Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Krzysztof Wojtyczek;Pauliine Koskelo

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

On 6 September 1944 the Polish Committee of National Liberation (Polski Komitet Wyzwolenia Narodowego) issued the Decree on agrarian reform (dekret o reformie rolnej). The decree provided that properties of an agricultural nature, owned or co-owned by natural or legal persons, with an area exceeding 100 hectares (ha) in total or 50 ha of agricultural land, would be allocated for agrarian reform (section 2(1)(e)). It further prescribed that such properties would be transferred to the State Treasury immediately and without any compensation.

On 12 December 1944 the Polish Committee of National Liberation issued the Decree on the nationalisation of certain forests (dekret o przejęciu niektórych lasów na własność Skarbu Państwa). The decree provided that forests and forest land, owned or co-owned by natural and legal persons, with an area exceeding 25 ha, would be transferred to the State Treasury.

Mr Aleksander Zamoyski, the applicants’ father and grandfather respectively, was the owner of the Dobra Ordynackie Kozłówka estate, which included a large area of forest land (3,844.61 ha). The property was taken over by the State Treasury for the purposes of agrarian reform pursuant to section 2(1)(e) of the Decree on agrarian reform. On 9 December 1946 an entry was made in the land register.

The applicants are the legal heirs of Mr Zamoyski.

On 23 February 2010 the applicants brought a claim against the State Treasury in the Lublin Regional Court. They each sought 80,000 Polish zlotys (PLN approximately 20,000 euros) in partial compensation for the nationalisation of the forest land which had been owned by their legal predecessor. They relied on section 7 of the Act of 6 July 2001 on the preservation of the national character of the country’s strategic natural resources (ustawa o zachowaniu narodowego charakteru strategicznych zasobów naturalnych kraju – “the 2001 Act”).

In the alternative, if the court ruled that they could not seek indemnity under section 7 of the 2001 Act on account of a lack of separate provisions determining the rules of indemnification, the applicants sought compensation for legislative omission (zaniechanie legislacyjne). In respect of the latter, they relied on Article 417¹ § 4 and subsequently Article 417 of the Civil Code. In their subsequent pleadings, the applicants noted that they were seeking compensation equal to 0.001% of the amount due and wished to determine the principle of compensation for the nationalised forest.

On an unspecified date the applicants’ case was transferred to the Warsaw Regional Court.

On 17 January 2011 the court dismissed the applicants’ claim. It found it unnecessary to take evidence with a view to determining the size and value of the various plots making up the estate, since the claim was in principle unfounded. The court acknowledged that the applicants’ predecessor in title had owned the Dobra Ordynackie Kozłówka estate, that at least part of it was forest, and that it had been nationalised pursuant to the Decree on agrarian reform.

With regard to the compensation claim for legislative omission, the court held that the applicants could not rely on Article 417¹ § 4 of the Civil Code since that provision had only entered into force on 1 September 2004, while their claim concerned the 2001 Act. However, the State Treasury was liable for damage caused by legislative omission which had occurred after the entry into force of the Constitution on 17 October 1997. The 2001 Act had entered into force after the latter date and, accordingly, the applicants’ claim for legislative omission could be based on Article 417 of the Civil Code (in the version applicable prior to 1 September 2004) in conjunction with Article 77 § 1 of the Constitution.

The court held that section 7 of the 2001 Act could not constitute the basis of a compensation claim for legislative omission. It held that the provision was of a declaratory nature, in which the legislature had announced that persons who had been wronged in connection with the taking away of their property should have received some indemnity. That declaration had to be fulfilled in a separate statute specifying the amount of indemnity, the manner of calculation and the possible limitations. According to the court, the principal purpose of the 2001 Act was to preserve the national character of the country’s strategic natural resources, including those which in the past had been taken by the State to the detriment of the owners. The 2001 Act signalled the need to regulate the question of indemnities to former owners, but did not regulate it itself and left it to the legislature to decide subsequently. Furthermore, section 7 of the 2001 Act was of a very general nature. It did not specify the manner of calculating an indemnity, the amount, the possible limitations or the conditions to be fulfilled by claimants. In this connection the court held that it could not replace the legislature and encroach on its competences.

The court also noted that there were various groups of persons whose properties had been nationalised without just or any compensation during the period of the Polish People’s Republic. The legislature had decided to establish the rules and procedure for the payment of compensation to some of those groups, while in respect of others it had enacted no such regulations. An example of the first was the Act of 8 July 2005 on the realisation of the right to indemnity for property left beyond the present borders of the Polish State (“the 2005 Act”), which provided that Bug River claimants were entitled to compensation set at 20% of the value of their original Bug River property. The legislature had entitled that group of persons to compensation and specified the procedure applicable to such claims.

The court noted, however, that the legislature had not to date enacted any rules on indemnifying persons who had been wronged on account of the Decree on agrarian reform or the Decree on the nationalisation of certain forests. It emphasised that, in accordance with section 2(1) of the Decree on agrarian reform, ownership of all the property referred to in subsections (b), (c), (d) and (e) had been immediately transferred to the State Treasury without any compensation. The Decree on the nationalisation of certain forests did not provide for any compensation either. Consequently, there remained many groups of persons who had been wronged by the taking away of their property and the question of compensating them remained unresolved.

The court held that section 7 of the 2001 Act contained the legislature’s declaration that it intended to regulate the question of indemnities, inter alia, to persons who had lost their forests. In the 2001 Act the legislature had only determined that there would be no restitution in natura of, inter alia, lost forests. However, the question of indemnities remained to be determined by the legislature. The court held that section 7 of the 2001 Act could not be interpreted as a basis of a direct claim for indemnity. The provision did not specify the amount of indemnity or the applicable conditions, and in that respect the court could not substitute the legislature, who had the exclusive competence to create legal norms.

The applicants appealed. They argued, inter alia, that the firstinstance court had erroneously interpreted section 7 of the 2001 Act by holding that the provision could not constitute the basis of a claim for indemnity. They further maintained that the court had wrongly interpreted the same provision in conjunction with Article 417 of the Civil Code and Article 77 § 1 of the Constitution by holding that the legislature had not perpetrated a legislative omission consisting of a failure to enact provisions regulating the payment of indemnities. The applicants invoked the Court’s judgment in the case of Broniowski v. Poland ([GC], no. 31443/96, ECHR 2004V).

On 22 September 2011 the Warsaw Court of Appeal dismissed the applicants’ appeal, concurring with the Regional Court’s interpretation of section 7 of the 2001 Act.

The Court of Appeal noted that a claim (roszczenie) was a right, based in law, to demand that a particular person act in a specific manner. Section 7 of the 2001 Act did not contain sufficient normative content to consider that it established a claim in that sense. Nor did it specify the subjective and objective scope of the rights of former owners, the specific nature of the claim, the exact meaning of the term “loss of property” or whether indemnity should be equal to whole or part of the value of the nationalised property. Accordingly, it could not be considered that section 7 of the 2001 Act constituted a norm imposing an absolute obligation on the State Treasury to act in a specific manner, namely to pay a specific amount of money to an individually designated subject. The Court of Appeal considered that determination of the rules concerning the State’s liability required further statutory specification of the conditions for an effective claim than that which had been stipulated in section 7 of the 2001 Act.

The Court of Appeal concurred with the Regional Court that section 7 of the 2001 Act was a declaratory provision (przepis o charakterze blankietowym), reflecting the legislature’s general assumptions. The provision did not specify the amount of indemnity or the eligibility conditions, and a court could not substitute the legislature in that respect. In the Court of Appeal’s view, a certain confirmation of the State’s liability towards former owners who had lost ownership of the properties referred to in section 1 of the 2001 Act, without specifying the essential elements of that liability, was devoid of any protective significance (znaczenie gwarancyjne) and, as such, did not have legal effect.

