ITEMID: 001-87211
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF KOWALCZYK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 4. The applicant was born in 1966 and lives in Gdynia. He is currently detained in the Gdańsk Remand Centre.
5. The applicant was arrested on 12 January 1999 on suspicion of having committed homicide together with eight accomplices, and of illegal possession of arms.
6. On 14 January 1999 the Gdańsk District Court (Sąd Rejonowy) remanded the applicant in custody until 12 April 1999 in view of the reasonable suspicion that he had committed homicide and the risk that he would obstruct the investigation.
7. The applicant’s detention was extended by several decisions of the Gdańsk Court of Appeal and the Supreme Court. The applicant’s appeals and applications for release and applications to vary the preventive measure were unsuccessful. In their decisions the courts relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, on the serious nature of the offences and the risk that the applicant would obstruct the proceedings. They basically relied on the same grounds as originally invoked each time they dismissed his applications for release or his requests to vary the preventive measures applied. In its decision of 16 June 1999 extending the applicant’s detention, the Gdańsk Court of Appeal added that there was a reasonable risk that the applicant would abscond.
8. On 29 July 2003 the Gdańsk Regional Court convicted the applicant as charged and sentenced him to life imprisonment. It appears that during the proceedings the applicant served another prison sentence, because the first-instance court counted the periods of his pre-trial detention, that is to say from 12 January 1999 until 25 May 1999 and from 26 December 2002 until 29 July 2003 (eleven months and sixteen days), towards the prison sentence.
9. On 23 July 2003 the Gdańsk Court of Appeal extended the applicant’s detention until 30 September 2003.
10. The applicant and other co-accused lodged appeals against the firstinstance judgment.
11. The applicant remained in detention pending his appeal.
12. On 16 December 2004 the Gdańsk Court of Appeal quashed the firstinstance judgment and remitted the case for re-examination. It found that the trial court had incorrectly assessed evidence and had made numerous procedural mistakes. The Court of Appeal also pointed to the fact that the reasoning of the first-instance judgment had been “grossly brief and superficial”.
13. On 11 January 2005 the Gdańsk Court of Appeal extended the applicant’s detention until 11 April 2005. The detention was further extended on several occasions (on 23 March, 23 June and 22 December 2005 and on 30 May and 28 September 2006). At least three of the six above-mentioned decisions extending the detention were upheld following appeals by the applicant.
14. On 6 May 2005 the case file was sent back to the first-instance court.
15. On 25 August 2005 the Gdańsk Regional Court made a severance order and considered that the applicant’s case should be dealt with separately.
16. The proceedings are still pending and the applicant remains in detention.
17. The relevant domestic law and practice concerning the imposition of pre-trial detention (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006 and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
VIOLATED_ARTICLES: 5


ITEMID: 001-61892
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2004
DOCNAME: CASE OF ZYNGER v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Art. 6-1 with regard to the first proceedings;Violation of Art. 6-1 with regard to the second proceedings;Violation of Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings
JUDGES: Nicolas Bratza
TEXT: 7. The applicant was born in 1922 and lives in Frankfurt am Main.
8. In 1948 the applicant and his family left Poland and settled in Israel. His father appointed a representative to deal with all legal and financial matters in Poland. Despite that representative's opposition, in 1965 the State authorities expropriated a part of the property belonging to the applicant's family. The applicant could not take part in the proceedings concerning the expropriation, because the Polish authorities refused to grant him a visa to enter the territory of Poland.
9. On 24 March 1998 the applicant filed with the Łódź Regional Court (Sąd Wojewódzki) an action in which he claimed compensation for the allegedly unlawful use of his estate by the State Treasury.
10. In December 1998 the Łódź District Office (Urząd Rejonowy) filed with the same court an action in which it sought a declaration that the State Treasury had acquired the ownership of that estate on the basis of the 1946 decree on abandoned property (dekret o majątkach opuszczonych i poniemieckich). The District Office submitted that the estate had been abandoned following the Second World War and in 1953 taken over by the State. It pointed out that until 1992 none of the previous owners had raised any claims in respect of that estate.
11. In the proceedings concerning the applicant's action the court held hearings on 19 February and 1 December 1999, as well as on 5 January 2000. According to the Government, the applicant failed to attend the hearing of 19 February 1999. The applicant submits that he attended it.
12. On 23 February 2000 the Łódź Town Office (Urząd Miasta) requested that the applicant's proceedings be stayed until the proceedings initiated in March 1998 had been completed, submitting that the outcome of those proceedings depended on the court's findings in the latter. On 6 March 2000 the court stayed these proceedings.
13. In his pleadings of 1 June 2000 the applicant's lawyer submitted that after the war the applicant's predecessor in title had resumed possession of the estate and in 1948 court proceedings concerning his title had been conducted.
14. On 7 August 2000 the court stayed also the proceedings instituted by the applicant, relying on the fact that inheritance proceedings concerning one of the heirs to the estate in question were pending. The applicant's lawyer unsuccessfully appealed against that decision, pointing out that the applicant's share in the estate was 127/144 and thus the necessity to conduct those inheritance proceedings could not be reasonably invoked as the reason for staying the main proceedings.
15. On 31 January 2002 the court gave judgment in the proceedings instituted in December 1998 by the Łódź District Office. It dismissed the claim that the State Treasury had acquired the property of the applicant's late father by prescription.
16. On 8 April 2002 the Łódź Regional Court resumed the compensation proceedings instituted by the applicant in March 1998. On 17 April 2002 the applicant requested that an expert opinion be ordered concerning the value of the property under dispute.
17. On 14 May 2002 the court held a hearing.
18. On 3 July 2002 an expert held a viewing of the property.
19. The compensation proceedings are pending.
20. On an unspecified date in 2003 the applicant instituted a new set of proceedings against the Łódź municipality, in which he claimed release of the property concerned. On 19 April 2003 the court allowed the applicant's claim.
21. On 25 August 1995 the applicant filed with the Katowice District Court (Sąd Rejonowy) a request to reopen the proceedings concerning his estate which had terminated in 1965. In those proceedings the State Treasury had acquired the ownership of the estate through acquisitive prescription. The applicant submitted that the heirs to the estate had been deprived of the right to participate in those proceedings as the Polish authorities had refused to grant them the visa. He submitted that he had found out about that fact only in 1995.
22. On 12 October 1995 the court stayed the proceedings until the completion of the procedure for reconstruction of the case-file of the proceedings terminated in 1965.
23. On 30 April 1996 the court resumed the proceedings.
24. In September 1997 an expert submitted his opinion ordered by the court.
25. On 20 June 1998 the court fixed a court fee to be paid by the applicant. The applicant's lawyer challenged that decision. On 13 October 1998 the Katowice Court of Appeal (Sąd Apelacyjny) quashed it.
26. On 16 March 1999 the District Court refused the applicant's request for an interim measure. His appeal against that decision was dismissed.
27. On 12 January 2000 the court held a hearing.
28. On 10 February 2000 the court decided to transfer the case to a different department, considering that it should be dealt with by way of a contentious procedure. On 17 May 2000 the Katowice Regional Court dismissed the applicant's appeal against that decision.
29. On 23 March 2000 the Katowice Town Office submitted its pleadings, in which it petitioned that the applicant's request be rejected. It noted that the applicant had been aware of the fact that the proceedings concerning the acquisition of the estate had been pending in 1965. The Office further observed that the applicant had corresponded with the representative appointed by his family and thus could not claim that he had found out about the expropriation proceedings only in 1995.
30. On 27 October 2000 the court stayed the proceedings until inheritance proceedings in respect of one of the parties to the proceedings at issue were completed. On 30 January 2001 the Katowice Regional Court upheld this decision.
31. On 9 April 2002 the final decision was given in the inheritance proceedings. On 24 June 2002 the District Court resumed the examination of the applicant's case.
32. On 31 July 2002 the court gave judgment, in which it refused the applicant's request for re-opening. In November 2002 the applicant lodged an appeal against that judgment.
33. On 8 April 2003 the Katowice Regional Court dismissed his appeal. The applicant subsequently submitted an appeal on points of law. By a decision of 30 July 2003 the Katowice Regional Court exempted the applicant from the obligation to pay a relevant court fee.
34. On 20 April 2004 the Supreme Court dismissed the appeal on points of law.
35. Article 45 of the Constitution provides that everyone shall have the right to a fair and public hearing of his or her case, without undue delay, before a competent impartial and independent court.
36. Under Article 77 § 1of the Constitution of Poland of 1997, everyone is entitled to compensation for damage caused by the unlawful acts of a public authority. Pursuant to § 2 of the same Article, a statute shall not bar access to court to persons seeking redress for any breach of their rights or freedoms.
37. Article 417 of the Civil Code provides that the State Treasury shall be liable for damage caused by an official of the State acting on the State's behalf.
38. Under the former Article 418 of the Code, if damage was caused by the State official as a result of his/her giving a decision or doing another official act, the State Treasury was to be liable only if the giving of the said decision amounted to an infringement of laws punishable under the criminal law or under any disciplinary regulations, and if the fault of the perpetrator had been confirmed by a judgment of a criminal court or of a competent disciplinary authority, or was otherwise recognised by a superior authority.
