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

The application was lodged by CARDINAL applicants – PERSON ( “ the first applicant ” ) , PERSON ( “ the second applicant ” ) , PERSON ( “ the third applicant ” ) , PERSON ( “ the fourth applicant ” ) and PERSON ( “ the fifth applicant ” ) . The first applicant is a NORP national , the second , third and fifth applicant are NORP nationals . The fourth applicant has dual NORP and NORP nationality . They were born in DATE , DATE , DATE , DATE and DATE respectively . The first applicant lived in GPE , the second in PERSON , the third in FAC , the fourth in GPE , and the fifth in GPE GPE .

The first applicant died on DATE . On DATE the applicant ’s wife , PERSON , expressed the wish to pursue the application in his stead .

The applicants were represented before the ORG by Ms A. ORG and Mr PERSON , lawyers practising in GPE , GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON , succeeded by PERSON , of ORG .

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

NORP The applicants’ ancestors owned a textile manufacturing factory in FAC , GPE , consisting of CARDINAL various buildings , including wool weaving mills , a plot of land of QUANTITY m. and a garden . The factory , which was originally intended for the manufacture of silk scarves , was founded by the first , the second and the fourth applicants’ grandfather , PERSON , in DATE .

Shortly before the Second World War the factory operated under the name “ Factory of ORG and PERSON i. ORG ” ( “ PERSON i PERSON I T. Pikielni Spółka Akcyjna ” ) and , following various acquisitions and transactions , was eventually co - owned by PERSON and his sons – PERSON ( the first and second applicants’ father ) and PERSON ( the fourth applicant ’s father ) .

Following the outbreak of the Second World War , the factory owners and the applicants’ other relatives were taken by the NORP to concentration camps or ghettos . The factory was taken over by NORP and throughout the war operated under the NORP - appointed trustee ( “ Treuhender ” ) .

PERSON was killed during a bombing of FAC in DATE . PERSON perished in the GPE ghetto in DATE . PERSON and the first and second applicants survived the concentration camps and returned to ORG at the end of the war . They found the factory functioning largely as it had been during the NORP occupation . It was then taken over and managed by the communist authorities . In recognition of his former role as owner and chief executive of the factory PERSON was designated by ORG as manager of operations . In fact , he actively managed the business until he and the first and second applicants left GPE for GPE in DATE .

On DATE the factory was nationalised by virtue of the Minister of Light Industry ’s ( Minister PERSON ) decision no . CARDINAL ( “ the DATE decision ” ) , issued pursuant to section CARDINAL(CARDINAL ) of LAW DATE on the nationalisation of basic branches of the ORG economy ( LOC o przejęciu na własność GPE podstawowych gałęzi gospodarki narodowej ) ( “ the MONEY ” ) . The decision was published in the ORG ’s ORG ) no . CARDINAL of DATE .

NORP The former owners were neither notified about the take - over of their property nor were they compensated for it . Throughout DATE of the communist regime the factory remained operating , having been transferred by ORG from CARDINAL ORG - owned enterprise to another . Finally , in DATE it was assigned to “ FAC , a ORG - owned ORG ( PERSON Lodex ” ) . However , the relevant entry recording the owner in the ORG had not been amended and the company “ M. i ORG ” remained listed as the factory ’s owner until DATE .

At around the same time the applicants started to make first attempts to have the land and factory restored to them or , alternatively , to obtain compensation for its nationalisation .

On DATE winding - up proceedings were instituted in respect of the “ Lodex ” FAC . In the course of the proceedings , “ LOC ” lodged an application with FAC for acquisition of the property in question by prescription . The claim was dismissed on DATE .

Subsequently , the plant ’s representatives asked ORG to open a new book ( księga wieczysta ) for the property and to make an entry recording ORG as its owner .

On DATE the ORG ordered that the old books and records kept for the property and listing the applicants’ family as the owners be closed , that a new book no . CARDINAL be opened and that the ORG be entered in ORG as the owner of the property . The applicants appealed against that order .

On DATE ORG dismissed their appeal ( rewizja ) . Subsequently , on DATE , the applicants asked the Minister of ORG to lodge an extraordinary appeal ( rewizja nadzwyczajna ) against the contested order but their request was to no avail .

In the meantime , on DATE , the Governor of FAC ( Wojewoda ) had given a decision declaring that the “ ORG had acquired perpetual use ( użytkowanie wieczyste ) of the land in question “ with ownership of the buildings and machines having been acquired by ‘ Lodex’ through payment ” . The applicants sought to have the administrative proceedings reopened . On DATE the Governor of ORG refused their application .

On DATE , following the applicants’ inquiry into the possibility of obtaining pecuniary compensation for the nationalised property , the Minister for Economy and Labour ( Minister PERSON i Pracy ) informed them by letter that until that time no laws regulating this matter had been enacted . Admittedly , LAW in sections QUANTITY stated that an appropriate body would be set up to deal with such compensation claims and that the relevant rules governing the principles for payment of compensation would be established . However , the ORG had not yet fulfilled that statutory obligation . Accordingly , there was no body that could be authorised to act in respect of compensation or related matters . The Minister added that it should be assumed that this lacuna would be removed once ORG had adopted a law on restitution and compensation . Currently , the Minister for ORG was working on the relevant bill and it was likely that that bill would soon become a formal proposal by the Government .

Since then , the applicants have not made any further attempts to claim compensation for the nationalised factory before the domestic authorities .

Following the establishment of the communist regime in GPE nearly all branches of industry , as well as banking , insurance , transport and commercial companies were taken over by the ORG under LAW which , in its section CARDINAL , stated the purposes of nationalisation as follows :

“ NORP In order to ensure the planned rebuilding of the state economy , the economic sovereignty of the ORG and to foster the general well - being , the ORG shall take over ownership of enterprises on the conditions laid down in this law . ”

Pursuant to section CARDINAL(CARDINAL ) , only those industrial , mining , transport , banking , insurance and commercial enterprises that belonged to ORG and the former GPE of Gdańsk , their citizens ( except for those of NORP or other nationality who had been persecuted by the NORP ) , NORP and Gdańsk legal persons ( except for those set up under public law ) , companies controlled by NORP or ORG citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the ORG without payment of compensation .

Section CARDINAL(CARDINAL ) of LAW ( as amended ) states that the owners of the remaining enterprises were to be compensated for their nationalised property . That provision reads , in so far as relevant , as follows :

“ CARDINAL . The ORG shall compensate [ the owners ] for taking over ownership of the following :

A. ORG and industrial enterprises in the following sectors of State economy :

CARDINAL ) NORP mines and mining leases subject to mining law ;

CARDINAL ) NORP oil and gas industry , including mines , refineries , gasoline production and other processing plants , gas pipes and synthetic fuel industry ;

CARDINAL ) NORP companies that generate , process , transmit or distribute electricity ... ;

CARDINAL ) NORP companies that generate , process , transmit or distribute gas ... ;

CARDINAL ) NORP water supply companies serving more than one municipality ... ;

CARDINAL ) NORP steelworks and non - ferrous metals smelting plants ;

CARDINAL ) armaments , aviation and explosives industry ;

CARDINAL) coking plants ;

CARDINAL ) NORP sugar factories and refineries ;

CARDINAL ) industrial distilleries , spirit refineries and vodka production plants ;

CARDINAL ) NORP breweries with an annual output exceeding CARDINAL hectolitres ;

CARDINAL ) NORP yeast production plants ;

CARDINAL ) grain plants with a DATE output QUANTITY of grain ... ;

CARDINAL ) NORP oil plants with an annual output exceeding QUANTITY and all refineries of edible fats ;

CARDINAL ) NORP cold stores ;

CARDINAL ) NORP large and medium textile industry ;

CARDINAL ) NORP printing industry and printing houses ;

B. Industrial enterprises not listed in subsection “ A ” if they are capable of employing in the production CARDINAL persons on CARDINAL shift .

C.

CARDINAL ) Transport enterprises ( standard gauge and narrow - gauge railways , electric railways and aviation transport enterprises ) ;

CARDINAL ) NORP communication enterprises ( telephone , telegraph and radio enterprises ) .

Section CARDINAL lays down general principles for compensation to be paid for nationalised property . It states , in so far as relevant , as follows :

“ CARDINAL . The owner of an enterprise whose ownership has been taken over by the ORG ( section CARDINAL ) shall receive compensation from ORG within DATE from the date on which a notice of final determination of the amount of compensation due has been served on him .

Such compensation shall in principle be paid in securities ; however , in exceptional and economically justified cases it may also be paid in cash or other values .

The amount of compensation due shall be determined by special commissions . The persons concerned shall have the right to participate in proceedings before those commissions . If need be and in any case if so requested by the persons concerned , the commission shall appoint appropriate experts .

NORP The composition of the commissions , the rules for the appointment of their members , the quorum , the rules of procedure before the commissions and rules for appeals against their decisions shall be determined by an ordinance issued by ORG .

The following factors shall be taken into account in determining compensation :

a ) general deterioration of the value of ORG property ;

b ) net value of the corporate property on the date of nationalisation ;

c ) deterioration of the value of the enterprise cause by war losses or losses incurred by the enterprise in connection with the war , occupation in the period from DATE to the date of nationalisation ;

d ) value of expenditures made after DATE ;

e ) special circumstances affecting the value of the enterprise ( concession terms , licenses etc . ) .

