CASE OF TOLESKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

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

On DATE GPE appropriated from several individuals the right of use of nationalised building land ( одземање од понатамошно користење на градежно национализирано земјиште ) located in an area PERSON land in question included a plot owned by the applicant ’s legal predecessor , measuring CARDINAL sq . m.

By a final decision of DATE , the applicant was declared heir of the right to claim restitution of the land . On DATE he requested its restitution .

On DATE ORG , operating within ORG ( ORG за финансии на ORG за Денационализација со седиште во ORG “ the ORG ” ) , accepted the applicant ’s request and ordered the restitution of the land ( “ the restitution decision ” ) . On the basis of documentary evidence of CARDINAL DATE obtained from ORG ( ORG за PERSON ) , ORG found that no structures of public interest , but rather “ beach service facilities and a leisure centre ” ( сервис објекти за плажа и центар за забава ) , were planned to be constructed on the plot in question . An expert had carried out an on - site inspection and had established that the land in question had been undeveloped building land and was part of the ORG lakeshore strip ( крајбрежен појас на GPE езеро ) . On CARDINAL and DATE ORG and ORG Instance informed ORG that they had no information as to whether any compensation had been paid to the applicant ’s predecessor for the appropriated land . By a letter of CARDINAL DATE GPE confirmed that neither the applicant nor his predecessor had sought compensation for the appropriated land .

A copy of the decision was served on ORG ( ORG ) but it appears that no appeal was lodged against the decision . Accordingly , it became final on DATE .

On DATE the land was restored to the applicant ’s possession ( предавање во владение ) . The minutes drawn by ORG stated that , although properly summoned , ORG did not attend the ORG ’s meeting .

On an unspecified date , PERSON , an association that ran a campsite near the plot in question ( “ the association ” ) , submitted documentation to ORG that the plot in question was developed building land and was in use by the campsite . It submitted TIME of a meeting between the association and municipal representatives of CARDINAL DATE which showed that the plot in question had been transferred to the association ’s possession . As stipulated in TIME , the plot in question had been given to the association for its use even earlier , on DATE . The association also submitted a decision from DATE in which the ORG was ordered to pay compensation to the applicant ’s predecessor for the plot .

On an unspecified date in DATE the Solicitor General requested that ORG , acting as a second - instance body ( Комисија на Влада на PERSON за решавање во управна постапка во втор степен од областа на денационализацијата – ORG ) , either annul ( поништи ) , declare null and void ( огласи за ништовно ) or quash through a supervisory - review procedure ( укине по право на надзор ) the restitution decision of DATE . ORG argued that the association had submitted documentary evidence that contradicted the facts established by ORG in that the land had been in use by the association and that compensation had been paid to the applicant ’s predecessor . That evidence had not previously been submitted to ORG .

In his reply of DATE , the applicant submitted that ORG could not rely on errors of fact as grounds for supervisory review of the final restitution order . He further denied that any compensation had been paid to his predecessor or him .

On DATE ORG carried out an on - site inspection and drew up a report according to which the land “ was vacant space between LOC and the GPE - St GPE road ” and “ it was not used for the servicing of any surrounding structures ” ( не е во функција на околни објекти ) . It determined that the land was intended for the construction of “ beach service facilities and a leisure centre ” , which could not be considered as being of public interest . Accordingly , possession of it could be restored ( може да биде предмет на реално враќање ) .

On DATE ORG accepted ORG request and declared the restitution order null and void finding that , pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of LAW ( see paragraph CARDINAL below ) , it could not be enforced . Relying on section CARDINAL of LAW , ORG stated that :

“ From all admitted evidence in the proceedings it can be established that the undeveloped building land was appropriated from the [ applicant ’s ] predecessor , that compensation was paid to the latter , and that the land in question is developed building land with playing fields and other leisure and recreational facilities , which are an integral part of camp E.

The [ ORG ] established that in the present case the final restitution order was based on a wrong application of the law , which was preceded by erroneous and incomplete establishment of the facts . ”

On DATE the applicant lodged an administrative action , arguing that ORG , in its decision of DATE , had established the facts correctly . In this connection he referred to ORG report of DATE ( see paragraph CARDINAL above ) and another on - site report of CARDINAL DATE drawn up for the purpose of an “ action for disturbance of possession ” in which it had been confirmed that the land had been vacant DATE a fact that had been established by ORG in an earlier civil dispute between him and the association ( see paragraph CARDINAL below ) .

On DATE ORG ( Управен Суд ) DATE which had meanwhile become competent to decide on administrative actions – dismissed the applicant ’s action and held that the annulment order of ORG had been lawful . It referred to section CARDINAL of ORG , sections TIME ) and CARDINAL of LAW , sections CARDINAL and CARDINAL of ORG , GPE and GPE , as well as sections CARDINAL , CARDINAL ) and CARDINAL of LAW ( see paragraphs DATE , DATE , and DATE below ) and relied on the fact that the land in question was part of the shoreline . The relevant part of the judgment reads as follows :

“ In the court ’s opinion , in deciding the present case , the [ ORG ] acted correctly when it declared null and void the final restitution order , in accordance with section CARDINAL(CARDINAL)(CARDINAL ) of LAW , under which a decision whose enforcement is not possible shall be declared null and void . In relation to this , the court emphasises that this provision does not concern only the factual , but also the legal impossibility of enforcement ...

... In view of the above - cited statutory provisions , it is undisputed that LOC and its shore are ... of general interest ( добро од општ интерес ) , which is relevant , in the court ’s view , for the restitution proceedings , within the meaning of LAW . ... ”

On DATE ORG ( FAC суд на GPE ) declared inadmissible an appeal against ORG judgment lodged by the applicant . ORG held that the impugned judgment had predated CARDINAL DATE , DATE when it had become competent to decide administrative actions in the second instance .

On DATE ORG rejected the applicant ’s request for reopening of the proceedings on the basis of newly discovered facts . That decision was confirmed on appeal by ORG in a decision of DATE .

On DATE the applicant applied to the public prosecutor ( GPE на GPE ) seeking that protection of legality proceedings ( Барање за заштита на законитост ) be instituted regarding the judgment of ORG DATE , as well as regarding the rejection of his request for the reopening of the proceedings . It appears that the public prosecutor accepted the applicant ’s application and lodged an application for the protection of legality with ORG , which the latter rejected as inadmissible on the grounds that the remedy in question was no longer available due to change in legislation .

Following the final decision to declare the restitution decision null and void , on DATE ORG dismissed the applicant ’s request .

On DATE , the applicant lodged an administrative action with ORG , challenging that decision .

On DATE , ORG quashed the decision . It found that the facts of the case relating to whether the plot was developed building land or not , as well as the issue of whether the applicant had received compensation , had not been sufficiently well - established .

On DATE ORG , after having made a fresh on - site inspection , upheld the applicant ’s restitution request .

On DATE the Solicitor General , acting on behalf of the ORG , challenged the latter decision with an administrative action , arguing that ORG had failed to obtain information as to whether the land was of public interest owing to its situation on the ORG lakeshore .

On DATE ORG dismissed ORG action and upheld the decision of ORG .

On DATE the Solicitor General lodged an appeal against the latter judgment with ORG ( Виш Управен Суд ) . The reasons stated in the appeal were , inter alia , that ORG had not given appropriate reasons as to whether the land had been of public interest .

The applicant died on DATE .

On DATE ORG quashed the judgment and remitted the proceedings . Relying on sections CARDINAL , CARDINAL and CARDINAL of LAW , it found that the land in question was part of the LOC strip and therefore was of public interest .

On DATE PERSON , the applicant ’s daughter , asked ORG to stay the proceedings . She submitted evidence that inheritance proceedings regarding the legacy of the applicant had been opened . The inheritance proceedings were later stayed due to civil proceedings in which she challenged the alleged existence of a will made by the applicant in favour of ORG , her brother .

On DATE ORG decided to stay the proceedings pending the outcome of the civil and the inheritance proceedings .

It appears that the civil and the inheritance proceedings are still pending .

In a separate set of proceedings concerning the same plot of land on CARDINAL DATE ORG overturned the lower court ’s decision and finally upheld the applicant ’s action for protection from disturbance of possession ( смеќавање на владение ) against the association which ran the camp regarding the same plot of land . It ordered the association to refrain from further disturbances .

According to a document from ORG dated DATE , the historical records of the plot of land show that the association was granted use of the plot as of DATE . The ORG had at the time remained the owner of the plot , which continued to be the case until DATE the document was issued .

