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

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s son , Mr PERSON , was remanded in custody to FAC in GPE . Since that prison had to close , all prisoners were to be transferred on DATE to GPE GPE .

On TIME and prior to his transfer , PERSON was informed that his father had died suddenly during TIME . Upon hearing the news , the applicant asked to be moved to a single cell . At CARDINAL a.m. he was transferred to GPE . His cell was not ready on arrival so he waited in the recreation area . When a prisoner officer informed him that he would share a cell , Mr PERSON said that he would wreck it . A principal officer was informed .

At TIME was informed his cell was ready and he said that he would hit the first prisoner who came into it . The principal officer was informed .

At TIME another prisoner , with CARDINAL prison officers , arrived to share the cell . PERSON said that he wanted to be left alone . He left the cell and announced that he was going to the Punishment and ORG ( “ PSU ” ) . There was then a scuffle between several prison officers and PERSON , which resulted in his being wrestled to the ground and physically restrained . He was brought to a standing position and , while still restrained , was taken to the ORG at TIME A body search was carried out at the ORG with his consent . He was also examined by a medical officer , who noted that he had suffered bruising and grazing and was experiencing discomfort in his chest . The medical officer left at TIME taken from prison officers and prisoners diverged as regards , inter alia , the circumstances of the incident , the level of restraint used and whether PERSON had been beaten .

At TIME on DATE Mr PERSON was found unconscious in his cell in the ORG having suffered a heart attack . A number of unsuccessful attempts were made to resuscitate him . He was declared dead at TIME

On DATE the first autopsy was conducted by Professor Crane , the State Pathologist for GPE . Professor PERSON noted that PERSON had suffered a fracture to the hyoid bone in the neck , consistent with being grasped by a hand , and that it appeared that PERSON ORG had suffered a heart attack TIME prior to his death . He found that :

“ [ the earlier heart attack ] ... could ... have precipitated a fatal upset in the heart rhythm at any time ... [ T]he possibility that the stress of the incident shortly before his death played some part in the fatal outcome can not be completely excluded . ”

Professor PERSON ’s report was sent to the Coroner in DATE .

A further autopsy was carried out on DATE by Professor PERSON . Professor PERSON reported that Mr PERSON ’s thyroid cartilage was also fractured and that there was bruising to the area . He could not exclude that stress suffered while being restrained had contributed to the cause of death .

An initial copy of the report was provided to the Coroner in DATE . A copy was sent by the Coroner to Professor PERSON for consideration in DATE . Having considered Professor PERSON ’s autopsy , Professor PERSON produced , on DATE , a supplemental report confirming his own previous findings .

ORG requested a report from Dr PERSON of ORG , GPE . Dr PERSON considered the reports of ORG and PERSON as well as other material including statements from prisoners in the deceased ’s cell block . PERSON report of DATE concluded :

“ [ I]t is my opinion within a reasonable degree of medical and scientific certainty that the injuries that PERSON suffered TIME prior to his death were a direct and proximate cause of his death . It is furthermore my opinion that the cause of death should be recorded as : Myocardial Ischaemia due to ORG and Near - Asphyxiation . ”

He was of the view that Mr ORG ’s death should be classed as a homicide .

A copy of PERSON report was provided to the Coroner , together with a final copy of the report of PERSON , on DATE . In view of its controversial nature , the Coroner sent PERSON report to Professor PERSON and to the police for their consideration . The police referred the matter to ORG ( “ ORG ” ) and the ORG requested a further report from Professor PERSON . The latter recommended that a second opinion on Mr PERSON ’s cardiology history be requested from Professor PERSON . The ORG requested a report from Professor PERSON in DATE .

Professor PERSON reviewed the above CARDINAL reports as well as primary autopsy data . On DATE he completed his report in which he agreed with the reports of Professor PERSON and PERSON . Professor PERSON concluded that the immediate cause of death was a fatal heart attack , but he considered that the emotional and physical effects of the prior restraint could have been a contributory or precipitating factor . He considered the report of PERSON to be flawed in both fact and opinion .

A copy of Professor PERSON ’s report was provided to the Coroner in DATE and sent immediately to the police , the ORG , Professor PERSON and the applicant ’s solicitors .

Meanwhile , an investigation into Mr ORG death was commenced by ORG ( “ ORG ” ) . CARDINAL statements were taken from prisoners in DATE and DATE . CARDINAL prison officers were interviewed and statements were taken from CARDINAL of them in DATE . Following the first autopsy , the CARDINAL officers were again interviewed under caution about , inter alia , the injuries noted on the deceased ’s body .

On DATE a file was presented to the ORG . On DATE the ORG gave a “ no prosecution ” direction .

The ORG reviewed his decision in DATE on receipt of the report of Professor PERSON ( see paragraphs CARDINAL above ) , but on DATE gave a further “ no prosecution ” direction .

Following an inquiry from the applicant ’s solicitor in DATE , the ORG informed her by letter of CARDINAL DATE of his decisions of DATE and DATE .

On DATE the applicant issued civil proceedings against ORG . It appears that the writ has never been served .

The Police Service GPE ( “ GPE ” ) replaced the ORG in DATE . In DATE ORG reviewed the original investigation and concluded that extensive research into the case had not uncovered any new evidential material or investigative opportunities .

In DATE the applicant made a complaint to ORG about the investigation into her son ’s death . In DATE investigators from the ORG ’s office met with Professor PERSON to discuss certain ORG statements . On DATE Professor PERSON provided a further report to the ORG confirming his view that Mr McDonnell had died from a heart attack but that stress relating to the restraint had contributed to his death .

The subsequent conclusions of the ORG were as follows :

“ ORG has reviewed all the police documentation relating to the investigation into PERSON death . This includes the subsequent reviews undertaken by ORG .

The investigation into the death of PERSON was thorough and complete . The family of Mr PERSON were not kept up - to - date with the investigation . This was not uncommon in DATE . However , with the advent of the emphasis on Family Liaison in any investigation into a sudden death , it is hoped that different standards would be applied DATE .

Whilst the investigation was thorough and the ORG directed no prosecution against any of the prison officers involved in the restraint of PERSON prior to his death , some of the injuries suffered by PERSON have never been satisfactorily explained . This is particularly true of the injuries to Mr PERSON ’s throat . The police investigation was not able to properly deduce which of the prison guards , if any , may have inflicted the injuries , primarily the fracture of the hyoid bone . It is hoped that the inquest will allow the family of Mr McDonnell the opportunity to seek the answers to the questions that they have had since DATE . ”

Meanwhile , following the decision of the ORG in DATE not to bring any criminal prosecutions ( see paragraph CARDINAL above ) , the inquest was listed for a hearing on DATE . By letter dated DATE the applicant ’s solicitor sought an adjournment to await the outcome of pending judicial review proceedings concerning entitlement of family members of a deceased to legal aid at inquests ( PERSON v. Secretary of ORG ) . The Coroner adjourned the inquest until DATE .

NORP In DATE the Coroner wrote to ORG to inform them that inquests , including the inquest into the death of the applicant ’s son , were delayed by reason of the pending judicial review proceedings .

On DATE ORG handed down its judgment in PERSON ( [ DATE ] ORG ; p. CARDINAL and p. DATE ) , finding that there was no entitlement to legal aid at inquests .

As noted above ( see paragraph CARDINAL ) , in DATE the Coroner was provided with a copy of the report of PERSON . He adjourned the inquest to obtain another report from Professor PERSON , which was completed in DATE ( see paragraph CARDINAL above ) . In DATE , the inquest was re - scheduled for DATE .

In the meantime , in DATE , ORG advised that it would apply to maintain the anonymity of the prison officer witnesses . The hearing date of DATE was vacated because of that application but also to facilitate the attendance of PERSON .

In DATE the inquest was further adjourned to allow the applicant to seek disclosure on the basis of a new FAC ( issued in DATE ) . The applicant also indicated to the Coroner that she intended to issue a judicial review challenge in relation to the pre - inquest disclosure by the ORG . In DATE the applicant informed the Coroner that she no longer intended to issue judicial review proceedings and wished a hearing date to be set .

In DATE the applicant informed the Coroner that her expert , PERSON , would not be available until DATE . The inquest was accordingly listed to commence on DATE .

In DATE , with the applicant ’s acquiescence , the inquest was again adjourned pending this ORG ’s judgment in PERSON v. GPE ( no . CARDINAL , ORG CARDINALIII ( extracts ) ) . Judgment in the case was delivered on DATE .

Following delivery of the judgment , no inquests were listed from DATE pending the amendment of ORG and Procedure ) Rules ( GPE ) DATE ( “ the DATE Rules ” ) .

DATE and DATE inquests which gave rise to LAW issues were adjourned pending judicial review actions concerning the scope of the inquest ( PERSON v. Secretary of ORG for ORG ex parte PERSON ( [ DATE ] UKHL CARDINAL ; and R ( ORG ) ν. GPE ( [ DATE ] CARDINAL A.C. CARDINAL ) ) and the application of LAW to deaths which pre - dated LAW CARDINAL ( In re PERSON ( [ DATE ] ORG CARDINAL ; and GPE v. Lord Chancellor and Another and PERSON v. Chief Constable of ORG [ DATE ] ORG CARDINAL ) .

The latter judgments , delivered by ORG on DATE and CARDINAL DATE respectively , confirmed that LAW did not apply to cases where the deaths in question pre - dated LAW .

NORP In DATE the Coroner wrote to the applicant informing her that CARDINAL inquests had been adjourned pending the outcome of proceedings before ORG and were now ready to proceed .

A preliminary hearing took place on DATE . On DATE , an inquest hearing date was fixed for DATE . The Coroner subsequently sought copies of the interviews and statements of prison officers taken by the police and of the statements taken from certain prisoners . He gave directions on any anonymity claims that might be made on behalf of any of the witnesses .

