CASE OF HODE AND ABDI v. THE UNITED KINGDOM

Violation of Article 14+8 - Prohibition of discrimination (Article 14 - Discrimination) (Article 8-1 - Respect for family life;Respect for home;Article 8 - Right to respect for private and family life)

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Vincent A. De Gaetano

The first applicant was born on CARDINAL DATE and currently lives in GPE . The second applicant was born on DATE and currently lives in GPE .

The first applicant arrived in GPE on DATE . He claimed asylum and that claim was accepted in DATE . Prior to QUANTITY DATE , successful asylum seekers were granted Indefinite Leave to Remain in GPE along with refugee status . However , after DATE ORG were amended and refugees were granted an initial period of DATE Leave to Remain , following which they could apply for Indefinite Leave to Remain . Consequently , the first applicant was granted DATE to remain in GPE , to expire on DATE . At the same time , he was provided with ORG ( “ ORG ” ) , also to expire on DATE .

In DATE the first applicant was introduced to the second applicant through a friend . In DATE he travelled to GPE to meet her and they married on DATE . They lived together in GPE until the first applicant returned to GPE on DATE .

The second applicant applied for a visa to join the first applicant in GPE . Although the first applicant was a refugee , the applicants did not qualify for “ family reunion ” under LAW CARDINAL ( as amended ) ( “ the Immigration Rules ” ) because paragraph CARDINAL of ORG only applied to spouses who formed part of the refugee ’s family unit before he or she left the country of permanent residence . The second applicant therefore applied for leave to enter GPE under paragraph CARDINAL of ORG , as the spouse of a person present and settled in GPE .

On DATE the Entry Clearance Officer refused the application on the ground that the first applicant , having only been granted DATE to Remain , was not a person present and settled in GPE for the purposes of paragraph CARDINAL .

On DATE the second applicant gave birth to a son . The first applicant was named as the father on the birth certificate .

The second applicant appealed against the decision to refuse her application for leave to enter . The Immigration Judge accepted that the applicants were married and that the first applicant had sufficient funds to accommodate and maintain his wife and child . He also accepted that the refusal of entry clearance engaged the rights of both applicants under LAW . He dismissed the appeal , however , holding that the refusal of entry clearance would not interfere disproportionately with the second applicant ’s rights under LAW . In particular , he noted that she had never enjoyed her family life in GPE and there were no obstacles to prevent the first applicant from living in GPE other than that he could not speak LANGUAGE and would be unlikely to secure employment there .

The second applicant applied for reconsideration of the decision . In a decision dated DATE , ORG refused to order reconsideration . On DATE ORG also dismissed the application for reconsideration .

The first applicant ’s leave to remain in GPE expired on DATE . He was subsequently granted Indefinite Leave to Remain .

NORP In DATE the Immigration Rules were amended to permit refugees to be joined in GPE by post - flight spouses during their initial period of leave to remain , provided certain other conditions were met .

The second applicant has not re - applied for leave to enter GPE as the spouse of the first applicant .

The second applicant gave birth to the applicants’ second child on DATE .

At the relevant time paragraph CARDINAL of ORG contained the requirements for family reunion for refugees . It provided that :

“ The requirements to be met by a person seeking leave to enter or remain in GPE as the spouse or civil partner of a refugee are that :

( i ) the applicant is married to or the civil partner of a person granted asylum in GPE ; and

( ii ) the marriage or civil partnership did not take place after the person granted asylum left the country of his former habitual residence in order to seek asylum ; and

( iii ) the applicant would not be excluded from protection by virtue of article CARDINALF of LAW and LAW relating to ORG if he were to seek asylum in his own right ; and

( iv ) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage is subsisting ; and

( v ) if seeking leave to enter , the applicant holds a valid GPE entry clearance for entry in this capacity . ”

Consequently , at the relevant time a refugee could only be joined in GPE by a spouse pursuant to paragraph CARDINAL if the marriage took place before leaving the country of formal habitual residence .

In DATE the Government introduced paragraph CARDINAL of ORG , which made family reunion available to post - flight family members of refugees . It provided that :

“ CARDINALL. The requirements to be met by a person seeking leave to enter GPE as the spouse or civil partner of a person with limited leave to enter or remain in GPE as a refugee or beneficiary of humanitarian protection , are that :

( i ) ( a ) the applicant is married to or the civil partner of a person who has limited leave to enter or remain in GPE as a refugee or beneficiary of humanitarian protection granted such status under the immigration rules and the parties are married or have formed a civil partnership after the person granted asylum or humanitarian protection left the country of his former habitual residence in order to seek asylum or humanitarian protection ; and

( b ) the applicant provides an original LANGUAGE language test certificate in speaking and listening from an LANGUAGE language test provider approved by the Secretary of ORG for these purposes , which clearly shows the applicant ’s name and the qualification obtained ( which must meet or exceed level ACARDINAL of ORG ) unless :

( i ) the applicant is aged DATE or over at the date he makes his application ; or

( ii ) the Secretary of ORG or Entry Clearance Officer considers that the applicant has a physical or mental condition that would prevent him from meeting the requirement ; or

( iii ) the Secretary of ORG or entry Clearance officer considers there are exceptional compassionate circumstances that would prevent the applicant from meeting the requirement ; or

( iv ) the applicant is a national of CARDINAL of the following countries : GPE and GPE ; GPE ; the GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE and GPE ; GPE ; PERSON and the NORP ; GPE and GPE ; GPE ; or

( v ) the applicant has obtained an academic qualification ( not a professional or vocational qualification ) , which is deemed by GPE ORG to meet the recognised standard of a Bachelor ’s or Masters degree or PhD in the GPE , from an educational establishment in CARDINAL of the following countries : GPE and GPE ; GPE ; The GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE ; GPE and GPE ; GPE ; PERSON and The NORP ; GPE and GPE ; the GPE ; the GPE ; and provides the specified documents ; or

( vi ) the applicant has obtained an academic qualification ( not a professional or vocational qualification ) which is deemed by GPE ORG to meet the recognised standard of a Bachelor ’s or Masters degree or PhD in the GPE , and

( CARDINAL ) provides the specified evidence to show he has the qualification , and

( CARDINAL ) GPE ORG has confirmed that the degree was taught or researched in LANGUAGE , or

( vii ) has obtained an academic qualification ( not a professional or vocational qualification ) which is deemed by GPE ORG to meet the recognised standard of a Bachelor ’s or Masters degree or PhD in the GPE , and provides the specified evidence to show :

( CARDINAL ) he has the qualification , and

( CARDINAL ) that the qualification was taught or researched in LANGUAGE ; and

( ii ) the parties to the marriage or civil partnership have met ; and

( iii ) each of the parties intends to live permanently with the other as his or her spouse or civil partner and the marriage or civil partnership is subsisting ; and

( iv ) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively ; and

( v ) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds ; and

( vi ) the applicant holds a valid GPE entry clearance for entry in this capacity . ”

Paragraph CARDINAL of ORG is a general provision enabling persons present and settled in GPE to be joined by a spouse or civil partner if certain conditions are met . It provided that :

“ The requirements to be met by a person seeking leave to enter GPE with a view to settlement as the spouse or civil partner of a person present and settled in GPE or who is on the same occasion being admitted for settlement are that :

( i ) ( a ) the applicant is married to or the civil partner of a person present and settled in GPE or who is on the same occasion being admitted for settlement ; or

( b)(i ) the applicant is married to or the civil partner of a person who has a right of abode in GPE or indefinite leave to enter or remain in GPE and is on the same occasion seeking admission to GPE for the purposes of settlement and the parties were married or formed a civil partnership DATE , since which time they have been living together outside GPE ; and

( b)(ii ) the applicant has sufficient knowledge of the LANGUAGE language and sufficient knowledge about life in GPE , unless he is under DATE or aged DATE or over at the time he makes his application ; and

Prior to CARDINAL DATE , successful asylum seekers were given Indefinite Leave to Remain alongside refugee status . As they were “ persons present and settled in the GPE ” , post - flight spouses could join them provided the other requirements set down in paragraph CARDINAL of ORG were met . After DATE the rules were changed and refugees were instead granted an initial period of CARDINAL years’ leave to remain , although they could subsequently be granted Indefinite Leave to Remain . As a consequence of the change of the rules , for DATE refugees were not “ persons present and settled in the GPE ” and could not be joined by a post - flight spouse during this period even if all the other requirements of paragraph CARDINAL were met .

