Preliminary objection joined to merits (Art. 6-1 inapplicable);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

The applicants , Mr PERSON and FAC are a married couple residing in GPE .

By way of an administrative decision of CARDINAL DATE a property owned by the second applicant ’s father PERSON and located in NORP was expropriated pursuant to provisions of the DATE ORG . It was stated in the decision that GPE was the owner of this property .

On DATE this decision was upheld by the Minister of Agriculture , who considered that the factual findings of the expropriation commission as to the area of the property concerned could not be called into question given that the commission was composed not only of agents of the administration , but also of political representatives .

By an on - site protocol of CARDINAL DATE a commission , established under the provisions of the DATE ORG , inspected the property and found that land situated in NORP owned by the second applicant ’s father PERSON consisted of QUANTITY of land , out of which QUANTITY constituted arable land .

On DATE the applicants lodged with ORG an application to have the expropriation decision declared null and void under LAW or amended under LAW .

On DATE the applicants complained to ORG about the failure of the administration to rule on their DATE application .

On DATE the applicants submitted further pleadings to that court , indicating that certain relevant documents had been found in ORG which showed that the on - site commission had wrongly calculated the surface of the property concerned in DATE . The area of the property was in fact , in the light of the newly found documents , QUANTITY of arable land . Thus , the property should not have been subject to expropriation within the framework of the agrarian reform law as it did not attain the minimum threshold of QUANTITY of arable land . The applicants further referred to an official protocol drawn up in DATE , which confirmed this finding .

By a judgment of CARDINAL DATE ORG ordered the Minister of Agriculture to issue a decision concerning the applicants’ application of DATE within DATE from the date of the judgment .

By a letter of CARDINAL DATE the applicants informed ORG that the property in question had had a surface of QUANTITY , as shown by the protocol of CARDINAL DATE and by another document drawn up by land surveyor ORG in DATE .

On DATE ORG obliged ORG to take further evidence in order to establish the legal status of the property concerned under the provisions of civil law , i.e. to determine who had been the owner of the property concerned at the time of expropriation .

The applicants objected thereto by a letter of CARDINAL DATE , pointing out that the question who had been the owner of the property in DATE in terms of substantive civil law was entirely extraneous to the administrative case which was pending before ORG . Any issues concerning the assessment of the link between the former owner of the property and the applicants from the angle of substantive civil law on inheritance was irrelevant for the administrative case , which concerned only the examination of the lawfulness of the administrative decision on expropriation . They insisted that a decision on their restitution claim be given in accordance with the judgment of ORG of DATE , which had set a DATE time limit for the authorities to do so .

They reiterated their submissions in a letter of CARDINAL DATE . On DATE the applicants again requested that a decision be given . On DATE the applicants reiterated their request that the decision on the merits of the case be given and complained that the proceedings had remained pending for a long time . They referred again to ORG judgment of DATE .

By a decision of DATE the ORG stayed the proceedings on the ground that a certain GPE had submitted a request to quash the expropriation decision . She had argued that the second applicant ’s father PERSON was not its owner , but only its lessee . She contended that it was her father GPE , who owned the property concerned . However , she had failed to submit conclusive documents to prove it . The proceedings were therefore stayed pursuant to LAW until relevant documents had been submitted .

The applicants appealed against the decision to stay the proceedings . They reiterated their request that a decision be given and emphasised that they had remained pending since DATE . They argued that the decision to stay the proceedings had been taken in disregard of the essential substantive law elements of the case . The documents required by ORG and relating to the civil law status of the property at the time of expropriation were entirely irrelevant to the administrative case .

By a letter of CARDINAL DATE the applicants reiterated their arguments . The proceedings remain stayed . The applicants submit that all their efforts to have them resumed have been unsuccessful .

NORP Under NORP law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected within the framework of the agrarian reform . Therefore no specific legal framework is available , enacted with the purpose of mitigating the effects of certain infringements of property rights .

NORP However , it is open to persons whose property was expropriated or their legal successors , to institute , under LAW , administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law . In particular , a final administrative decision can be declared null and void at any time if it was issued without a legal basis , or in flagrant violation of law .

Decisions flawed as a result of lesser procedural shortcomings , listed under items CARDINAL , CARDINAL , DATE and CARDINAL of Article CARDINAL , such as those given by an authority which lacked competence to issue a decision in a given case , or in a case which had already been decided or addressed to a person not being a party to the proceedings , can only be declared null and void if DATE have elapsed from the date on which such decisions were given . In respect of such decisions it is only possible to declare that they were issued contrary to law ; the decisions themselves remain valid .

If the flaw that taints the challenged decision is of a substantive character , i.e. if the decision had been given without a legal basis or in flagrant violation of law , the administrative authority shall declare it null and void .

A decision to declare the old decision null and void , or a refusal to do so , may ultimately be appealed to ORG .

DATE LAW provides that “ the agrarian reform in GPE is a ORG and economic imperative and shall be realised ... pursuant to principles set forth in the manifesto of ORG ” .

LAW , in so far as relevant , reads :

“ The following agricultural estates shall be designated for the purposes of the agrarian reform : ...

e ) being a property or a co - property of natural persons or legal entities , if the entire area of the estate exceeds either QUANTITY in total , or QUANTITY of arable land ...

All real estate , referred to in items ... , e ) above shall , with no delay and without compensation , be taken over by the ORG . “

Under LAW , the administration is obliged to deal with cases without undue delay . Simple cases should be dealt without any delay . In cases requiring some enquiry a first - instance decision should be given in DATE . In particularly complex cases decisions shall be taken within DATE .

If the decision has not been given within those time limits , a complaint under LAW may be filed with the higher - instance authority , which shall fix an additional time limit , establish the persons responsible for the failure to deal with the case within the time - limits , and , if need be , arrange for preventive measures to be adopted in order to prevent further delays .

NORP In DATE ORG was adopted , which entered into force on DATE . It created further procedures in which a complaint about the administration ’s failure to act could be raised .

Under LAW , that court is competent to examine complaints about the administration ’s inactivity in administrative proceedings in cases referred to in LAW .

Pursuant to LAW , if a complaint about the inactivity of an administrative authority is well - founded , the court shall oblige the competent authority to give a decision , or to carry out the factual act , or to confer or acknowledge an individual entitlement , right or obligation .

On DATE the Law on Administrative Courts came into force , which replaced LAW and established a CARDINAL - tiered system of appeals against administrative decisions to administrative courts .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

David Scicluna;David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Zdravka Kalaydjieva

The first applicant , PERSON , is the mother of CARDINAL minor children , the second and third applicants , PERSON and GPE

Following reports to ORG ( which forms part of ORG and has as its aim the enhancement of the lives of people in need , through the provision and availability of professional care and support ) , an investigation by specialised social workers was undertaken in respect of the family . Meetings took place between the parents , social workers , professionals ( doctors , police and lawyers ) and the directors of the relevant agency . Finally , on the recommendation of ORG , on DATE the Social Policy Minister issued a care order under LAW ( “ the LAW ” ) placing the CARDINAL minors , GPE and GPE , in an institution run by nuns . By a decision of CARDINAL DATE , after having heard the first applicant ’s objections , ORG confirmed the care order . It further solicited the social services to complete the fostering assessment of the maternal grandparents to enable the children to reside with them if it was found to be in their best interest .

At the same time , criminal proceedings were brought against the first applicant and her partner , X. , who is the alleged father of the minor children .

By a judgment of DATE ORG as a court of criminal judicature found X. guilty of cruelty towards the CARDINAL children and failure to protect them , causing them slight injuries , and of excessive correction of the CARDINAL minors ( DATE ) . X. was sentenced to DATE imprisonment . His appeal having been withdrawn , the judgment became final .

By the same judgment , PERSON was found guilty of cruelty towards the CARDINAL children and failure to protect them , and excessive correction of the CARDINAL minors ( DATE ) . She was sentenced to DATE imprisonment , suspended for DATE . PERSON appealed .

By a judgment of CARDINAL DATE ORG upheld the first - instance judgment . Having assessed the evidence the court found that PERSON had been present when X. repeatedly beat the children , aged DATE , and , possibly because of his threats , had not had the courage to report him or ask the relevant authorities for assistance , with the result that the children were severely bruised . They also suffered from bald patches and lice - infested hair , symptoms of serious neglect on the part of the mother . She had also repeatedly behaved roughly towards her children . She was therefore guilty of the first charge by acts of commission and omission ( in so far as she had not taken the requisite steps to protect her children ) . The court also confirmed her guilt regarding the charge of excessive correction of the CARDINAL minors . Considering it appropriate , in the event that the children were ever returned to her , the court confirmed the sentence handed down by the first - instance court .

