CASE OF CIOBANU v. THE REPUBLIC OF MOLDOVA

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

Ján Šikuta;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in DATE and lives in GPE .

Her late husband , Mr PERSON ( “ the victim ” ) , was a taxi driver and died at work , in a car accident on DATE . He was DATE at the time and the father of a DATE child . The present application is about the circumstances of his death and the investigation carried out by the NORP authorities into those circumstances .

The accident happened at TIME on DATE in an illuminated CARDINAL - way street with CARDINAL lanes in the town of GPE . The speed limit was CARDINAL k.p.h . and a solid line in the centre of the road indicated that no overtaking was allowed . A petrol station was located on one side of the road and there was a short broken line allowing cars to enter the petrol station from the opposite side of the road .

There are CARDINAL versions of the events leading to the accident . The first version is based on the accounts of QUANTITY eyewitnesses . According to them , the applicant ’s husband was driving his Lada ( “ the victim ’s car ” ) along the street and when he was level with the petrol station located on his left , he slowed down , indicated a left turn and then turned to the left . When his car had crossed the line in the centre of the road and was perpendicular to the road in the lane for traffic from the opposite direction , a speeding CARDINAL series ORG car ( “ the grey car ” ) came from behind and hit it in the left side doors . The impact was so powerful that the victim ’s car was lifted spinning up in the air at a height of QUANTITY and was propelled onto a lamp post on the left side of the road . The grey car passed under the victim ’s car and continued on its way for a while before coming to a complete stop .

The second version of the events was that of the grey car driver involved in the accident . He submitted that he had been driving at a speed of CARDINAL k.p.h . and had not overtaken any cars , when suddenly the victim , whose car had been parked on the right - hand side of the road , had started to turn left without looking out or indicating . The grey car driver claimed that he could not have applied his brakes or avoided the impact . He had a passenger in his car who submitted that he had not seen anything as he had been talking on the telephone at that very moment . Neither of the grey car occupants was injured in the accident .

According to measurements made by the police at the scene of the accident , the distance between the CARDINAL cars involved in the accident after their complete stop was QUANTITY . Experts later established that the grey car had hit the victim ’s car at an angle of QUANTITY . There were no skid marks , meaning that the grey car driver did not apply his brakes before impact . The victim died on the spot from multiple lethal injuries .

The police carried out an immediate examination of the scene of the accident and the grey car driver was taken to hospital , where he tested negative for the presence of alcohol in his blood . A criminal investigation was initiated DATE .

One of the witnesses questioned during the criminal investigation was a taxi driver , C. , who had been driving along the same street and in the same direction as the victim . He submitted that the victim ’s car had been further ahead but within sight . C. had been driving at a speed of CARDINAL ORG . when a speeding grey car had overtaken him in spite of the solid line on the centre of the road . He estimated that the grey car had been moving at a speed of CARDINAL k.p.h . After overtaking his car , the grey car continued to drive in the lane for traffic coming from the opposite direction . C. claimed that he had seen the victim ’s car ahead of him slowing down and indicating a left turn in front of the petrol station . As the victim ’s car was turning left , the speeding grey car , which was still driving in the opposite lane , smashed into its left side .

Another witness was a student , PERSON , who had been at a car wash across the road from the petrol station . He was standing there waiting for a taxi which he had ordered over the telephone and saw the entire scene . He was questioned on DATE and submitted that the victim had been driving along the street before slowing down and indicating a left turn . After turning to the left , he was hit by a speeding grey car which had come from behind him in the lane for traffic coming from the opposite direction . PERSON estimated that the grey car driver had been travelling at CARDINAL k.p.h . and had not applied his brakes before the impact .

On DATE an experiment was conducted by the prosecutor in charge of the case with the participation of the grey car driver and witness C. The applicant was not informed about it . The experiment consisted of measuring the time needed for a car to turn left at the place where the accident had happened and in the manner indicated by C. As a result of the experiment , it was established that the victim had needed TIME to make the manoeuvre of turning left .

On DATE the prosecutor in charge of the investigation granted the grey car driver ’s request to return his car to him . It had been held as a piece of evidence until DATE .

