Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial);Non-pecuniary damage - award

Dmitry Dedov;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE a ORG ( PERSON ) investigating judge questioned a witness , GPE , about alleged heroin trafficking in GPE . GPE testified , inter alia , that in DATE he had transported QUANTITY of heroin from GPE to another person , known to him as “ Mario ” .

As part of a further police investigation of the organised supply of heroin in GPE , on DATE ORG of ORG ( FAC uprava GPE , ORG kriminalističke policije , ORG kriminaliteta droga ; hereinafter “ the police ” ) questioned a suspect , ORG , who stated that he had bought heroin from the applicant . During the questioning he was assisted by lawyer PERSON The questioning of ORG commenced at TIME , after a defence lawyer appeared at the police station at TIME , and ended on DATE at TIME

On DATE the police questioned another suspect , ORG , who stated that he was a heroin addict and that he had bought heroin from the applicant . During the questioning he was assisted by lawyer PERSON His questioning commenced at TIME , after a defence lawyer appeared at the police station at TIME , and finished at TIME on DATE .

On DATE the applicant was arrested on suspicion of supplying heroin . The applicant was questioned by the police but chose to remain silent .

DATE the applicant was brought before an investigating judge at ORG . He denied all the charges against him but decided to remain silent and not to give any evidence . The applicant was again questioned by the investigating judge on DATE , but gave no evidence .

On DATE an investigation was opened in respect of the applicant and CARDINAL other individuals , including ORG and FAC , in ORG in connection with a suspicion of conspiracy to supply heroin in GPE in the period DATE .

On DATE and DATE the investigating judge sought to hear ORG , who chose to remain silent and not to give any evidence . When questioned by the investigating judge ORG was not assisted by a lawyer .

On DATE the investigation was extended to another defendant , PERSON , who also chose to remain silent but denied all the charges against him .

On DATE the police questioned another suspect , GPE He stated that he had been a heroin addict for DATE and that he had been buying heroin from the applicant . During the questioning he was assisted by lawyer PERSON His questioning commenced at TIME , after a defence lawyer appeared at the police station at TIME , and finished at TIME on DATE .

On DATE the investigating judge heard evidence from ORG , who chose to remain silent . During the questioning PERSON was not assisted by a lawyer , but he stated that his lawyer was PERSON

On DATE the investigating judge heard evidence from witness GPE , who retracted his statement of DATE , stating that it had been given under coercion by the investigating judge and the police . He stated that it was not true that he had transported QUANTITY of heroin to “ Mario ” . He also stated that he did not know the applicant .

On DATE the investigating judge questioned the applicant in connection with the allegations made by GPE The applicant denied the charges and refused to make any further statement .

On DATE the investigating judge heard GPE , who complained that he had given his statement to the police under duress and that during his questioning he had been represented by a lawyer who was not of his choosing . Before the investigating judge GPE was represented by lawyer PERSON On DATE the investigating judge extended the investigation to GPE and CARDINAL other individuals .

On DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u GPE ) indicted the applicant and CARDINAL other defendants in ORG . The applicant was charged with conspiracy to supply heroin in the period DATE , whereas some of the co - accused were charged with supplying and possession of heroin .

The applicant lodged objections to the indictment on DATE , arguing that it had numerous substantive and procedural flaws . He requested , inter alia , that all official notes of the police interviews be excluded from the case file , as well as the record of ORG ’s oral statement given to the police . He contended that ORG had been a heroin addict and that he had given his statement while at an advanced stage of withdrawal .

A CARDINAL - judge panel of ORG dismissed the applicant ’s objections against the indictment and remitted the case for trial on DATE . It excluded the official notes of the police interviews from the case file but not the record of ORG ’s oral statement .

On DATE the applicant lodged an appeal with ORG ( PERSON ) against that decision , and on CARDINAL DATE ORG dismissed his appeal as ill - founded .

On DATE the president of the trial panel of ORG commissioned a psychiatric report on the applicant ’s mental capacity . The psychiatric report was drawn up on DATE . It confirmed that the applicant had full mental capacity and was intellectually able to participate in the proceedings .

After he had received some further documentation from the defence concerning the applicant ’s psychiatric treatment , on DATE the president of the trial panel commissioned another psychiatric report . The medical expert reiterated all his previous findings .

At a hearing held on DATE the applicant pleaded not guilty .

Further hearings were held on DATE and DATE , at which the trial court heard evidence from CARDINAL witnesses and an expert witness in toxicology . A police officer , ORG , gave oral evidence concerning a police trap they had set for CARDINAL of the accused , ORG , and also concerning his questioning of another accused , GPE

On DATE the president of the trial panel commissioned a psychiatric report on the mental capacity of GPE at the time the alleged offence was committed .

At a hearing on CARDINAL DATE a psychiatric expert testified that GPE , in the period concerning the charges held against him , had had diminished mental capacity but that he had been able to understand the nature of his acts . In that period he had been addicted and a user of illegal drugs . This meant that he did not have significant withdrawal crises . The parties made no objections to these findings .

At the same hearing the trial panel commissioned a psychiatric report in respect of the other accused , including ORG and ORG

On DATE the president of the trial panel informed the defence lawyers that he had received information from the NORP authorities that CARDINAL of the witnesses , ORG , could be heard in GPE since he was serving his prison sentence there . The president of the trial panel asked the defence lawyers to inform him whether they wished to be present during the questioning of that witness in GPE .

On DATE the psychiatric expert submitted his report commissioned at the hearing on CARDINAL DATE . He found that , in the period concerning the charges , ORG and ORG had been heroin addicts . Their mental capacity had therefore been diminished but they were able to understand the nature of their acts at the time . In addition , ORG had a personality disorder .

On DATE the applicant ’s defence lawyer informed ORG that he would not travel to GPE for the questioning of witness PERSON On DATE witness ORG was questioned by an investigating judge in court in GPE , GPE . He did not provide any evidence concerning the applicant . The record of his statement was forwarded to ORG .

A further hearing was held on DATE , at which witness PERSON reiterated that he had made his first statement , on DATE , to the investigating judge under coercion and fear of ill - treatment by the police . He claimed that he had never transported any drugs as he had described in his statement .

At a hearing on DATE the psychiatric expert confirmed his findings in respect of FAC and ORG The defence lawyers raised objections concerning the methods used and the expert ’s findings .

Another hearing was held on DATE , at which the defence lawyers asked for witness ORG , who had been heard by the NORP authorities , to be heard at the trial . The trial panel dismissed their request , on the grounds that there were significant impediments to securing his presence at the hearing , and that he had already been questioned by the NORP judicial authorities .

At a hearing on DATE the applicant , ORG and ORG all gave evidence . The applicant again denied all the charges against him and complained that he had been ill - treated by the police .

PERSON testified that he did not know the other co - accused . As to the statement he had made to the police , he stated :

“ I have been a [ heroin ] addict for DATE and when I was in the police [ station ] nobody asked me anything but [ a police officer ] PERSON , whose face I will never forget , drafted a record in another room . I asked for my lawyer , PERSON but the police told me that PERSON was a mafia lawyer and that he could not come ... I would like to add that when I was arrested the police told me that they needed me to give a statement . They knew I was soft and that I would sign everything they asked just to get out . That is how I signed this record , which was , as I said , drafted in another room ...

I can answer the questions of the president of the trial panel by saying that I had a number of interviews with [ the police officer ] ORG but he told me that this would never become part of a case file and he told me the same thing for this [ statement ] . However , since [ K.A. ] did not want to call my lawyer PERSON , he called this other lawyer who never gave me any advice . He just told me that he had signed the record and that I could do whatever I wanted . I have to say that [ this lawyer ] was a woman . Nothing I said in that statement is true ... except the part in which I said that I was an addict . ... The only true information [ in that statement ] is my personal details and the fact that I was an addict but [ the police officer ] already knew that . The part where I said that I was not in withdrawal was absolutely not true ...

I have known K.A. for DATE , he has arrested me on a number of occasions and he once lodged a criminal complaint against me . Once he also threatened me that if I did not tell him something , he would lodge a criminal complaint , which he had previously prepared against me , but that never happened . He tolerated my [ heroin ] addiction but asked me to tell him from whom I was buying drugs , and sometimes would tell him . Sometimes I would tell him the truth but mostly not , I was trying to gain time . ... I trusted [ K.A. ] when he brought me that record and told me to sign it and that everything would be all right , that I could go . Therefore I signed it .

As to the questions put by [ the accused ] I can answer that when I was in the police [ station ] the only thing that was important for me was to get out and to get myself a heroin fix , or methadone , which I was just going to pick up when the police arrested me . ”

ORG also testified that he had been ill - treated by police and that his statement was the result of ill - treatment . He stated :

“ ... In [ the police station ] the ill - treatment started immediately . CARDINAL or QUANTITY police officers , whom I did not know , told me to spread my legs and put my hands behind my back with my head pressed against the wall . Whenever somebody passed by me I was kicked , and when I fell they kicked me on the ground . They were jumping all over me . This lasted for some time and then they started to negotiate , asking me to give a statement . I asked for lawyers GPE or S.B. but they told me as regards [ lawyer ORG ] ‘ why do you need that ORG and also that [ lawyer PERSON ] would not come . The ill - treatment ... started again and then [ police officers ] [ K.]A. and [ PERSON came . They told me that they were good policemen and asked me to give a statement . They also told me that [ FAC ] had already made a statement and that they had CARDINAL other statements and that I should also make a statement , sign it and I could go . Then I signed that statement but I did not see what was in it . I remember that there was some police lawyer who told me ‘ you just sign here kid’ . The policeman also blackmailed me with an arrest warrant against me which had been issued previously , saying that they would withdraw it if I signed .