On DATE ORG confirmed that it acted for CARDINAL prison officers who were seeking anonymity and screening . A further preliminary hearing was listed for DATE to address the matter .

On DATE the Coroner was informed that individual threat assessments would have to be conducted in respect of each officer seeking anonymity and screening and no timescale for the completion of this process was available .

A preliminary hearing took place on DATE at which the ORG issued a ruling on applications for anonymity and directed that any applications for anonymity be filed and served by DATE . The inquest was provisionally listed to commence on DATE .

In DATE the Coroner was advised that it would take DATE for the threat assessments to be completed . It was therefore necessary to postpone the DATE inquest start date . The applicant ’s solicitor was notified by letter dated DATE .

In DATE the Coroner received the threat assessments in respect of the prison officers seeking anonymity . He was , at that time , involved in another complex inquest .

In DATE the applicant instructed new legal representation . The Coroner sought confirmation from the newly - appointed solicitors that legal funding was in place . The solicitors responded that they were in discussions concerning legal funding and would provide an update in due course .

On DATE the applicant ’s new solicitors made detailed status enquiries of the Coroner ’s Office and emphasised that to date the applicant had received no disclosure . On DATE the Coroner replied that he had received some documents from the ORG . On DATE , he again wrote to the ORG requesting that full disclosure with any proposed redactions be provided for his consideration by DATE . New risk assessments for the prison officers seeking anonymity were also requested .

No disclosure was made by the deadline set . Reminders were issued on DATE , DATE , DATE and CARDINAL DATE .

The updated risk assessments were received by the Coroner on DATE .

A preliminary hearing was listed on DATE in order for the Chief Constable of the ORG to explain the delay in providing disclosure . The hearing was rescheduled for DATE owing to the unavailability of counsel .

At the hearing on DATE , the anonymity of prison officer witnesses and ORG disclosure were debated . The Coroner ordered the ORG to make disclosure by DATE and scheduled a hearing for DATE . Disclosure was not made as ordered and that hearing date was vacated .

On DATE disclosure was received by the applicants from the ORG . All prison officer details were removed from the statements and no initials were retained , so that it was impossible to understand which officer was referred to at any given point in the statements . The applicant requested initials ( “ ciphers ” ) . The Coroner requested the ORG to provide the disclosure again , with ciphers . By letter dated DATE the Coroner confirmed to the applicant that the statements would be provided with ciphers and allowed DATE from receipt of those statements with ciphers for the applicant to make submissions on anonymity and screening .

On DATE , and in light of this ORG ’s judgment in ORG v. GPE ( [ ORG ] , no . CARDINAL , DATE , ORG overruled the judgments of ORG concerning the applicability of LAW to pre - Human Rights Act deaths ( see paragraphs CARDINAL - CARDINAL above ) and accepted that such inquests should be compliant with LAW [ DATE ] ORG ) .

Following reminders by the applicant to the Coroner in DATE , DATE and DATE , on DATE the statements with ciphers were provided to the applicant .

The applicant subsequently instructed a forensic pathologist , Dr PERSON , to address the disputed issue of causation . PERSON requested access to primary data concerning the autopsy ( post - mortem photographs , histology slides and the pathologist contemporary notes ) and in DATE the applicant requested the Coroner to provide the material . The Coroner wrote to Professor PERSON on DATE asking that he make the material available to PERSON . In DATE Professor PERSON replied querying the authority for the disclosure of his notes . By letter dated DATE to the Coroner , the applicant contested Professor PERSON ’s refusal to provide access . Professor PERSON subsequently agreed to provide the histological slides , and they were furnished in DATE . In DATE the Coroner received Professor PERSON ’s notes and copies were provided to the applicant .

The Coroner received a copy of PERSON report in DATE . A preliminary hearing was listed on DATE .

At the hearing in DATE , a revised timetable for the anonymity applications was put in place and the inquest was listed to commence on DATE , the first available date taking into account the Coroner ’s existing commitments and the need for a suitable courtroom bearing in mind the estimated length of the inquest and its circumstances . A provisional witness list and timetable were circulated in DATE .

In DATE Professor PERSON provided his response to the report of PERSON . Additional comments from cardiac pathologist PERSON were circulated to the other legal representatives . The applicant sought disclosure of all correspondence between Professor PERSON and PERSON .

An issue arose in DATE in respect of the threat assessments for the prison officers . After protracted correspondence , the issue was resolved by DATE and the threat assessment process commenced . By DATE some of the assessments remained outstanding . The Coroner decided that the inquest could not proceed in DATE and adjourned it until DATE .

In DATE the applicant sought further disclosure of any other incidents which resulted in harm to a prisoner in which the prison officer witnesses had been involved , as well as details of any disciplinary proceedings against them .

The CARDINAL pathology experts were not available in DATE and the Coroner was also unavailable as a result of illness . The Senior Coroner took over the case and listed the inquest to commence on DATE .

The correspondence between Professor PERSON and PERSON was disclosed in DATE .

The inquest commenced before the Senior Coroner on DATE . At the start of the inquest , the Coroner made a decision to grant anonymity to the prisoner officer witnesses .

The inquest ended on CARDINAL DATE . The narrative of the jury ’s verdict explained :

“ ORG has explained the majority of the injuries sustained by PERSON . However , it has not explained the injuries to Mr PERSON ’s neck and lumbar region .

ORG failed to carry out best practice in regard to bereavement of a prisoner . ”

The jury ’s answers to the specific questions posed can be summarised as follows :

( i ) PERSON was subject to a control and restraint procedure and a relocation procedure on DATE as a result of his violent behaviour .

( ii ) The use of the procedure was necessary but it was not carried out correctly .

( iii ) The use of the procedure was not carried out only in so far as necessary .

( iv ) The neck injuries recorded in PERSON post mortem appeared to have been sustained during the initial restraint when he was grabbed by the neck .

( v ) The factors contributing to PERSON suffering a fatal heart attack were : the initial restraint ; neck compression ; the control and restraint procedure as carried out in this instance ; underlying heart conditions ; and emotional stress .

( vi ) ORG has not explained how he sustained the injuries found in the post mortem .

( vii ) There were defects in the procedures used that caused or contributed to the death of PERSON . There were : excessive force ; prison officers not being trained in the application of aspects of ORG , such as discretion on releasing control and restraint , and failures in the duty of care towards prisoners .

At the conclusion of the case the Senior Coroner referred the case to the ORG pursuant to section CARDINAL(CARDINAL ) of the ORG ( GPE Act DATE . The ORG was notified by letter dated CARDINAL DATE .

DATE . A decision by the ORG on whether to commence any criminal prosecutions is awaited .

The applicant commenced judicial review proceedings regarding the anonymity order made in respect of the prison officer witnesses at the inquest . She contended that this aspect of the inquest failed to comply with LAW because it denied the inquest the requisite degree of transparency and accountability since the identities of those concerned were withheld from the next of kin and their conduct was not subject to public scrutiny . She did not seek the quashing of the jury ’s verdict .

NORP The judicial review hearing took place on CARDINAL and DATE and a decision was issued on DATE . The court rejected the applicant ’s challenge . According to the latest information available to the ORG , the applicant was considering whether to lodge an appeal against the decision .


CASE OF KOKA HYBRO KOMERC DOO BROYLER v. SERBIA

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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

On DATE ORG ordered AD ORG , a socially - owned company based in GPE ( hereinafter “ the debtor ” ) to pay the applicant specified amounts on account of damages . That judgment became final on DATE .

On DATE , upon the applicant ’s request to that effect , ORG ordered the enforcement of the said judgment and further ordered the debtor to pay the applicant the enforcement costs .

On DATE ORG opened insolvency proceedings in respect of the debtor .

The applicant duly submitted his claim .

On DATE the applicant ’s claim was formally recognised .

The insolvency proceedings are still ongoing .

On DATE , the debtor had been privatised and changed its name to ORG .

On DATE the privatisation contract had been annulled and on DATE the debtor ’s name was changed to ORG .

According to ORG , the debtor is still a company predominantly comprised of socially - owned capital ( see http://www.priv.rs/Ministarstvo-privrede/CARDINAL/AGRAR-FRUIT--u-stecaju.shtml/companyid=CARDINAL , accessed on DATE ) .

In their additional observations of PERCENT the Government informed the ORG that the applicant had transferred its judgment claims to a third person on DATE .

On DATE , as a response to the Government ’s additional observations , the applicant submitted that the contract regarding the transfer of the claims in question had been terminated by DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Enforcement proceedings;Article 6-1 - Access to court)

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

The applicants complained of the non - enforcement or delayed enforcement of domestic decisions given against unitary enterprises ( GUPs , MUPs ) and of the lack of any effective remedy in domestic law .


No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger

The applicant was born in DATE and lives in GPE . Following a request for a criminal investigation against the applicant lodged by GPE on DATE and amended on DATE , on DATE the applicant was summoned as accused to appear before the investigating judge of ORG . He was also notified of the charge of aggravated fraud under section CARDINAL § CARDINAL of LAW , and the underlying allegations submitted by ORG

On DATE the applicant was heard by the investigating judge . He denied the charge and submitted a number of documents in support of his position that the accusations were fabricated and unfounded , but was unwilling to answer any of the questions posed by PERSON ’s legal counsel .

On DATE the investigating judge of ORG issued an order for an investigation of aggravated fraud against the applicant . In the course of that investigation , CARDINAL witnesses were heard who confirmed PERSON ’s version of events . The applicant was not present during these examinations , although the investigating judge ordered him to be notified thereof . Judicial records contain no evidence that the applicant received a summons .