On DATE the applicant requested that a technical forensic investigation be conducted in order to determine , inter alia , the speed of the grey car , judging by the damage to both vehicles ; the distance between the CARDINAL cars when the victim ’s car had started its manoeuvre ; and whether the grey car could have avoided the impact by braking , had its driver been keeping to the legal speed limit . The request was partly granted by the prosecutor on DATE and an expert from ORG was asked to reply only to the question whether the grey car could have avoided the impact if it had been moving at CARDINAL ORG . and on the basis that the victim ’s car had needed TIME to turn left . The expert was not provided with other information . The applicant was notified about the decision to conduct the forensic investigation on DATE .

In the meantime , on DATE , an expert from ORG issued a report in which he had taken as the basis of his investigation the fact that the grey car had been moving at CARDINAL k.p.h . when the victim ’s car had turned left . The report indicated that when the victim ’s car had started its manoeuvre to the left , the grey car could have been QUANTITY behind it . It did not disclose the origin of the information concerning the distance of QUANTITY , nor did it contain any suggestion as to how the expert had come up with that figure . The report also indicated that the braking distance of a ORG of the kind involved in the accident moving at a speed of CARDINAL ORG . was between thirty - one and QUANTITY . On the basis of the above figures , noting that the braking distance of the grey car was longer than the distance of QUANTITY between the cars , the report concluded that the grey car could not have avoided the impact by braking .

On DATE the prosecutor in charge of the investigation ordered a new technical forensic investigation to determine the position of both vehicles involved in the accident in relation to each other and the road .

On DATE another expert from ORG issued a report in which he concluded that the grey car had hit the left side of the victim ’s car at an angle of QUANTITY . The expert could not establish the position of the vehicles in relation to the road at the time of the impact since he had not been provided with sufficient information .

On DATE the prosecutor in charge of the case ordered a third technical forensic investigation to determine the speed of the grey car , judging by the damage to both vehicles ; the distance between the CARDINAL cars when the victim ’s car had started its manoeuvre ; whether the grey car could have avoided the impact by braking , had it been keeping to the legal speed limit ; and the manner in which both drivers should have behaved had they been respecting the provisions of the traffic code .

On DATE the expert who had issued the first report on DATE , relying again on the facts as submitted by the grey car driver , concluded , inter alia , that there was no way of calculating the grey car ’s speed ; the grey car could not have avoided the impact by braking because its braking distance was longer than the distance between the CARDINAL cars when the victim ’s car had started the manoeuvre ; the distance between the CARDINAL cars when the victim ’s car had turned left could not be determined , but on the basis of previous findings ( see paragraph CARDINAL above ) it could have been around QUANTITY ; and that the grey car should have stopped when the victim ’s car had started its manoeuvre , but had been unable to do so .

On DATE a confrontation was conducted between witnesses C. and the grey car driver . Each of them kept to their initial version of the facts .

On DATE the prosecutor in charge of the case ordered another forensic technical investigation by a commission of experts . The experts were requested to answer whether the grey car driver had had the right to overtake the victim ’s car ; whether before starting his manoeuvre the victim had been entitled to believe that the grey car driver would respect the traffic code rules ; and what the grey car driver should have done when the victim ’s car indicated a left turn and started its manoeuvre .

On DATE the applicant requested that an independent expert of her choice be involved in the commission of experts . She nominated an engineer who was also a university professor and had a PhD in the field of traffic security . However , on DATE the prosecutor rejected the request on the ground that the person proposed by the applicant was not licenced to practise as a judicial expert . It was decided that the person proposed by the applicant should participate in the commission of experts in the capacity of “ specialist ” .

On DATE the expert who had issued the first report on DATE together with another expert issued a forensic investigation report in which they refused to give answers to the first CARDINAL questions because they were of a legal character . In answer to the third question , the experts said that the grey car driver should have reduced his speed . The specialist proposed by the applicant was not informed that a forensic investigation had been carried out .

