CASE OF GERA DE PETRI TESTAFERRATA BONICI GHAXAQ v. MALTA

Violation of Art. 6-1;Violation of P1-1;No violation of Art. 13;Pecuniary damage - reserved;Non-pecuniary damage - award

Joseph Zammit Mckeon;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Zdravka Kalaydjieva

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

The applicant is the owner of a property , known as PERSON , in PERSON . She partly owns some of the ground floor shops , and entirely owns the house , from the rest of the ground floor and the basement to the top floors .

The property had been damaged during the Second World War and the applicant 's ancestors , from whom she inherited the property , had on DATE applied to ORG to obtain the necessary funding to have the property restored . At the time , the building consisted of DATE town house including a few rooms on the ground floor which were rented out as shops . DATE ORG had paid out a sum corresponding to ORG CARDINAL,CARDINAL , for the premises excluding the shops in respect of which no amount had been paid as a consequence of undefined claims . According to the applicant the sums awarded covered expenses for required temporary works to secure the LOC , as had originally been claimed , and not the entire works to repair the whole of the property . While the Government contended that , despite the payments , the building was left in a state of neglect , the domestic courts acknowledged that the applicant had attempted to reconstruct the damaged area ( page CARDINAL of the Constitutional Court judgment of CARDINAL DATE )

In DATE the then ORG issued an order taking control of the property under title of possession and use , that is , a forced temporary taking of property subject to the payment of DATE compensation , known as a “ recognition rent ” , to the owners .

NORP Despite this order , the applicant 's ancestors refused to hand over the keys of the building . Thus , the property was left unused until DATE when the building was forced open by the Government , by which time it had deteriorated considerably .

NORP In DATE the Government commenced works to repair the property with a view to using it as a cafeteria and offices in conjunction with the LOC situated nearby . The Government evicted the tenants of the shops on the ground floor which had been leased on the basis of controlled rents , and a hall in the upper floors was converted into a performance hall for small audiences . Subsequently a theatre restaurant was housed in the basement of the building and another floor was added to house the foundation for NORP patrimony “ PERSON ” , a Government foundation promoting national heritage , which also serves as a commercial company dealing in publications .

On DATE the ORG issued a “ notice to treat ” by which the owner was informed that the compensation offered by way of recognition rent amounted to CARDINAL NORP Liras ( MTL – approximately QUANTITY ( EUR ) ) . The amount was based on the DATE rental value ( according to rent laws relating to renting of residences – not commercial LOC – in force at the time ) increased by PERCENT to allow for inflation . By a judicial letter of DATE the applicant 's ancestors rejected the offer and in DATE the Commissioner of Lands instituted compensation proceedings before ORG ( “ LAB ” ) . These proceedings were suspended sine die on DATE ( see Annex A for a detailed chronological list of hearings in the proceedings ) . Pending these proceedings , the applicant inherited the property of which she gained possession by public deed on DATE . The applicant submitted that even if these proceedings had been concluded , the ORG would have been unable to establish a fair rent reflecting market values , since it was bound by law to assess rent on the basis of DATE rental values .

After repairing the property the Government allocated it and entrusted its management to ORG ( “ MTMC ” ) , the organ of ORG which administers LOC . It rented the property to a number of commercial entities , including offices , cafeterias , reception halls , a restaurant and a publishing house . According to the Government , the economic income received by the MTMC per year amounted to QUANTITY and the Government had spent ORG CARDINAL,CARDINAL restoring the building and meeting its maintenance costs .

In DATE the applicant instituted constitutional redress proceedings in which she brought complaints under Articles CARDINAL and CARDINAL of the Convention and LAW to the Convention . She complained that the property , estimated at the time to be worth ORG CARDINAL ( approximately EUR CARDINAL ) , was not used for a public purpose , that she had not been offered fair compensation , that the proceedings pending before the LAB were taking an unreasonably long time to be decided and that she had been discriminated against vis - à - vis other property owners who , unlike her , had their properties expropriated by outright purchase and not subject to the less favourable forced rents . She requested the court to grant adequate redress and to award damages .

On DATE ORG ( FAC ) found for the applicant . It declared the taking null and void , as the property was not being used for a public purpose , and therefore contrary to the Convention . It further found a violation of the applicant 's right to a fair hearing within a reasonable time . It considered that the period to be taken into account started running on DATE , the date when the applicant 's right to compensation arose , and had not yet ended DATE . It noted that it had taken the Government DATE to issue a “ notice to treat ” without which compensation proceedings could not be initiated . This , together with the lack of initiative of the Commissioner of Lands to pursue those proceedings , was enough to allow it to conclude that the applicant had suffered a serious prejudice , incompatible with LAW , over DATE during which she had been left without compensation . It declared that it was not necessary to examine the Article CARDINAL complaint . The issue of payment of damages in respect of the violation of Article CARDINAL ( which depended on the value of the property ) was reserved .

The Government appealed against the above - mentioned judgment .

The applicant submitted that during the proceedings , lasting DATE , the judges were replaced several times and there had been numerous adjournments ( see Annex B for a detailed chronological list of hearings in the proceedings ) .

On DATE ORG upheld the first - instance judgment in part . It held that there had been a violation of LAW to the LAW , in that a proper balance had not been preserved between the private interest and the public need . While it was true that the commercial purposes of the taking appeared to have superseded the original purpose , it was in the light of the compensation offered to the applicant ( ORG CARDINAL yearly rent for a property valued at approximately ORG CARDINAL,CARDINAL,CARDINAL ) and the fact that she had been deprived of her property for DATE , that she had been made to bear a disproportionate burden . The fact that the property had been refurbished by the ORG had little bearing on this conclusion , although it could be relevant in determining the compensation terms . It declared the Governor 's declaration of DATE null and void and ordered the Government to release the property . ORG , however , found that there had not been a violation of LAW of the length of the proceedings . It was true that the proceedings had been lengthy , the “ notice to treat ” having been issued DATE after the taking of the property and the proceedings before the LAB having not yet been concluded . However , the court noted that the time to be considered started running after the PERSON took effect in respect of GPE , namely on DATE ( when GPE introduced the right of individual petition ) and the applicant had failed to submit evidence of what had caused the delay after DATE . As to the LAW complaint , the court held that it had been misconceived , since the first - instance court had not examined it . As to the adequacy of compensation , it confirmed that the release of the property was an adequate remedy for the violation of LAW to the LAW , and the reservation of the issue of compensation by the first court was related to the Article CARDINAL complaint , which had not been upheld on appeal . However , it reserved any rights the applicant might wish to assert in respect of compensation for the “ possession and use ” of the LOC during the relevant period .

On an unspecified date following this judgment , the applicant obtained an eviction order against the Government . However , prior to its enforcement , on DATE , the ORG issued a fresh order , this time under title of public tenure in accordance with ORG ) Ordinance ( “ the LAW ” ) . Included in the taking were a number of shops and offices adjacent to PERSON , of which the applicant owned an undivided share together with third parties . The Government offered an DATE recognition rent of ORG CARDINAL ( approximately EUR CARDINAL ) , basing it on section CARDINAL ( CARDINAL ) ( c ) of the LAW ( see “ Relevant Domestic Law ” below ) , without indicating what portion of this amount was due for the applicant 's house , of which she was the sole owner .

According to an architect 's valuation , the present DATE rental value of PERSON , excluding the other adjacent property , amounts to MTL CARDINAL,CARDINAL ( approximately EUR CARDINAL ) per year . The market value in the case of sale is estimated to be MTL CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) ; the Government , however , estimate it to be only MTL CARDINAL ( approximately EUR CARDINAL,CARDINAL,CARDINAL ) .

On an unspecified date , the applicant lodged ordinary proceedings ( CARDINAL/CARDINAL - ATB CARDINAL ) , complaining that the new taking of the property under public tenure had been unlawful , as it was not permissible under LAW to take property by means of public tenure if it was not already being used by the Government .

At the request of the Government the eviction order was suspended pending the outcome of those proceedings .

On the date of introduction of this application the proceedings were still pending . ORG , in its ordinary jurisdiction , gave judgment in the case on DATE . The latter held that the taking of the property by public tenure had been ultra vires and was therefore null and void . An appeal was lodged on DATE and the case is still pending .

On an unspecified date the applicant lodged further constitutional redress proceedings ( CARDINAL - ATB CARDINAL A ) , claiming that the taking of the property under public tenure breached Articles CARDINAL and CARDINAL of the Convention and LAW to the Convention .

She claimed that the taking had not been in the public interest as the property was mainly being used for commercial purposes in relation to the Theatre , even though the Government had at their disposal other properties in the vicinity which could have served the same purpose . She also claimed that the inadequate compensation offered by the Government was arbitrary and not in accordance with the law . Compensation for the taking of a property under public tenure had to be calculated on the basis of section CARDINAL ( CARDINAL ) of the LAW and not section CARDINAL ( CARDINAL ) ( c ) , which applied where property taken under “ public tenure ” was converted by absolute purchase ( see LAW below ) . Although it could be supposed that the ORG 's offer amounted to more than what was applicable by law , it did not reflect the real current market value , since the calculations had been based on rental values applicable in DATE . Even assuming that the offer comprised compensation for PERSON alone and not the adjacent properties , it still represented a fifth of its real value on the market ; therefore , it did not constitute adequate compensation and the applicant was being made to bear an excessive burden . She further claimed that the decision to take her property under public tenure had been arbitrary and discriminatory . At the time CARDINAL other properties had been taken under this title , as opposed to outright purchase . All the properties had already been in the possession of the ORG under a different title and were all related to slum clearance and housing projects , unlike the applicant 's . Finally , she complained that the taking was in breach of LAW , in that she was not given a fair hearing within a reasonable time , as she had no real and effective possibility of having the value of her property determined by a court . Notwithstanding the Constitutional Court judgment in her favour , in these circumstances the applicant remained without an effective remedy .