NORP Under NORP law the provisions of LAW were applicable to a conviction for an offence under LAW ( see “ Relevant domestic law ” below ) .

At the start of the criminal proceedings the relationship between GPE and X. ended . While the care order was in place , PERSON was given supervised contact with her children for TIME a week and eventually TIME a week . Later , in DATE , the children spent DATE and public holidays with her .

Attempts to persuade the Minister to revoke the care order failed .

On DATE the first applicant , in her own name and on behalf of her children , instituted constitutional redress proceedings . She relied on Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the LAW , particularly on the basis that there existed no remedy under the LAW providing for re - examination by an independent and impartial tribunal of an issued care order , since such a revision depended solely on the discretion of the Minister who had issued the order . The circumstances having changed , she requested the court to revoke the order and grant any other necessary remedy .

On DATE , ORG ( FAC ) rejected a plea of non - exhaustion of ordinary remedies by the ORG ( namely , in reference to that provided in ORG CARDINAL ) since no proof had been submitted in corroboration at that early stage of the proceedings . It therefore decided to examine the case .

By a judgment of DATE ORG ( FAC ) held that PERSON could only act in her own name , and did not have a right to act on behalf of her minor children . Indeed , according to LAW , when a care order was issued the relevant parent was deprived of the right to represent his or her children or to sue on their behalf , and care and custody of the children concerned were entrusted to the Minister . It noted that in the proceedings nobody had requested the court to provide the children with a representative ad litem ( LAW ) .

In respect of PERSON , the court found a violation of Articles CARDINAL and CARDINAL of the Convention in that the law did not provide access to court to challenge the care order , but no violation of Article CARDINAL . It observed that the care order issued was a permanent one ( valid until the minors reached DATE ) . The Act provided for an objection to the care order to be lodged within DATE of the order being issued , and that such an objection would be dealt with by ORG . However , the applicant complained that it was not possible for an individual to request a revision of the order subsequently . The court considered that termination of custody fell under the concept of civil rights , particularly because a care order did not imply the end of natural ties between children and their parents . Consequently , a parent ’s right of access to court and to the possibility to regain custody of his or her children was a living right . The court considered that the remedy relied on by the ORG , namely judicial review proceedings , would not be appropriate in the circumstances . Judicial review was concerned with assessing the decision - making process , but not the merits of a decision itself , as the court would not act as a court of appeal from the body involved . In the event that an administrative decision was quashed the court could only remit the case to the authority for reconsideration , at most requesting the authority to bear in mind the reasons for the quashing . Moreover , ORG ( LAW ) was simply an advisory board subject to the authority and discretion of the Minister . Therefore , it could not be considered an impartial and independent tribunal . It followed , from an analysis of LANGUAGE law , that there was no remedy granting access to court for the applicant or anyone in her position seeking re - examination of the merits of a care order . This constituted a violation of LAW , which absorbed LAW .

Under LAW it held that the care order had been in accordance with the law and pursued a legitimate aim . While bearing in mind that PERSON had made improvements and was changing her life , it considered that the grounds on which the care order was based had not disappeared and in view of the frequent reviews of the situation by the social services it could not be said that her rights under LAW had been breached .

The court rejected the claim for the revocation of the care order but , in accordance with LAW , it ordered that a copy of the judgment be sent to the Speaker of ORG for consideration by parliament in respect of a possible amendment to the law , as the only remedy that could provide redress to the applicant was a legislative change providing for access to court in such a situation .

Both parties appealed .

By a judgment of CARDINAL DATE ORG observed that on DATE when the care order was issued PERSON had lost care and custody of her children in favour of the Minister , and therefore it confirmed that in the absence of an appointment by the court , PERSON could not represent her children in the proceedings . Moreover , following her conviction , PERSON had lost all authority and rights over her children in view of the automatic application of LAW and therefore , in the absence of any request to the court for representation of the minors , she could not act on their behalf according to LANGUAGE law ( see “ Relevant domestic law ” below ) , notwithstanding any different procedure which might be applicable before ORG . In this light , in relation to the merits of the complaints under LAW , the court considered that in the present case , PERSON having lost all her parental rights as a result of her conviction , could not exercise any right in respect of which she was deprived of access to court . It followed therefore that no violation of DATE could ensue . The situation would have been different had the applicant been affected only by the care order ( which solely took away the rights relating to care and custody ) and not the subsequent conviction . Neither could it be said that any rights under LAW came into play , since the applicant had regular contact with her children . However , the first - instance judgment in relation to whether the LAW contravened the applicant ’s LAW had become final , as no appeal had been lodged in this connection .

The relevant articles of ORG , LAW of LAW , read as follows :

Article CARDINAL

“ ( CARDINAL ) If , on representations made to him in writing by the Director of the ORG responsible for social welfare and after giving the parents and the guardian , if any , of the child or young person an opportunity to express their views , and after hearing any other person he may deem likely to assist him , the Minister is satisfied that that child or young person is in need of care , protection or control , it shall be the duty of the Minister by an order in writing under his hand to take such child or young person into his care .

( CARDINAL ) A copy of any order made by the Minister under subarticle ( CARDINAL ) shall forthwith be sent by registered letter to the person exercising paternal authority over the child or young person , or to his guardian , if any , who shall be asked to state to the Director of the ORG responsible for social welfare within DATE from the date of receipt of the said letter , whether he objects to the said order .

( CARDINAL ) If the person to whom the registered letter is sent under subarticle ( CARDINAL ) shall , within the time therein prescribed , signify , even verbally , his objection to the order , the Director of the ORG responsible for social welfare shall , not DATE from the date on which he shall have become aware of the objection , refer the case to ORG in such manner as shall be prescribed by regulations made under LAW .

( CARDINAL ) Where a case is referred to ORG under subarticle ( CARDINAL ) , the said court shall , in such manner and within such time as shall be prescribed by regulations made under LAW , review the whole case and decide whether the child or young person is in need of care , protection or control and shall accordingly confirm or revoke the order made under subarticle ( CARDINAL ) .

( CARDINAL ) An order made under subarticle ( CARDINAL ) shall , unless it has ceased to have effect earlier , cease to have effect on the date on which the child or young person in respect of whom the order is made attains DATE . ”

Article CARDINAL

“ The Minister shall , with respect to any child or young person committed to his care by an order made under LAW or taken into his care by an order made under article PERSON ) , under article CARDINAL or under article CARDINAL(CARDINAL ) , have the same powers and duties with regard to his care and custody as the parents or guardian of such child or young person would , but for the order , have , and the Minister may , subject to any regulations made in pursuance of LAW , restrict the liberty of such child or young person to such extent as the Minister may consider appropriate ( ... ) ”

Article CARDINAL

“ Where a child or young person is in the care of the Minister in pursuance of this LAW , it shall be the duty of the Minister to exercise his powers with respect to the care and custody of such child or young person so as to further his best interests and to afford him an opportunity for the proper development of his character and abilities ( ... ) ”

NORP The relevant articles of LAW , LAW , in so far as relevant , read as follows :

Article CARDINAL

“ ( CARDINAL ) Whosoever , having the responsibility of any child under DATE , by means of persistent acts of commission or omission ill - treats the child or causes or allows the ill - treatment by similar means of the child shall , unless the fact constitutes a more serious offence under any other provision of this Code , be liable on conviction to imprisonment for a term not exceeding two years . ( ... )

( CARDINAL ) The provisions of article CARDINAL(CARDINAL ) shall also apply in the case of an offence under this article , when the offence is committed by any ascendant or tutor . ”

Article CARDINAL )

“ ( CARDINAL ) A conviction under this article shall entail the forfeiture of every authority and right granted to the offender over the person or property of the husband or wife or of the descendant to whose prejudice the offence shall have been committed , and , in the case of the tutor , his removal from the tutorship and his perpetual disability from holding the office of tutor . ”

LAW

“ ( CARDINAL ) Without prejudice to the provisions of any other law imposing or authorising the suspension or cancellation of , or disqualification from holding or obtaining , any warrant , licence , permit or other authority held from the ORG or any other public authority , where any person is convicted , whether as a principal or an accomplice , of a criminal offence which has been committed -

( a ) in or in connection with the exercise of any profession , art , trade , calling or other occupation for which a warrant , licence , permit or authority has been or may be issued to him by the ORG or any other public authority ; or

( b ) in the use or by means of any instrument , vehicle , substance or other thing whatsoever for the carrying , keeping or using of which a licence , permit or authority has been or may be issued to him , the court may , in addition to sentencing the person convicted as aforesaid to any punishment provided by law for the offence , order such person to be disqualified from holding or obtaining , for such time as the court deems fit , such warrant , licence , permit or authority .

