Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Effective investigation) (Procedural aspect);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicants , Mr. PERSON , Mr PERSON , Mr PERSON , Mr PERSON , PERSON , PERSON , ORG and PERSON ( GPE ) , were born in DATE , DATE , DATE , DATE , CARDINAL , DATE and DATE respectively .

ORG , meeting in DATE , adopted a decision increasing to CARDINAL storeys the authorised height of the blocks covered by the building permits which had been issued to property developers for the construction of apartment blocks in GPE , on allotment CARDINAL , plot CARDINAL , and allotment CARDINAL , plot CARDINAL . Pages CARDINAL and TIME of that meeting , recording ORG discussions , comprise the following exchange :

“ PERSON : ... at the ORG meeting of CARDINAL [ the height of buildings in ] the restricted zone was raised to CARDINAL storeys in GPE , where , on the worksite belonging to GPE , [ the blocks were already ] CARDINAL storeys high . [ During ] the on - site visit it was noted that there were CARDINAL more QUANTITY buildings in GPE . I think the decision we took at the time was insufficient . I am therefore requesting a modification of the restricted zone for sites comprising CARDINAL blocks of flats ...

The Mayor : ... As I said at the CARDINAL meeting , our friend here is proposing legalising the QUANTITY buildings which have been completed , without bothering about the mistakes made in the past ... I repeat what I said at the DATE meeting : let us correct , rather than mull over , our past mistakes . I acknowledge that mistakes have been made . But from now DATE no one will be able to add an extra storey , we will not allow it . And it was not us that made the mistake . That was already the situation when we arrived [ in the municipality ] .

ORG : Mr Mayor , CARDINAL persons have built QUANTITY blocks in GPE . What a cheek ! And we subsidise these builders .. ORG has built QUANTITY blocks on the site ... Who was asked for authorisation ? ... I do n’t have to clean up his mess ! In DATE we decided that he should coat [ the buildings ] in concrete . He should just bury them ... the municipality should revise the plans for the whole GPE region and authorise CARDINAL storeys ...

GPE : ORG has been in place for DATE now . Have we visited the site where GPE ’s and ORG ’s buildings stand to record our findings and impose a fine ? What exactly have we done so far ?

The Mayor : They are standing trial . As things stand [ their buildings ] are not lawful . They have put up five- to QUANTITY buildings , which is against the law ... We at no stage authorised their construction . There are CARDINAL blocks . Either we authorise the QUANTITY storeys or they will have to be demolished ... If you ask me , I think that action should have been taken earlier on this situation ... we should now just leave this mess alone and issue a decision authorising the QUANTITY storeys , thus correcting the mistake . After which we will not allow any more such buildings ...

PERSON : Mr Mayor , you did not answer my questions . What has been done about these blocks over DATE ?

The Mayor : As I say , the builders are being prosecuted . Representatives of the housing department have inspected the site and the municipality has fined certain persons . Furthermore , we will not issue permits [ for ] these buildings before ... having imposed fines of CARDINAL or MONEY ...

M.P : Mr Mayor , the fine you mentioned is the second stage in proceedings . I would remind you that the first stage , [ relating to ] your responsibility as Mayor , is to implement section CARDINAL of LAW ( Law No . CARDINAL ) . Pursuant to that legislative provision , apart from [ cases of ] constructions which are exempt from the permit requirement , where the authorities have determined that construction work has begun without a permit or the work is incompatible with the permit and its appendices , the GPE or ORG must immediately visit the site and work must stop forthwith . You have been in office for DATE now : have you , or have you not , honoured that obligation ?

The Mayor : ... I repeat that I did not authorise the buildings in question ... They had already been finished and roofed when I took up my duties .

On DATE and DATE a NORP resident complained to ORG about the alleged unlawfulness of the buildings constructed in the GPE municipality by the FAC company .

ORG held a meeting on DATE , during which ORG informed the councillors of the criteria for amending the municipal urban planning scheme . TIME of ORG read as follows :

“ ORG : Mr Mayor , I would like to remind you of the provisions of the urban planning scheme on the addition of extra storeys to buildings for which permits have been issued . According to these provisions , CARDINAL conditions must be met for such work : the first relates to the width of the street , and the second concerns technical and social infrastructure . I would just inform the ORG that neither of these conditions is fulfilled in the applications submitted for adding storeys to the buildings .

Failure to comply with the conditions laid down in the regulations carries a criminal penalty ... The decision is yours ... ”

Following these discussions , ORG accepted several applications for amendments to the municipal urban planning scheme .

On DATE ORG ( the “ ORG ” ) invited ORG of PERSON to order the municipality in question to take the requisite legal action on the buildings constructed in breach of urban planning regulations , to monitor the action taken by that municipality and to keep the PERSON resident who had complained to the aforementioned directorate informed of the situation .

On DATE the ORG agreed that the number of storeys authorised for the buildings already constructed could be increased from CARDINAL to CARDINAL .

On CARDINAL DATE ORG invited the Governor of PERSON to adopt the urgent measures set out in sections DATE and CARDINAL of LAW ( see LAW , paragraph CARDINAL below ) in respect of the buildings and the real estate developers at issue .

On DATE ORG of PERSON informed ORG that despite the transmission of the latter ’s orders to the municipality in question , the latter had failed to take any action .

NORP By letter of DATE ORG invited ORG of PERSON to issue the municipality with a final warning on the need to comply with its orders , failing which action would be taken against all persons failing to comply with their obligations under LAW .

On DATE ORG reminded ORG of GPE that section CARDINAL of ORG prohibited amendments to urban planning schemes geared to legalising buildings which failed to comply with their building permits , and in fact required the authorities to correct any incompatibility with those permits .

During TIME CARDINAL DATE the GPE region , located on the coast of LOC , was hit by an earthquake of a magnitude of CARDINAL on the Richter scale . The earthquake was CARDINAL of the deadliest to hit GPE in DATE . According to official statistics , it killed CARDINAL persons and injured CARDINAL .

CARDINAL buildings were destroyed in the municipality of GPE , QUANTITY of them in the so - called Çamlık sitesi and Kocadere sitesi estates . On those estates QUANTITY persons lost their lives and CARDINAL of others were injured as their dwellings collapsed .

PERSON , the mother of PERSON and Mr PERSON , PERSON and PERSON , the parents of PERSON ( GPE ) , PERSON , the son of PERSON and PERSON , ORG , the son of PERSON and PERSON , and PERSON , the son of PERSON , were buried under the rubble of the blocks of flats in GPE , where they had been when the earthquake struck . PERSON was himself trapped beneath the rubble for TIME . PERSON ( GPE ) was injured , and personally rescued her daughter from the debris . PERSON had also been trapped under the rubble for TIME .

According to a medical report of CARDINAL DATE drawn up by a doctor working at the LOC hospital , PERSON had been placed under observation : he had suffered burns to various parts of his body and display whole - body trauma and respiratory problems .

On DATE the NORP public prosecutor visited PERSON together with technical experts and officers from ORG . On DATE official inspection reports were drawn up on the PERSON estate , covering allotment DATE , plot CARDINAL , sections C , D and E , allotment CARDINAL , plot CARDINAL , and allotment CARDINAL , plot CARDINAL , section E. It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted , in particular , that the concrete contained mussel shells , that the material used for the construction had been sea - sand based and that as a result the cement had lost its binding capacity .

On DATE the NORP public prosecutor and a group of technical experts visited the ORG estate . On DATE they drew up official reports on allotment CARDINAL , plot CARDINAL , allotment CARDINAL , plot CARDINAL , section D , and allotment CARDINAL , plot CARDINAL . It transpires from these reports that the experts took samples from the buildings which had been destroyed or affected by the earthquake and noted , in particular , that the concrete contained mussel shells , that the concrete displayed a very poor granulometry , that the concrete had not been cured , that the metal brackets in the buildings had not been properly fastened to the columns , and that because of the corrosion of the brackets the iron had worked loose from the concrete .

NORP Moreover , on DATE PERSON had requested that the ORG determine , on the basis of the evidence gathered , the causes of the collapse of building DCARDINAL on allotment CARDINAL , plot CARDINAL , in the Çamlık estate , under whose rubble her mother had died , and establish the relevant responsibilities . An expert opinion was commissioned to that end on DATE .

On DATE the expert opinion commissioned set out the following findings :

( d ) Defects noted upon examination of the collapsed building , the rubble and the construction blueprint .

The height of the building was increased by QUANTITY by raising the basement above ground level , thus transforming it into the ground floor .

NORP The foundations of the building were raised to soft ground ( topsoil ) level , which had low stability in terms of ground safety stress ; the stability calculations ... were at no point revised .

NORP The overall weight of the building was increased by the addition of an extra storey as compared with the number of storeys set out in the blueprint ...

Neither the basement included on the plan , whose existence would have greatly increased earthquake resistance , nor the reinforced concrete retaining walls , which , according to the plans , were to have surrounded the basement , were ever built .

NORP The mussel shells found in the pieces of concrete in the rubble showed that the sea sand and gravel had been used without sifting or sorting , which had been a major factor in diminishing the concrete ’s resistance .

It was noted that the reinforcing rods inside the concrete had rusted , suggesting that sea sand and gravel had been used unwashed and that the sea salt had corroded the metal .

The broken beams found in the rubble showed that the CARDINAL distances between the brackets had not been respected , and in some places the interstices measured QUANTITY ...

... The stress testing carried out on the samples showed that their stress resistance was CARDINAL what it should have been .

