Ján Šikuta;Josep Casadevall;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

NORP The applicants’ legal predecessors owned a plot of land with a surface area of QUANTITY m. located in the municipality of ORG , listed in a land register under entry no . DATE . In DATE the applicants inherited this property as coowners . The property was designated , by an administrative decision given on an undetermined date , apparently prior to DATE , for agricultural use .

By a letter of CARDINAL DATE the first applicant was informed by ORG that the starting date for the development foreseen by the draft land development plan for the municipality had not yet been yet fixed , but that it was most likely that work would begin after DATE .

According to the relevant local development plan , which was adopted in DATE and later amended in DATE , the entire property had been designated for construction of a major roadway , connecting the municipality with GPE , and various commercial buildings . As a result , the applicants could continue to use their property for gardening or agricultural purposes , but could not carry out any development . A number of owners lodged objections against this plan , which were ultimately dismissed by ORG .

NORP In DATE the applicants requested the municipality to specify the use to which their property would be put under the land development plan and to indicate timelimits for the works to begin . They also requested the municipality to acquire the property from them . This offer apparently remained unanswered .

On DATE the applicants made an enquiry with the municipality as to the development plans in respect of their property .

In a reply of DATE they were informed that their property remained covered by the development plan adopted in DATE under which it was designated for construction of a roadway and for various commercial buildings .

On DATE the applicants renewed their request for the municipality to acquire their plot . This was refused on DATE .

On DATE the applicants complained to the municipal authorities that the local land development plan had not been implemented and that no timeframe for its implementation had been foreseen , even tentatively . As a result , they could not carry out any development of the property and had been left in a prolonged state of uncertainty as to its future fate . It could not be used for leisure purposes as it was situated in a rather unattractive area . They had been contacted by many potential buyers who , having learnt about the lack of possibilities to develop the land immediately , had lost interest in buying the property . Their requests that the municipality acquire their land had been unsuccessful . As a result of the legal situation of the property , their ownership had been stripped of all economic value .

On DATE the applicants were informed by ORG that their land would be acquired in the future by a company which would construct the roadway foreseen under the DATE development plan .

On DATE the applicants requested , for the first time , that an initial approval of a development project ( decyzja o warunkach zabudowy ) be issued for the construction of a small house on their land .

In a reply of CARDINAL DATE ORG informed them that such a decision could not be issued as it would not be compatible with the local land development plan adopted in DATE .

In a further letter of DATE ORG informed the applicants that the mere fact that their property had been foreseen for future expropriation for the purposes of the construction of the roadway did not entail for the municipality an obligation to acquire their land from them . Accordingly , there were no immediate plans to purchase the properties designated in the local development plan for the construction of the roadway . They were also informed that a new land development plan was being prepared by the municipality .

On DATE the applicants complained to ORG about the local administration ’s failure to adopt a new land development plan . They referred to the restrictions which the DATE plan imposed on the exercise of their ownership .

On DATE ORG rejected their complaint , holding that a complaint against the administration ’s failure to act could not be made in respect of proceedings concerning elaboration of local land development plans .

On DATE the relevant local development plan expired , pursuant to LAW DATE ( see paragraph CARDINAL below ) . Apparently to date no new land development plan has been adopted by the municipality .

DATE to DATE questions of land development were governed by LAW of DATE .

On DATE a new LAW was enacted . It entered into force on DATE .

On DATE ORG passed a law amending LAW DATE .

On DATE a new LAW was enacted which repealed LAW .

Under LAW of DATE owners of properties to be expropriated in the future were not entitled to any form of compensation for damage resulting from restrictions on the use of their property or the reduction in its value originating in expropriations to be carried out at an undetermined future date .

Section CARDINAL of LAW enacted in DATE created for local authorities a number of obligations towards owners whose properties were designated for expropriation at an undetermined future date under land development plans adopted by the competent municipal authorities . The municipalities were obliged to buy such property , replace it with other land within DATE of an owner ’s request , or provide compensation for the damage caused by the designation .

NORP However , pursuant to section QUANTITY , these obligations and the corresponding claims of the owners applied only to plans adopted after the Act had entered into force , i.e. to plans adopted by local municipalities after CARDINAL DATE .

Pursuant to the DATE Act , plans adopted before its entry into force were to expire on DATE .

In DATE an amendment to LAW was adopted under which the validity of such plans was extended for DATE until DATE . Again , on DATE , ORG passed a law amending LAW DATE which extended until DATE the validity of the land development plans adopted before DATE .

Under LAW of LAW ( see paragraph CARDINAL above ) , all local plans adopted before DATE remained valid , but not beyond DATE .

Compensation entitlements for owners , provided for by LAW ( see paragraph CARDINAL above ) , were in essence maintained by LAW . Pursuant to section QUANTITY , when , following the adoption of a new local land development plan , the use of property in the manner provided for by a previous plan has become impossible or has been restricted , it is open to the owner to claim compensation from the municipality , or to request the municipality to buy the plot . Any litigation which may arise in this respect between municipalities and owners can be pursued before the civil courts . It would appear that the operation of section CARDINAL is not retroactive , thus limiting the scope of any such claims to the period after the adoption of the CARDINAL Act .

Other relevant legislative provisions are extensively set out in the ORG ’s judgment of DATE in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL ) .

In its judgment of CARDINAL DATE ( K CARDINAL/CARDINAL ) , ORG examined the request submitted to it by the ORG to determine the compatibility with LAW of section CARDINAL § CARDINAL of LAW DATE insofar as it excluded the application of section CARDINAL of that Act to land development plans adopted before DATE . The court referred to its established case - law to the effect that ownership could not be regarded as ius infinitivum . Consequently , its exercise was normally restrained by many legal and practical considerations , including the necessity of balancing the ORG interests against those of other persons . Local land development plans were to be regarded only as a practical expression of restraints originating in numerous statutes regulating the lawful exercise of ownership . In particular , owners of properties “ frozen ” for the purpose of future expropriations as a result of the adoption of such plans could normally continue to use their properties as they had been using them prior to the adoption of such plans . This did not amount to such an interference with ownership that it could be regarded as being incompatible with the constitutional protection of ownership .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska

The first applicant , PERSON , and the second applicant , PERSON PERSON , are NORP nationals , born in DATE and DATE , who live in GPE . The third applicant , PERSON , is their daughter , an NORP national , born in GPE in DATE . They are represented before the ORG by PERSON , a lawyer practising in ORG .

The NORP Government ( “ the Government ” ) were represented by their Agent , PERSON from ORG .

On DATE the President of the former Third Section decided , in the interest of the parties and the proper conduct of the proceedings , to indicate to the Government of GPE , under LAW that the first applicant should not be deported to GPE for the duration of the proceedings before the ORG .

The application was transferred to LAW , following the re - composition of the ORG ’s sections on DATE .

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

At some unknown time the first applicant entered GPE and requested asylum . In support of her request she explained that she had been a member of the political party ORG ) since DATE . Following the election in DATE , a conflict arose between ORG party and the CUD . She was summoned by the police in DATE but did not appear , as she knew that CARDINAL other members of the ORG had disappeared after being summoned by the police . She was summoned a second time and went into hiding with her sister . In DATE she fled the country . She travelled by plane from GPE to GPE on a false passport .

On DATE ORG ( Migrationsverket ) refused the first applicant ’s request and ordered her deportation to GPE . It noted that she had not proved her identity , but in assessing her request for asylum it assumed that she was from GPE as she maintained . It found that the general situation in GPE alone could not justify granting asylum . As to the applicant ’s personal situation , it questioned her credibility , notably because during the interviews she had shown little knowledge of the PERSON and had given divergent information about where and with whom she had been hiding from DATE . Moreover , noting that the applicant had not played a leading role within the party , the ORG found it unlikely that she would be of interest to the police , especially DATE after the election , and that , if she had been of such interest , the police had not come to find her at her sister ’s home . ORG also noted that , according to international sources , many members of the CUD had in fact been arrested in connection with the election , but that almost all had been released in DATE . Those remaining were convicted in DATE and granted amnesty in DATE . In these circumstances , ORG did not find that the applicant had substantiated fulfilling the criteria for being granted asylum .

The first applicant appealed to ORG ( Migrationsdomstolen ) and added that for DATE and DATE she had had a relationship with the second applicant , an NORP national , who had been granted a permanent residence permit in GPE on DATE in order to join his mother . On DATE the first and the second applicants had a daughter , the third applicant , of whom the parents have joint custody .