A ORG ’s ordinance shall determine detailed rules governing the calculation of compensation , assessment of the circumstances listed in subsection CARDINAL and means of payment of compensation ( subsection CARDINAL ) and depreciation of securities . ”

Pursuant to section CARDINAL , the ORG and the relevant Ministers shall be entrusted with the implementation of LAW . However , since DATE , the date of entry into force of the CARDINAL Act , until the present day the ORG has not yet issued an ordinance on the organisation of the compensation commissions and determination of compensation referred to in section CARDINAL(CARDINAL ) and ( CARDINAL ) .

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

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

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

On DATE the Law of DATE on amendments to LAW and other statutes ( LOC o zmianie ustawy – ORG cywilny oraz niektórych innych ustaw ) ( “ the DATE Amendment ” ) entered into force . The relevant amendments were in essence aimed at enlarging the scope of ORG liability in tort under LAW of the Civil Code – including the addition of a new LAW and provision being made for the ORG ’s tortious liability for failure to enact legislation , a concept known as “ legislative omission ” ( zaniechanie legislacyjne ) .

Following LAW , Article DATE , in so far as relevant , reads as follows :

“ CARDINAL . If damage has been caused by failure to enact a law [ akt normatywny ] where there is a statutory duty to do so , the incompatibility of the failure to enact that law shall be established by the court dealing with the claim for damages . ”

However , under the transitional provisions of LAW , LAW as applicable before DATE applies to all events and legal situations that subsisted before that date .

The concept of the ORG ’s civil liability for a constitutional tort was introduced into the NORP legal order on DATE , the date of entry into force of the DATE LAW .

LAW states , in so far as relevant , as follows :

“ Everyone shall have the right to compensation for any harm done to him by any act of a public authority in breach of the law . ”

In its resolution of CARDINAL DATE ( “ the DATE Resolution ” ) , ORG ( Sąd Najwyższy ) , sitting as a bench of CARDINAL judges , dealt with the following legal questions submitted to it by ORG of Appeal ( Sąd Apelacyjny ) :

“ Is ORG liable for damage caused by failure to enact a law [ akt normatywny ] if the duty to enact that law , laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] was not fulfilled until the date of entry into force of [ DATE LAW ] ,

and , if so ,

When this duty should have been performed and whether damages for failure to enact the above law corresponds to unreceived compensation for the enterprise nationalised by the ORG , determined in accordance with the principles laid down in section CARDINAL(CARDINAL ) and ( CARDINAL ) of [ LAW ] ? ” .

The question arose in the context of a case brought by a certain ORG , who sought damages for the nationalisation of her family ’s printing house and , as one of the basis for her claim , invoked LAW , relying on the ORG ’s legislative omission consisting in its failure to issue the relevant ordinance .

ORG answer in the operative part of the resolution reads :

“ Until the date of entry into force of [ LAW ] the ORG ’s failure to issue an ordinance foreseen in section DATE ) and ( CARDINAL ) of [ LAW ] did not constitute a basis for a claim by an owner of the nationalised enterprise for damages arising from [ nationalisation ] . ”

The resolution contains extensive reasoning , the main thrust of which reads as follows :

“ [ As regards the time - frame for the issue of the ordinance ] . The determination of the beginning of that situation carries with it a certain element of arbitrariness since [ LAW ] does not lay down any term within which the ordinance referred to in section [ CARDINAL ] ( CARDINAL ) and ( CARDINAL ) should be issued . Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay , it can be considered that the discharge of the statutory authorisation , assuming the existence of willingness of the authorised body ( the ORG ) should have taken place in DATE or in DATE at the latest . This is supported by the fact that the ORG issued ordinances implementing other provisions ( including section CARDINAL(CARDINAL ) of the LAW , a fundamental provision for the interest of the ORG ) .

[ As regards the ORG ’s civil liability for legislative omission ] , ... it should be concluded that before the entry into force of the CARDINAL Constitution the State had not been liable under civil law for the consequences of its legislative inactivity . ...

DATE , marking the entry into force of the LAW is the relevant date as its constitutes the beginning of the existence in the legal order of , inter alia , LAW , proclaiming the right of “ everyone ” to compensation for any harm done to him by any act of a public authority in breach of the law ....

Assuming that LAW does not contain a provision making it possible to draw from it a direct basis for a claim for damages for the legislature ’s inactivity , it must be said that the rules for the ORG ’s liability in the sphere of law - making should be established by means of an ordinary statute , determining in a more detailed manner than LAW premises for an effective claim . ...

Article DATE § CARDINAL of LAW , as introduced by [ LAW ] satisfies the requirement of detailed LOC . The relevant temporal consequences have been clearly set out in its section CARDINAL , evidently indicating the prospective operation of DATE § CARDINAL of LAW . A formulation laying down a non - retroactive character of the provision is telling in that it refers to “ events and legal situation that subsisted before its entry into force ” ... In consequence , the assessment of the effects of legislative omission subsisting DATE was governed by [ earlier provisions ] . The relevant LAW , in its version before the amendment , did not include legislative omission as it was based on a completely different premise , namely , the absence of the ORG ’s civil liability for the legislature ’s acts . ... “

On DATE ORG , sitting as a bench of CARDINAL judges , dealt with a cassation appeal ( kasacja ) lodged by PERSON i Narzędzi Rolniczych “ NORP ” , a limited liability company which was at that time subject to a winding - up procedure . The appellant contested the judgment of ORG of DATE , rejecting its appeal ( apelacja ) against the judgment of ORG of DATE whereby its claim for damages arising from the ORG ’s failure to issue the relevant ordinance , pursuant to section CARDINAL(CARDINAL ) and ( CARDINAL ) of the CARDINAL Act , had been dismissed . The claim was based on LAW and DATE § CARDINAL of LAW .

In dismissing the cassation appeal , ORG essentially reiterated the grounds stated in the DATE Resolution ( see paragraph CARDINAL above ) , stressing that the impugned legislative omission occurred in DATE or , at the latest in DATE and since then had continued . However , LAW CARDINAL of the LAW could not be considered a legal basis for a claim deriving from an “ omission ” by public authorities since that provision clearly covered only their “ acts ” . The provision of DATE , enabling a plaintiff to seek damages for legislative omission , had been introduced only on DATE by virtue of LAW . The terms of LAW were unambiguous : DATE of LAW did not apply to events and situations that had subsisted before its entry into force . Consequently , its operation was excluded in respect of legislative omissions that originated in facts that had occurred earlier , even if this state of affairs continually existed until DATE .

On DATE ORG ( PERSON ) heard a constitutional complaint lodged by a company GPE w ORG spółka akcyjna , challenging the constitutionality of section CARDINAL of LAW in so far as it excluded the application of DATE of LAW to situations that had subsisted before the entry into force of LAW , i.e. DATE ( see also paragraphs CARDINAL above ) . The claimant invoked , in particular , LAW right to compensation for unlawful action of public authority ) read in conjunction with LAW rule of law ) , LAW and CARDINAL ( right of ownership ) read in conjunction with LAW and CARDINAL ( protection of ownership ) and LAW ( equality before the law ) and LAW ( right of fair trial ) of LAW .

Before lodging the complaint , the company , which had been nationalised under LAW , unsuccessfully sought compensation for the Prime Minister ’s legislative inactivity in that he had failed to enact an ordinance on rules for compensation as required by LAW . On DATE the claim was finally rejected by ORG on the grounds stated in DATE Resolution ( see paragraphs CARDINAL above ) .

ORG decision ( no . ORG CARDINAL ) , in its relevant part , reads as follows :

“ CARDINAL . ... Consequently , in the light of the provisions of the LAW it is difficult to assume that non - fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [ the CARDINAL LAW ] amounted to “ [ an ] act of a public authority in breach of the law ” linked with the ORG ’s liability for [ constitutional ] tort under LAW . Even assuming that the state of legislative omission still persists , it should at the same time be concluded that the duty is non - enforceable . Thus , it is evident that on the basis of the applicable laws only a statute could regulate compensation for the claimant ’s nationalised property . ... Accordingly , the ORG considers that the assumption that a legislative omission “ in breach of the law ” still continues is unwarranted , in particular after the entry into force of the LAW , in the light of its standards . ... In the light of the constitutional standards as applicable at present it is difficult to accept that there is any legal force attached to the duty imposed on the ORG by LAW . ”

Article CARDINAL § CARDINAL of LAW ( “ the CAP ” ) ( ORG postępowania administracyjnego ) , which sets out grounds on which a final administrative decision is subject to annulment , states :

“ CARDINAL . A public administration authority shall declare a decision null and void if :

CARDINAL ) it has been issued in breach of the rules governing competence ;

CARDINAL ) NORP it has been issued without a legal basis or in flagrant breach of the law ;

CARDINAL ) concerns a case already decided by means of another final decision ;

CARDINAL ) it has been addressed to a person who is not a party to the case ;

CARDINAL ) it was unenforceable on the date of its issuance and its unenforceability is of a permanent nature ;

CARDINAL ) it would give rise to a punishable offence in the event that it has been enforced ;

CARDINAL ) it has a flaw making it null and void by the force of law .

There is no time - limit for a party ’s request to have an administrative decision declared null and void under LAW .

