Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 5-1;Violation of Art. 5-3;No violation of Art. 6-1;Violation of Art. 13;No violation of Art. 13;Non-pecuniary damage - award

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicant was born in DATE and is currently serving a life sentence in FAC no . CARDINAL ( Сокальська виправна колонія № CARDINAL ) .

On DATE policemen attached to ORG ( Комінтернівський РВ ХМУ УМВС PERSON обл. ) , acting on information from an unknown source , arrested and detained the applicant on suspicion of murder and robbery . The applicant stated that he had been arrested DATE , on DATE .

On DATE the applicant was questioned . He indicated that he did not need a lawyer .

On DATE the applicant was transported to GPE , where he was placed in the ORG FAC ( Мінський районний ізолятор тимчасового тримання ) .

On DATE ORG of the LOC of GPE ( ORG району PERSON ) remanded the applicant in custody on the grounds that the applicant could escape and obstruct justice .

On DATE formal charges were brought against the applicant on several counts of murder and attempted murder , attempted murder of police officers on duty , robbery and participation in an organised gang . When questioned on DATE in the presence of his lawyer , the applicant confessed to these charges .

On DATE the ORG of GPE extended the applicant 's pre - trial detention to a maximum of DATE since “ it was necessary to carry out a large scale investigation ” .

On DATE ORG ( hereinafter - “ the ORG ” ) decided to extend the term of his pre - trial detention until DATE given “ the information on the applicant 's personality ” and the gravity of charges .

On DATE the investigator declared the pre - trial investigation complete and granted the applicant and his lawyer access to the case file , which they finished studying on DATE .

On DATE , in the course of a preparatory hearing attended by the applicant and his lawyer , ORG found that the case was not ready for consideration on the merits and decided to remit it to the prosecution for further investigation . It also held that the applicant should remain in pre - trial detention as he could obstruct justice if released .

On DATE , after a hearing attended by the applicant 's lawyer , ORG upheld the decision of DATE on the main points and decided that the applicant should remain in pre - trial detention as he could obstruct justice if released .

On DATE the applicant 's case file arrived from ORG at ORG of the Obolonsky District of GPE ( ORG Оболонського району PERSON ) .

On DATE ORG examined the prosecution 's application to extend the applicant 's pre - trial detention . The applicant 's lawyer was present at this hearing and lodged an unsuccessful request for the release of her client . ORG decided to extend the applicant 's pre - trial detention for up to a maximum of DATE ( according to the relevant legal provisions , at the material time , the terms of pre - trial detention applied only to the periods when the case was being investigated . The time when the case was in the court , when the accused was studying the case - file etc . were not taken into consideration ) . In doing so , the court referred to the complexity of the case , the seriousness of the crimes of which the applicant was accused , his personality and the fact that he could obstruct justice if released .

On DATE the additional investigations were completed and on the following day the applicant and his lawyer were given access to the case file .

On DATE ORG , at the request of ORG of the Obolonsky District of GPE , extended the applicant 's pre - trial detention to a maximum of DATE . It based this decision on the seriousness of the charges .

On DATE ORG of GPE granted the prosecution 's request to extend the applicant 's pre - trial detention until DATE .

On DATE the applicant 's pre - trial detention was extended by ORG until DATE . It took this decision on the basis of the seriousness of the charges brought against him . In this decision , ORG did not deal with the request of the applicant 's lawyer to release her client on medical grounds .

On DATE ORG of GPE dismissed the prosecution 's application for a further extension of the applicant 's pre - trial detention . ORG held that although the accused had been studying the CARDINAL volumes of case materials since DATE and he still had around CARDINAL volumes to study , there was no indication that the accused had deliberately delayed a trial . According to the court , the case materials had not been properly filed ( in CARDINAL volumes there were no lists of documents and pages were numbered in pencil ) . Therefore , ORG concluded that the investigation authorities had failed to properly present case - file materials and there were no grounds for an extension of the applicant 's detention on remand .

On DATE ORG ( ORG ) asked ORG to lodge an application for an extraordinary review of this decision , considering , inter alia , that such decision would allow “ persons who have committed serious offences to avoid isolation from society ” .

On DATE the applicant 's case file was sent to ORG for consideration on the merits .

On DATE CARDINAL judges of ORG lodged an application for extraordinary review ( подання в порядку виключного провадження ) of the decision of DATE .

In the course of a joint session held on DATE which was attended by the prosecutor but not by the applicant or his lawyer , with judge P. acting as judge - rapporteur , the Criminal and Military Boards ( Судова палата з кримінальних справ і PERSON колегія ) of ORG set aside the decision of CARDINAL DATE on the ground that the reasons given for the dismissal of the prosecution 's request to extend the applicant 's detention were insufficient and irrelevant , and ordered a rehearing . In particular , the court held that the investigating officer could not limit the time for studying the case file .

On DATE ORG granted the prosecution 's application for an extension of the applicant 's pre - trial detention until DATE , as the applicant still needed time to study the case file . The court found no reason to release the applicant .

On an unidentified date the case was transferred to the court for consideration of the charges against the applicant .

On DATE ORG found the applicant guilty as charged and sentenced him to life imprisonment . The applicant 's conviction was based on his initial confession statements , an extensive amount of different evidence and statements from CARDINAL witnesses and QUANTITY victims . CARDINAL of his accomplices were also sentenced to different terms of imprisonment . The applicant appealed .

On DATE the CARDINAL ORG judges , including judge P. , upheld this judgment .

On CARDINAL DATE ORG rejected the applicant 's request for review of his case under the extraordinary review procedure .

DATE the applicant instituted proceedings against the judges of ORG complaining of different procedural shortcomings in the course of consideration of his criminal case . All of his complaints and subsequent appeals were rejected since the applicant should have raised these complaints during the examination of his case and not in a separate set of proceedings .

Before his arrest the applicant suffered from limited mobility caused by a multiple fracture of his left thigh which was the result of a gunshot wound . He had a metallic plate fitted , but this became dislodged and caused a deformation of the bone . As a consequence the applicant 's left leg was QUANTITY shorter than his right and he suffered from pains in his left leg . According to a certificate issued by ORG ( PERSON міська лікарня ) on DATE , the applicant received in - patient treatment there DATE and DATE for a left thigh fracture which , according to this certificate , required further surgery and inpatient treatment .

On DATE the applicant was transferred from the police detention facility , where he had been held since DATE , to ORG no . CARDINAL ( ORG слідчий ізолятор № CARDINAL , ( “ GPE no . CARDINAL ” ) ) .

Upon his arrival , the applicant was examined by a doctor . The chest X - ray taken on DATE revealed no abnormalities in the applicant 's lungs .

According to the applicant , from the date of his admission and until DATE he was subjected to a high security regime . In particular , he was only allowed outside his cell when handcuffed and accompanied by CARDINAL guards with a prison dog in attendance . He was also held in a metal cage during his lawyer 's visits and interviews by the investigator .

On DATE the applicant was punished for an unspecified offence with DATE confinement in a punishment cell ( карцер ) . After this punishment he caught a cold , for which , according to the applicant , he received no treatment .

On DATE the applicant 's lawyer requested a surgeon from PERSON no . CARDINAL of GPE of GPE ( ORG № CARDINAL Солом'янського району PERSON ) to give his opinion on the applicant 's orthopaedic problems . The surgeon , having examined the applicant and his medical case file , found that he had sustained a multiple fracture of the left thigh and was suffering pain related to this fracture . He needed further examination by an orthopaedist and in - patient treatment in a specialist hospital . The applicant also required a crutch , orthopaedic shoes and strong painkillers .

In DATE the applicant allegedly started to cough .

On DATE and DATE the applicant was examined by prison doctors and diagnosed as suffering from infiltrative tuberculosis , pleurisy and a compound fracture of the left thigh . On DATE he was moved to the medical wing of GPE no . CARDINAL .

According to the ORG , DATE and DATE the applicant refused to take medication but did not sign any such refusal .

In a letter of CARDINAL DATE the Head of ORG ( PERSON департамент виконання покарань ) stated that the applicant had been placed to a punishment cell for DATE and subjected to a high security regime ; he was able to walk without a crutch and had refused medical assistance for his health problems .

According to a report of DATE signed by the medical officer of ORG and by the GPE doctor , the applicant had not complained about coughing DATE . The applicant had special orthopaedic shoes but , according to the surgeon 's conclusion , needed a crutch and surgery . The applicant 's condition had been satisfactory . He had been prescribed various medications but had only taken one of them as he had wanted to receive medications from home .

In DATE ORG ( GPE науково-дослідний інститут травматології та ортопедії ) issued a certificate according to which the applicant did not need surgery . The certificate was signed by a senior scientist ( старший науковий співробітник ) .

