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

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

The applicant was born in 1950 and lives in Belgorod.

The applicant is a businessman and a former controlling shareholder of a private company OAO “Restoran Belgorod”. According to the applicant, in 1997 a number of third persons produced a fake sales contract in respect of his shares in the company, as well as a fake register of the shareholders. They then tried to gain control over the company. Thereafter the matter was brought before the domestic courts.

On 27 April 1998 the Oktyabrskiy District Court of Belgorod, presided by judge B., dismissed the applicant's action to have the sale annulled and the register of shareholders declared fake and illegal. The court refused to order a forensic examination of the evidence, including a copy of the register of shareholders and the registrar's book of records, which the applicant had claimed were fake, and having admitted and considered them, rejected the applicant's action as groundless.

On 10 September 1998 that judgment was upheld on appeal by the Belgorod Regional Court.

On 18 September 1998, at the applicant's request, a police investigator initiated criminal proceedings for fraud against a number of third persons. On 28 October 1998 the investigator ordered an expert examination of the documents which the applicant had claimed were fake in the proceedings presided over by judge B.

On 4 and 12 November 1998 the respective examinations were completed. They confirmed that the copy of the register of shareholders and the registrar's book of records had been tampered with and that some of the entries had been fraudulently deleted or altered.

It appears that on 22 November 2001 the criminal investigation was discontinued.

Thereafter the case was repeatedly suspended and resumed.

The latest decision to resume the proceedings was taken on 5 September 2002. The outcome of the investigation is unclear.

On 23 March 2000 the applicant wrote a letter to the Prosecutor of the Belgorod Region with a copy to the Prosecutor General of Russia, alleging that in the course of the proceedings in his case in 1998 judge B., “acting in the exercise of her duties, had committed a crime by delivering a deliberately unjust decision knowingly based on incorrect and sometimes even openly forged documentary evidence”. The letter set out the applicant's views on the circumstances of his case, referred to the outcome of forensic examinations carried out by the investigator in the criminal case and requested the responsible officials to bring criminal proceedings against judge B.

Identical letters were sent to the President of the Belgorod Regional Court and the head of the Judiciary Qualification Board on 12 May 2000.

In response to the letter of 23 March 2000, on an unspecified date the President of the Belgorod Regional Court and judge B. requested the Regional Prosecutor's office to bring criminal proceedings against the applicant for libel.

By decision of 6 April 2000 an investigator instituted proceedings against the applicant for libel.

On 27 September 2000 the applicant was questioned as a witness and stated that judge B. had received bribes.

On 18 May 2001 those proceedings were discontinued because of an amnesty law.

On an unspecified date judge B. sued the applicant for defamation, claiming 75,000 roubles (RUB - approximately 3,000 euros (EUR)) in damages and seeking an order for the retraction of the impugned statements.

By judgment of 7 June 2002 the Sverdlovskiy District Court of Belgorod granted the claims in full. The court noted that the judicial decision taken by judge B. remained in force and that the applicant had used all possible remedies against it by instituting appeal proceedings. Without examining the form or accuracy of the statements made by the applicant in his letter and having refused his requests for the admission of evidence, the court concluded that the applicant had defamed judge B. It ordered the applicant to send the Prosecutor General of Russia, the Prosecutors of Belgorod and the Belgorod Region, the President of the Belgorod Regional Court and the Judiciary Qualification Board of the Belgorod Region a letter retracting his previous allegations against judge B. The court also awarded judge B. RUB 75,000 (approximately EUR 3,000) in non-pecuniary damages.

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

On appeal the Belgorod Regional Court reduced the award of damages to RUB 20,000 (approximately EUR 800) and upheld the rest of the judgment on 10 September 2002.

By a final decision of 18 November 2003 the Belgorod Regional Court rejected the applicant's action to annul the transfer of his property to a number of third persons.

By a judgment of 4 February 2003 the Oktyabrskiy District Court rejected his application to annul a lease agreement between the applicant and a certain commercial entity.

Article 33 of the Constitution of the Russian Federation provides that citizens of the Russian Federation have the right to apply in person, as well as to submit individual and collective applications, to state bodies and local government institutions.

Article 152 of the Civil Code of the Russian Federation provides that a citizen may apply to a court to have information damaging his or her honour, dignity or professional reputation retracted unless the person who disseminated such information proves its accuracy. In addition to retraction, the citizen may also claim compensation for losses and non-pecuniary damage sustained as a result of the dissemination of such information.

Section 2 of Resolution no. 11 of the Plenary Session of the Supreme Court of the Russian Federation of 18 August 1992 (as amended on 25 April 1995) “On certain issues arising during the examination by courts of action for the protection of the honour and dignity of citizens, and also the professional reputation of citizens and legal entities” defines damaging information as information which is inaccurate and contains assertions that a citizen has broken the law or transgressed moral principles as well as impairing the honour or dignity of a citizen or the professional reputation of a citizen or a legal entity. The dissemination of such information is understood as the publication or broadcasting of such statements or their inclusion in professional references, public speeches, applications to State officials or communication in other forms, including oral, to at least one another person. The communication of such information to the person whom it concerns cannot be considered as its dissemination.

Section 7 of the Resolution lays the burden of proof on the defendant to show that the information disseminated was accurate; the plaintiff must prove only that the defendant disseminated the information.


Remainder inadmissible;No violation of P1-1

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

In 1996 the Gdańsk Municipal Office issued an initial approval for a development project on land owned by the applicant (decyzja o warunkach zabudowy i zagospodarowania terenu) providing, on the basis of a local land development plan adopted in 1993, for the improvement and resurfacing of Słowacki Street and the construction of a roadway. On 18 December 1997 the Gdańsk Municipal Council adopted a local land development plan for the construction of a road junction in the vicinity of the applicant’s land, indicating that there was a pressing need to improve and widen a road leading from the city centre to the airport. On 21 December 1999 the Gdańsk Municipal Office (Urząd Miejski) issued another approval for the construction of the roadway, based on the provisions of the local land development plan adopted on 18 December 1997.

On 29 March 2000 the Pomorze Governor approved a construction project for the roadway.

The applicant owned forty-three plots of a total surface of 4.77 hectares. In September 1999 an estimate of the value of seven plots, covering 6,656 square metres, was prepared by expert R.Ż. with a view to their expropriation. That expert assessed the market value of the land at 479,919 Polish zlotys (PLN).

On 21 October 1999 a negotiation meeting was held at the Gdańsk Municipal Office. The town offered PLN 479,912 as compensation for plots nos. 47/30, 47/32, 47/34, 47/36, 55/7, 60/1 and 61, at PLN 70.08 per square metre, calculated on the basis of the September 1999 estimate. The applicant refused to accept this price and argued that the market value of a square metre of similar land in the town was approximately PLN 600.

In February 2000 another expert, J.K., estimated the value of the applicant’s properties at PLN 63.70 per square metre, based on the agricultural character of the land. On 2 March 2000, referring to that report, the Gdańsk Municipal Office, acting on behalf of the Mayor of Gdańsk, fixed a two-month time-limit for the applicant to conclude a contract for the sale of her land for the sum of PLN 479,912. It informed her that if further negotiations failed, expropriation proceedings would be instituted and the land would be expropriated against payment of compensation in the amount of PLN 423,987.

On 26 April 2000 another negotiation meeting was held. The Municipal Office proposed conditions identical to those proposed in October 1999. The applicant reiterated her position as to the price and submitted that she would accept replacement property within the limits of the municipality as compensation.