Under LAW the spouses of other categories of person granted limited leave to enter GPE could accompany or join their spouse without any requirement that the marriage took place in the country of former habitual residence . Paragraph CARDINAL of ORG contained the requirements for entry to GPE as the spouse of a student or prospective student . It provided that :

“ The requirements to be met by a person seeking leave to enter or remain in GPE as the spouse or civil partner of a student or a prospective student are that :

( i ) the applicant is married to or the civil partner of a person admitted to or allowed to remain in GPE under paragraphs CARDINAL or CARDINAL - CARDINALF ; and

( ii ) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant ’s stay and the marriage or the civil partnership is subsisting ; and

( iii ) there will be adequate accommodation for the parties and any dependants without recourse to public funds ; and

( iv ) the parties will be able to maintain themselves and any dependants adequately without recourse to public funds ; and

( v ) the applicant does not intend to take employment except as permitted under paragraph CARDINAL below ; and

( vi ) the applicant intends to leave GPE at the end of any period of leave granted to him . ”

Similarly , paragraph CARDINAL of ORG contained the requirements for entry to GPE of a person with leave to remain for the purpose of obtaining employment . It provided that :

“ The requirements to be met by a person seeking leave to enter GPE as the spouse or civil partner of a person with limited leave to enter or remain in GPE under paragraphs CARDINAL ( but not paragraphs CARDINALI-CARDINAL K ) are that :

( i ) the applicant is married to or a civil partner of a person with limited leave to enter GPE under paragraphs CARDINAL - CARDINAL ( but not paragraphs CARDINALI-CARDINAL K ) ; and

( ii ) each of the parties intends to live with the other as his or her spouse or civil partner during the applicant ’s stay and the marriage or civil partnership is subsisting ; and

( iii ) there will be adequate accommodation for the parties and any dependants without recourse to public funds in accommodation which they own or occupy exclusively ; and

( v ) the applicant does not intend to stay in GPE beyond any period of leave granted to his spouse ; and

In DATE the case of A ( GPE ) v. the Secretary of ORG for ORG [ DATE ] EWCA Civ CARDINAL came before ORG . The appellant , an NORP national resident in GPE , was refused leave to join her husband , a refugee , in GPE because the marriage had taken place after he left his country of permanent residence . At the time of the application the appellant was heavily pregnant and there was evidence to suggest that her husband could not live in GPE . An Immigration Judge dismissed her appeal , which then went before ORG for reconsideration . The ORG was unable to identify any public interest being served by the omission from ORG of any provision for a refugee to bring a post - flight spouse to the country . However , it held that DATE could not be used to plug lacunae in LAW and , on the facts of the case , it was not engaged .

NORP On appeal , ORG had no doubt that the interference with family life which would result from not allowing a husband and his heavily pregnant wife in a genuine and subsisting marriage to cohabit had consequences of such gravity as potentially to engage the operation of Article CARDINAL . It therefore fell to ORG to consider whether or not there was a public interest in refusing to grant the appellant leave to enter . As the Government had submitted its skeleton argument on the public interest point at a late stage , the court held that it was estopped from reopening the issue . Although it went on to allow the appellant ’s appeal against the refusal of entry clearance , it clearly stated that its decision could be of no authority if and when the issue arose again .

DATE ORG ) had to consider the same question in FH ( ORG - flight spouses ) GPE [ DATE ] FAC . The appellant was an NORP national resident in GPE who was refused leave to join her husband , also an NORP national , who had been granted refugee status in GPE . It was not suggested that there was any other country where the appellant and sponsor could live together as husband and wife . An Immigration Judge refused her appeal . ORG allowed her appeal . It noted that with regard to the admission of post - flight spouses , refugees in GPE were in a particularly disadvantageous position compared to students , persons working in GPE , businessmen , artists and ministers of religion and so on . In particular , the ORG stated that :

“ ... the appellant ’s situation is by no means an unusual one , and it arises from provisions of the Rules for which there appears to be no justification . Unless there is some justification , of which we have not been made aware , of the Rules’ treatment of post - flight spouses , we think that the Secretary of ORG ought to give urgent attention to amending the Rules , by extending either paragraph CARDINAL or , ( perhaps preferably ) paragraph CARDINAL , so as to extend to the spouses of those with limited leave to remain as refugees . In the meantime , it seems to us that although a decision based on DATE does have to be an individual one in each case , it is most unlikely that the Secretary of ORG or an Entry Clearance Officer will be able to establish that it is proportionate to exclude from GPE the post - flight spouse of a refugee where the applicant meets all the requirements of paragraph CARDINAL save that relating to settlement . ”

Paragraph CARDINAL of ORG provided that :

“ The leave of a person whose stay in GPE is subject to a time limit lapses on his going to a country or territory outside the common travel area if the leave was given for DATE or less or conferred by a visit visa . In other cases , leave lapses on the holder remaining outside GPE for a continuous period of DATE . A person whose leave has lapsed and who returns after a temporary absence abroad within DATE leave has no claim to admission as a returning resident . His application to re - enter GPE should be considered in the light of all the relevant circumstances . The same time limit and any conditions attached will normally be reimposed if he meets the requirements of these Rules , unless he is seeking admission in a different capacity from the one in which he was last given leave to enter or remain . ”

Paragraphs CARDINAL and CARDINAL ( CARDINAL ) of the Schedule to LAW provided that :

“ When a refugee has lawfully taken up residence in the territory of ORG , the responsibility for the issue of a new document , under the terms and conditions of LAW , shall be that of the competent authority of that territory , to which the refugee shall be entitled to apply .

Each Contracting State undertakes that the holder of a travel document issued by it in accordance with LAW of this Convention shall be readmitted to its territory at any time during the period of its validity . ”


George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants , PERSON and Mr PERSON , are NORP nationals , who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , first Mr J. ORG and , subsequently , PERSON , both of ORG .

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

The applicants , a married couple , built a house in GPE in DATE . The house is located on an estate of detached family houses .

In DATE the GPE municipality sold a plot of land to HIT PERSON Polska Piastów CARDINAL sp . z. o.o . ( “ the HIT company ” ) . According to the applicants , the sales contract was conditional on the issuance of the planning permission for the construction of a commercial centre .

On CARDINAL DATE the Mayor of GPE granted planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) to the HIT company for the construction of a commercial centre . The Mayor found that the planned commercial centre conformed to the local development plan . The decision provided that on one side of the commercial centre the investor was required to erect a minimum QUANTITY high screen between the delivery area of the centre and the neighbouring houses .

It appears that the applicants were not informed about the grant of the planning permission despite the fact that their house was directly adjacent to the area of the future development . As a result , they could not lodge a regular appeal against the grant of planning permission .

On DATE the Mayor of GPE partly altered the planning permission by adding another plot to the planned development .

On DATE the applicants requested ORG to declare the planning permission null and void . They argued that it had been issued contrary to the provisions of the local development plan . On DATE ORG refused the request and subsequently confirmed its decision on DATE .

On DATE ORG quashed both decisions of ORG as being issued prematurely . Subsequently , ORG dismissed the cassation appeal lodged by the HIT company .

On DATE ORG again refused to declare the planning permission null and void . On DATE ORG confirmed its earlier decision . The applicants together with other neighbours and CARDINAL local associations appealed .

On DATE ORG quashed both decisions of ORG . It observed that pursuant to ORG a planning permission was null and void if it was contrary to the local development plan . The court found that the local development plan in GPE had reserved the relevant part of the town for green zones and services with accompanying green zones . It accordingly held that ORG had erred in its examination of the provisions of the local development plan related to the area on which the commercial centre was to be built . Furthermore , ORG had erred in its assessment of the adverse environmental impact of the commercial centre . The court referred in this respect to ORG judgment of DATE ( case no . PERSON CARDINAL - CARDINAL/CARDINAL , see below ) . It noted , among other things , that the delivery area of the commercial centre on the Harcerska street side was to be isolated by a minimum QUANTITY high wall from the neighbouring estate of detached houses .

On DATE ORG , following the findings of ORG , declared the planning permission null and void pursuant to LAW ) and ( CARDINAL ) of LAW . The primary reason for the annulment decision was that the planning permission had been issued in breach of the local development plan . On DATE ORG confirmed its decision .

On DATE ORG rejected the HIT company ’s complaint as being submitted out of time .

Having obtained planning permission , the HIT company was required to obtain a construction permit . On DATE the Mayor of Piastów issued a construction permit ( pozwolenie na budowę ) for a commercial centre and supporting facilities . The applicants and other neighbours appealed . They submitted , inter alia , that the planned construction would be contrary to the local development plan . They also argued that the commercial centre would adversely affect their health and their homes .

On DATE the Mayor of GPE issued an order ( postanowienie ) in which he altered a number of plots on which the commercial centre was to be constructed . That order was issued LAW which provided for rectification of clerical errors and obvious mistakes in administrative decisions . On DATE the ORG dismissed the applicants’ appeal against that order . The applicants appealed .

On DATE the Mazowiecki Governor dismissed the ORG appeal against the construction permit of DATE . Consequently , the construction permit became final and enforceable . It appears that shortly afterwards the HIT company started construction works .

The applicants appealed against the Governor ’s decision to ORG . They argued , inter alia , that the adverse environmental impact of the commercial centre had not been duly addressed by the administrative authorities . The applicants also requested the administrative court to issue an interim order halting the enforcement of the construction permit . It appears that the court did not respond to this request .

On DATE ORG ( case no . ORG CARDINAL - CARDINAL/CARDINAL ) quashed as unlawful the decision of the Governor and the construction permit issued by the Mayor . It found that the planned commercial centre was to be considered as having an adverse environmental impact within the meaning of the Ordinance of the Minister of ORG DATE . In this respect it had regard to the fact that the commercial centre would have a meat - processing capacity of QUANTITY per day , car park facilities for CARDINAL cars and a commercial surface area exceeding QUANTITY . The court noted that had the commercial centre been considered as a development adversely affecting the environment , the local authorities would have been required to follow stringent procedures . It further observed that :

“ As it transpires from the file , the authorities conducting the proceedings and the investor , were perfectly aware of the existing regulations and the relevant obligations ; however at all costs it was attempted to give the public an impression that the investment is not considered as having a potentially adverse impact on the environment , manipulating from the very beginning the number of plots , the number of places in the car park and interpreting narrowly the notion of “ a commercial centre ” .

The court observed that the authorities had failed to carry out relevant analyses of the environmental impact of the commercial centre and that their findings as to its environment - neutral status had been entirely unsubstantiated .

