The applicants are CARDINAL individuals from LOC in GPE , and PERSON , a group that represents the interests of relocated PERSON ( the Thule Tribe ) and their descendants in a legal action against ORG . They were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

s , may be summarised as follows .

The population of GPE ( CARDINAL ) is predominantly NORP , a people bearing an affinity and solidarity with the NORP populations of GPE , GPE and LOC .

In the north - west of GPE the NORP people are PERSON ( also known as ORG ) , a people living from hunting and fishing , who entered GPE from GPE in DATE ORG . They lived completely isolated until DATE , following which they received visits by whalers and expeditions .

In DATE the NORP polar researcher PERSON established a commercial trading station and privately initiated a colonisation of the area , which he called LOC . By a decree of CARDINAL DATE LOC was incorporated into the NORP colonial area in GPE . In order to preserve the people ’s way of living , in DATE PERSON established ORG ( PERSON ) , which adopted the “ Laws of the FAC ” . In DATE GPE took over the trading station .

During World War II , after the NORP occupation of GPE in DATE , GPE ( “ the GPE ” ) invoked ORG in respect of GPE and reached an agreement in DATE with the NORP minister at GPE that permitted the establishment of GPE military bases and meteorological stations . Thus , in DATE , among other places in GPE , a so - called weather station was built in LOC . It appears that ORG received a sum of QUANTITY ( ORG ) in compensation for this .

After the war , GPE and the GPE signed a treaty on the defence of GPE , which was approved on CARDINAL DATE by ORG ( called Rigsdagen at the relevant time ) and entered into force on DATE .

Consequently , an NORP air base was established at LOC in the LOC amidst the applicants’ hunting areas and in the vicinity of the applicants’ native village site , ORG ( then called PERSON ) .

As part of the base a QUANTITY airstrip was built , together with housing and facilities intended to accommodate CARDINAL people . There appears to be dispute as to the exact size of the defence area at the relevant time and how much of it the PERSON were excluded from . The applicants alleged that the defence area amounted to QUANTITY .

It is common ground , however , that PERSON access to hunting and fishing was increasingly restricted and that the activities at the base eventually had a detrimental effect on the wildlife in the area .

In DATE the GPE wished to establish an anti - aircraft artillery unit as well and requested permission to expand the base to cover the whole LOC . The request was granted , with the consequence that ORG was evicted and had to settle outside the defence area . The tribe was informed of this on DATE and within DATE , while they could still travel over the frozen sea ice with dog sleds , twentysix NORP families , consisting of CARDINAL people , left ORG , leaving behind their houses , a hospital , a school , a radio station , warehouses , a church and a graveyard ( the family houses were later burned down and the church was moved to another village on the west coast ) .

Most of the families chose to move to GPE , QUANTITY north of GPE , where they lived in tents until DATE , when substitute housing was built for them ( altogether CARDINAL wooden houses ) , together with facilities for a new village ( including a school , a church , a hospital , administration buildings , a power station and road facilities ) . Also , groceries and equipment were handed out to the families .

The total cost of the relocation amounted to MONEY ( equivalent to MONEY ( ORG ) ) , of which the GPE paid MONEY ( ORG ) , equivalent to ORG CARDINAL . It is estimated that the GPE DATE income on average at the relevant time amounted to DKK CARDINAL .

On DATE a new NORP LAW was passed ( to replace the previous one of DATE ) . It extended to all parts of GPE , including GPE , which thus became an integral part of GPE .

Subsequently , by Resolution CARDINAL ( ORG ) of CARDINAL DATE ORG approved the constitutional integration of GPE into LOC and deleted GPE from the list of non - self - governing territories .

At ORG meeting in DATE the question of compensation for the ORG relocation arose for the first time , but not until after their meetings in DATE and DATE did they submit formal requests to ORG . The latter requested a statement by the Chief of GPE ( ORG ) , who submitted his reply on DATE . It is in dispute what happened thereafter , but the authorities claimed that the case file had disappeared . It reappeared in DATE . It is undisputed , however , that neither ORG nor ORG received a decision on their requests .

In DATE home rule was introduced in GPE , a scheme which left most of the important decision - making , excluding the areas of foreign policy and defence , to ORG ( Landsstyret ) .

In DATE , following the publication of a book on FAC and FAC ( Thule – fangerfolk og militæranlæg ) , ORG lodged a fresh claim for compensation via the municipality of GPE .

Consequently , several meetings were held between the Minister for GPE , the municipality of GPE , and a working group appointed to safeguard the interests of the applicants . This led , inter alia , to the building of new houses instead of the original houses from DATE , and to an agreement between ORG and ORG to coordinate a plan to improve the conditions for the PERSON municipality vis - à - vis its military neighbour in order to remedy the inconveniences resulting from the existence of the military base . The plan was implemented in DATE . Thus , on DATE the GPE and GPE entered into an agreement reducing the area of the base to CARDINAL its original size . Moreover , ORG and ORG agreed to seek a solution concerning an improvement in the use of the military base for additional civilian traffic and to create a civilian transit area funded by ORG .

Finally , on DATE the Minister of ORG set up a review committee to submit a report establishing the facts of the ORG relocation in DATE . The committee consisted of a ORG judge , a senior archivist and a vice - bishop . As part of the review , numerous people gave statements to the committee , which submitted its report in DATE .

ORG made some very critical observations on the conclusions of the report , but found that the material that had been obtained as its basis had been satisfactory , apart from the above - mentioned case file that had apparently disappeared within ORG for GPE and some security - related documents to which the committee had been unable to obtain access .

On DATE , in order to resolve the PERSON case dispute , ORG ( Statsministeriet ) and the Premier of ORG ( GPE for det GPE PERSON ) entered into an agreement whereby the former agreed to donate DKK CARDINAL towards the cost of a new airport in GPE .

In the meantime , on DATE the applicants had brought a case against ORG before ORG of Eastern GPE ( PERSON ) , seeking a declaration :

( CARDINAL ) that they had the right to live in and use their native settlement in ORG in LOC ;

( CARDINAL ) that they had the right to move , stay and hunt in the entire LOC ;

( CARDINAL ) that FAC was entitled to compensation in the amount of DKK CARDINAL ( equivalent to approximately EUR CARDINAL,CARDINAL,CARDINAL ) ; and

( CARDINAL ) that each individual was entitled to compensation in the amount of DKK MONEY ( equivalent to approximately ORG CARDINAL,CARDINAL ) .

The applicants had been granted free legal aid to bring their case , although this was restricted so that their claim for compensation could amount to a maximum of DKK CARDINAL instead of DKK MONEY ( equivalent to approximately EUR CARDINAL,CARDINAL,CARDINAL ) , which was the amount that they had originally intended to claim .

