Violation of Art. 5-1;No violation of Art. 5-3;Non-pecuniary damage - finding of violation sufficient

Isabelle Berro-Lefèvre;Jean-Paul Costa;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Renate Jaeger

The applicants were crew members on a merchant ship named the Winner , flying the NORP flag .

As part of the international effort to combat drug trafficking , the NORP authorities were informed that the ship might be carrying large quantities of drugs .

By diplomatic telegram dated DATE , the NORP embassy in GPE informed ORG in GPE that , in response to a request from ORG for ORG ( “ OCRTIS ” ) for authorisation to intercept the Winner , and at the embassy 's request , the NORP Minister of ORG had personally given his Government 's agreement .

The Government produced a diplomatic note dated DATE , addressed by ORG to ORG in GPE , stating :

“ ORG and ORG ( ... ) , referring to its note no . CARDINAL dated DATE , has the honour formally to confirm that ORG of GPE authorises the NORP authorities to intercept , inspect and take legal action against the ship Winner , flying the NORP flag ( ... ) belonging ( ... ) to the PERSON islands . ( ... ) ORG

The commander of the frigate ORG was instructed by the NORP naval authorities to intercept the Winner .

On DATE , at TIME , the frigate spotted a merchant ship travelling at slow speed through the waters off LOC . It was not flying a flag , but was identified as the Winner . Its nationality was verified in accordance with international law and , as a security measure , a speedboat was lowered into the water . The merchant ship suddenly changed course , in an attempt to evade the frigate . When attempts were made to contact it on the international radio frequency , it remained silent . At the same time , the crew jettisoned packages over the stern into the sea . The frigate then identified itself and asked the Winner to stop , while signalling the international code TIME ( “ stop or I shall open fire ” ) ; no answer came and the ship was still not flying a flag , so a warning shot was fired , followed by further shots to stop it . At the same time the speedboat was ordered to recover the parcels that had been jettisoned . It only managed to recover one . Upon subsequent verification it was found to contain QUANTITY of a narcotic substance resembling cocaine .

Three more parcels were thrown overboard . As the freighter had still not stopped and was manoeuvring to prevent the speedboat from pulling alongside , GPE 's ORG for the LOC ordered the frigate to fire directly at the Winner 's bow . This caused the Winner to stop , and an armed commando team boarded it and took control of it by armed force . CARDINAL of the crew members , who sustained a bullet wound , was evacuated onto the frigate , where he was treated by the ship 's doctor before being transferred to GPE hospital , where he died DATE . The rest of the crew were confined to DATE on board the Winner under military guard . A tug was sent out from ORG , under orders from ORG and at the request of the public prosecutor in GPE , to tow the Winner into GPE harbour , escorted by the frigate Commandant GPE .

On DATE , at TIME , the ORG public prosecutor referred the case to ORG for examination under the flagrante delicto procedure . It emerged that the NORP coastguard had had the Winner under observation in connection with international drug trafficking in which NORP nationals were involved .

On DATE , the ORG prosecutor 's office opened an investigation into charges , against persons unknown , of leading a group with the aim of producing , making , importing , exporting , transporting , holding , supplying , selling , acquiring or illegally using drugs and conspiring to import and export drugs illegally . CARDINAL investigating judges were appointed .

On DATE , at TIME , the Winner entered GPE harbour under escort . The crew and cargo were handed over to the police , acting under instructions from CARDINAL of the investigating judges , who immediately notified the persons concerned that they were being placed in police custody and informed them of their rights .

The Government submitted that the CARDINAL investigating judges went to see each of the detainees after TIME and after TIME to inform them that their police custody was being extended .

On DATE , PERSON , ORG , Mr PERSON and Mr PERSON were charged and remanded in custody pending trial . On DATE so were Mr PERSON , PERSON , PERSON , Mr PERSON , Mr PERSON and CARDINAL other crew members ( Mr PERSON and Mr PERSON ) .

The above QUANTITY persons applied to ORG of ORG to have the evidence disallowed ; relying in particular on LAW , they complained that the Winner had been arrested illegally and that their detention on board for DATE had also been illegal . In a judgment of DATE , the court dismissed their appeal and held that there were no grounds for disallowing the evidence .

In its judgment ORG pointed out that the international effort to combat drug trafficking was governed by ORG of DATE , ORG on the Law of the Sea , signed at LOC on DATE , and ORG in Narcotic Drugs and Psychotropic Substances , signed in GPE on DATE , all of which had been ratified by GPE . It considered that although GPE had not signed LAW , LAW of which provided for derogations from the traditional principle of the “ law of the flag ORG ” , that did not prevent the NORP authorities from “ requesting GPE 's cooperation to obtain authorisation to intercept the Winner in order to put a stop to the drug trafficking in which all or part of its crew were suspected of engaging ” , based on LAW and “ with reference ” to LAW . According to ORG , as the provisions of LAW did not apply to GPE , it was for that ORG 's authorities to ask the NORP authorities for the information they needed in order to determine , as they alone were entitled to do , whether the request for assistance was well founded . The court then held that the diplomatic telegram of DATE from ORG established the existence of “ an agreement given without restrictions or reservations by ORG for the planned interception and all its consequences , and was authoritative until proven otherwise ” .

NORP However , ORG considered that the agreement in question did not dispense the NORP authorities from abiding by the rules of procedure set forth in LAW and in Articles CARDINAL et seq . of the Law of DATE as amended . Nor , it pointed out , had the NORP authorities failed in that obligation in the circumstances . In the light of the reports drawn up by the commander of ORG , ORG found that when the frigate had drawn within sight of the Winner the latter “ was flying no flag ” and its captain had “ not only failed to answer the requests to identify the ship , in breach of the rules of international law , and failed to stop the ship , but [ had ] responded aggressively with a series of dangerous manoeuvres that jeopardised the safety of the NORP frigate and the lives of the sailors on the speedboat ” , and the crew of the Winner had thrown parcels containing large quantities of cocaine into the sea . There had therefore been “ reasonable grounds ” , in ORG view , to suspect the Winner of drug trafficking , so that “ in using force to stop the Winner and taking appropriate measures to control and restrain the crew , who were confined to DATE , and to take over and steer the ship ” , the commander of the frigate had “ strictly observed ” the provisions of Article CARDINAL of LAW ( under which he is authorised , when a ship is boarded and searched , “ If evidence of involvement in illicit traffic is found , [ to ] take appropriate action with respect to the vessel , persons and cargo on board ” ) and the provisions of LAW DATE as amended , regulating the use of coercion measures , including , if necessary , the use of force in the event of refusal by a ship to submit to inspection ( ORG CARDINAL to CARDINAL ) , and providing for the implementation of the inspection and coercion measures provided for in international law in the particular case of drug trafficking ( ORG CARDINAL to CARDINAL ) .

ORG went on to dismiss the applicants ' argument that LAW DATE as amended provided only for assistance measures of an administrative nature , which excluded any form of coercion in respect of people , as the Article mentioned in general terms that the competent maritime authorities had the power to carry out or have carried out “ the inspection and coercion measures provided for in international law ” and Article CARDINAL c ) of the Vienna Convention concerning drug trafficking expressly mentioned taking “ appropriate action with respect to the vessel , persons and cargo on board ” . Although it accepted that the exact nature of that action was not specified , ORG considered that the text concerned provided “ at least for the competent naval authorities to limit , if necessary , the freedom of the boarded ship 's crew to come and go ; otherwise the provision would be meaningless and the safety of the men taking over control of the ship would be seriously jeopardised ” . In respect of this last point , it considered that “ it can not be ruled out in the course of such operations against international drug traffickers on the high seas that the crew might have weapons hidden away and might seek to regain control of the ship by force ” . It concluded that “ the fact that the Winner 's crew were confined to DATE ( ... ) under military guard so that the ship could be safely taken over and rerouted fell within the appropriate action provided for in Article CARDINAL c ) of the Vienna Convention ” .

