Violation of Art. 2;No violation of Art. 2;Violation of Art. 6-1;Non-pecuniary damage - award

Javier Borrego Borrego;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Snejana Botoucharova

The applicant was born in DATE and lives in GPE .

In DATE the applicant 's mother , PERSON , DATE and suffering from ORG 's disease , was admitted to the GPE nursing home for elderly persons . The home was located on a busy boulevard in GPE , a neighbourhood of GPE . PERSON was placed in the hospital unit , which was staffed with several medical doctors and nurses . According to a medical opinion on PERSON health at that time , her memory and other mental capacities progressively deteriorated . She needed constant supervision and the nursing home staff had been instructed not to leave her unattended . In DATE , the applicant visited his mother regularly and on occasion accompanied her for medical visits outside the nursing home .

During his visit on DATE , the applicant noticed spots on his mother 's skin and reported it to the nurse on duty .

The applicant visited again on DATE , at TIME , but was informed that his mother was missing . DATE his mother had been sent to consult a dermatologist outside the home , accompanied by PERSON , a medical orderly . According to the explanation given to the applicant , upon their return , at TIME , the medical orderly had left PERSON alone in the yard and had not found her there TIME . The nursing home staff had looked for PERSON in the area but in vain .

The staff alerted the police TIME after the incident . On DATE , and again on DATE , the police heard several witnesses to the events and recorded their statements . Some of them explained that they had searched the area immediately upon learning of PERSON disappearance .

On DATE , PERSON was recorded as a person sought by the police in the region of PERSON and on DATE her data were entered in the national list of missing persons . On DATE the GPE police issued a press release containing information about Mrs GPE 's physical appearance and an appeal to the public to report any relevant information . It appears that the description of GPE appearance contained errors . On DATE the area in the proximity of the nursing home was searched unsuccessfully using a police dog . The police also checked the identity of patients admitted to psychiatric clinics during the relevant period . They also verified information according to which , in DATE , a woman resembling the applicant 's mother had spent TIME in a monastery . In DATE an announcement was broadcast on national television .

In DATE following his mother 's disappearance the applicant himself did what he could to find her . He contacted all those who had last been in contact with her , published calls for witnesses in several newspapers and posted announcements carrying his mother 's photograph .

NORP The applicant 's mother has not been found to date . In DATE a ORG issued a decision declaring PERSON missing and appointed the applicant as her representative .

On DATE the applicant filed a complaint with ORG alleging that the administrative and medical staff of the nursing home had been responsible for his mother 's disappearance .

Nothing was done in the case until DATE , despite the applicant 's numerous complaints to all levels of the prosecuting authorities .

NORP In DATE ORG opened a preliminary investigation into the matter .

The applicant participated actively in the ensuing proceedings . He made specific requests for the collection of evidence in respect of the events of CARDINAL DATE and the alleged negligence on the part of the nursing home staff . In other submissions , often voluminous , he exposed at length his suspicion that his mother might have been abducted by a criminal gang trading in human organs .

On DATE , after having heard doctor PERSON , the head of the medical staff at the nursing home , the investigator recommended that the investigation be discontinued . On DATE the prosecutor followed this recommendation . The investigator and the prosecutor noted that it had not been uncommon in the practice of the nursing home for residents suffering from Alzheimer 's decease to be sent for outside examinations by public transport , accompanied by a medical orderly . Also , it had been the normal practice to leave residents in the yard for TIME , the time necessary to report to the doctor on duty , and then to accompany them to their rooms . The yard had been enclosed by a fence and staff had usually been present in the area . There had been a gatekeeper whose duty had been to check the identity of those entering . Having noted those facts , the investigator and the prosecutor stated that no criminal offence had been committed .

The applicant was not informed of the above decision . He became aware of it on DATE , when he visited ORG to inquire about the examination of his complaint .

On DATE the applicant appealed , insisting that other witnesses be examined , such as the medical orderly who had accompanied his mother , the medical doctor who had sent his mother for an examination and the gatekeeper .

On DATE ORG quashed the lower prosecutor 's decision and referred the case back for renewed investigation . In DATE and DATE the file was transmitted to an investigator . The investigator heard the medical orderly and the gatekeeper .

On DATE the prosecutor terminated the proceedings . He noted that PERSON , the medical orderly , had left the applicant 's mother in the yard for TIME as she had been asked to see a senior medical staff member . At that moment the applicant 's mother had left and could not be found . The gatekeeper had stated that she had not seen PERSON . The prosecutor further noted that , in accordance with the relevant job descriptions , it was the medical orderlies ' duty to accompany residents and that the gatekeeper 's duties did not include responsibility for the residents ' safety . On that basis the prosecutor concluded that “ there [ was ] no indication that a staff member had exposed PERSON [ to a danger ] ... ; and , as regards the [ possible perpetrator 's ] mens rea , no wilful conduct could be proven . ”

The applicant appealed .

On an unspecified date the prosecutor 's decision of DATE was quashed and the case remitted for renewed investigation . In the ensuing investigation it was established that the gatekeeper had not been at the gate when the applicant 's mother had been left alone there on DATE , as the she had left to have tea .

On DATE ORG terminated the proceedings . The decision stated , inter alia :

“ PERSON had left [ the applicant 's mother ] alone in the yard , in dereliction of her duty to accompany and assist the seriously ill [ residents ] . However , her act did not constitute a criminal offence under LAW . That provision makes punishable the failure to assist a person in a helpless state , in circumstances of a real danger for that person 's life , if the perpetrator is aware of the danger but fails to act . PERSON stated that she had not thought that leaving [ the applicant 's mother alone ] in the yard might result in a danger for her life , as the yard was closed by a fence and a gatekeeper was usually present . The gatekeeper had committed a serious dereliction of her duties as she had left the gate to have a tea . However , the gatekeeper is not criminally liable as she had not understood that [ the applicant 's mother ] was in danger . PERSON and the gatekeeper have undoubtedly committed disciplinary offences , which should have led to disciplinary sanctions but their behaviour is not criminally punishable . ”

NORP The applicant was not informed of the prosecutor 's decision . Having learned about it , on DATE he appealed to ORG .

On DATE the ORG quashed the prosecutor 's decision and referred the case for renewed investigation , considering that there were inconsistencies in the prosecutor 's reasoning and that not all relevant evidence had been collected .

