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

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

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

On DATE a private company ( “ T. ” ) bought from the ORG an industrial building . The contract was authenticated by a notary on DATE and was registered with ORG ( which later became known as ORG ( “ the ORG ” ) ) on DATE .

In DATE that building was sequestrated by ORG ( “ the ORG ” ) in settlement of debts to the ORG . It was then offered for auction .

On DATE the applicant succeeded in that auction . In accordance with the auction conditions , the applicant paid the price of the building ( CARDINAL NORP lei , equivalent to QUANTITY at the time ) and signed the “ Contract for the purchase of goods sold at auction ” on DATE . According to clause CARDINAL of the contract , the property right over the object sold at the auction was transferred to the buyer from the moment of signing the “ act for the transfer of goods ” .

The parties also signed the minutes of the auction , which provided , in section ( CARDINAL ) , the obligation of the buyer to register the contract of sale with ORG ( which later became known as ORG ( “ the ORG ” ) ) . In accordance with section ( CARDINAL ) of the minutes , the seller undertook to conclude the contract for the sale of the item “ in accordance with the law , the auction conditions and TIME ” .

According to the applicant , in order to observe the requirements of sections ( CARDINAL ) and ( CARDINAL ) of the auction TIME , the applicant and an ORG representative appeared before a notary in order to have the contract authenticated . The notary refused , however , to authenticate the contract because the seller ( the ORG ) had not presented documents confirming that the building had belonged to ORG and that the ORG had the right to confiscate it . No evidence was submitted to support this claim . However , the applicant submitted a letter from a notary dated DATE , according to which registration of his property right was impossible in view of certain deficiencies in the contract and the absence of several documents , which had to be produced by the seller .

The applicant requested the ORG to issue the relevant documents and to have the contract authenticated by a notary . On DATE the applicant and ORG representatives signed an “ act for the transfer of goods ” .

On DATE T. bought from GPE a plot of land dependent on the building bought by the applicant at the auction .

The applicant requested the ORG to register his title to the building on the basis of the contract of sale . On DATE the ORG refused registration because the contract had not been authenticated by a notary as required by “ civil law ” .

The applicant claims that he has no access to his building . His request to T. to vacate it and to allow him free possession was allegedly ignored .

On DATE the ORG repeatedly sent the ORG a copy of the sequestration order concerning the building belonging to T.

On DATE the ORG informed the applicant that no real property was registered as belonging to T. on DATE .

On DATE the ORG refused to issue the applicant with any additional documents or to participate in the authentication of the contract before a notary , stating that according to the contract of sale , ORG no . CARDINAL and PERSON no . CARDINAL ( see below ) the applicant had become the owner of the building from the date when he signed the “ act for the transfer of goods ” ( i.e. DATE ) . The ORG considered that it had fulfilled its part of the contract and had acted in accordance with the law .

On DATE the ORG rejected another request by the applicant , following which he initiated administrative proceedings against it .

On DATE the ORG left the applicant ’s claim unexamined because it was not subject to administrative jurisdiction . On DATE ORG quashed that judgment and ordered a full re - hearing of the case .

On DATE the ORG rejected the applicant ’s claims as unfounded . The court found that the ORG had acted in accordance with the law and duly transmitted the rights in the property to the applicant when they both signed LAW for the transfer of ORG on DATE . The court added that , according to the law , the applicant ’s property right could be registered based on the auction results and the contract concluded with the ORG , without any obligation for further formalities between the parties . It considered the refusal of the ORG to register the applicant ’s right to be a separate issue that could be examined in other court proceedings , which the applicant refused to initiate .

On DATE ORG upheld that judgment , basing itself on essentially the same arguments . It added that the law expressly mentioned the rights of a successful bidder at auction , and that there was no need to register the contract with a notary . The judgment was final .

The applicant requested a review of that judgment . On DATE the same panel of judges rejected that request .

In response to a letter from the applicant , the ORG replied on DATE that T. had never challenged the ORG ’s confiscation of the building which had been sold at the auction .

The relevant provisions of LAW in force at the relevant time read as follows :

“ LAW

The owner may request the removal of any impediment to the enjoyment of his rights even if this impediment is not related to loss of possession .

Article CARDINAL

Contracts for the sale of real estate belonging to natural and legal persons shall be authenticated by a notary and registered within DATE with the [ ORG ] . ”

The relevant provisions of the PERSON on the real estate register no . CARDINAL ( DATE ) read as follows :

“ Section CARDINAL

... ( CARDINAL ) The documents submitted for the registration of a title must ... , in the cases provided for by law , be authenticated by a notary and sealed .

... ( CARDINAL ) The following shall not be accepted as a basis for registration of a title :

a ) documents which do not correspond to the requirements under ( CARDINAL)-(CARDINAL ) above ; ... ”

The relevant provision of the regulation “ Regarding the manner of sequestration and sale of goods ” , adopted by Government Decision no . CARDINAL of DATE read as follows :

“ After the signing of the sales contract the fiscal authority shall obtain the possession of sequestered goods ... ” .

The relevant provisions of the PERSON regarding the manner of forced collection of taxes and other payments no . CARDINAL of DATE read as follows :

“ Section PERSON )

( CARDINAL ) After signing the contract of sale at the auction , the fiscal authority shall transmit the sequestered item to the buyer . The property right passes to the buyer from the moment of signing the act for the transfer of goods . ”


CASE OF THE UNITED MACEDONIAN ORGANISATION ILINDEN AND OTHERS v. BULGARIA (No. 2)

Remainder inadmissible;Violation of Art. 11;Non-pecuniary damage - award

George Nicolaou;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

The individual applicants were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE and DATE and live in PERSON , PERSON , PERSON , GPE , GPE , PERSON , GPE and GPE . They are all members of ORG ’s managing council .

The relevant background circumstances are described in detail in paragraphs CARDINAL of the ORG ’s judgment in the case of ORG and Others v. GPE ( no . CARDINAL/CARDINAL , DATE ) .

On DATE a group of CARDINAL supporters of ORG held a meeting at which they resolved to form a non - profit association . They adopted its articles and elected its bodies , including CARDINAL members of its managing council .

Clause DATE ) of the articles , which defined the association ’s goals , said , inter alia , that ORG was “ a successor and continuer of the national liberation struggle of the NORP nation ” , including the “ NORP fighters who fell victim to NORP state terrorism and genocide ” . Clause CARDINAL ) specified that ORG “ recognise[d ] and respect[ed ] the territorial integrity of GPE and its laws and constitution , but only if they [ were ] consonant with international law and international agreements on human rights , fundamental freedoms and GPE rights ” . Clauses CARDINAL ) and CARDINAL(CARDINAL ) stated that ORG ’s goals included “ expressing and defending the civil , national , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) , and of the NORP who live in GPE ” and “ requesting cultural autonomy status for LOC in order for the assimilation process to be stopped ” .

Clause GPE ) to ( CARDINAL ) of the articles provided that to attain its goals ORG would propagate NORP culture and traditions , hold meetings to commemorate historical dates , “ nominate NORP for Members of ORG ” , petition the government and various international institutions for the “ national rights of the NORP ” , and organise conferences and seminars .

Clause CARDINAL(CARDINAL ) said that the association would be run and represented by a managing council . According to clause PERSON ) , it would have CARDINAL to CARDINAL members . However , clause CARDINAL ) specified that the first managing council would have CARDINAL members .

On DATE Ilinden applied for registration to ORG . In a judgment of DATE the court refused to register the association . It gave the following reasons :

“ The evidence ... shows ... that the activities of the organisation seeking registration are directed against the sovereignty and the territorial integrity of the country and the unity of the nation . This is apparent from the association ’s main goals ... and the means for attaining them ...

Their wording ... shows their political character . ... The organisation says that it is a successor of and continues the ‘ national liberation struggle of the NORP nation’ , including the ‘ NORP fighters who fell victim to NORP State terrorism and GPE Its articles of association ] specify that [ the organisation ] will respect the territorial integrity of GPE , but only if ‘ [ it is ] consistent with international law and international agreements on human rights , fundamental freedoms and the rights of GPE ; [ that the organisation ] will ‘ express and safeguard the civil , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) and of the NORP who live in GPE The articles also ] insist that ‘ the process of assimilation in LOC must be stopped’ . Obviously , the aim is to distort the historical truth , to ignore the NORP character of certain geographical regions [ and ] to provoke overt opposition by CARDINAL part of the population to another . This also threatens the territorial integrity of the country , whereas Article CARDINAL § CARDINAL of [ the LAW ] prohibits organisations from engaging in such activities .

