Violation of Art. 5-1;No violation of Art. 5-4;Remainder inadmissible;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and prior to the events in question he had been living in GPE . He is currently serving a prison sentence in GPE .

On DATE , the applicant was arrested and detained in GPE following a request for his extradition ( quoting ORG ) by the NORP authorities , pursuant to an arrest warrant issued by ORG as a ORG .

The arrest warrant had been issued on the basis of an allegation that the applicant had in GPE conspired with another person or persons in GPE to transport drugs to GPE .

While detained in GPE , the applicant , through his legal counsel , lodged proceedings in GPE contesting the legality of the arrest warrant .

On DATE , while he was in GPE , the applicant , through his legal counsel , requested ORG to re - examine the lawfulness of his arrest on the ground that it had not been competent to issue the warrant and that GPE did not have jurisdiction to try the applicant .

On DATE ORG rejected both claims . It held that the facts which formed the basis of the charges against the applicant amounted to a crime falling under the NORP authorities’ jurisdiction and that in the referral stage ( “ rinviju ” ) , it had been competent to issue the warrant .

On DATE the applicant complained under LAW and CARDINAL of the Convention . He maintained that his arrest in GPE had occurred consequent to an arrest warrant which was unlawful on the grounds , first , that ORG did not have jurisdiction on the facts as alleged . According to section CARDINAL of LAW ( hereinafter “ FAC ) , the NORP courts had jurisdiction over foreigners acting outside NORP territory only in cases specifically provided for in law and this could not be extended by means of interpretation . There was no specific law and none of the legal provisions cited in the arrest warrant ( section CARDINAL ( CARDINAL ) ( f ) of the LAW and ORG ( f ) of ORG ) referred to the alleged facts . Secondly , the applicant claimed that the warrant had been issued by an authority which was not competent to issue it . Moreover , he complained that ORG which had been requested to examine speedily the lawfulness of his arrest did not satisfy the requirements of LAW in so far as , according to section CARDINALA of the ORG ( see paragraph CARDINAL below ) , only the prosecution had a right of appeal , not the accused . He requested the court to uphold the alleged violations , revoke the arrest warrant and the consequential request for extradition , and to grant him compensation .

On DATE ORG partly upheld the applicant ’s claims . It held that the arrest warrant of CARDINAL DATE should be rescinded as the court issuing it had acted ultra vires . Indeed , ORG in its referral stage had no competence to issue the arrest warrant , even more so since the issuing of such warrant had not been requested by the Attorney General and such action did not fall within the ambit of LAW witnesses ; therefore the applicant ’s arrest was devoid of any legal basis and contrary to LAW and the applicant should accordingly be released . Moreover , it held that ORG when examining the lawfulness of the arrest warrant did not comply with the requirements of LAW in so far as it granted the Attorney General ( hereinafter “ ORG ” ) an “ appeal ” and no equivalent remedy to the applicant . ORG granted the applicant compensation amounting to CARDINAL NORP PERSON ( MTL – approximately MONEY ( ORG ) ) .

NORP However , it held that according to the CC the NORP courts had jurisdiction over any individual who committed a crime expressly stated in law even if such crime had been committed outside GPE . In the present case there was no doubt that the relevant laws , namely section CARDINAL ( CARDINAL ) , ( e ) and ( f ) of the LAW and section CARDINAL A ( CARDINAL ) , ( e ) and ( f ) of ORG ( see paragraphs CARDINAL below ) , which were similarly worded , covered crimes considered as such in GPE , notwithstanding that they had occurred outside GPE . While subsection ( e ) covered only persons who were NORP citizens or residents , subsection ( f ) covered any person in GPE or outside the territory of GPE , and was not a follow - up to the previous subsection ; therefore it did not carry the same limitations . Had the legislator wanted to limit subsection ( f ) he would have done so explicitly but no such qualification had been made . Further , nothing else provided reason to believe that subsection ( f ) had to be read as a continuation of subsection ( e ) ; indeed , the use of the word “ or ” suggested that the contrary interpretation applied . Moreover , since subsection ( f ) particularly contemplated crimes against ORG and which were to the detriment of NORP society , it was plausible to infer that there was no qualification to the subsection .

On DATE the applicant appealed requesting that his arrest be declared unlawful on the additional ground that GPE lacked jurisdiction to try a NORP national , who was not a permanent resident in GPE , for acts committed outside GPE and that the alleged conspiracy conferred jurisdiction solely on those who had acted on or from NORP soil . Moreover , he complained that the sum granted by way of compensation was too low in view of the fact that he had been under arrest since DATE .

According to the Government , on DATE ORG informed ORG by e - mail that the warrant had been declared unlawful . However , in line with the ORG ’s interpretation , ORG was also informed that the judgment was not final and had no effect until the appeal , yet to be lodged , had been decided .

In the meantime the ORG lodged a cross - appeal .

It appears that the applicant ’s legal counsel had informed the NORP authorities of the judgment in favour of the applicant and had requested the applicant ’s release on this basis . According to the Government , on DATE a NORP court decided that the applicant ’s release was a matter to be decided on the basis of NORP law without any reference to NORP law . The applicant was not released .

Consequently , pending the main constitutional proceedings , on DATE , the applicant filed another application with ORG requesting the execution of his release according to the judgment of CARDINAL DATE . He claimed that according to NORP law , namely section CARDINAL of ORG ( hereinafter “ COCP ” ) , a judgment declaring an arrest unlawful was immediately enforceable , notwithstanding any pending appeal .

On DATE the ORG filed a reply making reference to LAW ( hereinafter “ ORG ” ) , submitting , inter alia , that section CARDINAL of the COCP was not applicable to situations such as the present where a person was detained in a foreign jurisdiction under the law of that jurisdiction . Moreover , although the applicant had so requested , the judgment of CARDINAL DATE had not ordered the cancellation of the extradition request .

On DATE the applicant limited his ancillary claim lodged on DATE to the applicability of section CARDINAL of the COCP , thus de facto withdrawing his request for release under these proceedings in favour of a more generic request on the applicability of the law . ORG upheld the applicant ’s request stating that the judgment at issue was indeed provisionally enforceable in terms of section CARDINAL ( b ) of the COCP in so far as it provided remedies against unlawful arrest .