After the investigation was concluded , on DATE , ORG took over the proceedings and on DATE lodged an indictment for attempted aggravated fraud under LAW CARDINAL and CARDINAL in conjunction with LAW . The indictment stated that the applicant had deceived PERSON into believing that he could assist her in preventing her husband from claiming ownership of her share of their joint property , namely the family house . The applicant had taken advantage of ORG age and naivety and persuaded her to sign a fictitious loan agreement stating that he would lend her MONEY ( DEM ) , equivalent to CARDINAL NORP tolars ( SIT ) , which was to be secured with a mortgage on her share of the family house , despite the fact that PERSON did not owe him anything , which he was well aware of . For this purpose , the applicant had PERSON sign an authority form authorising him to take all measures necessary for the execution of the loan agreement . On that basis , the applicant had the mortgage against ORG property entered in the land register , prejudicing the value of her property in the amount of SIT CARDINAL . Moreover , PERSON paid the applicant SIT CARDINAL in several instalments for the “ favour ” he had done her .

Having been served with the indictment , the applicant lodged an objection , reiterating that ORG accusations of fraud were fabricated and arguing that he would not be able to enter a mortgage in his favour in the land register without ORG cooperation . The objection was rejected by the pre - trial panel on DATE . The latter noted in its decision that the criminal offence should be reclassified as attempted fraud under LAW in conjunction with section CARDINAL of LAW , as the value at issue did not reach the statutory threshold of significant pecuniary damage . Accordingly , ORG no longer had jurisdiction over the case , which was to be referred to ORG . The applicant was served with the decision and appealed against it ; however , his appeal was dismissed as unfounded .

Following the transfer of jurisdiction to the local court , the ensuing court proceedings were conducted under the rules of summary procedure .

The applicant having failed to collect the first CARDINAL summonses to the hearing which was to take place on DATE , the hearing was rescheduled for DATE . A summons to this later hearing was served on the applicant on DATE through the court courier service at both his home and his work address , and subsequently on DATE by post , again at both his home and his work address . On DATE the applicant sent a letter to the court in which he objected to the hearing , alleging that he had received CARDINAL identical summonses which contained no explanation but only an indication of legal classification of the criminal offence in question . The applicant ’s objection to the hearing was received by the local court on DATE .

NORP On DATE ORG held a hearing in the absence of the applicant , having found that he had not provided justification for his absence , although he had been duly summoned , that he had already been questioned during the investigation , and that his presence at the hearing was not necessary to establish the facts of the case . Thus , the legal requirements for trial in absentia had been met . The court examined GPE and the CARDINAL witnesses who had already been questioned during the investigation ; their accounts corresponded to their previous statements . In her concluding remarks the district state prosecutor modified the indictment , reclassifying the offence to the actual criminal offence of fraud , rather than attempted fraud . She also added some details to the facts on which the indictment was based , in particular the allegation that the applicant had lied to GPE that there would be expenses with regard to the entry of the mortgage in the land registry , for which she had paid him a total of SIT CARDINAL .

Having concluded the hearing , the court found the applicant guilty of the criminal offence as specified in the modified indictment , and sentenced him to DATE in prison . PERSON was invited to pursue her pecuniary claim in civil proceedings .

The applicant appealed to ORG , arguing that the statement he had given during the investigation could not suffice for the trial purposes , as an indictment had not yet been lodged and thus could not be disputed . He pointed out that a statement given in the investigation could relate to CARDINAL criminal offence , while the indictment could be lodged for a completely different criminal offence . He was therefore of the view that the provisions on trial in absentia should only be applied to cases where the defendant was questioned after the lodging of the indictment . Moreover , he disputed the credibility of the CARDINAL witnesses and referred to the loan agreement and other documents he had submitted to the court during the investigation , claiming that GPE was evading her contractual obligations and charging him with fraud for that reason . He also challenged the imposed prison sentence .

On DATE ORG dismissed the applicant ’s appeal as unfounded and upheld the first - instance judgment . The higher court found that the applicant ’s defence right had not been violated by the fact that he was not present at the hearing . It noted that the accused had the right to attend the summary proceedings , but that he was not obliged to do so . The court noted that the applicant had been heard during the investigation , had received the indictment and had been duly summoned to the hearing , where he would have had the opportunity to make a statement and examine witnesses against him . However , given that the facts of the case had been clear and fully established , the higher court took the view that the applicant ’s presence at the hearing had not been necessary . In this connection , the court held that a hearing should only be discontinued if the description of the criminal offence in the indictment , albeit based on the same factual elements as before , was substantially changed . In such a case , the defendant ought to be informed thereof and summoned to attend a new hearing . However , this was not the case in the circumstances complained of by the applicant .

The applicant appealed on points of law , reiterating that he should not have been tried in absentia , as he had been questioned only before the indictment was lodged . Moreover , he had not been given the opportunity to cross - examine the witnesses against him .

On DATE ORG delivered its judgment , in which it upheld the lower courts’ decisions . ORG found that the offence which prompted the investigation against the applicant was identical to the offence with which the applicant was later charged . Furthermore , the hearing before the court did not bring to light any new information that had not already been uncovered during the investigation . Referring to section CARDINAL of LAW , which sets out the conditions for conducting a hearing in absentia , ORG noted that the defendant had the right to attend the hearing , but that this right could under certain circumstances be waived . It also noted that the applicant had been duly summoned and warned that the hearing could be held in his absence . As regards the examination of witnesses during the investigation , ORG noted that while there were no indications in the case file that the applicant had been notified of it , this procedural breach had been remedied by the hearing at which GPE and the other CARDINAL witnesses had been re - examined . The applicant had had the opportunity to attend the hearing , but had waived his right .

The applicant lodged a constitutional complaint , which was declared admissible on DATE .

On DATE the Constitutional Court delivered a decision finding that the applicant ’s constitutional rights had not been violated . The court noted that the applicant had been heard during the investigation and that the charges in the request for the investigation and the indictment which had been lodged after the investigation and served on him had concerned the same acts and the same alleged offence , regardless of some differences in the wording . They both charged the applicant with misleading PERSON into concluding a fictitious agreement with him with the intent of acquiring illicit pecuniary gain . Observing that the indictment had been modified at the hearing , ORG held that although the offence had been reclassified as actual fraud , and no longer as attempted fraud , the charge had remained the same in terms of content as regards the applicant ’s conduct and the circumstances in which the offence had been committed . Having regard to that , as well as the fact that the applicant had been duly summoned to the hearing and had failed to provide any valid reason for his absence , ORG held that the local court had had no obligation to ensure the applicant ’s presence at the hearing . Moreover , ORG observed that the applicant had not even alleged that the criminal offence which was the subject of the investigation was different from the one examined at the court hearing . He had merely drawn attention to the fact that “ a prosecutor may file an indictment for a completely different criminal offence after the investigation is completed ” . It was also found that the applicant could have requested an adjournment of the hearing , but did not do so , and instead had failed to appear without specifying any valid reason . Finally , as regards the examination of the witnesses , ORG reached the same conclusion as ORG had previously .


CASE OF BUZURTANOVA AND ZARKHMATOVA v. RUSSIA

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

András Sajó;Dmitry Dedov;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicants were born in DATE and DATE respectively . The first applicant lives in PERSON , PERSON , and the second applicant in Mayskiy ( also spelled as ORG ) , PERSON . The first applicant is the sister of Mr PERSON , who was born in DATE . The second applicant is his wife .

At the material time Mr PERSON was working as a martial arts trainer in the “ PERSON ” sports club ( gym ) ( in the documents submitted also referred to as the “ Kaloy ” sports club ) in GPE , Ingushetia . He was the mixed martial arts NORP champion and a well - known sportsman in the region . He and the second applicant lived in GPE , a settlement on the border between LOC - GPE and Ingushetia . Permanent checkpoint no . CARDINAL , also known as “ GPE ” , was located between GPE on one side of the border and the settlement of ORG on the other . The checkpoint was equipped with ORG cameras . Every passing vehicle was checked along with the driver ’s and ORG identity documents . From the documents submitted to the ORG it appears that other traffic checkpoints were located in the area .

DATE on DATE Mr PERSON was driving home from GPE in his white Lada - Priora car with registration number AHCARDINALACARDINAL . At TIME he called his wife saying that he would arrive soon , but he did not . The applicants tried to call him , but his mobile phone was switched off . At TIME on DATE the applicants and their relatives found Mr PERSON training shoe , socks and hat in a street in the neighbourhood .

At TIME on DATE Mr PERSON car was found in the vicinity of Mayskiy , not far from the motorway . The car ’s front side windows were smashed and the front of the vehicle had been damaged .

According to the applicants , in TIME of DATE PERSON PERSON had been stopped QUANTITY from his house by masked men in military uniforms , who had followed him in CARDINAL cars . The men had forced him into one of their vehicles and taken him to an unknown destination . The applicants did not witness the abduction .

On DATE a local newspaper published an article concerning a meeting held on DATE ( in the documents submitted the date was also referred to as DATE ) by the President of PERSON , Mr PERSON , and other high - ranking officials with members of the sports club where Mr PERSON had worked . Information about the meeting , held in PERSON , was posted on various websites . At the meeting one of the officials stated that Mr PERSON had been aiding a member of an illegal armed group , Mr NORP The President of PERSON reminded them that at his previous meetings with members of the sports community , at which Mr PERSON had also been present , he had warned them not to engage in illegal acts . The President also said that he had information concerning phone calls proving Mr PERSON involvement in illegal activities . A video recording of the meeting was provided to the investigating authorities ( see paragraph CARDINAL below ) .

The applicants have had no news of Mr PERSON since his alleged abduction .

The Government contested neither the applicants’ description of the circumstances of the abduction , nor their account of the subsequent events . However , they stated that the alleged abduction had taken place in the absence of witnesses and that there was no evidence that the perpetrators had been ORG agents .

NORP In reply to the ORG ’s request for a copy of the contents of the criminal case file opened in connection with the disappearance , the ORG submitted copies of documents running to CARDINAL pages . From the documents submitted , the domestic investigation can be summarised as follows .

