ITEMID: 001-102621
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: CHAMBER
DATE: 2011
DOCNAME: CASE OF HAIDN v. GERMANY
IMPORTANCE: 2
CONCLUSION: Violation of Art. 5-1;No violation of Art. 3
JUDGES: Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva
TEXT: 5. The applicant was born in 1934 and is currently detained in a psychiatric hospital in Bayreuth.
6. On 27 July 1994 the Freyung District Court convicted the applicant of three counts of sexual abuse of children and gave him a cumulative suspended sentence of eight months' imprisonment with probation. The applicant was found to have sexually abused a nine-year-old girl on three occasions in the spring of 1993. As confirmed by an expert, the applicant suffered from a pathological mental disorder such that diminished criminal responsibility (Article 21 of the Criminal Code) could not be excluded. On 10 December 1997 this sentence was remitted.
7. On 16 March 1999 the Passau Regional Court convicted the applicant of two counts of rape and gave him a cumulative sentence of three years and six months' imprisonment (two years and nine months for each count of rape). The Regional Court found that the applicant had raped twelve-year-old S. twice within two weeks by use of force in the summer of 1986. It was reported by a psychiatric and a psychological expert that the applicant suffered from a continuous cerebral decomposition, due to which his criminal responsibility was diminished.
8. According to the Regional Court's finding of facts, the applicant had had an extra-marital relationship with S.'s mother A. since 1980. Since then he had sexually abused S., then aged seven, at least once a week. Since 1982 he had had himself sexually satisfied also by P., A.'s elder daughter, then aged fourteen. These offences were time-barred when the victims reported them to the prosecution authorities. In the summer of 1982 the applicant persuaded fifteen-year-old P. to have sexual intercourse with him in exchange for his paying the family's electricity bill. P., who had initially consented, then asked the applicant to stop due to severe pain caused by the intercourse and resisted heavily, whereupon the applicant raped her by use of force. The prosecution of this offence was discontinued in view of the two counts of rape of which the applicant was convicted.
9. The Regional Court did not examine whether preventive detention was to be ordered against the applicant because the relevant Article 66 § 3 of the Criminal Code was not applicable to offences which, as was the case for those of which the applicant was found guilty, had been committed prior to 31 January 1998 (section 1a § 2 of the Introductory Law to the Criminal Code, see paragraph 41 below).
10. The applicant served his full sentence of three years and six months' imprisonment until 13 April 2002. Some two and a half months prior to that date, on 28 January 2002, the applicant was informed by the psychologist of Bayreuth prison that he could possibly be detained beyond that date under the Bavarian Act for the placement of particularly dangerous offenders very liable to reoffend (“Bavarian (Dangerous Offenders') Placement Act”) of 1 January 2002 (see paragraphs 43-46 below).
11. On 10 April 2002 the Bayreuth Regional Court, sitting as a chamber responsible for the execution of sentences composed of three professional judges, having heard the applicant and his counsel as well as the representatives of Bayreuth prison and two medical experts, ordered the applicant's placement in prison for an indefinite duration under sections 1 and 2 of the Bavarian (Dangerous Offenders') Placement Act (see paragraphs 44-45 below).
12. The Regional Court found that the applicant was liable to be placed in prison under section 1 § 1 of that Act. He had served a sentence imposed following his conviction for two counts of rape, the offences being serious enough to meet the requirements of Article 66 § 3 of the Criminal Code (see paragraph 41 below). The Regional Court further subscribed to the views expressed by both a psychological and a psychiatric and psychotherapeutic expert, who, in their reports dated 22 March 2002 and 1 April 2002 respectively, had found that following the applicant's conviction, new facts had evolved during his detention which warranted the conclusion that the applicant currently posed a serious threat to the sexual self-determination of others. It noted that the applicant had failed to participate in any therapeutic measure to address his sexual problems which had led to his offences and, by denying his offences in prison, had made any therapy pointless. Moreover, due to his organic personality disorder, which led to a continuous decomposition of his personality, the applicant was no longer able to reflect on his possibly deviant sexual behaviour and to discern limits. Statistically, his advancing age also increased his interest in children as substitutes.
13. The Regional Court further noted that neither the applicant's placement in a psychiatric hospital (Article 63 of the Criminal Code – see paragraph 50 below) nor his preventive detention (Article 66 of the Criminal Code – see paragraphs 36-38 below) had been ordered (section 1 § 2 of the Bavarian (Dangerous Offenders') Placement Act). Moreover, the applicant had not been placed in a psychiatric hospital under the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (see section 1 § 3 of the Bavarian (Dangerous Offenders') Placement Act and paragraph 51 below). In fact, the Bayreuth Health Office had refused to request the applicant's placement in a psychiatric hospital under the latter Act after the applicant had served his prison sentence.
14. Taking into consideration the experts' findings, the Regional Court found that there was a high risk that the applicant might re-offend. Not least because of his limited faculties, there was a concrete danger that reactions of his victims would result in his committing very serious offences.
15. The Regional Court stated that it considered the Bavarian (Dangerous Offenders') Placement Act to be constitutional.
16. On 3 May 2002 the Bamberg Court of Appeal dismissed the applicant's appeal as ill-founded. Endorsing the reasons given by the Bayreuth Regional Court, it found that the applicant was liable to be placed in prison pursuant to section 1 of the Bavarian (Dangerous Offenders') Placement Act. In particular, as had been convincingly shown by two experts, there was a considerable risk of recidivism.
17. According to the Court of Appeal, the Bavarian (Dangerous Offenders') Placement Act was constitutional. It struck a fair balance between the applicant's interest in his liberty and the public interest in security. There was no breach of the principle of legitimate trust (Vertrauensgrundsatz), as the applicant had been informed in writing by the prison authorities that it was necessary for him to undergo therapy. Nor did the Act violate the prohibition on being punished twice for the same offence, as it was not his past offences, but the risk of his re-offending in the future which was decisive for his placement. Furthermore, the Bavarian legislature had the legislative power to pass the Act in question.
18. The applicant subsequently lodged a constitutional complaint with the Federal Constitutional Court against the decisions of the Bayreuth Regional Court of 10 April 2002 and the Bamberg Court of Appeal of 3 May 2002. He argued that his detention was illegal because the Bavarian (Dangerous Offenders') Placement Act was unconstitutional, notably as the Bavarian legislature had not had the power to legislate on the subject-matter in question. Moreover, the provisions of the Act violated the prohibition of punishment without law and human dignity as they treated him as a mere “disturbing object”.
19. On 10 February 2004 the Federal Constitutional Court, having held a hearing, partly allowed the applicant's constitutional complaint (no. 2 BvR 834/02), together with that of another complainant (no. 2 BvR 1588/02), Mr F. Oberländer, who was the applicant in application no. 9643/04 before this Court. It found unanimously that the Bavarian (Dangerous Offenders') Placement Act, as well as another comparable Act, the Saxony-Anhalt (Dangerous Offenders') Placement Act, were incompatible with Article 74 § 1 no. 1 read in conjunction with Articles 70 § 1 and 72 § 1 of the Basic Law (see paragraph 52 below) as the Länder did not have the power to enact the legislation in question.
20. According to the Federal Constitutional Court, the area covered by the Länder statutes regulating the placement of offenders in detention after they had served their prison sentence – so-called retrospective preventive detention (nachträgliche Sicherungsverwahrung) – fell within the concurrent legislative powers of the Federation as it involved criminal law within the meaning of Article 74 § 1 of the Basic Law. The term “criminal law” in connection with the question of power to legislate covered the regulation of all, even subsequent, repressive or preventive penal responses by the State which used the offence as a connecting factor, which were aimed exclusively at offenders and which were factually justified by the original offence. This interpretation was compatible with the fact that measures of correction and prevention, such as preventive detention, were not to be classified as “penalties” to which the prohibition of retrospective punishment under Article 103 § 2 of the Basic Law applied. The objective of this latter provision, laying down a fundamental right, was different from that of a provision on legislative competence such as Article 74 of the Basic Law. Retrospective placement in prison under the (Dangerous Offenders') Placement Acts enacted by the Länder was very similar to preventive detention under the Criminal Code, both in relation to the applicable procedure and in relation to its nature, and had been authorised in order to complement the measures of correction and prevention under the Criminal Code by the possibility of a preventive detention which had not been ordered in the judgment of the sentencing court. The Länder therefore did not have the power to make laws on the placement of criminals in detention because the Federation exhausted its concurrent legislative power in this area. The court thus disagreed with the submissions of the Federal Government, which had taken the view that the Länder had legislative competence to regulate the subject-matter at issue.
21. The Federal Constitutional Court found that placement in prison for an indefinite duration or for indefinitely renewable periods after an offender had served his full prison sentence constituted a particularly serious interference with the offender's right to liberty as protected by Article 2 § 2 of the Basic Law. It stressed that in order for the long-term deprivation of liberty ordered independently of a person's guilt to remain proportionate, it was necessary for it to be dependent on the prior commission of a serious offence. Moreover, the courts ordering placement in detention had to make their prognosis of the offender's dangerousness based on a comprehensive assessment of his offences and personality.
