Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On TIME the applicant went to a doctor , asking him to come to the aid of J.C. He alleged that the latter had been seriously battered by unknown persons . J.C. , who suffered serious injuries to his head , was immediately taken to hospital . His life was saved . On DATE ORG ( Prokurator Wojewódzki ) charged the applicant with aggravated theft , armed robbery and attempted homicide , and detained him on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature . The investigation was completed on DATE .

Shortly after DATE , the applicant asked for an order referring the case for a further investigation . In particular , he asked for evidence to be obtained from certain witnesses . The prosecutor dismissed his request for witnesses to be called but ordered that an expert report be obtained from psychiatrists in order to ascertain the applicant ’s mental state .

On DATE ORG lodged a bill of indictment with ORG ( Sąd Wojewódzki ) . The applicant was indicted on charges of attempted homicide , armed robbery and aggravated theft .

From DATE until DATE the applicant , who was at the material time detained in FAC , was on hunger strike . On DATE he apparently intentionally injured his left hand .

On DATE ORG rejected the applicant ’s request for release made on an unknown date . The court held that the reasons originally given for his detention , that is to say , the reasonable suspicion that he had committed the offences with which he had been charged and the serious nature of those offences , were still valid . On the other hand , the court found no reason to release the applicant on health grounds or on any of the grounds listed in LAW ( see also paragraph CARDINAL in fine below ) because it considered that the applicant ’s continued hunger strike was aimed at compelling the court to make a “ favourable decision ” on his detention .

NORP On DATE the applicant was admitted to the hospital of ORG . He received treatment until DATE . An entry in the relevant medical record made on DATE read , in so far as relevant :

“ [ the applicant ] was admitted to our hospital in a state of extreme exhaustion ... , he complained about general weakness , pain in his chest and heart palpitations . Subsequent tests showed that there was an extremely low level of haemoglobin in his blood ... [ PERCENT and PERCENT according to the tests ] ... resulting from a chronic deficiency of iron and vitamins . During the treatment he was given CARDINAL transfusions and iron compounds were administered ... as a result his condition improved ... Recommendations : good food and further treatment . From the medical point of view , he should not now be kept in prison . ”

On DATE the applicant was taken to and redetained in FAC . He was placed in a ward for internal diseases , where he remained until DATE . He was diagnosed as having anaemia and gastritis . Since the applicant had not consented to any further medical tests and had refused to take medicaments , he was again placed in a prison ward .

In the meantime , the trial court had listed hearings for DATE , DATE , DATE and DATE but had cancelled all of them on the ground that the applicant had been on hunger strike . On DATE the trial was adjourned because the applicant had refused to leave his cell .

On DATE the applicant wrote a letter to the Minister of ORG , requesting that he release him in view of the very bad state of his health . That letter was deemed to be an application for release under LAW of LAW , referred to ORG and dismissed by that court on DATE . The court found that the applicant ’s detention should continue because there was a reasonable suspicion that he had committed the serious offences with which he had been charged . The court agreed that from the medical point of view the applicant should not be kept in prison . It stressed , however , that his poor health resulted from his behaviour , especially his hunger strike , and therefore refused to release him .

On DATE , on an appeal by the applicant , ORG ( Sąd Apelacyjny ) upheld that decision and the grounds given for it .

On DATE the applicant inserted several pieces of metal into his right eye . On DATE he inserted pieces of metal into his left eye . On DATE he was examined by a psychiatrist who concluded that those acts of self - harm were a form of his protest against the prolongation of the criminal proceedings against him and his detention . Later , the applicant was placed in an ophthalmic ward of ORG where he received treatment from DATE to DATE . After that treatment , CARDINAL pieces of metal were left in the applicant ’s eyes .

On DATE ORG dismissed a subsequent application for release , originally addressed by the applicant to ORG ( Krajowa Rada Sądownictwa ) and referred by the ORG to the trial court . The court considered that the applicant should be held in detention for the following reasons :

“ ... In the light of documentary evidence , it is beyond any dispute that the state of [ the applicant ’s ] health is not the best one . However , he himself is responsible for that because he has brought himself [ to this state ] by his DATE long hunger - strikes , acts of self - harm and his further refusal to undergo medical treatment . ...

The court can not lift the detention order because of the nature of the offences charged , the serious social danger created by them and the fact that [ the applicant ] is tried as a recidivist within the meaning of LAW , militate against it .

It must , however , be noted that the state of [ the applicant ’s ] health , although not a good one , does not constitute a danger to his life within the meaning of LAW because he is under medical care and [ his condition ] has resulted from his own acts . ... ”

On an unknown date in DATE the applicant again asked ORG to release him on health grounds . The application was dismissed on DATE . On DATE the applicant made a further application for release , submitting that , in the meantime , he had received a letter from a civil hospital in GPE confirming that he could be admitted to that hospital in order to undergo ophthalmic treatment . The application was dismissed at first instance on DATE and , on appeal , by ORG , on DATE . Both courts held that there was no valid reason to release the applicant as his condition , even though serious , had been aggravated by the injuries which he had inflicted on himself . The courts also relied on the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature .

On DATE the applicant asked ORG to obtain evidence from an expert in ophthalmology . He maintained that he was suffering from an unbearably severe pain in his eyes . The court referred the matter to the authorities of FAC . On DATE the Deputy Governor dealt with that application and refused to call an ophthalmologist on the grounds that in the opinion of the doctors who had previously examined the applicant there had been no need to treat him in a civil hospital and that the Chief Prison Doctor of ORG did not consider it appropriate to call such an expert .

On DATE a hearing was to take place but was cancelled since , in the meantime , the applicant had inflicted certain unspecified injuries on himself . On DATE ORG cancelled the next hearing because the applicant , when leaving his cell had injured himself by hitting his head against a wall . He was then taken to ORG and examined by a neurologist .

On DATE the court adjourned the trial hearing because it found that the applicant had again inflicted injuries on himself ( he had injected saliva into his leg and had an abscess and boil on his knee ) .

On DATE the trial was adjourned because the applicant had taken an overdose of an unspecified medicine .

DATE the applicant received treatment in FAC . In view of that , the court cancelled a hearing listed for DATE .

Subsequently , on an unknown date , the applicant swallowed CARDINAL metal rods and CARDINAL pieces of wire . He did not consent to undergo an operation in the prison hospital . Since he was not fit to be brought to trial , the court cancelled a hearing fixed for DATE .

On DATE the court asked the Governor of FAC about the applicant ’s health and when the applicant would be transferred to FAC . On DATE the Director of ORG replied that the applicant had repeatedly inflicted injuries on himself ( that is to say , he had swallowed pieces of metal ) and had refused to undergo an operation . It was therefore impossible for the prison services to transfer him to FAC ( Białystok is QUANTITY distant from GPE ) .

On DATE the trial court again asked the authorities of FAC about the state of the applicant ’s health . The Director of ORG replied on DATE that the applicant should stay in the hospital because he had pieces of metal both in his eyes and in his alimentary canal .

Later , ORG asked ORG ( PERSON ) to transfer the applicant ’s case to another regional court , a court closer to the prison in which the applicant was being held in custody . ORG rejected that request on CARDINAL DATE .

On DATE the Deputy Governor of ORG informed ORG that the applicant was still unfit for a transfer because he had again swallowed a piece of metal .

