Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Just satisfaction reserved (Article 41 - Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Vincent A. De Gaetano

The applicants were born in DATE , DATE , DATE and DATE respectively and live in GPE , apart from the second applicant , who lives in PERSON . The second , third and fourth applicants are the first applicant ’s brother , mother and father , respectively .

During TIME CARDINAL DATE the first applicant , who was smoking a cigarette in the Mitry - Villeparisis railway station , was identity - checked by officers of ORG ( “ SUGE ” ) of ORG ( “ FAC ” ) .

NORP Just before TIME on DATE QUANTITY police officers from the Mitry Mory police station , GPE and GPE , were called out to that railway station after a report that an individual had been throwing stones at the trains . Arriving at the railway station , they saw a man who did not correspond to the description provided , who appeared to be drunk , and who reacted aggressively when approached . They called for reinforcements just as CARDINAL ORG officers arrived on the scene . The individual in question , who was later identified as the first applicant , ran off towards an underground passageway .

The ORG officers , who included GPE , GPE and O.D.B. , stopped and questioned the first applicant . The latter put up no resistance to his arrest . The ORG officers then took him outside the main entrance to the railway station had placed him against a wall .

The statements given by witnesses to that scène diverge concerning the subsequent events ( see paragraphs CARDINAL , DATE below ) .

The first applicant was forced to the ground by the ORG officers , who handcuffed him behind his back , before frisking him . He was then placed in a police vehicle parked nearby . The operation ended at TIME

During his transport to and arrival at the police station , the first applicant complained of nausea , and had to be helped out of the vehicle by the police officers . The latter mentioned that he was bleeding profusely from the chin .

Having arrived in the police cells , the first applicant lost consciousness and went into a coma . A doctor present in the police station administered first aid , before the arrival of the fire brigade ambulance at TIME and then the emergency medical services ( ORG ) at TIME He was then transferred to ORG hospital , and later , to the PERSON hospital in GPE .

The first applicant was remanded in custody at TIME on charges of insulting members of the police force and deliberate violence against a public - service employee , although the measure could not be notified to him owing to his state of alcoholic intoxication , according to the police report . The police custody was terminated at TIME on the instructions of ORG .

The duty officer at the PERSON public prosecutor ’s office was advised of the case at TIME He ordered the opening of a flagrante delicto procedure on charges of deliberate violence against persons performing public duties , assigning the task to ORG ( “ DRPJ ” ) .

The police and ORG officers who had been involved or present during the first applicant ’s arrest were questioned . Their versions contradicted each other : the ORG employees spoke of a model arrest , whereas some of the police officers described it as “ robust ” . Among the latter , PERSON , GPE and PERSON pointed out that they had seen a ORG officer , identified as GPE , kneeing the first applicant in the face while he was being held on the ground by CARDINAL other officers . They added that , noticing that GPE was about to knee him again , police sergeant PERSON had restrained him by the leg and said “ that ’ll do ” .

A.H. did not mention that fact during his first questioning . He was interviewed again , and he explained that when he had arrived at the railway station on TIME in question he had noted the presence of CARDINAL ORG officers surrounding the first applicant , who was waving his arms . CARDINAL of them had attempted to take the latter by the arms , but he had brushed him off . The officer identified as PERSON had replied “ do n’t you hit me ” , and had become “ annoyed ” with the first applicant . With the help of CARDINAL colleagues he had brought him to the ground . Given the applicant ’s refusal to allow himself to be handcuffed , he had struck him on the head with his left knee . PERSON said that he had then approached the scene . Seeing PERSON moving his left leg back to knee him again , he had prevented him from doing so . When asked why he had not mentioned these facts in his first witness statement , the police officer stated that he had “ thought that it was for the person concerned to shoulder his responsibilities ” .

N.T. submitted that before being brought to the ground the first applicant had not been violent , but when an ORG officer had touched him he had tried to remove his hand . One of the ORG team had then , unsuccessfully , attempted to punch him in the face .

Some of the police and ORG officers mentioned that the first applicant had had a cut on his chin before his arrest .

On DATE , GPE and O.D.B. were remanded in custody .

On DATE the scene was reconstructed in the presence of CARDINAL members of the prosecutor ’s office and the CARDINAL ORG officers and the QUANTITY police officers who had been involved in the arrest . The ORG officers said that the arrest had been effected without any particular difficulties , the first applicant having been handcuffed on the floor , emphasising that he had displayed no injuries on being handed over to the police officers . The latter presented a different version of events , explaining how the applicant had been kneed in the head .

Dr M.K. , who had operated on the first applicant at FAC , told the investigators that the injuries noted might have been compatible with CARDINAL very violent blow , such as a hard slap , a kick or a knee strike , a blow from a medium - weight blunt instrument , or even a heavy fall . He did not consider the injury compatible with a truncheon blow .

At the Lagny - sur - Marne hospital , a brain scan showed an acute subdural haematoma of the left hemisphere . Blood tests showed alcohol levels of QUANTITY of blood and the presence of active cannabinoids ( THC ) , pointing to exposure to cannabis DATE before the testing .

The first applicant was admitted to the FAC hospital on DATE and immediately taken to the operating theatre , where he underwent emergency surgical evacuation of his haematoma . A control scan carried out DATE showed a residual subdural haematoma .

On DATE a forensic doctor was called upon to examine the first applicant , and noted that he was in a stage-CARDINAL coma on the GPE Coma Scale ( on which stage CARDINAL corresponds to death and stage CARDINAL to a wakeful state ) . The doctor described a temporo - parietal fracture on the left - hand side , a closed QUANTITY wound on the left side of the chin , CARDINAL haematomas on the left tibia and a scratch on the left cheek . He also mentioned a subdural haematoma of the left hemisphere which was extended and compressive and had been the reason for the applicant ’s emergency transfer to hospital .

A second scan carried out on DATE showed an odontoid fracture associated with a fracture of the lateral mass of vertebra CCARDINAL .

On DATE the first applicant underwent further operations .

From DATE to CARDINAL DATE he was hospitalised at ORG .

The discharge assessment drawn up by the said ORG mentioned a large number of neurological after - effects , including the partial loss of active motor skills in all CARDINAL limbs , and serious cognitive and behavioural disorders ( disinhibition , maladjustment , inability to concentrate , temporal disorientation , demotivation and loss of initiative , and passive opposition ) .

On DATE , since his condition had not improved , the first applicant was transferred to another rehabilitation centre . On DATE the first applicant ’s residual rate of permanent partial disability ( IPP ) was estimated at PERCENT , given his lack of autonomy in respect of all the basic activities of everyday life . He was confined to a wheelchair and was unable to engage in any autonomous occupational activity .

On DATE the ORG requested the instigation of a judicial investigation against ORG , GPE and O.D.B. on charges of intentional violence having caused over CARDINAL days’ total unfitness for work ( ORG ) , aggravated by the following CARDINAL circumstances : the violence had been jointly , by persons performing public duties , in a place used for acceding to public transport .

On DATE the CARDINAL persons targeted by the request for an investigation were formally charged . L.P. and O.D.B. were placed under judicial supervision , while PERSON was placed in preventive detention until DATE , when he would be released under judicial supervision .

The applicants , assisted by counsel , applied to join the proceedings as civil parties .