22. The Federal Constitutional Court, by a majority of five votes to three in this respect, further found that the fact that the Länder did not have power to legislate did not result in the contested statutes being void. Instead, they were merely declared incompatible with the Basic Law and the Constitutional Court ordered their continued application until 30 September 2004. Until the expiry of that transitional period, the applicant's detention was covered by the decision of the Bayreuth Regional Court, based on the (Dangerous Offenders') Placement Act, which remained applicable.
23. The court argued that the Federal Constitutional Court Act did not prescribe that a statute found to be unconstitutional was void under all circumstances, pursuant to section 95 § 3, first sentence, of the Federal Constitutional Court Act (see paragraph 55 below). The Act also allowed a mere declaration of incompatibility with the Basic Law pursuant to section 31 § 2 of the Federal Constitutional Court Act (see paragraph 54 below). Under the Federal Constitutional Court's case-law, a mere declaration of incompatibility and a limited continued application of the unconstitutional statute was possible if the immediate invalidity of the contested law removed the basis for protection of paramount interests related to the public good, and if the result of weighing those interests against the fundamental rights affected was that the interference had to be accepted for a transitional period.
24. In the instant case, there was a paramount interest in protecting the public against offenders who had been found by at least two experts and by courts to currently pose a considerable danger to the life, physical integrity, freedom or sexual self-determination of others. In the event of the statutes being declared void, persons who were extremely dangerous would have to be released without the federal legislature having taken the decision imposed upon it – because it mistakenly assumed it had no power to do so – as to whether it was necessary to enact federal legislation. Such federal legislation on retrospective preventive detention could be compatible with the Basic Law if it applied only in limited circumstances.
25. The public interest in effective protection from dangerous offenders could, in exceptional circumstances, outweigh the interest of the offender concerned by the unconstitutional Act in his personal liberty as guaranteed by Article 2 § 2 of the Basic Law. For the interference with the right to liberty to be proportionate, it was, however, necessary for the transitional period, during which the Federal Constitutional Court's order of continued application of the unconstitutional Acts served as the basis for the detention of the offenders concerned, to be short. Moreover, the criminal courts which had ordered placements on the basis of the impugned Acts had to re-examine without delay whether the placements complied with the reasoning set out in the Federal Constitutional Court's judgment. In particular, they had to base their placement decisions on a properly reasoned expert's opinion as to the dangerousness of the offender in question, in the light of his personality and the offences committed. Furthermore, they were authorised to order that the offender's placement be executed in a psychiatric hospital (Article 63 of the Criminal Code) if the offender's reintegration into society could better be furthered thereby, as prescribed by Article 67a § 2 of the Criminal Code (see paragraph 39 below).
26. According to the partly dissenting opinion of three judges, the unanimous finding of the Senate that the impugned Acts were unconstitutional should have led to their being declared void. As a consequence, the complainants would have had to be released. During the transitional period, the complainants were therefore detained without a legal basis.
27. The minority argued that by ordering the continued application of an Act which it had found to be unconstitutional, the Federal Constitutional Court took responsibilities which, in accordance with the principle of separation of powers, were for the legislature to assume. Moreover, by ordering a continued application of the Länder statutes, it suggested that the Federal legislature authorise subsequent preventive detention, a measure which the Federation, when reforming the provisions on preventive detention in 1998 and 2002, had deliberately chosen not to introduce. The minority of judges stressed that there were numerous other, less intrusive instruments available to the courts, police and social authorities to avert the dangers posed by dangerous convicts on their release.
28. In the minority's submission, the court's order that the Länder statutes continued to apply was also incompatible with Article 104 § 1 of the Basic Law (see paragraph 53 below). According to that Article, a person's liberty could only be restricted by virtue of a statute enacted by Parliament and only in compliance with the forms prescribed therein. The Federal Constitutional Court's order that the statutes continued to apply was, on the contrary, based on customary law and, being a court order, did not justify the deprivation of liberty. The minority further stressed that section 31 § 2, second sentence, of the Federal Constitutional Court Act, according to which a decision of the Federal Constitutional Court had force of law, was applicable only to a declaration that a statute was void and no longer applied, and not to a declaration, based on that court's case-law, that an unconstitutional statute continued to apply.
29. Lastly, the minority took the view that the court's order of continued application of the Länder statutes disregarded the prohibition on the enactment of laws with retrospective effect. After serving the sentence imposed on them by the criminal courts, offenders had a legitimate expectation of release.
30. On 16 December 2003 the Bayreuth Regional Court decided to suspend for one year the applicant's placement in prison pursuant to its order dated 10 April 2002. It instructed him to reside in an old people's home in Zell and not to leave the home without the permission of his custodian (Betreuer). Having regard to the findings of a psychiatric expert, the Regional Court found that the applicant's placement in the psychiatric department of an old people's home sufficiently averted the dangers he posed for the sexual self-determination of others.
31. On 3 March 2004 the applicant was again detained in Bayreuth prison under a detention order issued under the Bavarian (Dangerous Offenders') Placement Act that day.
32. On 26 March 2004 the Bayreuth Regional Court revoked the suspension of the applicant's placement in prison. It found that the applicant had repeatedly sexually harassed several old women suffering from dementia in the old people's home where he had been living. By this behaviour, the applicant had shown that he still posed a serious threat to the sexual self-determination of others.
33. On 5 July 2004 the Bayreuth Regional Court ordered that the applicant's placement under the Bavarian (Dangerous Offenders') Placement Act, read in conjunction with the judgment of the Federal Constitutional Court of 10 February 2004, was to be executed in a psychiatric hospital in order to further his reintegration into society. On 28 July 2004 the applicant was transferred to Bayreuth psychiatric hospital.
34. On 10 June 2005 the Passau Regional Court ordered the applicant's subsequent preventive detention under Article 66b § 1 of the Criminal Code (see paragraph 48 below) which was to be executed in a psychiatric hospital. On 23 March 2006 the Federal Court of Justice quashed that order and remitted the case to the Passau Regional Court.
35. On 14 June 2007 the Hof Regional Court, having regard to the acts committed by the applicant in the old people's home (sexual harassment of persons incapable of resisting), ordered the applicant's placement in a psychiatric hospital under Article 63 of the Criminal Code. In view of that decision, the prosecution then applied to discontinue the proceedings concerning the applicant's subsequent preventive detention that were pending before the Passau Regional Court.
36. Initially, the continued detention of convicted offenders who had served their sentence in order to protect the public was solely regulated in federal legislation, notably in the provisions on preventive detention (Articles 66 et seq. of the Criminal Code), a so-called measure of correction and prevention (Maßregel der Besserung und Sicherung). A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court's judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions relevant to the present case will be summarised below.
37. Pursuant to Article 66 of the Criminal Code, the criminal sentencing court may, at the time of the offender's conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be a danger to the public.
38. Paragraph 1 of Article 66 provides that the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year's imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public.
39. Under Article 67a § 2 of the Criminal Code, the court may transfer a perpetrator against whom preventive detention has been ordered to a psychiatric hospital subsequently if the perpetrator's reintegration into society can be better promoted thereby.
40. The provisions on preventive detention underwent a reform in 1998.
41. By the Combating of Sexual Offences and Other Dangerous Offences Act (Gesetz zur Bekämpfung von Sexualdelikten und anderen gefährlichen Straftaten) of 26 January 1998, which entered into force on 31 January 1998, a new paragraph 3 was inserted into Article 66 of the Criminal Code. Pursuant to that provision, preventive detention could also be ordered for certain serious offences (including rape and sexual abuse of children) if the perpetrator had committed two such offences which were to be punished separately with at least two years' imprisonment, if he was sentenced to an aggregate sentence of at least three years' imprisonment for these offences and if he presented a danger to the public as prescribed in Article 66 § 1, even if the perpetrator had not previously been convicted and detained as required in paragraph 1 of Article 66. Article 66 § 3 was only applicable if the perpetrator had committed one of the offences listed in that provision after 31 January 1998 (section 1a § 2 of the Introductory Law to the Criminal Code, in its version then in force).
42. However, although the issue had been raised on several occasions in the course of the legislative process (see the judgment of the Federal Constitutional Court of 10 February 2004 in the present case, A.I.1. and 2., pp. 4-13), the Federal legislature did not choose to introduce a legal basis for ordering an offender's preventive detention retrospectively after a sentencing court's judgment which had not ordered this measure (retrospective preventive detention – nachträgliche Sicherungsverwahrung) if it became apparent only after the final judgment, notably during the convict's detention, that he was a danger to the public. Unlike several Länder, the Federal Government considered at the relevant time that it was the Länder parliaments, and not the Federal Legislature, which had the power to enact legislation on that issue (see, for instance, Bundesrat Printed Papers no. 822/2000 of 21 December 2000, pp. 647 et seq.).
43. In view of the foregoing, several Länder parliaments passed Acts, based on their legislative competence for the preventive aversion of dangers (Gefahrenabwehr), introducing retrospective detention of convicted offenders for preventive purposes. In doing so, the Länder were reacting to the fact that the Federation had not enacted corresponding legislation.
