Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect)

André Potocki;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

The applicants are brothers . Mr PERSON ( the “ first applicant ” ) lives in GPE , GPE , whereas Mr PERSON ( the “ second applicant ” ) lives in GPE , GPE .

The applicants are the sons of the late PERSON ( hereinafter referred to as “ Mr Gray ” or “ the deceased ” ) who died in TIME of DATE at the age of DATE at his home in GPE , GPE .

Mr Gray suffered from kidney stones and from DATE on he had regularly been attended at home by his doctor , a General Practitioner ( “ GP ” ) working for GPE ORG ( “ ORG ” ) which is represented at local level by ORG Trusts ( “ PCTs ” ) , in the instant case by ORG ( “ GPE PCT ” ) . The ORG had routinely administered injections of opiates , in particular pethidine at a dosage of QUANTITY mg , for pain relief . On several occasions DATE PERSON had recourse to out - of - hours medical services by “ Take Care Now ” ( “ TCN ” ) , a private agency that recruits locum doctors within GPE or from abroad to supply out - of - hours medical care for several PCTs , including the GPE PCT . Out - of - hours services concern the periods outside business TIME of GPE surgeries on weekdays as well as weekends and bank holidays .

Since ORG clinicians do not routinely carry pethidine , the deceased had on some of these occasions been injected with QUANTITY doses of the opiate diamorphine , contained in a sealed palliative care box TCN doctors were provided with for the purpose of home visits at that time . Such palliative care boxes were stocked with QUANTITY of diamorphine for acute pain relief together with a much larger ampoule of QUANTITY intended for patients receiving palliative care . Attached to each box was a list of the drugs contained as well as a form with instructions for doctors , and inside a document that listed the relative potencies of the drugs .

On DATE Mr Gray developed a severe renal colic . In the afternoon his partner contacted the TCN call centre to arrange for an urgent home visit by a doctor . She explained PERSON medical history to the ORG clinician who carried out the first telephone triage consultation and specified what medication Mr Gray had received on the occasion of previous home visits . The case was then assigned to doctor U. , a NORP national , who had recently been recruited by ORG through an agency on a self - employed basis to provide out - of - hours care . U. , at the time aged CARDINAL , had qualified as a doctor in GPE in DATE where he was practising as an aesthetic surgeon but where he was also formally qualified as a ORG . For the purpose of working as a locum doctor in GPE he had obtained registration with ORG ( ORG ) in DATE and had applied to be admitted to CARDINAL of ORG maintained by each of the local PCTs . Once a ORG is admitted to a PCT ’s Performers List he may work in the area of any other PCT in GPE . U. had withdrawn a first application to join GPE Performers List after being notified that he had not reached a sufficient score in the required LANGUAGE language test . However , the GPE and ORG PCT authorities , unaware that U. had already tried to register with another PCT , approved a subsequent application and admitted him to their Performers List in DATE without verifying his LANGUAGE language skills .

U. arrived in GPE on DATE , DATE for his first shift as a locum doctor scheduled for DATE . According to an induction report established by a ORG doctor on DATE there had not been sufficient time to assess ORG ’s professional competence prior to his first assignment DATE .

U. attended Mr Gray at his home in TIME of DATE . He was told by PERSON and his partner that in similar situations in the past he had either received injections of QUANTITY of pethidine for acute pain relief or , where the out - of - hours services did not carry pethidine , had been treated with diamorphine . U. administered QUANTITY of diamorphine from the respective ampoule included in the palliative care box by intramuscular injection . TIME after U. had left , PERSON partner realised that he was no longer breathing and called an ambulance . The attending emergency services confirmed that PERSON had died . The police was informed and attended on - site .

On DATE TCN suspended U. from duty , terminated his engagement with immediate effect and advised him to return to GPE where he arrived the following day . Subsequently , CARDINAL other incidents were reported where NORP on the occasion of home visits on DATE had failed to administer the appropriate medical treatment .

On DATE U. returned to GPE to attend a hearing before the ORG in connection with the incidents on DATE . By an order of the same date , the ORG suspended the applicant from the NORP medical register on an interim basis .

On DATE U. informed the competent public health authorities at the GPE ORG ( LAW ) , GPE , and by letter of DATE his NORP professional indemnity insurance company of the incident . He explained that when treating the deceased he had committed a grave mistake with fatal outcome that had resulted from the confusion between the drugs pethidine and diamorphine , the latter being a drug not used by on - call services in GPE and with which he had been unfamiliar . On DATE of the incident he had further been overtired following his journey from GPE to GPE and had found himself in a tremendous stress situation .

By a letter of DATE in reply to a complaint lodged by the first applicant following his father ’s death , ORG confirmed that PERSON had satisfied the requirements generally expected from locum doctors working for the ORG and had completed the compulsory induction process all clinicians had to undergo before they could be assigned to clinical shifts .

A post mortem report issued on DATE by a forensic pathologist in the GPE established as the cause of PERSON death diamorphine poisoning in association with alcohol intoxication as well as hypertensive heart disease and myocardial fibrosis . The report further stated that the diamorphine injection had more than minimally contributed to the death and that in view of the large dose administered there was no need to necessarily invoke the additional effect of alcohol in causing death .

By a letter of DATE to the deceased ’s partner and the first applicant , PERSON apologised for the medical malpractice in connection with the deceased ’s treatment and again explained that he had confused the opiates and referred to the stress situation he was subject to when making the mistake .

On DATE the applicant attended a further hearing before the ORG in GPE where his suspension from the medical register was confirmed .

Following PERSON death the GPE police commenced criminal investigations against NORP for manslaughter by gross negligence .

On DATE GPE Constabulary , through ORG , made an application for assistance to ORG ) requesting in particular the supply of data with respect to U. ’s personal record and past professional career . The request was forwarded to the competent GPE police department which provided the GPE police with the requested information and documentation by DATE .

On DATE the NORP ORG ( ORG ) sent a formal letter of request to ORG of the Land North RhineWestphalia , GPE , in accordance with ORG , requesting assistance in obtaining information with respect to U. ’s medical qualifications and the authenticity of the related certificates submitted by him to the NORP authorities when applying to be admitted as a locum doctor . The letter gave a short summary of the circumstances of PERSON death and specified that while no criminal proceedings had yet been instigated in GPE , the offence investigated constituted manslaughter , i.e. the unlawful killing of a human being , an offence contrary to Common PERSON and punishable on conviction by a term of life imprisonment . The ORG asked the NORP authorities to carry out the respective investigations and to arrange for hearings of the relevant witnesses in GPE in the presence of representatives of ORG .

The request was forwarded by the GPE Ministry of Justice to ORG ( Generalstaatsanwaltschaft ) as well as to the locally competent GPE prosecution authorities . By a decision of the GPE Chief Public Prosecutor ( GPE ) of DATE the request for assistance was granted and by letter of the same date the GPE police department was informed accordingly and invited to provide the requested assistance and to coordinate any future investigation measures with GPE police .

Simultaneously , the GPE Chief Public Prosecutor ex officio initiated preliminary criminal proceedings ( ORG ) against NORP in GPE under file no . CARDINAL Js CARDINAL/CARDINAL on suspicion of having negligently caused the death of PERSON pursuant to LAW in conjunction with ORG and CARDINAL § CARDINAL no . CARDINAL of LAW ( see Relevant domestic and international law and practice below ) . In a letter of the same date ORG instructed the GPE police to conduct the necessary investigations also in respect of the domestic preliminary proceedings , in particular to interview the suspect U. , who was represented by counsel . He further explicitly invited GPE police to permit the presence of NORP police officers also on the occasion of such interview .

In accordance with the letter of request dated DATE , GPE police officers visited GPE on several occasions in the period from DATE until DATE and were provided with assistance by the NORP police in their investigations against NORP The investigations focussed on the authenticity of the certificates PERSON had submitted to the NORP health authorities as evidence of his medical qualifications as well as on the question whether PERSON ’s treatment of the deceased had amounted to medical malpractice . At the request and in the presence of officers of GPE police , NORP police officers heard , inter alia , representatives of PERSON ’s professional indemnity insurance company , of the public health authorities at LOC and ORG ( PERSON ) as witnesses . The originals of the protocols of the witness hearings conducted as well as the material obtained in the course of the investigations were handed over to GPE police . On DATE NORP and NORP police officers visited U. at his surgery in GPE , GPE , and informed him that criminal investigations were pending against him in GPE and GPE . U. availed himself of his right not to testify . He also declined a subsequent request by the GPE police to be interviewed in GPE .