However , there are situations where , even if certain grounds listed in LAW exist , the lapse of time or irreversible effects of the contested decision have consequences for the formula used in a decision given in the annulment procedure . LAW provides for the following exceptions :

“ A decision shall not be declared null and void on the grounds listed in paragraph CARDINAL ( CARDINAL ) , ( CARDINAL ) , ( CARDINAL ) and ( CARDINAL ) if DATE have expired from the date of its service or promulgation , as well as if the decision has produced irreversible legal effects . ”

Article CARDINAL reads as follows :

“ CARDINAL . A ruling on annulment of a decision shall be given by means of a decision .

If it is impossible to declare a decision null and void because of the circumstances referred to in LAW , a public administration authority shall only declare that the contested decision has been issued contrary to the law and indicate circumstances because of which it has not declared the decision null and void . ”

For the purposes of compensation , the effects of declaring the original administrative decision “ null and void ” or “ issued contrary to the law ” are the same .

Article CARDINAL set out principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article CARDINAL § CARDINAL .

This provision was repealed by LAW with effect from DATE ( see also paragraphs CARDINAL above ) and replaced by new LAW . However , under LAW , which sets out transitional rules , LAW , in the version applicable on the repeal date , still applies to “ events and legal situations ” that subsisted before the entry into force of LAW .

LAW , in the version applicable on the relevant date , read as follows :

“ CARDINAL . A party who has suffered a loss on account of the issuance of a decision in breach of LAW or on account of annulment of such a decision shall have a claim for compensation for actual damage , unless he has culpably caused the circumstances mentioned in this provision .

NORP The provisions of LAW , except for LAW [ provision repealed ] , shall apply to [ such ] compensation .

Compensation is due from an authority that issued a decision in breach of Article CARDINAL § CARDINAL , unless the other party to the proceedings concerning the decision culpably caused the circumstances mentioned in this provision ; in the latter case a claim for compensation shall be directed against the culpable party .

A public administration authority that has declared a decision null and void or declared , pursuant to LAW , that it has been issued contrary to the law shall rule on compensation due from the authority referred to in LAW . The vindication of compensation from a person who has culpably caused the circumstances mentioned in LAW , shall be effected before a court of law .

A party who is not satisfied with compensation granted by a public administration authority referred to in DATE , may lodge a claim with a court of law within DATE from the date of service of a decision given on that matter .

A claim for compensation shall be time - barred after DATE from the date on which has become final the decision declaring null and void the decision issued in breach of LAW or decision whereby an authority has declared , pursuant to LAW , that the contested decision has been issued in breach of LAW . ”

On DATE ORG of ORG , sitting in plenary , gave a resolution ( no . III CZP CARDINAL/CARDINAL ) on the application of LAW and rules regarding compensation . The resolution was given in response to legal questions submitted by the First President of ORG in connection with certain problems and divergences arising in judicial practice , in particular in respect of the temporal effects of LAW as determined in LAW , the application of Article CARDINAL § CARDINAL of LAW which replaced LAW ( see paragraphs CARDINAL and CARDINAL above ) and rules for adjudicating compensation .

The resolution contains an extensive reasoning which , in so far as relevant , may be summarised as follows :

CARDINAL ) Article CARDINAL § § CARDINAL and CARDINAL of the ORG applies to all claims for damages arising from an issuance of a final administrative decision given before DATE , which has been declared null and void or has been declared as being issued in breach of LAW . In contrast , paragraphs CARDINAL and CARDINAL of LAW , setting out the procedure for vindicating such claims , should be considered as no longer applicable . Consequently , a party seeking compensation under this provision should file an action directly with a civil court .

CARDINAL ) Where an annulled administrative decision has been given before the entry into force of the LAW ( DATE ) , compensation defined in LAW of the ORG shall not include loss of profits sustained in consequence of its issuance , even if such loss has occurred after DATE .

The Government , in their observations , supplied data concerning the annulment procedure and claims for compensation for nationalisation asserted by former owners or their heirs under the provisions of the ORG . Their submissions may be summarised as follows . From DATE to DATE ORG registered CARDINAL cases where applicants asked for the annulment of nationalisation decisions issued under LAW and other nationalisation laws adopted under the communist regime . Many other cases were registered in other ORG . The Government assumed that CARDINAL of those cases concerned the DATE Act . By DATE the relevant Minister annulled CARDINAL nationalisation decisions , declaring them either null and void or being issued in breach of the law . A further CARDINAL similar cases were at that time pending . In CARDINAL cases the applicants initiated the compensatory procedure under LAW . In CARDINAL cases compensation was granted , CARDINAL cases were dismissed as time - barred since the applicants had not complied with the statutory time - limit of DATE for lodging a compensation claim . _

DATE the Minister for Economy paid to claimants MONEY ( ORG ) by way of compensation for nationalised property .

In DATE ORG dealt with CARDINAL bills on reprivatisation , restitution and compensation for property taken over by the communist authorities under nationalisation laws passed in DATE . None of them was successfully enacted mostly because fresh elections were called and the work on them had to be discontinued . In the case of the DATE bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the ORG or by GPE , and on compensation ( ORG ustawy o reprywatyzacji nieruchomości i niektórych ruchomości QUANTITY przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach – “ the Restitution Bill DATE ” ) the relevant Act of ORG never entered into force because it had been vetoed by the President of GPE .

Each of those bills , although they differed in specific modalities , contained provisions for compensation for nationalisation of property under LAW .

In DATE the NORP ORG started the first reading of the Government ’s bill on compensation for property or other assets taken over by the ORG ( projekt ustawy o rekompensatach za przejęte przez państwo nieruchomosci oraz inne składniki mienia ) ( “ the DATE Compensation Bill ” ) . In general , compensation claims were to be subject to a statutory ceiling of PERCENT of the value of the original property taken over by the ORG . The claims of the owners of property nationalised under the provisions of LAW were included in the list of claimants entitled to compensation . The work on the CARDINAL Compensation Bill was discontinued in DATE since snap parliamentary elections were called following the collapse of the government coalition .

In DATE the new Government started preparatory work on fresh restitution legislation , i.e. the “ PERSON on pecuniary benefits to be granted to some persons who were subject to nationalisation procedures ” ( projekt ustawy o świadczeniach pieniężnych przyznawanych niektórym osobom , których dotyczyły procesy nacjonalizacji ) ( “ the DATE Compensation Bill ” ) .

The DATE Compensation Bill provided for no restitution of nationalised properties and was based on the principle of limited compensation , corresponding to a certain – not stipulated in the bill but to be determined in the Minister for ORG ’s future ordinance – percentage of the value of the property in question on the date of its nationalisation .

In ORG report on the assessment of the budgetary impact of the implementation of the DATE Compensation Bill ( drawn up in DATE ) the total value of the claims to be covered by the CARDINAL Compensation Bill was estimated at PLN MONEY .

It was expected that CARDINAL applications for compensation will be submitted under the provisions of the new legislation . The process of the realisation of cash payments was to be spread over DATE and instalments were to be indexed DATE in accordance with the consumer price index .

The entry into force of the bill was tentatively foreseen for DATE .

In DATE the Minister for Finance was asked to make an analysis of the consequences of the implementation of DATE Compensation Bill .

On DATE the Minister for Finance submitted a report stating that if the bill entered into force in DATE , there would be an abrupt increase in the public debt by ORG which would correspond to PERCENT of ORG ) . In the circumstances , the allocation of PLN CARDINAL,CARDINAL,CARDINAL,CARDINAL for securing nationalisation claims might result in GPE ’s exceeding the permissible limits of the national debt in relation to GNP as set by ORG .

In DATE the Minister for ORG issued a press release on the ORG website , informing the public that the ORG had decided not to submit the DATE Compensation Bill to ORG . That statement gives the following explanation :

“ In view of the considerable savings that have been made in DATE , connected with the global financial crisis in many sectors of our social and economic life and the large financial burden resulting from the planned legislation , in the present economic situation , [ the DATE Compensation Bill ] can not be enacted . ”


Remainder inadmissible;No violation of Art. 6-1

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant filed a claim for payment against a housing cooperative of which she was a member . By a judgment of CARDINAL DATE ORG dismissed the claim . The judgment was upheld on DATE by ORG . On DATE the applicant was served with that judgment together with its written grounds .

On DATE she filed a request with ORG to be granted a legal - aid lawyer for the purpose of lodging a cassation appeal . Her request was subsequently forwarded to ORG as the PERSON court lacked jurisdiction to deal with it . The request was allowed by a decision of DATE .

On DATE the decision of CARDINAL DATE was served on ORG . At the same time ORG informed the Bar about the date on which the applicant had been served with the second - instance judgment .

On DATE ORG informed the applicant that a legal - aid lawyer had been assigned to her case . By a letter of DATE to the court the lawyer refused to lodge a cassation appeal , finding no grounds to do so . The letter read :

“ Having examined the file in detail , I have not found grounds for lodging a cassation appeal . The judgment given on DATE by ORG did not breach any provisions of substantive law . Nor were any provisions of procedural laws violated during the proceedings .

The findings of fact made by the courts show without any ambiguity that the applicant had never had the right to a co - operative apartment which could be assimilated to ownership . She had admitted , both before the first - instance and the appellate court , that at the time of the exchange of apartments she had been aware that her right was only assimilable to the rights arising out of a rental contract . ( ... ) It had been open to her to take steps in order to have her right transformed into an ownership - like right , but she had not done so . Hence , the first instance court was right in finding that the defendant housing co - operative was not obliged to pay compensation to the applicant . The appellate court accepted these findings . In these circumstances , a cassation appeal would not offer any prospects of success . ”

On DATE the applicant requested ORG to assign a new legal - aid lawyer to her case .