On DATE , in view of the evolution of the first applicant ’s state of health , ORG requested further investigations , reclassifying the charges as intentional acts of violence have caused a permanent disability . The CARDINAL ORG officers were formally charged on this new basis .

A large number of witnesses were heard by the investigators on letters rogatory , and some of them were directly questioned by the investigating judge .

Three train passengers present at the material time stated that they had not seen the first applicant being struck .

CARDINAL individuals who had been with the applicant on DATE in question , PERSON and GPE . , were also questioned . PERSON explained that during the afternoon he and the first applicant had drunk alcohol and had been fined for smoking in the railway station . They had then reasoned with a person who had been on the railway tracks throwing stones at the trains . PERSON pointed out that the first applicant had a swollen lip and small scars on his face , around the chin . While they had been together the first applicant had neither fallen nor bumped his head .

DATE S.Gh . told the investigators that the first applicant had been “ shoved ” by CARDINAL of the officers involved , who had forced him face - down on to the ground , without his head actually touching the floor . She added that when he had been on the ground an ORG officer had kicked him , with medium force , on the head or his upper body , although she was unable to say whether the kick had landed on his head . She further stated that when the first applicant refused to get into the vehicle , CARDINAL of the staff involved had hit him lightly on the back of the head or upper body with a black objet , possible a truncheon , but that the blow had not been violent . The investigating judge summoned GPE . CARDINAL times to appear before him , but she did not attend . Moreover , having subsequently mentioned the violent acts during a TV interview , she had explained that “ she had been all over the place ” , that she had been “ taken by surprise ” and that she “ had overdone it a bit in front of the TV cameras ” .

Furthermore , on CARDINAL DATE an ORG employee informed the investigators that he had been confided in by a dog - handler , claiming that he had been talking to some of the first applicant ’s friends and had discovered that he had been fighting on the TIME in question and that someone had smashed a bottle over his head . The employee explained that she had not spoken up earlier because her information was only second - hand . Furthermore , she had not considered the dog - handler particularly reliable , as he had previously given her information which she knew to be false . However , this witness statement could not be compared with other evidence or corroborated by the witness as he had died since the material time . On DATE the police had telephoned the CARDINAL dog - handlers who could have made the statements in question . The only one who had worked in the company in question at the material time had stated that he had not heard about the case and had never spoken to any friends of the victim , with whom he was not acquainted .

GPE and GPE , the QUANTITY police officers who had first arrived on the scene , gave statements . CARDINAL said that the arrest had been carried out “ robustly ” and that the first applicant ’s head had possibly hit the ground , as he had “ fallen with his whole weight , all at once ” , and the other stated that the applicant had fallen “ to the ground heavily , face down ” , with his head hitting the floor . The latter added , before the investigating judge , that he was virtually sure that the applicant ’s head had hit the ground , even though his view was partially blocked by a vehicle . He further added that he had not seen the person being kneed .

NORP The QUANTITY police officers sent as reinforcements , GPE , PERSON and PERSON , stated that they had witnessed a kneeing incident . PERSON affirmed that when the first applicant had been brought to the ground there had been a loud “ bump ” . PERSON went back on the statements made during the flagrante delicto procedure , informing the investigating judge that he did not know whether the applicant ’s head had “ bumped on the ground ” .

The CARDINAL ORG officers who had been present but had not taken part in the operation explained that there had been no violence , and CARDINAL of them suggested that if there had been any blows they must have been delivered in the police car or the police station .

As regards the persons formally charged , O.D.B. stated that no blows had been delivered . He said that the episode during which the first applicant had been brought to the ground had been a “ textbook example ” , explaining that there had been no violence , and that the person had just been placed on the ground . He was sure that his head had not hit the ground . He added that PERSON had not kneed the first applicant , explaining to the investigating judge that in his view things had gone badly in the police station and the police officers were trying to “ shift the blame on to them ” . He added that the wound to the first applicant ’s chin after his arrival in the detention area bore no comparison to the scratch which they had noted earlier on . He considered that his colleague had used the level of force strictly necessary to bring the arrestee to the ground .

L.P. affirmed that while the first applicant had still been standing , he had deliberately punched PERSON on the arm . The latter had then seized him by the sleeve to knock him off balance . The applicant had ended up on his knees , and had been laid out on his side and then on his stomach . O.D.B. and he had held him by the ankles while PERSON was handcuffing him . ORG stated that the first applicant had been brought to the ground quite normally and that he had neither fallen to the ground nor been struck . He justified the use of that technique by the fact that the arrestee had been struggling and making incoherent statements . He added that he had had traces of blood around his nose , something which he had already noticed when fining him during TIME . He told the investigating judge that the first applicant ’s head could not have hit the ground , after having stated while in custody that he had not been able to see his head when the person had been brought to the ground .

Finally , GPE , a former trainer in the field of operational techniques , confirmed that he had fined the first applicant during TIME , without any further incidents occurring , even though the latter had already been consuming alcohol . He described the applicant ’s annoyance and disgraceful language when they had met up again later . He complained that he had been punched deliberately and violently on his right forearm . He had pulled at the first applicant ’s sleeve to bring him to his knees , and had then forced him to the ground with ORG ’s help , laying him on his right side and then turning him on to his stomach . He had personally handcuffed the arrestee by placing his knees on his body , his left knee on the back and his right knee on the posterior . His colleagues had been holding the arrestee ’s legs . He specified that the latter had been “ brought to the ground ” and not “ pushed to the ground ” . The applicant ’s head had not collided with anything and he had not been struck in any way , in the knowledge that he had had a slight cut on his chin and dried blood around his nose . PERSON said that something must have happened at the police station or during his time in the police vehicle , because the injury to the chin which had been visible during the arrest had nothing in common with the wound which he had displayed at the police station ; that wound had been QUANTITY deep and bleeding , leaving a pool of blood . If the ORG officers had noted such a wound on handing him over to the police , they would have immediately called an ambulance .

Y.F. ’s administrative file showed that he had repeatedly complained of abuse and threats .

Consultation of the FAC operational handbooks had shown that the head was singled out as a part of the body which should never be struck .

No images of the handcuffing episode could be obtained from the ORG footage at the railway station . On the other hand , the footage did show the identity check carried out in the afternoon and the attempts by the first applicant to calm down an individual standing on the railway tracks .

On DATE the investigating judge commissioned an expert report on the matter from PERSON , a forensic doctor , and Professor L , a brain surgeon . They submitted their report on DATE .

The reports concluded that the first applicant had had a subdural haematoma of the left hemisphere which had caused brain damage .

In view of the nature and consequences of that haematoma , the experts considered that the length of time required to constitute it had probably been TIME from the time of the head injury , and could not have been TIME . Having regard to the timescale of the events and the witness statements , the experts stated that the shock could not have occurred during the few minutes’ drive from the railway station to the police station , or on arrival at the latter . On the other hand , they found that the injuries could have been caused by the applicant being pushed to the ground , being kneed or falling full length during his arrest . Alcohol or drug consumption could not have had any direct and/or definite influence on the traumatic brain injury .

PERSON , a neurologist , and PERSON , a neuropsychologist , examined the first applicant on DATE . They submitted their report on DATE .

They noted a deficiency of all CARDINAL limbs and a serious deterioration of the cognitive and mental functions . They concluded that the neurological condition was directly responsible for the first applicant ’s state of total dependency , and considered that it was too soon to determine the chances of consolidation but that the situation was unlikely to change greatly .