39. According to the old case-law of the Polish Supreme Court, a plaintiff seeking damages under Section 417 of the Civil Code must show that the act in question is unlawful and that the State agent committed a fault (the Supreme Court judgments: No. I PR 468/70 of 29.12.1970, unpublished, No. I CR 24/71 of 19.4.1971, unpublished and No. I CR 152/74 of 11.4.1974, unpublished).
40. In its judgment of 4 December 2001 the Constitutional Court ruled on the compatibility of these provisions with the Constitution. It held that Article 417 was compatible with Article 77 of the Constitution, if it was construed so as to mean that the State Treasury was liable for damage caused by unlawful acts of public officials in carrying out their duties.
41. In the same judgment the Court held that Article 418 of the Code was incompatible with Article 77 of the Constitution in that it placed undue restrictions on access to a court in cases in which civil liability of the State was sought for acts carried out in the exercise of State powers, other than de facto acts, which were covered by the general principle of Article 417 of the Code.
VIOLATED_ARTICLES: 13
6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-101349
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: ŁATAK v. POLAND
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza
TEXT: 1. The applicant, Mr Rafał Łatak, is a Polish national who was born in 1977 and lives in Pyskowice. He was represented before the Court by Ms B. Słupska-Uczkiewicz, a lawyer practising in Wrocław. The Polish Government (“the Government”) were represented by their Agent, Mr J. Wołąsiewicz, of the Ministry of Foreign Affairs.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. On 23 July 2008 the applicant started to serve a prison sentence. He was initially committed to Brzeg Prison and remained there until 10 September 2008.
4. From 10 September to 27 November 2008 he was detained in Gliwice Remand Centre (Areszt Śledczy).
5. From 27 November 2008 to 17 June 2009 he was detained in Cieszyn Prison.
6. On 17 June 2009 the applicant was moved to Jastrzębie Zdrój Prison, a “half-open” detention facility, where he had an opportunity to work outside prison. On 31 July 2009 the applicant escaped from the workplace and was on the run until 25 September 2009, the date on which he was detained in Warszawa-Białołęka Prison.
7. On 26 November 2009 the applicant was transferred to the Strzelce Opolskie Prison, where he remained until 2 December 2009.
8. Lastly, on 2 December 2009, he was transferred to the Brzeg Prison, where he is currently detained.
9. The parties gave partly differing accounts of the conditions of the applicant's detention in the above-mentioned establishments.
10. The applicant submitted that during the entire period of his detention he had been held in overcrowded and dirty cells.
11. In Gliwice Remand Centre he was assigned to a cell designed for three persons. In fact, he shared it with five other inmates. The cell in question measured 12 m² (2 m² per person) but most of its space was taken up by a toilet annex, six beds, three tables and six stools. As a result, the prisoners could not move around the cell and they spent their entire day sitting on their beds. The furniture and cell fittings were old and shabby. There was no ventilation in the cell.
12. Later, after his transfer to Cieszyn Prison, the applicant was held in a cell which measured 6 m² and was designed for two persons. The applicant shared that cell with three other inmates, which meant that they had at their disposal 1.5 m² per person.
13. The Government submitted that the period of the applicant's detention in cells in which the minimum statutory requirement of 3 m2 per person was not respected amounted to 254 days.
They supplied the following details concerning the conditions of the applicant's detention in each establishment.
14. From 23 July to 29 August 2008 the applicant was placed in a cell which measured 10.82 m2 and in which the space available to each prisoner was less than the statutory minimum of 3 m2 per person.
15. From 29 August to 10 September 2008 he was held in the same cell but the minimum space requirement was respected.
16. During that period the applicant was held in a cell which did not meet the statutory minimum space per prisoner.
17. Over that term the applicant was placed in a cell measuring 38.24m2 which, at different times, he shared with 8 to 13 inmates. The Government supplied a table showing the movement of inmates at any given time, from which it emerges that the space available to one person ranged from 2.90 m2 to 4.78 m2.
18. From 17 June to 21 July 2009 the applicant was detained in a cell measuring 21.21 m2 in which the space available to each prisoner was less than the statutory minimum.
19. From 21 to 31 July 2009 the applicant was placed in two different cells. The statutory minimum size requirement was complied with.
20. Since the prison belonged to the category of so-called “half open” prisons, cells were open day and night and inmates could move freely within the premises. They could walk and also play football and volleyball.
21. Over that period the applicant was placed in three different cells, measuring 15.04 m2, 15.00 m2 and 15.96 m2 respectively, which he shared with 3 to 5 inmates. The space per person ranged from 2.50 m2 to 3.75 m2.
22. The applicant was placed in a cell complying with the statutory requirement.
23. From 2 to 9 December the applicant was held in cell no. 2 measuring 12.85 m2. Later, he was placed in cell no. 7 measuring 26.85 m2. In both cells the statutory minimum size requirement was complied with. The applicant is apparently still detained in Brzeg Prison.
24. The applicant did not lodge any formal complaints with the penitentiary authorities. Nor did he bring a civil action in tort to seek an improvement of his detention conditions or compensation for the alleged breach of his personal rights. He submitted, however, that he had raised the issue of his detention conditions at many meetings with the supervisors and the administration of the detention facilities in which he had been held.
25. At the material time, Article 110 of the Code of Execution of Criminal Sentences (Kodeks karny wykonawczy – “the Code”) provided:
“1. A sentenced person shall be placed in an individual cell or a cell shared with other inmates.
2. The area of the cell shall be no less than 3 square metres per detainee.”
26. Article 248 of the Code, which constituted a legal basis for a possible temporary placement of detainees in cells below the statutory size of 3 m2, as applicable at the material time, read as follows:
“1. In particularly justified cases a governor of a prison or remand centre may decide to place detainees, for a specified period of time, in conditions where the area of the cell is less than 3 square metres per person. Any such decision shall be communicated promptly to a penitentiary judge.
2. The Minister of Justice shall determine, by means of an ordinance, the rules which are to be followed by the relevant authorities in a situation where the number of persons detained in prisons and remand centres exceeds on a nationwide scale the overall capacity of such establishments ...”
27. Acting on the basis of Article 248 of the Code, in 2000, 2003 and 2006 the Minister of Justice issued three subsequent ordinances bearing the same title: “Ordinance on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded on a nationwide scale the overall capacity of such establishments (Rozporządzenie Ministra Sprawiedliwości w sprawie trybu postępowania właściwych organów w wypadku, gdy liczba osadzonych w zakładach karnych lub aresztach śledczych przekroczy w skali kraju ogólną pojemność tych zakładów ).
The first ordinance (“the 2000 Ordinance”) was issued on 26 October 2000. It was repealed on 26 August 2003 by the second ordinance (“the 2003 Ordinance”), which entered into force on 1 September 2003 (see Orchowski, cited above, § 76).
On 19 April 2006, the third ordinance (“the 2006 Ordinance”) was issued; it entered into force on the same day. It repealed the previous 2003 Ordinance and remained in force until 6 December 2009, i.e. the date on which the Constitutional Court's judgment of 26 May 2008 took effect (see Orchowski, cited above, § 84; and paragraph 29 below). All the ordinances contained similar provisions authorising the prison authorities to place – temporarily – detainees in cells with surfaces below 3 m2 in situations where the overall capacity of Polish detention facilities was exceeded on a nationwide scale.
28. Paragraph 1.1 of the 2006 Ordinance provided:
“In the event that the number of detainees placed in prisons and remand centres, as well as in subordinate detention facilities, hereinafter referred to as 'establishments', exceeds on a nationwide scale the overall capacity of such establishments, the Director General of the Prison Service, within seven days from the day on which the capacity is exceeded, shall convey information thereof, hereinafter referred to as 'information' to the Minister of Justice, the regional directors of the Prison Service and the governors of the establishments ...”
Paragraph 2 of the Ordinance read:
“1. Having received the relevant information, the regional director of the prison service and the governor of the establishment are under a duty, each within their own sphere of competence, to take action in order to adapt quarters not otherwise included in the establishment's [accommodation] capacity, to comply with the requirements for a cell.
...
3. Detainees shall be placed in supplementary cells for a specified period of time after the establishment's capacity is exceeded.
4. In the event that the additional accommodation in the supplementary cells is used up, detainees may be placed, for a specified period of time, in conditions where the area of a cell is less than 3 square metres per person.”
29. On 26 May 2008 the Constitutional Court gave its landmark judgment concerning the unconstitutionality of Article 248 of the Code (see paragraph 26 above) in that it allowed, for all practical purposes, the indefinite and arbitrary placement of detainees in cells below the statutory size of 3 m² per person, thus causing chronic overcrowding in Polish prisons and exposing detainees to the risk of inhuman treatment.
30. The most relevant parts of that ruling are rendered in paragraph 85 of the Orchowski judgment and in paragraphs 79-88 of the Norbert Sikorski judgment, which also contain extensive citations from the reasoning.
For the purposes of the present decision the judgment can be summarised as follows.
31. The Constitutional Court held that Article 248 of the Code was in breach of Article 40 (prohibition of torture or cruel, inhuman, or degrading treatment or punishment), Article 41 § 4 (right of a detainee to be treated in a humane manner) and Article 2 (the principle of the rule of law) of the Constitution. It expressed the view that overcrowding in itself could be qualified as inhuman and degrading treatment. If combined with additional aggravating circumstances, it might even be considered as torture. In that connection the court noted that already the statutory minimum standard of 3 m² cell space per person was one of the lowest in Europe.