On DATE and DATE , and CARDINAL DATE and CARDINAL DATE the applicant made additional submissions to the ORG , including evidence , which were added to the case file . This evidence refers to other neighbouring plots of land which , according to the applicant , had been returned to the possession of their respective owners . According to him , it had never been argued by the ORG that these neighbouring plots had been of public interest . In support he submitted several decisions from several different sets of restitution proceedings . It can not be ascertained whether any of those proceedings ended finally in the respective plaintiffs’ favour .


KOMISJA ZAKŁADOWA NSZZ SOLIDARNOŚĆ at FRITO LAY POLAND Ltd v. POLAND

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

NORP The applicant , PERSON ORG “ NORP ” at ORG in PERSON is an enterprise - level unit of the “ ORG .

It was represented before the ORG by PERSON , a lawyer with ORG , a non - governmental organisation based in GPE .

On DATE ORG found evidence of various violations of the workers’ rights related to the working time , unpaid overtime and breaches of the health and safety regulations at ORG in PERSON ( “ the company ” ) .

At DATE eight women employed in ORG were dismissed . Shortly after their dismissal , they complained to the President of ORG applicant trade union in the company , Mr ORG of the women claimed that they had been sexually harassed by their superior . The remaining CARDINAL alleged that that they had been dismissed for their knowledge of the sexual harassment . Mr GPE requested the management of the company that the dismissed employees be reinstated but to no avail .

On DATE the Mazowiecki Region Branch of the “ ORG filed a criminal complaint with the prosecutor ’s office . It alleged that ORG , a manager of the company had sexually harassed the employees . It also alleged that the rights of the employees had been violated .

On DATE ORG filed a bill of indictment with the ORG . He accused ORG of the sexual harassment of the employees . Another manager , PERSON was accused of wilful breach of the employees’ rights . No information has been provided as to the outcome of those proceedings .

Every DATE the applicant trade union had to inform the management of the company about the number of its members . On DATE it declared to the management of the company that it had CARDINAL members as of CARDINAL DATE . Having regard to the number of unionised employees and pursuant to the provisions of LAW , Mr GPE , the president of the board of the applicant trade union , was relieved from his normal duties and carried out his trade union activity .

On DATE newspaper “ ORG ” published an article about Mr GPE entitled : “ How to receive a salary and do nothing ” . The article stated that the number of unionised employees in the company had been inflated and that Mr GPE had therefore no right to be seconded to his trade union activity .

On DATE the management of the company requested the members of the board of the applicant trade union to indicate the number of its members as of DATE . This request was refused .

On DATE the employees were requested by the company director to proceed to a designated room in order to fill out a questionnaire about membership in the trade union . The employees had to present their identity document and to sign a list in order to receive a questionnaire . Then , they had to indicate in an anonymous questionnaire whether , or not they were members of the trade union as of DATE . The room had no arrangements ensuring the confidentiality of the process . The whole process was supervised by a notary and her assistant who drew a relevant record .

NORP CARDINAL employees of the total number of CARDINAL took part in the survey . CARDINAL employees confirmed to be members of the trade union at the relevant time ; while the trade union had declared CARDINAL members .

CARDINAL employees declared subsequently to the trade union that they had given a negative reply for fear of reprisal .

On DATE ORG dismissed PERSON ORG The reason for it was that Mr ORG had misled the company about the number of unionised employees which , in turn , allowed him to be relieved from his normal duties . Mr GPE instituted court proceedings for reinstatement .

On DATE ORG , a non - governmental organisation filed a criminal complaint against members of the management of the company . It submitted that the management of the company had acted illegally by requiring the employees to disclose their membership in the trade union . This action had amounted to the hindering of the trade union activity prescribed in LAW and discriminated against the unionised employees . The ORG submitted that if the employer had doubts about the number of unionised employees it should have initiated a relevant procedure before the civil court . It also asserted that the actions of the management had had intimidating effect on the current and future members of the trade union .

It appears that Mr GPE also filed a criminal complaint .

On DATE the company distributed a form among the employees which was to be returned within DATE . The form stated that “ If therefore for any reason the board of the “ NORP ” trade union at the company still considers me its member , I hereby state that it is my will to resign from my trade union membership as of DATE ” .

The investigation was initially conducted by the Grodzisk Mazowiecki District Prosecutor ’s Office but in DATE it was transferred to the GPE - ORG .

The prosecutor heard evidence from Mr GPE He stated that the company had been involved in a long conflict with the trade union . In DATE Mr GPE had informed the higher instances of the trade union about the alleged sexual abuse of a number of the employees . In his view , in reaction to that the company had decided to take measure aimed at undermining his credibility .

NORP The prosecutor also heard evidence from CARDINAL other members of the board of the applicant trade union . They stated that the trade union had been established in DATE . In DATE , having regard to the increased number of unionised staff , the president of the board of the trade union was seconded to carry out his trade union activity . According to them , the survey of CARDINAL DATE did not ensure confidentiality for the employees . CARDINAL members of the board of the trade union did not disclose their membership in the trade union for fear of dismissal . CARDINAL member of the board of the trade union stated that the members of the board had requested the employees not to disclose the fact of their membership .

NORP The prosecutor further undertook to verify the number of unionised employees at ORG She requested the regional branch of the “ ORG to provide information about the registration of the applicant trade union . A request was also addressed to the treasurer of the applicant trade union to inform the prosecutor of the number of trade union members based on the dues paid .

On DATE the GPE - ORG discontinued the investigation .

The prosecutor assessed the evidence and found that no criminal offence of hindering trade union activity , prescribed in section CARDINAL § CARDINAL ( CARDINAL ) of LAW , had been committed . She noted that under this provision the hindering of the trade union activity should have been of a significant character . However , the carrying out by the employer of an anonymous survey among the employees could not have been qualified as such . The evidence obtained in the case did not indicate that the action of the employer had significantly affected the activity of the trade union . The survey was carried out with a view to verifying the number of unionised employees . Such an action of the employer was not prohibited , while the trade union had an obligation to inform the employer DATE of the number of unionised members . However , if the employer had doubts about the number of unionised employees and then organised a voluntary and anonymous survey in the presence of a notary , it could not be said that the action of the employer had a significant influence on the trade union activity . The prosecutor lastly noted that the survey did not disclose the identity of unionised employees .

NORP The applicant trade union filed an appeal . It argued that the employer had no right to verify the number of trade union members and should have instituted proceedings before the civil court instead . The employer ’s actions led to the dismissal of Mr GPE and reduction of the membership of the trade union . The trade union further alleged that the prosecutor had failed to hear a number of important witnesses , in particular the company director , the notary and his assistant and , at least , some employees .

On DATE ORG upheld the prosecutor ’s decision . It noted that the prosecutor had correctly assessed the evidence in the case . The court agreed , in particular , that the hindering of trade union activity should have been of a significant character and that the carrying out of the anonymous survey could not have been considered as the hindering of trade union activity .

On DATE the “ ORG brought a complaint before ORG concerning the situation in ORG , alleging interference into trade union internal affairs and antiunion dismissal . The ORG ( ORG Hotel , Restaurant , ORG and ORG ) supported this complaint . The complaint also concerned a situation in another private company which is not relevant to the present case .

The complainant indicated that Mr GPE , the leader of the “ NORP ” trade union at ORG had been actively involved in a conflict concerning allegations of sexual harassment . The case of female employees who had been dismissed or forced to resign gathered a lot of attention from the media and from the international trade unions . The claimant described the survey organised by the company on DATE . It stated that the employees had been required to fill out a questionnaire concerning their trade union membership in circumstances that allowed easy identification of employees . Forms with a question “ Were you a member of the enterprise - level trade union organisation on DATE ? ” were filled out in the presence of CARDINAL persons and no arrangement had been made to ensure confidentiality . CARDINAL lawyers had been hired by the employer to supervise the procedure and this fact created an additional pressure . The complainant considered that due to lack of confidentiality , the majority of the trade union members had responded in the negative . It also described the circumstances leading to the dismissal of Mr GPE

The complainant further submitted that on DATE , a readyto - fill form had been distributed among the employees . The form contained the following statements “ I declare that I do not consider myself a member of the trade union ” and “ If therefore for any reason the enterprise trade union of the “ NORP ” trade union still considers me its member , I hereby state that it is my will to resign from my trade union membership as of DATE ” . The form was to be signed and returned to the management within DATE .