44. The Land of Bavaria, in particular, enacted the Bavarian Act for the placement of particularly dangerous offenders very liable to reoffend (Bayerisches Gesetz zur Unterbringung von besonders rückfallgefährdeten hochgefährlichen Straftätern – Bavarian (Dangerous Offenders') Placement Act) of 24 December 2001, which entered into force on 1 January 2002. Pursuant to section 1 § 1 of that Act, the Regional Court could order a convicted offender's placement in prison if the latter was serving a sentence under the conditions laid down in Article 66 of the Criminal Code and if facts having come to light after the offender's conviction showed that he currently posed a serious risk to life and limb or sexual self-determination of others, in particular because during the execution of his prison sentence he had persistently refused to cooperate in attaining the objective of the execution of his sentence, notably by declining or discontinuing psychotherapy or social therapy aimed at preventing recidivism. Such order was not to be made or was to be quashed if the person concerned was placed in a psychiatric hospital under Article 63 of the Criminal Code or in preventive detention under Article 66 of the Criminal Code (section 1 § 2 of the Bavarian (Dangerous Offenders') Placement Act) or if he was placed in a psychiatric hospital under the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care (section 1 § 3 of the Bavarian (Dangerous Offenders') Placement Act).
45. Section 2 of the Bavarian (Dangerous Offenders') Placement Act prescribed that retrospective detention for preventive purposes was to be ordered for an indefinite period unless it was to be expected that the person concerned would no longer be dangerous after a certain time.
46. A chamber of the Regional Court responsible for the execution of sentences had jurisdiction to order a convicted offender's placement in prison for preventive purposes at the request of the prison in which the person concerned was serving his sentence. The Regional Court had to consult two experts on the dangerousness of the person concerned before taking its decision (see sections 3 and 4 of the Bavarian (Dangerous Offenders') Placement Act). It had to review at least every two years whether the placement in prison of the person concerned was still necessary and had to suspend the placement and put him on probation if it was no longer necessary (section 5 of the Bavarian (Dangerous Offenders') Placement Act). The placement order was to be executed in a prison; for the execution of the placement, Articles 129 to 135 of the Execution of Sentences Act (which contain special rules for the execution of preventive detention orders made under the Criminal Code) applied by analogy (section 6 of the Bavarian (Dangerous Offenders') Placement Act).
47. On 28 July 2004 the Federal legislature enacted the Introduction of Retrospective Preventive Detention Act (Gesetz zur Einführung der nachträglichen Sicherungsverwahrung), which entered into force on 29 July 2004.
48. Pursuant to the newly introduced Article 66b of the Criminal Code, the court may order preventive detention retrospectively, in particular, if, prior to the end of a term of imprisonment imposed on conviction for crimes punishable with at least one year's imprisonment against life, limb, personal liberty or sexual self-determination or for offences listed in Article 66 § 3, evidence comes to light which indicates that the convicted person presents a significant danger to the general public. An overall assessment of the convicted offender's personality, his offences and additionally his development during detention must have shown that he was very liable to commit serious offences by which the victims would be seriously harmed; moreover, the other conditions listed in Article 66 of the Criminal Code had to be met (§ 1 of Article 66b).
49. The newly introduced Article 66b of the Criminal Code was applicable to persons who had been placed in detention under the Bavarian (Dangerous Offenders') Placement Act (section 1a of the Introductory Law to the Criminal Code, as amended).
50. The detention of mentally ill persons is provided for, first of all, in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
51. Secondly, pursuant to sections 1 § 1, 5 and 7 of the Bavarian Act on the Placement in an Institution of Mentally Ill Persons and Their Care of 5 April 1992 (Bavarian (Mentally Ill Persons') Placement Act – Bayerisches Gesetz über die Unterbringung psychisch Kranker und deren Betreuung) a court may order a person's placement in a psychiatric hospital at the request of the authorities of a town or county if the person concerned is mentally ill and thereby poses a severe threat to public security and order. Such an order may only be executed as long as no measure under Article 63 of the Criminal Code has been taken (section 1 § 2 of the said Act).
52. The distribution of legislative powers between the Federation and the Länder is laid down in Articles 30 and 70 et seq. of the Basic Law. Pursuant to Articles 30 and 70 § 1 the Länder have the right to legislate in so far as the Basic Law does not confer legislative power on the Federation. Pursuant to Article 74 § 1 no. 1 of the Basic Law, the Federation has concurrent power to legislate (konkurrierende Gesetzgebungskompetenz) in the domain of criminal law. In relation to subject-matter in which the Federation and the Länder have concurrent power to legislate, the Länder are authorised to legislate as long as and in so far as the Federation has not exercised its power to legislate by enacting a law (Article 72 § 1 of the Basic Law).
53. Article 104 of the Basic Law governs legal guarantees in the event of deprivation of liberty. Under paragraph 1 of Article 104, personal liberty may only be restricted pursuant to a law enacted by Parliament and then only in compliance with the procedures prescribed therein.
54. Pursuant to section 31 § 2, second sentence, of the Federal Constitutional Court Act, the decision of the Federal Constitutional Court on a constitutional complaint has force of law (Gesetzeskraft) if that court declares a law to be compatible or incompatible with the Basic Law or to be void.
55. Section 95 § 3 of the Federal Constitutional Court Act provides that if a constitutional complaint against a law is upheld, the law has to be declared void. The same applies if a constitutional complaint against a decision is upheld as the decision quashed was based on an unconstitutional law.
56. Pursuant to the Federal Constitutional Court's well-established case-law, section 95 § 3 of the Federal Constitutional Court Act is, however, interpreted in a flexible manner. Instead of declaring a statute to be void ab initio, the Constitutional Court may also solely declare it to be incompatible with the provisions of the Basic Law. It proceeds in this manner notably in cases in which, by declaring a statute void, it would create a situation which would be even less compatible with the Basic Law (see, for example, the decisions of the Federal Constitutional Court, Collection of the decisions of the Federal Constitutional Court (BVerfGE) vol. 92, pp. 158 et seq., 159, 186 et seq., vol. 99, pp. 216 et seq., 218-19, 243-44) or in which the basis for the protection of paramount interests related to the public good would otherwise be removed (see, for example, the decisions of the Federal Constitutional Court, Collection of the decisions of the Federal Constitutional Court, vol. 33, pp. 1 et seq., 13-14, vol. 40, pp. 276 et seq., 283). In such circumstances, the court has on several occasions decided to order the continued application of a statute found to be unconstitutional (see, inter alia, the decisions of the Federal Constitutional Court, collection of the decisions of the Federal Constitutional Court, vol. 99, pp. 216 et seq., 219, 243-44, vol. 72, pp. 330 et seq., 333, 422; see also, among others, Schmidt-Bleibtreu in: Maunz / Schmidt-Bleibtreu / Klein / Bethge, Bundesverfassungsgerichtsgesetz, Kommentar, Munich 2006, section 95, § 32, with many references to the Federal Constitutional Court's case-law).
57. According to statistical material submitted by the Government, five of the sixteen German Länder had chosen to enact legislation for the placement of convicted offenders who were particularly liable to reoffend that was comparable to the Bavarian (Dangerous Offenders') Placement Act. At the beginning of 2004, four persons were placed in prison under the Bavarian Act. In June 2004 a total of eight persons were placed in prison under all of the said Länder (Dangerous Offenders') Placement Acts.
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
NON_VIOLATED_ARTICLES: 3


ITEMID: 001-97155
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2010
DOCNAME: CASE OF ASATRYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Violation of Art. 5-1-c;Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra
TEXT: 4. The applicant was born in 1960 and lives in Yerevan.
5. On 23 September 2005, at 5.50 p.m., the applicant was taken into custody on suspicion of attempted murder.
6. On 26 September 2005 formal charges were brought against the applicant.
7. On the same date the Kentron and Nork-Marash District Court of Yerevan (Երևան քաղաքի Կենտրոն և Նորք-Մարաշ համայնքների աոաջին ատյանի դատարան) granted the investigator’s relevant motion and ordered the applicant’s detention on remand for a period of two months, to be calculated from 23 September 2005.
8. On 14 November 2005 the investigator filed a motion with the District Court, seeking to have the applicant’s detention on remand prolonged for another two months.
9. On 22 November 2005 the District Court examined and dismissed this motion. This decision was subject to appeal.
10. On 23 November 2005 at around 11 a.m. a copy of this decision was presented by the applicant’s lawyer to the Chief of the Yerevan-Kentron Detention Facility («Երևան-Կենտրոն» քրեակատարողական հիմնարկի պետ) where the applicant was held.
11. On the same date the prosecutor lodged an appeal against the above decision.
12. Later that day at 5.30 p.m. the Criminal and Military Court of Appeal (ՀՀ քրեական և զինվորական գործերով վերաքննիչ դատարան) commenced the examination of the prosecutor’s appeal. The applicant was escorted to the hearing by four national security officers in an official car.
13. At 5.45 p.m. the applicant’s lawyer arrived and requested a ten-minute recess to be able to consult with the applicant. The Government alleged that the lawyer was deliberately late for the hearing, while the applicant claimed that her lawyer was informed by telephone about this hearing only at 5.30 p.m.