32. The Constitutional Court further stressed that the provision in question was meant to be applied only in particularly justified cases, for example the occurrence of an engineering or building disaster in prison. A legal provision designed to address exceptional situations should not leave any doubt as to the definition of those permissible circumstances, the minimum size of the cell and maximum time when the new standards would apply. It should also lay down clear principles on how many times a detainee could be placed in conditions below the standard requirements and the precise procedural rules to be followed in such cases.
In contrast, Article 248 of the Code of Execution of Criminal Sentences gave a wide discretion to prison governors to decide what constituted “particularly justified circumstances” and in consequence condoned the permanent state of overcrowding in detention facilities. It allowed for the placement of detainees in a cell where the area was below the statutory size for an indefinite period of time and it did not set a minimum permissible area.
33. Having regard to “the permanent overcrowding of the Polish detention facilities”, the Constitutional Court ruled that Article 248 of the Code of Execution of Criminal Sentences should lose its binding force within eighteen months from the date of the publication of the judgment.
The judgment was published in the Journal of Laws (Dziennik Ustaw) on 6 June 2008.
The Constitutional Court justified the delayed entry into force of its judgment by the need to undertake a series of measures to reorganise the whole penitentiary system in Poland in order to, ultimately, eliminate the problem of overcrowding. It was also noted that, in parallel, a reform of criminal policy was needed with the aim of achieving a wider application of preventive measures other than deprivation of liberty. The court observed that an immediate entry into force of its judgment would only aggravate the already existing pathological situation where, because of the lack of cell space in Polish prisons, many convicted persons could not serve their prison sentences. At the time when the judgment was passed, the problem of overcrowding affected some 40,000 persons.
34. A detailed description of the relevant domestic law and practice (as applicable at the relevant time) concerning a detainee's right to make complaints, applications or to challenge unlawful decisions given by the prison authorities before a penitentiary judge and penitentiary court in the course of the enforcement of a criminal sentence or detention order, is included in paragraph 77 of the Orchowski judgment and paragraphs 51-58 of the Norbert Sikorski judgment.
35. Article 23 of the Civil Code contains a non-exhaustive list of socalled “personal rights” (dobra osobiste). This provision states:
“The personal rights of an individual, such as, in particular, health, liberty, honour, freedom of conscience, name or pseudonym, image, secrecy of correspondence, inviolability of the home, scientific or artistic work, [as well as] inventions and improvements, shall be protected by the civil law regardless of the protection laid down in other legal provisions.”
Article 24, paragraph 1, of the Civil Code provides:
“A person whose personal rights are at risk [of infringement] by a third party may seek an injunction, unless the activity [complained of] is not unlawful. In the event of infringement [the person concerned] may also require the party who caused the infringement to take the necessary steps to remove the consequences of the infringement ... In compliance with the principles of this Code [the person concerned] may also seek pecuniary compensation or may ask the court to award an adequate sum for the benefit of a specific public interest.”
36. Under Article 448 of the Civil Code, a person whose personal rights have been infringed may seek compensation. That provision, in its relevant part, reads:
“The court may grant an adequate sum as pecuniary compensation for non-material damage (krzywda) suffered to anyone whose personal rights have been infringed. Alternatively, the person concerned, regardless of seeking any other relief that may be necessary for removing the consequences of the infringement sustained, may ask the court to award an adequate sum for the benefit of a specific public interest ...”
37. Articles 417 et seq. of the Polish Civil Code provide for the State's liability in tort.
Article 417 § 1 of the Civil Code (as amended) provides:
“The State Treasury, or [as the case may be] a self-government entity or other legal person responsible for exercising public authority, shall be liable for any damage (szkoda) caused by an unlawful act or omission [committed] in connection with the exercise of public authority.”
38. Article 4421 of the Civil Code sets out limitation periods for civil claims based on tort, including claims under Article 23 read in conjunction with Articles 24 and 448 of the Civil Code. This provision, in the version applicable as from 10 August 2007, reads, in so far as relevant, as follows:
“1. A claim for compensation for damage caused by a tort shall lapse after the expiration of three years from the date on which the claimant learned of the damage and of a person liable for it. However, this time-limit may not be longer than ten years following the date on which the event causing the damage occurred.”
39. In its judgment the Supreme Court acknowledged for the first time that a detainee might, under Article 24, read in conjunction with Article 448 of the Civil Code, lodge a civil claim against the State Treasury and seek compensation for infringement of his personal rights, in particular, the right to dignity and private space (intymność), on account of overcrowding and inadequate living and sanitary conditions in a detention establishment. It further held that the burden of proof that conditions in a detention establishment complied with the required standards and that there was no infringement of personal rights lay with the defendant prison authority.
In that context, the Supreme Court referred to the statutory minimum space of 3 m2 per person, recalling that only in justified cases defined in Article 248 of the Code and in accordance with the procedure laid down in the 2006 Ordinance could that minimum be reduced for a specific period, which had to be precisely determined and not be excessively long – as it constituted an exception to the rule.
The Supreme Court also reiterated two essential principles underlying Article 24. First, a defendant was liable under this provision regardless of whether or not there was any fault on his part. Second, there was a presumption of unlawfulness of actions infringing personal rights, which meant that a plaintiff was absolved from proving this circumstance, whereas a defendant had a duty to demonstrate before the court that his actions were in accordance with the law.
40. Further details of the civil action in which the judgment originated (and which was ultimately dismissed) are stated in paragraphs 80-81 of the Orchowski judgment and in paragraphs 66-70 of the Norbert Sikorski judgmentt.
41. In the cases of Orchowski and Norbert Sikorski, the Government submitted twelve judgments delivered by the Polish civil courts in 2006 and 2007 and nine final judgments delivered in 2008, which concerned claims brought by former detainees on account of the alleged infringement of their personal rights. Those claims derived from various situations, including detention with inmates who smoked, food poisoning, bodily injury caused by an inmate, risk of HIV infection and, also, overcrowding in prison.
In four final judgments delivered in late-2007 and in ten final judgments delivered in 2008 the plaintiffs were awarded compensation for the infringement of their personal rights on account of overcrowding and insanitary conditions in their cells. In certain cases the plaintiffs were detained together with smokers or persons with hepatitis C.
A more detailed description of the relevant rulings is included in paragraphs 79 and 82-83 of the Orchowski judgment and in paragraphs 65 and 71-74 of the Norbert Sikorski judgment.
42. In implementation of the above-mentioned Constitutional Court's judgment, whereby Article 248 of the Code lost its force on 6 December 2009 (see paragraph 33 above), Parliament adopted the law of 9 October 2009 on amendments to the Code of Execution of Criminal Sentences (ustawa o zmianie ustawy – Kodeks karny wykonawczy) (“the 2009 Amendment”). The law entered into force on 6 December 2009 and introduced a number of new detailed rules governing temporary placement of detainees in cells below the statutory minimum size of 3 m2.
43. In Article 110 of the Code, after paragraph 2, new paragraphs 2a-i were added.
Paragraph 2a gives a list of emergencies where the reduction of the cell space per person can be applied for a maximum period of 90 days. It reads, in so far as relevant, as follows:
“2a. The Governor of a prison or remand centre may place a detainee for a specified period not longer than 90 days ...in a cell, in which the area per detainee is less than 3m2 but not less than 2 m2 in the event of:
1) introduction of martial law, state of emergency or natural disaster ...
2) announcement of an epidemic risk or an epidemic in the region in which the prison or remand centre is located or an outbreak of an epidemic or risk of an epidemic in the prison or remand centre – regard being had to the level of threat to life and health;
3) need to prevent other events amounting to a direct threat to security of a [detainee] or security of the prison or remand centre or to mitigate the consequences of such events;
Paragraph 2b lists specific circumstances where the prison authorities may reduce the cell space per person below 3 m2 for a period not exceeding 14 days.
2b. The Governor of a prison or remand centre may place a detainee, for a specified period not longer than 14 days ... in a cell, in which the area per detainee is less than 3 m2 but not less than 2 m2 if it is necessary to place him immediately in the prison or remand centre that have no free places in cells:
1) a person sentenced to imprisonment exceeding 2 years;
2) a person referred to in Articles 64 §§ 1 or 2 and Article 65 of the Criminal Code [recidivist];
3) a person sentenced for the offences defined in Articles 197-203 of the Criminal Code [sexual offences and offences against morals];
4) a convicted person who [has escaped] from prison;
5) a convicted person who, during leave from prison or a remand centre has not returned to prison;
6) a person transferred from another prison or remand centre under a decision given by the court or prosecutor, in order to take part in a hearing or other procedural acts;
7) a person detained on remand, committed to prison for contempt of court or person in respect of whom other coercive measures have been applied;
Paragraph 2c reads as follows:
2c. The period referred to in paragraph 2b, may be extended only after approval by a penitentiary judge. The whole period of the placement in conditions defined in paragraph 2b may not exceed 28 days.
...
Paragraphs 2e-2i state the following:
2e. A decision issued pursuant to paragraphs 2a-2c shall specify the period of the placement and the reasons for placing a [detainee] in conditions where the area per detainee is less than 3 m2 and state the term for which a [detainee] shall be held in these conditions.