Before the High Court numerous ethnographical , geographical , historical , political and autobiographical reports , books and TIME , inter alia , were submitted on the issue , including the report of DATE by the review committee . Witnesses gave evidence and the High Court visited the relevant areas in GPE . In addition , experts were appointed to produce a report on the development of hunting in LOC . It was submitted on DATE .

On DATE ORG of Eastern GPE delivered its judgment , which ran to CARDINAL pages . It found , in particular : that FAC had been legally established under LAW , the adoption and content of which had been in accordance with NORP law ; that the population at the relevant time could be regarded as a tribal people as this concept was now defined in LAW ( a ) of ORG ’s Convention no . CARDINAL of DATE concerning ORG ( “ the LAW ” ) ; that the substantial restriction of access to hunting and fishing caused by the establishment of FAC in DATE and the eviction of the tribe from LOC in DATE had amounted to such serious interferences that they had to be regarded as expropriations ; that the tribe had had too little time to prepare their departure ; that expropriations could be carried out in GPE at the relevant time without statutory authority ; but that at the relevant time , pursuant to LAW ( FN Pagten ) , ORG had had international obligations towards GPE , as was confirmed by LAW ( NORP af DATE om GPE styrelse ) ; and that the ORG claims had not become time - barred .

Since the exercise of the rights claimed by the applicants according to the wording of claims nos . ( CARDINAL ) and ( CARDINAL ) would be incompatible with the presence of the GPE air base , and having regard to its finding concerning the legal basis for the establishment of the base , ORG found that claims CARDINAL . ( CARDINAL ) and ( CARDINAL ) could not be allowed , but that claims FAC . ( CARDINAL ) and ( CARDINAL ) should be allowed in part .

In order to assess the compensation to be granted , ORG took into account various accounts , TIME , witness statements and historical and political descriptions but stated that the material did not give an unambiguous and objective picture . In addition , the change in hunting possibilities had to be taken into account . ORG found it established , for example , that fox hunting , which in DATE had represented a very significant part of ORG hunting , had become more difficult since the distance to the fox - hunting fields had increased after the tribe ’s removal . On the other hand , the hunting of seals and narwhals had later become of crucial importance . Having regard to those factors , and to the fact that the NORP authorities in the past had failed to examine and specify the loss suffered , ORG decided to ease the burden of proof normally required for granting compensation for alleged loss . In addition , it found that the loss should be assessed only up to DATE , when a new site called PERSON had been established between GPE and ORG in order to adapt to various changes in hunting . Finally , ORG took into account the fact that substitute housing had been built for the families concerned .

In conclusion , ORG found that ORG should be granted ORG MONEY ( equivalent to approximately EUR CARDINAL ) in compensation for its eviction and loss of hunting rights in LOC .

As regards the applicants’ individual claims , ORG did not find it established that they had suffered pecuniary damage which had not been covered by the substitute housing and the groceries and materials handed out to them in DATE , and the above amount granted to the tribe by way of compensation .

With regard to the claim for non - pecuniary damage , ORG noted that at the relevant time there had been no legal rules authorising such compensation in relation to GPE . Nevertheless , having regard to the nature and extent of the interference imposed by the colonial power on an isolated indigenous tribe , ORG found that the individuals affected in DATE should be granted an award for non - pecuniary damage . In the assessment of the amount to be awarded , ORG found it appropriate to deviate from the general principles according to which the calculation of compensation should take as a point of reference the time at which the harm was sustained , in this case DATE , notably because the relevant applicants had been prevented for a long time from having their claim examined . The age of the individuals at the time of the eviction was also taken into account .

Accordingly , those applicants who at the relevant time had been DATE were granted DKK CARDINAL ( equivalent to approximately ORG CARDINAL,CARDINAL ) in compensation for non - pecuniary damage and those who had been DATE were granted DKK CARDINAL ( equivalent to approximately EUR CARDINAL,CARDINAL ) .

In accordance with the ORG claim , interest was payable on the amounts awarded as from the date on which the case had been brought before ORG .

In the proceedings before ORG , the applicants’ CARDINAL counsel was awarded fees in the amount of respectively DKK CARDINAL and DKK CARDINAL plus VAT .

On DATE , in addition to signing a new agreement aimed at renewing the relationship between ORG and ORG , the NORP Prime Minister formally apologised to the applicants for the forced relocation of the PERSON in DATE , by stating as follows :

“ ORG has on DATE ruled in the case regarding the forced movement of the PERSON people in DATE . The ORG states that the NORP authorities acted unlawful at the time . The forced movement was decided and carried out in such a way , and under such circumstances , that it has to be regarded as a serious encroachment towards the people . We can not alter the historical events , but we have to answer for them and respect them . With the recent verdict , a limit has been set on the Government ’s encroachment towards the people .

DATE , no one can be made responsible for actions committed by past generations DATE . But with the spirit of the ORG , and with respect for GPE and the inhabitants of PERSON , the Government would , on behalf of ORG , like to offer an apology DATE utoqqatserpugut ( mamiasuktugut ) DATE to the PERSON , the inhabitants of PERSON , and to the rest of GPE , for the way in which the decision regarding the forced movement was made and carried out in DATE . We wish to continue and strengthen our collaboration and solidarity between GPE and GPE . NORP cooperation within the ORG shall also in the future be based on mutual respect .

With the amendment of the LAW in DATE , the citizens of GPE were made to enjoy the same rights as the NORP people . With the introduction of ORG in DATE , GPE obtained its own parliament , a fact which implied that decisions were and are made closer to the people in the PERSON democracy . Any possible repetition of what took place in DATE is therefore out of the question .

We recognise the achievements we have made through our cooperation and solidarity over DATE . Our ORG has experienced a very positive human , social and economic development for the benefit of the people of GPE and GPE .

ORG wishes to strengthen ORG participation in matters to do with foreign policy and in security issues relating to PERSON interests . Dialogue regarding this matter has begun already on the basis of the report of the ‘ ORG ( committee comprising officials from both the PERSON and ORG ) , among other things . Representatives of ORG will be included in the negotiation process , when new agreements are made between ORG and foreign States on matters which relate specifically to GPE . ”

On appeal to ORG ( Højesteret ) , the applicants argued that pursuant to LAW b ) of LAW , they had to be considered a distinct indigenous people separate from the rest of the NORP population , for which reason Articles CARDINAL , CARDINAL , DATE and DATE of ORG should be applied in particular . They also increased their claim for compensation to ORG CARDINAL .

Before ORG all the evidence that had been presented before ORG was submitted , together with the case file from ORG that had reappeared in DATE . Witnesses also gave evidence .