Provided that , where an application under this subarticle is refused , a further application thereunder shall not be entertained if made within DATE after the date of the refusal . ”

LAW

“ ( CARDINAL ) A suspended sentence which has not taken effect shall for all intents and purposes of law be deemed , except as provided in subarticle ( CARDINAL ) , to be a sentence awarding punishment and nothing in this article shall be deemed to effect -

( a ) the applicability of any other punishment which may be awarded , or any suspension , cancellation , disqualification , forfeiture , loss or removal which may be ordered , together with the punishment of imprisonment so suspended ; ”

Article CARDINAL of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) In the cases referred to in this sub - title , the curator ad litem may be appointed by the same court before which the action has been brought , or is about to be brought , upon the application of any person interested .

( CARDINAL ) The application for the appointment of a curator to represent a minor who desires to sue , may be made by any person . ”


Violation of Article 6 - Right to a fair trial

David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE .

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

On DATE the applicant lodged with the Mayor of PERSON ( Urząd Miasta ) an application to transform his right of perpetual use ( prawo użytkowania wieczystego ) of a piece of real property into a right of ownership . He relied on the provisions of DATE PERSON on Transforming Perpetual Use Vested in Individuals into Ownership ( ustawa o przekształceniu prawa użytkowania wieczystego przysługującego osobom fizycznym w prawo własności ) ( “ the CARDINAL LAW ” ) .

On DATE the Mayor informed the applicant that , due to a judgment of ORG ( PERSON ) which found some provisions of LAW to be incompatible with the LAW , he could not give a decision in the case within the statutory time - limit of DATE , and set a new time - limit of DATE .

On DATE the Mayor informed the applicant that , due to some changes to LAW , a valuation report concerning the property ( operat szacunkowy ) had to be drawn up and a new time - limit set , DATE .

On DATE the applicant complained to ORG ( PERSON ) about inactivity on the part of the administrative authority .

On DATE ORG of Appeal found the applicant 's complaint well - founded and ordered the Mayor to give a decision on the merits within DATE of the delivery of its decision .

The Mayor did not give the decision within the prescribed timelimit . Instead , on DATE , the Mayor issued a procedural decision ( postanowienie ) setting another time - limit , DATE , and informing the applicant that the decision could not be appealed against and that it could be challenged only when a decision on the merits had been given .

On DATE the applicant again asked the Mayor to give a decision in his case .

On DATE the Mayor informed the applicant that , due to further changes to LAW , by a decision of CARDINAL DATE the proceedings for transforming his right had been discontinued and that proceedings for ex lege acquisition of the property in question had been instituted .

On DATE the Mayor again informed the applicant that the matter could not be resolved within the statutory time - limit and set a new time - limit of DATE .

On DATE the applicant again complained to ORG about the inactivity of the administrative authority .

On DATE ORG of Appeal found the complaint justified and ordered the Mayor to give a decision in that connection within DATE of the delivery of its decision .

On DATE the Mayor gave a decision on the merits and refused to acknowledge an ex lege acquisition of the property by the applicant .

On DATE the applicant appealed .

On DATE ORG of Appeal quashed the challenged decision and remitted the case .

On DATE the Mayor gave a further decision and again refused to acknowledge an ex lege acquisition of the property .

On an unspecified date the applicant appealed .

On DATE ORG of Appeal again quashed the challenged decision and remitted the case .

On DATE the Mayor gave a decision , again a refusal .

NORP The applicant did not appeal against that decision .

The relevant domestic law concerning inactivity on the part of administrative authorities is set out in the ORG 's judgment in the case of PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE .


Violation of P1-1;No separate issue under Art.14+P1-1;No separate issue under Art. 6-1;No violation of Art. 13;No violation of Art. 8;Costs and expenses partial award - Convention and domestic proceedings;Just satisfaction reserved

David Thór Björgvinsson;Luzius Wildhaber;Nicolas Bratza

The applicants were born in DATE and DATE respectively and live in NORP - sous - Bois .

In DATE PERSON began her first pregnancy . The second ultrasound scan , carried out in DATE of pregnancy , revealed an anomaly in the development of the foetus .

On DATE an amniocentesis was carried out at ORG hospital , run by ORG ( NORP ) . The amniotic fluid sample was sent for analysis to the establishment ’s cytogenetics laboratory ( headed by Professor PERSON ) with a request for karyotype and digestive enzyme analysis . In DATE T. informed the applicants that the amniocentesis showed the foetus had “ a male chromosomal pattern with no anomaly detected ” .

R. was born on DATE . Very soon , multiple anomalies were observed , particularly defective psychomotor development . The examinations carried out led to the conclusion that there was a congenital cardiopathy due to a “ chromosomal anomaly ” .

When informed of this PERSON admitted that his service had made the wrong diagnosis , the anomaly having already been entirely detectable at the time of the amniocentesis . He stated : “ Concerning the child PERSON , ... we regret to have to say that there was indeed an asymmetry between the foetus ’s CARDINAL copies of chromosome CARDINAL ; that anomaly or peculiarity escaped our attention ” .

According to the medical reports , NORP presents cerebral malformations causing grave disorders , severe impairment and permanent total invalidity , together with arrested weight gain . This means that it is necessary to make material arrangements for his everyday care , supervision and education , including ongoing specialist and non - specialist treatment .

On DATE the applicants sent a claim to ORG - HP seeking compensation for the damage suffered as a result of NORP ’s disability .

In a letter dated DATE ORG replied that it “ [ did ] not intend to deny liability in this case ” but invited the applicants to “ submit an application to ORG which , in its wisdom , will assess the damage for which compensation should be paid ” .

On DATE the applicants submitted to ORG a statement of their claim against ORG , requesting an assessment of the damage suffered .

At the same time the applicants submitted to the urgent applications judge at the same court a request for the appointment of an expert and an interim award .

In a decision of CARDINAL DATE the urgent applications judge of ORG made a first interim award of ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) and appointed an expert . He made the following points , among other observations :

“ [ ORG - HP ] does not deny liability for the failure to diagnose the chromosomal anomaly which the boy NORP is suffering from ; ... having regard to the non - pecuniary damage , the disruption in the conditions of their lives and the special burdens arising for PERSON and PERSON from their child ’s infirmity , ORG liability towards them in the sum of MONEY may be considered , at the current stage of the investigation , not seriously open to challenge ” .

The expert filed his report on DATE and confirmed the seriousness of NORP ’s state of health .

On DATE , in a supplementary memorial on the merits , the applicants requested ORG to assess the amount of the compensation which ORG should be required to pay .

AP - HP ’s memorial in reply was registered on DATE . The applicants then filed a rejoinder and further documents concerning the modifications to their home and the equipment rendered necessary by NORP ’s state of health .

In addition , the applicants again asked the urgent applications judge to make an interim award . In a decision of CARDINAL DATE the urgent applications judge of ORG made an additional interim award of ORG CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) to the applicants “ in view of the severity of the disorders from which the boy NORP continues to suffer and the high costs of bringing him up and caring for him since DATE ” .

After being prompted several times , verbally and in writing , by the applicants , ORG informed them that the case had been set down for hearing on DATE .

On DATE Law no . DATE of DATE was published in ORG of GPE . Section CARDINAL of that PERSON , being applicable to pending proceedings , affected those brought by the applicants .

In a letter of DATE ORG informed the applicants that the hearing had been put back to a later date and that the case was likely to be decided on the basis of a rule over which the court did not have discretion , since it applied to their claim by virtue of LAW .

In a judgment of DATE ORG , acting on a proposal made by the Government Commissioner , deferred its decision and submitted to the PERSON d’Etat a request for an opinion on interpretation of the provisions of LAW and their compatibility with international conventions .

On DATE the ORG d’Etat gave an opinion in the context of the litigation in progress ( avis contentieux ) which is reproduced below ( see paragraph CARDINAL ) .