After having heard additional witnesses , on DATE ORG terminated the investigation . The prosecutor noted the following facts that had not been mentioned in earlier decisions : i ) it had not been uncommon for elderly residents of the nursing home to scale the fence around the house ; ii ) there was a second entrance to the yard , used for service cars , which had usually been kept closed by means of a metal bar placed on the inner side of the portal ; and iii ) order in the nursing home and the duties of its staff were not clearly regulated .

The prosecutor stated that in view of the absence of clear rules on the duties of staff in the nursing home it was not possible to draw conclusions as to the criminal liability of staff members . Also , the facts did not disclose a criminal offence under LAW .

The prosecutor also stated that in any event the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired .

On an appeal by the applicant , on DATE the ORG upheld the prosecutor 's decision of DATE as the relevant statutory limitation period for the prosecution of the alleged perpetrators had expired on DATE .

In DATE , the applicant complained to the prosecution authorities alleging that the police had not taken the necessary steps to search for his mother following her disappearance . The prosecuting authorities examined the matter and , by decisions of DATE and DATE , refused to open criminal proceedings , considering that the police had acted diligently .

On DATE the applicant brought before ORG a civil action for non - pecuniary damages resulting from his mother 's disappearance . He claimed damages from ORG and the GPE municipality ( the institutions responsible for the nursing home ) on the grounds that the employees of the nursing home had been negligent . He also sought damages from ORG on the grounds that insufficient efforts had been made to find his mother . The applicant indicated ORG as the legal grounds for his action .

NORP Throughout the proceedings before ORG the applicant made voluminous written submissions and numerous requests for the collection of evidence .

At the first hearing , on DATE , the court could not proceed with the examination of the case as one of the defendants had not been summoned . The court ordered the applicant to indicate the full addresses of ORG and of the GPE municipality and stated that failure to comply could lead to discontinuation of the proceedings .

Hearings were held on DATE and DATE . ORG admitted several documents in evidence and refused to admit other documents . The applicant 's request for several witnesses to be examined was refused as it had been unclear and related to facts whose establishment required documentary proof .

On DATE the representative of GPE , which managed the nursing home , stated that the case did not fall to be examined under LAW . The representative of ORG , one of the defendants , stated that the applicant 's allegations in reality concerned not the ORG as a whole but CARDINAL of its regional units , ORG . The court decided to adjourn the hearing and instructed the applicant to submit proof of the locus standi of ORG .

On an unspecified date the applicant requested that ORG be added to the action as a further defendant . The request was granted at the next hearing , on DATE , and the case was adjourned . The court instructed the applicant to submit another copy of the evidence already admitted to the file , to be transmitted to the new defendant .

At the hearing on DATE the representative of ORG stated that the case did not fall to be examined under LAW as it did not concern the administrative powers of the police . The applicant sought to involve the nursing home as defendant . The court instructed the applicant to prove that the nursing home had a legal personality separate from that of GPE and adjourned the hearing . The court eventually found that the nursing home did not have separate legal personality .

The hearing held on DATE was adjourned as the court issued a disclosure order against the GPE police in respect of specific documents . The court rejected the applicant 's request to summon witnesses , including the medical doctor on duty on the relevant day . The applicant had stated that the witnesses would testify about the daily regime in the nursing home , the identity of staff members responsible for accompanying the applicant 's mother , her state of health on the relevant day and the exact sequence of events following her consultation with a dermatologist . The court held that such facts could only be established on the basis of documentary evidence .

On DATE the hearing could not proceed owing to a defective summons .

The hearing listed for CARDINAL DATE was adjourned owing to the prosecutor 's absence .

On DATE the court accepted some of the applicant 's requests for the examination of witnesses and adjourned the hearing .

The next hearing was held on DATE . It was adjourned as the nursing home had not complied with a disclosure order in respect of specific documents . CARDINAL of the summoned witnesses appeared but was not invited to testify .

The hearing listed for DATE could not proceed as CARDINAL of the defendants and a witness had not been summoned . The court fixed the next hearing for DATE .

On DATE the court heard CARDINAL witnesses , who were employees of the nursing home .

The employee responsible for the relevant unit stated that the staff had been aware of the applicant 's mother 's illness and her complete lack of orientation . She had been on a “ closed regime ” . All staff had been aware that she had to be accompanied .

PERSON , the medical orderly who had accompanied the applicant 's mother , testified that she had left her for TIME at the gate , next to the gatekeeper 's booth . The gate had not been locked . However , the gatekeeper had been there at that time . PERSON further stated that she had told the gatekeeper to look after the applicant 's mother and that the gatekeeper 's statement that she had not seen the applicant 's mother had been untrue .

The next hearing was on DATE . The court heard CARDINAL witnesses and adjourned the examination of the case . CARDINAL of the witnesses , the gatekeeper at the nursing home , did not appear . Eventually , the court decided to examine the case on the basis of the available material . The last hearing was held on DATE .

On DATE the ORG delivered its judgment . It found that the applicant had no standing to bring an action under ORG since his mother had not been declared dead and , therefore , the applicant could not claim that he was her heir .

The court also stated that it was unclear whether ORG applied as it only concerned damage resulting from unlawful administrative decisions or unlawful acts of the administration .

On DATE the applicant appealed . He stated , inter alia , that it was for the courts to decide on the legal characterisation of his claim . Therefore , if the court considered that the claim fell to be examined under general tort law , it should examine it under general tort law . The applicant also reiterated that he was personally affected as he had suffered non - pecuniary damage as a result of his mother 's disappearance .

By decisions of CARDINAL and DATE , ORG , criticising ORG failure to collect relevant evidence , ordered the summonsing of witnesses and the production of other evidence in the appellate proceedings .

On DATE ORG ordered the examination of a witness , the gatekeeper .

On DATE the court heard the former gatekeeper , who had fallen ill , in her home , in the presence of the parties ' representatives and a prosecutor . The former gatekeeper stated that on the relevant date she had not seen the applicant 's mother .

DATE . On DATE the ORG delivered its judgment . It found that ORG only concerned damages resulting from administrative decisions or acts in the exercise of administrative functions . The applicant 's claim did not concern such decisions or acts and fell to be examined under the general provisions of tort law . For that reason , ORG annulled ORG judgment and remanded the case for renewed examination by ORG .

On DATE the applicant filed a cassation appeal . On DATE ORG rejected the appeal . It found that ORG had been wrong to examine the case under LAW .

On an unspecified date the case was transmitted to ORG for fresh examination under general tort law .

On DATE ORG instructed the applicant to clarify his claims .

On DATE the court found the clarifications made insufficient and gave him additional instructions .

