Violation of Art. 3;Not necessary to examine Art. 8;Just satisfaction reserved

The applicant was born in DATE and is currently serving a prison sentence in the GPE .

On DATE the applicant was detained in the GPE on the basis of a request for his extradition by the authorities in GPE , where he was suspected of having committed a bank robbery and , during his subsequent flight and pursuit by the police , of having taken several hostages and having shot and killed CARDINAL person . On DATE he was extradited to GPE where , by judgment of CARDINAL DATE , ORG ( ORG ) convicted the applicant of extortion , attempted homicide , homicide and hostage - taking and sentenced him to life imprisonment .

Pending the determination of a request under the Enforcement of [ Foreign ] Criminal Judgments ( Transfer ) Act ( Wet overdracht tenuitvoerlegging strafvonnissen – “ WOTS ” ) for the applicant to be allowed to serve his sentence in the GPE , where he had lived since early childhood , the applicant was transferred to the GPE on DATE .

On DATE , in accordance with the provisions of the ORG , ORG ( arrondissementsrechtbank ) gave leave for the applicant ’s sentence to be executed in the GPE and , considering that under the GPE sentencing rules a life sentence fitted the nature and seriousness of the offences , the circumstances in which they had been committed and the person and personal circumstances of the applicant , imposed a life sentence . The applicant filed an appeal on points of law against this ruling with ORG ( PERSON ) .

On DATE ORG allowed the applicant ’s appeal on points of law against the ruling and quashed the decision of DATE . It held that ORG had failed to examine whether or not , with regard to the possibilities of early or conditional release for persons sentenced to life imprisonment , the applicant ’s situation in the GPE would be less advantageous than in GPE . It remitted the applicant ’s case to ORG for a fresh decision . At the time the application was lodged with the ORG , the proceedings before ORG were still pending .

Following his transfer from GPE to the GPE on DATE , the applicant was initially detained in an ordinary remand centre ( PERSON bewaring ) in GPE . On DATE a number of items ( a whet stone attachment for a rotary grinder , knotted sheets , a rope and a metal hook ) were found in his cell . The applicant was subsequently transferred to ORG ) in the ORG in FAC .

On DATE , on the advice of the special selection board of the maximum security institution ( Extra PERSON – “ ORG ” ) , the Minister of ORG decided to place the applicant in the ORG , which is part of the PERSON Penitentiary Complex . His detention in the ORG was reviewed and extended by the Minister DATE . The applicant unsuccessfully challenged each decision to extend before ORG ( beroepscommissie ) of ORG ( Centrale PERSON ) . On DATE ORG was replaced by ORG ( PERSON GPE ) .

On DATE , as he had done in respect of the previous decisions to extend , the applicant filed an appeal with ORG against the decision of CARDINAL DATE extending his stay in the ORG by DATE . He argued , inter alia , that the ORG detention regime was in breach of LAW and CARDINAL of the LAW , that he was suffering from sarcoidosis and that the environment in the ORG had a very negative effect on his health .

On DATE ORG rejected his appeal . In so far as relevant , its decision reads as follows :

“ On the basis of LAW on the selection , placement and transfer of detainees ( PERSON , plaatsing en overplaatsing van gedetineerden ) of DATE , which entered into force on DATE , detainees may be placed in the maximum security institution if they :

a. are considered extremely likely to attempt to escape and pose an unacceptable risk to society in terms of the danger of their committing further serious violent crimes , or

b. in the event of an escape , would pose an unacceptable risk to society , the risk of escape in itself being of lesser importance .

... ORG considers as follows :

During an inspection of the [ applicant ’s ] cell in the [ GPE ] remand centre on DATE a whet stone attachment [ for an electrical device ] , a coil of ‘ rope’ [ made from ] plaited strips of sheet and a long rope with a hook made from a broom handle , with an attached hook made from the aluminium handle of a floor sweeper , were found . In addition a crack was noted in the cell window . The seriousness and quite recent nature of these discoveries justify the finding that the [ applicant ] at present still poses an extreme risk of escape . In that connection [ ORG ] notes that the DATE incidents mentioned by the [ ORG ] selection officer have not been taken into consideration in reaching this finding . Those incidents concern a knife found in DATE in a bus in which the [ applicant ] and CARDINAL other detainees had been transported , some visitors of the applicant who in DATE remained in their car for a remarkably long time observing the detention facility , a fork going missing from the applicant ’s cell and odd behaviour in the visitors’ room . Those incidents did not lead to the [ applicant ’s ] being placed in the ORG at that time . Instead , the [ applicant ] , after a stay in ORG , was transferred to an ordinary remand centre . It remains unknown whether the knife belonged to CARDINAL of the detainees who had been travelling in the bus .

In view of the very violent crimes the [ applicant ] is suspected of having committed and the subsequent pursuit in GPE and the GPE during which persons were taken hostage , the [ applicant ] – in the event of an escape – would pose an unacceptable risk to society in terms of the danger of his committing further serious violent crimes .

ORG , noting the above considerations , concludes that the [ applicant ] falls within the category [ referred to in DATE ( a ) of the Regulation on the selection , placement and transfer of detainees ] .

As regards the [ applicant ’s ] reliance on [ the Convention ] , ORG considers that the ORG regime is not in violation of the prohibition set out in LAW Interference with the right to respect for private and family life set forth in LAW is permitted as long as such interference is in accordance with the law and is necessary in a NORP society for , inter alia , the prevention of disorder and crime .

On the basis of the documents obtained it appears that the examination [ to establish whether the applicant suffers from sarcoidosis ] is still ongoing . In these circumstances , the argument [ based on this medical condition ] can not ( for the time being ) succeed .

ORG , noting the above , finds that the decision to extend the applicant ’s stay in the ORG is lawful and that , weighing up all the interests involved , it can not be considered as unreasonable or unjust . ”

No further appeal lay against this decision .

By decision of DATE the applicant ’s stay in the ORG was extended by a further period of DATE . He again lodged an appeal with ORG in which he argued , inter alia , that the ORG regime was in breach of ORG and CARDINAL of the LAW , in particular as regards strip - searches in the ORG and the conditions governing visits . He submitted that the ORG regime was having adverse effects on his mental and physical health .

On DATE ORG dismissed the appeal . The relevant parts of the decision read as follows :

“ In its decision of DATE ORG found that the [ applicant ] continued to pose an extreme risk of escape . ... ORG notes that , since then , there have been no signs indicating a possible escape by the [ applicant ] . Noting this , it is of the opinion that at present lesser weight is to be attached to the discovery in DATE and that it can no longer be said that the [ applicant ] poses an extreme danger of escape .

However , in view of the very violent offences the [ applicant ] is suspected of having committed and the subsequent pursuit having taken place in GPE and the GPE , in which people were taken hostage and CARDINAL person was killed , the [ applicant ] , in the event of an escape , would pose an unacceptable risk to society .

ORG , noting the above considerations , therefore concludes that the [ applicant ] falls within the category [ referred to in DATE ( b ) of the Regulation on the selection , placement and transfer of detainees ] .