On 8 May 2000 expropriation proceedings were instituted.

On 29 May 2000 an administrative hearing was held in the Gdańsk Municipal Office. The applicant proposed that the City should give her PLN 300 per square metre for her land, but her offer was rejected. The applicant again suggested that she should be given other plots in exchange for her land, but that solution was rejected on the ground that the City did not have any suitable plots at its disposal.

In June 2000 expert J.K. updated the estimate, having regard to the passage of time and the increase in market prices. She assessed the price of the applicant’s land at PLN 439,296. In the same month, an expert commissioned by the applicant assessed the price of the land at PLN 2,374,749.

On 27 June 2000 the Mayor of Gdańsk gave a decision by which the seven plots referred to in paragraph 7 above were expropriated. The amount of compensation for the land and the fence constructed on it was fixed at PLN 465,537. It was to be paid within 14 days from the date on which the expropriation decision became final. He observed that the amount of the compensation had been fixed on the basis of an estimate prepared by an expert, with reference to prices of similar plots on the local real estate market in June 2000.

The applicant appealed. She argued that the decision was in breach of sections 128, 130 and 134 of the Land Administration Act 1997. She submitted that it was based on the estimate drawn up in September 1999, which no longer reflected current prices of land. She referred to the caselaw of the Supreme Administrative Court according to which compensation for expropriated land should take into consideration current local market prices for similar types of land and, also, prices of such land sold by the municipality by way of tender. She referred to a privately commissioned estimate prepared by a certified expert (see paragraph 13 above), according to which the price of 1 square metre of comparable land in Gdańsk at that time was PLN 356.

On 25 January 2001 the Pomorze Regional Office, acting on behalf of the Pomorze Governor, upheld the expropriation decision, noting that it had been given in order to have the local land development plan implemented. The expropriation was therefore in the public interest. The negotiations between the parties had failed. Two estimates drawn up for the purpose of the negotiations were consistent and indicated, in the light of prices paid for properties of a similar character and location, that the market value of the property concerned was PLN 60-70 for 1 square metre. In the circumstances, the decision was lawful.

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

At a hearing held on 23 May 2001 the applicant applied for a stay of the enforcement of the expropriation decision. The court refused, noting that the enforcement of the decision had been stayed ex lege because of the authorities’ failure to submit their reply to the applicant’s appeal within the time-limit.

By a judgment of 25 July 2001 the Supreme Administrative Court quashed the Governor’s decision. The court observed that the modernisation of Słowacki Street was in the public interest as it was a part of the No. 7 trunk road. It further noted that in the light of the documents in the case file it had not been shown beyond doubt that the expropriation of all of the applicant’s designated plots had been necessary in order to implement the road construction project. In their decisions the authorities had failed to refer to the maps and plans prepared in connection with the local land development plan and road construction projects to show that the plots concerned were indeed covered by those projects.

The court further addressed the question of the compensation fixed by the contested decision. It noted that the authorities, when holding the administrative hearing on 29 May 2000, had failed to respect the relevant procedural provisions. Under the provisions of Article 89 of the Code of Administrative Procedure the purpose of an administrative hearing was to ensure, in a situation where there was a discrepancy between expert opinions as to compensation, that the experts were questioned and the discrepancy elucidated. Furthermore, the parties should have been given an opportunity to put questions to the experts and to make oral statements before the administrative authority. No such measures had been taken. The court noted that the hearing had been held prior to the date on which the last expert opinion concerning the compensation had been prepared. There was no proof in the case file that this last opinion had ever been served on the applicant.

The judgment with its written reasons was served on the applicant’s lawyer on 9 August 2001.

The expropriation and compensation proceedings before the appellate authority were later conducted again. The Pomorze Regional Office informed the parties that the administrative hearing would be held again and requested the Gdańsk Municipal Office to submit further evidence as to the prices of similar properties. Ultimately two hearings were held, on 3 September 2001 and 22 January 2002. Three experts were questioned. The parties were invited to consult the case file.

On 25 February 2002 the Pomorze Governor upheld the firstinstance decision in its part concerning the expropriation. He fixed the amount of compensation to be paid to the applicant at PLN 554,898. He referred to the expert opinions prepared for the purposes of the proceedings and explained which evidence and conclusions had been considered credible. He reiterated that the land concerned was of an agricultural nature.

Compensation was paid to the applicant on 27 February 2002. She accepted it, but observed that the amount was unsatisfactory. She subsequently appealed, submitting that the method by which the compensation had been fixed was to her detriment, that the second-instance authority had failed to respect the guidance contained in the judgment of the Supreme Administrative Court and that the amount of compensation did not reasonably correspond to the value of the land.

On 31 May 2005 the Supreme Administrative Court quashed the contested decision, finding that the method used to establish the value of the expropriated land was not in compliance with the applicable legal regulations. In particular, the expert opinion prepared by J.F., heavily relied on by the first-instance authority, was based on prices applicable in June 2000. The proceedings were subsequently conducted again. The Governor invited the parties to submit new evidence and to consult the case file. Another expert was appointed and submitted his evaluation report, assessing the value of the applicant’s property at PLN 725,231.

On 28 April 2006 another administrative hearing was held before the second-instance authority. A time-limit was fixed for the parties to submit new evidence. Both the applicant and the Gdańsk Municipal Office availed themselves of that right.

On 4 July 2006 the Governor issued a new decision. It upheld the first-instance expropriation decision and increased the amount of compensation to PLN 725,232, with reference to the new expert report.

On 2 August 2006 the applicant, represented by a lawyer, appealed, submitting arguments similar to those on which she had relied in her previous appeal.

On 3 August 2006 the applicant revoked the power of attorney given to her lawyer.

On 29 September 2006 the Gdańsk Administrative Court rejected her appeal, noting that the applicant had failed to pay court fees. This decision was served on the applicant’s new lawyer on 18 October 2006.

On 22 October 2006 the applicant requested the court to grant her retrospective leave to appeal out of time. She submitted that she had dismissed one lawyer and retained another one during the appellate proceedings. She had not been aware that the court fee should have been paid.

On 29 December 2006 the Gdańsk Administrative Court refused to grant the applicant retrospective leave to appeal out of time, considering that she had failed to inform the court about the alleged changes in her legal representation and to demonstrate that she had not been at fault in failing to pay the court fee. The applicant’s new lawyer appealed against that decision.

On 2 March 2007 the Supreme Administrative Court upheld the refusal to grant the applicant leave to appeal out of time. It observed that the applicant had failed to show that she had not been at fault in neglecting to pay the court fee. She had informed the first-instance court of her decision to revoke her first lawyer’s power to act on her behalf on 24 October 2004. Under the applicable procedural provisions, that was the date on which the revocation had taken effect.

As a result, the first-instance decision on expropriation and compensation became final. On 27 April 2007 the Gdańsk Municipality paid the applicant the outstanding amount of PLN 170,333.

On 20 September 2006 the Gdansk District Court rejected the applicant’s claim by which she sought compensation for the fact that from September 2000 onwards the municipality had been using her land without a valid expropriation decision. The court considered that the applicant’s claim could not be examined before a civil court and had to be dealt with in administrative proceedings.

By a decision of 16 May 2001 the Pomorze Regional Office, acting ex officio, stayed the enforcement of the expropriation decision given on 25 January 2001 (see paragraph 14 above), having regard to the fact that the applicant had lodged an appeal against it. It referred to section 9 of the Land Administration Act.

