Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Degrading treatment;Inhuman treatment);No violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture;Effective investigation)

The applicants are :

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE ;

PERSON , born in DATE .

The applicants live in LOC , GPE . They are members of CARDINAL families originally from GPE : the first and second applicants are married and the third to fifth applicants are their children ; the sixth to seventh applicants are married and the eighth to tenth applicants are their children . The PERSON family ( the first to fifth applicants ; the first applicant family ) have lived in LOC since DATE ; the PERSON family ( DATE applicants ; the second applicant family ) have lived in LOC since DATE .

The applicants submitted that attitudes towards the NORP minority had worsened after DATE , when the second armed conflict in GPE had started .

On DATE the third and eighth applicants had a fight with Mr A.B. in the settlement of GPE . The third applicant was injured in the hand and Mr PERSON took him to the hospital . On DATE the GPE regional forensic bureau noted knife wounds on the third applicant ’s hand , which were classified as passing damage to health . According to the applicants , both parties to the conflict decided not to contact the authorities in this regard . As is apparent from subsequent questioning , the PERSON family had asked PERSON A.B. to pay them MONEY ( RUB ) by way of compensation for their expenses , while Mr A.B. offered RUB CARDINAL .

In DATE ORG of the ORG ( ROVD ) questioned Mr A.B. about threats to his life by the third and eighth applicants and opened criminal investigation file no . DATE under Article CARDINAL , paragraph CARDINAL of LAW ( threat to life or health ) . It does not appear that anyone was charged or found guilty within this set of proceedings . In DATE Mr PERSON submitted a statement to ORG alleging that the police had used threats to force him to lodge a complaint against the first applicant family .

On DATE the investigator in charge of the case issued urgent search warrants at both applicants’ NORP homes , referring to the possible presence of firearms . On DATE that decision was found lawful by the district court .

On DATE the first applicant family were at home at FAC , in the Verkhnesuyerskoye settlement in LOC . At TIME three vehicles – a PERSON minibus , a black PERSON and a VAZ-CARDINAL – arrived at their house . According to the applicants , CARDINAL men from various law - enforcement agencies got out of the vehicles . Some of them were wearing military uniforms and masks , others were dressed in civilian clothes . The applicants later identified PERSON ORG and PERSON ORG from ORG ( ORG ) , Mr. PERSON , deputy head of PERSON , Mr. PERSON and Mr U. from PERSON . The ORG servicemen carried automatic weapons and hand pistols . PERSON ORG was in charge of carrying out the search .

According to the applicants , no search warrant or other document was produced by the police . The fourth and fifth applicants were in the courtyard ; the policemen beat them there and said “ Why do n’t you go to GPE , to fight us there ? ”

The servicemen wearing masks and Mr GPE entered the house . Mr ORG grabbed the second applicant by the hand and pushed her towards the sofa in order to handcuff her ; she fell to the floor and felt severe pain in her back . The first applicant was also punched in his back and legs by PERSON ORG

The third applicant was in the house . He had his sweater pulled over his head and was handcuffed . The servicemen beat him inside the house , then pulled him to the yard and beat him there in front of his brothers and then took him to the barn . According to the applicants , the third applicant ’s pants were removed and he was threatened that his genitals would be “ pulled off with a wire ” ; he was then thrown into manure and beaten .

According to the ORG statements , the servicemen mocked the third , fourth and fifth applicants saying that they would not be able to “ beget more NORP ” . They also forced them to shout humiliating comments . They referred to the events in the village of GPE , where in DATE CARDINAL local residents of NORP origin had been injured by unidentified persons ( see application no . CARDINAL/CARDINAL , PERSON v. GPE ) .

The second applicant saw that the fourth applicant , who suffered from epilepsy , had been brought into the house and was lying on the floor ; he was very pale . The second applicant was not allowed to give him medicine .

The search of the Antayevs’ house lasted for TIME . At some point PERSON ORG announced that he had found a cartridge from a gun . The second applicant alleged that she had seen him taking it out of his pocket .