Even if , despite [ what was found ] above , it is assumed that the activities of [ Ilinden ] do not run counter to [ the LAW ] , its LAW provides that associations may not pursue political goals and carry out political activities that are characteristic solely of political parties . The political character of the aims [ of ORG ] is clearly shown by [ its articles of association ] , while the [ applicable law ] provides that organisations seeking to engage in political , tradeunion or religious activities must be regulated in a separate statute .

All this leads to the conclusion that what is sought is the registration of an association whose aims are illegal . It can not be accepted that what is at issue is an organisation seeking to preserve the historical traditions and the cultural riches of a specific community . ... The realisation of the true aims [ of ORG ] would no doubt be at the expense of the unity of the NORP nation [ and ] the sovereignty and the territorial integrity [ of the country ] , which is declared inviolable by LAW . ”

Ilinden appealed to ORG , arguing , inter alia , that it was not threatening the country ’s sovereignty and territorial integrity , nor trying to distort the “ historical truth ” . The refusal to register it was in breach of LAW ( see paragraph CARDINAL below ) , as it was based on the fact that it expressed views which differed from the officially sanctioned ones . It was not proposing to engage in activities characteristic solely of a political party either .

On DATE ORG upheld the lower court ’s judgment . It held , in so far as relevant :

“ ORG ... received an application by the managing council of the newly formed non - profit association [ Ilinden ] , requesting it to be registered ... in the special register kept by the court ... In [ the impugned judgment ORG ] refused to register the association ... , holding that [ Ilinden ] ’s goals and the means for attaining them have a political character and run counter to the spirit of [ the DATE LAW ] and the provisions of the [ LAW ] . This court shares those conclusions .

The evidence submitted alongside the application for registration , namely the articles of the nonprofit association [ Ilinden ] , TIME of its founding meeting , held on DATE , a list of the founders , CARDINAL sample signatures of the members of the managing council , notarised and expressly stating that these persons wish to take part in the association ’s management and representation , and their criminal records , shows that a founding meeting was held on DATE . It was attended by CARDINAL individuals , who unanimously resolved to form a nonprofit association named [ Ilinden ] , adopted its articles and elected a managing council consisting of CARDINAL members . However , the wording of the articles – clauses CARDINAL and CARDINAL , [ which set out ] the association ’s goals and the means for attaining them – reveal their political character , which is impermissible for a nonprofit association . This follows from the interpretation of paragraph CARDINAL of [ the DATE LAW ] , which provides that organisations intending to carry out political , tradeunion or religious activities must be regulated by separate statutes . For instance , in clause CARDINAL ) , ( CARDINAL ) [ and ] ( CARDINAL ) of its articles the organisation proclaims itself as being a successor of and continuing the ‘ national liberation struggle of the NORP nation’ , including ‘ the NORP fighters who fell victim to NORP State terrorism and PERSON , declares that ‘ it will express and defend the civil , social and economic rights of the NORP who live on NORP soil under NORP occupation ( jurisdiction ) and of the NORP living in ORG , insists that ‘ the assimilation process in GPE must ORG , etc . All those goals set by the newly formed organisation are directed towards distorting the historical truth and ignoring the NORP character of certain geographical regions , with a view to stirring overt confrontation between one group of NORP citizens and another , which imperils both the territorial integrity of the country and the unity of the nation . This is in breach of the imperative rule of LAW of [ the LAW ] which provides that ‘ organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... are prohibited’ . Moreover , the political goals and the ways of attaining them , set by the organisation in clause CARDINAL(CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) of its articles , are in breach of paragraph CARDINAL of [ the DATE LAW ] and LAW of [ LAW ] . Apart from that , the founders have elected CARDINAL members of the managing council , in breach of the articles which provide , in clause ORG , that the first managing council will consist of CARDINAL members who will manage and represent the association ( clause CARDINAL ) ) . This was equally in breach of section CARDINAL ) and ( CARDINAL ) in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of [ the DATE LAW ] , because it engenders uncertainty as to the manner of managing and representing the organisation .

In view of the foregoing , this court finds that the newly formed organisation [ Ilinden ] has goals , ways of attaining them and representation which run counter to the provisions of [ the DATE LAW ] . For this reason , it should not be entered on the register of non - profit legal persons kept by [ ORG ] . ... ”

On DATE Ilinden appealed on points of law . It argued , inter alia , that , contrary to ORG ruling , its articles , when read properly , showed that it did not intend to participate in political life . Nor was it trying to distort the historical truth – its aim was to promote it . The refusal to register it violated its right to freedom of association , enshrined in LAW , and was in breach of LAW ( see paragraph CARDINAL below ) . PERSON also contested ORG findings concerning its managing council .

In a final judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL май DATE г. по гр. д. № DATE г. , ORG , търговска колегия ) ORG upheld ORG judgment in the following terms :

“ ORG founded the refusal to register the association on the wording of the articles of association , more specifically clauses CARDINAL and CARDINAL , which show that the goals sought to be attained by the association and the means for their attainment are political in character . LAW ] guarantees freedom of association , but only in line with the requirements of the law . It is not permissible for a nonprofit association to carry out political , tradeunion or religious activities . The assertion in the appeal that [ Ilinden ] does not seek to engage in political struggles is not substantiated . As correctly observed by [ ORG ] , an organisation which proclaims itself as being a successor and continuing the ‘ national liberation struggle of the NORP nation’ , and its founders as spiritual successors of ‘ the NORP fighters who fell victim to NORP State terrorism and PERSON has a markedly political character . The [ lower court ] correctly held that an activity consisting in ‘ safeguarding the social and economic rights of the NORP who live on NORP soil under NORP occupation and of the NORP living in ORG is in breach of LAW of LAW ] , which prohibits organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , or towards the incitement of racial , national , ethnical or religious enmity . But even if [ the court ] were to accept the argument in the appeal that the organisation does not seek to attain goals which run counter to the constitutional order , those goals run counter to the [ DATE LAW ] , as they are characteristic of a political party , not of a nonprofit association . Thus , the alleged violation of LAW ] has not been made out .

The argument in the appeal that the articles of association in reality merely mention the minimum number of members of the managing council , without further restrictions , is unfounded . Clause PERSON ) of the articles enclosed in the case file says that the managing council consists of CARDINAL to CARDINAL members . Clause CARDINAL ) makes special provision for the first managing council and says that it will consist of CARDINAL members serving DATE . That is , clause ORG ) does not merely set a minimum , as claimed in the appeal . For this reason , [ ORG ] correctly found that the imperative rule of section CARDINAL ) and ( CARDINAL ) in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of the [ DATE LAW ] has not been complied with – the manner of managing and representing the organisation is unclear .

For the foregoing reasons , the court is of the opinion that the grounds of appeal have not been made out and that [ the impugned judgment ] should be upheld . ”

The relevant provisions of the DATE LAW read :

“ The territorial integrity of GPE shall be inviolable . ”

“ Associations ... may not pursue political goals or carry out political activities that are characteristic solely of political parties . ”

“ No one may be persecuted or restricted in his rights because of his views , nor detained or forced to provide information about his or another ’s convictions . ”

“ CARDINAL . Citizens may freely associate .

Organisations whose activities are directed against the sovereignty [ or ] the territorial integrity of the country and the unity of the nation , towards the incitement of racial , national , ethnical or religious enmity ... and organisations which seek to achieve their goals through violence are prohibited .

The law shall specify the organisations which are subject to registration , the manner of their dissolution and their relations with the ORG . ”

Under paragraph CARDINAL of the transitional and concluding provisions of the CARDINAL Non - Profit Legal Persons Act ( “ ORG за юридическите лица с нестопанска цел ” ) – the LAW which regulates the formation , registration and activities of nonprofit legal persons such as associations DATE organisations which intend to engage in political , trade union and religious activities were to be regulated by separate statutes .

Section CARDINAL ( CARDINAL)(CARDINAL ) of the LAW provides that the names and the offices of the persons who represent the association must be entered in the register . LAW ) and ( CARDINAL ) provide that an association ’s articles must set out its managing bodies and the manner of its representation .


The applicant is a NORP national , born in DATE . At present he is detained at FAC in LOC .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

On DATE the applicant was detained on remand in the context of proceedings for cheating . On DATE the Kaunas City District Court convicted the applicant of obtaining property by deception . He was sentenced to CARDINAL years’ imprisonment and ordered to pay compensation . On DATE ORG dismissed the applicant ’s appeal against the first instance judgment . On DATE ORG rejected the applicant ’s cassation appeal .

By DATE the applicant had completed CARDINAL of his sentence in FAC . As he had been afforded better treatment due to his model behaviour in prison , he requested his conditional release . This was refused , whereupon the applicant brought a successful civil action against the prison administration before ORG for a breach of his rights under LAW . On DATE the court “ required ” the prison administration to request a criminal court to order the applicant ’s conditional release .