These proceedings are still pending .

Compensation for damage arising from the violation of LAW No . CARDINAL

On DATE the applicant requested ORG ( FAC ) to determine the claim ( ORG ) for the compensation due for the violation of LAW No . CARDINAL in accordance with LAW ( “ COCP ” ) . On DATE ORG ( FAC ) rejected the applicant 's claim . It held that ORG had only reserved the matter of compensation in relation to LAW , of which no violation had been found by ORG , which had also found that declaring the taking null and void was a sufficient remedy for the violation of LAW No . CARDINAL . Thus , ORG judgment of DATE had been final , the applicant 's claims having been decided in their entirety , except for the reservation in respect of payment due for the possession and use of the land for the relevant period , which was subject to ordinary civil remedies . In consequence Article CARDINAL of the ORG did not apply to the present case .

That finding was confirmed on appeal by a judgment of ORG of DATE .

Compensation for damage arising from the possession and use of the premises

On DATE the applicant instituted proceedings against the Commissioner of Lands ( CARDINAL/CARDINAL ) for damage arising from the loss of possession and use of the premises in the light of ORG judgment of DATE finding a violation of LAW No . CARDINAL to the Convention . On DATE , the court having established that such a decision had not been taken by any other court and that the domestic courts had particularly stated that such a measure had to be sought before the ordinary domestic civil courts , took cognisance of the case and ordered the submission of the relevant evidence .

The proceedings are still pending .

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

“ The compensation due for the acquisition by absolute purchase of any land , and the sum to be deposited in accordance with this article shall be :

( c ) in the case of conversion from public tenure into absolute purchase a sum arrived at by the capitalisation at the rate of CARDINAL per centum of the DATE recognition rent due under the provisions of this GPE . ”

Section CARDINAL of the LAW relates to the assessment of compensation by ORG . LAW , reads as follows :

“ The compensation in respect of the acquisition of any land held by way of public tenure shall be equal to the acquisition rent assessable in respect thereof in accordance with the provisions contained in subarticles ( CARDINAL ) to ( CARDINAL ) , inclusive , of this article , increased ( a ) by DATE ( PERCENT ) in the case of an old urban tenement and ( b ) by DATE ( PERCENT ) in the case of agricultural land . ”


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

André Potocki;Karel Jungwiert;Mark Villiger

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

DATE the applicant was married to PERSON was born during the marriage . The applicant and PERSON divorced in DATE . On DATE they remarried .

On DATE the applicant died and PERSON inherited her rights and obligations .

On DATE PERSON died and PERSON inherited his rights and obligations .

On DATE M. instituted divorce proceedings in the Moskovskiy District Court of GPE against the applicant .

On DATE amended his claims and requested a declaration that the marriage of DATE was void . Subsequently he modified and withdrew his claims on several occasions .

On DATE the court declared the marriage void . The applicant appealed .

On DATE ORG ( since DATE ORG ) quashed this judgment on the ground that the lower court had failed to examine the initial claims of LAW and to establish crucial facts , and remitted the case for fresh consideration .

On DATE the applicant submitted a counterclaim , seeking a divorce .

On DATE the ORG granted the divorce petition in respect of PERSON and the applicant . PERSON appealed .

On DATE ORG quashed this judgment on the lower court ’s failure to assess properly the evidence and remitted the case for fresh consideration .

On several occasions ORG transferred the case from CARDINAL trial court to another for further examination : in DATE to LOC of GPE ; in DATE to ORG of GPE ; and , eventually , on DATE to ORG of Kyiv ( in DATE this court was reorganised into the NORP and ORG of GPE ) .

On DATE the court found for PERSON and declared the marriage with the applicant void . The applicant appealed .

On DATE ORG quashed this judgment and remitted the case for fresh consideration to ORG of Kyiv . It noted , inter alia , that although the trial court had examined the case in the applicant ’s absence , it had failed to take into account her written pleadings , which were important for a fair examination . PERSON appealed in cassation against this decision but on DATE ORG dismissed his appeal .

On DATE the NORP ORG resumed the proceedings .

On DATE the court granted divorce to PERSON and the applicant . The hearing was held in PERSON ’s absence . PERSON appealed .

On DATE ORG quashed the judgment on the ground that the trial court had failed to examine whether the absence of PERSON was for good reasons or not and remitted the case for fresh consideration .

On DATE the ORG resumed the proceedings .

On DATE the court rejected PERSON ’s claim to have the marriage declared void and dismissed the applicant ’s claim because she had failed to attend the hearing .

On DATE and CARDINAL DATE respectively , ORG and ORG , acting as a court of cassation , dismissed PERSON ’s appeals .

A substantial number of the approximately seventy hearings in this set of proceedings were adjourned following the parties’ requests , referring to their poor state of health or their failure to appear before the court . In her requests to adjourn the hearings the applicant , who , it appears from the available documents , was represented , requested the trial courts either not to hold hearings in her absence or to stay the proceedings till her recovery . The trial courts stayed the proceedings several times pending the parties’ recovery . The courts further warned the parties that they would examine the case in the respective party ’s absence ; on CARDINAL occasion the court fined the applicant for non - attendance , but this decision was later quashed upon the applicant ’s appeal .

According to the applicant , she did not appeal against the judgment of CARDINAL DATE but in DATE she instituted new and separate divorce proceedings in the GPE ORG of GPE . On DATE the court divorced the applicant and M.

In DATE the applicant ’s family was granted tenancy of a publicly owned CARDINAL - roomed apartment . On CARDINAL DATE PERSON , with the applicant ’s consent , bought the apartment from the local municipal authority .

On DATE the applicant instituted proceedings in the Moskovskiy District Court of GPE against PERSON , seeking to declare the above sale contract void .

On DATE the court attached the apartment in question .

In DATE the applicant amended her claims , claiming ownership of CARDINAL of the apartment .

In DATE M. forcibly evicted the applicant from the apartment . The applicant moved to GPE , GPE , and resided there until her death .

On DATE ORG stayed the proceedings pending determination of the divorce proceedings .

In the period DATE the case was transferred to the NORP and GPE ORG of GPE , following the relevant decisions by ORG .

On DATE the Kharkivskiy ORG of GPE , having taken over the case , decided to stay the proceedings pending determination of the divorce proceedings .

On DATE the ORG of Kyiv ( before DATE the Moskovskiy District Court of GPE ) lifted the attachment order on this apartment as “ the main dispute had been resolved ” . According to the applicant , neither she nor her representative were present at this hearing . She also contended that Judge U. , the president of the court , who rendered this ruling , had intervened unlawfully in the proceedings as at that moment they were pending before ORG of GPE ( formerly ORG of Kyiv ) . The applicant further pointed out that in the ruling of CARDINAL DATE Judge PERSON had referred to a judgment which did not exist .

On DATE M. made a gift of the apartment to ORG , a third person . On DATE the latter sold the apartment to GPE The applicant alleged that she only became aware of the ruling of CARDINAL DATE in DATE , when the apartment had been already sold .

On DATE ORG ( formerly ORG of Kyiv , see paragraph CARDINAL in fine ) made an attachment order in respect of the apartment in question . On DATE ORG amended the order so that it applied to CARDINAL of the apartment only . According to the applicant , neither she nor her representative was summoned to the last - mentioned hearing . On DATE ORG upheld the ruling of DATE .

On DATE the court rejected the applicant ’s request to renew her the time - limit for appeal against the decision of CARDINAL DATE . There is no evidence that the decision of CARDINAL DATE has been ever sent to the applicant . According to the applicant , she learned about it on DATE at the latest from the letter of ORG . There is no evidence that the applicant has ever tried to obtain a copy of the decision of CARDINAL DATE and to appeal against it .

On DATE the ORG inquired of ORG as to the outcome of the divorce proceedings .

On DATE ORG resumed the proceedings .

On DATE the applicant submitted an additional claim to declare the gift contract of DATE and the sale contract of CARDINAL DATE ( see paragraph CARDINAL above ) void .

On DATE the case was transferred for examination to ORG . On DATE ORG of Appeal quashed this decision on an appeal by the applicant and remitted the case back to ORG .

On DATE , both parties , the applicant and PERSON , having died , ORG stayed the proceedings until the identity of the parties’ heirs had been determined .

On DATE PERSON joined the proceedings as the sole heir to both parties . She also modified the claims , seeking to have the contracts of DATE and DATE declared void and to have the court recognise that she owned the apartment outright . In this regard she indicated GPE and GPE as defendants .

On DATE the proceedings were resumed .

On DATE ORG found for PERSON . On DATE ORG upheld this decision . On DATE ORG of GPE quashed these decisions and remitted the case for a fresh consideration to the first instance court . The proceedings are apparently still pending .