On DATE ORG decided to discontinue the criminal investigation into the circumstances of PERSON death . The prosecutor considered the testimonies of witnesses C. and PERSON unreliable because they had been contradicted by the findings in the forensic technical reports . On the other hand , the findings in those reports were found to be consistent with the submissions of the grey car driver . Accordingly , the prosecutor accepted the latter ’s version of the facts and concluded that the victim had been responsible for the accident because , having been parked on the right - hand side of the road , he had turned left without looking out and making sure that the manoeuvre was safe . The applicant appealed , arguing , inter alia , that no independent experts of her choice had been involved in the forensic investigations and no confrontation had been carried out between the grey car driver and witness PERSON

On DATE the next level of prosecutor from ORG dismissed the applicant ’s appeal and upheld the decision of ORG Office of DATE . He argued that no independent expert opinion or supplementary confrontations had been necessary because the facts of the accident had been clearly established . The applicant challenged the decision of ORG Office of DATE before the investigating judge , who dismissed her appeal on CARDINAL DATE .


CASE OF HADŽIMEJLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Procedure prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Yonko Grozev

The applicants were born in DATE , DATE and DATE , respectively , and are currently in the Drin social care home ( “ Drin ” ) .

On DATE , at the request of ORG , ORG deprived the applicant of legal capacity . It was established that she had been diagnosed with paranoid schizophrenia and that placement in a social care home would be in her best interest .

On DATE the Visoko Social Work Centre placed the applicant under the guardianship of her sister .

On DATE ORG placed the applicant in Drin in accordance with the social care legislation .

On DATE the applicant lodged a constitutional appeal concerning the lawfulness of her detention .

On DATE ORG ( “ the LAW ” ) held that the applicant ’s deprivation of liberty had not been “ in accordance with a procedure prescribed by law ” within the meaning of LAW as she had been held in psychiatric detention without a decision of the competent civil court . It also found that LAW had been breached because of lack of judicial review of the lawfulness of the applicant ’s detention . ORG ordered ORG to take measures to ensure respect for the applicant ’s rights under LAW and CARDINAL of the LAW . The relevant part of the decision reads :

“ CARDINAL . ORG recalls that it examined the same factual and legal situation in the decision no . ORG CARDINAL [ ... ] . Therefore , instead of a separate legal analysis in this case , it refers to the reasoning set out in that decision ...

As regards LAW of LAW ... ORG concluded that the appellant was placed in the social care home under the social care legislation of GPE and of the [ PERSON ] GPE , which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes . That procedure is regulated in the sections CARDINAL of LAW DATE . Section CARDINAL of that Act prescribes that a mentally ill person released from a hospital , who is incapable of living on his / her own and has no relatives or others who are required by law to care for him / her , shall be placed in a social care home under the social care legislation of ORG . However , in that case , a hospital is under a duty to inform the competent court of such placement immediately ... [ I]t is evident from the case - file that the appellant was detained without a decision of the competent civil court ... thus her initial deprivation of liberty was not in accordance with LAW CARDINAL ... [ T]herefore the court concludes that the deprivation of liberty in the appellant ’s case was unlawful and thus in violation of LAW ) of the LAW .

There has been a violation of LAW ) of the LAW in the present case because the appellant was placed in the social care home under the ORG social care legislation , whereas the compulsory placement of mentally ill persons is regulated by ORG which was not applied in this case . In view of that , her placement was not ‘ lawful’ . There has also been a violation of LAW because the appellant ’s placement and the prolongation of that placement was never examined by the competent court ... ”

On DATE ORG asked ORG to examine the necessity of the applicantʼs placement in Drin in accordance with ORG and the LAW decision of DATE .

On DATE ORG concluded , on the basis of the expert medical report , that the applicantʼs current state of health did not warrant continued confinment in GPE . That decision became final on DATE .

The applicant has not yet been released from Drin .

At the recommendation of ORG in GPE where the applicant was treated for schizophrenia , on DATE the Vareš Social Work Centre placed him in Drin in accordance with the social care legislation . It was established that his illness rendered him incapable of living on his own and that his family circumstances did not allow proper care at home .

On DATE the ORG deprived the applicant of his legal capacity .

On DATE the applicant was placed under the guardianship of GPE , a director of ORG .

On DATE the applicant lodged a constitutional appeal concerning the lawfulness of his detention .

On DATE ORG held that the applicant ’s deprivation of liberty had not been “ in accordance with a procedure prescribed by law ” within the meaning of LAW as he had been held in psychiatric detention without a decision of the competent civil court . It also found that LAW had been breached because of lack of judicial review of the lawfulness of the applicant ’s detention . ORG ordered ORG to take measures to ensure respect for the applicant ’s rights under LAW and CARDINAL of the LAW and awarded him MONEY ( BAM ) . The relevant part of the decision reads :

“ DATE . ORG recalls that it examined the same factual and legal situation in the decision no . ORG CARDINAL [ ... ] . Therefore , instead of a separate legal analysis in this case , it refers to the reasoning set out in that decision ...