In a judgment of CARDINAL DATE ORG unanimously upheld ORG judgment and held as follows :

“ LAW

In order to address ORG request for their claims to be dismissed , and in support of their own claims , [ the applicants ] have as their main argument referred to the provisions of ORG Convention no . CARDINAL of DATE concerning ORG ( LAW ) , particularly LAW , CARDINAL , DATE and DATE . Thus , [ the applicants ] have argued that pursuant to LAW b ) , the tribe is considered a distinct indigenous people separate from the rest of the PERSON population .

The Convention became operative for GPE on DATE . At the time of ratification , the ORG people as a whole were considered an indigenous people within the meaning of the Convention .

In support of its allegation that it is an indigenous people , ORG has pointed out that its members descend from the people that lived in LOC at the time of the colonisation in DATE , and that its members retain some of their own social , economic , cultural and political institutions . According to its own definition , the ORG encompasses all descendants of this indigenous population and the GPE spouses , irrespective of where they were born and where they live . The members of the tribe see themselves as belonging to CARDINAL distinct indigenous people .

[ ORG finds that ] the assessment of whether or not ORG is a distinct indigenous people within the meaning of the ILO Convention should be based on current circumstances . In GPE , there are still regional variations in terms of language , business conditions and judicial systems , caused by the size of the country , communication and traffic conditions , and local natural conditions , among other things . After an overall assessment of the evidence before it , ORG finds that in all essential respects the population of LOC [ live under ] the same conditions as the rest of the PERSON people , and that they do not differ from the latter in any other relevant way . The particulars produced on the difference between the languages spoken in GPE and in GPE and ORG perception of itself as a distinct indigenous people can not lead to any other conclusion . ORG therefore finds that ORG does not ‘ retain some or all of its own social , economic , cultural and political institutions’ , and that accordingly ORG is not a distinct indigenous people for the purposes of LAW b ) of LAW .

Article CARDINAL ( a ) of ORG also includes ‘ tribal peoples in independent countries whose social , cultural and economic conditions distinguish them from other sections of the national community and whose status is regulated wholly or partially by their own customs or traditions or by special laws or ORG . As reasoned above , ORG finds that ORG does not fall within this provision of the LAW either .

This interpretation is consistent with the declaration made by ORG , endorsed by ORG , in connection with the ratification of LAW . According to this declaration , GPE has ‘ only one indigenous people’ within the meaning of the Convention , namely the original inhabitants of GPE , the NORP .

In its decision of DATE the ORG ’s ORG reached the same conclusion . It thus endorsed the report of DATE by the ORG committee that had considered a complaint submitted by the GPE trade union PERSON ( ORG ) concerning GPE ’s alleged breach of the LAW . The report states that ‘ there is no basis for regarding the inhabitants of the ORG community as a ‘ people’ separate from and different from other PERSON and that ‘ the territory traditionally inhabited by the NORP has been identified and consists of the entire territory of GPE .

It must be considered established that within the meaning of LAW the Thule Tribe does not constitute a tribal people or a distinct indigenous people within or coexisting with the PERSON people as a whole . Consequently , ORG does not have separate rights under the said LAW .

ORG request for the claims to be dismissed

The fact that the Thule Tribe can not be considered a tribal people or a distinct indigenous people within the meaning of LAW does not preclude ORG from being entitled to take legal action in accordance with the general rules on the matter .

ORG has not disputed that the organisation PERSON may represent ORG . As was stated by ORG , ORG must be considered a sufficiently clearly defined group of people . These matters are not altered by the fact that CARDINAL of the original CARDINAL individual plaintiffs have lodged individual appeals with ORG . The objection raised by ORG that ORG is not entitled to the claims , and that consequently [ the tribe ] is not the rightful plaintiff can not result in their dismissal . In view of their substance , LAW are not so ambiguous that they can not form the basis of an examination of the case .

For this reason , ORG [ agrees with ORG ] that the [ Prime Minister ’s Office ’s ] request to dismiss ORG Claims CARDINAL and CARDINAL should be rejected . For the same reason , ORG rejects the request to dismiss Claim CARDINAL .

ORG further agrees that the request to dismiss ORG and CARDINAL in respect of the individual appellants should also be rejected .

Access to habitation , travelling , hunting and fishing ( Claims CARDINAL and CARDINAL )

In support of LAW and CARDINAL , [ the applicants ] have DATE in addition to the reference to LAW argued in particular that FAC was established illegally because the DATE GPE - Denmark Defence Agreement is invalid under constitutional and international law . [ The applicants ] have also argued that no legal decision to move the settlement was taken .

As was stated by ORG in section CARDINAL.CARDINAL of its judgment , FAC was established under the DATE GPE - Denmark Defence Agreement . The agreement was adopted by the Rigsdagen [ name of the NORP parliament until DATE ] pursuant to LAW , as applicable at the relevant time , and accordingly ORG accepts that a constitutionally valid approval of the establishment of the base existed , although the technical appendix to the agreement was not submitted to the Rigsdagen . For this very reason , the agreement is also valid under international law .

The substantial restriction of access to hunting and fishing caused by the establishment of FAC in DATE can not , for the reasons stated by ORG in section CARDINAL , be considered a non - indemnifiable regulation , but an act of expropriation . This expropriation could , as stated by ORG in section CARDINAL.CARDINAL , be carried out without statutory authority . ORG therefore finds , for the reasons stated by ORG , that the substantive law provisions of LAW applicable at that time , including LAW , did not extend to GPE , that LAW did not include any claim to statutory authority , and that the question of establishing the base did not fall within the competence of ORG .

As was stated by ORG in section CARDINAL , the intervention in the ORG settlement and the PERSON colony that took place in connection with the decision in DATE to move the population is also to be considered an act of expropriation . This intervention may also be considered to have been carried out under the DATE USDenmark Defence Agreement and the expropriation it entailed could take place without statutory authority .

[ ORG ] notes that any inadequate information provided to ORG in DATE and DATE can not constitute grounds for invalidity .

ORG therefore finds that both the intervention in DATE regarding access to hunting and fishing and the intervention in DATE on relocation of the settlement were legal and valid . In this context , it is not necessary to decide whether or not the population of LOC at that time constituted a tribal people or a distinct indigenous people in the sense in which these terms are now defined in LAW .

The purport of ORG LAW and CARDINAL is that tribe members are entitled to live in and utilise the abandoned settlement and to travel , stay , hunt and fish in the entire LOC . For the very reason that , owing to the acts of expropriation , the exercise of this right of enjoyment has been prevented or curtailed in the areas affected by such acts , the appellants’ Claims CARDINAL and CARDINAL can not be complied with .