Preliminary objection rejected (out of time);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 6-1;Pecuniary damage - claim dismissed;Costs and expenses partial award - Convention proceedings

The case concerns a dispute over the succession to the estates of PERSON , who died on DATE , and her husband PERSON , who died on CARDINAL DATE . The applicants are entitled to a share in the estates of the deceased either by will or on intestacy and are all NORP citizens . Their names are :

In this complex succession dispute the applicants were parties to CARDINAL sets of proceedings against a number of other people , including a Mr L. , a notary in GPE ( NORP GPE ) . Those proceedings were :

( ii ) a third - party application to reopen proceedings in which ORG had on DATE refused an application to set aside PERSON will of DATE ;

( iii ) an application to have set aside as fraudulent a transfer of a property development known as the “ LOC ” to ORG ( “ ORG ” ) and for payment of rent and other income derived from that property since DATE .

In the last set of proceedings – the only CARDINAL in issue – ORG of First Instance found in favour of the applicants in a judgment of DATE . It ordered that the rent should be paid to a receiver and held that ORG had been formed for an illegal purpose . It held that the ORG and the other applicants were in principle entitled to have the transfer set aside but deferred judgment on that point until ORG had given its decision in the action for payment of a legacy . On DATE ORG appealed against the judgment to ORG ( see paragraph CARDINAL below ) .

While that appeal was pending , the applicants applied for transfer of the case to another court on grounds of bias .

In an application ( no . T-CARDINAL - CARDINAL.CARDINAL ) registered on DATE , the applicants asked ORG ( Second Civil Division ) to order transfer of the proceedings pending against ORG to a court other than ORG . They also requested ORG to defer judgment until ORG had delivered its decision ( see paragraph CARDINAL below ) .

Before making that application , the applicants had , on DATE , made an initial application ( no . N-CARDINAL - CARDINAL.CARDINAL ) to the same division of ORG for the proceedings in the action for payment of a legacy and those relating to the third - party application , both of which were pending in ORG , to be transferred to another court on grounds of bias ( see paragraph CARDINAL above ) .

NORP The application of DATE read as follows :

“ There are currently pending before ORG

( i ) NORP proceedings for payment of ... legacies … ; and

( ii ) a third - party application to reopen proceedings …

In application no . CARDINAL - CARDINAL.CARDINAL registered on CARDINAL DATE at the registry of ORG the applicants requested transfer of those CARDINAL sets of proceedings from ORG to another court .

… The ORG and the other applicants brought an action ... against ORG in which they sought a declaration that the transfer of the property concerned to the company ... was fraudulent …

… the case is to be considered on the merits by ORG ; the applicants request its transfer to another court .

The applicants expressly refer to the grounds on which they relied in application no . CARDINAL - CARDINAL.CARDINAL . A transfer is justified for the same reasons in the proceedings against ORG … ”

As regards the grounds for suspecting bias , the applicants made , inter alia , the following submissions in their application of DATE :

“ ORG comprises CARDINAL members : the President , CARDINAL other judges , a ORG and an ORG .

The applicants are entitled to question whether objectively the court that is to rule in their various proceedings against the ORG , PERSON and ORG – a mere emanation of the Bambridges – is impartial .

Firstly , PERSON has held a prominent position in PERSON and enjoyed privileged , friendly relations with a number of the judicial officers of ORG .

Several judicial officers , including some from ORG , have enjoyed special relations with the parties for a very long time , Mr J. and PERSON were close friends of PERSON ( at the latter ’s funeral his widow was supported by PERSON A. ) .

It has to be noted , furthermore , that the atmosphere of tranquillity in which judicial business ought necessarily to be conducted has in fact been seriously disturbed by the sudden turn of events in the case and its repercussions . In particular , the ORG and the other applicants , aware that their share in the estate was about to be squandered , applied for DATE and in several cases obtained from the court of first instance – orders for some of the assets of the estate to be delivered to a receiver . They also secured a like measure over PERSON assets … He reacted very violently when the measure was ordered , publicly declaring it to be ‘ an act of judicial ORG . The local judicial officers became divided and ORG at ORG reflected the disarray in an application to have the case transferred that he made to ORG on DATE .

In other words some judicial officers in ORG , divided among themselves , whose actions have been publicly called into question and who have taken up a position on events closely connected with the proceedings , which are still pending , feel that , over and above their goodwill their impartiality may be objectively called into question and that the decisions they render may legitimately fall under suspicion …

Taken as a whole , these factors cast unacceptable doubt on the impartiality of the judicial officers of ORG and render it ‘ ORG or suspect .

ORG will prefer to avoid any ambiguity or suspicion and to order that the case be removed from ORG . ”

On DATE ORG ( Second Civil Division ) held :

“ As to the applications dated DATE and DATE … for an order for transfer on grounds of bias to a court other than ORG of the proceedings between them and ( i ) the PERSON and another , ( ii ) PERSON and ( iii ) ORG property company ;

The Court …

Having considered the applications and the documents lodged with ORG registry on DATE and DATE on behalf of the ORG and the other applicants ;

In their applications the ORG and the other applicants seek transfer to another court of appeal on grounds of bias of the cases pending before ORG to which they are parties , namely :

( CARDINAL ) NORP proceedings for payment of a legacy following an appeal against a judgment of ORG dated DATE ; and

( CARDINAL ) a third - party application to reopen proceedings with a view to securing an order setting aside a judgment of DATE of ORG ; those applications are connected and must be joined .

While it has not been shown that the members of ORG have taken up a position on the outcome of the proceedings before them , it is apparent from the alleged facts and the documents produced that the ORG and the other applicants may entertain doubts as to the impartiality of the court that is to try their cases ; the cases should therefore be transferred to another court , whose decision will command respect and have the authority that court decisions must possess .

FOR THESE REASONS ,

JOINS applications nos . N-CARDINAL - CARDINAL.CARDINAL and T-CARDINAL - CARDINAL.CARDINAL ;

DECLARES the applications admissible ; and

ORDERS transfer of the following cases to ORG : ( CARDINAL ) proceedings for the payment of a legacy … ; ( CARDINAL ) a third - party application for proceedings to be reopened … ; the applications are connected and must be joined … ”

NORP In CARDINAL judgments dated DATE ORG ( ORG ) declared null and void the CARDINAL judgments that ORG had delivered meanwhile , on DATE , in the proceedings for payment of a legacy and on the application to reopen proceedings . ORG CARDINAL judgments were similarly worded . The CARDINAL on the appeal against ORG judgment in the action for payment of a legacy indicated :

“ In the impugned decision of DATE ORG gave judgment in an action for payment of a legacy , after holding that it was unnecessary to defer judgment until ORG had ruled on an application for the case to be transferred on grounds of bias that had been lodged on DATE ; in a judgment of CARDINAL DATE ORG granted that application and ordered that the case be transferred to ORG ; it follows , since that transfer decision must be executed , that ORG decision in the impugned judgment is null and void ; it is therefore unnecessary to rule on the appeal against that judgment .

FOR THESE REASONS

HOLDS that it is unnecessary to rule on the appeal . ”

On DATE , being of the view that ORG had failed to mention the proceedings against ORG in its judgment of CARDINAL DATE by mistake , the applicants made an application for rectification of a clerical error to ORG of that court .

In a judgment of CARDINAL DATE ORG dismissed that application in the following terms :

“ In a judgment of CARDINAL DATE ORG of ORG transferred to ORG , on grounds of bias , CARDINAL sets of proceedings pending in ORG between , on the one hand , the ORG and the other applicants and , on the other hand , PERSON ;

On DATE the ORG and the other applicants made an application to ORG for rectification of the judgment of CARDINAL DATE ; in support of their application they argued that that decision contained a clerical error , ORG having ordered the joinder of CARDINAL applications before it , registered under nos . N-CARDINAL - CARDINAL.CARDINAL and T-CARDINAL - CARDINAL.CARDINAL , but having ordered transfer of only the first CARDINAL cases , to which the first application related ;

But on the pretext of rectification , the purpose of the application is to secure a variation of the judgment ’s clear provisions .

For these reasons

Dismisses the application ; and

Holds that it is unnecessary to rectify the judgment of CARDINAL DATE . ”

Meanwhile , having held a hearing on DATE , ORG ruled on DATE that there were no grounds for deferring judgment pending a decision on the application lodged by the applicants on DATE for transfer of the case on grounds of bias and reversed the judgment of DATE in its entirety . Ruling afresh , it held that it had not been established that the instrument creating ORG was a nullity , and it consequently dismissed the application of the ORG and the other applicants for an order setting aside the transfer to ORG . As to its refusal to defer judgment , it gave the following reasons :

“ The ORG and the other applicants referred to a challenge but have not shown that one was made and do not even identify the judicial officer or officers concerned ; accordingly , the application can not be granted on that count .

On the other hand , they have shown that on DATE they filed an application for transfer on grounds of bias with ORG registry .

By Article CARDINAL of the local Code of Civil Procedure , such applications do not in themselves have suspensive effect and it is for the court concerned to assess whether judgment should be deferred .

Securing the appointment of a receiver in order to paralyse the usual appeals process is contrary to the rights of the defence and is therefore acceptable only in exceptional circumstances .

In their application for a transfer , the ORG and the other applicants confined themselves to making abstract and vague complaints and only referred in more concrete terms to CARDINAL judicial officers , who are not ( in the case of PERSON ) or are no longer ( in the case of PERSON and PERSON ) members of ORG ; in practice , execution of the impugned decision is to be levied only on rent from a plot of land , not on the title to that land ; in the circumstances , the danger is not such as to make it necessary to defer judgment … ”

Without waiting for the application for transfer on grounds of bias to be decided ( see paragraphs CARDINAL above ) , the applicants appealed to ORG and lodged full pleadings on DATE . The case was allocated to ORG .