The search record of DATE drawn up by the ORG officers mentioned CARDINAL attesting witnesses and bore their signatures , as well as signatures by the third applicant indicating that he had been informed of his rights and obligations prior to the search and after it had been completed . No remarks or objections were noted in the record . The record listed one CARDINAL PERSON calibre cartridge for an automatic gun which had been found in a drawer in the kitchen , DATE videotapes and CARDINAL items of printed material in a foreign language . The copy of the record is partly illegible , but it appears that after the discovery of the cartridge the third applicant , in the presence of CARDINAL witnesses , stated that he had no knowledge of it .

As is apparent from subsequent documents , in DATE TIME videotapes were returned to the first applicant .

After the search , the first and third applicants were taken by the police to the offices of the local administration , where they were questioned separately for TIME in relation to the criminal investigation concerning threats to Mr A.B. They then returned home .

A relative of the Vashayevs’ arrived from PERSON and took the second , third and fourth applicants to hospital .

According to the certificates issued by the LOC district hospital in DATE , the second applicant remained at the hospital from DATE to DATE . She was diagnosed with “ acute osteochondrosis [ degenerative disc disease ] , CARDINAL - sided lumbar - sacral radiculitis , post - traumatic coxalgia , hypertension of the second degree and stress ” . The third applicant remained at the hospital from DATE to CARDINAL April DATE . He was diagnosed with “ contusion of soft tissue in the thoracic - lumbar area ” . The fourth applicant was examined on DATE and left the hospital on DATE . He suffered from “ contusion of soft tissue in the abdomen ” .

The applicants argued that the extent of their injuries was more serious and that the first and fifth applicants had also suffered beatings . Further details of their injuries were recorded by the forensic experts in the course of the criminal investigation ( see below ) .

According to the certificate issued by ORG for spinal trauma correction , the second applicant was treated there DATE and DATE . She was diagnosed with a displaced fracture of the tail bone ( coccyx ) , resulting from DATE on DATE . On DATE the second applicant was successfully operated on her spine .

The applicants submitted their own statements to the ORG dated DATE describing these events ; they also referred to the documents submitted by them and collected during the criminal investigation . PERSON son Mr PERSON . ORG , who had taken the members of the first applicant family and then his own relatives to hospital on DATE , also submitted a statement dated DATE . CARDINAL journalists , Mr A.D. and Ms G.P. , the editor - in - chief of the district newspaper ORG , submitted written statements dated DATE and DATE , in which they described their futile attempts to obtain information from the police and the local hospital about the incident .

On DATE at TIME , the eighth and ninth applicants were returning home . Outside their house situated at no . CARDINAL GPE settlement , they saw a PERSON minibus , a GPE and a grey VAZ CARDINAL . In the courtyard of their house they saw CARDINAL men , some of them wearing camouflage military uniform and masks and carrying automatic weapons . Other men were wearing civilian clothes and were armed with pistols . The men did not identify themselves or produce any papers .

The men ordered these CARDINAL applicants to stand with their faces to the wall , pulled their caps over their eyes and beat them . According to the applicants , the men told them that they should go back to GPE and uttered other ethnically motivated insults .

The men entered the house , where the sixth , seventh and tenth applicants were waiting . The sixth applicant was handcuffed . The seventh applicant was told that she had given her sons a bad upbringing and that they should leave the village .

The search record of DATE drawn up by the ORG officers mentioned CARDINAL attesting witnesses and bore their signatures , as well as signatures by the seventh applicant attesting that she had been informed of her rights and the reason for the search prior to its commencement and that she had no remarks or objections at the end of it . The record listed CARDINAL hunting gun and CARDINAL cartridges . In relation to the gun and cartridges the seventh applicant explained that they belonged to her son Mr PERSON . ORG , who had put them in his bedroom DATE . In another bedroom an unloaded hand pistol was found . CARDINAL knives in cases , CARDINAL penknives and CARDINAL self - made knives were found amongst clothing . The seventh applicant offered no explanation regarding these items . Finally , CARDINAL videotapes were collected .

