LUBELSKA FABRYKA MASZYN I NARZEDZI ROLNICZYCH 'PLON' AND OTHERS v. POLAND

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos

A list of the applicants is set out in the appendix.

The facts of the cases, as submitted by the applicants, may be summarised as follows.

On 3 January 1946 the State National Council (Krajowa Rada Narodowa) passed the Law on the nationalisation of basic branches of the State economy (Ustawa o przejęciu na własność Państwa podstawowych gałęzi gospodarki narodowej – “the 1946 Act”, see paragraph 46 below). It provided for the nationalisation of enterprises from seventeen branches of industry, regardless of their size. In addition, it concerned all enterprises capable of employing in production more than fifty people on one shift. Owners of the nationalised enterprises were to receive compensation, the amount of which was to be determined by special commissions at a later stage pursuant to a Cabinet ordinance yet to be enacted (see paragraph 47 below). Only enterprises that belonged to German citizens and people who had defected to the enemy were to be taken over by the State without payment of compensation (see paragraph 45 below).

The applicants in the first two cases are limited liability companies and the applicants in the third case are heirs of the former owner of a textile mill. All three enterprises were nationalised pursuant to section 3(1) and (5) and section 6(1) of the 1946 Act (see paragraph 46 below). The decisions were given by the Minister for Industry and Trade (Minister Przemysłu i Handlu) on the dates stated below and published in the Official Gazette (Monitor Polski).

The applicant company was established in 1937 and registered in the companies register at the Warsaw Regional Court under the name Lubelska Fabryka Maszyn i Narzędzi Rolniczych “Plon”. In 1942 its registered office was transferred to Lublin. In 1945 its assets included a factory building and more than 2.5 hectares of land in Lublin. Until 1947 it manufactured agricultural machinery and farming equipment.

On 24 June 1947 the company was nationalised by virtue of a decision of the Minister for Industry and Trade (“the 1947 decision”), which was published in Official Gazette no. 96 of 11 July 1947.

On 24 November 2002 K.Z., an heir of J.Z., one of the former shareholders of the nationalised company, applied to the Minister for Economy (Minister Gospodarki) for the 1947 decision to be declared null and void. He was informed that only the company’s governing body could act for the company. Since by that time all members of the managing board had died, a guardian had to be appointed. On 16 April 2004 the courtappointed guardian lodged a new application.

On 15 September 2004, at a general meeting of the company’s shareholders, it was decided that a winding-up procedure should be initiated and K.Z. was appointed as a provisional liquidator.

On 8 June 2007 the Minister for Economy refused the application of 16 April 2004, noting firstly that the enterprise in question had been nationalised pursuant to section 3(1)B of the 1946 Act, which provided that industrial enterprises capable of employing in production more than fifty people on one shift were to be taken over by the State. Capability of employing was to be understood as meaning “the actual capability of employing” on 5 February 1946, the date of entry into force of the 1946 Act, taking into consideration the manufacturing machinery available. However, on the basis of the existing documents, the Minister was unable to establish whether the factory had been capable of employing more than fifty people on one shift. For that reason, the Minister obtained an expert report determining the enterprise’s potential employment capacity on one shift. It emerged from that report that the enterprise’s actual employment capacity at the material time had been 255 people on one shift. The Minister endorsed those findings and concluded that the nationalisation of the company had been lawful, as under section 3(1) B of the 1946 Act it could be effected in respect of enterprises employing a minimum of fifty people on one shift (see paragraph 46 below).

The applicant company applied for the matter to be reconsidered, but on 27 September 2007 the Minister upheld the original refusal, referring to the reasons given previously. It further held that the 1947 decision had not been issued in breach of the law and remained valid.

On 31 October 2007 the applicant company challenged the above decision on procedural grounds before the Warsaw Regional Administrative Court (Wojewódzki Sąd Administracyjny).

On 29 February 2008 the court dismissed the applicant company’s appeal, holding that the 1947 decision had not been issued in breach of the law.

On 18 June 2009 the Supreme Administrative Court (Naczelny Sąd Administracyjny) dismissed a cassation appeal by the applicant company.

On 28 April 2004 the applicant company lodged a claim with the Warsaw Regional Court seeking compensation (8,000,000 Polish zlotys) for the State’s failure to issue the relevant ordinance pursuant to section 7(2) and (5) of the 1946 Act. The claim was based on Article 77 of the Constitution and Article 417 of the Civil Code (see paragraphs 49 and 53 below). The applicant company subsequently changed the legal basis for its claim to Article 4171 § 4 of the Civil Code (see paragraph 51 below). It submitted that the State’s tortious liability for legislative omission had arisen before 1 September 2004 and continued after that date.

On 30 May 2006 the Warsaw Regional Court dismissed the applicant company’s claim. It noted that pursuant to section 7 of the 1946 Act owners of nationalised enterprises were to receive compensation within one year of the date on which a notice of final determination of compensation was served. The compensation was to be in the form of securities and, in exceptional cases, also in cash or other values. The amount was to be determined by special commissions. Despite the fact that the 1946 Act contained a clear delegation of legislative powers (delegacja ustawowa), a special ordinance had never been enacted. For those reasons, the commissions had never been formed and the compensation could not have been determined. The impugned legislative omission had occurred in 1946 or 1947 at the latest. In support of that approach the court referred to the Supreme Court’s resolution of 24 November 2005 (see paragraph 54 below). It also observed that in 1946 and 1947 the Cabinet had enacted other ordinances to implement different provisions of the 1946 Act.

The court further stressed that the law applicable at the time when the legislative omission had occurred had not imposed tortious liability on the State. That situation had not changed when the Civil Code had entered into force in 1965. Consequently, before the date of entry into force of the Constitution the State had not been liable for legislative omission. The situation had not changed after that date since Article 77 of the Constitution could not be considered an independent basis for vindicating that type of claim. The plaintiff’s claim could have been based on Article 4171 of the Civil Code since that provision concerned the State Treasury’s tortious liability for failure to enact legislation. However, section 5 of the 2004 Amendment Act precluded its application in respect of all events and legal situations that had subsisted before 1 September 2004 (see paragraph 52 below). In the present case, the impugned legislative omission had occurred by the end of 1947 at the latest. It was true that it had continued since, however, in deciding which legal provisions were applicable, regard had to be had to the date when the legal situation had begun and not whether it had continued. Consequently, since Article 4171 of the Civil Code had not been introduced until 1 September 2004, it did not apply to events and situations that had subsisted before its entry into force.

On 2 February 2007 the Warsaw Court of Appeal dismissed an appeal by the applicant company, referring to the same grounds as the Regional Court. It held that the obligation to enact an ordinance pursuant to section 7 of the 1946 Act had arisen at the time when that Act had entered into force and the legislative omission had occurred by the end of 1947 at the latest, by which time other ordinances had been enacted. However, the legislative omission could not have given rise to the State’s tortious liability since that liability had not been introduced until 1 September 2004.

On 5 December 2007 the Supreme Court, sitting as a bench of three judges, dismissed a cassation appeal by the applicant company. It observed at the outset that the main issue in the case was whether the State Treasury was liable pursuant to Article 4171 of the Civil Code for damage caused after 1 September 2004 by failure to enact a legal act, if such an obligation was provided by section 7 of the 1946 Act and the State authority had failed to comply with it even after 1 September 2004.

The Supreme Court held that there was no doubt that under section 7 of the 1946 Act the Cabinet had been obliged to enact an ordinance. It was further not contested by the parties’ that that duty had not been complied with.

In its reasoning the Supreme Court had regard to the following. Firstly, until 17 October 1997, the date of entry into force of the Polish Constitution, the law had not imposed liability on the State Treasury for damage caused by legislative omission. Secondly, Article 77 § 1 of the Constitution (see paragraph 53 below) should have been interpreted narrowly, so that the State was liable only for “an act” and not “failure to act”. Consequently, there was no constitutional right to compensation for legislative omission. Thirdly, the legislature had introduced Article 4171 § 4 to the Civil Code in order to tighten the rules governing the State’s civil liability. Fourthly, section 5 of the 2004 Amendment Act unequivocally precluded the application of Article 4171 § 4 in respect of events and legal situations that had subsisted before 1 September 2004. Fifthly, the State was liable for legislative omission only if there was a legal duty to enact (under an act or the Constitution). Such an obligation could not be derived from judicial interpretation. Sixthly, there was no legislative omission if the legislature had enacted a law but it was incomplete or flawed. Lastly, the State’s civil liability for damage caused by legislative omission arose only when there was a direct causal link (adekwatny związek przyczynowy) between the legal provision and the (legislative) omission.

The court concluded essentially reiterating the grounds stated in the 2005 Resolution (see paragraph 54 below) that the impugned legislative omission had occurred in 1946 or 1947 at the latest and had continued since. However, Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities since that provision clearly only covered their “acts”. The provisions of Article 4171, enabling a plaintiff to seek compensation for legislative omission, had only been introduced on 1 September 2004, by virtue of the 2004 Amendment Act. The terms of section 5 of that Act were unambiguous: Article 4171 of the Civil Code did not apply to events and situations that had subsisted before its entry into force. Consequently, its operation was precluded in respect of legislative omissions that originated in facts that had occurred earlier, even if that state of affairs continued to exist to the present day.

