MUJKANOVIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicants , PERSON , FAC , Mr PERSON , Mr PERSON , PERSON and Ms NORP are citizens of GPE and GPE who were born in DATE and DATE , respectively . They live in different towns near the city of PERSON . The applicants were represented by TRIAL ( Track Impunity Always ) , a non - profit organisation based in GPE . CARDINAL of them had been granted legal aid .

The Government of GPE ( “ the Government ” ) were represented by their Deputy Agent , PERSON .

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

After its declaration of independence on DATE , a brutal war started in GPE . It would appear that CARDINAL people lost their lives and CARDINAL people were displaced in the course of the war . It is estimated that around CARDINAL people went missing and that around DATE of them is still missing . The conflict came to an end on DATE when ORG in GPE entered into force . In accordance with that Agreement , GPE consists of CARDINAL Entities , ORG and PERSON .

NORP In response to atrocities then taking place in GPE , on DATE ORG passed LAW establishing ORG for the former GPE ( “ the ORG ” ) , headquartered in GPE . CARDINAL individuals have already been convicted and proceedings are ongoing for CARDINAL accused . In the period from DATE until DATE , local prosecutors in GPE and GPE were required to submit case files to the ORG for review ; no person could be arrested on suspicion of war crimes unless ORG had received the case file beforehand and found it to contain credible charges ( the “ Rules of the Road ” procedure ) . Moreover , the ORG had primacy over national courts and could take over national investigations and proceedings at any stage in the interest of international justice . As part of the ORG ’s completion strategy , in DATE war crimes chambers were set up within ORG ( “ the ORG ” ) with primacy over other courts in GPE as regards war crimes ( for information about that court and its jurisdiction over war crimes cases , see ORG v. GPE [ ORG ] , nos . CARDINAL/CARDINAL and CARDINAL/CARDINAL , § § DATE , ECHR DATE ) . CARDINAL persons have been finally convicted by ORG .

Furthermore , ORG on ORG ( “ the ICMP ” ) was established at the initiative of GPE President PERSON in DATE . It is currently headquartered in GPE . Reportedly , the ICMP has so far identified by DNA CARDINAL missing persons in GPE , whereas local authorities have identified CARDINAL missing persons by traditional methods . In DATE the Government of GPE and the ICMP established a ORG , also headquartered in GPE ( see paragraph CARDINAL below ) . It became operational on DATE .

NORP Before the DATE - CARDINAL war , the population of the municipality of PERSON was ethnically mixed : according to a DATE census , out of a total population of CARDINAL , PERCENT were ORG , PERCENT NORP , PERCENT NORP ; PERCENT others . On DATE ORG took control of the city of PERSON pursuant to a secret plan made in advance ( notably , ORG of the ORG of the NORP People in GPE in a State of Emergency , adopted by ORG of ORG on DATE ) . Shortly thereafter , ethnic cleansing began . By DATE , there were practically no FAC and NORP left in the municipality of PERSON ( about the situation in the PERSON area at that time , see the ORG judgment in the PERSON and ORG case , ORG , § § CARDINAL - CARDINAL , DATE , not yet final ) .

One of the many crimes committed in the context of ethnic cleansing of the PERSON area was the taking of CARDINAL male detainees from Trnopolje camp to the location called GPE stijene and their killing by PERSON policemen on DATE . The men were made to leave the buses and walk towards the gorge where they were told to kneel down . Then the shooting began . The bodies fell into the gorge or were pushed over the edge . Grenades were then thrown into the gorge to make sure no one survived . The incident lasted for TIME . CARDINAL policemen were reported to be involved in the incident . CARDINAL persons survived the massacre , mainly by hiding under the corpses of others ( ibid . , § § CARDINAL - CARDINAL ; and the ORG judgment in the GPE case , IT-CARDINAL - CARDINAL-S , § DATE ) . Mr PERSON ( the husband of ORG ) , Mr PERSON ( the son of FAC ) , Mr PERSON ( Mr PERSON father ) , PERSON Edin PERSON and PERSON ( the sons of Mr Muharem PERSON ) , PERSON and ORG ( Ms Naila PERSON ’s son and husband ) , and Mr PERSON ( Ms GPE Huskanović ’s husband ) were killed in that incident ( see the ORG judgment in the PERSON and ORG case , cited above , § § DATE , DATE , CARDINAL - CARDINAL , DATE , CARDINAL - CARDINAL , DATE ; and ORG judgment in the PERSON case , PERSON , p. CARDINAL , DATE ) .

On DATE Mr PERSON pleaded guilty before the ORG to having participated in the killing at GPE stijene . He was sentenced to DATE imprisonment .

On DATE the ORG convicted PERSON , the leading figure in the war - time municipality of PERSON , for , among other crimes , the killing at GPE stijene and sentenced him to life imprisonment . On DATE an ORG upheld the convictions against Mr Stakić and rendered its judgment , sentencing him to DATE imprisonment .

On DATE a Trial Chamber of the ORG convicted PERSON PERSON PERSON and Mr PERSON , key figures in the war - time police of ORG , of the participation in a joint criminal enterprise to remove ORG and NORP from the territory of ORG , a natural and foreseeable consequence of which was , among other crimes , the killing at GPE stijene ( the third category of joint criminal enterprise ORG definition of this form of liability is set out in the ORG judgment in the PERSON case , IT-CARDINAL - CARDINAL-A , § CARDINAL , DATE ) . Each of them was sentenced to CARDINAL years’ imprisonment . The case is currently pending before an ORG of the ORG .

A case against PERSON , the war - time President of PERSON , is also currently pending before the ORG . He is charged with , among other crimes , the participation in a joint criminal enterprise to permanently remove ORG and NORP from ORG , a natural and foreseeable consequence of which was the killing at GPE stijene ( the third category of joint criminal enterprise ) .

As indicated in paragraph CARDINAL above , war crimes chambers were set up within ORG in DATE . Shortly thereafter , ORG ( “ the State Prosecutor ” ) opened an investigation into the killing at GPE stijene . In DATE , CARDINAL persons were questioned . This led to indictments against CARDINAL persons ( see paragraphs CARDINAL below ) . Furthermore , international arrest warrants were issued against QUANTITY persons who are still on the run , PERSON and PERSON .

On DATE ORG issued an indictment against CARDINAL persons for having participated in the killing at GPE stijene as a crime against humanity ( namely , PERSON , PERSON , Ljubiša Četić , PERSON , FAC , PERSON , GPE Stojnić and ORG ) . It entered into force on DATE . At the arraignment of CARDINAL DATE , the accused pleaded not guilty . However , on DATE , CARDINAL DATE and DATE CARDINAL of them , PERSON Ivanković , ORG and ORG , changed their plea to guilty . They were then sentenced to CARDINAL , DATE and DATE imprisonment , respectively .

On DATE and CARDINAL DATE ORG issued indictments against CARDINAL more individuals for the same crime ( PERSON , PERSON , GPE , PERSON and PERSON ) . They entered into force on DATE and DATE , respectively . All the accused pleaded not guilty at their arraignment . ORG decided to join the cases against those CARDINAL individuals on DATE .

On DATE a Trial Chamber of ORG found CARDINAL persons guilty of participation in the killing at GPE stijene as a crime against humanity ( PERSON , FAC , PERSON and GPE ) and sentenced them , respectively , to CARDINAL , DATE , DATE and DATE imprisonment . On DATE an ORG of ORG quashed that judgment and scheduled a fresh hearing . On DATE it convicted those CARDINAL people of the same offence and sentenced them to CARDINAL , DATE , DATE and DATE imprisonment , respectively . CARDINAL accused in that case , Mr ORG , was acquitted .

On DATE a Trial Chamber of ORG found CARDINAL more persons guilty of that crime ( PERSON , PERSON and PERSON ) and sentenced each of them to DATE imprisonment . The other CARDINAL accused in that case , PERSON and PERSON , were acquitted . An ORG of ORG has recently upheld that judgment .

On different dates DATE , the applicants sought and obtained declarations of presumed death with respect to their missing relatives .