On DATE ORG , dealing with the main proceedings , delivered judgment on the applicant ’s appeal and the ORG ’s cross - appeal . It revoked the first judgment in so far as it had found inter alia a violation of LAW , and in so far as it had ordered the applicant ’s release . It ruled that the arrest warrant was null and void , but only on the ground that ORG in the referral stage ( “ rinviju ” ) had not been competent to issue the warrant and that consequently the arrest was unlawful and in violation of LAW . However , GPE , his release could not be ordered by the court . Furthermore , in its view , the arrest warrant had been validly grounded in law . Notwithstanding the general provisions of the ORG , particularly section CARDINAL A , which might have provided otherwise , section CARDINAL ( CARDINAL ) , ( e ) and ( f ) of the LAW and section CARDINAL A ( CARDINAL ) , ( e ) and ( f ) of ORG prevailed , according to section CARDINAL of the ORG , given that they were special laws . Nevertheless , ORG could not usurp the function of ORG , which was the only court competent to decide on the matter of jurisdiction . Having regard to the fact that the unlawfulness was solely due to a procedural defect , it found the compensation granted by the first court to be adequate and confirmed the sum . It further held that the parties were to bear their own costs and advised that a new warrant under section CARDINAL V of the ORG could be issued and would be perfectly legal .

On DATE the applicant was granted bail by the NORP authorities with the obligation to report DATE to a police station . His passport was impounded .

On DATE the applicant was re - arrested by the NORP authorities on the basis of a new request by the NORP authorities , but as a continuation of the previous extradition proceedings .

On DATE , the Audiencia Nacional in GPE confirmed the applicant ’s extradition to GPE . On DATE the applicant was extradited to GPE to stand trial .

By a decision of ORG of DATE , and by the judgment of ORG of DATE confirmed by ORG judgment of DATE , it was held that ORG had the necessary jurisdiction over the facts of which the applicant was accused . The latter judgment found the applicant guilty of the said charges . The applicant has been in prison ever since .

On DATE the applicant , who at the time was under house arrest in GPE , also introduced another application with the ORG with further complaints regarding later stages of his proceedings in GPE ( application no . CARDINAL ) .

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

“ ( CARDINAL ) Saving any other special provision of this LAW or of any other law conferring jurisdiction upon the courts in GPE to try offences , a criminal action may be prosecuted in GPE –

( i ) against any person who commits an offence which , by express provision of law , constitutes an offence even when committed outside GPE . ”

Section CARDINAL ( CARDINAL ) of LAW , reads as follows :

“ Whosoever in GPE conspires with CARDINAL or more persons in GPE or outside GPE for the purpose of committing any crime in GPE liable to a punishment of imprisonment , not being a crime in GPE under LAW , shall be guilty of the offence of conspiracy to commit that offence . ”

Section CARDINAL of the Dangerous Drugs Ordinance , LAW of LAW , in so far as relevant , reads as follows :

“ ( CARDINAL ) Any person –

( d ) who in GPE aids , ... ; or

( e ) being a citizen of GPE or a permanent resident in GPE , who in any place outside GPE does any act which if committed in GPE would constitute an offence of selling or dealing in a drug against this Ordinance or an offence under paragraph ( f ) ; or

( f ) who with another one or more persons in GPE or outside GPE conspires for the purposes of selling or dealing in a drug in these LOC against the provisions of this Ordinance or who promotes , constitutes , organises or finances the conspiracy , shall be guilty of an offence against this GPE . ”

This same wording is reproduced in LAW , in defining the offences related to psychotropic drugs .

As regards practice , it appears that the NORP courts have regularly convicted persons ( particularly drug couriers ) of the crime of conspiracy where the offence is alleged to have taken place outside GPE ( see , for example , GPE v. PERSON , DATE and GPE v. PERSON , DATE ) .

ORG NORP Convention on Extradition ( “ ECE ” ) ( GPE , DATE ) which came into force in respect of GPE DATE after its ratification on DATE , requires that a request made by a requesting ORG shall be supported by the original or a copy of the warrant of arrest issued in accordance with the procedure laid down in the law of the requesting ORG . Except where the ORG otherwise provides , the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested ORG ( extraditing ORG ) . Articles CARDINAL and CARDINAL of the said ORG , in so far as relevant , read as follows :

“ The request shall be in writing and shall be communicated through diplomatic channels . Other means of communication may be arranged by direct agreement DATE .

The request shall be supported by :

the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting ORG ; ... ”

“ Except where this Convention otherwise provides , the procedure with regard to extradition and provisional arrest shall be governed solely by the law of the requested ORG . ”

ORG ( “ GPE ” ) Member GPE now make use of a NORP arrest warrant ( “ EAW ” ) , which discontinues the use of the extradition procedure . The new procedure takes the form of a judicial decision issued by a ORG Member ORG with a view to the arrest and surrender by another Member ORG of a person being sought in connection with a criminal prosecution or a custodial sentence . ORG scheme makes procedures faster and simpler without requiring any political involvement . The GPE Member GPE were required to introduce legislation to bring the EAW into force by DATE . However , GPE having joined ORG at DATE , this legislation came into force there on DATE by virtue of the Extradition ( Designated Foreign Countries ) Order , DATE .

As regards the remedies against unlawful detention

Section CARDINALA of the Maltese Criminal Code regarding an application by a person in custody alleging unlawful detention , reads as follows :

“ ( CARDINAL ) Any person who alleges he is being unlawfully detained under the authority of the police or of any other public authority not in connection with any offence with which he is charged or accused before a court may at any time apply to ORG , which shall have the same powers which that court has as a court of criminal inquiry , demanding his release from custody . Any such application shall be appointed for hearing with urgency and the application together with the date of the hearing shall be served on DATE of the application on the applicant and on the Commissioner of Police or on the public authority under whose authority the applicant is allegedly being unlawfully detained . The Commissioner of Police or public authority , as the case may be , may file a reply by not later than the day of the hearing .

( CARDINAL ) On DATE appointed for the hearing of the application the court shall summarily hear the applicant and the respondents and any relevant evidence produced by them in support of their submissions and on the reasons and circumstances militating in favour or against the lawfulness of the continued detention of the applicant .

( CARDINAL ) If , having heard the evidence produced and the submissions made by the applicant and respondents , the court finds that the continued detention of the applicant is not founded on any provision of this LAW or of any other law which authorises the arrest and detention of the applicant it shall allow the application . Otherwise the court shall refuse the application .