The applicant company was established in 1928 and registered in the companies register at the Sanok Regional Court under the name “Oterna” Przedsiębiorstwo Naftowe Sp. z o. o. Its assets included the “Ryszoldo” crude oil mine in Turzepole and leased petroleum fields. Until 1947 it carried out the activities described in its articles of association, namely searching for potential underground crude oil, natural gas fields and other minerals, drilling exploratory wells, constructing and operating workshops, constructing and operating refining facilities and carrying out all other activities related to the petroleum industry.

On 17 June 1947 the company was nationalised by virtue of a decision of the Minister for Industry and Trade (“the 1947 decision”), which was published in Official Gazette no. 90 of 30 June 1947.

On 16 September 1999 the Minister for Economy refused an application by the applicant company for the 1947 decision to be declared null and void. The applicant company applied for the matter to be reconsidered, but on 28 October 1999 the Minister upheld the original refusal. The applicant company appealed against that decision.

On 1 August 2001 the Supreme Administrative Court quashed the decision of 28 October 1999 on procedural grounds.

On 19 February 2002 the Minister for Economy once again refused to declare the 1947 decision null and void. The Minister examined the documents available and concluded that the applicant company had been nationalised in accordance with the applicable legal provisions in force at the material time. In so far as the applicant company alleged that it had not received any compensation, the Minister noted that nationalisation was not conditional upon payment of compensation. Compensation for nationalised property was to be paid later, after expropriation. The procedure for payment and the amount was to be regulated by means of secondary legislation enacted at a later stage. However, to the present day no legal provisions on the matter had been enacted.

On an unknown date the applicant company challenged the above decision before the Warsaw Regional Administrative Court.

On 21 January 2004 it dismissed the applicant company’s complaint, finding that the 1947 decision remained valid as it had not been issued in breach of the law. It further held that the fact that the applicant company had not received any compensation for the nationalised property did not mean that the 1947 decision had been null and void.

The judgment was upheld by the Supreme Administrative Court on 15 July 2004.

On 31 August 2007 the applicant company, acting through its guardian, lodged a claim with the Warsaw Regional Court seeking compensation for the State’s failure to issue the relevant ordinance pursuant to section 7(2) and (5) of the 1946 Act.

On 11 April 2008 it rejected the claim on procedural grounds on the basis that a guardian could not act in a company’s name if there were shortcomings in the composition of its governing bodies.

Following an appeal, the court set several additional time-limits in order to amend the composition of the applicant company’s governing bodies.

On 8 July 2010 it discontinued the proceedings on the grounds that the applicant company failed to submit an excerpt from the companies register.

On 2 December 2010 the applicant company applied to amend the companies register. The proceedings were terminated by the Rzeszow Court of Appeal on 3 November 2011.

The applicant company submitted that in view of the consistent case-law of the Supreme Court and, in particular, the judgment given in the first case (see paragraph 18 above), a civil claim for compensation had lacked any prospects of success.

The applicants’ predecessor owned a textile mill in Pabianice. In 1945 the business consisted of a factory building of 8,607.93 sq. m. and weaving machinery, including numerous power looms (between fifty and eighty, according to various documents). Shortly before the Second World War the factory operated under the name Karol Post Mechaniczna Tkalnia Zarobkowa Pabianice.

On 13 February 1948 the company was nationalised by virtue of a decision of the Minister for Industry and Trade (“the 1948 decision”).

On 16 March 1992 the applicants applied to the Minister for Economy for the 1948 decision to be declared null and void.

On 8 September 2010 the Minister for Economy refused the applicants’ application of 16 March 1992. The Minister held that, according to the documents available, in particular an inventory dated 23 September 1950, the textile mill had had eighty power looms. Pursuant to a Cabinet ordinance of 24 October 1946 cotton textile mills which had more than twenty-four power looms were to be considered “large and medium-sized textile industry”. Consequently, the applicants’ property had been taken over in accordance with the law as applicable at the material time and the 1948 decision remained valid.

The applicants applied for the matter to be reconsidered. They relied in particular on the provisions of the Constitution and Article 1 of Protocol No. 1 to the Convention, complaining that they had not received any compensation for the nationalised property.

On 29 December 2010 the Minister for Economy upheld its previous decision, referring to the grounds already given. The Minister further noted that, under the relevant provisions of the Code of Administrative Procedure, it could only examine the validity of the decision.

On 17 May 2011 the Warsaw Regional Administrative Court gave judgment and dismissed an appeal by the applicants. The court held that the 1948 decision had been issued in accordance with the law. In so far as the applicants alleged that they had not received any compensation, the court stressed that under the 1946 Act nationalisation was not conditional upon payment of compensation. Compensation for nationalised property was to be paid later and determined by special compensation commissions. The composition of the commissions, the rules for the appointment of their members and the rules of procedure were to be determined by an ordinance issued by the Cabinet. However, to the present day the Cabinet had not yet issued an ordinance on the organisation of the compensation commissions and the determination of compensation referred to in section 7(4) and (6).

On 27 February 2013 the Supreme Administrative Court dismissed a cassation appeal by the applicants. It reiterated the findings made by the Regional Court and confirmed that the 1948 decision had been given in accordance with the law. The judgment was served on the applicants’ lawyer on 20 May 2013.

Following the establishment of the communist regime in Poland nearly all branches of industry, as well as banking, insurance, transport and commercial companies were taken over by the State under the 1946 Act. Section 1 stated that the purposes of nationalisation were as follows:

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

Pursuant to section 2(1), only those industrial, mining, transport, banking, insurance and commercial enterprises that belonged to the Third Reich and the former Free City of Gdańsk, their citizens (except for those of Polish or other nationalities who had been persecuted by the Germans), German and Gdańsk legal entities (except for those set up under public law), companies controlled by German or Gdańsk citizens or administration or those owned by persons who had defected to the enemy were to be taken over by the State without payment of compensation.

Section 3(1) of the 1946 Act (as amended) states that the owners of the remaining enterprises were to be compensated for their nationalised property. The relevant part of the provision reads as follows:

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

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

(1) mines and mining leases subject to mining law;

(2) [the] oil and gas industry, including mines, refineries, gasoline production and other processing plants, gas pipes and [the] synthetic fuel industry;

(3) companies that generate, process, transmit or distribute electricity ...;

(4) companies that generate, process, transmit or distribute gas ...;

(5) water supply companies serving more than one municipality ...;

(6) steelworks and non-ferrous metals smelting plants;

(7) [the] arms, aviation and explosives industry;

(8) coking plants;

(9) sugar factories and refineries;

(10) industrial distilleries, spirit refineries and vodka production plants;

(11) breweries with an annual output exceeding 15,000 hectolitres;

(12) yeast production plants;

(13) grain plants with a daily output exceeding 15 tonnes of grain ...;

(14) oil plants with an annual output exceeding 500 tonnes and all refineries of edible fats;

(15) cold stores;

(16) large and medium-sized textile industry;

(17) [the] printing industry and printing houses;

B. Industrial enterprises not listed in subsection “A” if they are capable of employing in production more than fifty persons on one shift.

C.

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

(2) Communication enterprises (telephone, telegraph and radio enterprises).”

Section 7 lays down the general principles for the payment of compensation for nationalised property. The relevant parts state as follows:

“1. The owner of an enterprise whose ownership has been taken over by the State (section 3) shall receive compensation from the State Treasury within one year of the date on which a notice of final determination of the amount of compensation is served on him.

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

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

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

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

(a) general deterioration of the value of the State property;

(b) the net value of the commercial property on the date of nationalisation;

(c) deterioration of the value of the enterprise caused by war losses or losses incurred by the enterprise in connection with the war and occupation in the period from 1 September 1939 to the date of nationalisation;

d) the amount of expenditure after 1 September 1939;

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

A Cabinet ordinance shall determine detailed rules governing the calculation of compensation, assessment of the circumstances listed in subsection 5 and means of payment of compensation (subsection 2) and depreciation of securities.”

Pursuant to section 10, the Cabinet and the relevant Ministers are entrusted with the implementation of the 1946 Act. However, from 5 February 1946, the date of entry into force of the 1946 Act, to the present day the Cabinet have not issued an ordinance on the organisation of the compensation commissions and the determination of compensation referred to in section 7(4) and (6).

Articles 417 et seq. of the Civil Code provide for the State’s liability in tort. In the version applicable until 1 September 2004, Article 417 § 1, which lays down a general rule, read as follows:

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

On 1 September 2004 the Law of 17 June 2004 on amendments to the Civil Code and other statutes (Ustawa o zmianie ustawy – Kodeks cywilny oraz niektórych innych ustaw − “the 2004 Amendment Act”) entered into force. The relevant amendments were in essence aimed at widening the scope of the State Treasury’s liability in tort under Article 417 of the Civil Code, including the addition of a new Article 4171 and provision being made for the State’s tortious liability for failure to enact legislation, a concept known as “legislative omission” (zaniechanie legislacyjne).