This was done on DATE and on DATE ORG ordered the applicant ’s conditional release because of his model behaviour in prison . A prosecutor and a prison representative took part at the hearing of DATE . ORG stated that the order for conditional release could be appealed within DATE . On DATE the applicant was released from the prison .

From DATE , several major newspapers printed articles criticising the law enforcement authorities for releasing the applicant on licence . The media alleged inter alia that the applicant had not paid the compensation ordered by the trial courts .

On DATE the Chief Prosecutor of GPE applied to ORG for leave to appeal out of time against the applicant ’s conditional release . The prosecutor asserted that the DATE time - limit had not been observed for important reasons . He stated that the prosecutor who had been present before the court on DATE had not informed ORG about the applicant ’s conditional release , and that on DATE the Chief Prosecutor of ORG had been in GPE on mission ; therefore no appeal could be lodged in time .

On DATE the ORG reinstated the time - limit by reference to LAW , finding that the prosecution had missed the time - limit for “ important reasons ” . The court also stressed that the reinstatement of the time - limit “ was not contrary to the law ” .

On the same date the Chief Prosecutor of GPE lodged with ORG an appeal against the applicant ’s conditional release , asserting inter alia that he had not paid the CARDINAL NORP litai ( LTL ) in compensation following his conviction , and that he belonged to a GPE criminal organisation . ORG

On DATE the prosecutor requested the court to suspend the execution of the order for conditional release . On the same date ORG , pursuant to LAW , accepted the prosecutor ’s request without hearing the parties . The applicant was arrested in TIME of CARDINAL DATE .

On DATE ORG held a hearing on the prosecution ’s appeal against the applicant ’s conditional release in the presence of the applicant and his counsel . The applicant requested the court to adjourn the hearing and release him . He also challenged the participation of CARDINAL of the appeal judges . The court dismissed his applications .

On DATE ORG upheld the prosecution ’s appeal and quashed the conditional release order on the basis of LAW . ORG found inter alia that the applicant had not paid the CARDINAL LTL in damages ordered at his trial . The court noted that the prosecutor , who had been present before ORG on DATE , had not submitted this information , thereby misleading the first instance court . The appellate court held that domestic law did not oblige the prison administration to recommend the conditional release of a detainee . The decision of CARDINAL DATE was final .

On DATE a civil chamber of ORG , upon a cassation petition of the Acting President of ORG , quashed the decision of DATE , finding that ORG could not “ require ” the prison administration to request the applicant ’s release on licence . ORG held in this connection that LAW gave a discretionary power to the prison administration as to whether or not to request the conditional release of a detainee .

B. Relevant domestic law

Article CARDINAL - CARDINAL of LAW and LAW allows the release on licence of a convicted person before the expiry of the term of imprisonment . The right to order conditional release rests with a court , upon the request of the prison administration . Release on licence of a person sentenced to up to CARDINAL years’ imprisonment can be ordered after completion of CARDINAL of the sentence .

Article CARDINAL - CARDINAL § CARDINAL of LAW lays down a period of DATE to appeal against a court order granting or refusing conditional release . Paragraph CARDINAL of this provision provides for the suspension of that order should such an appeal be lodged . Paragraph CARDINAL of the provision permits no further appeal against the decision of the appellate court .

Pursuant to LAW , a time - limit that was missed for an important reason can be reinstated by a court . LAW of this provision provides that , in cases where a decision was appealed out of time , a court on the request of the person lodging the appeal can suspend its execution . ORG


The applicants , PERSON ( “ the first applicant ” ) , Mr GPE ( “ the second applicant ” ) and PERSON ( “ the third applicant ” ) are all NORP citizens who were born in DATE , DATE and DATE , respectively . The first applicant lives in PERSON and was represented before the ORG by Mr PERSON , a lawyer practising in the same town . The other CARDINAL applicants live in GPE and were represented before the ORG by Mr PERSON , a lawyer practising in the same town . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON .

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

Following the financial collapse of numerous banks in GPE , in DATE and DATE the respondent ORG adopted specific legislation accepting to convert the foreign currency deposits in these banks , including the banks here at issue , into a public debt and then went on to set the time - frame ( DATE ) and the amounts , including interest , to be paid back to their former clients . This legislation , inter alia , also explicitly provided that NORP citizens living abroad , i.e. those living outside of the territory of the former ORG , were also entitled to benefit from it .

On DATE CARDINAL the applicant ’s father deposited an unspecified amount of NORP PERSON for a fixed period of time with the PERSON , the interest rate having been stipulated at PERCENT DATE .

It would appear that by DATE the applicant ’s father had a total of CARDINAL NORP PERSON on the account in question .

After the expiration of the fixed - period deposit contract , in DATE the bank appears to have refused to release his funds or even to apply the interest rate initially stipulated .

On an unspecified date thereafter , the applicant ’s father died and the applicant became his sole successor .

Just like his father , however , the applicant was unable to withdraw or otherwise freely use his foreign currency savings .

On DATE the applicant had CARDINAL converted into Government bonds , having in the meantime been paid back a total of CARDINAL in accordance with the said legislation .

There is no information that the applicant had received any payments thereafter .

By DATE the second applicant had a total of MONEY , MONEY , and MONEY deposited for a fixed period of time with the ORG , the interest rate having initially been stipulated at PERCENT DATE . By the same time , the third applicant had deposited a total of MONEY for a fixed period of time with the ORG , the interest rate having initially been stipulated at PERCENT DATE .

On an unspecified date thereafter the bank in question refused to release the applicants’ funds or even to apply the interest rate stipulated .

It would appear that , following the adoption of the relevant legislation , the first applicant converted his foreign currency savings deposited in CARDINAL other banks into public debt in DATE . However , none of the applicants requested the conversion of the foreign currency savings deposited with the ORG .

The relevant domestic law is set out in the ORG ’s decision of PERSON ( dec . ) , no . PERSON , DATE , at sections B.CARDINAL and B.CARDINAL .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Non-pecuniary damage - award;Pecuniary damage - reserved (Article 41 - Pecuniary damage)

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

The applicant was born in DATE and lives in GPE .

The applicant is a veteran of the NORP Resistance during the Second World War and a former professional officer of ORG . His veteran status on the grounds of his involvement in the underground NORP movement during that war was recognised by an administrative decision given on an unspecified date by the Director of ORG .

For DATE the applicant collected antique arms and weapons from the period of the Second World War and earlier .

On DATE and DATE the police searched the applicant ’s home and DATE cottage . They confiscated the applicant ’s collection which at that time numbered CARDINAL pieces .

On DATE the Director of ORG ( “ the Museum ” ) in GPE issued a statement for the purposes of an investigation against the applicant which had been instituted immediately after the search and seizure . He stated that the applicant had been cooperating with the ORG as a specialist in old weaponry and that on a number of occasions he had lent certain pieces of his collection for the purposes of their being exhibited at the ORG . He stated that the applicant ’s expertise was highly valued by ORG .

On DATE and CARDINAL DATE the prosecuting authorities ordered that an expert opinion be prepared as to whether the confiscated pieces were to be regarded as arms within the meaning of the legislation governing the licensing of possession of arms .

On DATE the Director of ORG sent a letter to ORG . He stated that the applicant ’s integrity and the fact that he was a law - abiding citizen were wellknown . He had been decorated on a number of occasions for his involvement in the NORP Resistance during the Second World War . By accumulating a unique collection of historical weapons , uniforms and military equipment he had rendered outstanding services in the dissemination of knowledge about the history of GPE . He had financed this collection himself , at considerable personal sacrifice . The fact that criminal proceedings had been instituted against him had met with general disbelief . It had been universally considered among persons interested in military history that his collection could not possibly be regarded as posing any threat to public order . On the contrary , it had played a significant role in teaching younger generations about the history of GPE and about the fight for the country ’s independence . The applicant ’s services not only merited recognition but should also be taken into consideration by the court in the assessment of his guilt and any sentence to be imposed on him .

On DATE the prosecution ordered that CARDINAL pieces of the collection should be returned to the applicant , relying on an expert opinion prepared for the purposes of the investigation . The expert concluded that these items were only parts of weapons and therefore a licence to possess them was not necessary . On DATE a bill of indictment against the applicant on charges of illegal possession of arms was filed with the ORG .

On DATE the ORG discontinued the criminal proceedings against the applicant concerning charges of illegal possession of arms , contrary to Article CARDINAL § CARDINAL of LAW .

The court first listed CARDINAL pieces of the applicant ’s collection , the oldest of them produced in DATE .

The court noted that the applicant had explained that he had been collecting old arms , mostly memorabilia of the Second World War as well as other older pieces , for DATE . He had previously on numerous occasions made parts of his collection available on loan to various museums . He had been collaborating as an expert in old weaponry with ORG . The court noted that the applicant had explained that in order to prevent unauthorised third parties from having access to the collection he had kept it in his apartment which was secured with CARDINAL locks and equipped with an alarm . He had also taken the necessary technical measures to make it impossible to use most of the weapons in his possession as arms . He declared his willingness to take such measures also in respect of the remaining pieces .