On DATE ORG quashed as unlawful the Governor ’s order of DATE and the Mayor ’s order of CARDINAL DATE . It observed that the Mayor ’s order on rectification of the construction permit had been in fact a decision on the merits of the case and should have been issued in the form of an administrative decision . In addition , that rectification order had made the construction permit incompatible with the planning permission of CARDINAL DATE .

On DATE the Mayor of GPE discontinued the proceedings concerning the issuance of the construction permit . It found that the construction of the commercial centre had been terminated in DATE and that the HIT company had begun operating it . In those circumstances , the proceedings concerning the construction permit had become devoid of purpose .

The applicants appealed . On DATE the Mazowiecki Governor dismissed their appeal against the discontinuation of the proceedings .

The applicants lodged a complaint against that decision with ORG . On DATE the court dismissed their complaint . On DATE ORG dismissed the ORG cassation appeal against ORG judgment . The judgment was served on the applicants on DATE .

On DATE the Mayor of GPE issued a permit for the use ( pozwolenie na użytkowanie obiektu budowlanego ) of the HIT commercial centre with the supporting facilities . It appears that the Mayor did not serve the decision on the applicants and other interested neighbours .

The applicants together with a group of their neighbours and a local association “ Eko - Piastów ” appealed to the Mazowiecki Governor . On CARDINAL DATE the Governor found that the appeals had been submitted out of time . However , on DATE ORG quashed the Governor ’s decision .

Subsequently , ORG of ORG became the competent authority to examine the appeal .

The applicants requested that the permit for the use of the commercial centre be declared null and void . On DATE the ORG of ORG allowed that request . It found that the Mayor of GPE had issued the permit without having obtained the necessary authorisation from ORG . The latter authority had expressly informed the Mayor that due to the complexity of the case it would not be able to give its authorisation before DATE .

On DATE the Chief Inspector of ORG quashed the decision of ORG of CARDINAL DATE and discontinued the proceedings before the first - instance authority .

On DATE ORG of ORG quashed the Mayor ’s decision of DATE and remitted the case to ORG of ORG . ORG found that the Mayor of Piastów had not given sufficient reasons for his decision . The Mayor had further failed to establish correctly the facts of the case and to inform all the parties concerned about his decision .

On DATE the HIT company appealed against the decision to ORG and requested the court to issue an interim order halting the enforcement of the decision of ORG . The last hearing before ORG took place on DATE . The court gave judgment . However , at the time of submitting their observations the Government were not in possession of the judgment .

At present the commercial centre is owned by company T. It operates twentyfour TIME a day and DATE .

On DATE the applicants complained to ORG about the excessive levels of noise generated by the commercial centre . Their complaint was transferred to the Mayor of LOC as the competent authority to deal with it . On DATE the Mayor of the District ordered company T. to prepare an environmental survey with regard to the hypermarket located in GPE . On DATE the Mayor of the District issued a decision fixing the maximum level of noise for the T. hypermarket . On DATE the Mayor of PERSON issued a decision obliging T. to limit the level of noise generated by the hypermarket . On appeal , the decision was quashed due to procedural errors . The applicants did not submit copies of any subsequent decisions .

Article CARDINAL of the Civil Code provides as follows :

“ In the exercise of his or her rights , an owner of immovable property shall refrain from actions which would infringe the enjoyment of adjacent immovable property and which go beyond the normal use arising from the socio - economic purpose of the immovable property and local relations . ”

Pursuant to LAW :

“ The owner shall have the right to claim restitution of his lawful position and acessation of infringements of the law , against a person who infringes his ownership otherwise than by depriving the owner of the actual control of the property in question . ”

There is no limitation period for claims under LAW if they relate to immovable property ( LAW ) .

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

“ CARDINAL . ORG shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability in tort under LAW of the Civil Code – including the addition of a new LAW .

The amended LAW reads as follows :

“ ORG , or [ as the case may be ] a local government entity or other legal person responsible for exercising public authority , shall be liable for any damage ( szkoda ) caused by an unlawful act or omission [ committed ] in connection with the exercise of public authority . ”

Following LAW , Article CARDINAL § CARDINAL reads in so far as relevant :

“ Where damage has been caused by the delivery of a final ruling or a final decision , redress for such damage may be sought after their unlawfulness has been established in the relevant proceedings , except where provided otherwise by law . ”

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

Article CARDINAL § CARDINAL of LAW ( “ the CAP ” ) ( ORG postępowania administracyjnego ) , which sets out grounds on which a final administrative decision is subject to annulment , states :

“ CARDINAL . A public administration authority shall declare a decision null and void if :

CARDINAL ) it has been issued in breach of the rules governing competence ;

CARDINAL ) NORP it has been issued without a legal basis or in flagrant breach of the law ;

CARDINAL ) concerns a case already decided by means of another final decision ;

CARDINAL ) it has been addressed to a person who is not a party to the case ;

CARDINAL ) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature ;

CARDINAL ) it would give rise to a punishable offence in the event that it has been enforced ;

CARDINAL ) it has a flaw making it null and void by the force of law .

Article CARDINAL of the ORG set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in LAW .

This provision was repealed by LAW with effect from DATE and replaced by new LAW . However , under LAW , which sets out transitional rules , LAW , in the version applicable on the repeal date , still applies to “ events and legal situations ” that subsisted before the entry into force of LAW .

LAW , in the version applicable on the relevant date , read as follows :

“ CARDINAL . A party who has suffered a loss on account of the issuance of a decision in breach of LAW or on account of annulment of such a decision shall have a claim for compensation for actual damage , unless he has culpably caused the circumstances mentioned in this provision .

NORP The provisions of LAW , except for LAW [ provision repealed ] , shall apply to [ such ] compensation .

Compensation is due from an authority that issued a decision in breach of Article CARDINAL § CARDINAL , unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision ; in the latter case a claim for compensation shall be directed against the culpable party .

A public administration authority that has declared a decision null and void or declared , pursuant to LAW , that it has been issued contrary to the law shall rule on compensation due from the authority referred to in LAW . A claim for compensation from a person who has culpably caused the circumstances mentioned in LAW , shall be pursued before a court of law .

A party who is not satisfied with compensation granted by a public administration authority referred to in DATE , may lodge a claim with a court of law within DATE from the date of service of a decision given on that matter .

A claim for compensation shall be time - barred after DATE from the date on which has become final the decision declaring null and void the decision issued in breach of LAW or decision whereby an authority has declared , pursuant to LAW , that the contested decision has been issued in breach of LAW . ”

On DATE ORG of ORG , sitting in plenary , gave a resolution ( no . III CZP CARDINAL/CARDINAL ) on the application of LAW and rules regarding compensation . The resolution was given in response to legal questions submitted by the First President of ORG in connection with certain problems and divergences arising in judicial practice , in particular in respect of the temporal effects of LAW as determined in LAW , the application of Article CARDINAL § CARDINAL of LAW which replaced LAW and rules for adjudicating compensation .

The resolution contains an extensive reasoning which , in so far as relevant , may be summarised as follows : LAW § DATE and CARDINAL of the ORG applies to all claims for damages arising from an issuance of a final administrative decision given before DATE , which has been declared null and void or has been declared as being issued in breach of LAW CARDINAL of the ORG after that date . In contrast , paragraphs CARDINAL and CARDINAL of Article CARDINAL , setting out the procedure for vindicating such claims , should be considered as no longer applicable . Consequently , a party seeking compensation under this provision should file an action directly with a civil court .


Preliminary objection allowed (non-exhaustion of domestic remedies)

Mr PERSON is a NORP national born in DATE . He is currently resident in the GPE .

Mr ORG arrived in the GPE on DATE . On CARDINAL DATE he lodged applications for refugee status or , in the alternative , a residence permit on humanitarian grounds .

With the assistance of a NORP interpreter , PERSON ORG was interviewed by an official of ORG ( PERSON Justitie ) on CARDINAL DATE . He claimed to have been a member of the illegal organisation PERSON ( ORG ) , the military wing of ORG ( ORG , an organisation seeking autonomy for the inhabitants of LOC ) , and to be in danger of persecution on that ground .

Mr ORG ’s applications for refugee status or , in the alternative , a residence permit on humanitarian grounds were refused on DATE by the Deputy Minister of ORG ( ORG ) . The applicant then applied to the Deputy Minister for revision ( herziening ) of this decision .

The Deputy Minister refused to grant suspensive effect to Mr ORG ’s application for revision of his decision . In order to obtain an injunction against his expulsion pending the revision proceedings , the applicant instigated summary injunction proceedings ( kort geding ) before the President of ORG ( Arrondissementsrechtbank ) of GPE sitting at ’s - Hertogenbosch ( nevenzittingsplaats ’s - Hertogenbosch ) .

On DATE the President granted the injunction requested . The President found the applicant ’s story consistent and credible .

The applicant was heard by ORG concerning Aliens ( PERSON voor ORG ) on CARDINAL DATE .

On DATE ORG expressed the opinion that the applicant was not a refugee within the meaning of the DATE LAW relating to ORG ( see paragraph CARDINAL below ) and that he was not eligible for a residence permit on humanitarian grounds either . ORG considered that on essential points the applicant ’s account was vague and contradictory .

Adopting the Advisory Board ’s proposal and reasoning , the Deputy Minister of ORG rejected the application for revision on DATE .

On DATE the applicant lodged an appeal against the Deputy Minister ’s decision with ORG ( Afdeling Rechtspraak ) of GPE , adding that the grounds for the appeal would be submitted as soon as possible . As this appeal was denied suspensive effect , the applicant instigated summary injunction proceedings before the President of ORG of The Hague sitting at GPE .