As regards the applicant ’s arguments based on Articles CARDINAL and CARDINAL of LAW , ORG points out that , under the [ DATE ] Prisons Act , it reviews decisions by the selection officer , in the instant case the decision to extend the [ applicant ’s ] stay in the ORG . Consequently , it does not review the underlying detention regime as such and , therefore , the examination of the question as to whether or not the regime is in violation of ORG CARDINAL and CARDINAL of the Convention [ falls outside the scope of the present appeal proceedings ] . ORG considers , in any event , that – having regard to the case - law of ORG it can not be held that the ORG regime as it currently exists should be regarded as being in breach of the Convention .

It does not appear from the documents that the applicant ’s medical condition represents a contra - indication for a longer stay in the ORG .

ORG , noting the above , finds that the decision to extend the applicant ’s stay in the ORG is lawful and , weighing up all the interests involved , concludes DATE albeit on a different ground – that it can not be considered as unreasonable or unjust . ”

On DATE the applicant was transferred from the ORG to another prison with a different regime .

On DATE another individual – who had been detained in the ORG DATE and DATE brought a civil action in tort ( onrechtmatige daad ) against GPE before ORG . CARDINAL of the grounds on which he claimed payment of compensation in respect of non - pecuniary damage for unlawful acts for which he considered GPE to be liable was that , from his arrest in DATE until DATE , he had been subjected to inhuman and degrading treatment on account of the conditions of his detention , including having had to undergo humiliating and unnecessary strip - searches . He based this part of his claim on , inter alia , the ORG ’s findings in its judgments of CARDINAL DATE in the cases of PERSON the GPE ( no . CARDINAL/CARDINAL , ORG CARDINAL ) and PERSON and Others v. the GPE ( no . CARDINAL ) , the findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as set out in CARDINAL reports ( see paragraphs CARDINAL below ) , and a report drawn up on DATE by academic researchers on the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraph CARDINAL below ) .

On DATE the applicant and CARDINAL other ( former ) EBI detainees applied to ORG for leave to join the civil action against ORG . Their application related to the part of the claim concerning compensation for non - pecuniary damage sustained as a result of inhuman and degrading treatment on account of the conditions of detention in the ORG , including having had to undergo humiliating and unnecessary strip - searches . These civil proceedings are currently still pending and , to date , no decision has been taken on the applicant ’s request to join the pending civil action .

An overview of the relevant domestic law and practice is given in the ORG ’s judgment of CARDINAL DATE in the case of PERSON the GPE ( no . CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-II ) and in GPE v. the GPE ( ( dec . ) , no . CARDINAL/CARDINAL , DATE ) .

On DATE , in the light of the ORG ’s findings in its judgments of CARDINAL DATE in the cases of PERSON ( cited above ) and PERSON and Others ( cited above ) , the ORG house rules ( huisregels ) were amended , with the result that the practice of DATE routine strip - searches accompanying the DATE cell inspections was abandoned . Under the amended Article CARDINAL ) of the ORG house rules , strip - searches could be carried out at random during or directly after a DATE cell inspection .

As from DATE , pursuant to a ruling given on DATE by the judge responsible for provisional measures ( voorzieningenrechter ) of ORG in summary injunction proceedings brought against GPE in DATE by CARDINAL ORG detainees , the random strip - searches were no longer linked to cell inspections and the ORG authorities from then on determined in the case of each individual detainee to what extent random stripsearches were called for . The situation of each individual detainee is now discussed at the DATE ORG staff meeting on detainees .

On DATE researchers from ORG presented a report on a study , commissioned in DATE by the Minister of ORG , about the psychological impact of the ORG regime on the mental well - being of ( former ) inmates ( see paragraphs DATE below ) . It concluded that the ORG regime affected the cognitive functioning of detainees in a negative manner , with particular reference to the speed of processing information and response inhibition . This was probably a result of the lack of stimuli in the detention situation . The report further concluded that the ORG regime caused more depression than a restricted community regime and that strip - searches were perceived as humiliating , constituting an extra burden for persons detained in the ORG . On the other hand , the ORG regime provided a better balance between rest and activity than a restricted community regime , as a result of which ORG detainees maintained a healthier life rhythm . In addition it had not been demonstrated that ORG detainees displayed more physical symptoms of persistent mental stress .

NORP Under GPE law , the civil courts have traditionally had jurisdiction to grant relief against the authorities , if and in so far as no other relief is available . Where a person bases a claim against the authorities on an allegation that the latter has committed a tort within the meaning of Article CARDINAL of the Dutch Civil Code ( Burgerlijk Wetboek ) against him or her , the civil courts have jurisdiction in principle . Where the civil courts have jurisdiction , they can also act in summary injunction proceedings ( kort geding ) in which a plaintiff can , inter alia , request the civil court to issue an order against the authorities . An act by the authorities is unlawful and constitutes a tort when it violates a right of the plaintiff or is contrary to a rule of international or domestic law which seeks to protect the plaintiff ’s interests , or to general principles of proper administration ( algemene beginselen van behoorlijk bestuur ) . An action in tort is subject to a limitation period of DATE under LAW .

NORP However , as to the jurisdiction of the civil courts in cases where an administrative appeal lies , it is an established principle under GPE law that DATE given the closed system of legal remedies ( gesloten system van rechtsmiddelen ) in the GPE legal system – the civil court should refrain from examining the lawfulness of an administrative decision , provided that the administrative appeal offers sufficient guarantees as to a fair procedure . On this topic , extensive case - law has been developed by ORG ( PERSON ) over DATE , supported by several authorities , to the effect that where an administrative appeal does not offer sufficient guarantees of a fair procedure , the civil courts have full jurisdiction to review the lawfulness of the administrative decision . On the other hand , a civil action should be declared inadmissible when another specific remedy exists which offers sufficient guarantees of fair proceedings ( see ORG , DATE , PERSON ( GPE Law Reports – “ GPE ” ) DATE , no . CARDINAL ; see also NORP v. the GPE , judgment of CARDINAL DATE , Series A no . CARDINAL , § § CARDINAL and § § DATE ) .

In a case in which it gave judgment on DATE , ORG examined the question whether a party which considers that it has been injured by a judicial ruling against it can bring a subsequent civil action in tort against the ORG arguing that the judge failed to act with due care in giving that ruling . ORG found that this was not possible , holding that it was solely for the legislature to decide in what cases a remedy was to be provided . It would be incompatible with this principle if an unsuccessful party were to have the possibility , via a civil action , of making the correctness of a [ final ] judicial ruling the subject matter of new proceedings , and thus to obtain a renewed examination in another manner than that provided for by statute . It added that only if the proceedings leading to a judicial decision had breached such fundamental legal principles ( fundamentele rechtsbeginselen ) that the case could no longer be said to have been determined in a fair and impartial manner , and if there was no possibility of appeal nor had there ever been such a possibility , could the ORG be held liable for the effects of such a ruling in a civil action in tort ( GPE DATE , no . CARDINAL ; see also ORG , DATE , GPE DATE , no . CARDINAL ; ORG of The Hague , DATE and CARDINAL DATE , GPE DATE , ORG . CARDINAL and CARDINAL ; and ORG of The Hague , DATE and CARDINAL DATE , ORG ( ORG ) DATE , nos . CARDINAL and CARDINAL ) .