CARDINAL exhumations have so far been carried out at GPE stijene : DATE , DATE , DATE and DATE . CARDINAL victims have been identified by DNA ( see ORG judgment in the LOC and Others case , SCARDINAL CARDINAL K CARDINAL DATE KrI , pp . CARDINAL , DATE ) , including Mr PERSON on the basis of CARDINAL bones on DATE and Mr Zafir Bajrić on the basis of CARDINAL bones DATE . On DATE the ICMP confirmed through DNA tests also that some fragments of bones which had been exhumed at GPE stijene belonged to either Mr PERSON PERSON or Mr PERSON ( since they were brothers and did not have children , the available mortal remains were insufficient for definite identification ) .

Around ten burnt bodies were also exhumed ( ibid . , p. CARDINAL ) . These are impossible to identify .

In DATE all the applicants lodged constitutional appeals alleging that the authorities’ reaction to the disappearance of their relatives amounted to a breach of LAW , DATE , DATE , CARDINAL and/or CARDINAL of the Convention .

On DATE ORG decided to join CARDINAL similar cases and rendered a group decision finding a breach of Articles CARDINAL and CARDINAL of the Convention . It ordered the authorities to release any and all information in their custody pertaining to the fate or whereabouts of the missing persons in issue and to ensure that the ORG agencies envisaged by LAW ( ORG and ORG ) become operational DATE . No compensation was awarded .

Under its mandate to examine complaints about non - enforcement of its decisions , on DATE ORG concluded that the decision of DATE , mentioned above , was to be considered enforced notwithstanding the fact that some of the ORG agencies envisaged by LAW ( precisely , ORG and ORG ) had not yet become operational . It held that no further action was required from ORG as the failure to enforce a similar decision had already been reported to ORG ( non - enforcement of a final and enforceable decision of ORG amounts to a criminal offence ; for the relevant law in that regard , see GPE v. GPE and GPE , no . CARDINAL , § § DATE , CARDINAL DATE ) .

NORP On different dates in DATE and DATE all of the applicants requested damages from ORG for the death of their relatives under PERSON general compensation scheme for war damage ( for more information about that scheme , see ORG and Others v. GPE , nos . CARDINAL et al . , § DATE , DATE ) . Their requests were either rejected as out of time or are still pending . CARDINAL of the applicants , PERSON , has lodged an appeal with ORG in this connection which is still pending .

LAW entered into force on DATE ( ORG GPE no . CARDINAL ) . In accordance with section CARDINAL of the Act , families have the right to know the fate of missing persons ( that is , their whereabouts if they are still alive , or the circumstances of death and their place of burial , if they are dead ) and to obtain their mortal remains . Under section CARDINAL of the Act , the relevant domestic authorities have the obligation to provide any and all such information in their keeping .

Section CARDINAL of that LAW provides for the setting up of a Missing Persons Institute . In DATE the ICMP and the Government of GPE founded the ORG , headquartered in GPE , pursuant to that provision and the Agreement on Assuming ORG - founders of ORG , no . CARDINAL/CARDINAL ) . It became operational on DATE . CARDINAL of the organs of that ORG , comprised of CARDINAL representatives of families of missing persons ( see LAW mentioned above ) .

In accordance with section CARDINAL of the LAW , the status of missing person comes to an end on the date of identification . Therefore , if a missing person is declared dead but the mortal remains have not been found and identified , the process of tracing continues .

Pursuant to LAW , the families of missing persons are entitled to DATE financial support under some conditions , notably if they were supported by the missing family member until his or her disappearance and if they are still in need of support ( in other words , if they are not in paid employment and do not receive welfare benefits beyond PERCENT of the average salary paid in GPE ) . LAW provides for the setting up of ORG for that purpose . However , as the ORG has not yet been established , no payment has been made so far .

Families of missing persons are also entitled to , inter alia , temporary administration of the property of missing persons , burial of mortal remains at public expense and priority in access to education and employment for the children of missing persons ( section CARDINAL of the Act ) .

Section CARDINAL of the LAW provides for the setting up of ORG with the aim of verifying information about missing persons from different sources ( government agencies , associations of families of missing persons , the FAC and ORG ) and creating a single database . While ORG were founded on DATE , it would appear that the verification process is still ongoing . Once that process is completed , all those recorded as missing will be declared dead ( section CARDINAL of the Act ) , but the tracing process will nevertheless continue ( see paragraph CARDINAL above ) .

Despite the fact that the verification process outlined in paragraph CARDINAL above is pending , any person may request that a declaration of presumed death be issued with respect to a missing person ( see the Non - Contentious Procedure Act DATE , ORG GPE , nos . CARDINAL , CARDINAL , CARDINAL ; the Non - Contentious Procedure Act DATE , ORG of ORG , no . CARDINAL ) . Pursuant to an amendment to LAW no . CARDINAL/CARDINAL ) , which entered into force in DATE , relatives of missing persons were required to seek such declarations with respect to their missing relatives by DATE if they wished to maintain the social benefits provided by that Act . There is no such an obligation in the legislation of PERSON where most of the present applicants live ( all but PERSON ) .


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre - trial detention . In applications nos . CARDINAL/CARDINAL and GPE , the applicants also raised other complaints under the provisions of the LAW .


CASE OF KHAVA AZIYEVA AND OTHERS v. RUSSIA

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);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Liberty of person;Security of person);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Life)

Dmitry Dedov;Elisabeth Steiner;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicants are :

CARDINAL ) PERSON , who was born in DATE ,

CARDINAL ) PERSON , who was born in DATE , and

CARDINAL ) Mr PERSON , who was born in DATE .

They live in ORG , GPE . They are the relatives of Mr FAC , who was born in DATE . The first applicant is his sister , the second and third applicants are his children .

At the material time the applicants and Mr PERSON lived at CARDINAL FAC , in the settlement of PERSON in PERSON . The first applicant ’s CARDINAL other brothers , PERSON and PERSON , had been convicted for the participation in illegal armed groups and were serving their sentences .

NORP In DATE Mr PERSON was arrested in GPE , GPE , and then convicted for the participation in illegal armed groups . In DATE he was released upon completion of the sentence .

For an unspecified period of time , prior to DATE , the first applicant was married to PERSON . who was wanted by the authorities for active membership in illegal armed groups . On DATE he had been killed as a result of a special operation carried out by the authorities in PERSON ( see application PERSON v GPE , no . CARDINAL concerning alleged abduction of the applicant ’s daughter PERSON by ORG agents during that special operation ) .

On DATE the applicants and their relatives were at home . Mr PERSON was not there . The applicants’ neighbours in the house across the street ( at CARDINAL FAC ) were preparing a wedding dinner ; their house was full of guests .

In TIME on that date a large group of servicemen in military camouflage or black uniforms arrived in CARDINAL ORG and ORG model civilian vehicles and cordoned off several streets around the applicants’ house . According to the applicants’ neighbours , the servicemen blocked access to the nearby streets to its residents explaining that they were conducting a special operation .

At TIME a group of CARDINAL armed men arrived at the applicants’ house in FAC in several vehicles . The men were in military camouflage uniforms , they were armed with automatic rifles , had portable radios and special military ammunition belts . The men spoke NORP and NORP . The applicants and their relatives thought that these men were police officers .

CARDINAL of the men went into the applicants’ house whereas the rest remained outside blocking the building and the nearby houses . CARDINAL of the CARDINAL men , who was in charge of the group , demanded in NORP that the first applicant telephoned her brother Mr PERSON and asked him to come home without mentioning that the police were waiting for him . Meanwhile , CARDINAL other men quickly searched the house . CARDINAL of the intruders received a phone call on his mobile phone and explained to someone that he was at work .

The first applicant called Mr FAC and asked him to come home as soon as possible . Mr PERSON told her that he would be there in TIME . The man in charge of the ORG group stood next to the applicant and listened to the conversation . As soon as the conversation was over he took the phone away from her and went outside whilst CARDINAL of his colleagues remained in the house .

The first applicant looked out from the window and saw that a group of CARDINAL other men was standing under the shed in the yard .

TIME of the policemen opened the house door and asked his colleague to come out . The first applicant tried to follow the man , but he closed the door from the outside . TIME he opened it and left the yard . Immediately afterwards the first applicant heard several cars starting their engines and driving away from the house .

According to the applicants’ neighbour , PERSON , she saw Mr FAC being taken away by the abductors who had waited for him next to the applicants’ house .