According to the applicant , on DATE he was again punished with DATE detention in a punishment cell . Since the temperature there was lower and humidity higher than in the medical cell , the applicant 's health deteriorated significantly .

The Government submitted that DATE and DATE the applicant again refused to take medication .

In DATE the applicant was examined by the Head of ORG of ORG ( PERSON ортопедії PERSON медичної академії післядипломної освіти ) who , in his opinion of DATE , stated that the applicant 's compound fracture of the left thigh required in - patient treatment in a specialist hospital .

In DATE the applicant 's state of health declined . He had CARDINAL X - rays , and medication was administered directly into the pleural cavity . On DATE the applicant was examined by P. , a professor of phthisiology , who prescribed him further treatment .

In DATE the applicant 's tuberculosis was aggravated by a pyopneumothorax ( accumulation of pus in the pleural cavity ) on account of which he was transferred to ORG and GPE ( NORP фтізіатрії та пульмонології ( hereinafter - “ the Institute ” ) ) on DATE .

On DATE the administration of GPE no . CARDINAL asked the investigator in charge of the applicant 's case to consider the possibility of the releasing the applicant , referring , inter alia , to the fact that his condition required a lengthy period of treatment in a specialist hospital .

On DATE the Prosecutor of the Obolonskiy District of GPE replied that the applicant 's detention had been extended by ORG and that there were no reasons to change this decision .

On DATE the applicant was transferred from the Institute to ORG no . CARDINAL . According to the applicant , because his treatment at the ORG had not been finished , he had still had tubes in his lungs for draining pus and further antibiotic treatment when he was transferred . He had received no such treatment in the GPE and since the place where the tubes were inserted had become infected , the applicant had removed them himself .

According to a letter , written in reply to a request for information made by the applicant 's lawyer on DATE and signed by the ORG 's head doctor , the head of the relevant department and the treating doctor at the ORG , the applicant 's treatment had consisted of pleural drainage and the administration of antibiotics , carried out in parallel with intensive anti - tuberculosis treatment . It was necessary to continue this treatment in future . The doctors were aware of the applicant 's orthopaedic problems , which aggravated his general condition , but this had not affected his treatment for tuberculosis .

On DATE the applicant 's lawyer requested that medical evidence be obtained in order to assess the applicant 's fitness for detention in GPE no . CARDINAL .

In a report of DATE a panel of CARDINAL experts from ORG ( LOC судово-медичної експертизи ORG охорони здоров'я та медичного забезпечення PERSON міської державної адміністрації ) established that the applicant had sustained a compound fracture of the left thigh which had resulted in a substantial deformation of his left leg , causing limited mobility and considerable pain . The continued failure of the prison authorities to address this condition and his consequent reduced immunity may have been the reason why the applicant had contracted tuberculosis . The experts found that the applicant required specialist in - patient treatment , which could not be provided in the medical unit of GPE no . CARDINAL .

On DATE the doctor of the Traumatology and ORG of ORG ( NORP травматології та ортопедії GPE медичних наук GPE ) concluded that the applicant “ could not have surgery on his left thigh ” .

DATE and DATE the applicant had CARDINAL chest Xrays and was twice examined by professor of phthisiology P.

On DATE , following an enquiry from the court , the PERSON administration issued a certificate stating that the applicant was suffering from chronic tuberculosis and other diseases but that his state of health was satisfactory and he could take part in court hearings .

On DATE the applicant instituted proceedings in the ORG of GPE against the head of GPE no . CARDINAL and the head of its medical ward seeking his transfer to a specialised hospital and complaining that the information provided in the certificate of CARDINAL DATE had not been true .

On DATE the court rejected the applicant 's complaints . In particular , the court found that the certificate in question had been accepted by ORG and included in the applicant 's criminal case file , therefore , there were no reasons to question its veracity . The court further found that the applicant had received the necessary medical treatment in the GPE . This decision was not appealed against by the applicant .

According to the ORG , the applicant refused to undergo medical tests on CARDINAL occasions DATE . The relevant refusals were signed by the GPE doctors but not by the applicant .

On DATE the applicant was diagnosed with pleuropneumonia cirrhosis of the right lung , having been cured of cirrhotic tuberculosis .

On DATE , after the applicant 's conviction had been upheld on appeal by ORG , he was transferred from GPE no . CARDINAL to ORG no . CARDINAL ( Замкова ВК-CARDINAL ) to serve his prison sentence .

On an unspecified date the applicant was further transferred to ORG no . CARDINAL ( FAC ) .

On DATE the applicant underwent surgery on his left leg .

According to the documents further submitted by the applicant 's lawyers ( letters from ORG for ORG and from ORG no . CARDINAL ) , he is still suffering from fibrocaseous tuberculosis of the right lung .

The relevant provisions of LAW read as follows :

“ Human and citizens ' rights and freedoms are protected by the courts .

Everyone is guaranteed the right to challenge in court the decisions , actions or omissions of ORG authorities , local authorities , officials and officers . ...

Everyone has the right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”

DATE . In accordance with LAW , decisions of the judge of ORG of GPE on detention on remand are not subject to appeal .

Other relevant provisions of the Code are summarised in the judgments of GPE v. GPE ( no . CARDINAL/CARDINAL , § DATE ( extracts ) ) , and PERSON and PERSON v. GPE ( nos . CARDINAL and GPE , § MONEY , DATE ) ) .

On DATE changes were introduced to Articles CARDINAL and CARDINAL of the Code . According to these new rules , access to the case file should be provided to the detained defendant DATE before the expiry of the authorised term of detention . If DATE proves insufficient for the defendant to familiarise him or herself with the case file , the investigator can lodge an application with the relevant court of appeal , pre - approved by ORG , for an extension of the term of the defendant 's detention . The time in which the defendant and his or her lawyer familiarise themselves with the case file can not be limited .

In so far as tuberculosis is concerned , ORG report on its visit to GPE in DATE ( ORG ( DATE ) CARDINAL ) reads as follows :

“ CARDINAL . The delegation 's observations in relation to tuberculosis are a source of great concern . There were often considerable delays in screening for tuberculosis . [ ... ]

Further , it recommends that the NORP authorities ensure :

- the early and effective screening for tuberculosis of all persons detained by the ORG ;

- the provision of uninterrupted treatment for persons already receiving anti - tuberculosis drugs at the time of apprehension . ”

Other relevant international reports and other materials concerning the treatment of tuberculosis in NORP penitentiary establishments can be found in the judgment of DATE in the case of ORG v. GPE , ( no . GPE , § § CARDINAL - CARDINAL ) and in the judgment of CARDINAL DATE in the case of GPE v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL ) .


Ineta Ziemele;Ján Šikuta;Kristina Pardalos

The details as to the subject matter of the cases , reference dates for the start and end of the proceedings and the length of the proceedings are set out in the table appended hereto .


Preliminary objection joined to merits (non-exhaustion of domestic remedies);Preliminary objection rejected (non-exhaustion of domestic remedies);Violation of Art. 8;Violation of Art. 13;Not necessary to examine Art. 6-3-b;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses - claim dismissed

On DATE Mr PERSON was arrested on suspicion of having taken part in the activities of the terrorist organisation known as ORG " and immediately taken into custody . He was convicted on TIME occasions DATE and DATE , the heaviest sentences he received being those imposed in ORG on DATE ( DATE imprisonment and a fine of MONEY ) and by ORG on DATE ( life imprisonment ) . Since DATE the applicant , pursuant to an aggregation of sentences ordered on DATE by ORG of Cagliari , has been serving the sentence of life imprisonment and has at the same time been , among other things , permanently disqualified from holding public office , stripped of his civic rights for the duration of his prison sentence and removed from parental control .

On DATE CARDINAL the judge responsible for the execution of sentences ( magistrato di sorveglianza ) in GPE di GPE decided that PERSON correspondence - the applicant then being in custody in ORG - should be subject to censorship under CARDINAL of PERSON no . CARDINAL of DATE ( see paragraph CARDINAL below ) . The grounds given for the decision were : the nature of the applicant 's offences ; the fact that he belonged to a special category of prisoner whose attitude was CARDINAL of total opposition to the institutions of the ORG ; his conduct ; and his rejection of prison and refusal of any cooperation with prison staff .

On an unspecified date the applicant was transferred to ORG .