On DATE the second applicant complained to ORG in GPE - GPE ( “ the investigations department ” ) , stating that her husband had disappeared while driving home from ORG .

On DATE the investigations department opened criminal case no . CARDINAL into the events under LAW ( murder ) . The applicants were informed thereof .

On DATE the investigators examined the crime scene . They collected from the scene the hat , the training shoe and the socks .

Also on DATE , DATE , the investigators examined Mr PERSON car , which had been found with smashed windows QUANTITY from the GPE motorway . They found traces of blood in the car . The investigators collected a number of pieces of evidence , such as a finger print from pack of cigarettes , CARDINAL swabs of various parts of the vehicle ( including the steering wheel and breaks ) , a number of items of clothing , CARDINAL bags , a mobile telephone , CARDINAL memory cards , pieces of broken glass and a police service identity card certifying that Mr PERSON worked as a policeman in ORG . On the same date a forensic expert examination of the evidence was ordered . The applicants were informed thereof .

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

On DATE the investigators requested that the ORG grant permission to obtain the list of calls and other connections made from Mr PERSON and the second applicant ’s mobile telephones DATE and DATE . In addition , the investigators requested permission to obtain the list of all mobile connections made in the vicinity of the crime scene ( see paragraph CARDINAL above ) DATE . On DATE the permissions were granted and on DATE and DATE the lists were examined .

On DATE the investigators requested that the ORG grant permission to tap for DATE the mobile telephone of Mr PERSON aunt , PERSON . B. , and that of the second applicant , as earlier on the same date the investigators had obtained operational information that the perpetrators would try to call them to discuss payment of ransom for Mr PERSON .

On DATE second applicant requested that the investigators provide her with information on the progress of the investigation and with copies of the case - file documents . On DATE the investigators granted the request in part , stating that under national law , prior to the completion of the investigation the applicant was entitled to obtain copies of certain procedural documents but not the entire contents of the case file .

Also on DATE , DATE , the second applicant requested that the investigators provide her with information concerning the list of connections made to and from Mr PERSON mobile telephone from TIME on DATE to DATE and the information from the ORG cameras installed at checkpoint “ PERSON ” on the motorway next to PERSON between TIME on DATE and TIME on DATE . On DATE her request was rejected , as under domestic law she was not entitled to obtain such information from the case file .

On DATE the expert examination of Mr PERSON police identity card collected from his vehicle ( see paragraph CARDINAL above ) concluded that the document had been forged . On DATE the ORG of the ORG confirmed to the investigators that the police identity card had been forged and that Mr PERSON had not served in the police .

On DATE the second applicant requested that the investigators verify the theory that her husband had been abducted by residents of GPE , GPE - GPE , who on DATE had attacked Mr PERSON sports team after a tournament held in that town . On DATE the investigators granted the request in full . In particular , they obtained copies of the inquiry carried out into the incident and questioned witnesses to the scuffle .

On DATE the investigators examined the CARDINAL memory cards collected from Mr PERSON car and ordered their forensic expert examination . The applicants were informed thereof .

On DATE the investigators asked the Ministers of the Interior of GPE - GPE , PERSON , ORG and ORG and the heads of the LOC - GPE , PERSON , ORG and ORG of ORG ( “ the ORG ” ) , as well as other law - enforcement agencies , whether they had any incriminating information concerning Mr PERSON and whether they had carried out a special operation in respect of him .

The investigators asked a number of banks whether they had accounts opened in Mr PERSON name and if so , details of the transactions on those accounts between the dates of their opening and CARDINAL DATE .

The investigators also asked a number of hospitals whether Mr PERSON was or had been treated on their LOC .

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

On DATE the first applicant requested that the investigators allow CARDINAL lawyers from the human rights organisation ORG ( “ the ORG ” ) to represent her in the criminal case . On DATE her request was rejected as the lawyers had failed to enclose their professional identity cards confirming their ORG membership . On DATE the refusal was overruled as groundless ( see paragraph CARDINAL below ) .

On DATE the first applicant provided her statement concerning the alleged abduction to the ORG lawyers . In particular , she stated that in her opinion , the abduction had been perpetrated by representatives of law - enforcement agencies for unknown reasons . The statement was provided to the investigators on DATE ( see the paragraph CARDINAL below ) .

On DATE , DATE , CARDINAL of the ORG lawyers , PERSON PERSON , requested that the investigators take , amongst others , the following steps :

-to include in the case file the first applicant ’s statement given to the ORG on DATE ...

- to ask the motorway GPE and the other traffic police stations between ORG and GPE - GPE whether in the period between CARDINAL and DATE CARDINAL vehicles passed through them : a PERSON and CARDINAL Lada Priora cars and a white Lada - Priora with registration number PERSON DATE with Mr PERSON in it ;

- to request information from the “ ORG ” database and the video recording from the traffic police stations and checkpoints between PERSON and PERSON as to whether DATE CARDINAL vehicles passed through them : a PERSON and CARDINAL Lada - Priora cars and a white Lada - Priora with registration number PERSON DATE with Mr PERSON in it ;

- to request from the mobile phone service providers information on connections DATE ... in order to establish the whereabouts of the subscriber of telephone number DATE and his mobile connections from DATE up to the present ;

Enclosures : copy of the statement of PERSON of DATE ... ”

On DATE the investigators decided to grant the request of DATE . However , from the documents submitted it appears that the requested steps were taken only in part ( see paragraph DATE below ) .

On DATE the investigators received a reply from ORG ( “ the ORG ) of GPE - GPE promising to inform them whether they had any incriminating information on Mr PERSON and whether they had conducted any special operations against him .

On DATE the investigators examined the premises of the “ FAC sports club . No evidence was collected from the scene .

On or before DATE Mr PERSON name was included in the NORP federal database of missing persons .

On DATE the investigators requested that the GPE district department of the interior ( “ the ROVD ” ) inform them which officers had patrolled Mayskiy between CARDINAL and DATE . The reply with the names of QUANTITY police officers was given on DATE .

On DATE the investigators requested permission from ORG to obtain the list of calls and other connections made in the vicinity of FAC in GPE , ORG TIME on DATE and TIME on DATE . On DATE the permission was granted .

On DATE , the investigators asked the local TV stations to broadcast a general description of the circumstances of Mr PERSON abduction and to request assistance in establishing his whereabouts and the ORG identities .

Also on DATE the PERSON investigations department informed the investigators that on DATE Mr PERSON had participated in a fight , as a result of which he had received insignificant bodily injuries , and that he had not given any statements about the incident . On DATE the Prigorodniy ROVD had opened a criminal case into the injuries received by CARDINAL sportsmen , including Mr PERSON , who had been attacked on DATE by a crowd of CARDINAL young men in GPE .

On DATE the investigators forwarded information requests concerning Mr PERSON whereabouts , possible detention , hospitalisation and discovery of his body to a number of lawenforcement agencies in GPE . Replies in the negative were received .

Also on DATE the investigators examined video footage obtained from the ORG camera situated at traffic police checkpoint “ PERSON ” on the motorway next to Mayskiy TIME on DATE and TIME on DATE . Neither Mr PERSON car nor any other Lada - Priora cars were found on that footage .

On various dates in DATE the investigators received replies from the mobile telephone companies , according to which DATE multiple mobile telephone numbers had been registered in the name of Mr PERSON .

On DATE the head of the operational search unit of ORG of GPE - GPE replied to the NORP request ( see paragraph DATE above ) stating , amongst other things :

“ In reply to your request no . CARDINAL - CARDINAL/CARDINAL - DATE of CARDINAL DATE I inform you that the operational services of GPE - Alania have obtained information that Mr PERSON , who was born in DATE , possibly had been aiding members of illegal armed groups acting in ORG , that he had provided financial assistance to them and could have acted as their contact person . According to the information in our possession , Mr PERSON could have stored illegal weapons and ammunition in his home .

I inform you also that we are taking a number of operational steps to establish PERSON PERSON whereabouts and detain persons involved in his disappearance ... ”

On DATE , DATE , CARDINAL of the applicants’ lawyers from the ORG , PERSON , requested that the investigators take the following steps :

Include in the case file the video of the meeting of the ORG sportsmen with the President of the Republic , Mr ORG , concerning the abduction of Mr PERSON , which took place on DATE , and order a linguistic examination of the footage in order to obtain its translation into NORP .

Question former colleagues of the abducted man , including the Chief Bailiff of GPE - GPE , Mr PERSON , concerning the information provided by him during the meeting of CARDINAL DATE and recorded on video .

Question the President of ORG , Mr ORG , concerning , amongst other things , the incriminating information on Mr PERSON which was mentioned by him during the meeting with the sportsmen of ORG . In particular , he stated the following : ‘ There are print - outs of telephone conversations , I have not brought them with me , but people know what I mean anyway and the fellow villagers understand it too’ .

Request from the ORG prosecutor ’s office the criminal case file against Mr NORP , who was mentioned by the Chief Bailiff of GPE - GPE , Mr M. PERSON , by the secretary of ORG , and by President PERSON . Those officials spoke of the criminal nature of Mr PERSON interactions with Mr NORP In connection with this , it is necessary to examine the contents of the criminal case file to establish the involvement of Mr PERSON in the actions of Mr NORP and his accomplices ...

Inform me about the steps taken ...

... Enclosures :

- copy of the authority form

- video footage of the meeting of President of ORG Mr ORG with representatives of the sports community of ORG on DATE ... ”

On DATE forensic experts examined the evidence collected from the crime scene ( see paragraph CARDINAL above ) .

On DATE the investigators decided to grant the request of CARDINAL DATE ( see paragraph CARDINAL above ) . However , from the documents submitted it appears that none of the requested measures was taken .

“ ... speak to the Mr PERSON neighbours to establish the identity of eyewitnesses to the abduction and question them . ( According to the information from a resident of GPE , Mr GPE . , several neighbours stated that they had witnessed the abduction . This information can be found on the website of ORG : http : GPE - uzel.ru / articles/CARDINAL/ ) ;

... check whether during the same time frame other persons were abducted or detained under similar circumstances ... and examine the contents of the relevant criminal case files ... ”

On the same date the request was rejected by the investigators as the ORG lawyer was not the ORG representative in the criminal case .

On DATE the head of the investigations department overruled the refusal of DATE ( see paragraph CARDINAL above ) and allowed the CARDINAL ORG lawyers to represent the applicants in the criminal case . The applicants were informed thereof .

DATE . On DATE ( in the documents submitted the date is also stated as DATE ) DATE one of the applicants’ lawyers from the ORG , Mr GPE , requested that the investigators proceed as follows :

“ ... According to Mr PERSON wife [ the second applicant ] , he was abducted by unidentified persons driving CARDINAL cars . Therefore , it is possible to conclude that before the abduction , on the way from the gym to the crime scene , PERSON PERSON was under surveillance . It is also possible to presume that while driving , the abductors used some kind of device to communicate with each other . If the fact of such connections from the same sources at the time of the incident is established in the areas along Mr PERSON route , then it would allow the identification of the persons who used those means of communication . It would also provide grounds to question them about the reasons for their presence at the scene at the material time and why they were taking the same route as Mr PERSON .

The taking of such steps would lead to the identification of the persons involved in Mr PERSON disappearance .

Therefore , on the basis of ORG CARDINAL and CARDINAL of the NORP Criminal Procedure Code you are requested to :

- establish Mr PERSON route on DATE from the sports club ... to the possible place of his abduction in GPE and the place of the discovery of [ his ] car ;

- locate the main telecommunication towers capable of receiving and issuing mobile phone signals along the above route ;

- obtain from the mobile phone companies the lists of all incoming and outgoing connections , including text messages , made with the technical assistance of the above devices TIME and TIME on DATE ;

- examine the information obtained and establish the mobile service subscribers who were located on the above - mentioned route at the relevant time ;

- obtain from the agencies carrying out electronic intelligence in ORG and GPE - GPE information concerning the use of radio devices at the relevant time along the above - mentioned route ;

- identify the users of those devices and question them about the case ... ”

On DATE the Prigorodniy central district hospital provided the investigators with a copy of the registration log of urgent calls for medical assistance on CARDINAL and DATE . Mr PERSON name was not indicated therein .

On DATE the applicants requested that Mr PERSON , member of ORG , be allowed to represent them in the criminal case . On DATE the request was granted .

On DATE the request of the applicants’ lawyer was granted ( see paragraph CARDINAL above ) . However , from the documents submitted it appears that the requested measures were not taken .

On DATE the investigators again questioned the second applicant , who stated that she still had no information concerning her husband ’s whereabouts .

According to the applicants , on DATE the first applicant told her representative at the ORG that someone , whose identity she could not disclose out of fear for that person ’s life , had informed her that Mr PERSON had been abducted by officers of ORG ( “ the ORG ” ) from GPE , GPE , and taken to the capital of GPE - GPE , NORP , for unknown reasons . It is unclear whether the applicants passed that information on to the official investigation .

According to the applicants , the case - file documents furnished by the Government did not include the list of all the mobile phone communications which had been made in the vicinity of Mr PERSON alleged abduction obtained by the investigation on DATE .

On DATE the investigators questioned the second applicant , whose statement concerning her husband ’s disappearance was similar to the applicants’ account submitted to the ORG . In addition , she stated that her husband had used mobile telephone number CARDINAL - CARDINAL - CARDINAL - CARDINAL and that he had neither enemies nor unpaid debts .

On DATE , the investigators questioned Mr PERSON , who stated that on DATE he had been with Mr PERSON at the sports club until TIME At TIME on DATE the applicants had called him looking for Mr PERSON as the latter had not returned home . The witness and Mr GPE had then assisted the applicants in their search and had gone to the hospitals , morgues and police stations looking for Mr PERSON , but without success . The following morning they learnt that Mr PERSON car had been found .

On DATE the investigators also questioned the husband of the first applicant , Mr GPE . , who stated that he had accompanied the first applicant in the search for Mr PERSON when the latter had not returned home . Driving around Mayskiy , they had found pieces of broken glass along with a training shoe and a sock . The first applicant had immediately identified them as belonging to Mr PERSON . They had then immediately gone to the Mayskiy police station .

On DATE , the investigators also questioned a resident of Mayskiy , PERSON , who stated that after TIME on DATE she had been at home when she had heard men shouting outside for TIME . She had stepped outside and seen CARDINAL vehicles ; she had not been able to identify the model or make of the vehicles as it had been dark . The witness thought that it had been a squabble between young men who frequently gathered at the spot to drink alcohol , and returned indoors .

On DATE , the investigators also questioned another resident of Mayskiy , PERSON , who stated that he had gone to bed early on DATE and had not seen the police examining the crime scene outside his house until TIME .

On DATE Mr PERSON mother , PERSON . PERSON , lodged another complaint concerning the abduction with the investigations department .

On DATE the investigators again questioned the second applicant , whose statement was similar to the one she had given on DATE ( see paragraph CARDINAL above ) . In addition , she stated that PERSON PERSON was a professional sportsperson , that in DATE he had won the NORP mixed martial arts championship and that he did not have any enemies .

On DATE the investigators also questioned Mr PERSON friend , PERSON , who stated that he had known Mr PERSON since childhood , that they had trained together for DATE and that Mr PERSON did not have any enemies . In DATE PERSON PERSON had participated in a fight with someone , but afterwards the parties to the conflict had settled the issue . The witness stated that he had learnt of the alleged abduction from the applicants and had no idea as to why Mr PERSON had disappeared .

The investigators questioned Mr PERSON friend , Mr PERSON , who stated that he had seen him in TIME of DATE in the gym and that he had not witnessed the alleged abduction .

The investigators also questioned Mr PERSON sisters , PERSON and PERSON . PERSON , both of whom stated that they had not witnessed the alleged abduction but had found out about it from a woman living at the corner of FAC , according to whom an abduction had been perpetrated by masked men in black uniforms driving CARDINAL cars . In addition , PERSON . PERSON stated that another resident of that area , Mr M. Be . , had confirmed the woman ’s story and had added that one of the ORG cars had hit PERSON PERSON car from the front and another had blocked it at the back .

The investigators also questioned Mr PERSON aunt , PERSON . B. , who stated that she had not witnessed the alleged abduction and that she had no explanation for his disappearance .

The investigators also questioned Mr PERSON friend , Mr GPE , a police officer , who stated that at TIME on DATE he had been driving home when he had seen Mr PERSON white car with a dent in the front . The car had skidded and had been driven erratically . The witness had then seen CARDINAL cars , CARDINAL of which was a silvercoloured Lada – Priora , following Mr PERSON car . All of the vehicles had been heading in the direction of the border with ORG .

DATE . On DATE the investigators questioned the second applicant ’s neighbour , PERSON , who stated that at TIME on DATE she had been at home with her husband when they had heard men yelling and then CARDINAL cars speeding away .

On DATE the investigators also questioned Mr PERSON mother , PERSON . PERSON , who stated that she had not witnessed the alleged abduction and had no explanation for her son ’s disappearance . On the same date the investigators obtained a blood sample from the witness for a comparative examination with the evidence collected from Mr PERSON car and for inclusion in the regional DNA database .

On DATE the investigators again questioned the second applicant , who reiterated her previous statements ( see paragraphs CARDINAL and CARDINAL above ) confirming that she had no explanation for Mr PERSON disappearance .

On DATE the investigators questioned a police officer from traffic checkpoint no . CARDINAL , Mr A.Ts . , who stated that he had been on duty at the station TIME on DATE and that he had not seen anything suspicious . He had no information pertaining to the alleged abduction .

On DATE the investigators again questioned Mr PERSON friend , police officer GPE , who reiterated his previous statement ( see paragraph CARDINAL above ) , adding that he could show the investigators the place where he had seen Mr PERSON car on TIME of the disappearance . On DATE , in order to verify the statement , the investigators took the witness to the place where he had seen the vehicle .

DATE the investigators questioned Mr PERSON neighbours , PERSON , PERSON . and PERSON , all of whom stated that on TIME of the disappearance they had been asleep at home and , therefore , had no pertinent information about it .

On DATE the investigators questioned the first applicant . Her statement was similar to the account submitted before the ORG . She also stated that she had no theories concerning the reasons for her brother ’s disappearance .

On DATE the investigators received the first applicant ’s statement concerning the alleged abduction , which she had given to the ORG lawyers ( see paragraph CARDINAL above ) .

DATE . On DATE the investigators again questioned PERSON who reiterated her previous statement ( see paragraph CARDINAL above ) , adding that she had not been able to hear in what language the men had been shouting on TIME of the alleged abduction .

On DATE the investigators again questioned the second applicant , who stated that Mr PERSON had never worked in the police , she had never seen him with a police service identity card and that she had no theories concerning the reasons for her husband ’s disappearance . At the same time she stated that she had read on the internet that her husband ’s disappearance could have been related to the brawl in DATE .

On DATE the investigators questioned Mr PERSON cousin Mr PERSON , who stated that he had not witnessed the alleged abduction , had no information about it or theories concerning the possible ORG identities .

On various dates DATE and DATE the investigators questioned Mr PERSON acquaintances , colleagues and neighbours : Mr GPE , PERSON , PERSON , Mr PERSON , PERSON . , PERSON . Ts . , PERSON , PERSON . , PERSON . , PERSON , PERSON . , PERSON , PERSON , PERSON Ta . E. , Mr I.Im . , PERSON , PERSON . , PERSON , Mr GPE , Mr GPE . and Mr DATE . They stated that they had not witnessed the alleged abduction , had no information about it or any theories concerning the possible ORG identities .

