The applicant , PERSON , is a NORP national , who was born in DATE and lives in PERSON . She was initially represented before the ORG by Mr PERSON , and subsequently by PERSON , both lawyers practising in Riihimäki . The respondent Government were represented by their Agent , Mr PERSON , Director in ORG .

The facts of the case , as submitted by the parties and as they appear from the documents , may be summarised as follows .

In DATE the applicant fell down and injured her leg and ankle , sustaining CARDINAL different lasting injuries . She was granted a temporary employment - based disability pension . In DATE she lodged a further application .

On DATE the insurance company refused her a further pension , giving the following reasons for its decision :

“ According to LAW ( työntekijäin eläkelaki , lag om pension för arbetstagare ; CARDINAL ) section CARDINAL ( CARDINAL ) an employee is entitled to a disability pension if his or her capacity to work is reduced by CARDINAL for a minimum of DATE as a result of sickness , a defect or an injury . When assessing the decrease of working capacity , attention shall be paid to the employee ’s remaining capacity to pursue gainful employment through available work , which he or she can reasonably be expected to carry out . In addition , attention shall be paid to working experience , age and other comparable circumstances .

According to the information at hand on your state of health , you underwent rectifying surgery with a view to repositioning a fracture in DATE , after which the ossification has gone well .

We consider that your state of health does not prevent you from returning to your previous work . For these reasons , you could not be considered incapable of working after your pension ceased . That being the case , your application for a continued disability pension has been rejected . ”

The applicant appealed to ORG ( eläkelautakunta , pensionsnämnden ) .

In its observations of CARDINAL DATE to ORG the insurance company stated that it had reviewed the application and found that the applicant was entitled to a part - time employment - based disability pension from DATE , but it requested that the application for a full pension still be rejected as the applicant ’s work capacity had not decreased by CARDINAL . Moreover , the insurance company considered that the applicant did not need any professional rehabilitation . The observations were communicated to the applicant for comment .

In her written submissions the applicant primarily requested that she be granted a full disability pension as her incapacity to work had been reduced by CARDINAL for DATE . Alternatively , she requested that such a pension be granted temporarily from DATE until DATE . She argued that the insurance company had assessed her capacity for work as a bank clerk , although she worked as a real estate agent , which could not be considered as sedentary work . However , the insurance company had by DATE accepted the fact that she worked as a real estate agent .

On the strength of CARDINAL medical statements the applicant pointed out that all CARDINAL doctors examining her had considered her incapable for work as a real estate agent . The only doctor who considered her capable for work was the one who , without having ever examined the applicant in person , had reported on her case to the insurance company . If ORG in written proceedings were to consider that she was not entitled to a full disability pension , the applicant requested that ORG hear the doctors ORG and PERSON treating her and the doctor who had reported on her case to the insurance company as witnesses before ORG with a view to examining whether she was incapable to carry out her work as a real estate agent .

On DATE ORG , without hearing any witnesses , overturned the insurance company ’s decision , finding that the applicant was entitled to a full disability pension in the form of a rehabilitation allowance from DATE until DATE and to a part - time disability pension from DATE . The appeal was rejected as to the other claims . ORG , referring to LAW sections CARDINAL ( CARDINAL , CARDINAL - CARDINAL ) and CARDINAL b ( CARDINAL ) , gave the following reasons for the decision :

“ PERSON has been granted a rehabilitation allowance with a view to facilitating rehabilitation according to a care and rehabilitation plan . PERSON is prevented from pursuing gainful employment due to incapacity for work . PERSON ’s capacity for work has due to sickness decreased by CARDINAL up until DATE and thereafter by CARDINAL . When assessing the decrease of work capacity , attention has been paid to PERSON ’s remaining capacity for pursuing gainful employment through available work , which she can reasonably be expected to carry out . In addition , attention has been paid to [ her ] training , previous working , age and living conditions and other comparable circumstances . ”

The applicant appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) . She primarily requested a full disability pension as her incapacity to work had been reduced by CARDINAL . Alternatively , she requested such a pension temporarily from DATE until DATE .

The applicant , adducing further written medical statements , again pointed out that the opinion of the CARDINAL doctors treating her differed from the opinion of the doctor who had reported on her case to the insurance company , a person she had not even met . Moreover , she argued that ORG gave no reasons as to why DATE was decisive in its decision , although the doctors treating her had found that she was incapable for work at least until DATE . If ORG in written proceedings were to consider that she was not entitled to a full disability pension , the applicant repeated her request concerning hearing the doctors as witnesses . At this point she also proposed doctor PERSON as a witness . The applicant considered it important that they be heard also as to whether her capacity for work should be assessed differently as to the period prior to CARDINAL DATE and as to the period thereafter .

In its observations of CARDINAL DATE the insurance company maintained its earlier standpoint . They were communicated to the applicant for comment .

In its decision of DATE ORG noted that the applicant had submitted CARDINAL new written medical opinions . They had all been issued after ORG decision . It refused the request to hear the doctors as witnesses before ORG as manifestly unnecessary and upheld ORG decision . Referring to LAW sections CARDINAL ( CARDINAL ) and CARDINAL b ( CARDINAL ) and LAW ( laki vakuutusoikeudesta , lag om försäkringsdomstolen ; CARDINAL ) section CARDINAL , ORG gave the following reasons for the decision :

“ The reasons are given in ORG decision . In addition , ORG notes that according to the submitted medical information the fracture on PERSON ’s left ankle was in DATE noted to have ossified . A faulty alignment remains and a degenerative arthritis has developed in the ankle joint . PERSON has in a majority of the medical opinions been assessed as incapable of working either as a real estate agent or doing other work which places a strain on her legs . The medical opinions differ as to the duration of the incapacity . PERSON has worked as a bank clerk with different tasks for a long period of time . Having been laid off , PERSON took a real estate agent exam , but she did not manage to work as a real estate agent before she was injured . The ORG finds that PERSON can on the basis of the submitted information be considered to be partly able to work with tasks that correspond to her education and professional skills . Her ability to work can accordingly not be considered to have been reduced after DATE in such a way , i.e. by CARDINAL fifths , as to entitle her to a full pension under LAW . ”

No further appeal was possible .