As regards LAW of LAW ... ORG concluded that the appellant was placed in the social care home under the social care legislation of GPE and of the [ PERSON ] GPE , which do not regulate the procedure for compulsory admission of mentally ill persons to social care homes . That procedure is regulated in the sections CARDINAL of LAW DATE . Section CARDINAL of that Act prescribes that a mentally ill person released from a hospital , who is incapable to live on his / her own and has no relatives or others who are required by law to care for him / her , shall be placed in a social care home under the social care legislation of ORG . However , in that case , a hospital is under a duty to inform the competent court of such placement immediately ... [ I]t is evident from the case - file that the appellant was detained without a decision of the competent civil court ... thus his initial deprivation of liberty had not been in accordance with LAW DATE .. [T]herefore the court concludes that the deprivation of liberty in the appellant ’s case was unlawful and thus in violation of LAW ) of the LAW .

CARDINAL ... In the above - mentioned decision , ORG noted that the Federal and the Cantonal social care legislation , under which the appellant was placed in a social care home , do not envisage mandatory judicial control of the lawfulness of such placement ...

Turning to the present case , ORG notes that the appellant was placed in the social care home at the recommendation of ORG in GPE ... It was established that he had been diagnosed with ORG , ORG , a condition which requires constant supervision and regular therapy which he can not have at home in view of his family ’s circumstances ( a mother was also deprived of her legal capacity due to mental illness , a father ’s whereabouts are unknown , and his sister is placed under guardianship) ... The court further notes that since DATE , when the appellant was placed in the social care home , ORG revised his placement on CARDINAL occasions , at the recommendation of the relevant Ministry and with the consent of his guardian PERSON However , those revisions were focused on the financial aspect of the appellant ’s placement without any consideration for his health condition and a potential release . The fact that ORG was the only domestic body which ever examined the appellant ’s placement ... raises issues under LAW MONEY ) and CARDINAL of the Convention .

ORG , although under LAW DATE a decision about compulsory admission of mentally ill persons must be made by a court , the appellant ’s case has never been examined by the competent court ...

Accordingly , as regards “ deprivation of liberty ” , the placement in the social care home and the review of the lawfulness of such placement , the court concludes , in view of the facts of the case and the reasons set out in the decision no . ORG CARDINAL of CARDINAL DATE , that there had been a violation of LAW MONEY ) and CARDINAL of the Convention in the present case . ”

On DATE the applicant received BAM CARDINAL awarded to him by ORG .

On DATE ORG concluded , on the basis of the expert medical report , that the applicantʼs current state of health did not warrant continued confinment in Drin .

On DATE the ORG upheld the decision of CARDINAL DATE and it thus became final .

On DATE the Vareš ORG informed ORG that it considered that the applicant ’s continued placement in GPE was in his best interest for reasons of social protection .

NORP The applicant had not yet been released from Drin .

NORP In different intervals in DATE the applicant was treated for schizophrenia at ORG in GPE .

On DATE ORG deprived the applicant of his legal capacity .

On DATE ORG placed him in Drin .

On DATE the applicant was placed under the guardianship of A.B. , his cousin . On DATE he was placed under the guardianship of PERSON , his sister .


CASE OF ÜNSPED PAKET SERVİSİ SAN. VE TİC. A.Ş. v. BULGARIA

Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Just satisfaction reserved (Article 41 - Just satisfaction)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Yonko Grozev

The applicant company runs logistics services . On DATE CARDINAL of the company ’s lorries was stopped for inspection at the NORP customs post . The NORP authorities discovered and seized the following substances from the cabin and trailer : CARDINAL tablets ( with a total value of MONEY ( ORG ) or MONEY ( ORG ) ) ; QUANTITY of white tablets ( with a total value of about EUR CARDINAL ) which included ephedrine hydrochloride ; and , CARDINAL pills which included testosterone enanthate ( with a total value of QUANTITY ) . The lorry was also seized as material evidence . Criminal proceedings were opened against the driver of the lorry .