On DATE – although the time - limit for filing pleadings had expired on DATE ( see paragraph CARDINAL below ) – the applicants lodged observations and submissions to the effect that it was unnecessary to decide the appeal , and produced in support the judgment delivered on DATE by ORG of ORG and the application for rectification of a clerical error . Pointing out that the latter application was pending before ORG , they argued before ORG :

“ If that application [ for rectification of a clerical error ] is allowed , the result will be that ORG will be deemed to have granted on DATE the applicant ’s request for transfer of the case on grounds of bias .

In those circumstances , the judgment delivered in this case by ORG on DATE will have to be considered null and void . That judgment was delivered after the applicants had lodged the application for transfer on grounds of bias and before that application was heard by ORG . The judgment of ORG can only have a declaratory effect and contain a finding that it was impossible for ORG to hear the case . Accordingly , the judgment now impugned must be considered as having been deprived of any legal basis as a result of the judgment of CARDINAL DATE ( once rectified by ORG ) , whereby removal of the case from ORG was ordered . ORG will , in consequence , have to hold that the impugned judgment is null and void . ”

On DATE the applicants’ lawyer sent a letter to the advocate - general dealing with the case to remind him of the history of the proceedings in the First and ORG of ORG . He drew the advocate - general ’s attention to the judgment of DATE and the application for rectification of a clerical error pending in ORG of ORG and suggested he contact the advocates - general dealing with the other cases .

ORG held a hearing on DATE . In a judgment of CARDINAL DATE , after ruling on the CARDINAL grounds of appeal alleging that ORG had not given sufficient reasons , it dismissed the substantive appeal against the judgment of DATE without referring to the judgment of CARDINAL DATE .

CARDINAL provisions of LAW are relevant :

“ Appellants shall be barred from proceeding with their appeal unless , within DATE of giving notice of appeal on points of law , they file at ORG registry and serve on the respondent a pleading setting out the legal grounds on which they rely in their appeal against the impugned decision . ”

“ The time - limits laid down in ORG CARDINAL and CARDINAL shall be extended :

( a ) by DATE where the appellant lives ... in an overseas territory ... ”

Article CARDINAL of LAW provides :

“ A judge may be challenged on grounds of bias only for the reasons prescribed by law .

... Save for special provisions that shall apply in certain courts , a judge may be challenged if :

( CARDINAL ) he or his spouse has a personal interest in the dispute ;

NORP he or his spouse is a creditor , debtor , heir presumptive or donee of one of the parties ;

( CARDINAL ) he or his spouse is related by blood or by marriage to CARDINAL of the parties or his spouse up to and including the fourth degree ;

( CARDINAL ) there is or has been litigation between him or his spouse and CARDINAL of the parties or his spouse ;

( CARDINAL ) he has previously dealt with the case as a judge or arbitrator or has advised CARDINAL of the parties ;

( CARDINAL ) he or his spouse is responsible for administering the assets of CARDINAL of the parties ;

( CARDINAL ) he or his spouse is the employer or employee of CARDINAL of the parties or his spouse ;

( CARDINAL) it is common knowledge that there is a friendship or hostility between him and one of the parties ... ”

The following rules in LAW apply to transfers :

“ An application for a case to be transferred on grounds of bias shall be subject to the same conditions as regards admissibility and form as a challenge of a judge for bias . ”

“ Where an application is justified , the case shall be transferred either to a differently composed bench of the same court or to another court of the same type . The decision shall be binding both on the parties and on the court to which the case is transferred . No appeal shall lie . ”

“ Proceedings in the court from which an applicant seeks to have a case transferred shall not be stayed . However , the president of the court to which the application for the case to be transferred is made may , depending on the circumstances , direct the court suspected of bias to stay the proceedings pending a decision on the application . ”

Article CARDINAL of LAW provides :

“ Clerical errors and omissions in a judgment , including a final judgment , may in all cases be rectified by the court that delivered it ... on the basis of the evidence in the file or , failing that , of what reason dictates .

Proceedings for rectification may be brought by means of an application by CARDINAL of the parties or by means of a joint application ; the court may also act of its own motion .

The court shall decide the application after hearing the parties or after having given them an opportunity to appear .

The order for rectification of the error or omission shall be noted on the original and execution copies of the judgment . It shall be served in the same way as the judgment .

Where a rectified decision has become final , the order for rectification may be challenged only by an appeal on points of law to ORG . ”


Remainder inadmissible;Violation of Art. 6;Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

In DATE the applicant deposited MONEY ( USD ) for DATE with a private bank “ ORG - AGRO ” ( hereafter DATE “ the Bank ” ) . Following the ORG ’s refusal to return the deposit , the applicant sued ORG deposit , interest and compensation for non - pecuniary damage . According to the Government , the ORG ’s refusal to return the deposit was caused by a major financial crisis which had occurred in GPE in DATE and which had led to the ORG ’s inability to return money to its CARDINAL creditors .

In DATE ORG adopted a programme aimed at the protection of deposits made by private individuals with private banks . In line with measures adopted , the ORG signed an agreement with ORG . Under the terms of the agreement , the ORG transferred its liabilities to ORG which , in its turn , undertook to repay deposits made in GPE dollars at the exchange rate of MONEY for MONEY . On DATE the ORG , through a division of ORG , paid the applicant MONEY ( RUB ) .

On DATE the ORG of GPE found that the applicant had not consented to the liability transfer . However , taking into account that he had already been repaid a part of the deposit , ORG ordered that the ORG should repay the applicant PERSON and that it should also pay him DATE interest starting from the date of the pronouncement of the judgment . ORG dismissed the claim for compensation for non - pecuniary damage . The judgment was not appealed against and became final on DATE . DATE the GPE bailiffs’ office instituted enforcement proceedings .

On an unspecified date the ORG of ORG , acting on an application for a supervisory review , quashed the judgment of DATE and sent the case for a fresh examination .

On DATE , following the re - examination of the applicant ’s action , ORG awarded him ORG CARDINAL,CARDINAL.CARDINAL in main debt , interest thereon and ORG in compensation for damage . That judgment was not appealed against and became final .

By DATE over CARDINAL enforcement claims were pending against the ORG , with an additional CARDINAL claims added DATE .

On DATE and DATE ORG declared a moratorium until DATE on the execution of all creditors’ demands against the ORG . On DATE the management of the ORG was taken over temporarily by ORG ( hereafter DATE “ the ARKO ” ) , set up by the ORG in accordance with the Law on Restructuring of ORG ( hereafter - “ the Law ” ) . On DATE , in accordance with the PERSON , a moratorium was set for enforcement of all PERSON demands against ORG . This period was prolonged by the ARKO on DATE for DATE , until DATE .

On DATE ORG had approved the text of a tripartite friendly settlement involving ORG , the ORG and the ARKO . The text of the friendly settlement was adopted at the general meeting of ORG on DATE by a majority of votes . The friendly settlement substantially limited the ORG ’s liability to its creditors .

On DATE ORG found unconstitutional the legislative provision that allowed the ARKO unilaterally to extend the moratorium for DATE , and ruled that such decisions should be subject to judicial control .

DATE ORG of GPE ordered that the bailiffs should discontinue the consolidated enforcement proceedings against the ORG in respect of liabilities which had arisen before DATE .

On DATE the GPE bailiffs’ office discontinued the consolidated enforcement proceeding against the ORG and returned writs of execution to the courts which had issued them . On DATE the bailiffs informed the applicant that the enforcement proceedings against the ORG had been discontinued .

The applicant asked the ARKO to confirm that he had been recognised as a creditor of the ORG and to inform him about future meetings of the ORG ’s creditors . On DATE the ARKO notified the applicant that he had not been registered as a creditor of the ORG . The ORG requested the applicant to send the documents showing the ORG ’s liability to him . The applicant fulfilled the ARKO ’s request .

On an unspecified date the applicant sued the ORG and ORG for damages . He claimed that the ARKO had not recognised him as a creditor of the ORG , that he had not participated in the friendly - settlement negotiations and that he had not been able to recover his money from the ORG . The applicant insisted that the respondents should repay him the ORG ’s debt .

On DATE ORG held that ORG and ARKO were responsible for the applicant ’s inability to obtain payment of the judgment debt and that the refusal to recognise the applicant as a ORG ’s creditor was unlawful . ORG ordered that the ARKO should repay the applicant PERSON of the ORG ’s debt .

On DATE the ARKO informed the applicant that he had been registered as the creditor of the ORG and the terms of the friendly settlement of DATE were applicable to him although he had not been able to negotiate them . The applicant was also informed that according to the terms of the friendly settlement he would not be paid the judgment debt .

On DATE ORG upheld the judgment of DATE . ORG again confirmed that the terms of the friendly settlement could not be applied to the applicant and the fact that the draft of the settlement had been published in the press did not imply that the applicant had agreed to the terms of that document .

According to the ORG , the applicant applied for a supervisory review of the judgments of DATE and DATE . It appears from the case file that ORG lodged an application for a supervisory review , arguing that the judgment of DATE , upheld on appeal on DATE , was erroneous in that the applicant ’s claims had been accepted . The prosecutor submitted that the terms of the friendly settlement should have been applied to the applicant ’s claims against the ORG and thus his action against the ORG should have been dismissed .