Lastly , ORG considered that the Law of DATE “ necessarily required some departure from ordinary criminal procedure to allow for the specific needs of the effort to combat drug trafficking by ships on the high seas , in keeping with the rules of international law , and for the fact that it was impossible in practice , bearing in mind the time needed to sail to the new port of destination , to apply the ordinary rules governing detention and the right to be brought promptly before a judge ” . Accordingly , the restrictions placed on the movements of a boarded ship 's crew , as authorised in such cases by ORG signed in GPE on DATE , were not at variance with LAW and did not amount to unlawful detention . It also noted that in this particular case , as soon as the Winner had docked , its crew had been handed over to the police , immediately informed of their rights and placed in custody , then brought before the investigating judge .

An appeal on points of law lodged by the applicants ( complaining in particular of a violation of LAW ) was dismissed in a judgment of ORG of DATE . According to that court , “ in ruling as it did , in so far as GPE , the flag ORG , [ had ] expressly and without restriction authorised the NORP authorities to stop the Winner and , in keeping with LAW , only appropriate action had been taken against the persons on board , who [ had been ] lawfully taken into police custody as soon as they landed on NORP soil , ORG [ had ] justified its decision ” .

In a judgment of CARDINAL DATE the PERSON Vilaine Special Assize Court found Mr Georgios Boreas , PERSON PERSON GPE , PERSON PERSON and PERSON PERSON guilty of conspiracy to illegally attempt to import narcotics and sentenced them respectively to DATE , DATE , DATE and DATE imprisonment ; it acquitted the other applicants of the charges against them . The parties have not said what the outcome of a subsequent appeal was .

GPE is party to ORG in Narcotic Drugs and Psychotropic Substances signed in GPE on DATE , LAW of which reads as follows :

“ ILLICIT TRAFFIC BY ORG

The Parties shall co - operate to the fullest extent possible to suppress illicit traffic by sea , in conformity with the international law of the sea .

A ORG which has reasonable grounds to suspect that a vessel flying its flag or not displaying a flag or marks of registry is engaged in illicit traffic may request the assistance of other Parties in suppressing its use for that purpose . The Parties so requested shall render such assistance within the means available to them .

A ORG which has reasonable grounds to suspect that a vessel exercising freedom of navigation in accordance with international law , and flying the flag or displaying marks of registry of another ORG is engaged in illicit traffic may so notify the flag ORG , request confirmation of registry and , if confirmed , request authorization from the flag ORG to take appropriate measures in regard to that vessel .

In accordance with paragraph CARDINAL or in accordance with treaties in force between them or in accordance with any agreement or arrangement otherwise reached between those Parties , the flag ORG may authorize the requesting ORG to , inter alia :

a ) Board the vessel ;

b ) Search the vessel ;

c ) If evidence of involvement in illicit traffic is found , take appropriate action with respect to the vessel , persons and cargo on board .

Where action is taken pursuant to this article , the Parties concerned shall take due account of the need not to endanger the safety of life at sea , the security of the vessel and the cargo or to prejudice the commercial and legal interests of the flag ORG or any other interested ORG .

The flag ORG may , consistent with its obligations in paragraph CARDINAL of this article , subject its authorization to conditions to be mutually agreed between it and the requesting ORG , including conditions relating to responsibility .

For the purposes of DATE of this article , a ORG shall respond expeditiously to a request from another ORG to determine whether a vessel that is flying its flag is entitled to do so , and to requests for authorization made pursuant to paragraph CARDINAL . At the time of becoming a ORG to this LAW , each ORG shall designate an authority or , when necessary , authorities to receive and respond to such requests . Such designation shall be notified through the Secretary - General to all other Parties within DATE of the designation .

A ORG which has taken any action in accordance with this article shall promptly inform the flag ORG concerned of the results of that action .

The Parties shall consider entering into bilateral or regional agreements or arrangements to carry out , or to enhance the effectiveness of , the provisions of this article .

Action pursuant to paragraph CARDINAL of this article shall be carried out only by warships or military aircraft , or other ships or aircraft clearly marked and identifiable as being on government service and authorized to that effect .

Any action taken in accordance with this article shall take due account of the need not to interfere with or affect the rights and obligations and the exercise of jurisdiction of coastal GPE in accordance with the international law of the sea . ”

GPE has not , however , signed ORG , implementing article CARDINAL of LAW in LAW ” , signed in GPE on DATE , which entered into force on DATE .

Inserted by PERSON no . CARDINAL - CARDINAL of DATE “ on drug trafficking at sea and adapting NORP legislation to LAW signed in GPE on DATE ” , LAW no . CARDINAL of DATE “ on conditions governing the exercise by the ORG of its powers to carry out checks at sea ” reads as follows ( version applicable at the material time ) :

“ Where there exist reasonable grounds to suspect that CARDINAL of the vessels referred to in CARDINAL and sailing outside territorial waters is engaged in illicit drug trafficking , commanders of ORG vessels and of aircraft responsible for surveillance at sea shall have the power DATE under the authority of ORG , who shall inform ORG – to carry out , or have carried out the inspection and coercion measures provided for under international law and under this law . ”

Section CARDINAL of the law ( in the version applicable at the material time ) stipulates that section CARDINAL applies , not only to ships flying the NORP flag but also “ to ships flying the flag of ORG to LAW DATE other than GPE , or lawfully registered in such a ORG , at the request or with the agreement of the flag ORG ” ( in the version amended by PERSON no . DATE of DATE , LAW refers to “ ships flying the flag of a ORG which has requested intervention by GPE or agreed to its request for intervention ” ) and “ to ships displaying no flag or having no nationality ” . It adds that “ the investigation and establishment of drug trafficking offences committed at sea , and prosecution and trial therefor ” are to be governed by the following provisions ( version applicable at the material time ) :

“ LAW taken at the request or with the agreement of ORG to the above - mentioned GPE Convention of DATE

Section CARDINAL

I. – Where he decides to search the ship , at the request or with the agreement of ORG to the above - mentioned LAW , the commander may have any narcotic substances found on board seized , together with any objects or documents which appear to be linked to drug trafficking .

They shall be placed under seal in the presence of the captain of the ship or any person found on board the ship .

II . - The commander may order the ship to be rerouted to an appropriate position or port when more thorough inspection is required that can not be carried out at sea .

The ship may also be rerouted to a point located in international waters if the flag ORG expressly requests it , with a view to taking control of the ship .

III . – A report on the measures taken in application of LAW , and the products , objects or documents placed under seal , shall be handed over to the authorities of the flag ORG when no further judicial action is taken on NORP soil .

LAW . – Powers of the NORP courts

Section CARDINAL

Persons accused of drug trafficking on the high seas and their accomplices may be prosecuted and tried by the NORP courts when bilateral or multilateral agreements or special arrangements have been concluded between GPE Parties to LAW .

Such special arrangements shall be transmitted through diplomatic channels to the NORP authorities , together with any information capable of giving rise to a suspicion that a ship is engaged in drug trafficking .

A copy of these documents shall be forwarded by any means and without delay to the public prosecutor .

Section CARDINAL

Police officers acting in accordance with the provisions of LAW , customs officers and , when specially so authorised under conditions laid down by a decree of the ORG d'Etat , commanders of ORG vessels , naval officers on board such vessels and commanders of ORG aircraft responsible for patrolling the seas , shall all be empowered to establish that drug trafficking offences are being committed and bring the offenders to justice in the following manner :

DATE The relevant public prosecutor shall be given prior notification , by any means , of the operations envisaged with a view to investigating and establishing the offences .

The offences shall be placed on record and the record thus made shall be authoritative unless proven otherwise . The report drawn up shall be communicated to the public prosecutor without delay and at the latest within DATE following the operations . The interested party shall be given a copy .

II . – Subject to the authorisation of the public prosecutor ( except in cases of extreme urgency ) , searches may be made and narcotic substances seized as well as objects or documents that appear to be linked to an offence under the legislation on narcotic substances , or to serve to commit such an offence . Such authorisation shall be communicated by any means .