On DATE the applicant company , as the owner of the lorry , asked ORG to return its vehicle . The prosecutor rejected the request on the grounds that the lorry had to be retained as material evidence until the end of the criminal proceedings ( see paragraph CARDINAL below ) .

On DATE the applicant company again applied to ORG asking that the lorry be returned in accordance with LAW . In particular , the applicant company claimed that : there had been no hidden compartment in the lorry ; the driver had abused his position ; the holding of the lorry was no longer justified as a forensic expert report had already been prepared ; the lorry ’s value ( around LAW ) was over CARDINAL times the value of the drugs and therefore the lorry could not be confiscated under Article CARDINAL § CARDINAL of LAW ( see paragraph CARDINAL below ) ; and , lastly , the company faced significant losses because of the lorry ’s seizure . At the time of this request the case file was no longer with the prosecution service as it had been transferred to the courts , so ORG did not reply to the request .

In the meantime the lorry driver concluded a plea bargain agreement with the prosecutor . The terms of the agreement included a CARDINAL - and - a - DATE prison sentence for the driver and the forfeiture of the lorry .

On DATE the applicant company asked the criminal court competent to approve the plea bargain agreement not to confiscate its lorry . The applicant company emphasised in particular its inability to participate in the criminal proceedings against the driver and to state its position . It further pointed out that as the value of its lorry was CARDINAL times higher than the value of the smuggled goods , according to the relevant national law the vehicle should not be forfeited ( see paragraph CARDINAL below ) .

On DATE ORG confirmed the plea bargain agreement in accordance with LAW ( see paragraph CARDINAL below ) . In the agreement the driver confessed that he was guilty of smuggling under Articles CARDINAL § CARDINAL ( d ) and CARDINAL § CARDINAL of LAW and accepted the forfeiture of the transported drugs and the lorry under LAW and CARDINAL of LAW . The decision was not subject to appeal and became enforceable on DATE .

NORP On DATE the applicant company brought proceedings before ORG ( “ the Office ” ) against the lorry driver , seeking damages . The ORG found that the driver was liable to pay ORG ORG to the applicant company for the damage his actions had caused . However , the applicant company could not collect any of this amount as the lorry driver had no assets at the time .


No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

András Sajó;Egidijus Kūris;Krzysztof Wojtyczek;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in PERSON .

The applicant ’s brother PERSON worked as TIME guard at a bus terminus in GPE . On DATE , at TIME , his clothes caught fire . Drivers at the station raised the alarm and managed to extinguish the fire . PERSON was subsequently taken to hospital . However , because of his serious injuries he died on DATE .

On DATE the GPE district prosecutor discontinued the investigation into the circumstances of PERSON ’s death . During the investigation it was established that PERSON must have either fallen asleep or fainted and that his clothes had caught fire when they came into contact with an electric heater . The prosecutor concluded that it had been an unfortunate accident and that no offence had been committed .

On DATE the applicant appealed . He argued that the prosecution authorities had failed to establish the circumstances of his brother ’s death . He submitted that witnesses had given different versions of the events . In addition it had not been established how J.K ’s clothes could have caught fire and where the electric heater had been placed . He further stressed that PERSON had suffered from serious diabetes and should not have been allowed to work TIME shifts .

On DATE the Chief Inspector of ORG , in reply to the applicant ’s complaint , stated that the investigation into the circumstances of PERSON ’s death had indeed been too long . The officer in charge had already been disciplined .

On DATE the applicant again complained to ORG about delays in the proceedings . Subsequently , on DATE he complained to the GPE appellate prosecutor about the fact that he had not received any reply from ORG .

On DATE the GPE appellate prosecutor confirmed that the proceedings had indeed been too long . He further informed the applicant that ORG had been reproached for not having replied to his complaint in a timely manner .

On DATE the GPE district prosecutor reopened the investigation into the circumstances of PERSON ’s death .

On DATE the applicant complained about the actions taken by the police officers on DATE . He alleged that they had failed to perform their duties , to properly secure the place in which his brother had died and that they had fabricated false evidence in order to direct the prosecution against other persons and obstructed the proceedings .