On DATE the judge responsible for the execution of sentences at ORG ordered that all the applicant 's correspondence , both incoming and outgoing , should be subject to censorship for DATE from DATE , the date on which the prisoner was notified of the decision . He considered that the reasons which had prompted his counterpart in GPE di GPE to take such a measure ( see paragraph CARDINAL above ) remained valid and that there was a continuing danger that the applicant would use his correspondence to commit offences or to prejudice public order or safety . At that time Mr PERSON already had CARDINAL convictions , and CARDINAL other sets of criminal proceedings were pending against him . The first of these , in ORG of Appeal , related to charges of kidnapping , manufacture , possessing and carrying explosives , aggravated destruction of property and resisting arrest ; they ended in a judgment of CARDINAL DATE , which became final on DATE and in which the applicant was convicted and sentenced to DATE imprisonment and permanently disqualified from holding public office . The second set of proceedings , which were pending before the Novara ORG ( pretore ) , originated in a prosecution brought following an escape by the applicant on DATE ; PERSON had been recaptured on DATE .

It is not contested that the following letters were inspected :

( a ) a letter of CARDINAL DATE from the applicant to his lawyer ;

( b ) a registered letter of DATE to the applicant from his lawyer ;

( c ) a letter of DATE from the applicant to his lawyer ;

( d ) a letter of DATE from the applicant to his lawyer ;

( e ) a registered letter of CARDINAL DATE to the applicant from his lawyer , enclosing a form for lodging an application with the ORG ; and

( f ) a letter of CARDINAL DATE from the applicant to his lawyer , enclosing the Commission application form signed by the applicant on DATE , each page bearing the censor 's stamp .

Mr PERSON made several applications challenging the monitoring of his correspondence . In particular , he lodged an application ( richiesta di riesame ) with the PERSON judge responsible for the execution of sentences to reconsider his decision of DATE ( see paragraph CARDINAL above ) . The judge refused the application on DATE . On CARDINAL DATE the applicant sent a copy of the judge 's decisions to his lawyer . On DATE the lawyer sought to have the censorship of his correspondence with the applicant ended and the order of CARDINAL DATE ( see paragraph CARDINAL above ) rescinded . Relying on Articles CARDINAL para . CARDINAL ( b ) and CARDINAL of the Convention ( article CARDINAL - CARDINAL-b , article CARDINAL) , he argued , among other things , that the censorship was a manifest violation of the rights of the defence and could not be ordered on the basis of a similar decision taken by another judge DATE or on the basis of considerations relating to the applicant 's conduct in another prison , especially as the applicant was receiving more lenient treatment in FAC .

On DATE the judge responsible for the execution of sentences held that the measure in issue was wholly justified , having regard to the arguments already set out in his decision of CARDINAL DATE , to disciplinary reports on PERSON and to the fact that while in custody in ORG the applicant had been a member of a group of prisoners all of whom belonged to extreme - left - wing subversive movements . He nevertheless decided to adjourn the lawyer 's application and submit a question concerning the interpretation of the relevant law to ORG ( Direzione generale degli Istituti di prevenzione e pena ) , relating to whether the monitoring of the applicant 's correspondence with his lawyer was lawful , given that CARDINAL sets of criminal proceedings against the applicant were still pending at the time . The applicant 's correspondence nevertheless continued to be monitored while a reply from the relevant authority was awaited .

On CARDINAL DATE the judge , in reply to a letter sent him by the defence lawyer on DATE , again confirmed his decision of CARDINAL DATE .

ORG replied on DATE . In its opinion , censorship of a prisoner 's correspondence , provided that all the legal requirements were satisfied , covered all his correspondence , including that with his lawyer , and could not be regarded as infringing the rights of the defence , which were guaranteed by LAW . The confidentiality of communications between a prisoner charged with a criminal offence and his lawyer was preserved through the possibility of communication during private conversations inside the prison . On DATE the judge responsible for the execution of sentences refused the lawyer 's application of CARDINAL DATE .

The measure in issue ended automatically on DATE , on the expiry of the period specified in the decision ( see paragraph CARDINAL above ) .

On DATE the applicant was transferred to the special prison at ORG ) . Since DATE he has enjoyed a semi - custodial regime .

LAW no . CARDINAL of DATE ( " Law no . CARDINAL " ) , as amended by LAW no . CARDINAL of DATE , provides that power in the matter of censorship of prisoners ' correspondence vests in the judge dealing with the case - whether an investigating judge or a trial judge - up to the decision at first instance and in the judge responsible for the execution of sentences thereafter . The judge may order censorship of a prisoner 's correspondence in a reasoned decision ; this provision , however , does not specify the cases in which such a decision may be taken .

The censorship of which the applicant complains consists , in particular , in all mail being intercepted and read by either the judicial authority that has ordered the censorship or the prison governor or prison staff designated by him , and in the stamping of letters for the purpose of showing that they have been inspected . Censorship can not extend to deleting words or sentences , but the judicial authority can order that CARDINAL or more letters shall not be handed over ; in that case , the prisoner must immediately be informed of the fact . This latter measure can also be ordered temporarily by the prison governor , who must , however , notify the judicial authority of his action .

LAW forbids the seizure or any form of control of the correspondence between a prisoner and his lawyer , provided that the correspondence is recognisable as such and unless the judicial authority has well - founded reasons to believe that the correspondence constitutes the substance of the offence . Similarly , by LAW transitional provisions of LAW , the rules on the censorship of a prisoner 's correspondence that are laid down in PERSON no . CARDINAL and Presidential Decree no . CARDINAL of DATE do not apply to correspondence between the prisoner and his lawyer . It follows , among other things , that the only authority that may order censorship of that correspondence , and then solely in the case mentioned above , is the judge or court dealing with the case .

ORG has held on several occasions that the monitoring of a prisoner 's correspondence is an administrative act and has also stated that NORP law does not provide any remedies in respect of it ; in particular , censorship can not be the subject of an appeal on points of law , since it does not affect the prisoner 's personal freedom ( Court of Cassation , judgments ORG . CARDINAL and DATE of DATE and CARDINAL DATE respectively ) .


Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

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

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

On DATE , the applicant received a letter from ORG asking him to provide information about who was driving his car on DATE when it failed to comply with the speed limit . The letter also stated that the police intended to prosecute the driver and that failing to supply information as to the driver was a criminal offence under section CARDINAL of LAW DATE .

The applicant replied that he was responding under duress and that he was the driver .

On DATE , before ORG , the applicant pleaded not guilty to the speeding offence and the prosecution sought to rely on his admission . The Magistrates rejected the applicant ’s arguments that the use of the confession violated the Convention . He was convicted of speeding and fined GBP CARDINAL , with GBP CARDINAL costs and CARDINAL penalty points endorsed on his licence .

The relevant domestic law and practice is set out in O’Halloran and PERSON the GPE [ ORG ] , ORG . ORG , § § DATE , ORG DATE ...


Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza;Vincent A. De Gaetano

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

On DATE the applicant was imprisoned in FAC . Subsequently , he was many times transferred between prisons in Włodawa , PERSON , PERSON , PERSON and PERSON .

On DATE the applicant was released from ORG as he had been granted a leave on compassionate grounds .

On DATE the applicant resumed serving his prison sentence . He is currently detained in FAC .

The applicant submitted that practically all prisons in which he had been detained from DATE or DATE onwards had been overcrowded . By way of an example , he submitted that in DATE he had been detained in a prison cell with a living space of TIME . CARDINAL m² per inmate . He moreover asserted that on CARDINAL occasion , for DATE , he was forced to sleep on a mattress on the cell floor . The overcrowding had resulted in tension and conflict among the detainees as well as in the progressive deterioration of the prison ’s sanitary conditions .

The applicant further submitted that from DATE and over DATE , he had been detained together with smokers , despite his being a non - smoker . The cells in which he had been detained had no proper ventilation .

As regards the applicant ’s detention in FAC , the Government pointed out that prior to DATE the prison authorities had not been storing information as to the exact number of prisoners detained in each cell on specific dates . They further submitted that , to their general knowledge , the problem of overcrowding had not existed in FAC prior to DATE . The Government acknowledged that from DATE until DATE the applicant had been temporarily placed in cells with a living space ranging from QUANTITY per prisoner . The total time in which the applicant was imprisoned in cells of CARDINAL m² per prisoner amounted to DATE .

The Government explained that during his entire stay in FAC the applicant had been detained only in non - smoking cells .

As for the applicant ’s detention in prisons in PERSON and in PERSON , the Government acknowledged that both these penitentiary centres had been permanently overcrowded at the relevant time . The applicant had been imprisoned in cells of CARDINAL m² per prisoner for an overall period of CARDINAL days . On CARDINAL occasion , due to lack of space , the applicant was required to sleep on a double mattress on the cell floor for DATE . During an unspecified time the applicant was detained together with smokers , but he never complained to the authorities about this fact .

In FAC the applicant was incarcerated in cells with a living space ranging from QUANTITY per prisoner . The total period during which he was detained in cells of CARDINAL m² per prisoner amounted to DATE . The ORG explained that in FAC the applicant had been serving his sentence in a semi - open ward where cells remained open during DATE . Moreover , from DATE to DATE DATE he had been allowed to take a bath on a DATE basis . Lastly , they submitted that , on CARDINAL occasions , the applicant had been granted a temporary , accompanied release from prison . He was also granted leave to attend his father ’s funeral without being accompanied by a prison officer .