On DATE the court asked the authorities of FAC about the state of the applicant ’s health . The Director of ORG replied on DATE that the applicant did not have to undergo on operation on his eyes but that it was recommended that he undergo an operation on his stomach .

On DATE ORG dismissed a subsequent application for release made by the applicant on an unspecified date . In its decision , the court relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature . Finding that there were no special circumstances that might justify releasing him on health grounds , the court also took into account a medical certificate which stated that the applicant could receive medical treatment in prison .

In the meantime , at DATE , the applicant had complained to the prison authorities about various ailments , in particular a cyst in his kidney and urinary problems . Several ultrasound examinations carried out at that time showed that the applicant had a cyst of a diameter of QUANTITY in his kidney . He refused to undergo a kidney operation in the urological ward of ORG and requested to be released so as to enable him to receive medical treatment in a civil hospital .

On DATE ORG asked the Governor of ORG whether the applicant could be transferred to FAC . The Governor replied on DATE . He stated that prison doctors considered that the applicant was unfit for a transfer .

On DATE the applicant made an application for release to ORG .

On DATE ORG decided to apply to ORG for the applicant ’s detention on remand to be prolonged until DATE . That application was made in view of the fact that an amendment to LAW ( setting maximum statutory time - limits for detention on remand ) was to take effect on DATE ( see paragraph CARDINAL below ) and at the time the applicant ’s detention had already exceeded the relevant time - limit . In that application , the court relied on the following , principal reasons :

“ The trial was set for DATE but it did not take place because the accused went on hunger strike for DATE . When the accused finished his hunger strike , he deliberately inflicted injuries on himself in order to compel [ the court ] to make a favourable decision to vary the preventive measure imposed on him . ...

That made it impossible for that court to continue , or even to start , the trial . In view of the state of his health , a state resulting from his own behaviour , [ the applicant ] was on several occasions examined by doctors of various specialities and was admitted to hospital for DATE . It did not ( and does not ) emerge from the expert opinions that his state would endanger his life or health , especially as [ the applicant ] is under permanent medical care . At present , he is held in FAC .

For these reasons the application for his detention to be prolonged is justified . His detention should be prolonged until DATE because , given his acts of self - harm , it is not known when the accused will be brought to trial . ”

Since the relevant amendment did not come into force until DATE , that application was never lodged with ORG .

On DATE ORG transferred the applicant ’s application for release of DATE to ORG . On DATE the President of ORG transferred it to the Chief Judge of ORG of that court .

On DATE the panel of CARDINAL judges , sitting as ORG dismissed that application , holding that there were no circumstances concerning the applicant ’s health which might militate in favour of his release and that the bad state of his health had been caused entirely by his own conduct . The court considered that the applicant wanted to compel it to “ make a favourable decision on his detention ” and that the “ impossibility of bringing him to trial had diminished the chances of resolving his complaints ” .

In the meantime , on an unknown date , the applicant had complained to ORG about the length of his detention , which had already exceeded DATE . On DATE his complaint was referred to ORG . On DATE the Vice President of that court replied to the complaint . He stated that hearings in the applicant ’s case had been cancelled CARDINAL times because the applicant had gone on hunger strike and then on the ground that he had inflicted injuries on himself . He also stressed that there had been no indication that the applicant should have been released on health grounds because he was , and had been , under medical care in prison .

On DATE the court asked the authorities of FAC about the applicant ’s health . The Director of ORG replied on DATE . He stated that the applicant had some of the metal objects he had swallowed in his stomach but he had refused to undergo an operation in the prison hospital . In the Director ’s opinion , the applicant was fit to participate in his trial but unfit to be transferred to Białystok .

Later , the applicant asked ORG to release him in view of his state of health . That application was dismissed on DATE . The applicant appealed against the refusal , arguing that his detention on remand had meanwhile exceeded DATE and that his state of health was desperately bad .

On DATE ORG dismissed that appeal , finding that even though the applicant had been held in custody for DATE , the prolongation of his detention had been attributable to his behaviour alone . The court considered that the grounds originally given for his detention were still valid . It pointed out that the further course of the proceedings exclusively depended on the applicant ’s behaviour . It suggested that a change in the applicant ’s attitude would result in the immediate examination of his case and that such a change might in turn have resulted in the court ’s “ altering its view on whether the detention should be continued ” .

On DATE the court asked the authorities of ORG whether the applicant could be transferred to Białystok . On DATE the Director of ORG informed the court of , inter alia , the following :

“ ... [ the applicant ] repeatedly inflicts injuries on himself . The last instance of such behaviour took place on DATE . For that reason , he is unfit for a transfer . He can participate in his trial . ”

On an unknown date in DATE or DATE the applicant made a subsequent application for release . On DATE ORG dismissed it in view of the high probability that he had committed the offences with which he had been charged and their serious nature . The court also found no circumstances militating in favour of releasing the applicant on health grounds , as defined in LAW . In that context , it pointed out that the applicant ’s health depended on himself , especially as its current state had resulted from his hunger strike and self - inflicted injuries . Finally , the court stressed that it emerged from medical evidence that his continued detention did not constitute a danger to his life or health .

On DATE the court asked the authorities of FAC whether the applicant could be transferred to FAC . They replied on DATE , stating that the applicant had refused to undergo an operation on his stomach . It was recommended that he be detained in a prison hospital ward . No obstacles to transferring the applicant to Białystok were mentioned .

On DATE ORG requested ORG to prolong the applicant ’s detention on remand until DATE in view of the fact that he had attempted to obstruct the proper conduct of the proceedings . The court also stated :

“ ... detention should be prolonged until DATE ... since the accused has inflicted injuries on himself and therefore , it is not known when he will be fit to be brought to trial . ”

On DATE ORG , sitting in camera , prolonged the applicant ’s detention until DATE , finding that the applicant had in an exceptional manner obstructed the proper conduct of the proceedings and had intentionally contributed to their length . The court also held that it was not necessary to prolong his detention until DATE and that by DATE ORG should be able to order an additional medical examination of the applicant , to list hearings and to give judgment . On DATE a copy of the decision of ORG was served on the applicant .

On DATE the applicant complained to the Minister of Justice about the length of his detention and the conduct of the proceedings in his case . This complaint was transferred to ORG and , on DATE , the President of that court replied to it . He found that there had been no irregularities in the conduct of the proceedings . He stated that all the CARDINAL hearings listed in the period from DATE to DATE had been cancelled because the applicant had inflicted injuries on himself .

On an unknown date – apparently in DATE – the applicant again requested his release on health grounds . On DATE ORG dismissed his application , holding that there was a reasonable suspicion that he had committed the offences in question and that the need to ensure the proper conduct of the proceedings militated against his release . The court also held that there was no reason to release the applicant on health grounds because the ailments from which he suffered did not constitute a danger to his life or health and had resulted from his own deliberate acts of self - harm .

DATE . On DATE , on the applicant ’s appeal , ORG upheld that decision and held , inter alia :

“ It is true that the accused is sick , although most of his ailments result from self - inflicted injuries . For that reason he is under constant medical observation in prison . He also consults doctors . The prison authorities have not indicated that his condition worsened so significantly as to result in his detention in the prison hospital being a danger to him .