2f. The court shall examine a complaint against a decision issued pursuant to paragraphs 2a-2c within 7 days.
2g. A decision to place a [detainee] in conditions referred to in paragraphs 2a-2c shall be quashed immediately if the reasons for which it has been issued no longer exist.
2h. In situations referred to in paragraphs 2b and 2c, a [detainee] shall be assured daily walks, half-hour longer [than regular ones] and the possibility of taking advantage of additional cultural and educational activities or sports activities.
2i. The provisions of paragraphs 2b or 2c may not be applied in respect of the same [detainee] earlier than 180 days from the end date of the period of the placement in conditions referred to therein.
44. Following the 2009 Amendment, in Article 151 of the Code, which lists circumstances in which the enforcement of a sentence may be suspended, a nationwide overcrowding in detention facilities was included as an additional circumstance justifying the suspension. This provision, in so far as relevant, reads as follows:
“1. The court may suspend the enforcement of a sentence of imprisonment for a period of up to 6 months if the immediate enforcement of the penalty would entail too harsh consequences for a convicted person or his family or if the number of persons detained in prisons or remand centres exceeds on a nationwide scale the overall capacity of such establishments.”
45. The 2009 amendment repealed the 2006 Ordinance (see also paragraphs 27-28 above) and added a new paragraph 5 to Article 110 of the Code. Pursuant to that paragraph, the Minister of Justice shall determine by means of an ordinance the rules to be followed by the relevant authorities in a situation where the number of persons detained exceeds, nationwide, the overall capacity of prisons and remand centres.
46. On 25 November 2009 the Minister of Justice issued the Ordinance on the rules to be followed by the relevant authorities when the number of persons detained in prisons and remand centres exceeded, nationwide, the overall capacity of such establishments. It entered into force on 6 December 2009.
47. The Government, as they did in the Orchowski and Norbert Sikorski cases, produced a list of cases where the plaintiffs – detainees – sought, and were in some cases awarded, compensation for the infringement of their personal rights. The list partly overlapped with the one submitted in the pilot cases. It comprised 19 civil cases involving various claims for compensation under Articles 23 and 24 read in conjunction with Article 448 of the Civil Code brought by detainees against the prison authorities.
48. In five judgments, namely:
no. IACa 586/06, Gdańsk Court of Appeal, of 20 September 2006; case brought by A.B.;
no. IACa 1245/05, Gdańsk Court of Appeal, of 13 December 2005; case brought by W.L.;
no. IACa 709/07, Szczecin Court of Appeal, of 10 January 2008; case brought by Norbert Sikorski (for details of the action and its outcome, see Norbert Sikorski cited above, §§ 40-42);
no. IACa 814/07, Poznań Court of Appeal, of 31 October 2007; case brought by K.K.;
no. IVCa 193/07, Słupsk Regional Court, of 15 June; case brought by L.W.
the courts awarded plaintiffs compensation for damage to their health caused by their prolonged detention with inmates who smoked. No awards were made on account of overcrowding.
49. In the case of a certain S.G. (judgment of the Cracow Court of Appeal of 23 February 2007, no. IACa 103/07), the court held that there was no legal basis to grant the plaintiff compensation for overcrowding since the reduction of the cell space below the standard minimum had been applied under the provisions of the 2003 Ordinance. This measure could not, therefore, be considered an unlawful act justifying the application of provisions for the protection of personal rights (for further details see Orchowski, § 82).
50. In the remaining 13 cases the relevant courts awarded plaintiffs compensation on account of overcrowding and insanitary conditions in their cells. The judgments were delivered on various dates between March 2007 and July 2008.
51. The Government also supplied copies of two further final judgments delivered in civil cases brought by detainees.
However, the first judgment, given by the Warsaw Court of Appeal on 18 March 2008 in the case no. IACa 587/07, brought by a certain M.M., a mentally ill person, concerned a claim for damages arising from a wrong diagnosis and resultant lack of psychiatric treatment in detention. The issue of overcrowding was not raised in that case.
52. The second judgment was given by the Łódź Court of Appeal on 16 June 2009 in the case no. IACa 332/09 brought by a certain J.P.
The plaintiff's claim for compensation for the infringement of his personal rights caused by overcrowding, insanitary conditions of detention and placement in cells with persons infected with HIV and HCV was dismissed at first instance by the Łódź Regional Court. While the court held that it was undisputed that J.P. had been held in overcrowded cells, which undoubtedly constituted an infringement of his personal rights, it concluded that he had not demonstrated that, as a result, he had suffered any damage to his health. Accordingly, it found no basis for awarding him any compensation.
The Court of Appeal amended the judgment and granted the applicant 5,000 Polish zlotys (approximately 1,300 euros at the material time) in compensation. It further reiterated a number of principles relevant for the determination of claims for the infringement of personal rights.
First, the Court of Appeal stressed that under Article 448 of the Civil Code a plaintiff was not obliged to prove that he had suffered any damage to his health but to show that he sustained non-material damage caused by the infringement of his personal rights. Second, he had to produce evidence demonstrating the extent of the damage suffered. In determining an award, the court, for its part, should take into account such factors as the intensity of the suffering, whether the damage was permanent or irreversible and whether it was possible for a plaintiff to reverse its consequences by recourse to other civil remedies. It should also have regard to the nature of the right infringed, the degree of culpability on the part of the defendant and the defendant's financial situation. The ratio of Article 448 was not purely compensatory – another aim was to provide the plaintiff with satisfaction, which meant that an amount awarded should constitute a tangible financial sanction for the defendant. However, the court explained further that, in general, sums awarded under Article 448 should be moderate and reflect the prevailing national financial circumstances. They should not be a source of enrichment for the plaintiff.
53. On 17 March 2010 the Supreme Court examined, and allowed, a cassation appeal (skarga kasacyjna) lodged by a certain B.W. against the judgment of the Łódź Court of Appeal of 22 April 2008 (case no. IACa 221/08) upholding the first-instance dismissal of the plaintiff's claim for compensation for the infringement of his personal rights caused by overcrowding in prison.
The lower courts established that from the end of 2005 to July 2007, that is to say for some eighteen months, the applicant had been held in a cell designed for 11 persons with 16 or even more inmates. However, they considered that those conditions had not been in breach of Article 40 (prohibition of torture, cruel, inhuman or degrading treatment or punishment), Article 41 (duty to treat detained persons in a humane manner) and Article 47 (right to protection of private life) of the Constitution but had been a normal consequence of the execution of a penalty and constituted a form of suffering normally associated with serving a prison sentence. The prison authorities had informed the penitentiary court of the overcrowding in their establishment and the need to apply the measures foreseen by Article 248 of the Code. It was true that no specific term had been fixed for the application of those measures but Article 248 did not oblige them to set any specific time-frame. The applicant had not made any complaints about the conditions of his detention to the relevant authorities. Moreover, he had refused a proposal of transfer to a “half-open” prison, thus renouncing the possibility of improving his situation.
In view of the foregoing, the courts found that the actions taken by the defendant authorities had been legitimate and could not be considered unlawful for the purposes of Articles 23 and 24 of the Civil Code.
54. The Supreme Court quashed the Court of Appeal's judgment and remitted the case.
Referring to its earlier judgment of 28 February 2007 (see paragraphs 3940 above), it restated the principle that the right to be detained in conditions respecting one's dignity undoubtedly belonged to the catalogue of personal rights and that actions infringing this right could involve the State Treasury's liability for the purposes of Articles 24 and 448 of the Civil Code.
The Supreme Court observed that the Court of Appeal, in determining the lawfulness of the defendant's actions, had failed to consider whether the requirements of Article 248 of the Code had been complied with. First, it had not established whether there had been a “particularly justified case” as required under this provision, allowing the authorities to place the plaintiff in a cell below the statutory minimum size of 3 m2. The fact that there had been a temporary overcrowding in prison, without any explanation of the cause of this situation, was not sufficient to justify the application of Article 248. The notion of “particularly justified case” should be understood as an exceptional or special circumstance and not simply any given situation. It could conceivably include such situations as an increase in crime and in sentences of imprisonment, imposition of martial law, emergency, epidemics or natural disasters. Accordingly, in order to establish whether there was a “particularly justified case” the court could not rely on a general phenomenon of overcrowding in prisons within the whole country.
Moreover, the Court of Appeal had been wrong in finding that the absence of any specific time-frame in Article 248 absolved the authorities from setting a precise period for which the measures would be applied in the plaintiff's case. Thus, the relevant rule spoke of a “specified period of time”, which by no means meant an indefinite and unforeseeable term.
Finally, the Supreme Court referred to the argument that the plaintiff, by his refusal of a transfer to another prison, legitimised the authorities' decision to continue his placement in a reduced-size cell. This, the Supreme Court stressed, could not eliminate the unlawfulness of their actions. In that respect, it reiterated that, pursuant to Article 30 of the Constitution, the inherent and inalienable dignity of the person was inviolable and the respect and protection thereof was a duty incumbent on the authorities. This principle had a particular meaning in situations where the State imposed repressive measures. The exercise of this power could not restrict the right to dignity and the right of persons detained to be treated in a humane manner as these rights had an absolute character.