On DATE , ORG upheld ORG decision as to the request for asylum .

As to the first applicant ’s relationship with her partner and child , ORG pointed out that by virtue of LAW , LAW of LAW , an alien who wants a residence permit in GPE must have applied for and been granted such a permit before entering the country . An application for a residence permit may not be granted after entry into GPE except , among other grounds , if the alien has a very strong connection to a person residing in GPE and it can not reasonably be demanded that the alien travel to another country to hand in an application there . According to the preparatory work , a request to be exempted from the main rule should be refused if the alien ’s identity can not be established and the alien does not have a right to protection in GPE .

In the present case ORG noted that the third applicant did not have a residence permit in GPE at the relevant time , thus the first applicant could not invoke the strong connection to her child to obtain a residence permit there . As regards the first applicant ’s relationship with the second applicant , ORG found on the one hand that it spoke in the first applicant ’s favour that the couple had a child together . On the other hand , it spoke against her that she had not pointed to any reasons why it could not reasonably be demanded that she return to her home country and hand in her application for a residence permit there . In conclusion ORG did not find the conditions fulfilled to apply the said exception set out in LAW , LAW , of LAW .

Leave to appeal to ORG ( Migrationsöverdomstolen ) was refused on DATE . The deportation order thus became enforceable .

By decision of CARDINAL DATE ORG granted the third applicant a permanent residence permit in GPE on account of her ties to her father .

Subsequently , invoking LAW , LAW of LAW the applicant maintained that there were impediments to her deportation because of her strong ties to her partner and her daughter .

By decision of CARDINAL DATE ORG refused to suspend the deportation order of the first applicant . It noted that LAW , LAW of LAW was an extraordinary remedy and that the invoked new circumstances could not constitute an impediment within the said provision .

On DATE a new Act entered into force in GPE amending LAW , LAW and LAW , LAW ( see relevant domestic law below ) .

Invoking the amended LAW , LAW of LAW , again the first applicant maintained that there were new circumstances which amounted to an impediment to enforce the deportation order . In particular she submitted that the second applicant objected to her taking their daughter with her to GPE to apply for family reunification . Moreover , the second applicant worked as a truck driver , which meant that he was away for long periods and therefore could not take care of their daughter in GPE .

By decision of CARDINAL DATE ORG refused the application since the applicant had not presented her original passport and therefore had not fulfilled the conditions set out in LAW , LAW , of LAW .

Submitting a valid passport , the first applicant re - maintained that there were impediments to her deportation by virtue of LAW , Section CARDINAL of LAW .

By decision of CARDINAL DATE ORG disagreed . It commenced by examining whether it could be considered clear that a residence permit would have been granted the first applicant , if her application had been examined before her entry into GPE .

Firstly , at the relevant time the first and the second applicants did not fulfil the conditions set out in LAW , LAW , of LAW according to which a residence permit could be granted to an alien who is the spouse of , or cohabiting partner , with someone who is residing in GPE . It was recalled in this respect that the applicants were not married and they had not lived together before the first applicant entered GPE .

Secondly , at the relevant time the first and the second applicant did not fulfil the conditions set out in LAW , LAW a ) of LAW , which stipulated that a residence permit could be granted to an alien who intended to marry or cohabit with someone who was legally residing in GPE , if their relationship was serious and no special reasons spoke against granting such a residence permit . It was recalled in this respect that the applicants’ relationship had only commenced in GPE .

Accordingly , it could not be concluded that “ it was clear that a residence permit would have been granted to the first applicant if the application had been examined before her entry into GPE ” .

Thereafter , ORG found that there were no new circumstances or impediments to the enforcement of the deportation order under LAW , LAW of LAW . It pointed out though that the implementation thereof had been suspended while the case was pending before the ORG in accordance with the Rule CARDINAL indication .

The basic provisions mainly applicable in the present case , concerning the right of aliens to enter and to remain in GPE , are laid down in the DATE LAW ( Utlänningslagen , DATE ) . It defines the conditions under which an alien can be deported or expelled from the country , as well as the procedures relating to the enforcement of such decisions .

LAW , of LAW stipulates that an alien who is considered to be a refugee or otherwise in need of protection is , with certain exceptions , entitled to a residence permit in GPE . According to LAW , LAW , of LAW , the term “ refugee ” refers to an alien who is outside the country of his or her nationality owing to a well - founded fear of being persecuted on grounds of race , nationality , religious or political beliefs , or on grounds of gender , sexual orientation or other membership of a particular social group and who is unable or , owing to such fear , is unwilling to avail himself or herself of the protection of that country . This applies irrespective of whether the persecution is at the hands of the authorities of the country or if those authorities can not be expected to offer protection against persecution by private individuals . By “ an alien otherwise in need of protection ” is meant , inter alia , a person who has left the country of his or her nationality because of a well - founded fear of being sentenced to death or receiving corporal punishment , or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) .

NORP Moreover , if a residence permit can not be granted on the above grounds , a permit may nevertheless be issued to an alien if , after an overall assessment of his or her situation , there are such particularly distressing circumstances ( synnerligen ömmande omständigheter ) as to allow him or her to remain in GPE ( LAW , section CARDINAL of LAW ) . During this assessment , special consideration should be given to , inter alia , the alien ’s state of health . In the preparatory works to this provision ( Government Bill CARDINAL/CARDINAL:CARDINAL , pp . CARDINAL ) , life - threatening physical or mental illness for which no treatment can be given in the alien ’s home country could constitute a reason for granting a residence permit .

According to a special provision on impediments to enforcement , an alien must not be sent to a country where there are reasonable grounds for believing that he or she would be in danger of suffering capital or corporal punishment or of being subjected to torture or other inhuman or degrading treatment or punishment ( LAW , LAW , of LAW ) . In addition , an alien must not , in principle , be sent to a country where he or she risks persecution ( LAW , LAW , of LAW ) .

Under certain conditions , an alien may be granted a residence permit even if a deportation or expulsion order has gained legal force . This applies , under LAW , LAW , of LAW , where new circumstances have emerged that mean there are reasonable grounds for believing , inter alia , that an enforcement would put the alien in danger of being subjected to capital or corporal punishment , torture or other inhuman or degrading treatment or punishment or there are medical or other special reasons why the order should not be enforced . If a residence permit can not be granted under this provision , ORG may instead decide to re - examine the matter . Such a re - examination shall be carried out where it may be assumed , on the basis of new circumstances presented by the alien , that there are lasting impediments to enforcement of the nature referred to in LAW , Sections CARDINAL and CARDINAL , of LAW , and these circumstances could not have been presented previously or the alien shows that he or she has a valid excuse for not doing so . Should the applicable conditions not have been met , ORG shall decide not to grant a reexamination ( LAW , LAW , of LAW ) .

The provisions on family reunification relating to a spouse , registered partner or cohabiting partner etc . of a person who is resident in GPE are set out in LAW , LAW , of LAW and were given their present wording on DATE in connection with the implementation of the ORG Directive on the right to family reunification ( Directive CARDINAL of DATE , hereinafter " LAW below ) .

Under LAW , LAW , first paragraph of the LAW , unless otherwise provided in LAW ( about special grounds against granting a residence permit ) , a residence permit shall be granted to an alien who is a spouse or cohabiting partner ( sambo ) of someone who is resident in GPE or who has been granted a residence permit to settle in GPE , and under certain conditions to the alien ’s minor children .

Under LAW , LAW a ) first paragraph of the LAW a residence permit may be granted to an alien who intends to marry or become a cohabiting partner with someone who is legally residing in GPE , if their relationship is serious and no special reasons speak against granting such a residence permit .