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

On 29 June 2001 the President of the National Housing and Local Land Development Office quashed the contested decision on formal grounds and ordered that the enforcement issue be re-examined.

On 10 August 2001 the Pomorze Regional Office, acting ex officio, resumed the enforcement of the expropriation decision, having regard to the judgment of the Supreme Administrative Court of 25 July 2001 dismissing the applicant’s appeal against the requisition order (see paragraph 43 below). It observed that following that judgment, the Office had a legal right to take possession of the land concerned, which was needed for the construction project.

After the first-instance expropriation decision had been given on 27 June 2000 (see paragraph 14 above) and when the applicant’s appeal against it was pending, on 7 August 2000 the Mayor of Gdańsk issued a requisition order allowing the Gdansk Road Management Office, on the basis of Article 122 of the Land Administration Act, to take possession of the applicant’s property with a view to starting construction work. He stated that it was necessary in order to proceed with the implementation of the already well-advanced road construction project and to prevent serious social and financial costs that further delay in the realisation of that project would cause.

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

In September 2000 road construction work commenced on the neighbouring plots. No work had yet been carried out on the applicant’s land. On 5 September 2000 the applicant applied to the Gdańsk Regional Building Works Inspector for the work on her land to be stopped. On 6 October 2000 the Inspector informed the applicant that no work had yet been conducted on her land. On 20 October 2000 on-the-spot inspection, in the presence of the applicant, confirmed that fact.

On 5 December 2000 the Governor of Pomorze dismissed the applicant’s appeal against the requisition order of 7 August 2000, fully endorsing the arguments relied on by the first-instance authority.

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

On 23 May 2001 the court refused the applicant’s request for a stay of the enforcement of the requisition order, holding that to allow her request would defeat the very purpose of the requisition order.

On 15 June 2001 the Pomorze Regional Office requested the Supreme Administrative Court to give priority to the examination of the applicant’s appeal against the requisition order, referring to the fact that the construction work had been seriously delayed because no work could be done on the applicant’s land. The significant investment of public funds, the advanced stage of realisation of the project and the serious disturbance to traffic caused by the construction work called for priority to be given to the case.

By a judgment of 25 July 2001 the Supreme Administrative Court dismissed the applicant’s appeal. It observed that the expropriation proceedings had been conducted with a view to modernising the town’s road network, facilitating access to the local airport and reducing the number of road accidents on Słowacki Street. This was clearly in the public interest. The fact that the municipality had no final legal title to occupy the applicant’s property was the only remaining obstacle to starting the construction work on that property. It also hindered progress of the construction work carried out on the neighbouring properties. The Court referred to Article 122 of the Land Administration Act, which expressly provided for requisition orders in the absence of final expropriation decisions if a delay would make the implementation of a public-interest project impossible.

On 13 December 2000 the company commissioned by the municipality to carry out the work – the above-mentioned Gdansk Road Management Office – applied to the Gdańsk Municipal Office for a building permit for road construction work to be carried out on the applicant’s land. In April 2001 the applicant applied for the proceedings to be stayed, arguing that in the absence of the final decision on expropriation the Office had no legal right to take possession of her land. On 13 April 2001 the Road Management Office requested the Municipal Office to take steps to resolve the difficulties concerning the legal status of the applicant’s land, arguing that construction work on that stretch of road had advanced, with the exception of the 300 metres planned on the applicant’s land.

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

On 10 August 2001 the Pomorze Regional Office resumed the proceedings, having regard to the judgment of the Supreme Administrative Court of 25 July 2001 dismissing the applicant’s appeal against the requisition order (see paragraph 18 above). It observed that that judgment had conferred on the building company the right to take possession of the applicant’s land for construction purposes, even in the absence of a final expropriation decision confirmed by the administrative court.

On 14 August 2001 the Pomorze Regional Office issued the building permit as per the application, thereby authorising the construction company to start the construction work on the plots concerned. The applicant appealed against that decision, reiterating that as long as she had not been expropriated no one had the right to build on her land.

On 16 August 2001 the construction company took possession of the applicant’s land. The construction work started shortly afterwards.

On 12 November 2001 the Chief Building Works Inspector dismissed the applicant’s appeal and upheld the building permit. The applicant appealed, reiterating essentially that the building permit could not be given because the expropriation proceedings had not been concluded.

On 22 May 2002 the construction of the road was officially completed. On 23 January 2002 a decision authorising use of the road by the public was given.

On 27 June 2003 the Supreme Administrative Court dismissed the applicant’s appeal against the building permit. It dismissed the applicant’s arguments that the building company had had no legal right to take possession of her land. It noted that the first-instance expropriation decision had been given on 7 June 2000 (see paragraph 14 above). On 7 August 2000 the first-instance requisition order had been given (see paragraph 37 above). The latter order had become final and enforceable following the judgment of 25 July 2001 (see paragraph 43 above). The court held that that judgment had to be deemed to have conferred on the building company the right to possess the land within the meaning of the building regulations.

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

A requisition order should be assessed in the context of the expropriation proceedings seen as a whole. Such an order was usually given after the first-instance expropriation decision had been issued. The applicable legal regulations expressly allowed for such orders to be given. The court referred to Article 108 of the Code of Administrative Procedure and to section 122 of the Land Administration and Expropriation Act 1997. Expropriation and requisition orders were two different legal institutions. They conferred different rights on the public authorities. A requisition order was clearly of a temporary character. It was obvious that its legal effects differed from those produced by a decision on expropriation. However, it conferred on the authorities a right to take possession of the land and to use it for public-benefit purposes. By introducing a requisition order into the Land Administration and Expropriation Act 1997 the legislature had intended to avoid situations where expropriation could be blocked as a result of appeals lodged by the affected parties.

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

A requisition order could not per se be regarded as a violation of ownership. It did not replace the expropriation decision and did not deprive the owner of his or her ownership right; at most it limited it temporarily until the termination of the expropriation proceedings. This was justified under Article 64 § 3 of the Constitution (see paragraph 59 below). The court recalled that the right of property was not an absolute right.

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

Article 21 of the Constitution provides:

“1. The Republic of Poland shall protect ownership and the right of succession.

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

Article 31 of the Constitution reads:

“Freedom of the person shall receive legal protection.

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

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

Article 64 of the Constitution provides:

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

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

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

On 1 January 1998 the Land Administration Act of 21 August 1997 (Ustawa o gospodarce nieruchomościami – “the Land Administration Act”) entered into force. Under section 112 of that Act expropriation consists in the removal, by way of an administrative decision, of ownership rights or other rights in rem. Expropriation can be carried out where public-interest aims cannot be achieved without restriction of those rights and where it is impossible to acquire those rights by way of a civil law contract.

Under section 113 an expropriation can be carried out only for the benefit of the State Treasury or the local municipality.

Section 122 provides that in cases defined by Article 108 of the Code of Administrative Procedure (see paragraph 68 below) the administrative authority is empowered to issue a requisition order allowing an entity carrying out works for the public benefit to enter and take possession of land in respect of which a decision on expropriation has been given, if a delay would make realisation of the public-benefit works impossible. A clause of immediate enforceability (rygor natychmiastowej wykonalności) may be issued in respect of such an order.