Furthermore , at the request of ORG a forensic expert opinion was obtained from a professor of GPE university hospital on the question whether the treatment of the deceased by PERSON had complied with medical standards . The expert established his report on the basis of the information contained in the GPE police ’s investigation files . He presented his preliminary findings to representatives of ORG on the occasion of CARDINAL of their visits to GPE in DATE . In his final report issued on DATE the expert confirmed that the cause of PERSON death had been an overdose of diamorphine . He pointed out that notwithstanding the fact that the therapeutical use of diamorphine was in general not permitted in GPE and therefore doctors in GPE were as a rule not trained in its use , U. had not sufficiently investigated the cause of PERSON acute pain and had not verified whether the medication administered and its dosage had been an appropriate therapy under the circumstances . The expert concluded that ORG ’s treatment of the deceased had thus been inadequate and had violated basic principles of medical care .

According to a file note by a GPE police officer of DATE , the GPE police , for their part , had provided their NORP counterparts upon request with certain documents for use in the preliminary proceedings conducted against NORP in GPE , namely with the post mortem report of DATE as well as protocols of statements made by PERSON partner following the latter ’s death .

By a letter of DATE counsel for the second applicant practising in GPE informed the GPE prosecution authorities that his client was the son of a patient who had possibly been killed by NORP on DATE through medical malpractice . Counsel asked for information whether preliminary criminal proceedings were pending against NORP and , should this be the case , requested access to the relevant investigation files . By a letter of DATE counsel for the second applicant reiterated his request for information whether preliminary proceedings had been instituted against U. Pursuant to a file note by the GPE public prosecution authorities dated DATE counsel was informed about the pending preliminary proceedings and forwarded copies of excerpts of the investigation file such as the forensic expert opinion of DATE and the letter of DATE by which U. had notified the incident to his professional indemnity insurance company .

By a letter dated DATE , ORG , referring to a telephone conversation of DATE , requested the NORP public prosecution authorities to assure that no criminal proceedings would be instituted against NORP in GPE prior to finalisation of the investigations in GPE and that none of the information gathered in the course of the investigations carried out jointly by NORP and NORP police officers on the occasion of their visits to GPE would be disclosed to NORP , PERSON relatives or their respective counsel . According to a file note by the GPE public prosecution authorities of DATE , the NORP prosecution authorities had informed ORG in reply to a similar request made over the phone DATE that they had been obliged by operation of law to institute preliminary criminal proceedings against U. in GPE and that they were also obliged under NORP criminal procedure to grant counsel for the accused as well as counsel for the victim ’s relatives acting as joint plaintiffs to the prosecution ( Nebenkläger ) the right to inspect the files in such preliminary proceedings .

On DATE , NORP counsel for the second applicant , referring to the preliminary proceedings conducted under file no . CARDINAL Js DATE against NORP , transmitted the latter ’s apology letter of DATE to the deceased ’s partner and the first applicant as well as the ORG ’s letter to the first applicant dated DATE to the GPE prosecution authorities for inclusion in the investigation file .

On DATE an arrest warrant was issued against NORP by ORG , GPE . On DATE ORG issued a NORP Arrest Warrant ( ” EAW ” ) against U. for allegedly having caused the death of Mr Gray with an overdose of morphine .

On DATE , CARDINAL DATE , the GPE ORG ordered that the preliminary criminal proceedings against ORG be terminated and applied to ORG for a penal order ( PERSON ) to be issued against NORP convicting him of having caused PERSON Gray ’s death through negligence pursuant to LAW and imposing a suspended prison sentence of DATE as well as a payment of MONEY ( ORG ) to the treasury . A draft of the penal order was attached to the application . Following previous discussions with the public prosecution authorities , U. , represented by counsel , had declared that he would accept the envisaged sentence .

The Chief Public Prosecutor ’s assessment of the facts of the case and U.’ ’s statements following the incident , the post mortem report of DATE , the forensic expert opinion of DATE , the explanatory letter by ORG to the first applicant of DATE , ORG ’s notification to his professional indemnity insurance company dated DATE as well as his apology letter to the deceased ’s family of DATE . The Chief Prosecutor found that while the fact that U. did not have a criminal record , had made a full confession and had apologised to the victim ’s relatives had to be considered in his favour and notwithstanding the fact that an ampoule with a fatal dose of morphine had been included in the care box , PERSON had nevertheless committed a grave error in the deceased ’s treatment and had thus violated basic principles of the medical profession .

On DATE the ORG was forwarded by the NORP authorities to ORG .

NORP By email of CARDINAL DATE the GPE police asked the GPE public prosecution authorities for information about the procedure to be followed by the NORP authorities after transmission of the EAW . In their reply of DATE the GPE public prosecution authorities specified that ORG ( PERSON ) was the competent authority to deal with questions regarding PERSON ’s extradition and pointed out that extradition might be hindered on the ground that criminal proceedings were also pending against NORP in GPE . On the occasion of a phone call later the same day GPE police was informed by ORG authorities that execution of the EAW was halted in view of the criminal proceedings pending against U. in GPE in accordance with section CARDINALb ( CARDINAL ) of the Act on International Cooperation in Criminal Matters ( see Relevant domestic and international law and practice below ) .

On DATE the ORG issued the penal order ( file no . CARDINAL Js CARDINAL/CARDINAL ) against NORP as applied for by the prosecution authorities . By a decision of the same day , ORG determined that the probation period for PERSON was DATE starting from the date the penal order became final .

By a letter dated DATE the ORG asked ORG of ORG for information why the EAW had not yet been executed and for clarification whether any criminal or other proceedings were conducted , pending or envisaged against U. in GPE as well as for copies of related court decisions .

By fax dated DATE newly appointed counsel for the second applicant practising in GPE asked the GPE prosecution authorities for information whether the preliminary proceedings against ORG had meanwhile been terminated and whether a bill of indictment had been issued . Counsel further asked for information whether a possible trial was to be conducted in GPE or in GPE . He finally requested to be granted access to the files in the proceedings under file no . DATE . It follows from a subsequent letter by counsel dated DATE that his request for inspection of the files was granted . However , it is not clear on what date between DATE and CARDINAL DATE counsel actually obtained access to the file .

On DATE , no appeal having been lodged by PERSON , the penal order of CARDINAL DATE became final in accordance with LAW ( see Relevant domestic and international law and practice below ) .

NORP By written submissions dated CARDINAL DATE the Hamm General Prosecution Authorities ( ORG ) requested ORG ( Oberlandesgericht ) to declare PERSON ’s extradition to GPE inadmissible since PERSON had been convicted by final decision of a NORP court for the offence underlying the extradition request and the sentence imposed upon him was currently in the process of being executed . His extradition would therefore be contrary to the ban on double jeopardy as reflected in DATE ( CARDINAL ) no . CARDINAL of the Act on Cooperation in Criminal Matters as well as LAW no . CARDINAL of ORG of DATE on the NORP arrest warrant and the surrender procedures between Member GPE ( CARDINAL/CARDINAL/JI ) ( see Relevant domestic and international law and practice below ) .

By a decision of CARDINAL DATE the ORG , endorsing the reasoning of ORG , declared PERSON ’s extradition inadmissible .

By a letter of CARDINAL DATE the ORG communicated ORG decision to ORG in GPE , GPE .

By a letter of DATE the GPE Chief Public Prosecutor , in reply to the ORG ’s information request of DATE , explained that he had been obliged by operation of domestic law to instigate criminal investigations against NORP after having learned of the circumstances of PERSON Gray ’s death through the ORG ’s request for assistance dated DATE . He specified that the domestic proceedings had meanwhile been terminated and that U. had been convicted by a final decision of ORG for having negligently caused Mr. PERSON ’s death . A copy of the related penal order of CARDINAL DATE was attached to the letter .

On DATE a meeting between the representatives of the GPE prosecution authorities , the ORG and GPE police took place at FAC GPE with a view to providing explanations on the conduct of the criminal investigations and proceedings in GPE . The content of these discussions is confidential .