On DATE ORG held a hearing . It issued disclosure orders against the nursing home and ORG and allowed the collection of other evidence . The hearing was adjourned until DATE . The proceedings are pending .

At the relevant time , the activities of nursing homes for the elderly and other social care homes were governed by regulations issued by ORG ( State Gazette no . CARDINAL of DATE , amended by ORG no . CARDINAL of DATE ) , in force until DATE , when new regulations replaced them .

In accordance with the regulations , nursing homes were funded and managed by the local municipal councils and were required to follow the standards established and instructions given by ORG . It appears , however , that in DATE nursing homes were placed under the management of ORG . That was not reflected in the regulations .

The regulations set out the duties of the main staff categories – the director , medical doctors , nurses and administrative staff . On that basis , each nursing home adopted its own internal rules . The nursing home where the applicant 's mother lived also had internal rules regulating in detail the organisation and distribution of tasks and duties among staff . In addition , the specific duties attached to each position were set out in job descriptions . For example , according to the job description for a gatekeeper , CARDINAL of the main duties was control over the entry and exit of persons and vehicles . The nursing home also maintained a presence / absence table and DATE instructions book .

Article CARDINAL of the Criminal Code makes it a punishable offence to place a person in a situation endangering his life and , being aware of the situation , to fail to render assistance , despite the fact that the person concerned is unable to take care of himself owing to young or old age , illness , or any other state of helplessness .

There is no reported case - law under that provision .

ORG provides , in its section CARDINAL , that the ORG shall be liable for damage occasioned by ORG bodies or ORG officials in the exercise of their administrative functions . For damage caused in other circumstances , the ORG and ORG bodies are liable under general tort law .

According to the established practice in civil proceedings , the courts examine and determine the legal characterisation of claims submitted to them , without regard to the legal characterisation proposed by the plaintiff . The plaintiff must identify the disputed issue by clarifying the facts and the claim made but is under no duty to specify its characterisation in law . Even if the plaintiff indicates a legal characterisation of the claim , the courts are not bound thereby . They must make their own independent assessment ( see , among many other authorities , the following judgments : CARDINAL - CARDINAL-V ( Supreme Court of Cassation ) , CARDINAL - CARDINAL-VII ( Supreme Administrative Court ) and CARDINAL - CARDINAL- ORG ( ORG ) ) .

According to section CARDINAL , unlike civil proceedings under general tort law , proceedings under LAW are conducted in the presence of a prosecutor and court fees are only payable following the entry into force of the final judgment .

In DATE , ORG issued an interpretative decision on certain aspects of the implementation of the LAW , noting the existence of disputes and divergent practice . CARDINAL of the issues dealt with was the identity of the ORG administrative bodies having locus standi to answer claims under LAW . ORG clarified that the action must be brought against the ORG body employing the relevant agent or , where that ORG body did not have separate legal personality , against the superior ORG organ meeting that condition .

By virtue of sections CARDINAL of ORG , the courts may declare missing a person whose whereabouts have been unknown for DATE . If the person is still missing after DATE , the courts may declare the person presumed dead .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

On DATE the applicant sued for damages the GPE - ORG ( GPE PERSON ) , ORG ( ORG ) and CARDINAL of his neighbours , PERSON , ORG and GPE , in ORG ( Sąd Wojewódzki ) . The applicant sought CARDINAL old Polish zlotys ( PLZ ) for the loss that he had allegedly sustained on account of various impediments to the construction of his house .

On DATE the applicant withdrew his claims against the first CARDINAL defendants . Since then , the proceedings have been directed only against his neighbours PERSON , ORG and GPE

DATE ORG listed CARDINAL hearings . It also ordered that CARDINAL reports from construction experts be obtained so as to assess the value of the financial loss sustained by the applicant .

The last of those reports was submitted to the court in DATE .

At the hearing held on DATE the court heard evidence from GPE , an expert .

Later , both parties contested GPE ' s report . The applicant nevertheless asked the court to give a ruling on his claim , stressing that the length of the proceedings had to date exceeded DATE .

On DATE the court ordered that fresh evidence be obtained from GPE

In DATE the presiding judge stepped down and the case was referred to another judge .

On DATE the applicant complained to the President of ORG ( Sąd Apelacyjny ) DATE in his words – “ an exceptional delay in the proceedings ” . In a letter of CARDINAL DATE the President admitted that the procrastination in the proceedings had indeed been caused by the fact that ORG had failed to keep the proceedings moving along procedural lines . He apologised to the applicant in the name of the administration of justice .

On DATE the applicant complained to the President of ORG ( Sąd Najwyższy ) about the inactivity of ORG . On DATE the President referred the complaint to the Minister of ORG , an authority responsible for monitoring the conduct of court proceedings . He observed , however , that despite the case having already been brought under the Minister 's supervision , since CARDINAL DATE no hearing had taken place before ORG .

Subsequently , the applicant made CARDINAL further similar complaints to the President of ORG .

In a letter of CARDINAL DATE the President again apologised to the applicant and admitted that the monitoring of the conduct of the proceedings had not been very successful . He also informed the applicant that the President of ORG had been instructed to take steps in order to accelerate the proceedings .

On DATE the court held a hearing and served copies of GPE 's fresh report on the parties . Since the inflation rate and purchasing power of the NORP currency had meanwhile changed substantially , the court ordered the applicant to state the exact amount of damages claimed in the light of current circumstances .

On DATE and CARDINAL DATE the applicant filed CARDINAL pleadings with the court and stated that the current total value of his claim was CARDINAL new Polish zlotys ( ORG ) .

On DATE the court held a hearing . It ordered the applicant to pay court fees of ORG CARDINAL,CARDINAL for having lodged , in the court 's view , a new and higher claim , and on pain of the statement of claim being returned to him .

On DATE , on an appeal by the applicant , ORG quashed the contested order as being premature . It found that the lower court had misconstrued the applicant 's pleading and ordered it to obtain from the applicant a clear statement of the amount currently claimed .

Meanwhile , on DATE , the applicant had complained to the court about the lack of progress in the litigation . He stressed that as of that date the length of the proceedings was DATE , but his claim was still far from being determined . He repeated that he had not increased , and was not going to increase , the value of the claim .

At the hearing which was held on CARDINAL DATE the court ordered GPE to prepare yet another report and to determine the current value of various items included in his report of CARDINAL DATE . That order was a consequence of the fact that , since DATE , the inflation rate and the purchasing power of the NORP currency had again changed considerably .