On DATE PERSON and PERSON examined the first applicant . In their report of DATE they noted that he could neither stand nor walk , that he was completely dependent as regards everyday activities and should be placed under guardianship . His total unfitness for work was still being assessed .

They mentioned that the injuries observed could only have been the result of violent trauma , and that if they had been caused by being pushed to the ground , he must have been pushed extremely violently . The hyperextension of the cervical rachis and the fracture of the CCARDINAL vertebra could have been caused by a violent blow from a knee , but not the haemorrhagic lesions or the left temporal contusion , the latter having been caused either by direct blows to the skull or by the head violently hitting the ground . They confirmed that alcohol or drug consumption could not have been factors in the injuries , although they explained that the state of intoxication could have diminished the person ’s reactivity in attempting to limit the consequences of falling .

The experts considered that the timescale of the events as reported pointed to the conditions surrounding the arrest in the railway station as having very probably , indeed certainly , been the cause of the traumatic cranio - cerebral and rachidial lesions . They pointed out that they had no information at their disposal to rule out the possibility that the first applicant had sustained other violent attacks while in the police vehicle or at the police station , but added that if such violence had indeed occurred , it was conceivable that it had caused injuries . Nevertheless , the lapse of time between the arrest and the arrival at the police station had been so short that that hypothesis was “ improbable ” .

They further explained that the bleeding in the chin area could not have been caused by the subdural haematoma , but might have resulted from the person having been violently pushed to the ground or having received any other type of blow .

The experts concluded that the first applicant suffered from an infirmity which would leave him with permanent motor , cognitive and mental after - effects .

On DATE and DATE the investigating judge appointed CARDINAL experts , PERSON , PERSON and PERSON , and also PERSON , an expert in “ martial arts , combat and self - defence sports and the ballistics of body movements and blows ” , to assist in the reconstruction of events and conduct a fresh medical examination of the first applicant . They were also mandated to determine whether the first applicant ’s statement as recorded on DATE could be deemed reliable .

The reconstruction took place on DATE . Police officers GPE and GPE confirmed that when they had first encountered the first applicant he had been acting rather nervously , seemed to have consumed alcohol , displayed an injury on his chin , and was red in the face . The ORG officers who had met GPE and PERSON had informed them that they had already fined the applicant that TIME . ORG officer C.A. explained that since the police officers had informed them that they had been insulted the decision had been taken to arrest the person concerned and the ORG officers had asked him to come with them . C.A. had put him in an armlock . For his part , PERSON stated that he had seized his left sleeve .

According to the ORG officers , they had taken the first applicant outside the railway station , and there had been some hesitation when GPE had told them that this was not the man who had been throwing stones at the trains . O.D.B. pointed out that GPE had then released him and stepped back . PERSON explained that the first applicant had then turned angrily to face him and punched him on the forearm . He had seized the applicant by the collar , forced him to his knees and placed him on his right side . He had then placed him face down on the ground and put his hands behind his back in order to handcuff him . After frisking him , he had taken the first applicant by the right arm , and the latter had stood up otherwise unaided .

A.H. confirmed that the applicant had made a gesture towards GPE ’s arm , and PERSON had warned him : “ do n’t you touch me ” . However , he explained that because he was resisting handcuffing , PERSON had struck him with his left knee .

One of the other police officers , GPE , confirmed that he had seen the person being struck by Y.F.s left knee , while PERSON mentioned a blow from the right knee . PERSON confirmed the action described by PERSON , although he was not sure which leg had been used .

The police officers added that the first applicant had been placed in the police vehicle and that when they had almost reached the police station he had said that he was going to vomit . They pointed out that the man had been very calm , but when he was about to leave the vehicle he said that he would need help because his knee hurt . PERSON had helped him out of the car , holding CARDINAL of his legs . That was when the applicant ’s head had slid along the head - rest and hit the car doorframe . PERSON , seeing that he had fainted , had asked a colleague to help him . Outside the vehicle the first applicant had vomited liquids and remained inert , mumbling rather than speaking . He had then been dragged into the sobering - up area .

The experts submitted their report on DATE . They observed that in GPE ’s version of events there had been no mention of blows or of the first applicant ’s head hitting the ground . They also noted that in ORG version , the blow was described as incapable of having had a major impact . They found that during the manoeuvre to bring the first applicant to the ground , he had been in a position to break his fall and , possibly , if he had been kneed , to protect himself . Moreover , they stated that if the kneeing incident was taken on board , the time which had elapsed between the latter and the arrival at the police station , when the first symptoms of the brain damage became evident , would have been TIME . They concluded that in view of the minimum period of evolution ( the “ response time ” ) between the traumatic injury and the first symptoms , that is to say DATE TIME , the kneeing could not be deemed to have caused the brain injury .

The experts considered that the various statements by the persons charged and the witnesses , as well as the reconstructions of the different versions , were “ completely incompatible with the forensic medical findings as regards the nature and/or seriousness of the injuries described in the various hospital and forensic reports ” , such injuries being “ necessarily the outcome of violent traumatic injuries ” .

They pointed out that the observations made during the reconstruction meant that it was unlikely , or even impossible , that the fracture had occurred during the events that had taken place at the railway station or the police station , explaining that such a fracture usually caused serious neck pain and stiffness in the cervical rachis , which had not been noted by the victim , the witnesses or the participants .

As regards the hypothesis mentioned during the investigation to the effect that the first applicant might have been hit by a bottle during a fight that had taken place during TIME DATE , the experts pointed out that they had not received any evidence to support that affirmation , but that a blow with a bottle could have caused an internal contusion which would not have produced any external symptoms on the scalp but would have caused a subdural haematoma such as that discovered on the first applicant ’s admission to hospital . The first manifestations felt by the first applicant on his way to the police station had most likely stemmed from just such a traumatic injury . The manifestations in question had therefore reflected the brain ’s intolerance of the mounting pressure exerted by the subdural haematoma , which had been tolerated for TIME and had then decompensated during the transfer to the police station .

DATE . The experts emphasised that the lapse of time between the applicant ’s arrest by the ORG brigade and the emergence of the traumatic brain injuries had been too short to conclude that the actions carried out and the blows struck by members of that brigade might have caused the brain damage . Furthermore , the actions of the ORG officers , as studied in detail on DATE of the reconstruction , could not have explained the intracranial lesions .

As regards the first applicant ’s condition , the experts considered that his residual rate of permanent partial disability ( IPP ) could be estimated at PERCENT , given his lack of autonomy in respect of all the basic activities of everyday life and his inability to engage in any autonomous occupational activity . His suffering and disfigurement were estimated at CARDINAL , and his loss of amenity and professional damage were declared absolute , total and definitive .

The experts observed that the first applicant had said that he had been “ attacked ” . They added , however , that any memory on the applicant ’s part had necessarily been “ reconstructed ” , either through unintentional , spontaneous fabrication or by repeating something overheard from people around him and possibly deformed by himself . He could certainly have had no direct memories of the events .

ORG , which had been contacted by CARDINAL members of parliament concerning the circumstances of the first applicant ’s arrest , assessed the procedural documents and interviewed the ORG officers , apart from the persons formally charged , and also the police officers . It adopted an opinion on DATE .