On the basis of that opinion , ORG ruled on the merits of the case on DATE . It began with the following observations :

“ Liability

The provisions of LAW , in the absence of provisions therein deferring their entry into force , are applicable under the conditions of ordinary law following publication of that PERSON in ORG of GPE . Since the rules the PERSON lays down were framed by ORG on general - interest grounds relating to ethical considerations , the proper organisation of the health service and the equitable treatment of all disabled persons , they are not incompatible with the requirements of LAW ] , with those of ORG , DATE , DATE and CARDINAL of [ the Convention ] or with those of LAW No . CARDINAL [ to the Convention ] . The general - interest grounds which ORG took into consideration when framing the rules set out in the first CARDINAL paragraphs of CARDINAL justify their application to situations which arose prior to the commencement of pending proceedings . It follows that those provisions are applicable to the present action , brought on DATE ;

The administrative courts do not have jurisdiction to rule on the constitutionality of legislation ; [ the applicants’ ] request that this court review the constitutionality of LAW must therefore be refused ;

It appears from the investigation that in DATE of PERSON pregnancy , after an ultrasound scan had shown a manifest problem affecting the growth of the foetus , she and PERSON were advised to consider the option of an abortion if karyotype analysis after an amniocentesis revealed a chromosomal abnormality . Mr and PERSON then decided to have that test performed at FAC . They were informed by the hospital on DATE that no anomaly of the foetus ’s male chromosomal pattern had been detected . However , very soon after the baby ’s birth on DATE magnetic resonance imaging revealed a serious malformation of the brain due to a karyotypic anomaly ;

The report of the expert appointed by the court states that this anomaly was entirely detectable ; failure to detect it therefore constituted gross negligence on ORG part which deprived PERSON and PERSON of the possibility of seeking an abortion on therapeutic grounds and entitles them to compensation under LAW ” .

The court then assessed the damage sustained by the applicants as follows :

“ ... firstly , ... the amounts requested in respect of non - specialist care , the specific costs not borne by social security , the costs of building a house suited to the child ’s needs with a number of modifications to the home and the purchase of a specially adapted vehicle relate to special burdens arising throughout the life of the child from his disability and can not therefore be sums for which [ AP - HP ] is liable ;

... secondly , ... PERSON and PERSON are suffering non - pecuniary damage and major disruption in their lives , particularly their work , regard being had to the profound and lasting change to their lives brought about by the birth of a seriously disabled child ; ...

... lastly ... , although PERSON and PERSON submitted that they could no longer holiday in a property they had purchased in GPE , they are not deprived of the right to use that property ; consequently their claim for compensation for loss of enjoyment of real property must be rejected ; ... ”

The court concluded by ordering ORG - HP to pay the applicants the sum of ORG CARDINAL,CARDINAL , less the amount of the interim awards , interest being payable on the resulting sum at the statutory rate from the date of receipt of the claim on DATE , the interest due being capitalised on DATE and subsequently on each anniversary from DATE . AP - HP was also ordered to pay the applicants the sum of ORG CARDINAL in respect of costs not included in the expenses and to bear the cost of the expert opinion ordered by the president of the court .

On DATE the applicants appealed against the judgment . Their appeal is currently pending before ORG .

NORP Before enactment of GPE DATE the legal position was established by the relevant case - law .

An action for damages brought by the parents of a child born disabled and by the child itself may come within the jurisdiction of either the administrative courts or the ordinary courts , depending on the identity of the defendant . If the defendant is a private doctor or a private medical laboratory , the dispute is referred to the ordinary courts . Where , on the other hand , as in the instant case , a public hospital service is involved , the dispute falls within the jurisdiction of the administrative courts .

The PERSON d’Etat gave judgment on DATE ( CARDINAL , Sect . , DATE , ORG hospitalier de Nice v. ORG . p.CARDINAL ) . PERSON PERSON , then aged DATE , had undergone an amniocentesis at her own request in order to verify the health of the foetus she was carrying . Although the result of that examination revealed no anomaly , she gave birth to a child suffering from trisomy CARDINAL , a condition detectable through the chromosome test carried out . The PERSON d’Etat held in the first place that the hospital which had carried out the examination had been guilty of negligence , since PERSON had not been informed that the results of the amniocentesis might be subject to a higher margin of error than usual on account of the conditions under which the examination had taken place .

Secondly , a distinction was drawn between the disabled child ’s entitlement to compensation and that of its parents .

With regard to the disabled child ’s right to compensation , the ORG d’Etat ruled : “ In deciding that a direct causal link existed between the negligence of the hospital centre ... and the damage incurred by the child PERSON from the trisomy from which he suffers , when it is not established by the documents in the file submitted to the court which determined the merits that the infirmity from which the child suffers and which is inherent in his genetic make - up was the consequence of an amniocentesis , ORG made an error of law ” .

On the other hand , with regard to the GPE right to compensation , the ORG d’Etat noted : “ By asking for an amniocentesis , PERSON had clearly indicated that she wished to avoid the risk of a genetic accident to the child she had conceived , whose probability , given her age at the time , was relatively high . ” It went on to say that in those conditions the hospital ’s negligence had “ wrongly led PERSON and PERSON to the certainty that the child conceived was not trisomic and that PERSON pregnancy could be taken normally to term ” and that “ this negligence , as a result of which PERSON had no reason to ask for a second amniocentesis with a view to abortion on therapeutic grounds under LAW of LAW , [ should ] be regarded as the direct cause of the prejudice caused to PERSON and PERSON by their child ’s infirmity ” .

With regard to compensation , the ORG d’Etat took into account , under the head of pecuniary damage , the “ special burdens , particularly in terms of specialist treatment and education ” made necessary by the child ’s infirmity , and awarded the parents an annuity to be paid throughout the child ’s life . It also ordered the hospital to pay compensation for their nonpecuniary damage and the disruption to their lives .

Thus the ORG d’Etat did not accept that a disabled child was entitled to compensation on the sole ground that the disability had not been detected during the mother ’s pregnancy . It did accept on the other hand that the parents of the child born with a disability were entitled to compensation and made an award not only in respect of their non - pecuniary damage but also in respect of the prejudice caused by the disruption to their lives and of pecuniary damage , specifying that the latter included the special burdens which would arise for the parents from their child ’s infirmity ( expenditure linked to specialist treatment and education , assistance from a helper , removal to a suitable home or conversion of their present home , etc . ) .

The judgment did not attract particular comment and led to a line of case - law followed thereafter by the administrative courts .

The case - law of the ordinary courts was laid down by ORG on DATE ( PERSON , Ass . PERSON . , CARDINAL DATE , ORG . Ass . PERSON . , no . CARDINAL ) in a judgment which was widely commented on ( the PERSON judgment ) . In the PERSON case a woman had been taken ill with rubella at the start of her pregnancy . Having decided to terminate the pregnancy if the foetus was affected , she took tests to establish whether she was immunised against the disease . Because of negligence on the part of both her doctor and the laboratory , she was wrongly informed that she was immunised . She therefore decided not to terminate the pregnancy and gave birth to a child which suffered from grave disabilities resulting from infection with rubella in the womb . ORG held : “ Since the negligence on the part of the doctor and the laboratory in performing the services for which they had contracted with PERSON prevented her from exercising her choice of terminating her pregnancy in order not to give birth to a disabled child , the child may claim compensation for the damage resulting from that disability and caused by the negligence found . ”

Thus , contrary to the ORG d’Etat , ORG accepted that a child born disabled could himself claim compensation for the prejudice resulting from his disability .

In this case therefore account was taken of the pecuniary and non - pecuniary damage suffered by both the child and the parents , including the special burdens arising from the disability throughout the child ’s life .

It thus appears that in the same circumstances both ORG and the ORG d’Etat base their approach on a system of liability for negligence . However , ORG recognises a direct causal link between the medical negligence and the child ’s disability , and the prejudice resulting from that disability for the child itself . The ORG d’Etat does not recognise that link but considers that the negligence makes the hospital liable vis - à - vis the parents on account of the existence of a direct causal link between that negligence and the damage they have sustained .

Both lines of case - law allow compensation to be paid in respect of the special burdens arising from the disability throughout the child ’s life . However , since the ORG d’Etat considers that damage to have been sustained by the parents , whereas ORG considers that it is sustained by the child , there may be significant differences in the nature and amount of such compensation , depending on whether the case - law of the former or the latter court is being followed .

The judgment of CARDINAL DATE was upheld several times by ORG , which reaffirmed the principle of compensation for the child born disabled , subject to proof , where appropriate , that the medical conditions for a voluntary termination of pregnancy on therapeutic grounds were satisfied ( PERSON . , Ass . plén . , CARDINAL judgments of DATE , PERSON , no . CARDINAL , DATE ; see also PERSON . , Ass . plén . , CARDINAL judgments of DATE , ORG , DATE ) .

The PERSON judgment drew numerous reactions from legal theorists , but also from politicians and from associations of disabled persons and practitioners ( doctors , obstetrical gynaecologists and echographers ) . The last - mentioned group interpreted the judgment as obliging them to provide a guarantee , and the insurance companies raised medical insurance premiums .

Both the ORG d’Etat and ORG took as their starting point a system of liability for negligence . In NORP law , under the general rules on the question , the right to compensation for damage can be upheld only if the conditions for liability are first satisfied . That means that there must be prejudice ( or damage ) , negligence and a causal link between the damage and the negligence .