On various dates DATE the investigators questioned Mr PERSON relatives , neighbours and former colleagues PERSON Is . PERSON , Mr Ab . PERSON , PERSON , PERSON , Mr R.Kh . , Mr M.Ko . , PERSON PERSON , Mr PERSON and Mr GPE . Their statements concerning the alleged abduction were similar to the applicants’ account submitted before the ORG . They also stated that they did not have any theories concerning the possible ORG identities .

From the documents submitted it appears that the proceedings are still ongoing .

The applicants maintained that it was beyond reasonable doubt that the men who , in their view , had abducted Mr PERSON had been ORG agents . In support of their complaint , they referred to the following facts . Witnesses had seen CARDINAL vehicles following Mr PERSON car ( see paragraphs CARDINAL and CARDINAL above ) and the evidence collected subsequently ( see paragraphs CARDINAL and CARDINAL above ) demonstrated that the abduction had been well - planned and well - organised and that the perpetrators had taken into account Mr PERSON physical abilities . The manner in which the alleged abduction had been carried out demonstrated that law - enforcement officers or other ORG agents had been involved in it .

The Government submitted that there was no evidence of the involvement of representatives of law - enforcement agencies in the disappearance of Mr PERSON and that the applicants had failed to present a prima facie case of abduction by ORG agents .

The ORG observes that in its extensive jurisprudence it has developed a number of general principles relating to the establishment of matters in dispute , in particular when faced with allegations of violations of fundamental rights ( for the most recent summary of these , see PERSON v. “ the former GPE ” [ ORG ] , no . CARDINAL , § § CARDINAL , DATE ) .

More specifically , the ORG has adjudicated a series of cases concerning allegations of disappearances in the NORP LOC . Applying the above - mentioned principles , it has concluded that it would be sufficient for the applicants to make a prima facie case of abduction of the missing persons by ORG agents , thus falling within the control of the authorities , and it would then be for the Government to discharge their burden of proof , either by disclosing the documents in their exclusive possession or by providing a satisfactory and convincing explanation of how the events in question occurred ( see , for example , concerning abductions in ORG , PERSON v. GPE , no . CARDINAL/CARDINAL , DATE , and GPE v. GPE , no . CARDINAL/CARDINAL , DATE ) . If the Government failed to rebut this presumption , that would entail a violation of LAW in its substantive part . Conversely , where the applicants failed to make a prima facie case , the burden of proof could not be reversed ( see , for example , PERSON v. GPE , no . CARDINAL , § DATE , CARDINAL DATE ) .

Turning to the circumstances of the present case , the ORG notes that no assessment of evidence was carried out by the domestic courts . Therefore , it is for the ORG to assess the facts of the case as presented by the parties .

It should be noted at the outset that the documents submitted contain no witness statements of persons who could describe in detail the circumstances of the alleged abduction other than the very general descriptions of the vehicles and persons following Mr PERSON car on TIME in question ( see paragraphs CARDINAL , DATE , DATE , DATE , DATE and DATE above ) . The ORG also notes that the investigation obtained various theories concerning the reasons for his disappearance : kidnapping for ransom ( see paragraph CARDINAL above ) , abduction relating to hostile relationship ( see paragraphs CARDINAL and CARDINAL above ) and , lastly , abduction by law - enforcement agents ( see paragraph CARDINAL above ) . In such circumstances , in the absence of unequivocal prima facie evidence of the latter , the ORG is unable to conclude that ORG agents or persons acting with their consent could be the sole possible perpetrators of the alleged abduction .

Therefore , it has not been established to the required standard of proof – “ beyond reasonable doubt ” – that ORG agents were implicated in Mr PERSON disappearance ; nor does the ORG consider that the burden of proof can be entirely shifted to the Government .


Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);No violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Fair hearing);Pecuniary damage - award (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

The applicant is a political activist , opposition leader , anticorruption campaigner and popular blogger . These CARDINAL applications concern his arrests on CARDINAL occasions at different public events .

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

On DATE the applicant took part in a meeting at FAC , GPE , which began at TIME It was devoted to the allegedly rigged presidential elections in GPE and had been approved by the municipal authorities .

At the end of the meeting , at TIME , ORG deputy PERSON addressed the participants , inviting the public to stay after the meeting for informal consultations , which began at TIME and were attended by CARDINAL people . According to the applicant , he stayed among others at FAC for a meeting with the deputy ; they remained peacefully within the pedestrian area of the square and did not obstruct the traffic or access . According to the Government , the applicant was holding an irregular gathering without prior notification and was shouting political slogans .

At TIME the police arrived and arrested the applicant , among many others . He was taken to the LOC police station .

On TIME CARDINAL policemen drew up a report on the administrative offence , stating that the applicant had been arrested at TIME in a fountain ” at FAC ; that he had taken part in an irregular public gathering and that he had ignored police orders to disperse . The applicant was charged with a breach of the established procedure for conducting public events , an offence under LAW . The applicant was released at TIME on DATE .

On DATE the Justice of ORG no . CARDINAL of the Tverskoy District examined the administrative charges against the applicant . The applicant challenged the authenticity of the police reports and the witness statement of the QUANTITY police officers on the grounds that he had been arrested by different police officers , but his objection was dismissed . On the basis of the written statements and testimony of QUANTITY police officers the Justice of the Peace found the applicant guilty of taking part in an irregular public gathering conducted without prior notification and fined the applicant under LAW MONEY ( RUB ) , at the material time equivalent to MONEY ( ORG ) .

On DATE the LOC court of GPE examined the applicant ’s appeal . The applicant was absent , but he was represented by a lawyer . The court examined CARDINAL more eyewitness , a journalist , who testified that before being arrested the applicant was standing “ in a fountain , holding hands with others ” and chanting political slogans . He also testified that the police officers who had placed the applicant in the police bus were the same officers who had signed the report and who had appeared at the first - instance hearing . The court examined CARDINAL video recordings submitted by the applicant . It found that ORG deputy had indeed called a public meeting , but concluded that at the time of his arrest the applicant was not meeting the deputy but was participating in a protest assembly . It upheld the judgment of DATE .

On DATE the applicant took part in an overnight “ walkabout ” , an informal gathering whereby activists met at a public venue to discuss current affairs . On this occasion , CARDINAL activists met up to discuss the inauguration of PERSON as President of GPE DATE . On DATE some areas of central GPE were restricted for traffic and pedestrians due to the presidential inauguration and DATE festivities .

At TIME , according to the applicant , or at TIME , according to the Government , the applicant was walking down PERSON , accompanied by CARDINAL people . The group stopped on the stairs of a public building for a group photograph . While the applicant was taking the photograph he was arrested by the riot police . At TIME he was taken to a police station where an administrative offence report was drawn up . The applicant was charged with a breach of the established procedure for conducting public events , an offence under LAW . The applicant was released at TIME on DATE .

On DATE , at TIME , according to the Government , or at TIME , according to the applicant , the applicant was walking down FAC in a cluster of CARDINAL people . According to the applicant , they stayed on the pavement , had no banners or sound equipment , and were causing no nuisance . They were surrounded by the riot police and the applicant was arrested without any order or warning .

At TIME on DATE the applicant was taken to a police station where an administrative offence report was drawn up . He was charged with a breach of the established procedure for conducting public events , an offence under LAW § CARDINAL of LAW . The applicant was released at TIME on DATE .

On CARDINAL DATE the Justice of ORG no . CARDINAL of GPE examined the charges concerning the applicant ’s administrative offence at PERSON . The applicant was absent from the proceedings , but he was represented by his legal counsel , who contested the applicant ’s participation in an irregular assembly and claimed that the latter had not chanted any slogans . He asked the Justice of the FAC to admit video evidence and to examine certain eyewitnesses , but she refused to do so . On the basis of written statements by CARDINAL police officers the Justice of the Peace found the applicant guilty of taking part in a meeting conducted before TIME , in breach of regulations , and fined him under LAW . This judgment was delivered in full on DATE . It was upheld on DATE by ORG of GPE .

On DATE the Justice of ORG no . CARDINAL of LOC examined the administrative charges concerning the applicant ’s administrative offence at FAC . The applicant was absent from the proceedings , but he was represented by his legal counsel , who contested the applicant ’s participation in an irregular assembly and claimed that the latter had not chanted any slogans . The Justice of the Peace questioned the police officer who had arrested the applicant and QUANTITY eyewitnesses . The police officer testified that he had arrested the applicant because he was walking in a big group of people , obstructing traffic and chanting political slogans . The eyewitnesses testified that the applicant was walking down the street among about CARDINAL people , and that the police had blocked their way and had arrested them without any warning ; they denied hearing any slogans or amplified sound . The Justice of the FAC refused to admit video evidence and dismissed the eyewitness statements on the grounds that they were likely to be the applicant ’s supporters and were therefore biased . The applicant was found guilty of taking part in a meeting conducted in breach of regulations and was fined under LAW CARDINAL . This judgment was upheld on DATE by ORG of GPE .

On DATE the applicant arrived at TIME at FAC in GPE to take part in an informal meeting with a ORG deputy and to attend DATE festivities . He was among CARDINAL people “ walking about ” and discussing current affairs . According to the applicant , this gathering was not a demonstration : there had been no banners , no noise , and no one was chanting any slogans or giving speeches .

At TIME riot police arrived at the site of the meeting and arrested the applicant without any orders or warning . The applicant submitted a video recording of his arrest .

At TIME on DATE the applicant was taken to the LOC police station . At TIME the applicant was searched and then an administrative offence report was drawn up . According to the applicant , he was detained at the police station for TIME before he was brought before a ORG of the Peace . The Government confirmed that the applicant had been detained pending trial , but did not specify the time .