The substances , objects or documents seized shall immediately be placed under seal .

Searches may be carried out and items seized on board the ship outside the times laid down in LAW . ”

GPE is also party to LAW of DATE , LAW which reads as follows :

“ Having due regard to their constitutional , legal and administrative systems , the Parties shall :

a ) Make arrangements at the national level for co - ordination of preventive and repressive action against the illicit traffic ; to this end they may usefully designate an appropriate agency responsible for such co - ordination ;

b ) Assist each other in the campaign against the illicit traffic in narcotic drugs ;

c ) Co - operate closely with each other and with the competent international organizations of which they are members with a view to maintaining a co - ordinated campaign against the illicit traffic ;

d ) Ensure that international co - operation between the appropriate agencies be conducted in an expeditious manner ; and

e ) Ensure that where legal papers are transmitted internationally for the purposes of a prosecution , the transmittal be effected in an expeditious manner to the bodies designated by the Parties ; this requirement shall be without prejudice to the right of a ORG to require that legal papers be sent to it through the diplomatic channel ;

f ) Furnish , if they deem it appropriate , to ORG through the Secretary - General , in addition to information required by article CARDINAL , information relating to illicit drug activity within their borders , including information on illicit cultivation , production , manufacture and use of , and on illicit trafficking in , drugs ; and

g ) Furnish the information referred to in the preceding paragraph as far as possible in such manner , and by such dates as the ORG may request ; if requested by a ORG , the ORG may offer its advice to it in furnishing the information and in endeavouring to reduce the illicit drug activity within the borders of that ORG . ”

Articles CARDINAL and CARDINAL of LAW on the Law of the Sea , signed at LOC on DATE , read as follows :

“ ArticleCARDINAL : Illicit traffic in narcotic drugs or psychotropic substances

All GPE shall cooperate in the suppression of illicit traffic in narcotic drugs and psychotropic substances engaged in by ships on the high seas contrary to international conventions .

Any ORG which has reasonable grounds for believing that a ship flying its flag is engaged in illicit traffic in narcotic drugs or psychotropic substances may request the cooperation of other GPE to suppress such traffic . ”

“ Article CARDINAL : Right of visit

Except where acts of interference derive from powers conferred by treaty , a warship which encounters on the high seas a foreign ship , other than a ship entitled to complete immunity in accordance with articles CARDINAL and CARDINAL , is not justified in boarding it unless there is reasonable ground for suspecting that :

( a ) the ship is engaged in piracy ;

( b ) the ship is engaged in the slave trade ;

( c ) the ship is engaged in unauthorized broadcasting and the flag ORG of the warship has jurisdiction under LAW ;

( d ) the ship is without nationality ; or

( e ) though flying a foreign flag or refusing to show its flag , the ship is , in reality , of the same nationality as the warship .

In the cases provided for in paragraph CARDINAL , the warship may proceed to verify the ship 's right to fly its flag . To this end , it may send a boat under the command of an officer to the suspected ship . If suspicion remains after the documents have been checked , it may proceed to a further examination on board the ship , which must be carried out with all possible consideration .

If the suspicions prove to be unfounded , and provided that the ship boarded has not committed any act justifying them , it shall be compensated for any loss or damage that may have been sustained .

These provisions apply mutatis mutandis to military aircraft .

These provisions also apply to any other duly authorized ships or aircraft clearly marked and identifiable as being on government service . ”


CASE OF DUDGEON v. THE UNITED KINGDOM (ARTICLE 50)

Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

The PERSON case was referred to the ORG by ORG ( " the Commission " ) in DATE . The case originated in an application against GPE and GPE lodged with the Commission on DATE by a GPE citizen , Mr. PERSON .

On DATE , the ORG constituted to hear the case relinquished jurisdiction in favour of ORG ( Rule CARDINAL of the Rules of Court ) . By judgment of CARDINAL DATE , ORG held , inter alia , that the applicant had been the victim of a breach of LAW article CARDINAL) of the LAW by reason of the existence in GPE of laws which had the effect of making certain homosexual acts committed in private between consenting adult males criminal offences ( Series A no . DATE , point CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . CARDINAL and CARDINAL ) .

The only outstanding matter to be settled in the present case is the question of the application of LAW ) . Accordingly , as regards the facts the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .

At the hearing held on DATE , counsel for the applicant had stated that , should the ORG find a violation of the LAW , his client would be seeking just satisfaction under LAW ) to obtain financial compensation for damage suffered and for legal and other expenses incurred . ORG of GPE ( " the Government " ) , for their part , had taken no stand on the matter .

In its judgment of CARDINAL DATE , ORG reserved the whole of the question of the application of LAW ) and referred it back to LAW . On DATE , ORG invited the ORG to submit , within DATE , written observations thereon , including notification of any friendly settlement at which the ORG and the applicant might have arrived ( ibid . , p. CARDINAL ) .

Following CARDINAL extensions by the President of ORG above - mentioned time - limit and in accordance with his orders and directions , the following documents were filed at the registry :

- on CARDINAL DATE , the observations of ORG , appended to which were , inter alia , details of the applicant 's claim ;

- on DATE , a memorial from the Government ;

- on DATE , the reply of the Delegates to a question raised therein by the Government ;

- on DATE , through the Secretary to ORG , the observations of the applicant on the above - mentioned memorial of the Government ;

- on DATE , the comments of the Government on the latter observations .

On DATE and CARDINAL DATE , ORG transmitted to the Registrar further observations by Mr. PERSON , which the latter had sent to the Commission on his own initiative .

These various documents revealed that it had not been possible to arrive at a friendly settlement . The Delegates did not comment on the merits of the applicant 's claim , which may be summarised as follows :

- for damage suffered as a result of the police investigation carried out in DATE , financial compensation of £ MONEY ;

- for damage suffered by reason of the very existence of the legislation successfully complained of , financial compensation of £ MONEY and a declaration by the Government that if Mr. PERSON were to apply for civil service employment he would not be discriminated against either on grounds of homosexuality or for having lodged his petition with the Commission ;

- reimbursement of costs itemised at £ MONEY .

Further particulars of the claim are set out below in the section " As to the law " .

Following the ORG 's judgment of CARDINAL DATE and on the initiative of ORG , an ORG , entitled ORG ( GPE ) DATE , was made . Subject to certain exceptions concerning mental patients , members of the armed forces and merchant seamen , the effect of this Order , which came into force on DATE , is to " decriminalise " in GPE homosexual acts committed in private between CARDINAL consenting males aged DATE and over . The Order brings the relevant law in GPE into line with that applying in the remainder of GPE ( see the above - mentioned judgment of CARDINAL DATE , pp . DATE , § § DATE ) .

Having consulted , through the Registrar , the Agent of the Government and the Delegates of the ORG , the ORG decided on DATE that there was no call to hold hearings .

Mr. PERSON , Mr. PERSON and Mr. PERSON , substitute judges , took the place of Mr. PERSON , Mr. PERSON and Mr. PERSON , who were prevented from taking part in the further consideration of the case ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ) .


No violation of Art. 6-1;No violation of Art. 14+6

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

On DATE the applicant commenced employment as an administrative assistant at ORG in GPE , in ORG , which is a subsidiary of ORG . She was dismissed from her employment in DATE . Following her dismissal the applicant issued proceedings against ORG in ORG , claiming that her dismissal had been the result of sex discrimination contrary to sections PERSON ) , CARDINAL ) and CARDINAL ) of LAW DATE ( see paragraph CARDINAL below ) . In particular she alleged that she had been the victim of persistent sexual harassment from her supervisor and that working relationships had broken down in consequence . ORG defended the claim and did not , at any stage in these proceedings , claim ORG immunity . On DATE the ORG upheld the applicant ’s complaint . A compensation figure of GBP CARDINAL was agreed between the parties .