... I would like to confront policemen PERSON concerning everything I have just said . ...

The policeman also did not provide me with any medical assistance from a doctor and when I asked for heptaton they told me that there was no chance I could get it before I signed .

... I used to buy drugs all over the place , but never from anybody who is present in this courtroom . ...

Nothing [ in the statement ] is true except my personal details . ...

I know [ police officers ] PERSON They did not physically ill - treat me but they were asking me to work for them . It is not true what was written , that I was not in withdrawal . I was , and the policeman waved the heptaton in front of my eyes . They were showing me the drugs . The defence lawyer did not see anything , but he was only there for TIME , he signed [ the statement ] and left . ”

Another hearing was held on DATE , at which GPE gave evidence . As to his statement given to the police , he stated :

“ ... [ In the police station ] I was held for TIME . I was asked about Erkapić and [ the policeman ] told me that if I confirmed what they said they would let me go . So I did that , I signed the record and left . I did it because I was having a severe physical crisis .

... I never asked for the defence lawyer PERSON He was just there at CARDINAL moment and the policeman told me that he was my defence lawyer . I do n’t remember but I do n’t think I ever signed a power of attorney for him .

The record was written previously , and not while the lawyer was there . In the presence of the lawyer I was just confirming what was written in the record and then I signed it . I signed it without reading it , because I could not wait to get out and take drugs ...

During my police questioning I was never offered medical assistance , although I was in withdrawal .

... the policemen saw that I was in withdrawal ... because I told them so , and I asked for a doctor and heptaton , but they said no .

At the same hearing another co - accused , ORG , testified that while he had been in police custody he had heard police officers beating and interrogating GPE for TIME .

After the accused had given evidence the applicant ’s defence lawyer asked for the records of the oral statements given to the police by GPE , ORG and GPE to be excluded from the case file as evidence obtained unlawfully . The defence lawyers of the other co - accused made the same request .

At a hearing on DATE the trial court dismissed their requests , on the grounds that the records of the statements given to the police did not reveal any reason to exclude them from the case file .

At the same hearing ORG added that he had been told by policeman PERSON that they wanted to put the applicant in prison for DATE or kill him . PERSON and ORG reiterated that their statements given to the police had been a result of withdrawal symptoms and crisis .

In their closing argument , the applicant ’s defence lawyers argued that the only evidence against the applicant was the statements of his co - accused , which had been made to the police under duress and pressure . They asked for the applicant to be acquitted .

On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment , and imposed a confiscation order on him in the amount of CARDINAL NORP kunas ( HRK ) .

The Zagreb County Court based the applicant ’s conviction solely on the statements ORG , ORG and GPE had made to the police . In addition it considered that witness PERSON had also testified that he had transported QUANTITY of heroin to the applicant .

As to the lawfulness and probative value of the records of oral statements given to the police by ORG , ORG and GPE , that court noted :

“ The request to exclude the record of the statement made by the fourth accused , ORG , to the police on DATE , made by the defence lawyer of the fourth accused ORG , on the ground that when giving the statement [ ORG ] had been undergoing withdrawal from heroin , was dismissed . [ The record of his statement ] does not reveal any suspicion that [ ORG ] was in withdrawal . Moreover , there was a defence lawyer present during his questioning who did not have any objection as to the manner of the questioning . This record does not reveal any circumstances which could raise the suspicion that the questioning of the fourth accused ORG by the police on DATE had been unlawful ...

It was also requested that the records of the statements given to the police by the third accused ORG , the fourth accused , ORG , and the eleventh accused , GPE , be excluded from the case file on the ground that these statements were made under duress and that as such they could not be used in the proceedings . The records referred to do not reveal any circumstances which could raise the suspicion that the statements had been made under coercion or pressure . The defence lawyers were present during the questioning and they did not have any objections . ... There is nothing credible to support the suspicion that the records referred to were obtained unlawfully , and therefore the request for their exclusion was dismissed ...

Statements by the third accused , ORG , the fourth accused , ORG , and the eleventh accused , GPE , made to the police in the presence of their defence lawyers , are accepted by this court as they are clear , specific and precise . These statements support each other , they have a number of details which could obviously be known only from personal experience ( particularly the details of how they contacted the first accused , PERSON , and how the drugs were distributed and hidden ) ... The statements these accused made during the trial , where they tried to show that their previous statements were a result of unlawful treatment by the police ( threats , ploys , ill - treatment ) , are not accepted by this court , as their aim is to avoid criminal responsibility .

Moreover , the records of the police interviews do not contain any element capable of placing their lawfulness in question . This court is not persuaded that various unlawful aspects [ of the police questioning ] alleged by ORG did not provoke any reaction by the accused , who argued that [ any reaction ] would have been futile . These allegations were made DATE after the events concerned had taken place and are therefore not credible and are an obvious fabrication aimed at avoiding criminal responsibility . ”

On DATE the applicant lodged appeals with ORG against the first - instance judgment . He argued , inter alia , that his conviction had been based solely on the statements made to police by his co - accused , although that had been evidence obtained unlawfully , as his co - accused had been ill - treated by police during the questioning . Moreover , they had been heroin addicts and at the time of the questioning were going through withdrawal .

He further complained that the first - instance court had failed to hear the defence lawyers who had allegedly been present during the police questioning , and the police officers who had questioned his co - accused . In a situation in which his co - accused had raised the issue of coercion and illtreatment during the police questioning , and in view of the fact that they had incriminated not only themselves but also him , the trial court had been obliged to check their testimony . As to the statement of witnesses PERSON , the applicant pointed out that this witness had never said that the person he knew as “ PERSON ” was the applicant .

DATE . On DATE ORG dismissed the applicant ’s appeal . It upheld the findings of ORG that there was no evidence in the case file to suggest anything unlawful in the records of interviews with the police by the applicant ’s co - accused . ORG pointed out that they had been questioned in the presence of the defence lawyers and that there was nothing to indicate any withdrawal symptoms , coercion or oppression . ORG also added :

“ The psychiatric expert ORG found that in DATE [ ORG ] , as an addict , had a high tolerance of heroin , but [ the expert ] did not say that he was experiencing a withdrawal crisis , which [ the expert ] reiterated at the hearing . The defence had no questions ...

There was not a single piece of evidence , including the report drawn up by psychiatric expert ORG , to suggest that [ I.G.H. ] had been unable to understand the consequence of his actions , and particularly that he was unable to testify before the relevant authorities , regardless of his heroin addiction and diminished mental capacity at the time the offence was committed . Equally , there is not a single piece of evidence that the accused ORG , and GPE ... , on account of their heroin addiction , were unable to understand the nature of their actions or to testify before the authorities . ... “

The applicant lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) against the above judgment on DATE , reiterating his previous arguments .

On DATE ORG dismissed the applicant ’s constitutional complaint , endorsing the reasoning of ORG . The decision of ORG was served on the applicant on DATE .

The relevant provisions of LAW ORG , ORG no . DATE , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL ) read as follows :

“ In the determination of his rights and obligations or of any criminal charge against him , everyone is entitled to a fair hearing within a reasonable time by an independent and impartial court established by law . ”

The relevant part of LAW of LAW ( Ustavni zakon o FAC PERSON , ORG nos . CARDINAL/CARDINAL , CARDINAL and DATE ) reads :

“ CARDINAL . Anyone may lodge a constitutional complaint with ORG if he or she deems that a particular action on the part of a state body , a body of local and regional self - government , or a legal person with public authority , affecting his or her rights and obligations , or placing him under suspicion or accusation of a criminal act , has violated his or her human rights or fundamental freedoms , or his or her right to local and regional self - government guaranteed by LAW ( hereinafter : “ constitutional right ” ) ...

NORP If another legal remedy exists against the violation of the constitutional right [ complained of ] , a constitutional complaint may be lodged only after that remedy has been used .

NORP In matters in which an administrative action or , in civil and non - contentious proceedings , an appeal on points of law , is allowed , remedies are exhausted only after the decision on these legal remedies has been given . ”

The relevant provisions of LAW ( PERSON , ORG nos . TIME , CARDINAL/CARDINAL , DATE , CARDINAL/CARDINAL ) provide :

“ ... ( CARDINAL ) Whoever , without authorisation , manufactures , processes , sells or offers for sale or buys for the purpose of reselling , keeps , distributes or brokers the sale and purchase of , or , in some other way and without authorisation , puts into circulation , substances or preparations which are designated by regulation as narcotic drugs shall be punished by imprisonment for DATE , or by long - term imprisonment .