In accordance with section 128 § 1 of the Act, expropriation is to be carried out against payment of compensation corresponding to the value of the property right concerned. Under section 130 § 1 of the Act, the amount of compensation is fixed regard being had to the status and value of the property on the day on which the expropriation decision was given. The value of the property is estimated on the basis of an opinion prepared by a certified expert.

Section 131 provides for the possibility of awarding the expropriated owner a replacement property if he or she so agrees.

Pursuant to section 132, compensation must be paid within fourteen days from the date on which the expropriation decision becomes subject to enforcement.

Section 134 provides for the market value of the expropriated property to serve as a basis on which the amount of compensation is fixed. The following criteria are to be taken into consideration when establishing the market value of the property: its type, location, the use to which it has been put, the existence of any technical infrastructure on the property, its overall state and current prices of properties in the municipality.

In situations specified by Article 108 of the Code of Administrative Procedure, local State administration can authorise an entity charged with the implementation of a public-interest project to occupy the property concerned immediately if a delay would render the implementation of the project impossible.

Article 108 of the Code provides for an administrative decision to be rendered immediately enforceable, even if further appeal against it is available, when this is necessary for the protection of life or limb, or for the protection of the national economy against serious damage, or for the protection of other societal interests.


Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On the night of 23 April 1992 the applicant went to a doctor, asking him to come to the aid of J.C. He alleged that the latter had been seriously battered by unknown persons. J.C., who suffered serious injuries to his head, was immediately taken to hospital. His life was saved. On 21 May 1992 the Białystok Regional Prosecutor (Prokurator Wojewódzki) charged the applicant with aggravated theft, armed robbery and attempted homicide, and detained him on remand in view of the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature. The investigation was completed on 12 August 1992.

Shortly after that date, the applicant asked for an order referring the case for a further investigation. In particular, he asked for evidence to be obtained from certain witnesses. The prosecutor dismissed his request for witnesses to be called but ordered that an expert report be obtained from psychiatrists in order to ascertain the applicant’s mental state.

On 12 October 1992 the Białystok Regional Prosecutor lodged a bill of indictment with the Białystok Regional Court (Sąd Wojewódzki). The applicant was indicted on charges of attempted homicide, armed robbery and aggravated theft.

From October 1992 until the end of 1993 the applicant, who was at the material time detained in Białystok Remand Centre, was on hunger strike. On 26 October 1992 he apparently intentionally injured his left hand.

On 1 September 1993 the Białystok Regional Court rejected the applicant’s request for release made on an unknown date. The court held that the reasons originally given for his detention, that is to say, the reasonable suspicion that he had committed the offences with which he had been charged and the serious nature of those offences, were still valid. On the other hand, the court found no reason to release the applicant on health grounds or on any of the grounds listed in Article 218 of the Code of Criminal Procedure (see also paragraph 60 in fine below) because it considered that the applicant’s continued hunger strike was aimed at compelling the court to make a “favourable decision” on his detention.

On 9 December 1993 the applicant was admitted to the hospital of the Faculty of Gastrology of the Białystok Academy of Medicine. He received treatment until 17 December 1993. An entry in the relevant medical record made on 17 December 1993 read, in so far as relevant:

“[the applicant] was admitted to our hospital in a state of extreme exhaustion..., he complained about general weakness, pain in his chest and heart palpitations. Subsequent tests showed that there was an extremely low level of haemoglobin in his blood ... [4.1% and 6.7% according to the tests] ... resulting from a chronic deficiency of iron and vitamins. During the treatment he was given two transfusions and iron compounds were administered ... as a result his condition improved ... Recommendations: good food and further treatment. From the medical point of view, he should not now be kept in prison.”

On 17 December 1993 the applicant was taken to and redetained in Barczewo Prison. He was placed in a ward for internal diseases, where he remained until 24 December 1993. He was diagnosed as having anaemia and gastritis. Since the applicant had not consented to any further medical tests and had refused to take medicaments, he was again placed in a prison ward.

In the meantime, the trial court had listed hearings for 27 November 1992, 20 January, 2 June and 24 September 1993 but had cancelled all of them on the ground that the applicant had been on hunger strike. On 1 December 1993 the trial was adjourned because the applicant had refused to leave his cell.

On 4 January 1994 the applicant wrote a letter to the Minister of Justice, requesting that he release him in view of the very bad state of his health. That letter was deemed to be an application for release under Article 214 of the Code of Criminal Procedure, referred to the Białystok Regional Court and dismissed by that court on 31 January 1994. The court found that the applicant’s detention should continue because there was a reasonable suspicion that he had committed the serious offences with which he had been charged. The court agreed that from the medical point of view the applicant should not be kept in prison. It stressed, however, that his poor health resulted from his behaviour, especially his hunger strike, and therefore refused to release him.

On 14 February 1994, on an appeal by the applicant, the Białystok Court of Appeal (Sąd Apelacyjny) upheld that decision and the grounds given for it.

On 13 March 1994 the applicant inserted several pieces of metal into his right eye. On 20 and 27 March 1994 he inserted pieces of metal into his left eye. On 23 March 1994 he was examined by a psychiatrist who concluded that those acts of self-harm were a form of his protest against the prolongation of the criminal proceedings against him and his detention. Later, the applicant was placed in an ophthalmic ward of Bytom Prison Hospital where he received treatment from 25 April to 23 June 1994. After that treatment, three pieces of metal were left in the applicant’s eyes.

On 29 April 1994 the Białystok Regional Court dismissed a subsequent application for release, originally addressed by the applicant to the State Council of Judiciary (Krajowa Rada Sądownictwa) and referred by the Council to the trial court. The court considered that the applicant should be held in detention for the following reasons:

“... In the light of documentary evidence, it is beyond any dispute that the state of [the applicant’s] health is not the best one. However, he himself is responsible for that because he has brought himself [to this state] by his several-week long hunger-strikes, acts of self-harm and his further refusal to undergo medical treatment. ...

The court cannot lift the detention order because of the nature of the offences charged, the serious social danger created by them and the fact that [the applicant] is tried as a recidivist within the meaning of Article 60 § 1 of the Criminal Code, militate against it.

It must, however, be noted that the state of [the applicant’s] health, although not a good one, does not constitute a danger to his life within the meaning of Article 218 of the Code of Criminal Procedure because he is under medical care and [his condition] has resulted from his own acts. ...”

On an unknown date in June 1994 the applicant again asked the Białystok Regional Court to release him on health grounds. The application was dismissed on 29 June 1994. On 15 July 1994 the applicant made a further application for release, submitting that, in the meantime, he had received a letter from a civil hospital in Katowice confirming that he could be admitted to that hospital in order to undergo ophthalmic treatment. The application was dismissed at first instance on 15 July 1994 and, on appeal, by the Białystok Court of Appeal, on 11 August 1994. Both courts held that there was no valid reason to release the applicant as his condition, even though serious, had been aggravated by the injuries which he had inflicted on himself. The courts also relied on the reasonable suspicion that he had committed the offences with which he had been charged and their serious nature.

On 31 August 1994 the applicant asked the Białystok Regional Court to obtain evidence from an expert in ophthalmology. He maintained that he was suffering from an unbearably severe pain in his eyes. The court referred the matter to the authorities of Białystok Remand Centre. On 28 September 1994 the Deputy Governor dealt with that application and refused to call an ophthalmologist on the grounds that in the opinion of the doctors who had previously examined the applicant there had been no need to treat him in a civil hospital and that the Chief Prison Doctor of Białystok Region did not consider it appropriate to call such an expert.