More particularly , with regard to the liability of a public authority , for compensation to be payable the prejudice , which it is for the victim to prove , must be certain . Loss of opportunity constitutes certain prejudice , provided that the opportunity was a serious one .

In the present case the prejudice resulted from a lack of information , or inadequate or incorrect information , about the results of an examination or analysis . In such a case , before LAW was enacted , negligence falling short of gross negligence was sufficient . As to the relation between cause and effect , a direct causal link was established between the hospital ’s negligence and the GPE prejudice ( see the abovementioned PERSON judgment ) .

Still in the sphere of administrative law , the amount of compensation is governed by the general principle of full compensation for damage ( neither impoverishment nor enrichment of the victim ) . Compensation may take the form of a capital sum or an annuity . According to the principle of the equal validity of claims for all heads of damage , both pecuniary damage and non - pecuniary damage confer entitlement to compensation .

The Law of DATE put an end to the position established by the case - law mentioned above , of both the ORG d’Etat and ORG alike . Its relevant parts provide as follows :

“ I. No one may claim to have suffered damage by the mere fact of his or her birth .

A person born with a disability on account of medical negligence may obtain compensation for damage where the negligent act directly caused the disability or aggravated it or prevented steps from being taken to attenuate it .

Where the liability of a health - care professional or establishment is established vis - à - vis the parents of a child born with a disability not detected during the pregnancy by reason of gross negligence ( faute caractérisée ) , the parents may claim compensation in respect of their damage only . That damage can not include the special burdens arising from the disability throughout the life of the child . Compensation for the latter is a matter for national solidarity .

The provisions of the present sub - section I shall be applicable to proceedings in progress , except for those in which an irrevocable decision has been taken on the principle of compensation .

II . Every disabled person shall be entitled , whatever the cause of his or her disability , to the solidarity of the national community as a whole .

III . ORG for Disabled Persons shall be charged , in a manner laid down by decree , with assessing the material , financial and non - material situation of disabled persons in GPE , and of disabled persons of NORP nationality living outside GPE and receiving assistance by virtue of national solidarity , and with presenting all proposals deemed necessary to ORG , with the aim of ensuring , through an ongoing pluri - DATE programme , that assistance is provided to such persons ... ”

These provisions entered into force “ under the conditions of ordinary law following publication of the PERSON in ORG of the NORP Republic ” ( see paragraph CARDINAL below ) . PERSON no . DATE was published in ORG on DATE and it therefore came into force on DATE .

The PERSON d’Etat observed in particular :

“ ... II . The date of the PERSON ’s entry into force :

The liability criteria set out in the second sub - paragraph of paragraph I of section CARDINAL were enacted in favour of persons born with disabilities resulting from medical negligence whether that negligence directly caused the disability , aggravated it or made it impossible to take steps to attenuate it . They were laid down with sufficient precision to be applied by the relevant courts without the need for further legislation to clarify their scope .

The different liability criteria defined in the third sub - paragraph of paragraph I of section CARDINAL were enacted in favour of the parents of children born with a disability which , on account of gross negligence on the part of a medical practitioner or healthcare establishment , was not detected during pregnancy . They are sufficiently precise to be applied without the need for further legislative provisions or regulations . Admittedly , they bar inclusion of the damage consisting in the special burdens arising from the disability throughout the child ’s life in the damage for which the parents can obtain compensation , and provide that such damage is to be made good through reliance on national solidarity . But the very terms of the PERSON , interpreted with the aid of its drafting history , show that ORG intended to exclude compensation for that head of damage on the ground that , although there was a causal link between negligence and damage , that link was not such as to justify making the person who committed the negligent act liable for the resulting damage . In providing that this type of damage should be made good by reliance on national solidarity , ORG did not therefore make implementation of the rules on liability for negligence which it had introduced subject to the enactment of subsequent legislation laying down the conditions under which national solidarity would be mobilised to assist disabled persons .

It follows that , since the PERSON does not contain provisions for the deferred entry into force of section CARDINAL , and since in addition ORG ’s intention , as revealed by the PERSON ’s drafting history , was to make it applicable immediately , the provisions of LAW came into force under the conditions of ordinary law following the PERSON ’s publication in ORG of GPE .

III . Law no . DATE - CARDINAL ’s compatibility with international law

( CARDINAL ) ...

The object of LAW is to lay down a new system of compensation for the damage suffered by children born with disabilities and by their parents , differing from the system which had emerged from the case - law of the administrative and ordinary courts . The new system provides for compensation , by means of an award to be assessed by the courts alone , for the damage directly caused to the person born disabled on account of medical negligence and the damage directly caused to the parents of the child born with a disability which , on account of gross medical negligence , was not detected during pregnancy . It prevents children born with a disability which , on account of medical negligence , was not detected during pregnancy from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from the disability throughout their lives , whereas such compensation had previously been possible under the case - law of the ordinary courts . It also prevents the parents from obtaining from the person responsible for the negligent act compensation for the damage consisting in the special burdens arising from their child ’s disability throughout its life , whereas such compensation had previously been possible under the case - law of the administrative courts . Lastly , it makes compensation for other heads of damage suffered by the child ’s parents subject to the existence of gross negligence , whereas the case - law of the administrative and ordinary courts had formerly been based on the existence of negligence falling short of gross negligence .

This new system , which was put in place by ORG on general - interest grounds relating to ethical considerations , the proper organisation of the health service and the equitable treatment of all disabled persons , is not incompatible with the requirements of LAW of [ LAW ] , with those of ORG , DATE , DATE and CARDINAL of [ the Convention ] , with those of LAW No . CARDINAL [ to the Convention ] or with those of ORG DATE Covenant on Civil and Political Rights .

( CARDINAL ) The last sub - paragraph of paragraph I of section CARDINAL makes the provisions of paragraph I applicable to pending proceedings “ except for those in which an irrevocable decision has been taken on the principle of compensation ” .

The general - interest grounds taken into account by ORG when it laid down the rules in the first CARDINAL sub - paragraphs of paragraph I show , in relation to the points raised in the request for an opinion , that the intention behind the last sub - paragraph of paragraph I was to apply the new provisions to situations which had arisen previously and to pending proceedings , while rightly reserving final judicial decisions . ”

NORP legislation ( see PERSON no . DATE of DATE on orientation in favour of disabled persons , which set up the basic framework , and later legislation ) provides compensatory advantages to disabled persons based on national solidarity in a number of fields ( such as the right to education for disabled children and adults , technical and human assistance , financial assistance , etc . ) .

In particular , the families of disabled persons are entitled to a special education allowance ( Allocation d’éducation spéciale – “ the ORG ” ) . This is a family benefit paid from the family allowance funds , provided both the child and its parents are resident in GPE . The ORG is granted by decision of ORG of the département in which the claimant lives , after the file has been studied by a multidisciplinary technical team . First the Special Education Board takes formal note of the child ’s disability and assesses it . For entitlement to the ORG , the level of disability found must at least exceed PERCENT . Where the disability exceeds PERCENT , entitlement to the ORG is automatic ; if the disability is assessed at PERCENT , payment of the allowance is not automatic . It is subject to the child ’s need for pedagogical , psychological , medical , paramedical and other forms of assistance .

The ORG is a CARDINAL - level benefit : the basic allowance plus top - up payments . The first level is automatically payable where the conditions mentioned above are satisfied . The basic rate of ORG is ORG DATE ( the figure supplied by the Government on DATE ) . Where the child ’s state of health requires substantial expenditure or the assistance of a third person , this may then confer entitlement to CARDINAL of the CARDINAL levels of ORG top - up payments , which are added to the basic rate .

The first CARDINAL top - up payments depend on the level of expenditure required by the child ’s state of health , the time for which the assistance of a third person is necessary , or a combination of both . The sixth level of top - up payment is for the most severe cases , where the child ’s state of health requires the assistance of a third person all through DATE and the families have to provide constant supervision and treatment .

The PERSON of DATE emerged from a legislative process launched as far back as DATE with the intention of reforming the system of disability compensation in GPE . It was pointed out in particular that following the enactment of LAW it was necessary to legislate again “ to give effective substance to national solidarity ” ( see ORG produced on behalf of the ORG ’s ORG by Senator PERSON , containing CARDINAL proposals for amending the PERSON of DATE , appended to the record of the ORG ’s sitting on DATE , p. CARDINAL ) .

The new law makes a number of substantial changes . In particular , it includes for the first time in NORP law a definition of disability and introduces a new “ compensatory benefit ” to be added to existing forms of assistance .