This finding applies to LAW , although in DATE the GPE and GPE , including ORG , in continuation of the DATE USDenmark Defence Agreement , signed a memorandum of understanding about isolating GPE – the area in which the settlement and colony were placed DATE from the defence area at FAC In this connection , it should be noted that FAC , which as stated is not considered a tribal people or a distinct indigenous people within the meaning of LAW , can not claim privileges regarding ORG with reference to LAW . Nor does GPE customary law give cause for such privileges .

ORG therefore finds for ORG as concerns the appellants’ LAW .

ORG claim for damages ( Claim CARDINAL )

The primary claim for damages in the amount of around ORG CARDINAL relates in the first place to FAC loss owing to the lost and reduced hunting and fishing opportunities as a result of the establishment of the base and the relocation of the population from the ORG settlement .

For the reasons stated by ORG in section CARDINAL , ORG finds that compensation for this loss should be granted according to the principles of LAW as applicable at that time , although this provision was not directly applicable to GPE .

After making an overall assessment and weighing up the pros and cons , ORG set the compensation at MONEY , and ORG has requested that this decision be upheld .

For the reasons stated by ORG , ORG finds that there has to be a certain adjustment of the standard of proof as to the loss incurred .

The calculations on which ORG claims are based can not be accorded any weight . These calculations use factors that , to a large extent , may be deemed arbitrary , while discounting various matters that ought to have been included in the assessment . The calculations are not based on developments in the species being hunted . The primary claim in the amount of around ORG CARDINAL is based on the size of the confiscated land without clarifying the correlation between surface area and hunting potential . The calculation comprises a period of DATE without taking into account the substantial reduction in the area of the base in DATE and the general limitation of the indemnification period . These calculation factors relate to an DATE compensation figure of DKK CARDINAL , the sum which was granted when the weather station in PERSON was established in DATE and whose basis remains unknown . The alternative claim in the amount of MONEY is mainly based on a presumed increase in costs owing to the longer distances required for hunting , without taking into account the fact that , according to the PERSON report , it was not a general rule that the distances to the most significant hunting grounds increased . The adaptation of the species in question to the changed conditions has not been taken into consideration . The number of hunters included in the calculation DATE of the original plaintiffs – is not consistent with the number of hunters affected by the interventions .

ORG agrees , on the whole , with ORG assessment of the facts to be considered when determining the amount of compensation , such as the character of the confiscated hunting grounds , the distances to the most significant hunting grounds , general developments in the patterns of the species concerned – especially the decrease in the fox population and the increase in the narwhal population DATE and the limitation of the period to be included in the assessment .

From an overall assessment the ORG finds no grounds for increasing the compensation of DKK CARDINAL set by ORG .

For the reasons stated by ORG , no separate compensation for the church should be granted .

ORG therefore accepts the request by ORG to uphold ORG CARDINAL .

Individual claims ( Claim CARDINAL )

The appellants concerned by this claim are members of ORG who were affected by the relocation in DATE or their heirs . They have repeated their claim for compensation of DKK CARDINAL each .

As was stated by ORG in section CARDINAL , the inhabitants of ORG are deemed to have received full compensation for giving up their houses in ORG when they were granted substitute housing . Having been supplied with free goods and equipment from the store , they are further deemed to have received full compensation for special expenses incurred as a result of the relocation .

Thus , the claims under LAW relate solely to compensation for the injury that the persons in question suffered owing to the circumstances of their relocation .

Before ORG , ORG has admitted that the relocation of the population of ORG , as described by ORG in section CARDINAL , was decided and carried out in a way and under circumstances that constituted a serious interference and unlawful conduct towards the population of ORG . Against this background , ORG has accepted the amounts of compensation determined by ORG .

In assessing the awards of compensation to be granted , ORG endorses ORG statements in section CARDINAL concerning the matters that have to be taken into consideration . ORG also agrees that weight should be attached to the population ’s age at the time of the relocation as outlined by ORG , so that persons aged DATE or more at the time of relocation are granted a larger amount of compensation than those who were younger , and persons who were DATE receive no compensation .

ORG finds no grounds for increasing the compensation awarded by ORG . The request by ORG to uphold Claim CARDINAL is therefore to be complied with .

... Thus , ORG upholds entirely ORG judgment .

None of the parties are to pay costs for the proceedings before ORG to the other party or to the ORG . ”

On DATE ORG decided on the fee to be awarded the applicant ’s counsel . The latter had submitted that since the lodging of the appeal with ORG he had spent TIME on the case . ORG found such an amount of TIME to be excessive and granted counsel a legal fee in the amount of DKK CARDINAL plus VAT ( equivalent to approximately EUR CARDINAL plus VAT ) in addition to compensation for costs and expenses incurred in the amount of ORG CARDINAL .

LAW of DATE ensured , among other things , the inviolability of one ’s dwelling and the right of property ( Article CARDINAL ) . On DATE a revised LAW was passed . LAW provides that LAW applies to all parts of ORG . GPE ’s colonial status was thus ended through full integration into LOC . The LAW secured the GPE population CARDINAL out of the CARDINAL seats in ORG ( PERSON ) . By virtue of its general scope of application , the LAW put the GPE population on an equal footing with the NORP and the NORP as NORP citizens .

The new LAW reads , in as far as relevant :

“ The dwelling shall be inviolable . ORG searches , seizures , and the examination of letters and other papers , and any breach of the secrecy to be observed in postal , telegraphic and telephone matters , shall take place only by judicial order unless particular exception is warranted by statute . ”

“ CARDINAL . The right of property shall be inviolable . No person shall be ordered to surrender his property except where required by the public weal . This may be done only as provided by statute and subject to full compensation .

Where a LAW relating to the expropriation of property has been passed , CARDINAL of the Members of ORG may , within DATE from the final passing of the PERSON , request that it should not be submitted for ORG until new elections to ORG have been held and the PERSON has been passed again by the ORG assembling thereafter .

Any question concerning the legality of an act of expropriation and the amount of compensation may be raised before the courts of justice . The examination of issues relating to the amount of compensation may be referred by statute to courts of justice established for that purpose . ”

ORG of the Charter of ORG of DATE ( Declaration regarding non - self - governing territories ) reads as follows :

“ Members of ORG which have or assume responsibilities for the administration of territories whose peoples have not yet attained a full measure of self - government recognize the principle that the interests of the inhabitants of these territories are paramount , and accept as a sacred trust the obligation to promote to the utmost , within the system of international peace and security established by the present LAW , the well - being of the inhabitants of these territories , and , to this end :

a. to ensure , with due respect for the culture of the peoples concerned , their political , economic , social , and educational advancement , their just treatment , and their protection against abuses ;

b. to develop self - government , to take due account of the political aspirations of the peoples , and to assist them in the progressive development of their free political institutions , according to the particular circumstances of each territory and its peoples and their varying stages of advancement ;

c. to further international peace and security ;

d. to promote constructive measures of development , to encourage research , and to co - operate with one another and , when and where appropriate , with specialized international bodies with a view to the practical achievement of the social , economic , and scientific purposes set forth in this LAW ; and

e. to transmit regularly to the Secretary - General for information purposes , subject to such limitation as security and constitutional considerations may require , statistical and other information of a technical nature relating to economic , social , and educational conditions in the territories for which they are respectively responsible other than those territories to which Chapters PERSON and PERSON apply . ”

“ Members of ORG also agree that their policy in respect of the territories to which this LAW applies , no less than in respect of their metropolitan areas , must be based on the general principle of good - neighborliness , due account being taken of the interests and well - being of the rest of the world , in social , economic , and commercial matters . ”

By Resolution CARDINAL ( ORG ) ORG on DATE approved the constitutional integration of GPE into LOC and deleted GPE from the list of non - self - governing territories .