Following the 2004 Amendment Act, the relevant part of Article 4171 § 4, reads as follows:

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

However, under the transitional provisions of section 5 of the 2004 Amendment Act, Article 417 as applicable before 1 September 2004 applies to all events and legal situations that subsisted before that date.

The concept of the State’s civil liability for a constitutional tort was introduced into the Polish legal order on 17 October 1997, the date of entry into force of the 1997 Polish Constitution. The relevant part of Article 77 § 1 of the Constitution states as follows:

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

In its resolution of 24 November 2005 (“the 2005 Resolution”), the Supreme Court, sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Warsaw Court of Appeal:

“Is the State Treasury liable for damage caused by failure to enact a law if the duty to enact that law, laid down in section 7(4) and (6) of [the 1946 Act] was not fulfilled until the date of entry into force of [the 2004 Amendment Act], and, if so,

when should this duty have been performed and did compensation for failure to enact the above law correspond to unreceived compensation for the enterprise nationalised by the State, determined in accordance with the principles laid down in section 7(2) and (5) of [the 1946 Act]?”

The question arose in the context of a case brought by a certain E.K., who sought compensation for the nationalisation of her family’s printing house and, as a basis for her claim, invoked Article 4171 of the Civil Code, relying on the State’s legislative omission consisting of its failure to issue the relevant ordinance. The Supreme Court’s answer in the operative part of the resolution reads:

“Until the date of entry into force of [the 2004 Amendment Act] the Cabinet’s failure to issue an ordinance pursuant to section 7(4) and (6) of [the 1946 Act] did not constitute a basis for a claim by an owner of a nationalised enterprise for compensation for [nationalisation].”

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

“[As regards the timeframe for the issue of the ordinance], the determination of the beginning of that situation carries with it a certain element of arbitrariness since [the 1946 Act] does not lay down any term within which the ordinance referred to in section [7](4) and (6) should be issued. Assuming that in general the absence of a term is tantamount to a duty to enact a law without undue delay, it can be considered that the discharge of the statutory authorisation, assuming the existence of willingness of the authorised body (the Cabinet) should have taken place in 1946 or 1947 at the latest. This is supported by the fact that the Cabinet issued ordinances implementing other provisions (including section 2(7) of the Act, a fundamental provision for the interest of the State).

[As regards the State’s civil liability for legislative omission], ... it should be concluded that before the entry into force of the 1997 Constitution the State had not been liable under civil law for the consequences of its legislative inactivity ...

17 October 1997, marking the entry into force of the Constitution, is the relevant date as its constitutes the beginning of the existence in the legal order of, inter alia, Article 77 § 1 of the Constitution, proclaiming the right of “everyone” to compensation for any harm done to him by any act of a public authority in breach of the law ...

Assuming that Article 77 § 1 does not contain a provision making it possible to draw from it a direct basis for a claim for compensation for the legislature’s inactivity, it must be said that the rules for the State’s liability in the sphere of law-making should be established by means of an ordinary statute, determining in a more detailed manner than the Article 77 §1 premises for an effective claim ...

Article 4171 § 4 of the Civil Code, as introduced by [the 2004 Amendment Act], satisfies the requirement of detailed premises. The relevant temporal consequences are clearly set out in section 5, evidently indicating the prospective operation of Article 4171 § 4 of the Civil Code. A formulation laying down the non-retroactive nature of the provision is telling in that it refers to “events and legal situations that subsisted before its entry into force” ... In consequence, the assessment of the effects of legislative omission subsisting before 1 September 2004 was governed by [earlier provisions]. The relevant Article 417, in the version before the amendment, did not include legislative omission as it was based on a completely different premise, namely, the absence of the State’s civil liability for the legislature’s acts ...”

On 6 July 2006 the Supreme Court, sitting as a bench of three judges, adopted a resolution in reply to a legal question submitted by the Warsaw Court of Appeal. It held in particular that legislative omission causing the State’s liability for damage only occurred when a legal act had not been enacted despite an obligation arising from a legal provision (the Constitution or another act). However, that obligation had to be expressed in a clear and unequivocal manner, excluding the possibility of it having to be determined in the process of judicial interpretation; such practice could be considered an interference with the legislature’s competences.

In a resolution of 19 May 2009 the Supreme Court, sitting as a bench of seven judges, dealt with the following legal question submitted by the Ombudsman:

“Is the State Treasury liable for damage caused by legislative omission, if the legislature’s inactivity subsisted before 1 September 2004?”

The Ombudsman argued in his pleadings that judicial practice on the matter was unclear. The Supreme Court’s answer in the operative part of the resolution reads as follows:

“The State Treasury is liable for damage caused by failure to enact a legal act, if the obligation to enact that act arose after the date of entry of the Polish Constitution [17 October 1997].”

The Supreme Court referred to its 2005 resolution, noting that that approach had been endorsed in its subsequent judgments of 13 April 2007 (no. ICSK 488/06) and 5 December 2007 (no. ICSK 273/07) (see paragraph 18 above). In the latter case the court also held that Article 77 § 1 of the Constitution could not be considered a legal basis for a claim deriving from an “omission” by public authorities. A similar approach was adopted in a judgment of 5 September 2008 (no. I CSK 41/08). The court concluded that it was irrelevant when the damage actually happened or whether it had increased in time, but if the legislative omission occurred before 1 September 2004, Articles 417 and 4171 of the Civil Code could not be relied on.

The Constitutional Court (Trybunał Konstytucyjny) on many occasions confirmed that a situation occurring before the entry into force of the Constitution could not be a basis for a claim under Article 77 § 1 for compensation for the unlawful action of a public authority. In particular, the Court gave such a ruling in judgments of 23 September 2003 (K 20/02), 1 September 2006 (SK 14/05) and 8 December 2009 (SK 34/08), as well as in decisions of 9 June 2010 (Ts 308/08) and 16 November 2010 (Ts 308/08).

On 13 June 2011 the Constitutional Court heard a constitutional complaint lodged by the company Elektrownia w Kielcach spółka akcyjna, challenging the constitutionality of section 5 of the 2004 Amendment Act in so far as it precluded the application of Article 4171 of the Civil Code in situations that had subsisted before the entry into force of the Amendment Act on 1 September 2004. The claimant invoked, in particular, Article 77 § 1 (right to compensation for the unlawful action of a public authority) read in conjunction with Articles 2 (rule of law), 64 §§ 1 and 2 (right of ownership) read in conjunction with Article 21 §§ 1 and 2 (protection of ownership) and Article 32 § 1 (equality before the law) and Article 45 § 1 (right of fair trial) of the Constitution.

The relevant part of the Constitutional Court’s decision (no. SK 26/09) reads as follows:

“4.7. ...The Constitutional Court held that the authorisation included in section 7 of the [1946 Act] not only referred to a regulation in a legal act (akt podstawowy) of the fundamental guarantees of property law which – in accordance with current constitutional standards – could not be accepted but also did not include any instructions as to the content of an ordinance which was to be enacted more than 60 years ago. Consequently, in the light of the provisions of the Constitution it is difficult to assume that non-fulfilment of the duty to enact an ordinance on compensation for nationalised property derived from [the 1946 Act] amounted to “[an] unlawful action of a public authority” for which the Constitution imposes liability on the State. Even if the state of legislative omission still persists, it should at the same time be concluded that the duty is non-enforceable. Thus, it is evident that on the basis of the laws applicable only a statute could regulate compensation for the claimant’s nationalised property. Even so, potential validation (konwalidacja) of section 7 of the [1946 Act] authorising the enactment of an ordinance would have required a statute. The Constitutional Court is not competent to authorise this. Accordingly, the Constitutional Court considers that the assumption that an “unlawful” legislative omission still continues is unwarranted, particularly after the entry into force of the Constitution, and in the light of the standards therein. Moreover, in view of the declaratory nature of that authorisation it is not possible to conceive what criteria the [civil] court should use today to determine the amount of compensation due to former owners of property nationalised in 1946. In summarising this part of the analysis, the Constitutional Court considered that declaring section 5 of the Amendment Act unconstitutional in so far as it precluded the application of the amended provisions of the Civil Code in situations which concerned a failure to enact an ordinance and which arose in the pre-constitutional period and which also continued after the Amendment Act entered into force (the direct application of a new statute) would not have changed the legal situation of the applicant in the desired sense. In the light of current constitutional standards, it is difficult to accept that the duty imposed on the Cabinet by section 7 of the 1946 Act has any legal effect. Consequently, it could not be established that there was an “unlawful action of a public authority” within the meaning of Article 77 § 1 of the Constitution.