NORP In DATE , whilst her first claim in ORG was still pending , the applicant applied for and obtained a fixed term DATE contract as an administrative assistant within ORG section of the ORG . The contract was due to expire in DATE . In DATE and DATE ( after the finding in her favour by ORG ) , the applicant applied for CARDINAL of the following posts at ORG : secretary with ORG , temporary secretary with the above office and temporary secretary with ORG , which is operated by ORG . On each occasion her application was unsuccessful .

On DATE the applicant issued a second application before ORG . She claimed that the refusal of the ORG to re - employ her in CARDINAL of the above posts was a consequence of her previous successful sex discrimination claim , and accordingly constituted victimisation and discrimination within the meaning of sections CARDINAL and CARDINAL of LAW DATE .

By a letter of DATE , solicitors acting for GPE notified the Regional Secretary to ORG that ORG intended to claim immunity from the jurisdiction of the ORG under sections CARDINAL and CARDINAL(CARDINAL)(a ) of LAW DATE ( “ the DATE LAW : see paragraph CARDINAL below ) . The letter enclosed an affidavit sworn by the First Secretary at the ORG , deposing to the fact that each of the posts for which the applicant had applied were part of the administrative and technical staff of the ORG , and accordingly fell within the ambit of the immunity imposed by section CARDINAL(CARDINAL)(a ) of LAW .

On DATE the applicant received the advice of counsel , to the effect that ORG were entitled to claim immunity under LAW , and that once immunity was properly asserted there was no means by which a court or tribunal in GPE could accept jurisdiction to entertain the application . Accordingly , the applicant was advised that she had no remedy in domestic law .

LAW DATE ( “ the CARDINAL Act ” ) creates a statutory cause of action which arises when an employer treats an employee or a potential employee less favourably by reason of her sex ( “ sex discrimination ” ) , or by reason of the fact that she has taken or intends to take proceedings against any person under LAW ( “ victimisation ” ) .

Section CARDINAL(CARDINAL ) of the Act defines “ sex discrimination ” as follows :

“ A person discriminates against a woman in any circumstances relevant for the purposes of any provision of this LAW if : ( a ) on the ground of her sex he treats her less favourably than he treats or would treat a man ... ”

Section CARDINAL(CARDINAL ) of the LAW defines “ victimisation ” as follows :

“ A person ( ‘ the ORG ) discriminates against another person ( ‘ the person ORG ) in any circumstances relevant for the purposes of any provision of this LAW if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons , and does so by reason that the person victimised has : ( a ) brought proceedings against the discriminator or any other person under LAW , or ... ( d ) alleged that the discriminator or any other person has committed an act which ... would amount to a contravention of this LAW or give rise to a claim under LAW DATE ... ”

Section CARDINAL of this LAW defines the circumstances in which it is unlawful to discriminate against employees and applicants , on the grounds of sex discrimination or victimisation , as follows :

“ ( CARDINAL ) It is unlawful for a person , in relation to employment by him at an establishment in GPE , to discriminate against a woman : ( a ) in the arrangements he makes for the purpose of determining who should be offered that employment , or ... ( c ) by refusing or deliberately omitting to offer her that employment . ”

( CARDINAL ) It is unlawful for a person , in the case of a woman employed by him at an establishment in GPE , to discriminate against her ... ( b ) by dismissing her , or subjecting her to any other detriment . ”

GPE State Immunity Act DATE provides , inter alia , as follows :

“ CARDINAL(CARDINAL ) A ORG is immune from the jurisdiction of the courts of the GPE except as provided in the following provisions of this Part of this Act . ORG … CARDINAL(CARDINAL ) A State is not immune as respects proceedings relating to a contract of employment between the ORG and an individual where the contract was made in GPE or the work is to be wholly or partly performed there . CARDINAL(CARDINAL ) Subject to sub - sections ( CARDINAL ) and ( CARDINAL ) below , this section does not apply if- ( a ) at the time when the proceedings are brought the individual is a national of the ORG concerned ; or ( b ) at the time when the contract was made the individual was neither a national of GPE nor habitually resident there ; or ( c ) the parties to the contract have otherwise agreed in writing . CARDINAL(CARDINAL ) Where the work is for an office , agency or establishment maintained by the ORG in GPE for commercial purposes , sub - section ( CARDINAL)(a ) and ( b ) above do not exclude the application of this section unless the individual was , at the time when the contract was made , habitually resident in that ORG . ORG … CARDINAL(CARDINAL ) This Part of this LAW does not affect any immunity or privilege conferred by LAW DATE or LAW DATE ; and:- ( a ) Section CARDINAL above does not apply to proceedings concerning the employment of the member of a mission within the meaning of the Convention scheduled to the said Act of DATE or of the member of a consular post within the meaning of the Convention scheduled to said Act of DATE . ... ”

Article CARDINAL of LAW which is scheduled to LAW provides the following definitions :

“ ( b ) the ‘ members of the GPE are the head of the mission and the members of staff of the mission ; ( c ) the ‘ members of staff of the LOC are the members of diplomatic staff or the administrative and technical staff , and of the service staff of the mission . ... ( f ) the ‘ members of the administrative and technical GPE are the members of the staff of the mission employed in the administrative and technical service of the mission . ”

The DATE European Convention on State Immunity ( “ the Basle Convention ” ) , entered into force on DATE after its ratification by CARDINAL States . It has now been ratified by MONEY ( GPE , GPE , GPE , GPE , GPE , the GPE , GPE and GPE ) and signed by CARDINAL other ORG ( GPE ) . It entered into force in respect of GPE on DATE , and provides , inter alia :

Article CARDINAL

“ CARDINAL . A Contracting State can not claim immunity from the jurisdiction of a Court of another Contracting State if the proceedings relate to a contract of employment between the ORG and an individual where the work has to be performed in the territory of the ORG of the forum . CARDINAL . Paragraph CARDINAL shall not apply where : ( a ) the individual is a national of the employing ORG at the time when the proceedings were brought ; ( b ) at the time when the contract was entered into the individual was neither a national of the State of the forum nor habitually a resident in that ORG ; or ( c ) the parties to the contract have otherwise agreed in writing , unless , in accordance with the law of the State of the forum , ORG that ORG have exclusive jurisdiction by reason of the subject - matter . CARDINAL . Where the work is done for an office , agency or other establishment referred to in DATE , paragraphs PERSON ) and ( b ) of the present article apply only if , at the time the contract was entered into , the individual had his habitual residence in the Contracting State which employs him . ”

Article CARDINAL

“ Nothing in the present Convention shall affect privileges and immunities relating to the exercise of the functions of diplomatic missions and consular posts and of persons connected with them . ”

ORG on ORG and Their Property , submitted to ORG of ORG ( ( DATE ) , PERSON ) PERSON CARDINAL ) , provides at LAW , paragraph CARDINAL , that :

“ a ORG can not invoke immunity ... in a proceeding which relates to a contract of employment between the ORG and an individual for work performed in the territory of [ the host ] ORG . ”

However , this provision is specifically disapplied where “ the subject of the proceedings is the recruitment , renewal of employment or reinstatement of the individual ” and where “ the employee has been recruited to perform functions closely related to the exercise of governmental authority ” .

Although there is no explicit reference to employment at diplomatic or consular missions in these provisions , the commentary indicates that the latter exception was intended to apply in such a context and that all employees at such missions would be precluded from bringing suit on the basis of ORG immunity .

ORG of ORG adopted in DATE its LAW , Article IIIC of which dealt with contracts of employment and was similar in its terms to LAW . An amendment was added to LAW DATE conference , providing for immunity to be granted where “ the employee was appointed under the public ( administrative ) law of the foreign state such as , inter alia , members of the mission , diplomatic , consular or military staff ” . In the explanatory commentary on the amendment the ORG stated that it wished “ to make clear that the employment relationship of any and all diplomatic and consular staff and other members of the mission should be immune from the jurisdiction of the courts of the forum state ” .


Violation of Art. 8;Non-pecuniary damage - financial award

ORG Mr. PERSON and his daughter Y were born in DATE and on DATE respectively . The daughter , who is mentally handicapped , had been living since DATE in a privately - run home for mentally handicapped children .