The complainant alleged that the acts of the employer to verify trade union membership had been clearly aimed at intimidating workers and contrary to the legislation in force . It noted that LAW provided for a possibility to apply to a court to verify the number of trade union members at a particular enterprise in the course of non - contentious proceedings . It alleged that as a consequence of the employer ’s action , the number of unionised employees had dropped from CARDINAL in the space of DATE . In conclusion , the complainant alleged that the actions undertaken by the management of ORG remained unpunished by ORG or any public institution . The claimant asserted that the above cases of anti - union climate in the enterprise , hostile attitude towards attempts of workers to organise , anti - union discrimination and problems related to the reinstatement of dismissed trade unionists constituted a serious threat to the rights guaranteed by the Convention no . CARDINAL .

ORG examined the complaint as case no . CARDINAL . In its first consideration of the case ( ORG , DATE ) , ORG held , in so far as relevant :

“ DATE . The ORG notes that this case concerns alleged violations of freedom of association by the management of CARDINAL private companies ( ... and ORG ) , namely : acts of interference in trade union affairs and anti - union dismissals .

As regards the situation at ORG , the ORG notes that the complainant alleges that PERSON [ ... ] Z [ ... ] , the leader of the enterprise trade union was accused by the employer of intentionally misinforming the company ’s management as regards the number of trade union members and was dismissed without the approval of the union committee . The complainant further alleges that the gathering of individual data on trade union membership , on the results of which the employer had later based the decision to dismiss PERSON [ ... ] , was conducted in a manner violating confidentiality ( ... ) and had a deterring effect on trade union members . Furthermore , on DATE , a ready - to - fill form letter was distributed among the employees of the enterprise attesting to their non - membership in the union , to be signed and returned to the enterprise management . According to the complainant , such intimidating acts lead to the dropping of trade union membership from CARDINAL to CARDINAL members in the space of DATE .

ORG notes that here too , the Government does not challenge the substance of the allegations but indicates that only ORG can make appropriate decisions with regard to the legality of the termination of the employment contract of Mr Z [ ... ] . ORG also notes the comments of ORG , which include the position of the management of ORG that they did not violate national legislation , that the procedure of verification of trade union membership was voluntary and anonymous and was a result of reasonable doubts over Mr Z [ ... ] ’s claims with regard to the number of trade union members . It further notes the concerns of ORG that the current legislation provides no means for verifying trade union membership .

ORG notes the ORG ’s further indication that ORG assured the Minister of Labour that it would continue monitoring the application by ORG of the relevant labour regulations . In view of the opening by ORG in PERSON of judicial proceedings in the case of the respect of trade union rights at ORG , ORG also called upon the Minister of Justice to give it priority . ...

While taking due note of the Government ’s statement that ... the case of Mr Z [ ... ] and the alleged violations of trade union rights at ORG are also under investigation , ORG must also observe that these cases have been pending since ... DATE ... . The ORG recalls that cases concerning anti - union discrimination contrary to LAW CARDINAL should be examined rapidly , so that the necessary remedies can be really effective . ...

ORG observes that the Government has reacted to the concerns raised in respect of the enterprises ... and ORG by referring the issue to ... ORG , as regards the latter . ”

ORG raised the issue of verification of trade union representativeness :

“ CARDINAL . ... , the ORG observes the concerns raised by ORG in respect of the lack of legal provisions for verifying trade union representativeness and requests the Government , in consultation with the social partners , to provide for an impartial and independent method for verifying trade union representativeness in order to avoid the problems that occurred in the case of ORG ”

ORG submitted , in so far as relevant , the following recommendations to ORG :

“ DATE . In the light of its foregoing conclusions , the ORG invites ORG to approve the following recommendations :

( b ) ORG urges the Government to reiterate and intensify its efforts , under the auspices of ORG , to ensure that the principles of freedom of association and collective bargaining are applied , particularly as regards the effective recognition of unions and the provision of adequate protection against acts of antiunion discrimination and interference . The ORG firmly expects that the situation of the respect of trade union rights in GPE will indeed improve with the approval of a national social agreement between the Government and the social partners and requests the Government to keep it informed of the developments in this regard .

( c ) The ORG requests the Government , in consultation with the social partners , to provide for an impartial and independent method for verifying trade union representativeness order to avoid the problems that occurred in the case of ORG ” .

ORG approved these recommendations in DATE .

Since its initial assessment of the case , ORG has reviewed the situation periodically . In its Report No . CARDINAL of DATE , it noted , in so far as relevant , that :

“ CARDINAL . With regard to the alleged violation of trade union rights at ORG , the ORG notes that : ORG concluded to the absence of any violation and closed the investigation on DATE ; this decision was challenged by the ORG “ GPE ” and that on DATE , ORG for ORG of GPE dismissed the complaint and upheld the decision of ORG . ORG requests the Government to provide copies of both decisions .

The ORG ... requests the Government to continue providing information on concrete measures taken to ensure that the principles of freedom of association and collective bargaining are applied , particularly as regards the effective recognition of unions and the provision of adequate protection against acts of anti - union discrimination and interference . The ORG further requests the Government to provide information on any progress reached with regard to the development of an impartial and independent method for verifying trade union representativeness , in consultation with the social partners . ”

In its subsequent Report No . CARDINAL of DATE , ORG took note of the decisions of ORG and ORG , transmitted by the Government , which had both concluded that there was an absence of any violation of trade union rights at ORG regretted that no information had been provided with regard to its other outstanding recommendations . It observed that similar matters were being raised by ORG and referred the follow - up of those legislative aspects to it .

Pursuant to section CARDINAL § CARDINAL of LAW of DATE an enterprise - level trade union should inform the employer about an overall number of its members DATE . LAW regulates the right of members of the board of an enterprise - level trade union to be relieved from their normal duties in order to carry out trade union activity . The number of members of a board who could benefit from this right depends on the number of members of a trade union in an enterprise .

LAW provides in section QUANTITY ) as follows :

“ Whoever in connection with the office held or the function exercised hinders the trade union activity carried out in accordance with the provisions of the law shall be liable to a fine or a restriction of liberty . ”


No violation of Article 6+6-3-c - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6 - Right to a fair trial;Article 6-3-c - Defence through legal assistance)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Yonko Grozev

The applicant was born in DATE and lives in GPE .

On DATE at TIME the applicant , who was under the influence of alcohol , was involved in a fight outside a grocery store in the presence of several witnesses . He stabbed another individual with a knife , as a result of which the latter died . DATE the police opened a murder investigation into the death .

At TIME on DATE the applicant – who in DATE had been released from prison , having served a sentence for an earlier conviction for inflicting physical injuries – was placed under arrest on suspicion of murder . The record of his arrest contained a written statement from him confirming that he did not need a lawyer .

On DATE , DATE and DATE the police questioned the applicant as a suspect . The interview records contained his signatures confirming that he had been informed of his right to instruct a lawyer to attend his interview , and that he did not need CARDINAL .

During his first interview the applicant denied any involvement in the fight or the murder .

During his second interview he stated that on DATE , having consumed alcohol , he had been riding a bicycle when ORG had suddenly run into him from an alley . They had started arguing and ORG had hit the applicant , who had responded with several punches . Afterwards , CARDINAL other young men had joined in the fight , and the applicant had been kicked to the ground . At some point the applicant had noticed that a woman was restraining O. and not letting him approach the applicant . Another unknown young man , who had not taken part in the fight , had restrained the applicant . The applicant had thought that the young man was going to attack him , and had therefore picked up his knife from the ground and stabbed him .

On DATE the applicant was formally accused of murder under section CARDINAL of LAW ( PERSON ) for having stabbed the victim with the intent to kill him “ because of a personal conflict ” .

On DATE the applicant was provided with a ORG - appointed lawyer , PERSON , to assist him during the preliminary investigation . On DATE he was questioned as an accused person in the presence of S. He partially admitted his guilt . In essence , he reiterated the statements made in his earlier interviews . He stated that he had used the knife against the victim because he had known that the victim wanted to hit him , although he could not say whether the victim had already hit him at that point or , if not , when the victim was going to attack him .

On DATE the judge extended the applicant ’s detention until DATE . The judge noted that S. had submitted that keeping the applicant in detention was not justified , as he did not present any danger and had no reason to evade justice , since he had a job and a permanent place of residence .

On DATE the public prosecutor charged the applicant with murder under section CARDINAL of LAW . S. was present . On DATE the applicant was questioned in the presence of S. and confirmed his earlier testimony of CARDINAL DATE ( see paragraph CARDINAL above ) .

On DATE , TIME , the applicant familiarised himself with the case file in the presence of S. He wrote in the relevant record that he had no remarks or requests , and also asked to be provided with a lawyer for his trial .

On DATE the public prosecutor transferred the case to ORG ( Daugavpils tiesa ) for trial .