In conclusion : ... The building was constructed without any kind of technical control ; another storey in addition to the number of storeys mentioned in the blueprint was added at the owner ’s request in order to increase the number of housing and commercial units . Furthermore , the fact that the municipality failed to stop the building work raises issues . It is therefore necessary to ascertain whether a permit was issued for the building ’s shallow foundations , which were , in fact , incompatible with the blueprint as from the first storey . If such a permit was issued , it is necessary to identify the persons working for the municipality who approved that permit and whether or not an occupancy permit was granted by the Çınarcık municipality . If so , it is necessary to establish the identities of the signatories of that occupancy permit . It is possible that other blocks have been built without inspection by the Çınarcık municipality . The photographs taken show buildings with CARDINAL storeys above ground level and others with CARDINAL storeys . It is therefore necessary to establish the reasons for this architectural disparity and the regulations applied to the construction . ”

On DATE the NORP public prosecutor took statements by ORG , the real estate developer responsible for buildings which collapsed in GPE . PERSON stated that he had been working in the real estate field for DATE and that he had constructed numerous buildings with his partnership , the company ORG , and with the company PERSON . He agreed to shoulder responsibility for the shortcomings in the buildings which he had erected himself , but not for the defects relating to other buildings in which individuals had died during the earthquake and which he had merely sold . He also submitted that the buildings located on allotment CARDINAL , plot CARDINAL , section D , allotment CARDINAL , section C , and allotment CARDINAL , plot CARDINAL , section D , had been constructed by GPE and GPE He did not know who had constructed the buildings in the PERSON estate which had collapsed . He added that he was neither a construction engineer nor an architect , and that was why he called on the services of persons with expert knowledge of these fields , who should , in his view , be held responsible .

V.G. was remanded in custody DATE .

On DATE the NORP public prosecutor charged CARDINAL individuals : the partners in the company PERSON , to wit V.G. , GPE and GPE , and also the company ’s scientific officers , to wit PERSON and PERSON They were charged with having caused , through negligence and recklessness , the deaths of CARDINAL persons , buried under the rubble of CARDINAL buildings which they had constructed in breach of the relevant norms . It transpired from the indictment that several site sections – section E on allotment DATE , sections C and D on allotment DATE , and sections A , C , D and E on allotment DATE had been built in GPE , on FAC , and that CARDINAL buildings , which had totally collapsed , had been erected in the ORG estate , on GPE square , on allotments DATE and CARDINAL . It also transpired from the indictment that the experts who had taken samples from the collapsed buildings had , in particular , found as follows : in the buildings in question , the iron brackets had not been tightened at the interstice between the beams and the columns ; mussel shells had been found in the concrete , resulting in low resistance owing to the use of sea sand and sea gravel ; the distance between the columns and the beam brackets was QUANTITY in places ; and there was insufficient iron in some of the columns .

Criminal proceedings were commenced before ORG .

In DATE İ.K. , PERSON and PERSON were remanded in custody in absentia by ORG .

On DATE Z.C. was remanded in custody .

On DATE the NORP public prosecutor wrote to ORG of ORG to inform it of the following facts : a large number of articles had been published in the local and national press about PERSON ; given the very large number of deaths involved , the trial would be attended by many journalists and also numerous relatives of the victims ; there was likely to be a very tense atmosphere during the hearings ; PERSON prison had been closed following the earthquake and the prisoners were therefore housed in the ORG prison ; the courtroom would be too small for the number of persons attending proceedings ; there were credible risks of the accused being abducted or murdered ; and any preventive measures which the security forces would be able to put in place would be insufficient , such that it would be better to transfer the case to a different court .

On DATE ORG of ORG invited ORG with ORG to transfer the case from ORG to a different criminal court pursuant to LAW in fine of LAW , in order to guarantee public security during the proceedings .

On DATE , before the start of proceedings before ORG , ORG , to whom the matter had been referred , decided to transfer the case to ORG for reasons of security during the proceedings and of the accused ’s safety .

On DATE , therefore , ORG transferred the case file to ORG .

On DATE Mr PERSON applied to join the proceedings as a third party . On DATE PERSON and PERSON PERSON also applied to join the proceedings as third parties , and declared that they reserved their rights as potential civil parties .

On DATE Mr and PERSON and PERSON and PERSON lodged similar applications , and PERSON reiterated his request .

On DATE Mr PERSON forwarded a memorial requesting the criminal conviction of ORG and his partners and stating that he reserved his rights vis - à - vis claiming compensation for the pecuniary and nonpecuniary damage which he considered he had sustained .

On DATE , after the case had been transferred to ORG , Mr PERSON once again applied to take part in proceedings as a third party , and declared that he reserved his rights as potential civil party to proceedings . PERSON ( Ergüden ) also applied to take part in the criminal proceedings as a third party . Similarly , counsel for PERSON and Mr PERSON submitted a third - party application on behalf of each of her clients .

On DATE Mr and PERSON applied to participate in proceedings , reserving their rights as potential civil parties . They submitted that they had sustained serious mental suffering and also pecuniary damage as a result of the loss of their son . PERSON and PERSON also lodged a thirdparty application . Mr PERSON was heard as a victim , and he gave evidence against the accused . Counsel for PERSON requested the admission of his client ’s application to take part in proceedings . At the conclusion of the hearing held on DATE , ORG admitted that thirdparty application .

On DATE ORG examined Mr and PERSON third - party application , and noted that their son ’s name was not on the list of deceased victims set out in the indictment . The court therefore requested submissions from those CARDINAL applicants , including fresh information on the deceased persons . In a memorial of DATE , PERSON and PERSON requested that charges be pressed against the officials allegedly responsible for the impugned acts .

During the hearing of CARDINAL DATE ORG questioned the victims , the accused and their lawyers . PERSON was examined in his capacity as a third party , and he requested the conviction of the accused and the commencement of proceedings the municipal officials in question .

According to the official record of the hearing held on DATE , PERSON , PERSON ( GPE ) and PERSON had been examined as third parties : PERSON had demanded the conviction of the accused and also requested that charges be brought against the official in question in the framework of those proceedings ; and counsel for PERSON had also demanded the conviction of those officials . At the conclusion of the hearing , ORG was asked for information on the measures adopted by his ORG regarding the provincial officials , as well as those working in the GPE municipality and ORG . Furthermore , GPE and GPE were released on parole .

On DATE Mr PERSON once again requested the prosecution of the Mayor of PERSON and of the municipal Head of ORG and GPE . PERSON and PERSON were granted third - party status in the proceedings .

On DATE Mr Erdoğan was granted third - party status in the proceedings . PERSON was heard CARDINAL party , and he requested an additional indictment in order to involve in the proceedings the municipal officials who had authorised the construction of the buildings which had collapsed . Counsel for PERSON reiterated a request previously submitted for provisional measures covering all of ORG ’s assets .

On DATE , during the proceedings , the NORP public prosecutor once again charged the CARDINAL accused persons with having caused the deaths of several other persons through negligence and recklessness .

On DATE CARDINAL experts from ORG prepared a report on their inspection of CARDINAL buildings which had collapsed , CARDINAL of them in the LOC estate and CARDINAL in the ORG estate .

The conclusions of this expert report read as follows :

“ Tectonics and seismic activity in the region between Çınarcık et Yalova

... This region is one of the most dangerous in seismic terms , which is why it has been marked out as a major hazard area on the map of NORP seismic regions .

Impact of the GPE earthquake of DATE on the region between GPE and GPE

The CARDINAL DATE earthquake , which was of a magnitude of CARDINAL on the Richter scale and whose epicentre was at GPE , created a CARDINAL - long superficial fault from PERSON to PERSON ... The fault segment was interrupted at a distance of QUANTITY from GPE ... The primary causes of the destruction were the nature of the soil and the quality of the construction methods .

Conclusions

The coastal zone between GPE and GPE is an extremely dangerous region in seismic terms ... The PERSON estate , which collapsed , had been built on an active rockslide area and on particularly soft soil . In such a high seismic risk region there can be no valid reasons for issuing building permits for six- or QUANTITY buildings on such soft soil . Moreover , the fact that QUANTITY building located QUANTITY away in the LOC estate which had been erected on soil with similar characteristics were not damaged and that people are still living in them support the hypothesis that the buildings in the PERSON estate had building defects .

Appraisal of the blueprints and the permits

Assessment of the blueprints showed the absence of documents attesting that soil studies had been carried out on the land where the buildings were to be constructed ...

Expert reports included in the case file

The expert appraisals commissioned by the NORP public prosecutor ... highlighted the following shared defects :

– Concrete resistance was unsatisfactory . The granulometric composition of the aggregates used for the concrete was inadequate and the concrete contained mussel shells . It was established that the cement dosage had been insufficient and that the sand had not been properly cleaned .

– The metal brackets on the load - bearing parts had not been reinforced and the anti - rust fixtures [ paspayı ] were unsatisfactory ... Incipient corrosion on some of the reinforcing rods had weakened their adherence to the concrete .

– The softness of the soil was established .

Establishing the responsibility of the accused persons and conclusions

The owner and developer of all the impugned buildings [ which ] collapsed during the CARDINAL DATE earthquake is the “ PERSON ofisi ” partnership . The founding partners of that company are GPE , GPE , C.G. ... Assessment of the evidence and documents contained in the case file shows that FAC was the actual organiser [ of the project ] ... For this reason PERSON ’s responsibility is estimated at CARDINAL .