( CARDINAL ) Where the court decides to allow the application the record of the proceedings including a copy of the court ’s decision shall be transmitted to the Attorney General by not later than the next working day and the Attorney General may , within DATE from the receipt of the record and if he is of the opinion that the arrest and continued detention of the person released from custody was founded on any provision of this LAW or of any other law , apply to ORG to obtain the re - arrest and continued detention of the person so released from custody . The record of the proceedings and the court ’s decision transmitted to the Attorney General under the provisions of this subarticle shall be filed together with the application by the Attorney General to ORG . ”

Section CARDINAL of the Code of ORG , in so far as relevant reads as follows :

“ The following shall be in all cases provisionally enforceable :

( b ) any judgment ... providing remedies against illegal arrest ... ; ”

As regards the role of ORG

Article CARDINAL

“ ( CARDINAL ) The Constitutional Court shall ... have jurisdiction to hear and determine all appeals under LAW and exercise all such powers as are conferred on it by this LAW . ”

Article CARDINAL

“ ( CARDINAL ) Any person who alleges that any of FAC , has been , is being or is likely to be contravened in relation to him , or such other person as ORG , ORG , in GPE may appoint at the instance of any person who so alleges , may , without prejudice to any other action with respect to the same matter that is lawfully available , apply to ORG , ORG , for redress .

( CARDINAL ) ORG , ORG , shall have original jurisdiction to hear and determine any application made by any person in pursuance of sub - article ( CARDINAL ) , and may make such orders , issue such writs and give such directions as it may consider appropriate for the purpose of enforcing , or securing the enforcement , of FAC to the enjoyment of which the person concerned is entitled :

Provided that the court may , if it considers it desirable so to do , decline to exercise its powers under this sub - article in any case where it is satisfied that adequate means of redress for the contravention alleged are or have been available to the person concerned under any other ordinary law .

( CARDINAL ) Any party to proceedings brought in ORG , ORG , in pursuance of this article shall have a right of appeal to ORG . ”

Consequently , a complaint must be lodged with both instances before it is introduced with ORG . However , in PERSON v. GPE , no . ORG , DATE , § DATE , the ORG held that this procedure was rather cumbersome and therefore lodging a constitutional application would not have ensured a speedy review of the lawfulness of the applicant ’s detention . Consequently in the cited case the applicant had not had at his disposal , under domestic law , a remedy for challenging the lawfulness of his detention under LAW .


Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed

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

DATE the applicant was the Head of ORG of the “ Łódzkie ” housing co - operative ( PERSON “ Os . Łódzkie ” ) .

NORP In DATE ORG i Gminy ) requested the prosecution service to initiate an investigation against the applicant for not returning documents concerning the Committee .

On DATE the applicant was charged with having hidden the documents .

On DATE the applicant was indicted before the Tomaszów Mazowiecki District Court ( Sąd Rejonowy ) .

On DATE and CARDINAL DATE ORG held hearings . On DATE it gave a judgment in which it found that the applicant had committed the offence . The trial court conditionally discontinued the proceedings . The applicant was given a term of probation of DATE and ordered to pay ORG CARDINAL to a charity . The applicant appealed .

On DATE ORG ( Sąd Wojewódzki ) held a hearing and on DATE it dismissed the applicant ’s appeal .

In DATE the applicant lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

NORP On DATE ORG dismissed the cassation appeal as manifestly ill - founded .

Articles CARDINAL et seq . of LAW ( ORG cywilny ) provide for the ORG ’s liability in tort .

In the version applicable until DATE , Article CARDINAL § CARDINAL , which lays down a general rule , read as follows :

“ CARDINAL . The State Treasury shall be liable for damage caused by a ORG official in the performance of the duties entrusted to him . ”

Article CARDINAL of the Civil Code sets out limitation periods in respect of various claims based on tort . That provision applies to situations covered by Article CARDINAL of LAW . Article CARDINAL , in so far as relevant , reads :

“ CARDINAL . A claim for compensation for damage caused by a tort shall lapse DATE following the date on which the claimant learned of the damage and of the persons liable for it . However , the claim shall in any case lapse DATE following the date on which the event causing the damage occurred . ”

On DATE the Law of DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

A more detailed rendition of the relevant domestic law provisions is set out in the ORG ’s judgment in GPE v. GPE , no . CARDINAL , § § CARDINAL–CARDINAL , ORG CARDINAL– ... ( extracts ) and in PERSON v. GPE DATE . ) , no . CARDINAL , § § CARDINAL , ORG CARDINAL ....


BENET PRAHA, SPOL. S R.O.  v. THE CZECH REPUBLIC

Ganna Yudkivska;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

The applicant , PERSON , spol . s r.o . , is a limited liability company incorporated under NORP law with its registered seat in GPE . It was represented before the ORG by PERSON , a lawyer practising in GPE . The respondent Government were represented by their Agent , Mr V.A. Schorm , from ORG .

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

In DATE criminal proceedings were instituted against a former manager of the applicant company on the suspicion of having committed tax evasion . Within the framework of the criminal proceedings a search of the applicant company 's premises was carried out on DATE . Cash in several currencies in the total amount of MONEY . ( EUR CARDINAL ) and several documents such as financial files , books of accounts and business documents were seized . According to the applicant company these documents and most of the cash have not yet been returned to it .

On DATE , the prosecuting authorities seized all of the applicant company 's assets deposited on its CARDINAL bank accounts on the suspicion that they constituted a profit from criminal activities of the manager . The seizure orders , which were notified to the applicant company on DATE , did not specify what assets had been seized , nor to what amount . This was remedied on DATE by ORG ( vrchní státní zástupce ) who amended the original decisions by writing in the sums to be seized . While doing so , he froze all assets deposited on the applicant company 's accounts on DATE , i.e. inclusive of payments which had come in after DATE and DATE , respectively . The applicant company 's assets amounting to CARDINAL CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL,CARDINAL ) were thus seized .

The criminal proceedings against the former manager of the applicant company are currently pending before an appellate court . On DATE ORG acquitted the manager . The prosecutor , however , appealed . During the investigation the prosecuting authorities , inter alia , collected CARDINAL pages of documentary evidence , interviewed CARDINAL witnesses and requested legal assistance from the competent authorities of CARDINAL countries .