On DATE the court held the next hearing .

On DATE , the applicant lodged a complaint with ORG , submitting that the length of the proceedings in his case had exceeded all reasonable limits . On DATE the Case - law Department of ORG informed him that he should address his complaints to the Minister of ORG , who was responsible for monitoring the conduct of the proceedings .

On DATE ORG ordered that evidence from yet another construction expert be obtained .

On DATE PERSON , an expert , submitted his report to the court .

On DATE , DATE and DATE ORG held hearings .

On DATE the applicant submitted a pleading to the court , pointing out that PERSON had based his findings on inaccurate indexes of the value of the construction works and had , therefore , come to wrong and unfair conclusions on the assessment of his loss .

On DATE he submitted his comments on the value of certain construction works , as assessed by PERSON He further asked the court to proceed with his case and to give “ any ruling terminating the proceedings that have so far lasted DATE ” .

On DATE the applicant again asked the court to give a ruling .

The next hearing took place on DATE . The court heard evidence from PERSON and adjourned the proceedings to enable the expert to prepare a supplementary report .

At the hearing held on DATE , the court ordered PERSON to prepare yet another supplementary report .

Subsequent hearings were held on DATE and CARDINAL DATE . The court heard evidence from the expert and , on DATE , once again ordered the applicant to specify his claims .

On DATE the applicant informed the court in writing that he had already specified his claims on CARDINAL occasions .

On CARDINAL DATE the court held a hearing , but then adjourned the proceedings sine die .

The next hearings were listed for DATE and DATE and , subsequently , for DATE and DATE .

In the light of the material before the ORG , it appears that the proceedings are still pending in the court of first instance .


David Thór Björgvinsson;Ineta Ziemele;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Vincent A. De Gaetano;Zdravka Kalaydjieva

NORP The applicant , Ms Teodora Dimitrova Zaharieva , is a NORP national , who was born in DATE and lives in GPE . She was represented before the Court by Mr PERSON and PERSON , lawyers practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

In DATE the applicant was diagnosed with breast cancer and underwent surgical removal of her right breast . In DATE she also underwent chemotherapy .

NORP In DATE the applicant developed a tumour in her left breast , which was also removed , and underwent another course of chemotherapy .

NORP This medical treatment was provided to the applicant free of charge by the public health system .

In DATE the applicant was prescribed a course of hormonal therapy which required the administration , once DATE , of a medicine whose active component was goserelin .

At the relevant time goserelin was on the list of medicines provided by ORG free of charge . DATE and DATE the applicant received it regularly free of charge .

In DATE the applicant was informed that there was a problem with the supply of goserelin . Having received medical advice that interrupting the intake of the product for longer than a month could be dangerous for her health , the applicant had no choice but to purchase it from a pharmacy . She did so in DATE and DATE . The price of goserelin for each dose was MONEY ( ORG ) .

Being unable to keep on paying for goserelin DATE , in DATE the applicant , on the advice of her doctor , underwent an alternative treatment in the form of radiocastration , which resulted in the definitive cessation of her ovarian function .

After that the applicant was prescribed another medicine whose active substance was letrozole , to be taken DATE for twentyfour DATE . Letrozole was also on the list of medicines provided free of charge by ORG . However , the applicant did not receive the medicine free of charge and had to pay for it . Being unable to afford to pay for a full course of treatment with letrozole – the cost of CARDINAL package containing forty pills was BGN DATE , the applicant took it irregularly and in smaller doses than prescribed .

In DATE metastases in the applicant ’s liver were discovered , and she underwent a third course of chemotherapy .

NORP In DATE the applicant was not provided free of charge with docetaxel , another expensive medicine , although it was necessary for the chemotherapy and also featured on the list of medicines provided by ORG free of charge .

The applicant repeatedly protested , in letters and complaints addressed to ORG and other institutions , about the recurring problems with the supply of medicines for persons suffering from cancer .

It appears that in DATE the applicant continued to experience irregular supplies of free medicines .

On DATE the applicant brought a claim for damages against ORG . She sought ORG CARDINAL,CARDINAL that she had paid for the medicines that should have been provided to her free of charge and ORG CARDINAL in respect of the non - pecuniary damage resulting from the worsening of her health due to the ORG ’s failure to provide those medicines . The statement of claim did not clarify the legal provision on which the claim was based .

DATE ORG returned the statement of claim to the applicant CARDINAL times , pointing to various deficiencies in it . In particular , the applicant was requested to describe the specific actions and omissions which had given rise to the alleged damage and to provide more particulars about the damage that she had suffered .

The first hearing was held on DATE . The court dealt with a number of evidential requests by the parties , allowed an increase of the applicant ’s claim in respect of nonpecuniary damage , and gave leave to the applicant to specify her claim in respect of pecuniary damage . It also ordered a medical expert report requested by counsel for the applicant , and adjourned the case until DATE .

On DATE the applicant specified that she was claiming ORG CARDINAL in respect of pecuniary damage and BGN CARDINAL in respect of nonpecuniary damage . She also asked the court to bring forward the date of its next hearing .

On DATE counsel for the ORG requested the court to put additional questions to the expert .

On DATE the court admitted the increase of the applicant ’s claims , but said that in view of its case load and the amount of evidence that needed to be gathered the date of the next hearing could not be brought forward .

NORP The expert filed her report on DATE .

At the hearing on DATE the court admitted the report and heard the expert . It went on to admit a number of documents presented by the parties and to hear CARDINAL witness called by the applicant . The case was adjourned until DATE .

On DATE the applicant made written submissions clarifying that her claim was based on section CARDINAL of ORG DATE ( “ the DATE LAW see paragraph DATE below ) .

At the hearing on DATE the parties made submissions on the evidence . The court also dealt with the applicant ’s submissions of DATE and instructed her to provide further clarifications .

Having received the applicant ’s clarifications , on DATE the court , sitting in private , noted that the applicant had based her claim on LAW and that therefore its examination had to start afresh because the procedure applicable to claims under LAW , unlike the one applicable to claims under the general law of tort , required the participation of a public prosecutor .

At the next hearing , held on DATE , the examination of the case started afresh . The court took note of the applicant ’s earlier submissions concerning the quantum of her claims , instructed the applicant to provide duly certified copies of certain documents that she wanted to adduce , and ordered a medical expert report . It also heard a witness called by the applicant , and adjourned the case until DATE to allow further evidence to be gathered .

The expert report was ready on DATE .

The last hearing took place on DATE .