By virtue of LAW , LAW , of the LAW , an alien who wants a residence permit in GPE on account of family ties or serious relationships must have applied for and been granted such a permit before entering the country . An application for a residence permit may not , as a general rule , be approved after entry . However , exemptions from this rule can be made for example if the alien has strong ties to a person who is resident in GPE and it can not reasonably be required that he or she travel to another country to submit an application there ( LAW , LAW , second paragraph , point CARDINAL ) . An exemption may also be made if there are some other exceptional grounds ( LAW , LAW , second paragraph , point CARDINAL ) . The requirement that , in principle , residence permits for family members have to be granted before entry into GPE was introduced as CARDINAL of a number of measures aimed at reducing the possibilities of obtaining a residence permit by means of marriages or relationships of convenience . Subsequently , ORG and ORG have underlined on several occasions that the requirement that residence permits be obtained before entry into GPE is an important part of measures to maintain regulated immigration . Moreover , the preparatory works to LAW state that it is important that aliens staying in GPE illegally do not enjoy a better position than those who comply with decisions by the authorities to return to their country of origin in order to apply for a permit from there ( Government PERSON ) . The same requirement is found in LAW , LAW ( see below ) .

As regards the exemptions that can be made according to LAW , LAW , second paragraph , point CARDINAL of LAW , the preparatory works to the provision ( Government PERSON , p. CARDINAL et seq . ) state that the main emphasis should be placed on the question of whether it is reasonable to require that the alien return to another country in order to submit an application there . Relevant elements , which may be favourable for the alien , may be whether he or she can be expected , after returning home , to encounter difficulties in obtaining a passport or exit permit and this is due to some form of harassment on the part of the authorities in the country of origin . It may also be whether the alien will be required to complete a long period of national service or service under unusually severe conditions . It may also be relevant whether the alien has to return to a country where there is no NORP foreign representation and where major practical difficulties and considerable costs are associated with travelling to a neighbouring country to submit the application there . Relevant elements , which may count against the alien , may be that he or she is staying in the country illegally , that their identity is unclear or if there are strong ties to the country of origin .

Under LAW , matters concerning the right of aliens to enter and remain in GPE are dealt with by CARDINAL instances ; ORG , ORG and ORG ( LAW , LAW , and LAW , LAW , of LAW ) .

On DATE LAW , LAW was amended adding in the last paragraph “ when assessing what is reasonable under the second paragraph , point CARDINAL , particular attention shall be paid to the consequences for a child of being separated from its parent , if it is clear that a residence permit would have been granted if the application had been examined before entry into GPE ” . The wording was thus :

An alien who wants a residence permit in GPE must have applied for and been granted such a permit before entering the country . An application for a residence permit may not be approved after entry . However , the rule given in the first paragraph does not apply if

the alien is entitled to a residence permit here as a refugee or other person in need of protection under LAW or can be granted a residence permit here pursuant to LAW , LAW , DATE or DATE ,

NORP the alien should be granted a residence permit here pursuant to LAW ,

an application for a residence permit concerns extension of a temporary residence permit that has been granted to an alien with family ties pursuant to LAW , first paragraph , point CARDINAL or CARDINAL or first paragraph , point CARDINAL or CARDINAL or Section CARDINALa , first paragraph , point CARDINAL or second paragraph ,

the alien can be granted or has a temporary residence permit pursuant to Section CARDINAL ,

the alien has strong ties , as defined in LAW , first paragraph , points DATE or LAW , first paragraph , points CARDINAL or second paragraph , to a person who is resident in GPE and it can not reasonably be required that the alien travel to another country to submit an application there ,

an application for a residence permit concerns extension of a temporary residence permit that has been granted to an alien pursuant to LAW in a case referred to in LAW , LAW , first paragraph .

the alien can be granted a residence permit under LAW ,

the alien has been granted a temporary residence permit for studies pursuant to LAW and has either completed studies equivalent to CARDINAL higher education credits or has completed CARDINAL academic term in the case of postgraduate education , or

there are some other exceptional grounds .

Furthermore , the rule given in the first paragraph does not apply if the alien has been granted a visa to visit an employer in GPE or is exempt from the visa requirement if he or she is applying for a residence permit for work in a type of occupation in which there is great demand for labour . An additional requirement is that it would cause the employer inconvenience if the alien had to travel to another country to submit an application there or that there are some other special grounds . When assessing what is reasonable under the second paragraph , point CARDINAL , particular attention shall be paid to the consequences for a child of being separated from its parent , if it is clear that a residence permit would have been granted if the application had been examined before entry into GPE . With regard to a residence permit for an alien who is to be refused entry or expelled in accordance with a judgment or order that has become final and non - appealable , the regulations in LAW , LAW , LAW and LAW , Sections CARDINAL apply .

This provision was also amended on DATE adding in the last paragraph “ when assessing under the first paragraph , point CARDINAL ... particular attention shall be paid to the consequences for a child of being separated from its parent , if it is clear that a residence permit would have been granted ... if the application had been examined before entry into GPE ” . The wording was thus :

If , in a case concerning the enforcement of a refusal - of - entry or expulsion order , new circumstances come to light that mean that

NORP there is an impediment to enforcement under LAW , CARDINAL or DATE ,

NORP there is reason to assume that the intended country of return will not be willing to accept the alien or

there are medical or other special grounds why the order should not be enforced , ORG may grant a permanent residence permit if the impediment is of a lasting nature .

If there is only a temporary impediment to enforcement , the ORG may grant a temporary permit . When assessing under the first paragraph , point CARDINAL , whether there are other special grounds why an order should not be enforced , particular attention shall be paid to the consequences for a child of being separated from its parent , if it is clear that a residence permit would have been granted on the grounds of strong ties under LAW , LAW , first paragraph , points DATE , or LAW , LAW , first paragraph , points CARDINAL , or second paragraph , if the application had been examined before entry into GPE . ORG may also order a stay of enforcement .

The Government submitted that according to information received from ORG in GPE in DATE , it would take DATE to process an application for a residence permit at the ORG . The subsequent processing time by ORG in GPE would normally be DATE depending on whether the application needed to be supplemented or not . Cases involving children were given priority . The time from the filing of an application at the ORG until a decision is reached should thus not be longer than DATE . The applicants disputed this information . Referring to e - mail correspondence between the ORG and their representative from DATE , they maintained that it would take DATE to have an application considered .

Council Directive , CARDINAL of DATE on the right to family reunification , which applies to all ORG Member GPE , except GPE , GPE and GPE , deals with the conditions for the exercise of the right to family reunification by third country nationals residing lawfully in the territory of GPE . LAW , LAW , which carries the heading “ Submission and examination of the application ” , provides :

Member GPE shall determine whether , in order to exercise the right to family reunification , an application for entry and residence shall be submitted to the competent authorities of the Member State concerned either by the sponsor or by the family member or members .

NORP The application shall be accompanied by documentary evidence of the family relationship and of compliance with the conditions laid down in LAW and DATE and , where applicable , Articles DATE and CARDINAL , as well as certified copies of family member(s)’ travel documents . If appropriate , in order to obtain evidence that a family relationship exists , Member GPE may carry out interviews with the sponsor and his / her family members and conduct other investigations that are found to be necessary . When examining an application concerning the unmarried partner of the sponsor , Member GPE shall consider , as evidence of the family relationship , factors such as a common child , previous cohabitation , registration of the partnership and any other reliable means of proof .

The application shall be submitted and examined when the family members are residing outside the territory of the Member ORG in which the sponsor resides . By way of derogation , a Member ORG may , in appropriate circumstances , accept an application submitted when the family members are already in its territory .

The competent authorities of the Member ORG shall give the person , who has submitted the application , written notification of the decision as soon as possible and in any event DATE from the date on which the application was lodged . In exceptional circumstances linked to the complexity of the examination of the application , the time limit referred to in the first subparagraph may be extended . Reasons shall be given for the decision rejecting the application . Any consequences of no decision being taken by DATE period provided for in the first subparagraph shall be determined by the national legislation of the relevant Member State .

When examining an application , the Member GPE shall have due regard to the best interests of minor children .


David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The first applicant , GPE , is an NORP national who was born in DATE and currently lives in GPE . The second applicant , NORP , is the first applicant ’s daughter . She was born in DATE and she currently resides with the first applicant .

The applicants were represented before the ORG by Mr F. Shiels of ORG , a lawyer practising in GPE .

NORP In DATE the applicants lived in PERSON , a predominantly NORP area of north GPE . The second applicant was a pupil at the ORG ( “ the school ” ) , which was a ORG school situated on FAC . In DATE it had CARDINAL pupils aged DATE .

Ardoyne was a predominantly NORP district and the residents were mostly nationalist . However , FAC was bordered on both sides by the PERSON estate , where the residents were predominantly NORP and loyalist .