Meanwhile , numerous tax and custom proceedings were brought against the applicant company in regard of a suspected retrenchment . They all were later discontinued as no tax and customs evasion by the applicant company was detected .

On DATE the applicant company lodged a request with the police , seeking to have the seizure of its bank accounts lifted .

On DATE the request was transferred to ORG who , on DATE , dismissed it , stating that the reasons for the seizure continued . ORG added that the fact that the tax proceedings brought against the applicant company had been discontinued was irrelevant to the seizure .

On DATE the applicant company appealed to ORG ( vrchní soud ) which dismissed the appeal on DATE .

On DATE the applicant company lodged a constitutional appeal against ORG decision of CARDINAL DATE . In the appeal , the applicant company claimed that the seizure of its assets was disproportionate due to its excessive length .

On DATE ORG ( Ústavní soud ) declared the appeal inadmissible , finding that a fair balance between the general interest of the society and those of the applicant company arising from its fundamental rights had been struck . The decision was served on the applicant company 's lawyer on DATE .

On DATE ORG found a violation of the right to property of a company PERSON , spol . s r.o . , which was in a similar position as the applicant company . It held that the length of the seizure , over DATE , was unreasonable , which thus disrupted the fair balance between the general interest of fighting serious crime and the protection of the rights of the applicant company . The applicant company lodged another request for the seizure of its bank accounts to be lifted referring to this decision of ORG . On DATE the High Prosecutor lifted the seizure of the applicant company 's bank accounts holding that the conclusions of ORG applied also to the applicant company .


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

Under the technical and cultural convention concluded between GPE and GPE on DATE , ORG recruited PERSON on DATE as a senior lecturer at ORG .

On DATE the NORP embassy in GPE sent the applicant a certificate of termination of payment , the date of expiry of her contract having been set at DATE by the NORP authorities . The certificate stated :

Certifies that PERSON … Senior Lecturer without tenure … will have her name removed from the list of staff serving overseas on DATE and will be paid by ORG until DATE .

On DATE PERSON applied to the Minister for ORG , seeking to have the decision of CARDINAL DATE revoked and to be appointed to the town - planning teaching staff on the basis of the provisions of LAW see paragraph CARDINAL below ) .

On DATE the Minister for ORG refused the applicant ’s requests on the ground , in particular , that the application of the PERSON in question was conditional on the publication of implementing decrees , which did not exist when the impugned decision was taken .

On DATE PERSON applied to ORG to quash the decision of CARDINAL DATE ; she also sought a declaration that she was entitled to be established as a civil servant with effect from DATE .

NORP The Minister of State at ORG filed his pleading on DATE and the applicant did likewise on DATE .

On DATE , having held a hearing on DATE , the court delivered the following judgment :

As to the submissions concerning the refusal to establish the applicant as a civil servant

As to the ground based on infringement of sections CARDINAL et seq . of the LAW DATE and sections CARDINAL et seq . of the PERSON of DATE

By LAW no . CARDINAL - CARDINAL of DATE , ‘ NORP cultural , scientific and technical cooperation PERSON have ‘ the right to become established if they so request’ .

The application of that PERSON and , in particular , of the … provisions of LAW CARDINAL was , however , conditional on the enactment of decrees adopted after consultation of the PERSON d’Etat , which had not been published by the date on which the provisions in question were in turn taken over in sections CARDINAL et seq . of PERSON no . CARDINAL of DATE , and the decrees to be adopted after consultation of the ORG d’Etat which were also necessary for the application of these had likewise not been enacted by the date of the impugned decision .

While it is established that the authority empowered to make regulations is under a legal obligation to take , within a reasonable time , those measures which are within its powers and are necessary for the implementation of a legislative enactment , it does not appear that the time which has elapsed since the publication of the legislative enactment can be regarded as excessive . PERSON consequently can not rely on that circumstance to challenge the lawfulness of the decision whereby the Minister of State at ORG refused her application .

On CARDINAL DATE PERSON appealed to the ORG d’Etat against ORG judgment . She filed a supplementary pleading on DATE .

The PERSON d’Etat held a hearing on DATE and delivered its judgment on DATE . It quashed ORG judgment of CARDINAL DATE and the Minister for Foreign Affairs’ decision of CARDINAL DATE and dismissed the remainder of the appeal as follows :

As to the lawfulness of the decision under appeal

By the provisions of section CARDINAL and sub - paragraph CARDINAL of section CARDINAL of the LAW DATE , which was taken over in sub - paragraph CARDINAL of section CARDINAL of the LAW DATE , ORG employees not on the establishment who are civilian cultural , scientific or technical cooperation staff in post in foreign States have the right to become established …

By the first sub - paragraph of section CARDINAL of the same PERSON , ‘ Employees not on the establishment who may rely on the provisions of this PERSON can not be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section CARDINAL for making their choice’ …

Although PERSON , at the end of her contract , was placed at the disposal of ORG by ORG and although she was recruited to fill a specific post in GPE , the Minister could not lawfully dismiss her other than for professional shortcomings or for a disciplinary offence . It is established that in refusing to renew PERSON contract by sending her notice of termination of payment … a decision which may be regarded as a dismissal in the light of the aforementioned provisions of section CARDINAL … the authorities relied exclusively on the fact that PERSON had been placed at their disposal by ORG . That being so , the decision was taken in breach of section CARDINAL of the Law of DATE and PERSON Roche is consequently justified in maintaining that ORG in its impugned judgment of CARDINAL DATE was wrong to dismiss her application in so far as she was seeking to have the decision … [ of ] CARDINAL DATE quashed .

As to the submissions concerning the applicant ’s being placed on the establishment

While under sections DATE and CARDINAL of the Law of DATE certain employees who are not established and civilian cultural … cooperation staff have the right to become established , if they so request , in vacant posts or ones that are to be created in ORG , it is apparent from sections CARDINAL and CARDINAL of the same PERSON that the legislature provided that the arrangements for implementing the principle should be laid down in decrees adopted after consultation of the PERSON d’Etat . Consequently , in any event , since the decree to be adopted after consultation of the ORG d’Etat providing for appointment to a body of ORG teaching staff as an established civil servant had not been published , the Minister could not do other than dismiss the application for establishment submitted on the basis solely of sections CARDINAL and CARDINAL of the LAW DATE . ”

On DATE PERSON submitted a preliminary claim to the Minister for ORG for compensation for the loss sustained on account of her not having become an established member of the State ’s architect teaching staff .