On DATE the court informed the applicant that she should file a request with ORG for a new lawyer to be appointed . On DATE the applicant accordingly submitted her request to the local ORG .

By a letter of DATE ORG dismissed the request , having found that the applicant 's previous legalaid lawyer had been entitled to refuse to draft a cassation complaint .

On DATE the applicant again requested the court to assign a legalaid lawyer to the case . On DATE the ORG informed the applicant that the refusal to lodge a cassation appeal could not justify assigning a new lawyer for the same purpose .

Pursuant to LAW , a court should give all necessary procedural instructions to a party acting without a lawyer and , in particular , should indicate the consequences of that party 's acts or failures to act .

Article CARDINAL § CARDINAL of the Code of Civil Procedure provides that a party to the proceedings may ask the court competent to deal with the case to grant him or her an exemption from court fees provided that he submits a declaration to the effect that the fees required would entail a substantial reduction in his and his family 's standard of living .

Pursuant to Article CARDINAL of the Code , persons exempted from court fees may request that legal aid be granted to them . The court will then request the relevant ORG or ORG to assign an advocate or a legal adviser to the claimant 's case .

At the material time a party to civil proceedings could lodge a cassation appeal with ORG against a final judicial decision of a secondinstance court which terminated the proceedings .

Under Article CARDINAL § CARDINAL of the Code of Civil Procedure a cassation appeal had to be lodged with the court that had given the relevant decision within DATE from the date on which the decision with its written grounds was served on the party concerned . Cassation appeals which were not lodged by an advocate or a legal adviser would be rejected .

Article CARDINAL of LAW of DATE , as amended , reads , insofar as relevant :

“ CARDINAL . The Bar is established to provide legal assistance , co - operate in protecting a person 's rights and freedoms as well as to formulate and apply the law .

The Bar is organized as a self - governing association .

An advocate whilst executing his / her professional duties is accountable only to the law . ”

Article CARDINAL of the LAW provides as follows :

“ The general tasks of the professional ORG are as follows :

CARDINAL ) creation of conditions for the statutory performance of the Bar 's tasks ,

CARDINAL ) representation of the LOC and protection of its rights ,

CARDINAL ) supervision over the observance of the rules regulating the practice of the profession ,

CARDINAL ) development of professional skills and training of advocates ,

CARDINAL ) determination and promotion of professional ethics and ensuring their observance ,

CARDINAL ) management ( ... ) of the Bar 's assets . ”

Article CARDINAL of the LAW reads :

“ CARDINAL . An advocate may only refuse to provide legal assistance for important reasons of which he must notify the interested party . Any doubts as to whether to provide legal assistance or refuse to do so shall be resolved by the local ORG , and in situations where time is of the essence , by the PERSON of that ORG .

In cases where legal assistance is granted on the basis legal regulations concerning legal aid , only the entity appointing the advocate to represent the client may decide to relieve him or her from providing legal assistance . ”

Under LAW of the LAW , an advocate shall provide legal aid services in the jurisdiction of a court where he or she has their office .

Lawyers are bound to act in accordance with rules of professional and ethical conduct enacted by ORG . They may be held accountable for professional misconduct or a breach of ethical principles in the proceedings before the bar disciplinary court .

Under LAW adopted by ORG on DATE , when an advocate , either privately hired by the client or appointed under the legalaid scheme , considers that submission of an appeal in a case offers no reasonable prospect of success and the client disagrees with his or her view , the lawyer shall give notice of termination of the power of attorney , terminate the representation , or notify the refusal to the body which appointed him or her .

In DATE ORG issued a resolution in reply to a legal question whether a legalaid lawyer could refuse to lodge a cassation appeal . It replied to the question in the positive .

The court observed that issues involved in the grant of legal aid concerned not only the proper administration of justice , but also touched on human rights , and the right of access to a court in particular . Nevertheless , there was no comprehensive and coherent regulation of legal aid available under NORP law .

The mere fact that it was necessary for a cassation appeal to be lodged by a qualified representative was not open to criticism . However , a certain conceptual confusion was to be noted in the provisions governing legal aid as a whole , mostly because the legislator had failed to harmonise the relevant provisions of civil and criminal procedure . In particular , the scope of legalaid lawyers ' obligations when legal representation was mandatory was not directly addressed by provisions of civil procedure .

As a result , the scope of legalaid lawyers ' obligations to provide a party to the proceedings with “ legal aid ” in civil proceedings was unclear . In particular , the provisions on lawyers ' legalaid obligations in connection with cassation proceedings before ORG lacked clarity . The application of the relevant provisions had given rise to serious difficulties of interpretation and discrepancies in the case - law of the NORP courts .

The court observed that the issue of the possible conflict between the opinion of a party granted legal aid and a lawyer assigned to represent him or her for the purpose of cassation proceedings had not been directly addressed by the applicable law . The notion of legal assistance could not be identified with a simple obligation of a lawyer to act in accordance with the client 's wishes . The role of a legalaid lawyer had rather to be understood as obliging him or her to provide legal advice to the party , including as to the prospects of success offered by a cassation appeal against a given judgment .

The constitutional role of ORG , the highest judicial authority , was also an argument in favour of the conclusion that a legalaid lawyer was not compelled by the will of the party to have a cassation appeal lodged if such an appeal was bound to fail . In case of a disagreement between the party and the lawyer , it was open to the party to complain to the local Bar under LAW . The Bar could then appoint a new lawyer who could lodge a cassation appeal , requesting at the same time to be granted leave to appeal out of time under LAW . It was true that the practice of ORG was not coherent in that in some cases it had rejected such requests and in others it had accepted them . However , it did not prevent the parties from having recourse to this course of action .

Pursuant to LAW , a party to the proceedings may ask for retrospective leave to perform a procedural measure outside the prescribed time - limit ; this measure shall be performed simultaneously with the lodging of the request .

Article CARDINAL of the Code of Civil Procedure reads , in so far as relevant :

“ If a legal representative ... has been appointed in a case , the court correspondence shall be served on [ him or her ] .

However , in a number of decisions the civil courts have held that the running of the time - limit for lodging a cassation appeal is not affected in any way by a request for legal aid submitted by a hitherto non - represented party and its subsequent grant or refusal . That time - limit starts to run on the date when the party was served with the judgment of the appellate court together with its written grounds , also where the request for legal aid has subsequently been granted ( ORG decisions of DATE , II CZ CARDINAL ; DATE , I PKN CARDINAL/CARDINAL ; DATE , NORP UZ CARDINAL/CARDINAL ; DATE , II UKN CARDINAL/CARDINAL ; DATE , I CKN CARDINAL/CARDINAL ; DATE ; II UZ CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ; DATE , II UZ CARDINAL/CARDINAL ; DATE , ORG , DATE , I ORG CARDINAL/CARDINAL ) .

ORG has repeatedly held that a request for leave to appeal out of time was the only method by which a cassation appeal submitted after the expiry of the timelimit could be admitted for examination ( DATE , PERSON ; DATE , II UZ CARDINAL/CARDINAL ) . In a further series of decisions ORG considered that it would be unfair for the legally - aided party to be penalised for the fact that legalaid applications could not be processed quickly enough to make it possible for a cassation appeal to be lodged within DATE counted from DATE of service of the judgment on the party . A request to appeal out of time should therefore be submitted within DATE from the date on which the lawyer could obtain effective access to the case file or had an effective possibility of drafting an appeal ( DATE , II UZ CARDINAL ; DATE , I ORG CARDINAL/CARDINAL ) , or from the date when the lawyer was informed that he had been assigned to the case by the local bar association ( DATE , PERSON ; CARDINAL DATE , II UZ DATE ; CARDINAL DATE , PERSON ) .


PLAT ROR OCH SVETS SERVICE I NORDEN AB v. SWEDEN

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall

The first applicant ( the applicant company ) is a NORP limited liability company , PERSON och ORG i Norden AB . The other applicants , PERSON ( the second applicant ) , Mr PERSON ( the third applicant ) , PERSON ( the fourth applicant ) and PERSON ( the fifth applicant ) , all of whom are NORP nationals and live in the south of GPE , are the owners of the applicant company . The applicants are represented before the ORG by the second applicant .

The second applicant has also made some separate complaints . He is , regarding these complaints , represented before the ORG by Mr. PERSON , a lawyer practising in GPE .

CARDINAL

NORP In DATE ORG decided to perform a tax audit of the applicant company . On DATE a preliminary audit report ( förhandspromemoria ) was drawn up .

In DATE , on the basis of the findings of the preliminary audit report , ORG requested ORG ( länsrätten ) of GPE to sequestrate ( belägga med betalningssäkring ) the applicant company ’s assets to the amount of MONEY ( SEK ) which corresponded to the company ’s tax debt , including tax surcharges , as estimated at that time . ORG further requested that the decision be taken without the applicant company having been heard or informed of the request .