At DATE and beginning of DATE tensions were high in north GPE . There had been attacks on NORP homes and a series of sectarian murders . Police intelligence suggested that factions of ORG ( “ ORG ” ) , a loyalist paramilitary group , were unhappy with the political situation in GPE and were attempting to re - ignite community violence .

DATE was a particularly difficult period . Elections were held on DATE and both before and after the elections there was an increase in tensions along sectarian interfaces in GPE . Moreover , DATE and DATE represented “ the marching DATE ” in GPE , during which time a number of contentious parades were scheduled to take place . The majority of these parades were by loyalist organisations and many were due to pass through or near to nationalist areas , prompting nationalist protests , and many resulted in violent disorder .

On DATE disorder broke out along FAC . NORP erecting flags on a lamppost claimed that a vehicle which had just left the vicinity of the school was driven at them . Later that same day parents collecting their children from the school were attacked . When the police arrived at the scene they were attacked by large crowds of loyalists , some of whom were carrying iron bars . NORP residents had come out onto FAC and members of both the ORG and ORG ( “ PIRA ” ) , a NORP paramilitary group , were seen among the crowd .

The following TIME parents bringing their children to school were confronted by substantial numbers of loyalists . In an effort to keep the CARDINAL groups apart police carried out a baton charge against the loyalist crowd . Shortly afterwards , there were reports of an armed man in the ORG estate and the Chief Superintendant of the police force decided that on account of the risk to life parents should not be allowed to take their children to school along FAC . Instead , they were advised to take an alternative route along FAC and through a local boys’ school . The Chief Superintendant subsequently faced criticism from public representatives of both sides : the loyalists complained that police stood by as parents taking children to the school attacked their area while the parents demanded an assurance that the police would guarantee safe access for the children to the school along FAC .

Disorder continued TIME with both sides using firearms against the police . The Chief PERSON received reports that loyalists had blast bombs which they intended to use . Consequently , on DATE he again decided that it was too dangerous to permit parents and children to walk to the school along FAC . Although the situation was quieter on DATE , the Assistant Chief Constable , following consultation with the Chief Superintendant , decided that it was not possible at this time to mount an operation that would guarantee the safety of the children and their parents if they were to walk to the school along FAC . This situation continued until the school term finished at DATE .

During DATE and DATE disorder continued in north GPE . On DATE police in PERSON were attacked by a crowd of CARDINAL nationalists opposing a loyalist parade in the area . CARDINAL police officers were injured during the attack , which lasted for TIME .

Notwithstanding efforts by the parents of children attending the school to negotiate with the residents of the ORG estate , it became apparent that when term began in DATE a loyalist mob would try to prevent them from walking along FAC . The police resolved to mount an operation to ensure that parents could take their children to the school by the route of their choice .

NORP In DATE senior police officers met to discuss the strategy for the new term . It was decided to use a series of perspex screens , QUANTITY in height , on FAC with police officers and soldiers positioned on each side so that parents and children would be able to walk on the footpath .

On DATE , DATE of the new term , a large crowd of loyalists gathered and attacked the police and soldiers erecting barriers . The police attempted to clear the crowd but their hostility was such that they were unable to do so . When parents and children attempted to walk to the school they were subjected to verbal abuse . As they headed home in the afternoon loyalists threw stones at them . CARDINAL stone broke a perspex screen injuring a police officer . DATE , and on subsequent days , serious rioting occurred in the area .

Following the events of DATE the police concluded that the perspex screens did not provide sufficient protection . It was therefore decided to place police and military vehicles on both sides of FAC leaving an area in the middle for children and their parents to pass through . They would be escorted by police officers who would use their shields to provide protection from missiles .

NORP Despite the change in tactics , loyalists continued in their efforts to block the parents and children as they attempted to walk along FAC to the school . Their behaviour became increasingly violent and abusive . Although the type of incident which occurred and the intensity of the abuse varied DATE , examples of their behaviour included the following : throwing bricks , rubbish , balloons filled with urine and dog excrement , firecrackers and , on CARDINAL occasion , an explosive device at those making the journey to and from the school ; shouting death threats , sectarian abuse and obscenities of a sexual nature ; displaying explicit pornographic material ; accusing priests on the school ’s ORG of being paedophiles ; spitting at the children and their parents ; wearing masks ; and using whistles , sirens , horns and other instruments to create an intimidating atmosphere .

Notwithstanding the loyalists’ behaviour , the majority of parents continued to take their children to school by foot along FAC . They declined to use the alternative route and they also refused the police ’s offer to transport them to the school in an armoured bus .

Following a number of meetings with community groups towards DATE , in DATE the police decided to reduce the level and intensity of the policing .

On DATE the loyalist “ protest ” was suspended .

At its height , the police operation on FAC had required QUANTITY police officers and CARDINAL soldiers every day , with CARDINAL soldiers in reserve . During the operation QUANTITY police officers were injured . None of the children sustained any physical injuries .

The first applicant brought judicial review proceedings on behalf of herself and her daughter , seeking a declaration that the Chief Constable of the police and the Secretary of ORG for GPE failed to secure the effective implementation of the criminal law and to ensure safe passage for her , her daughter and the other pupils to the school along FAC . She claimed that the policing operation failed to protect the rights of the children and parents under LAW , CARDINAL and DATE of the Convention and LAW No . CARDINAL , that the police approach was not informed by LAW on the Rights of the Child , and that the police were in default of their general duty under LAW to read their statutory obligation to protect life and preserve order compatibly with ORG . In particular , she claimed that they failed to act in the best interests of the child and instead took into consideration the loyalists’ right to protest . In their defence , the police submitted that while the safety of the children and their parents was their overriding concern , they had to consider that if they adopted a more forceful approach to the loyalist protest , there was a real risk of serious violence erupting elsewhere . There was also a risk of retaliatory attacks on NORP schools .

The High Court found that LAW had not been engaged as it had not been proved that the authorities knew or ought to have known of the existence of a real or immediate risk to the first applicant ’s life .

With regard to the LAW complaint , ORG judge did not consider it necessary to decide whether the treatment that the first applicant was subjected to amounted to inhuman or degrading treatment or punishment because he did not accept that the actions taken by the police were unreasonable . He stated that :

“ Sadly , policing options and decisions do not readily permit such uncomplicated solutions , particularly in such a uniquely fraught situation . Those who had to decide how to deal with this protest were obliged to have regard to the effect that their decisions might have in the wider community . It is not difficult to understand that an aggressive , uncompromising approach to the protest might have been a catalyst for widespread unrest elsewhere . It is precisely because the police service is better equipped to appreciate and evaluate the dangers of such secondary protests and disturbances that an area of discretionary judgment must be allowed them , particularly in the realm of operational decisions . While the sense of grievance of the parents is perfectly reasonable and the perplexity of those who could not understand why the police did not adopt more forceful tactics is unsurprising , I can not accept that it has been established that the measures taken by the police were unreasonable . I have concluded that no breach of LAW has been demonstrated , therefore . ”

The High Court further considered that there was no evidence that the protest had been policed in a manner which discriminated against the first applicant . Moreover , due to the efforts of the school , there had been no interference with the second applicant ’s education . Finally , with regard to the complaint under LAW , ORG did not accept that the police had failed to have regard to the best interests of the child or that they were wrong to consider the loyalists’ right to protest .

The application for judicial review was therefore dismissed .

The first applicant appealed to ORG , which dismissed the appeal . Contrary to the findings of ORG , it accepted that LAW was engaged but held that there had been no failure on the part of the police to do all that was reasonably expected of them . With regard to the LAW complaint , ORG was not convinced that the necessary threshold was reached in respect of the first applicant , as she persisted in walking to the school along FAC even though an alternative route was available to her . However , the court accepted that in relation to the second applicant the LAW threshold was more easily attained . Although ORG accepted that the ORG was under a positive obligation to take reasonable measures to protect the second applicant from degrading treatment , it concluded that the police were best equipped to assess the course to be adopted considering the significant risk of violence erupting on a wider scale , which could have put at risk not only the lives of police officers but also the lives of the general public . Taking account of the nature and size of the operation and the perceived risks involved the court held that the police had done all that was reasonably open to them to protect the rights of the child .

ORG also considered that while it might have appeared to the first applicant that she was being treated less favourably , in reality the police had to have regard to the wider picture if they were to ensure that the children were able to walk to school safely . Consequently , a fair balance had been struck between the protection of the interests of the community and respect for the rights and freedoms guarded by the Convention .