On DATE she lodged an application with ORG , seeking to have the implicit refusal of her compensation claim quashed .

On DATE the applicant submitted a fresh compensation claim to the ORG and , in consequence , updated her court claim on CARDINAL DATE . She filed a supplementary pleading on DATE .

Concurrently with the proceedings on the merits , PERSON made an application to the court on DATE for an interim award .

In an interim order of CARDINAL DATE the court directed the Minister for ORG to pay the applicant the sum of MONEY ( ORG ) as an advance representing the amount of loss of remuneration over the period from CARDINAL DATE to DATE . The order read as follows :

In her application PERSON sought an order that the ORG , represented by the Minister for ORG , should pay her the sum of MONEY as an advance on the sums sought in her substantive application by way of salary which , pursuant to the ORG d’Etat ’s judgment of DATE , was due to her … Although the application was communicated to the Minister for ORG … , he did not dispute the existence of the obligation on which the applicant relied against the State . The existence of that obligation is not refuted by any of the evidence and can not be seriously challenged .

On DATE , on a second application for an interim order on DATE , followed by a defence filed on DATE , the court ordered the ORG to make a further interim payment of ORG CARDINAL,CARDINAL .

Having held a hearing on DATE , ORG delivered its judgment on DATE . It joined the applications of DATE ( see paragraph CARDINAL above ) and DATE ( see paragraph CARDINAL above ) , held that the loss allegedly caused by the refusal of the application to become established did not sound in damages and that the unlawfulness of the decision to terminate employment , as found by the PERSON d’Etat , amounted to a culpable act capable of rendering the ORG liable . The ORG was ordered to pay the applicant the sum of ORG CARDINAL,CARDINAL , including the interim awards . The court gave the following reasons for its decision :

“ As to the ORG ’s liability

… while it is true that the Government was under an obligation to adopt the decrees in issue within a reasonable time , the provisions of the PERSON of DATE conferred on the applicant , not a present right [ droit ] but only a contingent right [ vocation ] to become established , such a measure being also conditional on the creation of the corresponding posts and , where appropriate , professional recruitment …

The Minister , however , could not lawfully decide that PERSON name would be removed from the list of staff serving overseas or refrain from acting on the application made by the applicant on DATE seeking to be appointed to a post of non - established employee equivalent to the one from which she had been dismissed . That unlawfulness amounts to a culpable act capable of rendering the ORG liable to the applicant .

On DATE the applicant asked to be notified of the judgment and it was served on her on DATE .

On DATE PERSON appealed against ORG judgment to ORG , seeking an order that the ORG should pay her an additional sum of ORG CARDINAL .

On DATE the Minister for Cooperation filed a pleading in which he argued that it was for the Minister for ORG to reply to the applicant ’s submissions . The applicant argued the same in a pleading of DATE , pointing out that the Minister for ORG had ignored the court ’s formal notice that he should submit his defence .

NORP The Minister for ORG filed a pleading on DATE , that is to say after the time - limit laid down in the formal notice sent by the registry of ORG , and PERSON de la Roche replied on DATE . She filed a further pleading on DATE .

Having held a hearing on DATE , ORG dismissed the applicant ’s appeal in a judgment of CARDINAL DATE and varied ORG judgment by reducing the amount of the sum payable by the ORG to ORG CARDINAL,CARDINAL . The judgment was served on the applicant on DATE .

Section CARDINAL of Law no . CARDINAL of DATE on the position of civilian cultural , scientific and technical cooperation staff in post in foreign GPE provides :

“ Staff other than those mentioned in LAW , second sub - paragraph , shall , at the end of their cooperation assignment and on the terms laid down by decree , enjoy the guarantees provided for non - established public employees who lose their jobs .

Cooperation service by those same staff shall be treated as service carried out in GPE by staff who are not established or not permanent , in particular as regards the appointment or establishment as national civil servants of established employees of local authorities and public bodies or permanent staff of public services , bodies or undertakings of an industrial or commercial nature . ”

When the applicant ’s contract expired , her position was governed by PERSON no . CARDINAL - CARDINAL of DATE laying down the procedure for filling permanent civilian posts in the service of the ORG and its public bodies and authorising the establishment of non - established employees occupying such posts , and more particularly by the following provisions :

Section CARDINAL

“ Employees not on the establishment who occupy a post with the characteristics laid down in LAW above shall have the right to become established , if they so request , in posts that are vacant or that are to be created in FAC , provided that they

( CARDINAL ) NORP either are in post at the date of publication of the present PERSON , or are on leave at that date pursuant to Decree no . CARDINAL - CARDINAL of DATE on the social welfare of non - established ORG employees , or are on leave at that date pursuant to Decree no . CARDINAL of DATE on the social welfare of non - established employees of the ORG and of ORG public administrative or cultural and scientific bodies , of NORP nationality and in service abroad ;

( CARDINAL ) have , at the date of making their application , carried out actual service of a duration equivalent to DATE of full - time service in CARDINAL of the above - mentioned posts ; and

( CARDINAL ) satisfy the conditions laid down in section QUANTITY of the above - mentioned Ordinance no . CARDINAL - CARDINAL of DATE . ”

Section CARDINAL

“ The following shall also have the right to become established , if they so request , on the terms laid down in section CARDINAL above :

( CARDINAL ) NORP civilian cultural , scientific and technical cooperation staff in post in foreign GPE or in the institution to which they have been assigned who satisfy the conditions laid down in the second sub - paragraph of LAW no . CARDINAL of DATE on the position of civilian cultural , scientific and technical cooperation staff in service in foreign GPE ;

Section CARDINAL

“ … access to the various corps of civil servants may be provided for the non - established employees mentioned in sections CARDINAL and CARDINAL … by means of decrees adopted after consultation of the ORG d’Etat … ”

Section CARDINAL

“ Employees not on the establishment who may rely on the provisions of this PERSON can not be dismissed other than for professional shortcomings or on disciplinary grounds until expiry of the periods of time allowed to them in the decrees provided for in section CARDINAL for making their choice .

Sections CARDINAL , CARDINAL , DATE and DATE of the LAW were taken over in sections DATE , CARDINAL , DATE and CARDINAL of Law no . CARDINAL of DATE making provisions governing the civil service .