On DATE the Presidium of ORG , by way of supervisory - review proceedings , quashed the judgments of DATE and DATE and remitted the case for a fresh examination . The ORG noted that the District and Regional courts erred in assessing the facts of the case and that the terms of the friendly settlement should be applicable to the applicant because the information about the general assembly of the ORG ’s creditors and the draft of the friendly settlement had been published in the press .

On DATE the ORG made a new judgment in the applicant ’s favour and awarded him USD FAC , relying on the same line of arguments as in its previous judgment of CARDINAL DATE and citing the case - law of ORG . That judgment was also quashed on appeal by ORG . The case was again sent for re - examination on CARDINAL DATE .

On DATE the ORG of GPE again issued the judgment in the applicant ’s favour , although reducing the amount of the award to USD CARDINAL.CARDINAL,CARDINAL . The judgment was quashed by ORG and the proceedings were discontinued because the ARKO had ceased to exist as a legal entity .


The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON , Mr LOC and Mr PERSON , lawyers practising in GPE .

The facts of the cases , as submitted by the applicants , may be summarised as follows .

Until DATE the applicant lived in the Çalbaşı village in the district of GPE in GPE , where he owns property . It is to be noted that other persons with the family name “ PERSON ” appear to be the owners of the property in question on the documents submitted to the ORG .

In DATE security forces forcibly evacuated Çalbaşı on account of disturbances in the region . They also destroyed the applicant ’s property . The applicant and his family then moved to GPE where they currently live .

On an unspecified date the applicant filed a petition with the District Governor ’s office in GPE requesting permission to return to his village .

On DATE ORG of ORG in GPE sent the following reply to the applicant :

“ Your petition containing a request of permission to return to your village has been received by the District Governor ’s office and will be considered under the ‘ Return to the Village and Rehabilitation Project . ”

Until DATE the applicant lived in the Tepsili village in the district of GPE in GPE , where he owns property . It is to be noted that another person , ORG , appears to be the owner of the property in question on the documents submitted to the ORG .

In DATE security forces forcibly evacuated Tepsili on account of disturbances in the region . They also destroyed the applicant ’s property . The applicant and his family then moved to GPE where they currently live .

On DATE the applicant filed a petition with the District Governor ’s office in GPE requesting permission to return to his village .

Until DATE the applicants lived in PERSON , a hamlet of the GPE village in the district of GPE in GPE , where they own property . It is to be noted that PERSON appears to be the owner of the property in question on the documents submitted to the ORG by GPE .

In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to GPE where they currently live .

On an unspecified date PERSON and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .

On an unspecified date ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .

On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .

On DATE the applicants filed petitions with the Governor ’s office in GPE and the GPE office in GPE requesting permission to return to their village .

On DATE ORG of ORG in GPE sent the following reply to the applicants :

Until DATE the applicants lived in the LOC village in the district of GPE in GPE , where PERSON and PERSON own property . It is to be noted that PERSON submitted a certificate , signed and approved by the headman ( muhtar ) of his village , to the ORG attesting his ownership of the property in GPE .

In DATE security forces forcibly evacuated GPE on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to PERSON village , in GPE district where they currently live .

On an unspecified date PERSON filed a petition with the GPE office in GPE requesting an alternative residence and compensation for the damages he had suffered .

On DATE the GPE office in GPE sent a letter to the applicant to inform him about the food and money relief that the GPE office in GPE serves and further informed him that there was no legal ground for his alternative residence request .

On DATE PERSON filed petitions with the Prime Minister ’s office and ORG ve PERSON ) requesting a loan to reconstruct his house .

On DATE ORG sent his petition to ORG ( PERSON ) stating that his request was not within the scope of the PERSON no.CARDINAL .

On DATE the Prime Minister ’s office sent his petition to ORG .

On DATE ORG sent his petition to ORG .

On DATE ORG sent the following reply to him :

“ Your request of housing aid is not within the scope of the PERSON no . CARDINAL . Therefore no process exists on your request . ”

On an unspecified date PERSON filed a petition with the Prime Minister ’s office requesting permission to return to his village .

On DATE the Prime Minister ’s office sent the petition to Governor ’s office in GPE for examination . He received no response .

On DATE PERSON filed a petition with the GPE office in GPE requesting to be provided with government aid and permission to return to his village .

On DATE the Prime Minister ’s office sent the petition to ORG .

On DATE the District Governor ’s office in GPE sent the following reply to PERSON :

“ ... Due to the security reasons in the region , no one is curently residing in the GPE .

No fund is allocated for the villagers who had to leave their villages . Therefore your request for government aid can not be fulfilled .

On DATE PERSON filed a petition with the Prime Minister ’s office requesting to be provided with government aid permission to return his village .

On unspecified dates the applicants filed petitions with the District Governor ’s office in GPE requesting permission to return to their villages .

On DATE the District Governor ’s office in GPE sent the following reply to the applicants :

“ The Project ‘ Return to the Village and Rehabilitation in ORG and LOC - eastern ORG is developed by the LOC - eastern ORG ( GAP Bölge GPE PERSON ) . It aims to provide the re - settlement of any inhabitants who unwillingly left their land due to various reasons , particularly terrorist incidents and who now intend to return to secure collective settlement units , since the number of the terrorist incidents have relatively decreased in the region . The ORG also aims to create sustainable living standards in the re - settlement areas .

In this context , your petition has been taken into consideration and your request will be responded when it is possible to return to the villages . ”

Until DATE the applicant lived in the Karataş village in the district of GPE in GPE , where he owns property . It is to be noted that the applicant ’s father appears to be the owner of the property in question on the documents submitted to the ORG .

In DATE security forces forcibly evacuated ORG on account of disturbances in the region . They also destroyed the applicant ’s property . The applicant and his family then moved to GPE where they currently live .

On DATE the applicant filed a petition with the Governor ’s office in GPE requesting permission to return to his village . He received no response to his petition within the CARDINAL-day period prescribed by Law no . CARDINAL .

Until DATE the applicant lived in the Karataş village in the district of GPE in GPE , where he owns property . It is to be noted that his father , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .

On an unspecified date ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .

On DATE ORG decided not to conduct an investigation into his allegations as the perpetrators of the alleged acts could not be identified .

On DATE the applicant filed petitions with the Governor ’s office in GPE and GPE office in GPE requesting permission to return to his village .

On DATE ORG of the GPE office in GPE sent the following reply to the applicant :

“ Your petition requesting permission to return to your village has been received by the District Governor ’s office and will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

Until DATE the applicant lived in the NORP village in the district of GPE in GPE , where he owns property . It is to be noted that his uncle , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .

On DATE the applicant filed a petition with the Governor ’s office in GPE requesting permission to return to his village .

On DATE ORG of the Governor ’s office in GPE sent the following reply to the applicant :

“ ... You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .

Furthermore , your petition will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

Until DATE the applicants lived in GPE in the district of GPE in GPE . It is to be noted that PERSON and other persons with the family name “ GPE ” appear to be the owners of the property in question on the documents submitted to the ORG by PERSON and PERSON , PERSON and PERSON respectively .

In DATE security forces forcibly evacuated Çalbaşı on account of disturbances in the region . They also destroyed the applicants’ property . PERSON , PERSON , PERSON , PERSON , PERSON and PERSON then moved to GPE . PERSON and PERSON moved to GPE village in ORG , where they currently live .

On DATE PERSON filed petitions with the Prime Minister ’s office , the Emergency Regional Governor and the Governor ’s office in NORP requesting permission to return to their villages . He received no response to his petitions within the CARDINAL-day period prescribed by PERSON no . CARDINAL .

On DATE PERSON filed petitions with the Prime Minister ’s office , ORG Governor and Governor ’s office in GPE . He received no response to his petitions within the CARDINAL-day period prescribed by Law no . CARDINAL .

On DATE PERSON , PERSON and PERSON filed petitions with the Prime Minister ’s office , ORG Governor and Governor ’s office in GPE . They received no response to their petitions within the CARDINAL-day period prescribed by Law no . CARDINAL .

On an unspecified date PERSON filed petitions with ORG , the Governor ’s office in GPE and the GPE office in GPE requesting permission to return to his village .

On DATE the Governor ’s office in GPE sent the following reply to the applicant :

On an unspecified date PERSON and PERSON filed petitions with the District Governor ’s office in GPE requesting permission to return to their village .

On DATE ORG of the GPE office in GPE sent the following reply to the applicants :

Until DATE the applicants lived in PERSON , a hamlet of the GPE village in the district of GPE in GPE . It is to be noted the title deeds to the property that PERSON and PERSON used in PERSON bear the name of PERSON and the name of PERSON father . It is also to be noted that the title deeds to the property that PERSON , PERSON and PERSON used in ORG bear their ORG name .

On an unspecified date PERSON and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .

On an unspecified date ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .

On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .

On an unspecified date , PERSON filed a petition with ORG requesting permission to return to his village .

On DATE ORG of Governor ’s office in GPE sent the following reply to the applicant :

“ .... ORG hamlet , in GPE is not secure and economically suitable for residence .

You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .

Furthermore , your petition will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

On an unspecified date PERSON filed petitions with ORG , Governor ’s office in GPE , GPE office in GPE and ORG office in GPE .

On DATE ORG of the GPE office in GPE sent the following reply to PERSON :

On DATE PERSON filed petitions with the Governor ’s office in GPE , GPE office in GPE and ORG office in GPE requesting permission to return to his village . He received no response to his petitions which he had filed with the Governor ’s office in GPE and the GPE office in GPE within the CARDINAL-day period prescribed by PERSON no . CARDINAL .