The responsibility of the public authorities which allowed the urban development of the LOC and NORP neighbourhoods , authorised the multi - storey buildings there without commissioning the requisite prior geological studies , failed to provide for satisfactory supervision of the projects in the area , failed to request studies of the soil ... , failed to prevent the defective concrete - manufacturing procedures [ and ] failed to monitor the work of those responsible for the technical applications is estimated at CARDINAL .

PERSON ’s responsibility is set at CARDINAL.CARDINAL/CARDINAL and Z.C. ’s at CARDINAL.CARDINAL/CARDINAL ...

PERSON ’s responsibility is set at CARDINAL on the grounds that he was a partner in the FAC company , but also because he was responsible for the architectural and structural design of CARDINAL buildings and for the relevant technical applications ...

PERSON ’s responsibility is set at CARDINAL because he was responsible for the architectural and structural design of CARDINAL buildings and for the relevant technical applications .

On DATE ORG , to which the case had been referred following the indictment of DATE ( see paragraph CARDINAL above ) , found that a similar action against the accused was pending and therefore requested the joinder of the CARDINAL sets of proceedings .

On DATE ORG declined jurisdiction to adjudicate the impugned acts in view of the nature of the offence in question ; the case was then referred to ORG .

DATE and DATE ORG held CARDINAL hearings .

At the hearing on DATE ORG pointed out that transferring the case to GPE was against the procedural regulations and in breach of the rights of the third parties . He stated that the security grounds advanced for that transfer had lapsed and that the proceedings should therefore have continued in GPE , where the offence had been committed . The applicants also applied for the setting aside of the transfer order in question , submitting that the security grounds advanced no longer applied . On DATE ORG rejected the application , pointing out that pursuant to the case - law of ORG the case had to remain before the court to which it had been transferred even if the grounds for the transfer no longer applied . Counsel for PERSON , PERSON , PERSON and PERSON , and PERSON and PERSON presented their case during the hearing .

DATE . On DATE ORG remanded PERSON in custody .

On DATE ORG wrote to the GPE public prosecutor requesting the preparation of a further expert report , complementing that of DATE , on the ruins of the buildings in question in order to establish whether their mode of construction had been in conformity with the original blueprints and whether the materials used had complied with the usual standards .

On DATE PERSON gave evidence . She stated that she had lost her mother during the earthquake and had dug her own child out of the rubble . She also submitted that the accused had not been the only parties criminally responsible for the impugned acts , as various municipal officials and members of ORG responsible for the technical oversight of the constructions in question had also been guilty . Counsel for that applicant stated that he had heard , through unofficial channels , that the decision had been taken to broaden the investigation in order to establish the municipal officials’ responsibility , and he requested information on whether a decision had been taken to prosecute the Mayor of Çınarcık and the official in question . During DATE hearing PERSON also gave evidence as a third party , as did another person , who stated that ORG had adopted a decision on DATE to the effect that the Mayor of Çınarcık could not be prosecuted ( see paragraph CARDINAL below ) .

On DATE PERSON was once again remanded in custody .

On DATE and DATE ORG wrote to ORG of PERSON , asking , in particular , whether any action had been taken against the Mayor of PERSON and the other officials liable to be held responsible for the consequences of the earthquake .

On DATE V.G. and PERSON were released on parole . In a memorial of DATE , PERSON and PERSON PERSON requested the indictment of the officials whose responsibility had been engaged for the impugned acts . Mr PERSON also submitted a memorial requesting the conviction of the accused and the prosecution , in the framework of the ongoing criminal proceedings , of the Mayor and the Head of Technical Service and Architecture of Çınarcık municipality .

At the hearing on DATE Mr PERSON read out the minutes of meetings of ORG which , in his view , established that the buildings in the zone at issue had been constructed without prior authorisation . He once again submitted that the municipality and the officials had been responsible for what had happened .

On DATE ORG noted that the authorisation for a criminal investigation of the Mayor of Çınarcık and other officials ( see paragraph CARDINAL below ) previously issued by ORG had been set aside by ORG ( see paragraph CARDINAL below ) and that ORG had adopted an opinion to the effect that there was no need to bring proceedings .

In a memorial of DATE Mr PERSON requested the commencement of proceedings against the Mayor of PERSON and ORG , suggesting that they should be tried in the framework of the criminal proceedings in hand on the ground that they had turned a blind eye to the construction of the impugned buildings .

On DATE ORG of ORG prepared a document for ORG mentioning the following points : ( a ) ORG CARDINAL DATE decision to authorise a criminal investigation had been cancelled on DATE by ORG , which meant that no action had been taken against the officials in question ( see paragraph CARDINAL below ) ; ( b ) a report on an inquiry authorised by ORG on DATE had also concluded that there were no grounds for proceedings against the officials in question ( see paragraph CARDINAL below ) ; and ( c ) another report on an inquiry authorised by ORG on DATE had concluded that there was no need to prosecute the officials in question ( see paragraph CARDINAL below ) .

At the hearing on DATE ORG noted that the document from ORG had been read and added to the case file .

In a claim submitted on DATE Mr PERSON demanded a certain sum in respect of procedural expenses for the transfer of the case to GPE , and reserved his rights as regards that outlay .

On DATE he repeated his request for the indictment of the officials whose responsibility had been engaged .

On DATE PERSON and Mr PERSON submitted a memorial on the merits in which they relied on LAW to complain of unfair proceedings and an infringement of the “ natural judge ” principle owing to the transfer of the case to GPE and a breach of the right of prosecution . They considered that their inability to obtain leave of prosecution under LAW and other LAW ( “ Law No . DATE ” ) with regard to the municipal officials in question was contrary to the principle of equality before the law , as well as Articles DATE and CARDINAL of the Convention .

On DATE ORG ordered the separation of the case in hand from that concerning PERSON and PERSON on the ground that the latter CARDINAL accused persons had been untraceable for DATE , thus delaying the proceedings .

On DATE a joint memorial was lodged with the registry of ORG by PERSON and PERSON and PERSON and PERSON , declaring that they reserved their rights to claim civil damages in the criminal proceedings . PERSON ( GPE ) lodged a third - party memorial stating that owing to the deficiencies and delays in the civil and criminal proceedings the shares held in the accused ’s company had been sold off , which she considered as jeopardising the chances of success for any future action for damages . She also pointed out that the Mayor of Çınarcık had been given a CARDINAL DATE prison sentence for the architectural practices implemented in the PERSON estate ( see paragraph CARDINAL below ) , and that he had been removed from office .

On DATE PERSON was remanded in custody .

On DATE a fresh expert report was prepared at ORG request . According to the report , ORG had been issued with CARDINAL different building permits , CARDINAL blocks had been built in GPE for which no occupancy permit was to be found in the assessment file , and QUANTITY persons had died buried in the rubble of those buildings , CARDINAL of them in the LOC estate , CARDINAL in the ORG estate and CARDINAL in the ORG estate . It also transpired from that report that PERSON had been responsible for the architectural project regarding the buildings in the PERSON estate , on allotment DATE , plot CARDINAL , allotment CARDINAL , plot CARDINAL and allotment CARDINAL , plot CARDINAL , and that PERSON had been in charge of the architectural project regarding the buildings in the ORG estate , on allotment CARDINAL , plot CARDINAL , allotment CARDINAL , plot CARDINAL , and allotment CARDINAL , plot CARDINAL . The report also specified that the V.G. company , in which GPE and GPE had been partners , had been responsible for the construction of all those buildings .

On DATE ORG presented the prosecution case on the merits . He submitted that CARDINAL persons had died in the estates built by ORG : CARDINAL persons had been killed on allotment DATE , plot CARDINAL , allotment DATE , plot CARDINAL , and allotment CARDINAL , plot CARDINAL , and CARDINAL other persons in other buildings . Those deaths had been caused not by the earthquake alone but also by the actions of the accused , who had used deficient materials with full knowledge of the risks involved . He demanded the conviction of the accused pursuant to Articles DATE and CARDINAL of LAW , insisting that the sentence should be delivered CARDINAL times , CARDINAL for each of the building permits issued .

On DATE ORG found the accused ORG , GPE and GPE guilty of endangering the lives of others through negligence and recklessness and , pursuant to Article PERSON of LAW , sentenced each of them to DATE imprisonment without parole and DATE and CARDINAL months’ imprisonment , and to a fine of MONEY ( TRL ) . ORG gave the following reasons :

“ ... The investigations conducted on the sites and the expert reports drawn up both during the preliminary investigation and during the criminal proceedings showed that the buildings which collapsed as a result of negligent , virtually intentional , acts had been built in breach of many current legal obligations . Even though the area in question had been classified as a major seismic hazard zone , no soil studies had been carried out on the worksites . The concrete , metal and other materials used lacked the necessary resistance . A large number of obligations set out in the blueprint were breached . The buildings thus constructed collapsed under the impact of the earthquake , and those holding responsibility for the collapse of the buildings had made no attempt to avert danger and [ offset ] the unlawful acts committed , such that a direct causal link was established between the negligent acts and the consequences of the collapse of the buildings .

... The provisions relating to the concurrence of offences are applicable to this case ... The present proceedings concern CARDINAL different building permits ... Consequently , the accused were held responsible for CARDINAL different events .