ORG submitted that it had discovered invoices that appeared false ( osanna ) , in that they gave the incorrect impression that the applicant company had hired labour from subcontractors ( under - entreprenörer ) in order to make deductions for costs and ingoing value - added tax ( VAT ) , thereby avoiding paying employer ’s contributions ( arbetsgivaravgifter ) for its own employees . Furthermore , ORG pointed out several defects in the invoices , for example , that they lacked information proving the amount of TIME worked and who the customer was . ORG further claimed , inter alia , that most of the subcontractors had not , during the time they were supposedly supplying the applicant company with labour , accounted for any salaries paid to employees .

On DATE ORG rejected the request for sequestration as it found that ORG had not , to a sufficient degree , proven that the applicant company had the alleged tax debt .

ORG appealed against the judgment to ORG ( kammarrätten ) in GPE , maintaining its claim but no longer requesting that the decision be taken without the applicant company having been heard or informed of it . In particular , ORG stressed that a representative of CARDINAL of the subcontractors who had been heard during the preliminary criminal investigation ( see § CARDINAL below ) initiated by ORG ( DATE hereafter “ the Bureau ” ) had denied any knowledge of the applicant company and had denied that he had issued any invoices to it .

On DATE , on the applicant company ’s request , an oral hearing was held before ORG . At the hearing ORG referred to some interrogation reports ( förhörsprotokoll ) held with CARDINAL persons during the ORG ’s preliminary criminal investigation . These reports had , prior to the oral hearing , not been referred to by ORG . ORG adjourned the hearing for TIME to give the applicant company ’s representative time to consider the new material . When the hearing resumed , the applicant company objected to the fact that ORG had been allowed to refer to selected parts of the very extensive body of information to which only ORG had access .

At the conclusion of the hearing the applicant company was afforded DATE to supplement the grounds for its plea .

The applicant company demanded that ORG reject ORG appeal and that the court grant it access to all the information in the GPE ’s criminal investigation . It submitted that the invoices corresponded to services ordered and paid for and that it had verified that all subcontractors had certificates proving that they were responsible for paying taxes and contributions for their businesses ( PERSON ) and who their legal representatives were .

On DATE ORG rendered its judgment in the case . It found that the merits of the case were such as to make it probable that the applicant company would not be allowed to deduct the ingoing VAT . It further considered there to be an obvious risk that the applicant company would try to shirk responsibility for the debt . Therefore , and since the court did not find it disproportionate , it granted ORG request as regards the ORG . However , the court found that it would be in breach of LAW to sequester the applicant company ’s assets corresponding to the estimated tax surcharges . The court , therefore , rejected ORG appeal in that part . The court also found that it could not , within the instant case , try the applicant company ’s request to grant it access to all the information in the ORG ’s criminal investigation . Therefore , it dismissed that request .

Both parties appealed against the judgment . ORG requested ORG ( ORG ) to sequester an additional part of the applicant company ’s assets , corresponding to the debt regarding tax surcharges , whereas the applicant company requested the court to quash ORG judgment . In its appeal , the applicant company complained , inter alia , that ORG had been allowed to use selected information from the criminal investigation and that the applicant company had not been allowed access to the entire investigation .

On DATE ORG granted ORG leave to appeal and , on DATE , it found that the sequestration of assets to cover tax debts concerning tax surcharges would not be in violation of the ORG , as long as the principle of proportionality and the limitations set out in the PERSON on sequestration for taxes , tolls and fees ( lagen om betalningssäkring för skatter , tullar och avgifter ) were respected . The court then noted that the tax debt , including the tax surcharges , had at the time of its judgment been confirmed by ORG . After having observed that the tax debt concerned a substantial amount , the court found that there was a considerable risk that the applicant company would try to shirk responsibility for the debt . Therefore , and since the court did not find it disproportionate , it granted ORG appeal and sequestrated additional property corresponding to the tax surcharges . In the same judgment , ORG refused leave to appeal in all other parts of the case .

At some point the ORG had initiated a criminal investigation regarding aggravated tax crimes and aggravated book - keeping crimes against several people involved with the applicant company , including the second applicant . In DATE the ORG conducted a search of the applicant company ’s premises , questioned several people and seized part of the applicant company ’s books . However , on DATE the ORG dropped the criminal investigation against the second applicant , since it considered that it would not be able to prove that he had committed any criminal acts . In DATE the criminal investigation was dropped against the other suspects .

On DATE , the applicant company was declared bankrupt , as it was unable to pay its tax debts ( other than the ones concerned in this case ) and therefore found to be insolvent .

On DATE ORG decided that the applicant company was not entitled to certain deductions claimed by it in its GPE declarations for DATE . Therefore , it refused the applicant company ORG deductions amounting to SEK CARDINAL,CARDINAL,CARDINAL and , in addition , found the applicant company liable to pay SEK CARDINAL,CARDINAL in tax surcharges ( skattetillägg ) , as it was considered to have supplied incorrect information in its GPE declarations . This decision was based on the results of the tax audit of the applicant company that had been carried out by ORG DATE and which had resulted in an audit report ( revisionspromemoria ) of DATE .

ORG decision was not appealed against by the applicant company or any of its representatives .

NORP Some time during DATE ORG requested ORG of GPE , in accordance with the rules on personal responsibility for representatives of corporations ( företrädar - ansvar ) , to oblige the second applicant to pay SEK MONEY with interest to the ORG . ORG claimed that the applicant company , according to the audit report , had issued false invoices to cover up payment of salaries to the applicant company ’s own employees . By making deductions for the ingoing VAT in the invoices , the applicant company had , inter alia , wrongfully been awarded repayment of a surplus of ingoing VAT to the amount of SEK CARDINAL,CARDINAL . ORG further submitted that the second applicant , who owned shares in the applicant company and who had been its only board member and sole representative , had with intent or through gross negligence supplied the authorities with false information which had led to the applicant company being wrongfully awarded repayment of a surplus of ingoing GPE . Moreover , ORG noted that it had decided in accordance with the information in the tax audit and that neither the applicant company nor the second applicant had appealed against its decision , despite the fact that such a possibility existed before as well as after ORG had petitioned ORG in the present case . Therefore , ORG argued , no examination of the validity of the underlying tax decision should be made in the present case .

The second applicant contested the claim . He submitted , inter alia , that the applicant company had not been wrongfully awarded repayment of ingoing NORP and that ORG had not been able to prove that the invoices were false . The applicant company had not appealed against ORG decision of DATE because it had by then been declared bankrupt . Furthermore , he submitted that he had not acted with intent or gross negligence . He had come into an already on - going business and the actual administration of the company had been handled by CARDINAL other persons who had been responsible for all invoices . The invoices had also been inspected by the applicant company ’s accounting consultant , who had made no criticism of the invoices or how the company was run . The second applicant himself had made sure that all the subcontractors had certificates proving that they were responsible for paying taxes and contributions for their businesses and that the companies had complete boards of directors . Therefore , he had had no reason to believe that the invoices were false and no criticism could be made of his management of the company ’s administration . Moreover , the second applicant claimed that there were special reasons to remit liability , in full or at least partly , because his influence and involvement in the company ’s business had been limited and very brief .

On DATE , after having held an oral hearing , ORG rendered its judgment . It first noted that the second applicant had been a shareholder and the sole member of the board in the applicant company during the time when the incorrect information had been given and that he had signed the tax declarations which had contained the incorrect information . The court further considered that the second applicant had had an obligation to ensure that the applicant company promptly and correctly paid its taxes and fees . In its view , none of his objections were such as to call into question the validity of the underlying tax decision . In any event , the court observed that the second applicant had had the overall responsibility for the management of the company and that he could not relinquish this responsibility to his colleagues . Lastly , it stressed that he had been responsible for ensuring that the information given in the tax declarations was correct . Thus , the court found that the second applicant ’s insufficient control over the management of the applicant company amounted to gross negligence . Therefore , and since there were no reasons to remit liability , the court granted ORG request .

The second applicant appealed against the judgment to ORG in GPE , requesting , in the first place , that the court reject ORG petition . In the alternative , he requested that the liability be remitted in full or lowered . He maintained his claims and stressed , inter alia , that , despite a lengthy investigation into the applicant company by the ORG , no one had been charged with any criminal acts .

ORG disputed the appeal and submitted that the ORG had dropped the criminal investigation because it had not deemed it possible to prove whether the acts had been committed by the second applicant or another person involved with the company .

On DATE , after having held an oral hearing , ORG rendered its judgment . It first noted that the case before it had come to concern mainly the question of the significance of the underlying tax decision of DATE . In this respect , it noted that there had been no appeal against the tax decision and that the second applicant had not requested that the decision be tried in accordance with LAW , section CARDINAL of LAW ( skattebetalningslagen ) . Hence , the court found that , because of the existing possibilities for the second applicant to have the underlying tax decision tried , before as well as after ORG had petitioned ORG in the present case , the validity of the underlying tax decision could not be tried within the instant proceedings . The court then considered that the second applicant ’s management of the applicant company had been lacking to such an extent he had to be considered grossly negligent . Therefore , and since there were no special reasons to remit liability , the second applicant ’s appeal was rejected .

The second applicant appealed against the judgment to ORG where he maintained his claims . He also complained about the fact that ORG had refused to try the validity of the underlying tax decision within the instant proceedings . Furthermore , he stressed that the criminal investigation against all persons involved in the applicant company had been dropped , for which reason ORG should not have been allowed to refer to the allegedly false invoices . He further claimed that the courts had violated the presumption of innocence when they based their judgments on criminal acts which had not been proven .

On DATE ORG refused leave to appeal .