The Sofia City Court gave its judgment on DATE . It awarded the applicant ORG CARDINAL,CARDINAL in respect of pecuniary damage ( the cost of the medicines that she had had to buy herself ) and LAW in respect of nonpecuniary damage . Applying section ORG ) of LAW , as worded at that time ( see paragraph CARDINAL below ) , the court ordered the applicant to pay BGN MONEY ( MONEY of ORG DATE the rejected part of her claim in respect of nonpecuniary damage ) in court fees .

Both parties appealed . The ORG requested CARDINAL additional expert reports .

On DATE ORG admitted certain documents enclosed by the parties with their appeals . It also partly acceded to the ORG ’s request and ordered an additional medical expert report . The report was filed on DATE .

The first hearing before ORG took place on DATE . The court admitted the medical expert report and heard the experts . Counsel for ORG contested parts of the report and requested a fresh report . The court did not accede to that request , but ordered the experts to recheck some of their conclusions in the light of the objections raised by counsel for ORG .

The experts filed their amended report on DATE . The court held a hearing on DATE , at which it admitted the amended report and reheard the experts . It also dealt with some other evidential requests and heard the parties’ closing arguments .

The Sofia Court of Appeal gave its judgment on DATE . It increased the award of nonpecuniary damages to BGN CARDINAL , plus interest at the legal rate ( see paragraph CARDINAL below ) running from DATE , and upheld the remainder of the lower court ’s judgment . It noted that as a result of the increase of the quantum of the award , the applicant owed only ORG CARDINAL,CARDINAL ( MONEY of ORG DATE the rejected part of her claim in respect of nonpecuniary damage ) in court fees in respect of the firstinstance proceedings . However , the court did not order the applicant to pay any fees in respect of the appellate proceedings .

The Sofia City Court and ORG both concluded that ORG was liable for the cost of the medicines that the applicant had been forced to buy on the open market and for the nonpecuniary damage suffered by the applicant as a result of the breakdown in the supply of those medicines . The courts found that ORG had , in breach of its duties under the applicable statutes and regulations , failed to organise certain public procurement tenders in a timely manner and had , moreover , bought insufficient quantities of certain medicinal products , which had not covered the needs of all cancer patients in GPE . Also , the system of distribution of those products had not been organised efficiently . The courts found that those omissions had been in breach of section QUANTITY of LAW ( see paragraph CARDINAL below ) , and had resulted in interruptions in the applicant ’s treatment requiring recourse to radiocastration , which had had the effect of irreversibly terminating her ovarian function and had , moreover , exposed her to harmful radiation possibly causing tumours . The courts also found that as a result of the Ministry ’s omissions the applicant ’s chances of overcoming her illness had decreased , that she had suffered lasting feelings of pain and distress , and that she had been negatively affected for the rest of her life . The only difference between their conclusions was that in the view of ORG the extent of the nonpecuniary damage suffered by the applicant was greater .

Both parties appealed on points of law . ORG heard the appeals on DATE .

In a final judgment of DATE ( реш. № CARDINAL от DATE г. по гр. д. № DATE г. , ORG , V г. о. ) , ORG fully upheld ORG judgment . Relying on section CARDINAL(CARDINAL ) of LAW , as worded at that time ( see paragraph CARDINAL below ) , it ordered the applicant to pay BGN CARDINAL ( PERCENT of ORG CARDINAL ) in court fees in respect of the cassation proceedings . It did not award any costs to the applicant . The court fully agreed with ORG assessment of the failure of the responsible ORG officials to organise in time the procurement of the medicinal products required for treating the applicant . It also shared the court of appeal ’s assessment of the extent of the damage suffered by the applicant . It noted that the court of appeal had omitted to order the applicant to pay fees in respect of the appellate proceedings , but went on to say that this was not an error that could be rectified in cassation proceedings .

On DATE the applicant asked ORG to vary its ruling in relation to court fees in the cassation proceedings and to award her costs in respect of those proceedings . In an additional judgment of DATE ( реш. № DATE от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , V г. о. ) , the court , noting that the newly added section CARDINAL ) of LAW ( see paragraph CARDINAL below ) had already taken effect when the applicant had made her request , decided to reduce the fee that the applicant had been ordered to pay in respect of the cassation proceedings from ORG CARDINAL,CARDINAL to ORG . The court turned down the applicant ’s request for the award of costs , noting that she had not been legally represented in the cassation proceedings and had not proved that she had incurred any costs .

In DATE the applicant gave a press interview in which she said , inter alia , that her health had improved .

Section CARDINAL of the Act originally called ORG Citizens Act DATE , renamed on DATE the ORG and ORG DATE ( “ the DATE LAW ) , provides that the ORG is liable for damage suffered by individuals ( and since DATE also legal persons ) as a result of unlawful decisions , actions or omissions by civil servants , committed in the course of or in connection with the performance of their duties .

Section CARDINAL(CARDINAL ) of the LAW provides that those seeking redress for damage occasioned in circumstances falling within the scope of the LAW have no claim under the general law of tort . The courts have said that the LAW is a lex specialis and excludes the application of the general regime ( реш. № PERCENT от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , GPE г. о. ; реш. от CARDINAL юли DATE г. по гр. д. № ORG г. , ORG , ORG , ІVб о. ) . ORG has said ( реш. № CARDINAL от CARDINAL ноември DATE г. по т. д. № CARDINAL/CARDINAL г. , ORG , I т. о. ) that liability under LAW is a special case of vicarious liability under LAW of ORG DATE , which provides that a person who has entrusted another with carrying out a job is liable for the damage caused by that other person in the course of or in connection with the performance of the job . The NORP courts have on occasion examined damages claims against the authorities under section DATE ( see the domestic case cited in First Sofia Commodities EOOD and PERSON v. GPE ( dec . ) , no . CARDINAL , § CARDINAL , DATE ) .

NORP The legal rate of interest is set by ORG ( section CARDINAL(CARDINAL ) of ORG DATE ) . In a decree of DATE ( Постановление № DATE от CARDINAL април DATE г. за определяне на законната лихва по просрочени задължения в левове и във валута ) ORG decided that the legal rate of interest for overdue debts in NORP levs would be the base interest rate fixed by ORG percentage points . The same position was maintained , with certain technical modifications , in a new decree that came into force on DATE and superseded the DATE one ( Постановление № CARDINAL от CARDINAL май DATE г. за определяне размера на законната лихва по просрочени задължения в левове и във валута ) .