Having regard to the lists drawn up by the Governor of GPE district and by the GPE municipality ... CARDINAL persons lost their lives on plot no . CARDINAL , allotment DATE ( CARDINALst section ) , CARDINAL on plot no . CARDINAL , allotment CARDINAL ( CARDINALnd section ) , DATE on plot no . CARDINAL , allotment DATE ( CARDINALrd section ) and CARDINAL on plot no . CARDINAL , allotment CARDINAL ( blocks A and B ) . It has not been established with certainty whether there were any deaths on the other plots . Where it was established that there were deaths , it was also established that buildings collapsed . Therefore , it must be acknowledged that in those buildings people ’s lives had been jeopardised . Consequently ... the sentencing procedure must involve applying to each of the accused the final sentence of Article CARDINAL of LAW , multiplied by CARDINAL , as regards the deaths which occurred in CARDINAL zones covered by a permit . As regards the CARDINAL zones covered by a permit where no loss of life could be established , the first section of Article CARDINAL of LAW , multiplied by CARDINAL , must be applied .

All the buildings were constructed by the real estate developer , that is to say the ‘ ORG ... At the material time the CARDINAL accused persons GPE and PERSON had been partners in that company . The accused person PERSON had also been a partner in the company in respect of the buildings covered by permits . GPE had also been the owner of CARDINAL buildings covered by permits . Insofar as GPE was involved in the construction of the buildings , he must be held responsible for all the relevant actions ... Even though permits had indeed been issued for all the building lots , none of them was covered by an occupancy permit , that is to say a permit for utilisation . In this context , since at the time of the offence the company and its partners were still under the obligation to correct the shameful [ defects ] in the buildings , [ they ] are also criminally liable for the collapse of the latter owing to these disgraceful [ defects ] throughout the whole period ...

As already stated above , the consequences of the impugned acts amounted to a disaster . Solely because of those acts , QUANTITY persons lost their lives and pecuniary damage was sustained to an extent which is difficult to quantify . The accused bear enormous responsibility for those consequences . As highlighted by the expert reports , using such construction methods in a PERCENT earthquake risk zone really was a recipe for disaster ... ”

DATE . On DATE İ.K. was also found guilty of homicide and bodily harm through recklessness . He was sentenced to CARDINAL years’ imprisonment without parole and DATE and CARDINAL months’ imprisonment , and to a fine of FAC .

The accused appealed on points on law .

By judgment of DATE delivered on DATE ORG set aside the convictions of GPE , GPE and GPE on the following grounds : the fact that a judge had failed to sign TIME hearing ; conviction for the collapse of a building on allotment DATE , plot CARDINAL , which was not mentioned in the indictment ; the failure to read out the CARDINAL DATE indictment before taking statements from the accused ; and the entry into force of the new LAW .

By judgment of DATE delivered on DATE ORG also set aside PERSON ’s conviction on the following grounds : the conviction for the collapse of a building on allotment DATE , plot no . CARDINAL was not mentioned in the indictment ; CARDINAL judge had failed to sign TIME hearing ; the criminal prosecution of GPE should have been joined to that of the other accused persons ; and the new LAW had come into force .

DATE and DATE ORG , to which the case had been referred back by ORG after the setting aside of the DATE judgment , held QUANTITY hearings . The preparatory report for DATE hearing included the applicants’ names in the list of third parties to the proceedings .

On DATE ORG ordered the joinder of the criminal proceedings against GPE with those pending against ORG , GPE and GPE

On DATE ORG decided to separate the proceedings against the accused GPE and GPE untile they were arrested .

On DATE ORG sentenced ORG and DATE and CARDINAL months’ imprisonment and to a fine of TRY CARDINAL . PERSON , PERSON ( GPE ) , PERSON , PERSON PERSON and PERSON and PERSON Erdoğan were mentioned as third parties to the proceedings . PERSON and PERSON were mentioned as complainants . In its statement of reasons ORG pointed out that the buildings in GPE had been destroyed by the earthquake , but that it had transpired from the inspections carried out both during the preliminary investigation and during the proceedings that the buildings which had collapsed had been constructed in breach of numerous legal obligations . ORG further emphasised the following : even though the stricken zone was classified as a level - CARDINAL earthquake hazard area , the buildings had been constructed without any prior soil testing ; the construction material used had been low - quality and the concrete had not been solid ; the buildings erected had been destroyed under the impact of the earthquake ; the accused had acted negligently , which had contributed to the destructive events ; and there was a direct causal link between the destruction and the loss of life . ORG further held that the provisions relating to the concurrence of offences were applicable to the case , that each building project implemented in accordance with a building permit had constituted an offence and that the instant case concerned CARDINAL permits , namely allotment DATE , plot CARDINAL , allotment CARDINAL , plot CARDINAL , and allotment DATE , plot CARDINAL in LOC , and allotment CARDINAL , plot CARDINAL and allotment CARDINAL , plot CARDINAL in GPE . It was also noted that no proceedings concerning allotment DATE , plot CARDINAL had been brought before ORG . As regards the lists drawn up by the Governor of LOC and GPE , ORG explained that CARDINAL persons had lost their lives on allotment DATE , plot CARDINAL ( CARDINALst section ) , CARDINAL on allotment DATE , plot CARDINAL ( CARDINALnd section ) , QUANTITY on allotment DATE , plot CARDINAL ( CARDINALrd section ) and CARDINAL on allotment CARDINAL , plot CARDINAL ( blocks A and B ) . It pointed out that it had been impossible to establish whether any deaths had occurred on the other plots , but that it had been established that the dwellings on those plots had been inhabited , thus placing the inhabitants in mortal danger . ORG also noted the following : the V.G. PERSON company had been responsible for all the buildings constructed on those plots ; at the material time V.G. and PERSON had been partners in that company and GPE had been involved in obtaining the permits for the buildings ; even though permits had been issued for the buildings in question , none of them had been covered by an occupancy permit , such that the building company and the various partners held criminal responsibility for the events .

DATE . The accused appealed on points of law .

On DATE ORG adopted a decision to transmit the case to the public prosecutor with ORG so that he could submit his opinion on that appeal . The cover page of the decision bore the inscription “ Detainees – statute limitation period expiring soon ” .

In a memorial of DATE PERSON asked ORG to confirm the first - instance conviction , under urgent procedure , on the ground that the offence would shortly be statute - barred .

On DATE ORG confirmed ORG ’s conviction . It also partly upheld PERSON ’s conviction , invalidating it as regards PERSON ’s responsibility for the destruction that had taken place on allotment CARDINAL , plot no . CARDINAL , on the ground that it was unlawful to convict that accused person without having regard to the lack of evidence regarding his status as a technical officer or as a partner in the company responsible for erecting the building in question .

On DATE ORG adopted CARDINAL decisions discontinuing the criminal proceedings against PERSON and PERSON on the grounds that they had become statute - barred . The proceedings against GPE were also terminated , on an unknown date , on the same grounds .

On DATE ORG , to which the case had been referred , discontinued the criminal proceedings against ORG as regards his responsibility for the destruction that had taken place on allotment CARDINAL , plot CARDINAL , on the grounds that they had become statute - barred . The applicants’ names were included as third parties in the decision .

On DATE the public prosecutor with ORG , examining an appeal lodged by ORG and GPE against the judgment of DATE , held that that appeal had been lodged unnecessarily .

Previously , on DATE , the Governor of PERSON had stated that the Mayor and ORG should be prosecuted under LAW and CARDINAL of the Penal Code for failing in their duties and abusing their authority . The Governor accused them , in particular , of having , DATE , altered the urban planning schemes and turned a blind eye to the erection of illegal buildings , and of having failed to demolish the latter and to impose the relevant fines .

On DATE ORG , having been applied to by the accused persons , transmitted the case file to ORG with a view to prosecuting the offence under LAW .

On DATE , in the framework of the proceedings thus instigated , ORG found the accused guilty as charged . It was satisfied that the Mayor had authorised , under a decision taken by ORG on DATE , alterations to the urban planning schemes in a manner contrary to normal procedure – which action falls foul of LAW – but that in view of the nature of the offence and the penalty incurred the imposition of a final penalty should be suspended , pursuant to section CARDINAL [ CARDINAL ] Law No . DATE concerning release on parole and stay of proceedings and penalties for offences committed before DATE . ORG considered the DATE adoption by ORG of a decision setting aside the aforementioned CARDINAL DATE decision before it could be enforced as a mitigating circumstance : it changed the penalties imposed on the Mayor to CARDINAL months’ imprisonment , under Article CARDINAL/CARDINAL of LAW , and a FAC fine . In view of the Mayor ’s behaviour during the proceedings , those penalties were reduced to CARDINAL months’ imprisonment and a fine of GPE CARDINAL . The Mayor was also found guilty of having abused his authority by once again altering the planning schemes in breach of procedure , under a ORG decision of DATE , and he was therefore sentenced to DATE imprisonment pursuant to LAW and fined ORG , which penalties were then reduced to CARDINAL months’ imprisonment and a fine of GPE CARDINAL . He was also found guilty of having failed to enforce the fines imposed pursuant to LAW , as ordered by ORG on DATE . Furthermore , he was sentenced to DATE imprisonment and fined GPE CARDINAL for having failed to ensure the destruction of the unlawful worksites , which penalties were then reduced to CARDINAL months’ imprisonment and a fine of GPE CARDINAL .

The court also found the CARDINAL accused guilty of having failed to halt the works performed in a manner inconsistent with the corresponding building permits , of having failed to take action to ensure the demolition of the unlawfully erected constructions and of having abused their authority . Each of the accused was consequently sentenced to DATE imprisonment and fined TRL CARDINAL , subsequently reduced to CARDINAL months’ imprisonment and a fine of GPE CARDINAL .

In all , the Mayor of PERSON was sentenced to QUANTITY - given months’ imprisonment and fined TRL CARDINAL , and ORG was sentenced to CARDINAL months’ imprisonment and fined GPE CARDINAL , which penalties were suspended .