On DATE ORG in GPE issued decisions to discontinue criminal proceedings ( PERSON kararı- non - prosecution decision ) with regards the complaints lodged by PERSON and PERSON . He held that the petition in question should be examined by the administrative authorities .

On an unspecified date PERSON filed petitions with ORG and Governor ’s office in GPE requesting permission to return to his village .

On DATE ORG of the Governor ’s office in GPE sent the following reply to the applicant :

On an unspecified date , PERSON filed petitions with ORG and Governor ’s office in GPE requesting permission to return to his village .

On DATE he was told by a police officer that ORG hamlet , in GPE was not secure and economically suitable for residence , therefore he could return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .

The police officer further stated that his petition would be considered under the ‘ Return to the Village and Rehabilitation Project’ .

The applicant submitted an official document to the ORG certifying the statement made by the police officer in question .

On an unspecified date PERSON filed petitions with ORG , ORG office in GPE , Governor ’s office in GPE and ORG office in GPE requesting permission to return to his village .

On DATE ORG office in GPE issued decisions on to discontinue criminal proceedings ( PERSON kararı- non - prosecution decision ) in accordance with LAW holding that the petition in question should be examined by the public authorities .

On DATE ORG of the GPE office in GPE sent the following reply to the applicant :

“ .... ORG hamlet , in GPE is not secure and economically suitable for residence .

You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .

Furthermore , your petition will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

Until DATE the applicants lived in GPE in the district of GPE in GPE , where the applicants own property . It is to be noted the title deeds to the property that ORG , PERSON , GPE and PERSON , PERSON and PERSON , PERSON and ORG used in GPE bear their ORG name . Further , ORG and PERSON did not submit any certificate attesting their ownership of property in Şahverdi .

In DATE security forces forcibly evacuated Şahverdi on account of disturbances in the region . They also destroyed the applicants’ property .

PERSON , ORG , GPE and PERSON and PERSON then moved to GPE , PERSON , Celal and PERSON and PERSON moved to GPE and PERSON , GPE , PERSON and GPE , ORG and ORG , PERSON , PERSON and ORG moved to villages in NORP .

On DATE Turabi , ORG , LOC and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .

On DATE GPE and PERSON lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .

On unspecified dates PERSON , PERSON , Celal and PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and ORG lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .

On DATE ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .

On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .

On an unspecified date PERSON filed a petition with the Prime Minister ’s office requesting to be provided with government aid and permission to return to his village .

On DATE the Prime Minister ’s office sent the petition to the Governor ’s office in GPE .

On DATE ORG filed a further petition with the Prime Minister ’s office requesting permission to return to his village . On DATE he lodged a petition with ORG complaining about the burning down of their houses by security forces . ORG issued a decision to discontinue the criminal proceedings ( PERSON kararı- non - prosecution decision ) .

On an unspecified date PERSON filed a petition with the Governor ’s office in GPE requesting permission to return to his village .

On DATE the Governor ’s office in GPE sent the following reply to the applicant :

“ Your petition containing a request of permission to return to your village has been received by the Governor ’s office and will be considered under the ‘ Return to Village and Rehabilitation Project’ . ”

On DATE PERSON filed petitions with the Prime Minister ’s office , ORG , ORG office , the Governor ’s office in GPE and the GPE office in GPE requesting permission to return to his village .

On DATE he was summoned to the Struggle Against Terrorism Department of ORG and ORG , where he was informed about the NORP Governor ’s reply to his petition concerning a request of permission to return to his village .

The applicant and CARDINAL other witnesses drafted a note on this statement . This note is attached to the applicant ’s application to the ORG .

On DATE PERSON filed a petition with the FAC Governor ’s office in GPE requesting permission to return to his village . He received response to his petition within the CARDINAL-day period prescribed by PERSON no . CARDINAL .

On an unspecified date PERSON and PERSON filed petitions with ORG requesting permission to return to their village .

On DATE the Governor ’s office in GPE sent the following reply to them :

“ ... You can return and reside in GPE , PERSON , ORG , GPE , PERSON , NORP and NORP villages .

Furthermore , your petition will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

On DATE PERSON and PERSON and ORG filed petitions with the GPE office in GPE requesting permission to return to their villages .

On unspecified dates PERSON , PERSON , PERSON , GPE , PERSON , GPE and PERSON , PERSON and PERSON , PERSON , PERSON , ORG and PERSON filed petitions with the LOC office in GPE requesting permission to return to their villages .

On DATE and on DATE the GPE office in GPE and ORG of the GPE office in GPE sent the following reply to the applicants :

“ Your petition containing a request of permission to return to your village has been received by the District Governor ’s office and will be considered under the ‘ Return to Village and Rehabilitation Project’ . ”

On DATE PERSON filed petitions with ORG and ORG office in GPE requesting permission to return to his village .

On DATE the District Governor ’s office in GPE sent the following reply to the applicant :

Until DATE the applicants lived in the GPE village in the district of GPE in GPE , where they own property .

In DATE security forces forcibly evacuated GPE on account of disturbances in the region . They also destroyed the applicants’ property . The applicants and their families then moved to GPE where they currently live .

On an unspecified date the applicants lodged petitions with ORG office in GPE complaining about the burning down of their houses by security forces .

On DATE ORG issued a decision of non - jurisdiction and sent the case - files to ORG in GPE .

On DATE ORG decided not to conduct an investigation into their allegations as the perpetrators of the alleged acts could not be identified .

On DATE PERSON filed a petition with ORG requesting permission to return to his village .

On DATE ORG sent the following reply to him :

“ ... Governors’ offices are working on the solutions to the problems you have mentioned in your petition . Therefore petitions containing requests of permission to return to village should be filed with the Governors’ offices .

On an unspecified date PERSON filed a petition with the Governor ’s office in GPE requesting permission to return to his village .

On DATE ORG of the Governor ’s office in GPE sent the following reply to him :

“ Your petition requesting permission to return to your village has been received by the Governor ’s office and will be considered under the ‘ Return to the Village and Rehabilitation Project’ . ”

On DATE the applicants filed petitions with the District Governor ’s office in GPE requesting permission to return to their village .

On DATE ORG of the GPE office in GPE sent the following reply to the applicants :

“ ... As a result of the work carried out by ORG Return to GPE has been attached to GPE , in GPE .

Implementation of the project has not started yet . Therefore , you can return and reside in ORG , ORG , ORG and ORG villages .

Until OctoberCARDINAL the applicants lived in the GPE village , in the GPE district in GPE . It is to be noted that PERSON appears to be the owner of the property in question on the documents submitted to the ORG .

On an unspecified date the applicants lodged petitions with ORG office in GPE complaining about the burning down of their houses by the security forces .

On DATE PERSON applied to ORG in GPE in order to have his damages determined .

On DATE ORG in GPE ordered an on - site visit to the property .

On DATE ORG in GPE sent a letter to ORG office in GPE informing about the on - site visit on CARDINAL NovemberCARDINAL and requesting information on safety measures for the on - site visit .

On DATE ORG in GPE sent the following reply to ORG :

“ Your request on experts for the on - site visit to the property can not be fulfilled due to security reasons . ”

“ Your request on experts for the on - site visit can not be fulfilled . It is reported that no one currently live in the village . Therefore , no list of experts can be prepared . ”

On DATE ORG decided not to conduct an on - site visit due to the security reasons .

On DATE PERSON filed a petition with the Governor ’s office in GPE requesting permission to return to his village .

On DATE ORG of the GPE office in GPE sent the following reply to him :

“ Your petition containing a request of permission to return to your village has been examined .

The struggle against terrorism in our region has been continuing intensively and positive result is being achieved .

Our government has been working on the solutions to the problems you have mentioned in your petition and you will be informed by the District Governor ’s office when it is possible to return to the villages . ”

On an unspecified date the applicants filed petitions with the District Governor ’s office in GPE requesting permission to return to their village .

On DATE ORG of the GPE office in GPE sent the following reply to the applicants :

Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted that the applicant did not submit any certificate attesting his ownership of property in Cevizlidere .

In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant ’s property . The applicant and his family then moved to GPE where they currently live .

On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of his house by security forces .

On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .

On DATE the office of ORG in GPE decided not to conduct an investigation into applicant ’s allegations as the perpetrators of the alleged acts could not be identified .

On DATE the applicant filed a petition with the Governor ’s office in GPE requesting permission to return to his village .

On DATE the Governor ’s office in GPE sent the following reply to the applicant :

“ The South - eastern ORG ( GAP Bölge GPE PERSON ) is working on a project called ‘ Return to the Village and Rehabilitation’ . Only CARDINAL villages , GPE and ORG , from GPE are included in this project .

There is no other project concerning the other villages in GPE .

Petitions concerning the other villages , will be taken into consideration if such a project is adopted in the future . ”

On DATE the applicant filed a petition with the Governor ’s office in GPE requesting permission to return to his village . He received no response to his petition within the CARDINAL-day period prescribed by PERSON no . CARDINAL .

Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted that another person her husband appears to be the owner of the property in question on the documents submitted to the ORG .

In DATE security forces forcibly evacuated Cevizlidere on account of disturbances in the region . They also destroyed the applicant ’s property . The applicant and her family then moved to GPE where they currently live .