55. Data relating to the total capacity of Polish detention establishments published by the Ministry of Justice – Central Board for Prison Service (available on the Prison Service's official website http://www.sw.gov.pl) show that those establishments can admit up to 85,000 persons (the figures given by the authorities range from 80,733 to 85,048).
According to monthly statistical reports published by the Ministry of Justice, as of 31 May 2010 the number of persons detained in Polish prisons stood at 83,954, of whom 88.33% were serving their sentences and 11.12% were detained on remand; the remaining persons served short sentences of imprisonment imposed for commission of administrative offences. As of 30 June 2010 the number of detained was 82,697 and as of 31 July 2010 it decreased to 81,351. The proportion of persons detained on remand and those serving sentences remained essentially unchanged. Over the period from January to July 2010 the prison population gradually decreased – by 690 persons in May 2010 and by 1,257 and 1,346 in June and July 2010 respectively.
56. On 13 July 2010 the Central Board for Prison Service published a communiqué on the prison population, stating that as of 5 July 2010 the number of persons detained in prisons and remand centres had not exceeded the overall capacity of those establishments on a nationwide scale within the meaning of the 2009 Ordinance and that the occupancy rate was 98.4%, which meant that the overcrowding no longer existed.
57. On 6 September 2010 a similar communiqué was issued. It stated that as of that date the occupancy rate in detention facilities was 97.4%, which demonstrated that the problem of overcrowding had been handled. The summary statistical report of 6 September 2010 indicated that the total capacity of detention facilities was 80,733 persons and that the number of persons detained stood at 78,642.


ITEMID: 001-89126
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF LAKOMIAK v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 6 - Right to a fair trial
JUDGES: Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1948 and lives in Łódź.
5. On 19 September 1996 the applicant lodged an application for division of an inheritance and dissolution of co-ownership with the Łódź District Court (Sąd Rejonowy). The inheritance consisted of an apartment, money deposited on bank accounts and golden jewellery.
6. During the proceedings the hearings were scheduled approximately once a year. The hearings were often adjourned due to the judge’s illness or the parties’ lawyers’ failure to appear.
7. On 8 February 2000 the applicant lodged an application with the District Court for the case to be dealt with speedily as, on account of unpaid rent for the apartment, being a part of the inheritance, the estate had fallen into debt.
8. On 18 October 2006 the District Court ruled on the inheritance rights and awarded the applicant money and furniture. The applicant appealed.
9. On 16 April 2007 the Łódź Regional Court (Sąd Okręgowy) partially amended the District Court’s judgment and increased the sum awarded to the applicant. On 111 May 2007 the Regional Court issued a writ of execution in respect of the judgment.
The enforcement proceedings are pending.
10. On 27 April 2005 the applicant filed a complaint with the Łódź Regional Court under the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
11. The applicant sought a ruling declaring that the length of the proceedings before the Łódź District Court had been excessive and an award of just satisfaction in the amount of 20,684.79 Polish zlotys (PLN) (approximately 5,200 euros (EUR)).
12. On 20 June 2005 the Łódź Regional Court gave a decision in which it acknowledged the excessive length of the proceedings before the Łódź District Court. It awarded the applicant PLN 3,000 (approximately EUR 750) in just satisfaction. The court referred to the overall length of the proceedings and to the complexity of the case.
13. The applicant appealed. On 20 July 2005 the Regional Court rejected the appeal as inadmissible in law.
VIOLATED_ARTICLES: 6


ITEMID: 001-101963
LANGUAGEISOCODE: ENG
RESPONDENT: TUR
BRANCH: ADMISSIBILITY
DATE: 2010
DOCNAME: TOYAKSI AND OTHERS v. TURKEY
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Kristina Pardalos;Nona Tsotsoria
TEXT: The applicants are Turkish nationals. Their names, dates of birth and places of residence appear in the table below.
In all four applications, the applicants were issued minor fines by the Court of Cassation and the Supreme Military Administrative Court under section 442 of the Code of Civil Procedure (Hukuk Usulü Muhakemeleri Kanunu) following the rejection of requests for rectification they had brought before those courts.
All of the applicants complained under Article 6 § 1 of the Convention that their right of access to court was violated by the imposition of fines for having used a legal remedy, which was made available to them by law.
The other complaints that were raised by the applicants and specific facts relevant to these complaints are indicated in the table below.
Section 440
“Rectification of a Court of Cassation decision may be requested for the following reasons, within fifteen days after the notification of the impugned decision:
If in the appeal proceedings, the Court of Cassation failed to respond to the parties’ appeal requests;
If the Court of Cassation decision contains contradictory paragraphs;
If it is established that some of the documents examined during the appeal proceedings were fraudulent or false;
If the Court of Cassation decision is against domestic procedure or domestic law.”
“If the request for rectification is not based on one of the conditions (set forth by Section 440 of this Code), it shall be rejected and a fine shall be imposed on the applicant.”
“Sections 440-444 of the Code of Civil Procedure shall be abolished as of 1 June 2005.”
“Sections 427-454 of the Code of Civil Procedure shall be applied, without taking into account the changes made by Law no. 5236, as regards judgments which had been appealed against prior to the date the District Courts take office.”


ITEMID: 001-85806
LANGUAGEISOCODE: ENG
RESPONDENT: GBR
BRANCH: ADMISSIBILITY
DATE: 2008
DOCNAME: DONNELLY v. THE UNITED KINGDOM
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi
TEXT: The applicant, Mr Peter Donnelly, is a British national who was born in 1948 and lives in East Ayrshire. He was represented before the Court by Royds Rdw, solicitors in London. The United Kingdom Government (“the Government”) were represented by their Agent, Mr C. Whomersley of the Foreign and Commonwealth Office.
The facts of the case, as submitted by the parties, may be summarised as follows.
The applicant’s wife died on 24 August 2000. On 16 February 2001 the applicant applied for widows’ benefits. On 17 March 2001 the applicant was informed that his claim had been disallowed as he was not a woman.
The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under United Kingdom law.
The domestic law relevant to this application is set out in Runkee and White v. the United Kingdom, no. 42949/98, §§ 40-41, 25 July 2007.


ITEMID: 001-86683
LANGUAGEISOCODE: ENG
RESPONDENT: POL
BRANCH: CHAMBER
DATE: 2008
DOCNAME: CASE OF ZIEBA v. POLAND
IMPORTANCE: 4
CONCLUSION: Violation of Article 5 - Right to liberty and security
JUDGES: Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä
TEXT: 4. The applicant was born in 1968 and lives in Bielsko-Biala.
5. On 18 December 2001 the applicant was arrested by the police on suspicion of having committed, inter alia, several counts of fraud, receiving stolen goods, bribery, forgery, deception, drug trafficking and inciting to theft while acting in an organised criminal group. On 20 December 2001 the Katowice District Court (Sąd Rejonowy) ordered his detention. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged and on the risk that, as a former police officer, he might tamper with evidence. It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant.
6. On 13 February 2002 the charges against the applicant were severed from the main proceedings instituted against several suspects. The case was referred to the Bielsko-Biala District Court.
7. On 15 March 2002 the Bielsko-Biała District Court extended the applicant’s detention until 18 June 2002. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the need to secure the proper conduct of the investigation and the complexity of the case. It also stressed that his detention was justified by the need to obtain further evidence, in particular to obtain expert reports, to take evidence from witnesses and suspects and to confront witnesses and suspects.
8. The detention order was subsequently extended by the Bielsko-Biała District Court on 14 June, 25 June and 27 September 2002. The court repeated the grounds given in the previous decisions.
9. On 11 December 2002 the Katowice Court of Appeal (Sąd Apelacyjny) extended the applicant’s detention until 31 May 2003. It relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, which was supported by evidence from witnesses and co-accused. Moreover, the court found that there was a reasonable risk that the applicant would obstruct the proper conduct of the proceedings, having regard to the fact that he had formerly been a police officer. It also referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant and to the complexity of the case.
10. On 4 October 2002 the applicant requested access to the case file.
11. On 17 December 2002 the Katowice Regional Prosecutor (Prokurator Okręgowy) refused the applicant access to the case file. He relied on the risk that the applicant might attempt to tamper with evidence. Furthermore, the prosecutor stated that the applicant would be granted access to the case file later in the proceedings, at the close of the investigation.
12. On 6 March 2003 the Katowice Prosecutor of Appeal upheld the impugned order, finding that the applicant’s defence rights had been limited only temporarily and that the refusal of access to the case file was necessary for the proper conduct of the investigation.
13. On 20 May 2003 a bill of indictment was lodged. However, the court decided to return the case to the prosecution authorities for additional investigation.
14. On 30 May 2003 the Bielsko-Biala District Court extended the applicant’s detention until 31 August 2003. The court repeated the grounds given in the previous decisions.
15. On 18 June 2003 a new bill of indictment was lodged. It listed 21 charges laid against members of an organised criminal group.
16. On 29 August 2003 the Bielsko-Biała District Court extended the applicant’s detention until 18 December 2003. On 17 December 2003 the Katowice Court of Appeal extended that period to 18 June 2004. The applicant’s detention was subsequently extended on 9 June, 15 September and 17 November 2004. The courts relied on the grounds stated in the previous decisions.