14. At 5.50 p.m. the applicant’s detention period authorised by the decision of 26 September 2005 expired.
15. Following the recess, the lawyer challenged the impartiality of the bench. He first alleged that the court had not given the applicant sufficient time to prepare her defence and also failed to ensure equality of arms. Furthermore, there were four national security officers in the court building who prevented the applicant, who was formally already at liberty, from going out of the building. Thus, the fact that such things were happening in the building of the Court of Appeal suggested that the outcome of the proceedings was already pre-determined.
16. The court departed to the deliberation room to examine this challenge, after which it returned and announced its decision dismissing it.
17. Thereafter another twenty-minute recess was announced by the court for the defence to be able to familiarise itself with the prosecutor’s appeal and the materials of the case. During the recess an ambulance was called because the applicant felt unwell. Her blood pressure rose to 180/100 but no injections could be administered as she was allergic, so the doctor recommended adjourning the hearing.
18. The hearing resumed at 8.03 p.m. The applicant’s lawyer requested the adjournment of the hearing in view of the deterioration of the applicant’s health and in order for him to be able to familiarise himself with the prosecutor’s appeal in adequate conditions. The court granted this request and adjourned the hearing until 1 p.m. on 24 November 2005.
19. The court hearing was over at around 8.30 p.m.
20. The applicant alleged and the Government did not dispute that during the entire court hearing she was monitored by four national security officers and was not allowed to move freely, to leave the courtroom during the breaks or to go home. After the court hearing was over, she was forcibly taken by these officers and pushed into the same car and taken back to the Yerevan-Kentron Detention Facility. This was done after one of the officers had a private consultation and received instructions from the presiding judge in the deliberation room.
21. On 24 November 2005 at 1 p.m. the Court of Appeal resumed the examination of the prosecutor’s appeal. The applicant was not present at this hearing.
22. The applicant’s lawyers again challenged the impartiality of the bench, alleging that the court had manifested a biased attitude. In particular, the court summoned a hearing on the prosecutor’s appeal immediately before the expiry of the applicant’s detention period. Furthermore, the court did not release the applicant despite the fact that her detention had not been prolonged. Finally, after the hearing was over, the presiding judge departed to the deliberation room where he had a consultation with a national security officer, as a result of which it was decided to keep the applicant in detention. Thereafter she was transported to a national security isolation cell. The lawyers claimed that all the above suggested that the Court of Appeal was not impartial.
23. The court examined and dismissed this challenge.
24. Thereafter, one of the applicant’s lawyers made a declaration stating that, following the court hearing of 23 November 2005, the applicant had been taken away by national security officers in an unknown direction, despite the fact that she was already free by virtue of the law. The lawyers refused to participate in the hearing in such circumstances and left the courtroom.
25. The Court of Appeal examined the prosecutor’s appeal in their absence and decided to quash the decision of the District Court of 22 November 2005 and to prolong the applicant’s detention on remand for another two months.
26. On 28 November 2005 one of the applicant’s lawyers addressed a letter to the Chief of the Yerevan-Kentron Detention Facility, complaining:
“... You ..., as the chief of administration of the detention facility where [the applicant] is kept, at 5.45 p.m. on 23 November 2005 not only did not release her, but had her escorted to court by four officers in an official car having State licence no. 150 SS 02, during the entire [court hearing] you monitored her actions until 8.30 p.m. on [that date], forbidding her to move freely, and at around 8.30-8.45, with the assistance of the same officers, you forcibly (holding her arms, pushing her) placed her in the above car and transported her to the Yerevan-Kentron Detention Facility where you received her, according to the information at our disposal, without a relevant court decision. In that period (between 9 p.m. and 11 p.m.) the defence called you on numerous occasions and you stated that you would keep [the applicant] until the court hearing scheduled for 1 p.m. on the next day was over...”
27. On 5 December 2005 the applicant’s lawyers lodged an appeal on points of law against the Court of Appeal’s decision. In their appeal, they again complained about the fact that the applicant had not been released from custody on 23 November 2005.
28. On 8 December 2005 the applicant’s lawyers made a similar declaration addressed to the Prosecutor General.
29. By a letter of 9 December 2005 the Court of Cassation (ՀՀ վճռաբեկ դատարան) returned the appeal since it was no longer competent to examine it following the constitutional amendments.
30. The relevant provisions of the CCP read as follows:
“5. The court, the body of inquest, the investigator and the prosecutor are obliged immediately to release any person illegally deprived of his liberty. The chief of administration of a detention facility does not have the right to receive a person for purposes of detention without a relevant court decision and is obliged immediately to release any person whose period of detention has expired.”
“2. Detention ... shall be imposed only by a court decision upon the investigator’s or the prosecutor’s motion or of the court’s own motion during the court examination of the criminal case...”
“5. The court’s decision to choose detention as a preventive measure can be contested before a higher court.”
“1. The accused’s detention period shall be calculated from the moment of him being actually taken into custody at the time of the arrest...
...
3. In the pre-trial proceedings of a criminal case the detention period cannot exceed two months, except for cases prescribed by this Code...
4. In the pre-trial proceedings of a criminal case the accused’s detention period can be prolonged by a court for up to one year in view of the particular complexity of the case.”
“1. If it is necessary to prolong the accused’s detention period, the investigator or the prosecutor must submit a well-grounded motion to the court not later than ten days before the expiry of the detention period. The court, if it agrees on the necessity of prolonging the detention period, shall adopt an appropriate decision not later than five days before the expiry of the detention period.
...
3. When deciding on the prolongation of the accused’s detention period, the court shall prolong the detention period within the limits prescribed by this Code, on each occasion for a period not exceeding two months.”
“The administration of a detention facility is obliged: ... (10) immediately to release a person kept in detention without an appropriate court decision or whose detention period imposed by a court decision has expired.”
“1. The accused must be released from detention upon the decision of the relevant authority dealing with the criminal case, if: ... (4) when deciding on the question of detention, the detention period set by the court has expired and has not been prolonged...
...
3. ... In cases envisaged under [sub-paragraph 4] of paragraph 1 of this Article ... the chief of administration of the detention facility shall immediately release the detainee.”
“2. A court decision imposing a preventive measure can be contested before the court of appeal.”
31. The relevant provisions of the Law read as follows:
“An arrested or detained person is entitled to ... lodge applications and complaints, both himself and through his lawyer or lawful representative, with ... the courts...”
“...[C]omplaints ... addressed to ... a judge ... shall be sent to [him] in a sealed envelope within one day.”
VIOLATED_ARTICLES: 5
VIOLATED_PARAGRAPHS: 5-1
VIOLATED_BULLETPOINTS: 5-1-c


ITEMID: 001-23272
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 1999
DOCNAME: OBODYNSKI v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Matti Pellonpää
TEXT: The applicant is a Polish national, born in 1947 and resident in Warsaw.
The following is a summary of the proceedings:
On 7 November 1984 the applicant lodged a civil action against his wife, her sister and her brother-in-law with the Warszawa- Praga District Court, claiming repossession of an apartment of which he and his wife were co-owners, and from which he had allegedly been unlawfully evicted in January 1984.
In their reply of 14 January 1985 the defendants requested the court to dismiss the applicant’s action and contended that he had never lived in the apartment and had never intended to make it his principal residence.
A first hearing in the case was held in December 1985.
In 1985, seven hearings were fixed in the case.
In 1986, five hearings were fixed.
Some of those hearings were adjourned, either as the parties were (justifiably) absent, or because the court had not received postal confirmation that summonses had been properly served on them. Certain adjournments were necessary in order to summon certain witnesses proposed by the parties at the hearings. The court also adjourned certain hearings in order to request various authorities to submit files of cases pending before judicial or prosecution bodies which the parties deemed necessary for the accurate determination of their claims. Thus, the parties lodged motions to have at least four files of investigations pending before the prosecutor submitted to the court. Likewise, the parties requested that a file of administrative proceedings pending before the Housing Department of the Warszawa-Wola District Office be submitted to the court. They further requested that the case-file of the applicant’s divorce proceedings, instituted in 1983, be submitted to the court.
In a letter of 14 May 1986 the Warszawa-Wola District Prosecutor informed the court that the case-file of one of the criminal cases could not be submitted to the court as the file had been transmitted to the Regional Prosecutor following the applicant’s appeal against a particular decision.
On 17 November 1986 the court heard evidence from the parties and adjourned the hearing, as certain files had not yet been submitted to the court.
In 1987 and 1988 two hearings were fixed each year.
In his pleadings of 25 April 1988 the applicant stated that the defendant had sold the apartment concerned. He reiterated this statement at the hearing of 25 July 1988. The court adjourned the hearing and requested the housing co-operative to submit the documents concerning the apartment.
On 10 December 1988 the defendant requested the court to stay the proceedings as, according to the co-operative’s letter of 13 August 1987, it had been the defendant who had an exclusive right to the apartment, governed by the legal provisions on housing co-operatives. She further informed the court that on 27 May 1988 the applicant had brought a civil action against her, requesting that the contract of sale of the apartment be declared null and void.
In 1989, one hearing was held.