On DATE the applicant complained to ORG that he had not been assisted by a lawyer when he had familiarised himself with the case file .

On DATE was assigned to the applicant ’s case to assist him in the proceedings before ORG . On DATE S. familiarised himself with the case file .

On DATE the applicant complained to ORG that S. had convinced him to partially admit his guilt , although he had not wished to do so . Furthermore , PERSON had not been present when he had familiarised himself with the case file . He did not wish to be assisted by S.

On DATE a first - instance hearing was held . The court examined the applicant ’s complaint regarding PERSON , who stated that his client ’s own interests and those relating to his defence diverged . S. invited the court to uphold the applicant ’s application for him to be released from his duties . After the court decided to release PERSON from his duties , the applicant stated that he needed to be assisted by a lawyer . The proceedings were adjourned .

On DATE a senior lawyer of ORG refused the court ’s request to provide the applicant with another ORG - appointed lawyer , stating that PERSON had carried out his duties diligently , and LAW kodekss ) did not give an accused the right to freely choose a lawyer . The applicant had the right to appoint a lawyer of his own choice ( and pay for his or her services ) , and the right to waive his right to legal assistance .

On DATE the applicant asked ORG to provide him with a ORG - appointed lawyer .

On DATE ORG informed the applicant that , in the event that an accused raised an unjustified challenge in respect of his or her lawyer , he or she had a right to request another lawyer , at his own expense .

On DATE the applicant was provided with a ORG - appointed lawyer , NORP , to assist him in the proceedings before ORG . On DATE NORP familiarised himself with the case file .

On DATE a hearing was held before ORG . The applicant asked the court to ensure the attendance of several witnesses . NORP maintained that application . The next hearing was fixed for DATE .

On DATE the applicant wrote a letter to NORP and asked why he had agreed to represent him , given their “ unpleasant ” first meeting during which NORP had indicated his intention to refuse to act as the applicant ’s counsel . The applicant also asked NORP to guarantee that he would persuade the trial court to order CARDINAL new measures in order to obtain evidence . According to the applicant , the following measures would prove his innocence in relation to the murder charge : searches of other unspecified witnesses , polygraph testing , and another psychiatric examination . The applicant stated that if NORP did not wish to defend him , then he had the opportunity to withdraw from the case , which would provide a satisfying solution for them both . However , if NORP acted in the same way as his previous defence lawyer , the applicant would ask the trial court to discharge NORP from his duties .

On DATE the applicant submitted several written applications to ORG . He asked for the criminal case to be remitted to the prosecutor ’s office in order to rectify the bill of indictment by changing his motive for the alleged offence . The court dismissed the application , as it had not yet started its adjudication or assessment of the evidence . The court further dismissed the applicant ’s second application to end his pre - trial detention . As regards a third application to examine evidence concerning the scene of the crime and search other unspecified witnesses , the court decided to postpone examination of those requests until the end of its adjudication . In that regard , it noted that all defence witnesses had been summoned to the hearing . The court then dismissed the applicant ’s application for another forensic medical examination on the grounds that one had already been carried out in DATE . All the applications were dealt with at a hearing and the applicant was present when the relevant decisions were announced .

During the hearing , NORP reserved his comments as regards the applicant ’s application to call other unspecified witnesses and have a new indictment , on the grounds that those were matters to be examined at the end of court ’s adjudication . He supported the applicant ’s application for additional psychiatric examination and the attendance of all the defence and prosecution witnesses summoned to the trial . With regard to the applicant ’s other application , NORP stated that it was at the court ’s discretion .

In his subsequent written application ( “ a refusal ” ( отвод ) ) , the applicant relied on LAW and asked the court to release NORP from his duties . In that application , the applicant referred to his letter to NORP dated DATE ( see paragraph CARDINAL above ) , to which the applicant had expected a favourable response , but to which NORP had not responded . The written application stated that the applicant was refusing the services of NORP on the grounds that all applications made to the court on DATE had been drafted by the applicant , and NORP had not shown any interest in asking the court to order the examination of witness statements about the scene of the crime , new psychiatric expert evidence , or the correction of the motive in the bill of indictment . NORP had merely supported the above applications .

At the end of the written application the applicant asked ORG to provide him with another ORG - appointed lawyer who would carry out his function in compliance with LAW .

In reply to the applicant ’s application , NORP presented the applicant ’s letter of DATE to the court and invited it to establish whether the applicant needed a lawyer at all . In reply to a question put by the court , the applicant could not name a lawyer to be provided for him .

On DATE ORG decided to uphold the applicant ’s application to release NORP from his duties and rejected his application for appointment of another legal aid lawyer . It noted that the applicant had declined the services of NORP because the latter could not guarantee that he would be acquitted , and the applicant had been of the opinion that NORP had not adequately defended him . ORG dismissed the applicant ’s application on the grounds that he had twice been provided with a lawyer and had twice refused their services . Under LAW of LAW , a lawyer was appointed by a court and not chosen by an accused himself . In accordance with LAW , an accused had the right to waive his or her right to legal assistance , but no right to request replacement of a lawyer . According to ORG , the applicant ’s refusal of NORP ’s services had been unjustified , and meant that he did not wish to have a legal aid lawyer at all . The court stated that the applicant was seeking to delay the proceedings .

From DATE the applicant did not have legal assistance in the first - instance proceedings .

During the hearing of DATE , when invited by the court to put questions to witnesses , he refused to do so , stating each time that he would either ask questions when represented by a lawyer or not ask questions at all . At the applicant ’s request , ORG adjourned the hearing to summon other absent witnesses .

During the hearing of DATE the applicant , referring to section CARDINAL of LAW GPE likums ) ( see paragraph CARDINAL below ) , asked the court to ensure that his defence rights were respected . His earlier applications to replace the CARDINAL ORG - appointed lawyers could not be construed as a waiver of his right to legal assistance ; he had refused the assistance because of a “ disagreement ” and a “ failure to provide legal assistance ” . The applicant asked the court to provide him with a list of lawyers and a means of communicating with them , or , in the alternative , to ensure that he was assisted by CARDINAL of the CARDINAL lawyers he named . The court explained that the applicant ’s application for a lawyer had been decided on DATE . It adjourned the hearing in order to summon absent witnesses .

During the next hearing on DATE the applicant alleged that CARDINAL people had been present when the alleged crime had taken place , but CARDINAL of them had been called as witnesses . He therefore asked the court to identify the other witnesses . In reply to a question put by the court , the applicant confessed that he had stabbed the victim , but stated that he had not intended to kill him . At the applicant ’s request , ORG adjourned the hearing , giving him time to give evidence and to submit a list of defence witnesses .

On DATE Judge PERSON of ORG sent the applicant a list of lawyers practising in GPE whom the applicant could contact in order to obtain a legal consultation . He noted that the case file contained no evidence pertaining to the applicant ’s status as a person of low income , and that the applicant would be provided with a ORG - appointed lawyer at appeal stage if the case were to reach it .

At a hearing on DATE ORG examined several applications lodged by the applicant . As regards another application for appointment of a lawyer , the court held that the matter had previously been decided and could not be re - examined . During the same hearing ORG verified that the applicant had duly received the document setting out the charges against him . The court upheld the applicant ’s application for an adjournment , and adjourned the hearing to give him time to prepare for the arguments in court .

On DATE the prosecutor amended the charges against the applicant by changing the motive of the crime to , “ acting with no reason , being guided by hooligan tendencies ” .

On DATE ORG found the applicant guilty of murder . The court noted that the applicant had partly admitted his guilt during the preliminary investigation in saying that he had stabbed the victim , but claiming that he had not intended to murder him . The court went on to refer to the evidence of CARDINAL witnesses who had been in the immediate vicinity of the incident . The court did not have any doubts as regards the applicant ’s intent . He had stabbed the victim in the chest and had himself testified that he had aimed to stab the victim in the left part of his chest . All the witnesses , except CARDINAL , had confirmed that the applicant had stabbed the victim after the fight had ended . The applicant had had no need to defend himself , because the victim had been unarmed and had not posed any threat to him . On the contrary , the victim had not taken part in the fight at all , but had wanted to stop it . The court dismissed as unreliable the evidence of an eyewitness who had been transported to a hearing and detained with the applicant .

In addition , the court relied on documentary evidence , such as the conclusions of the forensic psychiatric examination . The applicant was sentenced to CARDINAL years’ imprisonment .