A number of the applicants’ neighbours and the wedding guests at CARDINAL FAC witnessed the arrival of the group of the men , who had resembled police officers , to the applicants’ house and Mr GPE removal by them . According to the applicants , the overall duration of the special operation was TIME .

TIME after the abduction , the first applicant ’s relative PERSON A. - M.A. went to the NORP district department of the interior in PERSON ( the ROVD ) and complained in writing about the arrest of PERSON Rizvan Aziyev . The officers at the ROVD denied any involvement into the events .

On TIME , DATE , an officer who introduced himself as PERSON , the district police officer , arrived at the applicants’ house , although neither the applicants nor their relatives had informed him about the events . The officer knew that Mr PERSON had been arrested and asked the applicants and their relatives about him and PERSON ( see paragraph CARDINAL above ) . He denied having any knowledge about the whereabouts of the applicants’ relative but promised to assist the applicants in his release . TIME the applicants’ relative , Mr A .- M.A. , spoke with him . The officer denied having any information concerning Mr PERSON whereabouts . Subsequently , the applicants found out that PERSON PERSON had not been a district police officer but a high - ranking officer of a NORP law - enforcement agency .

DATE the applicants and their relatives complained about the abduction to a number of local law - enforcement agencies . None of them accepted the responsibility for arresting or detaining Mr FAC .

On DATE the first applicant watched the video footage of the special operation conducted by the authorities against PERSON . on DATE ( see paragraphs CARDINAL above ) and recognised one of the law - enforcement officers who had participated in the special operation against PERSON . as the commanding officer of the group of the abductors who had taken away Mr PERSON later on DATE . That officer on the video had spoken with the GPE Minister of the Interior Mr PERSON . It is unclear whether the first applicant informed the authorities thereof .

NORP The applicants’ submission concerning the circumstances of the abduction and the surrounding events is based on the statements of the first applicant lodged with the application and the additional statement dated DATE , the statement of the applicants’ neighbour Mr PERSON dated DATE , the statement of the applicants’ relative Mr PERSON dated DATE and copies of the contents of the investigation file opened in connection with Mr PERSON abduction .

The Government did not dispute the facts as presented by the applicants . At the same time they pointed out that the abduction had been perpetrated by unidentified armed persons , whose outfits and firearms had been common among ordinary criminals , that the body of Mr PERSON was never found and that the witnesses to the abduction had not been sufficiently precise in the description of the ORG appearance .

On DATE the first applicant complained in writing about the abduction to the NORP inter - district prosecutor ’s office ( the prosecutor ’s office ) .

On DATE the investigator from the ROVD forwarded information requests to various district police departments in GPE asking whether Mr PERSON body had been found and/or whether he had been detained by their agents .

On DATE a group of investigators from the prosecutor ’s office arrived at the applicants’ house and briefly examined the crime scene . They only took photographs of the house and questioned PERSON who stated that she had seen the abductors taking away Mr PERSON ( see paragraph CARDINAL below ) .

On DATE the investigators again examined the crime scene and collected photos and the passport of Mr FAC .

On DATE the NORP district investigating department of the prosecutor ’s office ( the investigating department ) instituted an investigation into the abduction of Mr FAC under LAW ( aggravated kidnapping ) . The case file was given the number DATE .

On DATE the interim head of the investigating department ordered that by CARDINAL DATE the investigators into the abduction took , amongst others , the following steps :

“ ... the murder of Mr PERSON could have been committed by servicemen of law - enforcement agencies .

To investigate the matter fully and thoroughly and identify the perpetrators , it is necessary to ... establish eye - witness to the crime and obtain their information concerning its circumstances and the culprits ... ”

On DATE the investigators forwarded information requests to local hospitals and detention centres asking whether they had any information concerning Mr PERSON . The replies received were in the negative .

On DATE the applicants’ relatives , PERSON . A. and Mr ORG , were granted victim status in the criminal case and questioned ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE and CARDINAL DATE the investigators reiterated their information requests to various district police departments in GPE asking whether Mr PERSON body had been found and/or whether he had been detained by their agents . The replies received were in the negative .

On DATE the deputy head of the GPE investigating committee criticised the investigation in the criminal case and ordered that , amongst others , that the following steps be taken :

“ ... to correct the deficiencies of the investigation in the criminal case ... it is necessary :

- to examine again the crime scene to find such evidence as fingerprints with the participation of the [ relevant ] forensic expert ; ...

- to obtain list of phone calls made by Mr PERSON ... and the list of all mobile phone calls made in the vicinity of the crime scene DATE and establish the owners of the phone numbers from which they had originated ... ”

On DATE or DATE the investigators again examined the crime scene . No evidence was collected .

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

On DATE the first applicant was granted victim status in the criminal case .

On an unspecified date DATE the investigators obtained a detailed list of connections made from the Mr PERSON mobile telephone on the date of the abduction , CARDINAL DATE . According to the list , after the abduction , text - messages were received by the phone in the vicinity of the town of LOC which was QUANTITY from ORG .

According to the applicants , the investigators did not inform them of the progress in the criminal case . The applicants were able to familiarise themselves with the contents of the investigation file only after having been provided with a copy of its contents furnished by the Government upon the ORG ’s request to this end made on DATE .

On DATE the first applicant complained to the head of the GPE investigating department that the investigation of her brother ’s abduction was ineffective , stating , amongst other things , the following :

“ ... I familiarised myself with the contents of the criminal case file as a result of which the following has been established :

My brother had been detained at TIME on DATE . The case file contains the list of his mobile phone connections for DATE . According to that list , after the abduction , my brother ’s mobile telephone had received a text message while being in LOC . At that time a checkpoint had been functioning on the roads leading from ORG to Argun . Therefore , the persons who had detained my brother had taken him or his telephone to ORG ; they had passed through CARDINAL checkpoints of the law enforcement agencies . However , there is nothing in the case file showing that the investigators had taken any steps in respect of the staff who had manned those checkpoints on DATE .

NORP On DATE the persons who had detained my brother had carried out a special operation in PERSON . From the information obtained from the local residents , they had condoned off several streets and had not allowed anyone into the sealed off area .... In addition , these persons had used CARDINAL vehicles ... from the case file it does not follow that the investigation took steps to verify this information .

The investigators , when questioning the local residents , could have asked them not only of the vehicles used by the abductors , but also of the direction in which they had left . However , no such steps have been taken .

Mr PERSON had been abducted by a large group of armed persons who had arrived in CARDINAL vehicles and cordoned off significant area in PERSON . Every time if a member or several members of illegal armed groups resurface in GPE , the authorities take urgent steps to eliminate them . In my brother ’s case , the law - enforcement agencies had failed to take any steps to search for his abductors . They had arrived at the crime scene to inspect it DATE after the crime had been reported to them , in spite of the fact that already in TIME after the abduction my cousin Mr A .- M.A. had informed LOC of the abduction . From this it is possible to conclude that the authorities had known that the persons who had detained my brother , had belonged to law - enforcement agencies . It also follows that the investigation in the criminal case should have questioned lawenforcement officials responsible for LOC in PERSON in order to find out the reasons for their failure to take urgent steps to apprehend the abductors ...

The persons who detained my brother on DATE had been armed , in camouflage uniforms , had arrived as a large group , driven openly around PERSON and cordoned off large areas in the town . Nonetheless , the law enforcement authorities , having received the information about the abduction , had taken no steps to identify and arrest them . Such circumstances provide me with grounds to believe that my brother had been a victim of the ORG agents as a result of their special operation . In spite of those clear facts , the authorities had failed to establish the law - enforcement agencies empowered to carry out such operations in LOC in PERSON and to questions their servicemen .

From the above it follows that the investigation should have obtained information of all special operations conducted in ORG on DATE and their results . From the case file it follows that no such information was requested by the investigators .

... I and my relatives believe that PERSON provided the authorities with information about my brother which served as the basis for his arrest . Of course , GPE had known my former husband [ Mr A.Kh . ] . In connection with this the investigation in the criminal case should verify the theory of my brother ’s abduction by the same persons who had abducted PERSON and question the lawenforcement officer known as Mr PERSON who had asked me about PERSON . From the case file it follows that no steps have been taken to follow up on this information .

... In the light of the above , the actions of the investigation in the criminal case which led to failure to take the above and other investigative steps are unlawful and unsubstantiated ...