Section CARDINAL ( CARDINAL ) of the then LAW ( Suomen hallitusmuoto , ORG ; CARDINAL ) provided that a decision must be reasoned . A new similar provision can be found in section CARDINAL ( CARDINAL ) of LAW ( NORP perustuslaki , PERSON grundlag ; GPE ) .

At the relevant time chapter CARDINAL , section CARDINAL ( CARDINAL/CARDINAL ) of LAW ( oikeudenkäymiskaari , rättegångsbalken ) provided that a judgment must be reasoned , indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated .

Section CARDINAL of the then LAW ( laki vakuutusoikeudesta , lagen om försäkringsdomstolen ; CARDINAL ) provided that proceedings in ORG were written . When there were exceptional reasons , ORG could however decide to hold an oral hearing . It also provided that the provisions concerning proceedings in general courts were , mutatis mutandis , applied to those before ORG .

According to the reservation made by GPE in accordance with LAW , as in force at the relevant time , GPE could not guarantee a right to an oral hearing in so far as NORP laws at the time of the events in issue did not provide such a right . This applied , inter alia , to proceedings which were held before ORG as the court of final instance , in accordance with section CARDINAL of LAW ( CARDINAL/CARDINAL ) , and proceedings before ORG in accordance with chapter CARDINAL , section CARDINAL of the Code of Judicial Procedure . GPE withdrew the reservation on DATE . The reservation was applicable to the present case .


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

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . He was represented before the ORG by PERSON , a lawyer practising in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr L. Apostol .

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

At the time of the events the applicant was employed by the NORP national railway company as a train attendant . On DATE CARDINAL of his colleagues , ORG , was arrested at work on suspicion of involvement in the smuggling of drugs by train to GPE . He had in his possession a bag containing a considerable quantity of marijuana . Later the same day the applicant was arrested . According to the police ’s version of the events , confirmed by ORG , the applicant ’s role was to hide the bag in a train in order to have it smuggled into GPE .

On DATE of the applicant ’s arrest he was taken to the police station , where he was allegedly subjected to ill - treatment . He did not confess to the offences he was accused of but only said that some time earlier ORG had enquired whether he would be willing to transport drugs to an unspecified direction and that he had replied no . He also stated that ORG had asked where it would be possible to hide drugs in the train . During the questioning he was assisted by a lawyer . A search was carried out at his home and a small quantity of marijuana was found . The police also found equipment for producing dried marijuana and a picture of him next to a large marijuana plant .

On DATE , after engaging a lawyer , the applicant complained to the prosecutor ’s office that he had been ill - treated at the police station . DATE the applicant underwent a medical examination by a forensic doctor , who found bruises on his face and scratches on his head and shoulder .

On DATE the prosecutor ’s office dismissed the applicant ’s complaint of ill - treatment and found that his injuries had been caused by his resistance to his arrest . The applicant appealed to the hierarchically superior prosecutor ’s office , which dismissed his appeal on DATE . He did not challenge this decision before the investigating judge .

During the criminal proceedings against him , the applicant submitted that he had been ill - treated to make him confess and that the small quantity of marijuana at his home had been planted by the police . The co - accused ORG submitted that he had agreed to incriminate the applicant during the investigation phase of the proceedings in exchange for a promise by the police not to prosecute him . He did not complain about any form of pressure or ill - treatment . The prosecution also obtained a medical report which stated that the applicant was not a user of marijuana .

On DATE ORG found the applicant guilty and sentenced him to seven years’ imprisonment on charges of fabricating narcotic substances for the purpose of sale . At the same time the court acquitted the applicant of the charges of attempted smuggling of narcotic substances . The court based its decision , inter alia , on the statements made by GPE immediately after his arrest and on the findings of the search of the applicant ’s home . The court dismissed the applicant ’s complaint that he had been ill - treated , relying on the prosecutor ’s decision . ORG was also found guilty and received the same sentence . Both the applicant and ORG appealed .

On DATE ORG upheld the applicant ’s appeal and acquitted him . The court found contradictions between ORG ’s statements in respect of the applicant made at the investigating stage of the proceedings and his testimony during the trial . Moreover , the court found the prosecution ’s version of the facts unreliable , because the applicant ’s passport had no longer been valid at the relevant time and he would not have been able to travel abroad on DATE in question as stated in the indictment . ORG ’s conviction was upheld by ORG . The prosecution and ORG appealed to ORG .

On DATE ORG upheld the prosecutor ’s appeal , quashed the judgment of ORG and upheld the judgment of the first - instance court . It dismissed the applicant ’s submission to the effect that he had been ill - treated during the investigation phase of the proceedings and observed that his ill - treatment complaint had been dismissed by the prosecutor ’s office . ORG also found that the prosecution had presented sufficient evidence to prove the involvement of the applicant in the fabrication of narcotics with the purpose of further sale .

According to Articles CARDINAL , CARDINAL and CARDINAL of LAW a complaint about ill - treatment is to be lodged with ORG and the decision of that office is to be challenged before the hierarchically superior ORG . The decision of the latter body can be challenged before an investigating judge . The explanatory judgments of ORG . CARDINAL and No . CARDINAL dated DATE and DATE respectively , confirm that this is the remedy to be used in cases concerning ill - treatment and torture .


Violation of Art. 6-1 (length of one set of proceedings);Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

The applicant concluded contracts concerning the lease of business premises inter alia with the following tenants : an entrepreneur PERSON , an entrepreneur PERSON , a company PERSON , and an entrepreneur PERSON

As these tenants failed to pay the rent , the applicant initiated the following proceedings against them .

On DATE the applicant lodged the action with the Bratislava ORG ( ORG súd ) . He sought an order for payment of unpaid rent , a contractual penalty for the late payment , and compensation in respect of the costs of the defendant ’s eviction .

On DATE ORG invited the applicant to pay the court fee , which he did on DATE .

On DATE , in summary proceedings , ORG issued a payment order ( platobný rozkaz ) in the applicant ’s favour . A copy of the order was mailed to the defendant but was returned by the postal service to ORG on DATE with the mention “ addressee unknown ” .

On DATE ORG requested information about the defendant ’s whereabouts from ORG in PERSON and ORG in GPE , which responded on CARDINAL and DATE , respectively .