The Court of Appeal agreed with ORG that there had been no interference with the second applicant ’s right to education . Finally , the court found that there had been no failure by the police to carry out their statutory duties in a manner compatible with the Convention or without due regard to the best interests of the child .

The first applicant was granted leave to appeal to ORG . In doing so , she did not pursue her complaints under LAW .

Before ORG the respondents conceded that some of the more extreme behaviour of the loyalist protesters potentially constituted inhuman and degrading treatment within the meaning of Article CARDINAL . It was also not in dispute that the police possessed more than sufficient fore - knowledge of that treatment to trigger their obligation to take preventative action . However , ORG considered that it was quite clear from PERSON v. GPE , DATE , § CARDINAL , Reports of Judgments and Decisions CARDINAL that the obligation placed on the authorities in LAW cases was to do all that could reasonably be expected of them to avoid a real and immediate risk to life . The obligation under LAW could not be different in kind , as to hold otherwise would place an intolerable burden on the ORG . The correct test was therefore one of reasonableness , and ORG found that the first applicant ’s assertions were insufficient to establish that the police ’s actions were unreasonable .

NORP In particular , Lord PERSON stated that :

“ DATE and DATE the police devoted substantial effort and resources to keeping open this short stretch of road for the group of parents and children to traverse . They placed themselves as a shield between a hostile and dangerous crowd and a small group of vulnerable people , incurring a considerable number of injuries to their officers . They achieved a significant measure of success in their efforts , in that no child sustained any injury during the whole period . They did not take what might have been a tempting course , to close the road on the ground that to keep it open was too dangerous . It was important that they should uphold the freedom of members of the public to walk at will along a public road , the abandonment of which would have been an inroad into the rule of law and a success for mob rule . It was not achieved easily or without cost , in terms of injuries and expense . But it was achieved , and the complaint in these proceedings is not that the police or the state failed to make sufficient endeavours to uphold the appellant ’s civic rights .

The complaint is rather that the passive protection which the police afforded was insufficient . It is claimed that they should have done more , that they should have taken more robust active steps to quell the protest and protect the children from the frightening experience which they endured when they walked along FAC . That comes down to CARDINAL specific assertions , first , that they should have forced the protesters back and away from their positions bordering FAC and , secondly , that they should have made more numerous arrests , which would have served as a deterrent and brought about a speedier end to the protest .

As the trial judge said in the passage in his judgment which I quoted above , policing options and decisions do not readily permit of such uncomplicated solutions . One can readily envisage many practical difficulties in the way of forcing protesters back and making arrests , which is notoriously difficult in situations of riot or near - riot . More fundamental , the core of the respondents’ case is that a robust response on the part of the police contained a serious danger that violence could spread and escalate . That could have given rise to potentially dangerous consequences both for the parents and children as they walked along FAC and , more widely , for public order in the area and the lives and safety of its residents .

It was suggested on behalf of ORG that the risk of provoking collateral disorder was ‘ essentially speculative and ORG and that reliance should not be placed on the ipse dixit of the police . There is , however , clear evidence of the volatile nature of the security situation in north GPE at the time . The potential for the sudden development of violent disorder is shown by the speed with which it broke out when an incident occurred on DATE and the length of time which it took to subside . When the police cleared the road on DATE , using , as Mr GPE states , conventional crowd tactics , very violent protests ensued and serious rioting took place in the LOC . The police view was that only a negotiated community solution would end the protest , a view shared by Government ministers . The efforts made to achieve this eventually bore fruit and the protest was ended and not recommenced . Acceptance of the validity of proceeding in this manner is not merely deferring to the police view , although it would be quite proper to accord a measure of discretion to them as a body with expertise in handling matters of public security , as both PERSON and ORG recognised . Independently of according such latitude of judgment to the police , acceptance of the validity of the course which they adopted is a matter of what Lord PERSON of NORP described in PERSON v Secretary of ORG for ORG [ DATE ] CARDINAL AC CARDINAL , CARDINAL , para CARDINAL as performance of the ordinary judicial task of weighing up the competing considerations on each side and according appropriate weight to the judgment of a person with responsibility for a given subject matter and access to special sources of knowledge and advice . ”

The police had such responsibility and were uniquely placed through their experience and intelligence to make a judgment on the wisest course to take in all the circumstances . They had long and hard experience of the problems encountered in dealing with riotous situations in urban areas in GPE . The difficulty of catching and arresting malefactors who had means of retreat available through paths and gardens are self - evident . The police had available to them sources of information about what was happening in the community and what was likely to happen if they took certain courses of action , which they were experienced in assessing .

In my judgment the evidence supports the overall wisdom of the course which they adopted . The assertions made by the appellant and ORG that they might possibly have adopted more robust action are in my view quite insufficient to establish that the course adopted was misguided , let alone unreasonable . ”

Baroness PERSON of GPE further noted that :

“ This case has several features which distinguish it from the general run of cases , such as PERSON and the recent decision of this ORG in PERSON v Chief Constable of GPE Police [ DATE ] ORG CARDINAL ; [ DATE ] CARDINAL WLR CARDINAL , in which victims have complained that the state has failed adequately to protect them from the actions of private individuals . First , it concerns children . Second , there is no issue about whether the police should have appreciated the real and immediate risk of ill treatment . They knew all about it . It was going on under their noses . The fact that it may not have occurred to them that it fell within article CARDINAL makes no difference . Third , while they were undoubtedly doing their very best to ensure that the children could get to school by their usual route without suffering physical harm , the steps they took made the experience even more frightening for the children : closing the road , making the parents and children walk together under escort at defined times in TIME , rather than letting them go in dribs and drabs in the way that children normally make their way to and from school . Fourth , they let this situation continue throughout CARDINAL a school term . The evidence suggests that this was because they saw it as part of a complex community dispute , in which a loyalist enclave on this area of north GPE saw itself as under threat from the encroaching nationalists , and was exercising a right to ‘ protest’ about this . The police now accept that this was not a legitimate exercise of the right to protest . But they also believed that more sinister forces on the loyalist side might exploit the dispute to foment much more serious violence elsewhere in GPE if the matter was not carefully handled and ultimately a political solution found .

Hence the essential dispute before us is whether the police were entitled to take into account the risk of serious harm and even death to unspecified people elsewhere in GPE when deciding how to protect the ORG school children . Had they not done so , it is argued , they could and should have taken a more robust attitude to the aggressors from the outset , arresting the ring - leaders and driving the others off the street . This , it is said , is what they finally decided to do after the aggression had been going on for CARDINAL a term , and shortly after they signalled their intentions , the so - called ‘ protest’ was abandoned .

As a general principle , a police officer is not entitled to stand by and let CARDINAL person kill or seriously ill - treat another , when he has the means of preventing it , just because he fears the wider consequences of doing so . He has to step in , come what may . But this situation was not as straightforward as that . In Z v GPE and GPE v GPE it was quite obvious what could have been done to protect the children from harm : the Z children could have been taken into care and the GPE children ’s father could have been arrested when he first threatened to kill them . It was rather less obvious what the authorities should have done to protect the children in E v GPE and I have been troubled by the rejection of the “ but for ” test in the passage quoted in DATE above . In the end , however , I do not think that it has been demonstrated that , had the police behaved at the outset in the way in which it is now said that they should have behaved , the children ’s experience would have been any better . Indeed , it could have been a great deal worse . They were in very real physical danger at the beginning . On DATE an explosive device was thrown into the road where they were walking but thankfully injured CARDINAL . The difficulties and dangers to them in doing what it is now suggested should have been done can not be ignored . Hindsight is a wonderful thing and no doubt the police have learned lessons from this whole experience . But in a highly charged community dispute such as this , it is all too easy to find fault with what the authorities have done , when the real responsibility lies elsewhere .

For that reason , therefore , despite all the features which distinguish this case from those where no breach of duty has been found , and in agreement with Lord PERSON , I too would dismiss this appeal . ”

With regard to the LAW complaint , ORG found that there was no evidence the situation would have been policed any differently had the protesters been nationalist : any comparison between the policing of this protest and the policing of loyalist parades was not valid as the CARDINAL were not comparable , and the same could be said about any comparison between the treatment of the parents and children and the treatment of the protesters . The police took all reasonable steps to protect the children and their parents and there was no evidence to substantiate any suggestion of sectarian bias in their handling of the situation .