More recently , the applicant submitted that the living conditions in FAC were inadequate and that he was detained together with CARDINAL other inmates in cell no . CARDINAL which was designed for CARDINAL persons .

The applicant informed the ORG that on unspecified dates in DATE and DATE he brought several civil actions against prisons in PERSON , PERSON and PERSON for the infringement of his personal rights . He briefly informed the ORG that his claims had been unsuccessful but failed to provide details about the exact course or the outcome of any of the proceedings .

The Government submitted that the applicant ’s civil action against ORG had been dismissed by a decision of the first - instance court against which the applicant did not appeal . CARDINAL other civil actions which the applicant had attempted to institute before ORG ( PERSON ) were all rejected for failure to comply with the prescribed procedural requirements .

The Government further submitted that the applicant had instituted another civil action before ORG ( PERSON ) . These proceedings were currently pending . The applicant did not contest the foregoing statements .

A detailed description of the relevant domestic law and practice concerning general rules governing conditions of detention in GPE and domestic remedies available to detainees alleging that the conditions of their detention were inadequate are set out in the ORG ’s pilot judgments given in the cases of PERSON v. GPE ( no . CARDINAL ) and PERSON v. GPE ( no . CARDINAL/CARDINAL ) on DATE ( see § § DATE and § § CARDINAL respectively ) . More recent developments are described in the ORG ’s decision in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL ) on CARDINAL DATE ( see LAW § DATE ) .


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

The applicants , Mr PERSON , Mr PERSON and Mr PERSON are NORP nationals who were born in DATE respectively and live in PERSON . They were represented before the ORG by PERSON , a lawyer practising in ORG . ORG ( “ the Government ” ) were represented by their Agent , PERSON Wołąsiewicz .

In DATE the applicants agreed with the local branch of the ORG - run electricity supply company ( “ the company ” ) that they would finance and build on their land an electricity installation connecting their properties to the general electricity network operated by that company ( high voltage transformer and cables ) . They had such an installation built and financed it from their own resources , paying PLZ CARDINAL in pre - denomination currency – the equivalent of ORG ( approximately EUR CARDINAL DATE ) .

In DATE , when the installation was ready , a disagreement arose between the applicants and the electricity supply company as to the reimbursement of the costs the applicants had incurred . The company refused to reimburse the costs . As a result , the installation became operational and the company took it over , connected it to the electricity network and started normal exploitation . In DATE the applicants refused to sign documents confirming that ownership of the high - voltage transformer , the essential part of the installation , had been taken over by the company ex lege . They only signed documents confirming the transfer of ownership of the cables to the company . In DATE they submitted a letter to the company informing it that they refused to acknowledge the transfer of ownership .

In DATE , from DATE at the earliest , the company connected CARDINAL new electricity users to the network built by the applicants ( after the applicants had sold their land to these persons on unspecified dates ) , charged each of them for this service and for a part of the costs borne in connection with building the installation and operated the service normally , providing electricity to them at normal prices , using the installation built by the applicants .

The applicants apparently repeatedly tried to obtain reimbursement of the costs they had incurred in the amount of ORG CARDINAL , but received oral refusals . In DATE the applicants requested the company in writing to reimburse the costs of the construction they had borne in DATE as well as the amounts the company had charged the CARDINAL users for connecting them to the network . They claimed ORG CARDINAL ( approximately ORG CARDINAL DATE ) . The company refused , stating that ownership of the network had been transferred to it in DATE .

In a letter of DATE the ORG , in reply to the ORG request to intervene in their case , informed them that their case was of a civil - law character and could , as such , be pursued before the civil courts . The ORG also summarised a judgment of ORG of DATE ( see Relevant domestic law below ) and emphasised that after this judgment had been given , ORG had repeatedly stated in its judgments that the practice of the ORG - run electricity supply company amounted to an abuse of a dominant market position . The applicants were also informed that there had been judgments of ORG to the effect that in cases in which contracts concluded as a result of an abuse of a dominant market position were declared null and void , wronged consumers could claim unjust enrichment under the provisions of LAW on liability in tort .

In DATE the applicants lodged an action against the company with ORG . They sought payment of ORG CARDINAL ( EUR CARDINAL ) , seeking a judgment on the principle of their claim , and argued that they had never given their agreement to the company taking over ownership and using the installation which they had built and financed themselves .

On DATE the court dismissed the claim . It established that the applicants had built the installation and financed the building works from their own resources on the basis of technical documentation given to them by the electricity supply company . Upon completion of the installation they had refused to sign a document confirming the transfer of ownership of the main part of the installation to the company .

The court further noted that at the relevant time , the DATE LAW had been in force . The principles governing the settlement of any accounts between the ORG - run electricity supply company and landowners who had financed the construction of installations necessary to connect their properties to the electricity network were provided for in a DATE Ordinance . LAW provided that all electricity installations were the property of the ORG . Consequently , this LAW allowed for all the costs arising from the construction of electricity installations to be borne by individual owners , without any corresponding obligation on the part of the electricity company to reimburse them . Hence , the applicants were to bear these costs . At the time of the construction they had been aware of this as the position of the company had been set out in technical documents which they had received from the company .

The applicants appealed , submitting that the defendant company had enriched itself at their expense since it had acquired ownership of the installation and had been exploiting it without having to compensate them in return .

The appellate court upheld the judgment by a decision of DATE . It observed that the first - instance court had correctly found that the applicants had been aware that under the DATE Ordinance the connection of the installation to the electricity network had depended on the transfer of ownership of the installation to the company . However , the lower court had erred in law in that it had overlooked a judgment of ORG given in DATE . In that judgment that court had observed that the DATE Ordinance could no longer be applied after LAW had entered into force , because it had been passed ultra vires on the basis of the DATE LAW . Hence , the DATE Ordinance could not constitute the legal basis for the automatic transfer of ownership of the electricity installation to the electricity company . ORG had indicated that the provisions of LAW should apply to such a situation .

In that connection , ORG observed that under LAW , electricity supply facilities did not constitute parts of land or a building if they were a part of an enterprise , including an electricity supply enterprise . Hence , such installations were not to be considered part of the applicants’ property and were to become the property of the defendant company .

On the other hand , the provisions of LAW on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the applicants’ situation . This was because at the time when the applicants had borne the expenditure for the construction of the electricity installation , they had been the owners of the properties concerned . Hence , they were not users within the meaning of the relevant provisions of LAW : they had incurred expenditure on their own property , not somebody else ’s and , consequently , had no claim to reimbursement .

The court finally observed that the applicants had known , when they incurred the expenditure for the construction of the electricity supply installation in DATE , that under the laws applicable at that time ownership of the installation would eventually be transferred to the electricity supply company . Hence , the company could not be said to have obtained unjust enrichment at the expense of the applicants . Further , it was the company which was obliged to operate and maintain these installations . Accordingly , it was fair that the company should take over their ownership .

On DATE LAW entered into force . Article CARDINAL introduced the legal protection of private ownership . It reads :

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

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

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

Under LAW , public authorities shall protect consumers , customers , lessors or lessees against activities threatening their health , privacy and safety , as well as against dishonest market practices . The scope of such protection shall be specified by statute .

In DATE the ORG requested ORG to issue a binding interpretation of section CARDINAL of the DATE LAW in so far as it empowered ORG to issue ordinances concerning the technical conditions on which individually built and financed electricity supply installations could be connected to the general electricity supply network . At that time , the LAW adopted in DATE was in force .

In a resolution of CARDINAL DATE ( W CARDINAL/CARDINAL ) ORG observed that the DATE Ordinance , including LAW passed on the basis of LAW , could no longer be applied after LAW had entered into force . It further noted that in any event the ordinance had been passed ultra vires on the basis of the DATE LAW .

The court observed further that relations between the electricity supply company and owners of property were to be considered in the light of LAW . As to the ownership of electricity supply installations situated on individual properties , LAW made it clear that they did not constitute a part of such properties if they were a part of an enterprise , including an electricity supply enterprise . Hence , such installations were to become the property of that enterprise .

Further , the provisions of LAW on the obligation of an owner of property to reimburse expenditure incurred by a person in possession in order to improve the condition of this property or increase its value were not applicable to the situation of owners who had financed the construction of electricity supply installations . This was so because at the time of the financing and construction of such installations the owners were constructing them on their own properties . Hence , they could not have recourse to claims normally available to persons in possession against owners .