In a judgment given on DATE concerning civil proceedings taken against ORG by an association of detainees who wished to challenge a special restricted - detention regime in a specific wing of the prison in GPE , ORG held that , as individual detainees had available to them a specific remedy to challenge a transfer to the wing concerned ( that is to say , the individual complaint procedure provided for in Article CARDINAL et seq . of the Prison Act DATE ( Beginselenwet Gevangeniswezen ) as in force at that time ) and it was not in dispute that this remedy offered sufficient procedural safeguards , the plaintiff ’s case had been correctly declared inadmissible , as the association had acted solely “ in the context of promoting the interests of its members ” , which were already safeguarded by the individual complaint procedure under LAW seq . of LAW ( GPE DATE , no . CARDINAL ) .

In a judgment given on DATE ( GPE DATE , no . CARDINAL ) in a civil action against GPE brought by a coaccused of a successful applicant in GPE ( PERSON v. the GPE , judgment of DATE , Series A no . CARDINAL ) , ORG held :

“ It is embedded in the [ GPE ] legal system that a criminal court conviction against which an ordinary appeal can no longer be lodged not only should , but must , be executed . It is further incompatible with the closed system of legal remedies in criminal cases that a convicted person should have the opportunity , via a claim [ for damage arising from tort ] against the ORG , to bring a fresh set of proceedings challenging the decision of the criminal court judge or the acceptability of the [ criminal ] proceedings leading to the decision and to have [ the subject matter ] reviewed by the civil courts .

Considering the obligations flowing from ORG , CARDINAL and CARDINAL [ of the Convention ] to secure the rights set out in LAW ] and to provide an effective remedy in the event of a violation of those rights , an exception must be made to the above - mentioned rules should a ruling of ORG [ of Human Rights ] , which the criminal court judge could not take into account in his decision , prompt the conclusion that the decision had come about in such a manner that it could no longer be said that there had been a fair hearing of the case within the meaning of Article CARDINAL § CARDINAL [ of the Convention ] .

When such an exceptional case occurs , immediate execution of the decision can no longer be permitted under the legal system , and the person convicted can institute interim injunction proceedings [ before the civil court judge ] seeking DATE depending on the circumstances DATE to have execution prohibited , suspended or limited . The nature of interim injunction proceedings and the reticence to be observed by the judge in interim injunction proceedings when examining the manner in which an irrevocable decision of the criminal court judge has come about , mean that there is scope for granting such a claim only when it is beyond reasonable doubt that the ruling of ORG [ of Human Rights ] indeed requires that the above - mentioned conclusion be reached . ”

In this case , ORG accepted ORG finding against the plaintiff in view of the fact that , when the impugned ruling was given on DATE , the ORG had not yet delivered its judgment in the PERSON case .

A number of persons detained in the ORG have in the past sought to bring interim injunction proceedings before the civil courts in order to have the regime , or certain aspects of it , relaxed ( for further details , see PERSON and Others , cited above , § § DATE ) .

On DATE an amendment to LAW “ the ORG ” ) entered into force , governing possible means of obtaining revision ( herziening ) of final judgments . This amendment extended the existing grounds on which a revision of a final conviction could be sought by including as a ground for revision a ruling by ORG that the criminal proceedings leading to that conviction had been in violation of the LAW . The relevant part of the amended text of LAW ORG reads as follows :

“ CARDINAL . An application for revision of a final ruling ( eindbeslissing ) entailing a conviction which has obtained the force of res iudicata can be lodged :

on the ground of a ruling of ORG in which it has been established that [ the ORG or one of its Protocols ] has been violated in the proceedings leading to the conviction ... if revision is necessary in order to secure reparation within the meaning of LAW of [ the LAW ] . ”

A request for revision can be lodged with ORG by the Procurator - General , the convicted person or the latter ’s lawyer within DATE after the convicted person has become aware of the ORG ’s ruling referred to in LAW ( CARDINAL ) , subparagraph CARDINAL ( LAW .

If ORG accepts a request for revision based on LAW , subparagraph CARDINAL , it can either itself determine the criminal charges after reopening of the criminal proceedings , or order the suspension of execution of the original judgment and remit the case for a fresh determination to a ORG different from the one that gave the original judgment ( LAW .

In its judgment of DATE in the case of PERSON and Others v. the GPE ( Reports CARDINAL-III ) , the ORG found a violation of the LAW in that the criminal proceedings against the CARDINAL applicants had not been conducted in compliance with the requirements of LAW CARDINAL and CARDINAL ( d ) of the LAW . In its judgment , it awarded each of the applicants an amount for costs and expenses and adjourned its examination of the ORG claim for non - pecuniary damage , considering that that part of the applicants’ claim for just satisfaction was not ready for decision .

On DATE the applicants in that case lodged a request for their immediate release from detention , failing which they would bring summary injunction proceedings against the ORG . On DATE the Minister of ORG decided to grant them temporary release ( strafonderbreking ) and they were released from prison on DATE .

The ORG determined the applicants’ claims for non - pecuniary damage in its judgment of DATE ( PERSON and Others v. the GPE ( LAW ) , Reports of Judgments and Decisions DATE ) , in which it noted that under domestic law it was not possible for the applicants to obtain a retrialCARDINAL . The applicants had claimed MONEY ( NLG ) for DATE spent in detention , resulting in total claims of MONEY and NLG CARDINAL,CARDINAL . After having examined the respondent Government ’s comments on those claims , the ORG awarded CARDINAL applicant NLG CARDINAL ( MONEY ( ORG ) ) and each of the CARDINAL other applicants NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) for non - pecuniary damage , and rejected the remainder of the applicants’ claims for non - pecuniary damage .

On DATE ORG , exercising its supervisory powers under the Convention as regards the execution of the ORG ’s judgments of DATE and DATE , adopted a final resolution ( Res DH(CARDINAL)CARDINAL ) in the case . Having noted the measures taken by the GPE on the basis of the ORG ’s judgments , ORG concluded that the manner in which the GPE had executed both judgments was in compliance with their obligations under LAW .

On DATE CARDINAL of the CARDINAL applicants brought a civil action in tort against GPE before ORG . They sought a declaratory ruling that GPE was liable for pecuniary and non - pecuniary damage arising out of unlawful administration of justice in violation of their rights under LAW and CARDINAL ( d ) . They sought payment of compensation corresponding to LAW for DATE spent in detention , less the compensation amount awarded by the ORG . They based their claims on the argument that , given the ORG ’s findings in its judgment of DATE , it had been established that in the domestic criminal proceedings against them the GPE judge had breached fundamental legal principles and that the resulting judgment and their detention had been unlawful .