There was no doubt for the Court of Appeal that, prior to the entry into force of section 7 of the 2001 Act, persons who had lost property pursuant to the Decree on agrarian reform or on the basis of section 1 § 2 of the Decree on the nationalisation of certain forests, had had no right to compensation in respect of the loss of their property because the abovementioned decrees did not establish that right. Nor did they establish the right to be compensated for the loss of property in any other form. Furthermore, the decrees at issue had not been declared unconstitutional. Thus, the taking of property by the State on the basis of the impugned decrees was not unlawful and could not be considered a tort.

The Court of Appeal further concurred with the Regional Court that the principal purpose of the 2001 Act was to prevent privatisation of the strategic resources of the country (section 2) and not establish claims for the loss of property.

The Court of Appeal further held that there had been no legislative omission in the applicants’ case. In its view, section 7 of the 2001 Act did not contain even a promise of conferring a right to claim for indemnity on specific categories of subjects, including those who had lost forest land as a result of the operation of the Decree on agrarian reform. The provision was an expression of political premise, and its purpose was not to confer rights on specifically designated persons in a clear and unconditional manner. A simple declaration that a certain regulation would be enacted on an unspecified future date was not sufficient to conclude that the obligation to legislate had been breached. The Court of Appeal noted that the legislature’s obligation to enact a statute had to be expressed in another statute in an unequivocal manner, excluding the possibility of this being the result of judicial interpretation. Having regard to the purpose of the 2001 Act, the Court of Appeal noted that the legislature had had no intention of creating an obligation to enact a statute on the indemnification of persons who had lost property as a result of the nationalisation decrees. The legislature simply provided for such a possibility in a statute to be enacted on an unspecified future date.

The applicants lodged a cassation appeal. Firstly, they argued that the Court of Appeal had wrongly interpreted section 7 of the 2001 Act in conjunction with section 13(2) of the 2005 Act. They submitted that the two provisions constituted the basis of the State Treasury’s obligation to compensate for the loss of forest land. Secondly, they argued that the court had erroneously interpreted section 7 of the 2001 Act in conjunction with Article 417 of the Civil Code and Article 77 § 1 of the Constitution by holding that the legislature had not perpetrated a legislative omission.

On 6 September 2012 the Supreme Court dismissed the applicants’ cassation appeal (case no. I CSK 96/12).

The relevant part of the Supreme Court’s judgment reads:

“With regard to the first of the appellants’ arguments, it should be pointed out that in legal science a claim (roszczenie) is regarded as one of the normative forms of a subjective right (prawo podmiotowe), consisting of the possibility of demanding a specific act from a specific person. A claim is characterised, on the one hand, by the existence of an entitlement specified with regard to its content and subject and, on the other hand, by the directly assigned to it obligation of another subject. In other words, the equivalent of an entitlement is an obligation of a specific person to act in a specific manner, i.e. to undertake a specific action or to refrain from it ...

The appellants ... are aiming to demonstrate that the regulation contained in section 7 of the 2001 Act create for them, as successors of the former owner of forests ..., claims for indemnity. Section 1 of the 2001 Act recognises inter alia, State forests as the country’s strategic national resources, and section 2 stipulates that the national resources listed in section 1 and owned by the State Treasury are not subject to change of ownership, with the exception of provisions contained in particular statutes. Section 7 of the 2001 Act stipulates that claims of natural persons, former owners or their successors, in respect of loss of ownership of the resources listed in section 1, shall be satisfied in the form of indemnities (rekompensaty) paid from the State budget on the basis of separate provisions.

As has been already noted by the Supreme Court ... it is apparent from the abovementioned 2001 Act and the reasons for the relevant bill that the legislature’s general premise was not to effect (niedokonywanie) changes of ownership in respect of the country’s strategic national resources. When interpreting the purpose of the 2001 Act, it should be remembered that the relevant bill was being prepared in parallel with the Restitution Bill of 7 March 2001, which was [successfully] vetoed by the President of the Republic ....

Having regard to the commonly accepted understanding of a claim in legal science, it is necessary to agree with the Court of Appeal’s assessment that the regulation contained in section 7 of the 2001 Act does not entitle former owners or their successors to claim for indemnity in respect of loss of ownership of the resources listed in section 1 of the Act ... [The appellants] correctly point out that one legal provision may contain one, two or more norms, but it may also contain only part of a norm. Such a specific relationship between a legal provision and a legal norm does not, however, result in it being possible to derive from section 7 of the 2001 Act a claim for indemnity, by supplementing this legal provision, by analogy, with the regulation contained in the Act on the realisation of the right to indemnity for property left beyond the present borders of the Polish State, which concerns an entirely different matter. The appellants have omitted to note that the legislature, while referring in section 7 of the 2001 Act to the satisfying of claims of former owners or their successors, has expressly stipulated that this would be done on the basis of separate provisions, i.e. provisions which were yet to be enacted. In addition, neither the content of the former owners or their successors’ entitlement nor the content of the State Treasury’s (the debtor’s) obligation was sufficiently specified in section 7 of the Act. The Supreme Court has already adopted an analogous position in this regard in its judgment of 29 June 2012 (case no. I CSK 547/11), stating that section 7 of the 2001 Act does not allow for such a specification of the norm of substantive law contained in it, which would determine in detail the content of a specific addressee’s entitlements and obligations. Such a position was also approved by the Supreme Administrative Court in the course of examining cassation appeals in cases concerning claims for compensation under section 7 of the 2001 Act initiated in administrative proceedings (judgments of 6 May 2010, case no. I OSK 935/09; 6 August 2010, case no. I OSK 1377/09; 17 March 2011, case no. I OSK 718/10 and 4 October 2011, case no. I OSK 245/11).

The arguments drawn by the appellants from the Supreme Court’s rulings ... do not lead to opposite conclusions ... In the rulings referred to, the Supreme Court emphasised that the conferring of a [right to] claim by the legislature does not have to be formulated expressis verbis in a legal provision; however, it is necessary to indicate [there] the essential elements indispensable for constructing a claim. Therefore, a claim could be derived from a given norm if it appears from its content that a specific obligation imposed on one party corresponds to an entitlement of another party to demand its implementation.

Such essential elements, allowing a claim for indemnity to be constructed, are missing from the content of section 7 of the 2001 Act.

With regard to the second of the appellants’ arguments, it should be noted that in accordance with the resolution of the Supreme Court, sitting as a bench of seven judges, of 19 May 2009 [case no.] III CZP 139/08 ..., the State Treasury is liable for damage caused by non-enactment of a normative act, when a duty to enact it arose after the entry into force of the Constitution. Article 417 of the Civil Code in the version [applicable] prior to 1 September 2004 ... constitutes the basis of civil liability for legislative omissions, which began after the Constitution’s entry into force [17 October 1997], but before 1 September 2004, i.e. before the entry into force of the statute amending [the Civil Code] of 17 June 2004. Article 417 of the Civil Code in the current version and Article 417¹ of the Civil Code are not applicable to a situation where the state of legislative omission arose before 1 September 2004, even if the damage caused by this omission was sustained after that date. ... A detailed regulation governing the State’s liability for its law-making activities was only enacted in Article 417¹ of the Civil Code, but these rules could already be considered to be relevant from the date of the Constitution’s entry into force, since from that moment the State’s liability for legislative omission had been recognised.

In its resolution of 6 July 2006 (case no. III CZP 37/06), the Supreme Court explained that the State Treasury’s civil liability for legislative omission would only arise when a normative act, whose enactment was obligatory under the law, i.e. the Constitution or a statute, was not enacted. The non-enactment of a statute where another statute provides for its enactment could also be regarded as [legislative] omission, since the legislature can undertake in one statute to enact another statute. However, in order to assume that the legislature made such an undertaking, and not only provided for the possibility of regulating a certain matter in another statute, the obligation to enact that statute has to be expressed in an explicit manner, excluding the possibility of it only being deduced by means of judicial interpretation; [such a course of action] would have constituted an encroachment by the judiciary on the competences reserved to the legislature.