On 5 October 1994 a hearing was to take place but was cancelled since, in the meantime, the applicant had inflicted certain unspecified injuries on himself. On 22 November 1994 the Regional Court cancelled the next hearing because the applicant, when leaving his cell had injured himself by hitting his head against a wall. He was then taken to Białystok Hospital and examined by a neurologist.

On 5 December 1994 the court adjourned the trial hearing because it found that the applicant had again inflicted injuries on himself (he had injected saliva into his leg and had an abscess and boil on his knee).

On 17 January 1995 the trial was adjourned because the applicant had taken an overdose of an unspecified medicine.

From 17 to 22 February 1995 the applicant received treatment in Barczewo Prison Hospital. In view of that, the court cancelled a hearing listed for 21 February 1995.

Subsequently, on an unknown date, the applicant swallowed two metal rods and three pieces of wire. He did not consent to undergo an operation in the prison hospital. Since he was not fit to be brought to trial, the court cancelled a hearing fixed for 27 April 1995.

On 28 April 1995 the court asked the Governor of Barczewo Prison about the applicant’s health and when the applicant would be transferred to Białystok Remand Centre. On 10 May 1995 the Director of Barczewo Prison Hospital replied that the applicant had repeatedly inflicted injuries on himself (that is to say, he had swallowed pieces of metal) and had refused to undergo an operation. It was therefore impossible for the prison services to transfer him to Białystok Remand Centre (Białystok is some 150 kilometres distant from Barczewo).

On 6 June 1995 the trial court again asked the authorities of Barczewo Prison about the state of the applicant’s health. The Director of Barczewo Prison Hospital replied on 23 June that the applicant should stay in the hospital because he had pieces of metal both in his eyes and in his alimentary canal.

Later, the Białystok Regional Court asked the Supreme Court (Sąd Najwyższy) to transfer the applicant’s case to another regional court, a court closer to the prison in which the applicant was being held in custody. The Supreme Court rejected that request on 17 August 1995.

On 5 September 1995 the Deputy Governor of Barczewo Prison informed the Regional Court that the applicant was still unfit for a transfer because he had again swallowed a piece of metal.

On 25 October 1995 the court asked the authorities of Barczewo Prison about the state of the applicant’s health. The Director of Barczewo Prison Hospital replied on 20 November 1995 that the applicant did not have to undergo on operation on his eyes but that it was recommended that he undergo an operation on his stomach.

On 24 November 1995 the Białystok Regional Court dismissed a subsequent application for release made by the applicant on an unspecified date. In its decision, the court relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and their serious nature. Finding that there were no special circumstances that might justify releasing him on health grounds, the court also took into account a medical certificate which stated that the applicant could receive medical treatment in prison.

In the meantime, at the beginning of November 1995, the applicant had complained to the prison authorities about various ailments, in particular a cyst in his kidney and urinary problems. Several ultrasound examinations carried out at that time showed that the applicant had a cyst of a diameter of twenty millimetres in his kidney. He refused to undergo a kidney operation in the urological ward of Łódź Prison Hospital and requested to be released so as to enable him to receive medical treatment in a civil hospital.

On 15 December 1995 the Białystok Regional Court asked the Governor of Barczewo Prison whether the applicant could be transferred to Białystok Remand Centre. The Governor replied on 15 February 1996. He stated that prison doctors considered that the applicant was unfit for a transfer.

On 20 December 1995 the applicant made an application for release to the Supreme Court.

On 29 December 1995 the Białystok Regional Court decided to apply to the Supreme Court for the applicant’s detention on remand to be prolonged until 30 December 1996. That application was made in view of the fact that an amendment to Article 222 of the Code of Criminal Procedure (setting maximum statutory time-limits for detention on remand) was to take effect on 1 January 1996 (see paragraph 61 below) and at the time the applicant’s detention had already exceeded the relevant time-limit. In that application, the court relied on the following, principal reasons:

“The trial was set for 27 November 1992 but it did not take place because the accused went on hunger strike for several months. When the accused finished his hunger strike, he deliberately inflicted injuries on himself in order to compel [the court] to make a favourable decision to vary the preventive measure imposed on him. ...

That made it impossible for that court to continue, or even to start, the trial. In view of the state of his health, a state resulting from his own behaviour, [the applicant] was on several occasions examined by doctors of various specialities and was admitted to hospital for several months. It did not (and does not) emerge from the expert opinions that his state would endanger his life or health, especially as [the applicant] is under permanent medical care. At present, he is held in Barczewo Prison Hospital.

For these reasons the application for his detention to be prolonged is justified. His detention should be prolonged until 30 December 1996 because, given his acts of self-harm, it is not known when the accused will be brought to trial.”

Since the relevant amendment did not come into force until 4 August 1996, that application was never lodged with the Supreme Court.

On 30 December 1995 the Supreme Court transferred the applicant’s application for release of 20 December 1995 to the Białystok Regional Court. On 15 January 1996 the President of the Białystok Regional Court transferred it to the Chief Judge of the Criminal Division of that court.

On 19 January 1996 the panel of three judges, sitting as the Białystok Regional Court dismissed that application, holding that there were no circumstances concerning the applicant’s health which might militate in favour of his release and that the bad state of his health had been caused entirely by his own conduct. The court considered that the applicant wanted to compel it to “make a favourable decision on his detention” and that the “impossibility of bringing him to trial had diminished the chances of resolving his complaints”.

In the meantime, on an unknown date, the applicant had complained to the Supreme Court about the length of his detention, which had already exceeded three years. On 25 January 1996 his complaint was referred to the Białystok Court of Appeal. On 8 February 1996 the Vice President of that court replied to the complaint. He stated that hearings in the applicant’s case had been cancelled five times because the applicant had gone on hunger strike and then on the ground that he had inflicted injuries on himself. He also stressed that there had been no indication that the applicant should have been released on health grounds because he was, and had been, under medical care in prison.

On 8 March 1996 the court asked the authorities of Barczewo Prison about the applicant’s health. The Director of Barczewo Prison Hospital replied on 19 March 1996. He stated that the applicant had some of the metal objects he had swallowed in his stomach but he had refused to undergo an operation in the prison hospital. In the Director’s opinion, the applicant was fit to participate in his trial but unfit to be transferred to Białystok.

Later, the applicant asked the Białystok Regional Court to release him in view of his state of health. That application was dismissed on 29 March 1996. The applicant appealed against the refusal, arguing that his detention on remand had meanwhile exceeded four years and that his state of health was desperately bad.

On 19 April 1996 the Białystok Court of Appeal dismissed that appeal, finding that even though the applicant had been held in custody for nearly four years, the prolongation of his detention had been attributable to his behaviour alone. The court considered that the grounds originally given for his detention were still valid. It pointed out that the further course of the proceedings exclusively depended on the applicant’s behaviour. It suggested that a change in the applicant’s attitude would result in the immediate examination of his case and that such a change might in turn have resulted in the court’s “altering its view on whether the detention should be continued”.

On 24 April 1996 the court asked the authorities of Barczewo Prison whether the applicant could be transferred to Białystok. On 8 May 1996 the Director of Barczewo Prison Hospital informed the court of, inter alia, the following:

“... [the applicant] repeatedly inflicts injuries on himself. The last instance of such behaviour took place on 7 February 1996. For that reason, he is unfit for a transfer. He can participate in his trial.”