LAW ( No . CARDINAL ) concerning ORG was adopted on DATE and entered into force on CARDINAL DATE . With regard to GPE , the Convention was ratified in DATE and became operative on DATE . It applies to the indigenous population in GPE and ratification was encouraged by ORG of GPE , amounting to a declaration that LAW for GPE fulfils the obligations of the Convention . It reads , in so far as relevant :

“ CARDINAL . This Convention applies to :

( a ) NORP peoples in independent countries whose social , cultural and economic conditions distinguish them from other sections of the national community , and whose status is regulated wholly or partially by their own customs or traditions or by special laws or regulations ;

( b ) NORP in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country , or a geographical region to which the country belongs , at the time of conquest or colonisation or the establishment of present ORG boundaries and who , irrespective of their legal status , retain some or all of their own social , economic , cultural and political institutions . ”

“ The peoples concerned shall be safeguarded against the abuse of their rights and shall be able to take legal proceedings , either individually or through their representative bodies , for the effective protection of these rights . Measures shall be taken to ensure that members of these peoples can understand and be understood in legal proceedings , where necessary through the provision of interpretation or by other effective means . ”

“ CARDINAL . In applying the provisions of this Part of the Convention governments shall respect the special importance for the cultures and spiritual values of the peoples concerned of their relationship with the lands or territories , or both as applicable , which they occupy or otherwise use , and in particular the collective aspects of this relationship .

The use of the term ‘ lands’ in ORG CARDINAL and CARDINAL shall include the concept of territories , which covers the total environment of the areas which the peoples concerned occupy or otherwise use . ”

“ CARDINAL . The rights of ownership and possession of the peoples concerned over the lands which they traditionally occupy shall be recognised . In addition , measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them , but to which they have traditionally had access for their subsistence and traditional activities . Particular attention shall be paid to the situation of nomadic peoples and shifting cultivators in this respect .

Governments shall take steps as necessary to identify the lands which the peoples concerned traditionally occupy , and to guarantee effective protection of their rights of ownership and possession .

Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned . ”

“ CARDINAL . Subject to the following paragraphs of this LAW , the peoples concerned shall not be removed from the lands which they occupy .

Where the relocation of these peoples is considered necessary as an exceptional measure , such relocation shall take place only with their free and informed consent . Where their consent can not be obtained , such relocation shall take place only following appropriate procedures established by national laws and regulations , including public inquiries where appropriate , which provide the opportunity for effective representation of the peoples concerned .

Whenever possible , these peoples shall have the right to return to their traditional lands , as soon as the grounds for relocation cease to exist .

When such return is not possible , as determined by agreement or , in the absence of such agreement , through appropriate procedures , these peoples shall be provided in all possible cases with lands of quality and legal status at least equal to that of the lands previously occupied by them , suitable to provide for their present needs and future development . Where the peoples concerned express a preference for compensation in money or in kind , they shall be so compensated under appropriate guarantees .

Persons thus relocated shall be fully compensated for any resulting loss or injury . ”


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

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

On DATE the applicant sued a private company before ORG . She claimed that construction works carried out by the defendant in her house resulted in defects and that the defendant should be ordered to repair those defects .

On DATE the judge asked the applicant to submit further information including the address of the defendant as a letter of CARDINAL DATE could not be served on its representatives . The applicant replied on DATE .

On DATE and on DATE the judge asked the defendant to submit comments on the action .

On DATE ORG discontinued the proceedings as the defendant had not been indicated correctly in the action . On DATE the applicant appealed .

ORG unsuccessfully attempted to serve the decision of CARDINAL DATE and the applicant 's appeal against it on the representative of the defendant . On DATE the police informed the court that the representative had moved and that his address was unknown . ORG then unsuccessfully tried to have the above documents delivered at the registered address of the defendant company . The representative of the defendant company appeared at ORG and was served with the documents on DATE . On DATE the case file was transmitted to the ORG .

On DATE ORG quashed ORG decision of DATE . ORG decision was delivered to ORG on DATE .

ORG heard the parties on DATE and on DATE . In the course of DATE the parties submitted further documents at the court 's request .

On DATE the ORG heard witnesses . It then decided to obtain an expert opinion .

An expert was appointed on DATE . The applicant was instructed to pay an advance on the expert 's fees . The expert submitted the opinion on DATE .

On DATE and on DATE ORG urged the applicant to pay an advance on the expert 's fees . On DATE the applicant replied that the bank account number of ORG had not been notified to her . On DATE the applicant paid the sum due after she had received the relevant money transfer document from ORG .

On DATE the case was adjourned as the applicant 's representative did not appear and the applicant was not in a position to comment on the expert opinion as the lawyer had not transmitted it to her .

The applicant submitted her written comments on the expert opinion on DATE .

Following the applicant 's complaint about the conduct of the proceedings the file was sent to ORG on DATE . It was returned to ORG on DATE .

On DATE and on DATE ORG adjourned the case with a view to obtaining further evidence . Such evidence was submitted in the course of DATE .

On DATE the judge requested the defendant to submit additional information .

A hearing was scheduled for DATE . The applicant 's lawyer and a witness informed ORG that they could not appear . The lawyer asked the court to proceed with the case in her absence . On DATE the case was adjourned as the applicant insisted that it be proceeded with only in the presence of her lawyer .

On DATE ORG partly granted the applicant 's action . The judgment was served on the parties on CARDINAL and DATE respectively .

On DATE the applicant appealed against the part of ORG judgment by which her claim had been dismissed . The defendant appealed on DATE .

On DATE the judge instructed the defendant to pay the court fee and to submit another copy of the appeal . The case file was submitted to ORG on DATE .

On DATE the ORG upheld ORG judgment of DATE .

On DATE the applicant complained to ORG about the length of the above proceedings before ORG .

On DATE ORG declared the complaint admissible .