On a passing note, the Court noticed that in reality the only temporal rule which would have satisfied the applicant, that is would have given rise to compensation, would have had to be phrased: anyone who has suffered damage as a result of a failure to enact a legal act, notwithstanding when it has occurred and notwithstanding the existence of a current obligation to enact a legal act, may request [the damage] to be redressed in accordance with the new provisions, namely Article 417 1 § 4 of the Civil Code. A legal rule of this content would not only be contrary to the rule lex retro non agit, but would also appear to be unacceptable to the rational legislator. It is also absolutely clear that such far-reaching State liability could not be derived from Article 77 § 1 of the Constitution, which was also demonstrated above in section 4.2. The Constitutional Court stresses that section 5 of the Amendment Act forms part of the legal system and is meant to introduce new civil law provisions into that system. These provisions, on the other hand, were meant to fulfil the legislator’s wish expressed in Article 77 § 1 of the Constitution. Section 5 of the Amendment Act must respect the rules of constitutional order from which it derives its strength. It cannot therefore be given another meaning which would allow it to achieve objectives not provided for by the Constitution.”

Article 156 § 1 of the Code of Administrative Procedure (“the CAP”) (Kodeks postępowania administracyjnego) sets out the grounds on which a final administrative decision may be annulled:

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

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

(2) it has been issued without legal basis or in flagrant breach of the law;

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

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

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

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

(7) it has a flaw making it null and void by the force of law.”

There is no time-limit for a party to lodge a request to have an administrative decision declared null and void under Article 156 § 1.

Article 160 sets out the principles for compensation for loss caused by the issuance of an administrative decision subsequently annulled on the grounds listed in Article 156 § 1.

It was repealed by the 2004 Amendment Act with effect from 1 September 2004 (see also paragraph 50 above) and replaced by new Article 4171 § 2 of the Civil Code. However, under section 5 of the 2004 Amendment Act, which sets out transitional rules, Article 160, in the version applicable on the repeal date, still applies to “events and legal situations” that subsisted before the entry into force of the 2004 Amendment Act.

In September 1999 the Government introduced in Parliament the Bill on the restitution of immovable property and certain kinds of movable property taken from natural persons by the State or by the Warsaw Municipality, and on indemnities (Projekt ustawy o reprywatyzacji nieruchomości i niektórych ruchomości osób fizycznych przejętych przez Państwo lub gminę miasta stołecznego Warszawy oraz o rekompensatach).

It provided for two forms of restitution, namely restitution in natura or indemnity in the form of securities, with regard to property that had been taken over by the State or by the Warsaw Municipality by virtue of certain laws passed under the communist regime, including the Decree on agrarian reform and the Decree on the nationalisation of certain forests. The bill prescribed the eligibility conditions for restitution. It further stipulated that restitution would be equal to 50% of the actual value of the lost property.

The bill provoked a heated debate involving all sections of society, the media and all political parties and factions. It was enacted by Parliament on 7 March 2001 and the relevant Bill of Parliament transmitted to the President of the Republic for signature. However, exercising his right of veto, he refused to sign it.

Ultimately, the Sejm (lower house of the Polish parliament) failed to gather the three-fifths majority required under Article 122 § 5 of the Constitution to override the President’s veto during a vote on 25 May 2001. As a consequence, the Restitution Bill did not enter into force.

Subsequent attempts to enact restitution law were unsuccessful.


Violation of Article 6+6-1 - Right to a fair trial (Article 6-3-c - Defence through legal assistance) (Article 6 - Right to a fair trial;Criminal proceedings;Article 6-1 - Fair hearing)

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in 1970 and is serving a sentence in Batman prison.

In April 2000 the applicant was taken into police custody on suspicion of being a member of Hizbullah, an illegal organisation. He claimed to have been arrested on 4 April 2000, whereas according to the arrest report he was taken into custody on 7 April 2000. His first medical examination upon his arrest was, however, carried out on 6 April 2000.

The examination was carried out by a doctor at the request of the police. According to the medical report issued in respect of the applicant, it was conducted prior to his detention in police custody. The report stated that there was old scar tissue measuring 3 cm on his upper right wrist. The doctor also noted that there were no signs of violence on the applicant’s body.

On 9 April 2000 a second medical report was drafted, according to which the scar tissue mentioned in the medical report of 6 April 2000 was 2.5 cm long.

On 10 April 2000 the applicant was questioned by the police without a lawyer being present. According to the document containing his statements to the police, he acknowledged being a member of Hizbullah.

On 11 April 2000, at the end of his detention in police custody, the applicant was once again examined by a doctor. According to the report, there were no signs of violence on his body.

On the same date the applicant was brought before the public prosecutor and, subsequently, a judge, who questioned him and recorded his statements. On both occasions he denied the veracity of his statements to the police, claiming that he had signed them under duress. The judge remanded him in custody.

On 3 May 2000 the public prosecutor at the Diyarbakır State Security Court filed an indictment against the applicant and a number of other individuals. They were charged with being members of Hizbullah under Article 168 of the former Criminal Code.

On 27 June 2000 the Diyarbakır State Security Court held the first hearing on the merits of the case, at which the applicant gave evidence. He maintained, inter alia, that while in police custody, he had been beaten and given electric shocks to his genitals. He also told the court that he had been taken into police custody on 6 April 2000.

On 2 July 2001 the applicant once again maintained before the firstinstance court that his statements to the police had been obtained under torture.

In 2004 State Security Courts were abolished. The case against the applicant was transferred to the Diyarbakır Assize Court.

On 11 October 2004 the applicant was released pending trial.

On 25 October 2005 the case against the applicant and his coaccused was joined with another case brought against a number of other people charged with being members of Hizbullah.

Between 11 October 2004 and 13 February 2008 the applicant did not attend court, although during this period his lawyers attended some hearings on his behalf.

On 13 February 2008, during the final hearing in the case, the applicant’s lawyer contended that the court should not base its judgment on the applicant’s statements to the police, as they had been made under duress.

On the same day the Diyarbakır Assize Court convicted the applicant of being a member of an illegal organisation and sentenced him to ten years’ imprisonment. The court noted that he had alleged that he had been tortured in police custody. It nevertheless based its judgment on the statements the applicant and a number of the other accused had made to the police, and documents found in the applicant’s house at the time of his arrest.

On 24 June 2009 the applicant’s lawyer lodged an appeal against the judgment of 13 February 2008, which did not refer to any of the applicant’s allegations of ill-treatment while in police custody.

On 30 September 2009 the Court of Cassation upheld the judgment.

On 1 December 2009 the applicant began serving his sentence.

On 25 October 2010 he filed a petition with the Batman public prosecutor’s office, requesting that an investigation be initiated into his illtreatment while in police custody in April 2000.

On 1 December 2010 the applicant gave statements to the Batman public prosecutor. He maintained that he had not been taken into police custody on 6 April but on 4 April 2000, and that he had been subjected to torture while detained. He requested that both the police officers on duty at the relevant time and the doctors who had issued the medical reports be prosecuted.

On an unspecified date the Batman public prosecutor requested the Diyarbakır branch of the Forensic Medical Institute to examine the applicant and provide an opinion as to whether his allegations of torture were wellfounded.

On 2 December 2010 a doctor from the Diyarbakır branch of the Forensic Medical Institute conducted the examination. The applicant told the medical expert that he had been hung by his wrists in police custody, and that they had been bruised at the material time. The doctor drafted a detailed report comparing the results of the three medical reports issued in April 2000 and containing his opinion. He considered that the term “old scar tissue” should not have been used in the reports issued in 2000, since such scars did not fade for a long time. In this connection, the doctor noted that he could not see any such scar when he examined the applicant in 2010. In sum, the doctor considered that had the scar observed during the medical examinations in 2000 been an “old scar”, it would still have been observed during the examination of 2010. He also noted that the reports issued in April 2000 had not described the type, colour or any other features of the scar. Lastly, he recommended that the applicant undergo an examination at the Forensic Medical Institute in Istanbul with a view to establishing whether he had been suffering any psychiatric problems as a result of the alleged torture.

On 28 November 2011 the Batman public prosecutor decided not to prosecute the officers on duty at the Batman police station at the relevant time or the three doctors who had issued the medical reports on 6, 9 and 11 April 2000. The public prosecutor noted that the statutory time-limit provided in Article 102 of the former Criminal Code (which had been in force in 2000 for prosecutions for torture) was ten years, and that the applicant had lodged his complaint after this time-limit had expired. It was accordingly concluded that the investigation was timebarred.

On 19 December 2011 the applicant objected to that decision.

On 23 January 2012 the Midyat Assize Court dismissed his objection and the decision was upheld.

On 8 January 2001, while the applicant was in custody, his hip was broken while he was playing volleyball. He had surgery twice.

In medical reports dated 16 April, 24 May and 26 September 2002, doctors from the Dicle University Faculty of Medicine concluded that for him to make a full recovery, he would need to have a hip replacement.

On 23 December 2002 and 13 January 2003 the applicant filed petitions with the Batman public prosecutor, requesting immediate surgery and complaining of a delay in treatment.

On 6 February 2003 the applicant’s father submitted another petition to the Ministry of Justice requesting immediate intervention.