Article R. CARDINAL of ORG Code provides :

“ The President of ORG or of ORG or a judge delegated by CARDINAL of them may make an interim award to a creditor who has made a substantive application to ORG where the existence of the obligation is not seriously disputable . He may , even of his own motion , make the payment of such an award conditional on the provision of security . ”


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

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

By a decision of DATE ORG ( försäkringskassan ; hereinafter “ the Office ” ) of GPE granted the applicant a life annuity ( livränta ) under LAW ( Lagen om arbetsskadeförsäkring , CARDINAL:CARDINAL ; hereinafter “ the DATE LAW ) . The amount on the basis of which the annuity was to be calculated – corresponding to the applicant 's expected DATE income had she continued to work DATE was fixed at MONEY ( SEK ) . The applicant appealed against the ORG 's decision and ORG ( länsrätten ) of GPE , by a judgment of DATE , raised the amount in question to SEK CARDINAL . The applicant made a further appeal to ORG ( kammarrätten ) in GPE . ORG ( Riksförsäkringsverket ) also appealed . Whereas the applicant had not requested an oral hearing at first instance , she asked the appellate court to hold one . However , the appellate court refused the request , finding that a hearing was not necessary . By a judgment of DATE it found in favour of ORG and thus quashed the appealed judgment and upheld the ORG 's decision . On DATE ORG ( Regeringsrätten ) refused the applicant leave to appeal .

On DATE the ORG decided that the above amount should be fixed at SEK CARDINAL,CARDINAL for DATE .

By a decision of CARDINAL DATE the ORG fixed the amount at SEK CARDINAL for the following period . The applicant , assisted by legal counsel , appealed to ORG and claimed that the amount should be fixed at SEK CARDINAL,CARDINAL .

By a judgment of DATE the court upheld the ORG 's decision , finding that the ORG had correctly estimated the applicant 's expected income at the time of the appealed decision . The court did not hold an oral hearing , nor did the applicant request CARDINAL .

The applicant appealed to ORG . By a letter of DATE she requested that the appellate court hold an oral hearing at which she wished to make oral submissions . It appears from the wording of the letter that the request was for a hearing to be held if the court were to examine the case on the merits .

On DATE ORG refused leave to appeal . On DATE , following a further appeal , ORG also refused leave to appeal .

All gainfully employed persons working in GPE are insured against industrial injuries in accordance with LAW . Anyone who is put on the sick - list as a result of an industrial injury and who is insured under LAW ( NORP om allmän försäkring , CARDINAL:CARDINAL ) is entitled to the same per diem benefit from the ordinary sickness insurance ( social insurance ) during DATE as if he or she had been sick for a reason other than an industrial injury . When DATE have passed , the insured person is entitled to a per diem sickness benefit in accordance with LAW ( industrial injury insurance ) , if his or her ability to carry on with gainful employment is reduced by PERCENT ( PERCENT prior to DATE ) . After the period of sickness has come to an end and the insured person is no longer on the sick - list , he or she is entitled to a life annuity if the capacity for gainful employment is reduced by DATE . In order to calculate the annuity , an amount corresponding to the expected DATE income is fixed .

A decision by ORG under LAW may be appealed against to ORG and from there on to ORG and ORG .

The procedure in the administrative courts is governed by the provisions of ORG , ORG ; hereinafter “ the DATE LAW ) . Section CARDINAL provides :

“ The proceedings are in writing .

An oral hearing may be held in regard to a certain issue , when there is reason to assume that that would be to the benefit of the proceedings or the speedy determination of the case .

In ORG and ORG an oral hearing shall be held if requested by an individual party to the proceedings , unless it is unnecessary or there are particular reasons against holding a hearing . ”

The possibility for an individual party to obtain an oral hearing on request under those circumstances is not available in the proceedings before ORG .

According to the preparatory documents to LAW , an oral hearing can be a valuable complement to the written proceedings and may benefit the examination of a case in CARDINAL situations in particular : firstly , when it is necessary to hear a witness , an expert or a party or when it is difficult for a party to present the case in writing and , secondly , when different positions in the case need to be sorted out in order to eliminate unnecessary or pointless issues of dispute . In the latter case , the oral hearing takes on a preparatory character . It was stressed , however , that an oral hearing should not to be seen as an alternative to the written procedure but as a complement to it ( see Government PERSON , p. CARDINAL ) .

It was further stated , in respect of the third paragraph of section CARDINAL , that a party 's request for an oral hearing should be given great consideration . However , such a request should not have a decisive influence on the matter , as the question whether an oral hearing is necessary is to be determined primarily on the basis of the available information in the case . Still , other circumstances may be of relevance , for instance the importance for the party of the matter at stake or the possibility that an oral hearing could enhance the party 's understanding of a future decision in the case . Nevertheless , if the case is of a trivial character or the costs of an oral hearing would be disproportionate to the values at stake in the case , there could be reason not to hold an oral hearing ( p. CARDINAL ) .


Violation of Art. 14+8;Not necessary to examine Art. 14+P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant is a NORP citizen born in DATE . He is a retired civil servant . On DATE he rented from ORG a house in which he has been living ever since with his wife and CARDINAL children . The tenancy agreement had many of the features of a typical contract for the lease of property with provisions on the payment of rent by the applicant , the use and maintenance of the property , the giving of notice and a termination date . The agreement provided that the tenancy would come to an end in the event of the applicant being transferred to a district other than the one in which the property was situated .

On DATE ORG informed the applicant that the permission by virtue of which he occupied the LOC was revoked and that he had to surrender the property by DATE . He failed to do so and on DATE the Attorney - General notified him that if he did not vacate the house before DATE legal action would be taken against him .

On DATE the applicant replied that he had been living together with his family in the house for DATE . He had been obliged to spend significant sums of money on the maintenance and improvement of the house since the competent public authorities had shown no interest in its upkeep . He claimed that he was a “ statutory tenant ” within the meaning of the Rent Control Law DATE ( Law no . DATE see paragraphs CARDINAL and CARDINAL below ) and stated that he would continue to occupy the LOC as long as he was protected by law .

On DATE , replying to a second letter from the Attorney - General dated DATE , the applicant reiterated his earlier position .