On an unknown date in May or June 1996 the applicant made a subsequent application for release. On 11 June 1996 the Białystok Regional Court dismissed it in view of the high probability that he had committed the offences with which he had been charged and their serious nature. The court also found no circumstances militating in favour of releasing the applicant on health grounds, as defined in Article 218 of the Code of Criminal Procedure. In that context, it pointed out that the applicant’s health depended on himself, especially as its current state had resulted from his hunger strike and self-inflicted injuries. Finally, the court stressed that it emerged from medical evidence that his continued detention did not constitute a danger to his life or health.

On 10 July 1996 the court asked the authorities of Barczewo Prison whether the applicant could be transferred to Białystok Remand Centre. They replied on 16 July 1996, stating that the applicant had refused to undergo an operation on his stomach. It was recommended that he be detained in a prison hospital ward. No obstacles to transferring the applicant to Białystok were mentioned.

On 6 August 1996 the Białystok Regional Court requested the Supreme Court to prolong the applicant’s detention on remand until 30 July 1997 in view of the fact that he had attempted to obstruct the proper conduct of the proceedings. The court also stated:

“... detention should be prolonged until 30 July 1997 ... since the accused has inflicted injuries on himself and therefore, it is not known when he will be fit to be brought to trial.”

On 5 September 1996 the Supreme Court, sitting in camera, prolonged the applicant’s detention until 1 March 1997, finding that the applicant had in an exceptional manner obstructed the proper conduct of the proceedings and had intentionally contributed to their length. The court also held that it was not necessary to prolong his detention until 30 July 1997 and that by 1 March 1997 the Regional Court should be able to order an additional medical examination of the applicant, to list hearings and to give judgment. On 18 September 1996 a copy of the decision of the Supreme Court was served on the applicant.

On 13 September 1996 the applicant complained to the Minister of Justice about the length of his detention and the conduct of the proceedings in his case. This complaint was transferred to the Białystok Regional Court and, on 3 October 1996, the President of that court replied to it. He found that there had been no irregularities in the conduct of the proceedings. He stated that all the twelve hearings listed in the period from 27 November 1992 to 27 April 1995 had been cancelled because the applicant had inflicted injuries on himself.

On an unknown date – apparently in September 1996 – the applicant again requested his release on health grounds. On 24 September 1996 the Białystok Regional Court dismissed his application, holding that there was a reasonable suspicion that he had committed the offences in question and that the need to ensure the proper conduct of the proceedings militated against his release. The court also held that there was no reason to release the applicant on health grounds because the ailments from which he suffered did not constitute a danger to his life or health and had resulted from his own deliberate acts of self-harm.

On 10 October 1996, on the applicant’s appeal, the Białystok Court of Appeal upheld that decision and held, inter alia:

“It is true that the accused is sick, although most of his ailments result from self-inflicted injuries. For that reason he is under constant medical observation in prison. He also consults doctors. The prison authorities have not indicated that his condition worsened so significantly as to result in his detention in the prison hospital being a danger to him.

As to the second argument adduced by the accused, an argument which in reality amounts to his objection to evidence [against him], it has to be noted that the trial court has at its disposal evidence gathered by the prosecution but has been unable to scrutinise it because the accused has been obstructing the conduct of the trial. It would therefore be in the accused’s best interest to endeavour to have his case heard. ...”

On 21 November 1996 the applicant was transferred to Białystok Remand Centre. On 9 December 1996 the Białystok Regional Court listed a hearing for 31 December 1996; however, that hearing was adjourned to 10 January 1997. On 24 February 1997 the trial was adjourned as most of the witnesses and the victim had failed to appear.

During the hearings of 27 and 28 February 1997 the Regional Court heard evidence from witnesses and dismissed the applicant’s request for further evidence to be obtained. On 28 February 1997 the court gave judgment. It convicted the applicant of aggravated theft and attempted homicide and sentenced him to fifteen years’ imprisonment, deprivation of his civil rights for eight years and a fine of 400 Polish zlotys.

The applicant appealed. Subsequently, on an unspecified date, he challenged J.D.-S. and J.Z.-L., two judges of the Białystok Court of Appeal assigned to sit on the appeal panel, submitting that both of them had previously dealt with his applications for release and that they did not, therefore, offer sufficient guarantees of impartiality. His challenge was dismissed by the Białystok Court of Appeal on 9 September 1997 as being ill-founded.

On the same day the court held an appellate hearing and gave judgment dismissing the applicant’s appeal.

On 18 September 1997 a copy of the judgment of the Białystok Court of Appeal was served on the applicant. On 1 October 1997 he filed a notice of cassation appeal, requesting the court to serve the statement of the reasons for the judgment on him. He submitted it to the authorities of Barczewo Prison on 3 October 1997.

On 20 October 1997 the Białystok Court of Appeal rejected the applicant’s notice of cassation appeal because he had lodged it outside the seven-day time-limit provided for by Article 464 § 3 of the Code of Criminal Procedure.

On 1 November 1997 the applicant requested the Minister of Justice to lodge a cassation appeal on his behalf. The request was dismissed on 22 January 1998. Later, the applicant – also unsuccessfully – asked the Ombudsman (Rzecznik Praw Obywatelskich) to lodge a cassation appeal on his behalf. That application was rejected on 11 December 1998.

During the entire period of the applicant’s detention the Polish prison authorities kept detailed medical records concerning his state of health. His records contained, among other things, entries relating to the injuries that he inflicted on himself.

An entry made on 16 May 1996 contains a doctor’s note, which read, in so far as relevant:

“Objects in [the] stomach?”

An entry made on 20 November 1996 read:

“refusal to undergo an X-ray examination; no confirmation as to the objects in his stomach.”

A doctor’s note of 28 December 1996 read, in so far as relevant:

“Complaints by a detainee, previous ailments and operations: objects in eyes: no complaints at present; objects in his stomach: on 25 October and 20 November 1996 [the applicant] refused to undergo an X-ray examination; on 23 December 1996 [he] claimed that there were no further objects. ... I administer a further X-ray examination. [He] complains about a pain in his stomach. ... Psychiatric examination of 4 November 1996 disclosed an abnormal personality...

Diagnosis: objects in eyes; [as regards the] objects in the stomach, [to date] in the absence of results of the X-ray examination there is no confirmation that, as [the applicant] states, there are no such objects ... General condition: good; some peritoneal symptoms ... Conclusions: [the applicant] can be detained in prison. Doctor [name and signature illegible].”

A subsequent X-ray examination made in January 1997 did not disclose any objects in the applicant’s stomach; it confirmed a diaphragm hernia.

At the material time the rules governing detention on remand were contained in Chapter 24 of the Law of 19 April 1969 – Code of Criminal Procedure (Kodeks postępowania karnego) – entitled “Preventive measures” (Środki zapobiegawcze). The Code is no longer in force. It was repealed and replaced by the Law of 6 June 1997 (commonly referred to as the “New Code of Criminal Procedure”), which entered into force on 1 September 1998.

The Code listed as preventive measures, inter alia, detention on remand, bail and police supervision.

Article 209 set out the general grounds justifying imposition of the preventive measures. This provision read:

“Preventive measures may be imposed in order to ensure the proper conduct of proceedings if the evidence against the accused sufficiently justifies the opinion that he has committed a criminal offence.”