As regards the applicant ’s right to legal aid assistance , the court observed that he had twice refused the services of ORG - appointed lawyers . LAW , as in force on DATE , did not provide for the right of an accused to decline the services of a lawyer . The court further dismissed the applicant ’s allegation that the ORG - appointed lawyers had not provided him with adequate legal assistance . At that point , the court had not yet started to hear the evidence . In addition , the applicant had wanted the lawyers to guarantee that he would be acquitted , and had referred to their performance in cases where they had assisted other individuals . The court also noted that witnesses had twice been called to testify , once following an application by the applicant , who had then refused to put any questions to them , arguing that he had not been granted a lawyer .

On DATE the applicant lodged an appeal , which he supplemented on DATE . He submitted that his defence rights had been violated and asked ORG ( ORG apgabaltiesa ) to call all the witnesses , without providing any reason for that application . He stated that he needed a lawyer at an appeal hearing , and asked for an opportunity to meet him or her prior to the appeal hearing to agree on a defence strategy .

At a hearing on CARDINAL DATE the applicant was assisted by PERSON and PERSON asked the court to adjourn the hearing , stating that more time was needed in order to prepare a defence . The hearing was adjourned until DATE .

On DATE the applicant was represented by a ORG - appointed lawyer , ORG At a hearing held on DATE the court read out witness statements and the applicant did not raise any objections to the statements in substance . When invited to ask questions , the applicant asked the court to call all the witnesses who had testified before the first - instance court again , in addition to some other witnesses . His application was on the grounds that he had twice refused legal assistance as a result of the different opinions of his lawyers about the conduct of his defence . The court dismissed that application , because the applicant had not made it in his appeal .

On DATE ORG dismissed the applicant ’s appeal and upheld the first - instance judgment . The appellate court noted that there were no discrepancies in the witness testimonies and they were concordant with the applicant ’s testimonies . It also noted that it was the applicant who had started the fight and demonstrated a readiness to use a knife against an unarmed victim , therefore no question of self - defence arose .

As to the fairness of the proceedings , ORG found that the first - instance court had afforded the applicant an opportunity to choose a lawyer and exercise his defence rights . Referring to the reasoning of the first - instance court , ORG agreed that his refusal to accept the services of the CARDINAL lawyers had been unjustified . Having examined the content of the applicant ’s submissions , applications and complaints in the criminal proceedings , it did not find that any of the conditions of section CARDINAL of LAW had been fulfilled . The appellate court concluded that the applicant had been able to defend himself . The first - instance court had called the witnesses twice , however the applicant had refused to put any questions to them , citing unfounded excuses .

On DATE the applicant lodged an appeal on points of law against the aforementioned decision with ORG of the ORG of ORG ( PERSON tiesas ORG departaments ) . He made a complaint regarding the quality of the legal services provided by the ORG - appointed lawyers and the decision of the first - instance court to deprive him of legal assistance .

In addition , the applicant alleged that his guilt could have been “ mitigated ” if he had been given a psychiatric assessment and polygraph testing , and if additional defence witnesses had been questioned . He also complained in a general manner that neither of the lower courts had granted him permission to put questions to the witnesses .

On DATE the ORG of ORG refused to consider the applicant ’s appeal .


FAZLIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

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

A list of the applicants is set out in the appendix . They are all citizens of GPE and were represented by TRIAL ( ORG ) , a non - profit organisation based in GPE .

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 ) .

NORP In DATE CARDINAL applicants lived with their families in GPE ( all but Ms PERSON and Mr PERSON ) and the remaining applicants in LANGUAGE , in the PERSON area . Following the takeover of PERSON , tension developed between the new NORP authorities and ORG , which contained a large concentration of Bosniacs : of the CARDINAL inhabitants of GPE town , PERCENT were ORG . ORG was attacked by NORP forces on DATE . The attack began with heavy shelling , followed by the advance of tanks and infantry . The purported reason for the attack was the death of a NORP soldier . As a result of the shelling , over QUANTITY inhabitants were killed . After the local PERSON population had attempted to put up a resistance , a large number of people surrendered on DATE . The military - aged men were taken to ORG camps and the rest of the population to PERSON camp . People who initially fled into the nearby mountains were sought out there or surrendered either to be killed or to be taken to camps . Eventually , the few NORP inhabitants of ORG returned and NORP displaced from other areas moved into GPE ( see the ORG judgment in the PERSON case , LAW , § § CARDINAL - CARDINAL , DATE ; the ORG judgment in the PERSON case , IT-CARDINAL - CARDINAL-T , § § CARDINAL - CARDINAL , DATE ; the ORG judgment in the PERSON and ORG case , cited above , § § CARDINAL - CARDINAL ) . Mr Nedžad PERSON ( Ms PERSON Selimović ’s ex - husband and the father of PERSON and PERSON Dženana PERSON ) , Mr PERSON ( ORG and Mr PERSON son ) and Mr PERSON ( Ms Mersija Hodžić ’s son and PERSON brother ) were most likely killed either during the takeover of ORG or shortly thereafter in the nearby mountains .

Around CARDINAL–CARDINAL DATE Room CARDINAL at ORG camp , which had up to that time held people from ORG , was emptied . CARDINAL new detainees from different villages , including PERSON , were crammed into that room . For DATE , the detainees were denied food and were subjected to beatings and abuse . Around DATE virtually all of the detainees in the room were killed ( see the ORG judgment in the PERSON case , § § CARDINAL - CARDINAL , and the ORG judgment in the PERSON and ORG case , § § CARDINAL - CARDINAL , both cited above ) . Mr PERSON ( the husband of PERSON Ališković ) was among them ( as stated in the ORG judgment in the PERSON and ORG case , cited above , § § DATE ) . It would appear that PERSON PERSON ( Mr PERSON ’s brother ) survived that incident ( ibid , § § DATE ) . According to some accounts , on CARDINAL DATE he was transferred to PERSON camp from where he was taken together with CARDINAL other people to NORP glavica and killed DATE ( that incident was noted in , for example , the ORG judgment in the PERSON case , cited above , § § CARDINAL - CARDINAL ) .

The ORG has so far convicted QUANTITY persons in connection with crimes committed in the PERSON area in DATE , including killings committed during or immediately after the takeover of ORG , killing of CARDINAL persons in Room CARDINAL at GPE camp around DATE and killing of CARDINAL persons at NORP glavica on DATE . Among those CARDINAL people , there were CARDINAL direct perpetrators ( PERSON , PERSON , PERSON ORG , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , GPE , and PERSON ) and CARDINAL organisers ( PERSON and PERSON , PERSON , PERSON and PERSON ) . The ORG imposed prison sentences of different length ( DATE ; DATE in total ) .

Cases against Mr PERSON and Mr ORG , the war - time civilian and military leaders , respectively , of ORG , are also pending before the ORG . They are charged with the participation in a joint criminal enterprise to permanently remove ORG and NORP from the PERSON area and other parts of ORG .

As indicated in paragraph CARDINAL above , war crimes chambers were set up within ORG in DATE . Shortly thereafter , the ORG referred the case against ORG , PERSON , PERSON and PERSON to ORG . At the arraignment of DATE , the accused pleaded not guilty . However , on DATE , Mr GPE changed his plea to guilty . He was then sentenced to CARDINAL years’ imprisonment for persecution as a crime against humanity committed in ORG camp in DATE .

As regards the CARDINAL other accused , on CARDINAL DATE a Trial Chamber of ORG found them guilty of participation in the commission of killings , beatings , rapes and various other crimes in ORG camps as a part of a widespread and systematic attack against the non - NORP civilian population of the municipality of PERSON , and sentenced them to CARDINAL ( Mr PERSON ) , DATE ( Mr GPE ) and DATE ( Mr GPE ) GPE imprisonment . On DATE an ORG of ORG reduced the sentence of PERSON to DATE and upheld the remainder of the first - instance judgment .

In DATE ORG assigned a special prosecutor in charge of crimes committed as a part of a widespread and systematic attack against the non - NORP civilian population of the municipality of PERSON in DATE with the aim of stepping up the prosecution of such crimes . Shortly thereafter , in DATE , indictments were issued against PERSON , PERSON and PERSON for CARDINAL such crime . On DATE a Trial Chamber of ORG sentenced each of them to DATE imprisonment . This judgment is not final yet . Investigation into several other crimes committed in the PERSON area in DATE is currently ongoing ( cases nos . KT - RZ CARDINAL/CARDINAL ; ORG RZ CARDINAL/CARDINAL against PERSON , PERSON , PERSON and PERSON ; ORG - RZ CARDINAL/CARDINAL ; PERSON ; and ORG - RZ CARDINAL/CARDINAL ) .