Following the applicant ’s complaint referred to above , on DATE the GPE district prosecutor decided to sever the charges against the police officers responsible for securing the evidence on DATE of PERSON ’s accident and to deal with them in a separate set of proceedings ( see section B ) .

On DATE the district prosecutor replied to the applicant ’s complaint about the excessive length of the proceedings and found the complaint ill - founded . The prosecutor informed the applicant that prosecutors were independent in their work and it was up to them to make a decision about when the evidence had been collected and at which point the investigation should be closed . The applicant was also informed that the prosecutor in charge had been promoted to ORG office and that a new prosecutor had inherited his cases .

On DATE the proceedings were discontinued because it was found that no offence had been committed .

On DATE the applicant lodged an appeal against this decision .

On DATE the decision of CARDINAL DATE was upheld by FAC .

On DATE the applicant lodged a complaint about actions taken by the police on DATE . Following this complaint the original investigation was severed and it was decided to examine the charges against the police in a separate set of proceedings ( see paragraphs CARDINAL and CARDINAL above ) .

On DATE the applicant complained to the Chief of ORG in GPE about the actions taken by the local police .

On DATE the GPE district prosecutor discontinued the investigation , finding that no offence had been committed . According to the prosecutor ’s findings , on TIME of the accident at TIME of the bus drivers , ORG , heard a man screaming and calling for help . The man ran into the drivers’ room ; his clothes were on fire . ORG extinguished the fire using a shower and called an ambulance and the police . The ambulance arrived first and subsequently , at TIME , the police arrived at the scene . The officers concentrated on helping PERSON They spoke to him about the incident and then he was taken to hospital . The detective , who arrived later , examined the room with the help of the company ’s health and safety inspector , S.S. The prosecutor referred to the applicant ’s arguments that the scene of the accident had not been properly secured ; she stated that since the incident had not resulted in any fatalities , the police officers had not been required to secure the scene in any particular way .

The prosecutor concluded that the police officers had not failed to properly perform their professional duties and that all the relevant procedural rules had been followed .

On DATE the applicant lodged an interlocutory appeal against this decision . He maintained that the detective had arrived at the scene TIME after the accident . In addition , he questioned the fact that the detective had been assisted by ORG , who was an employee of the company .

On DATE ORG allowed the applicant ’s appeal and returned the case to the prosecutor . In particular , it instructed the prosecutor to obtain evidence from FAC and another witness , GPE , and to verify the actions taken by the police in view of the applicable procedures .

On DATE the GPE district prosecutor again discontinued the investigation into the alleged failure of police officers to comply with their duties . The prosecutor had heard evidence from FAC and GPE She repeated the reasons given in the decision of DATE and considered that the police actions had complied with the applicable procedures and that no offence had been committed .

On DATE ORG quashed the decision of DATE and returned the case to the district prosecutor to continue the investigation . He considered that the district prosecutor had failed to comply with the court ’s instructions of CARDINAL DATE and had failed to analyse whether all officers involved , including the one who had taken the call notifying them of the incident and all the officers who had been present at the scene of the accident , had followed the applicable procedures .

On DATE the district prosecutor heard evidence from GPE – one of the police officers who had intervened on DATE in the presence of the applicant . The applicant asked the witness questions but the witness did not remember much of the incident in DATE .

On DATE the district prosecutor discontinued the investigation . In an extensive reasoning of his decision the prosecutor referred to testimonies given by CARDINAL witnesses and to cross - examination of further QUANTITY witnesses , FAC and GPE The prosecutor also relied on the report of the examination of the scene of the accident and on the case file . He concluded that no offence had been committed as regards the alleged breach of professional conduct on the part of the police officers and that there was not enough evidence to substantiate the allegations that the police officers had falsified any evidence .

The CARDINAL policemen , GPE and GPE , who arrived at the scene at TIME and who spoke to the applicant ’s brother , submitted that they had spoken to the victim directly after the incident ; he had been conscious and informed them that he had fallen asleep and when he had woken up his clothes had been already burning .

As regards the applicant ’s allegations that the electric heater had been secured TIME after the arrival of the police officers , the court found that ( although this had not been not confirmed by any of the witnesses ) the heater might have been moved before it was secured because several other persons had been in the room where the accident had happened before the arrival of the police . However , even if it had been moved , there were no grounds to suspect that this had been done in order to deflect suspicion onto any particular person . Here the court again relied on the victim ’s statements that he had caught fire as a result of his own negligence .