Following a hearing on DATE the President of ORG , on DATE , granted the applicant an injunction against his expulsion pending the proceedings before ORG .

In the meantime , the applicant ’s lawyer was informed by ORG on DATE that she had not so far submitted the grounds for the appeal with ORG and she was given the opportunity to comply with this requirement before DATE . The applicant ’s lawyer submitted grounds for the appeal on DATE , without providing an explanation for the delay .

On DATE the President of ORG ( PERSON , the successor of ORG – see paragraph CARDINAL below ) in simplified proceedings ( vereenvoudigde procedure ) declared the applicant ’s appeal inadmissible for failure to comply with a formal requirement . The applicant lodged an objection ( verzet ) against this decision with ORG on DATE .

At the hearing of the applicant ’s objection , which took place on DATE , the applicant argued that it had not been possible to submit his grounds of appeal before DATE since it had been necessary , given that the Deputy Minister of ORG had disputed the authenticity of documents submitted by him , to try and obtain further proof of his allegations from GPE and that this had taken a long time .

ORG rejected the applicant ’s objection on DATE , on the grounds that he had been given ample opportunity to submit his grounds of appeal , that he had been informed of the possible consequences of failure to do so and that , even if he considered it impossible to cure that failing in time , he ought to have submitted a request for an extension of the time - limit before it lapsed .

Neither ORG nor its President in his decision of DATE examined the merits of the applicant ’s appeal .

Mr ORG applied to the Commission on DATE ( see paragraph CARDINAL below ) .

In the meantime , on DATE , Mr ORG had lodged a second application for a residence permit , arguing that he had been legally resident in the GPE for DATE already . On being given notice that he would be expelled from the GPE on DATE , he brought summary injunction proceedings before the President of ORG for a suspension of the expulsion order . A hearing took place on DATE .

At that hearing it transpired that Mr ORG had lodged new applications for refugee status or , in the alternative , a residence permit on humanitarian grounds on DATE , arguing that the second declaration issued by PERSON and the certified copy of the complaint filed against him , as well as information provided by his lawyer in GPE , constituted new facts which the Deputy Minister of ORG had not been able to take into account when deciding on the applicant ’s initial applications . In view of this information the representative of the Deputy Minister of ORG promised that the applications of DATE and CARDINAL DATE would be considered together and that the applicant would not be expelled in the meantime .

In a single decision of CARDINAL DATE , the Deputy Minister of ORG rejected both applications .

According to the Government , Mr ORG , through his lawyer , appealed against this decision to ORG , but failed to submit any grounds therefor within the time - limits set for that purpose . His appeal was declared inadmissible for that reason on DATE . The applicant did not lodge any objection against that decision .

In so far as it is relevant to the present case , LAW relating to LAW DATE ( the DATE LAW ) , as amended by the LAW relating to LAW DATE , defines the term “ refugee ” as follows :

“ … any person who … owing to a well - founded fear of being persecuted for reasons of race , religion , nationality , membership of a particular social group or political opinion , is outside the country of his nationality and is unable or , owing to such fear , is unwilling to avail himself of the protection of that country ; or who , not having a nationality and being outside the country of his former habitual residence , is unable or , owing to such fear , is unwilling to return to it . ”

Article CARDINAL § CARDINAL of the DATE LAW prohibits the expulsion or return of a refugee to the frontiers of territories where his life or freedom would be threatened on account of his race , religion , nationality , membership of a particular social group or political opinion .

The GPE are party to both the convention and the protocol .

Under LAW ) of LAW ( vreemdelingenwet ) , aliens coming from a country where they have a well - founded reason to fear persecution on account of their religious or political conviction , or of belonging to a particular race or a particular social group , may be admitted by the Minister of Justice as refugees .

The expression “ refugee ” in this provision is construed to have the same meaning as in the DATE LAW , as amended ( see paragraph CARDINAL above ; decision of ORG of the Raad van State of CARDINAL DATE , PERSON – Immigration Law Reports DATE , no . CARDINAL ) .

Aliens , other than refugees , wishing to reside in the GPE for any length of time have to hold a residence permit ( section CARDINAL of LAW ) . Such a permit is applied for to , and granted by , the Minister of Justice ( section CARDINAL(CARDINAL ) of LAW ) .

Given the situation obtaining in the GPE with regard to population size and employment , government policy is aimed at restricting the number of aliens admitted to the GPE . In general , aliens are only granted admission for residence purposes if :

( a ) the GPE are obliged under international law to do so , as in the case of citizens of ORG or GPE member GPE and refugees covered by the above - mentioned LAW ; or

( b ) this serves “ essential interests of the GPE ” , e.g. economic or cultural interests ; or

( c ) there are “ cogent reasons of a humanitarian nature ” ( klemmende PERSON aard ) .

An alien who does not , or does no longer , qualify for admission to the GPE can be expelled ( section CARDINAL ) of LAW ) . However , aliens who claim that their removal from the GPE will compel them to travel to a country where they have reason to fear persecution on CARDINAL of the grounds set out in section CARDINAL ) ( see paragraph CARDINAL above ) can not be expelled except by a specific order of the Minister of Justice ( section CARDINAL ) ) .

Prior to the entry into force of LAW on DATE , an alien could , in the event of a refusal to grant refugee status or a residence permit , apply in writing to the Minister of ORG for administrative revision of his decision ( section CARDINAL(CARDINAL ) of LAW ) . If such an application was not decided on DATE , it was deemed to have been refused ( section CARDINAL ) ) .

Such a request for revision did not suspend the alien ’s expulsion unless it was made DATE before the expiry of the period during which the alien was allowed to remain in the GPE ( section CARDINAL ) ) . It was , however , open to the Minister to decide that the request would have “ suspensive effect ” .

If suspensive effect was withheld , the alien could bring summary civil proceedings before the President of ORG for an injunction preventing his or her expulsion pending the Minister ’s decision . The latter decision , however , was not prejudged by such an injunction .

The advice of ORG concerning Aliens had to be obtained if a request was made for revision of a decision to refuse refugee status to an alien who would be compelled as a result of such refusal to return to a country where he or she had reason to fear persecution ( section CARDINAL ) of LAW ) , or to expel an alien whose main place of residence for DATE or more had been in the GPE and who had complied with the formalities required by LAW ( section CARDINAL(CARDINAL)(c ) taken together with section CARDINAL ) ) .

In the event of a negative decision , or of failure to decide within due time , an appeal lay to ORG of the Raad van State ( section GPE ) of LAW ) .

However , such an appeal had no suspensive effect if the Minister ’s decision was in accordance with the advice of ORG concerning Aliens ( section CARDINAL ) ) ; in such a case , the alien could seek an injunction preventing his expulsion pending the decision of ORG in summary civil proceedings before the President of ORG . Like the Minister ’s decision ( see paragraph CARDINAL above ) , the decision of ORG was not prejudged by such an injunction .

An alien appealing to ORG of the Raad van State had to submit grounds of appeal and , if possible , all documents pertaining to the dispute ( section CARDINAL(CARDINAL ) of GPE ( PERSON ) . If this was not done at the time the appeal was lodged , the opportunity would be offered to do so at DATE , within a time - limit to be set by the President of ORG ; failure to comply with that time - limit could lead to a decision declaring the appeal inadmissible ( section CARDINAL ) . Such a decision could be given by the President of ORG in simplified proceedings ( section CARDINAL ) ) .

An objection lay , within DATE , to a Chamber of ORG ( section DATE ) ) .

The entry into force of LAW on DATE brought extensive changes to the procedural provisions of LAW .

An appeal against the refusal to grant refugee status or a residence permit lies to LAW of the Hague ORG ( section CARDINAL of the General Administrative Law Act ; section MONEY of LAW ) . No further appeal is allowed ( section FAC of LAW ) .

ORG such an appeal the alien will not be expelled if refugee status has been claimed and the claim is not manifestly ill - founded , or if another application for admission has been lodged which is the subject of an objection or appeal that has a prima facie chance of success .

It is possible to apply to LAW for an order for interim measures ( section CARDINAL:CARDINAL of LAW ) .

A transitional provision ( section I(CARDINAL ) of the LAW of DATE , Staatsblad ( Official Gazette ) DATE , no . CARDINAL ) , provides that cases pending before ORG of the Raad van State prior to the entry into force of LAW shall be determined according to the former law , but by the successor to ORG , ORG .


Violation of Art. 6-1;Violation of Art. 10;Remainder inadmissible;Pecuniary damage - award;Non-pecuniary damage - award

Anne E. Niemi;David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza

The applicant was born in DATE and lives in GPE .

NORP In DATE the applicant , a tax expert , was the defendant 's witness in a case where the public prosecutor had brought charges for tax fraud . The evidence in the case was based , inter alia , on a tax inspection report drawn up by tax inspectors A. and PERSON applicant provided her own calculation of the defendant 's taxable income . The defendant was convicted of tax fraud and the judgment became final in DATE .