17. In the course of the investigation and the court proceedings the applicant made numerous unsuccessful applications for release and appealed, likewise unsuccessfully, against refusals to release him and against decisions extending his detention.
18. Between 28 October 2003 and 18 November 2004 the court held 32 hearings.
19. On 18 November 2004 Court convicted the applicant as charged and sentenced him to 12 years’ imprisonment. He appealed. The applicant’s detention was subsequently extended on three occasions.
20. On 30 January 2006 the Katowice Regional Court (Sąd Okręgowy) quashed the first-instance judgment. At the same time it extended the applicant’s detention until 18 April 2006. The court considered that the reasons for keeping him in detention were still valid.
21. On 13 April 2006 the District Court extended the applicant’s detention to 18 October 2006.
22. On 21 September 2006, upon the applicant’s request, he was released from detention.
23. Between 5 May and 15 December 2006 the court held 7 hearings.
24. The proceedings are still pending.
25. On 11 October 2005 the applicant lodged a complaint with the Bielsko-Biała Regional Court (Sąd Okręgowy), under section 5 of the Law of 17 June 2004 on complaints about a breach of the right to a trial within a reasonable time (Ustawa o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki) (“the 2004 Act”).
26. The applicant sought a ruling declaring that the length of the proceedings from 18 November 2004, that is, the date of delivery of the first-instance judgment, to 21 September 2005 (the referral of the case to the court of second instance) had been excessive.
27. On 29 November 2005 the Regional Court dismissed his complaint. The court held that there were no delays for which the District Court could be held responsible. It referred to the complexity of the case, the time needed for the preparation of written grounds for the judgment, which comprised 118 pages, and problems with serving one of the defendants with a notice concerning his appeal.
28. On 21 June 2006 the applicant lodged a new complaint about a breach of the right to have his case heard within a reasonable time. He sought a ruling declaring that the length of the proceedings after April 2006 had been excessive.
29. On 18 September 2006 the Bielsko-Biala Regional Court rejected his complaint, relying on section 14 of the 2004 Act (under this provision a fresh length complaint in the same proceedings cannot be lodged earlier than 12 months from the date on which a court has given a decision concerning the first length complaint).
30. The relevant domestic law and practice concerning the imposition of detention on remand (aresztowanie tymczasowe), the grounds for its extension, release from detention and rules governing other “preventive measures” (środki zapobiegawcze) are stated in the Court’s judgments in the cases of Gołek v. Poland, no. 31330/02, §§ 27-33, 25 April 2006, and Celejewski v. Poland, no. 17584/04, §§ 22-23, 4 August 2006.
31. The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings are stated in the Court’s decisions in the cases of Charzyński v. Poland no. 15212/03 (dec.), §§ 12-23, ECHR 2005-V, and Ratajczyk v. Poland no. 11215/02 (dec.), ECHR 2005-VIII.
As regards the above-mentioned section 14 of the 2004 Act (paragraph 29), it reads, in so far as relevant, as follows:
“The applicant may lodge a new length complaint in the same proceedings not earlier than after 12 months ... from the date on which a court gave a decision referred to in section12.”
VIOLATED_ARTICLES: 5


ITEMID: 001-75701
LANGUAGEISOCODE: ENG
RESPONDENT: FIN
BRANCH: ADMISSIBILITY
DATE: 2006
DOCNAME: PIRINEN v. FINLAND
IMPORTANCE: 4
CONCLUSION: Inadmissible
JUDGES: Nicolas Bratza
TEXT: The applicant, Ms Arja Tuulikki Pirinen, is a Finnish national who was born in 1946 and lives in Palojoki. She is represented before the Court by Mr Jarmo Kinnunen, a lawyer practising in Espoo. The Finnish Government (“the Government”) are represented by their Agent, Mr Arto Kosonen of the Ministry for Foreign Affairs.
The facts of the case, as submitted by the parties and as they appear from the documents, may be summarised as follows.
On 30 March 1994 the Municipal Pensions Board (kuntien eläkelautakunta, kommunernas pensionsnämnd) dismissed the applicant’s application for a disability pension from 1 January 1994.
On 30 March 1995 the Supreme Administrative Court (korkein hallinto-oikeus, högsta förvaltningsdomstolen) quashed the decision and remitted the case for fresh examination.
On 18 April 1995 the Local Government Pensions Institution (kuntien eläkevakuutus, kommunernas pensionsförsäkring) issued a new decision granting the applicant a disability pension from 1 February 1995 based on her inability to work since 11 January 1995, i.e. it did not grant her a pension for the period 1 January 1994 to 31 January 1995.
The applicant appealed to the Insurance Court (vakuutusoikeus, försäkringsdomstolen), which upheld the decision on 7 November 1996.
On 13 December 1996 the applicant applied again for a disability pension from 1 January 1994 to 31 January 1995. On 16 December 1996 the Local Government Pensions Institution upheld its previous provisional decision of 5 January 1996, according to which the applicant was granted a disability pension only from 1 February 1995.
The applicant appealed to the Municipal Pensions Board, maintaining that she had been unfit to work from 26 November 1993 and requesting a disability pension from 1 January 1994 with interest. She relied on a medical doctor’s statement of 22 March 1997 (according to which she had been unfit to work from 26 November 1993) and an ENMG-report of 3 March 1997. The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 14 May 1997 the Municipal Pensions Board dismissed the appeal, maintaining that the applicant’s working capacity prior to 11 January 1995 had not been reduced to an extent entitling her to a disability pension.
The applicant appealed further to the Insurance Court, repeating her contention about the date of her inability to work and appending, inter alia, a medical doctor’s statement of 20 August 1997 (in which she was regarded as unfit to work from 26 November 1993, and which, inter alia, described her finger problems). The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 26 February 1998 the Insurance Court dismissed the appeal, giving the following reasons:
“The reasons are mentioned in the Municipal Pensions Board’s decision. The presented evidence doest not warrant a different conclusion as regards the assessment of [the applicant’s] capacity for work.”
On 22 December 1999 the applicant applied again for a disability pension from 1 January 1994 maintaining her unfitness to work from 26 November 1993. She appended a medical doctor’s report of 14-15 December 1999. On 14 February 2000 the Local Government Pensions Institution, having examined the application in the light of the fresh medical report, dismissed it, maintaining that there was no new evidence which justified any different conclusion as regards the date of her incapacity to work.
The applicant appealed to the Municipal Pensions Board, repeating her previous requests and claiming interest, reimbursement of her appeal costs and an oral hearing and also relying on Article 6 of the Convention. She identified herself and two medical doctors (K. and L., or alternatively H.) as witnesses and specified the topics for their proposed testimony. She relied on two medical doctors’ statements of 27 March 2000 and 26-30 June 2000 respectively, a copy of a scientific article and two copies of a doctoral thesis. The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 27 September 2000 the Municipal Pensions Board dismissed the appeal. It held:
“On 18 April 1995 the Local Government Pensions Institution found that your working capacity has been reduced to an extent entitling you to a disability pension from 11 January 1995. Based on the newly presented medical evidence your disability to work cannot be regarded as having begun earlier than 11 May 1995. Your request for a disability pension from 1 January 1994 with interest has consequently been dismissed.
As regards an oral hearing, the Municipal Pensions Board finds, based on the presented medical and other evidence, that it is not necessary to hold one.”
The applicant appealed further to the Insurance Court claiming a disability pension from 1 January 1994 with interest, reimbursement of her appeal costs and an oral hearing. She complained that the Municipal Pensions Board had taken into account the medical doctor’s statement of 27 March 2000 although she had expressly stated in her observations in reply that she would not submit the statement in question. She complained that the Municipal Pensions Board had apparently invited the statement of its own motion and that she had not been given an opportunity to present her observations on that statement. She also complained about the allegedly inadequate reasoning of the Municipal Pensions Board, in particular as regarded the problem with her fingers, so-called limited joint mobility. She further pointed out that there had been a typing error as regards the date of her disability to work. She proposed herself and two medical doctors (K. and L.) as witnesses for an oral hearing and specified that she would testify about her illnesses and inability to work from 1993 or 1994 and the effect of her finger problems on her working capacity, and that the doctors were to be heard concerning the date of the applicant’s incapacity to work and, in particular, the effects of her finger problems.
The Insurance Court received medical doctors’ statements of 2 October 1998, 12 April 1999, 28 February 2001 and 25 January 2002 respectively. The Local Government Pensions Institution submitted its observations and the applicant submitted her observations in reply. On 30 May 2002 the court dismissed the appeal without an oral hearing. It reasoned, inter alia:
“Based on the available documents, [the medical doctor’s] statement of 27 March 2000 arrived at the Municipal Pensions Board from the Local Government Pensions Institution on 15 June 2000 together with the applicant’s appeal. Consequently, the Municipal Pensions Board did not invite the statement in question and has therefore not acted erroneously as claimed by the applicant.”
As regards the requested oral hearing it reasoned:
“... Proceedings before the Insurance Court are normally in writing. The Insurance Court must hold an oral hearing if requested by a private party. A case may however be examined without an oral hearing if ... it is manifestly unnecessary due to the nature of the matter or other reasons. If a party requests an oral hearing he or she must indicate the reasons why it would be necessary and what kind of evidence he or she would present at the hearing. The lack of necessity for an oral hearing is assessed on the basis of these grounds and a hearing may be dispensed with if it is highly likely that it would not be useful. An oral hearing concerning subjective medical hardships is usually unnecessary provided that there is proper and adequate written medical evidence at hand.