The court acknowledged that no criminal intent to use the arms to anyone ’s detriment could reasonably be ascribed to the applicant . However , he must have known that the possession of arms without a permit was unlawful . He had not availed himself of the possibility of legalising his collection by having recourse to the DATE LAW , devised specifically with a view to making it possible for Second World War veterans and other persons having fought for the independence of GPE to regularise arms acquired in the past and in connection with their involvement in the Polish Resistance .

The court acknowledged that there had been no evidence whatsoever that the applicant had ever used the arms with any criminal intent . It emphasised that the applicant was , at that time , DATE , a war veteran who had fought in ORG and who was a retired professional officer of ORG with no criminal record . He was a lawabiding citizen .

The court observed that the applicant ’s submissions as to the part of the collection which had been put out of action had been partly confirmed by the experts . The experts had found that it was impossible to use most of the pieces as weapons , but that some of them could be made to work again ( “ ze znacznej większości egzemplarzy broni nie było możliwe oddanie strzalu , niemniej jednak z części egzemplarzy broni możliwym było oddanie strzału , jak również możliwym było przywrócenie cech użytkowych broni ” ) .

The court concluded that the offence was minor in nature and discontinued the criminal proceedings against the applicant , referring to LAW paragraph CARDINAL ( CARDINAL ) of LAW . At the same time , the court decided to apply LAW in conjunction with its LAW and to confiscate CARDINAL pieces of the collection .

The court , explaining why it decided to avail itself of its discretionary power to confiscate the entire collection , stated that dividing up the collection by returning to the applicant those pieces which had already been put out of action would seriously diminish its value . It noted that the collection should , because of its historical interest , be handed over to an institution capable of securing appropriate storage and display conditions for it .

NORP The applicant and the prosecution appealed . The applicant essentially challenged the confiscation measure .

By a decision of CARDINAL DATE ORG upheld the first - instance decision . It fully endorsed the reasoning of the lower court . It further noted that the confiscation of the collection should not lead to its destruction . The ORG authorities should be well aware of the historical value of the collection ( “ organy państwa DATE zdawać sobie sprawę z ... wartości historycznej zabezpieczonych przedmiotów ” ) .

On DATE the ORG invited ORG to indicate whether they would be interested in the applicant ’s collection . On DATE the Director of the ORG replied , indicating that the ORG wished to take certain pieces selected by ORG , the ORG ’s expert . On DATE the court authorised the transfer of these pieces to the ORG and on DATE they were transferred .

On DATE the same court requested ORG in GPE , the Regional Curator for Monuments ( PERSON Ochrony Zabytków w PERSON , PERSON ) , to indicate the name of a cultural institution which would accept the remainder of the collection . A number of cultural institutions expressed their interest , including ORG . ORG also expressed interest in the remainder of the collection covered by the forfeiture decision . The Regional Curator for Monuments gave a positive opinion in this regard . This part of the collection is currently being transferred to the ORG .

“ CARDINAL . GPE shall protect property and a right to inherit .

Expropriation is allowed only in the public interest and against payment of just compensation . ”

Article LAW reads :

“ Freedom of the person shall be legally protected .

Everyone shall respect the freedoms and rights of others . No one shall be compelled to do anything which is not required by law .

Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Under its settled case - law , ORG has jurisdiction only to examine the compatibility of legal provisions with the LAW and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases ( e.g. SK CARDINAL/CARDINAL , DATE ; Ts CARDINAL , DATE ; Ts CARDINAL/CARDINAL , DATE ) .

Article CARDINAL paragraph CARDINAL(CARDINAL ) of the Code of Criminal Procedure provides that criminal proceedings shall be discontinued if the seriousness of a criminal offence is negligible .

Article CARDINAL of the Criminal Code provides that where the seriousness of a criminal offence is negligible , the court may order confiscation , within the meaning of Article CARDINAL of that Code , of objects connected with the offence .

Article CARDINAL paragraph CARDINAL of the Criminal Code penalises possession of weapons or ammunition without a licence .


CASE OF GUILLEMIN v. FRANCE (ARTICLE 50)

Pecuniary damage - financial award;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

In a judgment of CARDINAL DATE the NORP tribunal de grande instance ruled as follows :

The application against FAC

The town council was certainly the instigator of the expropriation – subsequently declared unlawful – that gave rise to the damage sustained by the plaintiffs , and it has already been held to be liable in the judgment of DATE .

The amount of this damage must therefore now be assessed and the town council ordered to pay the resulting sums .

As regards the value of the building and the damage resulting from loss of enjoyment , it should be remembered that as all damage is to be assessed as at the date on which the assessment is made , the value of the building must be assessed as at the date of this judgment .

But the interference with enjoyment must be assessed in relation to the income that the property would have brought in from the date of dispossession to the present day , and that presupposes that the land in question should also be valued at the date of dispossession , that is to say in DATE .

The total value of the property , including the repurchase allowance , is therefore ORG CARDINAL ; this figure was arrived at by the expert in DATE but , in the absence of any significant [ change ] since then , it will be adopted as being still valid at the date of this judgment .

The plaintiffs should therefore be awarded the sum of FRF CARDINAL in respect of the value of the property of which they have been dispossessed .

The damage resulting from the loss of this property will be assessed on the basis of PERCENT – the average rate of return DATE of the value of the property in DATE , with DATE indexation , as the expert recommended , that method of calculation and rate corresponding to the reality of the situation as it has developed since DATE .

And the damage resulting from interference with enjoyment will thus be assessed at ORG CARDINAL,CARDINAL in all .

Apart from the foregoing damage , the plaintiffs have indisputably sustained damage distinct from the pecuniary or material damage through being deprived of a property that they were entitled to wish to keep and on account of the endless difficulties they encountered [ over ] DATE in seeking compensation whose principle could not be in doubt .

This non - pecuniary damage will be compensated by the award of a sum of ORG CARDINAL , an assessment which can not be in any way affected by the judgment of ORG .

Interest shall be payable on the totality of the foregoing sums from the date of this judgment , having regard to their compensatory nature .

Furthermore , regard being had to the length of time the case has lasted and the plaintiffs’ indisputable right to be compensated , this judgment shall be immediately enforceable notwithstanding any appeal , as is moreover appropriate to the nature of the case .

In so deciding , the court adopted the assessment made in the court - appointed expert ’s report that was filed on DATE .

On DATE the President of ORG , ruling on the application for an interim order by PERSON ORG and the Evry ORG , refused the council ’s and corporation ’s requests for a stay of execution of the judgment of the Evry tribunal de grande instance .

His order read as follows :

The general principle of law that property belonging to public bodies is exempt from execution , thus making it impossible to have recourse to the execution procedures of private law , has no bearing on the present case , as the execution of judgments by public bodies is governed by the special rules laid down in PERSON no . CARDINAL of DATE .

Nor is the considerable sum of damages awarded a sufficient ground in itself for staying immediate execution , and in any event the defendants did not claim that immediate payment of the sums in question would have manifestly unconscionable consequences for them within the meaning of LAW .

Furthermore , they did not in any way establish that PERSON and PERSON had not provided sufficient security to satisfy any order for restitution in the event of the decision ’s being set aside by ORG .

It follows that the applications by PERSON Town Council and EPEVRY must be dismissed in their entirety .

On DATE ORG delivered its judgment on the appeal by PERSON ORG against the judgment of the NORP tribunal de grande instance . It reduced the amounts awarded by that court on the following grounds :

The value of the real property

The land can not be valued on DATE of compensation by indexing the price per sq . m in DATE in line with the building cost index , which is inappropriate in the instant case . In order to arrive at the DATE value of the property , regard will be had to the fluctuations in property prices in the sector concerned for comparable properties , which gives a round figure of MONEY , whence a repurchase allowance of … MONEY and a total sum of MONEY = MONEY .

The expert has made an expert assessment of the value of the improvements ( buildings , gardens and swing ) , valuing them at MONEY ( DATE value ) . The present - DATE value may be assessed , as it was by the court below , at MONEY .

In consequence , PERSON and PERSON will receive in respect of the loss of the value of the property total compensation of MONEY .

Loss of enjoyment

The damage resulting from the loss of this property since DATE will be assessed at MONEY , regard being had to the average return to be expected from such a property .

Non - pecuniary damage

The sum of MONEY will be awarded to PERSON and PERSON in respect of the non - pecuniary damage resulting from the unjustified dispossession of their property and the trouble caused by the reluctance of PERSON ORG to compensate them for the damage arising from their unlawful eviction from their property in DATE .