In the above-mentioned judgment of 29 June 2012 (case no. I CSK 547/11), the Supreme Court did not agree with that suggestion, emphasising that the interpretation of legal norms by the courts was one of the basic functions bestowed on the judiciary. Accordingly, it accepted that a court could assess, applying the necessary means of interpretation, whether a statute contained an explicit obligation to enact another statute. A contrary proposition ... would have amounted to approval of the legislature’s method of conferring virtual entitlements on citizens, even with a premise accepted in advance that it would be impossible to realise those entitlements, while approving, at the same time, the lack of legal basis for civil liability related to damage caused by such acts of the legislature.

There is no doubt that a court of law, in carrying out its adjudicatory functions, interprets provisions of the law; however, the issue is that this cannot be a law-making interpretation. In the process of interpretation a court has to respect the principle, expressed in Article 10 of the Constitution, of separation of and balance between the legislative, executive and judicial powers on which the system of government of the Republic of Poland is based. According to the adjudicating bench of the Supreme Court, it is the only manner ... of reading the assertion in the reasoning for the [Supreme Court’s] resolution of 6 July 2006 (case no. III CZP 37/06) that the obligation to enact a statute has to be expressed in an explicit manner, excluding the possibility of it being deduced by means of judicial interpretation. The Supreme Court in the present composition shares the view that for liability for legislative omission to arise, it is first necessary to establish that an obligation ... to enact a normative act was formulated in an explicit and specific manner. The contrary perspective on this issue could lead to an inadmissible interference by the judiciary with the competences reserved to the legislature. The Supreme Court took the same view, inter alia, in the judgments of 4 August 2006, case no. III CSK 138/05 ..., 7 November 2006, case no. I CSK 159/06 ... and 15 February 2007, case no. II CSK 483/06 ..., and [this view] was also approved by legal science.

There is also agreement in legal science that a provision of the law containing an obligation to enact a normative act has to specify the essential content of such an act in such a way to allow the existence and scope of damage caused by an omission to be determined. In other words, it should be possible to establish the content of a nonenacted normative act without encroaching on the other State organs’ legislative powers. A court of law cannot make suppositions as to the possible content of a nonenacted normative act, being guided by its own axiological assumptions. ...

Section 7 of the 2001 Act, prescribing that claims of former owners or their successors shall be satisfied in the form of indemnities (rekompensata) paid from the State budget on the basis of separate provisions, does not stipulate to a sufficient degree the content of the said “separate provisions”. The legislature did not indicate the subjective scope of the normative act, which were to prescribe the rules of indemnification, the conditions to be fulfilled by persons eligible to receive an indemnity, or the manner of determining the amount of those benefits. These shortcomings cannot be – as asserted by the appellants – complemented by the application of Article 322 of the Code of Civil Procedure, because it is not in the court’s sphere of activity to independently indicate the object and scope of what should have been found in a non-enacted normative act.

Therefore, it has to be accepted that section 7 of the 2001 Act is a declaratory provision (przepis blankietowy), which contains only the legislature’s declaration concerning the future regulation of indemnities in a statute to be enacted later, without being bound by the date of its enactment. Accordingly, non-enactment of a normative act, referred to in this provision, does not warrant the State Treasury’s liability for legislative omission ...”

The applicants lodged a constitutional complaint. On 13 February 2013 the Constitutional Court refused to consider it as it had been lodged out of time. On 29 July 2013 the court dismissed an interlocutory appeal by the applicants.

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:

“1. 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”) entered into force. The relevant amendments were in essence aimed at enlarging 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, Article 4171, in so far as relevant, reads as follows:

“4. 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 damages.”

However, under the transitional provisions of section 5 of the 2004 Amendment, 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.

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.”

On 6 September 1944 the Polish Committee of National Liberation issued the Decree on agrarian reform. The decree provided that properties of an agricultural nature, owned or co-owned by natural or legal persons, with an area exceeding 100 ha in total or 50 ha of agricultural land, would be allocated for agrarian reform (section 2(1)(e)).

With regard to properties in the Pomeranian, Poznan or Silesian regions the area was set at 100 ha, regardless of the size of the agricultural property.

The decree further prescribed that properties would be transferred to the State Treasury immediately and without any compensation.

On 12 December 1944 the Polish Committee of National Liberation issued the Decree on the nationalisation of certain forests. The decree provided that forests and forest land, owned or co-owned by natural and legal persons, with an area exceeding 25 ha, would be transferred to the State Treasury.

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 the political parties and factions. It was enacted by Parliament on 7 March 2001. The relevant Bill was subsequently transmitted for the President of the Republic for signature. However, exercising his right of veto, the President refused to sign it.

Ultimately, the Sejm (first 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.

The 2001 Act originated from a civic bill submitted to Parliament on 4 October 1999 by a group of 129,000 citizens. The Sejm passed it on 6 July 2001. It entered into force on 11 September 2001 and comprises eight sections.

The relevant part of section 1 provides:

“The country’s strategic natural resources include:

(3) State forests,

Section 2 provides:

“The natural resources listed in section 1 which constitute the State Treasury’s property are not subject to change of ownership, with the exception of provisions contained in particular statutes.”

Section 7 of the 2001 Act provides:

“Claims of natural persons, former owners or their successors, in respect of loss of ownership of the resources listed in section 1, shall be satisfied in the form of indemnities (rekompensaty) paid from the State budget on the basis of separate provisions.”

The 2005 Act entered into force on 7 October 2005. Under section 13, the right to indemnity (prawo do rekompensaty) for Bug River property can be realised in one of two ways, to be chosen by the claimant: either by offsetting the indexed value of the original property against the sale price of State property acquired by means of a competitive bidding procedure, or by receiving a pecuniary benefit (świadczenie pieniężne), that is to say a cash payment secured by the Indemnity Fund (Fundusz Rekompensacyjny). The amount of compensation available to Bug River claimants is subject to a statutory ceiling of 20% of the current value of the original property.

A more detailed description of the relevant provisions of the 2005 Act appears in the Broniowski (friendly settlement) judgment (see Broniowski v. Poland (friendly settlement) [GC], no. 31443/96, §§ 14-30, ECHR 2005IX).

In this judgment, the Supreme Court held as follows:

“... section 7 of the 2001 Act, in the current formulation, does not constitute an independent legal basis for the payment of a benefit [indemnity], since it refers to separate provisions, which were to prescribe which funds of the State budget would be used to satisfy, in the form of indemnities, claims of natural persons indicated in this provision. In section 7 of the 2001 Act, the legislature did not give statutory authorisation to the Council of Ministers to adopt a regulation ..., and thus it should be accepted that the term “separate provisions” in section 7 refers to the enactment of a statute. This statute should indicate the body ... responsible for indemnification, and specify the State budget’s funds to be used for the payment of indemnities and other essential elements (the amount [of indemnity], the limitations and the procedure). The use in section 7 of the 2001 Act of the word “paid” with regard to indemnities presupposes that the benefit would be in a pecuniary form ...

However, the formulation of section 7 of the 2001 Act does not allow for such a specification of the norm of substantive law contained in it, which would determine in detail the content of a specific addressee’s entitlements and obligations ... This provision is thus of a declaratory nature (przepis blankietowy) ...”

With regard to a claim for compensation in respect of legislative omission, the Supreme Court held:

“... Section 7 of the 2001 Act does not contain expressis verbis an obligation to enact separate provisions, but such a conclusion does not exclude the possibility of a court’s interpreting the legal norm contained in this provision to the effect that the interpreted norm contained the legislature’s obligation to enact separate provisions.