ORG subsequently re - mailed a copy of the payment order of DATE to the defendant ’s address obtained from the above Registries . On DATE it was returned with the mention “ addressee unknown ” .

On DATE ORG requested that the payment order of DATE be served on the defendant by the police . The latter informed ORG on DATE that the defendant was not staying at the address officially registered as her permanent residence and that her current whereabouts were unknown .

On DATE ORG wrote to ORG asking whether the defendant was currently detained on remand or serving a prison sentence . ORG responded in the negative on DATE .

On DATE ORG quashed the payment order of DATE under LAW and CARDINAL of LAW holding that it had proven impossible to serve a copy of the order on the defendant in person .

On DATE ORG appointed an ex officio guardian to the defendant as the latter ’s whereabouts were unknown and it was not possible to secure her participation in the proceedings .

On DATE , following a hearing held on DATE , ORG granted the action . The judgment became final and enforceable in DATE .

The applicant filed the action on DATE with ORG . He sought an order for payment of a contractual penalty for the late payment of rent .

On DATE the defendant lodged a counterclaim .

On DATE ORG granted the action .

In a letter of DATE ORG informed the applicant of the amendment to LAW which had entered into force on DATE and which provided for a new remedy under the amended LAW in respect of delays in court proceedings . The applicant was requested to inform the ORG whether he used or intended to use this remedy in view of the requirement to exhaust domestic remedies pursuant to LAW .

NORP In a letter of CARDINAL DATE the Registry informed the applicant about the ORG ’s decision of CARDINAL DATE to declare inadmissible the application in the case of ORG and Others v. GPE ( app . nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , ORG CARDINAL-IX ) about the length of court proceedings on the ground that the applicants had failed to raise this complaint before ORG under LAW , as amended from DATE .

On DATE the ORG gave a supplementary judgment ( doplňujúci rozsudok ) in which it dismissed the defendant ’s counterclaim , a ruling which ORG had omitted to make in the original judgment of DATE .

The defendant challenged the judgments of DATE and DATE by appeals . On DATE ORG transmitted the casefile to ORG ( PERSON súd ) for a determination of these appeals .

On DATE ORG overturned the judgment of DATE , dismissed the applicant ’s action , and upheld the judgment of DATE .

In the meantime , on DATE , the applicant , who was represented by a lawyer , submitted a complaint under the amended LAW to ORG ( Ústavný súd ) . He formally directed the complaint against ORG and alleged that it had violated his right under LAW to a hearing without unjustified delay .

On DATE ORG declared the complaint inadmissible . It observed that the part of the proceedings before ORG , against which the complaint was formally directed , had ended with its judgments of DATE and DATE and with its carrying out of the related administrative tasks prior to submitting the case to ORG for a decision on the defendant ’s appeals . At the time when the constitutional complaint was lodged , ORG was no longer dealing with the case which was already with ORG . In these circumstances , an examination of the part of the proceedings before ORG could no longer serve to expedite the proceedings . Thus , in line with its established practice , ORG found that it was not called upon to examine the complaint .

On DATE the applicant lodged the action with ORG . He claimed an amount of money by way of compensation for unpaid rent and a contractual penalty for the late payment of the rent .

On DATE ORG granted the action . The judgment became final and enforceable in DATE .

NORP In DATE the applicant , who was represented by a lawyer , lodged a complaint under LAW with ORG . He asserted that ORG had violated his constitutional right to a hearing without unjustified delay .

On DATE ORG declared the complaint inadmissible . It observed that it had been its established practice to examine constitutional complaints only if the alleged violation occurred , or was still continuing , at the time when the complaint was lodged . Since at the time of the introduction of the applicant ’s complaint in DATE the proceedings at issue were already completed , the complaint could not be entertained .

NORP The President of the Chamber , however , did not share the majority view and gave a dissenting opinion . He observed that the practice of not examining constitutional complaints of length of proceedings where the proceedings were no longer pending at the time of the introduction of the complaint had developed within the legal framework of the LAW , as applicable prior to DATE . However , as from that date the LAW was amended and the relevant rules were different . According to him , the continuous application of this practice under the new constitutional provisions had no basis in the applicable statutory rules , was contrary to the approach of ORG and unacceptably impaired the complainant ’s right of access to ORG .

On DATE the applicant brought an action against PERSON in FAC . He claimed an amount of money which was due under a contract of lease of CARDINAL DATE .

On DATE ORG issued a payment order in the applicant ’s favour .

On CARDINAL DATE the defendant filed a protest ( odpor ) against the payment order by virtue of which the order was ex lege vacated .

On DATE ORG stayed the proceedings pending the outcome of proceedings in another action which the applicant had brought on DATE against entrepreneur PERSON on the basis of the above contract of CARDINAL DATE . It was observed that in the latter proceedings the questions of the defendant ’s legal capacity to act and of the validity of the contract of CARDINAL DATE were being determined . The determination of these questions was directly relevant for the present proceedings . Although this decision could have been appealed against within DATE from its service on the appellant , no appeal has been lodged .

On DATE ORG commenced ex officio a separate set of proceedings aimed at determining the defendant ’s legal capacity to act . These proceedings resulted in a ruling of ORG of DATE that the defendant lacked such capacity .

In the meantime , in DATE , the applicant , who was represented by a lawyer , had filed a complaint about the length of the proceedings in his action of DATE to ORG .

On DATE ORG declared the complaint inadmissible on the ground that the applicant had failed to exhaust ordinary remedies by challenging the decision of DATE by an appeal .

The proceedings in the action of DATE ended with dismissal of the action by a judgment of ORG of DATE . It was observed that the defendant had no legal capacity to act and that , therefore , the contract of CARDINAL DATE was not valid and no claims could be based on it .

On DATE ORG held a hearing in the action of DATE . The hearing was adjourned until DATE when ORG pronounced its judgment dismissing the action .

The issue of the costs of the proceedings was finally resolved by a decision of ORG of DATE .

Article CARDINAL § CARDINAL provides , inter alia , that every person has the right to have his or her case tried without unjustified delay .

Pursuant to LAW ORG could commence proceedings upon the petition ( podnet ) presented by any individual or a corporation claiming that their rights had been violated .