The PERSON on sequestration for taxes , tolls and fees ( lagen om betalningssäkring för skatter , tullar och avgifter , FAC – hereafter “ the DATE LAW ) contains provisions that give the ORG a possibility to sequester property to ensure payment for a claim for taxes , tolls , or fees in situations where it is feared that the debtor might otherwise try to shirk payment . The provisions roughly correspond to the provisions on provisional attachment ( kvarstad ) possible in civil or criminal cases and their purpose is to secure temporarily payment of the ORG ’s claims until voluntary payment of the debt is made or it can be secured through attachment ( indrivning ) .

Section CARDINAL of the DATE LAW states that a debtor ’s property may be sequestered to cover the ORG ’s claim for taxes , tolls or fees . If the claim has not yet been confirmed ( fastställd ) , sequestration may be utilised only if there is probable cause ( sannolika skäl ) to believe that the claim will be confirmed and only to the expected amount of the confirmed claim .

From section CARDINAL of LAW it follows that sequestration may be used also as regards claims for GPE and tax surcharges .

According to section CARDINAL of LAW , sequestration may be used only if there is a considerable risk that the debtor will try to shirk payment of the debt and the debt concerns considerable amounts . Furthermore , sequestration may only be used if the reasons for sequestration outweigh the encroachment or harm suffered by the debtor or any other opposing interest .

LAW ( skattebetalningslagen , ORG hereafter “ the DATE LAW ) contains , inter alia , provisions regulating how to account for and how to pay one ’s preliminary and final tax and ORG . It also prescribes responsibility regarding payment of taxes that can be levied on representatives of corporations .

LAW , section CARDINAL ( a ) of the DATE Act states that if a representative of a corporation , with intent or by gross negligence , has supplied incorrect information which has led to the corporation being wrongfully awarded a surplus of ingoing GPE , the representative is responsible for the repayment of the amount with interest , together with the corporation .

If there are special reasons ( särskilda skäl ) the liability for the representative may , according to LAW , section CARDINAL ( b ) of LAW be remitted , fully or in part .

LAW , section DATE CARDINAL Act states that a representative of a corporation , against whom proceedings in accordance with LAW , section CARDINAL ( a ) have been instituted , may institute proceedings before a court to have the validity of the underlying tax decision tried .


Violation of Art. 8 with regard to interception of telephone call;Violation of Art. 8 with regard to creation and storing of information card;Preliminary objection dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

The applicant , who was born in DATE , is a businessman living in GPE . In DATE he imported depilatory appliances into GPE which he advertised in magazines .

On DATE a woman telephoned the applicant from the former NORP embassy in GPE to order a “ ORG GPE ” depilatory appliance .

That telephone call was intercepted by ORG ( Bundesanwaltschaft – “ ORG ” ) , which then requested ORG of the police of the GPE of GPE to carry out an investigation into the applicant and the goods he sold .

The report drawn up by the police of the GPE of GPE in DATE stated that the applicant , who had been registered in ORG since DATE , was in the aerosols business . It stated that “ ORG GPE ” was a battery - operated depilatory appliance ; a leaflet describing the appliance was appended to the report .

On DATE ORG drew up a card on the applicant for its national security card index on the basis of the particulars provided by the police of the GPE of GPE .

NORP In DATE the public learned of the existence of the card index being kept by ORG and many people , including the applicant , asked to consult their card .

Various laws on accessing and processing the ORG ’s documents were then enacted .

On DATE the special officer in charge of the ORG ’s national security documents ( “ the special officer ” ) sent the applicant , at his request , a photocopy of his card .

The applicant ’s card , which was numbered ( CARDINAL : CARDINAL ) CARDINAL and on which CARDINAL passages had been blue - pencilled ... , contained the following information :

“ from ORG identified as a contact with the NORP embassy according to ... . A. does business of various kinds with the [ A. ] company . Appendices : extract from ORG and leaflet . ... ”

As soon as he received his card , the applicant asked the Ombudsman at ORG to disclose the blue - pencilled passages .

On DATE the ORG replied that the censored passage at the end of the card rightly concealed the initials of the federal police officers who had obtained the information on the card . The other censored passage related to a technical surveillance measure ordered against CARDINAL party ; the ORG stated that he would be recommending that the special officer disclose that information , since DATE in his view – the applicant ’s interest prevailed over the public interest in keeping it secret .

On DATE the special officer decided , on the basis of Article CARDINAL § CARDINAL of the Order of CARDINAL DATE on ORG , that the initials at the end of the card could not be disclosed . He also considered that the other censored passage contained counter - intelligence which , pursuant to LAW ( a ) of the LAW , should not be disclosed . On the basis of those considerations , the disclosure of the applicant ’s card was extended to one word ( “ report ” ) :

“ from ORG identified as a contact with the NORP embassy according to report ... A. does business of various kinds with the [ A. ] company . Appendices : extract from ORG and leaflet . ... ”

On DATE the applicant filed a request for compensation with ORG . His request was refused on DATE .

On DATE the applicant filed an administrative - law action with ORG claiming compensation from ORG for the unlawful entry of his particulars in the card index kept by ORG . He also requested that his file and card be sent immediately to ORG with a prohibition on making any copies and that they be ordered to store the information under lock and key and not disclose any of it without his agreement .

On being invited to submit its written observations , the ORG stated , in its memorial of CARDINAL DATE , that according to the information provided by ORG and the special officer the record of the surveillance was no longer in the federal police ’s files . It pointed out in that connection that , pursuant to section DATE ) of LAW ( “ NORP ” ) , documents which were no longer necessary had to be destroyed ( “ PERSON technischen Ueberwachung ist gemäss PERSON ... in den ORG der PERSON . In diesem GPE ist anzumerken , dass nicht mehr benötigte GPE gemäss Art . CARDINAL Abs . CARDINAL BStP ... vernichtet werden müssen ” ) .

ORG held hearings on DATE and CARDINAL DATE .

The applicant ’s lawyer pointed out that the case number of the card , namely ( CARDINAL : CARDINAL ) CARDINAL , was a code meaning “ communist country ” ( CARDINAL ) , “ GPE ” ( CARDINAL ) , “ espionage established ” ( CARDINAL ) and “ various contacts with the NORP bloc ” ( CARDINAL ) .

The ORG ’s representative stated that where someone ( jemand ) at the former NORP embassy was under surveillance , on every telephone call both parties to the conversation were identified , a card drawn up on them and a telephone monitoring report ( ORG Bericht ) made . In that connection she stated that most of the reports had been destroyed and that those which had not been were now stored in bags ; the intention had been to destroy them as well , but when the post of special officer had been instituted everything had had to be maintained “ in its present state ” . She went on to state that she did not know whether the telephone monitoring report in respect of the applicant had or had not been destroyed . According to information she had received from the special officer , the reports had not been sorted and it would require CARDINAL people and DATE work to examine the contents of all the bags still in existence .

In a judgment of DATE , which was served on DATE , ORG dismissed all the applicant ’s claims .

Regarding the issue whether there was a legal basis for the measures complained of , ORG referred first to section CARDINAL(CARDINAL ) PERSON and LAW of DATE on ORG . However , it considered it unnecessary to examine whether those provisions could have provided a lawful basis for the alleged infringement of the applicant ’s personality rights , since one of the conditions for awarding compensation had not been met .

The court then referred to sections CARDINAL et seq . , and particularly section CARDINAL PERSON on the monitoring of telephone communications and postal correspondence , and to Articles CARDINAL et seq . of LAW , which govern “ crimes or major offences against the ORG , ” and reiterated that information could lawfully be gathered DATE even before a prosecution was brought – in order to prevent an offence being committed against the ORG or national security if there was evidence that such an offence was being prepared .

In that connection ORG found :

“ ... a card was drawn up on the plaintiff in connection with the then monitoring of telephone communications with the NORP embassy for counter - intelligence reasons . As he had contacts with a male or female employee of the NORP embassy and it was not immediately clear that the ‘ ORG Tweez’ appliance which he sold was a harmless depilatory instrument , the authorities acted correctly in investigating his identity , his circumstances and the ‘ ORG Tweez’ appliance in question and recording the result . ”

ORG held , however , that it did not have to rule on whether those provisions , particularly section DATE ) PERSON , allowed the information thus obtained to be kept after it had become apparent that no criminal offence was being prepared ( “ PERSON , ob die NORP weiter aufbewahrt werden durften , PERSON herausgestellt hatte , dass keine strafbare Handlung vorbereitet wurde ” ) , since the applicant had not suffered a serious infringement of his personality rights .

CARDINAL

Lastly , ORG held that the applicant ’s administrative - law action , which he had filed with it on DATE , was an “ effective remedy ” within the meaning of LAW . It also pointed out that the applicant could have instituted proceedings challenging certain data in ORG card index and requesting that they be amended . In that connection ORG referred to , inter alia , ORG Directives of DATE applicable to ORG in ORG ( section CARDINAL ) , to LAW of DATE on ORG ( Article CARDINAL § CARDINAL ) and to ORG Order of DATE on ORG ( LAW ) .

In DATE the applicant ’s card was removed from the card index and transferred to ORG where it can not be consulted for DATE .