It first of all noted that when the applicant had been arrested in the underground carpark of the railway station he had not been accused of an offence , as the police officers had acknowledged that his profile did not match that of the person sought . It added that the QUANTITY police officers who had initially been involved had pointed out that they had not wanted to arrest the first applicant , but simply to check his identity , while the head of the ORG team had stated that he had stopped the applicant for questioning because he had thought that the police officers had been insulted and he had considered them as victims . The committee noted that the head of team had admitted that “ it was a bit topsy - turvy ” , and that on leaving the railway station he had been unable to understand why the officers had not handcuffed the man and taken him to the police station .

The committee observed that the arrest had been carried out in a confused and confusing manner . The ORG officers had explained that they had decided to handcuff the first applicant because he had insulted them and had struck GPE on the forearm .

NORP The committee noted that PERSON had partly confirmed that version , and pointed out that there had been a kind of confused “ stand - off ” between the ORG and the police officers outside the railway station . ORG had noted that the first applicant had been insulting the ORG officers , that he had lunged at one of them , hitting him on the arm or the shoulder , and that the officer in question had said “ Do n’t you touch me ! ” . After the applicant had been handcuffed , PERSON had decided to apprehend him on charges of violence against persons performing public duties , which violent acts he considered to have been committed in his presence .

The committee observed that LOC , who had taken the first applicant to the police station , had stated that he did not know the reason for the arrest .

DATE . The committee noted that even supposing that the head injury might have been caused by CARDINAL of the ORG officers , the police officers whom it had interviewed had provided no further information such as to establish its origin or the time of its causation . The only conclusions to be drawn from their statements were that the arrest had been violent , because the first applicant had initially resisted handcuffing .

The committee observed that the police and ORG involvement in the case had been extremely confused . It stated that the police sergeant , who had been assisted by CARDINAL police officers , ought to have taken control of the situation as soon as he arrived on the scene . He should have intervened between the ORG officers and the first applicant , immediately placing the latter under his protection , and have asked the ORG officers why he had been stopped and questioned , with a view to deciding on the appropriate action to take . The committee noted that instead of shouldering that responsibility , the police officers had passively looked on as the ORG officers used force which the former ’s mere presence had rendered illegitimate .

The committee considered that the lawfulness of the apprehension had been highly questionable . Indeed , the first CARDINAL police officers arriving on the scene had taken the view that the apprehension had not been justified by the first applicant ’s attitude outside the railway station . Interrogation of the various parties involved had not made clear whether a serious act of violence had been committed against GPE or whether the first applicant had merely pushed him away . The committee noted that the incident appeared in fact to have amounted to a mere scuffle to which PERSON had reacted impulsively .

It further noted that the ORG officers had imposed the decision to apprehend the first applicant on the police officers , who were not in control of the situation . The latter had merely passively accepted the applicant ’s handover in order to transport him to the police station . That confusion explained why the injury could not be imputed with any certainty to either of the services in question . The committee further stated that even supposing that the injury had been caused by the ORG officers during the handcuffing operation , at a time when the first applicant should have been under police protection , it was surprising , at the very least , that none of the police officers present had been able to identify the act of violence which had occasioned the injury .

In the committee ’s view , the injury under the applicant ’s chin raised issues . Even supposing that it had already been there prior to the apprehension and that the wound had reopened , as the police officers affirmed , it pointed at the very least to a very rough mode of transport of an injured person . Lastly , the committee pointed out that it was not its task to issue an opinion on the origin of the head injury or to attribute it to either of the services . It added that the possibility of a joint police / SUGE operation required the respective competences to be strictly defined . It should be reiterated that the arrival of the police removes the ORG mandate , immediately placing the operation under the sole authority of the most senior police officer present . Moreover , ORG officers should also be aware of the conditions for the lawfulness of in flagrante apprehensions and should in fact , like police personnel , undergo compulsory conflict management training .

ORG Lastly , the committee decided to transmit its opinion to the public prosecutor for assessment of the expediency of prosecuting those concerned on charges of failure to assist a person in danger .

On DATE the investigating judge of ORG issued a discontinuance order .

She considered that the serious brain damage suffered by the first applicant had originated in events preceding his questioning by the ORG officers and his transport to the police station by the police officers . She observed that the investigation had failed to establish the precise circumstances under which the events had occurred and to identify the perpetrator . No further investigation had been possible because all the witnesses identified had been heard and the first applicant was no longer capable of providing further information on the series of events of which he had been the victim .

The investigating judge added that the circumstance surrounding the apprehension had been caused by the first applicant ’s insulting and violent behaviour . No proof had been provided of illegitimate violence , since it had transpired from the proceedings and the witness statements that the applicant ’s head had not hit the ground , and that even supposing that GPE had kneed him , such acts did not fall within the category of deliberate violence . The judge stated that the investigation had shown that , owing to the position in which GPE had been standing , the intensity of his action had necessarily been limited , forming part of an operational technique .

The applicants , all of whom had joined the proceedings as civil parties , appealed against the discontinuance decision , seeking :

- its annulment pursuant to ORG CARDINAL and CARDINAL of LAW on the grounds that it was identically worded to the public prosecutor ’s final submissions ;

- the appointment of a panel of experts mandated to produce a fresh report under the supervision of a member of ORG , and ;

- in the alternative , the committal of the defendants for trial by the criminal court for the acts of violence perpetrated against the first applicant .

By judgment of CARDINAL September CARDINAL the Investigations Division of ORG dismissed all those requests . It held that the civil parties had sustained no damage as a result of the grounds of nullity on which they had relied , since they could have adduced their claims in adversarial proceedings before it ; it also pointed out that the entire proceedings had been submitted to it and that it was empowered to deal with all aspects of the case . As regards the request for a new expert report , ORG noted that the first expert report had been drawn up by a panel of CARDINAL experts with complementary specialities , who had all attended the extremely long and detailed reconstruction organised by the investigating judge , during which they had seen all those involved in the impugned events repeat several times the gestures which they had described , covering all the different versions presented . It held that another expert opinion , for which all this input could not be replicated , would be of no real value for establishing the truth , and that it was neither necessary nor practicable to repeat such a complex reconstruction , which had at no stage been criticised by the various parties involved in the proceedings . The ORG added that in medical terms , the civil parties had provided no scientific evidence capable of contradicting the conclusions of the panel of experts , merely affirming that the extremely serious injuries sustained by the first applicant must have originated in the manner of his arrest .

As regards the violence in question , ORG noted that the first applicant had suddenly lost his temper and struck GPE violently on the arm , which had been a deliberate , aggressive act . They therefore considered that the SUGE officers’ intervention to neutralise him had been amply justified , subject to the operation having taken place under appropriate conditions . It nevertheless noted that the operation seemed to have been more “ robust ” than the ORG officers had admitted , the latter having spoken of a “ textbook ” operation , which evoked a theoretical ideal and seemed “ too perfect ” . Furthermore , the other parties involved had described a swifter series of events than the “ takedown ” in CARDINAL separate stages described by PERSON As regards the possibility that the first applicant had been kneed in the head , ORG noted divergences in the various witness statements , and concluded that some uncertainty remained as regards both whether such a blow from the knee had actually been administered and whether it had been intentional .