On the basis of the above ... I request that you :

Recognise as unlawful and unsubstantiated the actions of the investigators in criminal case no . DATE for the failure to take all of the above investigative steps ;

Oblige the investigators in the criminal case to resume the proceedings and take the above steps ;

Inform me of the results of the examination of this request in accordance with the law ... ”

It is unclear whether any reply has been given to this request .

No further information was submitted to ORG on the progress of the proceedings ; but from the documents submitted it follows that the investigation is still pending .

On DATE the investigators questioned the applicants’ relative PERSON . A. who provided detailed description of the abduction similar to the applicants’ account submitted to the Court .

On DATE or DATE ( the date is illegible ) the investigators questioned the ORG neighbour PERSON whose statement was similar to that of the applicants submitted before the ORG . In addition , she stated that the abductors had told her in NORP to get back in the house and stay inside . From the conversation she had overheard between them , the witness had understood that the fair - haired intruder of medium height and solid built in embroidered scullcap ( tubeteyka ) had been in charge of the group .

On DATE the investigators questioned the first applicant whose statement was similar to the applicants’ account submitted before the ORG .

On DATE the investigators also questioned Mr A .- M.A. whose statement was similar to the ORG account submitted to the ORG .

On DATE the investigators again questioned PERSON . A. and Mr A .- M.A. , both of whom reiterated their previously given statements .

On DATE the investigators again questioned the first applicant who reiterated her previously given statement .

On DATE the investigators also questioned the applicants’ relative and the father of Mr PERSON , Mr GPE , whose statement was similar to the applicants’ account submitted to the ORG .

On DATE the investigators questioned the applicants’ neighbour PERSON whose statement was similar to the applicants’ account submitted before the ORG . In addition , she stated that the abductors had spoken NORP and that she had subsequently learnt from the first applicant that when the abductors had arrived at their house , Mr FAC had been in a shop in the CARDINALrd district in ORG .

DATE . On DATE the investigators again questioned PERSON . A. and the first applicant both of whom reiterated their previously given statements .

The applicants maintained that it was beyond reasonable doubt that ORG agents had taken away Mr FAC and subsequently killed him . In support of their complaint they referred to the following facts . The abductors had arrived as a large group of armed men in uniforms in numerous civilian vehicles which were typically used by the local law - enforcement agencies ; the abductors had used portable radio - stations and condoned off a large area , which would have been impossible for an illegal armed group . The abductors had acted openly , without any fear of being discovered by the authorities and openly spoken with the applicants’ neighbours . The abductors had acted as an organised group under chain of command and had been able to drive unobstructed through checkpoints in the area . The authorities had not taken any urgent steps to establish the whereabouts of Mr FAC in spite of the applicants’ immediate complaint about it . Finally , the authorities had motives for the abduction of Mr FAC owing to his past as a member of illegal armed groups and his acquaintanceship with PERSON . who had been killed during the special operation carried out in another neighbourhood in PERSON on the same date . The applicants submitted that they had made a prima facie case that their relative had been abducted by ORG agents and that the essential facts underlying their complaints had not been challenged by the Government . They stressed that Mr PERSON had disappeared in life - threatening circumstances , that he had been missing for DATE of time and that therefore , he must be presumed dead .

The applicants further argued that the investigation of the abduction had been ineffective . In particular , they alleged that the investigators had either failed to take a number of crucial investigative steps or they had taken important steps with major delays and deficiencies . In spite of being informed of the abduction shortly after the events , the authorities opened the criminal case only on DATE and carried out the crime scene examination without forensic experts only on DATE , almost in DATE after the report of the abduction . By DATE the crime scene had not been examined by forensic experts ( see paragraph CARDINAL above ) that had led to the loss of such evidence as the culprits’ fingerprints , and the tracks of their boots and the PERSON tires . Not all the witnesses to the events had been established and those who had been identified and questioned had been questioned belatedly and in a superficial manner . The investigation into the abduction had accepted the theory that the perpetrators belonged to the ORG authorities and forwarded information requests to verify whether Mr FAC had been in State custody whereas the other theories had not been verified . Despite the clear indications to the special operation against Mr FAC , the investigators neither took steps to identify and question the law - enforcement officials as to the reasons for their belated reaction to the abduction nor requested information on special operations carried out in the area on DATE . The investigation was suspended in spite of the ORG failure to take basic steps ( see paragraph CARDINAL above ) .

Referring to the cases PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE the ORG contended that the applicants had failed to make a prima facie case of ORG agents’ involvement into the abduction as the witnesses had not been sufficiently precise in the description of the perpetrators ; the vehicles , uniforms and the firearms of the abductors could have been used by any other criminals and that there was no proof that Mr FAC had been dead as his body was never found . They further claimed that the investigation of the incident had met the Convention requirement of effectiveness , as all possible measures available under national law were being taken to have the crime solved .

The ORG points out that a number of principles have been developed in its case - law as regards applications in which it is faced with the task of establishing facts on which the parties disagree . As to the facts that are in dispute , the ORG reiterates its jurisprudence requiring the standard of proof “ beyond reasonable doubt ” in its assessment of evidence ( see ORG v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , ORG CARDINAL-VII ) . Such proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . In this context , the conduct of the parties when evidence is being obtained has to be taken into account ( see ORG and Others v. GPE , no . CARDINAL , § CARDINAL , ORG CARDINALVIII ) .

The ORG is sensitive to the subsidiary nature of its role and recognises that it must be cautious in taking on the role of a first - instance tribunal of fact , where this is not rendered unavoidable by the circumstances of a particular case ( see , for example , ORG v. GPE DATE . ) , no . CARDINAL , DATE ) . Nonetheless , where allegations are made under LAW and CARDINAL of the Convention , the ORG must apply a particularly thorough scrutiny ( see , mutatis mutandis , PERSON v. GPE , DATE , § CARDINAL , Series A no . CARDINAL , and ORG , cited above , § CARDINAL ) , even if certain domestic proceedings and investigations have already taken place .

The period of time that has elapsed since the person disappeared , although not decisive in itself , is a relevant factor to be taken into account . It must be accepted that the more time that goes by without any news of the disappeared person , the greater the likelihood that he or she has died . The passage of time may therefore to some extent affect the weight to be attached to other elements of circumstantial evidence before it can be concluded that the person concerned is to be presumed dead . Such an interpretation is in keeping with the effective protection of the right to life as afforded by LAW see , among other authorities , NORP v. GPE , no . CARDINAL , § DATE , ECHR CARDINALVI ) .

The ORG reiterates that where the applicant makes out a prima facie case , it is for the Government to provide a satisfactory and convincing explanation of how the events in question occurred . The burden of proof is thus shifted to the Government and if they fail in their arguments , issues will arise under LAW ( see GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE , and Akkum and Others v. GPE , no . LOC , § CARDINAL , ORG CARDINALII ) .

The ORG notes that in reply to its request for a copy of the investigation file into the abduction of Mr Rizvan Aziyev , the Government furnished its contents reflecting the period of the investigation DATE and DATE . The Government furnished no further updates on the progress of the proceedings . The applicants , on their part , updated the ORG on the progress in the proceedings to the extent known to them .

The ORG notes that the criminal case materials in its possession reflect primarily DATE of the investigation into the circumstances of the abduction . Taking into account the importance of DATE of an investigation into disappearance for the subsequent progress of the proceedings , the ORG finds that the materials furnished by the parties suffice for the examination of the application .