In DATE and DATE counsel for the second applicant was again granted access to the files in the terminated criminal proceedings against NORP under file no . CARDINAL Js CARDINAL/CARDINAL .

As a consequence of the NORP authorities’ decision not to extradite PERSON , the criminal investigations in GPE were discontinued .

After U. had informed the GPE District Government of Mr Gray ’s death in DATE , the competent GPE health authorities commenced investigations regarding ORG ’s fitness to practice as a doctor ( approbationsrechtliches Verfahren ) . Within the scope of their investigations the health authorities , inter alia , conducted interviews with NORP on QUANTITY occasions in DATE and DATE with a view to clarifying the circumstances of the incidents of DATE and with a view to examining ORG ’s fitness to practice in general . Furthermore , at the ORG request a meeting was arranged between them and representatives of ORG on CARDINAL

Following completion of their investigations by DATE the health authorities , considering PERSON ’s professional conduct over DATE in GPE , the fact that he had committed himself to refrain from practising medicine abroad in the future and taking into account the particular circumstances under which ORG medical malpractice had occurred , found that there was nothing to establish that U. would commit a similar error of treatment in GPE or that he lacked the necessary qualifications for practising medicine . Consequently , the health authorities held that there was no need to suspend or revoke PERSON ’s licence to practice medicine in GPE and discontinued the proceedings regarding U. ’s fitness to practice .

By written submissions of DATE ORG applied for the opening of disciplinary proceedings against U. for breach of his professional duties in connection with the incidents in GPE on DATE .

By a decision dated DATE of the competent ORG sitting in a special formation as disciplinary jurisdiction for the healthcare professions ( PERSON ) U. was reprimanded for having disregarded the standards of the medical profession on the occasions of CARDINAL patient consultations on DATE in GPE , in particular for having committed a grave error in the treatment of PERSON , and fined him CARDINAL ORG . The decision became final on DATE .

A number of further investigations and proceedings were instituted in GPE following Mr. PERSON ’s death . An Inquest into the circumstances of the incident was held by ORG from DATE . The latter not only returned the verdict that the deceased had been unlawfully killed as a consequence of the inadequate treatment administered by NORP but also pointed explicitly to the deficiencies in the recruitment , training and supervision of foreign locum doctors in GPE . These deficiencies were at the origin of a subsequent report by the Coroner to the Secretary of ORG and resulted in investigations by ORG as well as in an independent inquiry by ORG , a public body overseen by ORG , which came to similar conclusions as the Inquest and identified related shortcomings in the NORP health system . Moreover , on the occasion of proceedings conducted by ORG fitness to practice in the period from DATE , the circumstances of PERSON death were further investigated and additional evidence from expert witnesses and the deceased ’s next of kin was considered . The GMC Fitness to Practice Panel considered that ORG had breached several of the basic principles of good medical practice and decided to formally strike PERSON ’s name from the medical register in GPE . In addition , in DATE the applicants brought civil claims for damages for unlawful killing arising out of negligence with ORG against U. , ORG as well as GPE PCT in GPE . The applicants’ compensation claims were settled with respect to all CARDINAL defendants by consent orders of DATE , DATE and DATE .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-b - Secure fulfilment of obligation prescribed by law);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Iulia Motoc;Krzysztof Wojtyczek;Marko Bošnjak;Paulo Pinto De Albuquerque;Gabriele Kucsko-Stadlmayer

The applicant was born in DATE and currently lives in GPE .

The applicant crossed the NORP border from GPE clandestinely in the evening of DATE . Apprehended by a border guard patrol , he was taken into custody , since he was unable to show documentary evidence of his identity or right to stay in the country .

The applicant then claimed asylum .

At the hearing held on DATE by ORG , the applicant declared that he had fled from his country of origin , GPE , because of his homosexuality . He stated that he had been forced to leave GPE and , with the help of a human trafficker , he had entered GPE without documents , because he had had no other way of doing so . At the hearing , he again applied for recognition as a refugee .

In view of his request , on DATE ORG suspended the alien administration procedure . On DATE ORG and Nationality commenced asylum proceedings . At the ensuing hearing the applicant said that he had intended to go to GPE , but since GPE seemed to be a safe country he had requested asylum there . He stated again that he had had to leave GPE because he was homosexual and that criminal proceedings had been instituted against him for this reason , attracting very severe penalties .

After the hearing , the asylum authority , a department of ORG and Nationality , ordered that the applicant be detained ( menekültügyi őrizet ) , with effect from TIME on DATE , in GPE , relying on section CARDINAL/A ( CARDINAL ) a ) and c ) of Act no . DATE on Asylum ( the “ LAW ” ) . In its decision the asylum authority observed that the applicant ’s identity and nationality had not been clarified . It held that there were grounds for the presumption that if left at large , he would delay or frustrate the asylum proceedings and would present a risk of absconding , given that he had arrived unlawfully in GPE and had no connections in the country or resources to subsist on . According to section CARDINAL/A ( CARDINAL ) of LAW , the maximum length of asylum detention when ordered by the asylum authority is TIME . On the basis of section CARDINAL/C ( CARDINAL ) of LAW and section CARDINAL ( CARDINAL ) of the relevant Government Decree ( see in paragraph CARDINAL below ) , the applicant could have submitted an objection to the ordering of his asylum detention .

On DATE the asylum authority applied to ORG for an extension of the asylum detention for a maximum of DATE . The asylum authority pointed out in its application that NORP asylum seekers tended to frustrate the procedure and leave for unknown places . To justify its application , it referred to the fact that the applicant ’s stay in GPE was unlawful , that he had no connection to the country , and that he lacked any resources to subsist on .

On DATE the court appointed a legal representative for the applicant ; on DATE that is , before the expiry of the CARDINAL-hour period referred to in paragraph CARDINAL above – it held a hearing . The hearing lasted from GPE to CARDINAL TIME In its ensuing decision the court dismissed the applicant ’s application to be released and extended the asylum detention by a maximum of DATE . It noted that the applicant ’s identity was unclear , that he had arrived in GPE unlawfully , and that he had no connections in the country or any means to subsist on . Without referring to other individual circumstances or the applicant ’s sexual orientation , the court held that less stringent measures – such as an obligation to check in regularly with the authorities , to stay at a designated place of residence , or to pay asylum bail ( menekültügyi óvadék ) – were not suitable in the case to secure the applicant ’s availability to the authorities .

On DATE and DATE the applicant applied to the asylum authority to be released from detention or transferred to an open facility . In its reply , the asylum authority informed the applicant that an asylum hearing would be held in DATE : he would have the opportunity to prove his citizenship there . Because of this consideration , the asylum authority did not forward these requests to any other authority .

At the asylum hearing held on DATE the applicant made the same statements as before . Referring to his sexual orientation , he explained that it was difficult for him to cope with the asylum detention for fear of harassment . At the hearing he provided the asylum authority with relevant and up - to - date information relating to his country of origin .

On DATE the asylum authority stated that the applicant ’s asylum request was neither inadmissible nor manifestly ill - founded and thus it ordered the examination of the case on the merits .

On DATE the asylum authority again sought extension of the asylum detention by another maximum of DATE , relying on section CARDINAL/A ( CARDINAL ) a ) and c ) of LAW . In its application , the asylum authority did not give any detailed explanation as to why no other , less stringent measures could be applied in the case .

In her submission of CARDINAL DATE to the asylum authority , the applicant ’s legal - aid lawyer requested the termination of the asylum detention and the designation of a place of residence for the applicant with measures securing his availability during the proceedings . In her submission of DATE to ORG , the lawyer asked the court to hear the applicant and not to extend the asylum detention .

On DATE the court appointed another legal representative for the applicant . On DATE the court heard the applicant and dismissed the application for extension of the asylum detention . Relying on section CARDINAL/A ( CARDINAL ) a ) of LAW , ORG stated that the delay caused by the acts of the authority for which the asylum seeker could not be held responsible did not provide grounds for the extension of the detention . Referring to section CARDINAL/A ( CARDINAL ) c ) , the court further stated that the asylum authority had not given any specific reasoning for the view it had taken , namely that the applicant would abscond and frustrate the asylum proceedings .