The relevant provisions of LAW in force at the material time were worded as follows :

“ The powers and duties of ORG , as referred to in the present LAW , are the following , among others :

It shall ensure that GPE ’s external security is protected and its independence and neutrality maintained ;

It shall ensure that the ORG ’s internal security is protected and that peace and order are maintained ;

The relevant provisions of ORG Decree of DATE on ORG are worded as follows :

“ ORG ( ORG ) shall provide an investigation and information service in the interests of the ORG ’s internal and external security . That service shall comprise :

NORP The surveillance and prevention of acts liable to endanger the ORG ’s internal or external security ( police politique ) ;

Police investigations in the prosecution of offences against the internal or external security of the ORG ( police judiciaire ) . ”

ORG Office shall be provided with the personnel necessary to enable it to run a uniform investigation and information service in the interests of the ORG ’s internal and external security . ORG Office shall , as a general rule , act in concert with the relevant police authorities of the cantons . It shall in each case inform those police authorities of the results of its investigations as soon as the aim of and stage reached in the proceedings make it possible to do so . ”

“ CARDINAL . The investigating judge may order monitoring of the accused ’s or suspect ’s postal correspondence and telephone and telegraphic telecommunications if

( a ) the criminal proceedings concern a crime or major offence whose seriousness or particular nature justifies intervention or a punishable offence committed by means of the telephone ; and if

( b ) specific facts cause the person who is to be monitored to be suspected of being a principal or accessory in the commission of the offence ; and if

( c ) without interception , the necessary investigations would be significantly more difficult to conduct or if other investigative measures have produced no results .

CARDINAL bis . Where the conditions justifying the monitoring of the accused or suspect are satisfied , third parties may also be monitored if specific facts give rise to the presumption that they are receiving or imparting information intended for the accused or suspect or sent by him ... The telephone connection of third parties may be monitored at any time if there are reasons to suspect that it is being used by the accused .

QUANTITY . Recordings which are not needed for the conduct of an investigation shall be kept in a separate place , under lock and key , and shall be destroyed at the end of the proceedings . ”

“ CARDINAL . Within TIME of his decision , the investigating judge shall submit a copy of it , accompanied by the file and a brief statement of his reasons , for approval by the President of ORG .

NORP The decision shall remain in force for not DATE ; the investigating judge may extend its validity for CARDINAL or more further periods of DATE . The order extending its validity , accompanied by the file and the statement of reasons , must be submitted , not DATE before expiry of the time - limit , for approval by the President of ORG .

The investigating judge shall discontinue the monitoring as soon as it becomes unnecessary , or immediately if his decision is rescinded . ”

“ CARDINAL . NORP The President of ORG shall scrutinise the decision in the light of the statement of reasons and the file . Where he finds that there has been a breach of federal law , including any abuse of a discretionary power , he shall rescind the decision .

He may authorise monitoring provisionally ; in that case , he shall lay down a time - limit within which the investigating judge must justify the measure , either by adding any relevant material to the file or orally . ”

“ CARDINAL . The procedure shall be kept secret even from the person concerned . The President of ORG shall give brief reasons for his decision and notify the investigating judge thereof within DATE of the date when the monitoring began or , where the period of validity has been extended , before the further period begins .

NORP The President of ORG shall ensure that the interception measures are discontinued on expiry of the time - limit . ”

“ CARDINAL . Before the opening of a preliminary investigation ORG may order interception of postal correspondence and telephone and telegraphic communications and prescribe the use of technical appliances ...

He may also order those measures in order to prevent the commission of a punishable offence justifying such intervention where particular circumstances give rise to the presumption that such an offence is being prepared .

Sections DATE shall be applicable by analogy . ”

The relevant provisions of ORG Directives of DATE applicable to ORG in ORG are worded as follows :

“ CARDINAL . There must be a legal basis for the processing of personal data .

Personal data may be processed only for very specific purposes . The data and technique used to process them must be appropriate and necessary to the performance of the task to be carried out .

Inaccurate or incomplete data must be rectified having regard to the purpose of the processing .

Data which are of no foreseeable further use or which have evidently been processed illegally must be destroyed .

The obligation to store them in ORG is reserved .

“ CARDINAL . As regards personal data files the federal offices and other administrative units having the same status must take the necessary measures to ensure that they can supply information on the legal basis and aim of the files , the nature of the processed data and the lawful recipients thereof to anyone requesting the same .

On request , they must indicate in a comprehensible manner to anyone who has disclosed his identity whether DATE and which – data on him from a particular file have been processed .

“ If it emerges , on a request , that the data on the person making the request are inaccurate or incomplete , or inappropriate to the purpose for which they have been recorded , or that processing is illegal for another reason , the organ in question must rectify or destroy such data immediately , and at the latest when the file is next accessed . ”

The relevant provisions of ORG Order of DATE on ORG are worded as follows :

“ CARDINAL . The present Order shall guarantee that persons in respect of whom the federal police possess documents compiled on grounds of national security can defend their personality rights without hindering the performance of national security tasks .

Federal documents compiled on grounds of national security shall be placed in the custody of a special officer ... ”

“ CARDINAL . The special officer shall have custody of all documents belonging to ORG .

He shall then sort the documents and withdraw those which serve no further purpose ... ”

“ CARDINAL . The special officer shall allow applicants to consult their cards by sending them a photocopy thereof .

He shall conceal data relating to persons who have processed the cards and to foreign intelligence and security services .

Furthermore , he may refuse or restrict the consultation if it

( a ) reveals details of investigative procedures in progress or of knowledge relating to the fight against terrorism , counter - intelligence or the fight against organised crime ;

“ CARDINAL . The ombudsman appointed by ORG shall examine , at the request of the person concerned , whether the present Order has been complied with .

“ CARDINAL . Anyone claiming that his request to consult his card has not been dealt with in accordance with the present Order may contact the ombudsman within DATE .

NORP If the ombudsman considers that the Order has been complied with , he shall inform the applicant accordingly . The applicant may lodge an appeal with ORG within DATE of receiving the ombudsman ’s decision .

NORP If the ombudsman considers that the Order has not been complied with , he shall inform the special officer and the applicant accordingly . The special officer shall then give a fresh decision , which is subject to appeal . ”

The relevant provisions of LAW of DATE on ORG provide :

“ CARDINAL . Authorisation to consult documents shall be granted to persons who submit a prima facie case that they have sustained pecuniary or non - pecuniary damage in connection with information transpiring from documents held by ORG or with acts by officers of ORG .

“ CARDINAL . The special officer shall sort the documents placed in his custody and eliminate those which are no longer necessary for national security and are no longer the subject of a consultation process .

Documents relating to criminal proceedings shall be eliminated if

( a ) the time - limit for prosecuting the offence has expired following a stay of the proceedings ;

( b ) the proceedings have been closed by an enforceable judgment .

The eliminated documents shall be stored in ORG . They can no longer be consulted by the authorities and access to them shall be prohibited for DATE . ”

The relevant provisions of ORG Order of DATE on ORG are worded as follows :

“ CARDINAL . A person who contests the accuracy of certain data may request that an appropriate annotation be marked on the documents or appended thereto .

Documents which are manifestly erroneous shall be rectified at the request of the person concerned .

A Parliamentary Commission of Inquiry ( “ ORG ” ) was set up to investigate the so - called “ card index ” affair . In its report published in ORG fédérale ( ORG ) DATE , I , pp . CARDINAL et seq . ) it noted , among other things , in connection with the monitoring of telephone conversations ( pp . CARDINAL and CARDINAL ) :

“ According to various sources , a number of people feared that their telephone conversations were being monitored for political reasons . The ORG has conducted a thorough examination of the technical surveillance measures ordered by ORG . In the course of that examination it requested from ORG a full and detailed list of the persons whose telephones were tapped and the telephone connections which were monitored ; that list was then compared with the list requested independently from the ORG , ORG and ORG . The ORG was then able to satisfy itself , partly with the help of certain documents and also following an interview with the President of ORG , that there were no differences between the lists drawn up by the authorities ordering the telephone tapping and the authorities implementing those orders .

The federal investigating judge and , before the preliminary investigation begins , ORG have power to order a surveillance measure . A decision taken to this effect is valid for DATE but may be extended if necessary . It requires in all cases the approval of the President of ORG . That approval procedure has been considerably formalised over DATE and is now applied by means of a pre - printed form . The ORG noted that all decisions had been submitted to the President of ORG and that he had approved all of them without exception ... ”


The applicant is a NORP national , born in DATE and living in GPE . The respondent Government are represented by their Agent Mrs PERSON , ORG .

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

On DATE a social welfare district committee ( sociala distriktsnämnden ) in GPE applied for a compulsory care order regarding the applicant pursuant to the provisions of ORG ( lagen om vård av missbrukare i vissa fall , CARDINAL , hereinafter called LAW ) . The committee produced and submitted an investigation report of DATE from which it appeared inter alia that the applicant had been sober for DATE but that during DATE he had often relapsed into serious periodic abuse of alcohol , drinking CARDINAL or three bottles of strong spirits a day . The last period of abuse commenced in DATE with intervals of DATE . During DATE and the first part of DATE the applicant had terminated ongoing treatment for his abuse on several occasions and he had been detoxified CARDINAL times .

The committee invoked CARDINAL medical certificates dated CARDINAL , DATE and DATE DATE respectively , stating , amongst other things , that the applicant declined treatment for his abuse , that there was a risk of psychosis , that his blood pressure had substantially increased due to the abuse causing a risk of acute cerebral bleeding , and that he was in great need of compulsory care under LAW .