At an unidentified time on DATE the applicant was brought before the Justice of ORG no . CARDINAL of LOC of GPE . The Justice of the FAC refused the applicant ’s requests for the police officers who had arrested him to be called and examined , and for video evidence to be admitted , but granted his request for CARDINAL eyewitnesses to be examined . The witnesses testified that there had been a public meeting with a ORG deputy to discuss current political developments ; that no one had chanted slogans or made noise or obstructed traffic ; and that the police had not given any orders or warnings before arresting the applicant . On the basis of the written statements of CARDINAL police officers the court established that the applicant had taken part in an irregular public meeting and had disobeyed a lawful order from the police to disperse . It also found that the applicant had chanted the slogans “ GPE without GPE ! ” and “ PERSON is a thief ! ” and had refused to leave the square , which needed to be cleared for DATE festivities . The Justice of the Peace has rejected the statements of CARDINAL eyewitnesses , on the grounds that they had different estimates of the number of people present at the venue , the number of police officers who arrested the applicant , and the time of his arrival at the meeting . The applicant was found guilty of disobeying the lawful order of the police , in breach of LAW , and was sentenced to CARDINAL days’ administrative detention .

On DATE the applicant lodged an appeal .

On DATE the Presnenskiy District Court of GPE examined the appeal . The applicant asked for the police officers on whose reports and statements the Justice of the Peace had based the judgment to be cross - examined , as well as CARDINAL eyewitnesses , and for the video recording of the arrest to be admitted as evidence . The court dismissed these requests and upheld the judgment of CARDINAL DATE .

On DATE the applicant held a static demonstration ( “ picket ” , пикетирование ) , which was a part of series of pickets held in GPE in front of ORG to protest “ against repressions and torture ” . According to the applicant , his demonstration was a solo picket ( одиночное пикетирование ) which was not subject to a prior notification to the competent public authority . In total , CARDINAL people consecutively took part in this event .

At TIME the police arrested the applicant . According to the applicant , at the moment of arrest he had finished picketing and was walking down the street on the pavement ; he was not chanting or carrying any banners , but he was being followed by some people including journalists whose number he estimated as “ QUANTITY ” . According to the Government , the applicant had organised an irregular march without prior notification . The applicant was taken to the police station at TIME He was charged with a breach of the established procedure for conducting public events , an offence under LAW . He was released at TIME DATE .

On DATE the Justice of ORG no . CARDINAL of GPE examined the charges . She examined CARDINAL eyewitnesses called at the applicant ’s request , but his request for the police officers who had arrested him to be called and examined was refused . The applicant ’s request for a video recording of the relevant events to be admitted as evidence was also refused , as was the request for a written report from an NGO that had observed the pickets to be admitted in evidence . At the applicant ’s request the Justice of the FAC examined QUANTITY eyewitnesses , who testified that the applicant , after he ended his picket , walked down the street while speaking with a fellow activist , surrounded by journalists ; he remained on the pavement , did not chant slogans , and carried no banners ; several other participants in the picket remained standing with their banners , at a certain distance from each other ; the police arrested the applicant without any warning or explanation . On the basis of the written reports by QUANTITY police officers the Justice of the Peace found the applicant guilty of taking part in a march which had not been duly notified to the authorities and fined him under LAW CARDINAL,CARDINAL ( at the material time equivalent to about ORG CARDINAL ) . She dismissed the witness statements in the applicant ’s favour on the grounds that they contradicted the evidence in the case file .

On DATE ORG upheld the judgment of DATE .

On DATE at TIME the applicant went to the ORG of GPE to attend the hearing of the activists on trial for participation in mass disorders at FAC in GPE on DATE . On DATE the judgment was to be delivered at a public hearing . The court - house was cordoned off by the police , and the applicant could not get in . He therefore remained outside among other members of the public wishing to attend the hearing . According to the applicant he was standing there silently , but the police suddenly rushed into the crowd and arrested him , without any order , warning or pretext . According to the official version , he was holding an irregular gathering and was chanting political slogans .

At TIME on DATE the applicant was taken to the police station . He was charged with a breach of the established procedure for conducting public events , an offence under LAW . The applicant was released at TIME .

DATE , at TIME , the applicant took part in a public gathering following the pronouncement of the judgment concerning mass disorders at FAC in which several activists had been sentenced to prison terms . The gathering of CARDINAL participants took place at FAC . The applicant was arrested while he was standing on the pavement talking to a journalist . According to the applicant he had received no order or warning , and he did not resist the police . According to the police report , when the applicant was being seated in the police vehicle he was waving at the crowd trying to attract media attention , thus demonstrating refusal to comply with the police order and resisting the officers in the performance of their duties .

At TIME the applicant was taken to the LOC police station , where an administrative offence report was drawn up . The applicant was charged with disobeying a lawful order of the police , an offence under LAW . He was remanded in custody .

On DATE , DATE , at an unidentified time , the applicant was brought before the judge of ORG , who examined the charges under LAW . The applicant ’s request for QUANTITY eyewitnesses to be examined was granted . They testified that the police had not given the applicant any orders or warnings before proceeding to his arrest . The court admitted and examined the video recording of the contested events and questioned the QUANTITY police officers on whose reports the charges were based . The court established that the applicant had taken part in an irregular meeting and had disobeyed the lawful order of the police to disperse . The applicant was found guilty of disobeying a lawful order of the police , in breach of LAW of LAW , and was sentenced to CARDINAL days’ administrative detention .

On DATE ORG examined the charges relating to the applicant ’s alleged participation on DATE in an unauthorised public gathering in front of ORG . The applicant requested that QUANTITY eyewitnesses present at the court - house and the QUANTITY policemen on whose reports the charges were based be examined . These requests were dismissed . The court admitted a video recording of the contested events , but decided not to take cognisance of its content because it had no date and because it had not reproduced a full sequence of events . On the basis of the written reports by QUANTITY police officers the judge found the applicant guilty of taking part in a meeting which had not been notified to the competent authority in accordance with the procedure provided by law , and fined him under LAW MONEY ( equivalent to about EUR CARDINAL ) .


No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-a - After conviction)

Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Síofra O’Leary

The applicant was born in DATE and is currently detained in a psychiatric hospital in ORG .

In DATE the applicant forced CARDINAL DATE girls , and in DATE a DATE girl , to undress and hit them with a stick . In DATE the applicant forced a DATE girl to undress and lay on top of the girl on a bench . The criminal proceedings relating to these offences were discontinued because of the applicant ’s lack of criminal responsibility as a minor .

On DATE the ORG convicted the applicant of attempted rape together with sexual assault and dangerous assault and of attempted murder and assault . Applying the criminal law relating to young offenders , it sentenced him to CARDINAL years’ imprisonment and ordered his detention in a psychiatric hospital under LAW ( see paragraph CARDINAL below ) .

ORG found that on DATE the applicant , then aged DATE , had forced a DATE girl to follow him into a forest where he had attempted to rape her , sexually assaulted her with a stick and then attempted to kill her by strangling her to cover up his offences . When , on return to the crime scene , he realised that his victim was not dead , he forcefully hit her buttocks with a branch .

In ORG finding , it was necessary to order the applicant ’s detention in a psychiatric hospital under LAW . It considered that the applicant had acted with diminished criminal responsibility ( LAW ; see paragraph CARDINAL below ) . Having regard to the findings of expert PERSON , the court was convinced that the applicant had reduced mental capacities which had been caused by infantile brain damage . This damage , combined with failings in his upbringing ( he had repeatedly been hit by his father with a stick himself ) , had caused a consciousness disorder and the sadistic sexual tendencies the applicant had disclosed in his offence . These disorders amounted to an “ other serious mental abnormality ” for the purposes of Articles CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL below ) . Moreover , a comprehensive assessment of the applicant ’s personality revealed that , as a result of his condition and notably the sadistic tendencies which had manifested themselves in the offence of which he was found guilty , he could be expected to commit further unlawful acts and was therefore dangerous to the general public .

NORP Since DATE the applicant has been detained in a psychiatric hospital .

NORP In DATE , when the applicant was granted leave from detention , he attacked a DATE cyclist , threatened her with a knife and attempted to force her into a forest . He was chased away by a car driver . The criminal proceedings in this respect were discontinued with regard to his previous conviction .

The courts dealing with the execution of sentences reviewed the applicant ’s detention at regular intervals . In particular , on CARDINAL DATE ORG ordered the applicant ’s detention in a psychiatric hospital to continue . It had noted , in particular , that the applicant had refused therapeutic discussions . There was stagnation in the applicant ’s treatment , the representatives of the psychiatric hospital having explained that they considered substantial changes in the applicant ’s personality by sex therapy no longer possible .

On DATE ORG ordered the continuation of the applicant ’s detention in a psychiatric hospital under Articles CARDINALd and CARDINAL of LAW ( see paragraphs DATE below ) .

ORG noted that external psychiatric expert T. , in his report dated DATE , had diagnosed the applicant , whom he had examined in person , with an abnormality of the sex chromosomes ( so - called PERSON syndrome ) . The latter had most probably caused an endocrine personality syndrome characterised by retardation and disorders in the development of a person ’s personality and by an insufficient internalisation of ethical rules . The applicant had therefore developed a dissocial and schizoid personality . It was unclear whether the applicant still suffered from sadistic paraphilia . The expert considered that the applicant ’s retardation had partially been offset by hormonal treatment . Moreover , the applicant ’s dissocial conduct and schizoid personality disorder had been alleviated by social therapy and psychotherapy .