The Police ( GPE ) Act DATE provides as follows :

“ CARDINAL . General functions of the police .

( CARDINAL ) It shall be the general duty of police officers—

( a ) to protect life and property ;

( b ) to preserve order ;

( c ) to prevent the commission of offences ;

( d ) where an offence has been committed , to take measures to bring the offender to justice .

( CARDINAL ) Police officers shall , so far as practicable , carry out their functions in co - operation with , and with the aim of securing the support of , the local community .

General functions of the Chief Constable

( CARDINAL ) The police shall be under the direction and control of the Chief Constable . ”


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

NORP The applicant , PERSON . , is an unlimited liability company established under the laws of GPE with its head office in ORG . It was represented before the ORG by PERSON , a lawyer practising in ORG .

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 .

NORP The applicant company supplied medical equipment to a hospital , which at that time was owned by and under the responsibility of the State .

The power of administration over the hospital and its ownership were later transferred by law ( Law no . PERSON . ) to the self - governing region ( samosprávny kraj ) where the hospital is situated .

NORP The hospital owned premises not used for its main function , which it let to third parties .

In DATE the hospital ceased paying the applicant , and later acknowledged its debt to the applicant in an amount equivalent to MONEY ( ORG ) .

On DATE the applicant company sued the hospital for payment of the above - mentioned amount .

On DATE ORG Okresný súd ) allowed the action and , on DATE , ORG ( Krajský súd ) upheld ORG judgment following an appeal by the defendant . The judgment became final and binding on DATE .

On DATE the applicant company applied for enforcement of the judgment under LAW of DATE ( Law no . PERSON . , as amended ) .

In DATE the judicial enforcement officer ( exekútor ) decided that the enforcement should be carried out by means of attaching the rent collected by the hospital from the letting of the above - mentioned premises .

On DATE , by a decision of its council , the ownership of and power of administration over the hospital was taken over by the selfgoverning region , which also assumed the role of landlord in respect of those premises .

On DATE ORG ( Ústavný súd ) declared inadmissible a complaint made by the applicant company under LAW contesting the council ’s decision of DATE on the grounds that it had violated , inter alia , the applicant company ’s right of access to court and to equal treatment in proceedings .

The Constitutional Court found that there was no indication of an interference with the applicant ’s procedural rights and that the complaint was manifestly ill - founded .

NORP By letter of CARDINAL DATE the judicial enforcement officer informed the applicant company that the total amount of principal debt plus interest accrued for late payment and costs incurred totalled , at that time , the equivalent of some ORG CARDINAL,CARDINAL , of which the equivalent of some EUR CARDINAL had already been obtained from the defendant .

The judicial enforcement officer also informed the applicant company that the council ’s decision of DATE had made it impossible to continue attaching the rent pertaining to the LOC in question , as these were no longer owned and let by the debtor .

NORP The judicial enforcement officer further informed the applicant company that using other means of enforcement was not possible due to a temporary immunity from the enforcement of financial claims enjoyed by the hospital under LAW ( Law no . CARDINAL/CARDINAL Coll . , as amended ) and Section CARDINALa of the Health Care Act ( Law no . CARDINAL/CARDINAL ORG . , as amended ) .

On DATE , by a decision of its council , the selfgoverning region decided to merge hospitals under its administration into a new entity , an agency named ORG ( PERSON záväzkov a pohľadávok – “ the ORG ” ) , with effect from CARDINAL DATE . The ORG was the legal successor to the hospital in question , and its purpose was to settle obligations and claims related to the functioning of the hospitals in the region . The ORG did not have the status of a health - care establishment and thus did not benefit from the bar to enforcement of claims against such establishments .

By letter of CARDINAL DATE the enforcement office notified the applicant that the enforcement had been terminated as , on DATE , the applicant ’s entire claim had been settled by the ORG . The applicant company ’s legal costs and penalty interest for the debtor ’s late payment of the principal debt had also been paid .

Article CARDINAL of the LAW no . PERSON . , as amended ) provides :

“ CARDINAL . The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court .

NORP If ORG finds a complaint justified , it shall deliver a decision stating that a person ’s rights or freedoms as set out in paragraph CARDINAL have been violated by a final decision , specific measure or other act and shall quash such decision , measure or act . If the violation that has been found is the result of a failure to act , ORG may order [ the authority ] which has violated the rights or freedoms to take the necessary action . At the same time it may remit the case to the authority concerned for further proceedings , order such authority to refrain from violating the fundamental rights and freedoms ... or , where appropriate , order those who have violated the rights or freedoms set out in paragraph CARDINAL to restore the situation to that existing prior to the violation .

NORP In its decision on a complaint ORG may grant appropriate financial compensation to the person whose rights under paragraph CARDINAL have been violated . ”

The statutory bar to the enforcement of financial claims against healthcare establishments was laid down in different pieces of legislation and its duration , always intended to be temporary , was extended several times . The precise scope of the bar also varied over time .

The bar had its origin in Article CARDINAL of LAW of DATE , such Article being incorporated into the code by PERSON no . PERSON . The bar was , in this implementation , intended to last until DATE .

Article CARDINAL of the amended Enforcement Code of DATE was repealed by ORG by virtue of its judgment of DATE ( published in LAW under no . CARDINAL ) with effect from DATE . ORG found the bar unconstitutional because it created an unjustified difference between the treatment of healthcare establishments and other debtors .

With effect from DATE , a new statutory bar to enforcement of financial claims against health - care establishments was introduced into ORG by the operation of Law no . PERSON . In particular , enforcement was not permissible against the financial assets and income of health - care establishments in so far as such monies were allocated for providing and maintaining health care and related services , nor against assets belonging to health - care establishments which were purchased out of funds deriving from the insurance premiums paid by the establishment ’s users and which were indispensable for the running and maintenance of the establishment .

On DATE a new bar entered into force by virtue of an amendment ( Law no . CARDINAL/CARDINAL Coll . ) to ORG . It introduced a new section CARDINALa to the code , stated to apply until DATE . Under sub - section CARDINAL ( d ) of that provision , enforcement could not be aimed at attaching the property of health - care establishments obtained via insurance premiums or property to be used for providing health care .

In DATE a new constitutional challenge to the bar , as it then stood , was brought by a group of Members of ORG . It was accepted by ORG to the extent that , in its ruling of DATE ( published in LAW under no . CARDINAL/CARDINAL ) , it suspended the legal effect of the bar . However , ORG has never ruled on the merits of the bar , as it expired while the constitutional challenge was pending . In its decision of DATE ORG nevertheless made a formal note of its DATE ruling , considering it a part of its case - law .

The bar was extended for the last time until DATE by the operation of Law no . CARDINAL/CARDINAL Coll . , which introduced a new section CARDINALc § CARDINAL to ORG ( Law no . CARDINAL/CARDINAL Coll . , as amended ) .

On DATE the bar expired and has ceased to exist with effect from DATE .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

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

NORP In DATE , on his way to work , the applicant bought a bottle of sparkling mineral water . While he was opening it , the bottle exploded and its metal cap hit the applicant ’s left eye . The accident , despite the subsequent surgeries and medical treatment , resulted in the applicant ’s loss of vision in his left eye . He was declared an invalid and was granted a disability pension by ORG ( ORG ) .

In DATE the applicant instituted civil proceedings for compensation and pension against the producer of the mineral water . He submitted medical certificates issued by the PERSON and Katowice Hospitals which treated his injury .

On DATE ORG ( PERSON w Częstochowie ) exempted the applicant from the court fees .

On DATE and DATE the trial court held hearings .

In DATE the “ S ” assurance company joined the proceedings as an intervener .

In DATE the trial court held CARDINAL hearings at which it heard witnesses .

On DATE the court , sitting in camera , ordered a medical expert opinion .

On DATE the court received the opinion .

On DATE the court , sitting in camera , ordered ORG to provide a copy of the applicant ’s file .

DATE and DATE no hearings were held .

At the subsequent hearings held on DATE , CARDINAL DATE and DATE the court heard witnesses and ordered the preparation of new expert opinions .

On DATE the trial court held a hearing at which it asked for another expert medical opinion to be prepared .

On DATE the court received the expert opinion . The intervener challenged it .

At the hearing held on DATE the court requested an expert opinion concerning the applicant ’s pension .