A prosthetic hip was implanted after four consecutive operations carried out on unspecified dates in 2003 or 2004. On 22 October 2004 the applicant was declared unfit for military service because of the prosthesis.


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention);Violation of Article 18+5-1-c - Limitation on use of restrictions on rights (Article 18 - Restrictions for unauthorised purposes) (Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Pecuniary and non-pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction)

André Potocki;Angelika Nußberger;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1984 and lives in Baku.

The applicant is a well-known civil society activist and human rights defender. He is the Chairman and one of the co-founders of Human Rights Club, a non-governmental organisation (NGO) specialising in the protection of human rights. Human Rights Club was established in December 2010 and has made several unsuccessful attempts to obtain State registration by the Ministry of Justice in order to obtain legal entity status under domestic law. The authorities’ refusal to register Human Rights Club is the subject of another application pending before the Court (see application no. 27309/14). The applicant has collaborated with other NGOs in Azerbaijan on various projects. He is also a member of the Board of Directors of the Republican Alternative Civic Movement (REAL).

The applicant has been involved in the preparation of various reports relating to human rights issues in Azerbaijan. He has also been involved in promoting the adoption of a Parliamentary Assembly of the Council of Europe (PACE) report on political prisoners in Azerbaijan, and has been working on a consolidated list of political prisoners to be presented to the Council of Europe. He has been a speaker at Council of Europe and United Nations (UN) events, and has submitted shadow reports to UN institutions.

The applicant also coordinated the Sing for Democracy campaign (later renamed Art for Democracy) during and after the Eurovision Song Contest 2012 in Baku, which aimed at drawing attention to human rights violations in Azerbaijan.

During the June 2014 session of the PACE the applicant presented a report on human rights violations in Azerbaijan at the Council of Europe.

In recent years a number of human rights activists, lawyers, politicians, journalists and other government critics have been arrested and/or charged with various criminal offences. Those arrests generated wide publicity and were condemned by a number of international organisations, NGOs and prominent individuals (see, for example, paragraphs 83-84 below).

On 22 April 2014 the Prosecutor General’s Office instituted criminal proceedings under Articles 308.1 (abuse of power) and 313 (forgery by an official) of the Criminal Code in connection with alleged irregularities in the financial activities of a number of NGOs.

While the applicant was away in Kyiv from 6 to 11 July 2014 the Sabail District Court ordered a freezing injunction in respect of his bank accounts on 7 July 2014.

On 29 July 2014, while travelling by train from Baku to Tbilisi, the applicant was stopped during checks at the Azerbaijani-Georgian border. He was informed that he could not leave the country because a travel ban had been imposed on him on 25 July 2014.

On 31 July 2014 the applicant was invited to the Prosecutor General’s Office, where he was questioned as a witness in connection with the above-mentioned criminal proceedings (see paragraph 11 above).

On 31 July and 1 August 2014 searches were conducted at Human Rights Club, and a number of documents, mainly related to book-keeping and finance, were seized.

On 2 August 2014 the applicant was again invited to the Prosecutor General’s Office for questioning as a witness. On his arrival at the premises he was arrested and formally charged under Articles 192.2.2 (illegal entrepreneurship), 213.1 (large-scale tax evasion) and 308.2 (abuse of power) of the Criminal Code. The description of charges consisted of a single sentence which was one page long. In particular, it was noted that since June 2010 the applicant, as co-founder and Chairman of Human Rights Club, an “organisation lacking State registration”, and as a project manager in an NGO named International Cooperation of Volunteers, had received a number of grants from the United States of America’s National Endowment for Democracy (NED), various branches of the Open Society Institute Assistance Foundation (OSIAF), Norway’s Stiftelsen Fritt Ord and other donor organisations, pursuant to relevant grant agreements. He was accused of acquiring profit, “by paying money to himself and other people involved in the projects in the guise of salaries and service fees” in the amount of 147,900.85 Azerbaijani new manats (AZN), having acquired that money through, “illegal entrepreneurial activity in respect of grants which, as an official, he had failed to register with the relevant executive authority, even though he had a professional obligation to do so”. He was also accused of avoiding payment of taxes under Articles 218, 219 and 220 of the Tax Code in the amount of AZN 6,162.24, thus causing, “significant damage to State interests protected by law, bringing about grave consequences”.

On the same day, 2 August 2014, the Nasimi District Court, relying on the official charges brought against the applicant and the prosecutor’s application for the preventive measure of remand in custody, ordered the applicant’s detention for a period of three months. The court justified the decision as follows:

“Taking into account the gravity of the criminal offences of which the applicant is accused and the possibility of him disrupting the normal course of the investigation by unlawfully influencing people involved in the proceedings or absconding from the investigation if he remains at liberty, the court considers that the preventive measure of remanding him in custody must be applied in his case.”

On 4 August 2014 the Prosecutor General’s Office made a public statement which noted that the applicant had been charged under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code because there was a suspicion that he had committed the criminal offences set out in the abovementioned Articles.

On 4 August 2014 the applicant appealed against the detention order. He argued that there was no “reasonable suspicion” that he had committed a criminal offence, and that his detention was a punishment for carrying out activities which were protected by the Constitution. He further argued that the court had failed to provide any relevant reasons as to the applicability of grounds which could justify his detention. In particular, as to the risk of absconding, the applicant pointed out that the factual circumstances indicated that there was no such risk. He submitted that he had cooperated with the investigating authorities from the very beginning by appearing for questioning and producing documents whenever he had been required to do so, and that he had returned to the country from a trip to Kyiv knowing that he was under investigation. As to the risk of disrupting the investigation, the applicant argued that the existence of such a risk had not been substantiated. He argued that, on the contrary, he had given to the authorities originals of all documents which could be relevant to the investigation, and therefore was not in a position to tamper with the evidence.

On 8 August 2014 the Baku Court of Appeal upheld the detention order of 2 August 2014 without addressing any of the applicant’s arguments.

On 19 August 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with either house arrest or release on bail. Among other things, the applicant highlighted the factual circumstances which supported his argument for less restrictive measures, including the fact that he had returned to the country from Kyiv knowing that he was under investigation and had complied with all orders to produce documents and appear for questioning, and that he, as a human rights defender, was a respected public figure with strong ties to the community.

On 20 August 2014 the Nasimi District Court rejected his application, finding that the grounds justifying his detention, as specified in its decision of 2 August 2014, “had not ceased to exist”.

On 22 August 2014 the applicant appealed, reiterating his arguments in detail. On 28 August 2014 the Baku Court of Appeal upheld the Nasimi District Court’s decision of 20 August 2014.

On 23 October 2014 the Nasimi District Court extended the applicant’s pre-trial detention by three months (to 2 February 2015), finding that the grounds justifying his continued detention, “had not ceased to exist”.

On 24 October the applicant appealed, reiterating his previous arguments.

On 29 October 2014 the Baku Court of Appeal dismissed the appeal, upholding the extension decision of 14 March 2013 and providing the same reasoning as the first-instance court.

On an unspecified date in December 2014 the applicant applied to the Nasimi District Court, requesting the substitution of remand with house arrest. On 10 December 2014 the Nasimi District Court rejected his application, finding that the grounds justifying his detention, as specified in its decisions of 2 August and 23 October 2014, “had not ceased to exist”.

On 12 December 2014 the applicant appealed against the Nasimi District Court’s decision of 10 December 2014, reiterating his arguments in detail. On 19 December 2014 the Baku Court of Appeal dismissed the appeal.

No further decisions extending the applicant’s detention are available in the case file.

On 12 December 2014 the Prosecutor General’s Office charged the applicant under Articles 179.3.2 (high-level embezzlement) and 313 of the Criminal Code, in addition to the original charges under Articles 192.2.2, 213.1 and 308.2 of the Criminal Code. The description of the allegations against him was slightly expanded, but essentially remained the same as that given on 2 August 2014 (see paragraph 16 above), with additional information alleging that the applicant had falsified various pieces of paperwork and minor contracts for services provided by a number of individuals (presumably in connection with various grant projects) and had not paid them in full as stipulated in the contracts. The new description of charges also included changes to the total amount of the alleged illegal profit obtained by the applicant (AZN 150,170.62) and the alleged amount of unpaid taxes (AZN 6,257.11).

The applicant’s criminal trial began in January 2015. On 16 April 2015 the Baku Court of Serious Crimes convicted him of all charges and sentenced him to six and a half years’ imprisonment and deprivation of the right to hold official positions in State and local authorities and the right to engage in entrepreneurial activity for a period of three years. The conviction is not yet final and the appeal is pending.

Enclosed with his submissions to the Court, the applicant included statements by NED dated 22 October 2014, by the Royal Norwegian Embassy in Baku dated 19 November 2014, by the British Embassy in Azerbaijan dated 12 December 2014, by People In Need dated 12 January 2015, by OSIAF dated 20 and 21 January 2015, by International Bridges of Justice dated 22 January 2015 and by the Fritt Ord Foundation dated 5 February 2015.