On DATE PERSON ORG transferred to the ORG account of PERSON , PERSON counsel in the proceedings before the national courts , the sum awarded her by the NORP tribunal de grande instance .

According to the applicant , the town council was going to seek restitution of the difference between the sum it had paid and the one awarded by ORG .

On DATE PERSON appealed on points of law against ORG judgment .

In her submissions on the application of LAW the applicant requested the ORG :

“ To order GPE to pay the applicant , pursuant to LAW , the sum of ORG CARDINAL,CARDINAL,CARDINAL in respect of the violation of LAW No . CARDINAL , together with statutory interest from the date of the judgment .

In the alternative :

To reserve the question of the application of LAW pending the judgment of ORG .

In any event :

To order GPE to pay PERSON the sum of ORG in respect of costs of representation , together with statutory interest from the date of the judgment . ”

The Government considered that the “ payment by [ the ] town council of the sums awarded to PERSON as compensation for her pecuniary damage [ made ] it possible to envisage closing the case … ”


The applicant , born in DATE , presently resides in GPE , GPE . In his application form , he states that he has NORP nationality .

On DATE the applicant arrived in GPE and requested asylum . He stated that he was NORP . Before leaving for GPE , he had been living in PERSON . He held also a NORP passport but this was to be considered as a travel document only . In DATE , while serving as a policeman in GPE , he refused to join the NORP forces and , as a consequence , he was accused of having stolen CARDINAL rifles from the police station . Later , he was placed in a special unit from which he could not resign . Resenting police attacks on NORP and being unable to handle the mental and physical stress , he later deserted from that unit . Further , in DATE PERSON was occupied by NORP troops . Along with other residents , the applicant participated in the defence of the village . Later , he was forced to leave the village and , on DATE , he arrived in GPE with his parents and siblings . Allegedly , if returned to GPE , he would risk being sent to GPE where he could be sentenced to DATE in prison for refusing to bear arms .

On DATE ORG ( ORG invandrarverk ) rejected the applicant ’s request and ordered his deportation to GPE . ORG called into question the credibility of the applicant ’s statements concerning his military and police activities as he had changed the statements during the course of the investigation . Finding that the applicant held both NORP and NORP citizenship , the ORG referred to a decision concerning asylum seekers with such double nationality taken by ORG on DATE . According to the decision , the prevailing situation in GPE rendered deportations to that country impossible . Consequently , in assessing applications from these asylum seekers , the crucial question was whether they could be afforded protection in GPE . ORG noted that , according to available information , persons in the applicant ’s situation did not risk to be sent from GPE to GPE against their will . Moreover , no acts of warfare had taken place on NORP territory for some time and a cease - fire had been agreed upon by the contending parties . Thus , there was no apparent risk that NORP citizens in general would be forced to take part in armed conflict . Further , the applicant had failed to show that he personally faced such a risk .

The applicant appealed to ORG ( Utlänningsnämnden ) . On DATE ORG , sharing the opinion of ORG , rejected the appeal .

The applicant later requested a temporary residence permit in GPE . By a decision of DATE ORG granted the applicant such a permit until DATE and quashed the deportation order . In so doing , ORG referred to a Government decision of CARDINAL DATE according to which the worsened situation in GPE constituted an impediment to the deportation of asylum seekers to that country .

On DATE the applicant submitted a new application for a residence permit . He referred to his previous statements . Further , in a final statement of DATE he claimed that he should be granted a residence permit on humanitarian grounds on account of the time he had spent in GPE .

On DATE ORG rejected the applicant ’s new application and ordered his deportation to GPE . ORG had regard to a guiding decision taken by ORG on DATE . In that decision the ORG stated , inter alia , the following :

( Translation )

“ As regards the situation in GPE and the region , the ongoing peace process , based on a general agreement on peace in GPE , has lead to stabilisation . The relations between GPE and GPE have improved . GPE has been admitted into ORG . Acts of warfare have not occurred on NORP territory since DATE . The risk of further conflicts appears unlikely . The general situation in GPE has improved in such a way since the Government ’s previous assessment in DATE that nowadays NORP citizens can generally be afforded protection in GPE . ”

ORG noted that ORG view had been confirmed by the ORG High Commissioner for Refugees ( ORG ) and ORG . As in the previous decisions taken concerning the applicant , ORG found that he could not be sent back to GPE . With regard to the possible deportation to GPE , the ORG noted that no new circumstances had been invoked by the applicant . Consequently , ORG shared the opinions expressed in its decision of DATE and the decision taken by ORG on DATE . Furthermore , ORG found that there were no reasons of a humanitarian nature to grant the applicant a residence permit .

Following the applicant ’s appeal , ORG , on DATE , quashed ORG decision and referred the case back for re - examination . ORG found that no oral hearing had been held by ORG , as required by law .

ORG held an oral hearing in the case on DATE during which the applicant stated that , despite the fact that he held a NORP passport , he did not possess the full rights of a NORP citizen . Moreover , his parents and one of his brothers lived in GPE where they had difficulties to support themselves . In GPE nothing in particular would happen to the applicant but it would be hard for him to find work and a place to live .

In a decision of DATE ORG rejected the applicant ’s new application on the same grounds as those expressed in the quashed decision . On DATE ORG rejected the applicant ’s appeal . ORG noted that the applicant is an ethnic NORP and , as such , would be at risk in his NORP home district , dominated by NORP . However , the applicant ’s statements did not indicate that he would face ill - treatment in GPE .

In medical certificates issued by the psychiatric clinic at the hospital in GPE on DATE and DATE chief physician PERSON and therapist PERSON stated that the applicant had undergone treatment for some time at the clinic for a post - traumatic stress syndrome . Allegedly , the enforcement of the deportation order would seriously impair his mental state and could lead to a suicide attempt . The clinic submitted the first certificate to ORG and requested that the enforcement be suspended .

By a decision of DATE ORG suspended the enforcement of the deportation order for an unspecified period of time .


Preliminary objections dismissed;Violation of Art. 3;Violation of Art. 5-1;Not necessary to examine Art. 5-3 and 5-4;Violation of Art. 34;Remainder inadmissible;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in PERSON .

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

The applicant worked as Deputy Mayor of PERSON . He was also a lecturer at ORG in GPE . DATE and DATE he was held in the remand centre of ORG ( “ the NORP ” ) . On DATE he was transferred to ORG no . CARDINAL of ORG in PERSON ( also known as “ Prison no . CARDINAL ” , which was subsequently re - named “ Prison no . CARDINAL ” ) . The applicant suffers from a number of illnesses ( see paragraphs CARDINAL and CARDINAL below ) .

The applicant is accused in CARDINAL separate sets of criminal proceedings under LAW ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW ( “ the ORG ” ) of abuse of his position and excess of power .

On DATE the ORG opened a criminal investigation concerning the applicant and on DATE he was taken into custody .

On DATE ORG issued a warrant for his arrest and detention for DATE . The reasons given by the court for issuing the warrant were that :

“ [ The applicant ] is dangerous to society . If released he may reoffend , destroy evidence or abscond from the law - enforcement authorities , may obstruct the normal course of the investigation or the taking of evidence and may influence evidence and witnesses . ”

On DATE the ORG upheld that decision . Judge PERSON dissented , finding no reason to detain the applicant , as the prosecution had not submitted any evidence of the alleged danger of his absconding or interfering with the investigation . The applicant had a family and a permanent residence in PERSON , was ill and had no criminal record .

The applicant made habeas corpus requests on CARDINAL , CARDINAL and DATE , CARDINAL DATE and DATE , and on DATE , DATE and DATE . He relied on the following facts : his poor state of health ; the absence of a criminal record ; his impeccable reputation as a Doctor of ORG and a university lecturer ; the fact that his identification documents had been seized by the prosecuting authorities so that he could not leave the country ; the fact that his family and permanent residence were in PERSON ; the fact that he supported his CARDINAL-year - old mother who was an invalid ; he had the personal guarantee of CARDINAL well - known persons ( who had already deposited CARDINAL NORP lei ( ORG ) and each of whom was prepared to pay the further ORG CARDINAL initially requested by the court ) ; and the lack of reasons for his arrest . All these requests were rejected for reasons similar to those given in the decision of DATE .

NORP On DATE the case file was submitted to the trial court .

On an unspecified date in DATE the prosecution submitted to the trial court a second case file in which the applicant was also identified as CARDINAL of the accused . The investigation into that case had begun on DATE . The investigators twice closed it for lack of evidence ( on DATE and DATE ) but on both occasions a prosecutor ordered its reopening . On DATE both cases were joined .

On DATE Judge PERSON , President of ORG , rejected the applicant ’s request for release against the personal guarantee of CARDINAL well - known persons , without giving any reasons .