The expert submitted the opinion on DATE . Again , the intervener challenged the opinion .

The next hearing , which was held on DATE , was adjourned sine die . The court ordered another expert opinion .

On CARDINAL DATE the opinion was submitted to the court . Subsequently , the intervener challenged it .

On DATE the trial court held a hearing .

On DATE the ORG gave judgment . The defendant was found liable for the damage sustained by the applicant . The court awarded the applicant ORG in compensation but dismissed his claim for pension .

Both parties appealed against this judgment .

On DATE the applicant was exempted from the court - fees in the appeal procedure . The proceedings are pending before ORG .


Violation of Art. 6-1 (length);Remainder inadmissible;Costs and expenses award - domestic and Convention proceedings

The applicant was born in DATE and lives in GPE .

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

The applicant was a police officer . On DATE the prosecution initiated criminal proceedings on suspicion of his mishandling official resources .

On DATE the applicant was arrested and questioned . He was released on bail on DATE .

On DATE the applicant was charged with abuse of office under LAW as then in force .

On DATE the prosecution instituted criminal proceedings against the applicant for smuggling . Separate criminal proceedings for another episode of smuggling were instituted on DATE .

On DATE the prosecutor ordered the applicant ’s detention on remand on suspicion of his being an accomplice in the alleged smuggling scheme .

On DATE the applicant was charged under LAW of LAW as then in force ( smuggling ) .

On DATE the applicant was dismissed from his job under the provisions on the status of the police , on account of his being suspected of having committed an act incompatible with his position as a law - enforcement officer ( also see paragraph CARDINAL below ) .

On DATE all criminal cases against the applicant were joined into CARDINAL set of proceedings .

On DATE the applicant was released on bail , on his written undertaking not to leave the country .

On DATE the charges against the applicant were reformulated . He was charged with exceeding official duties ( LAW as then in force ) , complicity in smuggling ( Articles CARDINAL and CARDINAL § CARDINAL ) and abuse of office ( Article CARDINAL ) .

On DATE several other persons were charged with complicity in the same episodes of smuggling , but the charges against them were separated into a distinct set of proceedings as they had absconded .

The pre - trial investigation was finalised on DATE . CARDINAL other persons were charged along with the applicant .

From DATE until DATE the applicant and his lawyer were granted access to the case file .

On DATE the prosecution rejected the applicant ’s request to discontinue the proceedings .

On DATE , upon approval of the bill of indictment , the case was transmitted to a court .

In a directions hearing held on DATE , ORG ordered the case to be returned to the prosecution for further investigative measures to be carried out . It was noted that the charges were not formulated in a clear and precise manner , and that the investigation of the alleged offence of abuse of office had been conducted with certain procedural irregularities . As a result of this decision , the prosecution eventually decided to drop the charge of abuse of office .

On DATE the applicant was again charged with offences under Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL § CARDINAL of FAC , as well as with an offence under LAW thereof ( misusing an official title ) .

On DATE the pre - trial investigation was concluded , and the applicant and his lawyer were given access to the case file until DATE . The applicant ’s co - accused had access until DATE .

On DATE the Deputy Prosecutor General confirmed the bill of indictment , and the case was again sent for trial .

NORP However , on DATE ORG ordered the case to be returned for additional investigation due to various procedural irregularities . In particular , it was noted that the charges against the applicant were still too vague , and that certain documents were missing from the case file .

The prosecution appealed against that order , but to no avail , as their appeal was rejected by ORG on DATE .

On DATE the applicant was issued with a new statement of charges under ORG ( misusing an official title ) , CARDINAL ( exceeding official duties ) and CARDINAL § CARDINAL ( smuggling ) of FAC , which excluded the previous charges of being an accomplice .

On DATE the pre - trial investigation was finalised , and the defence was granted access to the case file until DATE .

On DATE the applicant ’s request to discontinue the proceedings was dismissed .

On DATE the bill of indictment was confirmed by ORG , and the case was referred to ORG .

On DATE the applicant was committed for trial .

On DATE ORG found the applicant guilty of CARDINAL offences . He was sentenced to DATE and CARDINAL months’ imprisonment . He was also deprived of the right to work in law - enforcement institutions for DATE , and CARDINAL of his property was confiscated . The applicant was relieved from serving the sentence for an offence of misusing an official title ( Article CARDINAL of the then Criminal Code ) on the ground of statutory limitations .

On DATE the applicant lodged an appeal .

On DATE ORG dismissed the appeal .

On DATE the applicant submitted a cassation appeal to ORG , complaining inter alia about various infringements of criminal procedure .

On DATE ORG quashed the lower decisions , returning the case for a fresh examination at first instance . It was noted that the trial court had based its findings on certain speculations as well as evidence that had not been examined at the trial . ORG also observed that the appellate court had not answered all the issues raised in the applicant ’s appeal .

On DATE ORG again convicted the applicant of the CARDINAL offences as charged , sentencing him to DATE and CARDINAL months’ imprisonment and the forfeiture of the right of employment in law - enforcement bodies for DATE . The court also ordered confiscation of CARDINAL of the applicant ’s property .

On DATE ORG dismissed the applicant ’s appeal . The applicant brought a cassation appeal , complaining that the courts had not established the facts properly , despite the requirements of ORG in its decision of DATE .

On DATE ORG rejected the applicant ’s cassation appeal .

On DATE he was released on licence .

On DATE the applicant ’s criminal acts were re - classified under the new Criminal Code which had come into effect on DATE .

Article CARDINAL of the former Code of Criminal Procedure ( in force until DATE ) and ORG , DATE and CARDINAL of the new Code of Criminal Procedure ( effective since DATE ) provide that the investigation and trial shall be conducted within a reasonable time .

Section CARDINAL paragraph CARDINAL of the Statute of the Ministry of Interior provides for dismissal of a person who has discredited the name of the police .


Ganna Yudkivska;Karel Jungwiert;Mirjana Lazarova Trajkovska;Pavlina Panova;Peer Lorenzen;Rait Maruste;Renate Jaeger

The applicant was born in DATE and lives in GPE .

NORP In DATE his grandparents bought from the GPE municipality an apartment of QUANTITY in the centre of the city , which had become State property by virtue of the nationalisations carried out by the communist regime in GPE after DATE .

After the death of the applicant 's grandparents his father inherited from them . In DATE he conveyed the property to the applicant .

On DATE the heirs of the former pre - nationalisation owner of the apartment brought an action against the applicant 's father under section CARDINAL of LAW , arguing that his title to the property was null and void and seeking the restoration of their own title . They also brought a rei vindicatio action .

In DATE the applicant 's father died and the applicant succeeded him in the proceedings .

The proceedings ended with a final judgment of ORG DATE . The courts allowed the plaintiffs ' claims , finding that the contract whereby the applicant 's grandparents had acquired the apartment had been null and void since the sale had not been approved by ORG , as required by the relevant provisions applicable at the time , but by his deputy .

NORP In DATE or DATE the applicant and his family vacated the apartment . In DATE they were granted the tenancy of a municipally - owned apartment at a regulated price , where they moved in .

The applicant could apply to receive compensation bonds within DATE of the judgment of CARDINAL DATE . However , he only applied for bonds on DATE . On DATE the regional governor dismissed the request as time - barred . On an appeal by the applicant , this decision was upheld by the courts .

The relevant background facts , domestic law and practice have been summarised in the ORG 's judgment in the case of ORG and Others v. GPE , nos . CARDINAL , ORG , CARDINAL , CARDINAL , CARDINAL , GPE , CARDINAL/CARDINAL , ORG , and CARDINAL , DATE .


Violation of Art. 5-3;Violation of Art. 8;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and he is presently detained in ORG , GPE .

On DATE the applicant was convicted of a driving offence by ORG at ORG ( PERSON . wykroczeń ) . He appealed .

On DATE ORG ( Sąd Rejonowy ) dismissed his appeal .

On DATE the applicant was arrested by the police . On DATE the ORG ( Sąd Rejonowy ) ordered that the applicant be remanded in custody in view of the existence of a reasonable suspicion that he had committed several offences of fraud . The applicant had allegedly been corresponding with several men from different countries , passing himself off as a lady wishing to meet them .

On DATE the ORG prolonged the applicant ’s detention , finding that it was highly probable that he had committed the offences with which he had been charged . The court further found that there was a risk that the applicant might go into hiding or obstruct the proceedings .