On an unspecified date the applicant filed a petition with ORG of the GPE office in GPE requesting permission to return to her village .

On DATE ORG of the GPE office in GPE sent the following reply to the applicant :

Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted his father , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .

Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE . It is to be noted that another person , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .

On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of her house by security forces .

On DATE ORG issued a decision of non - jurisdiction and sent the case - file to ORG in GPE .

On DATE the office of ORG in GPE decided not to conduct an investigation into applicant ’s allegations as the perpetrators of the alleged acts could not be identified .

On DATE the applicant filed a petition with the Governor ’s office in GPE requesting permission to return to her village . She received no response to her petition within the CARDINAL-day period prescribed by Law no . CARDINAL .

Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE , where he owns property

On an unspecified date the applicant filed a petition with the District Governor ’s office in GPE requesting permission to return to his village

Until DATE the applicant lived in the Cevizlidere village , in the GPE district , in GPE , where he owns property . It is to be noted that another person , PERSON , appears to be the owner of the property in question on the documents submitted to the ORG .

On an unspecified date the applicant lodged a petition with ORG office in GPE complaining about the burning down of his house by security forces .

On an unspecified date the applicant filed a petition with the District Governor ’s office in GPE requesting permission to return to his village .

The official records indicated that the inhabitants of GPE , Çalbaşı , Tepsili , GPE , PERSON , ORG , GPE and Cevizlidere had evacuated their village on account of intense terrorist activities in the region and threats issued by the ORG ( Workers’ ORG ) terrorist organisation against the villagers . The security forces had not forced the applicants to leave their village .

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages . In this connection , in a letter of DATE the NORP Governor of GPE informed the applicants that they could return to their villages and resume their economic activities if they wished . He further noted that all villages were open for re - settlement and that the authorities had been carrying out maintenance work to repair the infrastructure of the villages in the region .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


The applicant is a commercial private limited liability company which was established in DATE . Its registered name is ORG , spol . s r.o . and it was represented before ORG by Ms GPE , a lawyer practising in GPE . The respondent Government were represented by PERSON Poláčková , their Agent .

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

In DATE ORG ( “ ORG ” ) enacted a law ( PERSON no . CARDINAL/CARDINAL Coll . – “ the LAW ” ) , by which it established ORG ( Fond detí a mládeže – “ the Fund ” ) .

The ORG had its own legal personality and its principal task was to manage ORG property , as defined in the LAW , in order to promote children ’s and youth activities . In pursuit of that task , the ORG was authorised to engage in business activities .

On DATE ORG enacted an amendment ( Law no . CARDINAL/CARDINAL Coll . ) to the LAW . It entered into force on DATE .

Under section CARDINAL ) of the amended Act , any lease of property administered by ORG for a period of DATE necessitated the approval of ORG ( GPE pre správu a privatizáciu národného majetku – “ the Ministry ” ) . Pursuant to section CARDINAL ) of the amended Act , existing leases with a term of DATE would be terminated automatically ex lege DATE after the entry into force of the amendment , unless they were approved by ORG . Under section CARDINAL ) and ( CARDINAL ) , if a lease was terminated as described above , the tenant was to vacate the property on pain of a financial penalty equal to CARDINAL times the DATE rent for DATE of default . The ORG was to compensate the tenant for improvements and repairs on the leased property , provided that the ORG had approved them and had undertaken to reimburse their cost .

According to the explanatory note ( dôvodová správa ) on the amendment , the aim of the amendment was to lay down basic rules and minimum standards for effective management of the ORG ’s property in furtherance of the aims pursued by the Act . It was noted that the core of the ORG ’s economic activities consisted in leasing out the property it managed . However , the leases had frequently been concluded on inadequate terms and for an excessive period , aspects which had to be regularised .

On DATE a group of members of parliament challenged the amendment in ORG ( Ústavný súd ) . They were later joined in their challenge by ORG .

On DATE ORG accepted the challenge for further examination .

On DATE ORG declared the whole of section CARDINALa and certain other sections of the LAW , as amended in DATE , contrary to several provisions of LAW . It held , inter alia , that these provisions infringed the principles of the division of ORG power , the prohibition of retroactivity , legality and access to a court . It was observed that they retroactively interfered with contractual arrangement of a private - law nature and bypassed the jurisdiction of the ordinary courts . LAW of the amended LAW remained unaffected .

On DATE the judgment ( nález ) of ORG was published in LAW . By operation of LAW , the unconstitutional provisions of the LAW thus lost their legal effect . As ORG took no steps to rectify them , DATE these provisions became void .

On DATE ORG passed a special law repealing the whole of the LAW and winding up the ORG . This law ( PERSON no . CARDINAL/CARDINAL Coll . ) entered into force on DATE . As a consequence , the ORG entered into liquidation . The relevant procedure is still pending .

In DATE the applicant company concluded an agreement with the ORG for the lease of commercial LOC comprising a hotel for a term of DATE .

The applicant company took over the leased LOC , invested substantially in their renovation , and ran a hotel in them .

Following the entry into force of the DATE amendment to the LAW , the applicant company sought the ORG ’s approval of the lease . On DATE the ORG declined to approve the lease . Consequently , the lease expired on DATE .

The applicant company then made several requests for the ORG to take over the LOC . The ORG did so , but no earlier than DATE . The applicant company claims that until then it had to maintain the premises in order to prevent their deterioration and that it consequently incurred added expense and sustained material damage .

The applicant company also submits that , at that time , it did not know that the amendment had been challenged in ORG and that the challenge had been accepted for further examination .

The applicant company subsequently ceased its commercial operations .

Another company , E .- M. , leased commercial LOC from the ORG . The lease was for a fixed term of DATE .

On DATE , at the company ’s request , the Bratislava I ORG ( ORG súd ) indicated an interim measure ordering the ORG to allow the company to enjoy the LOC peacefully . At the same time , the company was invited to bring , within DATE , an action for a declaratory ruling that the lease agreement existed . The interim measure would stay in place until the final settlement of that action . In its rulings ORG observed that the DATE amendment to the LAW had been challenged in ORG and that the proceedings were still pending .

The E .- M. company brought the action as it had been invited to do and the proceedings are still pending .

Another company , ORG , leased commercial LOC from the ORG . The lease was likewise for a fixed term of DATE and the ORG declined to approve it .

The ORG brought an action for DATE to vacate the premises . On DATE the Bratislava I ORG dismissed the action . It observed that the DATE amendment was aimed at terminating leases such as the one concluded by ORG However , it had no actual effect on the lease in question because it had been automatically renewed by virtue of LAW , which provided for the renewal of leases where , as in the present case , the landlord failed to apply within DATE of the purported expiry of the lease for the premises to be vacated . ORG also took notice of ORG judgment of DATE and held that legal relationships could not be based on unconstitutional laws .

An entrepreneur , PERSON , leased commercial LOC from the ORG . The lease was likewise for a fixed term of DATE and ORG did not approve it . PERSON then vacated the LOC .

On DATE CARDINAL M. brought an action against the ORG , in the person of ORG . He made further submissions on DATE . Relying on ORG judgment of DATE , he argued that the termination of the lease in DATE had been unconstitutional and , as such , unlawful . He invoked LAW of DATE ( Law no . PERSON . ) and claimed damages . The action is still pending .

Another company , E .- B. , also had a long - term lease on LOC administered by a subsidiary of ORG . It declined to leave them , and in DATE the ORG brought an action for its eviction .

The action was dismissed by ORG on DATE and , on appeal , by ORG on DATE . The courts observed that the relevant provisions of the DATE amendment were unconstitutional and legally void . They could therefore not be used as a basis for a finding that the lease had expired and , consequently , for an order to vacate the LOC . With reference to section CARDINAL ) of LAW ( Law no . CARDINAL/CARDINAL ORG . – see “ Relevant domestic law and practice ” below ) , the courts found that even if an eviction order had been made in the circumstances of the case , it would not have been enforceable .

LAW provides :

“ CARDINAL . The Constitutional Court shall decide on the conformity of

( a ) laws with the LAW , constitutional laws and international treaties to which ORG has expressed its assent and which have been ratified and promulgated in the manner laid down by law ,

NORP If ORG finds a lack of conformity between legal instruments referred to in paragraph CARDINAL , the relevant instruments , parts of them or certain of their provisions shall lose their effect . The bodies that issued these legal regulations shall be obliged to harmonise them with the LAW , with constitutional laws and with international treaties promulgated in the manner laid down by a law , and also , in the case of instruments referred to in paragraph CARDINAL ( b ) and ( c ) , with other laws , and in the case of instruments referred to in paragraph CARDINAL ( d ) , with government regulations and with generally binding legal regulations issued by ministries and other central ORG administrative bodies within DATE from the promulgation of the decision of ORG . If they fail to do so , these instruments , parts of them or their provisions shall lose their effect DATE after the promulgation of the decision . ”

Chapter ( hlava ) CARDINAL of Part ( časť ) CARDINAL lays down rules concerning the review of conformity of legislation . It contains , inter alia , the following provisions :

“ ( CARDINAL ) The legal instrument , parts of it or some of its provisions shall lose their legal effect on the date on which the judgment of ORG is published in LAW .

( CARDINAL ) The fact that a legal instrument loses its legal effect or validity on the basis of the judgment of the Constitutional Court shall not entail the renewal of the validity of any legal instruments which it repealed . However , if the original legal regulations were merely changed or amended , they shall be valid in the form prior to the [ annulled ] amendment .