As to the second argument adduced by the accused , an argument which in reality amounts to his objection to evidence [ against him ] , it has to be noted that the trial court has at its disposal evidence gathered by the prosecution but has been unable to scrutinise it because the accused has been obstructing the conduct of the trial . It would therefore be in the accused ’s best interest to endeavour to have his case heard . ... ”

On DATE the applicant was transferred to FAC . On DATE ORG listed a hearing for DATE ; however , that hearing was adjourned to DATE . On DATE the trial was adjourned as most of the witnesses and the victim had failed to appear .

During the hearings of CARDINAL and DATE ORG heard evidence from witnesses and dismissed the applicant ’s request for further evidence to be obtained . On DATE the court gave judgment . It convicted the applicant of aggravated theft and attempted homicide and sentenced him to CARDINAL years’ imprisonment , deprivation of his civil rights for DATE and a fine of MONEY .

The applicant appealed . Subsequently , on an unspecified date , he challenged LAW and J.Z .- L. , CARDINAL judges of ORG assigned to sit on the appeal panel , submitting that both of them had previously dealt with his applications for release and that they did not , therefore , offer sufficient guarantees of impartiality . His challenge was dismissed by ORG on DATE as being ill - founded .

On DATE the court held an appellate hearing and gave judgment dismissing the applicant ’s appeal .

On DATE a copy of the judgment of ORG was served on the applicant . On DATE he filed a notice of cassation appeal , requesting the court to serve the statement of the reasons for the judgment on him . He submitted it to the authorities of FAC on DATE .

On DATE ORG rejected the applicant ’s notice of cassation appeal because he had lodged it outside the DATE time - limit provided for by LAW .

On DATE the applicant requested the Minister of ORG to lodge a cassation appeal on his behalf . The request was dismissed on CARDINAL DATE . Later , the applicant – also unsuccessfully DATE asked the Ombudsman ( PERSON ) to lodge a cassation appeal on his behalf . That application was rejected on DATE .

During the entire period of the applicant ’s detention the NORP prison authorities kept detailed medical records concerning his state of health . His records contained , among other things , entries relating to the injuries that he inflicted on himself .

An entry made on DATE contains a doctor ’s note , which read , in so far as relevant :

“ Objects in [ the ] stomach ? ”

An entry made on DATE read :

“ refusal to undergo an X - ray examination ; no confirmation as to the objects in his stomach . ”

A doctor ’s note of DATE read , in so far as relevant :

“ Complaints by a detainee , previous ailments and operations : objects in eyes : no complaints at present ; objects in his stomach : on DATE and DATE [ the applicant ] refused to undergo an NORP - ray examination ; on DATE [ he ] claimed that there were no further objects . ... I administer a further X - ray examination . [ He ] complains about a pain in his stomach . ... Psychiatric examination of CARDINAL DATE disclosed an abnormal personality ...

Diagnosis : objects in eyes ; [ as regards the ] objects in the stomach , [ to date ] in the absence of results of the X - ray examination there is no confirmation that , as [ the applicant ] states , there are no such objects ... General condition : good ; some peritoneal symptoms ... Conclusions : [ the applicant ] can be detained in prison . Doctor [ name and signature illegible ] . ”

A subsequent X - ray examination made in DATE did not disclose any objects in the applicant ’s stomach ; it confirmed a diaphragm hernia .

At the material time the rules governing detention on remand were contained in LAW of the Law of DATE – Code of Criminal Procedure ( Kodeks postępowania karnego ) – entitled “ Preventive measures ” ( NORP zapobiegawcze ) . The LAW is no longer in force . It was repealed and replaced by LAW DATE ( commonly referred to as the “ GPE Procedure ” ) , which entered into force on DATE .

The Code listed as preventive measures , inter alia , detention on remand , bail and police supervision .

Article CARDINAL set out the general grounds justifying imposition of the preventive measures . This provision read :

“ Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence . ”

Article CARDINAL § CARDINAL defined grounds for detention on remand . The relevant part of this provision , in the version applicable until DATE , stipulated :

“ CARDINAL : Detention on remand may be imposed if :

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

( CARDINAL ) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of the proceedings by any other unlawful means ; or

( CARDINAL ) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in LAW ; or

( CARDINAL ) an accused has been charged with an offence which creates a serious danger to society .

On DATE sub - paragraphs CARDINAL and CARDINAL of Article CARDINAL were repealed and the whole provision was redrafted . From that date onwards the relevant sub - paragraphs read :

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

( CARDINAL ) [ as it stood before DATE ] . ”

Paragraph CARDINAL of Article CARDINAL provided :

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

The Code set out the margin of discretion in maintaining a specific preventive measure . Articles CARDINAL § CARDINAL , CARDINAL and CARDINAL of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate .

Article CARDINAL § CARDINAL provided :

“ A preventive measure [ including detention on remand ] shall be immediately lifted or varied , if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one . ”

Article CARDINAL stated :

“ Detention on remand shall be imposed only when it is mandatory ; this measure shall not be imposed if bail or police supervision , or both of those measures , are considered adequate . ”

The provisions for “ mandatory detention ” ( for instance , detention pending an appeal against a sentence of imprisonment exceeding DATE ) were repealed on DATE by the PERSON of DATE on Amendments to LAW and Other Criminal Statutes .

Finally , Article CARDINAL stipulated :

“ If there are no special reasons to the contrary , detention on remand should be quashed , in particular when :

( CARDINAL ) it may seriously jeopardise the life or health of the accused , or

( CARDINAL ) it would entail excessively burdensome effects for the accused or his family . ”

Until DATE , i.e. the date on which the relevant provisions of a new Law of DATE on LAW to LAW and Other Criminal Statutes entered into force , the law did not set out any time - limits concerning detention on remand in the court proceedings .

Originally , the provisions setting out time - limits for detention were to enter into force on DATE ; however , their entry into force was eventually postponed until DATE .

Article CARDINAL of LAW in the version applicable after DATE , insofar as relevant , provides :

“ CARDINAL . The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed DATE and DATE in cases concerning offences . In cases concerning serious offences [ offences for the commission of which a person is liable to a sentence of a statutory minimum of DATE imprisonment ] this period may not exceed DATE .

NORP In particularly justified cases ORG may , on the application made by the court competent to deal with the case , ... prolong detention on remand for a further fixed period exceeding the time - limits set out in paragraphs . CARDINAL and DATE , when it is necessary in connection with a suspension of the proceedings , a prolonged psychiatric observation of the accused , when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph CARDINAL . ”

On DATE , by virtue of the Law of DATE , paragraph CARDINAL of that Article was amended and the grounds for prolonging detention beyond the statutory time - limits included also :

“ ... other significant obstacles , which could not be overcome by the authorities conducting the proceedings ... ”

The Supreme Court’ decision on an application under LAW CARDINAL constituted a separate legal basis for continued detention . No appeal lay in law against such a decision .

In cases where ORG dismissed such an application , a detainee had to be released . As long as it had not reached a decision , an application under LAW was treated as a basis for the continued detention .

As from DATE , a party to criminal proceedings could lodge a cassation appeal ( kasacja ) with ORG against any final decision of an appellate court which had terminated the proceedings .

Under LAW of LAW , the court which gave the decision to be appealed against was competent to decide whether the formal requirements of a cassation appeal had been complied with . If an accused ’s appeal had not been filed and signed by a lawyer , it had to be rejected . If an appeal had complied with the formal requirements , the case was forwarded to ORG . According to paragraph CARDINAL of Article CARDINAL , if ORG found that the appeal was inadmissible , it gave a decision on “ not taking cognisance of the merits of the cassation appeal ” ( postanowienie o pozostawieniu kasacji bez rozpoznania ) .