Lastly , the court considered that the civil - law provisions on unjust enrichment could not be applied to the settlement of accounts between the owners and the electricity supply company . Owners who built and financed electricity supply installations on their properties knew and accepted in advance that after these installations were connected to the general electricity network they were to become the property of the company .

The court was of the view that such an automatic transfer of ownership to the electricity supply company could not be said to run counter to “ principles of community life ” within the meaning of LAW . This was because the connection of the installations to the electricity supply network was in the interest of owners . Moreover , after the electricity supply company had become the owner of the installations , it was obliged to operate them and to maintain them in proper technical condition ; hence the fact that it had taken them over without being obliged to make any reimbursement was compatible with these principles .

In a number of judgments given after DATE ORG followed the reasoning based on the judgment of ORG and dismissed claims for reimbursement of costs borne by owners to finance electricity supply installations , holding that upon their connection to the network the installation had become the property of the electricity supply company ( I ORG CARDINAL/CARDINAL , DATE , I CKN CARDINAL/CARDINAL , DATE ; resolution III CZP DATE , CARDINAL DATE ) .

However , in a judgment of DATE ( II CKN CARDINAL/CARDINAL ) ORG held that if the recipient of the electricity had financed elements of the installation necessary for the property to be connected to the network , he or she was entitled , on the basis of the provisions of civil law on unjust enrichment , to seek from the electricity company a reimbursement of the costs incurred .

Subsequently , in judgments given in DATE and DATE , ORG held that Article CARDINAL of LAW could not be interpreted to mean that the physical connection of such an installation , financed by a private party , to the electricity supply network automatically entailed a transfer of ownership of that installation to the electricity company ( ORG CARDINAL , CARDINAL DATE ; PERSON CARDINAL/CARDINAL , DATE ; III SK CARDINAL , CARDINAL DATE ; PERSON CARDINAL/CARDINAL , DATE ) .

On DATE ORG gave a resolution ( III CZP CARDINAL/CARDINAL ) purporting to clarify the discrepancies which had arisen in the case - law concerning the relationship between the electricity supply company and owners who had financed electricity supply installations situated on their land . It reiterated the history of the relevant case - law and observed that a transfer of ownership could only originate in legal events , not in factual ones . It observed that the only function of Article CARDINAL of LAW was to establish the limits of operation of the principle superficies solo cedit , not to determine the financial relationship between the owner of the installation and the owner of the electricity network . Hence , the mere fact that an installation was connected to the network operated by the electricity supply company was not , of itself , sufficient to conclude that a transfer of ownership to the company automatically followed . The issue of ownership and of any settlement of accounts between the company and individual owners should be determined by contract , specifically addressing related issues .

In DATE LAW was repealed and replaced by a new LAW . No provisions producing the same effect as LAW are currently in force . The question of ownership of electricity supply installations and of the settlement of accounts arising out of the building and financing by private parties of electricity supply installations is now left to the parties , to be freely negotiated between the owners and the ORG - run electricity supply company .

Article CARDINAL of the Civil Code provides that water , electricity , power and similar installations do not constitute a part of land or buildings if they are a part of an enterprise .

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 .


Preliminary objection rejected (non-exhaustion of domestic remedies);Preliminary objection rejected (six month period);Violation of P1-1;Violation of Art. 13;Not necessary to examine Art. 6-1;Not necessary to examine Art. 8;Just satisfaction reserved

In DATE ORG inherited DATE of a tract of land known as the “ PERSON estate ” from his adoptive father . In DATE ORG ’s adoptive mother sold him DATE of the “ GPE estate ” , which she had inherited from her husband . The contract of sale gave the surface area of the “ PERSON estate ” as QUANTITY . m.

In DATE , having obtained the necessary permit from the authorities , ORG built an open - air cinema – the “ NORP ” cinema DATE on part of this land .

In DATE the Minister of Agriculture refused to recognise ORG as owner of the whole “ PERSON estate ” , taking the view that ORG ’s adoptive father had owned only part of the land , namely an area of CARDINAL sq . m , which did not include the part on which the “ NORP ” cinema had later been built . The rest of the area was public forest and was not included in the title deeds submitted by ORG Thereupon K.N applied to ORG to set aside the decision of the Minister of Agriculture but his application was dismissed . On DATE a royal decree designated the area in dispute as land to be reafforested . ORG applied to ORG to set aside the royal decree but the court dismissed the application , holding that the disputed area was forest land belonging to the ORG .

By means of ORG decisions of CARDINAL DATE and DATE , which were published in ORG ) and entered in the NORP municipal register , the ORG transferred a QUANTITY . m area of the “ PERSON estate ” to ORG . This area did not include the land on which the “ NORP ” cinema had been built .

On DATE a royal decree ordering the reafforestation of land in NORP was promulgated . According to the Government , this decree covered an unspecified part of the “ PERSON estate ” . On DATE the decree was amended by a further decree , which was published in ORG .

On DATE ORG brought an action against ORG to establish his title to the land which had been transferred to it . The ORG , as transferor , intervened in the proceedings in favour of the ORG . This action was entered in the NORP mortgage register . In the margin of the relevant page , the subsequent judgments of ORG ( no . CARDINAL/CARDINAL ) and ORG ( no . DATE see paragraph CARDINAL below ) dismissing the action and acknowledging the ORG ’s ownership of the disputed area were noted .

NORP In DATE ORG died and his heirs received an inheritance - tax demand in respect of the land on which the cinema had been built . The ORG took a mortgage on the land as security for the tax debt . The mortgage was paid off in DATE .

K.N. ’s heirs continued the proceedings brought on DATE . On DATE ORG held that the tract of land transferred to ORG belonged to the ORG . In the reasons for its judgment the court agreed with the Minister of Agriculture , holding that ORG ’s adoptive father had owned only a part of the “ PERSON estate ” , which had not included the part on which the “ NORP ” cinema had been built or the part which had been transferred to the ORG . ORG based this conclusion on , inter alia , the fact that in DATE the “ PERSON estate ” had been entered in the national forest register as forest land and that the ORG had since , in good faith , had possession and use of it as owner .

Following a decision taken by the Deputy Minister of Finance on DATE , part of the “ PERSON estate ” , including the part on which the cinema had been built , was entered in the register of ORG property on DATE . On DATE this fact was noted in the NORP mortgage register . In DATE ORG ’s heirs brought proceedings to establish their title to the land that had been entered in the register of ORG property . In DATE ORG Instance dismissed their application on the ground that on DATE ORG had held that ORG ’s adoptive father had owned only a part of the “ PERSON estate ” , covering an area of CARDINAL sq . m. K.N. ’s heirs appealed against that decision .

On DATE ORG held that in its judgment of DATE it had resolved only the matter of ownership of the CARDINAL sq . m which had been transferred to ORG . The other dicta in the grounds of the judgment were not binding on ORG ’s heirs . ORG consequently set aside the DATE decision of ORG and ordered that court to deal with the merits of the case .

On DATE ORG ’s heirs applied to ORG at ORG for interim measures against the ORG and ORG . ORG refused their application on an unspecified date . ORG ’s heirs appealed against this decision . On DATE Deputy State Counsel at ORG dismissed their appeal .

In DATE ORG ’s heirs leased the “ NORP ” open - air cinema to the applicant , who completely restored it .

On DATE the LOC prefecture informed the applicant that with effect from DATE the land on which the cinema had been built was considered to be ORG property , and that his retention of it was wrongful . The ORG would consequently be claiming compensation from him in accordance with LAW of DATE , without prejudice to its right to evict him under PERSON no . DATE on the protection of ORG land .

On DATE ORG ( PERSON του PERSON ) assigned the cinema to ORG . On CARDINAL DATE the LOC prefecture notified the applicant of this and ordered him to vacate the cinema within DATE , failing which Law no . DATE would be applied .

On DATE ORG ( PERSON ) of the LOC prefecture ordered the applicant to be evicted , under PERSON no . DATE as amended by PERSON no . CARDINAL/CARDINAL . The order was “ served ” on the applicant on DATE by being posted on the door of the cinema . The following day , when the members of the Bar were on strike and the applicant was absent , officials from ORG executed the order , forcing an entry into the cinema . An inventory was drawn up of a number of items of movable property belonging to the applicant ( projectors , chairs , billboards and bar equipment ) . A Mr PERSON , who was professionally connected with the applicant but was not acting as his representative , signed the inventory and asked the ORG officials to store the goods .

The applicant challenged the eviction order in ORG , which dealt with the matter under summary procedure and found for the ORG . The applicant appealed to ORG sitting with a single judge , which on DATE , having heard the appeal under summary procedure , quashed the eviction order . The court ruled that ORG could issue an eviction order only if the property in question belonged to the ORG , if the ORG ’s title to the property was not in dispute , and if the property was being unjustifiably occupied by a third party .