The applicant appealed again . He maintained that the prosecutor had failed to properly establish the facts and hear all the necessary evidence . He demanded that witnesses DATE , S.S. and GPE be cross - examined in order to clarify discrepancies between their statements . He also restated that the policemen who had conducted the investigation had failed to follow the relevant procedures , and in particular that the scene of the accident had not been properly secured . He lastly submitted that “ his brother had been blamed for the accident ” whereas in fact the real reason was that he had suffered a diabetic shock .

On DATE ORG upheld the prosecutor ’s findings sufficiently to make a decision on the merits . As regards the applicant ’s request for cross - examination of certain witnesses the court submitted that the request had already been granted in part because FAC and GPE had been cross - examined . As regards the contradictions in the testimonies given by TIME , the court considered that they had been sufficiently cleared up by DATE herself when she had given evidence for the second time and there had been no contradictions between her statements and the remaining evidence , so further examination would only lead to an unnecessary extension of the proceedings . As regards the applicant ’s arguments concerning the failure on the part of the policemen to follow the relevant procedures , the court found that the procedures relied on by the applicant had to be followed only in a case where there was a suspicion that a crime had been committed : in the present case there had been no evidence that any third person might have been involved in PERSON ’s death . The court further held that the same applied to the requirement to secure the scene of the accident ; the applicant ’s brother , who had been interviewed after the accident , admitted that his clothes had caught fire because of his carelessness ( w wyniku nieuwagi ) . This also demonstrated that the suspicion that a crime had been committed had been ill - founded .


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Access to court);Just satisfaction reserved (Article 41 - Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

The applicant was born in DATE and lives in PERSON , GPE . Through the NORP stock market , he purchased CARDINAL NORP Certificates in PERSON , which at the time was identified as the fifth largest private bank in GPE .

By a decision dated DATE ( no . CARDINAL ) , ORG ( Bankalar Düzenleme ve PERSON , hereinafter referred to as “ the Board ” ) decided to transfer the management and control of PERSON to ORG ( Tassarruf Mevduat Sigorta Fonu – hereinafter “ the Fund ” ) , pursuant to section CARDINAL ( CARDINAL ) of LAW ( Law no . DATE ) . In its decision ORG held that the assets of PERSON were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system . Accordingly , PERSON ’s management and control , and the privileges of its shareholders except for dividends , were transferred to the ORG . The ORG also confiscated all properties belonging to PERSON .

On DATE all equities of the bank were removed from its account at ORG and were transferred to the account of the ORG . Subsequently , on DATE the ORG entered into an agreement with the ORG bank , and sold PERSON to the latter for CARDINAL United States dollars ( ORG ) . As a result , on DATE PERSON ’s legal personality was extinguished and it was struck off the commercial register .

On DATE , the main shareholder of PERSON , namely ORG , brought administrative proceedings against ORG ( Bankalar Düzenleme ve Denetleme Kurumu – hereinafter referred to as “ the NORP ” ) before ORG , seeking the annulment of the decision of DATE regarding the transfer of PERSON to the Fund .

ORG found that it lacked jurisdiction , and transferred the case to ORG .

In its submissions before ORG , the plaintiff claimed that its property rights had been violated . It also raised a plea of unconstitutionality under section CARDINAL of LAW . The company further stated that prior to DATE PERSON had never encountered major financial problems . It was pointed out that pursuant to section CARDINAL ( CARDINAL ) of the LAW , a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures . However , no such warning had been given in the instant case . Secondly , ORG had not claimed that PERSON ’s financial situation was so weak that it could not be strengthened even if specific measures were taken . Lastly , the company stated that following the transfer of the bank to the ORG , a ORG composed of the ORG ’s officials had exonerated the former managers of PERSON , holding that they had not been at fault in the incident leading to the bank ’s transfer .

After examining the file , on DATE ORG dismissed the case . It held that the takeover of the bank by the ORG had been in accordance with LAW .

On DATE ORG of ORG decided to quash the decision of DATE . In its judgment , the court held that prior to ordering the transfer of PERSON to the ORG , the ORG should have carried out an objective evaluation of the bank ’s financial situation . The court also concluded that the ORG should first have ordered PERSON to take specific measures in accordance with section CARDINAL ( CARDINAL ) of LAW before applying section CARDINAL ( CARDINAL ) of the LAW .