Article 217 § 1 defined grounds for detention on remand. The relevant part of this provision, in the version applicable until 1 January 1996, stipulated:

“1: Detention on remand may be imposed if:

(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when he has no fixed residence [in Poland] or his identity cannot be established; or

(2) there is a reasonable risk that an accused will attempt to induce witnesses to give false testimony or to obstruct the proper course of the proceedings by any other unlawful means; or

(3) an accused has been charged with a serious offence or has relapsed into crime in the manner defined in the Criminal Code; or

(4) an accused has been charged with an offence which creates a serious danger to society.

On 1 January 1996 sub-paragraphs 3 and 4 of Article 217 were repealed and the whole provision was redrafted. From that date onwards the relevant sub-paragraphs read:

“(1) there is a reasonable risk that an accused will abscond or go into hiding, in particular when his identity cannot be established or he has no permanent abode [in Poland]; or

(2) [as it stood before 1 January 1996].”

Paragraph 2 of Article 217 provided:

“If an accused has been charged with a serious offence or an intentional offence [for the commission of which he may be] liable to a sentence of a statutory maximum of at least eight years’ imprisonment, or if a court of first instance has sentenced him to at least three years’ imprisonment, the need to continue detention in order to ensure the proper conduct of proceedings may be based upon the likelihood that a heavy penalty will be imposed.”

The Code set out the margin of discretion in maintaining a specific preventive measure. Articles 213 § 1, 218 and 225 of the Code were based on the precept that detention on remand was the most extreme preventive measure and that it should not be imposed if more lenient measures were adequate.

Article 213 § 1 provided:

“A preventive measure [including detention on remand] shall be immediately lifted or varied, if the basis for it has ceased to exist or new circumstances have arisen which justify lifting a given measure or replacing it with a more or less severe one.”

Article 225 stated:

“Detention on remand shall be imposed only when it is mandatory; this measure shall not be imposed if bail or police supervision, or both of those measures, are considered adequate.”

The provisions for “mandatory detention” (for instance, detention pending an appeal against a sentence of imprisonment exceeding three years) were repealed on 1 January 1996 by the Law of 29 June on Amendments to the Code of Criminal Procedure and Other Criminal Statutes.

Finally, Article 218 stipulated:

“If there are no special reasons to the contrary, detention on remand should be quashed, in particular when:

(1) it may seriously jeopardise the life or health of the accused, or

(2) it would entail excessively burdensome effects for the accused or his family.”

Until 4 August 1996, i.e. the date on which the relevant provisions of a new Law of 29 June 1995 on Amendments to the Code of Criminal Procedure and Other Criminal Statutes entered into force, the law did not set out any time-limits concerning detention on remand in the court proceedings.

Originally, the provisions setting out time-limits for detention were to enter into force on 1 January 1996; however, their entry into force was eventually postponed until 4 August 1996.

Article 222 of the Code of Criminal Procedure in the version applicable after 4 August 1996, insofar as relevant, provides:

“3. The whole period of detention on remand until the date on which the court of first instance gives judgment may not exceed one year and six months in cases concerning offences. In cases concerning serious offences [offences for the commission of which a person is liable to a sentence of a statutory minimum of at least three years’ imprisonment] this period may not exceed two years.

In particularly justified cases the Supreme Court may, on the application made by the court competent to deal with the case, ... prolong detention on remand for a further fixed period exceeding the time-limits set out in paragraphs. 2 and 3, when it is necessary in connection with a suspension of the proceedings, a prolonged psychiatric observation of the accused, when evidence needs to be obtained from abroad or when the accused has deliberately obstructed the termination of the proceedings in the terms referred to in paragraph 3.”

On 28 December 1996, by virtue of the Law of 6 December 1996, paragraph 4 of that Article was amended and the grounds for prolonging detention beyond the statutory time-limits included also:

“... other significant obstacles, which could not be overcome by the authorities conducting the proceedings...”

The Supreme Court’ decision on an application under Article 222 § 4 constituted a separate legal basis for continued detention. No appeal lay in law against such a decision.

In cases where the Supreme Court dismissed such an application, a detainee had to be released. As long as it had not reached a decision, an application under Article 222 § 4 was treated as a basis for the continued detention.

As from 1 January 1996, a party to criminal proceedings could lodge a cassation appeal (kasacja) with the Supreme Court against any final decision of an appellate court which had terminated the proceedings.

Under Article 467 § 2 of the Code of Criminal Procedure, the court which gave the decision to be appealed against was competent to decide whether the formal requirements of a cassation appeal had been complied with. If an accused’s appeal had not been filed and signed by a lawyer, it had to be rejected. If an appeal had complied with the formal requirements, the case was forwarded to the Supreme Court. According to paragraph 4 of Article 467, if the Supreme Court found that the appeal was inadmissible, it gave a decision on “not taking cognisance of the merits of the cassation appeal” (postanowienie o pozostawieniu kasacji bez rozpoznania).


The applicant, Ms Eva Květoňová, is a Czech national who was born in 1934 and lives in Munich. She was represented before the Court by Mr I. Chytil, a lawyer practising in Prague.

The applicant’s parents owned a family house and two lands located in Trutnov. In February 1971 the applicant’s father died. The applicant and her mother became his legal successors.

In 1972 the applicant and her mother were convicted in absentia of deserting the Republic. The courts imposed a term of imprisonment and ordered the confiscation of all their property. In 1973 the Trutnov State Notary (státní notářství) determined the late father’s estate, holding that the applicant and her mother inherited the whole estate but that, bearing in mind their criminal conviction, it should be forfeited for the benefit of the State.

On 12 September 1974 the confiscated property was sold by the State to Mr and Ms M., with an agreement giving them the right to make personal use of the lands attached to the house. According to the applicant, the purchase contract contained a number of legal inaccuracies which made it null and void. Actually, the State was represented by the former Trutnov National District Council (okresní národní výbor) which at the material time had three quarters of the property at its disposal, the rights relating to the remaining quarter being transferred to it on 18 November 1974. Moreover, the real estate appraisal used for the purposes of the purchase was, contrary to the law, older than one year, the property at issue was not clearly specified in the purchase contract, the identity of the contractual parties was not verified and the person acting on behalf of the National District Council was not clearly indicated. In addition, the new owners’ right to make personal use of the lands attached to the house was approved by the Trutnov National Council on 22 August 1974, so before the transfer of the administration rights regarding the property.

On 20 September 1977 the applicant’s mother died. The applicant became her legal successor.

On 20 August and 8 October 1990 respectively, the District Court declared that, pursuant to section 2 of the Judicial Rehabilitation Act, the applicant’s and her mother’s convictions and all ancillary decisions had been automatically quashed with retrospective effect.

On an unspecified date in 1995 the applicant initiated restitution proceedings against Mr and Ms M. pursuant to the Extra-Judicial Rehabilitation Act. However, the courts did not grant her restitution claims finding that the purchase contract had not been concluded in breach of the regulations then in force and that the new owners had not enjoyed an unlawful advantage.

After the death of Mr and Ms M., their sons became the owners of the property.

In January 2001 the applicant sought to recover the property in issue by means of a civil action brought against the Mr and Ms M.’s sons, alleging the nullity of the purchase contract.