The case concerns the question whether [the applicant] was ... unfit to work before January 1995. The same issue has been examined in written proceedings before. The Insurance Court finds that [the applicant’s] subjective views have already been adequately established in the prior examinations, and that hearing her for this reason is therefore unnecessary, taking into account in particular the lapse of time.
It appears from the documents that ... K. has personally attended to [the applicant] from 29 January 1997. ... L. met [the applicant] for the first time on 30 March 1999. The heading of L.’s medical statement of 12 April 1999 reads: ‘A specialist’s statement and summary for the Insurance Court, based on documents and one meeting with the patient.’ Both medical doctors’ opinions are therefore based on what [the applicant] had told them and on an assessment of documents, which means that they cannot give a valuation based on their personal examination about the applicant’s state of health at the relevant time. The Insurance Court has apparently had at its disposal similar documentary evidence as they did. In these circumstances written evidence is regarded as sufficient. There is a medical doctor in the composition of the Insurance Court, which guarantees sufficient expertise on medical questions.
The Insurance Court finds that the hearing of K. and L. about their conclusions concerning [the applicant’s] working capacity based on written material is unnecessary, taking into account the Insurance Court’s composition and the fact that their observations are apparent from their written statements. ...”
As regards the subject-matter of the appeal, the court held:
“The reasons are mentioned in the Municipal Pensions Board’s decision. The Insurance Court however corrects the date of 11 May 1995 to 11 January 1995. The presented new evidence does not give rise to different conclusions about the applicant’s working capacity. In addition, the Insurance Court notes the following: In the previous proceedings in the matter, which have taken place closer in time to the disputed events, the alleged finger problem has not been raised in the pension applications, appeals or other documents, and its importance to the applicant’s working capacity has not been identified as significant in the previous medical doctors’ statements. The newly presented evidence ... does not warrant a conclusion that the applicant was unfit to work during the time mentioned in the application either.”
At the time of the first two sets of proceedings the procedure in the Municipal Pensions Board and Insurance Court was written. When there were exceptional reasons, the court could however decide to hold an oral hearing. As to the third set of proceedings, the Municipal Pensions Board and the Insurance Court were under a Convention obligation to hold a public hearing. If not otherwise provided by an Act, the Administrative Judicial Procedure Act (hallintolainkäyttölaki, förvaltningsprocesslagen; Act no. 586/1996) applies to proceedings before the Municipal Pensions Board and the Insurance Court. They must hold an oral hearing when necessary for the purposes of establishing the facts of the case. The parties, witnesses and experts may be heard and other evidence received in an oral hearing. The Insurance Court must hold an oral hearing if a private party so requests, unless a hearing is manifestly unnecessary in view of the nature of the matter or for another reason (sections 37 and 38).
The compositions of the Municipal Pensions Board and the Insurance Court include a medical doctor in cases where medical assessment is necessary (section 7 of the then Act on Municipal Pensions (kunnallisten viranhaltijain ja työntekijäin eläkelaki, lagen om pension för kommunala tjänsteinnehavare och arbetstagare) and section 5 of the then Insurance Court Act).
Everyone is entitled to have his or her case examined before a public authority without undue delay (section 21 of the Constitution of Finland (perustuslaki, grundlag; Act no. 731/1999). A decision must be reasoned (section 21(2) of the Constitution of Finland (Suomen perustuslaki, Finlands grundlag; 731/1999). At the relevant time Chapter 24, Article 4 (165/1998) of the Code of Judicial Procedure (oikeudenkäymiskaari, rättegångsbalken) provided that a judgment must be reasoned, indicating the facts and the legal argumentation on which it was based and the grounds which have led the court to hold a disputed issue established or unsubstantiated.


ITEMID: 001-93878
LANGUAGEISOCODE: ENG
RESPONDENT: RUS
BRANCH: CHAMBER
DATE: 2009
DOCNAME: CASE OF SVETLANA ORLOVA v. RUSSIA
IMPORTANCE: 2
CONCLUSION: Remainder inadmissible;Violation of Art. 6-1;Non-pecuniary damage - award
JUDGES: Anatoly Kovler;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens
TEXT: 4. The applicant was born in 1975 and lives in Maykop, Republic of Adygeya.
5. The applicant worked in the Supreme Court of the Republic of Adygeya (“the Supreme Court of the RA”) as a consultant. While she was on maternity leave her position was converted to that of assistant to the President of the Supreme Court of the RA. On her return the applicant was offered various posts, but not the newly created position of assistant to the President. She refused those offers and was dismissed.
6. On 17 July 2001 the applicant lodged a court action against the Supreme Court of the RA with the Maykop Town Court of the Republic of Adygeya (“the Town Court”). She requested the Town Court to reinstate her to her previous position, recover unpaid salary and award compensation for non-pecuniary damage. In the course of the proceedings the applicant amended her claims.
7. On 2 August 2001 the court fixed the first hearing for 6 August 2001. However, on that date the proceedings were postponed until 20 August 2001 because the applicant and her child were sick.
8. On 20 August 2001 the applicant requested the Town Court to postpone the examination of the case until her request to have the case referred to a different court had been examined by a higher court. She also objected to one of the judges sitting in the case.
9. On 20 August 2001 the Town Court dismissed her request and the objection to the judge and rejected her claims as unsubstantiated.
10. On 18 September 2001 the Supreme Court of the RA upheld that judgment.
11. On 25 November 2002 the Supreme Court of the Russian Federation (“the Supreme Court”), following a request for supervisory review by the Deputy Prosecutor General of Russia, found that the lower courts had erroneously interpreted the substantive law. On those grounds it quashed the judgment of 20 August 2001, as upheld on 18 September 2001, and remitted the case to the Town Court for a fresh examination.
12. On 11 February 2003 the Town Court fixed the hearing for 17 February 2003. However, on that date the proceedings were postponed, at the applicant’s request, until the Supreme Court had examined her request to have the case referred to a different court.
13. On 4 March 2003 the Supreme Court replied to the applicant that there were no grounds to refer her case to a different court.
14. On 16 April 2003 the Town Court, after a fresh examination, found that the applicant’s dismissal had been unlawful, ordered the Supreme Court of the RA to reinstate the applicant to her position, pay her salary arrears and compensation for non-pecuniary damage. The Supreme Court of the RA appealed against the judgment of 16 April 2003.
15. On 5 May 2003 the applicant requested the Supreme Court to refer her case to a different appeal court on the ground that the judges of the Supreme Court of the RA should not examine an appeal lodged by the Supreme Court of the RA. That would amount to a violation of her right to an independent and impartial tribunal. On the same date the applicant lodged an objection to all the judges of the Supreme Court of the RA and requested that the appeal not be examined until the Supreme Court had replied.
16. However, on 23 May 2003 the Supreme Court of the RA heard the case on appeal and found, in particular, that the Town Court had not properly established the facts of the case. It quashed the judgment of 16 April 2003 and remitted the case to the Town Court for a fresh examination.
17. On 25 June 2003 the Supreme Court informed the applicant that her request that the appeal be heard by a different appeal court could not be examined as the Supreme Court of the RA had already held an appeal hearing, on 23 May 2003.
18. On 2 July 2003 the Town Court, after a fresh examination, dismissed the applicant’s claims as unsubstantiated. The applicant appealed.
19. On 14 July 2003 the applicant requested the Supreme Court of the Russian Federation to refer her appeal against the judgment of 2 July 2003 to a different appeal court in order to have her case heard by an impartial and independent tribunal. She requested the Supreme Court to order the Supreme Court of the RA to postpone the appeal proceedings until its decision on her request.
20. On 8 August 2003 the Supreme Court of the RA upheld the judgment of 2 July 2003.
21. On 19 September 2003 the Supreme Court informed the applicant that her request for her appeal to be referred to a different court could not be examined, as the Supreme Court of the RA had already examined her appeal, on 8 August 2003. It further noted that it was open for her to contest the decisions adopted in her case by lodging an application for supervisory review of those decisions.
22. In 2003 and 2004 the applicant attempted to obtain the re-opening of the proceedings by way of supervisory review. However, the Supreme Court of the RA and the Supreme Court of the Russian Federation either refused to refer the case to the supervisory review court for examination on the merits or refused to examine her applications on procedural grounds.
23. On 21 September 2004 the applicant again applied for the re-opening of the proceedings. On 7 September 2005 a judge of the Supreme Court of the Russian Federation referred the case to the Civil Chamber of the Supreme Court of the Russian Federation for examination on the merits.
24. On 7 October 2005 the Supreme Court of the Russian Federation, acting by way of supervisory review, found that there had been serious procedural breaches in the examination of the applicant’s case. In particular, it found that the Supreme Court of the RA, who was a defendant in the case, had been directly interested in the outcome of the proceedings and thus there were doubts as to its objectiveness and impartiality. The Supreme Court of the RA was also a superior court to the Town Court and could therefore give instructions to the Town Court. In such circumstances, the case should have been referred to a different court. The Supreme Court pointed out that on numerous occasions the applicant had lodged objections to judges of the Town Court and of the Supreme Court of the RA and had requested to have her case referred to a different court. All her requests had been dismissed.