( CARDINAL ) If the criminal offence referred to in paragraph CARDINAL of this LAW is committed while the perpetrator is part of a group or a criminal organisation , or has organised a network to sell drugs , he shall be punished by imprisonment for not DATE or by long - term imprisonment . ”

The relevant provisions of LAW ( Zakon o kaznenom postupku , ORG nos . CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , and DATE ) are as follows :

“ ( CARDINAL ) The courts’ decisions in criminal proceedings can not be based on unlawfully obtained evidence ( unlawful evidence ) .

( CARDINAL ) Unlawfully obtained evidence is evidence obtained by means of a breach of the fundamental rights of defence , the right to dignity , reputation , honour and respect for private and family life guaranteed under LAW , law and the international law , and evidence obtained in breach of the rules of criminal procedure in so far as set out in this LAW , as well as any other evidence obtained unlawfully . “

“ ( CARDINAL ) Where this LAW provides that the judicial decision can not be based on certain evidence , the investigating judge shall , at the motion of the parties or ex officio , exclude such evidence from the file before the conclusion of the investigation or before he gives consent for the indictment to be preferred without investigation ( LAW paragraph CARDINAL ) . The decision of the investigating judge is subject to appellate review .

( CARDINAL ) After the investigation and after the consent is given to prefer the indictment without the investigation ( LAW paragraph CARDINAL ) , the investigating judge shall also proceed according to the provisions of paragraph CARDINAL and CARDINAL of this LAW in respect of all information which according to LAW paragraph CARDINAL and LAW paragraph QUANTITY of this LAW is given to the ORG Attorney or to police officers by citizens or by a suspect who has been interrogated contrary to the provisions of LAW paragraph CARDINAL of this Act . ”

“ ... ( CARDINAL ) In the course of the investigation the police authorities shall inform the suspect pursuant to LAW paragraph CARDINAL of this Code . At the request of the suspect the police authorities shall allow him to appoint a lawyer , and for that purpose they shall stop interviewing the suspect until the lawyer appears or at TIME from the moment the suspect requested to appoint a lawyer . ... If the circumstances show that the chosen lawyer will not be able to appear within this period of time , the police authorities shall allow the suspect to appoint a lawyer from the list of lawyers on duty provided to the competent police administrations by ORG for the territory of a county ... If the suspect does not appoint a lawyer or if the requested lawyer fails to appear within the time period provided , the police authorities may resume their interview with the suspect ... The ORG Attorney has the right to be present during the interview . The record of any statement made by the defendant to the police authorities in the presence of a lawyer may be used as evidence in the criminal proceedings ... “

“ ( CARDINAL ) If an accused , while being questioned at a trial , contradicts a previous statement he has made , the president of the trial panel shall draw his attention to these contradictory statements and ask him why he is testifying differently . If necessary , his previous statement or part of that statement shall be read out .

( CARDINAL ) If an accused refuses to testify at a hearing or refuses to answer a question , his previous statement or part of that statement shall be read out . ”

“ The provisions of this chapter concerning the reopening of the criminal proceedings shall also be applicable ... , on the basis of a decision of ORG which refers to some ground for the reopening of criminal proceedings or for an extraordinary review of the final judgement . ”

“ A request for the extraordinary review of a final judgment may be lodged [ in respect of ] :

an infringement of the defence rights at the trial or of the procedural rules at the appellate stage , if it may have influenced the judgment . ”

The relevant provisions of the amended LAW Zakon o kaznenom postupku , ORG nos . CARDINAL , DATE , CARDINAL/CARDINAL , GPE , GPE , ORG ) provide :

( CARDINAL ) The relevant provisions concerning the reopening of the criminal proceedings shall be applicable in the case of a request for revision of any final ORG decision in connection with the final judgment of ORG by which , in respect of the defendant , a violation of the rights and freedom under LAW has been found .

( CARDINAL ) The request for reopening of the proceedings in connection with the final judgment of ORG can be lodged within a DATE time limit starting from the moment of the finality of the judgment of ORG . ”

( CARDINAL ) If prior to the entry into force of this LAW a decision was adopted against which a legal remedy is allowed pursuant to the provisions of the legislation relevant to the proceedings [ in which the decision was adopted ] , ... , the provisions of that legislation shall be applicable [ to the proceedings concerning the remedy ] , unless otherwise provided under LAW .

( CARDINAL ) Articles CARDINAL - CARDINAL of this Code shall be accordingly applicable to the requests for the reopening of the criminal proceedings made under LAW ( Official Gazette nos . PERCENT , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , DATE , and DATE ) . ”


David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants , ( CARDINAL ) Mr PERSON , ( QUANTITY ) PERSON and ( CARDINAL ) Mr PERSON are NORP nationals who were born respectively in DATE , DATE and DATE . The first and third applicants reside in PERSON and the second applicant in GPE , GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in PERSON .

ORG were represented by their Acting Agent , PERSON , of ORG and ORG .

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

The applicants were the direct heirs of PERSON þorsteinsdóttir ( “ M. ” ) , who was born on CARDINAL DATE and who died on DATE .

PERSON had stated in her will , made in DATE that all her property was to be divided after her death equally between her brother , PERSON , and a woman named PERSON ( “ NORP ” ) . It was also stated that if X were to die before M , all her property should pass to PERSON , and if she was no longer alive , to her children and grandchildren . There were no blood ties between M. and PERSON who had been married to PERSON ’s stepson NORP Y. and his father PERSON had died before DATE when PERSON made her will .

The second and third applicants are the children of PERSON and the first applicant is the husband of PERSON another child of PERSON , sister of the second and third applicants , who is now deceased .

In DATE a deceased brother of PERSON left her a considerable inheritance .

PERSON was hospitalised in DATE on account of her mental condition and her inability to take care of herself . She was diagnosed as suffering from Dementia Senilis CARDINAL.CARDINAL .

In the meantime , in DATE , PERSON , Attorney , and PERSON and PERSON were convicted of embezzlement of PERSON ’s assets during DATE .

As from DATE PERSON was , at the request of PERSON , declared incapable of managing her own financial affairs . On DATE the District Commissioner of PERSON ( hereinafter referred to as “ the Commissioner ” ) appointed PERSON as M. ’s legal trustee . At that time information about various financial irregularities involving ORG was on public record , including a number of warrants of execution issued against his company ( DATE ) , a petition for bankruptcy and liquidation of the company to cover preferential claims amounting to CARDINAL NORP Crowns ( ORG ) ( DATE ) , a conviction and CARDINAL months’ conditional prison sentence for embezzlement of GPE salaries ( DATE ) , plus a number of petitions for bankruptcy ( DATE and DATE ) .

In DATE passed away .

On DATE the Commissioner requested ORG to provide yearly reports regarding decisions he had taken on PERSON ’s behalf . Thereafter , in the absence of any such reports , renewed requests were made on DATE , CARDINAL DATE and DATE .

On DATE ORG was convicted of embezzlement of PERSON ’s assets , in respect of amounts totalling ISK CARDINAL ( MONEY ) and was sentenced to CARDINAL months’ imprisonment .

On DATE the first applicant ’s deceased wife and the second and third applicants instituted civil compensation proceedings against the Commissioner and the ORG , on the ground that PERSON had sustained damage as a result of the appointment , as a legal trustee , of a person who had a very dubious past . They claimed that upon PERSON ’s death this claim had passed to them as PERSON ’s heirs .

On DATE the ORG found in favour of the respondent and rejected the ORG claim , finding no ground for imposing strict liability , nor any basis for finding negligence since the Commissioner had had no reason to believe that ORG was unfit to be a custodian when he was appointed .

According to the summary of facts contained in ORG judgment , the plaintiffs were granted permission to carry out a private division of PERSON ’s estate on DATE and completed their division of the estate in DATE . In its conclusions , ORG held inter alia that the estate at the time of PERSON ’s death could not be considered a party to the case , as the division of the estate had been concluded in DATE .