On DATE the government of GPE instituted proceedings against the applicant before ORG of GPE to have him evicted . The government submitted , inter alia , that the applicant did not occupy the house under a tenancy agreement within the meaning of LAW DATE , but that the LOC had been allocated to him by administrative order because of his position in the civil service .

On DATE ORG of GPE gave judgment against the applicant . The court did not pronounce on the issue of the title under which the applicant occupied the LOC . The court ’s interpretation of LAW DATE led it to conclude that its protection did not extend to the applicant since it only bound private owners of property and not ORG . A person who rented LOC owned by the ORG could not therefore be considered a “ statutory tenant ” protected by that PERSON .

The applicant was ordered to vacate the premises before DATE .

NORP The applicant appealed against the judgment to ORG relying on LAW . At the hearing before ORG the applicant relied essentially on the following argument : his rights as a tenant were “ property rights ” within the meaning of LAW No . CARDINAL and he was the victim of discrimination in the enjoyment of these rights because LAW DATE , as interpreted by ORG of GPE , gave no protection to tenants of the ORG whereas the same PERSON protected the State as a “ statutory tenant ” when it rented LOC owned by a private individual . The applicant also submitted that he was the victim of a further act of discrimination in that he enjoyed less protection under the relevant PERSON than tenants of private persons .

On CARDINAL DATE ORG dismissed the applicant ’s appeal , considering that he could not claim any property rights under LAW as a tenant . The court also found that , in any event , the notion of equality did not require that a person who enjoyed the protection of ORG as a tenant should be automatically required to grant the same protection to his or her tenants if that person happened to own property . Finally , the court considered , in an obiter dictum , that even if the case concerned the different treatment reserved by the law to property rented out by private owners and to property rented out by the ORG , there would be no violation of the LAW or the LAW because “ it would be reasonable to consider that it is not necessary to grant protection [ to tenants ] vis - à - vis the [ ORG ] which [ is ] not in the same position as a private owner and [ is ] not expected to administer the property of the ORG according to criteria similar to those guiding a private owner ” .

Further to this decision , the applicant has been threatened with imminent eviction .

According to section CARDINAL(CARDINAL ) , the Rent Control Law DATE applies only to dwellings and shops in areas designated “ regulated areas ” , which are defined in LAW as every area which was declared as such under the previous rent control legislation and includes every other area so declared by order of ORG . Section CARDINAL(CARDINAL ) , which has been unaffected by subsequent amendments to the DATE PERSON , sets out the circumstances under which an order may be made .

Section CARDINAL(CARDINAL ) provides as follows :

“ Whenever it is considered by ORG to be necessary or expedient for the purpose of securing the availability of dwellings and shops for reasonable rents and the security of possession thereof , or whenever the public interest otherwise so requires , ORG may by Order published in ORG declare any area in GPE as a regulated area , and thereupon the provisions of this PERSON shall apply to all dwellings or shops within such area . ”

“ PERSON το Υπουργικόν PERSON κρίνη ότι είναι αναγκαίον ή σκόπιμον προς τον σκοπόν της εξασφαλίσεως της διαθεσιμότητος των κατοικιών ή καταστημάτων αντί λογικών ενοικίων και της ασφαλείας της κατοχής τούτων , ή οσάκις το δημόσιον συμφέρον ούτως άλλως απαιτή , το Υπουργικόν PERSON δύναται δια διατάγματος δημοσιευομένου εις την επίσημον εφημερίδα της Δημοκρατίας να κηρύξη οιανδήποτε περιοχήν εν PERSON ως ελεγχομένην περιοχήν , τούτου δε γενομένου θα ισχύουν αι διατάξεις του παρόντος ORG οιασδήποτε κατοικίας ή καταστήματα ενός της τοιαύτης περιοχής. ”

According to LAW tenants of dwellings situated within a “ regulated area ” who , upon the expiry or termination of the first term of their tenancy agreement , remain in occupation of the dwelling ( “ statutory tenants ” ) can not be evicted save in certain specified circumstances set out in LAW . These circumstances include the non - payment of rent , unauthorised use of the property and where the dwelling is reasonably required by the landlord for occupation by him or his wife , children or other dependants .

Under LAW , it is for ORG to supervise and dispose of property belonging to GPE . This power of supervision and disposal must be exercised in accordance with the provisions of the LAW and the law .


The applicant , PERSON , has the citizenship of GPE and GPE . She was born in DATE and lives in GPE in GPE . She was represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON , PERSON , of ORG . ORG , having been informed of their right to intervene in the proceedings ( LAW ) , did not indicate that they wished to exercise that rights .

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

On DATE the applicant sold her car to PERSON At that time , she lived at her father ’s place of residence in GPE .

On DATE PERSON lodged a motion against the applicant with ORG ( Amtsgericht ) , claiming DEM CARDINAL as damages for the car ’s alleged defects . The motion and all further correspondence were served to the place of residence of the applicant ’s father .

On DATE ORG decided to apply a summary procedure ( PERSON billigem PERSON ) pursuant to section CARDINALa of ORG ( Zivilprozessordnung , see relevant domestic law below ) .

On DATE PERSON extended her action and claimed further ORG .

By partial judgment ( ORG ) of CARDINAL DATE ORG ordered the applicant , who had not participated in the proceedings , to pay DEM CARDINAL plus interests to PERSON

By final judgment ( PERSON ) of DATE ORG ordered the applicant to pay further ORG plus interests to PERSON Both judgments were delivered to the place of residence of the applicant ’s father .

On DATE the applicant , represented by counsel , lodged an action for declaration of nullity ( Nichtigkeitsklage ) pursuant to section CARDINAL § CARDINAL no . CARDINAL of the Code of Civil Procedure , requesting ORG to set aside its judgments of CARDINAL October and DATE . She alleged that she had left GPE on DATE with the aim to live permanently in GPE . She had neither informed her father about her departure nor left her new address . She had not learned about the civil proceedings until her return to GPE on DATE , when her father gave her the mail which had accumulated during her absence . In support of her allegations , she submitted her own affidavit ( eidesstattliche ORG ) . She further nominated CARDINAL witnesses , including her father , her mother , CARDINAL former friends of hers and the postman who had delivered the final judgment of DATE to her father ’s place of residence .