The applicant appealed but Judge PERSON refused to forward his appeal to ORG because the law did not provide for an appeal against such decisions . The applicant submitted the appeal to ORG directly , which also refused to examine it for the same reason . A similar response was given to appeals made on DATE and DATE .

On DATE a third criminal case file was submitted to the trial court accusing the applicant of abuse of power in his own personal interest . This case was also joined to the CARDINAL cases against the applicant mentioned above .

From DATE the applicant was detained in the ORG remand centre . On DATE a medical consultative board examined the applicant ’s medical file at his wife ’s request and made the following diagnosis : type II diabetes ( insulin - dependent ) , polyneuropathy , diabetic angiospasm , autoimmune thyroiditis stage CARDINAL , consequences of trauma to the head with intracranial hypertension , vagovagal paroxysm , chronic obstructive bronchitis , recurrent chronic pancreatitis with endocrine failure , chronic active hepatitis and asthenic syndrome . On DATE the applicant ’s wife informed the trial court of the findings of the medical board .

According to the applicant , the ORG remand centre had no medical personnel until DATE , when a general practitioner was hired to work there . He claims that he requested medical assistance on a number of occasions but received treatment only from doctors from other institutions who visited him when there was an emergency . On DATE an ambulance was called to treat the applicant for an acute hypertension . The doctor prescribed a consultation with an endocrinology specialist , who saw the applicant on DATE . The applicant also informed the prosecutor and the court of his special dietary and medical needs but received no reply . He submitted copies of complaints from his wife , his mother and a parliamentary group to the ORG authorities , ORG , the trial court , the President of GPE , the Minister of ORG and other authorities . The applicant ’s wife received several formal replies , essentially informing her that her husband had been seen on a number of occasions by various doctors and that he would be given medical assistance should the need arise .

On DATE the applicant was seen by Doctor PERSON , a psychoneurologist , who concluded that his state of health was “ unstable with a slight improvement ” and that he needed to continue treatment under supervision . On DATE the applicant was transferred to the remand centre of Prison no . CARDINAL in GPE .

On DATE , in accordance with a court order , the applicant was examined by a medical board of ORG . B.I. , a neurologist and member of the board , diagnosed him with encephalopathy , polyneuropathy of endocrinal origin , hypertension , peripheral vascular disease and inferior paraplegia . He recommended that the applicant be treated on an in - patient basis . Z.A. , an endocrinologist and member of the board , diagnosed the applicant with diabetes , macro and micro - angiopathy , cardiomyopathy , arterial hypertension , diabetic steatorrhoeic hepathosis , thyroiditis , hypothyroiditis and encephalopathy . He recommended a special diet and treatment on an in - patient basis in specialised clinics ( endocrinology - cardiology - neurology ) . PERSON , Head of ORG of ORG and a member of the board , diagnosed the applicant with ischaemic cardiomyopathy and mixed cardiopathy , unstable pectoral angina , prolonged attacks during DATE , arterial hypertension ( CARDINALrd degree ) , congestive heart failure ( CARDINALnd degree ) , hypertension and endocrinal renal failure , diabetic vascular disease and thoracic dilatation . PERSON recommended that the applicant be treated on an in - patient basis in a cardiology unit in order to investigate and prevent the risk of myocardic infarctus . She considered it necessary to undertake anti - coagulant treatment but noted that , given the risk of gastric haemorrhage , such treatment could take place only under conditions of strict supervision and with surgeons at hand to intervene if necessary .

On the basis of these recommendations , the trial court ordered the applicant ’s transfer to a prison hospital .

On the basis of an order by ORG , Doctor PERSON , a neurologist from the NORP ORG of ORG ( “ the ORG ” ) , examined the applicant on DATE . He confirmed the earlier diagnoses and recommended complex treatment in a specialised neurological unit of ORG , including treatment with hyperbaric oxygen ( ORG ) therapy .

On CARDINAL DATE the director of the prison hospital where the applicant was held informed the court of ORG ’s recommendations and said that the applicant was being given the medication prescribed but not ORG therapy , which it was impossible to administer at the prison hospital for lack of the necessary equipment . He also informed the court that the applicant ’s condition prevented him from attending court hearings .

On DATE ORG found that the condition of the applicant and of another co - accused had worsened and suspended the examination of their cases “ until recovery ” . The court did not respond to the applicant ’s wife ’s request for his release to allow treatment or to the above - mentioned letter from the director of the prison hospital .

By letters of CARDINAL , DATE and DATE , DATE and CARDINAL DATE the director of the prison hospital again informed the court of the lack of the necessary equipment at the hospital for the treatment prescribed by GPE

On DATE and DATE a medical board of ORG , which included doctors from the ORG , examined the applicant , and on DATE it recommended , inter alia , ORG treatment in a specialised neurological unit .

On DATE the director of the prison hospital confirmed , on the applicant ’s behalf , that the hospital did not have the necessary equipment for the required neurological treatment . That information was submitted to ORG .

On DATE ORG filed an amicus curiae brief with the court after visiting the applicant in hospital . It considered that the applicant ’s state of health was irreconcilable with his conditions of detention and treatment and protested against the decision to suspend the examination of the case pending his recovery .

In view of the findings of ORG medical board of CARDINAL DATE recommending that the applicant be treated in a specialised neurological unit , ORG on DATE ordered his transfer to the ORG for DATE .

On DATE the applicant requested ORG to order an expert report regarding his state of health before and after his arrest , as well as his condition on the date of lodging the request . In its decision of DATE ORG rejected the applicant ’s request , since no doubts regarding his state of health had been raised .

On an unspecified date the applicant requested the ORG management to describe his state of health and the treatment received . He received no answer . On DATE the court ordered the ORG to answer immediately and the court received its answer on DATE . In it , the ORG set out its diagnosis of the applicant ’s condition and found that his health was unstable and that he needed further treatment . On DATE ORG extended the applicant ’s treatment until DATE , on the basis of the letter from the ORG .

According to a certificate issued by ORG of ORG ( “ the ORG ” ) , the applicant received CARDINAL ORG therapy sessions there starting on DATE , which produced positive results . The applicant was prescribed a CARDINAL - session course , scheduled to continue until DATE . According to the applicant , he was escorted from the ORG to the ORG DATE for the procedure and also began an acupuncture course there . The applicant submitted a copy of the certificate to ORG , which on DATE decided that he should be transferred to the prison hospital . The court based its decision on the ORG ’s letter of CARDINAL DATE which stated that the applicant ’s condition had stabilised and that he would be released on DATE . Since the ORG letter did not include ORG therapy among its recommendations for treatment , the court found the schedule of ORG treatment for DATE to be irrelevant .

On DATE ORG replied to ORG questions regarding the need to treat the applicant . The letter stated that on DATE the applicant ’s medical records had been examined by a group of doctors , who found that he did not need in - patient treatment “ in any medical establishment , including the [ ORG ] ” and that he could be treated as an out - patient .

In his letter of CARDINAL DATE the applicant submitted to ORG a certificate stating that on DATE he had been recognised as having a second - degree disability .

On DATE the trial court rejected the applicant ’s habeas corpus request on the following grounds :

“ the reasons for prolonging the accused ’s detention pending trial remain valid because the charges against him are based on circumstances not yet examined by the court and altering the preventive measure may hinder the establishment of the truth in the criminal trial . ”

On DATE the applicant made another habeas corpus request , relying on Articles CARDINAL and CARDINAL of the LAW and emphasising that while examination of his case had been suspended pending his recovery , he had been refused the medical treatment necessary to ensure such a recovery . The court postponed examination of the request . Examination of the request was again postponed on DATE for an indefinite period .

On DATE Judge PERSON was absent and examination of the case was postponed . On DATE other members of the court were absent and examination of the case was once more postponed .

On DATE the applicant requested a copy of the court transcript of CARDINAL and DATE and informed the court of the worsening of his condition . The request was refused . On DATE ORG informed the applicant that examination of his habeas corpus request had been postponed pending an answer from ORG to its inquiry of DATE regarding his condition .

On DATE ORG rejected the applicant ’s habeas corpus request “ because the reasons for prolonging the detention remain valid ” . The court also rejected the applicant ’s complaint that the insufficient medical treatment he had received amounted to inhuman and degrading treatment :

“ ... because the representative of the [ prison hospital ] declared that [ the applicant ] had been given the necessary medical treatment on an in - patient basis ; there is no evidence of inhuman or degrading treatment . ”

At the same time , however , the court ordered the applicant ’s transfer to the ORG ( see paragraph CARDINAL above ) .

On DATE the applicant ’s appeal was not examined , the court finding that no further appeal was possible . The court also rejected his request for a medical examination in order to establish his current state of health and the manner in which he had been treated during his detention .