On DATE ORG upheld that judgment .

On DATE ORG adopted a decision authorising the instigation of a criminal investigation under LAW against the former and current ORG , the former and current municipal ORG , as well as the architect and an official working in ORG , the last CARDINAL having admitted that they had at no stage inspected the worksite after the laying of the foundations of the buildings in LOC , allotment CARDINAL , plot CARDINAL , block E , allotment CARDINAL , plot CARDINAL , blocks C and D , and allotment CARDINAL , plot CARDINAL , blocks A , C , D and E , and the buildings in GPE , allotment CARDINAL , plot CARDINAL , block D , allotment CARDINAL , plot CARDINAL , block D and allotment CARDINAL , plot CARDINAL , block D.

On DATE PERSON and Mr PERSON applied to ORG for identification of the officials who had failed in their duties of inspection and supervision of the impugned buildings . Relying on the conclusions of the expert report of CARDINAL DATE ( see paragraph CARDINAL above ) , they also requested a prosecution order against them . They submitted that their aim was to shed light on the whole chain of responsibilities , emphasising that the Mayor of GPE , ORG and the technical and administrative staff responsible for inspection and supervision should also be prosecuted and placed on trial pursuant to section CARDINAL of LAW ( Law No . CARDINAL ) . The CARDINAL applicants considered that the municipality had turned a blind eye to the construction of buildings that fell short of the legal requirements . They also reiterated that the construction area in question had been classified as a “ major earthquake hazard zone ” , and complained that the municipality had authorised excessively high buildings on unstable ground . Finally , it was necessary to establish the responsibility of the GPE municipality on the ground that the area at issue had been part of that municipality at the time of the construction of the buildings and the submission of the architectural plans .

On DATE ORG , examining an appeal lodged by the individuals concerned by the authorisation of criminal investigation issued by ORG ( see paragraph CARDINAL above ) and acting under LAW No . DATE ( see Relevant domestic law , paragraph CARDINAL below ) , lifted the criminal investigation authorisation issued by ORG . ORG held that responsibility should be attributed to the specialists who had planned the building project , emphasising that many of the buildings destroyed on CARDINAL DATE had not been covered by occupancy permits .

On DATE the CARDINAL aforementioned applicants applied to ORG . On the basis of new evidence they reiterated their application for the prosecution of the officials in question . They submitted that , in the light of the new evidence in question , those officials could not be charged with mere negligence , and that their actions had amounted to abuse of authority .

On DATE a review report was drawn up as authorised by ORG on DATE , geared to ascertaining whether the failure to react to and verify the addition of extra storeys to several buildings – those located in LOC , allotment CARDINAL , plot CARDINAL , block E ; allotment CARDINAL , plot CARDINAL , blocks C and D ; and allotment CARDINAL , plot CARDINAL , blocks A , C , D and E ; and in GPE , allotment CARDINAL , plot CARDINAL , block D DATE which had been effected in breach of the corresponding building permits , had amounted to a breach of professional duties by the former and current Mayors of Çınarcık , the former and current municipal Heads of Applied Science , as well as the architect and a member of the technical services staff . The report concluded that there had been no need to prosecute the actions in question as they had been in conformity with usual procedure ; consequently , no proceedings were brought against the aforementioned persons .

On DATE PERSON and Mr PERSON once again applied to ORG for information on the action taken on their various complaints , pointing out that their requests for the prosecution of the officials had been unsuccessful and that no preliminary inquiry had yet been launched into the facts of which they had complained .

On DATE a further review report was prepared as authorised by ORG on DATE . That report found that there had been no need to take action against the officials in question for having authorised QUANTITY buildings .

On DATE the above - mentioned ORG replied to the application of DATE ( see paragraph CARDINAL above ) . It first of all reiterated that the decision taken by ORG authorising an investigation had been cancelled by decision of ORG DATE . It went on to explain that in reply , in particular , to the application of DATE ( see paragraph CARDINAL above ) , a preliminary examination had been conducted as authorised by ORG on DATE , concluding that the issue at stake had already been decided , that ORG had cancelled the authorisation of investigation and that there was therefore no need for action against the individuals in question . Finally , it pointed out that , having regard to the ORG new allegations , a further authorisation of examination had been adopted on DATE ( see paragraph CARDINAL above ) .

On DATE , relying on section CARDINAL of LAW ( Law No . CARDINAL ) and pointing to the existence of new evidence , the applicants applied to ORG to set aside the decision of DATE ( see paragraph CARDINAL above ) and to reopen proceedings .

On DATE ORG dismissed that application , without consideration of the merits , on the grounds that no appeal lay from the contested decision , referring in that regard to sections CARDINAL ( h ) and CARDINAL of Law No . DATE ( see Relevant domestic law , paragraph CARDINAL below ) .

On DATE , the applicants once again applied to ORG , submitting that they had not appealed against the decision of CARDINAL October CARDINAL cancelling the authorisation of a criminal investigation but had applied for the reopening of proceedings pursuant to LAW ( Law No . CARDINAL ) , which was a different remedy . They reiterated their request to that effect .

On DATE ORG dismissed that request , having noted that the proceedings in question had been conducted pursuant to LAW No . DATE , which did not provide for reopening proceedings .

On DATE , examining an appeal lodged by PERSON and PERSON PERSON against the DATE report ( see paragraph CARDINAL above ) , ORG dismissed that appeal , without considering the merits , on the grounds that it concerned a decision from which no appeal lay .

On DATE PERSON and Mr PERSON applied to ORG ( “ the ORG ” ) . They submitted that the transfer of the criminal proceedings from the scene of the earthquake ( PERSON ) to GPE was in breach of the “ natural judge ” principle and infringed the GPE right of appeal . They also complained of shortcomings in the assessment of the applications for the prosecution of the officials involved in the case .

On DATE ORG noted that the Commission responsible for the investigation and appraisal of human rights violations had prepared a rapport on the impugned facts concluding that there had been compelling reasons for changing the trial venue , as provided for in LAW , and had not breached any human rights . Similarly , according to the findings of the report , the cancellation by ORG of the authorisation of investigation against the official whose responsibility had been engaged and the refusal to reopen the proceedings had not been contrary to human rights . Furthermore , ORG pointed out that according to the same report , the complainants could have lodged an application with ORG .

ORG also noted that a member of the Commission responsible for the investigation and appraisal of human rights violations had set out the following additional observations :

“ CARDINAL . The increase in the number of storeys without the authorisation of ORG and the amendments to the architectural plans , as well as the failure to comply with the architectural plans concerning the ‘ high - risk’ nature of the zone , amount to an infringement of the right to life ;

The transfer , on security grounds , of the case to GPE rather than to a province closer to GPE violated the GPE right to a judge and their right of appeal . ORG has to provide financial assistance to the complainants so that they can follow the proceedings ...

The following constitute human rights violations : the inability , following the cancellation by ORG of the authorisation of investigation under Law No . DATE , to secure , [ on the basis of ] the new evidence submitted , the re - examination of the impugned facts [ and ] and the reopening of the proceedings ... [ The same applies to ] the lack of a right of appeal for the complainants following the cancellation of the authorisation of prosecution of the officials . ”

On DATE the Office of the Governor of PERSON wrote to counsel for the applicants to inform her of that decision , transmitting a copy thereof .

On an unknown date PERSON and PERSON had lodged with ORG an action for damages against ORG , the Mayor of GPE , ORG and the Mayor of GPE ( GPE ) , seeking compensation for the pecuniary and nonpecuniary damage which they had sustained . They had submitted that the administrative authorities charged in the proceedings had authorised building in major earthquake hazard zones , failing to use appropriate construction techniques , and that they had issued building and occupancy permits without adequate controls , thus committing a breach of their administrative duty .

On DATE ORG dismissed that action as having been brought out of time , stating that the applicants should have brought their action within DATE from the preparation of the expert report of CARDINAL DATE ( see paragraph CARDINAL above ) , when they had been apprised of the alleged defects .

On DATE ORG dismissed an appeal against the latter decision and upheld the first - instance decision .

On DATE Mr PERSON submitted a claim to ORG for the reimbursement and defrayal of his travel expenses to and from GPE in order to follow and take part in the criminal proceedings .

On DATE ORG rejected that claim .

On DATE ORG , to which the applicant had appealed against that decision , held that the decision to transfer the PERSON case to GPE had been a judicial rather than an administrative decision and that it accordingly could not engage the responsibility of the administrative authorities .

On DATE PERSON and Mr PERSON had lodged with ORG ( “ ORG ” ) an action for damages against the ORG partnership , ORG himself , GPE , GPE and GPE .

During the hearings held DATE and DATE , the ORG ordered the adjournment of the case until the conclusion of the criminal proceedings which were pending before ORG at the time .

On DATE the ORG observed that ORG had convicted PERSON and GPE of CARDINAL offences , CARDINAL of which related to the collapse of CARDINAL blocks on allotment DATE , and that that conviction had become final , having been adopted in the light of an expert report prepared by ORG on DATE establishing the accused ’s responsibility . That expert report had been added to the case file , and the ORG commissioned a further expert report in order to establish the pecuniary damage sustained by the complainants as a result of the loss of their apartment .

On DATE an expert estimated the pecuniary damage sustained at TRY CARDINAL .

At the hearing on DATE the complainants contested the conclusions of that expert opinion .