ORG During TIME DATE , Miss Y was woken up by a certain Mr. B , the son - in - law of the directress ; he lived with his wife on the LOC of the institution although he was not employed there . Mr. PERSON forced the girl to follow him to his room , to undress and to have sexual intercourse with him .

This incident , which occurred on DATE after Miss Y ’s sixteenth birthday , had traumatic consequences for her , causing her major mental disturbance .

ORG On DATE , Mr. PERSON went to the local police station to file a complaint and to ask for criminal proceedings to be instituted .

The police officer said that since Mr. PERSON considered his daughter unable to sign the complaint because of her mental condition , he could do so himself . The statement lodged by Mr. PERSON read as follows : " In my capacity as father I denounce the offences committed by Mr. B on the person of my daughter . I am doing this because she can not do so herself , since , although DATE , she is mentally and intellectually still a child . "

ORG The police officer drew up a report and it was signed by Mr. PERSON ( ORG CARDINAL and CARDINAL of LAW ) . The officer subsequently informed the public prosecutor ’s office that in the light of the father ’s statement and of his own observations concerning the girl ’s mental condition , she did not seem to him capable of filing a complaint herself . According to the headmaster of the school she was attending and another teacher there , she was unable to express her wishes concerning the institution of proceedings .

ORG On DATE , the public prosecutor ’s office provisionally decided not to open proceedings against Mr. B , provided that he did not commit a similar offence within DATE . The official in charge of the case so informed Mr. PERSON at a meeting on DATE .

ORG On DATE , Mr. PERSON appealed against the decision of the public prosecutor ’s office to ORG , under LAW ; he requested the court to direct that criminal proceedings be instituted .

In a supplementary memorial of DATE , he pointed out that subject to an exhaustive list of exceptions none of which applied in the instant case , a legal representative was entitled to act on behalf of the complainant .

ORG dismissed the appeal on DATE . In fact , it considered it doubtful whether a charge of rape ( Article CARDINAL of LAW ; see paragraph CARDINAL below ) could be proved . As for LAW ( see paragraph CARDINAL below ) , it would have been applicable in the instant case , but only if the victim herself had taken action . In ORG view , the father ’s complaint ( Article CARDINAL para . CARDINAL of LAW ; see paragraph CARDINAL below ) could not be regarded as a substitute for the complaint which the girl , being over DATE , should have lodged herself , although the police had regarded her as incapable of doing so ; since in the instant case no one was legally empowered to file a complaint , there was on this point a gap in the law , but it could not be filled by means of a broad interpretation to the detriment of Mr. PERSON

ORG By virtue of LAW , there was no possibility of appealing on a point of law to ORG ( PERSON ) against this decision .

ORG As regards sexual offences , LAW makes a distinction between rape ( LAW ) and indecent assault ( LAW ) , recourse to physical violence also being a constituent element of the latter offence .

ORG Other more specific provisions afford in this area protection to certain categories of persons whose age , position of dependence or physical incapacity renders it difficult or impossible for them to determine or impose their wishes .

Articles CARDINAL and CARDINAL , respectively , make it a criminal offence to have sexual intercourse with a girl under DATE twelve or with a girl DATE , and under LAW it is a criminal offence to commit an indecent assault on boys or girls under the age of sixteen .

Articles CARDINAL and CARDINAL concern , respectively , sexual intercourse with , and indecent assault on , a woman known to the offender to be unconscious or helpless . According to ORG , however , the word " helpless " refers only to physical incapacity .

Article CARDINAL relates to indecent acts committed with a minor who is in a position of dependence vis - à - vis the perpetrator .

Finally , Article CARDINAL concerns indecency , either in public or while another person is present against his will .

Save for Article CARDINAL , none of these provisions makes the institution of criminal proceedings conditional on the filing of a complaint by the victim .

ORG The same does not apply to LAW , whereby a sentence of not more than four years’ imprisonment may be imposed on any person who , " through gifts or promises ... , through abuse of a dominant position resulting from factual circumstances , or through deceit , deliberately causes a minor of blameless conduct to commit indecent acts with him or to suffer such acts from him " : in a case of this kind , the offender can be prosecuted only on complaint by the actual victim .

Under LAW para . CARDINAL , however , the legal representative may lodge the complaint on behalf of the victim if the latter is under DATE or is placed under guardianship ( curateele ) ; this latter institution exists only for persons who have reached the age of majority , namely CARDINAL ( Article CARDINAL , ORG , of LAW ) .

ORG At the hearings , counsel for the Government informed ORG that ORG had prepared a PERSON modifying the provisions of LAW that related to sexual offences . Under the PERSON , it would be an offence to make sexual advances to a mentally handicapped person .


NORP The applicant , a NORP citizen residing in PERSON , is an engineer .

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

On DATE the President of ORG issued a decision under the provisions of the DATE LAW authorising the establishment of ORG ( ORG w Lublinie ) , a public company with foreign capital .

NORP In DATE the company was registered in the public companies register at ORG . The share capital of the company was MONEY ( PLZ - “ old ” , equivalent to CARDINAL new NORP zlotys as from DATE ) . PERCENT of the shares were owned by CARDINAL PERSON

On DATE the applicant bought shares in ORG from PERSON The parties fixed the price for the shares at PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL , to be paid in CARDINAL instalments . The applicant thus acquired PERCENT of the bank ’s equity capital .

On DATE the applicant and PERSON agreed to rescind this contract . On DATE the bank , having regard to PERSON ’s failure to pay it the sums he owed , took over a number of his shares in order to cover his unpaid obligations . Later on , the applicant deposited with the bank CARDINAL shares which he had purchased from PERSON The bank sought the consent of the President of ORG to a re - transfer of ownership from the applicant to PERSON

By a letter of CARDINAL DATE the President refused . She stated in her letter that the bank was an institution of public trust , using the assets of private persons . Under the provisions of the DATE LAW , and in particular its Article CARDINAL , the activities of banks were supervised by ORG in order to protect savings and investments entrusted to them . PERSON , who had meanwhile been arrested and extradited to GPE , where he had been convicted of financial fraud , did not give any guarantee that the interests of the bank ’s customers would be properly protected if he remained a majority shareholder in the bank . It was also noted that a conflict of interest arose , as , in addition to being the bank ’s majority shareholder , PERSON had been the sole or joint owner of a number of companies which had defaulted on loans from the bank , thus undermining its financial standing .

By a letter of CARDINAL DATE the President of ORG drew the attention of the bank ’s board to the necessity of preparing a recovery and restructuring programme in order to improve the bank ’s financial standing .

The bank ’s losses for DATE totalled PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL,CARDINAL , its capital resources being PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL .

On DATE T. company , owned by the applicant , took out a loan of PLZ CARDINAL from the bank , repayable within DATE .

By a decision no . CARDINAL of DATE the President of ORG appointed a ORG ( PERSON ) which was to replace the existing governing and supervisory bodies of the company for DATE . In so doing , she had regard to the continuing deterioration of the bank ’s financial situation and to the danger of its becoming insolvent . The measure was intended to improve the bank ’s financial standing and to preserve the assets deposited with it . Regard was also had to the fact that the bank ’s board had failed to submit the recovery programme requested by ORG . It was further pointed out that the composition of the bank ’s board had been changed many times , which made it difficult for any coherent management policy to be adopted , and that the new board , elected in DATE , had also failed to devise a recovery programme and to show that it would be able to prepare and implement it . True , it had undertaken to do so within DATE , but in the bank ’s dramatic situation that was far too long and late . It was further noted that the bank could only be saved by external financing , but no institutions prepared to fund a rescue operation had been found .