On DATE the asylum authority terminated the asylum detention and ordered a designated place of residence for the applicant in GPE with measures securing his availability during the proceedings .

On DATE the applicant was recognised as a refugee . His asylum detention lasted from DATE to CARDINAL DATE .


CASE OF SARBYANOVA-PASHALIYSKA AND PASHALIYSKA V. BULGARIA

No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);No violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Khanlar Hajiyev;Síofra O’Leary;Yonko Grozev

The applicants are the wife and daughter of Mr PERSON , who was killed on DATE in an office situated in a hotel in GPE . He died as a result of suffering severe trauma to his brain , chest , torso and limbs , which led to irreversible damage to several of his vital organs . The trauma was caused by a number of kicks and punches and blows inflicted with different objects .

On DATE of the incident a private security guard was called to the office premises where Mr PERSON was later found dead in order to investigate a brawl reportedly happening there . The security guard knocked on the office entrance door and an individual , GPE , opened it . The security guard caught a brief glimpse of Mr Pashaliysky lying helpless on the floor with blood on his face . ORG was holding a long oval - shaped object . Having been told by ORG that there was no problem , the security guard left .

It would appear that DATE , using the telephone of the office in question , ORG had called PERSON . PERSON , a friend and business partner of Mr PERSON , threatening to kill them both if PERSON . PERSON failed to deliver an undisclosed sum of money to GPE without delay .

The incident was reported to the police by an investigator , who had been tipped off DATE . The police arrested GPE that night . Traces of the crime having been discovered on GPE ’s hands and clothes , an investigator charged him on DATE with murder . On DATE a prosecutor indicted GPE for the murder of PERSON , which had been committed DATE .

A prosecutor from the GPE city public prosecutor ’s office found on DATE that there were reasons for amending the indictment by applying a law providing for a heavier penalty . She also found that not all available evidence had been collected . In particular , no expert DNA analysis had been carried out on the material found under the victim ’s nails ; several key witnesses had not been questioned about the reasons for their presence in the office in which the victim had been killed on DATE in question and about the reason for the return to the office of CARDINAL of them during TIME of the same day ; no confrontation had been held CARDINAL of those witnesses , despite several discrepancies between their respective statements ; and no information had been collected about the state in which the police officers had found the accused at the time of his arrest . On DATE the prosecutor returned the case to the investigating authorities for further investigative measures , giving specific instructions aimed at the remedying of the deficiencies in the investigation .

The case was returned on CARDINAL other occasions ( on DATE , CARDINAL DATE and on DATE ) for further investigative steps , which the prosecutor listed specifically .

The case file was sent to ORG on an unspecified date in DATE . Both applicants were named as private prosecutors and the second applicant , at her request , also as a civil party seeking nonpecuniary damages .

At the start of the trial the defendant ’s lawyer claimed that the indictment was defective because it did not contain a clear description of the offence with which the defendant had been charged ; the lawyer sought , without success , the return of the case for further investigation . A number of hearings took place during the trial . The proceedings before ORG ended on DATE , when the court sentenced GPE to CARDINAL years’ imprisonment and ordered him to pay damages to the second applicant .

NORP Both GPE and the applicants lodged appeals with ORG . ORG submitted in particular that the sentence had been based entirely on guesswork as to who the perpetrator had been . Most importantly , ORG claimed that the indictment had been entirely silent about the manner in which he was considered to have killed the victim , there being no description of the circumstances in which the victim was killed . Referring to interpretative decision no . DATE of ORG ( see paragraph CARDINAL below ) , he claimed that these procedural flaws were fundamental and that the court should have returned the case to the investigation stage .

On DATE ORG accepted that the indictment had not contained a description of how the accused had killed the victim and that this had been a fundamental procedural defect which had prevented the defendant from effectively exercising his rights . The court then quashed the first - instance court sentence and returned the case to the pre - trial stage so that the procedural flaw in question could be redressed .

On DATE the prosecution indicted GPE anew for the murder of Mr. PERSON and the first - instance court , GPE , opened fresh proceedings against him . The first CARDINAL scheduled hearings were postponed because the defendant ’s lawyer failed to appear . On CARDINAL DATE the court recognised the second applicant as a civil party seeking non - pecuniary damages but refused to name both applicants as private prosecutors . After an appeal by the applicants that refusal was quashed on CARDINAL DATE by ORG . The witnesses were then heard again in the course of the trial so that the applicants could exercise their rights as private prosecutors .

Sixteen hearings took place thereafter , at which the applicants made numerous requests for evidence to be gathered and witnesses to be heard . Subsequently , the presiding judge was elected President of ORG as a result of which the trial stage was started anew . A new presiding judge was appointed , yet no further hearing was scheduled for DATE . The applicants complained about the delay to ORG , asking that disciplinary sanctions be imposed on the new presiding judge . The ORG replied on DATE . It acknowledged that the criminal proceedings in the case had lasted DATE and recognised that this was incompatible with the requirement of a reasonable length of proceedings . It nonetheless held that the judge in question could not be sanctioned , given that the duration of the other cases that she had heard had not exceeded an acceptable length .

On an unspecified later date the new presiding judge was sent back to the court from which she had been transferred and the case had to begin anew once again .

On DATE the proceedings before the first - instance court ended . ORG found GPE guilty of murder and sentenced him to DATE imprisonment . The first - instance court also ruled that ORG had to pay MONEY ( ORG ) in damages to the second applicant as a civil party . After an appeal by GPE ORG carried out a thorough analysis of the witness statements given at first instance , of the record of the examination of the murder scene conducted on DATE after the killing , of the search and seizure measures , and of the conclusions of the numerous expert reports , the autopsy , etc . Following this , on DATE the appellate court upheld the guilty verdict and sentence , but lowered the amount in damages to be paid to the second applicant to around ORG CARDINAL . Following a cassation appeal by ORG upheld the appellate court ’s judgment in its entirety in a final judgment of DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Impartial tribunal;Independent tribunal)

Jon Fridrik Kjølbro;Ledi Bianku;Paul Lemmens

The applicant was born in DATE and lives in LOC .

On DATE the applicant was dismissed from the ORG non - commissioned officer vocational high school due to non - compliance with admission pre - conditions . On DATE the applicant brought an action before ORG and requested the annulment of the dismissal decision .

On DATE ORG rejected the applicant ’s request , taking into account the “ secret documents ” submitted by ORG . These documents were not disclosed to the applicant . This decision was served on the applicant on DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);Violation of Article 13+6-1 - Right to an effective remedy (Article 13 - Effective remedy) (Article 6 - Right to a fair trial;Civil proceedings;Article 6-1 - Reasonable time)

Iulia Motoc;Marko Bošnjak;Vincent A. De Gaetano

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

The applicants complained of the excessive length of civil proceedings and of the lack of any effective remedy in domestic law .


Angelika Nußberger;Erik Møse;Ganna Yudkivska;Mārtiņš Mits;Síofra O’Leary;Yonko Grozev

NORP The applicant , Mr Mykola PERSON , is a NORP national who was born in DATE . His present place of residence is unknown . He was represented before the ORG by Mr V.A. Struts , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented , most recently , by their Acting Agent PERSON .

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

NORP The events relate to a house owned by the applicant in GPE in the PERSON region , where he lived with his wife and their CARDINAL daughters ( born in DATE and DATE ) .

NORP In DATE the village suffered extensive groundwater flooding .

NORP In DATE ( the exact date is illegible in the available documents ) a technical survey of the applicant ’s house was carried out . As stated in the survey report , the building was made of beaten earth walls and was constructed shortly DATE . It had no foundations and measured twentythree square metres , of which QUANTITY were living area . The building lacked basic amenities such as a lavatory , water supply , sewage system , gas supply or telecommunications . While the maximum habitable life of such buildings was DATE , the applicant ’s house had been in use for DATE . Following the flood , its floors were covered with water ( TIME centimetres deep ) and the walls were damp . It was not deemed feasible to carry out repairs and demolition was deemed to be the only option .

On DATE ORG of ORG ( “ the ORG ” ) issued an order “ On measures for eliminating the consequences of the natural disaster in GPE ” . It noted that CARDINAL residential buildings had remained flooded with groundwater since DATE . CARDINAL of them were at risk of collapsing . A commission of experts was appointed to assess the situation and draw up recommendations for further measures .