All of those statements, addressed “To whom it might concern”, provided details of the relevant grants and donations awarded to the applicant or Human Rights Club, noted that the applicant had regularly provided the relevant donor with necessary accounting information concerning the expenditure of the funds, and specified that the donor organisations and embassies had every confidence that the funds had been used properly for the relevant projects and initiatives for which they had been awarded.

There is no indication in the case file that the above statements have been sought or taken into account by the prosecuting authorities.

Before and after the applicant’s arrest, numerous articles about him were published in the State media and in the media allegedly close to the government. In those articles, he was described as a spy for foreign interests and “a traitor”. Moreover, a number of politicians from the ruling political party made similar comments about recently arrested NGO activists and human rights defenders in Azerbaijan, without specifically naming the applicant. The following are some examples of such comments.

In January 2012 Yeni Azerbaijan, the official newspaper of the ruling party, ran a piece entitled “New Target of National Traitors: Eurovision 2012”, which attacked the Sing for Democracy campaign coordinated by the applicant as a campaign against the interests of the country and stated the following:

“The blackmail and slander campaign of the Alliance to Protect Political Freedoms, Institute for Peace and Democracy, Institute for Reporters’ Freedom and Safety, and Human Rights Club is based on ugly intentions which are evident from the names of these organisations. These organisations always orchestrate the ugly plans of several interested circles against Azerbaijan and act as mercenaries. The remote control of those who would do anything for money, who easily betray their country and State by launching a black smear campaign in exchange for foreign donations (donations obviously granted for meeting certain interests) is in the hands of those who give the money.”

Around the time of the applicant’s arrest and thereafter, the same newspaper and online news portals affiliated with the authorities published a number of pejorative articles calling the applicant an “American agent”, with headlines such as “American Agent Rasul Jafarov Detained for Three Months”, “The Rights of Rasul Jafarov, Another Agent, Limited”, and “Search of the Flat of American Agent Rasul Jafarov”.

On 14 August 2014 A.H., the Chairman of the Legal Policy and State Building Committee of the National Assembly, gave an interview to APA news agency where he commented on the reactions to the arrests of Ms Leyla Yunus, Mr Intigam Aliyev and other human rights defenders and stated:

“... it is those [international organisations] which made them ‘well known’. The organisations which have allocated grants to them in non-transparent ways, directing them into various activities, including those against Azerbaijan. These people, some of whom are traitors and some weak-minded, will finally answer before the law.”

On 15 August 2014 A.H., the Head of the Department of Social and Political Issues of the Presidential Administration, stated the following in an interview with Trend news agency:

“The most deplorable thing is that such NGOs and individuals and some journalists, relying on foreign circles funding them, placed themselves above the national law, evaded registering their grant projects, filing financial statements, paying taxes and the government’s other legal requirements.”

In an interview published on 2 September 2014 Y.M., a member of parliament from the ruling party, who was also the Director of the Institute of History at the Academy of Sciences, stated the following in respect of the recently arrested NGO activists and human rights defenders:

“People who betray their motherland cannot be forgiven. ... The death penalty should be imposed on such people. Capital punishment must be the gravest punishment for them. Why should traitors be forgiven? ... Therefore, the activities of a number of non-governmental organisations must be investigated very seriously, and if any illegality is discovered, such organisations must be immediately banned and their leaders punished.”

On 3 December 2014 State-owned news agencies published a sixtypage manifesto written by R.M., the Head of the Presidential Administration, entitled “The World Order of Double Standards and Modern Azerbaijan”. The article accused human rights NGOs operating in the country of being the “fifth column of imperialism”. It postulated that various, mostly US-sponsored, donor organisations such as NED, as well as other foreign organisations, supported political opposition movements in various countries against national governments. For local human rights NGOs, the purpose of such funding schemes was the formation of a “fifth column” inside a country. US taxpayers’ money was spent on preparing a change of political power or forcing existing governments to comply with US political demands.

According to the applicant, in various speeches given in 2014 the President of the State had stated that foreign criticism of the human rights situation in Azerbaijan had nothing to do with human rights, but was politically motivated, and that within the country there were “national traitors who had sold their conscience to foreign anti-Azerbaijani circles”.

The applicant’s representative, Mr Bagirov, was an advocate and a member of the Azerbaijani Bar Association (“the ABA”). He was affiliated with Law Office no. 6 in Baku.

In November 2014 disciplinary proceedings were instituted against Mr Bagirov by the ABA on the basis of a letter dated 25 September 2014 from a judge of the Shaki Court of Appeal. In his letter, the judge informed the ABA that Mr Bagirov had breached the ethical rules of conduct for advocates at court hearings held in September 2014 before the Shaki Court of Appeal during criminal proceedings against I.M.

On 10 December 2014 the Collegium of the ABA held a meeting at which it considered the complaint against Mr Bagirov. Following the meeting, the Collegium of the ABA held that Mr Bagirov had breached the ethical rules of conduct for advocates because at the court hearing he had made the following remark about the judicial system, “Like State, like court ... If there were justice in Azerbaijan, Judge [R.H.] would not deliver unfair and partial judgments, nor would an individual like him be a judge” (“Belə dövlətin belə də məhkəməsi olacaq ... Azərbaycanda ədalət olsaydı, hakim [R.H.] ədalətsiz və qərəzli hökm çıxarmaz, nə də onun kimisi hakim işləməzdi”). On the same day the Collegium of the ABA decided to refer Mr Bagirov’s case to a court, with a view to his disbarment. It also decided to suspend his activity as an advocate (vəkillik fəaliyyəti) pending a decision by the court.

It appears from documents submitted to the Court that, following Mr Bagirov’s suspension as an advocate, the domestic authorities stopped allowing him to meet the applicant in prison.

On 29 March 2015 Mr Bagirov sent a letter to the Head of the Prison Service of the Ministry of Justice asking for a meeting with six of his clients who were held in detention, including the applicant. He specified in his letter that he was representing those individuals before the Court, and requested a meeting with them in connection with their pending cases. The relevant part of the letter reads:

“I am writing to inform you that I represent the following individuals, who are detained in the penal facilities and temporary detention centres under your authority, before the European Court of Human Rights.

I ask you to allow a meeting with these individuals in connection with the progress of their cases based on their applications lodged with the European Court (the numbers of which are stated below):

Jafarov Rasul Agahasan oglu (Baku Detention Facility, application no. 69981/14)

Attachment: Copies of letters from the European Court and the Azerbaijani government concerning these individuals.”

A copy of the letter was also sent to the Head of the Serious Crimes Department of the Prosecutor General’s Office.

By a letter of 14 April 2015, the Deputy Head of the Prison Service refused to allow Mr Bagirov to meet the applicant in prison. The relevant part of the letter reads:

“Your request for a meeting in the penal facilities and detention centres with the individuals detained in the penal facilities and with convicted inmates in order to provide them with advocacy services has been considered.

In explanation, as your advocacy activity at Law Office no. 6 has been suspended by decision no. 29 of 10 December 2014 of the Bar Association of the Republic of Azerbaijan and you have been disbarred, and [as a result of the fact that] as of that date you can no longer practise as an advocate in court and investigation proceedings, it is impossible to grant you access to the penal establishments as counsel.”


CASE OF MILINKOVIĆ v. BOSNIA AND HERZEGOVINA

Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

The applicant was born in 1977 and lives in Banja Luka.

By a judgment of the Banja Luka Court of First Instance of 23 February 2009 which became final on 11 May 2009, the Republika Srpska (an Entity of Bosnia and Herzegovina) was ordered to pay, within 15 days, 34,000 convertible marks (BAM) in respect of non-pecuniary damage together with default interest at the statutory rate and BAM 4,667 in respect of legal costs together with default interest at the statutory rate to the applicant.

The Banja Luka Court of First Instance issued a writ of execution (rješenje o izvršenju) on 29 June 2009.

The applicant complained of non-enforcement to the Constitutional Court of Bosnia and Herzegovina (“the Constitutional Court”). On 16 January 2013 the Constitutional Court found a breach of Article 6 of the Convention and Article 1 of Protocol No. 1 to the Convention.

The final judgment in favour of the applicant remains unenforced to this day.


Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

The applicant was born in 1955 and lives in İzmir.

The facts of the case, as submitted by the parties and as they appear from the documents submitted by them, may be summarised as follows.

The applicant’s daughter, Gülperi O., worked as a nurse at the Aegean University Hospital in İzmir. She was married to O.O., who worked in the pharmacy at the same hospital.

According to the applicant, the couple had frequent rows and O.O. used violence against Gülperi O. on a number of occasions.

At 5.30 p.m. on 18 July 2005 O.O. brought Gülperi O. to the accident and emergency department of the Aegean University Hospital and told the doctors and nurses at the hospital that she had taken an overdose of two medicines called “Prent” and “Muscoril”.