The difference between the applicant 's estimation of the defendant 's taxable income and the estimation given by the tax inspectors was MONEY ( ORG ; CARDINAL ) . When asked by the defendant 's counsel whether the difference could be explained by the tax inspectors ' negligence or professional incompetence , the applicant answered , under oath :

“ No , to my mind they have done it intentionally . ”

When the defendant 's counsel asked whether it was by incompetence or intentionally that the tax inspectors had found that the taxable income was ORG CARDINAL instead of FIM CARDINAL,CARDINAL , she replied :

“ Intentionally . ”

The public prosecutor asked :

“ Do you say under oath that the tax inspectors have intentionally made mistakes in this matter ? ”

The applicant replied :

“ Yes , the figures can not be explained otherwise . The tax inspectors have not a single ground to arrive at these figures . ”

The court proceedings as well as the applicant 's statements were reported in several newspapers but the tax inspectors ' names were not mentioned in any of them . Moreover , the court proceedings were open to the public and the applicant 's witness statements were recorded word for word in the minutes , to which anyone had access .

In DATE the applicant published a book about taxation in which the above - mentioned court case was cited . It was mentioned that “ [ i]n any event , the senior tax inspector [ A. ] committed perjury fully knowingly and intentionally . But why not as her husband is the public prosecutor [ X. ] . who works for [ name of the office ] ” . CARDINAL copies of the book were printed , of which CARDINAL copies had been given away by DATE .

On DATE the applicant was questioned by the police for the first time . The applicant gave her closing statement in the pre - trial investigation on DATE .

On DATE the public prosecutor brought charges against the applicant for aggravated defamation . Tax inspectors A. and B. joined the charges and extended them to cover other statements made by her during the above - mentioned tax fraud proceedings . The summons was served on the applicant on DATE .

On DATE the applicant requested ORG ( käräjäoikeus , tingsrätten ) to extend the time - limit for her reply until DATE . The applicant informed ORG that she would request ORG ( keskusrikospoliisi , centralkriminalpolisen ) to conduct an investigation and that she would also request ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) to annul certain decisions of administrative courts underlying her case . ORG extended the time - limit for the reply until DATE .

On DATE the applicant requested ORG to grant another prolongation of the time - limit for her reply as the above - mentioned criminal investigation and the annulment proceedings had not yet been concluded . ORG extended the time - limit for the reply until DATE .

The applicant did not give a written reply within the time - limit but requested ORG not to hold an oral hearing before ORG had decided on the annulment of the above - mentioned taxation cases .

On DATE ORG received the decision of ORG concerning a request to annul previous taxation decisions . ORG held an oral hearing in the defamation case in DATE .

On DATE ORG convicted the applicant , as far as the statements made in the book were concerned , of aggravated defamation and sentenced her to DATE conditional imprisonment . Moreover , she was ordered to pay MONEY to tax inspector A. in compensation . The court found that , even though the applicant might have been right about the dysfunctions in the company taxation system , she should not have criticised the civil servants in question in a defamatory manner . As far as the statements made during the tax fraud proceedings were concerned , the court found them to constitute defamation but not aggravated defamation . However , as the charges for defamation had been brought too late she could not be convicted on that count . Despite the prescription , the related compensation claims could be examined and the applicant was ordered to pay in total MONEY in compensation to the tax inspectors A. and B. for mental suffering under both counts . ORG declared all parts of the case file secret for DATE except for the applicable legal provisions and the conclusions .

On DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , claiming , inter alia , that her rights under LAW had been violated and that the act in question had not constituted aggravated defamation . She also requested ORG not to start preparing the case before ORG ( GPE sanan neuvosto , PERSON för massmedier CARDINAL “ the Council ” ) had either given a statement on the matter or notified the court that no statement would be made .

On DATE the ORG notified ORG that it would not give a statement on the matter . ORG held an oral hearing in the case in DATE .

On DATE ORG upheld , by a majority , ORG judgment . It found that the interference with the applicant 's right to freedom of expression had been necessary and proportionate . However , CARDINAL of the justices found in his dissenting opinion that the applicant should be freed from the obligation to pay compensation to A. and PERSON under both counts as the applicant 's criticism did not exceed the limits of what was acceptable for civil servants to endure in the exercise of their official duties . As to the length of the proceedings , the court did not find it so excessive as to justify mitigating or waiving the applicant 's sentence . Finally , ORG quashed ORG decision to declare the case file secret .

On DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds for appeal relied on before ORG .

On DATE ORG refused leave to appeal .

According to LAW ( CARDINAL/CARDINAL ) , section CARDINAL , of LAW ( rikoslaki , strafflagen ) , the law which was in force at the time an offence was committed applies to that offence . However , if a law other than the one in force at the time of the commission of the offence is in force at the time of conviction , the new law applies if its application leads to a more lenient result .

Chapter DATE , section CARDINAL , of LAW , which was in force at the time when the events took place , read as follows :

” A person alleging , albeit not contrary to his or her better knowledge , that someone has committed an offence or other act which might make this person an object of contempt or might affect his or her trade or success , or who spreads a lie or a false insinuation about someone , is to be convicted of defamation and sentenced to imprisonment for DATE and at DATE or to a fine of MONEY .

If defamation is public or in a printed publication , in writing or through pictures , which the accused distributes or had distributed , the punishment is imprisonment of DATE and at DATE or a fine of MONEY . ”

Chapter DATE ( CARDINAL/CARDINAL ) , section CARDINAL , of LAW , which was in force at the time of conviction , read as follows :

“ A person who ( CARDINAL ) spreads false information or a false insinuation about another person so that the act is conducive to causing damage or suffering to that person , or subjecting that person to contempt , or ( CARDINAL ) makes a derogatory comment about another otherwise than in a manner referred to in subparagraph ( CARDINAL ) , shall be sentenced for defamation to a fine or to imprisonment for DATE .

Criticism that is directed at a person 's activities in politics , business , public office , public position , science , art or in a comparable public position and which does not obviously overstep the limits of propriety does not constitute defamation referred to in paragraphs ( CARDINAL ) and ( CARDINAL ) . ”

Chapter DATE , section CARDINAL , of LAW provides that if , in the defamation referred to in DATE , the offence is committed through the use of the mass media or otherwise by making the information or insinuation available to a large number of people , the offender shall be sentenced for aggravated defamation to a fine or to imprisonment for DATE .

On DATE ORG of ORG DATE ) , Towards decriminalisation of defamation , in which it urged those member GPE which still provide for prison sentences for defamation , even if they are not actually imposed , to abolish them without delay .


OBCIANSKE ZDRUZENIE ZI A NECHAJ ZIT v. SLOVAKIA

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

The applicant , ORG združenie Ži a nechaj žiť ( Civic Association Live and Let Live ) , is an association with its seat in GPE . The application on its behalf was submitted by its President , Ms NORP ORG . The applicant association was represented by PERSON P. GPE , a lawyer practising in GPE .

The Government of GPE ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicant association organised a cycle - ride event in the course of which a road crossing was blocked in GPE with a view to pointing out the difficulties encountered by cyclists in the streets of the capital .

On DATE the Mayor of Bratislava imposed on the applicant association a fine of CARDINAL NORP korunas ( SKK ) , which was then the equivalent of MONEY ( ORG ) , for using roads in an unauthorised manner .

The applicant association appealed .

On DATE the Bratislava ORG upheld the Mayor 's decision .

On DATE ORG in GPE dismissed the applicant association 's motion against the above administrative decisions .

On DATE the applicant association lodged a complaint with ORG alleging a violation of LAW and of its constitutional equivalent . The applicant association claimed , inter alia , SKK CARDINAL,CARDINAL as just satisfaction for non - pecuniary damage . Its representative stated that the fine imposed exceeded the financial means of the association , that its representatives had been exposed to considerable pressure and that enforcement proceedings had been brought , the costs of which exceeded SKK CARDINAL,CARDINAL . As a result , the association had difficulties in obtaining grants and had been restricted in carrying out its activities .

At the request of the Mayor of GPE of DATE the Bratislava ORG discontinued the enforcement proceedings on CARDINAL DATE . It held that no fees were payable to the enforcement officer .

On DATE ORG concluded that the applicant association 's right under LAW had been violated . It quashed ORG judgment and returned the case to ORG . It ordered the latter to reimburse the applicant association 's costs incurred in the constitutional proceedings and held that the above finding of a breach of the applicant association '

On DATE ORG quashed ORG decision as being unlawful with reference to the finding of ORG . It ordered the administrative authority to reimburse the costs which the applicant had incurred .

On DATE ORG reimbursed the relevant sum to the applicant association . On DATE it returned the file to the Mayor of GPE .

By a decision of CARDINAL DATE the Mayor of GPE discontinued the proceedings in which the above fine had been imposed on the applicant association .

Until DATE the sphere of ORG liability for damage caused by wrong decisions and official misconduct was regulated by LAW of DATE ( Law no . PERSON . ) .

In accordance with the courts ' practice , LAW of DATE did not allow for compensation to be awarded for damage of a nonpecuniary nature . The only exception to this rule was compensation for damage to health .

With effect from DATE Law no . CARDINAL/CARDINAL Coll . was enacted , replacing LAW of DATE .

Under section CARDINAL(CARDINAL)(a ) , the ORG is liable for damage caused by an unlawful decision .

Section CARDINAL of the LAW provides for compensation for pecuniary damage including loss of profit and , where appropriate , compensation for damage of a non - pecuniary nature .

Pursuant to section DATE , the provisions of PERSON no . CARDINAL apply only to damage caused by decisions which were given after its entry into force .


The applicant was born in DATE and lives in GPE .

NORP She brought civil proceedings against her local authority requesting arrears of child benefits due to her .

On DATE the Zheleznodorozhny ORG of GPE granted her claims and awarded her the arrears in the amount of MONEY ( RUR ) . The judgment was not appealed against and became final on DATE .

On an unspecified date a writ of execution was issued .