On DATE the commission issued its report . The applicant ’s house was among those assessed as “ having practically exhausted their capacity for use as a result of the groundwater flooding ” . The commission noted that measures for lowering the level of the groundwater had been unsuccessful , that the condition of the houses was deteriorating and that they could collapse at any moment . Its conclusion was that the houses were dilapidated , uninhabitable and should be demolished .

On DATE ORG approved the above report , as well as a list of dilapidated and uninhabitable houses , including the CARDINAL belonging to the applicant . It recommended that the local authorities dealing with housing issues , together with local companies , resettle the people concerned to hostels on a temporary basis .

The local authorities further recommended to the applicant that he turn to his employer , the LOC plant , for help in solving his housing problem .

On DATE the ORG delivered a decision on the resettlement of the residents of the flooded houses , including the applicant ’s family , to hostels . It guaranteed that within DATE they would receive new accommodation , subject to applicable benefits and the available funding . The LOC plant was directed to resettle the applicant ’s family .

On DATE LOC ’s administration and its trade unions proposed that the applicant ’s family move temporarily to a flat at either FAC or PERSON . The applicant declined the offer on the grounds of the poor condition of the buildings in question .

On DATE and DATE ORG and the mayor ’s office , respectively , wrote to the applicant in reply to his complaints about the failure to provide him with free accommodation , saying that he had declined the proposal of temporary resettlement to a flat at FAC for no good reason . Furthermore , the local authorities had provided the applicant ’s daughter with a CARDINAL - room flat , with partial amenities , for temporary resettlement .

On DATE the applicant made a written statement to his employer that he was refusing the proposed accommodation at CARDINALa FAC owing to its poor condition .

On DATE the LOC ’s administration replied to his repeated requests for accommodation by writing to him that in DATE the housing fund of the plant had been transferred to the GPE municipal property agency , apart from CARDINAL buildings ( CARDINALa and PERSON ) . The building at FAC was indeed in a very poor , even critically bad , condition . As regards the building at FAC , the applicant had twice been offered a flat there , but had declined the offer . According to the information provided by the Government , the flat in question measured QUANTITY , of which the living area was QUANTITY . However , according to the applicant , the only accommodation he was offered had been a small room without any amenities ( see below ) .

On DATE the applicant wrote to the LOC ’s administration that the only offer he had actually received concerned a room measuring QUANTITY , without any amenities , at FAC . He emphasised , however , that he would have also declined any offer to be resettled in the building at FAC , where the conditions were equally poor .

On DATE a technical survey of the buildings at DATE and FAC was carried out . Since their construction in DATE , they had not been refurbished and their general condition was considered as being very poor .

In DATE the applicant found out that he was number CARDINAL on the plant ’s general waiting list for accommodation . He complained about that to ORG , which replied on DATE that that was an error , that it should be corrected and that he was indeed entitled to be on the priority waiting list , pursuant to the decision of CARDINAL DATE .

On DATE PERSON ’s administration moved the applicant from the general waiting list to the priority list , where he was at number CARDINAL .

On DATE ORG wrote to the applicant that he was number CARDINAL on its housing waiting list . All the families on the list before him continued to live in uninhabitable conditions and the applicant had to wait his turn .

On DATE the applicant brought a civil claim against the LOC plant and ORG , seeking the allocation of free accommodation for his family ( by that time consisting of CARDINAL people as the applicant ’s elder daughter had married and given birth to a girl in DATE ) , as well as compensation in respect of non - pecuniary damage .

On DATE and DATE the LOC ’s administration and ORG removed the applicant from their housing waiting lists .

On DATE the Zavodskyy ORG of Mykolayiv ( “ the ORG ” ) found against the applicant . It noted that he had declined CARDINAL offers of resettlement . Furthermore , he had inherited some real estate in DATE , of which he had not informed the authorities . As a result , LOC ’s administration and ORG had rightly taken him off their housing waiting lists .

NORP The applicant appealed . He submitted , in particular , that the property he had inherited consisted of QUANTITY and could not be regarded as alternative accommodation for his family . To corroborate his statement , he provided an expert ’s technical survey .

On DATE ORG ( “ the Court of Appeal ” ) quashed the judgment of DATE and remitted the case for fresh examination at first instance . It noted that the applicant ’s claim concerned the allocation of free accommodation , rather than his exclusion from the housing waiting lists .

On DATE ORG allowed the applicant ’s claim in part . It considered it established that his house had become uninhabitable as a result of a natural disaster . Accordingly , the court held that the applicant was entitled to free accommodation , pursuant to LAW ( see paragraph CARDINAL below ) . The applicant was also awarded compensation in respect of non - pecuniary damage ( CARDINAL NORP hryvnias , which was then equivalent to QUANTITY , from each of the CARDINAL defendants ) .

On DATE ORG quashed the first - instance court ’s judgment following appeals by the defendants and adopted a new judgment which in the main dismissed the applicant ’s claim . With reference to the decisions of ORG of DATE and DATE ( see paragraphs CARDINAL and CARDINAL above ) , ORG noted that the applicant ’s house had been among those inspected by a technical commission following the flood and that LOC ’s administration had been responsible for resettling his family . It considered that the case file did not contain any evidence proving that the applicant ’s house had become uninhabitable as a result of a natural disaster and therefore concluded that LAW was not applicable . However , the applicant was to be restored to the priority housing list , in accordance with LAW of the code , given that his house was uninhabitable . This restoration , according to ORG , constituted sufficient compensation in respect of non - pecuniary damage .

The applicant appealed against the judgment on points of law . He insisted that his house had become uninhabitable as a consequence of the flood .

On DATE ORG rejected the applicant ’s cassation appeal , giving a concise reasoning that it had not discerned any violations of the law .

Article CARDINAL stipulates that the ORG ’s housing stock comprises that of local councils of people ’s deputies ( житловий фонд місцевих Рад ) and that of ministries , state committees and institutions ( відомчий житловий фонд ) .

Article CARDINAL contains a non - exhaustive list of categories of people whose living conditions need to be improved and who are therefore entitled to free accommodation being placed on a priority housing list ( першочергове надання жилих приміщень ) . As further set out in Article CARDINAL , approval of the rules of keeping records about people belonging to those categories was the responsibility of ORG SSR and ORG .

Article CARDINAL provides for categories of people entitled to free accommodation without being on a housing list ( позачергове надання жилих приміщень ) , including “ citizens whose dwelling has become uninhabitable as a result of a natural disaster ” . The Article further states that such people shall be included on a separate waiting list . No time - limits are set down for the allocation of dwellings to such people .

Article CARDINAL of the Housing Code states , in particular , that the minimum size of residential LOC should comply with standards laid down by ORG .

According to Article CARDINAL , residential LOC should comply with the relevant sanitary and technical standards .

Article CARDINAL governs the allocation of flats from the institutional housing stock ( відомчий житловий фонд ) . In particular , flats are allocated by a joint decision of the authorities and the trade union branches of the companies , institutions and establishments concerned , which either submit their decision to the relevant municipal council for approval or , in some cases , simply inform the council . On the basis of that decision , the executive committee of the municipal council issues the person concerned with an authorisation to occupy the flat ( ордер ) , which constitutes the sole legal basis for taking possession of the allocated dwelling ( Article CARDINAL ) .

“ Rules of keeping records about people in need of improved living conditions and the allocation of free accommodation for them ... ” ( PERSON обліку громадян , які потребують поліпшення житлових умов , і надання їм жилих приміщень ... ) , which were approved by ORG of the NORP SSR and ORG no . CARDINAL of CARDINAL DATE ( with further amendments ) , also contain several provisions of relevance .

More specifically , point CARDINAL contains a list of categories of people on housing waiting lists who must be provided with free accommodation as a matter of priority . CARDINAL such category concerns “ people living in dilapidated buildings not subject to major repairs ” ( § CARDINAL ) . Furthermore , point CARDINAL ( § CARDINAL ) reiterates the provisions of LAW ( see above ) .


CASE OF FILIMONOV AND FAZLUTDINOV v. RUSSIA

Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the inadequate conditions of their detention . They also argued that they did not have an effective domestic remedy to complain about the poor detention conditions .