In its judgment of DATE , following appeal proceedings brought by GPE , ORG quashed the impugned judgment given on DATE by ORG , and for the time spent in detention ( pre - trial and following conviction ) awarded compensation for non - pecuniary damage to the first plaintiff in the amount of ORG , less ORG CARDINAL,CARDINAL.CARDINAL already awarded by ORG . It awarded the second plaintiff ORG CARDINAL , less ORG CARDINAL,CARDINAL.CARDINAL awarded by ORG , and the third plaintiff ORG CARDINAL , less EUR CARDINAL,CARDINAL.CARDINAL awarded by the ORG . ORG held , inter alia , that :

“ The finding of ORG [ of Human Rights ] that full redress ( volledige genoegdoening ) by means of a ‘ retrial’ in the GPE is not possible , means that ORG may award compensation on grounds of equity ( vergoeding naar billijkheid ) , but not that in subsequent civil proceedings the domestic judge can no longer award full compensation for damage ( volledige schadevergoeding ) . The ORG ’s argument , that [ the CARDINAL plaintiffs ] requested compensation for damage for the first time before ORG and not previously before the domestic judge , and that ORG would have taken into account in its judgement the same claims for damages ( schadeposten ) as those now in issue in the present procedure , fails because no rule exists prohibiting the bringing of a claim before the GPE judge seeking compensation for damage , a part of which DATE namely an award in equity – has already been awarded in separate proceedings before ORG . ”

In its judgment of CARDINAL DATE on the appeal on points of law brought by ORG against the ruling of DATE , ORG held that the ORG had been correct in not challenging this part of the reasoning in the impugned judgment .

On DATE the ORG delivered its judgment in the case of PERSON and Others ( cited above ) , finding a violation of LAW in respect of the applicant PERSON in that , during his stay in the ORG of DATE , the applicant – who was already subjected to a great number of control measures – had been subjected to DATE routine strip - searches without convincing security reasons . It found no violation in respect of the other grievances raised by PERSON and the other applicants ( his spouse and his children ) under LAW , DATE and CARDINAL of the Convention . As regards damages , the applicants requested the ORG to award them a symbolic amount of NLG CARDINAL,CARDINAL ( ORG CARDINAL.CARDINAL ) , stating that no amount of money would be capable of compensating for the harm suffered by them . Taking the view that PERSON had sustained some non - material damage on account of the treatment which had been found contrary to LAW , the ORG awarded him for nonpecuniary damage ORG MONEY , that is to say , the full amount claimed under that head .

On DATE PERSON brought summary injunction proceedings against ORG before the judge responsible for provisional measures in ORG of ORG , seeking an order against the ORG to cease with immediate effect the execution of the DATE prison sentence that had been imposed on him , to release him immediately from prison and not to seek payment of the fine of NLG MONEY ( ORG CARDINAL,CARDINAL.CARDINAL ) that had also been imposed .

On DATE the judge responsible for provisional measures ruled on the applicant ’s request . This decision , in its relevant part , reads :

“ CARDINAL . The plaintiff has an urgent interest in his claim . The civil court judge DATE in this case the judge responsible for provisional measures in summary injunction proceedings – is empowered to take cognisance [ of the case ] , as the plaintiff claims that the ORG has acted unlawfully toward him , inter alia by continuing his detention .

For the determination of the claim , it is a fact that the ORG has violated the applicant ’s rights under LAW ...

Under LAW of [ the LAW ] the applicant is entitled to reparation ( rechtsherstel ) in respect of this irreparable violation of the LAW . If need be , he can assert that right before the courts . The ORG is deemed to be acting unlawfully towards him if no suitable form of redress is provided .

The parties provide different answers to the question as to whether the measures requested by the plaintiff ... constitute a form of redress compatible with our legal system and , if so , whether those measures are suitable and appropriate in this case .

[ The judge responsible for provisional measures rejects ] the argument of the ORG that the closed system of legal remedies in criminal proceedings and the corresponding obligation of the ORG to execute rulings of the criminal courts , militate against this form of redress . In this system , no provision has been made to date for ( a suitable response to ) a violation of the kind at issue in the instant case . There have been no prior similar cases , and the possible occurrence of such cases has apparently not been taken into consideration in legislation or in existing case - law . In principle , early release or non - execution of a fine imposed may constitute a suitable form of redress for a violation of LAW kind in issue . This exception to the closed system of legal remedies in criminal cases is , to that extent , consistent with ORG approach in its judgment of CARDINAL DATE ( GPE DATE , CARDINAL ) .

The ORG has referred to the financial compensation awarded by the [ ORG ] and to the satisfaction which , in the case of the applicant , lies in the fact that his complaint was declared well - founded [ by ORG ] . However , these CARDINAL elements do not form a suitable , and certainly not a sufficient , form of redress for the plaintiff . Consequently , they do not stand in the way of the claims being allowed . The plaintiff can request the domestic judge to order that additional measures be taken .

In reply to a question , the ORG stated that it was possible , in this respect , to consider measures such as the plaintiff ’s serving the remainder of his prison sentence under a less strict regime or the granting of a pardon in accordance with existing procedure . ... Again , these options do not form an obstacle to allowing the claims . The first option does not constitute sufficient redress in this case , while the option of a pardon corresponds to ( a request for ) a concession rather than the granting of a right , which is what is at issue here .

In these circumstances , the ORG should release the plaintiff DATE [ when the plaintiff becomes eligible for early release ] and waive the execution of the sentence in its entirety . Having regard to the nature of the violation of the ORG which is an established fact , a form of redress ( genoegdoening ) which relates to the applicant ’s liberty is more suitable , and in any event warrants greater priority than waiving payment of the part of the fine still outstanding .

No fixed standard exists for ‘ offsetting’ the remaining part of the plaintiff ’s prison sentence . There are no pertinent reference points on the subject in the existing legislation . This means that the amount of the compensation must be determined on an equitable basis ( naar billijkheid ) . The seriousness of the violation [ of the ORG ] justifies reduction of the sentence by a period equal to PERCENT of DATE for which the applicant was subjected to the regime in the ORG ... This amounts to a reduction of DATE ( round figure ) ...

On the basis of this solution , the plaintiff ’s claim should be rejected . Indeed , the plaintiff has no urgent interest in a provisional measure which will only take effect after DATE [ when the applicant has served his mitigated sentence ] ... It is assumed that the ORG ( the Minister of ORG ) will execute this ruling and release the plaintiff at a time that can be determined precisely on the basis of the standard set out here . If need be , the plaintiff can apply again in due course to the judge responsible for provisional measures .