On DATE the Constitutional Court found that the applicant 's right to a hearing within a reasonable time had not been violated . The decision stated that the case was not complex from the legal point of view . However , certain difficulties arose due to the fact that the contract between the applicant and the defendant concerning the repair of the applicant 's house had been concluded orally and that its contents were disputed between the parties . This required extensive evidence to be taken including an expert opinion .

ORG held that the applicant and her representative had contributed to a certain extent to the length of the proceedings in that the lawyer had not transmitted the expert opinion to the applicant who was therefore not able to comment on it at the hearing held on DATE at which her lawyer did not appear . In addition , the case had to be adjourned on DATE as the applicant did not agree that it be proceeded with in the absence of her lawyer . ORG decision also stated that the applicant had paid an advance on the expert 's fees belatedly and that she had not informed ORG in time that she did not have at her disposal the information necessary for paying the fee .

In DATE the applicant was dismissed from her job for political reasons . The final decision on this issue was delivered by ORG on DATE .

The ORG - owned company concerned again employed the applicant as from DATE . The company 's representatives apologised to the applicant for the wrongs which had been caused to her . On DATE the employer issued a certificate to the applicant under LAW ) of LAW .

The applicant sought to obtain compensation for her earlier persecution . She was informed by several authorities including ORG and ORG that her claim for compensation could not be satisfied under the existing law .

On DATE the applicant claimed compensation for lost income from ORG under LAW of DATE . ORG refused to satisfy the claim and the applicant sought redress before ORG .

ORG dismissed the action on DATE . The decision stated that the relevant judicial decisions concerning the applicant 's dismissal had not been quashed in a separate set of proceedings as required by Section CARDINAL ) of LAW , and that that the applicant had no right to compensation under LAW ) of LAW .

On DATE ORG upheld the first instance judgment . The decision stated that in the applicant 's case the Extra - Judicial Rehabilitations Act was a lex specialis with respect to LAW of DATE .

LAW of DATE

The aim of the LAW ( Zákon o mimosúdnych rehabilitáciách , in force as from DATE ) is to redress certain infringements of property and social rights which occurred DATE and DATE . The following provisions are relevant in the present case .

Pursuant to Section CARDINAL(CARDINAL ) , legal actions terminating a person 's contract of employment for reasons of political persecution or in violation of generally recognised human rights and freedoms are to be considered void for the purpose of LAW .

Section CARDINAL(CARDINAL ) provides that the former employer or its successor shall issue , at the request of the person concerned , a certificate that the latter 's contract of employment was terminated for reasons mentioned in Section CARDINAL(CARDINAL ) .

Pursuant to paragraph CARDINAL of LAW , the fact that a legal act is considered as void under LAW neither renews an earlier terminated labour contract nor does it give a right to compensation for lost income or other damage .

Under LAW ) , when the termination of employment is considered void within the meaning of LAW , the period between the termination of the contract of employment and the date when the person concerned acquired a right to an old - age pension or invalidity pension is to be considered as the period of employment for the determination of that person 's social security rights .

State Liability Act of DATE

LAW Act No . TIME on the liability of the ORG for damage caused by a ORG organ 's decision or by its erroneous official action ( “ LAW ” ) provides that the ORG is liable for damage caused by unlawful decisions delivered by a public authority in the context of , inter alia , civil proceedings .

Pursuant to Section CARDINAL(CARDINAL ) , a claim for damages can only be lodged after the decision by which damage was caused has been quashed by the competent authority as being unlawful .


CASE OF HADŽIĆ AND SULJIĆ v. BOSNIA AND HERZEGOVINA

Violation of Art. 5-1;Non-pecuniary damage - award

Lech Garlicki;Nebojša Vučinić;Nicolas Bratza;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

A. The facts concerning Mr Hadžić

The applicant was born in DATE . He is currently serving a prison sentence in FAC .

On DATE the applicant killed CARDINAL people . He was remanded in custody on DATE .

On DATE ORG found the applicant guilty of manslaughter , as well as of possessing a firearm without a licence , and sentenced him to DATE imprisonment . In view of the applicant ’s diminished responsibility at the time the offences were committed , it imposed a concurrent hospital order , pursuant to LAW obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi ) .

On DATE the applicant was placed in FAC .

On DATE ORG increased the prison sentence from CARDINAL to QUANTITY years and upheld the remainder of the first - instance judgment of DATE .

On DATE the applicant lodged his first application with this Court , complaining , among other things , that his detention in FAC was unlawful . On DATE the ORG struck it out of its list of cases following a friendly settlement between the parties ( see PERSON v. GPE and GPE ( dec . ) , no . CARDINAL , DATE ) . The Government undertook as part of that settlement to move all patients held in FAC ( including the applicant ) to an adequate facility by DATE and to pay ex gratia CARDINAL ( ORG ) to the applicant . The applicant , in return , waived any further claims against GPE in respect of the matters giving rise to that application . On DATE the Government paid the amount due , but the applicant continued to be detained in the Psychiatric Annex despite the ORG ’s undertaking mentioned above .

On DATE ORG found a breach of LAW and CARDINAL of the LAW in the applicant ’s case . It held , among other things , that FAC was not an appropriate institution for the detention of mental health patients . It ordered certain general measures , such as the establishment without further delay of an adequate health care institution . Furthermore , it held that those who complained that their detention in FAC was unlawful did not have an effective remedy at their disposal after DATE other than an appeal to ORG itself . The applicant was not awarded any compensation .

On DATE the applicant instituted civil proceedings seeking damages from the ORG for a breach of the right to liberty and security under LAW DATE . He referred to the ORG decision of DATE mentioned above . It would appear that the case is pending before ORG . On DATE the applicant instituted similar proceedings against ORG . It would appear that the case is pending before ORG .

Pursuant to a proposal of ORG , on DATE the ORG established , on the basis of a report prepared by ORG , that the applicant ’s mental condition no longer required his confinement in that ORG . It relied on LAW and LAW ( although they were no longer in force ) . The applicant failed to appeal in due time . On DATE he was transferred from FAC to the general section of FAC pursuant to that decision .

B. The facts concerning Mr PERSON

The applicant was born in DATE .

On DATE the applicant killed his girlfriend . He was remanded in custody on DATE .

On DATE ORG found the applicant guilty of manslaughter and sentenced him to DATE imprisonment . In view of the applicant ’s diminished responsibility at the time of committing the offence , it imposed a concurrent hospital order , pursuant to LAW obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi ) .

On DATE ORG upheld the first - instance judgment of DATE .

At the request of ORG , on DATE the ORG established , on the basis of a report prepared by ORG , that the applicant ’s mental condition no longer required his confinement in that ORG . It relied on LAW and LAW ( although they were no longer in force ) . The applicant did not appeal . On DATE he was transferred from FAC to the general section of FAC in accordance with that decision .