DATE . In view of the parties’ submission , the Court’s’ relative . As for the Government ’s reference to PERSON and Others , cited above , § DATE , the ORG notes , that unlike in that case where the abductors had arrived on foot and where the ORG statements concerning the perpetrators had been vague , in the present one there are materials in its possession demonstrating the validity of the ORG allegation of special operation for the following reasons . In spite of the absence at the material time of curfew in the area and the abductors arrival at the applicants’ house in civilian vehicles – unlike in numerous other cases concerning abductions perpetrated by ORG agents in the same district DATE prior to the events in question ( see , for example , PERSON v. GPE , no . CARDINAL/CARDINAL , § CARDINAL , DATE concerning abduction perpetrated in DATE ) the ORG would like to point out the following . Firstly , the abductors arrived as a large group in CARDINAL vehicles ; they cordoned off several streets and acted as an organised group . Their vehicles were able to drive freely through the military checkpoints situated in vicinity of PERSON . The abductors had informed the local residents that they had been conducting a special operation ( see paragraphs CARDINAL above ) . Secondly , from the investigation file it follows that the investigators took no meaningful steps to check whether the abduction could have been perpetrated for other reasons , such as a blood feud , ransom , drugs or hostility . No serious steps were taken to verify those hypotheses and no information was obtained that the abductors could have been other than ORG agents ( see , by contrast , PERSON v. GPE , no . CARDINAL/CARDINAL , LAW , DATE ) . Lastly , the reluctance of the authorities to verify the information concerning the connection between the abduction of Mr PERSON and the killing on DATE as a result of the special operation of PERSON . ( see paragraphs CARDINAL , DATE , DATE and DATE above ) provide the ORG with the grounds to conclude that the applicants have made a prima facie case that their relative was abducted by ORG agents . The Government ’s statement that the investigators found no evidence proving the involvement of members of lawenforcement authorities in Mr PERSON disappearance is insufficient to discharge them from the above - mentioned burden of proof . Having examined the documents submitted by the parties and drawing inferences from the ORG ’s failure to provide another plausible explanation for the events in question , the ORG finds that Mr PERSON was arrested on DATE by ORG servicemen .

There has been no reliable news of Mr PERSON since his arrest . The Government have not submitted any explanation as to what happened to him afterwards .

The ORG finds that , in a situation where a person is detained by unidentified police officers without any subsequent acknowledgment of the detention and is then missing for DATE , that situation can be regarded as life - threatening . The absence of Mr PERSON or of any news of him for DATE supports this assumption .

Accordingly , the ORG finds that the evidence available permits it to establish to the requisite standard of proof that Mr PERSON must be presumed dead following his unacknowledged detention by ORG agents .


Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in Şırnak .

ORG ( “ the Government ” ) were represented by their Agent .

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

On CARDINAL DATE the applicant was arrested by the police on suspicion of membership of an illegal terrorist organisation .

On DATE the judge at ORG took the applicant ’s statement and subsequently ordered his pre - trial detention .

On DATE the ORG public prosecutor lodged a bill of indictment against the applicant , charging him with membership of a terrorist organisation , and storage and use of explosive materials .

During the trial , ORG prolonged the applicant ’s detention having regard to the strong suspicion of the suspect ’s having committed the offences in issue and the fact that the offences in question fell within the categories listed in LAW .

On DATE ORG convicted the applicant and sentenced him to CARDINAL years’ imprisonment for membership of a terrorist organisation and storage of explosive materials .

According to the information in the case file , the proceedings are currently pending before ORG .


CASE OF NATSVLISHVILI AND TOGONIDZE v. GEORGIA

No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);No violation of Article 2 of Protocol No. 7 - Right of appeal in criminal matters (Article 2 of Protocol No. 7 - Higher tribunal;Review of conviction;Review of sentence);No violation of Article 6 - Right to a fair trial (Article 6-2 - Presumption of innocence);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition)

Alvina Gyulumyan;Corneliu Bîrsan;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria

The first and second applicants were born in DATE and DATE and currently live in GPE , GPE , and GPE , GPE , respectively . They are husband and wife .

The first applicant was the deputy mayor of GPE , the second largest city in GPE , from DATE and the managing director of the company operating the ORG ( “ the factory ” ) , one of the most important public companies in the country , from DATE . On DATE he was appointed chairman of the factory ’s supervisory committee at the ORG general meeting .

The first applicant owned PERCENT of the shares through purchases made in DATE and DATE and was the principal shareholder in the factory after the ORG ( PERCENT of the shares ) . The second applicant owned PERCENT of the shares , purchased in DATE , so together the couple owned a total of PERCENT of the shares .

The first applicant was kidnapped in DATE . After being severely ill - treated by his abductors , he was released in exchange for a large ransom paid by his family .

On DATE the first applicant was accused of illegally reducing the share capital of the factory , for which he had first been responsible as managing director and then as chairman of the supervisory committee . He was charged with making fictitious sales , transfers and writeoffs , and spending the proceeds without regard to the company ’s interests ( LAW – “ abuse of authority by embezzling and misappropriating the property of others ” ) .

On DATE the police and the LOC prosecutor went to the first applicant ’s workplace to arrest him . The arrest was filmed by journalists and broadcast on a local private television station TIME . The broadcast consisted of an interview with the prosecutor following footage showing the first applicant ’s arrest and escort down a flight of stairs , with his arms held by policemen and surrounded by journalists . The prosecutor made CARDINAL comments in respect of the matter : that the documents seized during a search of the first applicant ’s office “ were relevant to an ongoing criminal investigation and would be assessed and analysed ” , and that the charge which the first applicant faced carried up to CARDINAL years’ imprisonment .

NORP The prosecutor ’s interview was followed by that of the Governor of the Region . The Governor , without making any reference to the first applicant or the criminal proceedings against him , declared , among other things , that the ORG , which was “ experiencing difficult times [ due to a political crisis ] , would not stray from the path that it had chosen in pursuit of the identification of those who had devoured public money ... which was exactly why pensions and salaries had not been able to be paid on time ” .

On DATE the first applicant appointed a lawyer to protect his interests .

When questioned for the first time as a suspect on DATE , the first applicant , assisted by his lawyer , protested his innocence and exercised his right to silence .

On DATE the prosecuting authority brought an application before ORG to have the first applicant detained pending trial arguing that the first applicant , who was accused of a crime of a serious nature , might try to evade justice , prevent the discovery of the truth and pursue his criminal activities . Ruling on this request on an unspecified date , ORG decided to place the first applicant in detention for DATE . Applying Article CARDINAL of the Code of Criminal Procedure ( “ the ORG ” ) , the first applicant challenged that decision before ORG , which dismissed his appeal on an unspecified date .

On DATE the first applicant sent a letter to the prosecuting authority , which read as follows : “ Since I am not indifferent to the future of the automobile factory and consider it possible to settle the problems [ I am having ] with the ORG , I express my readiness to forfeit the shares in the factory which are currently in my and my wife ’s possession to the ORG . ”

On DATE the first applicant ’s detention pending trial was extended by ORG until DATE , and in DATE it was extended until DATE .

During DATE of his detention the first applicant was detained in the same cell as the person charged with his kidnapping in DATE ( see paragraph CARDINAL above ) and another person serving a sentence for murder . After ORG complained of that fact on the ground that it put the applicant ’s physical and psychological well - being at risk , the prison authorities transferred the applicant to another cell .

On DATE the first applicant and his lawyer were given access to the criminal case materials . On DATE the first applicant appointed a second lawyer to protect his interests in the proceedings .

On DATE the investigation was terminated , and the first applicant was indicted on the aforementioned charges . Having acquainted himself , with the assistance of his CARDINAL lawyers , with the case file in its entirety , he again protested his innocence but confirmed his intention to cooperate with the investigation .

On DATE both applicants transferred their shares free of charge , representing an overall total of PERCENT of the factory ’s share capital , to the ORG .

According to a written statement in the case file from PERSON , a worker in the factory , on DATE he and CARDINAL other employees of the factory transferred their shares to the ORG ex gratia , at the request of the prosecuting authority , in connection with the criminal proceedings against the first applicant and in exchange for the latter ’s release from detention . The case file contains a copy of the relevant ex gratia agreements dated DATE .

The file also contains a witness statement by PERSON , the second applicant ’s sister - in - law , that the public prosecutor had also demanded that the first applicant ’s family pay MONEY ( GEL ) ( QUANTITY ( ORG ) ) to ORG ensuring ORG the Development Fund ” ) in order to conclude a “ procedural agreement ” releasing the first applicant from detention . Thus , the public prosecutor had supplied them with the documents necessary for the transfer , adding that the first applicant ’s name must not appear as the CARDINAL paying the money . The public prosecutor insisted that the money not be paid to ORG directly by the applicants . PERSON therefore agreed to pay the required amount in her own name .

As confirmed by the relevant bank - transfer receipt , that payment was made on DATE , with PERSON name duly appearing on the document as the source of the transfer .

On DATE , DATE , the first applicant filed a written statement with the public prosecutor , requesting him to arrange a “ procedural agreement ” ( hereinafter a “ plea bargain ” ) , which procedure had been introduced into the NORP judicial system in DATE . The applicant specified that , whilst considering himself to be innocent , he was willing to reach an agreement as regards the sentence and to repair the damage caused to the ORG ; he stated that he would pay GEL CARDINAL ( ORG CARDINAL ) to the ORG budget in that connection . He added that he fully understood the contents of the agreement .

On DATE the public prosecutor of LOC offered and the first applicant accepted a plea bargain regarding sentence ( Article CARDINAL § CARDINAL of the ORG ) . The written record of the plea agreement mentioned that , whilst the applicant refused to confess to the charges , he had “ actively cooperated with the investigation by voluntarily paying compensation in the amount of GEL MONEY ( approximately ORG CARDINAL,CARDINAL,CARDINAL ) for the damage caused by his criminal activity by returning PERCENT of the shares in the factory to the ORG ” . The prosecutor further noted that , notwithstanding the fact that the applicant was charged with a particularly serious offence liable to a term of imprisonment of DATE , it was still possible , having due regard to the full compensation of the damage and in the interest of the efficient use of ORG resources , to offer him a plea bargain . Notably , the prosecutor promised that he would request the trial court to convict the applicant without an examination of the merits , seeking a reduced sentence in the form of a GEL CARDINAL,CARDINAL ( EUR CARDINAL,CARDINAL ) fine . It was explained to the applicant that the proposed plea bargain would not exempt him from civil liability . The first applicant stated that he fully understood the content of the bargain and was ready to accept it and that his decision was not the result of any duress , pressure or any kind of undue promise . The record of the plea agreement was duly signed by the prosecutor , the applicant and CARDINAL of his CARDINAL lawyers .

Also on DATE the public prosecutor filed a brief with ORG , requesting approval of the aforementioned plea bargain consisting of no examination of the merits of the case , of finding the first applicant guilty of the charges brought against him and of reducing the sentence to which the offences were liable by fining the accused GEL CARDINAL ( EUR CARDINAL ) . It was mentioned in the prosecutorial brief that it was accompanied by the written record of the plea agreement and CARDINAL volumes of the criminal case materials .

Also on DATE PERSON effected a bank transfer to the ORG in payment of the fine of GEL CARDINAL ( ORG CARDINAL ) as per the above - mentioned plea bargain between the first applicant and the public prosecutor .

At an oral hearing on DATE , ORG , sitting in a single - judge formation , examined the prosecutor ’s request of DATE . As disclosed by the record of the hearing , the judge explained to the first applicant , who was assisted by CARDINAL of the CARDINAL lawyers who had countersigned the plea bargain ( see paragraph CARDINAL above ) , his rights under LAW ORG . In reply , the applicant acknowledged that he was well aware of his rights and that he had agreed to the bargain voluntarily , without having being subjected to any kind of undue pressure during the negotiations with the prosecutor . That was confirmed by the lawyer as well . The first applicant and his lawyer then asked the judge to endorse the plea bargain , as submitted by the prosecutor , confirming that they fully accepted its consequences . The lawyer added that he had assisted in the plea - bargaining negotiations between his client and the prosecution , that it was his client who had insisted on reaching a settlement , and that he , as a lawyer , had provided all the necessary counselling to the applicant .

Relying on the documentary evidence and the testimony of various witnesses acquired during the investigative stage , ORG found that the charges brought against the first applicant were well - founded . The court also noted that , when he was charged on DATE with crimes under LAW § CARDINAL ( a ) , ( b ) and ( c ) and QUANTITY ( b ) of LAW , the applicant “ did not plead guilty and exercised his right to silence . However , having actively cooperated with the investigation , he had voluntarily repaired the damage of GEL CARDINAL [ ORG CARDINAL ] caused by his criminal activity by returning PERCENT of the shares in the factory to the ORG ” .

ORG further held that , following the judicial examination , it reached the conclusion that the plea bargain had been concluded in accordance with the law , that the first applicant had signed it in full knowledge of the facts and that it was not the result of any duress , pressure or any kind of promise which went beyond what was permitted in plea bargaining . The court thus sanctioned the agreement by declaring the first applicant guilty of the charges brought against him and sentencing him to a GEL CARDINAL ( EUR CARDINAL ) fine . The first applicant was then immediately released from the courtroom .

As mentioned in its operative part , ORG decision of DATE was final and not subject to appeal . A request could be made to have the decision quashed and the case reopened though , if newly discovered circumstances justified such a course of action .

According to the case file , after the termination of the criminal proceedings and his consequent release from detention , the first applicant left GPE and has since been residing in GPE , GPE .

After notice of the application had been given to the respondent Government on DATE and the parties had exchanged their observations , the applicants complained to the ORG , on CARDINAL DATE , that ORG ( “ the ORG ” ) was continuing to exert pressure on them , this time with the aim of having them withdraw their application from the ORG .

In support of that assertion , the applicants submitted a written statement given by their daughter , PERSON , dated DATE .

According to that statement , after having been told by her parents that pressure was being brought to bear on them , in DATE Ms GPE , who was a student at ORG in GPE at the time , decided to approach an acquaintance of hers who was working at the ORG , PERSON Subsequently , PERSON exchanged several e - mails with her acquaintance in which the latter , claiming to act on behalf of the ORG , expressed that authority ’s position on the applicants’ case . The case file contains a copy of the relevant e - mail exchange .

In the e - mail exchange , PERSON and PERSON addressed each other on friendly terms , using shortened , pet names and familiar instead of formal forms of address .

PERSON was the first to contact Ms T.B. , on DATE , asking her , as a friend and an experienced lawyer , to give her some advice about her master ’s thesis and a forthcoming examination in law .

On DATE Ms T.B. advised the applicants’ daughter , whom she considered to be “ a friend ” , that she had been “ personally ” working on her father ’s case and thus possessed important information emanating from ORG . Inviting the ORG daughter to express her GPE position on the matter , PERSON promised to share her hierarchical ORG views with them .

On DATE Ms T.B. informed the applicants’ daughter that the ORG would be ready to reopen the first applicant ’s criminal case and then terminate it again , this time in his favour , and to return the GEL CARDINAL ( EUR CARDINAL ) which had been paid by him as a fine . PERSON encouraged the applicants to think about that proposal quickly and to accept it , otherwise , she stated , “ the prosecution authority would defend its position in GPE and might even unilaterally annul the plea bargain and reopen the criminal proceedings against the first applicant ” .

On DATE Ms Natsvlishvili informed PERSON that her father was ready to reach a friendly settlement , as provided for “ by the Convention ” and under the scrutiny of the Court . PERSON then asked a number of procedural questions and also enquired whether it was possible , having due regard to the substantial pecuniary and non - pecuniary damage which had been inflicted on her family by the ORG , to review the conditions of the proposed settlement .

On DATE , DATE , PERSON replied that “ her personal involvement in the case was a guarantee that the applicants’ family would not find itself in an inauspicious situation again ” . PERSON then stated that the first applicant should file an application with the ORG , complaining that the plea bargain in question had been reached without a full consideration of his interests . The ORG would then treat that application as a request for the reopening of the case on the basis of newly discovered circumstances . PERSON assured the applicants’ daughter that , after the reopening of the case , the first applicant would , as a matter of fact , be rehabilitated by having obtained the deletion of the conviction from his criminal record .

PERSON then stated that the State would be ready to return the money which had been paid by the first applicant as a fine and the shares in the factory forfeited by the second applicant ; she explained that the first applicant ’s shares could not be returned as they had already been assigned to a third party . The ORG employee also assured PERSON that the first applicant would become eligible to return to GPE and to start business afresh there , in which entrepreneurial activity the prosecution authority would even assist him . PERSON then continued :

“ We all know that errors have been committed , but it has become a particularly vital issue , in the interests of the country , to set aside personal experience and trauma now , notwithstanding the painfulness of those [ experiences ] . I know that this is difficult , but if you can manage it , I am confident that after DATE have passed you would then be in a position to tell yourself that you were successful in differentiating GPE , as your own country , from individual ORG agents , and to tell yourself that you made your own small sacrifice for your country . ”

Ms T.B. specified that “ they ” , the ORG , were not telling the applicants to first withdraw their application from the ORG and to settle the issue at the domestic level afterwards . On the contrary , the ORG was ready to start working on the settlement of the issue at the domestic level first . However , PERSON then reminded the applicants’ daughter that “ they had only a month left for [ filing observations with ] GPE ” .