A police officer at the hospital took a statement from O.O. at 6.45 p.m. In his statement O.O. was reported as having stated that he and Gülperi O. had had a row earlier in the day; she had attacked him and he had hit her. He had then left home and some time after his return at 3.00 p.m. Gülperi O. had felt unwell. He had then brought her to the hospital.

It was stated in a report prepared by police officers that a police officer had spoken to the prosecutor over the telephone at 6.50 p.m. and that the prosecutor had instructed that police officer to question Gülperi O. and her husband, O.O.

At the time of her admission to the hospital, Gülperi O. was conscious but drowsy. Doctors and nurses, who had been informed about O.O.’s assertion that she had taken an overdose of the two medicines, pumped her stomach. When her pulse slowed down the doctors unsuccessfully tried to resuscitate her. Gülperi O. died at 10.10 p.m.

The doctor and the prosecutor who subsequently examined her body were unable to establish the cause of death and they decided, in view of the fact that the deceased’s husband, O.O., had told the police officers that he had hit her, that a post-mortem examination was necessary.

The post-mortem examination was carried out the following day and samples taken from Gülperi O.’s body were sent for forensic analysis.

On 20 July 2005 the police prepared a report summing up their inquiry. It was stated in this report that Gülperi O. had committed suicide by taking an “overdose of medicines”.

On 22 July 2005 the applicant’s husband, Mr Elaattin Kanter, lodged an official complaint with the İzmir prosecutor against O.O., and alleged that O.O. had been responsible for the death of his daughter. Mr Kanter stated in his complaint petition that O.O. had beaten Gülperi O. up on a number of occasions and, as a result, she had been thinking of divorcing him. However, O.O. had apologized and had persuaded her to change her mind by promising to her that he would not be violent towards her again. Mr Kanter informed the prosecutor that Gülperi O. had telephoned her sister during the afternoon of the day of her death, and that they had had a normal conversation; she had not been suicidal at all.

Mr Kanter alleged that O.O. had forced Gülperi O. to take the medicines and had subsequently dumped her body at the hospital. The family had heard nothing from O.O. since that date and he had not even attended the funeral.

On 25 July 2005 the İzmir prosecutor questioned the applicant and her husband. The applicant told the prosecutor that O.O. had beaten up her daughter before and that as a result she had had to be hospitalised twice with suspected head injuries. Mr Kanter told the prosecutor that his daughter had never been suicidal and that in his opinion O.O. had been responsible for her death.

On 29 July 2005 police officers forwarded photographs of Gülperi O.’s body to their head office with a covering letter stating “...find attached photographs of Gülperi O. who committed suicide by taking an overdose of medicines”.

Also on 29 July 2005 the İzmir prosecutor questioned the hospital personnel who had been on duty on the day in question and had tried to resuscitate Gülperi O. A doctor told the prosecutor that O.O. had told him that Gülperi O. had taken “Muscoril” and “Prent”.

On 19 December 2005 the İzmir prosecutor informed the Registry Office for births, marriages and deaths that Gülperi O. had taken an overdose on 18 July 2005 and had killed herself and that her death could be entered in the records.

According to a report drawn up by the Forensic Medicine Institute on 30 December 2005, no medicines, other drugs or alcohol had been found in the blood and other bodily samples taken from Gülperi O.’s body.

On 30 January 2006 the Forensic Medicine Institute published its report on the post-mortem examination and other forensic examinations carried out on the samples taken from Gülperi O.’s body. According to the report, there was advanced oedema in her lungs and there were no drugs or other foreign substances in her body. The cause of death was established as “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs.

On 13 February 2006 the İzmir prosecutor in charge of the investigation sent a letter to the Forensic Medicine Institute and asked whether suicide or some form of illness could have been the cause of death.

In its response to the İzmir prosecutor the Forensic Medicine Institute confirmed on 24 February 2006 that there had been no foreign substances or medicines ‒ including “Prent” and “Muscaril” (see paragraph 9 above) ‒ in Gülperi O.’s body. The Institute also stated in its letter that, should the judicial authorities conclude that Gülperi O. had committed suicide by taking an overdose, then those judicial authorities should also conclude that the medicines she had used were of a type which could not be detected in forensic examinations of samples taken from internal organs.

On 28 February 2006 the İzmir prosecutor decided to close the investigation. In the decision the prosecutor stated that “the post-mortem report of 30 January 2006 states that Gülperi O. died as a result of lung complications caused by medicinal intoxication”. In the opinion of the prosecutor, Gülperi O. had committed suicide because she had had an argument with her husband.

On 4 April 2006 the applicant lodged an objection with the Karşıyaka Assize Court against the prosecutor’s decision. The applicant drew the Assize Court’s attention to the prosecutor’s failure to question O.O., despite the fact that by his own admission he had beaten Gülperi O. up on the day of her death. She also argued that the prosecutor’s conclusion that her daughter had committed suicide by taking an overdose ran contrary to the conclusions set out in the two reports issued by the Forensic Medicine Institute. She added that the prosecutor had not visited the flat where Gülperi O. used to live with O.O., even though they had informed the prosecutor that the flat had been a mess and that windows had been broken. She alleged in her petition that the prosecutor had accepted from the outset that Gülperi O. had committed suicide and that that had been the reason why she had not conducted an investigation into the allegations brought to her attention.

On 20 June 2006 the applicant and her husband, assisted by a lawyer, submitted another petition to the Assize Court in which they set out additional arguments in support of their request for the prosecutor’s decision to be set aside.

The objection was dismissed by the Karşıyaka Assize Court on 11 July 2006. The Assize Court considered that the prosecutor’s decision had been correct and in accordance with domestic law and procedure.

When notice of the application was given to the respondent Government, the Court asked the Government ‒ pursuant to the parties’ duty to cooperate with the Court under Article 38 of the Convention ‒ to invite the Forensic Medicine Institute to prepare a report, based on the above-mentioned existing medical reports and the prosecutor’s decision of 28 February 2006, and to render an expert opinion as to whether there exist medicines which cannot be detected in forensic examinations of samples taken from internal organs and which could nevertheless have caused the fatal lung problems. The Government were also asked, should the Institute’s answer be in the negative, to invite the Institute to elaborate, on the basis of the documents in the investigation file, on the cause of the lung problems which, according to the report of 30 January 2006, caused the death.

The Government complied with that request and submitted to the Court two reports prepared by the Forensic Medicine Institute on 16 April 2013 and 15 July 2013.

In these two reports, three experts working for the Forensic Medicine Institute confirmed that the samples taken from Gülperi O.’s body had been checked against the list of known substances in their database ‒ including the two medicines named specifically by Gülperi O.’s husband, O.O. (see above in paragraph 9) ‒ and stated that she had not died as a result of having taken any of those substances. It was also stated in the report that the possibility could not be completely ruled out that she might have taken another toxic substance which was not in their database.

The experts at the Forensic Medicine Institute also stated in their reports that they did not agree with the conclusion reached in the autopsy report of 30 January 2006, namely that Gülperi O. had died as a result of “acute alveolar swelling and intra-alveolar haemorrhage” in the lungs. In their opinion, the “acute alveolar swelling and intra-alveolar haemorrhage” was a histopathological finding often caused by anoxia (total oxygen depletion), and could thus not be stated as the cause of death. In the opinion of the three experts, it should have been stated in the autopsy report of 30 January 2006 that the cause of Gülperi O.’s death could not be established.


André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The first applicant, Mr J.M.N., is a Swedish national born in 1973. The second applicant, Ms C.H., is a Norwegian national born in 1976. The applicants live in Moelv. They were represented before the Court by Mr A. Westeng, a lawyer practising in Oslo.

The applicants have a son, X, born in August 2013. In 2006, the second applicant had a son, Y, with another man. The second applicant suffers from paranoid schizophrenia, a chronic mental illness requiring medication. X had a difficult birth with birth asphyxia and possible withdrawal symptoms from the second applicant’s medication, which she had taken during pregnancy. Six days after X was born, Ringsaker Child Care Protection Services (barneverntjenesten) decided to take him into public care on an emergency basis because of the second applicant’s poor mental health and the first applicant’s inability to understand that this could be hazardous for X.

The applicants’ appeal was rejected on 5 September 2013 by Oppland and Hedmark County Social Affairs Board (fylkesnemnda for barnevern og sosiale saker, henceforth “the Board”). The applicants were at the same time granted contact rights for two hours once per week with X. The applicants did not appeal against the Board’s decision.

On 10 October 2013 the Child Care Protection Services requested the Board to take X and Y into permanent public care, place them in foster homes and regulate the contact rights with the applicants. The applicants opposed the measures.

On 4 March 2014, the Board decided to take X and Y into permanent public care and place them in foster homes. Y was placed with his maternal grandmother, with whom he had already lived since he was a baby. X was placed in another foster home. The applicants were granted contact rights with X for two hours, three times per year, with a foster parent present if needed. The second applicant was granted more substantial contact rights with Y, including overnight visits. An oral hearing was held for two days and 12 witnesses were heard. Moreover, the Board took into consideration a report issued by an expert, psychologist M.H., who had observed the applicants during several visits with X. The report concluded that the applicants failed to provide X with personal contact and security and that there were flaws in the emotional and child development care.