On DATE the ORG , sitting as a consumer court , rejected the claims for compensation brought against ORG and the Mayor of PERSON respectively on grounds of absence of evidence and lack of jurisdiction . It further held that the ORG claim for the moveable property lost should be considered as having been abandoned during the course of proceedings . Finally , the ORG partly acceded to the request for compensation by ordering the FAC and GPE partnership to pay the applicants TRY CARDINAL jointly in respect of pecuniary damage and TRY CARDINAL each in respect of non - pecuniary damage .

NORP On DATE PERSON and Mr PERSON appealed against that judgment on points of law . In their memorial before ORG they submitted that ORG ’s responsibility had been established by ORG and that , while civil courts were not bound by the conclusions of criminal courts , that did not apply to cases where the facts had established beyond doubt . They complained that the ORG had decided the case as a consumer court , even though it had involved a purely civil action . Finally , they submitted that the amounts awarded in compensation had been unsatisfactory , so that the ORG ’s decision had been incompatible with ORG and CARDINAL of the LAW and had , moreover , infringed their property rights .

On DATE ORG set aside the ORG ’s judgment .

On DATE an expert report was drawn up , estimating the pecuniary damage sustained by the applicants , on the basis of the value of the apartment that had been destroyed during the earthquake , at TRY CARDINAL .

On DATE , the ORG , to which the case had been referred back by ORG , again rejected the compensation claim against ORG for lack of evidence , holding that the latter had been involved in neither the construction nor the sale of the building in question . The ORG also dismissed the compensation claim against the municipality , declining jurisdiction in favour of the administrative courts . It noted that the claim against ORG had been abandoned . Drawing on LAW , the ORG considered that the claim relating to moveable property should be deemed not to have been lodged . Lastly , it ordered the FAC and GPE partnership to pay , jointly and severally , TRY CARDINAL in respect of the pecuniary damage sustained , and a sum of TRY CARDINAL to each claimant in respect of non - pecuniary damage .

On DATE ORG upheld that judgment .

On DATE Mr PERSON and his wife had brought before the ORG an action for damages against the limited liability company PERSON . ORG . GPE , the PERSON partnership , ORG and GPE They claimed ORG CARDINAL each in respect of pecuniary damage , TRL CARDINAL in respect of non - pecuniary damage and a further sum to be calculated in compensation for loss of support .

On DATE the ORG stated that it was satisfied that the property developer responsible for the building in the ruins of which the applicant ’s son had died was the PERSON partnership and that the architectural blueprint had been prepared by PERSON , who had also acted as scientific officer for the project . Furthermore , in the light of the expert report prepared on DATE at the request of ORG , the public authorities which had issued the permit had been responsible in a ratio of CARDINAL and the persons in charge of construction had been responsible in a ratio of CARDINAL . The ORG considered that the PERSON partnership and PERSON had therefore been responsible in a ratio of CARDINAL .

The ORG dismissed the claim against ORG and the limited liability company PERSON . ORG . GPE on the grounds that they could not have been involved in the proceedings . It allowed in part the applicant ’s and his wife ’s compensation claims . The PERSON partnership was accordingly ordered to pay the applicant TRY CARDINAL in respect of the moveable property which they had lost , TRY CARDINAL in respect of loss of financial support and TRY CARDINAL in respect of nonpecuniary damage .

On DATE ORG set aside that judgment on the ground that the court which had jurisdiction to hear and determine the case had been the ORG .

By judgment of DATE , the ORG , to which the case had been referred back , sitting as a consumer court , dismissed the claim against ORG and the limited liability company ORG . GPE on the grounds that they could not have been involved in the proceedings . It also dismissed the claim against GPE on the ground that when he had died , after the action had been brought , his heirs had not accepted the succession . Nevertheless , the ORG allowed in part the claim against the PERSON partnership . In that connection it awarded Mr Çakır TRY CARDINAL in respect of the moveable property which he had lost , TRY CARDINAL in respect of loss of financial support and TRY CARDINAL in respect of non - pecuniary damage .

On DATE ORG set aside that judgment .

On DATE ORG dismissed an application for rectification of its judgment .

On DATE the ORG , to which the case had been referred back , dismissed the claim against ORG and the limited liability company PERSON . ORG . GPE on the ground that they could not have been involved in the proceedings . It likewise dismissed the claim against GPE owing to the fact that when he had died , after the action had been brought , his heirs had not accepted the succession . Nevertheless , the ORG allowed in part the claim against the PERSON partnership . In that connection it awarded Mr PERSON TRY CARDINAL in respect of the moveable property which he had lost , TRY CARDINAL in respect of loss of financial support and TRY CARDINAL in respect of non - pecuniary damage .

On DATE PERSON ( GPE ) and CARDINAL members of her family had brought compensation proceedings before the ORG in respect of the damage suffered owing to the deaths of their parents , claiming FAC in respect of non - pecuniary damage and FAC in respect of pecuniary damage . The action for damages was directed against the V.G. PERSON partnership .

On DATE the ORG , hearing and determining as a consumer court , allowed in part the claim concerning the pecuniary damage suffered , awarding a sum of TRY DATE to be shared among the different complainants , in accordance with their respective places in their GPE succession . The ORG also awarded a sum of TRY CARDINAL in respect of the non - pecuniary damage caused by the death of the PERSON mother and TRY CARDINAL in respect of the non - pecuniary damage caused by their father ’s death .

On DATE the respondent party appealed on points of law .

On DATE ORG dismissed that appeal under a judgment which became final on DATE .


RUNTEVA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Aleš Pejchal;Krzysztof Wojtyczek;Linos-Alexandre Sicilianos;Pauliine Koskelo;Ksenija Turković

NORP The applicant , PERSON , is a NORP national who was born in DATE and lives in PERSON . She is represented before the ORG by Mr T. Torov , a lawyer practising in PERSON .

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

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

By a judgment of DATE , confirmed on appeal on DATE , ORG ( “ the trial court ” ) convicted the applicant of a serious traffic offence and sentenced her to DATE and CARDINAL months’ imprisonment . The period during which the applicant had been remanded in pre - trial detention ( from DATE ) was to be deducted from the custodial sentence .

On DATE the applicant started serving the sentence .

On DATE the President of the ORG granted pardons to several convicted people , exempting them entirely ( потполно ) or partially ( делумно ) from serving their respective prison sentences ( се ослободуваат од понатамошно извршување ) . The applicant obtained a reduction of the serving time by DATE and DATE . On DATE the presidential pardon was published in ORG . The presidential pardon was granted on the occasion of a national public holiday .

On DATE the applicant , represented by PERSON , lodged a request for extraordinary mitigation of her prison sentence ( вонредно ублажување на казната ) , which ORG granted in a judgment of DATE . It found that the applicant was the only person who could care for her father , whose health had deteriorated after the death of her mother , which had occurred whilst the applicant was serving her sentence . According to the court , those were new circumstance which the lower courts could not have taken into account in determining the sentence . Relying on sections CARDINAL and CARDINAL ) of LAW of DATE ( see paragraphs CARDINAL and CARDINAL below ) , it overturned the lower courts’ judgments of DATE and DATE in respect of the sentence and reduced the prison term to DATE . The court reiterated that the period of time the applicant had spent in detention on remand was to be deducted from the total prison term . In its judgment , the court did not mention the presidential pardon of DATE .

On DATE the judgment was served on the applicant ’s representative .

In the meantime , namely on DATE , the trial court accepted a recommendation made by the director of the detention facility ( based on the applicant ’s good behaviour ) and ordered that the applicant be released on parole on DATE . Referring to the aforementioned presidential pardon , the trial court stated that “ [ the applicant ’s sentence ] is DATE . ” The trial court established that the period of conditional release ( условен отпуст ) would come to an end on DATE . It did not mention ORG judgment of DATE .

The applicant was released on parole CARDINAL DATE .

On an unspecified date in DATE , the applicant brought a civil action against the respondent ORG , claiming compensation for being allegedly unlawfully detained for DATE due to an error or unlawful action by the ORG authorities . She also claimed compensation in respect of the period of her conditional release ( between CARDINAL DATE and DATE ) , during which she had been regarded as an offender . She argued that , as a consequence of ORG judgment ordering mitigation of sentence and the presidential pardon , the prison sentence had been reduced to DATE excluding the time of her detention on remand . Accordingly , she should have been released DATE prior to the date of her release on parole .

NORP In a judgment of DATE , ORG Instance dismissed the applicant ’s compensation claim as ill - founded . The court stated the following :

“ ... On the basis of the [ information ] submitted by [ the trial court ] , the court establishes that the prison sentence imposed on [ the applicant ] was DATE , taking into account the presidential pardon . That aside , the overall sentence , including [ the applicant ’s ] conditional release that came to an end on DATE , was DATE ... It is undisputed that [ the applicant ] was released from custody on DATE , as stated in the decision for her release on parole . Accordingly , she was not detained for longer than prescribed ... [ The trial court ] decision ordering [ the applicant ’s ] conditional release took into consideration the presidential pardon , as is evident from the reasoning provided ; however , when reducing the sentence , it gave no weight to it . [ The applicant ] did not spend a day longer in custody than she was sentenced to . She was supposed to serve the sentence until DATE , the date when her period of conditional release came to an end ...

The provisions governing compensation for damage sustained do not apply in the circumstances of the ( present ) case because the conviction was not wrongful ... The reduction in the prison term following the presidential pardon and the [ ORG ] judgment was based on grounds not related to [ the applicant ’s ] guilt of the crime that she had committed . Only a person who has suffered damage due to a wrongful conviction is entitled to seek compensation for damage sustained . In the present case , [ the applicant ] was rightfully convicted ... ”

The applicant challenged this judgment before ORG . She reiterated that , given the extraordinary reduction in the prison term ordered by ORG and the presidential pardon , she should have been imprisoned for DATE , further reduced by the period of her detention on remand . Any detention in excess of this period had therefore been unlawful . Accordingly , she was entitled to compensation in respect of non - pecuniary damage under section CARDINAL(CARDINAL)CARDINAL of LAW ( see paragraph CARDINAL below ) .