Finally , as regards the causal link between the arrest and the first applicant ’s injuries , ORG noted the general consensus that the applicant had been “ in good shape ” on being installed in the police vehicle after his handcuffing , and that neither his position in the vehicle nor the speed of transport had suggested that he had been the target of any violence at this stage of events . Referring to the reconstruction , ORG considered that by reprising all the descriptions of the actions by all those involved and taking on board the hypotheses least favourable to the ORG officers in question , the experts had been able to ascertain that the arrestee ’s head had not hit the ground in any of the reconstructed actions , that the blow from the knee , if such a blow had ever actually occurred , would have affected the right craniofacial region , that if it had been struck as described it could only have had a minor impact and that the actions carried out could not explain the intracranial lesions noted , especially the cranial fracture on the left side of the head . ORG further observed that the experts’ findings had been very clear , considering it highly unlikely , or indeed impossible , that the fracture had been caused during the incidents at the railway station or at the police station .

The ORG pointed out that the experts had extensively justified their change of mind on the basis of factors which they had noted from the reconstructions of all the different versions , which they had attended , and that the medical evidence gathered would appear to support the existence of a previous traumatic injury which had taken some time to manifest . Lastly , it noted that the previous findings concerning the first applicant ’s physical state during TIME had lent credence to that eventuality . Furthermore , the time taken for the symptoms to appear would have been incompatible per se with the short lapse of time between the arrest and the first symptoms , too soon after the operation to have been caused by it .

ORG concluded that the investigation had failed to gather sufficient evidence that a criminal offence had been committed .

On DATE ORG dismissed the applicants’ appeal on points of law . It held that the applicants could not complain about the reasons given for the discontinuance decision because , owing to the devolutive effect of the appeal , ORG had substituted its own reasoning for the original CARDINAL . Moreover , it considered that that ORG had analysed all the facts criticised in the complaint , answered all the main points set out in the civil parties’ memorial and determined , on the basis of sufficient and non - contradictory grounds , that there was insufficient evidence that any individuals had committed the offence of collective assault having caused a permanent disability or any other offence .

In observations received by the registry of ORG ( “ LOC ” ) on DATE , ORG against acts of terrorism and other criminal offences requested the reimbursement of provisional awards made to the first applicant to a total of MONEY ( ORG ) , under CARDINAL LOC decisions of DATE , CARDINAL DATE and DATE .


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

George Nicolaou;Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

I. THE CIRCUMSTANCES OF THE CASE

The applicant was born in DATE and lives in GPE .

A. Proceedings concerning the recognition of the applicant ’s status as a war veteran

On an unspecified date in DATE the applicant lodged an application to have his status as a ( national liberation ) war veteran recognised . On DATE ORG on ORG ( “ the LOC ” ) , which was the body responsible for the examination of such applications , informed the applicant that it had stopped receiving applications in DATE .

On an unspecified date in DATE the applicant lodged an application for leave to appeal out of time . On CARDINAL DATE ORG allowed his application for leave to submit an application to ORG out of time .

On DATE , following the ORG decision , the applicant requested ORG to have his status as a ( national liberation ) war veteran recognised .

On DATE ORG informed him , by way of a letter , that , in spite of ORG decision , it had ceased to operate on DATE and could not examine his application . The applicant did not institute any judicial proceedings in response to ORG communication .

On DATE the applicant was informed by ORG at ORG ( PERSON e Informacionit , ORG ) that DATE for ORG operations had been extended to DATE ( paragraph CARDINAL below ) .

On DATE the applicant lodged a civil action with ORG ( “ the ORG ” ) for the legal recognition of his time and status as a ( national liberation ) war veteran ( vërtetimin e faktit juridik të njohjes së kohës së veteranit të ORG - it ... si dhe njohjen e statusit të veteranit ) . He relied on LAW ( “ ORG ” ) ( paragraph CARDINAL below ) , ORG ( paragraph CARDINAL below ) and the Council of Ministers’ decisions no . CARDINAL of CARDINAL DATE and no . CARDINAL of DATE ( paragraph CARDINAL below ) .

On DATE ORG allowed the action . It found that from DATE to the liberation of the country , the applicant had been a messenger for a partisan unit ( korrier ... në shërbim të çetës partizane ) . ORG considered just the applicant ’s reliance on ORG no . CARDINAL of DATE . It recognised the applicant ’s war veteran status ( vendosi ... njohjen e statusit të veteranit ) .

On DATE ORG , which had intervened as a third party in the proceedings , appealed against ORG decision arguing that the decision had been taken contrary to the law .

On DATE , ORG upheld that decision . It found that , in so far as ORG did not challenge the accuracy of the evidence examined by ORG , its decision was considered just and given in accordance with the law ( ... meqenëse për provat e paraqitura personi i tretë nuk ka pretendime , PERSON çmon se vendimi i ORG Rrethit Tiranë është i drejtë dhe i bazuar dhe si i tillë duhet të lihet në fuqi ) . On DATE , following a request by the applicant , an enforcement writ was issued .

On DATE a bailiff requested ORG to voluntary comply with the court ’s decision .

On DATE the bailiff ’s office decided to conclude the enforcement proceedings ( pushimin e ekzekutimit ) on the grounds that the judgment was of a declaratory nature , was not directed against a debtor and that no rights or obligations had arisen therefrom . The court decision had been transmitted to ORG for further action .

Following requests by the applicant to the authorities , on CARDINAL and CARDINAL DATE and DATE ORG informed him that ORG had ceased to exist on DATE . Despite efforts to extend its operations into DATE , no legislation had been subsequently adopted to enable it to continue .

B. Proceedings concerning the payment of financial entitlements on account of the applicant ’s war veteran status

On DATE the applicant lodged a civil claim requesting ORG to pay him the financial entitlements he was eligible to under domestic law on account of his status as a war veteran .

On DATE ORG dismissed the claim . It held that the decision of DATE , as upheld on appeal on DATE , recognised the existence of a legal fact on the basis of LAW ORG and was of a declaratory nature . An interested party could institute proceedings for the recognition of the existence of a legal fact ; however , the authority competent for recognising a person ’s war veteran status was ORG . That entity had never examined an application made by the applicant , who had never been recognised as having war veteran status . When a decision by ORG was taken , it was amenable to appeal before the national courts . ORG powers had not been transferred to any other authority .

Appeals lodged by the applicant with ORG , ORG and ORG were dismissed on DATE , and DATE and CARDINAL DATE respectively .


Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

A list of the applicants is set out in the Appendix .

ORG ( “ the Government ” ) are represented by PERSON PERSON GPE , Representative of GPE to ORG .

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

DATE the applicants took part in the clean - up operation at the GPE nuclear disaster site . They were subsequently registered disabled and became entitled to various social benefits and compensation paid on a regular basis .

Considering these benefits insufficient , the applicants together with CARDINAL other people , most of them represented by PERSON , sued ORG for additional compensation corresponding to non - pecuniary damage suffered as a result of their participation in the operation .

NORP On different dates in DATE and DATE the ORG ( “ the FAC ” ) , presided over by Judge Be . , allowed their claims in part and awarded each claimant , including the applicants , compensation ranging MONEY ( RUB ) and RUB CARDINAL for non - pecuniary damage .

No appeals were lodged against these judgments within the statutory DATE time - limit .

On DATE Mr PERSON ( no . CARDINAL ) , PERSON NORP ( no . CARDINAL/CARDINAL ) and PERSON ( no . CARDINAL/CARDINAL ) received the amounts awarded by ORG .

On DATE Mr GPE ( no . MONEY ) received his payment .

