municipal authorities or their officials in the course of the exercise of their powers .

Section CARDINAL of the LAW concerns the presumption of innocence and provides , inter alia , that if the sentence in a criminal case is quashed as unfair the ORG must provide compensation for any pecuniary and non - pecuniary damage resulting from the groundless conviction .

Section CARDINAL of the Code provided that compensation was to be paid for damage caused by the acts of ORG entities and public officials in the course of the exercise of their administrative powers in accordance with the general rules , unless the law provided otherwise .

Section CARDINAL of the Code provided , inter alia , that objects and documents used to commit an administrative offence could be seized by the competent authorities pending adjudication of the administrative case . Depending on the outcome of the administrative proceedings the seized objects and documents were thereafter to be either confiscated , destroyed , or returned to the relevant persons .

Section CARDINAL of the Code provided that a decision imposing an administrative penalty could be appealed , except for decisions given by the first - instance court . The latter were final and were not subject to the ordinary administrative appeal procedure , unless the legislation provided otherwise .

Section CARDINAL of the Act provided , inter alia , that court judgments in administrative cases were to be enforced by ORG as regards pecuniary penalties .