On DATE the applicant made another habeas corpus request , challenging , inter alia , the persistence of any reasonable suspicion justifying his continued detention . He referred to the finding of a violation of LAW in the case of ORG v. GPE ( no . CARDINAL , CARDINAL DATE ) as a new circumstance warranting re - examination of the need to detain him . The court rejected the request , finding that it could be submitted only DATE at least after the last such request had been examined . It also found that the judgment referred to was not a new circumstance as it related only to Mr ORG and not to the applicant .

On DATE the applicant asked ORG to order his continued treatment at the ORG or his release based on his habeas corpus request . The court rejected the request ( see paragraph CARDINAL above ) and did not examine the habeas corpus request .

On DATE ORG rejected the applicant ’s habeas corpus request of DATE , finding that :

“ ... not all the evidence has been examined ; [ the applicant ] has worked as a deputy Mayor of PERSON and continues to have influence over witnesses yet to be questioned ; he may obstruct the presentation to the court of authentic evidence still being kept by GPE . ”

On DATE the applicant ’s detention pending trial was replaced with an obligation not to leave the country .

On TIME DATE the ORG indicated by facsimile to ORG an interim measure under Rule CARDINAL of ORG , stating that “ the applicant should not be transferred from the ORG until the ORG has had the opportunity to examine the case , i.e. until DATE at the latest ” . On DATE the Deputy Registrar of the Fourth Section made several calls to the telephone numbers indicated by ORG , but received no response .

On TIME the applicant requested the trial court to stay the execution of its decision of DATE and to prevent his transfer from the ORG . He submitted a copy of the facsimile from ORG the interim measures . ORG did not hold a hearing and did not reply to his request . He was transferred to the prison hospital on DATE .

On DATE the applicant ’s lawyer informed the President of ORG of the failure by Judge PERSON , President of ORG , to examine his request of DATE and asked for urgent action in order to ensure compliance with the ORG ’s order for interim measures . On DATE the lawyer submitted a similar request to the Agent for ORG before the ORG and to ORG , noting that the prosecutor in charge of the case had supported the applicant ’s request to continue being treated at the ORG .

On DATE and following ORG request , ORG ordered the applicant ’s transfer to the ORG until CARDINAL DATE . The subsequent events are disputed by the parties . According to the applicant , he was brought to the ORG at TIME , but for TIME the management refused to admit him . When the applicant began to feel ill , the management admitted him after TIME . According to the Government , the applicant was admitted on DATE ORG ordered his admission and the delay resulted from the LOC view that the applicant did not require further treatment at the ORG . ORG had personally overseen execution of the order .

The applicant submitted a copy of a news report broadcast on the PRO - TV television channel , which showed the events at the ORG . The reporter stated that the applicant had been kept waiting for TIME for a decision and that he was finally admitted after TIME . The doctors informed the reporter that they had refused initially to admit the applicant because of the absence of his personal medical file and had admitted him only when the medical file was brought to them . In an interview given to the same reporter , ORG stated that the reason for the delay in admitting the applicant was “ certain technical , organisational issues ” . This was confirmed by a statement by the head of ORG .

On DATE ORG informed the applicant ’s lawyer , in response to his letter of DATE , that ORG had officially received information about ORG order for interim measures on DATE at TIME Following an urgent court hearing , the trial court had ordered the applicant ’s transfer to the ORG .

In DATE the applicant allegedly made proposals in writing to the Government regarding the friendly settlement of his case . The document which he submitted to the ORG referred to his poor state of health making it impossible for him to participate in the criminal proceedings and included the condition of his “ final acquittal guaranteed by the ORG ” before he would agree to withdraw his application before the ORG .

On DATE the Government submitted to the ORG a friendly settlement agreement signed by them and the applicant on DATE . They asked the ORG to strike the application out of its list of cases pursuant to LAW .

The applicant did not inform ORG agreement and did not ask for the striking out of his application . When asked to comment , his lawyer submitted that he had not been aware of the agreement as he had not been involved in the negotiations . In response to the ORG ’s letter of CARDINAL DATE asking the applicant to confirm the conclusion of his free will of the friendly settlement agreement , the applicant asked the ORG , on CARDINAL DATE , to continue the examination of his case since his main condition , allegedly unofficially agreed upon with the ORG , of being acquitted of all charges , had not been fulfilled and he considered the agreement null .

The relevant domestic law has been set out in this ORG ’s judgment in ORG ( cited above , § § DATE ) .

In addition , LAW provides :

“ ( CARDINAL ) In trying a case the court may order , replace or revoke a preventive measure against an accused , either at the parties’ request or of its own motion . A new request for the ordering , replacing or revoking of a preventive measure can be submitted if there appear to be reasons for doing so , but not DATE from DATE when the previous court decision on the same matter entered into force , unless there are new circumstances which prompt the new request .

( CARDINAL ) Where detention pending trial is imposed , the court decision may be appealed against , within DATE , to higher court , which will decide on the appeal in accordance with LAW applied mutatis mutandis . ”


CASE OF BALMER-SCHAFROTH AND OTHERS v. SWITZERLAND

Preliminary objection rejected (victim);Not necessary to examine preliminary objection (non-exhaustion of domestic remedies)

The applicants live in the villages of ORG , PERSON and PERSON , situated in containment zone no . CARDINAL ( Alarmzone CARDINAL ) within a

radius of QUANTITY from the nuclear power station at GPE ( GPE of GPE ) . They either own or rent their homes .

On DATE the company which had operated the power station since DATE , ORG ( “ the operating company ” ) , applied to ORG ( the government ) for an extension of its operating licence for an indefinite period and for permission to increase production by PERCENT . The application was published in ORG of DATE together with a notice inviting persons satisfying the requirements laid down by section CARDINAL of LAW ( see paragraph CARDINAL below ) to file an objection .

CARDINAL objections in all were sent to ORG , CARDINAL of which came from GPE and GPE .

In their objection of CARDINAL DATE , to which several expert opinions were attached , the applicants requested ORG to refuse an extension of the operating licence and to order the immediate and permanent closure of the nuclear power station . Relying in particular on LAW ( the former ) section CARDINAL ( CARDINAL ) of LAW ( see paragraph CARDINAL below ) , they maintained that the power station did not meet current safety standards on account of serious and irremediable construction defects and that , owing to its condition , the risk of an accident occurring was greater than usual . In addition , they asked the authorities to obtain further data and in the meantime take certain provisional measures . With regard to the fact that under the applicable law ORG would consider the application for an operating licence as an authority of both first and last instance , they pointed out that its decision could give rise to an application based on LAW since it affected their civil rights .

On DATE and DATE ORG and ORG rejected the requests for interim measures and for gathering the additional data .

On DATE ORG dismissed all the objections as being unfounded and , subject to compliance with various specified safeguards , granted an operating licence until DATE and authorised a PERCENT increase in production . In its decision it relied on an expert report by ORG , an independent report prepared at the request of ORG on the effects of the power station on the nearby river and opinions of ORG , ORG for ORG and the cantonal authorities .

ORG found firstly that the objectors living in containment zone no . CARDINAL were entitled to take part in the proceedings , unlike the objectors who lived further away from the power station , mainly in GPE and GPE .

It then recapitulated the factors which , under LAW ( see paragraph CARDINAL below ) , justified refusing an operating licence or granting it subject to conditions and stated that applicants who satisfied all the statutory requirements were entitled to an operating licence .

It went on to note that although power stations built DATE certainly no longer met current technical standards , they could nonetheless be maintained and modernised so that they could continue to operate quite safely . In order to satisfy itself that this was so in the instance under review , ORG considered each of the objections in turn . It found them to be unfounded .

With regard to the complaint based on the right to life protected by LAW , ORG drew attention to the position under ORG case - law , whereby only deliberate infringements could constitute a breach of that right . That did not apply to the operation of a nuclear power station , at least so long as appropriate technical and operating procedures were adopted to prevent such an infringement and so long as these could reasonably be considered to provide a level of protection comparable to that existing in other generally accepted technical installations .

NORP Under LAW ( CARDINAL ) ( a ) of LAW of DATE on the Peaceful Use of Nuclear Energy ( “ LAW ” ) , a licence from the ORG is required for the construction and operation of nuclear installations and for any changes in the purpose , nature or scale of such installations . LAW ) provides that a licence must be refused or granted subject to appropriate conditions or obligations if that is necessary in order , in particular , to protect people , the property of others or important

rights . Section CARDINAL provides that ORG or a body designated by it decides licence applications . No appeal lies against its decisions .

Under ORG case - law , the safety of nuclear power stations can only be considered by the ORG as part of its licensing procedures ( Judgments of ORG ( ORG ) , vol . CARDINAL GPE , p. CARDINAL ) .

Section CARDINAL of LAW of DATE provides that ORG hears , as a final court of appeal , administrative - law appeals against decisions of the federal authorities . However , by section CARDINAL ( e ) , as worded at the material time , no appeal lay against the grant of a licence for technical installations to be brought into service .