NORP In the external auditors’ report for DATE , subsequently prepared at the request of ORG , it was stated , inter alia , that before DATE the bank ’s governing bodies and its principal shareholder , PERSON , had acted in an unprofessional manner which brought about considerable losses . The losses had been caused , in particular , by transactions between the bank and companies owned by the principal shareholder , PERSON A number of ill - advised loans had been made , in particular to companies and private individuals linked to PERSON It was necessary to re - assess the bank ’s strategy , in particular by finding an external investor willing to improve the bank ’s financial standing by increasing its share capital . However , the chances of finding an investor willing to invest MONEY were practically non - existent . Another option was to seek institutional support from ORG , ORG or a different source . Any new investor would have to take control of the bank in order to manage it until its financial standing improved . Accordingly , the existing shareholders would lose their dominant position . ORG

According to an extract from the bank ’s books , on CARDINAL DATE the applicant ’s company , ORG , owed the bank PLZ CARDINAL . On DATE the bank instituted enforcement proceedings against that company .

On DATE the mandate of ORG was prolonged until DATE . It was subsequently renewed again .

On DATE ORG adopted a resolution by virtue of which the bank ’s memorandum of association was amended . The nominal value of its share capital was first reduced from PLZ CARDINAL to PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL by cancelling CARDINAL Class A shares worth PLZ CARDINAL each . The value of CARDINAL remaining Class A shares A was reduced from PLZ MONEY to PLZ CARDINAL . The sum of PLZ CARDINAL thus generated was to be used in its entirety to cover the bank ’s losses . Next the bank ’s share capital was increased by PLZ CARDINAL through the issue of CARDINAL new Class B non - transferable shares of PLZ CARDINAL each , with extra voting rights . Class B shares were to be paid up entirely by funds provided by ORG in order to improve the standing of the bank , which was on the verge of bankruptcy ; they were consequently allotted to ORG , to be owned by it . The existing shareholders , in order to protect the bank ’s interests , were prevented from acquiring new shares .

As a result of these operations , the applicant ’s shareholding decreased from PERCENT .

On DATE ORG adopted another resolution by deleting the provision in the bank ’s memorandum of association which prohibited the cancellation of shares , and introduced a provision to the effect that the shares could be cancelled by reducing the share capital .

On DATE the applicant lodged a civil action with ORG seeking an order setting aside the resolution of DATE . He submitted that the resolution had arbitrarily decreased the value of his shares and deprived him of the right to acquire new shares ; consequently , he had sustained a heavy financial loss . He also argued that the resolution contravened applicable laws , in particular banking laws and LAW .

On DATE ORG ordered that the pleadings be returned to the applicant on the ground that he had not complied with the relevant procedural requirements under LAW , as he had failed to indicate the value of the claim . It considered that that claim was clearly of a pecuniary character , its value being equivalent to the loss he had sustained as a result of the resolution of DATE .

On DATE the applicant appealed against that order , submitting that pursuant to the regulation on court fees , only a fixed fee was to be paid to commence an action for an order quashing corporate resolutions . Thus , it was unnecessary for him to indicate the amount in dispute .

On DATE ORG , acting as an appellate court , dismissed the applicant ’s appeal , considering that the lower court had been right to find that his claim was of a pecuniary character , since his aim was to obtain compensation for his alleged loss resulting from the resolution .

On DATE the applicant again lodged a civil action with ORG , seeking an order quashing the resolution of DATE . He submitted that the amount in dispute was PLZ CARDINAL . On DATE ORG requested the applicant to pay court fees of PLZ CARDINAL,CARDINAL,CARDINAL,CARDINAL .

On DATE the applicant requested an exemption in respect of the court fees . He submitted that his property had been seized by a bailiff in the context of enforcement proceedings which had been instituted against him by ORG on DATE .

On DATE ORG refused to grant the applicant an exemption , considering that he had failed to submit to the court detailed information regarding his financial situation . The applicant lodged an interlocutory appeal against that decision .

On DATE ORG dismissed the appeal . It examined the documents submitted in support of the appeal and considered that , as the applicant had significant assets , including CARDINAL companies and real property , he did not qualify for an exemption .

On DATE ORG ) ordered that entries be made in ORG , reflecting the results of ORG of DATE .

On DATE the applicant lodged an appeal against that decision .

On DATE ORG referred a question on points of law to ORG ( Sąd Najwyższy ) . ORG was requested to rule on the correct interpretation of the scope of ORG power to adopt resolutions on matters reserved to the company ’s ORG general meeting , in particular as regards reducing the share capital . ORG

On DATE ORG , by resolution no . III CZP CARDINAL/CARDINAL , stated that ORG appointed under the provisions of LAW was empowered to adopt resolutions on all matters reserved by statute or by the company ’s memorandum of association to the company ’s shareholders in general meeting . It held that , with regard to banks , the provisions of LAW , which was a lex specialis , took precedence over the provisions of the LAW governing public companies which contained certain limitations on the powers of ORG .

On DATE ORG dismissed an action brought by ORG Produkcji Leśnej LAS ) against ORG . The plaintiff company , which had been a shareholder of the bank , sought an order quashing the resolution of DATE . It argued that the resolution should be quashed in pursuance of LAW which allowed shareholders to seek an order setting aside resolutions of the ORG general meeting if taken deliberately to their detriment .

On DATE the applicant requested ORG permission to join these proceedings as a co - plaintiff . On DATE he lodged an appeal against the judgment of DATE . The applicant contended in his appeal that the impugned judgment was in breach of substantive law in that the court had wrongly held that the provisions of LAW took precedence over the provisions of LAW concerning ORG power to challenge before the courts certain resolutions of a ORG general meeting . The applicant further submitted that the court had failed to draw reasonable conclusions from the evidence , in particular in that it had not concluded that the impugned resolution had been taken deliberately to the ORG detriment .

On DATE ORG dismissed the applicant ’s appeal . It found that ORG had appointed ORG in view of the heavy losses which ORG had sustained in DATE , mostly as a result of bad debts . It was not in dispute that the bank had sustained such losses . The purpose of the resolution of DATE had been to improve the bank ’s financial standing in the interest of its customers and in order to prevent it from becoming insolvent . The court further referred to the resolution of ORG of DATE . It considered that , in the light of that resolution , ORG .

On DATE the judgment was served on the applicant . He requested the Minister of ORG to lodge an extraordinary appeal on his behalf . By a letter of CARDINAL DATE the Minister of ORG declined to do so , considering that the impugned judgment was in conformity with the law .

Pursuant to LAW as in force at the material time , if a bank suffers or is in danger of suffering losses or of becoming insolvent , its board must promptly inform the President of ORG and take appropriate recovery measures . A recovery programme must be submitted to the President of ORG for approval within DATE .

If the board fails to do so , or if such programme does not appear to guarantee an improvement in the bank ’s standing , the President of ORG may place the bank under compulsory receivership .

The board of receivers has powers to make decisions in all matters concerning the bank . Its primary task is to prepare a recovery programme for approval by ORG and to ensure its implementation .

On DATE the Constitutional Tribunal gave a decision under which Article CARDINAL of CARDINAL Banking Act was to be construed as meaning that the board of receivers had the power of taking any decisions that the suspended statutory organs of the bank were empowered to take ( W CARDINAL/CARDINAL OTK CARDINAL/CARDINAL/CARDINAL ) .

Under LAW , as worded at the material time , if damage was caused by a public servant as a result of him / her giving a decision or accomplishing another official act , ORG was to be held liable only if that decision or act amounted to a breach punishable under criminal law or under any disciplinary regulations , and if the fault of the public servant had been confirmed by a judgment of a criminal court or of a competent disciplinary authority , or was otherwise established by a superior authority .

Article CARDINAL of LAW provides that any person who has a legal interest in the outcome of a case may join proceedings as a co - plaintiff or co - defendant at any stage prior to the end of the hearings before the court of second instance .


Violation of P1-1;Pecuniary and non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and resides in the city of GPE , GPE .

The applicant has worked as an NORP teacher in a secondary school since DATE .

On DATE ORG adopted a new wording for LAW that provided for , in particular , the payment of certain benefits to teachers .