The general rule in civil proceedings in GPE is that the court fee is payable by the claimant upfront , upon submission of the claim ( Article CARDINAL of the Code of Civil Procedure DATE , superseded on DATE by LAW DATE , and sections CARDINAL of LAW DATE ) . The fee in respect of money claims is MONEY of the amount claimed ( point CARDINAL of Tariff No . CARDINAL to LAW , superseded on DATE by CARDINAL of the LAW of fees collected by the courts LAW ) . If the claim succeeds fully or partly , the defendant is ordered to reimburse the claimant ’s costs , including court fees , in direct proportion to the successful part of the claim .

Under section ORG ) of LAW , as originally enacted , in proceedings under the LAW , no court fees or costs were payable by the claimant upfront , upon submission of the claim . However , if the claim was eventually wholly or partly dismissed , the court was to order the claimant to pay “ the court fees and costs due ” . The courts construed that provision as meaning that the claimant should pay fees calculated pro rata the dismissed part of the claim . As a result , where a court held that a claim for damages against the ORG was wellfounded but excessive as to quantum , it ordered the defendant ORG authority to pay damages to the claimant and at the same time ordered the claimant to pay court fees to the ORG budget . Where the claimant indicated too high an amount in the statement of claim , the fee could exceed the sum awarded in damages , the overall financial award being in favour of the ORG despite the finding that the claimant had suffered damage that called for compensation under the LAW ( реш. № DATE от CARDINAL г. по гр. д. № CARDINAL г. , ORG , реш. № CARDINAL от DATE г. по гр. д. № CARDINAL г. , ORG ) . There was no provision for judicial discretion and considerations of equity played no role in fixing the fees’ amount ; those fees were fixed by reference to the sums indicated in the statement of claim , even if in the course of the proceedings the claimant withdrew part of the claim ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по тълк. гр. д. № CARDINAL г. , ORG , ORG , точка CARDINAL ) .

Following this ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , DATE ) , which found that the setup outlined above had , on the facts of the case , resulted in a breach of LAW ( see a summary of the ORG ’s findings in paragraph CARDINAL below ) , ORG laid before ORG a bill for the amendment of the CARDINAL Act . ORG enacted the bill on DATE and the amending LAW came into force on DATE . Section CARDINAL ) was changed and now deals solely with costs . Court fees are presently governed by a newly added section CARDINAL ) , which provides that the fee due in respect of cases under the LAW is flat and is to be fixed in a tariff adopted by the ORG . Under the LAW of fees collected by the courts under LAW , as currently in force , the fee is ORG in respect of firstinstance proceedings , ORG in respect of appellate proceedings , and ORG in respect of cassation proceedings . Unlike the previous arrangement , the fee is payable upfront ( опр. № DATE от CARDINAL октомври DATE г. по адм. д. № DATE г. , PERSON , ORG ) .

Paragraph CARDINAL of the transitional and concluding provisions of the amending LAW provides that the new rule on court fees applies to proceedings which have not been concluded at the time when the new section CARDINALa(CARDINAL ) came into force , and that the fee is charged at the close of the proceedings in each instance .

In its caselaw under that paragraph , ORG in some cases held that the new rule on court fees applied not only in respect of fees charged by the cassation court after the rule had come into effect , but also in respect of fees charged by the lower courts before that , as long as the proceedings as a whole were pending at the time when the rule had come into effect ( реш. № CARDINAL от CARDINAL ноември DATE г. по гр. д. № DATE г. , ORG , I г. о. ; опр. № CARDINAL от CARDINAL декември DATE г. по гр. д. № DATE г. , ORG , I г. о. ; реш. № CARDINAL от CARDINAL февруари DATE г. по гр. д. № DATE г. , ORG , I г. о. ) . In CARDINAL case the court went as far as to set aside a writ of execution issued in respect of a court fee charged before the new rule had come into force ( опр. № CARDINAL от CARDINAL януари DATE г. по ч. гр. д. № GPE г. , ORG , PERSON г. о. ) .

However , in other cases ORG held that , since it referred to the close of the proceedings “ in each instance ” , the new rule could not serve as a basis for reducing the fees charged by the lower courts before it had come into effect ( реш. № CARDINAL от CARDINAL април DATE г. по гр. д. № DATE г. , ORG , I г. о. , реш. № CARDINAL от CARDINAL април DATE г. по гр. д. № DATE г. , ORG , I г. о. ) . In some cases the court held that the rule did not apply to the fees charged by the lower courts before it had come into effect because it did not have retrospective effect ( опр. № CARDINAL от CARDINAL март DATE г. по гр. д. № DATE г. , ORG , ORG г. о. , опр. № CARDINAL от CARDINAL ноември DATE г. по гр. д. № DATE г. , ORG , PERSON г. о. ) .

The text of the provision governing the “ complaint about delays ” – Article CARDINALa of the Code of Civil Procedure DATE has , along with the provisions of LAW DATE that superseded it in DATE , been set out in DATE of the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) .

Under LAW , which came into force on DATE , a person may bring proceedings to enjoin an administrative authority to carry out an action that it has the duty to carry out under a legal provision . If the court allows the claim , it enjoins the authority to carry out the action and fixes a timelimit .

In DATE a cancer patient who had , due to a breakdown of supplies , not been provided with iodineCARDINAL for postoperative radiotherapy free of charge , as required under the applicable regulations , brought proceedings under Article CARDINAL to enjoin the Minister of Health to make the product available to the hospital that was treating her .

On DATE ORG dismissed the claim . On an appeal by the patient , in a decision of DATE ( опр. № CARDINAL от DATE г. по адм. д. № CARDINAL/CARDINAL , PERSON , ORG ) a threemember panel of ORG quashed the lower court ’s decision , holding that the claim fell within its competence and that it should not have been examined by the lower court .

On DATE a threemember panel of ORG dismissed the claim ( реш. № DATE от CARDINAL май DATE г. по адм. д. № DATE г. , ORG ) . On an appeal by the patient , in a judgment of CARDINAL DATE ( реш. № DATE от CARDINAL февруари DATE г. по адм. д. № DATE г. , PERSON , петчленен състав ) a fivemember panel of ORG quashed the threemember panel ’s judgment and remitted the case .