Each of the parties can in fact be deemed to have been ruled against . ”

Both parties agreed to lodge a direct “ leapfrog ” appeal on points of law ( sprongcassatie ) with ORG , which dismissed both appeals on DATE . Although it agreed with ORG that the judge responsible for provisional measures had incorrectly assumed that LAW gave Mr Lorsé an ( independent ) right to redress which , if need be , could be asserted before the domestic judge , it held that this could not lead to the setting - aside of the judgment as , pursuant to the LAW , the ORG was obliged to provide redress . However , relying on the ORG ’s reasoning in the cases of PERSON and Others v. GPE ( ( LAW ) , judgment of DATE , Series A no . CARDINAL ) and PERSON and ORG v. GPE ( [ ORG ] , ORG . ORG and CARDINAL , ORG CARDINALVIII ) , ORG considered that , although the ORG was in principle free to determine the manner in which redress was to be provided , that freedom did not mean that the domestic judge was unable to take a decision on that point , but simply that a suitable form of redress was to be sought within the domestic legal order . As ORG had acted unlawfully towards PERSON in so far as his rights under LAW had been violated , as found by the ORG , PERSON was entitled to claim compensation from the ORG , which would be acting unlawfully if it failed to provide a suitable form of redress . ORG accepted that such compensation could be granted in a manner other than the payment of a sum of money . In cases such as the present one , where the violation found concerned the manner of execution of a custodial sentence , it could take the form of cessation of the execution of the sentence . ORG found that the order of the judge responsible for provisional measures to cease execution of the prison sentence should be regarded as a suitable form of compensation in kind in the case of PERSON . As regards the argument raised by the ORG that the closed system of legal remedies and the corresponding obligation for the ORG to execute rulings of the criminal courts precluded the form of redress claimed by PERSON , ORG – while acknowledging that there was a difference between a situation in which the violation found concerned a domestic criminal conviction itself or the proceedings having led to that conviction [ as in the case of PERSON and Others ] and a situation in which the violation found was unrelated to such a conviction or proceedings [ as in the case of Mr PERSON .

In its judgment of DATE in the case of PERSON the GPE ( no . CARDINAL/CARDINAL ) , in which the applicant complained that his telephone conversations with PERSON had been recorded by the latter with equipment provided by the police with a view to their use as prosecution evidence against him , the ORG found a violation of LAW on the ground that the conversations in question had not been recorded “ in accordance with the law ” . As the applicant had declined to submit any claims for compensation in respect of pecuniary or nonpecuniary damage , stating that he intended instead to pursue such claims before the domestic courts , the ORG made no award for just satisfaction under those headings . In so far as the applicant claimed compensation for legal costs and expenses incurred by him in the domestic proceedings , the ORG rejected the applicant ’s argument that the criminal proceedings against him had resulted entirely from the violation it had found in his case , taking the view that those proceedings had in fact been occasioned by a reasonable suspicion of wrongdoing on the applicant ’s part , and recalling that it had already at the admissibility stage rejected the applicant ’s complaints touching on the use made of the evidence obtained as a result of the violation found .

On an unspecified date and on the basis of the ORG ’s findings in its judgment of DATE , the applicant PERSON filed a request with ORG for revision of the final domestic judgment of DATE , in which ORG – without the recorded telephone conversations having been relied on in evidence – had convicted him of having sexually assaulted PERSON and another woman and had sentenced him to a suspended term of CARDINAL months’ imprisonment and payment of a fine of NLG CARDINAL ( EUR CARDINAL,CARDINAL.CARDINAL ) , to be replaced by CARDINAL days’ detention in the event of non - payment .

On DATE ORG accepted the request for revision and , in accordance with LAW ORG , determined the matter itself . It held :

“ CARDINAL . ... the ORG has the obligation to provide redress if ORG has found a violation of a LAW provision . Such redress can be provided entirely or in part within the framework of the revision procedure , amended for this purpose .

Having regard to the violation of LAW found by ORG , ORG is of the opinion that revision is necessary for the purposes of redress . To that extent , the request is well - founded . ... The request is aimed primarily at having ORG declare the prosecution inadmissible , while quashing the judgment in respect of which revision is sought .

ORG can not accede to this request since it is only in exceptional cases that a prosecution may be declared inadmissible , and the instant case can not be considered as such . In this respect the petitioner relies mistakenly on [ ORG judgment of DATE ; NL DATE , no . CARDINAL ] . In that case ORG held that , in certain circumstances , a serious breach of the principles of proper proceedings may lead to the prosecution being declared inadmissible if , as a result of that breach , deliberately or owing to gross negligence of the defendant ’s interests , the defendant ’s right to a fair hearing has been violated . As ORG , in its decision on admissibility [ M.M .. v. the GPE ( dec . ) , no . CARDINAL/CARDINAL ] of CARDINAL DATE , preceding its judgment of DATE , declared inadmissible the [ applicant ’s ] complaint under LAW as being manifestly illfounded , it can not be said that there has been a serious breach of the principles of proper proceedings as a result of which , deliberately or owing to gross negligence of the [ applicant ’s ] interests , his right to a fair hearing has been violated .

Taking into account that , in the proceedings leading to the judgment of which revision is sought , there was no breach of LAW and that the contents of the recorded telephone conversations were not used in evidence , there is no ground for referring the case to ORG under LAW , as requested by the petitioner in the alternative .

In the light of the importance of the provision violation and the nature and seriousness of the irreparable defects in the preliminary criminal investigation , as found by ORG , ORG will , after accepting the [ revision ] request , determine the matter itself , in accordance with LAW ORG , and reduce the fine imposed by ORG in the following manner . ”

ORG quashed the original judgment of ORG in part , that is , in respect only of the amount of the fine imposed and the duration of the alternative detention period , reducing the fine by PERCENT to ORG CARDINAL,CARDINAL and the duration of the alternative detention to DATE .

The findings of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) as regards the ORG , as set out in its Report on the visit to the GPE from DATE , together with ORG response to those findings , are set out in the ORG ’s judgment of CARDINAL DATE in the case of PERSON ( cited above , § § DATE ) .

The ORG visited the GPE again from CARDINAL to DATE and , in the course of this visit , carried out a follow - up visit to the ORG . Its findings were the following ( ORG to ORG on the visits carried out to GPE and to GPE by ORG for ORG Treatment or Punishment ( ORG ) in DATE , ORG ( DATE ) CARDINAL , excerpts ) :

“ CARDINAL . At the time of the DATE visit , ORG ( ORG ) at the FAC was being renovated , and the inmates allocated to it were being held in FAC ( ( GPE ) building nearby ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) .

In addition to paying a brief visit to the facilities undergoing renovation , the ORG ’s delegation examined the regime currently being applied , and devoted attention to the procedures governing placement and extension of placement in ORG . In the course of the visit , interviews were held with all CARDINAL inmates , the establishment ’s management and staff , as well as representatives of ORG .

c. regime

Following its first visit to the ORG , the ORG expressed considerable concern about the regime applied within the institution . It recommended that the regime be revised , in particular as regards certain of its features : the group system ( if not discarded , to at least be relaxed and inmates to be allowed more out - of - cell time and a broader range of activities ) ; searching policies ( to be reviewed in order to ensure that they are strictly necessary from a security standpoint ) ; and visiting arrangements ( to be reviewed , the objective being to have visits take place under more open conditions ) ( cf . paragraphs CARDINAL to CARDINAL of ORG ( CARDINAL ) CARDINAL ) .