On DATE the applicant instituted civil proceedings in the GPE ORG of Donetsk against the GPE ORG , claiming entitlement to those benefits . The applicant maintained that he had PERCENT CARDINAL years’ of service and was thus entitled to a PERCENT increase in his salary as from DATE . However , the defendant had not paid him this increase . He further maintained that the defendant had not paid him DATE bonuses for excellent work and recreation . The defendant stated that the claimed amounts could not be paid because the ORG budgets for DATE did not make any provision for such expenditures .

On DATE the court found in part for the applicant . The court rejected the applicant ’s claim for an excellent work bonus as such a payment required an assessment of the applicant ’s work which was outside the court ’s competence . The court also rejected the applicant ’s claim for unpaid benefits in DATE and CARDINAL as being out of time , according to the law on employment disputes . The court further rejected the applicant ’s claim for benefits after DATE as LAW , adopted in DATE , had suspended them . The court , however , awarded the applicant the claimed increase in salary for the period DATE and DATE .

NORP The applicant appealed against this decision to ORG .

On DATE the regional court quashed the decision of the first instance court and remitted the case for a fresh consideration . The court noted , in particular , that LAW had entered into force on DATE ; therefore the first instance court had erroneously overlooked the period DATE .

On DATE the GPE ORG of Donetsk ruled against the applicant . The court found that , under the transitional clauses of LAW , the provision entitling the applicant to benefits would only resume force on DATE . Thus , at the time of the examination of the claim , there was no legal basis for it .

On DATE , ORG upheld the decision of the first instance court . It observed that the claims of the applicant for the periods prior to the adoption of LAW could not be satisfied , since at the time of the consideration of the case the relevant provisions of LAW had been suspended by LAW . This decision was final .

At the material time , Article CARDINAL of LAW of GPE provided that employees could institute proceedings in respect of an employment dispute within DATE from the date on which they learned or could have been expected to learn that there had been an infringement of their rights . By an LAW DATE , this article was supplemented by a provision repealing time - limits for disputes concerning salary arrears .

Article CARDINAL of the Education ( LAW DATE provided for a PERCENT increase in salary for teachers who had worked in the education system for DATE . The same article provided for an DATE payment for recreation and an DATE bonus for the performance of excellent work .

DATE and DATE these provisions were suspended by LAW mentioned below .

The second paragraph of LAW of CARDINAL DATE provided that teachers of ORG and municipal secondary schools would be paid their salaries and benefits under LAW out of ORG . The transitional clause of the former Act stipulated that LAW would enter into force on DATE .


Violation of Art. 6-1 (non-enforcement of one judgment);Violation of P1-1;Remainder inadmissible;Pecuniary and non-pecuniary damage, costs and expenses - financial award (global)

The applicant was born in DATE and lives in the village of Ivanivka , the GPE region of GPE .

On DATE ORG ordered the ORG to supply the applicant with QUANTITY of coal .

On DATE ORG instituted enforcement proceedings in respect of that judgment .

On DATE ORG informed the applicant that the judgment could not be enforced due to the large number of enforcement proceedings against the debtor and the fact that the procedure for the forced sale of assets belonging to the debtor had been suspended because of the moratorium on the forced sale of property belonging to ORG enterprises introduced by the PERSON of DATE .

On DATE the judgment was enforced in full .

On DATE the same court ordered the Mine to supply the applicant with another QUANTITY of coal .

On DATE ORG instituted enforcement proceedings in respect of the judgment of DATE .

On DATE that judgment was also enforced in full .

NORP The relevant domestic law is summarised in the judgment of Romashov v. GPE ( no . CARDINAL , § § DATE , DATE ) .


Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Robert Spano;Vincent A. De Gaetano

NORP The applicant , Mr ORG , is a NORP national born in DATE currently being detained in a prison in GPE . He was represented before the ORG by Ms B. Didrihsone , a lawyer practising in GPE .

It appears that the applicant was held in pre - trial detention in ORG from DATE to DATE and from CARDINAL DATE to DATE .

During these periods the applicant was placed in various disciplinary cells on QUANTITY occasions , for a total of DATE . The first time he was detained in a disciplinary cell was on DATE , as punishment for a disciplinary offence ( not complying with a warden ’s instructions to stay in the cell allocated to him ) .

The applicant submitted that the conditions in the disciplinary cells in ORG had been as follows . There had been no natural light , as the window in each cell had been covered by a metal plate ; the artificial lighting provided had not been sufficient . The cells had been damp and stuffy , as there had been no ventilation . Paint had chipped off every surface . The walls and ceiling had been mouldy . The toilets had not been partitioned , had been visible from corridor and there had been no toilet seats . There had been no sinks either ; the water supply had been mounted above the toilets . The cells had been infested with insects and bugs .

On DATE the applicant lodged a complaint with ORG ( ORG birojs ) , among other things , about the conditions of detention in the disciplinary cells in FAC .

On DATE the applicant was informed that the ORG had opened an inquiry .

On DATE the ORG delivered his opinion . He mentioned that on DATE his employees had visited the disciplinary cells in FAC , and had described the conditions there as follows . The cells had measured QUANTITY m. The toilets had not been partitioned , had been visible through a window in the door and there had been no toilet seats . There had been no sinks either ; the water supply had been mounted above the toilets . There had been one foldable plank bed and a small table , but no other furniture . Paint had chipped off part of the walls . The ceiling had been cracked and mouldy . The cells had been damp , as ventilation ( natural and artificial ) had not been sufficient . The cells had not been well - lit ( CARDINAL light bulb above each door ) . There had been a window in each cell but it had been covered with a metal plate , meaning there had been no natural light .

The ORG concluded that the conditions in the cells did not comply with either domestic law or international standards . He advised the applicant to institute administrative proceedings under LAW ( an “ action of a public authority ” ) by lodging a complaint with the head of ORG ( PERSON vietu pārvalde ) and subsequently with the administrative courts .

On DATE the applicant lodged a complaint with ORG about the conditions of detention in FAC . He indicated that his complaint related to an “ action of a public authority ” ( faktiskā rīcība ) and claimed compensation in the amount of CARDINAL NORP lati ( ORG ) ( MONEY ( ORG ) ) .

On DATE ORG dismissed the applicant ’s complaint and considered that the conditions in the disciplinary cells complied with domestic law . The applicant was informed that he had DATE to appeal against this decision to ORG ( ORG rajona tiesa ) .

NORP The applicant had lodged an application with ORG prior to submitting his complaint to ORG . He subsequently amended his application on CARDINAL occasions and asked to be exempted from the payment of ORG duty ( court fees ) .

On DATE ORG stayed the proceedings and requested that the relevant authorities submit information .

On DATE ORG decided to exempt the applicant from the payment of ORG duty , accepted his application and commenced the administrative proceedings ( under case no . ACARDINAL ) . His application was deemed to have been submitted on DATE , the date of his initial application .

It appears that hearings were scheduled for DATE and DATE . It is not clear why these did not take place . The case was eventually heard on DATE .

On DATE the ORG delivered a judgment upholding the applicant ’s claim . The court largely relied on the Ombudsman ’s conclusions and found that the applicant ’s account of the conditions largely coincided with the conditions as established by the ORG ’s inquiry . The court awarded compensation for non - pecuniary damage in the amount of ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) .

The applicant and his representative , a ORG - appointed lawyer , did not lodge an appeal against this judgment , but ORG did . It appears that an appeal hearing was scheduled for DATE , but did not take place . The case was eventually heard on DATE .

On DATE ORG ( NORP apgabaltiesa DATE the ORG ” ) delivered a judgment quashing the lower court ’s ruling and upholding the applicant ’s claim in part . It specified that the claim concerned an action of a public authority ( ORG ) , and examined its lawfulness . ORG took into account the lack of toilet partitioning and the fact that the toilets did not have seats , that the water supply had been mounted above the toilets , and that there had been inadequate lighting and ventilation . These conditions were considered to be degrading , and their cumulative effects contrary to LAW . Therefore , the action of a public authority ( ORG ) in placing the applicant in those conditions was found to be unlawful .