That decision was upheld on appeal on DATE .

On DATE the applicant was indicted on charges of fraud against CARDINAL NORP , NORP and NORP nationals who had given him money under false pretences , believing that the applicant was a women interested in meeting and visiting them . In the correspondence with the victims the applicant had been using a false name “ GPE ” ( PERSON ) and had obtained from them a total of CARDINAL NORP PERSON and MONEY .

The applicant filed an application for release , but on DATE the ORG dismissed it reiterating the original grounds for the detention . The court further prolonged his detention , finding that the applicant ’s place of permanent residence was far from the trial court and , if released , he would obstruct the proper course of proceedings . Simultaneously , the court dismissed the applicant ’s request to be released on bail .

On DATE , DATE and DATE the ORG prolonged the applicant ’s detention on remand . The decisions repeated the same grounds for the applicant ’s detention : the reasonable suspicion against him , the severity of the anticipated sentence and the fear that he might go into hiding or otherwise obstruct the proceedings .

On DATE the ORG gave judgment . The applicant was convicted as charged and sentenced to CARDINAL years’ imprisonment and a fine .

NORP The applicant lodged an appeal .

On DATE the ORG released the applicant on bail . The court found that the original reasons for keeping the applicant in detention had ceased to exist since the applicant had no previous conviction and had a permanent place of residence .

On DATE ORG partly amended the judgment . It appears that the judgment is final .

The applicant submits that during his detention his correspondence , in particular that with the ORG , was censored by the authorities . In DATE the ORG decided to obtain and control the correspondence from the applicant ’s post office box - apparently during the investigation stage . The applicant ’s appeals against those decisions were dismissed by ORG .

On DATE the ORG sent a letter to the applicant addressed to his post office box . The applicant provided the Registry with the original of this letter and complained that it had been censored by the authorities . On the top of the Registry ’s letter there is a stamp : “ ORG Bogusław Lechocki ” ( Prokurator Prokuratury PERSON ) , a hand - written note : “ censored , CARDINAL DATE ” ( “ ORG , CARDINAL/CARDINAL/CARDINAL ” ) and an illegible signature .

On DATE the Registry received the applicant ’s letter of DATE . The envelope bears a hand - written note : “ FAC ” ( PERSON ) . The envelope , which is addressed to the Registrar , ORG , bears signs of having been opened after being sealed : its right side had been cut open and then resealed with a white self - adhesive paper slip . It is DATE .

On DATE the ORG received the applicant ’s letter of DATE . The envelope , which is addressed to the Registrar , ORG , bears a hand - written note : “ LOC ” ( SR PERSON ) . The envelope bears signs of having been opened after being sealed : its right side had been cut open and then resealed with CARDINAL white self - adhesive paper slips . It is DATE .

The Code of Criminal Procedure of DATE , which entered into force on DATE , defines detention on remand as CARDINAL of the socalled “ preventive measures ” ( środki zapobiegawcze ) . The other measures are bail ( poręczenie majątkowe ) , police supervision ( dozór policji ) , guarantee by a responsible person ( poręczenie osoby godnej zaufania ) , guarantee by a social entity ( poręczenie społeczne ) , temporary ban on engaging in a given activity ( zawieszenie oskarżonego w określonej działalności ) and prohibition on leaving the country ( zakaz opuszczania kraju ) .

Article CARDINAL § CARDINAL sets out the general grounds for imposition of the preventive measures . That provision reads :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings and , exceptionally , also in order to prevent an accused committing another serious offence ; they may be imposed only if evidence gathered shows a significant probability that an accused has committed an offence . ”

Article CARDINAL lists grounds for detention on remand . It provides , in so far as relevant :

“ CARDINAL . Detention on remand may be imposed if :

( CARDINAL ) there is a reasonable risk that an accused will abscond or go into hiding , in particular when his identity can not be established or when he has no permanent abode [ in GPE ] ;

( CARDINAL ) there is a justified fear that an accused will attempt to induce [ witnesses or co - defendants ] to give false testimony or to obstruct the proper course of proceedings by any other unlawful means ;

NORP If an accused has been charged with a serious offence or an offence for the commission of which he may be liable to a statutory maximum sentence of CARDINAL CARDINAL years’ imprisonment , or if a court of first instance has sentenced him to CARDINAL CARDINAL years’ imprisonment , the need to continue detention to ensure the proper conduct of proceedings may be based on the likelihood that a severe penalty will be imposed . ”

The Code sets out the margin of discretion as to the continuation of a specific preventive measure . Article CARDINAL reads , in so far as relevant :

“ CARDINAL . Detention on remand shall not be imposed if another preventive measure is sufficient . ”

Article CARDINAL , in its relevant part , reads :

“ CARDINAL . If there are no special reasons to the contrary , detention on remand shall be lifted , in particular if depriving an accused of his liberty would :

( CARDINAL ) seriously jeopardise his life or health ; or

( CARDINAL ) entail excessively harsh consequences for the accused or his family . ”

The DATE Code not only sets out maximum statutory time - limits for detention on remand but also , in LAW , lays down that the relevant court – within those time - limits – must in each detention decision determine the exact time for which detention shall continue .

Article CARDINAL sets out time - limits for detention . In the version applicable up to DATE it provided :

“ CARDINAL . Imposing detention in the course of an investigation , the court shall determine its term for a period not exceeding DATE .

whole may not exceed DATE .

The whole period of detention on remand until the date on which the first conviction at first instance is imposed may not exceed DATE .

Only ORG may , on application made by the court before which the case is pending or , at the investigation stage , on application made by ORG , prolong detention on remand for a further fixed period exceeding the periods referred to in DATE , when it is necessary in connection with a stay of the proceedings , a prolonged psychiatric observation of the accused , a prolonged preparation of an expert report , when evidence needs to be obtained in a particularly complex case or from abroad , when the accused has deliberately prolonged the proceedings , as well as on account of other significant obstacles that could not be overcome . ”

On DATE paragraph CARDINAL was amended and since then the competence to prolong detention beyond the time - limits set out in paragraphs CARDINAL and CARDINAL has been vested in the court of appeal within whose jurisdiction the offence in question has been committed .

Rules relating to means of controlling correspondence of persons involved in criminal proceedings are set out in LAW ( NORP karny wykonawczy ) ( “ the DATE Code ” ) which entered into force on DATE .

NORP The relevant part of LAW provides as follows :

“ Convicts ( ... ) have a right to lodge complaints with institutions established by international treaties ratified by GPE concerning the protection of human rights . Correspondence in those cases ( ... ) shall be sent to the addressee without delay and shall not be censored . ”

Article CARDINAL § CARDINAL reads as follows :

“ Unless exceptions are provided for in the present LAW , a detainee shall enjoy at least the same rights as are secured to a convicted person serving a sentence of imprisonment under the ordinary regime in a closed prison . No restrictions shall be applied to him except such as are necessary to secure the proper conduct of criminal proceedings , to maintain order and security in a remand centre and to prevent demoralisation of detainees . ”

Article CARDINAL § CARDINAL reads , in so far as relevant , as follows :

“ ( ... ) detainee ’s correspondence shall be censored by [ the authority at whose disposal he remains ] , unless the authority decides otherwise . ”

“ The prohibition of censorship shall also mean the prohibition of acquainting oneself with the content of the letter . ”

On DATE the Rules of Detention on Remand ( ORG w sprawie regulaminu wykonywania tymczasowego aresztowania ) entered into force .

§ CARDINAL of the ORG provides :

“ The detainee ’s correspondence , including the correspondence with the international institutions for the protection of human rights , which act on the basis of international agreements ratified by GPE , with the ORG and public and local government institutions , is mailed through the intermediary of the organ at whose disposal he remains . ”

Article CARDINAL of the Code concerns seizure of correspondence by a decision of prosecution authorities . It provides as follows :

“ CARDINAL . Offices , institutions and entities operating in post and telecommunications fields , customs houses , and transportation institutions and companies , shall be obligated to surrender to the court or prosecutor upon demand included in their order , any correspondence or transmissions significant to the pending proceedings . Only the court and a prosecutor shall be entitled to open them or to order their opening .

Correspondence and transmissions irrelevant to the criminal proceedings should be returned to the appropriate offices , institutions or companies as set forth in § CARDINAL , without delay . ”