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

The applicant ’s parents owned a family house and CARDINAL lands located in GPE . In DATE the applicant ’s father died . The applicant and her mother became his legal successors .

In DATE the applicant and her mother were convicted in absentia of deserting the Republic . The courts imposed a term of imprisonment and ordered the confiscation of all their property . In DATE the ORG ( státní notářství ) determined the late father ’s estate , holding that the applicant and her mother inherited the whole estate but that , bearing in mind their criminal conviction , it should be forfeited for the benefit of the ORG .

On DATE the confiscated property was sold by the ORG to PERSON and PERSON , with an agreement giving them the right to make personal use of the lands attached to the house . According to the applicant , the purchase contract contained a number of legal inaccuracies which made it null and void . Actually , the ORG was represented by the former ORG ( okresní národní výbor ) which at the material time had CARDINAL of the property at its disposal , the rights relating to DATE being transferred to it on DATE . Moreover , the real estate appraisal used for the purposes of the purchase was , contrary to the law , older than one year , the property at issue was not clearly specified in the purchase contract , the identity of the contractual parties was not verified and the person acting on behalf of ORG was not clearly indicated . In addition , the new ORG right to make personal use of the lands attached to the house was approved by ORG on DATE , so before the transfer of the administration rights regarding the property .

On DATE the applicant ’s mother died . The applicant became her legal successor .

On DATE and DATE respectively , ORG declared that , pursuant to section CARDINAL of LAW , the applicant ’s and her mother ’s convictions and all ancillary decisions had been automatically quashed with retrospective effect .

On an unspecified date in DATE the applicant initiated restitution proceedings against Mr and PERSON pursuant to ORG . However , the courts did not grant her restitution claims finding that the purchase contract had not been concluded in breach of the regulations then in force and that the new owners had not enjoyed an unlawful advantage .

After the death of PERSON and PERSON , their sons became the owners of the property .

In DATE the applicant sought to recover the property in issue by means of a civil action brought against the Mr and PERSON sons , alleging the nullity of the purchase contract .

In a judgment of DATE the ORG dismissed the applicant ’s action stating , inter alia :

“ In a judgment no . ÚS CARDINAL/CARDINAL of DATE the Plenary of ORG held that judicial decisions whereby decisions concerning the confiscation of property had been quashed [ pursuant to LAW ] did not form a basis on which the ownership rights could be renewed . The applicant claimed the restitution ... under [ LAW ] , but was unsuccessful . Having regard to the fact that [ she ] based her current arguments mainly on her incorrect legal opinion concerning the effects of the nullity of the confiscation decision , her [ civil ] action [ is ] not substantiated .

[ I]t is not decisive whether the purchase contract ... is valid or not . ... [ T]he question of [ its ] validity or the nullity is more specific than the criteria laid down in the Extra - Judicial Rehabilitation Act for natural persons obliged to restore immovable property to a restitution claimant .... [ The court examined in the [ previous ] restitution proceedings whether the new owners could have acquired the property contrary to the law then in force ... or on the basis of any unlawful advantage , and found that it was not the case . ] The court , therefore , did not examine in detail [ the applicant ’s arguments concerning ] the alleged nullity of the purchase contract . ”

On DATE the ORG ( krajský soud ) upheld the first instance judgment .

The applicant ’s subsequent appeal on points of law ( dovolání ) was dismissed by ORG ( PERSON ) on DATE , the court stating , in particular :

“ [ N]either the appellate court nor the court of first instance erred in applying [ the provisions of LAW and LAW ] ; they rightly considered their interrelationship and took account of the [ previous ] restitution proceedings closed upon a final and conclusive judgment .

The applicant based her claims on the substantially same arguments which she had used in the previous restitution proceedings , emphasising the [ alleged ] nullity of the purchase contract ... [ However ] it is inadmissible to circumvent the restitution law by applying the general civil law , in case that the [ previous ] restitution action failed . ... ”

ORG concluded that the applicant ’s appeal on points of law did not challenge a decision which would give rise to a question of crucial legal importance as provided for in section CARDINAL(CARDINAL)(c ) of the Code of Civil Proceedings .

The applicant challenged the lower courts’ legal opinions before ORG ( Ústavní soud ) maintaining that the courts had failed to examine the validity of the purchase contract . She alleged , in this respect , a violation of her right to judicial protection under LAW ( Listina základních práv a svobod ) and her property rights guaranteed by LAW .

On DATE ORG rejected the applicant ’s constitutional appeal ( ústavní stížnost ) finding that the procedural steps taken by the lower courts and their interpretation of the legislation did not infringe the applicant ’s fundamental rights guaranteed by the constitutional law or international treaties .

LAW provides , inter alia , that everyone has the right to own property . All ORG property rights are equal in the eyes of the law and enjoy the same legal protection . The right to inherit is guaranteed .

Under LAW anybody who claims that his or her rights have been violated by a decision of a public administration organ may turn to a court for a review of the legality of such decision , unless the law provides differently . However , review of decisions affecting the fundamental rights and freedoms listed in the LAW may not be excluded from the jurisdiction of courts .

Section CARDINAL states that the purpose of the LAW is to provide for the quashing of convictions that are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the LAW and guaranteed by international treaties , and to ensure the social and economic rehabilitation of persons so convicted .

Section CARDINAL provides that all convictions from DATE to CARDINAL DATE that contravened those principles and related to events occurring after DATE are to be quashed with retrospective effect , together with any ancillary decisions . Courts are to examine of their own motion all matters relating to the rehabilitation of convicted persons .

Section CARDINAL ) provides that the implementing conditions for claims arising from quashed confiscation decisions , and also the method of redress and the scope of such claims , are to be laid down in a special law .

Section CARDINAL provides that the purpose of the LAW is to mitigate the effects of certain wrongs committed between CARDINAL DATE and DATE ( “ the period concerned ” ) which were incompatible with the principles of a NORP society respecting the rights of citizens as enshrined in the Charter of ORG and LAW . The LAW also lays down the conditions for lodging claims arising from quashed confiscation decisions , and also the method of redress and the scope of such claims .

Section CARDINAL provides that infringements of property rights which occurred during the period concerned are to be redressed either by restitution of property or by pecuniary compensation .

Section CARDINAL requires the ORG and/or any legal entity in possession of confiscated property on the date on which the LAW came into force to return the property . LAW provides that any natural person who acquired property from the ORG unlawfully or by means of an unlawful advantage is likewise required to return the property .

ORG ) provides that any person who has been rehabilitated in accordance with LAW no . CARDINAL/CARDINAL is entitled to claim restitution provided that he or she satisfies the conditions laid down in section CARDINAL(CARDINAL ) .

Section CARDINAL(CARDINAL ) provides that any legal entity within the meaning of section CARDINAL(CARDINAL ) and any natural person within the meaning of section CARDINAL(CARDINAL ) must return confiscated property acquired from the ORG where the ORG itself obtained it as a result of the conviction of the original owners ; the central administrative authorities of the Republic are likewise required to return any confiscated property .

Section CARDINAL ) provides that an appeal on points of law lay against appellate court judgments and decisions upholding first instance decisions in which the court of first instance decided differently from its previous meritorious decision , having been bound by the legal opinion of the appellate court which had quashed the previous decision at first instance .