Julia Laffranque;Paul Lemmens;Stéphanie Mourou-Vikström;Georges Ravarani;Ksenija Turković

The applicants , PERSON ( “ the first applicant ” ) , Mr PERSON ( “ the second applicant ” ) and Mr PERSON ( “ the third applicant ” ) are NORP nationals who were born in DATE , DATE and DATE respectively and live in GPE . They were represented before the ORG , first by PERSON , an advocate practising in Ivanić - Grad , and subsequently by ORG from the law firm PERSON and PERSON , an advocate practising in GPE .

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

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

The first applicant married a certain Mr H.A. in DATE . The second and third applicants were born of the marriage . PERSON and the applicants lived in the first applicant ’s flat in GPE until DATE .

On DATE went to work and never returned home . After DATE , the first applicant found out that he had moved to GPE .

By a judgment of CARDINAL DATE ORG ( PERSON ) granted the divorce of the first applicant from GPE , who was ordered to pay MONEY ( ORG ) of child support DATE for the maintenance of the second and third applicants ( hereafter “ the child support ” or “ the maintenance ” ) . The judgment became final and enforceable on DATE .

In the period DATE and DATE paid the child support irregularly . In that period , he paid a total of CARDINAL . He stopped paying the maintenance in DATE . He does not own any property in GPE .

On DATE the first applicant lodged a criminal complaint against GPE with the Zagreb Municipal State Attorney ’s Office ( Općinsko državno odvjetništvo u GPE ) , accusing him of non - compliance with maintenance obligations ( povreda dužnosti uzdržavanja ) , a criminal offence defined in LAW ( see paragraph CARDINAL below ) .

On DATE the ORG Attorney ’s ORG indicted H.A. , thereby instituting criminal proceedings against him before ORG .

On DATE the State Attorney ’s ORG dropped the charges , whereupon , DATE , ORG discontinued the proceedings .

On DATE the first applicant lodged another criminal complaint against GPE with the same State Attorney ’s Office , on the same grounds as before .

On DATE the State Attorney ’s Office indicted GPE , thereby instituting criminal proceedings against him before ORG ( Općinski kazneni sud u GPE ) . The court conducted a trial in absentia .

By a judgment of DATE the court found PERSON guilty as charged . It imposed a suspended sentence of CARDINAL months’ imprisonment with a DATE probation period , with the additional condition of regular payment of future child support instalments as they became due , and payment of CARDINAL of maintenance arrears to the applicants .

Upon an appeal by the ORG Attorney , on DATE ORG ( Županijski sud u GPE ) amended the sentence by setting a DATE time - limit for the payment of maintenance arrears .

On DATE the first applicant informed ORG had not been paying the child support instalments as they were becoming due , nor had he paid the arrears .

For those reasons , on DATE she applied for revocation of the suspension of the sentence ( prijedlog za opoziv uvjetne osude ) to the same court .

At a hearing held on CARDINAL DATE the first applicant informed the court that GPE ’s address in GPE ( GPE ) mentioned in the judgment of DATE ( see paragraph CARDINAL above ) was not correct and that his address was difficult to establish . She provided the court however with the address of his employer and his mother .

The notice of the next hearing , scheduled for DATE , was sent via regular post , more specifically by registered mail , to the address of PERSON ’s employer in GPE .

At the hearing held on DATE the court established that the service was not valid because the notice , which had been returned by ORG ’s employer , had not been signed by ORG

On DATE the court asked the NORP embassy in GPE to supply ORG address .

On DATE the embassy replied that , like the court , it was only aware of ORG address in GPE ( GPE ) and that it had been unable to identify his new address .

The court then scheduled the next hearing for DATE , and on DATE asked ORG to request , by means of letters rogatory , the relevant GPE authorities to serve notice of the hearing on H.A.

On DATE ORG forwarded to the court a letter from ORG , in which it was stated that the NORP embassy in GPE had no funds in its budget for service abroad and thus could not pay the USD CARDINAL requested by the United States’ authorities for personal service .

The hearing scheduled for DATE was adjourned . Before the hearing the law clerk ( sudski savjetnik ) assigned to the case informed the first applicant that the summons could not be served on PERSON by letters rogatory because the NORP embassy in GPE did not have funds to pay for the service ( see the preceding paragraph ) . According to the applicant the law clerk also advised her to lodge another criminal complaint against GPE for another count of the same offence ( which would eventually result in his unconditional conviction ) . The next hearing was scheduled for DATE .

At the hearing held on DATE the judge hearing the case informed the first applicant that the summons had to be served on a party living abroad via diplomatic service and that service via regular post by registered mail at his employer ’s address was not valid . The first applicant replied that the message she had received from GPE on DATE on her ORG page suggested that he had received the summons sent by regular post .

It would appear that these proceedings are still pending .

Meanwhile , by a decision of CARDINAL DATE the president of ORG dismissed a request of CARDINAL DATE by the applicants for the protection of the right to a hearing within a reasonable time , finding no violation of that right . He held that the length of the proceedings complained of was primarily attributable to objective factors , namely the difficulties associated with service of process on PERSON , who lived in GPE . On DATE the president of ORG dismissed an appeal by the applicants and upheld the first - instance decision .

In DATE the first applicant , relying on section CARDINAL of LAW , instituted administrative proceedings before ORG ( NORP za socijalnu skrb GPE – Ured Trešnjevka , hereafter “ the local social welfare centre ” ) seeking substitute maintenance for the second and third applicants .

By a decision of CARDINAL DATE the local social welfare centre granted the first applicant ’s request and awarded her substitute maintenance in the DATE amount of MONEY ( HRK ) for the second applicant and HRK CARDINAL for the third applicant . The decision specified that these amounts would be paid in the period from DATE until PERSON started paying the child support , and until DATE at the latest .

On DATE the first applicant wrote to the NORP consulate in GPE asking for assistance in instituting relevant proceedings in GPE with a view to recovering child support payments . In her letter she mentioned that she had contacted an attorney in GPE who , given her indigence , had asked for “ too much money ” for his services without any guarantees that the proceedings would be successful . It would appear that she received no reply .

On DATE the applicant sent an email to the NORP embassy in GPE asking for assistance in identifying ORG address .

The embassy replied on DATE , informing her first that in response to her earlier request ( see paragraph CARDINAL above ) it had contacted the relevant GPE authorities , who had in turn informed it that foreign court judgments concerning maintenance could be recognised only if there was a bilateral agreement between GPE and the country concerned . No such agreement existed between GPE and GPE ( see paragraphs CARDINAL - CARDINAL below ) .

NORP The embassy also informed the applicant that it had no database of contact details of NORP nationals living in GPE . Moreover , each time it had asked GPE authorities to provide such information in the context of requests for international legal assistance , those authorities had informed it that they had no such data either , and that in any event they would not be able to disclose them because of the personal data protection laws .

NORP The embassy further informed the first applicant that the results of its web search indicated that a person with the same last name as PERSON lived in GPE ( GPE ) , and provided the address . It also suggested that she ask the court in the above proceedings for revocation of the suspended sentence to try serving the summons at that address . Lastly , the embassy gave the applicant the contact details of a private investigator who could assist her in identifying PERSON ’s address .

The original text of section CARDINAL of LAW ( Obiteljski zakon , ORG no . CARDINAL/CARDINAL ) , which was in force between DATE and DATE , read as follows :

“ If a parent who is bound to contribute to the support of his or her child by a final judicial decision or settlement concluded before the social welfare centre does not comply with his or her obligations for DATE , the social welfare centre shall , at the initiative of the other parent or of its own motion , if it considers that this could endanger the child ’s standard of living , take measures to provide funds for substitute child support until the parent bound to [ do so ] again starts to comply with his or her obligation . ”

Section CARDINAL of LAW was amended by the DATE LAW o izmjenama i dopunama PERSON zakona , ORG no . DATE the DATE Amendments ) , which entered into force on DATE . The text of section CARDINAL , as amended by the DATE Amendments , read as follows :

“ ( CARDINAL ) If a parent who is bound to contribute to the support of his or her child by a final judicial decision , the provisional measure ... or settlement concluded before a court or a social welfare centre , does not comply with his or her obligations for DATE , or does not pay CARDINAL DATE instalments within DATE , the social welfare centre shall , at the initiative of the other parent or of its own motion , issue a decision on substitute child support and in accordance with it shall pay child support until the parent bound to [ do so ] again starts to comply with his or her obligation , but for DATE .