“ ( CARDINAL ) If a court has delivered a judgement in criminal proceedings on the basis of a legal instrument which later lost its effect pursuant to LAW , and the judgment has become final but has not been executed , the loss of the legal effect of the said instrument shall constitute a ground for reopening the case under the relevant provisions of LAW .

( CARDINAL ) Other final decisions which were given in civil or administrative proceedings on the basis of a legal instrument that has lost its legal effect either totally or in part shall remain unaffected . Obligations imposed as a result of such decisions can not , however be enforced . ”

LAW CARDINAL lays down rules concerning lease agreements . Section ( oddiel ) CARDINAL deals with termination of leases and contains , inter alia , the following provisions :

“ CARDINAL . A lease shall terminate on the expiry of the term for which it was concluded , unless the parties agree otherwise .

If the lessee uses the object of the lease after the termination of the lease and the lessor does not bring an action for restitution of the object within DATE , the lease agreement shall be renewed on the same terms as agreed originally ... ”

Article CARDINAL contains general rules concerning the types and the scope of actions ( návrh na začatie konania ) in civil courts . It provides :

“ Civil actions may be aimed at obtaining rulings concerning , in particular :

( a ) personal status ... ,

( b ) fulfilment of an obligation which stems from law , contract or breach of law ;

( c ) determination of whether a particular legal relationship or a right exists or does not , provided that the determination is justified by a pressing legal interest . ”

The scope of the LAW is defined in section CARDINAL , which provides that the ORG is liable for damage caused by unlawful decisions by its bodies and agencies in civil proceedings , administrative proceedings , criminal proceedings ( with the exception of decisions concerning detention and penalties ) and proceedings before notaries .

Under section CARDINAL(CARDINAL ) , a claim for damages can be brought only if the impugned decision was quashed for being unlawful by the competent authority .

Section CARDINAL ) renders the ORG liable for damage caused by wrongful official conduct on the part of ORG bodies and authorities in carrying out their functions .

A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act by a public authority , quantifies its amount , and shows that there is a causal link between the damage and the wrongful act in question .


The applicant is a NORP national , born in DATE , and resident in GPE . He is represented before ORG , a lawyer practising in GPE .

a. Particular circumstances of the present case

The applicant had , until DATE , a shop in GPE where he sold telecommunication equipment . In DATE and DATE , he traded in illegal cordless telephones , i.e. cordless telephones which were not allowed to be used in the GPE and other Member GPE of ORG given the frequencies used by these telephones .

The telephones were sold by a NORP Company M.D.B. to a NORP company ORG The latter company ’s director , PERSON , made invoices in respect of these telephones to a fictitious person at a fictitious address in GPE . In fact the telephones were not shipped to the ORG but were directly delivered by M.D.B. to the applicant , who subsequently sold them . After a certain time , the telephones were no longer sold via ORG , but through the GPE company of which PERSON was also director .

On DATE , ORG ( ORG en ORG ; " FIOD " ) conducted a search at the ORG company and , on DATE , went to the applicant ’s shop for an inspection of the shop ’s business administration . The applicant was absent DATE and could not be reached . With the consent of the shop ’s bookkeeper , the ORG took away documentation concerning part of the shop ’s business administration for verification purposes .

On DATE , pursuant to LAW ( PERSON inzake PERSON ) which authorises seizure of items for the purpose of investigation of fiscal criminal offences , the ORG seized the entire business records of the applicant ’s shop for DATE . On DATE , on his own initiative , the applicant went to the ORG in order to give a statement about his involvement in the cordless telephone trade . On DATE , he was taken into custody ( inverzekeringstelling ) and was subsequently held for questioning for DATE . He was released on DATE . In the course of this investigation the applicant was questioned for the last time on DATE .

On DATE the prosecution authorities issued a summons , ordering the applicant to appear on DATE before ORG ( Arrondissementsrechtbank ) of GPE on the charges of , inter alia , forgery , committed either alone or in association with others in respect of CARDINAL invoices for telephones or , alternatively , to have been an accessory to the commission of forgery in respect of these invoices . Further charges of forgery were brought against the applicant in relation to the importation by the ORG company for PERSON of a boat the latter had bought in GPE and the exportation of a boat by GPE to GPE .

Insofar as relevant , the charges contained in the summons read as follows :

< Translation >

" that he , the suspect , at various points in time in or about the period DATE and DATE in GPE , in any case in the GPE , together and in association with others or CARDINAL other , at least alone , has falsely made or has falsified CARDINAL or more invoices , ( each ) being a document destined to serve as proof of a fact , with the aim to use this / these invoice(s ) or to have this / these invoice(s ) used by others as real and authentic , whereas such use could give rise to a disadvantage ,

the cited false making or falsifying of this / these invoice(s ) consisting in that he , the suspect , together and in association with his fellow perpetrators , at least alone , falsely and/or contrary to the truth

has made or had made an invoice numbered ORG , dated CARDINAL and addressed to PERSON in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL ) ,

and/or

has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) DATE telephones ( file Case CARDINAL , see DATE ) ,

and/or

has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL/D/CARDINAL ) ;

Alternatively , in case the above under CARDINAL . would not or could not lead to a conviction :

Trading company ORG , at various points in time in or about the period DATE and DATE in GPE , in any case in the GPE , together and in association with others or CARDINAL other , at least alone , has falsely made or has falsified CARDINAL or more invoices , ( each ) being a document destined to serve as proof of a fact , with the aim to use this / these invoice(s ) or to have this / these invoice(s ) used by others as real and authentic , whereas such use could give rise ( each time ) to a disadvantage ,

the cited false making or falsifying of this / these invoice(s ) consisting in that above cited company together and in association with its fellow perpetrators , at least alone , falsely and/or contrary to the truth

and/or

and/or

has made or had made an invoice numbered DATE , dated CARDINAL and addressed to J.v.d . Bosch in GPE , concerning ( the delivery of ) CARDINAL telephones ( file Case CARDINAL , see CARDINAL/D/CARDINAL ) ,

to which and/or the commission of which offences he , the suspect , in or about the period DATE , in GPE , in any case in the GPE , has intentionally provided the opportunity , means and/or information and/or has intentionally provided assistance by dictating , or providing , the information contained in the above cited invoice(s ) to the cited company , or to CARDINAL or more of its staff members ; ... . "

By judgment of DATE , following adversarial proceedings , ORG convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to CARDINAL months’ imprisonment , suspended pending a probation period of DATE , and payment of a fine of ORG . CARDINAL from which fine ORG . CARDINAL was to be deducted for DATE the applicant had spent in pre - trial detention . The applicant filed an appeal with ORG ( Gerechtshof ) of GPE .

In its judgment of DATE , following adversarial proceedings , ORG quashed the judgment of DATE , convicted the applicant of repeatedly having been an accessory to the commission of forgery and sentenced him to CARDINAL months’ imprisonment , with deduction of the time spent in pre - trial detention , suspended pending a probation period of DATE , and payment of a fine of ORG . CARDINAL .

ORG rejected the applicant ’s argument that the summons should be declared null and void in that the charges brought against him , as stated in the summons , were phrased in terms so vague that was not clear what exactly the prosecution considered the applicant had in fact done in relation to the facts at issue . ORG held that the summons was in conformity with the relevant requirements under LAW ) and that , given the text and structure of the charges , there could be no misunderstanding that it concerned the commission of forgery in different factual forms . It further found that the summons were sufficiently clear for the applicant to understand what was held against him and against what he should defend himself . Moreover , during the applicant ’s trial , it had not appeared that there existed any misunderstanding on the part of the applicant as to what was held against him .

As to the applicant ’s argument that the prosecution should be declared inadmissible for failure to respect the reasonable time requirement under LAW , ORG held that the proceedings at issue had started on DATE when the applicant was arrested and detained on remand . It agreed that the applicant ’s case had not been dealt with within a reasonable time within the meaning of LAW of the convention . After having weighed the applicant ’s interest in obtaining a determination of his case within a reasonable time against the interest of the prosecution , the court decided that it would accept the applicant ’s prosecution but that it would take this finding into consideration in the determination of the applicant ’s sentence .

In the determination of the applicant ’s sentence , ORG considered that the applicant ’s actions had deprived the community of an estimated amount of ORG . CARDINAL in taxes , this in a large part to the applicant ’s personal benefit , and that a prison sentence of DATE and payment of a fine of ORG . CARDINAL would be an appropriate sentence . However , on the basis of the finding that the proceedings against the applicant had exceeded a reasonable time , ORG decided to mitigate the prison sentence by rendering it conditional and to mitigate the fine by reducing it to ORG . CARDINAL .

The applicant ’s subsequent appeal in cassation was rejected by ORG ( PERSON ) on DATE . The applicant ’s complaints about the rejection by ORG of his arguments in relation to the manner in which the charges against him had been phrased and the length of the proceedings were rejected by ORG under Article PERSON of LAW ( Wet op de Rechterlijke Organisatie ) as not prompting a determination of legal issues in the interests of legal unity and legal development .

b. Relevant domestic law

Article CARDINAL of the Code of Criminal Procedure , insofar as relevant , reads as follows :

< Translation >

“ CARDINAL . On penalty of nullity , the summons shall contain a description of the fact [ with which the defendant is ] charged , including the approximate time and location where it has allegedly been committed .

The summons shall further set out the circumstances under which the fact has allegedly been committed .