It has been correctly accepted in case-law that non-enactment of a statute where another statute provides for its enactment could also be regarded as legislative omission leading to the State Treasury’s civil liability (the Supreme Court’s resolution of 6 July 2006, case no. III CZP 37/06). It was stated in the reasoning of that resolution that the obligation to enact another statute had to be expressed in an explicit manner, excluding the possibility of it only being deduced by means of judicial interpretation, because this would constitute an encroachment by the judiciary on the competences reserved to the legislature. The court adjudicating in the instant case does not share that view .... The interpretation of legal norms by the courts is one of the basic functions bestowed on the judiciary, and it does not constitute an encroachment by [it] on the competences reserved to the legislature ... ”

The Supreme Court noted that the textual interpretation of section 7 of the 2001 Act resulted in the finding that this provision did not expressly contain the legislature’s obligation to enact separate provisions. It held, in this regard, as follows:

“Sole reliance on the textual interpretation of section 7 of the 2001 Act leads to the conclusion that this provision does not unequivocally oblige the legislature to enact separate provisions. However, if the result of the textual interpretation is obviously irrational or unsustainable, it is not possible to stop [the analysis] at such a result. In a situation like the one at hand, it is necessary to have recourse to other methods of interpretation. It would be difficult to accept the impugned result of the textual interpretation (i.e. a lack of obligation to enact separate provisions), since this would mean that the legislature bestows on specific natural persons a subjective right consisting of an unequivocal conferment of claims, which would be satisfied in the form of paid indemnities, and at the same time prevents the entitled claimants from asserting those claims as a result of its failure to enact separate provisions, a legislative omission which would not result in any civil law sanction, not least in the form of civil liability of the State Treasury ...

In this situation it is necessary to have recourse to a functional and teleological interpretation. Since the legislature’s purpose was to satisfy, in the form of indemnities, claims of specific natural persons in respect [of the events] indicated in section 7 of the 2001 Act, while the procedure for the payment of indemnities was to be regulated in separate provisions, then it should be held that the enactment of these separate provisions was the legislature’s obligation stipulated in section 7 of the 2001 Act ...

A contrary proposition would lead to the acceptance of an absurd conclusion that the legislature can confer rights in a statute, with a premise accepted in advance that those rights cannot be realised by the addressees as a result of the legislature’s inaction, and this [inaction] would not then lead to any sanctions, and in particular [to] civil liability.”

In its resolution of 20 December 2012, the Supreme Court, sitting as a bench of three judges, dealt with the following legal questions submitted to it by the Cracow Court of Appeal on 21 September 2012:

“1. Does section 7 of the 2001 Act constitute the basis of the subjective right conferred on natural persons, who are referred to in this provision?

and, if so, does the situation of awarding satisfaction, in the form of indemnification, in respect of claims of specified natural persons in respect [of the events] indicated in section 7 of the 2001 Act, while at the same time leaving the questions of procedure for the payment of indemnities and the determination of their amount to be regulated in separate provisions, give rise to the legislature’s obligation to enact separate provisions, and, in consequence – does their non-enactment amount to legislative omission?”

The Supreme Court adopted the following resolution:

“Section 7 of the 2001 Act does not constitute the basis of the subjective right for natural persons specified in this provision or for the obligation to enact separate provisions, referred to in this provision.”

The resolution’s reasoning, in so far as relevant, reads:

“The analysis of section 7 of the 2001 Act ... warrants the conclusion that it does not comprise all necessary elements for the creation of a subjective right in the form of a claim. This provision indicates precisely the subject of an obligation, i.e. the State Treasury, but does not prescribe the addressees of an entitlement. Prima facie, it seems that section 7 expressly prescribes that a possible [right to] claim for indemnity was conferred on the persons referred to in this provision, i.e. natural persons, former owners, or their successors, of resources comprising lost State forests. However, the legislature did not specify more precisely the category of entitled persons, in particular, by stipulating whether it concerns all owners of the forests and their successors, which, regardless of the moment in time, of the legal basis and other circumstances (e.g. the size of the property, the nationality of the owners, etc.) were transferred to the State. It was not specified whether it concerns an unlawful or lawful taking of these resources, and then, in respect of the latter category of persons, this provision would be of a quasi-restitution nature.

The concept of a claim ... concerns a situation in which a norm, arising from binding legal provisions, confers on an entitled subject the right to demand a specific act from the obliged subject, [which is] secured by the possibility of it being enforced. Consequently, it should be accepted that the concept of a claim of natural persons, former owners, or their successors, in respect of loss of the resources listed in section 1 [of the 2001 Act] could only encompass only those, who, on the date of the statute’s entry into force, had the right to claim in respect of the loss of those resources. This means that, in fact, this provision merely changes the content of previous claims of former owners or their successors, in that it replaces the previous compensation claims against the State Treasury by a claim for indemnity. However, such a purpose of the regulation should be excluded, since the 2001 Act was enacted at a time when [Parliament] was working in parallel on the Restitution Bill. The beneficiaries of the indemnity referred to in section 7 of the 2001 Act were to be persons, who in the period preceding the enactment of the 2001 Act, asserted their restitution demands vis-à-vis the State Treasury in respect of the State’s taking away – including by lawful means – of forests, [demands] which could not have been satisfied in the framework of the existing provisions. The term “claim” employed in section 7 of the 2001 Act does not then fully correspond to the accepted meaning of that term, because it comprises in fact, without further specification, a category of natural persons asserting vis-à-vis the legislature their demands in respect of loss of ownership of the resources prescribed in section 1 [of the 2001 Act], and not persons who were conferred specific claims by the legal system subsisting previously.

Moreover, section 7 of the 2001 Act simply prescribes that a claim comprises a benefit in a pecuniary form – an indemnity – which was to be paid from the State budget; however, the scope of this benefit has not been further specified. The 2001 Act does not contain a definition of the term “indemnity” (rekompensata), it only determines that it is a pecuniary benefit. The Civil Code does not define this term either. Its analysis in the previous regulations concerning indemnities – included in ... the Act of 8 July 2005 Act on the realisation of the right to indemnity for property left beyond the present borders of the Polish State – leads to the conclusion that the legislature, in conferring a subjective right of this kind, does so in a comprehensive manner, specifying precisely not only the category of entitled persons, but also the amount of indemnity due. With regard to this kind of benefits, the legislature had further prescribed a particular procedure for determining eligibility for indemnities, fixed their amount, [as well as set] time-limits for bringing claims, payment of indemnities, the statute of limitations and the extinguishment of such claims, and established a specific indemnity fund. An indemnity represented a fraction, determined arbitrarily by the legislature, of the full compensation. Section 7 of the 2001 Act does not comprise any of these elements.

[Legislative omission:]

The essence of the legal issue comes down, however, to ascertaining whether, despite these gaps in the construction of a claim, it could be considered that section 7 of the 2001 establishes a subjective right, in assuming that this provision also establishes the legislature’s obligation to enact separate provisions complementing the missing elements of the subjective right in issue. In such cases, a failure by the legislature to execute this obligation could give rise to the State Treasury’s liability for legislative omission, since it was accepted in the Supreme Court’s case-law that enactment of incomplete or fragmentary [legislative] solutions could give rise to a finding of legislative omission .... Where [the legislature] creates a subjective right with deficient characteristics, civil liability for legislative omission becomes a form of protecting this right, which cannot be fully or at all realised.

The State’s civil liability for legislative omission – both on the basis of the currently applicable Article 4171 § 4 of the Civil Code and, on the basis of Article 417 of the [Civil Code] in conjunction with Article 77 § 1 of the Constitution ... applicable to the case in issue – can arise where there is a specific obligation to enact a normative act under [the legal] provisions. In such a case, it is also required that a legal provision imposing an obligation to enact an appropriate regulation indicated a certain minimal content of the subjective right, and in particular, persons entitled to bring a claim and persons obliged to execute a deed constituting the content of a claim, as well as its scope. The textual and logical interpretation of section 7 of the 2001 Act does not lead to the conclusion that this provision comprised an obligation to enact specific provisions concerning indemnities since it employed a formulation that claims of natural persons referred to in it were to be “satisfied in the form of indemnities paid from the State budget on the basis of separate provisions”. This provision does not contain either a statutory authorisation to enact appropriate executive regulations prescribing the scope of that regulation.

The Supreme Court’s case-law admitted the possibility of the State’s civil liability for legislative omission consisting of a failure to enact a statute where another statute provided for an obligation to this effect (resolution of 6 July 2006, case no. III CZP 37/06) ...

[With regard to the obligation to enact a specific statute] ... It cannot be accepted that such a situation arose with regard to an obligation to enact separate provisions, which are referred to in section 7 of the 2001 Act. As the Supreme Court held in its judgments of 6 September 2012 (I CSK 59/12 ... and I CSK 77/12 and I CSK 96/12), an interpretation in this context cannot be a law-making interpretation, since it has to respect the principle, expressed in Article 10 of the Constitution, of separation of and balance between the legislative, executive and judicial powers on which the system of government of the Republic of Poland is based ... In cases concerning compensation for legislative omission the courts cannot ascertain the content of non-enacted provisions; in order to accept the existence of a legislative obligation whose nonexecution would result in the State’s civil liability, it is necessary that the provision imposing an obligation to enact another legal regulation indicated its minimal content with such a degree to allow the scope of the State’s obligation to compensate to be determined. Such a situation does not arise in respect of section 7 of the 2001 Act, this provision stipulating that only separate provisions enacted at a future date were to determine the content of the subjective right in the form of a claim for indemnity.

The possibility of ascertaining the existence of an obligation to enact a normative act was also accepted in the Supreme Court’s case-law, where such an obligation has not been formulated expressis verbis in the [legal] provisions, and where the rights of individuals – conferred in a self-evident and unconditional manner – could not be realised as a result of a failure to enact an appropriate normative act ... However, even in such cases provisions conferring those rights have to prescribe the essential characteristics of the latter. The acceptance of the State’s hypothetical legislative omission – concerning subjective rights with an undefined content or an unclearly determined category of entitled persons – would result in the State’s civil liability in respect of legislative omission also being illusory. The courts could not decide who was entitled to bring a claim for compensation or about the amount without entering into the law-making role. It should be remembered in this context that the rules concerning civil liability, including for legislative omission, serve to protect the existing subjective rights, and are not the basis for creating these rights or specifying their scope. From this standpoint too, section 7 of the 2001 Act does not prescribe in a sufficient manner the content of a subjective right in the form of a claim, in particular with regard to the category of entitled persons and the amount of compensation.

The foregoing considerations warrant the conclusion that section 7 of the 2001 Act does not contain a legal norm giving rise to specific rights or obligations comprising the content of a subjective right in the form of a claim, nor does it contain a norm imposing an obligation to enact provisions, referred to in it, concerning indemnities. Therefore, it should be concurred that this provision is of a declaratory nature, it solely contains a proclamation of the legislature’s intention as to the means of satisfying in the future, on the basis of separate provisions, claims asserted against the State Treasury by owners (natural persons) of forests or their successors in respect of loss of ownership ... It should also be remembered that the provisions of the 2001 Act originated from a civic bill (projekt obywatelski), which was debated [in Parliament] in parallel with the Restitution Bill, and the latter were to prescribe the right to indemnity characterised as a subjective right in the form of a claim. The 2001 Act alone, without the Restitution Bill – as evidenced by the analysis of the legislative process – was not to give rise to any financial obligations [for the State] or to determine solutions concerning indemnities. The purpose of section 7 of the 2001 Act was only to express the legislature’s intention that the future realisation of restitution demands of former owners or their successors, accomplished on the basis of separate provisions, took the form of indemnities, and so that it was carried out while preserving the resources prescribed in section 1 of the 2001 Act, without effecting changes of ownership, as stated in section 2 of the same Act ... The object of the regulation in the 2001 Act also points out to a limited meaning of the provision in issue ...”

In this judgment, the Supreme Court held as follows:

“The content of section 7 of the 2001 Act does not comprise formulations which could be regarded as grounds for the claimant’s claim for indemnity in respect of forest land taken over by the State Treasury. ...The textual, logical and systemic interpretation of section 7 of the 2001 Act leads to the conclusion that this provision does not confer a subjective right on the relevant persons, from which it would result an entitlement to demand from the State Treasury a specific act and the possibility of enforcing it. There is no regulation in the Civil Code on the right to indemnity. The formulations employed in section 7 of the 2001 Act are of a declaratory nature, since the claims referred to in it should be satisfied in the future, as is evidenced by the phrase “shall be satisfied”, and the form of satisfying them (those claims) are indemnities “to be paid” from the State budget, and the basis for their payment will be in separate provisions. Therefore, the term “claims” employed in this provision, cannot be equated with a “claim” as understood in the civil law. It should be pointed out that the purpose of the 2001 Act, as evidenced by the reasons for the bill, was to guarantee stability of ownership with regard to the country’s strategic natural resources. In parallel with this Act, a restitution bill was being prepared, the latter being prompted by the restitution demands of persons who lost their property in the process of nationalisation, including the property referred to in section 1 of the 2001 Act; [it] was to prescribe the right to indemnity. However, the Restitution Bill has not been enacted. It cannot be concluded that section 7 of the 2001 Act concerns solely the claims of those persons who asserted them prior to the enactment of the 2001 Act; the 2001 Act does not properly indicate the category of eligible persons. There are no grounds to equate indemnity with compensation ...

There is reference in section 7 of the 2001 Act to future indemnification, but the indemnity is not specified with regard to an eligible subject, its nature or the amount. The plaintiff’s claim concerns compensation for damage caused by legislative omission, and thus the failure to have a claim due to her satisfied. Therefore, the lack of necessary elements of a claim in section 7 of the 2001 Act cannot be supplemented with reference to the amount of a benefit (indemnity), if a [right to] claim has not been conferred, regardless of the possibility that a court would determine the scope of indemnity on the basis of the rules laid down in the Civil Code and regardless of the defendant’s obligation to compensate ...

The content of section 7 of the 2001 Act, analysed in accordance with the rules of textual, logical and systemic interpretation leads to the conclusion that it does not contain an obligation to enact specific provisions concerning indemnities, the eligible subjects and the entity responsible for indemnification. It (section 7 of the 2001 Act) does not indicate the subjective scope of the future normative act, which was to prescribe the rules of indemnification, the criteria to be fulfilled by the eligible persons and the means of determining the amount of benefits. It is not feasible that these deficiencies would be fulfilled in by a court alone ... It should be emphasised that the rules of civil liability, including for legislative omission, were a means of protecting the existing subjective rights, and not the source of their creation.”

With regard to the plaintiff’s argument based on Article 1 of Protocol No. 1, the Supreme Court referred to the meaning of “possessions” in this provision, as established, inter alia, in Broniowski v. Poland judgment. In this connection it held as follows:

“The interpretation of the law should respect the protection of an individual’s interests ensured by the domestic law as well as by the Convention and the EU law. The appellant is not right [in saying] that the interpretation of section 7 of the 2001 Act and Article 417 of the Civil Code in conjunction with Article 77 § 1 of the Constitution does not respect the protection of property as provided by these regulations and the relevant case-law. Her allegation in this regard comes from an unfounded assertion that the plaintiff was conferred [a right to] claim by section 7 of the 2001 Act, from which also results a further obligation to enact a legal regulation ... A direct reliance on Article 1 of Protocol No. 1 and its interpretation in the case-law of the European Court of Human Rights was not justified, since the plaintiff did not demonstrate that a [right to] claim asserted in the proceedings had been conferred on her.”

In its final decision on the admissibility of a constitutional complaint, the Constitutional Court, sitting as a full bench, held in so far as relevant:

“The situation in issue is that the legislature had the intention of comprehensively regulating (in the Restitution Bill) the question of indemnities for property lost under the previous regime, but this has never been done. The Restitution Bill was enacted, but after the President exercised his right to veto it, the Sejm did not pass the Restitution Bill again by the majority required under Article 122 § 5 of the Constitution. It should then be stated that it was not the President’s action, but the lack of required majority in the Sejm for the Restitution Bill to be subsequently passed, which determined that the Bill did not enter into force.

However, section 7 of the 2001 Act remained in the legal system, and this provision, according to the claimant, constitutes the basis of a subjective right, conferred by the legislature, to satisfy the claims of former owners of land referred to in section 1 of the 2001 Act or their legal successors in the form of pecuniary indemnity ...

The Constitutional Court ... relied on the textual, systemic and teleological interpretation of section 7 of the 2001 Act. [It] shares the view expressed in the courts’ case-law that a regulation of claims for indemnity for forest land and other natural resources taken over by the State Treasury does not result from the impugned provision (cf. the resolution of the Supreme Court of 20 December 2012, case no. III CZP 94/12; the Supreme Court’s judgments of 29 June 2012, case no. I CSK 547/11, 6 September 2012, case no. I CSK 96/12, 26 June 2015, case no. I CSK 316/14 and the Supreme Administrative Court’s judgments of 6 May 2010, case no. I OSK 935/09, 6 August 2010, case no. I OSK 1377/09, 17 March 2011, case no. I OSK 718/10 and 4 October 2011, case no. I OSK 245/11) ...

... it should also be taken into account that this provision (section 7) is an element of the Act, whose purpose is to guarantee stability of ownership with regard to the country’s strategic natural resources (section 2) ... . The purpose of the 2001 Act was not to comprehensively regulate the question of compensation for lost natural resources, including for forest land. It follows that the interpretation of the impugned provision (section 7) should be made in the context of the purpose of the 2001 Act and not in isolation from this purpose.

In the Constitutional Court’s assessment, the teleological interpretation of section 7 of the 2001 Act leads to the conclusion that the formulation employed in it, [that] ‘claims ... shall be satisfied in the form of indemnities [to be] paid from the State budget on the basis of separate provisions’, should be read in the light of section 2 of the 2001 Act as a prohibition on non-pecuniary forms of compensation (including restitution in natura). Such an interpretation was also confirmed in the Supreme Court’s case-law ....

The textual, logical and systemic interpretation thus leads to the conclusion that the impugned provision (section 7) does not regulate the question of claims for indemnity in respect of forest land and other natural resources taken over by the State Treasury...

The key issue requiring explanation is, as challenged by the complainant, the lack of normative content in section 7 of the 2001 Act which would create an obligation for the legislature to enact separate provisions enabling the realisation of the right to indemnity ... The Constitutional Court’s interpretation of section 7 of the 2001 Act leads to the conclusion that the legislature did not regulate in it the entitlement to satisfy the claims of former owners. The legislature did not regulate in the challenged Act in a comprehensive, or even partial, manner the issue of indemnities for natural resources, including forest land, taken over by the State, in a way compatible with constitutional requirements. The construction of this provision leads to the acceptance that the legislature left the issue of indemnities to be regulated but has never done so ...

In a situation where section 7 of the 2001 Act does not constitute the basis of the right to indemnity, there is no issue of statutory omission (pominięcie legislacyjne) consisting of a failure to include in this provision an obligation to enact separate provisions enabling the realisation of this entitlement. This conclusion simply confirms that the legislature deliberately omitted to regulate the question of indemnities for natural resources ... taken over by the State.

The Constitutional Court finds that a judgment in line with the claimant’s assertion would oblige the legislature to enact a restitution statute. This, however, is inadmissible, in the light of the Constitutional Court’s case-law and the Constitution itself ... The Constitutional Court, as a negative legislator, cannot “supplement” the law by regulations sought by a complainant. ... The question of restitution claims thus requires the enactment of a comprehensive statutory regulation ...

In its decision [of 28 October 2015] in the case no. P 6/13, the Constitutional Court ...held that ‘there is no formal basis for restitution in the Constitution. The Constitution, in its ethical aspect, rejects the axiology and practices of the communist State, as is evidenced by a passage from its preamble (“Mindful of the bitter experiences of the times when fundamental freedoms and human rights were violated in our Homeland”), but approves the evolutionary continuity of the post-war legal order and has no retroactive effect’ ...

... the Constitutional Court, sitting as a full bench, upheld the approach adopted in a resolution twenty years earlier and held that ‘also under the current Constitution of 1997 the scope and forms of restitution are “a controversial issue and [the] solution depends to a large extent on political decisions”. Decisions of this kind definitely go beyond the Constitutional Court’s competences. This approach is compatible with the views expressed in earlier judgments, given under the current Constitution, in which the Constitutional Court disagreed with treating the constitutional provisions as a remedy for the legislature’s inaction, which would be aimed at the redressing of injustices resulting from nationalisation’, It further held that the redressing of these injustices was possible only by the legislature’s action (cf. judgment of 24 April 2014, case no. SK 56/12).”

In a number of cases, the interested persons applied to the Minister of the State Treasury to be indemnified in respect of the loss of forests, relying on section 7 of the 2001 Act. The Minister refused to consider their applications and those decisions were subsequently challenged before the administrative courts.

The Supreme Administrative Court held, in a number of judgments, that claims under section 7 of the 2001 Act could not be pursued in administrative proceedings. It held, inter alia, that no subjective right, capable of being pursued in administrative proceedings, could be derived from section 7 of the 2001 Act. Furthermore, the court held that section 7 of the 2001 Act was a declaratory provision and did not establish a legal relationship (cf. judgments of 6 May 2010, case no. I OSK 935/09; of 6 August 2010, case no. I OSK 1377/09; of 17 March 2011, case no. I OSK 718/10; and of 4 October 2011, case no. I OSK 245/11).


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

The applicant was born in 1976 and is serving a sentence of life imprisonment.

In December 2005 violent robberies were committed at two scrap metal collection points in Odesa. One employee was shot dead. In the course of the investigation, the police organised an ambush, which led to the applicant and his acquaintance, Mr D., being arrested. As established by the domestic courts, before his arrest the applicant had pointed a gun at a police officer, who had knocked it out of his hands using a martial arts technique. The gun had been loaded and had had its safety catch released.

On an unspecified date the applicant had free legal counsel appointed for him for the pre-trial investigation and the proceedings before the firstinstance court.

On 4 September 2006 the Odesa Regional Court of Appeal, sitting as a court of first instance, found the applicant guilty of the illegal handling of arms, robbery with violence, intentional murder for profit and an attempt on the life of a law-enforcement officer. It relied, inter alia, on the statements of several eyewitnesses who had recognised the applicant. Having regard to the fact that the applicant had previously been convicted of the intentional infliction of fatal injuries and that he had committed the crimes at issue while on probation following release in October 2005, the court sentenced him to life imprisonment.

The applicant, who was no longer legally represented, appealed in cassation. He complained, in particular, about the absence of free legal assistance at that stage of the proceedings. The applicant contended that the first-instance court had erred in its assessment of the facts of the case and their legal classification.

On 30 January 2007, following a hearing with the participation of Mr D. (the other defendant) and his lawyer, as well as the prosecutor, but without the applicant or any representative from his side, the Supreme Court upheld the judgment of 4 September 2006.

On 11 June 2007 the applicant, who was not aware of the above ruling, requested that the Supreme Court ensure his presence at its hearing.

On 17 August 2007 a copy of the Supreme Court’s ruling of 30 January 2007 was sent to the applicant.


No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

The applicant was born in 1978 and lives in Norway.

Mr Elmar Huseynov, the applicant’s husband, was a prominent independent journalist in Azerbaijan. At the time of the events he worked as the editor-in-chief of the weekly magazine Monitor, which was strongly critical of the Government as well as the opposition. He had also been the owner of the magazine since 1996 and wrote analytical and investigative articles for each edition under his own name.