Under section CARDINAL(c ) an appeal on points of law lay also against appellate court judgments and decisions upholding first instance decisions if such an appeal is not admissible under paragraph b ) and if the court dealing with the appeal on points of law finds that the challenged decision gives rise to a question of crucial legal importance .

In this judgment ORG held that judicial decisions whereby decisions concerning the confiscation of property had been quashed pursuant to LAW did not form a basis on which anyone thus rehabilitated was entitled to be entered in the land register as the owner . It held that such decisions did not restore previous ownership , since LAW ) of LAW provided that the conditions for implementing that Act were laid down in LAW .

In this decision ORG held , in particular , that the provisions of the Extra - Judicial Rehabilitation Act constitute a lex specialis in relation to the general provisions of LAW . In restitution cases , it is therefore not possible to seek judicial protection under the general provisions of LAW ( e.g. by means of an action for recovery ) , but only by a special way provided for in the restitution legislation .

In this decision ORG admitted that the entire removal of all wrongs committed by the former communist regime was not possible . The legislator opted , therefore , for legal means aiming to mitigate “ the effects of certain wrongs ” . For these purposes , it determined the “ restitution border ” ( the period between DATE and DATE in which the wrongs had taken place ) and fixed the conditions and the way to pursue to claim restitution of property . If other parallel procedural ways were accepted to be pursued under the general legal provisions the special restitution law would lose its sense .

In this decision ORG stated that the restitution legislation demonstrates the legislator ’s will to contribute to the mitigation of huge wrongs which were committed in the decisive period , i.e. DATE . This legislation , including LAW is not based on the conception of declaration of the nullity of decisions , acts and legal actions . It indicates the special way to pursue for claiming restitution .

In this decision ORG recalled its legal opinion expressed in its decision no . CARDINAL Cdo CARDINAL/CARDINAL of DATE stating , moreover , that according to the established national case - law , the restitution legislation is a lex specialis in relation to the general provisions of LAW . Actually , if the restitution law is applicable in a particular case , it is inadmissible to circumvent it and , in case that the restitution action failed , to base the restitution claims on the general legal provisions . This would create a situation of legal uncertainty of the parties to the legal acts which were challengeable under the restitution law .


CASE OF GREENS AND M.T. v. THE UNITED KINGDOM

Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Vote);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46 - Pilot judgment;General measures);Non-pecuniary damage - finding of violation sufficient

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

The first applicant , Mr NORP , was serving a determinate sentence of imprisonment at FAC at the time his application was lodged with the ORG . He was eligible for release on parole from DATE . It is not known whether he has been released on parole . The second applicant , PERSON , is currently serving a determinate sentence of imprisonment at FAC . According to information provided by the Government , he is scheduled to be released in DATE .

On DATE the applicants posted voter registration forms to ORG ( “ ERO ” ) for ORG . They sought registration on the electoral register at their address in FAC .

On DATE , the ERO replied referring to previous applications for registration which were refused in DATE under sections CARDINAL and CARDINAL of the Representation of the People Act DATE , as amended , ( see paragraph CARDINAL and DATE below ) on the basis of the applicants ' status as convicted persons currently detained . The ERO requested clarification of whether there had been a change in circumstances in the applicants ' cases .

On DATE the applicants wrote to the ERO arguing that following the ORG 's decision in ORG v. GPE ( no . CARDINAL ) [ ORG ] , no . CARDINAL/CARDINAL , ORG CARDINALIX , and the declaration of incompatibility made by ORG in the case of PERSON v. PERSON ( see paragraphs CARDINAL below ) , the ERO was obliged to add their names to the electoral register .

On DATE , the ERO refused the applicants ' registration applications on the basis of their status as convicted persons detained in a penal institution .

NORP By letter of CARDINAL DATE the applicants informed the ERO of their wish to appeal to ORG against the refusal .

On DATE the Sheriff considered the applicants ' appeals together with appeals in a number of other similar cases and ordered written representations to be lodged .

On DATE the applicants wrote to the court summarising their position . They provided further submissions on DATE . The applicants alleged that legal aid was not available for the proceedings and they therefore represented themselves .

On DATE the applicants ' appeals were refused .

On DATE another serving prisoner whose appeal was also refused on DATE , PERSON , applied to ORG to request that it state a case for the opinion of ORG ( see paragraph CARDINAL below ) . On DATE , the ORG refused to state a case . PERSON subsequently applied to ORG for an order requiring the Sheriff to state a case , on the ground that the Sheriff had erred in law in refusing to do so . The most recent information available to the ORG was that those proceedings were pending . It is not clear whether that remains the case .

On DATE , elections to ORG took place . The applicants were ineligible to vote .

On DATE a general election took place in GPE . The applicants were ineligible to vote .

Section CARDINAL of the Representation of the People Act DATE ( “ the DATE LAW ) provides :

“ ( CARDINAL ) A convicted person during the time that he is detained in a penal institution in pursuance of his sentence ... is legally incapable of voting at any parliamentary or local election . ”

The disqualification does not apply to persons imprisoned for contempt of court ( section CARDINAL(CARDINAL)(a ) ) or to those imprisoned only for default in , for example , paying a fine ( section CARDINAL(CARDINAL)(c ) ) .

Section CARDINAL of the DATE Act provides :

“ ( CARDINAL ) A person is entitled to be registered in the register of parliamentary electors for any constituency or part of a constituency if on the relevant date he–

( a ) is resident in the constituency or that part of it ;

( b ) is not subject to any legal incapacity to vote ( age apart ) ;

( CARDINAL ) A person is entitled to be registered in the register of local government electors for any electoral area if on the relevant date he–

( a ) is resident in that area ;

Sections CARDINAL set out that there is a right of appeal against a decision of the registration officer . In GPE , a further appeal lies on any point of law from a decision of the Sheriff to a court of CARDINAL judges of ORG ( known as the “ Registration Appeal Court ” ) .

Section CARDINAL(CARDINAL ) of ORG ( “ the DATE Act ” ) provides that a person is entitled to vote at an election to ORG if he is within any of subsections ( CARDINAL ) to ( CARDINAL ) of section CARDINAL . These subsections provide , in so far as relevant , as follows :

“ ( CARDINAL ) A person is within this subsection if on DATE of the poll he would be entitled to vote as an elector at a parliamentary election ...

( CARDINAL ) A person is within this subsection if he is entitled to vote in the electoral region by virtue of ORG Regulations DATE ( NORP CARDINAL/CARDINAL ) ( citizens of ORG other than GPE and GPE citizens ) . ”

Section CARDINAL of LAW DATE ( “ LAW ” ) provides as follows :

“ ( CARDINAL ) So far as it is possible to do so , primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights .

( CARDINAL ) This section-

( a ) applies to primary legislation and subordinate legislation whenever enacted ;

Section CARDINAL of the LAW provides :

“ ( CARDINAL ) Subsection ( CARDINAL ) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right .

( CARDINAL ) NORP If the court is satisfied that the provision is incompatible with a Convention right , it may make a declaration of that incompatibility .