In 1991, the applicant unsuccessfully requested that the presiding judge step down.
In 1992, two hearings were held before the District Court. In the same year, the applicant once again requested that the presiding judge step down, alleging lack of impartiality on his part. His request was refused as it did not comply with the applicable legal requirements.
In 1993, the court was to hold three hearings. The first hearing was adjourned on 26 April 1993, the court apparently not having received confirmation that the summonses had been served on the parties. Likewise the hearing on 17 September 1993 was adjourned.
On 18 October 1993 the District Court again dismissed the applicant’s challenge of one of the judges and imposed a fine on him, considering that his request that the judge step down had been submitted in bad faith.
The hearing fixed for 15 December 1993 was adjourned, as the court had not received confirmation of proper service of certain summonses.
In a judgment of 11 February 1994 the Warszawa Praga District Court ordered repossession of the apartment of which the applicant was a co-owner and from which he had been evicted by his wife in 1984.
On 29 September 1994 the Warsaw Regional Court confirmed the judgment, which, accordingly, became final.
On 14 May 1994 the Warsaw District Court dismissed the applicant’s claim for annulment of the sale contract of the apartment.
Subsequently, upon the defendants’ request, on 28 March 1995 the Minister of Justice lodged an extraordinary appeal with the Supreme Court against the judgment of 29 September 1994.
On 7 July 1995 the Supreme Court set aside the impugned judgment and dismissed the applicant’s claim, considering that the action for repossession had become devoid of purpose as in 1987 the defendant had sold the apartment concerned.
Relevant domestic law
Article 344 of the Civil Code provides that a possessor can apply to a court for repossession against a person who has deprived him of de facto possession, regardless of whether he or she is a bona fide possessor or whether the factual possession is in conformity with the law.
Articles 417 to 424 of the Code of Civil Procedure, as applicable at the material time, provided that an extraordinary appeal could be lodged against any final judicial decision with the Supreme Court by the Minister of Justice - the Prosecutor General, the President of the Supreme Court and the Ombudsman. An extraordinary appeal could be lodged on the ground that the decision was in flagrant breach of the law. A party to the proceedings could file a request to have such an appeal lodged with these authorities on his or her behalf. The Supreme Court, having examined the extraordinary appeal at a public hearing, could dismiss it if no grounds for allowing it had been established. If the extraordinary appeal was allowed, the Supreme Court could set the decision under appeal aside and rule on the merits of the case, or reject the claim and discontinue the proceedings.


ITEMID: 001-61001
LANGUAGEISOCODE: ENG
RESPONDENT: HUN
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF LEVAI AND NAGY v. HUNGARY
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award
TEXT: 8. The applicants were born in 1959 and 1952 respectively and live in Szigethalom, Hungary.
9. On 8 February 1993 the applicants were dismissed by their employer, a car manufacturer.
10. On 4 March 1993 the applicants brought an action before the Pest County Labour Court for unlawful dismissal.
11. On 24 November 1993 the Labour Court held a hearing and transferred the case to the Economic Collegium of the Pest County Regional Court. The Labour Court observed that liquidation proceedings were pending against the applicants' former employer.
12. On appeal, on 28 February 1994 the Regional Court quashed the Labour Court's decision and remitted the case to it.
13. On 31 August 1994 the Labour Court decided that the applicants' dismissal had been unlawful. It transferred their pecuniary claims to the Regional Court's Economic Collegium.
14. On appeal, on 27 February 1995 the Regional Court quashed the Labour Court's decision and remitted the case to it a second time.
15. On 28 September 1995 the Labour Court annulled the applicants' dismissal on grounds of unlawfulness. On 25 March 1996 the Regional Court upheld this decision.
16. Subsequently the applicants lodged various pecuniary claims with the Labour Court for outstanding wages and severance pay. On 3 July 1996 the Labour Court held a hearing, ruled that it lacked competence to hear the claims and transferred the file to the Bankruptcy and Liquidation Section of the Regional Court, which was in charge of the liquidation of the defendant company.
17. On 22 October 1996 the Supreme Court, acting as a review instance, quashed the decisions of 28 September 1995 and 25 March 1996. Simultaneously, it discontinued those proceedings and transferred that part of the applicants' claims to the Regional Court. The Supreme Court pointed out that, according to section 38 § 3 of the Insolvency Act, pecuniary claims against a business entity under liquidation could only be pursued in the framework of liquidation proceedings.
18. In the context of the liquidation proceedings, the Regional Court held a hearing on 18 December 1996 and ordered the liquidation trustee in charge of the defendant company to complete the case-file.
19. By a decision of 29 January 1997, the Regional Court annulled the applicants' dismissal. On 24 April 1997 the Supreme Court, acting as a second instance, upheld this decision and ruled that the applicants had been unlawfully dismissed.
20. As regards the quantification of the applicants' claims, the Regional Court held a hearing on 30 June 1997 and, on 3 July 1997, it awarded 1,827,792 Hungarian forints (HUF) to the first applicant and HUF 899,264 to the second applicant, for outstanding wages and severance pay. The decision was immediately enforceable.
21. On 8 September and 24 November 1997 the Regional Court held further hearings. On 28 November 1997, it awarded a further HUF 681,620 to the first applicant and HUF 305,685 to the second applicant, for loss of earnings. The Regional Court dismissed the applicants' claims for compensation for non-pecuniary damage.
22. On the applicants' appeal, on 26 November 1998 the Supreme Court, acting as a second instance, upheld the dismissal of the applicants' claims for compensation for non-pecuniary damages. However, it quashed the remainder of the first instance decision – to the extent that it was disputed on appeal – and remitted the claims in question to the first instance court.
23. The proceedings before the Regional Court were resumed on 24 March 1999. Another hearing took place on 30 June 1999. On 22 July 1999 the Regional Court appointed an expert accountant.
24. On 23 May 2000 the expert presented his report to the Regional Court. On 17 August 2000 the applicants objected to the expert's opinion. On 30 August 2000 the Regional Court held a hearing and ordered the expert to supplement his report within 15 days. On 10 January 2001 another hearing took place.
25. On 29 March 2001 the Regional Court awarded, under various heads, the amounts of HUF 58,200, 69,465 and 549,235, plus accrued interest, to the first applicant, and HUF 40,800, plus accrued interest, to the second applicant.
26. On 18 April 2001 the applicants appealed to the Supreme Court.
27. On 15 November 2001 the Supreme Court, sitting as second instance, dismissed the applicants' appeal.
28. On 4 March 2002 the applicants filed a petition for a review with the Supreme Court's review bench. The review proceedings are still pending.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-114521
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF Z v. POLAND
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;No violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect)
JUDGES: George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva
TEXT: 7. The applicant was born in 1951 and lives in Piła.
8. The facts of the case, as submitted by the parties, may be summarised as follows.
9. On 5 May 2004 the applicant’s daughter, Y, was informed that she was between four and five weeks pregnant. Prior to or early in her pregnancy she developed ulcerative colitis (“UC”). The applicant’s daughter began experiencing the symptoms of UC, such as nausea, abdominal pains, vomiting and diarrhoea. Those symptoms were recurrent and caused pain and discomfort.
10. Y was repeatedly admitted to a number of hospitals. Y, accompanied by the applicant, attended the following hospitals in Poland: 18 to 19 May 2004, Specialist Hospital in Piła, Gynaecology and Obstetrics Department (Szpital Specjalistyczny w Pile, Oddział GinekologicznoPołożniczy); 19 May to1 June 2004 and 4 to 8 June 2004, Specialist Hospital in Piła Internal Medicine Department (Szpital specjalistyczny w Pile, Oddział Chorób Wewnetrznych) (“Piła Hospital”); 8 June to 1 July 2004 and 19 to 28 July 2004, Clinic of Gastroenterology and Nutrition, Independent Public Teaching Hospital No. 2, H. Święcicki Medical Academy in Poznań (Samodzielny Publiczny Szpital Kliniczny Nr 2 im. H. Święcickiego Akademii Medycznej w Poznaniu, Oddział Kliniczny Gastroenterologii, Żywienia Człowieka i Chorób Wewnętrznych) (“Święcicki Hospital”); 13 to 15 July 2004 Obstetrics and Gynaecology Department III, Gynaecology and Obstetrics Teaching Hospital, Independent Public Medical Facility in Poznań (Oddział Położniczo-Ginekologiczny III, Ginekologiczno-Położniczy Szpital Kliniczny Akademii Medycznej w Poznaniu); 28 July to August 2004, Surgery Department of the Specialist Hospital in Piła (Szpital Specjalistyczny w Pile, Oddział Chirurgiczny); 17 August to 4 September 2004, Pirogow Regional Specialist Hospital in Łódź, General and Vascular Surgery Department (Wojewódzki Szpital Specjalistyczny im. Pirogowa w Łodzi, Oddział Chirurgii Ogólnej i Naczyniowej) (“Pirogow Hospital”); 4 September 2004, M. Madurowicz Regional Specialist Hospital in Łódź (Wojewódzki Szpital Specjalistyczny im. M. Madurowicza w Łodzi); 4 to 29 September 2004, Intensive Care Department, Norbert Barlicki University Teaching Hospital No. 1 in Łódź (Uniwersytecki Szpital Kliniczny Nr 1 im. N. Barlickiego Uniwersytetu Medycznego w Łodzi, Oddział Kliniczny Anestezjologii i Intensywnej Terapiii) (“Barlicki Hospital”).