The defendant , PERSON , contested these submissions . She pointed out that she had received a demand for payment from the applicant , which was dated DATE and had been posted in GPE . The applicant replied that this letter had been posted by a friend of hers , whom she named as a witness .

On DATE , following a hearing , ORG declared the applicant ’s action inadmissible . While leaving the question undecided whether the action for declaration of nullity was applicable in the present case , it found that the applicant had failed to establish to the satisfaction of the court ( glaubhaft machen ) that she had lodged her action within the statutory time - limit of DATE after having learned about the CARDINAL judgments . Taking into account both parties’ submissions , ORG did not attach credence to the applicant ’s own affidavit . It considered , firstly , that the applicant had not submitted admissible evidence in support of her allegation that the demand for payment had been posted not by the applicant herself , but by a friend of hers . Furthermore , according to the acknowledgment of service ( GPE ) of CARDINAL DATE , the final judgment had been served on the applicant herself . The applicant had not disproved that fact . ORG further noted that the applicant had alleged that she had received the partial judgment of DATE on her return to GPE . This allegation was contradicted by the fact that the copy of the partial judgment which was to be served on the applicant was located in the case - file of the first set of proceedings , because it had not been picked up by the addressee .

ORG further pointed out that the applicant could have submitted further evidence , such as her air tickets or affidavits given by other persons . She failed however to do so . Referring to section CARDINAL § CARDINAL of LAW , ORG decided not to hear any witnesses , as these had not been presented by the applicant during the hearing .

The applicant subsequently lodged an appeal with ORG ( Landgericht ) . She argued , inter alia , that ORG should have heard the witnesses , as section CARDINAL § CARDINAL of LAW did not apply in the instant case . She alleged that it would have been up to ORG to summon the witnesses . She further maintained that ORG , during the hearing , had not mentioned that any witnesses had been missing .

On DATE ORG rejected the applicant ’s appeal . ORG noted , firstly , that ORG , in the first set of proceedings , had violated the rules of civil procedure by applying the summary procedure even though the value of the issue exceeded the sum of ORG CARDINAL . However , this procedural error did not justify an annulment of the judgments .

Secondly , ORG confirmed that the applicant had not established that she had lodged her action within the statutory time - limit . ORG shared ORG doubts as to the credibility of the applicant ’s own affidavit . It further considered that the applicant had failed to explain why she had kept her NORP bank account and why she had not deregistered with the NORP authorities . Contrary to the applicant ’s point of view , ORG had not been obliged to summon any witnesses . According to LAW of LAW it was only admissible to take evidence by means which were immediately available to the court . It followed that only those means of evidence had to be considered which had been presented by the respective party . According to ORG , the opinion that the court was obliged to summon witnesses was consistent neither with the wording of the legislation nor with the case - law of ORG . In this respect , ORG referred to a judgment of ORG of DATE ( published in that court ’s official collection [ ORG ] volume CARDINAL , p. CARDINAL ) .

On DATE ORG , without giving reasons , refused to accept the applicant ’s constitutional complaint for adjudication . The decision was served on the applicant ’s counsel on DATE .

The relevant provision of LAW ) , as applicable at the relevant time , reads as follows :

Section CARDINALa Summary procedure

“ If the sum in dispute does not exceed CARDINAL hundred German marks , the court may determine its procedure at its reasonably exercised discretion ( nach billigem PERSON ) . Upon request , it shall hold a hearing . ”

The summary procedure was introduced in DATE with the aim to unburden the district courts by facilitating proceedings with a low value in dispute . When applying this procedure , a district court is not bound by the formal requirements of LAW . It has , however , to respect the right to a fair hearing ( see the references in ORG , PERSON ( Commentary on the Code of Civil Procedure ) , DATE . DATE , § CARDINALa , marginal note CARDINAL) .

The relevant provisions of LAW read as follows :

Section CARDINAL

Action for declaration of nullity

“ ( CARDINAL ) An action for declaration of nullity is admissible :

if a party had not been properly represented during the proceedings ... ”

According to the case - law of several appeal courts , the above - cited provision can also be applied by analogy in cases in which a party was ignorant of the proceedings through no fault of his or her own ( see the references in ORG , cited above , § CARDINAL , marginal note CARDINAL ) .

Section CARDINAL Time - limit

“ ( CARDINAL ) The action [ for declaration of nullity ] has to be lodged within a time - limit of DATE .

( CARDINAL ) The time - limit shall start on DATE on which the party learns the ground of nullity ...

( CARDINAL ) In case a party had not been properly represented before the court ... the time - limit shall start on DATE on which the judgment is served on that party ... ”

Section CARDINAL Examination of admissibility

“ ( CARDINAL ) The ORG shall examine ex officio if the action is admissible and ... if it has been lodged within the statutory time - limit . In case of non - compliance , the action shall be rejected as being inadmissible .

( CARDINAL ) The facts which establish that the action has been lodged within the time - limit have to be established to the satisfaction of the court ( glaubhaft machen ) . ”

Section CARDINAL Establishing facts to the satisfaction of the court ( GPE )

“ ( CARDINAL ) A party who has to establish an assertion to the satisfaction of the court may employ all means of evidence and may be allowed to submit their own affidavit .

( CARDINAL ) Any evidence which can not be taken immediately is inadmissible . ”

The relevant provisions on appeals against first instance judgments read as follows :

Section CARDINAL

“ Appeals on facts and law shall take place against the final judgments issued in the first legal instance . ”

Section CARDINAL a

“ ( CARDINAL ) Appeals on facts and law shall be inadmissible if the value of the subject matter in dispute does not exceed CARDINAL MONEY ... ”

Section CARDINAL

“ ( CARDINAL ) Default judgments may not be challenged in the appeal by the party against whom they have been issued .

( CARDINAL ) A default judgment against which the objection as such is not available shall be subject to appeal to the extent that it is based upon the claim that no default has taken place . Section CARDINALa shall not be applicable . ”

On DATE a new section CARDINALa entered into force , which allows a court , on request of a party , to set aside its own final judgment in case of a violation of the right to a fair hearing .


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

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

On DATE the applicant lodged a claim for a higher amount of sickness benefit with ORG ( PERSON we PERSON ) .

On DATE ORG issued a relevant judgment .

The enforcement proceedings were terminated on DATE .

On DATE , the date on which the application was lodged with the ORG , the enforcement proceedings were pending before ORG .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .