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

Dmitry Dedov;Erik Møse;Julia Laffranque;Linos-Alexandre Sicilianos;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in PERSON . She is the mother of Mr Muslim PERSON , who was born in DATE .

At the material time the applicant and her family , including Mr NORP Saydulkhanov , lived in GPE , GPE . ORG were located on the roads leading to and from the settlement which was situated at high altitude . Since DATE Mr Muslim PERSON worked as a policeman at the LOC district department of the interior ( “ the LOC ) providing security in the building of the GPE district department of ORG ( ORG ) . The applicant ’s husband was the head of ORG .

According to the applicant , on an unspecified date in DATE Mr Muslim PERSON was abducted by a group of servicemen from the ‘ Vostok’ battalion of the NORP federal forces which was staffed by ethnic NORP under the command of Mr PERSON . The applicant ’s son was apprehended on the suspicion of membership in illegal armed groups and released on the following day upon payment of ransom .

On or around CARDINAL or DATE a group of men in camouflage uniforms had arrived at ORG building and asked the on - duty colleagues of Mr Muslim Saydulkhanov , Mr TIME and Mr. PERSON . , to show them their identity documents saying that they were from the GPE ’s battalion and were checking the posts . The men were looking for PERSON Muslim Saydulkhanov .

At TIME on DATE a grey UAZ vehicle with CARDINAL NORP armed men in camouflage uniforms arrived at ORG . The men asked the on - duty servicemen Mr TIME and Mr. PERSON . at what time employees of the fund came to work . When the on - duty officers asked them to show their identity documents , the men refused and said that they were checking the posts .

On DATE Mr Muslim PERSON was at work at ORG . He was supposed to be on the overnight duty until TIME of DATE . At TIME he went home to have dinner . At TIME he left home with his service gun to return to work and disappeared on the way to ORG .

In TIME of DATE the applicant ’s husband went to work and found out that his son was missing . He immediately started searching for him . At TIME the applicant was informed by the head of the ORG district administration Mr PERSON that Mr Muslim PERSON had allegedly been detained at the NORP military commander ’s office where he had been taken in TIME of CARDINAL DATE for an identity check .

NORP On or around DATE the applicant and her husband went to PERSON , GPE , to visit the head of the ‘ Vostok’ battalion , Mr PERSON . The latter promised to assist them in the search for their son in exchange for MONEY ( ORG ) . The applicant explained to him that they did not have the required amount .

In DATE unidentified officers from ORG who were working there on mission from LOC in GPE provided the applicant with information about her son ’s abduction . According to the officers , on DATE servicemen from ‘ Vostok’ battalion in an ORG minivan ( ‘ ORG ) had allegedly arrested Mr Muslim PERSON on the street and taken him to the military commander ’s office where he had been detained between CARDINAL and DATE . CARDINAL officers from the criminal search division of ORG , PERSON . and PERSON , had allegedly participated in the arrest .

At some point in DATE an unidentified serviceman from ‘ Vostok’ battalion visited the applicant ’s fellow villager PERSON and told her that he had been detained in a basement in PERSON together with Mr NORP Saydulkhanov who had been arrested on DATE on the way to work by servicemen of the ‘ Vostok’ battalion .

There has been no news of Mr Muslim Saydulkhanov ever since .

The Government submitted a copy of “ the entire contents of criminal case - file no . DATE ” into the abduction Mr Muslim Saydulkhanov on CARDINAL pages . The information submitted may be summarised as follows .

On DATE the applicant complained about her son ’s disappearance to the FAC department of the interior ( the Vedeno ROVD ) stating that her son “ left for work but never arrived there ” .

On DATE the ORG refused to initiate a criminal investigation into the alleged abduction .

On DATE the supervising prosecutor from the GPE district prosecutor ’s office overruled the decision of DATE as unlawful and ordered that the district prosecutor ’s office initiate an investigation into the events under LAW ( abduction ) . The criminal case file was given the number DATE . On DATE the applicant was informed thereof .

On DATE the applicant was granted victim status in the criminal case and questioned ( see paragraph CARDINAL below ) .

On DATE the investigation of the criminal case was suspended for failure to identify the perpetrators .

On DATE the supervising prosecutor overruled the decision to suspend the investigation as unlawful and premature and ordered that it be resumed and a number of investigative steps taken . In particular , he pointed out that the investigators had not taken such basic steps as questioning of a number of witnesses including relatives and neighbours of the disappeared , crime scene examination , and forwarding information requests to various law enforcement agencies concerning Mr Muslim Saydulkhanov ’s possible arrest by their agents .

On DATE the supervising prosecutor again overruled the decision to suspend the investigation as unlawful and ordered that it be resumed and a number of investigative steps taken .

On DATE the investigators forwarded information requests to various law enforcement agencies asking for information on possible whereabouts of Mr Muslim Saydulkhanov and that of his service gun . No replies in the positive were received .

On DATE the investigation of the criminal case was again suspended for failure to identify the perpetrators . The applicant was informed thereof .

On DATE the applicant requested that the investigators provided her with an update on the progress of the proceedings , allowed to access the case file and resumed the investigation .

On DATE the investigators replied that it was impossible to resume the suspended investigation as all possible investigative steps had been already taken .

On DATE the investigation was again resumed . The criminal proceedings are still pending .

On DATE the police questioned the applicant who stated that in the evening of CARDINAL January CARDINAL her son had gone to work and disappeared .

On DATE the police investigators questioned the applicant ’s neighbour PERSON who stated that she had learnt of Mr Muslim PERSON ’s disappearance from her neighbours .

On DATE the investigators questioned Mr Muslim Saydulkhanov ’s supervisor , Mr R.N. , who stated , among other things , that DATE prior to Mr PERSON ’s disappearance CARDINAL or CARDINAL men in camouflage uniforms had arrived at ORG in a light UAZ minivan . They had checked officer ORG identity documents introducing themselves as belonging to “ PERSON “ and acting under the command of GPE . According to the witness , they could have been from the first military regiment stationed in the village of ORG . Then , the witness and his colleagues had understood that the men had been looking for Mr NORP Saydulkhanov . In TIME of CARDINAL DATE these men had arrived again and asked for water . Mr NORP Saydulkhanov who had been standing at the entrance had gone to fetch it , but when he had returned those men had already left . In the ORG opinion , it was possible that Mr Muslim Saydulkhanov had been kidnapped for ransom since his father was the head of ORG and dealt with large sums of money . The witness further stated that he had conducted his own investigation and found out that the military servicemen who had manned the checkpoint next to the exit from PERSON , a settlement situated in QUANTITY from GPE , had stopped UAZ minivan ‘ PERSON on TIME of the abduction ; inside the vehicle a man had been lying on the floor . To the question as for the man ’s identity , the men in the vehicle had replied that it was a bandit caught in GPE . CARDINAL of the servicemen at the checkpoint , being from GPE , wanted to check who this person was , but the men had told him that the bandit was not originally from GPE , that he had only been caught there and that his surname had been GPE .

On DATE the investigators questioned the applicant who stated that on DATE her son , Mr Muslim PERSON , had gone to work . However , DATE her husband had found out that Mr NORP had not been at work that night . She had learnt from unspecified local residents that her son had been abducted by servicemen from ‘ Vostok’ battalion . She pointed out that in DATE she had been told by an unidentified serviceman from the rifle regiment ( стрелковая рота ) that her son had been detained by a group of servicemen under the command of GPE and some ORG officers and that the abductors would release PERSON in exchange for USD CARDINAL,CARDINAL and that if she were to complain of the abduction , they would kill her and her family members . In DATE an unidentified serviceman of NORP ethnic origin had told her on the street that when the ransom would be ready she would need to pass it on through him . The applicant further stated that when she had been interviewed by the police investigator in DATE about the circumstances of the disappearance , she had not mentioned the ransom and even requested that officer that the police would not open a criminal case into the matter as she had been afraid of her safety .

On DATE the investigators questioned Mr Muslim Saydulkhanov ’s colleague , Mr GPE , who stated that on DATE he had been on duty with Mr Muslim Saydulkhanov . At TIME in the TIME Mr NORP Saydulkhanov had gone home for dinner but had not returned . TIME Mr Muslim PERSON ’s father had come to search for his son and he had learnt from him that Mr Muslim PERSON had eaten at home and had then left for work . DATE the witness had learnt that Mr Muslim PERSON had allegedly been abducted .

On DATE , DATE and DATE the investigators questioned Mr NORP Saydulkhanov ’s colleagues PERSON , Mr DATE . and PERSON . NORP all of whom stated that they had learnt of his abduction from their colleagues .

On the same dates , CARDINAL , DATE and DATE , the investigators also questioned other colleagues of Mr Muslim Saydulkhanov , Mr PERSON . , Mr A.M. and again Mr R.N. All of them stated that they had learnt of his abduction from their colleagues . The witnesses further added that prior to the events , in the morning of CARDINAL January CARDINAL , at TIME right before they were to pass on the duty to Mr Muslim Saydulkhanov and PERSON V.D. , a grey UAZ minivan with blackened windows and without official registration numbers had pulled over at ORG building . CARDINAL armed men without masks , in camouflage uniforms of ‘ PERSON type , had gotten out and asked them in NORP at what time the employees of ORG arrived at work . In reply the witnesses asked for the men ’s identity documents . The latter had refused to show the documents , said that they were just “ checking the posts ” and then they had driven away . In addition , PERSON . stated that DATE prior to the abduction , he had learnt from a fellow villager , that armed men in camouflage uniforms had arrived at the building of the FAC military commissioner ’s office and asked who guarded ORG building and what had been the regular security routes of that building ’s security guards .

On DATE the investigators again questioned the applicant who reiterated her previous statement ( see paragraph CARDINAL above ) .

On DATE the investigators again questioned Mr Muslim Saydulkhanov ’s supervisor Mr R.N. who stated that he had no new information to add to his previous statements ( see paragraphs CARDINAL and CARDINAL above ) other than that one of the men he had mentioned in his previous statements concerning the events surrounding Mr Muslim Saydulkhanov ’s disappearance had been called PERSON and that this person had subsequently moved from GPE to GPE in GPE .

The applicant argued that it was beyond reasonable doubt that her son had been unlawfully detained and then killed by ORG agents . In support of her allegations she referred to the following : the area where PERSON NORP Saydulkhanov had disappeared was under the authorities’ exclusive control as the roads leading to and from the settlement were blocked by checkpoints ( see paragraph CARDINAL above ) , that Mr Muslim Saydulkhanov ’s supervisor had found out that the servicemen who had been on - duty at the checkpoint in PERSON in the morning following the disappearance had stopped a UAZ minivan the drivers of which had refused to show them the person detained in their vehicle ( see paragraph CARDINAL above ) and that the Government failed to provide information concerning the identity of that person allegedly apprehended in GPE and taken to PERSON .

The applicant further stated that the witnesses Mr R.N. , Mr DATE and Mr D.Kh . had stated that prior to the disappearance of Mr NORP Saydulkhanov military servicemen from the ‘ Vostok’ battalion had taken interest in security officers working at ORG in GPE and that they had previously searched for her son ( see paragraph CARDINAL above ) .

The applicant pointed out that the Government did not refute her assertions that the head of ORG confirmed her son ’s detention at the FAC military commander ’s office , that the officers from ORG had participated in his abduction and that he had subsequently been detained in PERSON ( see paragraphs CARDINAL , CARDINAL , DATE and DATE above ) .

Finally , the applicant submitted that her son must be presumed dead as DATE elapsed since his disappearance .

The Government stated that from the documents submitted that there was no evidence confirming either that ORG agents had not been involved in the abduction of Mr Muslim PERSON or that he was dead .

A number of principles have been developed by ORG when it has been faced with the task of establishing the facts of events on which the parties disagree ( see PERSON v. “ the former GPE ” [ ORG ] , no . CARDINAL , § § CARDINAL - CARDINAL , DATE ) : the factual findings should be based on the standard of proof “ beyond reasonable doubt ” ; such proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact ( see PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ORG CARDINAL-VII , and ORG and Others v. GPE , no . CARDINAL , § CARDINAL , ECHR CARDINALVIII ) .

Applying the above principles to cases concerning allegations of disappearances in GPE , the ORG has concluded that it is sufficient for applicants to make a prima facie case that their missing relatives have been abducted by servicemen , such abduction thus falling within the control of the authorities , and it is then for the Government to discharge their burden of proof either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred ( see , among many examples , ORG and Others , cited above , § CARDINAL , and PERSON and Others v. GPE , nos . MONEY , CARDINAL/CARDINAL , DATE , CARDINAL , CARDINAL/CARDINAL , CARDINAL , ORG , DATE , DATE and DATE , § CARDINAL , DATE ) .

When adjudicating on disappearance cases in GPE , the ORG has borne in mind the difficulties associated with obtaining evidence and the fact that , often , little evidence can be submitted by the applicants in support of their applications . The prima facie threshold has been reached primarily on the basis of witness statements , including the ORG submissions to the ORG and to the domestic authorities , and other evidence attesting to the presence of military or security personnel in the area concerned at the relevant time . The ORG has relied on references to military vehicles and equipment ; the unhindered passage of the abductors through military roadblocks , in particular during curfew hours ; conduct typical of security operations , such as the cordoning off of areas , checking of identity documents , searches of LOC , questioning of residents and communication within a chain of command ; and other relevant information about special operations , such as media and NGO reports . Given the presence of those elements , it has concluded that the areas in question had been within the exclusive control of the ORG authorities in view of military or security operations being conducted there and the presence of servicemen ( see , for example , ORG and Others v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , CARDINAL DATE ; NORP and Others v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE ; and GPE and PERSON v. GPE , no . CARDINAL , § CARDINAL , DATE ) . If the ORG failed to rebut that presumption , this would entail a violation of LAW in its substantive part . However , where the applicants failed to make a prima facie case , the burden of proof could not be reversed ( see , for example , PERSON and PERSON v. GPE , no . CARDINAL , § DATE , DATE ; ORG v. GPE , no . CARDINAL , § § DATE , CARDINAL DATE ; and LAW v. GPE , no . CARDINAL , § DATE , DATE ) .

Thus , the ORG ’s case - law cited above attests that since DATE antiterrorist operations have been carried out routinely in LOC , which in DATE has been plagued by serious disturbances of law and order . As the ORG has found , these operations can entail the detention of individuals in the context of non - acknowledged security operations , and such detention can be considered life - threatening ( see GPE , cited above , § CARDINAL ) .

However , in the present case the ORG notes that the incident took place in the absence of any witnesses . Unlike in many other cases concerning alleged abductions perpetrated by ORG agents in GPE , the documents submitted by the parties in the present case contain neither any first - hand accounts describing the events nor any other information pertaining to the actual circumstances of the disappearance ( see , by contrast , among many other cases , PERSON and Others v. GPE , nos . CARDINAL/CARDINAL , DATE , CARDINAL , GPE , DATE , CARDINAL , ORG and CARDINAL , § CARDINAL , DATE and ORG and Others v. GPE , nos . CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , GPE and GPE , § CARDINAL , DATE ) . As for the applicant ’s information concerning the events surrounding the disappearance , the ORG notes that in her statements given to the domestic authorities she had not mentioned that she had received information concerning her son ’s detention either from the head of the local administration or unidentified police officers ( see paragraphs CARDINAL , CARDINAL and DATE above ) . Further , as for the information concerning the alleged passage of the abductors through the checkpoint in PERSON ( see paragraph CARDINAL above ) , the ORG does not consider that it provides enough grounds for a firm presumption that these had been the abductors of the applicant ’s son and that they had belonged to ORG authorities . In such a situation the ORG has insufficient evidence on which to draw the conclusion that ORG agents had been involved in the disappearance of PERSON Muslim Saydulkhanov as the factual circumstances of the incident as presented by the applicant do not include any evidence corroborating her account to a decisive extent ( see , for a similar situation , PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , DATE ) .

On the basis of the material in its possession , the ORG considers that the actual circumstances in which Mr Muslim Saydulkhanov disappeared remain a matter of assumption and that , accordingly , there is an insufficient evidentiary basis for a finding that the perpetrators belonged to the security forces or that a security operation was carried out in respect of him .

Accordingly , it has not been established to the required standard of proof – “ beyond reasonable doubt ” – that ORG agents were implicated in the disappearance of Mr Muslim Saydulkhanov ; nor does the ORG consider that the burden of proof can be shifted to the ORG , having regard , in particular , to the fact that they submitted a copy of the relevant documents from the investigation file as requested by the ORG .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Branko Lubarda;Georgios A. Serghides;Pere Pastor Vilanova

The first applicant was born in DATE and lives in GPE , GPE . She is the daughter of the second and third applicants who were born in DATE and DATE respectively and lived in GPE , GPE . The second applicant PERSON GPE died in DATE .

The facts of the case , as submitted by the parties , may be summarised as follows .

On DATE Mr GPE , the brother of the first applicant and the son of the second and third applicants , was charged with large - scale fraud ; his name was placed on the list of fugitives from justice . He was accused of embezzling the assets of the companies under his management . The wronged companies filed a claim for compensation in respect of pecuniary damage .

On CARDINAL DATE a senior operational officer from ORG sent a letter to the investigator in charge of GPE ’s case to inform him that “ according to the available information , the real estate property owned by [ the first applicant ] ( CARDINAL flats ) and by [ the second applicant ] ( CARDINAL flat ) had been purchased at the expense of their close relative GPE ”

On CARDINAL DATE the investigator asked ORG in GPE to authorise attachment of the applicants’ property , including CARDINAL flats owned by the first applicant , a flat owned by the second applicant , and a car owned by the third applicant . He referred to undisclosed sources allegedly confirming that all that property had been purchased by GPE

On DATE ORG issued the requested writs of attachment . It observed that , “ according to the information from the investigation ” , GPE had used the stolen money to purchase the property which he had registered in the name of his family members . It considered therefore necessary to attach the property which ORG described as being owned by GPE ORG explained that the application for writs was to be granted because “ it [ had been ] lodged in the framework of a criminal case by the competent official and with the prosecutor ’s approval , it [ was ] well - reasoned and [ complied ] with the requirements of the Code of Criminal Procedure ” .

The applicants filed an appeal . They produced evidence showing that they had paid for the impugned property out of their pocket and that the link to GPE was the investigator ’s conjecture without basis in fact . They were not defendants in any criminal proceedings or respondents in any civil claim and there were no legal grounds for attaching their property .

On DATE ORG rejected their appeals , stating that ORG had “ carefully reviewed the materials enclosed with the investigator ’s request and reached the justified conclusion that there were sufficient grounds for seizing ” the listed property .

The attachment of the applicants’ property has remained in place to date .


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

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant ’s parents owned land within the administrative borders of GPE . It was expropriated by way of an administrative decision issued on an unspecified date under the provisions of the Decree on Ownership and Use of Land in GPE of DATE . In DATE the applicant ’s legal predecessor requested to be granted a right of perpetual use ( użytkowanie wieczyste ) for another plot of land situated in GPE as compensation provided for by the provisions of LAW . His request was dismissed by way of an administrative decision given in DATE and ultimately upheld in DATE .

A judicial decision given in DATE confirmed that the applicant was his GPE general heir .

On DATE the applicant requested that the decision given in DATE be declared null and void .

On DATE the Minister of Construction and Land Planning ( Minister of ORG and GPE ) gave a decision . It noted that in DATE the authorities had failed to examine whether the substantive conditions for granting the owners the right of perpetual use of the land specified in section CARDINAL of the CARDINAL Decree ( see paragraph CARDINAL below ) had been met at that time . He declared , referring to LAW ) ( see paragraph CARDINAL below ) , that decision null and void in so far as it related to the part of the land concerned which was used as family gardens . In so far as this decision related to the part of the land which had already been used for construction purposes , he considered that the contested decision had given rise to irrevocable legal consequences within the meaning of LAW ORG ( see paragraph CARDINAL below ) . Therefore under LAW he could merely declare that it had been issued contrary to law within the meaning of this provision .

The municipality of GPE did not lodge an appeal against this decision . It accordingly became final within DATE after its service on the applicant .

The applicant instituted CARDINAL separate sets of proceedings , seeking compensation for damage caused by the expropriation decision .

On DATE the applicant , referring to the decision of DATE , requested the authorities to re - examine the original motion submitted in DATE to be granted a right of perpetual use in respect of the land covered by the part of the expropriation decision declared null and void ( see paragraph CARDINAL above ) . On DATE ORG ( ORG Przestrzennej ) of ORG requested LAW to provide certain information concerning the land concerned .

On DATE the applicant complained to the Minister of Construction and ORG about the authorities’ failure to give a decision in his case .

On DATE the Minister of Minister of Construction and Land Planning stayed the compensation proceedings instituted by the applicant under LAW ( see paragraphs CARDINAL below ) . He observed that the decision given on DATE ( see paragraph CARDINAL above ) made it necessary in law to reexamine the former ORG request for grant of the right to perpetual use submitted in DATE and that it created a compensation claim for the applicant . It referred to the applicant as “ the claim ’s owner ” ( właściciel roszczenia ) .

In DATE and DATE the applicant complained to the Minister of Construction and Land Planning about the authorities’ failure to give a decision in the case .

On DATE ORG gave a decision obliging the Mayor of GPE to whom the case had meanwhile been transmitted to give a decision on the merits of the case within DATE .

On DATE the Mayor of GPE refused to allow the application submitted in DATE and joined by the applicant ( see paragraph CARDINAL above ) . The applicant appealed .

On DATE ORG ( PERSON ) set the first - instance decision aside and remitted the case .

On DATE the Mayor again refused to allow the applicant ’s application . The applicant appealed . On DATE ORG set the first - instance decision aside and remitted the case . An exchange of correspondence between the applicant and the authorities ensued .

In DATE the Mayor of GPE informed the applicant that he had instituted proceedings with a view to having the decision given in DATE that created for the applicant an entitlement to compensation ( see paragraphs CARDINAL and CARDINAL above ) declared null and void . In DATE the Minister of Construction refused to grant the Mayor ’s application , finding that the contested decision was lawful .

On DATE the GPE FAC st . ORG ) informed the applicant that the Mayor could not give a decision on the merits of the case unless the applicant indicated , by way of an initial request to obtain a construction permit , how he intended to use the land in question .

In DATE the applicant complained about the authorities’ failure to give a decision on the merits of the case . On DATE ORG obliged the Mayor to issue a decision by DATE .

On DATE the applicant again complained about the administrative authorities’ failure to examine his case within a reasonable time .

On DATE the Mayor refused to allow the applicant ’s application . The applicant appealed . On DATE ORG quashed the decision , finding that it was unlawful both on procedural and substantive grounds , and remitted the case .

On DATE the applicant again complained about the administrative authorities’ failure to give a decision . On DATE ORG found in a decision that his complaint was ill - founded as the file of the case had been forwarded to the civil court and the administrative authorities could not deal with the case . The applicant lodged an appeal against this decision with ORG .

On DATE ORG obliged the Mayor of GPE to give a decision on the merits of the case within a twomonth time - limit .

On DATE and on an unspecified later date the applicant complained to ORG about the Mayor ’s failure to give a decision on the case in compliance with the judgment of that court obliging her to do so . On DATE and CARDINAL DATE , respectively , ORG rejected his complaints for failure to comply with the applicable procedural requirements . It noted that the applicant was obliged , under LAW para . CARDINAL on the Law of Proceedings before Administrative Courts , to call upon the Mayor to comply with the judgment obliging her to give a decision prior to lodging another complaint about her inactivity with the administrative court .

On DATE the Mayor of GPE stayed the proceedings , pending a physical delimitation of the land concerned by a land surveyor . The applicant appealed against this decision .

On DATE the applicant called upon the Mayor , under Article CARDINAL para . CARDINAL of the Law of Proceedings before Administrative Courts , to give a decision in compliance with the judgment of DATE . There was no reply to his request .

The proceedings are pending .

On DATE the applicant instituted proceedings under the then applicable LAW , seeking compensation for damage allegedly caused by the unlawful decision given in DATE .

On DATE the Minister of Construction stayed the proceedings , considering that the outcome of the use of land proceedings described above ( see paragraphs DATE above ) was decisive for the proceedings under LAW ( see paragraph CARDINAL above ) . The applicant appealed .

On DATE ORG allowed the applicant ’s appeal against the decision to stay the proceedings , holding that the other set of proceedings had no incidence on the issue of compensation for damage caused by the original expropriation decision .

In DATE the applicant complained about the Minister ’s inactivity .

Ultimately in DATE the President of ORG ( Prezes Urzędu Mieszkalnictwa i PERSON ) refused to award compensation to the applicant .

In DATE the applicant and other legal successors of the former owners of the land expropriated in DATE lodged a claim with ORG for compensation for damage caused by that decision .

By a judgment of DATE ORG awarded compensation to the applicant and other plaintiffs . ORG represented by ORG ) appealed .

On DATE ORG allowed the appeal , amended the contested judgment and dismissed the LAW claim .

On DATE ORG refused to entertain the applicant ’s cassation appeal .


André Potocki;Angelika Nußberger;Carlo Ranzoni;Ganna Yudkivska;Khanlar Hajiyev;Yonko Grozev

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr S. von ORG , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agents , PERSON and Mr PERSON , of ORG and ORG .

The facts of the case , as submitted by the parties , may be summarised as follows .

NORP The housing estate company “ PERSON GPE ” ( ORG ) , subsequent to its foundation in DATE , acquired a large area of land just outside GPE . The aim of the company was to develop and divide up the land and sell it to prospective dwellers . The sale of the first plots of land began in DATE . The NORP entrepreneur GPE , a NORP national , personally held PERCENT of ORG ’s shares and owned DATE directly or indirectly PERCENT of the shares in another company holding PERCENT of the shares in ORG .

In DATE , after ORG came to power , GPE was forced to leave GPE and to hand over , inter alia , his shares in ORG , amounting to PERCENT of all shares , to representatives of the new regime . By DATE almost all of the total of CARDINAL plots had been sold by ORG .

After DATE the community of GPE became part of the former GPE ( GPE ) . No mechanism for restitution of land property was available to GPE at that time .

In DATE FAC obtained the reassignment of his shares in GPE , although at that time ORG no longer owned any property of significance .

In DATE , upon GPE ’s reunification , ORG , Gesetz zur Regelung offener Vermögensfragen / Vermögensgesetz , ) was introduced and subsequently amended several times , offering the possibility of restitution claims regarding property situated on the territory of the former GPE ( see relevant domestic law and practice , paragraphs CARDINAL below ) .

NORP In DATE the Conference on NORP Material Claims against GPE , GPE ( NORP Claims Conference - JCC ) specified a global application for restitution under LAW with the aim of regaining PERCENT of the ownership of a large number of plots of land formerly owned by ORG . The application was made under LAW CARDINAL sentence , of LAW ( see paragraph CARDINAL below ) . GPE ’s heirs had not asserted their potential claims .

On DATE the ORG transferred all rights concerning the relevant plots of land to the applicant .

On DATE the competent ORG for ORG ( Landesamt für offene Vermögensfragen ) rejected the applicant ’s restitution and compensation requests , which had originally been filed by the ORG .

NORP The applicant brought CARDINAL cases before ORG . Some of these concerned restitution , others compensation claims since the plots of land concerned had undisputedly been acquired in good faith by third parties after DATE and restitution was thus ruled out by law , to protect the new owners . CARDINAL of the restitution cases was chosen as a pilot case . The corresponding plot had been sold in DATE and was never resold . Ownership had been passed on by inheritance .

On DATE ORG dismissed the applicant ’s action in the pilot case . It held that the ORG counted as the legal successor of GPE and had lawfully ceded the relevant rights to the applicant . Notwithstanding , a restitution claim was ruled out by section CARDINAL § CARDINAL , eleventh sentence , of LAW , because the plots had previously been owned by a housing estate enterprise ( “ Siedlungsunternehmen ” ) . ORG accepted the applicant ’s argument that he was treated differently to other groups of victims in the past , because the users or owners who had acquired property before DATE had never been protected . Furthermore , other companies which had divided up land into plots but did not qualify for the narrow definition of “ housing estate enterprise ” were entitled to restitution . However , ORG considered that the ORG had a wide margin of appreciation as to how victims of the ORG regime should be compensated , and could not find that section CARDINAL § CARDINAL , eleventh sentence , of LAW violated LAW ( see paragraph CARDINAL below ) .

On DATE ORG rejected the applicant ’s appeal on points of law , mainly endorsing ORG findings . It further held that section CARDINAL § CARDINAL , eleventh sentence , of LAW did not infringe LAW ( see paragraph CARDINAL below ) since the applicant ’s legal predecessor had not previously acquired property rights . It referred to a previous ruling , delivered on DATE ( see paragraph CARDINAL below ) , stating that the relevant DATE version of LAW had not afforded compensation rights to shareholders of a company owning real estate , but only to the owner company itself . Making reference to the spirit and purpose of the amendment in DATE ORG , in the instant case , took the view that ORG compensation claims had been made possible for the first time in DATE by amending section CARDINAL § CARDINAL , fourth sentence , of LAW ( see paragraph CARDINAL below ) . Even assuming that the applicant ’s legal predecessor had already been entitled to compensation claims when the DATE amendment came into force , the legislator had struck a fair balance between the interests concerned .

On DATE ORG declined to consider the applicant ’s constitutional complaint ( case no . CARDINAL BvR CARDINAL/CARDINAL ) . It shared ORG view that section CARDINAL § CARDINAL , eleventh sentence , of LAW did not infringe the applicant ’s right under LAW of LAW .

It further came to the conclusion that the applicant ’s right to property under LAW was not violated either . With regard to the legal situation before DATE , ORG pointed out that it was subject to legal debate whether not only companies but also their shareholders had been entitled to immediate restitution claims to property which had been detached from the company in the past . While some legal authors and ORG , in a judgment of DATE , saw this entitlement already guaranteed in the DATE version of LAW , ORG , in a judgment of DATE , thereby supported by other legal authors , took the view that shareholders were given this right to immediate restitution only in DATE . ORG considered that the determination of whether a claim existed was the responsibility of the lower courts ( Fachgerichte ) and that the change of case - law was neither arbitrary nor unreasonable . Although the reasons given by ORG in this regard had been very short and without further illustration of the amendment ’s spirit and purpose , it had to be observed that a considerable number of legal authors agreed to its interpretation and for these reasons alone it could not be viewed as untenable ( “ unter keinem denkbaren GPE mehr rechtlich vertretbar ” ) .

On DATE ORG dismissed the applicant ’s action in CARDINAL restitution cases which had remained pending . On DATE , in a separate judgment , it also dismissed his action in CARDINAL cases in which the applicant had filed for compensation . On DATE ORG found against the applicant in another CARDINAL compensation cases . In all CARDINAL judgments ORG , in its reasoning on the merits , merely referred to its own judgment and the decision of the Federal courts in the pilot case ( see paragraphs CARDINAL above ) .

Article CARDINAL of LAW reads as follows :

“ ( CARDINAL ) ORG and the right of inheritance shall be guaranteed . Their content and limits shall be defined by the laws .

( CARDINAL ) ORG entails obligations . Its use shall also serve the public good .

( CARDINAL ) Expropriation shall only be permissible in the public interest . It may only be ordered by or pursuant to a law that determines the nature and extent of compensation . Such compensation shall be determined by establishing an equitable balance between the public interest and the interests of those affected . In case of dispute regarding the amount of compensation , recourse may be had to the ordinary courts . ”

DATE CARDINAL of LAW reads as follows :

“ All persons shall be equal before the law . ”

LAW of DATE ( PERSON ) provides that persons whose property was unlawfully expropriated during the time of the GPE are in principle entitled to restitution , unless the property was purchased in good faith by a third party . In such cases , the former owners have a right to financial compensation .

Section CARDINAL § CARDINAL extends the applicability of LAW in favour of persons persecuted on racial , political , religious or ideological grounds during the time of ORG rule and who , in this context , lost their property by expropriation or sales under duress . Section CARDINAL § CARDINAL , third sentence , provides that where NORP beneficiaries do not assert a claim , the ORG acts as legal successor in respect to the claim .

NORP In DATE a fourth sentence was added to section QUANTITY , which , at the given time , provided as far as relevant :

“ If assets , of which an enterprise has been deprived , which are to be returned or have already been returned according to section CARDINAL § CARDINAL ... do not belong to the enterprise ’s property any more , the beneficiary may claim , by the means of individual restitution , that he or she be granted ownership of these objects in fractional shares equivalent to the stakes of which he or she was deprived ; ... ”

( “ PERSON , die mit einem nach § QUANTITY . CARDINAL ... zurückzugebenden oder einem bereits zurückgegebenen GPE entzogen ... worden sind , nicht mehr zum Vermögen des Unternehmens , so kann der Berechtigte verlangen , dass ihm an diesen Gegenständen i m Wege der Einzelrestitution in Höhe der ihm entzogenen GPE eingeräumt CARDINAL ; ... ” )

According to the written motivation to the bill , this amendment was made to avoid enterprises expropriated DATE being returned only after having been stripped of their assets ( see ORG documents ( ORG ) , no . CARDINAL , p. CARDINAL ) .

The Federal Parliament ( GPE ) passed further amendments to LAW which came into force on DATE .

Section CARDINAL § CARDINAL , fourth sentence , was supplemented by , inter alia , another CARDINAL sentence , which – as far as relevant DATE provides :

“ ... such claim shall also exist if the subject - matter of the act of deprivation according to section CARDINAL § CARDINAL was a direct or indirect stake in an enterprise ... ”

( “ ... dieser Anspruch besteht auch , wenn eine unmittelbare oder mittelbare ORG nach § QUANTITY . CARDINAL ist ... ” )

Likewise , a new eleventh sentence was introduced which ruled out the application of the fourth sentence , inter alia , with regard to real estate property used for housing purposes sold for market prices to natural persons by a “ housing estate enterprise ” ( “ Siedlungsunternehmen ” ) before DATE .

In its judgment of DATE ( case no . CARDINAL C CARDINAL ) , ORG held that the DATE version of section QUANTITY sentence , of LAW already enabled direct claims by company shareholders . While it found that the wording of the provision was unclear , it referred to the purpose of the law , in particular that those who had lost property due to persecution by the ORG regime , with the property remaining on the territory of the former GPE , should receive compensation equal to that awarded to property owners under NORP Allied law after World War II . It took the view that comprehensive compensation for the so - called “ aryanisation ” of NORP companies was only possible by granting immediate restitution claims .

On DATE ORG found in another judgment ( case no . CARDINAL C CARDINAL/CARDINAL ) that until DATE , shareholders of companies subject to ORG persecution could not have acquired claims protected under LAW . It held that the typical ORG method of depriving NORP shareholders of their property had not been addressed in the DATE version of the law . Taking as its basis the purpose of the amendment of DATE and the unclear wording in the DATE version of the law , the court concluded that the new provision entitled shareholders of such companies to restitution claims for the first time . It also found that if a right had already existed in DATE which had been taken away by the new legislation , the legislator had managed to find a fair balance between the rights involved . ORG did not make a reference to its judgment of DATE ( see paragraph CARDINAL above ) .


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

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Nona Tsotsoria;Vincent A. De Gaetano

The applicant is a company limited by shares registered under NORP law . It has its seat in GPE .

On CARDINAL DATE a property claim was brought against the applicant requesting it to pay mandate fees in the amount of MONEY ( ORG ) ( MONEY ( ORG ) at the time ) .

On DATE ORG ordered the applicant , under section CARDINAL(CARDINAL ) of Act no . LIII of DATE on ORG , to deposit on the bailiff ’s trust account a security in the amount of ORG CARDINAL . The applicant appealed against the decision but this was to no avail . The money was deposited on the bailiff ’s trust account on DATE .

Under the law , such deposits yield no interest .

The applicant requested to have the money released arguing that its financial situation was satisfactory , there was no need for such a deposit and that this measure contradicted the principle of economic rationality .

The applicant ’s request was dismissed on DATE . ORG as second - instance court upheld the decision on DATE . The applicant ’s subsequent requests to have the money released , in exchange for other securities offered , were also turned down .

After remittals on DATE and DATE , on DATE ORG adopted a judgment , partly found for the plaintiff and ordered the applicant to pay ORG MONEY ( EUR CARDINAL at the actual rate ) plus interest accrued as of DATE . On DATE and DATE , respectively , ORG and the GPE upheld this judgment .

Although the plaintiff succeeded only partly in the litigation , the amount actually payable by the applicant exceeded the amount of the entire deposit . This outcome was the consequence of the fact that whilst the applicant was ordered to pay accrued interest on the money due to the plaintiff in the amount of approximately ORG CARDINAL,CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL at the actual rate ) , its own money deposited on the bailiff ’s trust account had yielded no interest . Ultimately , the applicant had to surrender the whole deposit and pay CARDINAL CARDINAL million ( ORG CARDINAL,CARDINAL ) .

NORP The applicant challenged the impugned provisions of Act no . LIII of DATE on ORG before ORG ; but its constitutional complaint was dismissed on DATE . This court held that ‘ interest’ as such was consideration for the ‘ use’ of another person ’s money ; however , the authorities had not in any way ‘ PERSON the deposited amount . Furthermore , the LAW did not provide any safeguards against the depreciation of an asset , including a deposit of money subject to inflation , and that such depreciation for economical or other reasons did not amount to a deprivation of property .


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

Elisabeth Steiner;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

On DATE the applicant was interrogated as suspect of forgery of private documents .

The Public Prosecutor preferred a bill of indictment on DATE . Subsequently , on DATE ORG extended the charges against the applicant with charge of fraud .

In the ensuing criminal proceedings on DATE ORG acquitted the applicant in respect of fraud and found him guilty in forgery of private documents .

On appeal of ORG , ORG reversed the judgment and acquitted the applicant in respect of all charges on DATE .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and is currently serving a prison sentence in medical penal institution ORG , GPE .

On DATE the applicant was arrested on suspicion of murder . He was taken to the police station , where he was allegedly ill - treated by police officers and confessed to murder .

On DATE the applicant was subjected to a forensic medical examination , which recorded CARDINAL bruises under his left and right eyes measuring QUANTITY , an abrasion on the middle finger of the left hand measuring QUANTITY , and an abrasion on the back of the right forearm measuring QUANTITY . The expert concluded that the bruises under the eyes could have been inflicted DATE prior to the examination , and the abrasions of the upper limbs could have appeared DATE prior to the examination .

On DATE the record of the applicant ’s arrest was drawn up . The applicant was questioned as a suspect and , allegedly for fear of further beatings , confirmed his previous confession . He was placed in a temporary detention unit . The unit ’s medical records show that the applicant had a bruise under his left eye when admitted . They further indicate that the applicant was otherwise in good health .

On DATE the applicant complained of chest pain . An ambulance was called , and he was found to have a bruised breastbone .

On DATE the applicant was allegedly beaten again by the police officers in an attempt to make him confirm his previous statements to the investigator .

On DATE the applicant again complained of chest pain . He was taken to ORG . An X - ray examination showed a breastbone fracture .

On DATE the applicant was transferred to remand prison GPE , GPE . The facility doctor who examined the applicant on admission entered the breastbone fracture diagnosis of CARDINAL DATE in the applicant ’s medical records .

On DATE ORG , GPE , convicted the applicant , under LAW , of intentional infliction of grievous bodily harm on ORG , causing his death by reckless conduct . The applicant was sentenced to CARDINAL years’ imprisonment . The applicant was represented by a legal - aid lawyer at the trial .

The applicant appealed . He asked the appeal court to allow him to attend the appeal hearing in his case , and also expressed the wish to be represented by a lawyer .

On DATE ORG upheld the judgment on appeal . The applicant was present at the appeal hearing . He was , however , unrepresented .

On DATE the Presidium of ORG granted an application for supervisory review by ORG and quashed the appeal decision of DATE . The ORG found that the applicant ’s right to legal representation had been violated in the appeal hearing and remitted the case for a fresh examination before the appellate court .

On DATE ORG held a new appeal hearing in the applicant ’s criminal case , with the applicant taking part ( by video link ) and in the presence of his legal - aid lawyer . ORG upheld the applicant ’s conviction on appeal and reduced his sentence to DATE and CARDINAL months’ imprisonment .

Meanwhile , in DATE the applicant complained of illtreatment to ORG .

On DATE investigator PERSON . of ORG , relying on Article CARDINAL § CARDINAL ( CARDINAL ) of LAW , refused to institute criminal proceedings against the police officers complained against , for lack of evidence that a crime had been committed . The investigator relied on statements by police officer PERSON denying that the applicant had been assaulted , extracts from the medical records of the temporary detention unit showing the entries of DATE , CARDINAL DATE and CARDINAL DATE , the applicant ’s statements of CARDINAL DATE in which he alleged that the bruises had been inflicted during a fight with some teenagers in DATE , and references to the applicant ’s failure to mention the alleged ill - treatment during the examination of the issue of his detention , when he was questioned as a suspect , or when charges were brought against him .

On DATE the Ozersk Town Prosecutor quashed that decision and ordered an additional pre - investigation inquiry .

On DATE , DATE and DATE and DATE the investigator again refused to open a criminal case in connection with the applicant ’s allegations of ill - treatment . However , on DATE and DATE and DATE and DATE respectively the supervising prosecutor quashed those decisions as unfounded and ordered additional preinvestigation inquiries .

On DATE chief investigator P. of ORG refused for the sixth time to order the institution of criminal proceedings , and concluded that the applicant had sustained his injuries prior to his arrest . This decision was based on the following evidence :

- the applicant ’s explanations of DATE ( see paragraph CARDINAL below ) ;

- explanations by the chief of police GPE , police officers PERSON and PERSON . , and the deputy chief of police PERSON . , who denied having subjected the applicant to any violence ;

- explanations by prosecutor ’s assistant PERSON and investigator PERSON . ;

- explanations by officers of the temporary detention unit PERSON . , PERSON and ORG . ;

- extracts from the temporary detention unit ’s logbooks , including its medical logbook ;

- the X - ray examinations logbook of ORG ;

- the report of the applicant ’s forensic medical examination ;

- explanations by ambulance doctor PERSON , who examined the applicant at the temporary detention unit on DATE , and by hospital doctor PERSON , who examined the applicant at the hospital on CARDINAL DATE ;

- the applicant ’s statements of CARDINAL April-CARDINAL DATE taken from his criminal file , to the effect that he had received the injuries prior to the arrest during a fight with some teenagers and that he had no complaints against the police officers or the officers of the temporary detention unit in connection with those injuries ;

- explanations by forensic medical expert PERSON . ;

- documents from the applicant ’s criminal file , including the records of his questioning of CARDINAL DATE , DATE and DATE , in which the applicant submitted that he had attacked ORG ( the victim of the crime of which the applicant had been convicted ) in self - defence ;

- the applicant ’s statements made during the trial and his complaints to the prosecutor and the investigator to the effect that he had sustained his breastbone fracture as a result of acts of violence by ORG

It followed from the applicant ’s explanations , in particular , that in DATE he had had a fight with some unidentified teenagers , as a result of which he had received a bruise under his left eye . On DATE PERSON had kicked the applicant twice in the chest area and twice in the face , as a result of which he had had a bruise under his right eye and felt pain in his chest . On DATE the applicant was arrested and taken to the police station , where CARDINAL police officer hit him with something heavy on the nape of the neck and another kicked him in the chest area , as a result of which the applicant felt pain in his chest . On DATE one of the police officers hit him on the head at least twice with a CARDINAL plastic bottle filled with water , which did not result in any injuries . On DATE in the investigations office of the temporary detention unit CARDINAL of the police officers had knocked the applicant to the floor and kicked him CARDINAL times on the left side and twice in the stomach and chest . These actions did not lead to any injuries . The applicant could not clarify whether his breastbone fracture had been the result of the actions of ORG or of the police officers .

On DATE ORG found the decision of DATE lawful and justified .

On DATE ORG , GPE , found the pre - investigation inquiry into the applicant ’s allegations to be complete and unbiased , and the decisions of DATE and CARDINAL DATE lawful and justified .

On DATE ORG upheld the decision of DATE on appeal .


Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Pecuniary and non-pecuniary damage - award

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in PERSON .

The facts of the case , as submitted by the parties , may be summarised as follows .

The applicant is a film director , historian , and author of press articles often commenting on current issues . The Government contested that the applicant could be considered a journalist .

On DATE the applicant participated in a debate on a regional radio station , ORG . During the debate he stated as follows :

“ ... among the informers ( informator ) of the [ communist - era ] secret political police is Professor [ J.M. ] – this information confirms the theory that among those who speak out the most against lustration are people who have good reasons for doing so . ”

On DATE the applicant called PERSON an “ informant ” ( konfident ) on television . The matter was widely commented on in the media .

On DATE a special commission set up at ORG to examine the problem of covert surveillance of academics issued a statement in the case of PERSON The statement included a list of documents concerning PERSON , which had been found in the archives . The commission concluded that those documents had not led it to the unequivocal conclusion that PERSON had been a collaborator with the secret police .

On DATE PERSON brought a civil action for protection of his personal rights against the applicant .

NORP On DATE ORG allowed the action . It ordered the applicant to pay MONEY ( ORG ) to a charity and to reimburse the claimant LAW for the costs of the proceedings . The applicant was also ordered to publish an apology for having damaged the claimant ’s good name in CARDINAL national and regional newspapers , on CARDINAL national TV channels and on PERSON . The court considered that the applicant had clearly used several expressions indicating that the claimant had been a secret collaborator with the DATE secret services . The main question to be considered was whether such statements could be considered true .

The court noted that PERSON was a distinguished linguist and wellknown person in GPE . He was a member of ORG and for DATE had been presenting a programme on television . The court established that DATE PERSON had been summoned by agents of the secret services on CARDINAL occasions for interviews in connection with applications he had made for passports and returns from stays abroad . This was not contested by the claimant , who had himself made this information public . In DATE PERSON had been formally registered as a secret collaborator ( a “ NORP ” ) . Other notes from ORG ( “ ORG ” ) archives indicated that until DATE a CARDINAL - volume file on the claimant had existed ; however , the file could no longer be found at the ORG branch of the ORG .

The court noted that the case of PERSON had been examined by a special commission set up at ORG to examine the problem of covert surveillance of academics , but that the commission had been unable to reach any unequivocal conclusions .

The trial court heard the applicant and the claimant as well as a number of witnesses : historians ( specialists on lustration ) , former agents of the secret services assigned to recruiting collaborators at ORG , and employees of the ORG . Some of them testified that many files on secret collaborators had been destroyed when the regime fell in DATE . A few witnesses testified that they had not known of any case of fictitious registration of somebody as a secret collaborator or of a situation in which the services had kept a file on somebody for DATE even though he or she had not actually been collaborating .

The director of the ORG branch of the ORG testified that he had heard of an instance of fictitious registration of somebody as a ORG . However the probability of such a situation was very low . He also declared that on the basis of the available documents , he would not have concluded that the claimant had been a NORP police informant . Another historian called to testify declared that it had been impossible to draw any unequivocal conclusions . A third historian stated that the claimant had been a “ real agent of the security service ” . A fourth historian testified that the internal files of the secret services were reliable ; the regime would only falsify documents for external purposes . The same witness considered that on the basis of the information available to him , he would also have concluded that PERSON had been an intentional and secret collaborator with the DATE secret services .

CARDINAL other witnesses , former agents of the secret services , were unable to remember whether they had recruited PERSON as a secret collaborator .

The applicant submitted that once he had discovered that PERSON was on the list of secret collaborators with the secret services it had been his duty to inform the public about it . His intention had not been to offend the claimant . He had acted in the general interest , taking part in a public debate on matters of considerable importance to society . Moreover , his assertion had been provoked by public statements made by the claimant , who had questioned the importance of lustration . The applicant also argued that he had not alleged that the claimant had caused harm to other people or that he had been paid for his services . The information provided by him - that PERSON had been a collaborator - had therefore been truthful and given in the public interest .

Nevertheless , the court noted that no documents confirming that the claimant had agreed to be a collaborator or that he had actively reported to the secret services were available . The court referred to the definition of collaboration contained in the DATE LAW and reiterated that collaboration had to be intentional , secret and consist of passing on information . It concluded that registration by the secret services alone was not sufficient to consider that someone had been a secret collaborator .

The applicant lodged an appeal against the judgment . He argued that the registration of PERSON as a secret collaborator by the services , in light of generally known facts , had allowed him to conclude that he had been a collaborator . PERSON had remained registered as a ORG for DATE , his files had been destroyed , and the secret services had not been known for falsifying their internal files . According to historians , in DATE the services had only destroyed the files of important collaborators . The applicant underlined that he had acted in the general interest as the claimant had been a public figure who had recently criticised the process of lustration .

On DATE ORG dismissed the appeal . It further ordered the applicant to pay the claimant ORG CARDINAL,CARDINAL as reimbursement of the costs of the appellate proceedings . The court accepted all the findings of the first - instance court regarding the facts of the case . It considered that when personal rights had been breached by a statement of alleged facts , the illegality of such action could be excluded only if the statement contained truthful information . Acting in the general interest did not exclude responsibility for making untrue statements . In the present case there was no evidence , in the form of either documents or witness statements , proving that PERSON had indeed actively collaborated with the secret services . Therefore , in the light of the material collected in the case , the court concluded that the applicant had not proved the veracity of his statements . Furthermore , the court considered that the applicant had not fulfilled his duty to act with particular diligence and caution in making serious allegations on the basis of unconfirmed circumstantial evidence .

The applicant lodged a cassation appeal against the judgment and requested that a hearing be held .

At the hearing , held on DATE , ORG announced the judgment and gave an oral summary of the reasons . It dismissed the applicant ’s cassation appeal but amended the text of the apology and limited its reach to CARDINAL national DATE newspaper and ORG . The applicant was ordered to reimburse the claimant a further ORG CARDINAL,CARDINAL for the costs of the cassation proceedings .

The text of the apology to be published by the applicant was as follows :

“ I apologise to Professor PERSON for having made , on DATE , the untrue assertion that he had been an informer of the [ communist - era ] political police ” .

Following the announcement of the judgment the applicant ’s lawyer requested the court to prepare written reasons and to deliver them to him . ORG judgment with reasons , CARDINAL pages long , was received by the applicant ’s lawyer on DATE .

In analysing the interplay between CARDINAL competing rights – the right to freedom of expression and the right to protect one ’s good name – the court referred to a resolution of ORG ( DATE , III CZP QUANTITY OSNC DATE , nr CARDINAL , p CARDINAL ) . According to the conclusion of this resolution a journalist ’s actions would not be considered illegal if they were made in the public interest and the duty to act with due diligence was fulfilled . Imposing an obligation on a journalist to prove the veracity of each statement would unjustifiably limit the freedom of the press in a NORP society . However , ORG considered that this approach could not be applied to the applicant ’s case as his statement had been of a private nature and the applicant could not be considered to be a journalist with a socially necessary duty to inform . Therefore , the interpretation of the law adopted by the lower courts was correct . Making false allegations was illegal , whereas the question of due diligence would be taken into account only when assessing the fault of the defendant .

The court agreed with the facts as established by the lower courts in particular as regards the conclusion that the statement made by the applicant had not been true . Following the approach taken in the case thus far , the court considered that making an untrue statement that offended the personal rights of a person would always be contrary to the law . Breaching someone ’s personal rights would not be against the law only if the statement could be proven to be true . An untrue statement would remain illegal even if all efforts had been made to diligently collect and examine its factual basis . In consequence , whether the applicant had acted in good faith and in the public interest or believed that the statement had been true did not influence the illegality of his action and could only be considered when assessing his financial liability for offending the personal rights of Mr J.M.


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

The applicant was born in DATE and lives in PERSON .

The applicant was an employee of the ORG ’s railway company , Hrvatske željeznice . He suffered a work - related accident and became unable to work .

On DATE ORG ( ORG ) awarded the applicant a lump sum in compensation and ordered the defendant – Hrvatske željeznice DATE to pay him DATE payments in respect of the difference between his disability pension and the salary he would have been earning were it not for his inability to work .

On CARDINAL DATE ORG ( PERSON ORG ) increased the above - mentioned DATE payments . At the same time , it established that the applicant ’s inability to work was PERCENT due to the above - mentioned accident , and PERCENT due to a pre - existing illness .

On DATE the applicant instituted civil proceedings against Hrvatske željeznice , seeking that the above - mentioned DATE payments be increased on the grounds of changed circumstances .

The defendant did not oppose an increase in the DATE payments , but disputed the amount requested .

ORG commissioned a report from an accounting expert , and on CARDINAL DATE the expert witness submitted his report .

At a hearing held on DATE the expert witness gave oral evidence .

On DATE the first - instance court allowed the applicant ’s claim in part , but on DATE ORG ( PERSON u Vukovaru ) quashed the first - instance judgment in part , because it found that the first - instance court had failed to correctly establish the facts . It remitted the case for fresh consideration and ordered the first - instance court to establish , in terms of a percentage , how much the applicant ’s inability to work was due to his pre - existing illness .

In the resumed proceedings , the first - instance court commissioned a report from an accounting expert and ordered the applicant to pay costs in advance in the sum of CARDINAL NORP kunas ( HRK ) .

On DATE the expert witness submitted his report and the defendant objected to the expert ’s findings .

On DATE the expert witness submitted his observations in reply to the defendant ’s objection .

At a hearing on DATE the court heard oral evidence from the expert witness . He stated that he could not precisely determine individual amounts until ORG adjusted the applicant ’s pension .

On DATE , after ORG had adjusted the applicant ’s pension , the expert witness submitted an additional report .

At a hearing on DATE the expert witness again gave oral evidence .

On DATE , on the basis of the expert witness ’s report , the first - instance court issued a judgment allowing the applicant ’s claim in part .

On DATE the ORG quashed the judgment of DATE for substantial violation of the civil procedure rules and ordered a fresh consideration of the case . It held that the first - instance court had failed to take into account the fact : that the first - instance judgment of CARDINAL DATE had become final as regards an amount of CARDINAL former NORP dinars ( ORG ) per DATE payable for the period from DATE ; the applicant had turned DATE on DATE ; and he should have lodged an application for his disability pension to be recalculated as an old - age pension .

At a hearing held on DATE the first - instance court commissioned a further report from an accounting expert , in accordance with the instruction given by the second - instance court . Specifically , it ordered the expert witness , in calculating the DATE amount , to take into account the amount of MONEY which had already been awarded , as well as the fact that the defendant was PERCENT responsible for the damage at issue , and to establish whether the applicant had used his right to have his disability pension recalculated as an old - age pension when he had turned DATE .

Meanwhile , the defendant split into CARDINAL companies , and the firstinstance court ordered the applicant to correct his claim by accurately identifying the defendant .

On DATE the first - instance court declared the claim inadmissible , because it held that the applicant had failed to properly correct the claim .

Upon an appeal by the applicant , on DATE ORG quashed the first - instance decision , because it held that the applicant had already identified the defendant .

In the resumed proceedings , at a hearing held on DATE the first - instance court commissioned a report from an accounting expert in accordance with the second - instance court ’s instruction given in its judgment of CARDINAL DATE , and ordered the applicant to pay the related costs in the amount of HRK CARDINAL in advance .

On DATE and CARDINAL DATE the applicant asked for an exemption from paying the costs of the expert witness , claiming that , given his financial situation , and the fact that his pension was HRK CARDINAL per month and his wife was unemployed and without any income , he was unable to pay those costs without putting his own and his wife ’s subsistence at risk . He asked for those costs to be covered by the first - instance court ’s funds , a possibility provided for by LAW . He submitted a certificate from ORG concerning his pension and certificates demonstrating his and his wife ’s income .

At a hearing on DATE the applicant reiterated all the arguments and repeated that he had not been able to pay for the costs of the expert report . He asked the court to allow his claim as specified in his submissions of QUANTITY DATE . Neither party put forward any new evidence . The court set aside its decision of DATE regarding a further report from an accounting expert , because the applicant had failed to pay for the costs , and concluded the hearing .

On DATE , relying on the rules regulating the burden of proof , the first - instance court issued a judgment dismissing the applicant ’s claim . It held that , owing to his failure to pay for the costs of the expert report , the court had not been able to establish the exact amount of the DATE payments . In its reasoning , the first - instance court stated that ORG , in its decision of DATE , had awarded the applicant HRK CARDINAL for the violation of his right to a trial within a reasonable time , and that he could have paid for the costs of the expert witness with that money .

The applicant lodged an appeal , claiming that the amount awarded to him for the violation of his right to a trial within a reasonable time had been paid to him on DATE , namely after the first - instance judgment had already been delivered .

On DATE the second - instance court upheld the firstinstance judgment . In addition , it held that the applicant failed to demonstrate when the ORG had deposited the amount of HRK CARDINAL on a bank account of his representative .

The applicant then lodged an appeal on points of law ( revizija ) , which ORG declared inadmissible on DATE .

The applicant then lodged a constitutional complaint with ORG , and on DATE ORG declared it inadmissible as manifestly ill - founded .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s sister called the emergency services and reported that the applicant was causing a disturbance in respect of his family ( a făcut scandal ȋn familie ) . CARDINAL police officers from the ORG police , GPE and M.D.B. , were dispatched to the applicant ’s home .

Once they arrived at the applicant ’s home , the police officers proceeded to handcuff him in order to take him to the police station , because they claimed that he was aggressive towards them . The officers immobilised him and pushed him to the ground with his face down , even though he was not resisting arrest . They handcuffed him with his hands behind his back , dragged him towards a police car , and banged his head against a metal gate owned by a neighbour , PERSON

The Government acknowledged that the police officers had put the applicant to the ground and had forcibly handcuffed him . They stated , however , that the applicant ’s allegations of ill - treatment and of being thrown against a metal gate by the police officers were contradicted by the available evidence . The evidence proved that his injuries were not caused deliberately by the police officers .

On DATE CARDINAL of the police officers who had been dispatched to the applicant ’s home produced a contravention report , and fined the applicant CARDINAL NORP lei ( RON – MONEY ( ORG ) ) . According to the report , the applicant had offended his father , had been inebriated , and had admitted his actions . The report was signed by the applicant .

From DATE the applicant was in ORG in GPE . According to a medical report produced upon his discharge from hospital , he was diagnosed with a cervical spine injury and a minor cranial cerebral trauma .

On DATE the applicant ’s father lodged a criminal complaint against police officers PERSON and M.D.B. , on the grounds that they had physically abused his son . On DATE the applicant took up ( şia ȋnsuşit ) the criminal complaint lodged by his father against the police officers .

On DATE the NORP prosecutor ’s office interviewed the applicant ’s father with regard PERSON stated , inter alia , that his son had not been suffering from a psychological illness . On DATE of the incident the applicant had been inebriated and had made a scene , but he had not hurt either of his parents . Neither parent had called the police , and the applicant ’s father was unaware of who could have done so . The police officers had produced a contravention report in the applicant ’s name and had asked him to sign the report without informing him why . The applicant had complied and had signed the contravention report . Subsequently , he had agreed to accompany the police officers to the hospital , but had informed them that he needed to go inside the house to get dressed . The police officers had stopped him from entering the house , pushed him to the ground with his face down , and handcuffed him . Afterwards , they had dragged him away and banged his head against a metal gate owned by ORG When they had put the applicant in the ambulance he had had blood on his face , and they had left him in the ambulance face down and wearing handcuffs . The following day , Dr B. from the psychiatric unit of ORG had informed him ( the applicant ’s father ) that his son had been seriously beaten , and that he had been transferred to a different hospital because he had suffered a cervical spine injury .

On DATE the NORP prosecutor ’s office interviewed the applicant . In his statement , inter alia , he asked the investigating authorities to also interview his mother and GPE with regard to the incident . He also stated that he had signed the contravention report produced by the QUANTITY police officers , even though he had not been informed by them about its content . CARDINAL of the police officers had travelled with him in the ambulance . That officer had refused to remove his handcuffs and had punched him in the face .

On DATE the PERSON prosecutor ’s office interviewed both the applicant ’s mother and PERSON His mother stated , inter alia , that the police officers had not allowed her son to get dressed , had chased him through the courtyard , and had tripped him . After he had fallen to the ground they had twisted his hands behind his back and handcuffed him . Because the applicant had been agitated after he had been handcuffed , and had refused to accompany the police officers , they had repeatedly banged his head against the gate owned by ORG of the police officers had travelled with the applicant in the ambulance and had continued to beat him until he had been asked by the medical staff in the ambulance to stop the violence .

N.B. stated , inter alia , that he had been on the street on DATE of the incident and had seen CARDINAL police officers handcuff the applicant . Afterwards , they had grabbed him by his hands and had banged his head repeatedly on the gate owned by ORG further stated that he had worked with the applicant , and he had not been suffering from any psychological condition or drinking alcohol .

On an unspecified date in DATE the PERSON prosecutor ’s office asked ORG to examine the available medical documents and produce a forensic expert report in the case . The prosecutor ’s office asked the forensic service to determine : the applicant ’s injuries and their cause ; DATE of medical care needed for healing ; if there was a direct link between the applicant ’s injuries and their cause ; and if the injuries could also have been caused by something other than intentional force .

On DATE ORG examined the applicant and the available medical documents .

On DATE ORG produced a forensic expert report . It noted that on DATE of the incident the applicant had been transferred by ambulance to ORG because he had been extremely agitated and his breath had smelled of alcohol . Subsequently , he had been transferred to the hospital ’s psychiatric unit and had been sedated . The following day he had started complaining of pain in his cervical spine area , and of paralysis of his right hand . He had been examined and had been diagnosed with a cervical spine injury . The interdisciplinary medical examination carried out by , inter alia , a neurologist , a surgeon and an orthopaedist had not identified any signs of trauma . Eventually , the applicant had been admitted to a specialist hospital and had been operated on in relation to the cervical spine injury .

The forensic report concluded that the applicant ’s injury could have been caused on DATE . Most probably , the injury had been caused by a forced rotation movement of the neck when the applicant had been immobilised and handcuffed . No signs of trauma specific to intentional force had been identified on the applicant ’s head , body or limbs during the interdisciplinary examinations carried out after his admissions to ORG and ORG . The applicant had needed DATE of medical care from the moment of his injury .

On DATE a prosecutor attached to the NORP prosecutor ’s office decided not to open a criminal investigation against the CARDINAL police officers for abusive behaviour , on the grounds that their actions had lacked the elements of an offence . The prosecutor held that a third party had called the emergency services at the applicant ’s sister ’s request , because the applicant , who had a history of psychological problems and who had been drunk , had been aggressive and had endangered his own life and safety and that of his family . Once police officers PERSON and ORG had arrived at the scene of the incident , they had asked the applicant to calm down and accompany them to the police station . The applicant had refused the police ORG demand , and had become aggressive and had verbally abused them .

NORP The prosecutor further held that the applicant ’s father had confirmed the fact that the applicant had been drunk at the time of the incident . However , his statements that his son had not been aggressive and that he had been unaware of the identity of the person who had called the emergency services had not been confirmed by the rest of the evidence adduced in the file . Moreover , in such a case , it would have been highly unlikely that an individual would call the emergency services for no reason . According to the prosecutor , those arguments were also supported by the fact that , in the medical report produced by the psychiatric unit of ORG , where the applicant had been taken after the incident , it was stated that the applicant was suffering from a polymorphic personality disorder , which was aggravated by alcohol consumption . Also , his father had acknowledged that the applicant would generally act normally when he was sober , but transformed into a verbally and physically aggressive person once he drank alcohol .

The prosecutor also held that the applicant was known in his village as a violent and aggressive person with psychological problems . He had been investigated in relation to several other criminal files concerning alleged violent acts committed against the members of his family , and for theft , but the investigations had been discontinued after his parents had withdrawn their complaints .

The prosecutor noted that , according to the reports describing the police ORG intervention and the use of force and handcuffs , once the officers had arrived at the applicant ’s home they had realised that he was drunk , and they had been forced to immobilise him and take him to ORG . Also , according to the available medical documents , the applicant had been transferred to the hospital by ambulance , he had been extremely agitated , and his breath had smelled of alcohol . Subsequently , he had been transferred to the hospital ’s psychiatric unit and had been sedated . The following day he had started complaining of a cervical spine injury , which had eventually required surgical treatment . In addition , according to the information provided by the psychiatric unit of ORG , since DATE the applicant had repeatedly been admitted to the unit for similar reasons .

NORP The prosecutor held that the conclusions of the forensic expert report produced on DATE contradicted ORG and the applicant ’s GPE testimonies that the applicant ’s head had repeatedly been banged against ORG ’s gate by the police officers .

By referring to LAW no . CARDINAL/CARDINAL , but expressly citing the relevant provisions of LAW and CARDINAL of the same aforementioned PERSON , the prosecutor further held that , given the available evidence , the police officers had not injured the applicant deliberately . His injuries could have been the result of a forced rotation of his neck , which could have happened at the moment when he had been immobilised by the officers . Also , the police officers had stated that they had not hurt the applicant , and had confirmed that he had been drunk , and that he had been transported and admitted to hospital .

The applicant challenged the decision of DATE before a more senior prosecutor .

On DATE a more senior prosecutor attached to the NORP prosecutor ’s office dismissed the applicant ’s challenge as ill - founded , and upheld the decision of DATE .

The applicant appealed against the decision of CARDINAL DATE before ORG . In his written submissions he argued that the forensic expert report produced in the case was incomplete and superficial . The report had failed to determine if his injury would have been possible considering the physical characteristics of the parties involved in the incident and the standard procedure which had to be followed in cases of handcuffing . Also , the report had not explained how the forced rotation of his neck had happened , as he would not have made such a painful movement instinctively . In addition , the prosecutor ’s office had wrongfully dismissed his GPE and GPE ’s testimonies , as those witnesses had confirmed the police violence , and the forensic report had acknowledged that his injury had most probably been caused as a result of the forced rotation of his neck . Consequently , the applicant argued that the available forensic expert report had to be complemented by another report ( completat ) , and that the second report had to be submitted for the approval of a higher review commission .

The applicant further argued that none of the circumstances set out in sections CARDINAL and CARDINAL of Article CARDINAL of Law no . CARDINAL/CARDINAL had applied in his case . Also , even assuming that he had resisted immobilisation , as claimed by the authorities , the handcuffing measure could only have been taken against him if there had been a reasonable suspicion that his behaviour could endanger the police officers’ physical integrity or lives . Even assuming that such a situation had existed , the police officers had still had a lawful duty to use their handcuffs without seriously injuring him .

Lastly , the applicant contended that the prosecuting authorities’ conclusion that the police officers had not hurt him intentionally had been illfounded , given that the officers had indirectly acted with intent . In particular , they had foreseen the result of their actions , and even if they had not intended that result , they had accepted that it was a possibility .

On DATE ORG referred the case to ORG for examination .

By a final judgment of DATE ORG , sitting in private as a pre - trial chamber judge , and without the parties being present , dismissed the applicant ’s appeal against the more senior prosecutor ’s decision and upheld that decision . It noted that it had notified the parties about the date of the hearing , but they had failed to submit written observations . The court held that the PERSON prosecutor ’s office had correctly established that officers PERSON and ORG had not committed the offence of abusive behaviour . Also , the available forensic report did not need to be complemented by an additional report or submitted for approval . The forensic report had examined extensively the available medical evidence , and had concluded that no evidence of trauma as a result of deliberate force had been identified on the applicant ’s head , body or limbs during the multidisciplinary examinations .

The court further held that , according to the available medical evidence , the applicant had been in an extreme state of psychomotor agitation , and the cranial X - ray had not shown any post - traumatic injury of the skull . Consequently , the court considered that the existence of a minor cranial cerebral trauma had not contradicted the conclusions of the forensic medical report , which had taken that trauma ’s presence into account .

The court also considered that it had been unnecessary for the forensic expert report to explain how the forced rotation of the applicant ’s neck had happened , given that the victim would not have made such movements instinctively , because he had been drunk and extremely agitated at the time of the incident , and his behaviour could not have been compared with the normal behaviour of another person .

The court further considered that the prosecutor had correctly dismissed the testimonies in the case , given that , according to the forensic expert report , no trauma as a result of deliberate force had been identified , and the forensic pathologist had had the opportunity to consider the possibility of the applicant ’s head being banged repeatedly against a metal gate .

The court held that it was true that the police officers had had a duty to use their handcuffs without seriously injuring the applicant . However , the applicant ’s injuries had not been the direct result of the police ORG actions . They had occurred in circumstances where he had been drunk , violent and extremely agitated , and therefore the police officers could not have controlled their actions towards him .

The court also held that the violent actions towards the applicant had been carried out by the police officers within the framework of their work duties . In addition , the actions had been lawfully justified in order to alleviate the danger the applicant had represented to society and himself , given that he had been drunk , agitated and aggressive , and had been suffering from an organic personality disorder as a result of drinking alcohol . The police officers had not acted with the intent of hitting or hurting the applicant . His injuries had been the result of his immobilisation and handcuffing measures to stop his aggressive actions and transport him to the hospital . Therefore , the police ORG actions had been justified .

On DATE the applicant underwent a medical examination at a private medical establishment , ORG for the Brain . According to a medical report produced by that establishment , the applicant had an organic personality disorder with “ polymorphic decompensation ” ( decompensare polimorfă ) . The report noted that the applicant ’s symptoms included a moderate intrapsychological tension , concentration difficulties , mixed insomnia and a low resilience to frustration and annoyances . It further noted , inter alia , that the applicant had repeatedly been admitted to psychiatric hospitals , had poor social and family support , and persistent symptoms for which he was receiving treatment .

On DATE the applicant underwent a medical examination at ORG , because he was suffering from psychomotor agitation , a conflicted personality disorder , headaches , dizziness and mixed insomnia . According to a medical report produced by the hospital , he was diagnosed with an organic personality disorder and received treatment for his condition . The report also noted that alcohol and coffee consumption , as well as conflict , amounted to risk factors in relation to the applicant ’s medical condition .

NORP On DATE a neurologist attached to ORG in GPE produced a medical report in respect of the applicant ’s medical condition , following his operation for his cervical spine injury . According to the report , inter alia , the applicant continued to experience movement difficulties . Consequently , the report considered it appropriate that the applicant ’s ability to work be assessed by a local expert commission , with a view to his potential retirement .

On DATE the ORG branch of an office specialising in expert medical assessment of a person ’s ability to work , which was attached to ORG , acknowledged that the applicant was suffering from a serious functional deficiency and had completely lost his ability to work .