In its judgment of CARDINAL DATE , ORG upheld the established facts and the reasoning provided by the lower court . It further stated that :

“ ... the reduction of a prison term on the basis of an extraordinary mitigation of sentence [ by ORG ] does not constitute grounds for compensation for damage sustained if a person has remained imprisoned for longer than the reduced prison term imposed by a competent court .

... this court considers that in the present case , the lower court having correctly established that [ the applicant ] had not been imprisoned DATE more than had been prescribed by the above judgments , the applicant has no right to claim compensation under [ section CARDINAL ( CARDINAL ] of LAW ... ”

On DATE ORG dismissed an appeal on points of law by the applicant and upheld the lower courts’ judgments . The applicant was served with this judgment on DATE .

Article CARDINAL § CARDINAL(CARDINAL ) of the LAW provides that the President of the ORG can grant pardon in accordance with the legal provisions .

Under LAW of DATE , the President of the ORG may grant pardon to identified individuals in respect of criminal offences provided for by law . A request for pardon can be submitted by the convicted person or by ORG of its own motion ( section CARDINAL(CARDINAL ) ) after a judgment becomes final ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL of LAW of DATE , as applicable at the relevant time , provided that judgments were delivered to parties either by way of oral pronouncement , if the parties were present at the hearing , or by serving them with a certified copy of the judgment if they were absent from the hearing .

Under section ORG ) of the LAW , a final judgment became enforceable after being served on the parties provided there were no obstacles to its enforcement .

Sections CARDINAL - CARDINAL provided for an extraordinary mitigation of sentence as an extraordinary remedy that might be used against the penalty imposed by the lower courts . Under section CARDINAL , it might be granted on account of facts that had not existed before delivery of the final judgment or of facts that had existed at that time but of which the court had been unaware .

NORP Under section CARDINAL(CARDINAL ) , a request for mitigation of sentence did not suspend its enforcement .

ORG would dismiss the request if the statutory conditions for extraordinary mitigation of sentence were not satisfied . If it granted the request , ORG would adopt a judgment and overturn the final judgment in respect of the penalty ( section CARDINAL(CARDINAL ) ) .

Section CARDINAL(CARDINAL)CARDINAL provided that a person was entitled to claim compensation if he or she had served a prison sentence but ‒ on the basis of a reopening of proceedings , a legality review request or a request for extraordinary review of a final judgment ‒ should have served a shorter prison term than the one already served . Under sub - paragraph CARDINAL , a person was entitled to claim compensation if he or she served a longer ( prison ) sentence due to an error or unlawful action by a ( State ) body .


CASE OF KOCHEROV AND SERGEYEVA v. RUSSIA

Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;George Nicolaou;Helen Keller;Luis López Guerra;Pere Pastor Vilanova

The applicants were born in DATE and DATE respectively and live in GPE . The first applicant is the second applicant ’s father .

The first applicant has a mild mental disability . DATE he lived in GPE no . CARDINAL ( “ the care home ” ) .

NORP In DATE the first applicant married PERSON , a resident of the same care home , who had been deprived of her legal capacity on account of her mental disability .

On DATE PERSON gave birth to the second applicant . At the time , the first applicant was not recognised as the child ’s father . DATE the second applicant was admitted to hospital because of an infection she had contracted during the delivery .

On DATE the second applicant was placed in GPE Home no . CARDINAL ( “ the children ’s home ” ) as a child without parental care .

On DATE the first applicant obtained a new birth certificate for the second applicant and was registered as her father . He subsequently gave his consent for her to stay at the children ’s home until it became possible for him to take care of her . Throughout the second applicant ’s stay there , the first applicant maintained regular contact with her . He would visit her regularly , spend time with her , take her for walks and buy her books , toys and clothes .

By a judgment of DATE the ORG of GPE refused to restore PERSON legal capacity , relying in particular on a psychiatric examination report . It stated that , inter alia , there were conflicting , aggressive and emotionally inadequate tendencies in her behaviour .

On DATE the marriage between the first applicant and PERSON was declared void at the request of a public prosecutor because of PERSON legal incapacity .

Following a claim by the first applicant acting on his own behalf and on behalf of the second applicant , on DATE ORG of GPE ordered GPE to provide the applicants with housing under a social tenancy agreement . In DATE they were provided with a flat in GPE .

NORP In DATE , on the basis of a medical assessment , the first applicant was discharged from the care home and moved into his flat . He has been living there ever since .

NORP In DATE the first applicant informed the children ’s home of his intention to take the second applicant into his care once he was discharged from the care home and had moved into his flat .

On an unspecified date the children ’s home applied to LOC of GPE ( “ the ORG ” ) to have the first applicant ’s parental authority over the second applicant restricted . The children ’s home indicated that “ the first applicant [ had ] never yet taken the girl from the children ’s home to raise her in his family but was planning to raise the girl by himself ” . In the children ’s home ’s view , it was not advisable to let the girl be placed in her GPE care as her mother was legally incapacitated and thus posed a danger to the girl ’s life and health , while her father could not fully exercise his parental responsibilities owing to his mental disability . In addition , the children ’s home submitted , referring to information provided by its staff ( see paragraph CARDINAL below ) , that at the time it would be very stressful for the second applicant to be transferred to her GPE family .

In the proceedings before ORG , the children ’s home produced undated reports by its staff . They stated that the second applicant had difficulties in communicating with her parents and that she felt fear , anxiety and emotional stress in their presence .

The first applicant relied on the following pieces of written evidence .

In a certificate dated DATE the children ’s home stated that the second applicant was in their care and that the first applicant and Ms GPE regularly visited her .

In a certificate dated CARDINAL DATE a municipal custody and guardianship agency confirmed that the second applicant was living temporarily at the children ’s home at the first applicant ’s request pending the allocation of social housing to him , and that he visited her there .

A report dated DATE by a panel of experts contained the results of a medical psychiatric examination of the first applicant that had been carried out with a view to determining whether he could be discharged from the care home and bring up his child . The report described him as a fully focused , sociable person with reduced intelligence . According to the report , the first applicant was well presented , readily engaged himself in conversation and could read , write and do arithmetic . He was able to cook and kept his room in the care home clean and orderly . The report also mentioned that he talked about his daughter with tenderness and love , proudly demonstrated her “ achievements ” , showed clothes and toys bought for her , and regularly visited her . He was planning to take her home as soon as he was provided with social housing . The report also stated that throughout his stay at the care home the first applicant had worked there and saved money over DATE ; he would therefore be able to support his daughter financially . The report concluded that he could be discharged from the care home and that his state of health enabled him to fully exercise his parental authority .

A report dated DATE by the custody and guardianship authority described the living conditions in the first applicant ’s flat as appropriate for his daughter . It stated , in particular , that the flat had recently been renovated , was clean and light , had all the necessary furniture and home appliances , and that there was a sleeping place for the child with clean bed linen . There were toys and books suitable for her age , and clothes appropriate for DATE . There was also a separate desk equipped for the child .

A letter dated DATE issued by the care home to ORG again confirmed that the first applicant regularly visited the second applicant at the children ’s home , that he bought clothes for her and that he discussed with the management of the care home the steps he could take on his own to ensure the girl received a good upbringing , financial support , health care and an education . When concluding the social tenancy agreement for the flat allocated to him , the first applicant had himself found out which documents he would need to register the girl at kindergarten , had collected those documents and had put her on a waiting list for a place . The letter also stated that the first applicant ’s medical examination had not revealed any contradictions to his upbringing of the second applicant ; he was a well - organised and reliable person who had realistic life plans and a responsible attitude towards his work and obligations . His psychiatric state was stable ; he did not show any signs of aggression towards others or emotional instability and did not need any medical treatment .

At the hearing before ORG , the first applicant ’s representative contested the children ’s home ’s application as groundless and discriminatory as being based on the fact that the first applicant had an intellectual disability . He argued , with reference to the adduced evidence ( see paragraphs CARDINAL above ) , that the first applicant was fully able to exercise his parental authority and take care of his daughter . He pointed out that the first applicant had recently been discharged from the care home and lived in a separate flat , where the conditions were adequate and suitable for the second applicant to live in . The first applicant ’s lawyer thus insisted that the second applicant should be transferred into his care . He argued that the transfer could be performed gradually , to enable the girl to get used to the changes in her life , while the competent social care agencies could assist the first applicant in exercising his parental authority and monitor the family and , in particular , the second applicant ’s life and upbringing .

Representatives of the children ’s home ( its director and the doctor in charge of the second applicant ’s treatment ) maintained the claim , arguing that it was premature to transfer the girl into the first applicant ’s care . They stated , in particular , that the first applicant had a mental disability and had lived for all his life in a closed specialist institution ; he would therefore be unable to ensure proper hygienic care of the girl or her adequate development , while it was impossible to entrust any such care to the second applicant ’s mother as she was legally incapacitated . The representatives of the children ’s home also stated that the first applicant ’s attempts to communicate with the second applicant clearly showed that there was no contact between them . They added that when the second applicant had been told for the first time that she might be transferred into her father ’s care , she had been stressed , scared and afraid of approaching him ; later , when she had realised that she would be staying at the children ’s home , her fears had disappeared . They also stated that at the time the second applicant ’s fear of her parents had passed , and that she ceased fearing living with her family .