The eighth applicant was then put into the PERSON and taken to PERSON . According to him , on the way there he was beaten in his groin with rifle butts and a rope was pulled around his neck . As a result of the strangulation attempt , the eighth applicant lost consciousness on several occasions . He was also insulted and told that he “ would not be able to beget more NORP ” .

At the ROVD the eighth applicant was questioned and signed a statement about the events in GPE ( see paragraph CARDINAL above ) , without access to medical or legal assistance .

He was released at TIME . Mr Sh . PERSON took him to hospital ( see below ) .

The applicants submitted written statements by the eighth and ninth applicants , produced in DATE , and testimony by their neighbour PERSON L. , who had witnessed the beatings and insults administered to the eighth and ninth applicants on DATE . They also referred to the statement by the sixth applicant ’s son , Mr PERSON . ORG , mentioned above ( see paragraph CARDINAL ) .

On DATE the applicants lodged CARDINAL individual complaints with ORG ( “ the district prosecutor ’s office ” ) . They alleged , in particular , that the policemen had beaten and humiliated them on DATE . On DATE the investigator of the district prosecutor ’s office refused to bring any charges under Article CARDINAL , paragraph CARDINAL ( a ) and ( b ) of LAW ( abuse of authority ) , on account of lack of evidence of a criminal act . Referring to the results of the preliminary inquiry , the decision stated :

“ On DATE , further to the complaint lodged by Mr A.B. , PERSON opened a criminal investigation under LAW [ threat of murder ] . Mr A.B. pointed out [ the third applicant ] as the person who had committed the crime ... Pursuant to the internal instructions , on DATE the commanding officers of the ROVD transmitted this information to the ORG of LOC , because the suspect was of NORP ethnic origin . In order to provide security during the investigative measures and for operative support , servicemen of the PERSON and special police force of ORG of the ORG were sent to the LOC district . The servicemen ’s personal data is at present classified .

The commanding officers took immediate investigative measures in the GPE settlement , at the scene of the crime . Immediately thereafter the investigator , with the agreement of the commanding officers of the ROVD , decided to proceed with the searches ... at the places of residence of [ the third applicant ] ... and [ the eighth applicant ] .

... the commanding officers and servicemen of the ROVD , ORG and special police forces went to carry out the searches ... PERSON [ ORG ] from the ROVD was in charge of the searches .

During the search at the GPE house , after the policemen had shown them the search warrant and invited them to surrender unlawful items voluntarily , [ the third and fourth applicants ] mounted active resistance to the search and prevented examination of some pieces of furniture . For this reason , CARDINAL servicemen of the special police force took them out into the courtyard and placed them near the VAZ CARDINAL car , together with [ the fifth applicant ] . The servicemen of the ROVD , special police force and attesting witnesses remained in the house and proceeded with the search , while the remaining special forces’ servicemen held positions around the house . No unlawful actions or acts of physical violence were perpetrated by the servicemen against any members of the PERSON family . Towards the end of the search all members of the family were moving around the house freely . All items collected during the search were duly noted and securely sealed .

The search of the Vashayevs’ house in GPE followed the same pattern , in line with the provisions of LAW . [ The sixth applicant ] , his wife [ the seventh applicant ] and daughter [ the tenth applicant ] were inside the house , while [ the eighth and ninth applicants ] were in the courtyard . ... No one from the PERSON family was hurt by the police officers . ...

The applicants’ arguments alleging abuse of power by the police are therefore refuted by the information collected . This follows from the written explanations produced by the servicemen of PERSON , including senior officers , servicemen of the ORG and the special police force . The servicemen ’s explanations are consistent and non - contradictory . Each of them was questioned in relation to the actions of his colleagues which he had witnessed . None mentioned any abuses of power by their colleagues , while stressing the absence of justification for the alleged wrongdoing .

The witnesses who had been present during the searches also rebutted the ORG allegations about the abuse of power , including those who had stayed outside the GPE house . Both attesting witnesses had moved around the GPE house freely and , given the layout of the LOC , must have seen and heard the events in the courtyard . However , as is apparent from the ORG explanations , they did not notice any unlawful conduct by the policemen .