To that end , the Law of DATE amends ORG . Its relevant provisions are worded as follows :

Title I : General provisions

Section CARDINAL

“ I. ... A disability , within the meaning of the present PERSON , is any limitation of activity or restriction on participation in life in society suffered within his or her environment by any person on account of a substantial , lasting or permanent impairment of CARDINAL or more physical , sensory , mental , cognitive or psychological functions , a multiple disability , or a disabling health disorder . ...

Every disabled person shall be entitled to solidarity from the whole national community , which , by virtue of that obligation , shall guarantee him or her access to the fundamental rights of all citizens , and the full exercise of citizenship .

The ORG shall act as the guarantor of equal treatment for disabled persons throughout the national territory and shall lay down objectives for pluriannual action plans . ...

II . DATE . The first CARDINAL sub - paragraphs of the first paragraph of LAW no . DATE of DATE on ORG rights and the quality of the health service shall become LAW of ORG Family Code .

NORP The provisions of LAW of ORG Family Code , as amended by sub - paragraph CARDINAL of the present paragraph II , shall be applicable to proceedings in progress on the date of the entry into force of the above - mentioned PERSON no . DATE of DATE , except for those in which an irrevocable decision has been taken on the principle of compensation . ” ...

Title III : Compensation and resources

LAW for the consequences of disability

Section CARDINAL

“ ... A disabled person shall be entitled to compensation for the consequences of his or her disability whatever the origin or nature of the impairment , or his or her age or lifestyle .

That compensation shall consist in meeting his or her needs , including nursery care in early childhood , schooling , teaching , education , vocational insertion , adaptations of the home or workplace necessary for the full exercise of citizenship and of personal autonomy , developing or improving the supply of services , in particular to enable those around the disabled person to enjoy respite breaks , developing mutual support groups or places in special establishments , assistance of all kinds to the disabled person or institutions to make it possible to live in an ordinary or adapted environment , or regarding access to the specific procedures and institutions dealing with the disability concerned or the resources and benefits accompanying implementation of the legal protection governed by LAW . The above responses , adapted as required , shall take into account the care or accompaniment necessary for disabled persons unable to express their needs alone .

The forms of compensation required shall be recorded in a statement of needs drawn up in the light of the needs and aspirations of the disabled person as expressed in his or her life plan , written by himself or herself or , failing that , where he or she is unable to express an opinion , with or for him or her by his or her legal representative . ”

Section CARDINAL Compensatory benefit

“ ... I. – Every disabled person stably and regularly resident in metropolitan GPE ... above the age at which entitlement to the disabled child ’s education allowance [ formerly the ORG ] begins ... , whose age is below the cut - off point to be laid down by decree and whose disability matches the criteria to be laid down by decree , taking into account in particular the nature and scale of the forms of compensation required in the light of his or her life plan , shall be entitled to a compensatory benefit which shall take the form of a benefit in kind payable , at the wishes of the beneficiary , either in kind or in money . ...

III . – The element of the benefit mentioned in point CARDINAL of Article L. CARDINAL - CARDINAL [ of ORG ] may also be claimed , under conditions to be laid down by decree , by beneficiaries of the [ disabled child ’s education ] allowance [ formerly the ORG ] , where on account of their child ’s disability they are likely to bear burdens of the type covered by that paragraph . ...

Article L. CARDINAL - CARDINAL [ of ORG ] – Compensatory benefit may be used , under conditions to be laid down by decree , for

NORP burdens arising from the need for human assistance , including , where necessary , the assistance provided by family helpers ;

NORP burdens arising from the need for technical assistance , particularly the costs which remain payable by an insured person where such technical assistance forms one of the categories of benefit contemplated in point CARDINAL of Article CARDINAL of the Social Security Code ;

NORP burdens arising from adaptation of the home or vehicle of the disabled person , and any extra expenditure needed for his or her transport ;

NORP specific or exceptional burdens , such as those arising from the purchase or maintenance of products needed on account of the disability ; ...

... – The element of the benefit mentioned in point CARDINAL of Article L. CARDINAL - CARDINAL shall be granted to any disabled person either where his or her state of health makes necessary the effective assistance of a third person for the essential acts of his or her existence , or requires regular supervision , or where he or she is obliged to incur additional expenditure through carrying on an occupation or holding elective office . ”

The new compensatory benefit is initially payable in full to persons over the age at which entitlement to the ORG ( renamed “ disabled child ’s allowance ” by the new legislation – see section CARDINAL above ) begins . With regard to children , LAW DATE provides :

“ Within DATE from the entry into force of the present Law compensatory benefit shall be extended to disabled children . Within a maximum of DATE those provisions of the present PERSON which distinguish between disabled persons on the ground of age in respect of compensation for the disability and payment of the costs of residence in social and medico - social establishments shall be repealed . ”

The entry into force of the PERSON of DATE is subject to publication of the implementing decrees . Section FAC provides :

“ The regulations implementing the present PERSON shall be published within DATE of its publication , after being referred for opinion to ORG for Disabled Persons . ... ”

According to the information supplied by the ORG , the new compensatory benefit should come into force on DATE . It is expected that it will be payable in full to disabled children by DATE . In the meantime , children will apparently receive only part of the benefit : only the costs of adapting a disabled child ’s home or vehicle , or his or her additional transport costs , can already be financed by the new system .


Violation of Art. 2;Remainder inadmissible;Non-pecuniary damage - award

András Sajó;Françoise Tulkens;Guido Raimondi;Ireneu Cabral Barreto

The applicant was born in DATE and lives in GPE .

On DATE security operations were conducted in a number of prisons in GPE , during which scores of detainees were killed and CARDINAL injured ( for details of these operations , see PERSON GPE , no . CARDINAL/CARDINAL , DATE ; PERSON and GPE v. GPE , no . DATE ; and PERSON and Others v. GPE , no . MONEY , DATE ) .

The operation in GPE prison , where the applicant was serving a prison sentence , started in TIME . As the remaining facts of the case are disputed between the parties , they will be set out separately .

At TIME on DATE a large number of gendarmes went into the prison by the main entrance and started firing without giving any warning . At that moment the applicant was in the corridor just outside his dormitory . He was hit in the leg by a bullet fired by the gendarmes . A doctor friend of the applicant who was a remand prisoner in the same prison provided first aid to the applicant .

When the inmates set up barricades to protect themselves , the gendarmes threw in explosives containing various gases and smoke . They also continued firing . Heavy machinery was used to make large holes in the prison roof , through which the gendarmes poured boiling water and sprayed gases .

At TIME the applicant and the other injured inmates were taken into the courtyard of the prison . There the applicant was handcuffed and dragged through a CARDINAL-metre - long human corridor formed by the gendarmes . While this was being done the gendarmes kept hitting the applicant until he passed out . While the prison governor and other civilian authorities were checking the inmates ' identity documents , a gendarme dragged the applicant into a corner and beat him up there . He was subsequently taken to ORG but was brought back to the prison DATE , before his treatment was complete .

The operation , named “ Return to Life ” , began at TIME on DATE , when members of the security forces went into the prison through the main entrance . At that moment one of the inmates tried to close the door and told fellow inmates that the security forces were there . The inmates then locked and barricaded the second door of the main hall . The gendarmes heard a gunshot coming from the barricaded side where the inmates had gathered .

NORP Despite a number of warnings given by the security forces , the inmates did not lift the barricades . The security forces overcame the inmates ' resistance and went into the cells . CARDINAL inmates who were on hunger strike at the time and a further CARDINAL who had been injured during the operation were taken to ORG . The applicant was wounded by a bullet and was among those who were taken to the hospital .

The operation ended at TIME . Materials used by the inmates as weapons , namely wooden sticks and iron bars , were found in the dormitories and confiscated by the security forces .

The following information is disclosed by the documents submitted by the parties .

According to CARDINAL reports drawn up by a prosecutor and gendarmerie personnel on DATE , the operation in the prison started at CARDINAL a.m. DATE . The reason for the operation was to take a number of prisoners who were on hunger strike to a hospital . When the inmates refused to co - operate , force had to be used to remove them from the prison . According to these reports , a gunshot was heard from behind the barricades where the inmates were standing .

After the operation , a number of inmates who were on hunger strike were taken to hospital . Furthermore , the applicant and CARDINAL other inmates who were injured in the operation were also taken to hospital . A doctor examined the applicant at GPE hospital on DATE , noted a gunshot wound on his left foot and began treating it .

No firearms were found in the prison during the searches carried out in the immediate aftermath of the operation , or during the searches carried out on DATE , DATE , DATE , DATE , DATE and DATE .

In an official complaint on DATE the applicant asked the PERSON prosecutor to prosecute those responsible for the shooting and the ill - treatment . He alleged that the gendarmes had opened fire on the inmates .