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

While many exhumations have been conducted in the PERSON area , the applicants’ missing relatives have not yet been identified . It should be noted , however , that the biggest mass grave in GPE and GPE has recently been discovered in LOC . Reportedly , it contains the remains of CARDINAL of victims from the PERSON area . Identification is now ongoing .

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 DATE “ OG ORG ” , nos . CARDINAL , CARDINAL , CARDINAL ; the Non - Contentious Procedure Act DATE , ORG of ORG , no . CARDINAL ) .

Pursuant to section ORG ) of ORG and LAW ( OG FBH no . CARDINAL/CARDINAL ) , which entered into force in DATE , relatives of missing combatants were required to seek such declarations by DATE if they wished to keep the social benefits provided by that LAW . By the same token , pursuant to the DATE amendment to section CARDINAL of LAW DATE ( OG FBH no . CARDINAL/CARDINAL ) , which entered into force in DATE , relatives of missing civilians were required to do so by DATE . It should be noted that there is no such an obligation in the legislation of PERSON where most of the present applicants live .


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

NORP The applicant , PERSON , is an NORP national who was born in DATE . The President granted the applicant ’s request for his identity not to be disclosed to the public ( Rule CARDINAL § CARDINAL ) . He was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

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

The applicant is a DATE single male from GPE . He originates from GPE city in GPE . His whole family belonged to PERSON party ( ORG do PERSON Armadas de Cabinda ) , supporting and fighting for the independence of ORG . His parents were killed by the NORP security forces when he was DATE . The applicant , together with his brother and sister , went to live with his uncle and the uncle ’s wife after the incident . The applicant ’s uncle had an important role in the PERSON - FAC , being the representative of the party and coordinating its activities in their neighbourhood . The uncle was held for DATE in PERSON prison when the applicant was still at school . The applicant was also a member of the party but his activities within the party were minor , mostly limited to distributing leaflets .

The applicant described his problems with the authorities as first starting when he was around DATE ( in DATE ) . He was selling tinned food at the market when he ended up having a disagreement with a buyer who subsequently reported him to the police , alleging that he was conspiring to kill an important army colonel . The applicant was apparently held for a long time ( DATE ) in detention without a trial , but eventually his uncle managed to buy his release . The conditions in detention were extremely poor and he also claimed to have been beaten and stripped naked .

The events that led to his flight from GPE happened in DATE . When returning home after his working day at the market , the applicant found that his uncle , brother and sister had been killed in the house . His uncle ’s wife and his own common - law wife , who was also living in the same house at the time , had disappeared . The applicant has not had any information about them since . He heard that some people from his village had managed to escape to GPE and suspected that perhaps his spouse and his uncle ’s wife were among those people . Subsequently , the applicant was taken by ORG ( ORG ) soldiers to an unknown location where CARDINAL other persons were held . The applicant was questioned about the whereabouts of his uncle ’s documents concerning PERSON and ill - treated by the soldiers . He was beaten on the head with the butt of a rifle , his feet were beaten and burned , he was shot in the leg and the surface of his chest was cut with a knife . CARDINAL or DATE he managed to escape , together with another PERSON - FAC activist who had also been held captive . The applicant walked back to his village and went to see the local priest , who helped him to flee GPE . He stayed for a while with a friend of the priest and in a church in GPE . Eventually the priest organised his escape through a smuggler . The applicant flew to GPE and travelled by car to GPE , where he arrived on DATE .

On DATE a general physician examined the applicant . The applicant had already been hospitalised in DATE and DATE for epileptic fits which were at first diagnosed as psychogenic or caused by injuries to the head . The general physician reported scarring in several places on the applicant ’s body and diagnosed him as suffering from posttraumatic stress disorder . He referred the applicant to ORG in GPE ( GPE kuntoutuskeskus , ORG för rehabilitering av tortyroffer ) for further examination and treatment . The applicant was examined on CARDINAL occasions , on DATE and CARDINAL DATE respectively , by the physiotherapist of ORG who reported that the applicant had altogether CARDINAL visible scars on his body . CARDINAL QUANTITY long scars were found on his forehead and CARDINAL of his front teeth were missing . Other scars were detected on his chest , leg and feet , all matching his description of the torture he had suffered . The applicant complained also of chest pain and difficulties in breathing from time to time , which he claimed had been caused by being kicked in the chest . He was also very sensitive to touch in general , which the physician concluded to be most likely a psychological symptom of ill - treatment . The applicant had therapy sessions with both the psychiatrist and the psychologist of ORG from DATE until DATE . In their various medical reports the psychiatrist and the psychologist concluded that the applicant ’s psychological condition was consistent with him having experienced severe and multiple trauma , compatible with his claim of having been tortured and having experienced the killing of his family . The psychiatrist diagnosed the applicant with severe depression and post - traumatic stress disorder and reported him as suffering also from slight memory problems . His symptoms of posttraumatic stress disorder and his memory problems eased during treatment and the applicant managed to begin studies in GPE . From CARDINAL to CARDINAL DATE the applicant was again hospitalised due to severe epileptic fits occurring despite medication . He was referred to a neurologist for follow - up .

As from DATE the applicant was reported to be suicidal and was shortly admitted to intensive mental care .

On DATE the applicant sought asylum immediately on arrival in GPE .

On DATE ORG ( GPE , PERSON ) rejected his application and decided to send him back to GPE . In its decision ORG referred extensively and in detail to the applicant ’s asylum interview and found several discrepancies in his story . It noted that on some occasions the applicant gave exact dates and on other occasions he could not place the events at a specific moment in time . ORG found the applicant ’s story of his escape , in a wounded state , from the ORG soldiers to be unlikely and not credible . ORG concluded that as there were such credibility issues , the applicant ’s scars could have been caused by other means than torture , as he claimed . It also doubted whether the applicant was from GPE .

The applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , requesting that ORG decision be quashed and he be granted asylum , or alternatively , secondary protection or a residence permit due to individual humanitarian circumstances . He also requested that an oral hearing be held . The applicant also submitted to the court several new medical certificates , noting that it was common that such trauma as torture and epilepsy affect negatively a person ’s memory and ability to recount events consistently .

On DATE ORG rejected the applicant ’s appeal and refused his request for an oral hearing as unnecessary . It noted , however , that the discrepancies in the applicant ’s story were minor and did not give reason to doubt that he originated from ORG . On the other hand , ORG did not consider it likely that the applicant would have been arrested and tortured after the rest of the family had been killed . The applicant ’s previous arrest when he was DATE seemed to be unconnected with later events . ORG considered , furthermore , that it was not likely that NORP officials would be interested in the applicant now that his uncle was dead . Although the human rights situation in PERSON was not very satisfactory , it concluded that the applicant could be returned there without a real risk of ill - treatment .

On an unspecified date the applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltnings - domstolen ) , reiterating the grounds of appeal already presented before ORG .

On DATE ORG refused the applicant leave to appeal . The applicant was notified of the decision on DATE .

On DATE the applicant lodged a new asylum application , referring to the same grounds as in his first application . He also submitted new medical certificates , arguing that his current state of health prevented his removal or that removal to GPE would amount to inhuman treatment as no medical treatment would be available for him there . He also submitted certificates of his studies in GPE and relied on them as grounds for a residence permit .

On DATE ORG rejected the application after having examined it in a fast - track procedure and decided to expel him to GPE . It also imposed a DATE ban on entry into GPE and the GPE - area . ORG considered that the applicant ’s situation had not changed since the previous application and that there were no grounds for a residence permit or grounds preventing the applicant ’s removal to GPE . It noted that the situation in the ORG area had calmed down , even though some attacks were still reported between the NORP army and some rebel groups of the FLEC - FAC . However , the applicant could relocate internally to other parts of GPE if he wished . As for his health , ORG noted that mental health care was available in GPE , although a shortage of medical staff in general was reported . Post - traumatic stress disorder could be treated in CARDINAL private clinic in GPE . The treatment of epilepsy was not mentioned .

The applicant appealed to ORG , requesting again that a stay on removal be granted .

On DATE ORG notified the applicant that the request for interim measures had been refused . The applicant ’s appeal before ORG remained pending before that court .

On DATE ORG rejected the applicant ’s appeal .

NORP By letter dated DATE the applicant appealed to ORG , requesting that ORG decision be quashed and he be granted asylum or , alternatively , secondary protection or a residence permit due to individual humanitarian circumstances . He claimed that his vulnerability continued to increase and that he was clearly in need of protection .