[ The conclusions of the forensic report issued by the expert of ORG ] were overturned by a commission of the [ same office ] ... The commission described [ the eighth applicant ’s ] injuries recorded on DATE as ‘ not entailing consequences for [ the applicant ’s ] CARDINAL .

Based on the above , and also on the explanations given by servicemen of the ROVD as to the absence on [ the body of the eighth applicant ] and other members of the PERSON and PERSON families of injuries resulting from the policemen ’s actions , the district prosecutor ’s office looks critically upon the forensic reports ... about beatings recorded for [ DATE applicants ] . The inquiry established with a sufficient degree of probability that the circumstances of these beatings were contradictory and no connection with the searches has been established . ”

As a result of the ORG complaints against the above decision , on CARDINAL DATE the deputy to ORG opened criminal investigation file no . DATE under Article CARDINAL , paragraph CARDINAL ( a ) of LAW ( abuse of power committed with the use of violence or with a threat of use of violence ) . On DATE both applicant families were informed accordingly .

On DATE the district prosecutor ’s office was put in charge of the case . In response to a request from the ORG , the ORG submitted in DATE a copy of most of the documents from criminal investigation file no . CARDINAL ( which comprised over CARDINAL pages ) . The relevant documents may be summarised as follows .

It is apparent that in DATE TIME applicants ( DATE applicants ) were granted the status of victims in the proceedings .

In the course of the proceedings in DATE and DATE the applicants were questioned on numerous occasions , first as witnesses and then as victims . They confirmed their statements about the circumstances of the searches , the beatings and the humiliating treatment . In particular , the members of the PERSON family described that on DATE a group of CARDINAL men wearing civilian clothes and CARDINAL military men had arrived at their house . The “ civilians ” were armed with hand pistols , and the military men carried automatic guns and were wearing camouflage uniforms , bulletproof vests , helmets and masks . The men had ordered them to lie down on the floor , had handcuffed the men and had beaten and kicked them ; the second applicant was pushed and fell backwards against a sofa ; PERSON ORG had kicked the first applicant while the military men had taken the fourth and fifth applicants into the courtyard and beaten them there .

The members of the PERSON family submitted that after TIME on DATE , the sixth , seventh and tenth applicants had been at home , while the eighth and ninth applicants were out foraging for hay . The members of the family who had stayed at home had been forced to lie on the floor by armed men wearing masks , but were then allowed to stand up by the men wearing civilian clothes who carried out the search . The sixth applicant had been handcuffed at first , but later his handcuffs were removed . The CARDINAL sons of the sixth and seventh applicants , the eighth and ninth applicants , were stopped by armed men when they returned home and were made to stand with their legs and hands apart against the wall , with their hats pulled down over their eyes . Several “ military men ” wearing masks and civilian clothes had punched and kicked them and beaten them with their rifle butts . The sixth , seventh and tenth applicants went into the courtyard when the search in the house was over , and had witnessed the eighth and ninth applicants being beaten . Then the eighth applicant was put in a PERSON vehicle where he was again kicked and a rope placed around his neck and tightened , as a result of which he had lost consciousness .

NORP The criminal investigation file contains several forensic expert reports issued by ORG expert bureau ( “ the forensic bureau ” ) . The first one , expert report no . ORG dated DATE , reported that the eighth applicant had suffered the following injuries : extensive bruising on the back of the head caused by a blunt object and not entailing consequences for the applicant ’s health , and CARDINAL circular bruises around the neck resulting from strangulation attempts . This had caused asphyxia resulting in temporary loss of consciousness and haemorrhages in the eyeballs , which constituted a serious injury . The report was issued upon the applicant ’s request .

Other reports below were issued on DATE in response to the investigator ’s orders . They concluded that the injuries had been caused by blunt objects and did not entail lasting damage to the GPE health .

Expert report no . CARDINAL concluded that the fourth applicant had been hit in the abdomen , resulting in bruising .