In a judgment of 13 September 2002 the Trutnov District Court dismissed the applicant’s action stating, inter alia:

“In a judgment no. ÚS 4/97 of 11 March 1997 the Plenary of the Constitutional Court held that judicial decisions whereby decisions concerning the confiscation of property had been quashed [pursuant to the Judicial Rehabilitation Act] did not form a basis on which the ownership rights could be renewed. The applicant claimed the restitution ... under [the Extra-Judicial Rehabilitation Act], but was unsuccessful. Having regard to the fact that [she] based her current arguments mainly on her incorrect legal opinion concerning the effects of the nullity of the confiscation decision, her [civil] action [is] not substantiated.

[I]t is not decisive whether the purchase contract ... is valid or not. ... [T]he question of [its] validity or the nullity is more specific than the criteria laid down in the Extra-Judicial Rehabilitation Act for natural persons obliged to restore immovable property to a restitution claimant .... [The court examined in the [previous] restitution proceedings whether the new owners could have acquired the property contrary to the law then in force ... or on the basis of any unlawful advantage, and found that it was not the case.] The court, therefore, did not examine in detail [the applicant’s arguments concerning] the alleged nullity of the purchase contract.”

On 28 January 2003 the Hradec Králové Regional Court (krajský soud) upheld the first instance judgment.

The applicant’s subsequent appeal on points of law (dovolání) was dismissed by the Supreme Court (Nejvyšší soud) on 30 October 2003, the court stating, in particular:

“[N]either the appellate court nor the court of first instance erred in applying [the provisions of the Judicial Rehabilitation Act and the Extra-Judicial Rehabilitation Act]; they rightly considered their interrelationship and took account of the [previous] restitution proceedings closed upon a final and conclusive judgment.

The applicant based her claims on the substantially same arguments which she had used in the previous restitution proceedings, emphasising the [alleged] nullity of the purchase contract ... [However] it is inadmissible to circumvent the restitution law by applying the general civil law, in case that the [previous] restitution action failed. ...”

The Supreme Court concluded that the applicant’s appeal on points of law did not challenge a decision which would give rise to a question of crucial legal importance as provided for in section 237(1)(c) of the Code of Civil Proceedings.

The applicant challenged the lower courts’ legal opinions before the Constitutional Court (Ústavní soud) maintaining that the courts had failed to examine the validity of the purchase contract. She alleged, in this respect, a violation of her right to judicial protection under Article 36 § 2 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) and her property rights guaranteed by Article 11 § 1 of the Charter.

On 1 July 2004 the Constitutional Court rejected the applicant’s constitutional appeal (ústavní stížnost) finding that the procedural steps taken by the lower courts and their interpretation of the legislation did not infringe the applicant’s fundamental rights guaranteed by the constitutional law or international treaties.

Article 11 § 1 provides, inter alia, that everyone has the right to own property. All owners’ property rights are equal in the eyes of the law and enjoy the same legal protection. The right to inherit is guaranteed.

Under Article 36 § 2 anybody who claims that his or her rights have been violated by a decision of a public administration organ may turn to a court for a review of the legality of such decision, unless the law provides differently. However, review of decisions affecting the fundamental rights and freedoms listed in the Charter may not be excluded from the jurisdiction of courts.

Section 1 states that the purpose of the Act is to provide for the quashing of convictions that are incompatible with the principles of a democratic society respecting the political rights and freedoms enshrined in the Constitution and guaranteed by international treaties, and to ensure the social and economic rehabilitation of persons so convicted.

Section 2 provides that all convictions from 25 February 1948 to 1 January 1990 that contravened those principles and related to events occurring after 5 May 1945 are to be quashed with retrospective effect, together with any ancillary decisions. Courts are to examine of their own motion all matters relating to the rehabilitation of convicted persons.

Section 23(2) provides that the implementing conditions for claims arising from quashed confiscation decisions, and also the method of redress and the scope of such claims, are to be laid down in a special law.

Section 1 provides that the purpose of the Act is to mitigate the effects of certain wrongs committed between 25 February 1948 and 1 January 1990 (“the period concerned”) which were incompatible with the principles of a democratic society respecting the rights of citizens as enshrined in the Charter of the United Nations and the Universal Declaration of Human Rights. The Act also lays down the conditions for lodging claims arising from quashed confiscation decisions, and also the method of redress and the scope of such claims.

Section 2 provides that infringements of property rights which occurred during the period concerned are to be redressed either by restitution of property or by pecuniary compensation.

Section 4 requires the State and/or any legal entity in possession of confiscated property on the date on which the Act came into force to return the property. Paragraph 2 provides that any natural person who acquired property from the State unlawfully or by means of an unlawful advantage is likewise required to return the property.

Section 19(1) provides that any person who has been rehabilitated in accordance with Law no. 119/1990 is entitled to claim restitution provided that he or she satisfies the conditions laid down in section 3(1).

Section 20(1) provides that any legal entity within the meaning of section 4(1) and any natural person within the meaning of section 4(2) must return confiscated property acquired from the State where the State itself obtained it as a result of the conviction of the original owners; the central administrative authorities of the Republic are likewise required to return any confiscated property.

Section 237(1)(b) provides that an appeal on points of law lay against appellate court judgments and decisions upholding first instance decisions in which the court of first instance decided differently from its previous meritorious decision, having been bound by the legal opinion of the appellate court which had quashed the previous decision at first instance.

Under section 237(c) an appeal on points of law lay also against appellate court judgments and decisions upholding first instance decisions if such an appeal is not admissible under paragraph b) and if the court dealing with the appeal on points of law finds that the challenged decision gives rise to a question of crucial legal importance.

In this judgment the Constitutional Court held that judicial decisions whereby decisions concerning the confiscation of property had been quashed pursuant to the Judicial Rehabilitation Act did not form a basis on which anyone thus rehabilitated was entitled to be entered in the land register as the owner. It held that such decisions did not restore previous ownership, since section 23(2) of the Judicial Rehabilitation Act provided that the conditions for implementing that Act were laid down in the Extrajudicial Rehabilitation Act.

In this decision the Supreme Court held, in particular, that the provisions of the Extra-Judicial Rehabilitation Act constitute a lex specialis in relation to the general provisions of the Civil Code. In restitution cases, it is therefore not possible to seek judicial protection under the general provisions of the Civil Code (e.g. by means of an action for recovery), but only by a special way provided for in the restitution legislation.

In this decision the Supreme Court admitted that the entire removal of all wrongs committed by the former communist regime was not possible. The legislator opted, therefore, for legal means aiming to mitigate “the effects of certain wrongs”. For these purposes, it determined the “restitution border” (the period between 25 February 1948 and 1 January 1990 in which the wrongs had taken place) and fixed the conditions and the way to pursue to claim restitution of property. If other parallel procedural ways were accepted to be pursued under the general legal provisions the special restitution law would lose its sense.

In this decision the Supreme Court stated that the restitution legislation demonstrates the legislator’s will to contribute to the mitigation of huge wrongs which were committed in the decisive period, i.e. between 1948 and 1989. This legislation, including the Extra-Judicial Rehabilitation Act is not based on the conception of declaration of the nullity of decisions, acts and legal actions. It indicates the special way to pursue for claiming restitution.

In this decision the Supreme Court recalled its legal opinion expressed in its decision no. 28 Cdo 2343/2000 of 31 January 2001 stating, moreover, that according to the established national case-law, the restitution legislation is a lex specialis in relation to the general provisions of the Civil Code. Actually, if the restitution law is applicable in a particular case, it is inadmissible to circumvent it and, in case that the restitution action failed, to base the restitution claims on the general legal provisions. This would create a situation of legal uncertainty of the parties to the legal acts which were challengeable under the restitution law.