According to LAW , paragraph CARDINAL , of the LAW of Finland ( NORP perustuslaki , PERSON grundlag ; Act no . CARDINAL/CARDINAL ) , the right of foreigners to enter GPE and to remain in the country is regulated by an LAW . A foreigner shall not be deported , extradited or returned to another country , if in consequence he or she is in danger of a death sentence , torture or other treatment violating human dignity .

According to section DATE , subsection CARDINAL , of LAW ( ulkomaalaislaki , utlänningslagen ; Act no . CARDINAL ) , aliens residing in the country are granted asylum if they reside outside their home country or country of permanent residence owing to a well - founded fear of being persecuted for reasons of ethnic origin , religion , nationality , membership of a particular social group or political opinion and if they , because of this fear , are unwilling to avail themselves of the protection of that country .

Section CARDINAL , subsection CARDINAL , of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) provides that an alien residing in GPE is issued with a residence permit on grounds of subsidiary protection if the requirements for granting asylum under LAW are not met , but substantial grounds have been shown for believing that the person , if returned to his or her country of origin or country of former habitual residence , would face a real risk of being subjected to serious harm , and he or she is unable , or owing to such risk , unwilling to avail himself or herself of the protection of that country . Serious harm means : CARDINAL ) the death penalty or execution ; CARDINAL ) torture or other inhuman or degrading treatment or punishment ; or CARDINAL ) serious and individual threat as a result of indiscriminate violence in situations of international or internal armed conflicts .

NORP Under section CARDINALa of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) , an alien residing in GPE is issued with a residence permit on the basis of humanitarian protection , if there are no grounds under LAW or CARDINAL for granting asylum or providing subsidiary protection , but he or she can not return to his or her country of origin or country of former habitual residence as a result of an environmental catastrophe or a bad security situation which may be due to an international or internal armed conflict or a poor human rights situation .

According to section CARDINALb of the LAW ( as amended by Act no . CARDINAL/CARDINAL ) , the well - founded fear of being persecuted referred to in section CARDINALb or the real risk of being subjected to serious harm referred to in section CARDINAL may be based on incidents after the applicant ’s departure from his or her home country or country of permanent residence or on acts that the applicant has participated in since his or her departure .

Section CARDINAL , subsection CARDINAL , of the LAW ( as amended by Act no . ORG ) provides that the requirements for issuing a residence permit are assessed individually for each applicant by taking account of the applicant ’s statements on his or her circumstances in the ORG in question and of real time information on the circumstances in that ORG obtained from various sources . After obtaining the statement , the authorities shall decide on the matter in favour of the applicant on the basis of his or her statement if the applicant has contributed to the investigation of the matter as far as possible , and if the authorities are convinced of the veracity of the application with regard to the applicant ’s need for international protection .

According to section CARDINAL of the Act , no one may be refused entry and sent back or deported to an area where he or she could be subject to the death penalty , torture , persecution or other treatment violating human dignity or from where he or she could be sent to such an area .

Section CARDINALb of LAW ( as amended by LAW no . CARDINAL/CARDINAL ) incorporates into the NORP legal system the ORG CARDINAL of DATE on the organisation of joint flights for removals from the territory of CARDINAL or more member GPE , of third - country nationals who are subjects of individual removal orders . The annex to the ORG contains common guidelines on security provisions for joint removals by air including , inter alia , an obligation for the Member States to ensure that the returnees for whom they are responsible are in an appropriate state of health , which allows legally and factually for safe removal by air .

ORG Country of Origin Information Report on GPE of DATE provides the following information :

“ ORG on Human Rights Practices on GPE observed that “ the Memorandum of Understanding for Peace and Reconciliation for Cabinda Province , signed in DATE , largely brought an end to the insurgency in the province , although sporadic attacks by dissident factions of ORG ( PERSON ) and counterinsurgency operations by ORG ) continued during DATE .

The intensity of the armed conflict in ORG has declined as a result of large - scale counterinsurgency operations in DATE , and the government publicly claims that the ORG conflict came to a close in DATE , when a peace agreement was signed with a faction of the rebel ORG for ORG ( PERSON ) . But the campaign for independence remains unresolved , and sporadic guerrilla attacks have been ongoing . ”

According to ORG for DATE in GPE of DATE :

“ The CARDINAL most important human rights abuses were cruel , excessive , and degrading punishment , including reported cases of torture and beatings as well as unlawful killings by police and other security personnel ; limits on freedoms of assembly , association , speech , and press ; and official corruption and impunity . ”

Concerning the availability of medical drugs for mental health , ORG on GPE of DATE states the following :

“ ... the following therapeutic drugs are generally available at the primary health care level of the country : carbamazepine , phenobarbital , phenytoin sodium , amitriptyline , chlorpromazine , diazepam , fluphenazine , haloperidol , lithium . Prices keep on fluctuating depending on the availability of drugs . ”


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Johannes Silvis;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

On unspecified date the applicant bought a house in GPE . A third person , PERSON , was her authorised representative for the conclusion of the purchase contract .

On DATE her ownership of the house was registered in ORG ( Единый государственный реестр прав на недвижимое имущество и сделок с ним , “ the Land Register ” ) and it remains there to date .

On an unspecified date PERSON was charged with fraud against ORG ) ( hereafter DATE “ the Bank ” ) and a private person .

On DATE a judge of ORG issued an interlocutory injunction prohibiting the applicant from selling the house .

On DATE ORG of GPE found PERSON guilty of fraud . The court found , inter alia , that PERSON was also the de facto owner of the house as she had paid for it and resided in it since DATE . The court ordered the seizure and sale of the house in order to pay PERSON ’s debt to the victims of the crime .

On DATE ORG partly quashed PERSON ’s conviction on appeal , notably as regards ORG finding that she was the real owner of the house . It considered that this finding was not based on any legal provision and failed to take into account the purchase contract concerning the house . ORG thus remitted that specific issue for fresh consideration in civil proceedings .

On an unspecified date the ORG sued PERSON for additional damages and sought reimbursement by means of the sale of the house . The applicant was also summoned to the proceedings as a defendant .

On DATE ORG of FAC rejected the ORG ’s civil claims and declared that the house was the applicant ’s property . It held that the applicant had always demonstrated her intention to be the owner of the disputed house , notably by systematically paying all charges and taxes relating to the house , and that her mother was living in it . As regards the ORG ’s request for annulment of the powers of attorney given by the applicant to PERSON for the purchase of the house and of the purchase contract itself , ORG found that this claim was time - barred and consequently rejected it .

On unspecified date the ORG lodged an appeal against that judgment , notably arguing that the purchase contract should be declared null and void because the applicant had never intended to become the real owner of the house but was merely helping PERSON to cover up for her crimes .

On DATE ORG upheld on appeal the judgment of CARDINAL DATE , which became final .

On DATE the applicant applied to ORG of FAC for the revocation of the interlocutory decision of DATE by ORG of Arkhangelsk to seize the house .

On DATE ORG of GPE rejected the application on the grounds that it lacked jurisdiction to decide on a measure imposed by another court in the framework of criminal proceedings .

On DATE the ORG lodged an application for supervisory review .

On DATE the Presidium of ORG quashed the judgment of CARDINAL DATE , as upheld on DATE , and ordered the seizure of the house from the applicant in order to pay ORG ’s debt to the ORG . The ORG relied on the finding made by ORG in its judgment of DATE that although the applicant was registered as the official owner of the house , it had been bought with funds belonging to M.

On DATE and DATE the applicant and PERSON challenged the judgment of the Presidium of ORG by way of supervisory review applications , which were rejected by ORG and the Deputy President of ORG , respectively .

On DATE the bailiff decided to seize the house in accordance with the judgment of the ORG of ORG .

On DATE at the bailiff ’s request ORG stayed the enforcement proceedings pending examination of the applicant ’s case by the ORG .


No 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) (Substantive aspect);No violation of Article 13+3 - Right to an effective remedy (Article 13 - Effective remedy) (Article 3 - Degrading treatment;Prohibition of torture;Effective investigation)

Erik Møse;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and lives in PERSON .

The applicant was driving his car along a road in the region of GPE on TIME DATE . As established subsequently by the prosecution and the domestic courts in criminal proceedings opened into the incident that took place that evening , his car was weaving in an unsteady manner and he was spotted by patrolling police officers parked on the side of the road . They signalled for him to pull over , but instead of complying he sped away . According to the applicant ’s own statements given in the context of those proceedings , he was afraid that the police would charge him or take his licence away as he had consumed alcohol TIME . The prosecution and the courts established that the officers chased after him in their car , using flashing police lights and their siren . He only stopped when his car reached a field and could not go further . The police car stopped too .