A representative of the municipal custody and guardianship authority and a public prosecutor both maintained the children ’s home ’s application , arguing that in view of the first applicant ’s diagnosis , and the fact that his partner PERSON had no legal capacity , it was not safe to transfer the second applicant into their care , and that CARDINAL parents with mental disabilities would be unable to ensure the girl ’s harmonious development .

ORG also heard evidence from PERSON , a care home employee , who stated that whilst at the home the first applicant had lived independently in a separate room , which he had kept in order . He had bought food and cooked for himself and had been able to take prescribed medicines unsupervised if given clear instructions . He had worked part - time at the home , helping to take care of its patients , and had always been able to establish good contact with the patients and their relatives . He had been allowed to leave the care home freely and had also worked part - time outside , and at some point he and PERSON had lived together at her relatives’ place for a while , and had then returned to the care home . PERSON expressed her certainty that the first applicant would be fully able to fulfil his parental obligations and take good care of the second applicant .

On DATE ORG examined the children ’s home ’s claim . It observed , in particular , that the first applicant and Ms GPE regularly visited the second applicant at the children ’s home and attempted to communicate with her in the presence of the social workers , and that the first applicant had obtained a compulsory medical insurance certificate for her . The court also referred to the report of CARDINAL DATE regarding the first applicant ’s living conditions and noted , more specifically , that the first applicant had carried out repairs at the flat allocated to him , had equipped a room for a child , and had registered the second applicant at the address .

ORG went on to note that if the children ’s home ’s application to restrict the first applicant ’s parental authority were to be dismissed , the first applicant would be entitled to take his daughter into his care . However , the court considered that at the time it would be “ undesirable ” as it would not be in the child ’s best interests . It noted , with reference to the reports by staff members of the children ’s home ( see paragraph CARDINAL above ) and similar statements by the representatives of the children ’s home made at the hearing ( see paragraph CARDINAL above ) that at present the girl felt anxious in the presence of her parents and had difficulties in communicating with them . The court therefore considered that “ it would be stressful for the child to be placed with the family of her parents , who she had never lived with and had so far had no chance to get used to ” .

ORG further observed that since childhood , the first applicant had lived in specialist ORG institutions for people with mental disabilities and had no skills and experience in rearing children and taking care of them . In view of the fact that he had only left an institution and started living on his own in DATE , it considered that his intention to raise his daughter by himself was premature .

The court also observed that the girl ’s biological mother had free access to the first applicant ’s flat and noted that at present she had no legal capacity . It then noted that it “ [ had ] no sufficient and reliable evidence that it would be safe for the child to remain with her parents , including her legally incapacitated mother ” .

ORG also referred to the first applicant ’s mental disability and noted that “ at present there was no reliable evidence showing that it would be safe for the girl to live with him ” . In this connection , it noted that his medical diagnosis and category of disability would make him ineligible for applying to adopt a child .

Lastly , ORG observed that the first applicant ’s DATE income was MONEY ( RUB ) , while the DATE living wage was RUB MONEY for an adult and RUB MONEY for a child . As the first applicant would have to pay utility bills and , from time to time , medicine , some of which could be costly , the court considered that at the time he would be unable to provide adequate financial support for his daughter .

ORG then referred to LAW and allowed the children ’s home ’s claim . It restricted , for the time being , the first applicant ’s parental authority over the second applicant . The court added that by virtue of LAW the first applicant would be able to apply to court to have the restriction of his parental authority lifted , if the reasons for the restriction being imposed ceased to exist .

The first applicant appealed against the judgment of DATE to GPE ( “ the ORG ” ) .

With regard to ORG first argument ( see paragraph CARDINAL above ) , the first applicant submitted that it would in any case be stressful for the child , who had spent DATE at the children ’s home , to start living anywhere else , for instance with an adoptive family . As for the children ’s home ’s reference to the girl ’s anxiety in her GPE presence , the first applicant argued that the reports to that end by its staff ( see paragraph CARDINAL above ) were out of date and could not serve as a basis for the court ’s finding , as at the hearing before the first - instance court the children ’s home representatives had confirmed that the second applicant was no longer afraid of her parents or of being placed in the first applicant ’s care ( see paragraph CARDINAL above ) .

The first applicant also argued that , in so far as FAC had relied on the fact that he had lived at the care home for a prolonged period , a parent ’s past or present residence in a specialist institution , there was no such ground for restricting parental authority in the Russian Family Code . Moreover , the law did not require biological parents to prove their ability to raise children or their housekeeping skills as a prerequisite for exercising their parental authority .

The first applicant further insisted , with reference to ORG argument to that end , that the fact the girl ’s mother was legally incapacitated was of no relevance to his case . Legal incapacity was a formal status and did not mean that the person was dangerous to others . In any case , the mental health of the child ’s mother could not serve as a basis for restricting his own parental authority over his daughter . The first applicant also claimed that during the second applicant ’s stay at the children ’s home , her mother had been allowed to visit her .

NORP The first applicant went on to argue that there had been no evidence at ORG disposal proving that he posed any danger to his daughter . On the contrary , the relevant medical report by the experts of the care home , who had observed the first applicant for DATE , revealed that his mental condition had not impaired his ability to fulfil his parental responsibilities ( see paragraph CARDINAL above ) .

Lastly , the first applicant alleged that ORG had erred in establishing his income , which in fact exceeded the living wage in GPE . Referring to the ORG ’s judgment in the case of PERSON v. GPE ( no . PERSON , DATE ) and the relevant provisions of ORG on the Rights of Persons with Disabilities , he also submitted that his income could not be a decisive element in the decision to restrict his parental authority .

In his oral submissions before ORG , the first applicant argued that if the children ’s home ’s claim was rejected , the transfer of the second applicant into his care could be gradual to enable her to adapt psychologically to her new life in the family .

On DATE ORG upheld the judgment of DATE on appeal . It repeated the reasoning and conclusions of ORG , stating that they were correct and accurately reflectedconsidered that the first applicant “ had not adduced convincing evidence proving the absence of a real risk to the second applicant ’s life , health and adequate upbringing ” if she was transferred into her father ’s care . It also noted that the first applicant was not precluded from seeking an annulment of the restriction of his parental authority in the future , should the relevant circumstances change .

On DATE a GPE judge returned without examination a cassation appeal by the first applicant against the court decisions of DATE and DATE , as he had failed to enclose a duly certified copy of the judgment of CARDINAL DATE . He did not attempt to pursue the cassation proceedings any further .

After the present application was communicated to the respondent Government , they submitted information on factual developments in the case .

In particular , by a judgment of DATE , ORG of GPE restored , with reference to a psychiatric report , PERSON legal capacity . The judgment entered into force on DATE .

On DATE the first applicant remarried PERSON

By an order of CARDINAL DATE the children ’s home established rules concerning the admission of visitors . According to the Government , on the basis of that order the first applicant regularly and without any limitations visited the second applicant there .

DATE . On an unspecified date the first applicant brought civil proceedings against the children ’s home in FAC of GPE , seeking to have the restriction of his parental authority over the second applicant lifted . He argued , in particular , that CARDINAL of the grounds for imposing that restriction had been the second applicant ’s anxiety and fear she had felt in his presence and her unwillingness to live with him . He pointed out that at present the second applicant had no fear of her parents , that she had developed an affective attitude towards him , considered him as her father and was ready to live with him . He also pointed out that since DATE he had been living on his own and maintaining a household and that he was employed and had a stable income . He also submitted that the legal capacity of the second applicant ’s mother , PERSON , had recently been restored . In the first applicant ’s view , therefore , there was no reason to continue to restrict his parental authority over the second applicant which prevented him from taking her from the children ’s home .

A representative of the children ’s home confirmed in court that the first applicant regularly visited the second applicant , that close emotional ties had formed between them and that the girl missed her father when he left . He was therefore of the opinion that it would be in the second applicant ’s interests to lift the restriction on the first applicant ’s parental authority and transfer her into his care . Representatives of CARDINAL district custody and guardianship agencies and a public prosecutor supported the first applicant ’s application .

On DATE ORG gave its judgment . It took into account the parties’ arguments and observed , as had been submitted by a representative of the children ’s home , that the first and second applicants had developed close emotional ties , that at present the girl felt comfortable and calm in her father ’s presence and that she missed him whenever he left the children ’s home . It also observed that from DATE the first applicant had been living independently in a separate flat , where the second applicant was also registered . The court noted that the conditions were good and suitable for the second applicant to live in . It also had regard to the fact that the first applicant was employed and had received positive references from his place of work and place of residence .

ORG further noted that the first applicant had a stable DATE income of MONEY . The living wage being RUB CARDINAL for a working adult and RUB MONEY for a child , the court considered that he was fully able to ensure the second applicant had adequate financial support . The court went on to note that the legal capacity of PERSON , who freely visited the first applicant ’s flat , had by that time been restored and that the first applicant had himself submitted a medical report dated DATE which confirmed that he was fully able to take care of his child .

ORG therefore concluded that the restriction of the first applicant ’s parental authority was no longer justified , as the reasons it had relied on in its previous judgment of CARDINAL DATE were no longer valid . With reference to LAW , the court thus allowed the first applicant ’s application and ordered that the restriction of his parental authority over the second applicant be lifted and that she be transferred into his care . The judgment was not appealed against and entered into force on CARDINAL DATE .

On DATE the first applicant took the second applicant from the children ’s home to his home address , where she has been living ever since .