However , in their response ( dated DATE ) to the ORG ’s visit report , the NORP authorities defended point by point the different aspects of the regime being applied in the ORG ( cf . paragraph CARDINAL of ORG ( CARDINAL ) CARDINAL ) .

In the course of the DATE visit , the Director of the FAC and the Acting Director of the ORG informed the ORG ’s delegation that a limited number of modifications to the regime and its implementation had taken place . For instance , steps were being taken to increase staff / inmate communication through a training programme known as “ Safety at the door ” , as well as by the previously - mentioned adaptations of the exercise yards . Further , a slight expansion of the types of activities offered had made it possible for inmates to practice playing musical instruments in their cells . Another positive development was that the special “ handcuffs regime ” ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) had not been applied in respect of any inmate since DATE .

However , despite these welcome developments , the regime in the unit was essentially the same as in DATE , and the prison ’s management acknowledged that there had been “ no change in most of the rules ” . Although the official allowance for activities was generous ( TIME ) , in practice , most inmates’ out - of - cell time did not appear to have increased ( averaging TIME per day ) . The stringing of plastic curtain hooks on short rods , which was performed individually in the cells , continued to be the only work offered . It remained the case that body searches - including anal inspections - were performed on each prisoner at least once DATE , a process which was invariably perceived as humiliating . Conditions under which visits and sessions with non - custodial staff took place also continued to be very restrictive . Inmates’ remarks to the delegation ( e.g. “ losing positivity ” , lacking “ future feelings ” , “ beginning to hate people from the heart ” , and/or having to cope by being “ mentally separate ” ) frequently echoed those made in DATE .

To sum up , inmates held in the ORG remained subject to a very impoverished regime .

In an environment which is potentially hazardous to the mental health of prisoners , it is of critical importance to provide a varied programme of appropriate stimulating activities ( including education , sport , work of vocational value , etc . ) . The ORG calls upon the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff .

Following a recommendation made by the ORG in its previous periodic visit report ( cf . paragraph CARDINAL of ORG ( DATE ) CARDINAL ) , the NORP authorities commissioned ORG to carry out an independent study of the psychological state of current and former inmates of the ORG . A preliminary study completed on DATE concluded that “ an empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners is feasible . ” The NORP authorities have indicated that such an empirical examination has in fact commenced and would be completed by DATE . The ORG trusts that it will receive the results of the study in due course .

CARDINAL point raised by the preliminary study may be noted , i.e that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “ contradiction in the policy ” of the ORG . ORG would like to receive the views of the NORP authorities on this statement .

Each prisoner was also subjected to such a search before and after being interviewed by members of the ORG ’s delegation . ”

ORG responded to these findings in the following terms ( ORG ( DATE ) DATE , excerpts ) :

“ The “ Extra Security Institution ” at the FAC

recommendations ...

- the NORP authorities to make further efforts with a view to increasing out - of - cell time , allowing for more human contact , expanding the range of activities ( work and education ) , and alleviating searching measures for prisoners held in the ORG . Less constrained contact should be encouraged with all staff ( paragraph CARDINAL )

Response : Prisoners in the ORG spend a total of TIME a week on out - of - cell activities , and these activities are no less varied than in other prisons . They include exercise , visits , sport , work , education and recreation . Not all prisoners take part in all activities . What they do depends partly on interest and ability . The work in the ORG is simple . However , it is difficult to provide work that is more varied and yet meets security requirements . In principle , work in the ORG is done jointly . The Government refutes the claim that , on average , prisoners participate in activities for no more than between TIME a day . In fact they spend an average of TIME a day in out - of - cell activities .

The Government agrees that prisoners and staff should have more contact . Fenced - off walkways for staff have now been erected in the exercise yards . They provide more opportunities for informal contact and interaction between prisoners and staff .

The number of searches has been sharply reduced since the opening of the ORG . Besides a DATE search during cell checks , searches are carried out after visits to areas containing potentially dangerous objects , such as the hairdresser ’s or the doctor ’s or dentist ’s surgery , and after contact with the outside world , such as visits . Searches are still necessary from the point of view of security . The Government would point out that searches are also conducted in ordinary prisons .

On DATE , in CARDINAL separate cases against the GPE , ORG ruled that : “ the combination of routine strip - searching with the other stringent security measures in the ORG amounted to inhuman or degrading treatment in violation of LAW . There has thus been a breach of this provision . ” ( PERSON the GPE , ORG no . CARDINAL/CARDINAL , DATE , § CARDINAL ; see also PERSON the GPE , ORG no . MONEY , DATE , § CARDINAL ) . These judgments and other considerations have prompted the Government to stop routine DATE searches in the ORG over a long period of time . The ORG ’s regulations will be amended .

requests for information

- the results of the “ empirical examination of the possible effects of a maximum security regime on the mental conditions of prisoners ” , being conducted by ORG ( paragraph CARDINAL )

Response : The study is expected to be completed by DATE as indicated . As soon as the findings are available , the ORG will forward them to the ORG .

- the views of the NORP authorities on the statement , made in the preliminary study carried out by ORG , to the effect that the lack of influence of detainees on the severity of the regime being applied to them constitutes a “ contradiction in the policy ” of the ORG ( paragraph CARDINAL )

Response : The Government understands the point made in the preliminary study concerning the lack of influence that prisoners have on the regime . However , opportunities to exercise influence are necessarily more restricted in the ORG than in other prisons because of the nature of the system . The facility is exclusively for prisoners who are highly likely to abscond or who pose a serious threat to society . Placement in the ORG is mainly determined by considerations of safety and security . In this sense the ORG differs from other prisons . The emphasis on safety and security means that placement in the ORG does not depend on a prisoner ’s behaviour but on the risk he represents . ”


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

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE the applicant applied to the NORP - German Reconciliation Foundation ( “ the ORG ” ) for payment of a benefit on account of his deportation and forced labour during the Second World War . He submitted that from DATE to DATE he had been a forced labourer on a farm in GPE . In DATE he had been relocated to PERSON ( near GPE ) where he had been required to work as a forced labourer for the company ORG . He alleged that in PERSON he had been imprisoned in a penal camp ( obóz karny ) .

The applicant ’s request was made under the scheme for slave and forced labourers ( “ the second compensation scheme ” ) established under LAW of DATE , the NORP Law of DATE on the Creation of the “ Remembrance , Responsibility and Future ” Foundation ( “ LAW ; ORG ” ) and the subsequent Agreement of DATE between the PERSON , ORG ( “ the NORP ORG ” ) and the Polish - German Reconciliation Foundation .

On DATE the Foundation ’s Verification Commission found that the applicant was eligible for payment of a benefit , his persecution falling under the CARDINALth category which included persons who had been deported to GPE and subjected to forced labour in agriculture .