The court held , further , that these conditions had not been satisfied in the case before it , since the applicant had established the following facts with a fair degree of certainty : proceedings were pending before the courts in an action brought in a dispute between ORG ’s heirs and the ORG over the land on which the cinema had been built ; ORG ’s heirs had considered themselves to be the owners of the land and the cinema for a very long time and had exercised all the rights and performed all the duties associated with ownership ; and , lastly , the applicant had occupied the cinema under a lease DATE .

Following that decision , the applicant made several approaches to the appropriate authorities to challenge the continued occupation of the cinema by ORG . On DATE ORG stated that , since the eviction order had been quashed , the land should be returned to the applicant and the assignment of the cinema to ORG revoked . However , if the ORG insisted on retaining the cinema , the matter of who was to compensate the applicant would have to be determined in accordance with the law on business tenancies .

On DATE ORG ( PERSON του GPE ) , in answer to a question put to it by ORG , expressed the view that the cinema had to be returned to the applicant . The applicant ’s claims in respect of the loss he had sustained owing to the eviction could be entertained only if he applied to ORG or brought proceedings . Furthermore , the ORG could assert its claim to be the owner of the land by bringing an action against ORG ’s heirs or by expediting the proceedings in the litigation between it and them , which had been pending before the courts since DATE .

On DATE the applicant applied to ORG to have the cinema returned to him .

On DATE the applicant sued the ORG and ORG in tort in ORG for the loss he had sustained as a result of the failure to return the cinema to him . He claimed compensation in the amount of MONEY ( ORG ) , plus interest for loss of income from DATE and for the loss of his business equipment .

On DATE the applicant applied to the mayor of NORP to have the cinema returned to him . On CARDINAL DATE he lodged a criminal complaint against the mayor . On an unspecified date he also lodged a criminal complaint against the chairman of ORG .

On DATE the applicant filed an application in ORG for registration of a mortgage against ORG as security for lost income amounting to LAW . The court dismissed the application on the ground that there was no obligation to return the property , seeing that no application to that end had been made to the court and that there had been no final court decision in the matter .

On DATE ORG , following a further request from the applicant , recommended that the assignment of the cinema to ORG should be revoked and the cinema returned to the applicant , who was to be reinstated as tenant by ORG . That recommendation had to be approved by ORG pursuant to LAW no . CARDINAL/CARDINAL .

The applicant , who had not been notified of the recommendation , applied to the Minister of Finance on DATE . On DATE he asked ORG to order interim measures against the mayor of NORP in the tort proceedings . On DATE he applied to the Minister of Finance again .

On DATE ORG held that there were no grounds for ordering interim measures , since there could be no liability on the part of the mayor . On DATE , following the intervention of ORG , the applicant was notified of ORG decision of DATE . On CARDINAL DATE the applicant requested the Deputy Minister of Finance to approve that decision .

On DATE ORG expressed the view that the cinema should not be returned to the applicant , for the following reasons . Although ORG had set aside the eviction order of DATE , it had not ordered the cinema to be returned to the applicant . In its decision of CARDINAL DATE ORG had held that there was no obligation to return the cinema . Furthermore , under special case - law relating to ORG - owned property , the lease between ORG ’s heirs and the applicant was not valid . Consequently , ORG would be acting unlawfully if it revoked the assignment of the cinema to ORG . On DATE the Deputy Minister of Finance approved the opinion of ORG .

On DATE ORG dismissed the action commenced by the applicant on DATE on the ground that it should have been brought in the civil courts .

On DATE the applicant brought the action in ORG , seeking LAW in damages for the loss of income he had suffered in DATE as a result of being unable to operate his cinema and for non - pecuniary loss . The action was due to be tried on DATE but it was still pending on DATE of the hearing before the ORG .

On DATE ORG of ORG decided to commence criminal proceedings against the mayor of NORP for dereliction of duty .

On DATE the applicant brought an action against the ORG and ORG in which he sought payment of ORG CARDINAL plus interest for loss of income during DATE and for non - pecuniary damage . This action was still pending on DATE of the hearing before the ORG .

The cinema is still being operated by ORG and has not been returned to the applicant .

The applicant has not set up an open - air cinema anywhere else .

The immovable property of the ORG is protected against third parties by PERSON no . CARDINAL/CARDINAL amending and supplementing the provisions on ORG property .

Section CARDINAL(CARDINAL ) and ( CARDINAL ) of the PERSON provides :

“ … The relevant tax inspector shall issue an administrative eviction order against any person wrongfully taking over public property . An application to set aside such an order may be filed with the appropriate ORG within DATE of its being served … An appeal against the decision of ORG may be brought within DATE before the President of ORG , who shall hear it under the special procedure provided for in LAW . No appeal shall lie against the decision of the President of ORG . The decision resulting from the foregoing procedure shall not prevent the parties from asserting their rights by means of ordinary procedure … ”

“ … Κατά του αυτογνωμόνως επιλαμβανομένου οιουδήποτε δημοσίου κτήματος συντάσσεται παρά του αρμοδίου PERSON CARDINAL επιτρέπεται άσκηση ανακοπής ενώπιον του αρμοδίου PERSON μέσα σε αποκλειστική προθεσμία CARDINAL ημερών από της κοινοποιήσεως του … Κατά της αποφάσεως του PERSON χωρεί έφεση ενώπιον του PERSON , που δικάζει με την ειδική διαδικασία του άρθρου CARDINAL DATE , μέσα σε προθεσμία CARDINAL ημερών. Κατά της αποφάσεως του PERSON ουδέν ένδικο μέσο χωρεί. Η κατά την ανωτέρω διαδικασία εκδιδομένη απόφαση δεν παρακωλύει την επιδίωξη των εκατέρωθεν δικαιωμάτων κατά την τακτική διαδικασία … ”

Applications to set aside and the entire procedure for challenging administrative eviction orders are concerned solely with the validity of the eviction order and not with recognition of ownership or regulation of possession .

Where an administrative eviction order is quashed and it is desired that the decision make provision for the reinstatement of the evicted appellant , an application for reinstatement must be lodged either at the same time as the application to set aside – in which case a consequential order will be made if the application is allowed DATE or separately with the appropriate court ( action for regulation of possession ) . An application for reinstatement is not subject to the time - limits laid down by LAW no . CARDINAL/CARDINAL for applying to set aside an eviction order , since there is no provision to that effect ( ORG judgment no . CARDINAL , Reports DATE , pp . CARDINAL - CARDINAL , ORG of First Instance judgment no . CARDINAL , ORG opinion no . CARDINAL/CARDINAL , ORG and b and DATE ) .

The lessee of a property is the possessor of the leased property . This right of possession is protected by domestic law . The protection of possession both as a material fact and as a legal relationship is regulated in NORP law by Articles CARDINAL et seq . of LAW .

NORP In particular , LAW , entitled “ Protection of possessors ” , provides :

“ In the event of unlawful interference with the possession of property or of a right or in the event of dispossession , the person who , as lessee or bailee or as a consequence of a similar relationship , took possession of the property or right from the person who had use of it shall also have a possession claim against third parties . ”

“ Επί παρανόμου διαταράξεως της νομής πράγματος ή δικαιώματος , ή αποβολής εξ αυτής , έχει κατά τρίτων τας περί νομής αγωγάς και ο παρά τιυ νομέως λαβών την κατοχή του πράγματος ή δικαιώματος ως μισθωτής ή θεματοφύλαξ ή συνεπεία άλλης παρομοίας σχέσεως. ”

The possession claims that the lessee and possessor of the leased property may file are set out in Articles CARDINAL and CARDINAL of LAW .

Article CARDINAL provides :

“ A possessor who has been unlawfully dispossessed shall be entitled to claim repossession from the person in unlawful possession . A claim for compensation under the provisions on torts shall not be excluded . ”

“ Ο νομέας που αποβλήθηκε παράνομα από τη νομή έχει δικαίωμα να αξιώσει την απόδοσή της από αυτόν που νέμεται επιλήψιμα απέναντί του. ORG αποζημιώσεως σύμφωνα με τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται. ”

Article CARDINAL provides :

“ A possessor whose possession has been the subject of unlawful interference shall be entitled to seek an order restraining the interference and prohibiting it in the future . A claim for compensation under the provisions on torts shall not be excluded . ”

“ Ο νομέας που διαταράχθηκε παράνομα έχει δικαίωμα να αξιώσει την παύση της διατάραξης DATE και την παράλειψή της στο μέλλον. ORG αποζημίωσης κατά τις διατάξεις για τις αδικοπραξίες δεν αποκλείεται. ”

By Article CARDINAL , the possessor is protected in the event of dispossession , that is to say deprivation of control of the property . By Article CARDINAL , he is also protected in the event of interference , namely interference with his control of the property not amounting to dispossession . A classic example of interference , as held by the domestic courts , is threatening the possessor with prohibition of a specific act of possession .