On DATE ORG upheld the lower court ’s judgment , giving the following reasoning :

“ ORG concurs with ORG that in order for the defendant to be held liable for the losses suffered by the [ applicants ] and caused by the guardian , it must be demonstrated that this was due to neglect on the part of the defendant ’s employees . The circumstances which resulted in the appointment of the guardian are not entirely clear . Nevertheless , it appears to be established that the person who was appointed guardian had taken the initiative in having the testator deprived of her financial competence ; it appears that there was reason for doing so , and that the mother of the appellants , ORG and ORG , was consulted on this ; she has since died , but at the time she was PERSON ’s sole heir . At the time that the guardian was appointed , the estate of a limited company of which he was in charge was the subject of liquidation proceedings , and sentence had been passed on him in the GPE and ORG for not having transferred money which the company had collected from its employees . On the other hand , there is no evidence to suggest that he was not competent to manage his own financial affairs and in other respects he met , formally , the conditions for being appointed as a guardian according to LAW , No . CARDINAL . It has not been established that the District Commissioner should have suspected that he would discharge his duties of financial management badly . With the introduction of LAW , No . CARDINAL/CARDINAL , great changes were made in the legal provisions and practice regarding reporting by guardians and the supervision of their work . Repeated attempts by the Commissioner ’s employees to have the guardian comply with his statutory duties under section CARDINAL ( CARDINAL ) of that Act to report , straightaway in the early part of DATE , produced no result . It can be deduced from the ... ORG judgment of DATE that by that date most of the damage had been done . From the above , it follows that even if the application of the law by the Commissioner ’s office should have been more efficient , it has not been established that the Commissioner or his employees violated their official duties and so brought compensatory liability on the defendant . In the light of these considerations , ORG judgment must be upheld . ”

Section CARDINAL of LAW , No . CARDINAL/CARDINAL , provides :

“ An heir may not dispose of an inheritance which he expects to receive . ”

This provision has been understood as placing a prohibition on any type of disposal , whether by assignment , mortgage or other deed , of an inheritance which has not yet devolved on the recipient . It also follows from this provision that an inheritance that has not yet devolved on the recipient can not be the object of execution measures carried out against the person who expects to receive the inheritance . The rule reflects accepted academic views on the concept of “ property ” in NORP law . CARDINAL of the foremost conditions for any right to be considered “ property ” is that it is both unconditional and active so that the owner in question can dispose of it as if it were his property . This provision of LAW confirms these views regarding a future inheritance .


Violation of P1-1;No violation of Art. 6;Just satisfaction reserved

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

The applicant was born in DATE and lives in GPE .

The applicant 's family owned a plot of land situated in GPE . The applicant is the heir of the owners of that property .

By virtue of the Decree of DATE on the Ownership and Use of Land in GPE ( “ the DATE Decree ” ) the ownership of all private land was transferred to GPE .

The applicant 's predecessors requested to be granted the right of temporary ownership ( własność czasowa ) of the plot of land pursuant to section CARDINAL of the CARDINAL Decree . On DATE ORG ( PERSON ) refused the request on the basis that the plot of land had been designated for public use ( namely , an agricultural co - operative ) .

On DATE the GPE - ORG ( Prezydium Dzielnicowej PERSON ) issued a decision granting the right of perpetual use of the plot of land to PERSON

On DATE the applicant 's predecessor GPE lodged an application with the Minister of Planning and Construction ( Minister PERSON i GPE ) for annulment of the administrative decision of DATE . On DATE the Minister declared the decision null and void .

On DATE ORG ( PERSON ) declared that the decision of DATE had been issued in breach of law . However , ORG refused to declare the decision null and void in view of its irreversible legal consequences – on the basis of the DATE decision a civil contract had been concluded with the perpetual user of the land who , in DATE , had transferred the rights to the estate to his son .

On DATE ORG dismissed the applicant 's claim for compensation in respect of the DATE decision on the grounds that he had not proved “ an actual loss ” ( see domestic law part below ) .

On DATE the applicant lodged a compensation claim with ORG .

On DATE ORG delivered a judgment and awarded the applicant LAW . The court found that as a consequence of the unlawful DATE decision the applicant had lost his property right and thus had suffered loss amounting to the value of that right . The court further considered that ORG had the legal capacity to be sued for damages in this case .

ORG , represented by the Mayor of GPE , appealed against the judgment , arguing that the municipality ( gmina ) should have been sued in this case .

On DATE ORG allowed the appeal and dismissed the applicant 's claim . The court , although it observed that the case - law had been divergent on the issue , inclined to the view expressed in a ORG resolution of DATE , that the municipality DATE and not ORG – had the legal capacity to be sued for damages resulting from an administrative decision issued before DATE , provided that the decision had been annulled or declared unlawful after that date ( see domestic law part below ) .

The applicant lodged a cassation complaint . He submitted that the judgment was in breach of relevant substantive law on account of an erroneous interpretation of ORG of DATE . He also invoked Articles CARDINAL § CARDINAL ( CARDINAL ) and CARDINAL of LAW arguing that the examination of the cassation complaint was justified because there was a significant legal issue in the case and a need for an authoritative interpretation of provisions which had been interpreted differently in the courts ' case - law . The applicant gave examples of divergent case - law of ORG . He further pointed to the fact that the resolution invoked by ORG , amending the hitherto prevailing jurisprudence , had been delivered DATE after the judgment of ORG .

On DATE ORG refused to entertain the cassation complaint . The decision was taken by a single judge sitting in camera and was not reasoned .

On DATE a panel of CARDINAL judges of ORG adopted a resolution in other proceedings in which it concluded that ORG had the legal capacity to be sued for damages caused by an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after DATE .

On DATE the applicant lodged a complaint with ORG seeking to have the judgment of ORG of DATE declared contrary to law ( see the domestic law part ) .

On DATE ORG rejected the complaint . The court concluded that the notion of the judgment “ appealed from ” within the meaning of LAW ( preventing the examination of the complaint – see the domestic law part ) required that a cassation complaint against a judgment had been lodged “ effectively ” , meaning it had not been rejected . In the court 's view a cassation complaint which ORG had refused to entertain should be understood , for the purpose of this Article , as an “ effectively lodged cassation complaint ” , as well as a cassation complaint which had been examined on the merits . ORG in its decision of DATE refused to examine the applicant 's cassation complaint . ORG thus concluded that the judgment of ORG had been appealed against effectively and the complaint under LAW was not available .

On DATE new provisions on a “ cassation complaint ” came into effect , replacing the provisions concerning the cassation appeal .

Article CARDINAL of the Code of Civil Procedure provides that a party may lodge a cassation complaint against a final and valid judgment of a second - instance court . A party must be represented by an advocate or a legal adviser .

The relevant part of Article CARDINAL reads as follows :

“ The cassation complaint may be based on the following grounds :

CARDINAL ) a breach of substantive law caused by its erroneous interpretation or wrongful application ;

CARDINAL ) a breach of procedural provisions , if that defect could significantly affect the outcome of the case . ”

Article ORG specifies the requirements of a cassation complaint . It reads in its relevant part :

“ § CARDINAL . A cassation complaint should include :

CARDINAL ) an indication of the decision under appeal together with information as to whether the appeal is lodged against this decision in its entirety or in part only ;

CARDINAL ) NORP an indication of the grounds for the cassation complaint ;

CARDINAL ) NORP arguments showing that its examination would be justified ;

CARDINAL ) a motion to have the decision under appeal quashed or amended , specifying also the scope of the motion . ”

Article CARDINAL provides :

ORG shall entertain the cassation complaint if :

CARDINAL ) there is a significant legal issue in the case ,

CARDINAL ) there is a need for the interpretation of provisions raising serious doubts or causing discrepancies in the courts ' case - law ,

CARDINAL ) the proceedings are invalid at law ,

CARDINAL ) the complaint is manifestly well - founded .

ORG shall decide to accept or refuse to entertain the cassation complaint during a sitting in camera ; the decision shall not require written reasons .

According to Article CARDINAL a cassation is examined by a panel of CARDINAL judges and in all other cases ORG takes decisions sitting in a single judge formation . As a rule , the cassation complaint is examined at a sitting in camera unless there is a significant legal issue in the case and the party lodging a complaint requested a hearing to be held , or ORG finds it appropriate to hold a hearing ( Article CARDINAL ) .

Pursuant to LAW , having allowed a cassation complaint , may quash the challenged judgment in its entirety or in part and remit the case for re - examination . Where ORG fails to find non - conformity with the law , it dismisses the cassation complaint ( Article CARDINAL ) .

An amendment of CARDINAL DATE to ORG , which entered into force on DATE , introduced a new extraordinary remedy against a final judicial decision – a complaint to declare a final and binding ruling to be contrary to law ( skarga o stwierdzenie niezgodności z prawem prawomocnego orzeczenia ) .

According to LAW , a party to the proceedings may request ORG to declare a final decision of a second - instance court to be contrary to law , provided that the party has suffered damage as a result of that decision and it has been impossible to have the decision reversed or quashed by way of remedies available to the party .

Pursuant to § CARDINAL of that Article a party can not lodge a complaint against a second - instance decision which had already been challenged by way of a cassation , or against a decision issued by ORG .

The new regulations have been challenged before ORG . In a judgment of CARDINAL DATE ( ORG CARDINAL ) ORG found the new LAW incompatible with the LAW , but only insofar as it allowed ORG to refrain from giving reasons for its decisions .

In this respect ORG referred , inter alia , to its judgment of DATE ( SK CARDINAL ) , in which it had already examined the possibility of ORG under LAW ( LAW ) to dismiss an “ evidently groundless ” cassation appeal in a criminal case at a sitting without the participation of the parties and without giving written reasons for the judgment . The court found in this respect that “ there is the accumulation at a single trial of CARDINAL factors excluding the court 's obligations as regards the provision of information ( i.e. the informational obligation of the court ) . These are : secrecy of the proceedings ; the use of the ambiguous term “ evidently groundless ” by the legislator ; and the absence of an obligation that reasons be provided . ”

Article CARDINAL § CARDINAL of the LAW , which entered into force on DATE , provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Article CARDINAL of the LAW , insofar as relevant , provides as follows :

“ CARDINAL . Judgments of the Constitutional Court shall be universally binding and final .