( CARDINAL ) The right to substitute child support shall be recognised from the date the application [ to that effect ] was lodged [ by the other parent ] , or from the date [ the social welfare centre ] instituted the proceedings of its own motion .

( CARDINAL ) The substitute child support shall be established at PERCENT of the amount of [ the minimal child support ] specified in section CARDINAL(CARDINAL ) of this LAW [ which sets it at PERCENT , PERCENT or PERCENT of the minimum wage , depending on the age of the child ] .

( CARDINAL ) An appeal against a decision on substitute child support does not suspend its enforcement . ”

Section CARDINAL of the DATE Amendments provided as follows :

“ ( CARDINAL ) If before the entry into force of [ these LAW ] a first - instance decision has been adopted in proceedings concerning maintenance by the court or the social welfare centre the [ earlier version of ] LAW , shall [ continue ] to apply to the subsequent [ stages of ] the proceedings .

( CARDINAL ) If after the entry into force of [ these LAW ] the first - instance decision referred to in paragraph CARDINAL of this section was quashed or set aside [ these LAW ] shall apply to the subsequent proceedings . ”

The relevant provision of LAW ( PERSON , ORG no . CARDINAL with subsequent amendments ) , which was in force from CARDINAL DATE to DATE , reads as follows :

“ Regardless of the grounds for revocation , a suspended sentence may be revoked DATE after the expiry of the probation period . ”

“ ( CARDINAL ) Anyone who , by avoiding employment or by changing jobs , domicile or place of residence , by alienation of assets , or otherwise , avoids providing maintenance for a person he or she is bound to support by virtue of an enforceable decision or in - court settlement , or who refuses to comply with such an obligation , shall be punished by a fine or imprisonment not exceeding one year .

( CARDINAL ) If the obligation referred to in paragraph CARDINAL of this section concerns child support , the perpetrator shall be punished by imprisonment of from DATE .

( CARDINAL ) When imposing a suspended sentence , the court may set as a condition [ of the sentence being suspended ] , that the perpetrator pays maintenance arrears and in the future regularly complies with maintenance obligations . ”

The relevant provision of LAW ( Zakon o kaznenom postupku , ORG no . CARDINAL/CARDINAL with subsequent amendments ) , which has been in force since DATE , reads as follows :

“ ( CARDINAL ) Where a suspended sentence stipulates that a sentence will be executed if the convicted person does not return the pecuniary gain , pay the compensation for the damage , or does not meet other obligations , and the convicted person has failed to comply with those obligations within the set time - limit , the first - instance court shall conduct proceedings for revocation of the suspended sentence at the request of an authorised prosecutor or the injured party .

( CARDINAL ) The judge assigned for such a purpose shall examine the convicted person , if available , and take the steps necessary to establish the facts and collect evidence relevant to the decision .

( CARDINAL ) Thereafter , the presiding judge shall schedule a session of the panel of which he or she shall inform the prosecutor , the convicted person and the injured party . If they have been duly notified , failure of the parties , including the injured party , to attend shall not prevent the panel from holding the session .

( CARDINAL ) If the court finds that the convicted person has not complied with the obligation imposed upon him or her by the judgment , it shall issue a judgment revoking the suspended sentence and ordering the execution of the imposed sentence , or it shall set a new time - limit for compliance with the obligation , or replace that obligation with another or relieve the convicted person of the obligation . If the court finds that there are no grounds to take any of these decisions , it shall discontinue the proceedings for revocation of a suspended sentence by [ means of ] a decision [ to that effect ] .

( CARDINAL ) If it is subsequently established that the convicted person committed a criminal offence during the probation period for which he or she was sentenced to a sentence for which the suspended sentence should or could have been revoked under LAW , and the court which sentenced omitted to decide on that , the first - instance court which imposed the suspended sentence shall issue a judgment revoking the suspended sentence and ordering execution of the imposed sentence . If the court finds that there are no grounds for revocation of a suspended sentence , it shall discontinue those proceedings by [ means of ] a decision [ to that effect ] .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);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 - Right to an effective remedy (Article 13 - Effective remedy)

André Potocki;Angelika Nußberger;Carlo Ranzoni;Erik Møse;Ganna Yudkivska;Khanlar Hajiyev;Mārtiņš Mits

In DATE the applicant and his wife started a family business which involved , among other things , the replication of digital data and the sale of blank data storage devices . They used a flat on LOC in GPE owned by the applicant ’s mother as their office , in which they had copying equipment set up .

On DATE several police officers from ORG ( “ KECU ” ) inspected the applicant ’s office at FAC in his and his wife ’s presence .

On DATE the KECU officers also inspected the applicant ’s garage and his car .

After the inspection the police seized CARDINAL computers , CARDINAL optical disc recording devices , a printer , a modem , over CARDINAL optical discs with recordings , CARDINAL blank optical discs and CARDINAL printed disc covers . The seizure was documented on CARDINAL standardised forms ( one for each site inspected ) , which included the following pre - filled printed text :

“ Beginning of the inspection : _ _ _ _ _ _ _ [ time , date ]

End of the inspection : _ _ _ _ _ _ _ _ _ [ time , date ]

I ( we ) , _ _ _ _ _ _ of the KECU on the premises of _ _ _ _ _ _ [ site ] ... inspected and seized from _ _ _ _ _ _ _ _ _ [ name , address , place of work of the person whose possessions were subject to seizure ] the following _ _ _ _ _ _ _ _ [ list of seized items ] .

The seized items will be stored with the KECU pending resolution of the matter on the merits .

This ORG has been completed in duplicate and read out . ... ”

It appears from the forms that the inspection of the office started at TIME and ended at TIME , DATE . Other sites were inspected at the same time – the car from TIME until TIME and the garage betweenCARDINAL.CARDINAL and TIME

According to the applicant , for the whole night the police officers questioned him , his wife and the members of their extended family who were on the LOC . The questions related to the applicant ’s family business and the observance of copyright law in the business ’s use of software and in its replicating activities .

On DATE a report was published on ORG website , which stated that ORG had :

“ ... identified a criminal group of CARDINAL [ individuals ] . These CARDINAL [ individuals ] organised an entire underground production [ facility ] in their office . With the help of computer equipment they replicated CD - ROMs containing various programs and games ... ”

NORP The report also featured a photograph of the applicant ’s wife without a caption and listed the seized items , declaring their estimated value as CARDINAL NORP hryvnias ( ORG ) .

On DATE investigator PERSON from ORG of the Kyiv Police instituted criminal proceedings concerning “ the suspected breach of copyright ” under LAW of LAW of GPE , without naming any suspected offenders . In his decision , he referred to the search of the office of the applicant and his wife and the seizure of their belongings on DATE . He further noted that they had been found not to have a license agreement with the law firm S. , the official representative of ORG , whose software they had used in their business , thereby causing damage to the software copyright owner .

On DATE PERSON declared the property seized from the applicant and his wife as physical evidence to be stored by the police pending the investigation of the case .

On DATE the Shevchenkivsky ORG of Kyiv ( hereinafter “ the ORG ” ) issued search warrants in respect of the applicant ’s and his wife ’s flats , noting that they were suspected of breaching criminal legislation concerning copyright protection .

On DATE these flats were searched pursuant to the warrants . It appears from the case file that no items were seized .

As follows from the applicant ’s submissions , after these searches and several interviews , the proceedings stagnated , with the police never pressing any charges against the applicant or any other person .

On numerous occasions the applicant asked the police and the prosecutor ’s office to order the return of his seized property . On various dates ( in particular DATE , CARDINAL DATE and CARDINAL DATE ) the respective authorities rejected his requests , notifying him that his seized property constituted physical evidence in a criminal case , that keeping it in the possession of the authorities was justified by the need to carry out expert assessments and that , more generally , in accordance with LAW of LAW DATE ( “ the ORG ” ) , the fate of the items had to be determined upon the final resolution of the case .