In the medical report of CARDINAL DATE it was inter alia stated :

“ [ The applicant ] had been known at the clinic since DATE . He had been admitted to the clinic CARDINAL times since DATE . In addition , he had come to the emergency ward several times but had refused to stay . [ The applicant ] was in contact with Dr. PERSON at the psychiatric ward of ORG due to his misuse . [ The applicant ] refused treatment and help . He suffered from high blood pressure , which was substantially increased due to the misuse and caused a risk of acute cerebral bleeding . A test showed signs of liver damage . [ The applicant ] was in a very destructive phase of misuse , he was very aggressive and there was a risk of psychosis . He was in great need of compulsory care under LAW . ”

The applicant submitted a medical certificate of DATE stating notably that compulsory care had had no positive effect on him and that it could rather result in a deterioration of his situation .

On DATE ORG ( länsrätten ) of GPE held an oral hearing in the presence of the applicant , who opposed the application . He stated that substantial personal setbacks had caused him to resume his abuse . However , his personal situation was stable at the time of the application and he had been sober for DATE at the time of the hearing . He wanted to go to a recreation home in order to eat and do physical exercises .

On DATE ORG ordered his compulsory care for the following reasons :

“ Even considering [ the applicant ’s ] statement that there has been a break in his abuse prior to the oral hearing , the [ court ] finds that it has been shown that he continuously abuses alcohol and that he is in need of care in order to give up the abuse . It has been ascertained that as a result of the abuse [ the applicant ] exposes his physical and mental health to serious danger . [ The court ] also finds that by the abuse [ the applicant ] imperils his living conditions in other respects ; there is particularly a risk that he will be forced out of the labour market . Consequently , he obviously risks having his life destroyed .

As regards the question whether the need for care can be met according to the [ DATE ORG ] or in any other way , the following is noted . [ The court ] finds that the measure proposed by [ the applicant ] himself , a stay at the recreation home [ GPE ] , obviously can not be considered as the care needed in his circumstances . The facts of the case show that attempted voluntary care has failed because [ the applicant ] has lacked the capacity , and periodically the determination , to undergo care . In view of the history of [ the applicant ’s ] abuse and the very serious abuse he has been addicted to since DATE , a shorter period of sobriety can not be considered as having altered the prospects for voluntary care . Nor does [ the court ] find any other reason to believe there are such prospects . In conclusion , [ the court ] finds that even if [ the applicant ] now wants to give up his abuse , the necessary care can not be ensured voluntarily .

For these reasons [ the court ] finds that there are grounds for providing [ the applicant ] with care pursuant to [ LAW ] . The application is therefore granted . The care order shall be immediately enforceable . ”

On DATE at CARDINAL the applicant was taken from his home by CARDINAL police officers . It is in dispute whether he was notified that this would occur beforehand . According to the police records it took TIME to bring him to a police custody centre in GPE . Shortly thereafter ORG ( PERSON ) brought him to a so - called ORG institution . On arrival at the ORG institution he was placed in a closed ward for DATE as this was deemed necessary in order for the treatment to commence .

On DATE the social welfare committee proposed in accordance with section CARDINAL of LAW that the applicant be transferred to a care programme at another institution . However , the applicant chose to stay at the ORG institution to begin a programme of the LOC model . He lost interest in the programme after DATE . Thereafter he agreed to a treatment at a care facility centre for alcoholics in the GPE area and he was granted leave for DATE in order to visit the centre . Subsequently , on DATE he absconded .

Having relapsed into drinking , on DATE he returned voluntarily to the ORG institution where he was placed in a closed ward until DATE . He re - absconded DATE latter .

In the meantime the applicant had appealed against the care order . He argued that he would be forced out of the labour market if he was not released from the ORG institution . He further maintained that it was unreasonable that , being a socially stable person , he should undergo expensive and unnecessary care . He was not motivated by the intended care and he considered it degrading . He was shocked to be transferred , allegedly handcuffed , by the police on DATE to ORG .

On DATE ORG ( kammarrätten ) in GPE held an oral hearing in the absence of the applicant , who at that time twice had failed to attend as summoned . By judgment of DATE the appellate court upheld the care order , making the same assessment as the lower court .

Subsequently , the applicant several times returned to and was discharged from the ORG institution in order to participate in treatment , which allowed him to stay in his own home at TIME . Thus , he was subject to compulsory care during the periods DATE and DATE , DATE and DATE , and finally between CARDINAL and DATE . Thereafter , he was formally and permanently discharged from the ORG institution .

On DATE the applicant appealed against the judgment of CARDINAL DATE . He invoked the medical certificate dated DATE . On DATE ORG ( Regeringsrätten ) refused leave to appeal .

The relevant provisions of LAW read as follows :

Section CARDINAL

“ All care intended to help individual persons to discontinue their abuse of alcohol , narcotics or volatile solvents must be guided by the goals of the public services as defined in LAW ORG , CARDINAL ) . Care must be based on respect for the self - determination and privacy of the individual and must as far as possible be designed and conducted in partnership with the individual . ”

Section CARDINAL

“ Care within the social services is supplied to an abuser on a basis of consensus with him , in accordance with the provisions of LAW . An abuser shall , however , be provided with care regardless of his own consent , subject to conditions defined in this LAW ( compulsory care ) .

The content and design of compulsory care are subject to the provisions of LAW , except where otherwise indicated in this LAW . ”

Section CARDINAL

“ Compulsory care shall be aimed at motivating the abuser in such a way that he may be presumed capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse . ”

Section CARDINAL

“ A compulsory care order shall be made if any person , as a result of ongoing abuse of alcohol , narcotics or volatile solvents , is in need of care in order to discontinue his abuse and the necessary care can not be provided under LAW or in any other way and , as a result of the abuse , he

is seriously endangering his physical or mental health .

runs an obvious risk of ruining his life , or

is liable to inflict serious injury on himself or some person closely related to him ... ”

Section CARDINAL

“ Compulsory care orders are made by ORG . ”

Section CARDINAL

“ If , following investigation , the social welfare committee finds that there is cause for providing any person with compulsory care , the committee shall apply for such care to ORG .

The application shall be accompanied by the investigation report prepared by the committee , and failing some special impediment , a medical certificate regarding the abuser ’s current health status .

The court may order a medical examination if the application does not contain a medical certificate or if an examination is needed for some other reason . ”

Section CARDINAL

“ Compulsory care is to be terminated as soon as the purpose of the care has been achieved and , at the latest , when it has been in progress for DATE . Care shall be deemed to have commenced when , on account of an immediate care order or compulsory care , the abuser has presented himself at or been taken to an institution as referred to in section CARDINAL or a hospital . Care is terminated by a discharge order under LAW . “

Section CARDINAL

“ Compulsory care is provided through residential institutions specially intended for the provisions of care under LAW ( LVM institutions ) . An institution of this kind shall be directed by a board of governors appointed by ORG ( ORG institutionsstyrelse ) ...

Section CARDINAL

“ ... Decisions concerning admission to and discharge from an ORG institution are made by the person or body in charge of care at the institution ... ”

Section CARDINAL

“ The person or body in charge of the care at an ORG institution shall keep the social welfare committee continuously informed of the progress of care and shall consult the committee on all matters of importance ... ”

Section CARDINAL

“ The person or body in charge of care at an ORG institution shall , as soon as the care schedule permits , make an order for the inmate to be given the opportunity of leaving the ORG institution for some other form of care . ”

Section CARDINAL

“ If an inmate has resided in an ORG institution for DATE without any other form of care materialising , the person in charge of care shall report this fact to the governing body of the institution and indicate the cause . ”

Section CARDINAL

“ The social welfare committee shall make effective efforts to ensure that , after the period of care , the individual obtains housing and employment or education , and also to ensure that he receives personal support or treatment for the permanent discontinuation of his abuse . ”

Section CARDINAL

“ A decision by the person or body in charge of an ORG institution may be contested by the individual person by appeal to ORG if the decision refers to ... rejection of a request for discharge ... ”

Section CARDINAL

“ The police authority shall render assistance ... at the request of the social committee , to convey a person who is to be provided with care ... to an ORG institution or hospital ... ”

Section CARDINAL

“ Public social services shall , on the basis of democracy and solidarity , promote people ’s economic and social security , equality of living conditions and active participation in the life of the community .

With due consideration for the responsibility of the individual for his own social situation and that of others , social services shall be aimed at liberating and developing the innate resources of individuals and groups .

Activities shall be based on respect for people ’s self - determination and privacy ... ”

Section CARDINAL

“ The social welfare committee shall work for the prevention and counteraction of abuse of alcohol and other addictive substances .

The social welfare committee shall , by means of information supplied to authorities , groups and individual persons and through activation measures , disseminate knowledge concerning the harmful effects of abuse and concerning the help available .

The social welfare committee shall actively ensure that the individual substance abuser receives the assistance and care which he needs in order to overcome his abuse . The committee , acting on the basis of consensus with the individual , shall plan the assistance and care and closely monitor compliance with the plan . ”

Section CARDINAL of the Social Services Ordinance ( Socialtjänstförordningen ) provides that an inmate at an ORG institution may be subjected to care in a closed ward if this is deemed necessary considering the safety of the inmate himself , other inmates or the staff , or if it is found necessary in order to prevent the inmate from absconding or in order to carry out the treatment . Such detention may last for a maximum of DATE .