In a judgment of DATE ( реш. № DATE от CARDINAL юли DATE г. по адм. д. № ORG г. , ORG ) the threemember panel to which the case had been remitted allowed the claim and enjoined the Minister to complete within DATE the relevant procurement procedures . Having reviewed in considerable detail the applicable constitutional and statutory provisions and regulations , and having examined the Minister ’s actions in relation to the procurement of the relevant anticancer products , it found that the patient was entitled to receive iodineCARDINAL for her medical treatment and that the Minister was under a legal duty – which he had failed to discharge DATE to provide it to the hospitals which were treating her . It also noted that , in as much as the claimant was seeking redress in respect of the damage that she had already suffered as a result of the Minister ’s omission , she could seek reparation by way of a claim under section CARDINAL of LAW ( see paragraph CARDINAL above ) .

On an appeal by the Minister , in a final judgment of CARDINAL DATE ( реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № DATE г. , PERSON , петчленен състав ) a fivemember panel of ORG upheld that judgment , fully agreeing with its reasoning .

Parallel to those proceedings , the patient also brought a claim for damages under section CARDINAL of the CARDINAL Act ( see paragraph CARDINAL above ) , and in a judgment of DATE ( реш. № CARDINAL от CARDINAL април DATE г. по адм. д. № DATE г. , ORG , ORG о. , CARDINAL състав ) , ORG awarded her BGN CARDINAL in nonpecuniary damages . On an appeal by the Minister of Health , on CARDINAL DATE ORG upheld that judgment ( реш. № CARDINAL от CARDINAL януари DATE г. по адм. д. № ORG г. , PERSON , ORG ) .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in ORG .

At the material time the applicant was editor - in - chief of the local DATE newspaper “ Iławski Tydzień ” .

On DATE the newspaper published an article coauthored by the applicant , entitled “ Municipality in danger ; authorities fail to see problem ” . It described in detail the situation concerning the sewage system in the Iława municipality . The thrust of the article was that the sanitary situation in the municipality was a matter of concern and posed significant public health risks ; extensive investments were necessary to improve it ; there was a serious shortage of available funds ; the municipal authorities were dealing with the problems in a slow and incompetent manner ; it was more important for them to save money than to prevent serious health risks and to avert a danger to the population ; the quality of water was unsatisfactory ; and the mayor , despite the fact that he had been in office for CARDINAL terms , had failed to deal with the problems properly .

In a letter to the newspaper of the same date the mayor of ORG complained about the article . The first paragraph of that letter was couched in ironic terms . The mayor expressed doubts about the applicant ’s intentions and suggested that the applicant had been acting in his own personal interest . He maintained that the general tone of the article was inappropriate . He also voiced doubts as to whether the newspaper had any readers at all and whether it was therefore worth his while to react to the article .

He further requested , referring to section CARDINAL § CARDINAL read together with section CARDINAL of LAW DATE , that the applicant publish a rectification ( see paragraph CARDINAL below ) . He stated that the development of the sewage network was a priority for the municipal authorities and listed a number of projects undertaken by the municipality during DATE . Further , CARDINAL projects planned for DATE were listed . The mayor stated that the quality of the water was monitored by the appropriate services and referred to several projects for modernising and overhauling the existing sewage and sanitary systems .

The applicant did not reply to this letter and did not publish it .

On an unspecified later date the municipality of ORG brought a private bill of indictment against the applicant before LOC for the offence of failure to publish a rectification or reply as prescribed by section QUANTITY of LAW ( see paragraph CARDINAL below ) .

NORP In his written pleadings of CARDINAL DATE the applicant argued that the mayor ’s letter could not reasonably be regarded as a request for rectification within the meaning of LAW CARDINAL of LAW , because its content lacked the essential characteristics of a “ rectification ” . It was not related to the facts and it was not couched in objective terms , as stipulated by that provision . In fact , its first part , in particular , was very critical of the applicant and contained innuendos about his character , motives and about the newspaper and its journalists . This alone made it impossible to regard the letter as a request for rectification . Furthermore , the style of the letter lacked the objectivity which could be expected of a rectification . It could therefore not be reasonably seen as such . It resembled rather a “ reply ” , within the meaning of the same provision of LAW , expressing the value judgments and views of its author vis - à - vis the impugned article . Even assuming that the letter could be seen as a rectification , it did not comply with the relevant requirements laid down by LAW of LAW as it was more than twice the length of the contested article .

The applicant further submitted that the letter could not be seen as a rectification request because it breached his personal rights and the rights of other journalists working for the “ LOC ” , by calling into doubt their professionalism and personal integrity . The applicant referred to section CARDINAL of LAW , which obliged an editor - in - chief to refuse the publication of a rectification or a reply if its form or content were incompatible with the principles of co - existence with others ( “ zasady współżycia społecznego ” ) .

On DATE ORG found the applicant guilty of an offence punishable by section CARDINAL § CARDINAL of LAW in conjunction with its section CARDINAL § CARDINAL . The court sentenced the applicant to CARDINAL months’ restriction of liberty in the form of CARDINAL ORG community service per DATE and suspended the sentence for DATE . It further deprived him of the right to exercise the profession of journalist for DATE and ordered that the judgment be made public by being displayed at ORG .

The court noted that the facts of the case , for the most part , were not disputed by the parties . It found that the applicant had not replied to the mayor ’s letter and had not published that letter or excerpts thereof , either as a rectification or reply . It noted that he was clearly obliged to do so under the provisions of LAW . He was aware of his obligation as he had previously published rectifications in the newspaper . No objective grounds existed which could be said to have legitimately prevented the applicant from complying with that obligation and , in any event , he had not invoked any such grounds . It was the applicant ’s own decision to refuse to publish the rectification requested . Similarly , he had failed to reply to the mayor , explaining to him the reasons for his refusal to publish . His failure corresponded to the offence specified in section CARDINAL of LAW read together with LAW .

The judgment further read :

“ The above assessment of the [ applicant ’s conduct ] is additionally supported by the fact that in the impugned article he had discussed a question of significant importance for the municipality of ORG , namely the condition of its sewage system , by saying that the mayor had failed to take effective steps in order to have the sewage system installed . Assuming that the accused took into consideration the significance of his article , he should have , as a diligent journalist and editor - in - chief , either published the rectification demanded by the municipality , which directly concerned the questions raised in the article and outlined the steps which the municipality had already taken , or informed the municipality of the grounds for his refusal to publish a rectification . ”

The court further held that the applicant ’s failure to publish the mayor ’s letter had been to the serious detriment of the Iława municipality as by making it impossible for a fair and public debate to develop it had undermined the confidence which a democratically elected municipal executive authority should enjoy .

The applicant appealed , essentially reiterating his arguments as submitted to the first - instance court .

On DATE ORG upheld the contested judgment .