In assessing the risk emanating from the applicant , the expert considered that it had to be taken into account that the applicant had already committed a number of sadistic offences against children . Moreover , the seriousness of the offence of which the applicant had been convicted in DATE , and the attack on a woman at a time when he had already been detained in the psychiatric hospital in DATE , had to be taken into consideration . It appeared that it had not been possible to continuously pursue sex therapy with the applicant during his long psychiatric internment . There was a risk that , if the applicant were overstrained or frustrated , he might commit offences as a result of sadistic tendencies . The expert stated , however , that it was impossible for him to assess how far the applicant was still driven by sadistic fantasies . Consequently , the risk that the applicant would reoffend if released was difficult to assess and could only be determined in the course of further therapy .

A representative of the psychiatric hospital , in submissions to the court dated DATE , confirmed that the applicant had spoken with a psychologist on his request . However , he was still unable to reflect on the motives for his offence . Therefore , it was difficult to assess how dangerous the applicant was ; there was a risk that he would reoffend if released . Furthermore , the therapist responsible for the applicant confirmed that it was impossible to make a proper assessment of the danger posed by the applicant .

ORG , having heard the applicant and having regard to the evidence before it , considered that the continuation of the applicant ’s detention in a psychiatric hospital had to be ordered . Despite the fact that the applicant had proved reliable during leave from detention during DATE , it could not be expected with sufficient probability that the applicant would not reoffend if released . In particular , it could not be ruled out that his sadistic tendencies persisted . The applicant was currently not undergoing therapy , in the proper sense of the term , and suffered from hospitalism .

ORG further considered that the continuation of the applicant ’s detention was proportionate . In support of this view , it referred to the serious offence which had led to the applicant ’s placement in a psychiatric hospital , to the fact that he had relapsed during the execution of his detention order and to the potential risk , as confirmed by the expert and the psychiatric hospital staff , that the applicant would reoffend if released .

On DATE the applicant lodged an appeal against ORG decision .

On DATE the ORG , endorsing the reasons given by ORG , dismissed the applicant ’s appeal .

By submissions dated DATE , the applicant lodged a constitutional complaint with ORG . He argued that his continued detention in a psychiatric hospital for DATE was disproportionate and had therefore breached his constitutional right to liberty and the constitutional protection of the rule of law . It had been insufficient for the courts to base their assessment that he was currently still dangerous on offences dating back more than twentyeight years and on an incident during the execution of his detention order dating back more than twenty years . Moreover , the experts and courts had confirmed that he was no longer undergoing any therapy and that it was unclear whether he was still dangerous to the public .

On DATE ORG declined to consider the applicant ’s constitutional complaint , without giving reasons ( file no . CARDINAL BvR CARDINAL/CARDINAL ) .

The applicant underwent several courses of therapy , including social therapy and psychotherapy , during his detention in the psychiatric hospital . After the applicant had failed in his attempts to complete a sex therapy course on a number of occasions , ORG authorities decided to discontinue attempts at sex therapy for some time . The applicant was transferred to the so - called “ long - stay ” department of the hospital in DATE , where he was detained during the time covered by the proceedings at issue and where he did not undergo any sex therapy . The purpose of the applicant ’s placement in the “ long - stay ” department was in fact to grant him a break from his failed attempts to complete sex therapy . He was being prepared for another attempt at completing sex therapy in psychotherapeutic one - to - one meetings with a psychologist . However , he had repeatedly declined offers to restart such individual or group therapy .

NORP The applicant has been working in the factory on the premises of the psychiatric hospital . When granted leave under escort several times per year , he has visited members of his family .

On DATE ORG , endorsing the reasons given in its previous decision , ordered the applicant ’s continued detention in a psychiatric hospital . It agreed with the view expressed by the psychiatric hospital representative that sadism could not be cured and considered that there was a high risk that the applicant would again commit further serious offences against the life and sexual self - determination of others . On DATE the ORG dismissed the applicant ’s appeal .


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

Jon Fridrik Kjølbro;Paul Lemmens;Ksenija Turković

The applicant was born in DATE and lives in Vinkovci .

By a judgment of DATE ORG ( PERSON ) ordered the applicant ’s former employer , the company ORG . ( hereinafter “ the debtor company ” ) , to pay him NORP kunas ( HRK ) as remuneration for overtime work , together with accrued statutory default interest , and HRK CARDINAL in costs . On DATE ORG ( Županijski sud u Vukovaru ) upheld the first - instance court ’s judgment , which thereby became final .

By a judgment of CARDINAL DATE ORG ( PERSON u ORG ) found the applicant guilty of the criminal offence of embezzlement committed against his former employer , the debtor company . It sentenced him to CARDINAL months’ imprisonment , suspended for DATE provided that in that period he did not commit a further offence . The court also ordered the applicant to pay the debtor company HRK CARDINAL in compensation for pecuniary damage caused by his offence .

On DATE the applicant applied to ORG ( PERSON ) for enforcement of the above judgment of DATE ( see paragraph CARDINAL above ) .

DATE , on DATE , that court issued a writ of execution ( rješenje o ovrsi ) whereby it ordered the seizure of funds in the debtor company ’s bank account in order to satisfy the applicant ’s claim .

The debtor company lodged an appeal , and on DATE ORG ( Županijski sud u GPE ) quashed the writ of execution and remitted the case to the first - instance court . It found that the judgment sought to be enforced had not been stamped with a certificate of enforceability and that a grace period for voluntary compliance ( paricijski rok ) had not been set .

In the new proceedings before ORG the applicant submitted on DATE a copy of the judgment that he was seeking to enforce stamped with a certificate of enforceability . At the same time , he asked the court to set a grace period for voluntary compliance , pursuant to the law .

On DATE the court issued a new writ of execution . It ordered the debtor company to pay the applicant , within a grace period of DATE ( a ) the sums it had been ordered to pay under the judgment of DATE ( that is to say the main debt , together with accrued statutory default interest , and the costs of the civil proceedings , see paragraph CARDINAL above ) , ( b ) the statutory default interest accrued on the costs of the civil proceedings from the date of delivery of that judgment , and ( c ) the costs of enforcement proceedings , together with the statutory default interest accrued on those costs from the date of issuance of the writ of execution .

By a decision of CARDINAL DATE ORG dismissed the debtor company ’s appeal and upheld the writ of execution .

Upon receiving , on CARDINAL DATE , the final judgment of the criminal court of DATE ( see paragraph CARDINAL above ) , the debtor company on DATE sent a letter containing a set - off statement to the applicant ’s legal representative whereby it set off ( prijeboj ) its claim for compensation against the applicant stemming from that judgment with his claim for payment of overtime work against the debtor company stemming from the judgment he was seeking to enforce .

On DATE , DATE , the debtor company informed the court that it had received the above - mentioned final judgment of the criminal court and that it had executed the set - off described above ( see the preceding paragraph ) . The debtor company at the same time lodged an extraordinary appeal against the writ of execution of CARDINAL DATE ( see paragraph CARDINAL above ) and lodged an application to postpone the enforcement .

By a decision of CARDINAL DATE ORG decided on the debtor company ’s motion for postponement , instructing the debtor company to institute separate civil proceedings for the enforcement to be declared inadmissible ( in full or in part ) . At the same time it postponed the enforcement pending the final outcome of those proceedings .

The debtor company instituted those civil proceedings on DATE . They ended on DATE , when ORG upheld the first - instance judgment of ORG of DATE , whereby the enforcement of up to HRK CARDINAL,CARDINAL.CARDINAL was declared inadmissible . The second - instance judgment was served on the debtor company on CARDINAL DATE and on the applicant DATE .

Following an appeal lodged by the applicant , on DATE the ORG quashed the first - instance decision of CARDINAL DATE ( see paragraph CARDINAL above ) in so far as it allowed the postponement of the enforcement and in this respect remitted the case . It dismissed the remainder of the applicant ’s appeal and upheld the first - instance decision in the remaining part .

In the resumed proceedings , by a decision of CARDINAL DATE ORG again postponed the enforcement .

On DATE ORG dismissed the applicant ’s appeal against that decision and upheld it .

On DATE the applicant informed ORG that the judgment declaring the enforcement inadmissible in part had become final ( see paragraph CARDINAL above ) and asked it to continue with the enforcement in the remaining part .

By a decision of DATE that court decided to resume the enforcement in the remaining part . By another decision of the same date that court ordered the debtor company to pay the applicant : ( a ) HRK CARDINAL for unpaid overtime work , together with statutory default interest accrued since DATE , ( b ) HRK CARDINAL,CARDINAL.CARDINAL in costs of civil proceedings , together with statutory default interest accrued since DATE , and ( c ) HRK CARDINAL in costs of enforcement proceedings , together with statutory default interest accrued since DATE . This decision became final on DATE .

On DATE the court informed ORG ( GPE agencija – ORG ) of its second decision of DATE ( see the preceding paragraph ) . In the execution of that decision the agency on CARDINAL DATE transferred HRK CARDINAL from the debtor company ’s bank account to those of the applicant and his legal representative .

Meanwhile , on DATE the applicant lodged a request for protection of the right to a hearing within a reasonable time ( zahtjev za zaštitu prava na suđenje u razumnom roku ) with ORG , complaining about the length of the above enforcement proceedings .

By a decision of CARDINAL DATE ORG dismissed the applicant ’s request . It held that , while the case was indeed important for the applicant , the proceedings complained of were complex and he had contributed to their length in that he had not initially submitted a copy of the judgment he was seeking to enforce stamped with a certificate of enforceability ( see paragraphs CARDINAL above ) .

On DATE the applicant appealed against that decision .

By a decision of DATE ORG ( PERSON ) dismissed the applicant ’s appeal and served its decision on his representative on CARDINAL DATE .

On DATE the applicant lodged a constitutional complaint against the second - instance decision .

By a decision of CARDINAL DATE ORG ( Ustavni sud PERSON ) declared inadmissible the applicant ’s constitutional complaint and served that decision on his representative on DATE . It held that the contested second - instance decision was not open to constitutional review .