On DATE ORG enacted a constitutional law amending LAW . It was published in LAW under no . CARDINAL/CARDINAL .

Amendment no . CARDINAL/CARDINAL repealed LAW of the LAW with the effect as from DATE and introduced a new LAW with effect as from DATE .

Pursuant to Article CARDINAL , as in force from DATE , natural and legal persons can complain ( sťažnosť ) about a violation of their fundamental rights and freedoms . Under this provision , ORG has the power , in the event that it finds a violation of LAW , to order the authority concerned to proceed with the case without delay . It may also grant adequate financial satisfaction to the person whose constitutional rights have been violated as a result of excessive length of proceedings ( for further details see , for example ORG and Others , cited above ) .

The implementation of the above constitutional provisions enacted with effect from DATE is set out in more detail in sections CARDINAL of LAW ( Law no . CARDINAL/CARDINAL Coll . ) , as amended . The relevant LAW ( Law no . PERSON . ) was published in the Collection of Laws and entered into force on DATE .

Pursuant to section CARDINAL ( CARDINAL ) , as a general rule , the scope of ORG examination of a case is limited by the summary of the motion for commencement of the proceedings , as formulated in a standardised and prescribed form by the plaintiff .

Section CARDINAL ( CARDINAL ) provides that a constitutional complaint can be filed within DATE from the date on which the decision in question has become final and binding or on which a measure has been notified or on which a notice of other interference has been given . As regards the measures and other interferences , the above period commences when the complainant could have become aware of them .

According to its case - law under the former LAW of LAW , the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ’s rights under LAW . It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found . In ORG view it was for the authority concerned to provide redress to the person whose rights had been violated ( for further details see , for example , ORG v. GPE DATE . ) , no . CARDINAL/CARDINAL , DATE ) .

It has been ORG long standing practice to entertain constitutional petitions or , as the case may be , complaints about excessive length of proceedings only where the proceedings complained of are pending before the authority liable for the alleged violation at the moment when such petitions or complaints are lodged ( see , for example , decisions file nos . I. ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , PERSON . ÚS CARDINAL/CARDINAL , I. ÚS CARDINAL/CARDINAL , PERSON . ÚS DATE and many others ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He is represented by PERSON , a lawyer practicing in GPE region . The respondent Government are represented by PERSON , its Agent .

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

The applicant was discharged from ORG on DATE due to his bad state of health . The amount of his pension was determined on DATE .

In DATE the applicant instituted proceedings in the GPE ORG of Vinnytsia ( the “ ORG ” ) against ORG , seeking recalculation of his pension in view of the changes introduced to the legislation after his discharge .

On DATE the ORG , in the absence of the respondent , dismissed the applicant ’s claims as being unsubstantiated . In particular , it found that the applicant was not entitled to such an increase and that the amended legislation did not apply retroactively to the determination of the amount of his pension .

On DATE the ORG informed the President of ORG that it no longer intended to participate in civil proceedings concerning recalculation of pensions . It asked the President of that court to consider these cases in the absence of the ORG ’s representative . It also filed written objections .

On DATE ORG upheld the judgment of CARDINAL DATE .

The applicant lodged an appeal in cassation with ORG .

On DATE ORG , acting under paragraph CARDINAL of Chapter CARDINAL of LAW , transmitted the case - file to ORG for examination . It adopted no formal procedural decision on the transfer , or lack of , jurisdiction to hear cassation appeals in administrative cases .

On DATE ORG rejected the applicant ’s appeal in cassation as unsubstantiated . In particular , it upheld the reasoning of ORG and ORG . ORG ruled that the previous court decisions were correct as they were based on ORG no . CARDINAL of DATE .

On DATE , following communication of the case to the respondent Government , ORG gave a formal ruling by which it referred the applicant ’s cassation appeal lodged with ORG to ORG .

The applicant lodged no appeal in cassation with ORG against this decision .

LAW of GPE , DATE

Article CARDINAL

“ In GPE the system of courts of general jurisdiction is formed in accordance with the territorial principle and the principle of specialisation .

ORG is the highest judicial body in the system of courts of general jurisdiction .

The respective high courts are the highest judicial bodies of specialised courts .

Courts of appeal and local courts shall operate in accordance with the law .

The creation of extraordinary and special courts shall not be permitted . ”

Law of GPE on ORG of DATE

Section CARDINAL

ORG - the highest judicial body

“ CARDINAL . ORG of GPE is the highest judicial body within the system of courts of general jurisdiction ...

ORG of GPE :

CARDINAL ) NORP examines in cassation proceedings the decisions of courts of general jurisdiction in cases which , in accordance with procedural law , fall within its jurisdiction and / or re - examines all cases considered by courts of general jurisdiction ... ”

In accordance with LAW the court of cassation in administrative cases is ORG of GPE .

Under LAW the parties to administrative proceedings may lodge cassation appeals with ORG against the judgments or rulings of the first instance court and the court of appeal . The grounds for appeal in cassation are an erroneous application of the procedural or substantive law .

In accordance with LAW , ORG can quash or amend judgments and rulings of the first instance courts and the courts of appeal or adopt a new judgment upon appeal in cassation .

In accordance with LAW , the ORG reviews the decisions of ORG in the course of extraordinary review proceedings ( в порядку виключного провадження ) . In accordance with LAW such a review is a type of cassation review of the case . Under LAW , one of the CARDINAL grounds for review is the lack of coherence in judicial practice and the difference in application of the same legal provision by different higher courts that examine appeals in cassation ( ORG and ORG ) . ORG may also re - examine the case if there was a finding of an international judicial body that a judicial decision in an administrative case infringed GPE ’s international obligations .

In accordance with paragraph CARDINAL of Chapter VII of LAW , appeals in cassation which concern decisions of the courts of general jurisdiction ( civil and commercial proceedings ) given in administrative cases and which have not been examined by ORG by DATE shall be transferred for examination to ORG .

LAW states that the pensions shall be calculated on the basis of the salary paid to them , military rank , post occupied , time - in - service , etc . and other conditions determined by ORG .

On DATE the PERSON was amended and the amounts of pensions were increased by PERCENT .