On DATE the PERSON prosecutor questioned the applicant about these complaints . The applicant maintained his complaints and informed the prosecutor that on his return from the hospital he had been beaten up again by the gendarmes . He added that according to information he had obtained subsequently , an officer named either “ PERSON ” or “ NORP ” had shot him with his pistol . He also told the prosecutor that bullet marks were still visible in the ceiling of the prison .

An officer by the name of GPE who had taken part in the operation was questioned by the GPE prosecutor on DATE . The officer told the prosecutor that he had heard a shot from the other side of the barricades , but added that he had not used his weapon during the operation . No bullets or spent bullet cases had been found after the operation .

NORP In his indictment of DATE the PERSON prosecutor indicted the applicant and CARDINAL of his fellow inmates . The inmates were accused of obstructing law - enforcement personnel in the execution of their duties and causing criminal damage .

During a search conducted at the prison on DATE a pistol and CARDINAL bullets were found by the prison authorities .

On DATE gendarme officer PERSON , who had been responsible for the security of the applicant 's prison , was questioned by the PERSON prosecutor . Officer PERSON informed the prosecutor that a total of CARDINAL pistols had been found during searches conducted in the prison DATE after the operation . It was possible that the applicant had been shot with CARDINAL of those pistols by the inmates during the operation . Neither officer PERSON nor any of the gendarmes under his command had fired shots during the operation .

CARDINAL more pistols and QUANTITY bullets were found in the prison on DATE .

CARDINAL other gendarmerie personnel questioned by the prosecutor on DATE stated that the gendarmes had not fired shots during the operation . They all considered that the applicant had probably been shot by his fellow inmates with CARDINAL of the pistols found in the prison .

In a statement on DATE the applicant repeated his allegations and gave the prosecutor the names of the CARDINAL friends who had assisted him after he had been shot . In a large number of letters sent DATE and DATE the NORP prosecutor unsuccessfully requested the authorities to locate and question these CARDINAL inmates .

On DATE one of the above - mentioned CARDINAL inmates was found and questioned by a prosecutor . He told the prosecutor that the gendarmes had opened fire on the inmates and that the applicant had been injured by a bullet fired by the gendarmes . Another inmate , questioned subsequently by the prosecutor , stated that he had not seen the applicant being shot .

In his letter of CARDINAL DATE addressed to the GPE governor the PERSON prosecutor requested permission to prosecute CARDINAL gendarmerie officers allegedly responsible for the applicant 's injury . The PERSON governor appointed a gendarmerie officer to investigate the allegations .

CARDINAL gendarmerie officers questioned by the investigator appointed by the Governor stated that they had not fired their weapons during the operation . One of them stated that a ballistic examination of their weapons would confirm the accuracy of their statements .

Having regard to the denials of the gendarmerie personnel , the investigating officer advised the governor on DATE not to grant the authorisation sought by the prosecutor .

Acting on the investigator 's advice the governor refused the request for authorisation on DATE .

On DATE ORG in GPE examined the objection lodged by the applicant against the governor 's decision on DATE , and quashed the decision . It held that a judicial investigation should be carried out .

On DATE the PERSON prosecutor wrote to ORG in FAC and asked for the CARDINAL officers to be sent to his office for further questioning . When the prosecutor received no responses to his letter , he repeated his request on DATE . On DATE an officer informed the prosecutor that the CARDINAL officers were no longer working at the prison .

On DATE the prosecutor decided not to prosecute the CARDINAL gendarmes alleged to have fired at the applicant . According to the prosecutor , there was insufficient evidence that the applicant had been injured by shots fired by the gendarmes . In his opinion the applicant had been shot with a bullet fired by inmates .

The applicant lodged an objection to the prosecutor 's decision on DATE . He argued , inter alia , that the investigation had not been conducted in a timely manner or in an impartial and independent fashion . He also alleged that the prosecutor had failed to collect all available evidence , such as TV footage of the incident , statements by other eyewitnesses and medical reports .

The objection lodged by the applicant was dismissed by ORG in GPE on DATE . The decision was communicated to the applicant on DATE .

On DATE the case brought against the applicant and his fellow inmates ( see paragraph CARDINAL above ) , in so far as it concerned the offence of obstructing law - enforcement officials in the enforcement of their duties , was rejected as the period of limitation had already expired .

In the meantime , the applicant was released from the prison in DATE .


Violation of Art. 6;Violations of P1-1;Pecuniary damage and non-pecuniary damage - award

Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and lives in Isperih . At the relevant time she was a sole trader , registered under the name ORG PERSON ORG . Under NORP law her business did not have a distinct legal personality . She traded in alcoholic beverages and tobacco , which are considered as excise duty products under NORP tax law .

The applicant possessed a licence , issued in DATE , for wholesale trading in excise duty products .

On DATE the ORG tax authority inspected CARDINAL of the CARDINAL storehouses where the applicant held her merchandise , seized all tobacco and alcoholic products found therein and by decision of DATE fined the applicant . The decision was based on the tax authority 's opinion that the relevant law required a separate license for storage of excise duty products whereas the applicant only had a trading license .

The authorities seized a significant quantity of tobacco products , CARDINAL bottles of wine and CARDINAL bottles of other alcoholic beverages with higher alcohol content ( CARDINAL bottles in total ) . They were moved to a storage building used by the ORG tax authority . At the time of seizure , the total value of the merchandise was the equivalent of MONEY ( ORG ) . The fine imposed on the applicant was in the amount of MONEY ( ORG ) , the equivalent of CARDINAL .

It appears that , during the seizure , part of the merchandise was damaged or destroyed due to improper handling .

The applicant lodged an appeal . On DATE the ORG decided in her favour and quashed the ORG tax authority 's decision . The court found that the relevant law did not require a storage license separate from the trading license . In the ensuing cassation proceedings , on DATE ORG reversed the decision and upheld the seizure and fine .

In DATE the applicant filed a request for reopening on the basis of newly obtained information that storage licenses had never been issued in the practice of the relevant authorities . On DATE the ORG agreed to reopen the proceedings and quashed the ORG tax authority 's decision of DATE , stating , inter alia , that there was no support in the relevant law for the view that a separate storage license was required . On DATE ORG upheld ORG judgment .

On DATE criminal proceedings were instituted against the applicant on suspicion of tax evasion , selling excise tax goods without the requisite tax labels and illicit trading in excise goods .

On DATE , ORG ordered the attachment as evidence of the merchandise that had already been seized by the ORG tax authority .

The applicant 's ensuing appeals were dismissed on DATE by ORG and on DATE by ORG .

NORP In DATE a prosecutor from ORG , having inspected the file , noted that there was no evidence of a criminal offence , that the charges against the applicant were unclear and incoherent and that the investigation had not been conducted properly . Ensuing instructions were given to ORG .

On DATE the criminal proceedings were terminated by ORG for lack of evidence . The decision stated that the attached merchandise remained at the disposal of the ORG tax authority .

On DATE , DATE , the same prosecutor in Isperih instituted a fresh inquiry on the suspicion that the applicant might have used counterfeit excise tax labels on the seized bottles of alcohol .

On DATE a police investigating officer from Isperih visited the tax authority 's storage building and inspected the alcoholic beverages seized from the applicant on DATE . He drew up TIME noting the presence of QUANTITY . The TIME further stated that , after the inspection , the bottles had been seized . The exact legal meaning of this statement is unclear , having regard to the fact that it did not concern attachment and that the bottles were not in fact seized but remained in ORG storage building .

On DATE , an expert appointed by the police filed her report stating that the labels found on a sample of CARDINAL bottles ( out of CARDINAL ) had been forged .

On DATE ORG dropped the criminal charges against the applicant as there was no evidence that she had known that they were forged .

The prosecutor ordered that the proceedings should continue against an “ unknown perpetrator ” and that the seized bottles should be placed under the control of the local tax authority which was competent to decide on a possible confiscation of the bottles carrying counterfeit excise tax labels .

On DATE the applicant appealed , arguing that there was no valid legal ground to withhold the bottles since the charges against her had been dropped . The appeal was not examined until DATE . On DATE the ORG quashed the prosecutor 's order on grounds unrelated to the applicant 's appeal . It noted that only a sample of the merchandise had been analysed for counterfeit labels and that , therefore , all bottles had to be attached in relation to the pending criminal proceedings for forgery by an unknown perpetrator .

The applicant has not been informed of any new developments since DATE .

On DATE , shortly after the seizure , the applicant wrote to the ORG tax authority stating that the seized merchandise was perishable and should be sold to avoid loss of value . She requested permission to sell it and offered a bank guarantee for its value . The ORG tax authority did not grant the request .