Judgments of ORG , ... shall be published without delay .

A judgment of the Constitutional Court shall take effect from DATE of its publication ; however , ORG may specify another date for DATE the binding force of a normative act . Such time - limit may not exceed DATE in relation to a statute or DATE in relation to any other normative act . ...

A judgment of ORG on the non - conformity with LAW , an international agreement or statute , of a normative act on the basis of which a final and enforceable judicial decision or a final administrative decision ... was given , shall be a basis for re - opening of the proceedings , or for quashing the decision ... in a manner and on principles specified in provisions applicable to the given proceedings . ”

DATE of LAW reads :

“ CARDINAL . The ORG shall , at a sitting in camera , discontinue the proceedings :

CARDINAL ) if the pronouncement of a judicial decision would not serve any purpose or is inadmissible ;

CARDINAL ) in consequence of the withdrawal of the application , question of law or constitutional complaint ;

CARDINAL ) if the normative act has ceased to have effect ... prior to the delivery of a judicial decision by the ORG .

If these circumstances come to light at the hearing , the ORG shall take a decision to discontinue the proceedings .

Item CARDINAL ( CARDINAL ) of the present Article does not apply if giving a decision on the compatibility with LAW of a normative act which has already lost its validity is necessary for the protection of the constitutional freedoms and rights . ”

Article CARDINAL of the Code of Civil Procedure provides that a party to civil proceedings which have ended with a final judgment on the merits can request that these proceedings be re - opened , if ORG has found that the legal provision on the basis of which the judgment was given was incompatible with LAW . Such a request can be lodged with the competent court within DATE from the date of the judgment of ORG .

The Decree of DATE on real property in GPE expropriated real property situated in GPE and transferred ownership to the municipality of GPE .

Pursuant to section ORG ) of ORG of DATE , ownership of property situated in GPE was assigned to ORG .

A very significant reduction in ORG land resources was brought about by legislative measures aimed at reforming the administrative structure of the ORG .

ORG ( introductory provisions ) of DATE ( PERSON wprowadzające ustawę o samorządzie terytorialnym i ustawę o pracownikach samorządowych – “ the DATE LAW ) , which came into force on DATE , and other related statutes enacted at that time , re - established local self - government and municipalities and transferred to them powers that had previously been exercised solely by the local ORG administration . Pursuant to section QUANTITY ) , ownership of land which had previously been held by ORG and which had been within the administrative territory of municipalities at the relevant time was transferred to the municipality .

Section CARDINAL § CARDINAL ( CARDINAL ) of the LAW provides :

“ ORG takes over :

CARDINAL ) obligations and receivables of local bodies of state administration ( ... ) resulting from final and binding court rulings and administrative decisions delivered before CARDINAL DATE ( ... ) . ”

Under LAW , former owners had the right to lodge an application for temporary ownership of his plots ( własność czasowa ) . The authorities competent to deal with such applications first had to examine whether the plots concerned had not been designated for public use . If he considered that granting temporary ownership to former owners would not be incompatible with public use , a decision could be made in favour of the former owner .

Article CARDINAL of the Law of DATE on ORG ( ustawa o gospodarce terenami w miastach i osiedlach ) replaced temporary ownership with perpetual use ( użytkowanie wieczyste ) .

The right to perpetual use is regulated by LAW . An individual or a legal entity may be granted such a right over land owned by the ORG or a local authority . The right comprises a right to use the land to the exclusion of others for DATE , on payment of a yearly fee . The person entitled to the right can dispose of it .

LAW permits the amendment or annulment of any final administrative decision at any time where necessary in the general or individual interest , if this is not prohibited by specific legal provisions . In particular , pursuant to LAW , a final administrative decision is subject to annulment if it has been issued by an authority which had no jurisdiction , or if it is without a legal basis or contrary to the applicable laws .

Article CARDINAL of LAW , as applicable at the material time , read in its relevant part :

“ A person who has suffered loss on account of the issuing of a decision in a manner contrary to LAW or on account of the annulment of such a decision shall have a claim for compensation for actual loss , unless he has been responsible for the circumstances mentioned in this provision . ”

An administrative decision in respect of the compensation claim could be appealed against in a civil court .

Section CARDINAL § CARDINAL ( CARDINAL ) of LAW raised doubts as to which legal entity was liable for damages caused by an unlawful administrative decision issued before the administrative reform . The problem was subject to divergent judicial interpretation .

On DATE a panel of CARDINAL judges of ORG adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) , finding that the municipality DATE and not ORG – had the legal capacity to be sued for damages resulting from an administrative decision issued before DATE , provided that the decision had been annulled or declared unlawful after that date .

In its resolution of DATE ( no . III CZP CARDINAL/CARDINAL ) , adopted by a panel of CARDINAL judges , ORG concluded that ORG had the capacity to be sued for damages caused by an administrative decision delivered before CARDINAL DATE , even if the decision had been annulled or declared null and void after DATE . The resolution was adopted following a legal question referred to ORG by ORG having a similar case before it .

ORG confirmed this stance in several subsequent judgments , delivered in cases similar to the present one ( see below ) .

On DATE the Opolskie Governor declared that the decision of DATE of the Head of municipality NORP had been adopted in breach of law . The plaintiff 's claim for compensation against ORG ( ORG Governor ) was dismissed by the first- and second - instance courts . In particular , ORG , invoking the resolution of ORG of DATE ( ref no . Ill CZP CARDINAL/CARDINAL ) , considered that ORG did not have the legal capacity to be sued in that case since municipality NORP had taken over its obligations under LAW .

ORG quashed the appellate judgment and remitted the case , relying on the above - mentioned resolution of DATE .

In DATE the ORG of ORG refused to grant the right of perpetual use of land covered by the operation of the CARDINAL Decree . Subsequently , ORG sold CARDINAL flats in the building . On DATE the Minister of Construction declared that the decision of DATE had been adopted in breach of law .

The plaintiffs lodged a civil action for compensation against ORG . ORG allowed his claim in part and awarded compensation from ORG .

On DATE ORG amended the firstinstance judgment and dismissed the claim against ORG finding that it lacked legal capacity to be sued in the case .

On DATE ORG quashed the appellate judgment and remitted the case , invoking the resolution of DATE .

In its judgment of DATE ( no . I CKN CARDINAL/CARDINAL ) , ORG ruled that there was a causal link between an administrative decision , taken under the CARDINAL Decree , refusing to grant the previous owner of a real property ( a land with a building ) the right of temporary ownership ( perpetual use ) of that property and the sale of apartments in the building by ORG .

On DATE ORG adopted a resolution ( no . III CZP CARDINAL/CARDINAL ) in which it found that financial loss resulting from a decision under LAW refusing to grant the right of perpetual use , which had been issued in breach of law , constituted a loss within the meaning of LAW and an actual damage within the meaning of LAW .


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

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

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

In DATE security forces forcibly evacuated GPE and destroyed the applicants’ property . The applicants then moved to ORG , where they currently live .

On unspecified dates , the applicants lodged petitions with ORG office , the Governor ’s office in GPE , the GPE office in ORG and with the military authorities , requesting redress for the damages they had suffered and permission to return to their village . It is to be noted that the applicants did not submit any document to the ORG attesting their applications to the above - mentioned offices . They claim that these documents can be obtained from the Governor ’s office in GPE and ORG office .

On DATE one of the applicants , PERSON , lodged a petition with the Governor ’s office in GPE , requesting to be allocated a house by this office . He received no response to his petition .

On DATE PERSON applied to ORG ( sulh hukuk mahkemesi ) for an assessment of the damage he had suffered as a result of the burning down of his home and possessions .

On DATE ORG dismissed the applicant ’s request , holding that he would not benefit from this assessment since the alleged incident had occurred a long time ago .

On DATE ORG in ORG sent a letter to the village mayors in ORG . According to that letter , access to some villages of ORG would be possible only during DATE for the inhabitants to work in their farms , and only during DATE . The villagers would not be allowed to spend DATE in their village . Moreover , the villagers would be required to apply to the gendarme stations and request permission . The applicants’ village , GPE , was not listed among these villages .

On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office informing him that the military operations against terrorism were to continue in the district . The commander requested the GPE office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties .

On DATE the applicants lodged a petition with ORG requesting redress for the damages they had suffered .

On DATE the applicants lodged a petition with ORG office in GPE for submission to ORG office in ORG , requesting that an investigation be initiated against the perpetrators of the destruction of their houses and those who prevented their access to their properties in GPE . They relied on Articles CARDINAL , CARDINAL and CARDINAL of LAW . They further requested compensation for the pecuniary and non - pecuniary damages they had suffered .

On an unspecified date ORG office in ORG issued a decision of non - jurisdiction and sent the case file to ORG office in the CARDINALth ORG . The applicants contend that the decision of non - jurisdiction was not served on them . They further assert that they have not been informed about the outcome of the investigation .