The purpose of these remedies is to protect possession itself , regardless of whether it is based on a right or not . It is for that reason that LAW provides :

“ A defendant in an action for interference or dispossession can invoke a right giving him control over the property only if that right has been upheld in a final decision by a court after proceedings between him and the plaintiff . ”

“ Ο εναγόμενος για διατάραξη ή αποβολή δεν μπορεί να επικαλεστεί δικαίωμα που του παρέχει εξουσία πάνω στο πράγμα παρά μόνο αν το δικαίωμα έχει αναγνωριστεί τελεσίδικα σε δίκη ανάμεσα σε αυτόν και τον ενάγοντα. ”

In accordance with LAW , a possessor has these rights against third parties and not against the possessor from whom he derives the possession rights . Against the latter he has the rights afforded him by the legal relationship between them .

Where a possessor brings an action in possession , it will be either for repossession or for restraint of interference , depending on whether the possessor has been evicted or merely disturbed in the exercise of his control of the property .

Furthermore , the possessor is entitled in the same proceedings to claim compensation for the damage sustained , under the provisions on torts ( Articles CARDINAL et seq . ) .

More particularly in respect of the ORG ’s obligation to pay compensation , section CARDINAL of LAW to LAW is applied , under which unlawful conduct on the part of agents of the ORG creates an obligation to pay compensation irrespective of whether an offence has been committed by the agents in question . Moreover , where the unlawful situation arises from an administrative act , prior annulment of that act is not required . The court may consider the validity of the administrative act in the course of the proceedings and a specific prior ruling on its validity is not necessary .

A possessor whose right is created by a lease is also protected against the lessor if it becomes impossible for him to use the leased property .

Article CARDINAL of the Civil Code provides :

“ If the agreed use of the leased property is taken from the lessee in whole or in part because of a third party ’s right ( legal defect ) , Articles CARDINAL to CARDINAL and CARDINAL shall apply . However , the lessee may himself have the legal defect removed at the lessor ’s expense . ”

“ Αν η συμφωνηθείσα χρήση του μισθίου αφαιρεθεί από τον μισθωτή εν μέρει ή εν όλω εξαιτίας δικαιώματος τρίτου νομικό ελάττωμα εφαρμόζονται οι διατάξεις των άρθρων CARDINAL έως CARDINAL και CARDINAL . ORG μισθωτής δεν δύναται να προβεί ο ίδιος στην άρση του νομικού ελαττώματος με δαπάνες του εκμισθωτού. ”

NORP In that event , the lessee ’s rights under Articles CARDINAL to CARDINAL and CARDINAL , to which LAW refers , are the following : the right to reduce the rent or not to pay the rent , the right to compensation , the right to bring an action against the lessor to have the legal defect removed , and the right to terminate the lease .

Apart from the right to bring an action against the lessor to have the legal defect removed , the lessee may still bring an action in possession at his own expense against third parties in his capacity as possessor ( LAW ) .

The lessor is exempt from liability only if the lessee was aware of the defect at the time when the lease was signed .

Lastly , leases of property for carrying on commercial activities ( commercial leases ) are also governed by all the above provisions under LAW of PERSON no . CARDINAL/CARDINAL , codified by Presidential Decree no . CARDINAL/CARDINAL . That provision reads as follows :

“ Save as hereinafter provided , leases under the present PERSON shall be governed by the contractual terms and by the provisions of LAW . ”

“ Αι κατά τον παρόντα νόμον μισθώσεις , εφόσον δεν ορίζεται άλλως εις αυτόν , διέπονται υπό των συμβατικών περί αυτών όρων και των διατάξεων του GPE Κώδικος. ”


Preliminary objection joined to merits and dismissed (victim);Violation of Art. 5-1;Remainder inadmissible;Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi

The applicant was born in DATE and lives in GPE .

On DATE the police arrested the applicant . He was accused of planning a robbery and remanded in custody from that date .

Several decisions extending the applicant ’s detention were made . In particular , on DATE ORG extended his detention in the context of the pre - trial proceedings until DATE .

On DATE the public prosecutor indicted the applicant and several other persons before ORG .

The applicant requested to be released , arguing that ORG had not extended his detention after the expiry of the period indicated in the ORG decision of DATE .

On DATE ORG ordered the applicant ’s release . Upon a complaint lodged by the public prosecutor ORG decided on DATE that the applicant should remain remanded in custody .

On DATE ORG dismissed the applicant ’s request for release . On DATE ORG dismissed a complaint by the applicant against that decision .

NORP On DATE the applicant complained to ORG that his detention in the period after DATE and ORG above decision of CARDINAL DATE were both unlawful . In a separate complaint lodged on DATE the applicant complained about the refusal to release him in the proceedings leading to ORG decision of DATE .

On DATE the applicant was released .

On DATE ORG found that the applicant ’s right under LAW had been violated as a result of ORG decision of CARDINAL DATE . There had been no judicial decision extending his detention after DATE , and there existed no justification for that situation .

The Constitutional Court quashed ORG decision of CARDINAL DATE in so far as it concerned the applicant and ordered ORG to reimburse the applicant ’s costs in the constitutional proceedings . It dismissed the applicant ’s claim for just satisfaction with reference to a conclusion which a different chamber of the LAW court had reached in the case of CARDINAL of the applicant ’s co - accused . According to that conclusion , ( i ) the finding of a violation of LAW provided appropriate redress to the plaintiff and ( ii ) ORG decision of CARDINAL DATE was based on that court ’s earlier practice , which , however , was not in accordance with practice under the Convention .

In a judgment of DATE ORG found that by its decision of DATE ORG had breached the applicant ’s right under LAW . In particular , ORG should have remedied the situation resulting from the applicant ’s unlawful detention from DATE by ordering his release .

The judgment stated , in particular :

“ In ORG view , the jurisdiction of the court involved at the pre - trial stage ended with the filing of the indictment on DATE . The indictment as such is not a ground for continued detention of a person , as it does not explicitly follow from the law , and it is inadmissible to extend the possibilities of restricting a person ’s liberty by extensive interpretation of several provisions of LAW .

However , a court ’s decision on detention of a person given at the pre - trial stage can constitute a ground for such person ’s detention for a short period following the indictment . Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed . In the circumstances , a ground for the applicant ’s detention existed until DATE . The detention should have been extended by a decision given no later than DATE if it was to continue after that date . In the absence of any such decision , the restriction of the applicant ’s liberty after DATE was unlawful .

The unlawfulness of the applicant ’s deprivation of liberty after DATE can not be justified retrospectively , not even by a judicial decision . Subsequent judicial decisions could not have extended the applicant ’s detention , as it had ended on DATE . The only existing possibility was to remand the applicant in custody again . As this was not done , his subsequent deprivation of liberty had no legal ground . ”

The Constitutional Court quashed ORG decision of DATE , granted the equivalent of MONEY ( ORG ) to the applicant as just satisfaction and ordered ORG to reimburse the applicant ’s costs .

The following provisions of LAW ( Law no . CARDINAL/CARDINAL Coll . , in force until DATE ) are relevant in the present case .

Pursuant to LAW , a person ’s detention in the context of both pre - trial proceedings and during proceedings before a trial court may only last as long as necessary . Where detention in the context of pre - trial proceedings is to exceed DATE , it may be extended at a public prosecutor ’s request up to DATE by a judge or to a maximum of DATE by a court ’s chamber .

Article CARDINAL § CARDINAL provides that a person ’s detention in the context of both pre - trial proceedings and during trial must not exceed DATE . In justified cases ORG may extend its duration to a maximum of DATE and in cases of particularly serious offences DATE . Under paragraph CARDINAL of Article CARDINAL , a proposal for extension of a person ’s detention is to be submitted by a public prosecutor in the pre - trial proceedings and by the president of the court ’s chamber during the trial .

Article CARDINAL § CARDINAL obliges investigators , prosecutors and judges to examine , at each stage of criminal proceedings , whether reasons for the accused person ’s detention persist . In pre - trial proceedings a judge is obliged to do so only when deciding on a public prosecutor ’s proposal to extend detention or to modify the reasons for it or when deciding on an accused person ’s application for release . Where a reason for an accused person ’s detention no longer exists , the accused must be released immediately .

Article CARDINAL § CARDINAL entitles an accused to apply for release at any time . When the public prosecutor dismisses such an application in the course of pre - trial proceedings , he or she must submit it immediately to the court . The decision on an application for release must be taken without delay . If an application is dismissed , the accused may only renew it DATE after the decision has become final unless he or she cites other reasons justifying his or her release .