Paragraph CARDINAL of the Resolution of ORG stated that , in accordance with LAW no . CARDINAL-ХІІ and paragraph CARDINAL of Resolution no . CARDINAL of the Cabinet of Ministers of GPE of DATE , recalculation of previously determined amounts of pensions should be effected with due regard to the base salary . Other relevant factors should be taken into account ( payment for rank , position , time - in - service , conditions of military service , secrecy , etc . ) .

More specifically , ORG drew the ORG attention to the fact that the pension legislation which was in force before DATE did not provide for recalculation of pension on the basis of new changes introduced into legislation after the persons concerned had been discharged from the military . In particular , ORG considered that the PERSON no . TIME , which entered into force on DATE , did not have retroactive effect and therefore claims for recalculation of pension based on the changes to the base military salary or additional payments that were introduced after a person ’s discharge from the military ( i.e. before DATE ) should not be allowed . Persons discharged from the military , who were given higher ranks after their retirement or discharge , had no right to recalculation of previously determined pension amounts .

In paragraph CARDINAL of its ORG , ORG informed the courts that a new law no . CARDINAL governing the issues of recalculation of pensions for former military servicemen would become effective as of DATE . Under the new law , all military pensions should be subjected to recalculation in the event of any changes introduced to constituent parts of the payments for acting military servicemen ( payment for rank , time - in - service , post occupied , etc . ) . Recalculation of pensions shall be effected from the date of recognition of this right and within the time - limits established by LAW no . CARDINAL-ХІІ. The ORG also stated that under the new law military pensions should be recalculated , but without retroactive effect .

In accordance with paragraph CARDINAL of the ORG , recalculation of pensions under LAW no . CARDINAL-ХІІ should be effected from DATE following DATE in which recalculation of pension was authorised by law . ORG informed the courts that where , in accordance with the legislative changes , a pensioner had obtained a right to an increase in his the pension , the difference should be paid for a period not exceeding DATE .

ORG also recommended that in examining the instant category of cases the courts should take into account the categories of military servicemen discharged from the military due to its reform ( PERSON of DATE no . CARDINAL that entered into force on DATE ) . The law covered all military servicemen discharged from the military as of DATE ( LAW no . CARDINAL-IV ) . In accordance with paragraph CARDINAL of LAW no . CARDINAL-IV , former military servicemen , who had attained the age of DATE and had served in the military for DATE could receive an increase in the amount of pension of PERCENT of the base salary . The amounts of pensions were to be determined in accordance with the PERSON no . CARDINAL-ХІІ.

In accordance with paragraph CARDINAL of the ORG , the courts in examining military pension cases had to take into account that LAW CARDINAL of the PERSON no . CARDINAL-ХІІ the amounts of pensions already determined for their recipients under the law were to be paid for DATE of DATE before the pensioner requested recalculation . Also , the sums of pension not received by the pensioner due to the fault of the body determining the amount of pension were to be paid for DATE without any time limitation .

Under paragraph CARDINAL of ORG , pensioners had the right to receive compensation for pecuniary and non - pecuniary damage , in accordance with the procedure established by law ( LAW of the PERSON no . CARDINAL “ On ORG and Members of their Families ” of DATE ) .

The Government provided the following resolution of the Administrative division of ORG :

- Resolution of DATE ( case no . CARDINAL - CARDINAL во CARDINAL ) ;

- Resolution of DATE ( case no . CARDINAL - CARDINAL сво CARDINAL ) ;

- Resolution of CARDINAL DATE ( case no . CARDINAL - CARDINAL во CARDINAL ) ;

- Resolution of DATE ( case no . PERCENT во CARDINAL ) .

The applicant referred to the following judgments given by the GPE ORG of Vinnytsia , in which the PERSON requests for recalculation of their pensions were allowed :

- judgment of DATE ( case no . CARDINAL - CARDINAL/CARDINAL/CARDINALp . ) ;

- judgment of DATE in the case of B.V.V. against ORG ;

- judgment of DATE ( case no . CARDINAL - CARDINAL/CARDINALp . ) ;

- judgment of DATE ( case no . DATE . ) ;

- judgment of CARDINAL DATE ( case no . CARDINAL - CARDINAL/CARDINALp . ) .

The Government referred to the following judgments given by the domestic courts , in which the claims for recalculation of pensions were rejected :

- rulings and judgments of the L’viv ORG of CARDINAL DATE ( CARDINAL rulings ) and DATE ( CARDINAL judgments ) DATE .


The applicant [ Mr PERSON ] is a NORP national , who was born in DATE and lives in GPE ( departement of GPE ) . He was represented before the ORG by PERSON , of ORG . The respondent Government were represented by their agent , Mr PERSON .

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

In DATE the applicant acquired parcels of land subject to a prohibition on building in the administrative district ( commune ) of PERSON on FAC ( Charente - Maritime ) . The applicant used the land for caravanning .

By a ministerial order issued on DATE , the whole of FAC was included in the list of monuments and places of interest whose conservation or preservation was in the public interest from the artistic , historic , scientific , legendary or scenic point of view , in accordance with section CARDINAL of the Law of CARDINAL DATE on the conservation of natural monuments and places of interest , as amended .

The order was published in CARDINAL newspapers distributed in the administrative districts concerned : FAC ( on DATE ) and the DATE Sud - Ouest ( on DATE ) . It was republished in DATE edition of the former and the CARDINAL DATE edition of the latter . The order was also displayed in GPE - Flotte - en - Ré town hall on DATE and published in the FAC des actes administratifs du département de la FAC ( ORG of the département of GPE ) ( no . CARDINAL of DATE ) .

CARDINAL of the consequences of listing was to render PERSON LAW applicable to the entire island . That provision made it illegal to camp or to park a caravan other than on authorised campsites or to create campsites on listed places of interest unless an exemption had been granted under sub - paragraph CARDINAL of the Article .

On DATE the rural police officer of ORG Ré reported the applicant for illegally parking caravans .