As the judgment remained unexecuted , on an unspecified date the applicant forwarded the writ to the debtor 's bank and requested it to debit the sum due from the debtor 's account , but the bank refused .

She then brought proceedings against the bank claiming damages for its refusal to enforce the judgment of DATE .

On DATE the Justice of the Peace of ORG of GPE dismissed the applicant 's claims on the ground that the bank had not been at fault in refusing to enforce the judgment of DATE . On appeal , the judgment was upheld by ORG of GPE on DATE .

In DATE the applicant received ORG in execution of the judgment of the Zheleznodorozhny ORG of GPE of DATE .

On DATE she received the outstanding balance of ORG MONEY , thus completing full execution of the judgment .


Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE he entered into an employment agreement with a local company ( the “ company ” ) whereby he undertook to work for it abroad . DATE , while working for the company in GPE , the applicant fell seriously ill , underwent an operation and was on sick leave for DATE . At the end of his sick leave on DATE , the applicant found that his employment agreement had been unilaterally terminated by the company . He returned to GPE soon thereafter .

On CARDINAL DATE the applicant initiated an action against the company . He sought damages in the amount of MONEY ( ORG ) , or their equivalent of CARDINAL NORP levs ( ORG ) , on account of the company ’s failure to pay out sick leave entitlements , back pay for overtime work and a payment for an insurance policy .

ORG conducted CARDINAL hearings DATE and DATE , scheduled DATE apart . During this time it obtained CARDINAL experts’ reports and questioned witnesses . Of the hearings conducted , CARDINAL was adjourned from DATE to CARDINAL DATE due to the absence of the applicant , another was postponed from CARDINAL May to DATE at the request of the defendant and a third , was adjourned from DATE to CARDINAL DATE because the defendant was hindering an expert from completing his report .

In a judgment of CARDINAL DATE ORG found partly in favour of the applicant . It awarded him ORG CARDINAL for sick leave entitlements and dismissed the remainder of his claims . On CARDINAL DATE the applicant appealed against the judgment .

A hearing was held before ORG on DATE .

NORP In a judgment of DATE ORG declared the judgment of ORG null and void and remitted the case to the lower court . It established that the lower court had been sitting in an unlawful composition of CARDINAL judges rather than of CARDINAL judge and CARDINAL jurors .

At the retrial , ORG conducted CARDINAL hearings DATE and DATE , scheduled DATE apart . During this time it obtained an expert ’s report and questioned witnesses . Of the hearings conducted , CARDINAL was adjourned from DATE to CARDINAL DATE because the applicant could not be summoned at his address . In addition , DATE and DATE CARDINAL consecutive hearings were postponed because the applicant or his lawyer were ill and at the request of the defendant in order to acquaint himself with the expert ’s report .

In a judgment of CARDINAL DATE ORG again found partly in favour of the applicant . It awarded him BGL CARDINAL for sick leave entitlements and dismissed the remainder of his claims . On DATE the applicant appealed against the judgment .

ORG conducted CARDINAL hearings DATE and DATE , scheduled DATE apart . CARDINAL of the hearings was adjourned from DATE to DATE because the applicant was ill .

In a judgment of DATE ORG quashed part of the judgment of the lower court in respect of the amount awarded to the applicant for sick leave entitlements in NORP levs and rendered a judgment in the case whereby it re - calculated the award in NORP marks , specifying it to be DEM CARDINAL plus interest as from CARDINAL DATE . It upheld the remainder of the judgment of ORG in respect of the dismissal of the applicant ’s other claims . On DATE the applicant appealed against the judgment .

A hearing was held before ORG on DATE .

In a judgment of CARDINAL DATE ORG quashed part of the judgment of DATE of ORG , in which the latter had upheld the dismissal of the applicant ’s claims for back pay and overtime work , and remitted that part of the case to the lower court . It upheld the remainder of the judgment of ORG in respect of the amounts awarded for sick leave entitlements .

ORG conducted CARDINAL hearings DATE and DATE , scheduled DATE apart , during which time an expert ’s opinion was obtained .

In a judgment of CARDINAL DATE ORG quashed the remaining part of the judgment of DATE of ORG and rendered a judgment in the case in which it ordered the company to pay the applicant DEM CARDINAL,CARDINAL for back pay and overtime work plus interest as from DATE .

On DATE the applicant obtained a writ of execution against the company for the amounts awarded . It is unclear whether and if the applicant obtained execution of the same .

On DATE the company appealed against the judgment of ORG .

A hearing was held before ORG on DATE .

NORP In a final judgment of CARDINAL March CARDINAL ORG upheld the judgment of DATE of ORG .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in PERSON .

In DATE the applicant ’s daughter , a university student , was raped and murdered .

On DATE ORG convicted several persons of criminal offences committed in the above context . Prison terms of CARDINAL were imposed . On DATE ORG of GPE upheld the firstinstance judgment . The applicant had joined the criminal proceedings with a claim for damages .

On DATE ORG of the NORP and GPE , upon a complaint lodged by ORG , quashed the decisions convicting the persons charged . The case was sent back to ORG for a fresh examination .

Subsequently the case was dealt with by courts at CARDINAL levels of jurisdiction . In DATE the first - instance court decided that the charges against one of the accused would be dealt with in a separate set of proceedings . That set of proceedings was stayed as experts concluded that the accused suffered from a mental disorder ( for further details relating to the period up to DATE see Andrášik and Others v. GPE ( dec . ) , nos . CARDINAL , CARDINAL/CARDINAL , CARDINAL , PERSON , DATE , CARDINAL , DATE , ORG CARDINAL-IX ) .

On DATE ORG in GPE delivered a judgment convicting the accused persons ( with the exception of the one in respect of whom the proceedings had been stayed ) . The accused and the public prosecutor appealed . On DATE the file was submitted to ORG .

DATE and DATE the accused made CARDINAL submissions with a view to completing the reasons for their appeal .

On DATE ORG had to adjourn the case as the newly appointed counsel of one of the accused had not appeared .

The next hearing was scheduled for DATE . It was adjourned as the presiding judge was ill .

On DATE ORG heard the final speeches .

On DATE ORG modified the first - instance judgment in that it imposed more severe sentences on CARDINAL of the convicted persons .

On DATE and on DATE the applicant filed a complaint with ORG . She alleged a violation of her rights under LAW to a hearing within a reasonable time and LAW for her private life in the context of the criminal proceedings concerning the offences committed against her daughter which she had joined with a claim for damages .

On DATE ORG declared admissible the complaint about the length of the proceedings . It further rejected the complaint under LAW . It admitted that there could be an interference with the applicant ’s right to respect for her private and family life as a result of the excessive length of the proceedings . However , LAW was a lex specialis

In a judgment of DATE ORG found that both ORG in GPE and ORG had violated the applicant ’s right to a hearing within a reasonable time in the above criminal proceedings . It ordered ORG to pay CARDINAL NORP korunas ( SKK ) to the applicant as just satisfaction . That sum was payable within DATE from the final effect of the judgment . It also ordered ORG to reimburse the applicant ’s costs of legal representation in the constitutional proceedings within DATE . Finally , ORG ordered ORG to proceed with the case without any further delay .

ORG had jurisdiction to examine the length of the proceedings in issue as from DATE . It admitted that the case had been complex to a certain extent , in particular because the offences in issue had been committed DATE . The applicant by her conduct had not contributed to the length of the proceedings . Their overall length was in itself incompatible with the applicant ’s right to a hearing within a reasonable time . As regards the conduct of ORG in particular , it had remained inactive for DATE without any justification . ORG also recalled that in its finding of CARDINAL DATE given in proceedings initiated by the accused persons it had ordered ORG to deal with the case without delay . There had been unjustified delays also as regards the conduct of ORG in the separate set of proceedings concerning CARDINAL of the accused persons .

As regards the proceedings before ORG , ORG noted , in particular , that the first hearing had been scheduled after DATE . Such a period was excessive in view of the overall length of the proceedings . ORG held that the finding of a violation in respect of the proceedings before ORG , together with its order that ORG should avoid further delays in the proceedings , constituted in itself appropriate satisfaction as regards the appeal proceedings .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra

NORP The applicant , PERSON , is an NORP national who was born in DATE and lives in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . ORG were represented by their Agent , Mr G. Kostanyan , Representative of GPE at ORG .

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

NORP The applicant ’s late husband had worked for ORG ( hereafter “ NORP ” ) , a company involved in manufacturing various machinery and equipment and whose majority shareholder is the State .

No salary was paid to the staff for DATE , since PERSON was experiencing financial problems . In DATE the majority of PERSON ’s staff were ordered to take unpaid leave for an indefinite period .

On DATE the relevant trade union instituted court proceedings against PERSON in the interests of the staff , seeking arrears for unpaid salary and other benefits .

On DATE ORG granted the claim and ordered PERSON to pay a total of ORG CARDINAL,CARDINAL,CARDINAL , including ORG ORG to the applicant ’s late husband . No appeal was lodged against this judgment which became final .

On DATE ORG issued the writ of execution ( կատարողական թերթ ) .

On DATE the bailiff instituted enforcement proceedings no . CARDINAL . In the course of these proceedings the bailiff decided to freeze PERSON ’s property and bank accounts .

On DATE the bailiff decided to stay enforcement proceedings no . CARDINAL on the ground that bankruptcy proceedings had been instituted in respect of PERSON . It appears , however , that the enforcement proceedings were resumed on DATE and that part of PERSON ’s frozen property was sold at a public auction . On DATE ORG decided to terminate the bankruptcy proceedings .