On DATE a request for rectification lodged by the ORG was refused .

The case was remitted to ORG , which delivered its decision on DATE , upholding the decision of ORG of ORG . It accordingly annulled the ORG ’s decision of DATE ordering the transfer of PERSON to the ORG , holding that the takeover had been illegal . A further appeal and a request for rectification lodged by the ORG were rejected on DATE and DATE respectively .

On DATE PERSON , the main shareholder of PERSON , brought administrative proceedings against ORG before ORG , seeking the annulment of the agreement to sell PERSON to ORG .

Given that the transfer of PERSON to the ORG had been found to be illegal by ORG of ORG , on DATE ORG annulled the agreement entered into by the ORG and ORG on DATE . An appeal and a request for rectification lodged by the ORG were rejected on DATE and DATE respectively .

Following the transfer of PERSON to the ORG , the applicant applied to ORG and claimed compensation . He did not receive any reply .

Subsequently , on DATE , the applicant brought compensation proceedings against the ORG before ORG . He argued that he had lost his shares in PERSON as a result of its transfer to the ORG , and requested the annulment of the ORG ’s implied rejection of his compensation claim .

On DATE ORG dismissed the applicant ’s case . On the basis of a previous judgment it had rendered on DATE ( see paragraph CARDINAL above ) , the court found that the takeover of the bank by the Fund had been in accordance with section QUANTITY of LAW .

The applicant lodged an appeal .

On DATE ORG of ORG decided to quash the judgment . It indicated that the previous judgment dated DATE , which had constituted the basis of the latter , had been quashed on DATE ( see paragraph CARDINAL above ) .

The ORG ’s rectification request was rejected on DATE .

On DATE ORG held that it lacked jurisdiction ratione materiae , as the applicant ’s case merely concerned an implied rejection by ORG , which should be assessed by ORG .

On DATE ORG dismissed the case as out of time . The court held that the applicant should have initiated proceedings within DATE following DATE , the date on which ORG ’s equities had been transferred to the ORG ’s account at ORG ( see paragraph CARDINAL above ) .

ORG upheld the first - instance court ’s judgment on DATE .

Following the annulment of the decision regarding the transfer of PERSON to the ORG by the domestic courts ( see paragraphs CARDINAL - CARDINAL above ) , on an unspecified date in DATE the applicant initiated another set of administrative proceedings . Relying on the restitutio in integrum principle , he claimed that the ORG should enforce the above - mentioned judgment of ORG , and that his rights as a shareholder of PERSON should be reinstated .

On DATE , after indicating the administration ’s obligation to execute judgments which are enforceable , ORG held that the enforcement of ORG judgment in the instant case was legally impossible as , following its sale to ORG , PERSON had been struck off the commercial register .

On DATE ORG upheld that judgment . The court indicated that the execution of the judgment dated DATE could be secured by the return of the supervisory and executive rights to PERSON ’s shareholders , and did not require the restitution of the actual shares . It maintained that even if that was the case , the judgment could not be executed , as PERSON ’s shares had ceased to exist as a result of the loss of its legal personality following its merger with ORG .

ORG rejected the applicant ’s request for rectification of the judgment on DATE .

Following the annulment of the agreement to sell PERSON to ORG ( see paragraphs CARDINAL above ) , on DATE the applicant applied to the Fund for compensation for the loss of his shares resulting from the bank ’s unlawful sale to ORG . The ORG rejected that request on DATE .

On an unspecified date in DATE , the applicant accordingly brought a third set of proceedings against the ORG , claiming compensation for his lost shares on the basis of the annulment of PERSON ’s sale to ORG .

On DATE ORG dismissed the case as out of time , indicating that the DATE time - limit for the initiation of administrative proceedings had started running on DATE , the date on which ORG ’s equities had been transferred to the ORG ’s account at ORG .

The judgment of the first - instance court was upheld by ORG on DATE . The decision is final under national law .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Prohibition of torture;Degrading treatment)

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

The applicants complained of the inadequate conditions of their detention . Some applicants also raised other complaints under the provisions of the Convention .