Section CARDINAL of LAW of DATE lays down the principle that administrative decisions are appealable . By DATE , however , an appeal is inadmissible if it is made against a decision against which an administrative - law appeal lies to ORG . Under section CARDINAL ( a ) a person has locus standi to appeal if he is affected by the decision and has an interest worthy of protection in having the decision set aside or varied .

The relevant provisions of LAW read as follows :

“ Any person who sustains or is exposed to damage because an owner abuses his right may bring an action against that owner requiring him to restore the previous position or to take preventive measures , without prejudice to any damages . ”

“ CARDINAL . When exercising their right , especially when carrying on industrial processes , owners are required to refrain from acting in a manner detrimental to neighbouring properties .

NORP The following , in particular , are prohibited : emissions of smoke or soot , offensive smells , noises , and vibrations which are harmful and exceed the limits of the tolerance which neighbours must show to each other having regard to local custom and the situation and type of the buildings . ”

By virtue of section CARDINAL of LAW of DATE , expropriations may be carried out “ for the purposes of works that are in the interest of the ORG or of a substantial area of the country and for any other public - interest aim recognised by federal law ” .

Section CARDINAL ( CARDINAL ) provides : “ The following may be expropriated : rights in rem over land , rights arising from land ownership that concern relations between owners and occupiers of adjacent LOC and the rights in personam of tenants or farmers of the property to be expropriated . ”

With regard to the latter provision , ORG has held :

“ Actions brought under Articles CARDINAL and CARDINAL to CARDINAL [ of LAW ] ... are included among the rights which may be expropriated under LAW ... If the emissions or other allegedly adverse effects result from the construction , in accordance with the applicable law , of a building in the public interest for which land has been expropriated , or are the consequence of using the building for its intended purpose , no private - law action lies for the purpose of obtaining an injunction or compensation . A claim for compensation for expropriation replaces the cause of action under private law and must be made to the expropriations judge , who has jurisdiction not only to assess compensation but also to rule on whether the right ... exists . An expropriating authority 's refusal to commence proceedings may be challenged , at last instance , by means of an administrative - law appeal to ORG . ” ( ORG , vol . CARDINAL Ib , p. CARDINAL )

In another judgment ORG held :

“ By virtue of section CARDINAL ... , rights arising from land ownership that concern relations between owners and occupiers of adjacent premises may be expropriated and be forfeited or restricted , temporarily or permanently , provided that the proportionality principle is complied with ... ” ( ORG , vol . CARDINAL Ib , p. CARDINAL )

Section CARDINAL of the LAW has applied in the case of people living near very busy main roads who were concerned about pollution from exhaust fumes ( ORG , vol . CARDINAL Ib , p. CARDINAL ) . Under ORG case - law , compensation is awarded if the nuisance was not foreseeable and resulted in substantial damage and if the owner suffered special loss ( loc . cit . , p. CARDINAL ) . In order to assess foreseeability , it is necessary to determine whether the owner could reasonably have known of the future nuisance when he became the owner of the property ( ORG , vol . CARDINAL Ib , p. CARDINAL ) .


David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in Rimavská Baňa .

The applicant 's father was a member of an agricultural co - operative . He died in DATE .

The cooperative underwent a transformation and a monetary value of the membership interests of individual members was established . In a decree of CARDINAL DATE the co - operative certified the financial value of the ownership interest that had once belonged to the applicant 's father .

The applicant subsequently made a claim for compensation in respect of his father 's membership interest ( see below ) .

On DATE the Banská Bystrica Regional Court declared the co - operative insolvent .

On DATE the applicant registered his compensation claim in the insolvency proceedings .

On DATE the regional court held a hearing ( prieskumné pojednávanie ) with a view to establishing the claims of the different creditors . At the hearing the receiver rejected the applicant 's claim on the ground that he had filed it in his own name but had failed formally to show that the claim , which had originally belonged to his father , had actually devolved on him . The applicant was referred to the possibility of seeking judicial establishment of his claim by way of a separate action ( incidenčná žaloba ) . The applicant brought such an action and was successful ( see below ) .

In the following period , the regional court agreed to the sale of the co - operative 's individual assets .

On DATE a final report on the sale of the co - operative 's assets was submitted to the regional court . It was amended on DATE and displayed on the regional court 's official notice board on DATE .

On DATE a hearing took place . On DATE a meeting of the insolvency creditors took place and a new receiver was appointed .

On DATE the applicant informed the ORG that the insolvency proceedings were still pending .

On DATE the applicant brought an action against the insolvency receiver in the regional court seeking judicial establishment of his compensation claim .

On DATE the regional court granted the action and decided that the applicant had a claim in an amount equivalent to CARDINAL . The applicant alleged that the judgment had not been served on him but on his daughter and therefore had not yet become final .

The Government stated that the judgment had become final on DATE .

On DATE the applicant lodged a complaint under LAW with ORG in respect of the length of the insolvency proceedings and the proceedings in the action for establishment of his claim .

On DATE ORG declared the complaint inadmissible . As for the proceedings in the applicant 's action , it observed that they had ended in DATE . They had thus no longer been pending at the time when the constitutional complaint had been lodged . In these circumstances , in line with ORG established practice , the complaint of the length of those proceedings was manifestly illfounded . As for the insolvency proceedings , ORG observed that the sale of the co - operative 's assets was still under way and had not yet been completed . As ORG had not found any undue delays , it concluded that the complaint in respect of the insolvency proceedings was manifestly ill - founded .


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

The applicant was born in DATE and lives in GPE .

On DATE the applicant , who was DATE at the time , was arrested by police officers from FAC in connection with an ongoing investigation concerning a robbery that had taken place in a primary school . In his police statement , the applicant confessed that he had been involved in a robbery on DATE together with CARDINAL of his friends . He explained that he had helped his friends in carrying a computer from the primary school . DATE he was brought before the public prosecutor , and the investigating judge at the Karşıyaka ORG , where he repeated his statement to the police . Having regard to the evidence in the file and considering that there was a risk of absconding , the investigating judge ordered that the applicant be detained on remand in a prison together with adults .

The applicant ’s representative challenged this decision before ORG and maintained that the evidence in the file did not suffice to keep her client in detention . Invoking Articles CARDINAL and CARDINAL of the Convention , she requested that the applicant be released .

On DATE the PERSON public prosecutor instituted criminal proceedings against the applicant in ORG . He charged him with robbery under LAW .

On DATE the Karşıyaka ORG commenced the trial against the applicant . Taking into account the seriousness of the offence and the evidence in the case - file , it ordered that the applicant ’s detention on remand be continued .

On DATE the applicant ’s representative challenged this decision . She invoked Articles CARDINAL and CARDINAL of the LAW and alleged that there was not sufficient evidence in the file to keep her client in detention . She further maintained that pursuant to LAW , a person could only be held in detention on remand if there were a risk of absconding and/or of tampering with evidence . She stated that the authorities knew where the applicant lived and there were no sufficient grounds to believe that the applicant would try to flee . Furthermore , according to the lawyer , as all the evidence relating to the case had already been gathered by the authorities , there was no risk of tampering with evidence .

On DATE the Karşıyaka ORG refused the applicant ’s request for release basing itself on the nature and seriousness of the accusation , and the evidence in the file .

During the hearing which was held on DATE , the Karşıyaka ORG heard the applicant ’s testimony . Before the court , the applicant denied the charges and stated that he had not been involved in the robbery . Underlining that the applicant was a minor , the representative of the applicant asked the court for his release . Having regard to the nature of the crime , and taking into consideration the time spent in detention , the court decided that the applicant ’s detention should be continued .

On DATE the applicant ’s representative asked ORG to release her client . She maintained that he had been in detention since DATE and stated that there was no sufficient evidence to keep him in detention . The court once again refused her request .

On DATE the applicant ’s representative further requested her client ’s release referring to LAW . She stated that the court was not examining their requests for release thoroughly . She contended that the applicant ’s release would not in any way pose a danger to public order . She also stated that the applicant was ready give a guarantee to offset any risk of absconding .

On DATE the Karşıyaka ORG dismissed the applicant ’s request relying on the evidence in the file and the seriousness of the offence .

On DATE ORG held another hearing , at the end of which it ordered that the applicant remain in detention on remand .

On DATE the applicant ’s lawyer challenged this decision before ORG . She maintained that her client was a minor and could not be kept in detention for such a long time . In this respect , she invoked LAW ( b ) of LAW on the Rights of the Child .

On DATE the Karşıyaka ORG rejected the request for release basing itself on the evidence in the file , the time spent in detention and the nature of the offence .

On DATE , after spending DATE in detention on remand , the applicant was released pending trial .

The proceedings against the applicant are still pending .