On DATE the bailiff once again decided to stay enforcement proceedings no . CARDINAL , but later resumed them on DATE .

On DATE the Government adopted decree no . ORG , on the basis of which PERSON was allowed to sell its property . The proceeds of the sale were to be directed by the company towards paying off its debts in respect of the ORG budget .

On DATE the bailiff stayed the enforcement proceedings on the basis of this decree .

On DATE the Government adopted decree no . CARDINAL-A , according to which it decided to sell its shares in PERSON to a private company . The buyer in return undertook an obligation towards the State to make investments of various amounts , including creation of jobs .

It appears that enforcement proceedings no . CARDINAL remained stayed on the basis of this decree for DATE but were later resumed on DATE .

On DATE the applicant ’s late husband was ordered to take unpaid leave .

On an unspecified date thereafter he instituted proceedings against PERSON , seeking unpaid salary for the period DATE and DATE .

On DATE ORG granted the claim and ordered PERSON to pay AMD CARDINAL to the applicant ’s late husband . No appeal was lodged against this judgment which became final .

On DATE ORG issued the writ of execution upon the request of the applicant ’s late husband .

On DATE the applicant ’s late husband submitted the writ of execution to the bailiff .

On DATE the bailiff instituted enforcement proceedings no . CARDINAL on the basis of the above writ of execution .

On DATE the applicant ’s late husband requested the withdrawal of the writ of execution .

On CARDINAL DATE the bailiff decided to discontinue the enforcement proceedings ( ավարտել կատարողական վարույթը ) on the ground that the applicant ’s late husband had requested the withdrawal of the writ of execution .

On DATE the applicant ’s husband passed away .

On an unspecified date the applicant instituted proceedings against PERSON , claiming that the respondent owed her late husband ORG CARDINAL in unpaid salary and seeking to be awarded that amount .

In her submissions made before ORG the applicant modified her claim , seeking a smaller amount , namely ORG CARDINAL , in view of the fact that a sum of money had already been awarded to her late husband by the judgment of DATE .

A representative of PERSON who was present at the hearing did not object to the applicant ’s claim .

On DATE ORG , having examined the materials of the case , including the applicant ’s marriage certificate and the certificate concerning unpaid salary , found the applicant ’s claim to be substantiated and ordered PERSON to pay AMD CARDINAL to the applicant . No appeal was lodged against this judgment which became final .

It appears that the applicant did not request ORG to issue a writ of execution in order to submit it to the bailiff for enforcement purposes .

On DATE the application was communicated to the respondent Government .

On DATE the Government submitted their observations .

On DATE the applicant submitted her observations and just satisfaction claims .

On DATE the Government submitted their comments on the applicant ’s just satisfaction claims .

By a letter of CARDINAL DATE the Government informed the ORG that on DATE the applicant had been recognised as her late husband ’s heir . The ORG submitted a copy of an inheritance certificate dated DATE which had been issued upon the applicant ’s application . The certificate was issued by the local notary in respect of the applicant and her CARDINAL children and mentioned as the estate the deceased ’s flat , as well as unpaid salary and other lump - sum payments owed to him by PERSON . The Government further stated that on DATE the applicant had filed a request with the bailiff , seeking to reopen enforcement proceedings no . CARDINAL , which had been granted . As a result , all CARDINAL judgments had been enforced and the applicant had received all the corresponding outstanding amounts .

By a letter of CARDINAL DATE the applicant confirmed that the judgment debts had been paid to her on DATE .

For a summary of the relevant domestic provisions see the judgment in the case of NORP v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

According to LAW , if a party to enforcement proceedings dies , the bailiff is obliged to replace him with a legal successor as determined by law , a court judgment or an agreement .

According to LAW ( CARDINAL ) , the bailiff shall discontinue the enforcement proceedings if the creditor has requested the withdrawal of the writ of execution .

According to LAW § CARDINAL ( CARDINAL ) , the bailiff shall terminate the enforcement proceedings ( կարճել կատարողական վարույթը ) if the creditor waives his claim for recovery of the judgment award .

According to LAW § CARDINAL ( CARDINAL ) , the bailiff shall terminate the enforcement proceedings if the creditor or the debtor has died and the claims or the debts established by the judicial act may not be transferred to his legal successor .

Article CARDINAL provides that , if an employee dies , his outstanding salary and other similar payments shall be paid to a family member , provided that the latter submits the death certificate and other necessary documents certifying the family link within DATE after the date of the person ’s death .

According to Articles CARDINAL , CARDINAL , DATE and DATE , the estate encompasses the property belonging to the testator on the date of opening the inheritance , including funds , securities and proprietary rights and obligations . The inheritance shall be opened on the date of a person ’s death . An heir accepts inheritance by submitting an application on accepting the inheritance or on receiving an inheritance certificate from the notary of the district where the inheritance was opened . Inheritance can be accepted within DATE after the date of opening the inheritance .

According to LAW , the court may recognise the acceptance of inheritance by an heir who has missed the prescribed time - limit , if it finds the reasons for missing the time - limit to be valid . An heir may accept the inheritance after the expiry of the prescribed time - limit without applying to the courts , if all other heirs who have accepted the inheritance agree . Such agreement signed by the heirs must be notarised . Based on such agreement , the notary shall annul the previous inheritance certificate and issue a new one .

According to LAW , family members of the deceased , as well as his dependents who are incapacitated , have the right to receive the outstanding salary , pensions , benefits and compensation for damage to life or health which , for whatever reason , were not paid to the deceased in his lifetime . Requests to receive these payments must be submitted within DATE after the date of opening the inheritance . If no such claim is submitted within the prescribed time - limit , the relevant sums shall be included in the estate and be inherited under the general conditions prescribed by this Code .


Violation of Art. 6-1;Not necessary to examine under P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

Christos Rozakis;Françoise Tulkens;Lech Garlicki;Loukis Loucaides;Peer Lorenzen;Snejana Botoucharova

On DATE , at an auction organised by ORG , the applicants , who were the only participants in the bid , purchased real property owned by ORG for MONEY ( ORG ) .

On DATE ORG , acting on behalf of ORG and relying on the DATE PERSON on unjustified enrichment at the expense of ORG , sued the applicants in a civil court , seeking payment in the amount of ORG CARDINAL,CARDINAL . The prosecuting authorities referred to LAW ( see paragraph CARDINAL below ) and invoked their powers as the guardians of the legal order . They submitted that the applicants had purchased the property concerned under a compensatory scheme for persons who had abandoned their property on territories beyond LOC that had belonged to GPE before the Second World War . Under this scheme , governed chiefly by the provisions of ORG DATE ( “ LAW ” – see paragraphs DATE below ) , the applicants had a “ right to credit ” , that is , the right to count the price of the abandoned property towards the price of the property to be purchased from ORG .

The prosecuting authorities further argued that the purchase price , which partly comprised compensation for the property left by the applicants’ legal predecessors in ORG , in the former NORP territories beyond LOC , had been calculated wrongly . They averred in that respect that the value of the property , as assessed by expert ORG , amounted to ORG CARDINAL,CARDINAL . DATE before the contract was concluded , the same expert had assessed the value of the same property at ORG MONEY . The prosecuting authorities , harbouring certain doubts as to the soundness of the estimates , had instituted investigations and appointed a new expert , who had estimated the value of the abandoned property at MONEY . Consequently , as the value of the house that the applicants’ legal predecessors had abandoned in ORG was much lower than the price the applicants had paid for the property in GPE , the ORG had sold them the latter property at a considerable loss . The plaintiff prosecuting authority further argued that the first expert , ORG , had had regard to the market value of the ORG property , whereas under the relevant legislation he should have taken the technical value of the property into account . As the applicants had refused to comply with ORG demand to pay ORG MONEY , the prosecuting authorities claimed that the applicants should repay that amount to them .

The applicants argued in their pleadings that ORG , which had sold them the property in GPE under the provisions of LAW , had had the expert estimates at its disposal and had not put forward any objections at that time . They submitted that the estimate relied on by the prosecuting authorities in their statement of claim was based on the assumption that the property in ORG was in a rural location , which was incorrect as it was situated in a town .

On DATE ORG dismissed the prosecutor ’s claim against the applicants , considering it to be unfounded .

The court first observed that the applicants had bought the property at a public auction organised by ORG under the compensation scheme for former owners of properties in the former NORP territories . For the purposes of the auction they had submitted to the authorities CARDINAL successive expert opinions concerning the value of the property owned by their legal predecessors in ORG , prepared by expert PERSON He had estimated the value of the property abandoned in ORG at ORG CARDINAL,CARDINAL . As the value of the property they had purchased from GPE amounted to ORG MONEY , the applicants had not been obliged to pay anything to the municipality .

The court considered that the crux of the legal issue it had to resolve lay in the determination of the methods and criteria to be used when assessing the value of properties abandoned in the pre - war NORP territory . It referred to LAW , applicable to the compensatory scheme at that time , and to the ORG ’s ordinance issued on the basis of LAW of said LAW . Under section CARDINAL of the ordinance , the value of the abandoned land was to be assessed with reference to the current market price of land , and the value of houses with reference to their so - called reconstruction value .

The court further observed that the relevant legislation did not lay down any other criteria for the valuation of the properties concerned . The properties therefore had to be valued on a case - by - case basis , with reference to all the factors relevant to a particular case . In such circumstances , the court had to make a choice relying on the conclusions of the experts commissioned to submit their reports to the court .