On an unspecified date , but apparently subsequent to the abovementioned e - mail exchange , PERSON informed PERSON that the ORG would be ready to pay to the first applicant , in compensation , GEL CARDINAL ( EUR CARDINAL ) and to take procedural measures to have the conviction deleted from his criminal record . She specified as follows :

“ As regards the issue of rehabilitation and compensation , the decision will apparently belong , according to the applicable rules of jurisdiction , to ORG . It will therefore be indicated in this court ’s decision that , given the fact that the remainder of [ the applicants’ ] shares have been assigned and that the factory has become indebted , it is factually impossible to return the shares in their entirety , which would then lead to the award of GEL CARDINAL [ ( EUR CARDINAL ) ] in pecuniary and non - pecuniary damages . ”

Ms T.B. then assured the ORG daughter that they could trust the ORG , as , in any event , should there be any improper conduct by the authorities , the applicants could always then complain to the ORG about the alleged hindrance of the right of individual petition under LAW , which allegation would be of particular harm for the respondent ORG ’s international image . PERSON mentioned , lastly , that the State might be ready to increase the amount of compensation to a maximum of GEL CARDINAL,CARDINAL ( FAC ) .


Remainder inadmissible;No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

Alena Poláčková;Branko Lubarda;George Nicolaou;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born on CARDINAL DATE and lives in GPE .

The applicant was employed at ORG on DATE . On DATE he was promoted to the position of assistant officer and on DATE he was authorised by the director of the department to sign payment orders as authorising officer . On CARDINAL DATE a complaint was made by the director following an irregularity in a compulsory acquisition case . It emerged from the investigation that a series of cheques had been issued as alleged compensation to owners of land that had been compulsorily acquired , but that the cheques had never reached the payees named on them .

A number of criminal proceedings were brought against the applicant and an accomplice . It also appears that a third person was charged but those proceedings were terminated following the filing of a nolle prosequi by the ORG . The proceedings against the applicant involved a total of CARDINAL criminal charges .

On DATE the applicant received concurrent sentences ranging from DATE imprisonment from ORG ( no . CARDINAL/CARDINAL ) on a plea of guilty , following a plea bargain to twenty-

CARDINAL charges concerning a number of offences . These included , inter alia , obtaining the amount of CARDINAL,CARDINAL.CARDINAL GPE pounds ( ORG ) ( MONEY ) by false pretences , issuing false documents , forging cheques , abuse of office , and concealment . Part of the agreement reached between the parties was that the applicant would repay the sum of ORG CARDINAL ( approximately CARDINAL,CARDINAL euros ) , and a confiscation order for that sum was issued in respect of his property . In imposing the sentences ORG also took into consideration another CARDINAL cases pending against the applicant before it as well as ORG of GPE .

The applicant lodged an appeal with ORG against his sentence ( criminal appeal no . CARDINAL/CARDINAL ) .

Following the applicant ’s conviction , and having received the Attorney - General ’s advisory opinion that the offences committed involved dishonesty or moral turpitude , the ORG instituted disciplinary proceedings against the applicant . Similar proceedings were also instituted against his accomplice , on whom the ORG imposed compulsory retirement pursuant to section CARDINAL(CARDINAL)(i ) of LAW of DATE ( Law CARDINAL/CARDINAL ; hereinafter “ LAW ” ; see paragraph CARDINAL below ) .

By a letter dated DATE the ORG informed the applicant of the Attorney - General ’s opinion and invited him to appear before it on DATE and to make representations before proceeding with the imposition of a disciplinary penalty .

NORP The ORG convened on DATE . The applicant ’s lawyer requested DATE to prepare his pleadings , as he had only recently been appointed and in view of the special nature of the case . The ORG granted the request .

On DATE , the applicant , who was represented by a lawyer , was heard by the ORG . He put forward a number of mitigating factors , which included his dire financial situation following suspension from his duties , the fact that he had paid off most of the sum agreed upon with the authorities , the conviction and sentence he had received from ORG , his significant DATE of service , and the less severe punishment imposed on his accomplice . He also submitted a socio - economic report by ORG .

On DATE the ORG decided to dismiss the applicant . In its decision the ORG observed that this case had been one of the most serious cases it had been faced with . The conception and planning of the crimes committed showed a well - set - up fraud which had dealt a blow to the prestige and credibility of the procedures of ORG and also to the image of ORG in general . The ORG noted that the offences of which the applicant had been convicted included some of the most serious offences against property , as well as abuse of office and concealment . The gravity of the offences was evident from the severity of the sentences applicable under the law , the substantial sum the applicant had secured through his unlawful actions , and the fact that CARDINAL more cases pending against him concerning similar offences had been taken into account by ORG when imposing sentence . The ORG also pointed out that the applicant had faced CARDINAL charges in total , which was unprecedented for GPE and which disclosed the seriousness and the magnitude of the case .

In reaching its decision the ORG observed that it had taken into account the circumstances and conditions under which the applicant had committed the offences . He had been authorised to sign payment orders and had been entrusted by the Republic with the important post of promoting cases concerning compulsory acquisition and serving citizens involved in these cases . The applicant , however , did not live up to his responsibilities , exploited his position , and developed his criminal activities with unprecedented effrontery and recklessness . He had been the mastermind , instigator and main executor of the criminal activities .

The ORG also noted that it had taken into consideration what had been said by the applicant ’s counsel in mitigation , in particular , the applicant ’s personal and family circumstances , as well as the fact that he had undertaken to compensate for the damage and/or part of the damage suffered by the Republic as a consequence of his criminal acts . Further , the ORG pointed out that he had been the main protagonist and this had been stressed by ORG when distinguishing the sentence passed on him from that passed on his co - accused .

Pursuant to section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , the disciplinary penalty of dismissal resulted in the forfeiture of the entire applicant ’s public service retirement benefits ( hereinafter “ retirement benefits ” ) . This entailed the loss of a retirement lump sum and a DATE pension .

Lastly , the ORG decided that the part of the applicant ’s salary that had been withheld during the period of his suspension from service would not be returned to him .

Up to the date of his dismissal the applicant had worked for DATE in the public service .

On DATE the applicant withdrew his appeal .

Pursuant to section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , his wife received a widow ’s pension . This amounted to CARDINAL ( ORG ) per year .

On DATE the applicant brought a recourse before ORG ( revisional jurisdiction ) under LAW , seeking the annulment of the ORG ’s decision to dismiss him from ORG and of the consequent forfeiture of his pension rights ( recourse no . CARDINAL ) .

The applicant claimed that the forfeiture of his retirement benefits had been in breach of LAW and LAW No . CARDINAL to the Convention . In this respect the applicant argued that his pension rights constituted a “ possession ” , and that their automatic forfeiture consequent to his dismissal was disproportionate .

On DATE ORG , in an ex tempore decision , held that the recourse was admissible . The court observed that the case concerned the discretion of the ORG in deciding on the dismissal , taking into account all relevant parameters and , in particular , the consequences dismissal would have for the applicant . Therefore , the decision on the penalty and the consequences were very closely linked , bringing to the forefront the principle of proportionality as the main aspect of the ORG ’s discretion . It was obvious from the ORG ’s decision that in exercising its discretion when choosing the penalty to be imposed it had taken into account the automatic , as it considered , by law , loss of retirement benefits . As a result the court concluded that the extreme severity of the case justified , despite its grave repercussions on the applicant ’s retirement rights , the penalty of dismissal . If in the end the court were to accept the applicant ’s claims , the setting aside of the penalty of dismissal could not be excluded . ORG therefore concluded that it could continue to examine the merits of the recourse .

On DATE ORG dismissed the recourse , but did not award costs against the applicant in view of the nature of the legal issues raised .

ORG , after having ruled that the retirement benefits of a public servant in GPE constituted a possession under LAW No . CARDINAL , went on to examine whether or not there had been a violation of the applicant ’s rights under this provision . Drawing guidance from the ORG ’s case - law , and in particular the judgments in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , DATE , and [ ORG ] , no . CARDINAL , ECHR CARDINALIII ) , and the decision in the case of ORG v. GPE ( ( dec . ) , no . CARDINAL/CARDINAL , ECHR CARDINALXI ) , ORG first pointed to those factors which justified the deprivation of the right to property in this case . CARDINAL such main factor in the court ’s view was the gravity of the offences committed . It considered in this respect that the characterisation of the case by the ORG as one of the most serious in its history did not appear to be an exaggeration . The impression given by the offences was such that not only did they entail a well - organised fraud but they also , most importantly , as the ORG asserted , dealt a blow to the prestige and trustworthiness of the administration . The court considered that sentencing the applicant to DATE imprisonment , as well as dismissing him , did not necessarily exhaust the limits of the discretion of the ORG to put things right . Besides , as in ORG , the non - deprivation of pension benefits in the case of a pension plan to which the employee did not make contributions would amount to rewarding the applicant .

At the same time , the serious consequences of the applicant ’s punishment - a sentence of CARDINAL years’ imprisonment and dismissal - had also to be considered , particularly the financial difficulties arising from the deprivation of the said rights as an additional “ punishment ” for the applicant and his family . The court observed that this was an important factor to be taken into account , according to the circumstances of each case . If the deprivation had not been automatic but discretionary within the framework of enacted procedures , as in GPE , it would have been possible to examine whether there should be a deprivation and to what extent . The court noted in this respect that it would indeed be good for the State to consider seriously the prospect of an amendment to the law so as to make the system more flexible and fairer in each case . Moreover , there was also the fact that the applicant had to a great extent returned the money he had embezzled , a fact which , although the ORG had said that it had taken it into account , did not appear to have affected its decision , since the punishment imposed on the applicant was , of the CARDINAL forms provided for , the extreme one of dismissal instead of choosing the second most serious form of punishment , that of compulsory retirement , which would not have entailed the loss of retirement rights .

In the end , however , ORG considered that the fact that the case in question arose and was heard on the basis of a different statutory regime from that in PERSON as regards the consequences of dismissal entailing the loss of pension rights , tilted the scales , albeit slightly , in favour of the Republic . The proviso in section CARDINAL(CARDINAL ) that the applicant ’s pension from DATE of his dismissal would be paid to his wife and dependent children as if he had died on that date reduced for the family the hardship resulting from the dismissal . Despite this , the court observed that it was likely that there would be cases with even more dire consequences for the dismissed employee , such as when there was no wife or dependent children , or their relationship was such that the dismissed employee could not reasonably expect to benefit through them . Nothing , however , had been said to include the present case among those cases , except for the theoretical possibility that his wife could die before the applicant . The court stated that , if matters were otherwise , it was likely that it would have ruled differently .

Finally , ORG stressed that the competent bodies should seriously study the possibility of amending the statutory framework on the basis of the law in force in GPE , so that deprivation of retirement rights was not automatic but could be looked at with the help of enacted procedures and with the exercise of discretion in order that the ORG might determine , by means of a reasoned decision , the extent to which it was just to forfeit , if at all , in any particular case , according to the individual ’s special circumstances and needs . ORG considered that both the rule of law and the modern conception of individual justice demanded this .

On DATE the applicant lodged an appeal with ORG ( appellate revisional jurisdiction ; appeal no . CARDINAL/CARDINAL ) . He first challenged the first - instance finding concerning section CARDINAL(CARDINAL ) of LAW . He submitted that this section was contrary to LAW and LAW , as the forfeiture of his retirement benefits had been automatic , without the exercise of any discretionary power . In this respect he argued that the first - instance court had applied the proportionality principle incorrectly during the examination of the penalty imposed by the ORG , and therefore had been wrong when it decided that the measure was proportionate and in line with LAW . Secondly , the applicant claimed that the finding of the first - instance court that the consequences of this decision were reduced because he was married and thus his wife and dependent children would receive a pension , was discriminatory on the ground of marital status and thus in violation of LAW .

On DATE the respondent Government also appealed ( appeal no . CARDINAL/CARDINAL ) challenging the first - instance findings ( a ) that in the present case the retirement benefits could be considered a “ possession ” ; ( b ) that in the disciplinary dismissal of a public servant there was no enacted framework providing for the exercise of discretion as to whether the retirement benefits would be granted ; and ( c ) that the payment of the pension to the applicant ’s wife was the only essential factor which tilted the scales in favour of the Republic .

On DATE ORG dismissed both appeals without awarding costs , in view of the importance of the matter raised . It agreed with the first - instance court ’s finding that the right to a pension and its conditions constituted a possession of the employee . This right was created by the appointment of the employee . The fact that a pension was given to the wife and dependent children suggested that pension benefits were considered as “ property ” which could be transferred . In this respect the court referred to its judgment in the case of GPE v. the Republic ( revisional appeal no . DATE , ( DATE ) CARDINAL ORG CARDINAL ; see paragraph CARDINAL below ) and the ORG ’s judgment in the case of ORG v. GPE ( no . CARDINAL , DATE ) .

The court went on to find , however , that the deprivation of the applicant ’s retirement benefits had been justified . In this respect , the court noted that the ORG had chosen the penalty of dismissal under section CARDINAL(CARDINAL ) of LAW , after exercising its discretion and after considering the consequences and the fact that such a penalty was in the public interest . The first - instance court had examined whether the imposition of the penalty of dismissal , which brought about the automatic forfeiture of retirement benefits , was disproportionate . It had examined whether the ORG , when exercising its discretion , had applied the principle of proportionality in deciding on the penalty of dismissal , which itself resulted in the automatic deprivation of retirement rights . In this respect it held that the ORG had exercised its discretion when deciding to impose the penalty of dismissal . The ORG had had a variety of available penalties at its disposal , such as compulsory retirement , which did not bring about the forfeiture of the pension . It decided , however , in view of the offences committed by the applicant , that such deprivation was justified .

ORG pointed out that ORG had acknowledged that the administration had wide discretion in deciding on such matters .

It went on to agree with the first - instance court that the deprivation of the applicant ’s retirement benefits had been justified in view of the seriousness of the offences , which had dealt a blow to the trustworthiness and credibility of the administration . The relevant domestic law provision was aimed at discouraging public servants from committing serious offences and at protecting the smooth running of the administration . Section CARDINAL(CARDINAL ) of LAW was not contrary to LAW , since the deprivation of retirement benefits was not a punishment on its own , but a consequence of the imposition of the penalty of dismissal .

The court went on to distinguish the applicant ’s case from that of ORG , in which the forfeiture had been automatic following a criminal conviction and had entailed deprivation of both pension and social security rights and therefore of all means of subsistence . In the present case , although the applicant had been deprived of his retirement benefits as a public servant , he had been entitled to receive benefits from ORG , which were calculated on the basis of contributions made by the employer and the employee . Referring to the ORG ’s judgment in the case of ORG v. GPE ( no . CARDINAL/CARDINAL , DATE ) , it found that the applicant had not been deprived of all means of subsistence .

As to the question of discrimination due to marital status , raised by the applicant , ORG held that the first - instance court ’s comments on the matter did not support the applicant ’s claim of discrimination . The comments in question had been made on a hypothetical basis and did not apply to the present case .

Lastly , ORG dealt with the remaining grounds of appeal put forward by the Government . It observed that the first - instance decision was to the effect that in the event of dismissal the law did not provide for a procedure concerning the exercise of discretion for forfeiting retirement rights , but it did not say that it was not possible to exercise discretion on the matter , since it recognised that there was a choice between dismissal entailing forfeiture of rights and compulsory retirement , which did not . Finally , it pointed out that the first - instance court had set out in its decision all the facts which it had taken into account in deciding on the proportionality of the forfeiture , and had rightly concluded that the payment of the pension to the wife meant that the deprivation was not disproportionate . The court did not award costs in view of the important issues raised .

The applicant has been receiving a social security pension from ORG since DATE , when he reached DATE . The pension therefore received by his wife pursuant to section CARDINAL(CARDINAL ) of LAW was then reduced by the complementary sum received by him from ORG . According to a letter dated DATE sent to her by ORG ’s ORG , her pension was reduced by ORG DATE .