The applicant was summoned to answer the charges in ORG . He argued that the proceedings were unlawful , as he had not received individual notification of the listing order and the interference with his right of property was disproportionate . In a judgment of DATE , ORG rejected the applicant 's submission that the proceedings were unlawful , holding that there was no requirement for individual notification under section CARDINAL of the Law of CARDINAL DATE and ORG and CARDINAL of the decree of CARDINAL DATE . It further found that the restriction placed on the applicant 's use of the land arose from a public easement that had been created in the general interest and which accordingly did not contravene LAW No . CARDINAL . It found the applicant guilty of parking CARDINAL caravans on his land , contrary to Articles LCARDINAL - CARDINAL , LCARDINAL - CARDINAL , LCARDINAL - CARDINAL , LCARDINAL - CARDINAL , ORG and ORG of LAW . The applicant was ordered to pay a fine of MONEY ( ORG ) and to reinstate the land within DATE , an additional penalty of ORG CARDINAL being imposed for DATE delay . ORG ordered publication of the judgment .

The applicant appealed against that decision and the public prosecutor lodged a cross appeal . The applicant argued , firstly , that his prosecution was unlawful , as he had not received individual notification of the decision to designate the land , even though such notification was necessary before criminal proceedings could be brought according to an explanatory circular that had been issued on DATE . He added that there was no evidence in the case file that the notification procedure set out in the law of DATE had been followed . As to the merits , he asked ORG to rule on the lawfulness of the administrative decision . He further relied on LAW No . CARDINAL , arguing that he could not have committed an offence , as he had not been awarded proper compensation for the adverse effect the public easement had had on his vested rights and the situation prior to designation . He complained , lastly , that the failure to give him individual notification of the listing order had deprived him of effective access to a court .

In a judgment of CARDINAL DATE , ORG declared the applicant 's preliminary objection that the listing order should have been declared unlawful inadmissible , as it had been made for the first time on appeal whereas it should have been made prior to any defence on the merits . It noted that the applicant had not denied being aware of the listing order 's existence or seriously contended that the notification procedure had not been followed , since he could not properly rely on a non - legally binding circular in the face of the unequivocal wording of LAW of CARDINAL DATE . Accordingly , it dismissed his plea that he had not been notified of the order and held that the authorities had been entitled to proceed by general announcement . ORG observed that creating a public easement in the public interest was not contrary to the LAW , but could entail a right to compensation which it was not for the criminal courts to quantify ; the applicant had not been deprived of effective access to a court , since the applicant had been given proper notice of the order and could either have asked the authorities to reconsider their decision or appealed . It therefore upheld the impugned judgment in its entirety .

The applicant appealed on points of law against ORG judgment . He complained among other matters that he should have been given individual notification of the listing order , as , although LAW of CARDINAL DATE allowed notice to be given by general announcement rather than individually if CARDINAL landowners were affected by the listing of a place of interest , it also required listing orders that contained special directions to alter the state or use of the land to be notified to the property owner and accompanied by a formal notice . The applicant alleged that he had installed the caravans on the land before the designation decision DATE which made it illegal to park caravans on LOC was issued and had not received any individual notification or formal notice . In his submission , therefore , by wrongly relying in its decision on the fact that he had not denied being personally aware of the designation order , ORG had violated LAW .

ORG ) dismissed the applicant 's appeal on points of law in a judgment of DATE , inter alia , on the following grounds :

“ In finding the accused guilty of the offence , ORG found that the order of DATE did not constitute a designation decision within the meaning of the legislation introduced by the aforementioned PERSON , and in particular section CARDINAL thereof , but merely an order under section CARDINAL of that PERSON for the land to be included in the list of sites of natural beauty in the département . Accordingly , since – as the courts below found – the order affected CARDINAL landowners , the authorities were entitled to use DATE and it is common ground that they did use DATE the general announcement procedure instead of the individual notification procedure prescribed by that section .

ORG added that , since the Law of CARDINAL DATE and its subsequent implementing legislation did not require a formal notice to be given , such notice only being required when a designation decision was contested by the landowners ... , ' the authorities were entitled to give notice of the order of DATE by general publication ' .

... in so holding , ORG justified its decision . ”

Section CARDINAL of the PERSON provided :

“ In each département there shall be drawn up a list of the natural monuments and places of interest whose conservation or preservation is in the public interest from the artistic , historic , scientific , legendary or scenic point of view . ...

Listing shall be effected by means of an order made by the Minister for ORG . The decree issued after consultation of the PERSON d'Etat shall lay down the procedure for notifying the listing to the property owners or for publishing it . Publication may replace notification only in cases in which the latter is made impossible by the large number of owners of CARDINAL and the same place of interest or natural monument , or if it is impossible for the authorities to ascertain the identity or address of the owner . On the land within the boundaries laid down in the order , listing shall entail an obligation on those affected not to undertake any works other than those relating to day - to - DATE agricultural use as regards rural land and to normal upkeep as regards buildings without having given the authorities DATE notice of their intention . ”

The relevant provisions of the decree provided :

“ Listing orders shall be notified by the prefect to the owners of natural monuments or places of interest .

However , when the number of owners affected by the listing of one and the same place of interest or natural monument is greater than a CARDINAL , the procedure of individual notification may be replaced by a general public announcement as provided for in DATE .

Recourse shall likewise be had to public announcements where the authorities are unable to ascertain the identity or address of the owners . ”

“ The public announcements provided for in LAW ... shall be made at the instance of the prefect , who shall have the listing order published in CARDINAL newspapers , CARDINAL of which shall be a DATE newspaper that is distributed in the administrative districts concerned . This notice must be republished at the latest on DATE following the initial publication .

The listing order shall further be published in the relevant administrative districts , for a period of not DATE , by being displayed at the town hall and in all other places customarily used for posting up public notices ... ”

“ The designation decision shall be published in ORG . ”

“ Where a designation decision contains special directions that would alter the state or change the use of a site , it must be notified to the property owner .

This notification shall be accompanied by a formal notice to the effect that the site must be brought into conformity with the special directions in accordance with the provisions of section CARDINAL ( paragraph CARDINAL ) of the Law of CARDINAL DATE . ”

The relevant provisions of the circular read as follows :

“ Another innovation introduced by the PERSON of DATE and the decree of CARDINAL DATE is general publication as a method of informing property owners that a place of interest has been listed .

There are now CARDINAL possible procedures :

– either individual notification , in accordance with the arrangements currently in force in all cases ; or

– general publication ( public display and publication in CARDINAL newspapers ) , to which the prefect resorts when the number of owners concerned is greater than DATE as with places of interest covering a larger area – or when CARDINAL or more property owners have not been identified .