On DATE ORG rejected the applicants’ request , holding that the administration could not be considered to be responsible , as there had not been an operation in or around the village of GPE in DATE by the security forces . ORG further noted that there had been an investigation in the region and that it had not been established that any house had burned down .

In DATE the applicants lodged their applications with ORG alleging violations of Articles CARDINAL , DATE , CARDINAL of the Convention and Article CARDINAL of Protocol No . CARDINAL to the Convention .

On DATE the applicants brought an action before ORG requesting legal aid in accordance with LAW .

On DATE the applicants brought a further action before ORG requesting compensation for the damages they had suffered due to the destruction of their houses and their inability to return to their village and to have access to their property .

On DATE ORG refused to consider the applicants’ requests , holding that the applicants should have brought separate actions as the alleged damage had not been a collective one .

On an unspecified date the applicants appealed against the judgment of ORG .

On DATE ORG ( NORP ) dismissed the ORG appeal noting that LAW did not provide a right to appeal against an administrative court ’s refusal to consider a petition .

On an unspecified date the applicants filed separate cases with ORG . The proceedings are still pending before the latter .

Until DATE the applicants lived in LOC , a village of the district of ORG , in ORG , where they own property .

On unspecified dates , the applicants lodged petitions with ORG office , the Governor ’s office in GPE , the GPE office in ORG and military authorities requesting redress for the damages they had suffered and permission to return to their village . It is to be noted that the applicants did not submit any document to the ORG attesting their applications to the above - mentioned offices . They claim that these documents can be obtained from the Governor ’s office in GPE and ORG office .

On DATE ORG in ORG sent a letter to the village mayors in ORG . According to that letter , access to some villages of ORG would be possible only during DATE for the inhabitants to work in their farms , and only during DATE . The villagers would not be allowed to spend DATE in their village . Moreover , the villagers would be required to apply to the gendarme stations and to request permission . The applicants’ village , LOC , was not listed among these villages .

On DATE the CARDINALnd ORG Commander in ORG sent a letter to the GPE office in ORG informing him that the military operations against terrorism were to continue in the district . The commander requested the GPE office to warn the inhabitants of these operations and notify them that the security forces would not be responsible for any casualties .

On DATE the applicants lodged a petition with ORG office in ORG , requesting that an investigation be carried out against the perpetrators of the destruction of their houses and those who prevented them from having access to their properties in GPE . They invoked Articles CARDINAL , CARDINAL and CARDINAL of the Criminal Code .

On an unspecified date the applicants brought an action before ORG requesting compensation for the damages they had suffered due to the destruction of their houses , their inability to return to their village and to have access to their property .

On an unspecified date one of the applicants , PERSON lodged a complaint with ORG office in ORG against FAC , ORG . The applicant alleged that ORG had threatened him concerning his petition with ORG . He further contended that he had been compelled to sign statements in FAC .

On DATE ORG issued a decision of non - prosecution concerning the petition of PERSON , noting that he had not substantiated his allegations .

On DATE ORG rejected the applicants’ request noting that the statutory time limit under LAW had expired .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . 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 .

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 ) .


Violation of Art. 10;Remainder inadmissible;Non-pecuniary damage - award;Pecuniary damage - claim dismissed

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE .

The applicant is a businessman and a former controlling shareholder of a private company ORG “ NORP Belgorod ” . According to the applicant , in DATE a number of third persons produced a fake sales contract in respect of his shares in the company , as well as a fake register of the shareholders . They then tried to gain control over the company . Thereafter the matter was brought before the domestic courts .

On DATE ORG of Belgorod , presided by judge PERSON , dismissed the applicant 's action to have the sale annulled and the register of shareholders declared fake and illegal . The court refused to order a forensic examination of the evidence , including a copy of the register of shareholders and the registrar 's book of records , which the applicant had claimed were fake , and having admitted and considered them , rejected the applicant 's action as groundless .

On DATE that judgment was upheld on appeal by ORG .

On DATE , at the applicant 's request , a police investigator initiated criminal proceedings for fraud against a number of third persons . On DATE the investigator ordered an expert examination of the documents which the applicant had claimed were fake in the proceedings presided over by judge B.

On DATE and CARDINAL DATE the respective examinations were completed . They confirmed that the copy of the register of shareholders and the registrar 's book of records had been tampered with and that some of the entries had been fraudulently deleted or altered .

It appears that on DATE the criminal investigation was discontinued .

Thereafter the case was repeatedly suspended and resumed .

The latest decision to resume the proceedings was taken on DATE . The outcome of the investigation is unclear .

On DATE the applicant wrote a letter to ORG with a copy to ORG , alleging that in the course of the proceedings in his case in DATE judge B. , “ acting in the exercise of her duties , had committed a crime by delivering a deliberately unjust decision knowingly based on incorrect and sometimes even openly forged documentary evidence ” . The letter set out the applicant 's views on the circumstances of his case , referred to the outcome of forensic examinations carried out by the investigator in the criminal case and requested the responsible officials to bring criminal proceedings against judge B.

Identical letters were sent to the President of ORG and the head of ORG on DATE .

NORP In response to the letter of DATE , on an unspecified date the President of ORG and judge PERSON requested ORG office to bring criminal proceedings against the applicant for libel .

By decision of DATE an investigator instituted proceedings against the applicant for libel .

On DATE the applicant was questioned as a witness and stated that judge PERSON had received bribes .

On DATE those proceedings were discontinued because of an amnesty law .

On an unspecified date judge PERSON sued the applicant for defamation , claiming MONEY ( RUB - MONEY ( ORG ) ) in damages and seeking an order for the retraction of the impugned statements .

By judgment of DATE the ORG of ORG granted the claims in full . The court noted that the judicial decision taken by judge PERSON remained in force and that the applicant had used all possible remedies against it by instituting appeal proceedings . Without examining the form or accuracy of the statements made by the applicant in his letter and having refused his requests for the admission of evidence , the court concluded that the applicant had defamed judge B. It ordered the applicant to send ORG , the Prosecutors of ORG and GPE , the President of ORG and ORG of the LOC a letter retracting his previous allegations against judge PERSON court also awarded judge PERSON CARDINAL ( approximately EUR CARDINAL ) in non - pecuniary damages .

On appeal , the applicant argued that the court had failed to examine whether his letter to the relevant authorities could constitute dissemination of information within the meaning of the applicable law , that the inaccuracy of his allegations had been presumed and he had been refused a chance to prove them and that the first instance court had failed to require from judge B. any proof of actual harm resulting from the letter . The applicant also objected to the use of the statements which he had made during the interview with the investigator of the libel case .

On appeal the ORG reduced the award of damages to RUB CARDINAL ( approximately EUR CARDINAL ) and upheld the rest of the judgment on DATE .

By a final decision of CARDINAL DATE ORG rejected the applicant 's action to annul the transfer of his property to a number of third persons .

By a judgment of CARDINAL DATE ORG rejected his application to annul a lease agreement between the applicant and a certain commercial entity .

Article CARDINAL of the LAW of the Russian Federation provides that citizens of GPE have the right to apply in person , as well as to submit individual and collective applications , to state bodies and local government institutions .

Article CARDINAL of LAW of GPE provides that a citizen may apply to a court to have information damaging his or her honour , dignity or professional reputation retracted unless the person who disseminated such information proves its accuracy . In addition to retraction , the citizen may also claim compensation for losses and non - pecuniary damage sustained as a result of the dissemination of such information .

Section CARDINAL of Resolution no . CARDINAL of LAW of ORG of GPE of DATE ( as amended on DATE ) “ On certain issues arising during the examination by courts of action for the protection of the honour and dignity of citizens , and also the professional reputation of citizens and legal entities ” defines damaging information as information which is inaccurate and contains assertions that a citizen has broken the law or transgressed moral principles as well as impairing the honour or dignity of a citizen or the professional reputation of a citizen or a legal entity . The dissemination of such information is understood as the publication or broadcasting of such statements or their inclusion in professional references , public speeches , applications to ORG officials or communication in other forms , including oral , to CARDINAL another person . The communication of such information to the person whom it concerns can not be considered as its dissemination .

Section CARDINAL of the ORG lays the burden of proof on the defendant to show that the information disseminated was accurate ; the plaintiff must prove only that the defendant disseminated the information .


Remainder inadmissible;No violation of P1-1

David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

In DATE ORG issued an initial approval for a development project on land owned by the applicant ( decyzja o warunkach zabudowy i zagospodarowania terenu ) providing , on the basis of a local land development plan adopted in DATE , for the improvement and resurfacing of FAC and the construction of a roadway . On DATE ORG adopted a local land development plan for the construction of a road junction in the vicinity of the applicant ’s land , indicating that there was a pressing need to improve and widen a road leading from the city centre to the airport . On DATE ORG ( PERSON ) issued another approval for the construction of the roadway , based on the provisions of the local land development plan adopted on DATE .

On DATE the ORG Governor approved a construction project for the roadway .

NORP The applicant owned CARDINAL plots of a total surface of QUANTITY . In DATE an estimate of the value of CARDINAL plots , covering QUANTITY , was prepared by expert GPE with a view to their expropriation . That expert assessed the market value of the land at MONEY ( PLN ) .