The applicants appealed against the permanent public care order and the decision on contact rights only regarding X.

On 24 June 2014, the Board’s decision was confirmed by Hedmarken City Court (tingrett), after a two-day oral hearing where 12 witnesses and the expert M.H. were heard. The court was composed of one judge and two expert lay judges. The court found that the applicants were able adequately to take care of X’s basic daily needs. However, as a vulnerable child, X had a special need for contact and emotional interaction. Regarding the second applicant, the court took into consideration the report by M.H. where it was noted, inter alia, that she was strongly affected by negative psychosis symptoms such as passivity and social withdrawal. She was emotionally numb, with heavily reduced function levels. As to the first applicant, M.H. had found that he was not able to compensate for the first applicant’s deficiencies. Although he could take care of X’s material needs, he was unable to fulfil X’s need for contact and interaction. In view of this, the court concluded that the public care of X could not be terminated.

One of the expert lay judges dissented and expressed the view that the first applicant was able to compensate for the second applicant’s deficiencies, at least if support measures were put in place by the authorities.

On 10 April 2015, Eidsivating High Court (lagmannsrett) unanimously rejected the applicants’ appeal against the lower court’s judgment concerning the permanent public care order. The appellate court consisted of three judges and two expert lay judges. Although the applicants did not appeal against the judgment in so far as it concerned the contact rights, the appellate court considered the matter on its own initiative. An oral hearing was held for three days. The parties and 14 witnesses were heard. With regard to X, he was considered by the appellate court to be a healthy and normal child but, due to his infant trauma, still vulnerable. Moreover, it noted that the second applicant had a chronic mental illness. The court relied on the same expert, M.H., as the City Court. M.H. had observed visits between the applicants and X on several occasions and had issued a new report, dated 23 February 2015, where, inter alia, the following was noted:

“[The second applicant] has, during the visits I have observed, occasionally been more active with [X] than during the visits I observed in 2013. But her demeanour during the visits is, as during earlier visits, with some exception, characterised by her subdued (avdempet), detached (følelseflat) and quiet (stille) behaviour. There are long pauses where it is completely silent in the room.”

As to the first applicant, the report by M.H. noted, inter alia, the following:

“[He] was very passive during both visits. He followed [X] around the room while [X] explored the various games, and sat down on the floor when [X] did. However, he sat down behind [X] so that there was no face-to-face contact between them ... He smiled at [X] but did not take the initiative to interact or answer or develop the various initiatives X took for interaction during play. The visits were characterised by [the first applicant] quietly observing X’s play and the [second applicant’s] and [X’s] play. When [the second applicant] during the last part of the visits became more passive, [the first applicant] did not take over, but remained passive and quiet.”

The report concluded that neither parent was able to meet X’s need for contact and interaction. Even though the first applicant was considered to possess more parental ability, he was still not found able to compensate for the second applicant’s lack of such ability, in particular as he lacked in his ability for sensitive care (sensitiv omsorg). It was furthermore concluded by M.H. that neither parent saw, understood or responded to X’s signals. The first applicant still lacked an understanding of the second applicant’s mental illness and how it affected her capacity to care for the child.

The appellate court found that the expert M.H.’s observations were confirmed by the court’s own observations during the oral hearing. It further considered that support measures would not be sufficient because of the applicants’ lack of interest in such measures and lack of understanding of their deficiencies. Moreover, X had settled well in his foster home and developed positively. Thus, it was in X’s best interest that the permanent public care order be granted.

The applicants appealed to the Supreme Court (Høyesterett), submitting that the permanent public care order should not be granted. They did not complain about the contact rights.

On 23 June 2015, the Supreme Court refused leave to appeal.

According to Section 4-8(2) of the 1992 Child Welfare Act (lov om barneverntjenester), a newborn child may be taken into public care if it is highly probable that a move to the parents would lead to such a situation or risk to the child as mentioned in Section 4-12.

Section 4-12(a), of the Act stipulates that a child may be taken into public care if there are serious deficiencies in the daily care of the child or in relation to the personal contact and security the child needs, depending on his or her age and development.

According to Section 4-21(2) of the Act, the parties may request the County Social Affairs Board to terminate the public care as long as at least 12 months have passed since the Board or the courts last considered the matter.

Contact rights between a child in public care and his or her parents are regulated in Section 4-19 of the Act which stipulates that the extent of the contact rights is decided by the County Social Affairs Board. The private parties can demand that the matter be reconsidered by the Board as long as at least 12 months have passed since the Board or the courts last considered it (Section 4-19(5)).

Article 3 of the Convention on the Rights of the Child, in so far as relevant, reads as follows:

“1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. “


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

The applicant was born in 1980 and lives in the Kyiv Region.

On 15 August 2006 the applicant got involved in a drunken brawl with a stranger and beat him to death.

The date of his arrest cannot be established with certainty. According to the applicant, he was arrested on 20 August 2006. An internal police inquiry established the date as 22 August. The official arrest record gives the time and date of his arrest as 6.45 p.m. on 24 August.

On 25 August 2006 the Sovetskiy District Court in Omsk remanded the applicant in custody. On the same day he was seen by a medical expert who noted two abrasions on his forehead that could have been caused by a solid blunt object four to six days prior to the examination.

On 28 December 2006 the applicant was convicted of murder and sentenced to nine years’ imprisonment in a high-security facility.

On 21 January 2007 the applicant asked the prosecutor to investigate his allegation that police officers had beaten him up after his arrest. On 11 March 2008 the prosecutor refused institution of criminal proceedings. On the following day the decision was quashed and an additional inquiry was ordered. Since then the investigative authorities and courts issued and subsequently quashed at least eight decisions to open criminal proceedings into the alleged ill-treatment. Referring to the statements from three police officers and from the investigator all of whom denied any ill-treatment or intimidation, the decision of 31 December 2009 concluded that the applicant’s allegations were unsubstantiated because the expert had determined his injuries to have been caused no later than 21 August, that is to say, three days prior to his arrest. On 28 July 2015 the prosecutor of the Sovetskiy District in Omsk annulled the decision of 31 December 2009 and ordered an additional inquiry which should establish whether or not the applicant had been brought to the police station already on 20 August 2006 and whether or not the specific police officer described by the applicant had been on duty on that day.

Between 26 February 2007 and 30 October 2009 the applicant served the sentence in IK-9, a correctional institution in Omsk. The dormitory was crammed and in a poor state of repair. On the latter date the applicant was transferred to IK-3 where he stayed until 26 March 2010. The dormitories in which the applicant slept were overcrowded, affording at times no more than 1.5-1.7 sq. m per detainee. The access of natural light was restricted by plastic film covering the windows. The toilets, located in a separate building, were equipped with 7 pans for 600 detainees. On 26 March 2010 the applicant was transferred to LIU-2, a medical facility, where he appears to have stayed until the end of his sentence on 23 August 2015. The premises of the facility were overcrowded and afforded no more than 1.8 sq. m of space per detainee.


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

The applicant was born in 1946 and lives in Lisbon.

contrato de empreitada) pursuant to which the latter undertook, in 1996, to build the applicant a house.

On 22 May 2007 the applicant instituted civil proceedings in the Oeiras Civil Court against company C.C. for the alleged failure in the execution of the contract.

Between 22 May and 29 October 2007 company C.C. and the applicant submitted submissions in reply (constestação) and new submissions (réplica). Company C.C. argued, in particular, that the court had already decided in a case on the same subject (caso julgado).

On 26 August 2008 the Oeiras Civil Court gave directions considering that it had already decided on the same subject in a previous case (despacho saneador). The applicant appealed against this decision before the Lisbon Court of Appeal, which on 8 May 2009 revoked the Oeiras Civil Court decision and ordered the examination of the case. On an unknown date company C.C. appealed against this decision to the Conference of the Lisbon Court of Appeal, which on 16 July upheld its decision of 8 May 2009.

On 12 February 2010 the Oeiras Civil Court gave new directions setting out the questions which needed to be assessed. The applicant challenged the decision and both parties submitted evidence.

On 18 November 2010 held the first hearing. Until 19 September 2011 the Oeiras Civil Court listed eleven hearings, in which several witnesses were heard.

On 30 September 2011 the Oeiras Civil Court adopted a judgment ruling against the applicant.

On 23 January 2012 the applicant challenged the outcome of the proceedings before the Lisbon Court of Appeal. On 14 June 2012 the case-file was sent to the Lisbon Court of Appeal. Meanwhile, first-instance judge had to analyse a question of nullity which had been raised by the parties in the grounds of appeal submitted.

On 29 January 2013 the Lisbon Court of Appeal upheld the first-instance judgment.

On 1 March 2013 the applicant appealed to the Supreme Court of Justice, which dismissed the appeal for being lodged out of time. The applicant challenged this decision, which was upheld on 25 July 2013 by a decision of the Vice-President of the Supreme Court of Justice.