Finally , section DATE ) of the LAW provides that it is unlawful for a public authority to act in a way which is incompatible with a LAW right . Section CARDINAL(CARDINAL ) clarifies that :

“ Subsection ( CARDINAL ) does not apply to an act if–

( a ) as the result of CARDINAL or more provisions of primary legislation , the authority could not have acted differently ; or

( b ) in the case of CARDINAL or more provisions of , or made under , primary legislation which can not be read or given effect in a way which is compatible with the Convention rights , the authority was acting so as to give effect to or enforce those provisions . ”

In PERSON v. PERSON , ORG considered the refusal of the ERO for GPE , GPE and GPE to enrol a convicted prisoner on the electoral register on the basis of sections CARDINAL and CARDINAL of the CARDINAL Act , in anticipation of elections to ORG . The Secretary of ORG conceded in the proceedings that in light of the judgment of this ORG in ORG section CARDINAL(CARDINAL ) of the DATE Act was incompatible with LAW No . CARDINAL to the LAW and that the appellant 's rights under that LAW had been violated . He also accepted that for the purposes of LAW No . CARDINAL ORG was a legislature . The court , handing down its judgment on DATE , summarised the matters for examination in the following terms :

“ CARDINAL . Since section CARDINAL ) of LAW , giving the words of that provision their ordinary meaning , was incompatible with LAW , the ORG should consider whether it was possible , in terms of section CARDINAL(CARDINAL ) of LAW , to read it down in such a way as to make it compatible . If that was possible , it should be done and the appeal should be allowed .

If , however , that was not possible , then the appeal would be refused but the ORG should consider whether it could and should make a declaration of incompatibility in respect of section CARDINAL(CARDINAL ) of LAW in terms of LAW section CARDINAL(CARDINAL ) . If that could be done , it should be .

If the ORG did not take that course , it should consider , in the context of the requirement in terms of section CARDINAL of LAW for the Court not to act in a manner incompatible with the appellant 's Convention rights , whether by refusing the appeal and providing the appellant with no remedy it would be acting in breach of that statutory requirement . If it would , then the ORG was obliged to give such remedy as was open to it within its powers at common law or under any statute . Such a remedy would include granting a declarator that the appellant 's rights under LAW had been violated . It was open to the ORG in the exercise of its inherent jurisdiction to grant such a declarator . ”

Counsel for the appellant argued that if there was some “ possible ” interpretation ( or “ reading down ” ) of section CARDINAL(CARDINAL ) of the DATE Act which would remove the incompatibility identified by this ORG in ORG , ORG should adopt it . He considered that insertion of words to the effect that any ban on prisoner voting “ would apply at the discretion of the sentencing judge ” would qualify , but not contradict , the “ grain of the legislation ” and that the case should accordingly be resolved along those lines . Counsel for the respondent submitted that while section CARDINAL of LAW empowered the court to interpret legislation , where possible , in a certain way , it did not entitle the court to amend or reverse clear legislative provisions , nor otherwise to usurp the legislative function of ORG . The court summarised counsel 's argument as follows :

“ CARDINAL . ... section CARDINAL(CARDINAL ) of the DATE Act clearly provided for a blanket ban on voting which applied to all convicted prisoners serving custodial sentences . There was thus no ' grain of the legislation ' which could properly serve as a starting point for any interpretation designed to clothe some or all of such prisoners with voting rights . Over and above that , it was necessary to recognise the complexity of the issues which had been opened up by the decision of ORG in ORG , and the extensive consultation which would have to be undertaken before the Government could form a view as to the appropriate way forward . Since the Convention rights conferred by LAW were in no way absolute , there were many possible levels at which the line might be drawn for the enfranchisement or disenfranchisement of convicted prisoners in different categories , and it could be no part of this ORG 's function to make an uninformed choice among such alternatives . ”

The court continued :

“ CARDINAL . Against that background , we are clearly of the opinion that the appellant 's submission must be rejected and we decline to ' read down ' section CARDINAL ) of LAW in the manner proposed ... In our opinion to read down section CARDINAL(CARDINAL ) of LAW as providing for full or partial enfranchisement of convicted prisoners serving custodial sentences would be ... to depart substantially from a fundamental feature of the legislation . Without the benefit of consultation or advice , this ORG would , in a real sense , be legislating on its own account , especially in view of the wide range of policy alternatives from which a ' possible ' solution would require to be selected ... ”

The court , however , made a declaration of incompatibility in respect of section CARDINAL(CARDINAL ) of the DATE Act .

On DATE , ORG of ORG considered the disenfranchisement of prisoners in judicial review proceedings challenging the legality of an order made by the Secretary of ORG for GPE regarding the organisation of the elections to ORG in DATE and the involvement of ORG in those elections . The challenge was based on the provisions of LAW DATE and in particular the requirement that NORP legislation and acts of ORG be compatible with the Convention . Lord PERSON rejected the claim for interdict ( injunction ) , emphasising that it was for ORG to decide whether to remove the incompatibility between domestic legislation and the ORG .

On the question of declaratory relief , he added :

“ CARDINAL . I should record that I was asked to repeat the declarator of incompatibility pronounced in PERSON . There is no dispute in these petitions as to the incompatibility between section CARDINAL of the DATE Act and article CARDINAL of the first protocol . The discussion focused on other matters . That incompatibility has been authoritatively determined in GPE . I am satisfied that a further declarator in these proceedings is unnecessary and inappropriate ... ”

In the case of ORG and ORG , CARDINAL convicted prisoners sought , in light of ORG , a declaration that the disqualification of convicted prisoners from voting did not apply to elections to ORG . After careful consideration of the judgment of this ORG in ORG and the decision of ORG in PERSON , PERSON held :

“ CARDINAL(iv ) . I consider that the [ GPE ] court has deliberately left the method of compliance in the hands of ORG subject to the overriding veto of the court ... Accordingly I see nothing intrinsically objectionable about the various options being explored by the Government proposals contained in the consultation paper of DATE which makes up its response to the ORG decision . The consequence of this is that not only is Mr PERSON [ Deputy Director , Rights and International Relations in ORG at ORG ] entitled to say ... that the Government is unlikely to propose that prisoners serving sentences as long as those of the applicants should become entitled to vote whilst detained , but I am left singularly unconvinced that the applicants are currently or will ever be able to lay claim to a right to vote . I reject the argument of Mr PERSON [ for the applicants ] that because a blanket prohibition on prisoners is incompatible with the Convention that somehow converts into the proposition that all prisoners are currently entitled to vote until the vacuum is filled . In my view that conforms neither with principle nor logic and certainly does not find any authority in ORG which expressly recognises that restraints on LAW are justifiable provided they pursue a legitimate aim and are proportionate . ”

In judicial review proceedings brought in ORG in GPE v. Secretary of ORG for ORG and another , the claimant , a prisoner , argued that his disqualification from voting in the then pending DATE ORG elections breached his rights under LAW No . CARDINAL and under ORG law . He was granted permission to bring his claim on DATE . At the hearing before PERSON , he argued that section DATE ( see paragraph CARDINAL above ) Act should be “ read down ” in order to enable him to vote or , in the alternative , a declaration of incompatibility as regards section CARDINAL of the DATE LAW should be made . He accepted that no argument could be mounted that a “ reading down ” of LAW CARDINAL of the DATE Act would be feasible , within the parameters of LAW .