On DATE and DATE respectively ORG , again presided over by Judge Be . , rejected a request by the defendant authority to have the time - limits for appeal extended ( “ extension request ” ) on the ground that it had not given a valid reason for its failure to comply with the statutory timelimits . The decision indicated that the defendant authority had been represented at the hearing by PERSON , an employee of the regional department of ORG .

On DATE the defendant authority lodged an appeal against the decision issued in DATE by which ORG refused to extend the time - limits for appealing against the main judgments . It was accompanied by an extension request .

On DATE and DATE respectively ORG , presided over by Judge Be . , granted the defendant authority ’s extension request .

Mr NORP appealed .

On DATE the regional ORG dismissed his appeal on the grounds that the domestic courts had failed to serve the defendant authority with the main judgments . Moreover , it noted that it was apparent from the transcript of the hearing of DATE that ORG had neither verified whether PERSON had been duly appointed to represent ORG nor ascertained her identity .

On DATE the regional ORG quashed the decisions adopted by ORG on DATE and granted the defendant authority ’s extension request on the ground that it had had a valid reason for missing the statutory time - limit for appeal .

On DATE the regional ORG quashed the main judgments delivered by ORG in the applicants’ favour on the grounds that they had been based on a retrospective application of the law . The applicants were ordered to repay the sums received under the judgments .

The applicants , all assisted by their lawyers , lodged a supervisory review application . There is no indication that they requested the enforcement proceedings to be suspended pending the examination of their supervisory review application .

According to the applicants , they were visited by bailiffs who sought the reimbursement of the sums received under the quashed judgments .

On DATE and CARDINAL DATE the ORG of the regional ORG partially quashed the appeal judgments as regards the applicants’ obligation to reimburse the sums paid .

On an unspecified date at DATE the President of ORG lodged a request with the Judicial Qualifications Board of Kabardino - Balkaria , seeking to have disciplinary measures taken against Judge Be . for serious procedural violations during the examination of civil claims for compensation by clean - up workers at the GPE nuclear disaster site . In particular , she had accepted for examination claims failing to comply with the admissibility criteria , had failed to publish her judgments on the court ’s website within a reasonable time , had allowed representatives without proper forms of authority to take part in the proceedings , and had failed to properly inform the parties of the decisions taken .

On DATE the ORG found Judge Be . responsible for the serious procedural violations and ordered her removal from office .

On DATE the NORP investigative committee initiated a criminal investigation against Judge Be . under LAW of LAW ( pronouncement of a deliberately unlawful judgment ) .

On DATE the LOC investigative committee opened criminal case no . CARDINAL/CARDINAL - CARDINAL against PERSON , the ORG representative in the domestic proceedings , under LAW ( fraud ) . PERSON , the clerk of ORG was also prosecuted .

According to the Government , in DATE both of them decided to plead guilty .

On DATE Mr GPE , the head of the regional organisation ORG , was arrested on suspicion of fraud .

It was established in the course of the investigation that on DATE and DATE he had withdrawn money from CARDINAL other former GPE workers’ bank accounts . However , he had not informed them of the exact amounts awarded by the court and had given them only a part of their compensation .

Article CARDINAL of LAW ( “ the CCvP ” ) provides that a court may extend a time - limit for a procedural action , such as lodging an appeal , if it finds that a party has a valid reason for missing it .

Under LAW CCvP , in force before DATE , an appeal in a civil case could be lodged within DATE of delivery of the firstinstance judgment in its final form . Since DATE the timelimit for lodging an appeal has been DATE ( Article CARDINAL of the CCvP ) .

Article CARDINAL CARDINAL of the CCvP stipulates that where a decision to award compensation for damage to health is quashed on appeal or by way of supervisory review , and that decision has been taken in the absence of bad faith and miscalculation on the part of the recipient , the compensation itself can not be claimed back .

Section DATE ( CARDINAL ) ( CARDINAL ) of LAW provides that enforcement proceedings may be suspended by the domestic court if the judgment on the basis of which a writ of execution was issued is amenable to review . Section CARDINAL(CARDINAL ) of the same LAW provides that no coercive measures may be taken if enforcement proceedings have been stayed .


CASE OF LUPENI GREEK CATHOLIC PARISH AND OTHERS v. ROMANIA

No violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Access to court);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time);No violation of Article 14+6-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 6 - Right to a fair trial;Article 6-1 - Access to court);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction)

Alena Poláčková;András Sajó;Angelika Nußberger;Branko Lubarda;Carlo Ranzoni;Egidijus Kūris;George Nicolaou;Guido Raimondi;Iulia Motoc;Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mārtiņš Mits;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Paulo Pinto De Albuquerque;Robert Spano;Síofra O’Leary;Stéphanie Mourou-Vikström;Georges Ravarani

The CARDINAL applicants belong to ORG to GPE , also known as ORG or ORG .

NORP In DATE ORG was dissolved by Decree no . MONEY , and its assets , with the exception of parish property , were transferred to the ORG ; an inter - departmental committee was given responsibility for determining the ultimate allocation of the parish property . However , the committee never completed this task and the parish property was transferred to ORG under Decree no . ORG .

In DATE the property comprising the church building and the adjoining courtyard , which had belonged to the first applicant , was entered in the land register as having been transferred to the ownership of the PERSON I NORP Orthodox Parish ( “ the NORP parish ” ) .

After DATE of the communist regime in DATE , Decree no . DATE was repealed by Legislative Decree no . CARDINAL/CARDINAL . ORG was officially recognised by LAW no . CARDINAL/CARDINAL on certain measures concerning ORG to GPE . LAW of that LAW provided that the legal status of property that had belonged to the ORG parishes and that was in the possession of ORG was to be determined by joint committees made up of representatives of both ORG and NORP clergy . In reaching their decisions , the committees were to take into account “ the wishes of the worshippers in the communities in possession of these properties ” .

DATE no . CARDINAL/CARDINAL was amended by Government Ordinance no . CARDINAL/CARDINAL and PERSON no . PERSON . Under the amended decree , in the event of disagreement between the members of the clergy representing the CARDINAL denominations in a joint committee , the party with an interest in bringing judicial proceedings could do so under “ ordinary law ” ( drept comun , see the procedure referred to in CARDINAL and CARDINAL below ) .

The first applicant was legally re - established on DATE and the applicants brought proceedings before the joint committee to have their former properties returned to them , but without success .

The domestic law , in particular Legislative Decree no . DATE and the amendments made to it in DATE and DATE , is set out in DATE below .

On DATE the second applicant brought proceedings before the domestic courts against ORG and the NORP parish . It requested that the expropriation of the church building and cemetery in PERSON , carried out on the basis of Decree no . DATE , be set aside , and that the church be returned to the first applicant . The first and third applicants were mentioned in the initial statement of claim as representatives of the second applicant .

By a judgment of DATE , ORG ( “ the ORG ” ) declared the action inadmissible on the ground that the dispute ought to be settled through the special procedure established by Legislative Decree no . DATE , that is , before the joint committee .

The first and second applicants lodged an appeal against that judgment . On DATE they requested a stay of proceedings so that the case could be resolved by friendly settlement . On DATE they applied for it to be restored to the court ’s list of cases . On DATE , ORG ( “ the Court of Appeal ” ) dismissed the appeal , holding that the action was premature . In a final judgment of DATE , ruling on an appeal on points of law ( recurs ) by the first and second applicants , ORG and ORG ( “ the High Court ” ) , quashed ORG judgment and sent the case back to that court to be examined on the merits .