On DATE the ORG tax authority wrote to ORG in PERSON seeking their approval to sell the merchandise at an auction , having regard to the fact that it was perishable . The request was not followed up .

On DATE the applicant wrote to the ORG tax authority insisting that the alcoholic beverages must be sold immediately since the validity of the excise tax labels on them expired on DATE and also because new regulations on alcohol content would make it impossible to sell the bottles after DATE . The applicant did not receive a reply .

DATE , the applicant also addressed to the ORG tax authority several unsuccessful requests for the appointment of experts to assess the damage caused during the seizure in DATE and any damage caused by inadequate storage conditions .

On DATE the applicant wrote to the ORG tax authority seeking the restitution of the seized merchandise on the basis that the seizure of DATE had been declared unlawful and the decision of CARDINAL June CARDINAL had been repealed by final judgment of DATE . The tax authority agreed and on DATE the applicant received back all tobacco products . She refused , however , to collect the bottles of wine and other alcoholic beverages as in her view a prior assessment of their condition was needed .

By letters of DATE the tax authority reiterated its invitation to the applicant to remove the remaining merchandise , indicating the dates on which this could be done , and warned her that the authority would not be responsible for any damage if she failed to collect the bottles . The applicant was also warned that in such case the bottles might be treated as abandoned and confiscated . The applicant replied , stating that the merchandise had lost its value and that experts should examine it to determine the damage it had sustained . She did not appear on the dates indicated by the tax authority . In her letter of DATE , addressed to the local tax authority , she explained that she had brought an action for damages against the authority and the relevant prosecutors and that there was “ no reason [ for her ] to collect the merchandise which had become unfit for use ” . In her letter of DATE the applicant added that the tax authority should order an expert examination of the bottles .

The contacts on this issue continued . According to the applicant , in meetings with the tax authority 's representatives she expressed willingness to hire an expert and organise the assessment of the merchandise . At a meeting held on DATE , the parties had allegedly been close to an agreement .

On DATE the director of the ORG tax authority issued an order under section CARDINAL(CARDINAL ) of LAW , declaring the merchandise abandoned property acquired by the ORG . The text of the decision referred to all alcoholic beverages ( CARDINAL bottles ) as described in the seizure order of DATE ( see paragraphs CARDINAL and CARDINAL above ) and mentioned that the merchandise was held in a storage house under the responsibility of the tax authority . The applicant appealed , stating that the goods had not been abandoned .

By judgment of CARDINAL DATE ORG , noting that CARDINAL bottles had been seized as evidence in criminal proceedings ( see paragraph CARDINAL above ) and that the provisions on acquisition of abandoned property by the tax authorities were inapplicable in such situations , quashed the acquisition order in so far as it concerned those bottles . ORG found that with regard to this part of the merchandise the question whether or not the applicant had undertaken the necessary steps to recover it from the tax authorities was irrelevant , since the tax authorities did not have the power to release goods seized as evidence in criminal proceedings .

As regards the remainder of the alcoholic beverages ( CARDINAL bottles ) , ORG upheld the order of DATE . It found , inter alia , that pursuant to an amendment to LAW ( see paragraph CARDINAL below ) , the tax authorities automatically acquired as abandoned merchandise held by them in the event of its owner not having sought to recover it within DATE of CARDINAL DATE , the date of the amendment 's entry into force . Noting that the applicant had not made requests to recover the bottles DATE and DATE and considering that the events outside this DATE period were irrelevant , the courts found that the tax authorities had lawfully acquired the merchandise . The court rejected the applicant 's argument that all relevant events , before or after the statutory DATE period , should be taken into consideration .

On DATE ORG upheld ORG judgment .

On DATE the applicant brought a claim for damages against the ORG tax authority , the police and the prosecuting authorities in respect of the unlawful seizure of her merchandise and the authorities ' failure to allow the marketing of the alcoholic beverages before the expiry of their period of validity . She claimed the full value of the alcoholic beverages , stating that they had become improper for use , as well as compensation for loss of opportunity and moral damage .

DATE , CARDINAL adjournments were caused by failure to appear of CARDINAL or more representatives of the defendant State organs .

At the hearing on DATE the applicant requested the recusal of the presiding judge as he had participated in the administrative proceedings concerning the DATE seizure order against the applicant . The judge accepted the request and withdrew .

The next hearing was held on DATE . The applicant made requests for the collection of evidence .

A hearing was held on DATE .

The next hearing , listed for DATE , could not proceed as CARDINAL of the defendant State organs had not been summoned .

On DATE the court admitted documents in evidence , requested information about the pending criminal investigations and appointed an expert to report on the damage caused to the bottles still held by the tax authority and on the applicant 's loss of profit resulting from the seizure of her merchandise .

In DATE the applicant submitted to ORG a complaint under Article CARDINALa of the Code of Civil Procedure . In DATE ORG rejected the complaint .

Thereafter , ORG held hearings on DATE , CARDINAL DATE and CARDINAL DATE and on DATE , DATE , DATE , CARDINAL DATE , DATE , DATE and DATE .

It appears that most hearings were adjourned as the parties sought the production of additional documents and exchanged objections in respect of the admissibility of pieces of evidence .

At the hearing on DATE , the expert appointed to report on the damage to the merchandise and the applicant 's loss of profit declared that she had become a member of the Bar and could no longer act as an expert . The court appointed CARDINAL experts to present a report on the same subject .

At some of the hearings that followed , on DATE , DATE , DATE , CARDINAL DATE and DATE , the CARDINAL newly appointed experts complained that the defendant ORG bodies had not given them access to the relevant documents . The court issued disclosure orders .

Hearings were held on DATE , DATE and DATE and the examination of the case was again adjourned . The hearing held on DATE was adjourned as CARDINAL of the CARDINAL experts had not been present .

On an unspecified date DATE the experts appointed by the court submitted their report . The report only concerned analysis of financial documents concerning the activities of the applicant as a merchant and assessment of the loss of profit occasioned by the seizure of her merchandise . The experts did not provide information about missing and damaged bottles , stating that they would submit an additional report later .

On DATE the court examined and refused the defendants ' requests for the judge 's recusal and for suspension of the proceedings . The court also dealt with the defendants ' objections against the accuracy of the experts ' report and adjourned the matter for further deliberation .

The hearings listed for DATE and DATE did not proceed as the experts had not submitted their additional report .

The hearing listed for DATE was adjourned on unspecified grounds .

The next hearing was scheduled for DATE but was adjourned as the applicant 's lawyer had fallen ill . The court noted that CARDINAL of the experts appointed to present a joint opinion refused to work together and invited the applicant to propose another expert .

In DATE the newly appointed experts presented a report , which was discussed at the hearing held on DATE . The experts gave contradictory answers to some of the parties ' questions . Also , the defendants insisted on additional research by the experts . The court did not admit the report in evidence , instructed the experts to submit a new report clarifying their findings and adjourned the hearing until DATE .

On DATE the hearing was adjourned as CARDINAL of the experts had had an accident and was unable to attend .

On an unspecified date one of the experts was replaced .

On DATE the experts submitted their report .

At the hearing held on DATE the court noted that the report had been signed by CARDINAL of the experts only and had not been submitted sufficiently in advance of the hearing . It adjourned the examination of the case and scheduled the next hearing for DATE .

As a result of the seizure of her merchandise the applicant became insolvent . She eventually discontinued her commercial activities . In DATE her business was declared insolvent .

Pursuant to an amendment of CARDINAL DATE to LAW , as in force at the relevant time , commodities that have not been collected by their owner for DATE following their seizure by the tax authorities should be deemed abandoned and become ORG property ( Article GPE ) and additional provision CARDINAL ) , in force DATE and DATE ) . Pursuant to paragraph CARDINAL of the final and transitory provisions to the DATE amendment , in cases of seizures predating the amendment , the DATE period started to run from the date of the amendment 's entry into force .


Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in DATE and lived in GPE . He was the director of the private trading companies " ORG " , and " Solomonidis & Kozolidis Ltd " .

The applicant stated that he was the owner of CARDINAL plots of land in the Districts of GPE , GPE and GPE , in northern GPE . In support of his claim of ownership , he produced copies of the relevant affirmations of ownership issued by GPE .

The applicant claimed that from DATE onwards he had been deprived of his property rights , his plots of land being located in the area which was under the occupation and the overall control of the NORP military authorities . The latter had prevented him from having access to and use of his property .

In a letter of CARDINAL DATE the applicant ’s lawyer observed that the private trading companies " ORG " , and " Solomonidis & Kozolidis Ltd " were not the owners of the properties claimed in the application , the original and only owner being the applicant , Mr Antonakis Solomonides .