The claim was dismissed by PERSON on DATE . As to the possibility of “ reading down ” section CARDINAL , PERSON held :

“ CARDINAL . ... I am being asked effectively to draft fresh legislation by bolting on to existing legislation additional words which not only dramatically change its nature , but are imminently to be considered by the ORG . CARDINAL competing alternatives are presented to me for consideration . CARDINAL of these affects the franchise by allowing all convicted prisoners to vote . The other amends the statute so as to allow CARDINAL particular category of convicted prisoners , the post - tariff lifers , to vote , while still retaining a bar on all other prisoners , including those only serving very short terms of imprisonment , to whom it seems , on any basis , the ORG is proposing that the franchise should be extended ; and to make such differentiation simply because the claimant in this case happens to be one of the category in whose favour the statute would now be amended .

The first proposal is not acceptable , not least for the same reasons as were enunciated by PERSON in paragraph CARDINAL(iv ) of his judgment [ in ORG and ORG ] , which I have cited earlier . Enfranchisement of all prisoners , including those with a minimum term / tariff of life which may or may not be what the legislature after full consultation and discussion of all the issues may consider , but it would be a dramatic change , was not , as PERSON points out , required by ORG . As for the alternative , selection of CARDINAL particular category of prisoner simply because CARDINAL of that category happens to be the Claimant , to effect what would in fact be a substantial amendment of the legislation , but CARDINAL category of convicted prisoner , can not be an appropriate exercise of this jurisdiction . It would lead to piecemeal and possibly continuous amendments , without consideration by ORG , of legislation dealing with matters of important social policy , all depending upon which claimant happened to be before the ORG at any one time . ”

PERSON concluded that if and in so far as section CARDINAL of the CARDINAL Act was incompatible with the LAW or with ORG law , reading it down was not an available remedy .

As to whether it would be appropriate to make a declaration of incompatibility in respect of section CARDINAL of the DATE Act , PERSON concluded :

“ DATE . ... I am content to say that there is no need for any declaration to be made by yet another court , as one has already been made which is binding on ORG .

However , towards the end of his submissions , PERSON [ for the claimant ] put forward another basis upon which to support his case for such a declaration . He submitted that , as the grant of a declaration is discretionary , there is no reason why it can not be made again , if it is made on different grounds . He submits that I can and should make a declaration that ORG of the DATE Act is incompatible with the ORG , and do so by reference to the fact that it excludes ( together with all other convicted prisoners ) post - tariff lifers . Then there would be some point in making the declaration , given that the ORG 's proposed legislation seems , subject to what may have emerged from the second consultation , to be intended not to make any change in their position . Hence , it would be a declaration as to the incompatibility with regard to the present legislation , but to be made because it does not appear as if there is going to be any amelioration of his client 's position by reference to the proposed legislation . This would effectively simply amount to the declaration of incompatibility being a peg upon which Mr Southey can hang his substantive submissions , to which I shall come in a moment . Subject however to that argument ... I reject his suggestion that I should make a declaration of incompatibility . ”

In respect of the application for a declaration of incompatibility as regards section CARDINAL of LAW , PERSON said :

“ CARDINAL . I am satisfied that , but for PERSON proposed legislation argument ' , this course is wholly inappropriate as a matter of discretion :

( i ) Simply as a matter of context and background , there is no presently intended NORP election , to which alone sCARDINAL would apply ... These proceedings were brought at the time when the DATE NORP elections were still in the future . There will now not be further such elections for DATE . By that time , whatever the ORG 's personal position may be , new legislation , whatever it may be , will be well in place ( and will have been capable of challenge , if appropriate ) .

( ii ) More significantly , it is plain that the challenge to sCARDINAL is purely parasitic to the real challenge , which is to ORG . SCARDINAL merely provides that ( with the exceptions discussed ) the same people can vote in NORP elections as can vote in GPE elections . When there is new legislation in place of ORG , sCARDINAL will automatically follow . A declaration has already been made in relation to ORG , upon which ORG wholly hangs , and legislation is to be put before ORG with the intention of curing the contravention of the ORG .

For the reasons I have given , namely that there is already a declaration of such incompatibility in relation to the governing section , ORG , upon which sCARDINAL entirely depends , the same reasons drive me to conclude that there is no basis in the exercise of my discretion to grant a declaration of incompatibility in relation to sCARDINAL , any more than there is to sCARDINAL ... ”

On the need for a further declaration of incompatibility as a result of the apparently limited scope of the proposed legislation , PERSON considered that any declaratory or other relief which was intended to interfere with the process by which new legislation resulting from the consultation process was put before and debated by ORG was inappropriate and was not to be granted . In any case , he concluded that the court was :

“ ... ill - equipped to decide this issue of social policy , and certainly ill - equipped to legislate and provide for the consequences of any view , plain and obvious or otherwise , as to which category of prisoners ought to be enfranchised as a result of the removal of the absolute ban . ”

The claimant appealed and on CARDINAL DATE , was granted leave to appeal by ORG . The appeal was heard on DATE and the judgment is pending .

In its recent report , “ Enhancing ORG 's role in relation to human rights judgments ” , CARDINALth Report of DATE , published in DATE , a parliamentary committee , ORG , considered domestic developments in the execution of ORG judgment in ORG and noted :

“ CARDINAL . ... our overriding disappointment is at the lack of progress in this case . We regret that the ORG has not yet published the outcome of its second consultation , which closed DATE , in DATE . This appears to show a lack of commitment on the part of the Government to proposing a solution for ORG to consider .

It is now DATE since the judgment of ORG in GPE v GPE . The Government consultation was finally completed in DATE . Since then , despite the imminent general election , the Government has not brought forward proposals for consideration by ORG . We reiterate our view , often repeated , that the delay in this case has been unacceptable .

... Where a breach of the ORG is identified , individuals are entitled to an effective remedy by LAW . So long as the ORG continues to delay removal of the blanket ban on prisoner voting , it risks not only political embarrassment at ORG , but also the potentially significant cost of repeat litigation and any associated compensation . ”

On DATE a short debate took place in ORG following a question to the Government regarding their plans to give prisoners the right to vote . In the course of that debate , the Minister emphasised that the Government were under a legal obligation to change the law following the judgment in ORG . He said that the Government were actively considering how to implement the judgment and that once decisions had been made , legislative proposals would be brought forward .

On DATE , in response to a question in ORG , the Prime Minister also emphasised that the Government were required to come forward with proposals to implement the ORG 's judgment in ORG .

On DATE , in the context of their supervision of the execution of the ORG 's judgment in ORG , ORG adopted Interim Resolution CM / ResDH(CARDINAL)CARDINAL , which stated as follows :

“ ORG , ...