On DATE , in application of the legislative amendments to Legislative Decree no . CARDINAL/CARDINAL which gave the courts jurisdiction to rule on the merits of cases concerning properties that had belonged to the ORG parishes and were in the possession of ORG ( see paragraph CARDINAL below ) , ORG upheld the second applicant ’s appeal and sent the case back to ORG .

On DATE , when the case was restored to ORG list , the action was amended in order to add the first and the third applicants formally as claimants in the proceedings . On DATE the applicants supplemented their action with a claim for recovery of possession of the properties in question , on the basis of ordinary law .

ORG asked the parties to organise a meeting in order to decide the fate of the church building in question , and to inform it of the outcome of the negotiations by DATE . The parties met on DATE without reaching an agreement .

By a judgment of DATE , ORG dismissed the applicants’ action on the ground that the NORP parish had become the legally recognised owner of the contested property by virtue of Decree no . MONEY and that it had behaved as an owner , inter alia by ensuring that the church was maintained properly .

By a judgment of DATE , ruling on an appeal by the applicants , ORG set aside the judgment of DATE on grounds of a procedural defect and remitted the case to ORG .

By a judgment of CARDINAL DATE , ORG found in favour of the applicants and ordered that the church be returned to the first applicant . Comparing the parties’ title deeds in respect of the property in question , it noted that ORG had been entered in the land register as owner of the property from DATE , and that in DATE ORG had entered its ownership right to the same property , transferred to it under Decree no . CARDINAL/CARDINAL . It held that the repealing of Decree no . MONEY had had the effect in the present case of terminating the NORP party ’s right of ownership over the disputed property . It also pointed out that the first applicant did not have a place of worship and that it was obliged to hold its religious services in LOC which it rented from ORG .

By a judgment of CARDINAL DATE , ORG allowed an appeal lodged by the NORP parish and dismissed the applicants’ action . On the basis of the evidence in the case file , it noted , firstly , that the church building being claimed and CARDINAL parsonages in ORG had been constructed DATE by LOC NORP and NORP worshippers and that , after its construction , the church building had been used alternately for services by both denominations . It noted that in DATE the members of ORG had been obliged to convert to ORG and that this church building had been transferred to the ownership of ORG , which had maintained it and carried out renovation work .

ORG also examined statements , collected by ORG , from CARDINAL witnesses . It noted that these statements supported the statistical data indicating that there were more NORP than NORP worshippers in PERSON . It noted that , according to the most recent census , there were CARDINAL NORP worshippers and CARDINAL NORP worshippers in PERSON . It also compared the witness statements , written documents attesting to the number of NORP worshippers as declared when ORG was re - established in PERSON , and data from the most recent census conducted in PERSON .

It then reasoned as follows :

“ ... although the action was based on the provisions of ordinary law , namely LAW of LAW , in view of its subject matter the court can not rule without applying the provisions of LAW no . DATE , to the effect that the legal situation of places of worship and parsonages ... must be determined taking account of the wishes of the worshippers in the community that is in possession of the properties ” .

It considered that , given that there were more NORP than NORP worshippers in PERSON , including the converts who no longer wished to return to ORG , their refusal had to be taken into account in ruling on the case . It found that “ having regard to the social and historical realities , ignoring the wishes and proportional strength of NORP worshippers , who are in the majority , in relation to the far fewer NORP Catholic worshippers , would be to undermine the stability and certainty of legal relations ” .

ORG held that the fact that Decree no . CARDINAL/CARDINAL had been repealed did not automatically mean that ORG title had been annulled , as this Decree represented the law in force at the time that the ownership right was transferred . In consequence , it considered that , although it had been granted under legislation which had subsequently been declared unlawful , ORG title had been valid from the date on which the transfer had been made , with the result that the action to recover possession was unfounded .

The applicants lodged an appeal on points of law before ORG , alleging that ORG had incorrectly applied the legal provisions governing actions for recovery of possession . They argued that the right of ownership could not be linked to a religion ’s majority status , since ownership was a legal concept that was independent of the numerical strength and wishes of the parties .

On DATE ORG , by a majority , delivered a final judgment in which it set out , in detail , the decisions taken by the lower courts . Reiterating that those courts alone had jurisdiction to establish the facts , it endorsed their findings of fact . It dismissed the ORG appeal on points of law and upheld the judgment delivered on appeal . As to the applicable law , it held , in particular , as follows :

“ Pursuant to Legislative Decree no . DATE ... a distinction is made CARDINAL situations : ( a ) that in which the property is in the ownership of the State ... ( b ) that in which the places of worship and the parishes have been taken over by ORG and in respect of which [ the question of ] restitution will be decided by a joint committee made up of representatives of the clergy of the CARDINAL denominations , a committee which will take account of the wishes of the worshippers in the communities in possession of these properties .

In the light of those provisions , ORG , examining an action for recovery of possession of a place of worship , correctly applied the criterion of the wishes of the ( predominantly NORP ) worshippers of the community in possession of the property , while simultaneously emphasising the unlawfulness of the reasoning of the first - instance court , which had merely compared the title deeds and ignored the special law ...

However , it appears that there are CARDINAL NORP worshippers and CARDINAL NORP worshippers in PERSON , that the worshippers who were obliged to transfer to ORG in DATE do not wish to return to ORG and that an attempt has been made to resolve [ the dispute ] through the joint clerical committee ( according to TIME ... the NORP party had indicated that the request for the return of the place of worship could not be granted , having regard to the wishes of the worshippers in the parish and the fact that since DATE the place of worship has been administered by the NORP believers ) ...

The fact of supplementing LAW no . CARDINAL/CARDINAL ] with a paragraph stating “ If the committee does not meet within the period established in its mandate , or if the committee does not reach a conclusion or if one of the parties is dissatisfied with the decision taken by the committee , the party with an interest in bringing judicial proceedings may do so under ordinary law ” does not mean that actions for restitution governed by the special provisions are transformed into applications to establish title under ordinary law .

A court which is required to examine such an action can not ignore the special regulations in this area , which indicate the criterion to be taken into account in resolving such claims , namely the wishes of the worshippers in the community in possession of the property .

In other words , by virtue of its full jurisdiction and in order not to compromise access to justice , a court may be called upon to decide an action on the merits , even though the prior procedure did not culminate in a decision by the joint clerical committee ; at the same time , however , it may not go beyond the limits imposed by the special statutory framework .

The priority to be given to the criterion of the worshippers’ wishes was decided by the legislature , which wished in this way to regulate an area which concerns the buildings assigned to a particular use ( places of worship ) , [ and so ] the court is not entitled to criticise the law .

Moreover , in ruling on the alleged unconstitutionality of LAW no . MONEY and the criterion of the worshippers’ wishes , ORG has stated that the text did not infringe the principle of democracy of GPE , nor that of the freedom of religious denominations ( ORG decision no . FAC , ORG decision no . CARDINAL/CARDINAL ) ...

In ORG view , the fact that the ORG unlawfully dispossessed ORG of its places of worship in DATE can not be remedied – in a ORG subject to the rule of law – by committing the opposite error , that is , by failing to take account of the wishes of the majority of worshippers at the point of adopting the given measure . Returning the properties which belonged to ORG without respecting the criteria imposed by LAW no . DATE would undermine the stability and certainty of legal relations . A right can not be reconstructed in abstracto , in disregard of social and historical realities , and mitigation of past damage must not create disproportionate new problems ...