As concerns compensation for non - pecuniary damage , ORG noted that an adequate award of compensation would be ORG CARDINAL,CARDINAL ( approximately ORG CARDINAL,CARDINAL ) . However , given that the applicant had been placed in disciplinary cells for his own actions and had waited for DATE after his initial placement there before lodging his first complaint , the amount had to be reduced in accordance with domestic law . ORG awarded the applicant ORG ( approximately ORG CARDINAL ) and dismissed the remainder of his non - pecuniary damage claim ( ORG CARDINAL , approximately ORG CARDINAL ) . An appeal on points of law could be lodged against this judgment within DATE of its delivery .

The applicant ’s lawyer lodged an appeal on points of law , indicating that the applicant considered ORG ruling to be unlawful . No further reasons were provided .

By a final decision on DATE , CARDINAL senators of the ORG of ORG refused to open cassation proceedings on the basis of section CARDINAL(CARDINAL)(CARDINAL ) and section CARDINAL.CARDINAL of LAW . The proceedings did continue , however , as regards the applicant ’s ( other ) claim examined within the same proceedings about an action of a public authority ( ORG ) as regards its refusal to transfer him to another cell or to another prison for security reasons . The applicant eventually withdrew that claim , and on DATE the ORG of ORG adopted a final decision relating to it .

On DATE the applicant ’s lawyer attempted to lodge an ancillary complaint ( blakus sūdzība ) against the ORG ’s decision . She explained that she had not been made aware of ORG judgment until DATE . She could not submit a fully reasoned appeal on points of law within the necessary time - limit , so in accordance with the applicant ’s instructions , she had lodged the appeal on points of law without specifying its scope . In doing so , she had relied on section CARDINAL of LAW . She requested that the ORG ’s ruling be quashed .

On DATE these submissions were returned back to the applicant ’s lawyer with a handwritten note by a judge stating : “ in accordance with section CARDINAL(CARDINAL ) of LAW [ the complaint ] is to be considered as not submitted and to be returned ” .

It appears that the applicant attempted to lodge another appeal on points of law , which was received at ORG on DATE . No further information has been submitted to the ORG in this regard .

The relevant parts of LAW ( NORP procesa likums ) , which took effect on DATE , have been summarised in the case of PERSON v. GPE ( no . CARDINAL , § § DATE , DATE ) .

In accordance with sections CARDINAL(CARDINAL ) and CARDINAL of LAW , an appellate court judgment is to be sent to parties within DATE of its delivery , unless it has been served on them in person .

Section CARDINAL(CARDINAL ) provides , inter alia , that an ancillary complaint lodged against a final decision must be considered as not submitted and returned .

Section CARDINAL(CARDINAL)(CARDINAL ) provides that an appeal on points of law must contain the extent to which a judgment is appealed .

Section CARDINAL(CARDINAL)(CARDINAL ) provides that an appeal on points of law must indicate what provisions of substantive or procedural law a court has breached and how this breach is manifested .

Section CARDINAL(CARDINAL ) provides that where an appeal on points of law does not comply with the criteria laid down in DATE , CARDINAL , DATE , DATE or CARDINAL of section CARDINAL ) a senator must take a decision not to proceed with it ( atstāt bez virzības ) . In the decision a time - limit for rectifying the deficiencies shall be set .

Section CARDINAL provides that CARDINAL senators shall refuse to open cassation proceedings ( atteikties ierosināt kasācijas tiesvedību ) if an appeal on points of law does not comply with the criteria laid down in sections CARDINAL , CARDINAL , CARDINAL , CARDINAL and CARDINAL .


Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant , Ms Ayshat PERSON , is a NORP national who was born in DATE and lives in the town of GPE in the Kabardino - Balkaruya Republic . She is represented before the Court by Mr I. GPE , a lawyer practising in GPE . The respondent Government were represented by PERSON , former Representative of GPE at ORG .

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

The applicant was the owner of a flat in a block of flats in FAC in the town of GPE in the Kabardino - Balkaruya Republic . She lived in the flat with her family .

In DATE some of the residential quarters of Tyrnyauz were flooded as a result of a powerful mudslide . Many buildings were destroyed or damaged and many people were killed or injured . The mudslide also destroyed a bridge in the vicinity of the applicant ’s block of flats .

On DATE ORG decided to build a new bridge . The municipal land on which the applicant ’s block of flats was situated was allocated for that purpose . ORG sued the residents for eviction .

On DATE ORG of the Kabardino - Balkariya Republic ordered that the applicant ’s family be evicted from their flat and that ORG provide them with other comfortable housing of an equal value . Eviction of other CARDINAL families from the same block of flats or from the neighbouring blocks of flats was ordered by the same judgment . On DATE the court issued a writ of execution .

The applicant appealed .

On DATE the bailiffs’ service opened enforcement proceedings . On DATE the bailiffs forcibly evicted the applicant ’s family from the flat . No substitute housing was provided .

On DATE the applicant ’s block of flats was demolished .

On DATE ORG of the Kabardino - Balkariya Republic quashed the judgment of DATE . It held that ORG had unlawfully joined the proceedings concerning CARDINAL families and had ordered their eviction without taking into account particular circumstances of each family , that it had not informed some of the defendants about the date of the hearing , that the defendants had not been offered a choice between monetary compensation and substitute housing . It further held that ORG should have identified a specific flat for the applicant ’s family and that the eviction should have been made conditional on making that flat available or on payment of monetary compensation .

The case was remitted before ORG for a new examination .

On DATE the applicant lodged a counterclaim for damages . She submitted that the eviction of her family and the demolition of her flat had been unlawful for the following reasons . Firstly , at the time of the eviction the eviction order had not yet been enforceable because an appeal had been pending against the judgment of CARDINAL DATE . Secondly , no substitute housing had been provided . She argued that she had been unlawfully deprived of her home and property and claimed MONEY ( RUB ) in respect of pecuniary damage representing the cost of a flat of an equal value . She also claimed RUB CARDINAL in respect of non - pecuniary damage against ORG and the bailiffs’ service .

On DATE the ORG of the Kabardino - Balkariya Republic allowed the applicant ’s claims in part . The court found that the expropriation of the applicant ’s flat and the eviction of her family had been necessary for the purpose of bridge construction . However , the eviction had been carried out unlawfully as the applicant had not received any prior compensation or been offered substitute housing . It ordered that the construction company that had demolished the applicant ’s block of flats pay her RUB CARDINAL in respect of pecuniary damage . It further rejected the applicant ’s claim in respect of non - pecuniary damage , finding that there had been no evidence of unlawfulness in the acts of ORG and the bailiffs’ service . The fault belonged to ORG against which no claim for non - pecuniary damage had been lodged .

The applicant did not appeal against that judgment and it became final and enforceable DATE .

The construction company lodged an application for supervisory review of the judgment which was examined on DATE by the ORG of ORG of the Kabardino - Balkariya Republic . The ORG amended the operative part of the judgment of DATE , ordering that the award in respect of pecuniary damage should be payable by ORG .

The applicant received the award on DATE .

No one shall be deprived of his property except on the basis of a court order . Expropriation of property in the public interest shall be conditional on prior and full compensation ( LAW ) .

A judgment of the first - instance court becomes final and enforceable after the expiry of the time - limit for lodging an appeal or after it has been upheld by the appeal court ( Articles CARDINAL § CARDINAL and CARDINAL of LAW of DATE ) .

In exceptional cases , where a delay in enforcement can cause considerable damage or impossibility of enforcement , a court may order , at the plaintiff ’s request , immediate enforcement of the judgment . Such an order shall be made in the operative part of the judgment or in a separate decision which is amenable to appeal . The decision shall be taken after a hearing and the parties shall be appraised of its date ( ORG and CARDINAL ) .

A writ of execution is issued by a court after the judgment has become final or an order for immediate enforcement has been made ( LAW ) .