Various civil and criminal proceedings had been brought against Mr Huseynov since the beginning of his journalistic activity for the publication of critical articles about the President of Azerbaijan and members of his family, and about members of the parliament, Government and other State officials. In total, thirty-four proceedings were instituted against him by various public officials. Moreover, copies of the magazine had been confiscated on several occasions and the domestic authorities sometimes prevented its publication.

According to the applicant, her husband regularly received threats because of his critical articles. In particular, in January 2004 a police officer had threatened him with death and told him to stop writing about the President and his family.

At around 9 p.m. on 2 March 2005, Mr Huseynov was shot dead on the third floor of his apartment building as he returned home from work.

Mr Huseynov’s murder received wide local and international media coverage and was unanimously condemned by various politicians, international organisations, and local and international NGOs.

On 2 March 2005 criminal proceedings were instituted under Articles 120.2.4 (murder) and 228.1 (illegal possession of weapons) of the Criminal Code by the Serious Crimes Department (“the SCD”) of the Prosecutor General’s Office.

On the same day a record relating to the inspection of the scene of the crime and the examination of the body (hadisə yerinə və meyitə baxış keçirilməsi haqqında protokol) was drawn up. It appears from the record that one bullet and seven cartridges were found at the crime scene and that two bullets were removed from the body.

On 3 March 2005 the investigator in charge of the case ordered a post-mortem examination of the body, which was carried out on the same day. Report no. 27 dated 10 March 2005 showed that death had resulted from bleeding caused by gunshot wounds. The expert also found that death was likely to have occurred a few minutes after the injuries had been sustained.

On 3 March 2005 a pistol with a silencer and a knitted hat were found near the crime scene. On the same day the investigator ordered forensic medical, ballistic and chemical trace examinations of the pistol and silencer, the bullets, the cartridges, the victim’s hair and nails, and the clothes that he had been wearing on 2 March 2005. Report no. 2074/2108/2109, dated 7 March 2005, concluded that the pistol in question was a Baikal pistol that had been produced in 2003 in Russia and that it had been used in the murder.

Still on 3 March 2005 the investigator asked a telecommunications company to provide details on any mobile telephones that had been used near the scene of the crime between 8.30 p.m. and 9 p.m. on 2 March 2005.

On 4 March 2003 the Prosecutor General’s Office, the Ministry of Internal Affairs (“the MIA”) and the Ministry of National Security (“the MNS”) issued a joint statement officially informing the public of the institution of criminal proceedings in connection with the murder of the applicant’s husband.

On 5 March 2005 the crime scene was again inspected by the investigator.

On the same day the investigator questioned the applicant as a witness in connection with her husband’s murder. She stated that she had not seen the killer, but that from February 2005 a person, who had introduced himself as Vusal, had come to their flat on several occasions and asked for a meeting with her husband. He had always arrived when her husband had been absent and had asked various questions about his whereabouts and working hours. The applicant further stated that she could not say who had murdered her husband, but she was sure that he had been murdered because of his journalistic activity.

On 7 March 2005 a photofit picture of the person who had introduced himself as Vusal was compiled on the basis of the applicant’s statements.

On 8 March 2005 the investigator arranged an identity parade in the presence of the applicant. However, she could not identify the man who had called himself Vusal among the people who took part in the identity parade.

On 19 March 2005 the applicant was granted victim status.

Further to various requests sent in March 2005 to the Russian authorities concerning the pistol found at the crime scene, the Russian authorities confirmed that the pistol in question had been produced in Russia as a gas pistol and had then been exported to Bulgaria on the basis of a contract with a Bulgarian company. It further appears from a letter, dated 23 March 2005 and signed by the Bulgarian Deputy Minister of Internal Affairs, that there was no record on the buyer of the pistol after its import to Bulgaria because Bulgarian legislation did not provide for such records for the buying and selling of gas pistols.

In the meantime, the prosecuting authorities identified two mobile telephone numbers which had allegedly been used by the perpetrators of the murder. On 26 March 2005 T.B., an Azerbaijani national, was charged under Article 320.1 of the Criminal Code (use of false documents) as he had purchased the mobile telephone numbers in a mobile telephone shop in Baku by giving false information about his identity. During questioning, T.B. stated that on 27 February 2005 he had bought the numbers at the request of T.X. and T.A., who had asked him to obtain a telephone number registered in someone else’s name. He further stated that he knew the men from Georgia where he was born and they had told him that they were in Baku on business. It appears from the documents in the case file that in July 2005 the Nizami District Court found T.B. guilty under Article 320.1 of the Criminal Code and sentenced him to two years’ imprisonment.

On 6 April 2005 the Prosecutor General reclassified the criminal case under Articles 277 (acts of terror) and 228.1 (illegal possession of weapons) of the Criminal Code and decided to hand the investigation over to the MNS.

On 3 May 2005 the investigator in the case showed the applicant four photographs in order to try to identify the person who had introduced himself as Vusal. The applicant identified the individual in photograph no. 2 as that person.

On the same day the investigator charged T.X., a Georgian national, under the aforementioned Articles 277 and 228.1 and issued a warrant for his arrest. It appears from the investigator’s decision that T.X. was suspected of being involved in the murder and had been identified as the person calling himself Vusal.

On 4 May 2005 the Prosecutor General’s Office, the MIA and the MNS issued a joint statement that T.X. had been identified as the person involved in the murder. The statement also noted that T.X. had left the country immediately after the murder and that an arrest warrant had been issued. It also indicated that T.X. had been identified by the applicant as the person who had introduced himself as Vusal before the murder. Lastly, the statement pointed out that the investigation was being carried out in collaboration with the Federal Bureau of Investigation of the United States of America (“the FBI”) and Turkey’s Central Security Department.

It appears from the case file that on 5 May 2005 the investigator questioned T.X.’s sister and son, who resided in Azerbaijan.

In the meantime, on 4 May 2005 the investigator ordered a new ballistic and chemical examination of the pistol and silencer found at the scene of the crime. The investigator noted that although the examination of 7 March 2005 had concluded that the pistol was a Baikal firearm produced in 2003 in Russia, the material collected during the investigation had revealed that the pistol had not been produced as a regular firearm but as a gas pistol that had subsequently been modified. On 27 May 2005 a panel composed of three experts issued report no. 4351/4352/4358 on the new ballistic and chemical examination of the pistol and the silencer. The experts reiterated the findings of the 7 March 2005 report (see paragraph 15 above), concluding that the pistol had been produced as a firearm and had not been modified.

On 11 May 2005 the investigator questioned the applicant about a suspicious person that she had seen in their building in February 2005.

On 20 May 2005 the Prosecutor General’s Office, the MIA and the MNS issued a new statement, informing the public that T.A., a Georgian national, had been identified as another suspect. The statement said that a warrant for his arrest had been issued.

It appears from a letter dated 27 May 2005, signed by the head of the Azerbaijani National Central Bureau of Interpol, that notices relating to T.X. and T.A. had gone out via Interpol.

The case file shows that in March and May 2005 the investigating authorities submitted hair samples to the FBI for a trace evidence examination. They were taken from the hat found near the scene of the crime and from pillowcases found in the flat that T.X. and T.A. had rented in Baku. The results of the examination revealed that some fibres found on the hat and pillowcases had the same microscopic characteristics and optical properties, consistent with them having come from the same source.

On 31 May 2005 the applicant wrote to the MNS asking for information concerning the progress of the investigation. In particular, she noted that although she had been recognised as a victim, the investigating authorities had failed to share any information on the investigation with her.

It can be seen in a document dated 8 June 2005, signed by the investigator, that he informed the applicant by telephone about the investigation. In particular, he informed her that various investigative actions had been conducted, that T.X. and T.A. had been identified as the perpetrators of the murder, that an international warrant for their arrest had been issued and that some forensic examinations had been carried out by the FBI.