11. The applicant’s daughter was formally diagnosed with UC during her stay in Piła Hospital between 19 May and 1 June 2004. She underwent a number of tests, including an endoscopy and a fibro-sigmoidoscopic examination of the anus.
12. During the visits in the hospitals listed above, the applicant’s daughter received some diagnostic tests and basic treatment. She was given pharmacological treatment (for example, intravenous and oral administration of steroids and antibiotics).
13. On 8 June 2004 Y was admitted to Swiecicki Hospital. Between 8 June and 1 July and 19 and 28 July 2004 she was an inpatient in that hospital. On 19 July 2004 she was diagnosed with an abscess.
14. On 28 July 2004 Y left the clinic.
15. The next day, 29 July 2004, she was admitted to Piła Hospital, where she underwent an operation to remove the abscess.
16. On 17 August 2004 Y was admitted to Pirogow Hospital due to a new abscess and rectovaginal fistula. On the same date she was operated on to remove the abscess. Medical files confirm that at the time Y was admitted to hospital the doctors were aware of Y’s ulcerative colitis .
17. During the applicant’s daughter’s stay in Pirogow Hospital in August 2004 the doctor refused to perform a full endoscopy. In addition, no diagnostic imaging of the abdomen (diagnostyka obrazowa jamy brzusznej) was performed.
18. On 4 September 2004 Y’s condition deteriorated. She was transferred to Madurowicz Hospital. Immediately following her admission she was sent for a surgical operation to establish the cause of the apparent sepsis. During the operation the doctors removed her appendix. Y’s condition deteriorated, consequently immediately after the operation she was transferred to the intensive care unit of Barlicki Hospital.
19. On 5 September 2004 the doctors removed the foetus, which was dead. On 15 September 2004 the doctors removed Y’s uterus. Altogether the applicant’s daughter was operated on six times in Barlicki Hospital. On 29 September 2004 she died of septic shock caused by sepsis.
20. By letter, dated 30 September 2004, Y’s brother asked the hospital not to perform an autopsy. He submitted that the cause of Y’s death was known to him.
21. The Government maintained that on 28 July 2004 Y left the hospital at her own request due to a planned wedding ceremony. In this respect they submitted a copy of Y’s medical file, which in its relevant part reads as follows:
“27 July 2004 ...Due to a planned wedding ceremony, the patient is to be released tomorrow at her own request.”
22. The applicant disagreed. She maintained that Y had not requested to leave the hospital, but had been sent home.
23. The applicant further submitted that during her daughter’s stay in the surgical department of Piła Hospital the head of that department commented that “it is absurd to spend a whole week treating an abscess. [Y] is too busy with her bottom, instead of taking care of something else”, referring to the pregnancy. The applicant stated that this comment and its context had humiliated and angered her and her daughter.
24. The Government argued that Piła Hospital maintained that no such comment had been made, either by the head of the department or by any other doctor of that hospital. Also, the Regional Agent for Disciplinary Matters in Poznań, in the course of disciplinary proceedings instituted against doctors who had treated Y, did not confirm the applicant’s allegations.
25. The applicant also submitted that the doctor at Pirogow Hospital had justified not performing a full endoscopy (in August 2004) by referring to his fear of endangering the life of the foetus. The applicant submitted that the doctor had stated that “my conscience does not allow me”, but had not formalised his objection or directed Y to another doctor.
26. The Government argued that during the investigation instituted by the Regional Agent for Disciplinary Matters in Łódź it had been established that none of the doctors at Pirogow Hospital had based their refusal to perform a full endoscopy on a “conscience clause” (klauzula sumienia). The decision not to perform a full endoscopy was taken because there were no medical grounds for such an examination, and not because of Y’s pregnancy.
27. On 6 December 2004 the applicant’s lawyer asked the Łódź District Prosecutor to institute criminal proceedings in relation to the circumstances of the applicant’s daughter’s death. The lawyer submitted medical charts from three hospitals and asked the prosecutor to obtain full medical documentation. The applicant was questioned by the prosecutor on 6 January 2005.
28. On 10 February 2005 the prosecution requested the Collegium Medicum in Kraków and the Medical University in Łódź to issue an opinion as to whether an exhumation would be possible in Y’s case. Both universities replied that an exhumation of Y’s body would not have enabled an opinion to be given on the cause of her death.
29. On 1 March 2005 the prosecutor opened an investigation of possible unintentional homicide of the applicant’s daughter (Article 155 of the Criminal Code).
30. On 24 June 2005 the prosecutor decided to appoint an expert from the Forensic Medicine Department of the Collegium Medicum in Kraków, to evaluate the treatment provided to the patient, and to establish whether there was a direct causal link between any irregularities in Y’s treatment and her death. However, Collegium Medicum informed the prosecutor that no autopsy was carried out following the applicant’s daughter’s death, and that exhumation of her body at a later stage would not have enabled an opinion to be given on the cause of death. A similar opinion was issued by the Medical University in Łódź.
31. On 20 July 2005 the Medical Academy in Gdańsk, on 22 July 2005 the Forensic Medicine Department in Szczecin, and on 19 July 2005 the Medical Academy in Warsaw refused to provide an opinion in Y’s case due to their workload in other cases and lack of staff.
32. Meanwhile, on 14 June 2005 the Minister of Health convened a special expert committee to investigate Y’s treatment and the circumstances of her death. The aim of the committee was to inquire in respect of all the hospitals involved in Y’s treatment as regards their organisation and methods of treatment and the availability of those methods. On 15 November 2005 the committee concluded that the death had been directly caused by sepsis. The committee noted however, that during Y’s stay in Pirogow Hospital, despite her history of inflammatory bowel disease the doctors failed to perform a diagnostic imaging test on her abdomen. In addition, an earlier diagnosis of sepsis and the establishment of its original cause in Pirogow Hospital (most probably Lesniewski-Crohn disease) and a possible decision about surgical treatment would have had an impact on Y’s situation. The committee’s report was signed by several national consultants in various fields of health care. Two members of the committee, who were not medical experts, did not sign the report: professor of criminal law E.Z., and W.N., the head of an NGO working in the field of reproductive rights.
33. On 8 August 2005 the prosecutor’s office asked national consultants in gastroenterology, gynaecology and vascular surgery to submit opinions on Y’s treatment.
34. On 12 December 2005 an expert gastroenterologist stated in her opinion that the original cause of sepsis could not be determined due to the fact that an autopsy had not been performed on Y’s body.
35. The investigation of the death of the applicant’s daughter was extended several times. It was then suspended, on 26 May 2006. The prosecutor referred to the need to obtain expert opinions and the fact that the waiting time for such opinions was at least twelve months.
36. Subsequently six medical opinions were submitted to the prosecutor’s office on 12 March, 10 April, 10 May, 4 June, and 27 September 2007, and 25 April 2008. Altogether the prosecution obtained opinions from eight medical experts. The experts were subsequently heard by the prosecutor.
37. During the investigation, there were several changes of prosecutor: at least six prosecutors handled the investigation at different stages.
38. On 10 May 2007 M.K, an expert gastroenterologist, considered it surprising that Y had not undergone an ultrasonographic examination of the abdomen. He further stressed that she could have had an MRI (magnetic resonance imaging) to determine the cause of the abscess. Lastly, an autopsy would have allowed the original cause of the sepsis to be determined. In an additional opinion of 25 April 2008 M.K. considered that in both hospitals, Piła and Pirogow, the doctors failed to do an MRI. However, he stressed that the lack of adequate examination in Y’s case should be treated not as medical malpractice but as lack of due diligence.
39. On 11 June 2008 the District Prosecutor resumed and discontinued the investigation. The prosecutor concluded that on the basis of the experts’ opinions there was no ground for any doubts or objections as to the treatment received by the applicant’s daughter. Failure to conduct an MRI should be considered a lack of due diligence and not medical malpractice. It could no longer be said that an earlier operation would have saved Y’s life. Consequently, no direct link had been established between the treatment and the death of the applicant’s daughter.
40. The applicant appealed.
41. On 5 September 2008 the Lódz District Court upheld the prosecutor’s decision. The court referred to the complicated nature of the case and the fact that no autopsy was performed, and therefore it was impossible to establish whether Y suffered from Lesniewski-Crohn’s disease. The court considered that there were no grounds for continuation of the investigation of Y’s death.
42. The applicant stated that the prosecutor had not obtained the necessary information, such as full medical records, to assist experts in forming their opinions. The Government maintained that the prosecutor had obtained full medical records from all the hospitals attended by the applicant’s daughter in Piła, Poznań and Łódź.
43. The applicant also stated that the prosecutor had the applicant’s daughter. The Government argued that the prosecutor had examined the issue of colonoscopy and the investigation had been focused on Y’s cause of death: in particular, on the question whether her treatment had been adequate to the diagnosis and whether further tests, such as a full endoscopy and a diagnostic imaging test, could have prevented Y’s death.