Pursuant to LAW , where the court carries out a preliminary examination of the indictment of a person who is detained , it shall also decide whether that person is to remain in custody .

In accordance with ORG practice , the time - limits mentioned in LAW concerned exclusively situations where a decision on a public prosecutor ’s proposal was to be made in the context of pre - trial proceedings . However , where an indictment had been filed within a shorter time than the DATE period mentioned in LAW , the law did not require that a request for continued detention of the accused persons be made or that a separate decision should be made on their continued detention , with the exception of cases where the indictment had been filed DATE before the expiry of the DATE maximum period of detention .

Pursuant to a ORG standpoint of DATE ( Rt CARDINAL/CARDINAL ) , LAW requires a court to decide on further detention of the accused where it carries out a preliminary examination of the indictment . Accordingly , where the presiding judge concludes , on the basis of the file , that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful , there is no need for a separate decision of the court chamber on continued detention of the accused . However , where the accused applies for release , that application must be decided upon without delay , in accordance with LAW .

In judgment ORG CARDINAL/CARDINAL ORG noted that LAW did not explicitly require that a decision on extension of an accused person ’s detention be given in cases where an indictment had been filed and where the detention , both at the pre - trial stage and during the trial , had not exceeded DATE .

It held , however , that the filing of an indictment alone did not as such justify a person ’s continued detention . The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre - trial proceedings .

In its judgment ORG referred in particular to the guarantees laid down in LAW and the ORG ’s judgment in PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE , § § CARDINAL ) .

In that case ORG found no breach of LAW as the ordinary court involved , both in the context of a preliminary examination of the indictment and in reaction to the accused person ’s request for release , had decided that the reasons for the latter ’s detention persisted . That decision had the same effect as a decision to extend the accused person ’s detention .

In the above case , which concerned CARDINAL of the present applicant ’s co - accused , the detention in the context of pre - trial proceedings had been extended until DATE . Prior to its expiry , on DATE , the accused was indicted . In its judgment ORG found that ORG had breached the plaintiff ’s right under LAW , in that there had been no judicial decision extending his detention after DATE and there existed no justification for that situation . It was irrelevant that courts at CARDINAL levels had dismissed the accused person ’s application for release on DATE and DATE respectively , as those decisions related to detention in the context of pre - trial proceedings , that is prior to the filing of the indictment . In those circumstances , any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted .

With reference to its judgment ORG CARDINAL/CARDINAL of DATE , ORG held that for a detention to be lawful it must always rely on a court decision . Since DATE ORG has confirmed that opinion in a number of judgments , including the cases of the applicant and another CARDINAL of his co - accused .

In judgment PERSON CARDINAL/CARDINAL the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of an accused to be lawful . The court dealing with the criminal case which follows an indictment is required to take a decision on the accused person ’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre - trial proceedings . ORG found a breach of the accused person ’s right under LAW and ordered his immediate release .

The new Code of Criminal Procedure ( Law no . PERSON . ) entered into force on DATE .

Article CARDINAL § CARDINAL provides , inter alia , that a court is obliged to decide on further detention of an accused within DATE of his or her indictment ( or submission for its approval of an agreement between the prosecution and the accused on guilt and punishment ) unless it has already decided on detention of the accused under provisions which govern the examination of indictments .

The explanatory report to the draft Code of Criminal Procedure of DATE indicates that the above provision accentuates the judicial control of a person ’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court judgment I. ÚS CARDINAL/CARDINAL of DATE .

LAW DATE was enacted with effect from DATE .

Pursuant to section CARDINAL , where a decision on arrest , detention or any other deprivation of liberty was quashed as being unlawful or where there was wrongful official action in that context , a person affected by it is entitled to compensation for damage .

The ORG is liable for damage caused by wrongful official action which comprises , inter alia , a public authority ’s failure to take action within a set time - limit , inactivity , or any other unlawful interference with rights and legally recognised interests of individuals and legal entities ( section CARDINAL(CARDINAL ) ) .

NORP Under LAW the compensation is to cover pecuniary damage , including loss of profit , and , where appropriate and necessary , non - pecuniary damage .

In a judgment of CARDINAL DATE ( in case no . CARDINAL CARDINAL/CARDINAL ) ORG allowed an action for damages by CARDINAL individuals against the ORG under LAW DATE and ordered the defendant to pay the costs of their defence in a criminal trial on charges of DATE which had ended with their acquittal with final and binding effect in DATE . On DATE the Banská Bystrica Regional Court upheld that judgment following an appeal by the defendant .

In a judgment of CARDINAL DATE ( in case no . CARDINALC CARDINAL/CARDINAL ) the GPE I ORG granted an action for damages by an individual against the ORG under LAW DATE and awarded the claimant a sum in compensation for non - pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial . The impugned wrongful official action concerned the extension by a decision of CARDINAL DATE of the claimant ’s detention pending trial , until DATE . The action was preceded by a judgment of ORG of DATE ( in case no . I. ÚS CARDINAL/CARDINAL ) in which ORG had found a violation of the plaintiff ’s rights under LAW and CARDINAL in connection with the same facts . However , ORG had made no award to the claimant of just satisfaction as he had made no claim to that effect .


Violation of Art. 3;Violation of Art. 11

András Sajó;David Thór Björgvinsson;Françoise Tulkens;Guido Raimondi

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE .

On DATE the applicants took part in an anti - war demonstration in GPE . The gathering was dispersed by police officers and the applicants were arrested and taken into police custody where they remained until their release the following day . The applicants allege that they were subjected to ill - treatment during their arrest and their detention in custody .

According to an incident report drawn up by a number of police officers on DATE , CARDINAL persons , including the applicants , gathered in a square in GPE at TIME and chanted anti - war slogans , protesting against the ORG ’s proposals to send soldiers to participate in the invasion of GPE . The police had warned them with loudspeakers that they were disturbing the flow of traffic and had unsuccessfully asked them to disperse . When the police had attempted to arrest some of the demonstrators and put them into the police vehicles , a number of the demonstrators had displayed “ rowdy behaviour ” and the police had had to use force against them . A total of QUANTITY persons , including the applicants , had been arrested and taken to a police station at TIME . This incident report was signed by CARDINAL police officers who were only referred to in the report with their identification numbers .

DATE the applicants were examined by a doctor . According to the medical reports , the second and third applicants had no signs of ill - treatment on their bodies . The first applicant had bruising on her lower lip and on her lower right leg . The fourth applicant had bruising on the left side of his lower back and on the back of his right ear . His legs were also sensitive and he had redness in his left eye .

The same evening the applicants were questioned by the police in the presence of a duty lawyer . With the exception of the third applicant , all the applicants exercised their right to remain silent .

The following day the applicants were examined by a doctor once more . According to the medical reports , there were no signs of ill - treatment on the ORG bodies other than those mentioned in the medical reports drawn up DATE .

At TIME the applicants were brought before the PERSON prosecutor . The applicants told the prosecutor that by attending the demonstration they had been exercising their democratic rights . They also alleged that the police had arrested them without any previous warnings . The fourth applicant complained that he had been beaten up by the police officers . The first and fourth applicants also complained that police chief PERSON had sworn at them during their time in police custody . The same day the applicants were released .

On DATE the PERSON prosecutor asked for an investigation to be opened into the applicants’ allegations of ill - treatment .

The applicants submitted a formal complaint to the PERSON prosecutor on DATE . With the exception of the third applicant , Mr Hacı Badem , the applicants complained of ill - treatment . Referring to LAW the CARDINAL applicants stated that the police officers had punched and kicked them in the course of their arrests , as well as during their detention at the police station .

Between DATE and DATE the PERSON prosecutor questioned CARDINAL police officers . CARDINAL of the police officers denied having been at the demonstration or having seen any of the demonstrators because they had been working elsewhere at the time . The remaining officer , police chief PERSON , told the prosecutor that he had not taken part in the dispersal of the demonstration but had questioned the applicants in police custody . He denied having ill - treated any of the arrestees or having sworn at them .

On DATE the PERSON prosecutor decided to close the investigation into the applicants’ allegations of ill - treatment . On the basis of the documents in the file the prosecutor considered that when the applicants refused to disperse the police had had to use force against them . The applicants’ “ simple injuries ” had thus been caused when the police had been exercising their statutory powers on the use of force .

NORP The applicants’ objection against the prosecutor ’s decision was rejected by ORG on DATE . This decision stated that it was to be served on the applicants .

According to a hand - written note on this decision , it was communicated to the applicants on DATE .

In the meantime , on DATE criminal proceedings were instigated against the applicants for having taken part in an unlawful demonstration , in breach of sections CARDINAL , DATE and DATE of ORG ( Law no . CARDINAL ) .

On DATE ORG acquitted the applicants , holding that they had exercised their democratic rights and not committed any offences .