The Supreme Court concluded that the judgment of 2 July 2003, as upheld on 8 August 2003, was unlawful and had to be quashed. It further held that the case had to be examined anew by a court situated in a different region and referred the case to the Sovetskiy District Court of Krasnodar (“the District Court”).
25. The District Court fixed the first hearing on 25 January 2006. However, on that date the proceedings were adjourned because the defendant did not attend the hearing.
26. In February 2006 the defendant made several requests to the applicant’s new employers concerning the periods of her employment with them and positions occupied.
27. On 1 March 2006 the District Court examined the applicant’s claim and found that she had abused her rights when she had refused to accept the positions offered to her in the Supreme Court of RA, and dismissed her claims.
28. On 4 April 2006 the Krasnodar Regional Court (“the Regional Court”) upheld that judgment.
29. On 17 October 2007 the Presidium of the Regional Court examined an application by the Deputy Prosecutor General of the Russian Federation for supervisory review of the decisions adopted in the applicant’s case. The Presidium held that it was the applicant’s right to refuse positions with a lower salary and that it could not be considered an abuse of rights. It also pointed out that the dismissal on an employer’s initiative of women with children under three years old was forbidden by Article 170 of the Labour Code (see “Relevant Domestic Law” below, § 34), unless the enterprise had been fully liquidated. Since the Supreme Court of the RA had not been liquidated, the dismissal of the applicant, who had a small child, had been unlawful and unacceptable.
The Presidium quashed the judgment of 1 March 2006, as upheld on 4 April 2006, and remitted the case to the District Court for a fresh examination.
30. On 7 December 2007, after a fresh examination, the District Court dismissed the applicant’s claim in the part concerning her reinstatement. It granted her claim in the part relating to compensation for pecuniary and non-pecuniary damage.
31. On 12 February 2008 the Regional Court examined appeals by the applicant and the prosecutor against the judgment of 7 December 2007, found that the judgment was unlawful and quashed it. The court held that since the applicant’s claims for compensation for pecuniary and non-pecuniary damage were closely linked with her claim for reinstatement, the relevant circumstances could not be established by the appeal court and it was necessary to refer the case to the District Court for a fresh examination.
32. On 6 May 2008 the District Court examined the case anew and found that the applicant’s dismissal had been unlawful. It ordered that the applicant be reinstated to her position and recovered in her favour 1,101,000 Russian roubles (RUB) in respect of unpaid salary. It dismissed her claims for compensation for non-pecuniary damage. The judgment acquired legal force on 19 May 2008.
33. By a decision of 13 May 2008 the District Court corrected an error in the judgment of 6 May 2008 and held that the defendant had to pay the applicant RUB 791,028 in salary arrears. That decision became final on 26 May 2008.
34. Russian Labour Code, which was in force until 1 February 2002, provided in Article 170 that the dismissal on an employer’s initiative of women with children under three years old was forbidden, unless the enterprise had been fully liquidated.
VIOLATED_ARTICLES: 6
VIOLATED_PARAGRAPHS: 6-1


ITEMID: 001-115920
LANGUAGEISOCODE: ENG
RESPONDENT: SVK
BRANCH: ADMISSIBILITY
DATE: 2012
DOCNAME: HUDECOVÁ AND OTHERS v. SLOVAKIA
IMPORTANCE: 3
CONCLUSION: Inadmissible
JUDGES: Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra;Nona Tsotsoria
TEXT: 1. The applicants are seven Slovak nationals who live in Zemianske Kostoľany. Their further particulars are set out in the appendix. They were represented by Mr J. Sedliak, a lawyer practising in Prievidza. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
2. The facts of the case, as submitted by the parties, may be summarised as follows.
3. The applicants were elected as members of the Zemianske Kostoľany Municipal Council for a four-year period from 1998 to 2002. The mayor prevented them from carrying out their functions and stopped paying remuneration to them for the period from 1 January 2001 to 16 December 2002. The applicants and another individual sued the municipality for unpaid remuneration totalling the equivalent of 3,591 euros (EUR).
4. As the municipality paid EUR 2,825 to them, the claimants decided to withdraw their claim in respect of that sum on 19 September 2003.
5. On 30 January 2007 the Prievidza District Court accepted in part the applicants’ claims for remuneration, to which they considered themselves entitled as members of the municipal council. The sums awarded to the applicants ranged between EUR 98 and EUR 137, plus default interest amounting to 15.5% per year as from 11 October 2002 in respect of half of the sum awarded to each applicant, and 13% per year as from 11 January 2003 in respect of the remainder. The District Court discontinued the proceedings, at the claimants’ request, in respect of the sum the municipality had already paid.
6. Both parties appealed. One applicant claimed an additional EUR 78 and three other applicants the equivalent of EUR 0.07 each. The applicants also challenged the first-instance court’s decision on costs.
7. On 9 October 2007 the Trenčín Regional Court amended the first-instance judgment by dismissing the claimants’ claims. It held that the District Court had erred in interpreting the law. During the relevant period the applicants had not carried out their functions as members of the municipal council. They were not, therefore, entitled to remuneration for such activities, irrespective of why the situation had arisen. The judgment stated that the applicants were employed or retired. Their posts as municipal councillors related to public functions which could not be regarded as employment. Any remuneration would be due to the applicants only if they had carried out those functions. The decision to discontinue the proceedings in respect of the sum which the defendant had paid remained unaffected.
8. The Regional Court further amended the first-instance court’s judgment by ordering the defendant to pay the applicants’ legal costs in respect of the District Court proceedings. It also ordered each of the claimants to pay the equivalent of approximately EUR 2 in respect of costs advanced by the State. The Regional Court’s judgment became final on 2 November 2007.
9. On 3 December 2007 the applicants lodged an appeal on points of law under Article 238 § 1 of the Code of Civil Procedure. They argued that the Regional Court had committed errors of law in determining their claims.
10. On 21 December 2007 they also lodged a constitutional complaint. They alleged that the Regional Court had breached their constitutional right to judicial protection. In their complaint the applicants mentioned that they had lodged an appeal on points of law.
11. On 13 March 2008 the Constitutional Court rejected the complaint. The decision stated that the applicants had at their disposal a remedy before the ordinary courts, namely an appeal on points of law under Article 238 § 1 of the Code of Civil Procedure. The court dealing with such an appeal had jurisdiction to review all the factual and legal aspects of the case. In those circumstances, it was not for the Constitutional Court to hear the appeal.
12. On 25 June 2008 the Supreme Court rejected the applicants’ appeal on points of law as inadmissible. It established that the highest sums claimed by the individual applicants amounted to the equivalent of EUR 137. They were thus smaller than three times the statutory minimum wage (which, at the relevant time, was the equivalent of EUR 185). In such cases, an appeal on points of law was excluded pursuant to Article 238 § 5 of the Code of Civil Procedure. The Supreme Court’s decision was served on the applicants on 13 August 2008.
13. On 10 October 2008 the applicants lodged a second constitutional complaint, directed against the Regional Court’s judgment of 9 October 2007. They alleged a breach of their right to a fair hearing in that the Regional Court had committed errors of law. With reference to the Supreme Court’s decision, they argued that an appeal on points of law had been excluded in their case. The obstacle which resulted in the Constitutional Court rejecting their first complaint had thus been overcome.
14. On 5 February 2009 the Constitutional Court rejected the second complaint as having been lodged outside the statutory time-limit of two months. The decision stated that the applicants should have “linked” their constitutional complaint and the rationale of the Regional Court’s decision to the decision of the Supreme Court even if, as it seemed to be the case, they had accepted the latter’s conclusion. The decision was served on 11 March 2009.
15. Article 238 § 1 allows for an appeal on points of law against a judgment in which the appellate court has amended the first-instance court’s judgment on its merits. However, Article 238 § 5 excludes an appeal on points of law in cases where the appellate court judgment concerns the payment of sums the amount of which does not exceed three times the statutory minimum wage.
16. Under section 20(3), the Constitutional Court is bound by a request from a claimant for proceedings to be started unless the Act expressly provides otherwise.
17. Section 53(3) provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding, the date on which a measure has been notified, or the date on which notice of other interference has been given.
18. In a number of decisions delivered from the second half of 2009 onwards (including, amongst others, nos. I. ÚS 184/09, II. ÚS 237/09, I. ÚS 269/09, and IV. ÚS 49/2010) the Constitutional Court held that, where a claimant lodged an appeal on points of law and, at the same time, a constitutional complaint, the latter remedy was considered admissible only after the determination of the former. Similarly, in decisions no. III. ÚS 114/2010 of 23 March 2010 and no. 290/2011 of 21 June 2011, the Constitutional Court expressed the view that, in cases where the Supreme Court rejected an appeal on points of law as being inadmissible, the statutory time-limit for lodging a constitutional complaint would also be considered to have been complied with in respect of the preceding final decision of the regional court concerned. Reference was made to the Court’s judgment in Zvolský and Zvolská v. the Czech Republic (no. 46129/99, §§ 51, 53 and 54, ECHR 2002IX).