The parties have presented differing accounts of the circumstances in which the applicant was arrested .

According to the applicant , CARDINAL of the officers kicked him in the left leg and then pushed him violently to the ground as he was trying to get out of his vehicle . The applicant fell on his back and then CARDINAL officers continued to kick him . The assault lasted TIME , after which they handcuffed him . CARDINAL of the officers hit him on the head with a rubber truncheon before they drove him to the police station .

According to the police officers , the applicant had jumped out of his car after it had come to a halt and had started running through the field in an attempt to escape . The officers had run after him , the applicant had slipped and fallen and the police had caught up with him . As he had resisted arrest , wriggling and struggling , they had used force which had consisted in twisting his arms in order to handcuff him . Once they had managed to handcuff him , the officers had driven him to the police station .

According to written statements made during the criminal proceedings by several police officers present at the police station when the applicant was taken there , he told everyone present at the time that his clothes were muddy because he had tripped and fallen , which was also why he had a limp . As stated by the officers and by the applicant himself in the course of those proceedings , he made no complaints at that point in time . According to police records of the evening when the applicant was arrested , he refused to take an alcohol test or to sign the arrest report and was given a fine for refusing the alcohol test . As it emerges from the ORG statements , they discovered that he had no identity documents on him and called his brother , who brought them to the police station accompanied by a friend . The records indicate that the officers released the applicant immediately after checking his papers .

According to a written statement made on DATE by the applicant ’s brother to the police in the context of an official follow - up conducted into the events , on leaving the station , he asked him what had happened but the applicant stated that he did not wish to speak about it and preferred to be left alone in his home . Instead , his brother drove him to the local medical centre as he had noticed that the applicant was having difficulties breathing . On examination , a doctor noted a suspected broken left ankle and told the applicant to go to hospital . No ambulance was provided and the applicant ’s brother drove him there . It follows from medical documents that the doctors operated on him immediately as they had established that he had a broken rib which had pierced CARDINAL of his lungs .

NORP The applicant ’s hospital record , signed by the doctor who had treated him and the head of the unit , stated that the applicant had been in hospital CARDINAL and DATE and that he had a broken rib and a broken ankle . Upon his discharge on DATE , a different doctor examined the applicant and issued him with a medical certificate which recorded that he had a broken rib , a bruise of about QUANTITY on his right eyebrow , and a fracture of the fibula close to the ankle that was in a cast . It also contained the phrase that it was not excluded that the injuries had been sustained in the manner suggested by the applicant , namely as a result of being hit or kicked . The certificate stated that no other traumatic injuries were present .

On DATE the police officer in charge of radio communications between patrolling officers and who was on duty on the night of the incident produced a written report to provide information for his superior and to receive whatever orders were deemed necessary . As well as repeating the account of the CARDINAL arresting officers , he stated that he personally had seen the applicant at the station and that the applicant had told him that he had fallen while running and that his back was hurting . The officer had offered to call in medical staff from the local medical centre to check the applicant on the spot , but he had refused , saying that he did not need a doctor and wished to be released instead .

A different police officer was sent to the local medical centre . In a written report he drew up on DATE on his visit , he confirmed the existence of a record there that the applicant had visited it the previous evening and had been checked by a doctor who had directed him to the hospital for treatment of a suspected fractured ankle . Another officer visited the hospital DATE . In a written report he listed his findings , namely that the applicant had been admitted and treated for a broken rib and broken leg TIME . The report indicated that in a conversation with the applicant conducted during that visit , the latter had told the officer that he could not remember the events in detail , but that he was certain that after the car chase CARDINAL police officers had beaten and then handcuffed him before taking him to the police station . The applicant also gave a handwritten statement to an officer DATE . In it he referred to the car chase , stated that he had wanted to escape as he had felt drunk , that when he had got out of his car the policemen had grabbed him , that CARDINAL of them had pulled him to the ground and that the other one had handcuffed him . He concluded by saying that the injuries had most likely been caused during his arrest , given that immediately beforehand he had only been driving his car and did not remember breaking his leg and rib when he had brought the car to a stop .

On DATE the applicant ’s brother also gave a written statement to the police ( see paragraph CARDINAL above ) .

The QUANTITY police officers involved in the car chase and the arrest also gave written statements on DATE . In addition to the description above ( see paragraph CARDINAL ) , the officers stated that once the applicant had been handcuffed and put inside the police car , he had leaned on CARDINAL of them and moaned . When asked if he had a problem and wished to be taken to a medical centre , he had refused and said , “ It ’s nothing ” . At the police station the applicant had refused to be tested for alcohol or to sign the arrest report .

On DATE ORG , acting on his own initiative , opened criminal proceedings in relation to the conduct of the CARDINAL officers who had arrested the applicant . The order for the opening of those proceedings indicated that it was “ against the guilty official from ORG who , acting in the context of his professional functions , had caused bodily harm to the applicant on DATE in GPE ” . A number of investigative steps were carried out . The investigating authorities questioned several police officers as witnesses , including the CARDINAL involved in the applicant ’s arrest and those who had been at the police station on TIME of the incident . The latter all stated that they had seen the applicant at the police station on TIME in question . He had been calm , had smelt of alcohol and been visibly intoxicated , his clothes had been muddy and he had limped . The applicant , his brother and the friend of the brother who had accompanied him to collect the applicant from the police station , were also interviewed . The brother and his friend stated that the applicant had not told them anything about the circumstances of his arrest and that the brother had learned that the applicant had been beaten by the police from the doctors at the hospital .

A forensic medical expert was appointed on CARDINAL DATE to establish the nature of the injuries sustained by the applicant and the type of instrument used . The expert was given a list of specific questions that needed to be answered . The forensic medical report , containing a comprehensive and independent assessment , concluded that the CARDINAL injuries recorded in the medical certificates drawn up in the immediate aftermath of the events ( see paragraph CARDINAL above ) were incompatible with the applicant ’s allegations that the officers had hit him all over his body for TIME . In particular , being kicked by someone wearing boots or being hit for TIME would have left the applicant with many more traces on different parts of his body , not just the CARDINAL strictly localised injuries mentioned above . The report further indicated that the injuries could have been received as a result of falling over while moving in accelerated fashion , for example by running and falling .

In a decree of DATE for terminating the criminal proceedings , the prosecution established that the version of events given by the applicant at different stages of his questioning were not consistent . In particular , he had stated initially that he had sprained his ankle after tripping and falling , but had later changed his story and said that the injury had been the result of an intentional and prolonged beating by police officers . Furthermore , when questioned on DATE , the applicant had stated that the police officers had started hitting and kicking him after he had left his car voluntarily . When interviewed again on CARDINAL DATE , he had asserted that the officers had brutally pulled him out of the car and had thereafter only kicked him rather than hit him . He had tried to use his arms to protect his head from the kicks . He had stated that he could not remember or recognise the police officers who had beaten him , whether in a personal confrontation or from pictures . He had also complained that CARDINAL officers had beaten him , while it had been unequivocally established that there had only been CARDINAL patrolling officers . In addition , when on DATE the investigator had handed the investigation file over to the applicant , he had signed the related acknowledgement , indicating that he did not wish to acquaint himself with the evidence , read the documents in the file , which was voluminous , and that he had no requests , comments or objections to the investigation .

NORP The prosecutor concluded in the decree for termination of the proceedings that the applicant ’s complaints were not supported by the evidence . The force used by the officers had been necessary for neutralising and detaining him in the circumstances , given that he had effectively been running away from the police and actively disobeying their orders to stop . The force had involved CARDINAL officer holding the applicant on the ground , using CARDINAL knee to press on his body , while the second officer had helped by handcuffing him . There was no evidence pointing to the officers having used violence or undue force when apprehending the applicant . The applicant challenged the prosecutor ’s decision in court .

NORP The prosecutor ’s decision to terminate the proceedings was confirmed at CARDINAL levels of jurisdiction . In particular , the first - instance court , ORG , observed in its decision of DATE that CARDINAL officers had arrested the applicant after a long car chase , when he had tried to escape despite clear orders to the contrary . The officers had worn police uniforms that had been clearly visible and identifiable and had been driving a police car with flashing police lights and a siren while chasing the applicant . He had not only refused to stop but had actively avoided being caught . As to the differing versions of the events thereafter , the court found that the applicant ’s submissions were inconsistent and not supported by the evidence . As a consequence , the court gave no weight to his testimony , finding that it was incompatible with the rest of the evidence .

The second - instance court , ORG , upheld those findings in a final decision on DATE .