On DATE ORG found a breach of LAW and CARDINAL of the LAW in the applicant ’s case . It held , among other things , that FAC was not an appropriate institution for the detention of mental health patients . The applicant was awarded compensation of MONEY ( BAM , approximately EUR CARDINAL ) .

There are CARDINAL legal regimes applicable to psychiatric detention .

First of all , the relevant civil court can order the compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm ( see sections CARDINAL(CARDINAL ) , PERSON ) and CARDINAL ) of LAW CARDINAL , PERSON o zaštiti osoba sa duševnim smetnjama , published in ORG ( “ OG FBH ” ) no . CARDINAL of DATE , amendments published in OG FBH no . CARDINAL of DATE ) .

Secondly , the relevant criminal court can impose a hospital order ( obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi ) on an offender who , at the time of committing a criminal offence , was suffering from a mental disorder affecting his or her mental responsibility , if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence . However , there is an important difference in this regard between the old and new criminal legislation ( the latter entered into force on DATE ) . While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility ( such as the present applicants ) , it can no longer be imposed against those who have been found not guilty by reason of insanity ( see LAW , Krivični zakon PERSON i ORG , published in OG FBH no . CARDINAL of DATE , amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) . If a hospital order has indeed been imposed on an offender with diminished responsibility , he or she can now apply once a year to have the application of the hospital order discontinued under LAW ( Zakon o krivičnom postupku PERSON i ORG , published in OG FBH no . CARDINAL of DATE , amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of CARDINAL DATE and CARDINAL of DATE ) .

The law of tort is regulated by LAW DATE ( Zakon o obligacionim odnosima , published in Official PERSON of ORG ( “ ORG ” ) no . CARDINAL , amendments published in ORG . CARDINAL/CARDINAL , CARDINAL and CARDINAL , ORG of GPE nos . CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE , and PERSON no . CARDINAL of DATE ) . The main remedy for a tort is an action for damages , but in some cases permanent injunction can be obtained to prevent repetition of the injury ( see sections CARDINAL , CARDINAL and CARDINAL of this Act ) . Section CARDINAL of this Act prescribes , among other things , that a legal person should be liable for the torts committed vis - à - vis a third party by its organs in the course of , or in connection with , the exercise of their functions .

LAW or Punishment provides non - judicial preventive machinery for the protection of individuals deprived of their liberty . It is based on a system of visits by ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( “ the ORG ” ) . The ORG periodically draws up reports on individual GPE , which are strictly confidential . Nevertheless , if a ORG fails to cooperate or refuses to improve the situation in the light of the ORG ’s recommendations , the ORG may decide to make a public statement . The ORG itself may at any time request publication of the ORG ’s report , together with its comments .

The relevant part of the report on the visit to GPE carried out from DATE to CARDINAL DATE reads as follows :

“ CARDINAL . ORG opened as a temporary accommodation for forensic psychiatric patients in DATE . It is the only closed forensic psychiatric unit on the territory of the Federation . With an official capacity of CARDINAL beds , it is located on the first floor of ORG ; at the time of the visit , it was accommodating CARDINAL patients .

All patients were admitted to the LOC following a court order for ‘ mandatory psychiatric treatment and placement in an institution of a closed GPE and had been diagnosed as suffering from chronic psychosis , acute psychotic episodes , alcohol psychoses , epilepsy or organic psycho - syndromes . Most of them had committed homicides / attempted homicides and would stay in the LOC for DATE ( on average ) .

According to the Prison Director , himself a doctor and psychiatrist , ORG is ‘ a huge problem which remains unsolved since CARDINAL’ . The Director explained that ‘ this temporary facility offered conditions which are worse than the conditions for the ordinary prisoners in the other parts of the establishment’ , a situation that he described as ‘ ORG . He stated that , ‘ on principle , ORG should not be located within a high security prison’ .

The delegation was informed that there was unanimous agreement within the psychiatric and prison system , as well as at a political level , that ‘ this group of forensic psychiatric patients required hospital conditions and that the treatment and conditions in LOC were not acceptable’ . The delegation was further informed that ORG had allocated MONEY in DATE to allow relocation of the forensic psychiatric annexe and provision of proper facilities . However , this decision was not implemented , as no municipalities within the Federation were ready to accept such a facility on their territory . At the time of the visit , the situation was still unresolved .

At the final talks held in GPE in DATE , the delegation clearly indicated that ‘ placing mentally disordered patients in CARDINAL-bed , overcrowded dormitories in an essentially custodial environment can no longer be ORG and expressed its support for the initiative taken by the authorities in DATE to finance the renovation and relocation programme aimed at remedying the situation , and involving the health authorities to a much greater extent . The delegation asked to receive within DATE further information on this issue , including realistically achievable objectives to resolve this urgent matter .

On DATE , the authorities provided the following information to the ORG .

After the ORG ’s visit , an expert team was set up under ORG , which carried out an inspection at FAC . Its findings fully confirm the observations of the ORG ’s delegation ( overcrowded dormitories and lack of space in general , lack of nursing staff , no adequate treatment for the patients , very poor hygiene and deficient heating , etc . ) . The expert team came to the conclusion that ‘ conditions for patients [ were ] extremely inhuman and ORG and that measures had to be taken urgently to remedy the situation .

In response to this report , ORG and ORG decided to implement the following urgent measures until a new place is found to relocate the forensic psychiatric institution : improvement of hygiene ; reduction of the number of beds in the dormitories ; drafting of specific house rules for the LOC ; setting up a register on cases of use of force / restraint ; ‘ self - defence’ training for staff .

The ORG welcomes the efforts made by the authorities to solve , on an urgent basis , some serious deficiencies observed during the visit of its delegation and would like to receive updated information on the progress made in this domain .

However , as the authorities themselves acknowledge , this state of affairs can not be prolonged further . The ORG therefore recommends that the authorities provide within DATE a workable strategy to facilitate the relocation of ORG to a site which could offer the potential to remedy the numerous shortcomings observed by the ORG ’s delegation .

In preliminary observations on a visit to GPE carried out from DATE , the ORG noted that although FAC was less crowded than during previous visits , the physical conditions had continued to deteriorate and remained wholly unacceptable for a health care institution .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG ORG , a lawyer practising in GPE .

The applicant was serving a prison sentence in FAC . On DATE he was transferred to another prison in GPE for the purpose of arranging a visit ( Besuchszusammenführung ) . From DATE he was detained as a transit detainee ( PERSON ) in FAC for a period of TIME . During this transit detention he shared a prison cell measuring QUANTITY with CARDINAL other prisoners . The cell was equipped with CARDINAL beds , CARDINAL chairs , CARDINAL tables and CARDINAL wardrobes . An in - cell sink and toilet were screened from view but not otherwise separated . The prisoners were allowed to leave the cell for TIME per day for exercise ( GPE ) . The cell was locked during the night .