On DATE the GPE prosecutor ’s office rejected a request by the applicant to have the criminal case in which his possessions had been seized transferred to court with a view to having the proceedings closed as time - barred . They noted , in particular , that proceedings could only be terminated on such grounds in cases in which a particular person had been indicted .

On DATE the police rejected a request by the applicant to have the criminal proceedings discontinued for lack of corpus delicti , noting that discontinuing proceedings on such grounds also presupposed the identification of a particular defendant .

On DATE the police informed the applicant in response to his complaint about being denied any status in the criminal proceedings – which , in his view , concerned him as a de facto suspect – that there were no grounds for instituting a criminal case against him personally . There was insufficient evidence that he had unlawfully replicated copyrighted materials or distributed counterfeit products .

In DATE the criminal proceedings were still pending . No investigative measures concerning the applicant had been ordered . His property remained in the control of the police as physical evidence in the case .

In their subsequent submissions – the last correspondence from the applicant ’s lawyer and the ORG was received in DATE and DATE respectively – the parties did not provide any further information concerning the outcome or status of the aforementioned criminal proceedings and the fate of the seized items .

On an unspecified date the applicant and his wife instituted defamation proceedings against the police authorities for publishing an inaccurate crime report on their website ( see paragraph CARDINAL above ) , seeking the retraction of the information contained therein .

On DATE ORG allowed the claim .

It follows from the case file that this judgment was not appealed against and became final .

On DATE the prosecutor ’s office rejected the applicant ’s request for criminal proceedings to be instituted against CARDINAL KECU officers who had taken part in the search of his office , car and garage and had seized his property . It was noted in the relevant decision , in particular , that the police officers had not “ searched ” but “ inspected ” the applicant ’s office and other sites . The inspection had been lawful , as it had been carried out in the police ORG competence to carry out investigative and operational activities for the purpose of crime detection within the meaning of GPE On operational and investigative activities ” and with the applicant ’s and his wife ’s consent .

On DATE and DATE respectively ORG and ORG ( “ the ORG ” ) rejected appeals by the applicant against that decision .

On an unspecified date the applicant instituted civil proceedings in ORG in GPE to reclaim his computer equipment , optical discs and other property seized by the police .

On DATE the court suspended these proceedings pending resolution of the criminal case in which the property had been retained by the police ( see paragraphs CARDINAL above ) .

In DATE the applicant lodged a complaint against ORG of the Kyiv Police with ORG . Initially referring to LAW DATE in force at the material time , he alleged , in particular , that the inspection of his office and search and seizure of his property in DATE , as well as the institution of criminal proceedings on DATE had been unlawful .

In court the applicant reformulated his claims . Referring to Article CARDINAL of the ORG ( see paragraph CARDINAL below ) he contended that there had been no lawful grounds for instituting the criminal proceedings concerning the suspected breach of copyright . He requested that the investigator ’s decision of DATE ( see paragraph CARDINAL above ) be set aside . In this respect the applicant submitted , in particular , that on DATE KECU officers had conducted an arbitrary search and seizure of his property without a court warrant or any other lawful grounds for taking such actions . The applicant argued that there was no reason to suspect that a crime had been committed justifying the search and seizure of his belongings ; that , in breach of the applicable law , the measures had been taken at TIME - time ; that the same people had been appointed as lay witnesses for all CARDINAL sites , which had been inspected all at the same time ; and that following the institution of the criminal proceedings he had not been summoned to participate in any investigative activities . The proceedings at issue had been instituted in bad faith , to prevent him from recovering his seized property and to cover up the unlawful conduct of the KECU .

On DATE ORG found that LAW of the ORG ( not Article CARDINAL of the Code of Civil Procedure DATE ) was the appropriate provision for examining the applicant ’s allegations . It rejected them , finding that the applicant lacked standing to bring the proceedings . In particular , the disputed criminal case had been instituted “ into the matter ” rather than “ against the applicant ” ( see paragraph CARDINAL below quoting LAW of LAW ) , who had neither been a formal suspect nor a defendant in the proceedings at issue . He could not therefore claim that his rights had been breached by the institution of the proceedings . As regards his complaints concerning the allegedly unlawful actions of the police , in accordance with LAW of LAW , these complaints could be brought only within the framework of the above - mentioned criminal case and fell to be examined by the court which would try that case , during either the preliminary hearing or trial .

The applicant appealed , stating in particular that he had been a de facto suspect in the proceedings at issue . As he had been denied formal status as a suspect , he could not defend himself properly . In addition , as the proceedings had been artificially protracted , he had been deprived of the opportunity to reclaim his seized property pending resolution of the case .

On DATE ORG quashed ORG decision and decided to discontinue the proceedings . Like the lower court , it considered that the applicant had no standing to bring the proceedings at issue and , more generally , that the actions of the police authority complained of could only be challenged before the court examining the criminal case , after the relevant investigation had been completed and the case transferred to the court for examination . In these circumstances , rather than rejecting the applicant ’s complaints on the merits , the proceedings had to be discontinued .

The applicant appealed on points of law .

On DATE ORG of GPE quashed the previous decisions and remitted the case to the lower courts for fresh consideration . It noted , in particular , that on DATE ORG had found that the provisions of LAW of the ORG , which had made it impossible to appeal separately against decisions of investigative authorities concerning the institution of criminal proceedings , were unconstitutional ( see paragraph CARDINAL below ) . The foregoing ruling also meant that courts should likewise admit for consideration complaints about other procedural actions , decisions or inaction on the part of investigative authorities , which could result in irreparable or grave damage to an individual ’s constitutional rights if their judicial review were to be delayed . ORG further noted that there was sufficient evidence to suggest that the applicant had been substantially affected by the criminal proceedings at issue – in particular , with regard to the search of his LOC and the seizure and retention of his belongings . It stated that the proceedings appeared to be protracted without any justification and instructed the lower courts to verify whether the conduct of the investigative authorities could indicate ulterior motives aimed at concealing unlawful actions on their part .

On DATE ORG allowed the applicant ’s complaint and revoked the decision of DATE . Regard being had to the grounds for taking that decision , the proceedings should have been instituted against the applicant , who had been a de facto suspect in relation to breach of copyright . Institution of the proceedings “ into the matter ” without indicating a specific defendant had been artificial and had restricted the applicant ’s procedural rights . The police ORG actions which had led to the institution of the proceedings had been tainted by procedural breaches , regard being had , in particular , to the unjustified inspection of the LOC at TIME - time in the absence of the flat owner ( the applicant ’s mother ) , as well as various other procedural violations .

On DATE the GPE prosecutor ’s office appealed against that decision .

On DATE the ORG quashed ORG decision and remitted the criminal case concerning the suspected breach of copyright to it for further investigation . By assessing the lawfulness of the investigative actions , ORG had in fact touched upon the admissibility of evidence , a matter which could only be examined in the course of a criminal trial . It further found that by instituting the criminal proceedings “ into the matter ” rather than “ against the applicant ” , the police had not caused irreparable damage to the applicant ’s constitutional rights such as would necessitate the setting aside of their decision by way of judicial proceedings . Any irregularities in the formulation of the decision to institute criminal proceedings could be more appropriately addressed by the prosecution authorities .

The applicant appealed on points of law , alleging in particular that ORG had breached procedural rules in admitting the appeal of the prosecutor ’s office .

On DATE Justice PERSON of ORG refused to consider the applicant ’s request for leave to appeal on points of law , stating that ORG lacked jurisdiction over the decisions taken by ORG in the relevant matters , unless they concerned the termination of proceedings .


Violation of Article 10 - Freedom of expression-{general} (Article 10-1 - Freedom of expression)

The applicant was born in DATE and at the time of lodging his application he was serving his prison sentence in the Bolu F - type prison .

On DATE the applicant wrote a letter to ORG , in which he had praised the imprisoned leader of the ORG , PERSON by using the honorific “ sayın ” , meaning esteemed .

Pursuant to the ORG on the administration of penitentiary institutions and the execution of sentences , the applicant was found guilty of breaching prison order by the Bolu F- type ORG ( referred hereafter as “ the Board ” ) .

On DATE the applicant was sentenced to CARDINAL days’ solitary confinement on the orders of ORG , on account of his statements in the above mentioned letter .

On DATE the Bolu Enforcement Judge rejected the applicant`s objection .

On DATE ORG upheld the judgment of DATE .