44. The applicant claimed that the two members of the special expert committee (see paragraph 32 above) who had not signed the report of 15 November 2005 had not been allowed to participate in the committee’s discussions and therefore did not have access to the medical files. The Government disagreed. They drew the Court’s attention to the fact that all the medical specialists had signed the report.
45. On 20 June 2005 the Łódź Regional Agent for Disciplinary Matters (Okregowy Rzecznik Odpowiedzialnosci Zawodowej) (“Disciplinary Agent”) instituted disciplinary proceedings against the doctors who had treated Y. After consulting several experts and hearing witnesses, he concluded that there was no evidence of medical malpractice. During the proceedings the applicant and Y’s fiancé refused to testify before the Disciplinary Agent. The proceedings were discontinued by a decision of 25 October 2006.
46. In late May 2005 the Poznań Disciplinary Agent instituted disciplinary proceedings against the doctors who had treated Y. On 6 December 2006 three specialists from the Wrocław Medical Academy issued a medical opinion, that there was no evidence of medical malpractice. The proceedings were discontinued by a decision of 8 January 2007.
47. The applicant did not appeal against the Poznan and Lodz Disciplinary Agents’ decisions to the Chief Agent for Disciplinary Matters in Warsaw (Naczelny Recznik Odpowiedzialnosci Zawodowej).
48. In September 2007 the applicant had brought a compensation claim in the Łódź District Court against Pirogow Hospital.
49. On 7 April 2009 the applicant modified her claim and asked for 300,000 Polish zlotys (PLN) in compensation. Consequently, the case was transferred to the Łódź Regional Court.
50. On 17 March 2011 the Łódź Regional Court dismissed the applicant’s claim for compensation. The applicant did not appeal against this judgment. In addition, none of the parties asked to be served with the written reasoning of the judgment.
51. There is no indication in the medical files of Y’s stay in Piła Hospital (19 May-1 June 2004) that she had given permission for third parties to have access to these files. For these reasons, in 2004 the hospital refused the applicant access to the medical files
52. Medical files of Y’s stay in Swiecicki Hospital (8 June to 1 July 2004 and 19-28 July) indicate that Y specified that the applicant was entitled to obtain documentation on her stay in the hospital. The hospital granted access to these files to the Lodz District Prosecutor (on 14 March and 9 May 2005 and 27 February 2006) and to the Ministry of Health on 27 June 2005.
53. Medical files in Pierogow Hospital do not indicate that Y allowed third-party access to her medical files. For this reason the hospital refused the applicant access to these files.
54. The Government maintained that the applicant had not requested the Swiecicki hospital to give her access to Y’s files. The applicant disagreed. She submitted, without specifying any details, that she had twice asked the hospital for these files but had not been granted access.
55. The Government submitted that on 1 March 2005 the prosecutor’s office requested the relevant hospitals to provide files on Y’s treatment. In this connection they submitted copies of the prosecutor’s decisions.
56. The applicant disagreed: she claimed that the relevant files were requested only in February and April 2006.
57. Under section 39 of the Medical Profession Act of 1996 (ustawa o zawodzie lekarza i lekarza dentysty) (“the 1996 Act”), as applicable at the material time, a doctor may refuse to carry out a medical procedure, citing her or his objections on the ground of conscience. He or she is obliged to inform the patient where the medical procedure concerned can be obtained and to register the refusal in the patient’s medical records. Doctors employed in health-care institutions are also obliged to inform their supervisors of their refusal in writing.
58. Sections 24-26 of the Health-Care Institutions Act of 1991 (ustawa o zakładach opieki zdrowotnej), as applicable at the material time, specified situations in which an autopsy is to be performed. In general, when a person died in a hospital, the authorities might carry out an autopsy unless that person’s statutory representative objected or the patient expressed such a wish whilst alive. However, an autopsy was obligatory if the cause of the patient’s death could not be unequivocally established or in situations specified in the code of criminal procedure.
59. Under section 41 of the 1996 Act and the ordinance of 2001 on types of individual medical documentation, keeping them and detailed conditions of granting access to them (Rozporzadzenie Ministra Zdrowia w sprawie rodzajów indywidualnej dokumentacji medycznej, sposobu jej prowadzenia oraz szczegółowych warunków jej udostepniania) as applicable at the material time, a doctor was obliged to grant access to individual medical files to a patient, his statutory representative or a person authorised by the patient; to another doctor or person authorised to conduct the patient’s treatment; other organs under separate legislation (such as courts or a prosecutor’s office).
60. Under Article 417 of the Polish Civil Code, the State is liable for damage caused by its agents in the exercise of their functions. There is established case-law of the Polish courts to the effect that this liability of the State also includes liability for damage caused by medical treatment in a public system of medical care, run either by the State or by the municipalities.
61. Article 155 of the Criminal Code of 1997 provides that a person who unintentionally causes the death of another human being shall be liable to a sentence of imprisonment between three months and five years
62. The Chambers of Physicians Act of 1989 (ustawa o izbach lekarskich) (“The 1989 Act”) no longer in force, established Chambers of Physicians. The disciplinary responsibility of physicians for professional misconduct may be determined in proceedings before organs of the Chambers, agents for disciplinary matters and disciplinary courts. Agents and members of the courts for each region are elected by members of a local chamber. The Chief Agent for Disciplinary Matters and the Principal Court are elected by the National Congress of Physicians, composed of delegates of local chambers.
63. Pursuant to Article 42 of the Act, the following penalties may be imposed in disciplinary proceedings: a warning, a reprimand, suspension of the right to practise medicine for a period from six months to three years, and being struck off the register of physicians.
64. The agent for disciplinary matters must investigate the matter if he obtains credible information that the rules of professional conduct have been infringed. When investigating such a complaint, the agent may question a physician charged with professional misconduct, may appoint experts and question witnesses and take such other evidence as he or she sees fit. A physician charged with professional misconduct is entitled to make any submissions which in his or her opinion are relevant.
65. The agent shall discontinue proceedings if he concludes that the material gathered in the case does not suffice for drawing up a motion for a penalty to be imposed.
NON_VIOLATED_ARTICLES: 2
NON_VIOLATED_PARAGRAPHS: 2-1


ITEMID: 001-108502
LANGUAGEISOCODE: ENG
RESPONDENT: ARM
BRANCH: CHAMBER
DATE: 2012
DOCNAME: CASE OF BUKHARATYAN v. ARMENIA
IMPORTANCE: 3
CONCLUSION: Remainder inadmissible;Violation of Article 9 - Freedom of thought conscience and religion (Article 9-1 - Manifest religion or belief);Non-pecuniary damage - award
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
TEXT: 5. The applicant was born in 1980 and lives in Yerevan.
6. The applicant is a Jehovah’s Witness. From 1993 he attended various Jehovah’s Witnesses religious services and was baptised on 26 June 1994 at the age of 13.
7. On 4 January 1997 the applicant was registered as a person liable for military service with the Shahumyan Military Commissariat.
8. In September 1998, when the applicant turned 18, he advised the military commissariat by letter that he refused to serve in the military because of his religious beliefs. At that time, he also left home being afraid that he would be taken to the military by force.
9. During the following months, according to the applicant, military personnel harassed his family in an attempt to force him to join the military.
10. On 15 December 1998 the applicant sent identical letters to the General Prosecutor of Armenia, the Ministry of Justice of Armenia, the Military Commissioner of Armenia, the Malatia-Sebastia District Prosecutor’s Office and the Shahumyan Military Commissariat, stating that it was contrary to his conscience and religious beliefs to serve in the military and that he was willing to perform alternative civilian service.
11. By a letter of 28 January 2000 the applicant was informed in writing by the Malatia-Sebastia District Prosecutor’s Office that no criminal proceedings would be brought against him, if he reported for military service. The letter also urged the applicant to fulfil his civic and filial duty to his motherland and to go through the school of maturity in the form of military service.
12. One year after receiving the above letter, the applicant was contacted by assistant prosecutor K. The applicant went to meet K. in April 2001. According to the applicant, he was told that a criminal case would not be initiated and that he would be forced to perform military service. The applicant was accused of being a traitor to his country, his religious beliefs were ridiculed, and he was mocked and cursed because he would not serve in the military.
13. On 5 July 2001 the applicant sent another letter to the authorities once again explaining the reasons for his refusal to serve in the army.
14. On 8 April 2002 criminal proceedings were instituted under Article 75 of the Criminal Code on account of the applicant’s draft evasion.
15. On 10 May 2002 a formal charge of draft evasion was brought against the applicant and a search was declared for him.
16. On 13 May 2002 the Malatia-Sebastia District Court of Yerevan ordered the applicant’s detention on remand and authorised the monitoring of his correspondence.
17. On 26 November 2002 the applicant, having learnt that a criminal case had been initiated against him, went to the Malatia-Sebastia District Prosecutor’s Office where he was immediately placed under arrest.
18. On 1 December 2002 the applicant was released after signing an undertaking not to leave his place of residence.
19. On 2 April 2003 the Malatia-Sebastia District Court of Yerevan found the applicant guilty as charged and sentenced him to two years in prison.