Accordingly , the court took account of expert opinions prepared by experts PERSON and TIME for the purposes of the investigations conducted by the prosecuting authorities in connection with the purchase of the property . It also had regard to the findings and estimates made for the purpose of the civil proceedings by experts GPE , PERSON and ORG , who had been assigned to the case by the court . The court further noted the conclusions of an opinion prepared at the applicants’ request by expert ORG

The court concluded that , in the light of the various arguments advanced by the experts , the price paid by the applicants in DATE corresponded to the value of the property abandoned in ORG .

Lastly , the court had regard to the fact that the applicants had , in the meantime , sold the property in question and obtained ORG CARDINAL,CARDINAL for it . This , in the court ’s view , confirmed its finding that the price for the property , fixed by ORG in DATE at PLN CARDINAL,CARDINAL , had been excessive .

The court further ordered ORG of ORG to repay to the applicants the litigation costs they had borne in the proceedings , in the amount of ORG . The court referred to LAW , taken in conjunction with Article CARDINAL .

NORP The prosecuting authorities appealed , claiming that ORG , in estimating the value of the properties concerned , had failed to take into account all the relevant expert opinions . In addition , ORG decision to award the legal costs borne by the defendants had been ill - founded . They argued that , since the plaintiff in the case had been the prosecutor , the general principle whereby the unsuccessful party in a civil case bore the litigation costs , enshrined in LAW , was not applicable .

The applicants , in reply to the appeal , submitted that the assessment of the value of the abandoned property had been thorough and had been based on CARDINAL expert opinions prepared by CARDINAL experts .

As to the litigation costs , they argued that the prosecuting authorities , while acting on behalf of ORG , had in fact been seeking to protect the financial interests of ORG rather than to act as the guardian of the legal order . Hence , the prosecution had not been acting under LAW , that is , to protect the rule of law or ORG rights , or in the public interest .

In such a situation , had the prosecution been exempted from operation of the general principle of responsibility of the unsuccessful party for the litigation costs , they would have been placed at an unfair advantage vis - à - vis the other party .

Hence , LAW should be applied to their case in the manner advanced by ORG , which had stated that the term “ ORG ” used in DATE Procedure should by no means imply that an award of costs for or against ORG was ruled out in situations in which the prosecuting authorities acted in a civil case representing the financial interests of ORG ( decision of DATE , I ORG CARDINAL/CARDINAL ORG CARDINAL/CARDINAL/CARDINAL ) .

On DATE ORG dismissed the prosecutor ’s appeal in so far as it related to the price of the property concerned . The court noted that the first - instance court had had regard to expert opinions prepared by CARDINAL experts . It had carefully examined their conclusions and explained convincingly , with reference to the detailed findings of their reports , why it had found the price paid by the applicants for the property to be correct .

The court also partly amended the first - instance judgment by refusing to award the applicants their legal costs . The court considered that the situation of a prosecutor bringing a civil action on behalf of a third party represented a special case . He or she could not be regarded as a mere party to civil proceedings . This singular nature of the prosecutor ’s role in a civil case was reflected in the rule on costs contained in DATE . Under that provision , the participation of the prosecutor in a civil case did not entail for the other party a right to reimbursement of the litigation costs . Article CARDINALTherefore , and in view of the fact that ORG had not joined the proceedings as a plaintiff , all litigation costs , including the costs borne in connection with the appellate proceedings , had to be borne by the defendants .

NORP Under NORP law all persons , with the exception of public authorities and institutions , are obliged to pay a court fee when lodging a statement of claim with the competent civil court . As the case proceeds , a party is obliged to pay additional court fees when lodging any further appeals .

Under LAW , the costs of litigation necessary for the effective conduct of a case are borne by the unsuccessful party to the proceedings . The costs of litigation comprise the court fees referred to above , legal fees paid to professional legal representatives and various other items of expenditure incurred in connection with the proceedings , such as transport costs and loss of salary as a result of participation in the hearings .

An exception to this general principle is provided for in LAW . Pursuant to this provision , the court may not order the losing defendant to pay the costs of litigation if he or she did not cause the proceedings to be instituted and acknowledged the claim at a first hearing .

The scope of operation of the general principle whereby the unsuccessful party bears the litigation costs , referred to above , is also mitigated by LAW . This provision enshrines the principle of equity in respect of litigation costs and stipulates that the court may order the losing party to pay only a part of the litigation costs , or may exempt it altogether from the obligation to pay these costs , where the

Under LAW , the public prosecutor may participate in civil proceedings whenever it is necessary to protect the rule of law or ORG rights , or in the public interest . Pursuant to LAW , the prosecuting authorities are obliged to indicate the person or institution on behalf of which they have instituted the proceedings . Under LAW , the prosecuting authorities are exempt from the general obligation to pay court fees .

The court serves of its own motion the statement of claim on this person or institution , which is authorised to join the proceedings as a plaintiff .

Article CARDINAL of the Code reads :

“ The participation of the prosecutor in a civil case shall not give rise to reimbursement of litigation costs either to or from ORG . ”

According to the case - law of ORG , Article CARDINAL of the Code of Civil Procedure is applicable only if the prosecutor joined a party in the course of the proceedings and not if he instituted them himself ( decision of PERCENT , I Cz CARDINAL/CARDINAL ) .

ORG further held :

“ Article CARDINAL of the Code is applicable only to cases in which the prosecutor participates in civil proceedings for the purposes indicated in DATE , that is , to protect the rule of law or ORG rights , or in the public interest . The term ‘ ORG used in DATE Procedure in no sense implies that an award of costs for or against ORG is ruled out in situations in which the prosecuting authorities act in a civil case representing the financial interests of ORG in connection with its acts . ” ( decision of DATE , I ORG CARDINAL/CARDINAL ORG CARDINAL/CARDINAL/CARDINAL )

In its judgment of DATE , ORG , examining the compatibility with the LAW of certain provisions of civil procedure applicable in competition proceedings , observed :

“ ... exemption from the obligation to pay court costs , in particular costs other than the court fees , can not be automatic in nature , that is to say , it can not create a situation in which the successful party would not have any claim to have his or her costs reimbursed . In the ORG ’s view , the particular circumstances of CARDINAL of the parties or the particular character of the case may be such that the creation by law of a mechanism allowing for such a situation can not be ruled out from the outset ... nevertheless , it may not result in a state of affairs in which a successful private party is obliged to bear the full financial cost of his or her participation in the proceedings . In some situations such an outcome might even lead to the economic benefit deriving from the ruling in the party ’s favour being cancelled out .

If the legislature , having regard to circumstances militating in favour of such a solution , adopts an approach which allows the losing party to be completely exempted from the obligation to pay costs , it should at the same time create a separate legal mechanism enabling the successful party to obtain reimbursement of the costs it incurred from another source . ... Exemption of the losing party from any obligation to pay costs , without the successful party having any possibility of having his or her costs compensated , amounts to a restriction of the right of access to a court . ”

In its judgment of DATE ( P/CARDINAL/CARDINAL ) , ORG observed that the principle of equality before the law which manifested itself in , among other things , the right of equal access to the courts and the right to a fair hearing , was also applicable to issues concerning litigation costs . Hence , the principle that the successful party should have its costs reimbursed , and the unsuccessful party bear the financial cost of the proceedings , must be regarded as consistent with the principles of equality and equity .

Since DATE NORP law has provided that persons repatriated from the territories beyond LOC which belonged to GPE before the Second World War are entitled to have the value of the property abandoned as a result of the Second World War deducted either from the fee for the right of “ perpetual use ” or from the price of immovable property purchased from ORG .

These provisions were repeated in several successive statutes . At the material time , LAW governed the legal situation of persons entitled to such compensation .

NORP The obligation to compensate repatriated persons was laid down in LAW of the LAW , the relevant parts of which provided that persons who , in connection with the war that began DATE , abandoned real property in territories not at present belonging to the NORP State and who , by virtue of international treaties concluded by GPE , were to obtain equivalent compensation for the property abandoned abroad , would have the value of the abandoned real property offset against the fee for the right of perpetual use of land or against the price of a building plot and the ORG - owned buildings or LOC situated thereon .

At the material time in the present case , the procedure for implementation of LAW of LAW was laid down in the ORG ’s Ordinance of DATE on the principles applicable in connection with offsetting the value of real property abandoned abroad against the price of a title to real property or against the fee for perpetual use .

Rules concerning the determination of the value of the abandoned property were set out in the ORG ’s Ordinance of DATE ( as amended ) on the offsetting of the value of real property abandoned abroad against the fee for perpetual use or against the price of a building plot and buildings situated thereon ( ORG PERSON w sprawie zaliczania wartości mienia nieruchomego pozostawionego za granicą na poczet opłat za użytkowanie wieczyste lub na pokrycie ceny sprzedaży działki budowlanej i położonych na niej budynków – “ the DATE LAW ) .

Paragraph CARDINAL of the DATE Ordinance provided , in its relevant parts , as follows :

“ If the value of the property [ abandoned abroad ] exceeds the price of the real property that has been sold ... , the outstanding amount can be offset against the fee for the right of perpetual use , or against the price of an industrial or commercial plot of land and any commercial or small - business establishments , buildings designated for use as workshops or ateliers , holiday homes or garages situated thereon . ”

Paragraph CARDINAL provided that a first - instance body of the local ORG administration competent to deal with town and country planning should issue the decisions on offsetting the value of property abandoned abroad . Paragraph CARDINAL laid down certain general rules relating to the valuation of such property .