This general publication will simplify the formalities that were necessary hitherto for the listing of a place of interest to have its full effect , and this will be particularly appreciable in the case of very large areas . It will have the advantage of ensuring that the public are well informed before the listing order is implemented ... ”

The relevant provisions of the Code provide :

“ There shall be no right to compensation for easements created pursuant to this Code for public access , public health , aesthetic or other purposes and concerning matters such as the use of the land , the height of buildings , the proportion of developed and undeveloped land in each property , prohibitions on building in certain areas and along certain roads and the distribution of buildings between different areas .

However , compensation shall be payable if such easements result in a violation of vested rights or a change in the previous condition of the land that causes direct , pecuniary and indisputable damage . In the absence of an amicable agreement , such compensation shall be assessed by the administrative court , which shall take into account the increase in value of a building produced by the implementation of a landuse plan that has been made public , or of an approved local town - development plan or equivalent document . ”

“ It shall be illegal to camp or to park a caravan other than on an authorised campsite , or to create a camp or caravan site :

( CARDINAL ) on the seashore ;

( CARDINAL ) NORP on designated or listed places of interest , within the areas defined in paragraph CARDINAL of section CARDINAL of FAC of DATE , in the area surrounding a historical monument that is designated , listed or in the process of being designated , in areas in which architectural or urban heritage is protected and in the protected areas established by LAW on the protection of natural monuments and places of interest of CARDINAL DATE . With the exception of places of interest that have been designated or are in the process of being designated , the competent authority may grant exemption from the prohibition , after obtaining the opinion of the département 's heritage protection officer and , if applicable , its ORG . As regards designated places of interest , exemptions may be granted by the minister responsible for places of interest or , in the case of natural sites , by the minister responsible for the conservation of nature and the environment , after obtaining the opinion of the département 's ORG .


Violation of Art. 6-1 with regard to the length of the proceedings;Inadmissible under Art. 6-1 with regard to the fairness of the proceedings and under Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE .

In DATE the applicant moved from GPE to GPE where his sister lived . In DATE ORG ( ORG служба г. ORG ) granted the applicant ’s family the right to use CARDINAL rooms in a CARDINAL - room communal flat .

On DATE ORG ( “ GPE ” ) newspaper ran an article by Mr GPE under the headline “ A GPE from GPE ? Claim your housing ! ” ( “ Курд из Новосибирска ? PERSON жилплощадь ! ” ) . The article alleged that the applicant and his wife , both of NORP origin , obtained the housing unlawfully , for a bribe . It was also said that they tortured and humiliated their neighbour ( who lived in the third room of the flat ) in order to “ lay their hands on ” the entire flat . The article implied that “ compatriots of FAC were given preference to the detriment of ethnic NORP .

The applicant complained to a prosecutor ’s office , and the ORG prosecutor ’s office of GPE opened a criminal case for libel . A preliminary investigation established that Mr GPE based his conclusions on statements by the applicant ’s neighbour who had been diagnosed with a mental disorder of paranoid nature .

On DATE ( on DATE , according to ORG ) the applicant lodged a civil action for defamation against the “ GPE ” newspaper and Mr GPE . He claimed both publication of a refutation and compensation for non - pecuniary damage in the amount to be determined by the court .

The first hearing was fixed for DATE . DATE and DATE CARDINAL hearings were adjourned . According to the Government , the adjournments took place because the applicant failed to appear . According to the applicant , he came to every hearing , but the defendant never showed up .

On DATE and CARDINAL DATE the applicant moved to hear the case in his absence , explaining that it was difficult for him to come to every hearing because of his limited mobility . He also filed several complaints with ORG of GPE about unreasonable delays in the examination of his claim , requesting the court to expedite the proceedings .

On DATE the GPE ORG of GPE inquired in writing whether the applicant would agree to the substitution of the “ GPE ” newspaper , the original defendant , by the publishing house “ GPE ” , the original defendant ’s legal successor . On DATE the applicant responded in the affirmative . On DATE the court sent him again the same inquiry .

The hearing in the defamation action before the GPE ORG of GPE finally took place on DATE , and the court rendered a judgment in the applicant ’s favour . The defendant was ordered to pay MONEY ( “ RUR ” ) for non - pecuniary damage and publish a refutation .

NORP In DATE the applicant complained to ORG about the district court ’s failure to make the text of the judgment available to him . On an unspecified date in DATE the applicant received the judgment .

On DATE the judgment was enforced in the part concerning the pecuniary award and the enforcement proceedings were closed . The applicant submits that the judgment has remained unenforced in the part concerning publication of a refutation .

NORP In DATE the applicant ’s neighbour moved out and the applicant applied to ORG for permission to use the third room in the flat . His application was refused . The applicant challenged the refusal in court .

On DATE ORG dismissed the applicant ’s claim . On the applicant ’s appeal , the judgment was upheld on DATE by GPE .

The applicant ’s application for supervisory review was refused by the Presidium of GPE .

Article CARDINAL of ORG of DATE ( in force at the material time ) provided that civil cases were to be prepared for a hearing DATE after the action had been submitted to the court . In exceptional cases , this period could be extended for DATE . The civil cases were to be examined DATE after the preparation for the hearing had been completed .


The applicant , ORG , is a citizen of GPE who was born in DATE and lives in the GPE . She was represented before the ORG by Ms J.A. Younge , a lawyer practising in GPE .

In DATE , the applicant married her cousin PERSON The couple remained childless . In DATE , the applicant and her husband fled from GPE to the GPE where they applied for asylum on the basis of the husband ’s alleged problems with the ORG . On DATE , an immigration official held a first interview ( eerste gehoor ) with the applicant in connection with her asylum request . A further interview ( nader gehoor ) was held on DATE . The applicant , who had been assisted by an interpreter during both interviews , availed herself on DATE and DATE of the opportunity to submit written comments on the records that had been drawn up of these interviews . As from an unspecified date , the applicant ’s husband started to receive medical treatment for a posttraumatic stress disorder .

In DATE , the applicant gave birth to a child , whose physical features ( complexion and hair ) were alleged to be markedly different to those of the applicant and her husband .