Recalling that , in the present judgment , the ORG found that the general , automatic and indiscriminate restriction on the right of convicted prisoners in custody to vote , fell outside any acceptable margin of appreciation and was incompatible with LAW No . CARDINAL to the Convention ;

Recalling that the ORG , while acknowledging that the rights bestowed by LAW are not absolute , expressly noted that in the present case the blanket restriction applied automatically to all prisoners , irrespective of the length of their sentence , the nature or gravity of their offence and their individual circumstances ;

Recalling further that the ORG found ' no evidence that ORG has ever sought to weigh the competing interests or to assess the proportionality of a blanket ban on the right of a convicted prisoner to vote ' ;

Noting that the blanket restriction imposed by LAW DATE remains in full force and effect ;

Recalling that GPE authorities , in a revised ORG submitted in DATE , committed to undertaking a CARDINAL - stage consultation process to determine the measures necessary to implement the judgment of the ORG , with a view to introducing the necessary draft legislation before ORG in DATE ;

Noting that GPE authorities have provided detailed information as regards the consultation process , and that they are committed to continuing to do so ;

Noting however that the second consultation stage ended on DATE , and the GPE authorities are now undertaking a detailed analysis of the responses thereto , in order to determine how best to implement a system of prisoner enfranchisement based on the length of custodial sentence handed down to prisoners ,

EXPRESSES SERIOUS CONCERN that the substantial delay in implementing the judgment has given rise to a significant risk that the next GPE general election , which must take place by DATE , will be performed in a way that fails to comply with the Convention ;

URGES the respondent state , following the end of the second stage consultation period , to rapidly adopt the measures necessary to implement the judgment of the ORG ;

On DATE ORG adopted a decision in which they noted that notwithstanding ORG judgment in ORG , a declaration of incompatibility with the Convention under LAW by the highest civil appeal court in GPE in the case of PERSON v. PERSON and the large number of persons affected , the automatic and indiscriminate restriction on prisoners ' voting rights remained in force ; reiterated their serious concern that a failure to implement the ORG 's judgment before the general election and the increasing number of persons potentially affected by the restriction could result in similar violations affecting a significant category of persons , giving rise to a substantial risk of repetitive applications to ORG ; and strongly urged the authorities rapidly to adopt measures , even if of an interim nature , to ensure the execution of the ORG 's judgment before the then pending general election .

On DATE ORG adopted a further decision in which they expressed profound regret that despite the repeated calls of ORG , the GPE general election had been held on DATE with the blanket ban on the right of convicted prisoners in custody to vote still in place ; and expressed confidence that the new GPE government would adopt general measures to implement the judgment ahead of elections scheduled for DATE in GPE , GPE and GPE , and thereby also prevent further , repetitive applications to ORG .

On DATE ORG adopted their most recent decision on the execution of ORG , in the following terms :

“ The Deputies ,

recalled that in the present judgment , delivered on DATE , the ORG found that the general , automatic and indiscriminate restriction of the right of convicted prisoners in custody to vote , fell outside any acceptable margin of appreciation and was incompatible with LAW No . CARDINAL to the Convention ;

recalled that since its CARDINAL meeting ( DATE ) , the ORG has urged GPE to prevent future , repetitive applications by adopting general measures to implement the judgment ;

deeply regretted that despite the ORG 's calls to GPE over DATE to implement the judgment , the risk of repetitive applications to ORG has materialised as the ORG has communicated CARDINAL applications to the government with a view to adopting the pilot judgment procedure and has received over CARDINAL applications ;

noted , that according to the information provided by GPE authorities during the meeting , the new government is actively considering the best way of implementing the judgment ;

regretted , however , that no tangible and concrete information was presented to ORG on how GPE DATE intends to abide by the judgment ;

called upon GPE , to prioritise implementation of this judgment without any further delay and to inform ORG on the substantive steps taken in this respect ;

highlighted in this connection that , within the margin of appreciation of the state , the measures to be adopted should ensure that if a restriction is maintained on the right of convicted persons in custody to vote , such a restriction is proportionate with a discernible and sufficient link between the sanction , and the conduct and circumstances of the individual concerned ;

Article CARDINAL(CARDINAL)(b ) TFEU provides :

“ CARDINAL . ORG shall enjoy the rights and be subject to the duties provided for in the Treaties . They shall have , inter alia :

( b ) the right to vote and to stand as candidates in elections to ORG and in municipal elections in their Member State of residence , under the same conditions as nationals of that ORG ;

Article CARDINAL ) TFEU provides :

“ Without prejudice to Article PERSON ) and to the provisions adopted for its implementation , every citizen of the Union residing in a Member ORG of which he is not a national shall have the right to vote and to stand as a candidate in elections to ORG in the Member ORG in which he resides , under the same conditions as nationals of that ORG . This right shall be exercised subject to detailed arrangements adopted by the ORG , acting unanimously in accordance with a special legislative procedure and after consulting ORG ; these arrangements may provide for derogations where warranted by problems specific to a Member State . ”

Article CARDINAL TFEU provides :

“ CARDINAL . ORG shall draw up a proposal to lay down the provisions necessary for the election of its Members by direct universal suffrage in accordance with a uniform procedure in all Member GPE or in accordance with principles common to all Member GPE .

The ORG , acting unanimously in accordance with a special legislative procedure and after obtaining the consent of ORG , which shall act by a majority of its component Members , shall lay down the necessary provisions ... ”

To date , the ORG has not adopted an instrument setting out a uniform election procedure . However , certain agreed principles are set out in LAW ( see below ) .

LAW provides :

“ CARDINAL . In each Member ORG , members of ORG shall be elected on the basis of proportional representation , using the list system or the single transferable vote .

Member GPE may authorise voting based on a preferential list system in accordance with the procedure they adopt .

Elections shall be by direct universal suffrage and shall be free and secret . ”

The DATE Act also contains provisions on , inter alia , the allocation of seats , campaign expenses , the term and nature of members ' mandates and the organisation of elections .

LAW clarifies that :

“ Subject to the provisions of this LAW , the electoral procedure shall be governed in each Member ORG by its national provisions .

These national provisions , which may if appropriate take account of the specific situation in the Member GPE , shall not affect the essentially proportional nature of the voting system . ”

Article CARDINAL of Directive CARDINAL/CARDINAL/EC stipulates that the directive lays down the detailed arrangements whereby citizens of the ORG residing in a Member ORG of which they are not nationals may exercise the right to vote and to stand as a candidate in elections to ORG .

Article CARDINAL provides :

“ Any person who , on the reference date :

( a ) is a citizen of the Union ... ;

( b ) is not a national of the Member ORG of residence , but satisfies the same conditions in respect of the right to vote and to stand as a candidate as that ORG imposes by law on its own nationals ,

shall have the right to vote and to stand as a candidate in elections to ORG in the Member State of residence unless deprived of those rights pursuant to ORG and CARDINAL . ”

In so far as relevant , Article CARDINAL provides :

In order to have his name entered on the electoral roll , a Community voter shall produce the same documents as a voter who is a national . He shall also produce a formal declaration ...

The Member ORG of residence may also require a ORG voter to :

( a ) state in his declaration under paragraph CARDINAL that he has not been deprived of the right to vote in his home Member State ;

Article CARDINAL refers to the right to stand as a candidate . Article CARDINAL allows the ORG of residence to verify whether a person seeking to exercise his right to vote under the Directive has been deprived of that right in the home ORG . If the information provided invalidates the content of the declaration made under LAW , the ORG of residence is required to take the appropriate steps to prevent the person concerned from voting .

In a preliminary reference to ORG ( “ ECJ ” ) in case C-CARDINAL/CARDINAL PERSON v ORG , the ECJ was asked to consider the extent to which national courts were required to interpret national law in light of the wording and the purpose of an ORG directive which had not been implemented by the Member State in question . The ECJ held that :

“ ... the Member GPE ' obligation arising from a directive to achieve the result envisaged by the directive and their duty under LAW to take all appropriate measures , whether general or particular , to ensure the fulfilment of that obligation , is binding on all the authorities of Member GPE including , for matters within their jurisdiction , the courts . It follows that , in applying national law , whether the provisions in question were adopted before or after the directive , the national court called upon to interpret it is required to do so , as far as possible , in the light of the wording and the purpose of the directive in order to achieve the result pursued by the latter ... ”