Article CARDINAL of the LAW provides :

“ CARDINAL . Freedom to express opinions , and to acquire and disseminate information shall be ensured to everyone .

Preventive censorship of means of social communication and licensing of the press shall be prohibited . ”

LAW reads :

“ CARDINAL . Freedom of the person shall receive legal protection .

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

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

Article CARDINAL of the LAW , regarding the effects of judgments of ORG , provides , in so far as relevant :

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

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

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

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

NORP The relevant provisions concerning the correction of information in the press and other media are contained in LAW ( Prawo prasowe ) of DATE .

Section CARDINAL provides , in so far as relevant , as follows :

“ At the request of a natural or legal person or other organisational entity , the editorin - chief of the relevant DATE or magazine is under an obligation to publish , free of charge :

a factually based ( rzeczowe i odnoszące się do faktów ) rectification of untrue or inaccurate statements ,

a factually based ( rzeczową ) reply to any statement which might infringe someone ’s personal rights ”

“ ... Without the consent of the claimant , it is forbidden to shorten or make any other amendments to the correction or reply which would weaken its significance or alter the intentions of the author . The correction may not be commented upon in the same edition or broadcast ... ”

“ CARDINAL . The editor - in - chief is under an obligation to refuse publication of the rectification or reply if :

CARDINAL ) it does not fulfil the requirements laid down in DATE ( ... )

The editor - in - chief , when refusing to publish a rectification or reply , shall , without undue delay , send the claimant written notification of the refusal and the reasons for it . If the refusal is based on reasons referred to in subsection ( CARDINAL ) , the editorin - chief shall indicate those parts which can not be published ; the DATE time - limit for producing an amended correction or reply starts running again from DATE on which the refusal and its justification were delivered . The editor can not refuse to publish a rectification or reply which has been amended in accordance with his or her indications . ”

Section CARDINAL provides for the following penal provision :

“ Whosoever , in breach of the statutory obligation , refuses to publish a rectification or reply , as referred to in DATE , or who publishes such a rectification or reply contrary to the conditions laid down in this LAW , shall be subject to a fine or a restriction of liberty . ”

In a judgment of CARDINAL DATE ORG ( P CARDINAL ) examined the constitutionality of the prohibition on making editorial comments on a request for rectification in the same issue of a newspaper in which the rectification was published , which was at that time provided for by section CARDINAL § CARDINAL of LAW DATE and backed up by a criminal sanction provided for by section CARDINAL § CARDINAL of that Act .

In the light of section CARDINAL § CARDINAL of LAW , the prohibition on publishing comments on requests for rectifications was not absolute , since it was permissible to include such comments in the next issue or broadcast . That prohibition was necessary to protect the freedom of expression of the person having submitted the request for rectification . The challenged provisions of LAW made it possible to maintain a balance of power between the media and persons submitting requests for rectifications to be published , with the latter generally having more limited opportunity to publicly express their views .

The court further noted that the practical application of section CARDINAL had given rise to serious difficulties in judicial practice ; LAW did not formulate any conditions concerning either the form or the substance that would allow for a clear categorisation of a given request submitted to an editor - in - chief as a “ rectification ” or a “ reply ” . Hence , editors could have DATE and in practice did have – serious problems in classifying such submissions . Since it was impossible to provide an unambiguous interpretation of the relevant criminal law norm and no uniform interpretation had been developed in practice , the challenged provision ( that is , section CARDINAL § CARDINAL of LAW ) failed to respect the principle nullum crimen sine lege , enshrined in LAW .

As a result , the prohibition on commenting on a rectification in the same issue , hitherto based on that provision , was deprived of its criminal sanction . The remaining elements of the criminal law provision contained in section CARDINAL § CARDINAL of LAW retained their binding force .

The court further observed that the prohibition expressed in section QUANTITY of LAW should be secured by an adequately effective sanction , independently of civil liability . It should take into account the principle of proportionality and assume , on the one hand , the protection of the interests of those harmed by press publications and , on the other hand , values linked to the freedom of expression .

On DATE ORG held that section CARDINAL § CARDINAL , sections CARDINAL and CARDINAL § CARDINAL of LAW were incompatible with LAW . It reiterated its findings concerning the lack of precision in the manner in which criminal offences punishable under those provisions were defined . It further held that as a result of the judgment those provisions were to lose their binding force no later than DATE after the judgment was officially published . Until that time , they should be applied by the courts .

DATE the Civil Code contains a non - exhaustive list of rights known as “ personal rights ” ( dobra osobiste ) . This provision states :

“ The personal rights of an individual , such as , in particular , health , liberty , reputation ( cześć ) , freedom of conscience , name or pseudonym , image , secrecy of correspondence , inviolability of the home , scientific or artistic work , [ as well as ] inventions and improvements shall be protected by the civil law regardless of the protection laid down in other legal provisions . ”

Article CARDINAL of the Civil Code provides for ways of redressing infringements of personal rights . In accordance with that provision , a person facing the threat of an infringement may demand that the prospective perpetrator refrain from the wrongful activity , unless it is not unlawful . Where an infringement has taken place , the person affected may , inter alia , request that the wrongdoer make a relevant statement in an appropriate form , or claim just satisfaction from him or her . If an infringement of a personal right causes financial loss , the person concerned may seek damages .

Under LAW of LAW , a person whose personal rights have been infringed may seek compensation . That provision , in its relevant part , reads :

“ The court may grant an adequate sum as pecuniary compensation for non - material damage ( krzywda ) caused to anyone whose personal rights have been infringed . Alternatively , the person concerned , regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained , may ask the court to award an adequate sum for the benefit of a specific public interest ... ”


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

On DATE the applicant filed an action with ORG ( Arbeits- und ORG ) against her employer , ORG ( PERSON ) . She requested the ORG to order her employer to annul her transfer from CARDINAL department of the hospital where she was working as a nurse to another department .

On DATE ORG granted the applicant 's action by a judgment in default ( ORG ) and ordered the defendant to reimburse the applicant 's costs , i.e. CARDINAL NORP Schillings ( ORG ) .

On DATE ORG filed an appeal against the costs order ( ORG ) . It submitted that the costs had not been calculated correctly under LAW Rechtsanwaltstarifgesetz ) and requested their reduction . This appeal was not transmitted to the applicant .

On DATE ORG ( Oberlandesgericht ) , sitting in camera , granted the appeal , recalculated the costs to be reimbursed and reduced them to ORG CARDINAL,CARDINAL .