On DATE a negotiation meeting was held at ORG . The town offered ORG CARDINAL,CARDINAL as compensation for plots nos . CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and DATE , at PLN MONEY per square metre , calculated on the basis of the DATE estimate . The applicant refused to accept this price and argued that the market value of QUANTITY of similar land in the town was MONEY .

In DATE another expert , PERSON , estimated the value of the applicant ’s properties at FAC per square metre , based on the agricultural character of the land . On DATE , referring to that report , ORG , acting on behalf of the Mayor of Gdańsk , fixed a DATE time - limit for the applicant to conclude a contract for the sale of her land for the sum of PLN CARDINAL,CARDINAL . It informed her that if further negotiations failed , expropriation proceedings would be instituted and the land would be expropriated against payment of compensation in the amount of ORG .

On DATE another negotiation meeting was held . ORG proposed conditions identical to those proposed in DATE . The applicant reiterated her position as to the price and submitted that she would accept replacement property within the limits of the municipality as compensation .

On DATE expropriation proceedings were instituted .

NORP On DATE an administrative hearing was held in ORG . The applicant proposed that the City should give her ORG QUANTITY for her land , but her offer was rejected . The applicant again suggested that she should be given other plots in exchange for her land , but that solution was rejected on the ground that the City did not have any suitable plots at its disposal .

NORP In DATE expert PERSON updated the estimate , having regard to the passage of time and the increase in market prices . She assessed the price of the applicant ’s land at ORG . In DATE , an expert commissioned by the applicant assessed the price of the land at ORG CARDINAL .

On DATE the Mayor of ORG gave a decision by which the CARDINAL plots referred to in paragraph CARDINAL above were expropriated . The amount of compensation for the land and the fence constructed on it was fixed at PLN CARDINAL,CARDINAL . It was to be paid within DATE from the date on which the expropriation decision became final . He observed that the amount of the compensation had been fixed on the basis of an estimate prepared by an expert , with reference to prices of similar plots on the local real estate market in DATE .

The applicant appealed . She argued that the decision was in breach of sections CARDINAL , CARDINAL and CARDINAL of LAW . She submitted that it was based on the estimate drawn up in DATE , which no longer reflected current prices of land . She referred to the caselaw of ORG according to which compensation for expropriated land should take into consideration current local market prices for similar types of land and , also , prices of such land sold by the municipality by way of tender . She referred to a privately commissioned estimate prepared by a certified expert ( see paragraph CARDINAL above ) , according to which the price of QUANTITY of comparable land in FAC at that time was ORG CARDINAL .

On DATE ORG , acting on behalf of the PERSON Governor , upheld the expropriation decision , noting that it had been given in order to have the local land development plan implemented . The expropriation was therefore in the public interest . The negotiations between the parties had failed . CARDINAL estimates drawn up for the purpose of the negotiations were consistent and indicated , in the light of prices paid for properties of a similar character and location , that the market value of the property concerned was PLN DATE for QUANTITY . In the circumstances , the decision was lawful .

The applicant appealed to ORG . She argued that the price the municipality had offered during the negotiations bore no reasonable relation to the market value of her land . The municipality had refused to offer her replacement property , despite the fact that at the time it had been selling numerous properties to private buyers by way of tender .

At a hearing held on DATE the applicant applied for a stay of the enforcement of the expropriation decision . The court refused , noting that the enforcement of the decision had been stayed ex lege because of the authorities’ failure to submit their reply to the applicant ’s appeal within the time - limit .

By a judgment of DATE ORG quashed the Governor ’s decision . The court observed that the modernisation of FAC was in the public interest as it was a part of the No . CARDINAL trunk road . It further noted that in the light of the documents in the case file it had not been shown beyond doubt that the expropriation of all of the applicant ’s designated plots had been necessary in order to implement the road construction project . In their decisions the authorities had failed to refer to the maps and plans prepared in connection with the local land development plan and road construction projects to show that the plots concerned were indeed covered by those projects .

The court further addressed the question of the compensation fixed by the contested decision . It noted that the authorities , when holding the administrative hearing on CARDINAL DATE , had failed to respect the relevant procedural provisions . Under the provisions of LAW the purpose of an administrative hearing was to ensure , in a situation where there was a discrepancy between expert opinions as to compensation , that the experts were questioned and the discrepancy elucidated . Furthermore , the parties should have been given an opportunity to put questions to the experts and to make oral statements before the administrative authority . No such measures had been taken . The court noted that the hearing had been held prior to the date on which the last expert opinion concerning the compensation had been prepared . There was no proof in the case file that this last opinion had ever been served on the applicant .

The judgment with its written reasons was served on the applicant ’s lawyer on DATE .

NORP The expropriation and compensation proceedings before the appellate authority were later conducted again . ORG informed the parties that the administrative hearing would be held again and requested ORG to submit further evidence as to the prices of similar properties . Ultimately CARDINAL hearings were held , on DATE and DATE . CARDINAL experts were questioned . The parties were invited to consult the case file .

On DATE the NORP Governor upheld the firstinstance decision in its part concerning the expropriation . He fixed the amount of compensation to be paid to the applicant at PLN MONEY . He referred to the expert opinions prepared for the purposes of the proceedings and explained which evidence and conclusions had been considered credible . He reiterated that the land concerned was of an agricultural nature .

Compensation was paid to the applicant on DATE . She accepted it , but observed that the amount was unsatisfactory . She subsequently appealed , submitting that the method by which the compensation had been fixed was to her detriment , that the second - instance authority had failed to respect the guidance contained in the judgment of ORG and that the amount of compensation did not reasonably correspond to the value of the land .

NORP On DATE ORG quashed the contested decision , finding that the method used to establish the value of the expropriated land was not in compliance with the applicable legal regulations . In particular , the expert opinion prepared by GPE , heavily relied on by the first - instance authority , was based on prices applicable in DATE . The proceedings were subsequently conducted again . The Governor invited the parties to submit new evidence and to consult the case file . Another expert was appointed and submitted his evaluation report , assessing the value of the applicant ’s property at PLN MONEY .

On DATE another administrative hearing was held before the second - instance authority . A time - limit was fixed for the parties to submit new evidence . Both the applicant and ORG availed themselves of that right .

On DATE the Governor issued a new decision . It upheld the first - instance expropriation decision and increased the amount of compensation to ORG MONEY , with reference to the new expert report .

On DATE the applicant , represented by a lawyer , appealed , submitting arguments similar to those on which she had relied in her previous appeal .

On DATE the applicant revoked the power of attorney given to her lawyer .

On DATE ORG rejected her appeal , noting that the applicant had failed to pay court fees . This decision was served on the applicant ’s new lawyer on DATE .

On DATE the applicant requested the court to grant her retrospective leave to appeal out of time . She submitted that she had dismissed CARDINAL lawyer and retained another one during the appellate proceedings . She had not been aware that the court fee should have been paid .

On DATE the ORG refused to grant the applicant retrospective leave to appeal out of time , considering that she had failed to inform the court about the alleged changes in her legal representation and to demonstrate that she had not been at fault in failing to pay the court fee . The applicant ’s new lawyer appealed against that decision .

On DATE ORG upheld the refusal to grant the applicant leave to appeal out of time . It observed that the applicant had failed to show that she had not been at fault in neglecting to pay the court fee . She had informed the first - instance court of her decision to revoke her first lawyer ’s power to act on her behalf on DATE . Under the applicable procedural provisions , that was the date on which the revocation had taken effect .

As a result , the first - instance decision on expropriation and compensation became final . On DATE the ORG paid the applicant the outstanding amount of ORG .

On DATE ORG rejected the applicant ’s claim by which she sought compensation for the fact that from DATE the municipality had been using her land without a valid expropriation decision . The court considered that the applicant ’s claim could not be examined before a civil court and had to be dealt with in administrative proceedings .

By a decision of CARDINAL DATE ORG , acting ex officio , stayed the enforcement of the expropriation decision given on DATE ( see paragraph CARDINAL above ) , having regard to the fact that the applicant had lodged an appeal against it . It referred to section CARDINAL of LAW .

ORG ( PERSON i PERSON ) appealed against that decision . It argued that the mere fact that the applicant had contested the first - instance expropriation and compensation decision could not justify the staying of its enforcement . The construction of the road , which was by then well advanced , should not be delayed as this would entail serious financial loss . They further referred to concrete technical difficulties in the road construction and its logistics , caused by the fact that work which had already started could not be continued on the applicant ’s land , such as the impossibility of using that land for transport purposes .

On DATE the President of ORG quashed the contested decision on formal grounds and ordered that the enforcement issue be re - examined .

On DATE ORG , acting ex officio , resumed the enforcement of the expropriation decision , having regard to the judgment of ORG of DATE dismissing the applicant ’s appeal against the requisition order ( see paragraph CARDINAL below ) . It observed that following that judgment , the ORG had a legal right to take possession of the land concerned , which was needed for the construction project .