At a request lodged by the applicant on DATE ORG ( Landgericht ) found in a decision of DATE that the conditions of the applicant ’s transit detention in FAC had been unlawful since CARDINAL prisoners sharing a cell of QUANTITY that was locked at night and equipped with a toilet only visually separated was in breach of the requirement for the humane accommodation of prisoners .

The applicant subsequently instituted official liability proceedings against ORG ( Land Niedersachsen ) before ORG and requested adequate financial compensation for non - pecuniary damage of QUANTITY . By a judgment of DATE the ORG confirmed that the applicant ’s conditions of detention had been in breach of the requirement for the humane treatment of prisoners . It held that a prison cell designed for accommodating several prisoners had to be equipped with a separate plumbing unit with its own ventilation system , failing which prisoners had to have access to washing facilities or toilets outside the cell , day and TIME . Sanitary facilities in a prison cell that were only visually separated infringed the ORG right to humane treatment .

ORG further found that in the instant case the relevant authorities were responsible for a breach of their official duties under ORG CARDINAL and CARDINAL of LAW ( Bürgerliches Gesetzbuch ) , as well as LAW in conjunction with the pertaining provisions of LAW ) . They should have recognised that the conditions of detention did not comply with the requirements for humane accommodation . While noting the difficulties the Land was facing at that time in respect of the large number of detainees and the limited space for their accommodation , the court found that these did not justify the restriction of the ORG rights as had previously been established by the case - law of ORG ( Bundesverfassungsgericht ) . ORG further held that the violation of the applicant ’s right to human dignity in itself constituted a serious interference with his personal rights ( PERSON ) that could not be remedied other than by financial compensation for non - pecuniary damage and awarded the applicant the compensation he had requested .

Following an appeal lodged by ORG , ORG quashed , by a judgment of DATE , the judgment of ORG and dismissed the applicant ’s claim for financial compensation for non - pecuniary damage . ORG confirmed that the applicant ’’ case - law on LAW in the version applicable at the time and which also applied to the case at hand , it stated that financial compensation for non - pecuniary damage could be refused in the event of minor bodily harm that was not significantly detrimental and did not cause permanent damage to the victim .

In view of the short duration of the applicant ’s transit detention and the fact that there was nothing to establish that he had endured significant or long - term physical or mental suffering , the interference with the applicant ’s rights had not reached a severity that required the award of financial compensation for the purpose of preventing similar violations or granting just satisfaction . Since ORG had found a violation of the applicant ’s right under LAW of LAW , there was no danger of similar infringements of his rights occurring in the future .

Furthermore , it had to be taken into account that the prison ’s transit detention division had been chronically overcrowded during the respective period and a short - term improvement of the situation had not been envisaged owing to financial restrictions . In order to respect the applicant ’s rights under the specific circumstances , the prison authorities would have had to interfere with the rights of other prisoners or would have had to reject his transfer to another prison . This had been organised in his own interest , namely for the purpose of arranging a visit . While these considerations could not justify the breach of the applicant ’s rights , they nevertheless indicated that the degree of the authorities’ fault and the motives for their actions could not be considered to have been of a serious nature .

On DATE ORG dismissed the applicant ’s appeal . It upheld ORG finding that under the particular circumstances of the instant case , pecuniary compensation had not been necessary for granting the applicant adequate legal redress . It pointed out that there was no automatic link between the finding of a violation of LAW of LAW and the granting of financial compensation . In accordance with the established case - law of ORG a prisoner had the right to have the lawfulness of his detention conditions reviewed by the courts irrespective of their duration . The finding of a violation by the domestic courts did not , however , require financial compensation in each case . Depending on the severity and scope of the violation of the right to human dignity in the individual case as well as on the motives and the degree of fault of the acting authorities , sufficient redress could be provided by other means than financial compensation for non - pecuniary damage .

Referring to the ORG ’s case - law , ORG pointed out that within the scope of the LAW it was also recognised that for inhuman or degrading treatment to trigger a right to financial compensation under LAW and CARDINAL of the Convention , it had to reach a minimum level of severity . The assessment of this minimum level was dependent on the circumstances of the individual case such as the duration of the treatment , its physical or psychological effects or the sex , age or state of health of the victim . Furthermore , it had also been established in the ORG ’s case - law that a judgment finding a violation might in itself constitute sufficient just satisfaction for non - pecuniary damage suffered by a victim .

By written submissions dated DATE the applicant lodged a constitutional complaint against the decisions of ORG and ORG arguing , in particular , that without appropriate financial compensation he was being deprived of sufficient redress and satisfaction for the violation of his rights guaranteed by LAW and CARDINAL of the LAW . The protection of human dignity was absolute and could not be subject to a weighting of other interests or legal values . The mere finding of a violation did not have a deterrent effect on the Land and was not an incentive to change the detention conditions in its prisons or prevent a recurrence of similar violations . An infringement of the right to human dignity constituted a serious violation irrespective of the gravity of the interference and thus always required financial compensation .

By a decision of DATE ( file No . CARDINAL BvR CARDINAL/CARDINAL ) ORG declined to consider the applicant ’s constitutional complaint and dismissed his request for legal aid . ORG found that even departing from ORG finding that the conditions of the applicant ’s detention had violated his right to human dignity , ORG finding that there was no automatic link between the finding of a violation of LAW of LAW and the granting of financial compensation under LAW taken in conjunction with LAW did not give rise to any concerns under constitutional law . LAW did not require the granting of a particular kind of compensation but only regulated the relevant authorities’ ’s conclusion – as upheld by ORG – that the applicant had been granted sufficient redress by ORG finding that the conditions of his detention had constituted a violation of LAW did thus not raise any concern from a constitutional law perspective . While it was true that , LAW CARDINAL § CARDINAL of LAW , a violation of human dignity could not be justified by weighing it against other constitutional concerns , this did not concern the possibility of taking into account the severity of the violation in the determination of the kind and amount of compensation to be awarded to the victim .

LAW stipulates that human dignity shall be inviolable and that to respect and protect it shall be the duty of all state authorities .

Under LAW , taken in conjunction with LAW , an individual has the right to be compensated by the ORG for any damage arising from a breach of official duty committed by a public servant . Under Section CARDINAL § CARDINAL of LAW ( in its version in force until DATE and applicable to damage caused before that date ) adequate financial compensation for non - pecuniary damage can only be claimed in the case of injury to the body or health , or in the case of deprivation of liberty .