On 2 June and 12 July 2005 the Prosecutor General’s Office and the MNS issued joint statements on the forensic examinations carried out in the United States of America. They stated that the results of the examinations had confirmed that T.X. and T.A. were directly involved in the murder.

In the meantime, on 16 and 30 May 2005 the Azerbaijani authorities asked the Georgian authorities to extradite T.X. and T.A.

By a letter of 1 July 2005, signed by the Deputy Prosecutor General of the Republic of Georgia, the Georgian authorities refused to extradite T.X. and T.A. on the grounds that as they were Georgian nationals they could not be extradited to a foreign country. However, relying on the CIS Convention on Legal Assistance and Legal relations in Civil, Family and Criminal Matters of 22 January 1993 and the Treaty between Azerbaijan and Georgia on Legal Assistance and Legal relations in Civil, Family and Criminal Matters of 8 March 1996 (see paragraphs 66-70 below), the Deputy Prosecutor General stated in the same letter that the Georgian authorities undertook to institute criminal proceedings against its two nationals at the request of the Azerbaijani authorities in case of the transfer of the criminal case to the Georgian authorities.

By two separate letters, dated 20 July 2005, the Prosecutor General of Azerbaijan again asked his Georgian counterpart for the arrest and extradition of T.X. and T.A. The Prosecutor General also asked the Georgian authorities to provide legal assistance to the Azerbaijani authorities by allowing two Azerbaijani investigators to conduct investigative actions on Georgian soil.

In July and August 2005 the Georgian authorities conducted various investigative actions at the request of their Azerbaijani counterparts. In particular, on 26 July 2005 two flats in Tbilisi were searched and various people were questioned in connection with the criminal proceedings instituted in Azerbaijan.

On 9 August 2005 the investigator showed various photographs to the applicant for identification. Although the applicant stated that she had seen two of the people on the photographs somewhere before, she could not remember more details about them.

On 15 August and 6 September 2005 the investigator questioned the applicant about her neighbours and the clothes worn by the man who called himself Vusal.

On 20 November 2005 the applicant again wrote to the MNS, asking for an effective investigation into the murder of her husband. She further asked the investigating authorities to provide her with information about the progress of the investigation.

On 30 November and 20 December 2005 the investigator ordered further ballistic and trace evidence examinations, in particular asking the experts to compare the pistol found at the scene of the crime with another pistol found in a different murder case. The experts’ reports, dated 15 December 2005 and 19 January 2006, concluded that the pistol found at the scene of the murder of the applicant’s husband had not been used in the commission of the other murder.

According to the applicant, she was threatened after her husband’s murder because she said that the domestic authorities had been involved. On an unspecified date in 2006 the applicant left Azerbaijan for Norway, where she was granted asylum.

On 4 May 2006 the investigator questioned a cousin of T.X. who resided in Azerbaijan.

On 14 November 2006 the investigator again questioned the sister of T.X. who resided in Azerbaijan.

On 30 November 2006 the investigator carried out a reconstruction of the murder. In particular, the investigator retraced the path the applicant’s husband had taken from his workplace to where he had been murdered.

In September and October 2005, in February, September and November 2006 and in July 2007 the Georgian authorities conducted various investigative actions at the request of their Azerbaijani counterparts. In particular, by a letter of 3 October 2006 the Office of the Prosecutor General of Georgia informed the Azerbaijani authorities that the Georgian prosecuting authorities had questioned T.A., who had used his right to remain silent. In that connection, it appears from the record of the questioning, which took place on 11 September 2006, that T.A. invoked his right to remain silent, stated that he did not consider himself guilty and that he had no confidence in the investigation conducted by the Azerbaijani authorities. The Georgian prosecuting authorities also informed their Azerbaijani counterparts by the same letter that they could not conduct any investigative actions in respect of T.X. as it had not been possible to establish his whereabouts.

By a letter of 11 February 2008 the applicant’s Azerbaijani lawyer asked the MNS to provide the applicant with information about the progress of the investigation. In particular, the lawyer pointed out that although three years had elapsed since the institution of criminal proceedings, the applicant had still not been informed about the progress of the investigation or the decisions that had been taken. He further asked the investigating authorities to allow the applicant to familiarise herself with the criminal case file and to provide her with copies of the relevant documents.

By a letter of 12 March 2008, signed by the head of the investigation department of the MNS, the MNS informed the lawyer that the applicant had been informed orally about the progress of the investigation. It was further stated that in accordance with Articles 87 and 102 of the Code of Criminal Procedure (see paragraph 61 below) the applicant had the right to familiarise herself with the case file and obtain copies of documents only when the preliminary investigation was over. The letter also said that the Azerbaijani authorities had asked the Georgian authorities to extradite the murderers and were continuing to take the necessary steps to achieve that goal. Lastly, it was noted that members of the investigative group had been sent to Georgia several times and that the investigation was ongoing.

On 13 May 2008 the investigator questioned T.B. (see paragraph 24 above) about the whereabouts of T.X. and T.A. It appears from the record of the questioning that T.B. stated that he had not seen them since his release from detention on 19 March 2007 and that he had no information about their whereabouts.

By a letter dated 14 June 2008 the National Central Bureau of Interpol informed the head of the investigation department of the MNS that T.X. and T.A. were not registered as being in Russia.

On 4 July 2008 the applicant’s Norwegian lawyer and the Norwegian Helsinki Committee wrote to the Prosecutor General’s Office and the MNS asking for the documents relating to the criminal investigation of the murder of the applicant’s husband.

By a letter of 18 July 2008 the MNS informed the applicant’s Norwegian lawyer that as he was not a member of the Azerbaijani Bar Association and had failed to submit a notarised power of attorney, he could not obtain copies of the documents. Relying on Articles 87 and 102 of the Code of Criminal Procedure, the letter also stated that a victim or his or her representative could only have access to a case file and the relevant documents following the termination of the preliminary investigation. The letter also informed the applicant’s lawyer that the criminal investigation was still ongoing.

On 30 January 2009 the applicant herself wrote to the MNS, reiterating her previous requests. In particular, she asked the investigating authorities to provide her with the documents relating to the investigation, to inform her of the progress of the investigation and of the date when the investigation would end.

By a letter dated 17 March 2009 the MNS informed the applicant that her request for access to the case file had been examined. However, in accordance with Articles 87 and 102 of the Code of Criminal Procedure a victim or her representative could only have access to the case file and the relevant documents after the termination of the preliminary investigation. The letter, which was twelve pages long, contained a detailed summary of the investigative steps conducted from the institution of criminal proceedings until March 2009. It stated that the investigation had identified T.X. and T.A. as the perpetrators of the murder and that any information received relating to the possible involvement of various people in the crime had been examined. In that connection, the letter referred to allegations submitted to the investigating authority in August 2006 and August 2007 by people arrested in connection with other criminal cases, as well as information revealed by various journalists and NGO activists in November 2006 and March 2009 about the identity of T.X. and T.A. However, the investigation had not substantiated any of those allegations. The letter also stated that the preliminary investigation was still ongoing and had been extended until 2 September 2009.

By a letter of 17 March 2009 the National Central Bureau of Interpol in Azerbaijan informed the head of the investigation department of the MNS that T.A. was living in Tbilisi in Georgia. However, his extradition had been refused by the Georgian authorities on the grounds that he was a Georgian national. The information was based on a letter dated 6 March 2009 from the Georgian National Central Bureau of Interpol to the Azerbaijani National Central Bureau of Interpol.

At the time of the most recent communication with the parties on 3 February 2016, when the last observations were filed by the Government, the criminal proceedings were still ongoing.


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

The list of applicants and the relevant details of the applications are set out in the appended table.

The applicants complained of the excessive length of their pre-trial detention. Some applicants also raised other complaints under the provisions of the Convention.