After the first - instance expropriation decision had been given on DATE ( see paragraph CARDINAL above ) and when the applicant ’s appeal against it was pending , on DATE the Mayor of ORG issued a requisition order allowing ORG , on the basis of LAW , to take possession of the applicant ’s property with a view to starting construction work . He stated that it was necessary in order to proceed with the implementation of the already well - advanced road construction project and to prevent serious social and financial costs that further delay in the realisation of that project would cause .

The applicant appealed against that decision , emphasising that it was unlawful . She argued that no final expropriation decision in respect of her property had been given . The grounds invoked by the Mayor in the requisition order were drafted in very broad terms . The Mayor had failed to indicate , with ’s case to impose such a serious restriction on the exercise of her still valid ownership rights . No relevant and sufficient reasons for the occupation of her land had been advanced . In particular , the mere fact that expropriation proceedings had been instituted and construction work was about to start did not warrant the conclusion that such a serious restriction of her ownership rights was justified .

In DATE road construction work commenced on the neighbouring plots . No work had yet been carried out on the applicant ’s land . On DATE the applicant applied to ORG for the work on her land to be stopped . On DATE the Inspector informed the applicant that no work had yet been conducted on her land . On DATE on - the - spot inspection , in the presence of the applicant , confirmed that fact .

On DATE the Governor of ORG dismissed the applicant ’s appeal against the requisition order of DATE , fully endorsing the arguments relied on by the first - instance authority .

The applicant appealed against that decision before ORG , asking the court to stay the enforcement of the requisition order .

On DATE the court refused the applicant ’s request for a stay of the enforcement of the requisition order , holding that to allow her request would defeat the very purpose of the requisition order .

On DATE ORG requested ORG to give priority to the examination of the applicant ’s appeal against the requisition order , referring to the fact that the construction work had been seriously delayed because no work could be done on the applicant ’s land . The significant investment of public funds , the advanced stage of realisation of the project and the serious disturbance to traffic caused by the construction work called for priority to be given to the case .

By a judgment of DATE ORG dismissed the applicant ’s appeal . It observed that the expropriation proceedings had been conducted with a view to modernising the town ’s road network , facilitating access to the local airport and reducing the number of road accidents on FAC . This was clearly in the public interest . The fact that the municipality had no final legal title to occupy the applicant ’s property was the only remaining obstacle to starting the construction work on that property . It also hindered progress of the construction work carried out on the neighbouring properties . ORG referred to LAW , which expressly provided for requisition orders in the absence of final expropriation decisions if a delay would make the implementation of a public - interest project impossible .

On DATE the company commissioned by the municipality to carry out the work – the above - mentioned ORG – applied to ORG for a building permit for road construction work to be carried out on the applicant ’s land . In DATE the applicant applied for the proceedings to be stayed , arguing that in the absence of the final decision on expropriation the ORG had no legal right to take possession of her land . On DATE ORG requested ORG to take steps to resolve the difficulties concerning the legal status of the applicant ’s land , arguing that construction work on that stretch of road had advanced , with the exception of the QUANTITY planned on the applicant ’s land .

The proceedings concerning the application for the building permit were subsequently stayed , the authorities having regard to the fact that in the absence of the expropriation decision the construction company had no right to take possession of the land , and that under the applicable building regulations such a right was an essential prerequisite for requesting a building permit .

On DATE ORG resumed the proceedings , having regard to the judgment of ORG of DATE dismissing the applicant ’s appeal against the requisition order ( see paragraph CARDINAL above ) . It observed that that judgment had conferred on the building company the right to take possession of the applicant ’s land for construction purposes , even in the absence of a final expropriation decision confirmed by the administrative court .

On DATE ORG issued the building permit as per the application , thereby authorising the construction company to start the construction work on the plots concerned . The applicant appealed against that decision , reiterating that as long as she had not been expropriated no one had the right to build on her land .

On DATE the construction company took possession of the applicant ’s land . The construction work started shortly afterwards .

DATE . On DATE the Chief Building Works Inspector dismissed the applicant ’s appeal and upheld the building permit . The applicant appealed , reiterating essentially that the building permit could not be given because the expropriation proceedings had not been concluded .

On DATE the construction of the road was officially completed . On DATE a decision authorising use of the road by the public was given .

On DATE ORG dismissed the applicant ’s appeal against the building permit . It dismissed the applicant ’s arguments that the building company had had no legal right to take possession of her land . It noted that the first - instance expropriation decision had been given on DATE ( see paragraph CARDINAL above ) . On DATE the first - instance requisition order had been given ( see paragraph DATE above ) . The latter order had become final and enforceable following the judgment of DATE ( see paragraph CARDINAL above ) . The court held that that judgment had to be deemed to have conferred on the building company the right to possess the land within the meaning of the building regulations .

The court stressed that requisition orders were necessary for public - interest works to be able to go ahead where expropriation proceedings were still pending but the works should nevertheless be carried out to prevent certain negative consequences . Such a decision did not infringe the owner ’s rights although it did limit them temporarily .

A requisition order should be assessed in the context of the expropriation proceedings seen as a whole . Such an order was usually given after the first - instance expropriation decision had been issued . The applicable legal regulations expressly allowed for such orders to be given . The court referred to LAW and to section CARDINAL of ORG Expropriation and requisition orders were CARDINAL different legal institutions . They conferred different rights on the public authorities . A requisition order was clearly of a temporary character . It was obvious that its legal effects differed from those produced by a decision on expropriation . However , it conferred on the authorities a right to take possession of the land and to use it for public - benefit purposes . By introducing a requisition order into ORG the legislature had intended to avoid situations where expropriation could be blocked as a result of appeals lodged by the affected parties .

In the court ’s opinion , if one accepted the applicant ’s argument that the requisition order did not confer a right to take possession of the land for building purposes , the very purpose of the requisition order would be defeated .

A requisition order could not per se be regarded as a violation of ownership . It did not replace the expropriation decision and did not deprive the owner of his or her ownership right ; at most it limited it temporarily until the termination of the expropriation proceedings . This was justified under LAW ( see paragraph CARDINAL below ) . The court recalled that the right of property was not an absolute right .

NORP The court observed that the grant of the building permit did not infringe the law despite the exceptional character of the applicant ’s situation and the pending expropriation proceedings . The applicant ’s case demonstrated that , in practice , requisition orders were necessary . In certain cases , it would have been impossible to realise the public - benefit purposes for which expropriation proceedings had been instituted without having recourse to requisition orders .

DATE the LAW provides :

“ CARDINAL . GPE shall protect ownership and the right of succession .

Expropriation shall be allowed only in the public interest and against payment of just compensation . ”

DATE LAW reads :

“ Freedom of the person shall receive legal protection .

Everyone shall respect the freedoms and rights of others . No one shall be compelled to do that which is not required by law .

Any limitation upon the exercise of constitutional freedoms and rights may be imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL of the LAW provides :

“ CARDINAL . Everyone shall have the right to ownership , other property rights and the right of succession .

Everyone , on an equal basis , shall receive legal protection regarding ownership , other property rights and the right of succession .

The right of ownership may be limited only by means of a statute and only to the extent that it does not violate the essence of such right . ”

On DATE LAW of DATE ( LOC o gospodarce nieruchomościami – “ LAW ” ) entered into force . Under LAW of that Act expropriation consists in the removal , by way of an administrative decision , of ownership rights or other rights in rem . Expropriation can be carried out where public - interest aims can not be achieved without restriction of those rights and where it is impossible to acquire those rights by way of a civil law contract .

Under section CARDINAL an expropriation can be carried out only for the benefit of ORG or the local municipality .

Section CARDINAL provides that in cases defined by LAW ( see paragraph DATE below ) the administrative authority is empowered to issue a requisition order allowing an entity carrying out works for the public benefit to enter and take possession of land in respect of which a decision on expropriation has been given , if a delay would make realisation of the public - benefit works impossible . A clause of immediate enforceability ( rygor natychmiastowej wykonalności ) may be issued in respect of such an order .

In accordance with section CARDINAL § CARDINAL of the LAW , expropriation is to be carried out against payment of compensation corresponding to the value of the property right concerned . Under section CARDINAL § CARDINAL of the LAW , the amount of compensation is fixed regard being had to the status and value of the property on DATE on which the expropriation decision was given . The value of the property is estimated on the basis of an opinion prepared by a certified expert .

Section CARDINAL provides for the possibility of awarding the expropriated owner a replacement property if he or she so agrees .

Pursuant to section CARDINAL , compensation must be paid within DATE from the date on which the expropriation decision becomes subject to enforcement .

Section CARDINAL provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed . The following criteria are to be taken into consideration when establishing the market value of the property : its type , location , the use to which it has been put , the existence of any technical infrastructure on the property , its overall state and current prices of properties in the municipality .

In situations specified by LAW , local ORG administration can authorise an entity charged with the implementation of a public - interest project to occupy the property concerned immediately if a delay would render the implementation of the project impossible .

DATE . Article CARDINAL of the Code provides for an administrative decision to be rendered immediately enforceable , even if further appeal against it is available , when this is necessary for the protection of life or limb , or for the protection of the national economy against serious damage , or for the protection of other societal interests .