On DATE the applicant appealed against the decision of CARDINAL DATE . He claimed that he had performed forced labour both in agriculture and later during his internment in the penal camp , and that ORG had failed to grant him compensation on account of the latter persecution . He submitted that by doing so the ORG breached the relevant rules which required it to grant benefit to a claimant on account of a more favourable category of eligibility . The applicant produced CARDINAL items of documentary evidence in support of his claims :

a/ a statement by a daughter of a NORP farmer where he used to work that in DATE he had been transported to a camp ;

b/ a certificate of work for the company ORG which attested , according to the applicant , that he had been interned in a camp ;

c/ a certificate issued by ORG in DATE that the applicant had returned from a camp in GPE .

On DATE ORG changed the decision of DATE . It held that the applicant ’s persecution came under the CARDINALrd category of eligibility , i.e. persons who had been deported to GPE and subjected to forced labour in industry . Consequently , the applicant was awarded DEM CARDINAL,CARDINAL . ORG informed the applicant that his request for consideration of his internment in the penal camp as falling under DATE category of eligibility could not be granted . It stated that the only persons who came under the CARDINALnd category of eligibility were the detainees of those camps which were included on the list approved by ORG . However , the applicant ’s camp was not included on that list .

On DATE the applicant appealed against the latter decision . He contested the fact that ORG had not taken into account his forced labour during his internment in the penal camp .

On DATE ORG informed the applicant that his appeal could not be allowed . As regards the applicant ’s submissions to the effect that his internment in a labour camp ( obóz pracy ) should have been classified as persecution falling under DATE category of persecution , it referred to its findings in the decision of DATE . The applicant was further informed that his certificate of work ( PERSON ) attested that he had worked for the company Grün&Bilfinger ORG , but did not confirm that he had been detained in a penal camp .

The Government submitted that the applicant had been subjected to forced labour for the Grün&Bilfinger ORG company in PERSON and had stayed in a camp for forced labourers . However , that camp had not been a penal camp and did not appear on the list of “ other places of confinement ” adopted by ORG .

DATE international negotiations took place on the issue of compensation for persons subjected to slave or forced labour by NORP GPE . The government of GPE was CARDINAL of the parties to these negotiations . They were prompted by a number of lawsuits against certain NORP companies before the courts in GPE in which compensation was sought on account of forced labour during the Second World War . The NORP companies against which the lawsuits had been brought wished to bring them to an end and secure legal peace . The negotiations concluded on DATE with the adoption of a Joint Statement which was signed by all the parties to the negotiations , including the government of GPE .

The parties to the Joint Statement acknowledged the intention of the Government of GPE and of the NORP companies concerned to accept moral and historic responsibility arising from the use of slave and forced labourers and from other injustices committed during the ORG era and the Second World War . They affirmed their consensus of CARDINAL DATE on the establishment of the Remembrance , ORG , which was to be a means of providing funds for victims from central and eastern LOC , most of whom had benefited little from prior NORP compensation and restitution programmes . The parties to the Joint Statement further agreed to base their decisions regarding the distribution of funds on the eligibility criteria set out in GPE .

According to ORG , the Government of GPE and the NORP companies concerned undertook to contribute MONEY to the Remembrance , ORG . ORG stipulated that the governments of the participating central and eastern GPE , including GPE , and the government of GPE agreed to implement the necessary specific measures within the framework of their national legal systems to achieve legal peace .

Subsequently , on DATE the NORP parliament enacted the PERSON on the creation of the PERSON , ORG ( Gesetz PERSON “ GPE , PERSON ” ) . It came into force on DATE . However , the disbursement of payments only started on CARDINAL DATE , once the relevant guarantees had been secured by the NORP companies concerned with regard to the dismissal of the lawsuits filed against them in GPE courts . The disbursement of payments terminated at DATE .

The relevant parts of the PERSON on the creation of the PERSON , ORG provide :

Recognising

that ORG inflicted severe injustice on slave labourers and forced labourers , through deportation , internment and exploitation , which in some cases extended to destruction through labour , and through a large number of other human - rights violations ,

that NORP companies which participated in the ORG injustice bear a historic responsibility and must accept it ,

that the companies which have come together in the Foundation Initiative of NORP Industry [ Stiftungsinitiative der deutschen Wirtschaft ] have acknowledged this responsibility ,

that the injustice committed and the human suffering it caused can not be truly compensated by financial payments ,

that the PERSON comes too late for those who lost their lives as victims of the National Socialist regime or have died in the meantime ,

the NORP PERSON acknowledges political and moral responsibility for the victims of National Socialism . The GPE also intends to keep alive the memory of the injustice inflicted on the victims for coming generations . ( ... )

( CARDINAL ) A legally recognised ORG with the name ‘ Remembrance , Responsibility and Future’ shall be established under public law . ( ... )

( CARDINAL ) The purpose of the ORG is to make financial compensation available through partner organisations to former forced labourers and to those affected by other injustices from ORG period . ( ... )

( CARDINAL ) The approval and disbursement of CARDINAL - off payments to those persons eligible under LAW will be carried out through partner organisations . The ORG is neither authorised nor obligated in this regard . The board of trustees may opt for another mode of payment . ( ... )

( CARDINAL ) Eligible under this PERSON are :

NORP persons who were held in a concentration camp as defined in section ORG ) of LAW [ Bundesentschädigungsgesetz ] or in another place of confinement outside the territory of what is now GPE or a ghetto under comparable conditions and were subjected to forced labour ;

NORP persons who were deported from their homelands into the territory of ORG within the borders of DATE or to a NORP - occupied area , subjected to forced labour in a commercial enterprise or for public authorities there , and held under conditions other than those mentioned in paragraph CARDINAL , or were subjected to conditions resembling imprisonment or similar extremely harsh living conditions ; ( ... )

( CARDINAL ) Eligibility shall be demonstrated by the applicant by submission of documentation . The partner organisation shall take into account relevant evidence . If no relevant evidence is available , the claimant ’s eligibility may be substantiated in some other way .

( CARDINAL ) Specific characteristics of other places of confinement referred to in LAW , Paragraph CARDINAL , Number CARDINAL are inhumane conditions of detention , insufficient nutrition and lack of medical care . ( ... ) ”

Section CARDINAL § CARDINAL of LAW ( Bundesentschädigungsgesetz ) provided that ORG would issue a decree containing a list of concentration camps within the meaning of the LAW . ORG issued the decree in DATE with an annex listing concentration camps . It was twice amended , most recently in DATE .

ORG adopted the list of “ other places of confinement ” which contained , inter alia , penal camps . Persons detained in CARDINAL of the camps included on the list were considered to come DATE category of eligibility . The list was binding on all partner organisations , including ORG .

On DATE the NORP government submitted to ORG a bill on the exemption from tax and duties of payments received in connection with NORP persecution . In the explanatory memorandum to the bill , the government stated that payment of benefits in respect of forced labour for the NORP regime had been agreed in the course of negotiations involving the respective governments , NORP companies and the victims . They further stated that , as a result of the agreement with the NORP , GPE would receive CARDINAL . On DATE the NORP parliament enacted the PERSON on exemption of payments received in connection with NORP persecution from tax and duties . That PERSON also exempted the Polish - German Reconciliation Foundation from taxes due on funds received by the ORG for the distribution of payments . The PERSON came into force on DATE .