On DATE , in view of the changed situation in GPE , an additional interview ( aanvullend gehoor ) was held with the applicant who was assisted by an interpreter . On DATE , the applicant submitted written comments on the record drawn up of this additional interview .

On DATE , the Minister for ORG ( Minister PERSON ) notified the applicant of her intention ( voornemen ) to reject the applicant ’s asylum request . The applicant submitted her views ( zienswijze ) on this intention on DATE .

On DATE , the Minister for ORG rejected the asylum request filed by the applicant and her husband . On DATE , the applicant and her husband filed an appeal against this decision with ORG ( arrondissementsrechtbank ) of GPE .

On DATE , a staff member of a GPE refugee aid organisation informed the applicant ’s lawyer by way of a written memorandum that , in a recent conversation with this staff member , the applicant had said that her husband was not the father of her child and that he did not know this . Fearing to be sent back to GPE where she risked to be killed if this became known – which was probable – , she had now decided to confess to it . She had not dared to tell her husband , but because the situation had become untenable she was planning to do so on DATE when she and her husband would have a meeting with a mental health care counsellor . This document does not contain any mention of the child ’s physical features .

By letter of DATE , the applicant ’s lawyer transmitted the written memorandum of CARDINAL DATE to ORG , submitting that also for this reason the applicant risked exposure to treatment contrary to LAW if expelled to GPE . The lawyer ’s submissions were transmitted to the Minister who filed written comments in reply with ORG on DATE .

On DATE , a hearing on the appeals filed by the applicant and her husband was held before ORG . This hearing was attended by the applicant and her husband , who were assisted by an interpreter .

On DATE , in the presence and under the guidance of a mental health counsellor , the applicant informed her husband of the origins of the child . According to the applicant , her husband was obviously very upset but he refused to give any reaction . During DATE , he was under heavy medication ( sleeping medication and tranquillizers ) , and did not speak with or touch the applicant . He further completely neglected the child since DATE whereas before that date he had given the impression of simply not knowing what to do with a child in general in that he did not touch or mind the child very much .

On DATE , ORG rejected the appeals filed by the applicant and her husband . As regards the applicant ’s submissions in relation to her child , ORG held that these personal circumstances which had only been raised for the first time in the proceedings on appeal could not be regarded as new facts and circumstances having arisen after the taking of the impugned decision and which should be taken into account under section CARDINAL § CARDINAL of LAW ( Vreemdelingenwet DATE ) , in that the applicant should have raised these circumstances at an earlier stage in the proceedings . It further held that it had not been argued and that it had not appeared that there were special circumstances on the basis of which this could not have been done earlier .

On DATE , the applicant and her husband filed an appeal with ORG ( Afdeling Bestuursrechtspraak ) of ORG ( PERSON ) . In these appeal proceedings , the applicant submitted that the child had been born after a fleeting sexual encounter she had had in the asylum seekers reception centre where she and her husband had stayed shortly after their arrival in the GPE , and that , as the child grew older , gradually more and more clearly different racial characteristics became noticeable , as a result of which the child obviously bore no resemblance to either the applicant or her husband .

The appeal filed by the applicant and her husband was dismissed by ORG on DATE . It upheld ORG judgment . As regards the applicant ’s submissions relating to her child , it held :

“ CARDINAL.CARDINAL.CARDINAL . Pursuant to section CARDINAL § CARDINAL of LAW , the court shall , in the determination of the appeal , take into account facts and circumstances having arisen after the taking of the impugned decision .

ORG . As ORG has held previously ( ruling of DATE in case no . CARDINAL/CARDINAL ; JV CARDINAL/CARDINAL ) , this provision is aimed at preventing that repeated requests [ for a residence title ] must be filed in case of relevant circumstances having emerged after the [ taking of the ] impugned decision but before the ruling [ on appeal ] and entails that the determination of the question whether there are such facts and circumstances must be made on the basis as the same criteria as under section CARDINAL § CARDINAL of LAW ( PERSON ) . According to the case - law , under newly appeared facts or altered circumstances – in so far as relevant for DATE must be understood facts or circumstances having taken place after the taking of the earlier decision or which could not and , noting section QUANTITY of LAW DATE , therefore should not be submitted before the taking of that decision .

CARDINAL.CARDINAL.CARDINAL . As also held by the ORG in that ruling , the alien who asks for protection must – even where it concerns a forced return to a country where there allegedly exists a risk of treatment in breach of LAW as a rule comply with procedural requirements under domestic law , including LAW CARDINAL of LAW , which [ requirements ] enable the national authorities to determine requests for a residence permit in an orderly manner and only under special , to the individual case relating facts and circumstances , may a necessity arise not to hold a failure to respect these rules against the person concerned .

ORG has not taken into account under section CARDINAL § CARDINAL of LAW CARDINAL the personal circumstances only submitted on appeal by the appellant , because it found that the appellant could and therefore should have submitted those circumstances earlier and that no special circumstances had appeared justifying that this not be held against her .

By letter , received at ORG on DATE , the appellant has submitted a record of DATE on a conversation between a collaborator of ORG ( Vluchtelingenwerk ) PERSON and the appellant concerning personal circumstances in relation to her child born on ... DATE .

ORG . The applicant has thus after the taking of the decision of DATE submitted for the first time circumstances in relation to her child that had taken place before that decision was taken . It has not been argued that the thus submitted circumstances were not known to her at the time when this decision was taken . ORG has correctly considered that the appellant , also in view of the provisions of section CARDINAL § CARDINAL of LAW , should have raised those circumstances earlier in the proceedings . ORG has further correctly found no reasons in what has been put before it in this respect for finding that this could nevertheless not be asked from the appellant .

ORG has correctly found that the circumstances submitted by the appellant in relation to her child were not facts or circumstances within the meaning of section CARDINAL § CARDINAL of LAW .

Neither can the applicant ’s submissions to ORG be regarded as special facts and circumstances relating to the individual case , on which basis ORG ought not have held this national procedural rule against the appellant . ”

No further appeal lay against this ruling . To date , the applicant ’s husband has not taken any initiative from which it could be concluded that he is considering a separation , divorce or to challenge his paternity of the child .