Moreover , in order to be able to bring an action for recovery of possession under ordinary law rather than under the special law , the appellants must rely on the existence of a “ possession ” , namely of a pecuniary right that could be relied upon by them .

However , the NORP Catholic denomination was dissolved by Decree no . GPE and the assets of ORG passed into the ownership of the ORG . The building in question is currently entered ( in the land register ... as belonging to the PERSON I Romanian Orthodox Church .

The fact that , through Legislative Decree no . CARDINAL/CARDINAL , ORG to GPE ( NORP Catholic ) was officially recognised following the repeal of Decree no . FAC does not mean that all of its titles to property were restored , in so far as the right of ownership is subject to a procedure ( namely the provisions of Legislative Decree no . DATE and its subsequent amendments ) , and the hope of obtaining title to property is not to be equated with a possession ... ”

In a separate opinion , CARDINAL of the judges sitting in the case noted that the legislature ’s reference to ordinary law could not be reduced to a purely procedural dimension , but was to be interpreted as the application of a rule of substantive law . Referring to the rules governing the preparation of statutes , the judge expressed the opinion that if the legislature had wished to ascribe a specific meaning to this reference to “ ordinary law ” , it ought to have done so explicitly . As an action for recovery of possession involved a comparison of the relevant property titles , the judge concluded that ORG had no such title to the church building in question .


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

Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicants are NORP nationals . They owned rooms in a dormitory building in the municipality of PERSON . The municipality reclaimed the building , and the ORG title to the real property in question was annulled as a result of civil proceedings brought against them by a prosecutor on behalf of the municipality . According to the Government , the judgment has not been enforced and the applicants continue to reside in the rooms they had bought .

PERSON and Mr PERSON ( application no . CARDINAL/CARDINAL ) submitted that they had never moved into the rooms as they were occupied by other individuals .

In DATE a ORG - owned enterprise called ORG was privatised and reorganised into a joint - stock limited liability company called ORG . The privatisation plan was approved by the municipality and ORG signed the plan on its behalf . In accordance with the privatisation plan , all residential buildings previously listed on ORG ’s balance sheet were to be transferred to the municipality , while the administrative buildings were to be taken over by PERSON . The privatisation plan referred to a building located at no . CARDINAL PERSON , PERSON , as an administrative building ( used for non - residential purposes ) , and it was transferred to PERSON .

As a result of a number of reorganisations of ORG , the title to the building in question was transferred to the closed joint - stock company , ORG , separate rooms in the building were resold to third parties , including the applicants . The information concerning the applicants’ titles to the property can be found in the appendix below . According to the title deeds , the applicants were owners of non - residential LOC .

The applicants moved into the rooms and resided there .

On DATE ORG found the NORP privatisation plan and the agreement of CARDINAL DATE – which ORG and PERSON had entered into , and which partly concerned the transfer of the title to the building to Stroitel – null and void .

On an unspecified date the Promyshlenniy district prosecutor , acting in the interests of the municipality , brought an action against ORG , ORG and the owners of the rooms in the former dormitory building , including the applicants . Referring to the invalidation of the privatisation of NORP , the prosecutor submitted that the subsequent transactions relating to the building were also null and void , and asked the court to return the title to the building to the municipality .

According to the applicants , on DATE ORG of Samara ( “ the ORG ” ) dismissed the prosecutor ’s claim . On DATE ORG ( “ the ORG ” ) quashed that judgment and remitted the matter to ORG for fresh consideration .

On DATE ORG dismissed the prosecutor ’s claim . On DATE ORG upheld the judgment of DATE on appeal .

On DATE the Presidium of ORG quashed the judgments of DATE and DATE by way of supervisory review , and remitted the matter to ORG for fresh consideration . The ORG noted that the lower courts had erroneously applied substantive and procedural laws when deciding the matter .

On DATE ORG allowed the prosecutor ’s claim in full . The court recognised that the owners of the rooms were bona fide purchasers , but ordered that the title to the building be transferred to the municipality . The municipality , the true owner of the building , had not authorised the purchase of the rooms in the building by their current owners . Accordingly , the sale of the building in the absence of authorisation by the municipality meant that the municipality had lost possession against its will , and could recover its property from bona fide purchasers .

On DATE ORG upheld ORG judgment of DATE on appeal .

The applicants in the present application , Mr PERSON and PERSON , were minors at the relevant time .

On an unspecified date , acting on their behalf , the ORG mother sued PERSON ( the person who had sold the rooms to the applicants ) for damages .

On DATE and DATE ORG of PERSON granted her claims and awarded damages in the amount of MONEY ( RUB ) to each of the applicants . On DATE and CARDINAL July CARDINAL ORG upheld the above - mentioned judgments on appeal .

On an unspecified date a bailiff initiated enforcement proceedings . On DATE he discontinued the enforcement proceedings , noting that it was impossible to establish PERSON whereabouts or identify his assets , if any such assets existed .

It appears that the enforcement proceedings in respect of the judgment of DATE are still pending .


CASE OF CUNHA MARTINS DA SILVA COUTO v. PORTUGAL

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

Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On an unknown date , the applicant and ORG dissolved their marriage and the latter stayed with the children ’s custody .

On DATE ORG adopted a decision establishing the applicant ’s contact rigths .

On DATE I. sent a letter to the applicant informing him that she had suspended his contact rights .

On DATE the applicant lodged an application with ORG informing about ORG ’s decision to not comply with the court ’s decision of DATE and asking the court to schedule a hearing with him and his former wife ( audiência PERSON ) so he could continue to have access to his children ( processo de incumprimento das responsabilidades parentais ) .

NORP In DATE ORG held a hearing with the parents and subsequently requested a social report about the children to ORG ( Instituto da Segurança Social ) .

On DATE ORG adopted a decision suspending the applicant ’s right to visit his children for DATE on the grounds of the social report that had been submitted on CARDINAL DATE . ORG also requested a psychological assessment of the children .

From DATE the applicant lodged several requests with ORG seeking the reestablishment of his right to visit his children and asking permission to spend special dates ( birthdays , DATE , GPE ) with them .

On DATE ORG submitted the children ’s psychological report to ORG . On DATE the report was challenged by the applicant who complained that he had not been heard . On DATE ORG ordered the psychological report to be completed after the applicant had been heard .

On DATE and CARDINAL DATE CARDINAL new reports were submitted to ORG and a mediation hearing with the parents was scheduled for DATE . The hearing did not take place due to ORG refusal to participate in the mediation . The proceedings continued and , on an unknown date , ORG adopted a decision stating that the applicant ’s visits would continue to take place in an open place and in dates to be decided by the court .

On DATE a hearing with the parents took place and both agreed that the applicant could continue to visit his children in ORG premises .

On DATE ORG requested another social report on the children ’s situation and their family .

On DATE another social report was submitted to ORG and on DATE the applicant was heard .

A hearing with the parents was scheduled for DATE and later postponed to CARDINAL DATE . DATE after this hearing , the children were heard by ORG .

On DATE a new hearing took place in which the applicant and I. reached a settlement concerning the rights of the former to visit the children . On DATE , ORG endorsed the agreement .