On DATE an agreement was concluded between the Remembrance , ORG and ORG ( “ the partnership agreement ” ) . Under its terms ORG was to act as a partner organisation of ORG , with a view to securing prompt disbursement of compensation payments to slave and forced labourers ( paragraph CARDINAL of the agreement ) . Both parties agreed to implement fully the provisions of the ORG and declared that their agreement was in compliance with LAW of DATE .

The above agreement further stipulated that ORG , as a partner organisation , was entrusted with determining eligibility for compensation payments in respect of all claimants who resided on the territory of GPE on DATE ( paragraph CARDINAL ) . The partner organisation was to verify and determine whether the relevant conditions for awarding payment had been established or substantiated in some other way ( paragraph CARDINAL ) . A claimant could appeal against a decision taken by the partner organisation in respect of the grounds of the decision or the amount of compensation awarded before an independent appeal body established within the partner organisation ( paragraph CARDINAL ) . Under paragraph CARDINAL of the agreement , decisions taken by the appeal body were final and could not be challenged before a court ( paragraph CARDINAL ) .

The Agreement of DATE was accompanied by CARDINAL annexes . Annex no . CARDINAL contained a declaration by the NORP government with regard to responsibility for the disbursement of compensation payments . The relevant parts provide :

“ Since DATE the government of GPE has made exceptionally concerted efforts to secure payment of compensation for slave and forced labour imposed by NORP GPE . In the negotiations , the government has played a significant role on behalf of the representatives of the victims . Due to the government ’s efforts , former slave and forced labourers will receive in total ORG CARDINAL , which constitutes a very positive outcome to the negotiations .

The government of GPE will endeavour to ensure that the payments from the PERSON , ORG , handled by ORG with the participation of NORP financial institutions , will be processed properly . To that end the NORP authorities will take steps with regard to the Polish - German Reconciliation Foundation within their founding and supervisory competences . ”

The statutes of the Polish - German Reconciliation Foundation were amended on the initiative of its founder , namely the Minister of ORG , with a view to implementing the provisions of the ORG and the Agreement of DATE ; those amendments were subsequently registered by ORG on DATE .

The amended statutes stipulated that the ORG was to disburse compensation payments to the victims specified in LAW of the ORG from the funds contributed by ORG on the basis of the same LAW ( paragraphs CARDINAL and CARDINAL ) . It further specified that the ORG ’s decisions in individual cases were to be taken on the basis of internal regulations . A decision in an individual case could be appealed against ; however , a decision taken after an appeal had been considered was final and no appeal lay against it ( paragraphs CARDINAL and CARDINAL ) .

Pursuant to paragraph CARDINAL of the amended statutes , ORG was to determine individual claims for assistance filed by victims of NORP persecution . Decisions taken by ORG could be appealed against to ORG .

In DATE the ORG referred to ORG a question of law ( pytanie prawne ) , as to whether decisions given by the organs of the ORG could be appealed to ORG and , if not , whether they could be subjected to judicial review in civil proceedings . On DATE ORG adopted resolution no . III ZP CARDINAL/CARDINAL , holding that , since administrative functions could only be delegated by statute , which was not the case with regard to the Polish - German Reconciliation Foundation , its decisions did not meet the requirements of an administrative decision and thus could not be appealed to ORG . However , ORG refused to give a definite answer as to whether the ORG ’s decisions could be subject to judicial review in civil proceedings . It nevertheless observed that entitlement to receive a benefit from the ORG did not fall within the scope of civil law , and thus could not be raised before a civil court . In exceptional cases , such as where the claimant ’s eligibility had been established but the benefit was not paid , a claim could arise under civil law .

In Resolution no . OPS CARDINAL/CARDINAL of DATE , ORG upheld the earlier case - law to the effect that it did not have jurisdiction to review the decisions of the ORG and observed that :

“ The Polish - German Reconciliation Foundation , which awards benefits to the victims of NORP persecutions using the financial resources allocated to it by foreign entities , does not perform functions in the area of public administration . Thus , the source of the entitlement to receive an award from the ORG does not stem from actions of the public administration . ”

It further observed :

“ There is no doubt that the Agreement of DATE , concluded between the NORP and ORG , which was not ratified , as well as subsequent acts [ starting with ORG and LAW ] concerning grants of financial assistance by the ORG on account of NORP persecution do not fulfil the criteria which would make it possible to classify them as sources of binding NORP law . No administrative - law relation arises between a claimant and the ORG on the basis of the aforementioned acts , and consequently the ORG is not an organ of public administration established by law to determine cases in the sphere of public administration . ”

On DATE ORG adopted Resolution no . III CZP CARDINAL/CARDINAL in response to a question of law put forward by the ORG . It revisited its earlier case - law on the interpretation of the notion of a “ civil case ” laid out in LAW in relation to claims against the ORG . ORG held that :

“ The [ civil ] courts have jurisdiction in the case where a claimant – due to an unfavourable decision by the “ NORP - German Reconciliation ” Foundation – is seeking a payment [ from the ORG ] in respect of NORP persecution . ”

In the reasons for its ORG found , inter alia , that :

“ The procedure concerning examination of claims under the first and the second NORP fund ... may not be currently instituted . The relevant funds were allocated and the disbursement of payments has been finally concluded . ( ... )

There is no doubt that the current state of affairs resulting from the relevant case - law , under which those persons interested in challenging before a court the ORG ’s refusal to grant them a suitable payment are deprived of such a possibility , can not be accepted in the light of the binding constitutional and LAW . LAW in conjunction with LAW establishes a presumption in favour of jurisdiction of the ordinary courts which indicates – at least indirectly – that a possible jurisdiction of the administrative courts should be based on a specific statutory rule . ( ... )

The need for extensive interpretation of the individual ’s access to a court , or in other words , the right to bring an action ( the right to a court ) follows also from LAW , which stipulate that everyone is entitled to a fair and public hearing by an independent and impartial tribunal established by law in the determination of his civil rights and obligations . It may be assumed from the established case - law of ORG CARDINAL § CARDINAL of the Convention guarantees to everyone the inalienable right to submit for a judicial determination any claims concerning civil rights and obligations .... Obviously , the right to a court does not denote the right to “ win ” a case , but it signifies that the filed claim should be examined by a court and determined on the merits ( judgment of ORG of DATE , no . PERSON CARDINAL/CARDINAL , unpublished ) .

The results of interpretation of ORG CARDINAL and CARDINAL of the Code of Civil Procedure thus require us to acknowledge that the [ civil ] court has jurisdiction where a case has the features of a civil case in the substantive sense and where no particular provision delegates its examination and determination to a different organ than an ordinary court . The [ civil ] court also has jurisdiction where a case has the features of a civil case only in the formal sense . ”