20. On an unspecified date the applicant appealed.
21. On 2 May 2003 the Criminal Court of Appeal upheld the judgment of the District Court.
22. On 12 May 2003 the applicant appealed, arguing, inter alia, that his conviction violated his rights guaranteed by Article 9 of the Convention.
23. On 30 May 2003 the Court of Cassation upheld the applicant’s conviction.
24. On 21 June 2003 the applicant was imprisoned.
25. On 11 December 2003 the applicant was released on parole after having served almost six months of his sentence.
26. For a summary of the relevant domestic provisions see the judgment in the case of Bayatyan v. Armenia ([GC], no. 23459/03, §§ 41-45, 7 July 2011).
VIOLATED_ARTICLES: 9
VIOLATED_PARAGRAPHS: 9-1


ITEMID: 001-23788
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2004
DOCNAME: MADEJ v. POLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Mr Eugeniusz Madej, is a Polish national who was born in 1949 and lives in Warsaw, Poland.
The facts of the case, as submitted by the parties, may be summarised as follows.
In January 1995 the applicant, who had been working as a driver and carried out other duties at the Polish Embassy in Brazil, was dismissed by the Minister of Foreign Affairs.
On 4 May 1995 the applicant lodged with the Warszawa District Court (Sąd Rejonowy) an action for reinstatement against the Ministry of Foreign Affairs.
On 9 August 1995 the court held the first hearing.
On 27 December 1995 the applicant extended his action. He sought amendment of his employment record (o uzupełnienie opini).
Subsequently, on 4 January 1996 a hearing was held.
The hearing scheduled for 11 April was adjourned because of the illness of the judge rapporteur and the next one, listed for 26 August 1996, was adjourned at the request of the applicant's lawyer.
The next hearing was held on 10 October 1996.
Subsequently, hearings were held on 30 January, 23 June and 17 October 1997 and on 19 January 1998.
On 23 February 1998 the applicant further extended his action.
On 20 April and 22 October 1998 the trial court held hearings.
On 15 March 1999 the Warszawa District Court gave judgment in which it dismissed the applicant's claim.
The applicant lodged an appeal.
On 4 October 1999 the Warsaw Regional Court (Sąd Wojewódzki) dismissed his appeal.
The parties did not lodge a cassation appeal with the Supreme Court.


ITEMID: 001-72787
LANGUAGEISOCODE: ENG
RESPONDENT: DEU
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: RABUS v. GERMANY
IMPORTANCE: 4
CONCLUSION: Inadmissible
TEXT: The applicant, Mr Helmut Rabus, is a German national who was born in 1957 in Günzburg and lives in Bibertal. He is represented before the Court by Mr W. Peukert, a lawyer practising in Strasbourg.
The applicant works as a technician for the German Telecom Corporation (Deutsche Telekom Aktiengesellschaft). He has the status of a permanent civil servant (Beamter auf Lebenszeit) as the German Telecom Corporation used to be a federal agency – the German Federal Postal Service (Deutsche Bundespost) – before its privatisation in 1995.
On 5 February 1994 the applicant was caught while he was driving with a blood alcohol level of 2,43 ‰. On 21 April 1994 the Ulm District Court convicted the applicant of intoxication (Vollrausch), sentenced him to a fine of DEM 4200 (approximately EUR 2150) and revoked his driving permit for ten months. The decision became final on the same day as the applicant and the Public Prosecutor waived their rights to appeal.
In December 1994 disciplinary proceedings were instituted against the applicant.
On 1 January 1995 the Federal Postal Service was privatised and transformed into a joint stock company, the German Telecom Corporation.
On 18 July 1995 the Federal Disciplinary Court (Bundesdisziplinargericht) convicted the applicant of having culpably violated a professional duty (schuldhaft begangenes Dienstvergehen) pursuant to Section 77 of the Federal Civil Service Act (Bundesbeamtengesetz, see “Relevant domestic law below”). It ordered a 5% reduction of the applicant’s salary for five months. The applicant’s total pecuniary loss amounted to approximately EUR 420.
On 20 August 1996 the Federal Administrative Court rejected his appeal (Berufung).
On 2 June 2002 the Federal Constitutional Court refused to admit the applicant’s constitutional complaint. In its decision of six pages, the court assessed inter alia why the disciplinary sanction did not violate the principle ne bis in idem. The decision was served on the applicant’s lawyer on 28 June 2002.
1. The Federal Civil Service Act
Pursuant to Section 77 § 1 sentence 2 of the Federal Civil Service Act (Bundesbeamtengesetz), a civil servant commits a disciplinary offence (Dienstvergehen) if his conduct off duty in officialdom (Beamtentum).
Section 77 § 3 refers to the Federal Disciplinary Code for the full particulars.
2. The Federal Disciplinary Code
Section 5 of the Federal Disciplinary Code (Bundesdisziplinarordnung) enumerates the following penalties for a disciplinary offence: reprimand, fine, reduction of salary, transfer to another duty-station with a lower salary, discharge from office, reduction of pension and deprivation of pension.


ITEMID: 001-61451
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2003
DOCNAME: CASE OF WIERCISZEWSKA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 4. The applicant was born in 1956 and lives in Wizna, Poland.
5. In 1991, in the course of court proceedings concerning child support maintenance the Łomża District Court (sąd rejonowy) imposed on the applicant an interim ban on leaving the territory of Poland. She was not notified of that decision until 16 July 1991, when she was stopped at an airport, on her way to the United States of America.
6. On 30 September 1991 the applicant filed with the Łomża Regional Court (sąd wojewódzki) an action in which she claimed damages from the State Treasury. She argued that that ban was wrongful and not served on her, which had made it impossible for her to return to the United States of America and pursue her application for a residence permit there. The applicant submitted that judge X who had issued that order had known her former husband, who had been a party to those proceedings.
7. On 31 October 1991 the Białystok Court of Appeal (sąd apelacyjny) transferred the case to the Białystok Regional Court.
8. The latter court held hearings on 7 April, 24 September and 17 December 1992.
9. On 5 January 1993 it rejected a part of the applicant's claim.
10. At the hearing held on 13 May 1993 the court, at both parties' request, stayed the proceedings until the completion of disciplinary proceedings against judge X.
11. On 3 September 1993 the court resumed the proceedings.
12. It held further hearings on 7 October and 16 December 1993, as well as 20 January 1994.
13. On 3 February 1994 the Białystok Regional court gave judgment. It awarded the applicant damages in the amount of 145.820.500 old zlotys with interest. The defendant and judge X, who joined the proceedings as an intervener, appealed.
14. On 7 July 1994 the Białystok Court of Appeal quashed the Regional Court's judgment and remitted the case for re-examination.
15. On 1 August 1994 the applicant challenged the participation in the proceedings of all the judges from the Białystok Regional court.
16. On 15 December 1994 the Białystok Court of Appeal dismissed that petition.
17. The Regional Court held hearings on 26 April, 28 June and 6 September 1995. At the former the court decided to request the U.S. embassy to submit a certain piece of information. At the hearing of 26 June 1995 it imposed a fine on a witness for non-attendance before the court.
18. Hearings were held on 22 August, 19 September and 28 November 1996.
19. The hearing scheduled for 18 December 1996 was adjourned because of the presiding judge's illness.
20. The court held a hearing on 17 April 1997.
21. On 30 April 1997 it gave judgment. The court dismissed the applicant's action. She appealed.
22. On 7 November 1997 the Regional Court refused the applicant's request for exemption from the appellate court costs. On 2 December 1997 the Court of Appeal changed that decision and exempted her from part of those costs.
23. It held hearings on 5 February and 3 March 1998.
24. On 10 March 1998 the Białystok Court of Appeal amended the judgment of 30 April 1997 in that it awarded the applicant damages in the amount of 23,864 zlotys (PLN) with interest. All the participants to the proceedings lodged cassation appeals against that judgment.
25. On 12 May 1998 the Court of Appeal rejected the applicant's cassation appeal. She appealed. On 27 August 1998 the Supreme Court quashed the Court of Appeal's decision.
26. On 28 June 2000 the Supreme Court quashed the judgment under appeal and remitted the case for re-examination.
27. On 30 November 2000 the Court of Appeal held a hearing.
28. On 7 December 2000 it gave judgment. The court dismissed the applicant's appeal against the judgment of 30 April 1997 given by the Białystok Regional Court. The applicant lodged a cassation appeal against that judgment.
29. On 14 June 2002 the Supreme Court rejected that cassation appeal on procedural grounds.
30. Subsequently, the applicant's lawyer requested the re-opening of the case, relying on a recent judgment of the Constitutional Court concerning the State's liability for damage caused by a State official while giving a decision or carrying out other official duties. The request was rejected.
31. On 4 November 2002 the applicant's lawyer lodged a constitutional complaint relating to the rejection of her request for re-opening. On 9 June 2003 the Constitutional Court gave judgment.
32. Relying on that judgment, the applicant again filed a request for re-opening. On 9 October 2003 she informed the Court that her request had not yet been examined.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1