Expert report no . CARDINAL found that the third applicant had bruises over the lumbar area , on both sides .

Expert report no . CARDINAL concluded that the eighth applicant had haematomas on the left side of his neck and the left side of the chest .

Expert report no . CARDINAL described the second applicant ’s injuries as bruising of the upper lip , right upper hand , left shoulder and left leg .

Expert report no . CARDINAL found that the fifth applicant had contusions on the lower part of the left leg .

Expert report no . CARDINAL noted that the first applicant had bruising over the left side of his chest .

In DATE the experts of the forensic bureau issued their formal conclusions that the injuries could have been received at the time and in the circumstances as alleged .

In addition , the experts examined the records of the LOC district hospital . On the basis of the records , they concluded that the examination of the ninth applicant at the hospital on DATE had not revealed any injuries ( he had complained of pains in the chest area ) ; the examination of the sixth applicant revealed bruises on the right side of his chest . As is apparent from the applicant ’s signatures , they were made aware of these conclusions in DATE .

In respect of the second applicant ’s complaint about spinal trauma , on DATE the experts also examined copies of her medical records from the hospitals . The documents showed that in DATE the second applicant had sought medical assistance in relation to a fracture of the tail bone ( coccyx ) . She was operated upon in DATE . The exact date of the fracture could not be established ; this injury should be regarded as moderately serious .

By DATE the investigation had established the identities of the police officers who had taken part in the searches on DATE . According to the documents contained in the file , the group headed by PERSON ORG included CARDINAL other PERSON officers , CARDINAL officers from LOC , including PERSON ORG and PERSON ORG , and CARDINAL officers from the regional special police force unit .

The case file contains CARDINAL notes about the events of DATE written by the special police force officers , in which they stated that , while providing assistance during the search of the Antayevs’ house in Verkhnesuyerskoye , they had had to physically restrain the inhabitants of the house , who had resisted the execution of the search and had refused to let the policemen enter and carry out their duties . CARDINAL men – the first , third , fourth and fifth applicants – had thus had to be restrained by force and handcuffs had had to be put on them .

All officers and servicemen who took part in the searches were questioned in the course of DATE . They denied that they had made the applicants lie on the floor , or pulled their clothes over their heads or beaten them .

NORP In particular , Mr N.P. from LOC , who had been in charge of the searches , stated on CARDINAL DATE that on DATE Mr A.B. had lodged a complaint with the ROVD that the third and eighth applicants had threatened to murder him . On DATE , the criminal investigation under LAW had been opened . In response to internal instructions from ORG , the local police had informed the PERSON about all criminal investigations involving ethnic NORP . On DATE , officers from the PERSON arrived at the ROVD . They were accompanied by CARDINAL members of the special police force , in order to ensure the safety and security of the search procedures . They had travelled together to GPE , where the investigator issued CARDINAL search orders , the first for the Antayevs’ family house in Verkhnesuyerskoye . During both searches , the members of the special police force had run into the house first . PERSON ORG had served the search order on the first applicant , who had signed and dated it . The first applicant ’s wife and CARDINAL sons had also been at home at the time . They were invited to surrender weapons and illegal objects , but they denied having any such items . Then the search had started , and the members of the family had tried to interfere . They shouted and prevented the police officers from entering the rooms . Because of this , the officers from the special police force had escorted the first and second applicants’ CARDINAL sons – the third to fifth applicants DATE into the courtyard . No one had hit the applicants . The search ended with the finding of CARDINAL cartridge for an automatic rifle , literature in a foreign language , and a number of videotapes . PERSON ORG had remained in the house the whole time and had thus not witnessed the events in the courtyard . The first and third applicants had then been taken by CARDINAL of the police officers to meet the investigator at the village administration ’s offices , while the rest of the group went to the PERSON family house . There PERSON ORG had shown the search order to the seventh applicant and invited her to surrender illegally stored items , such as weapons . When the applicants denied having any such things , the police had started the search . The proceedings were conducted in a correct and polite manner , and no one had been beaten or otherwise injured . The search resulted in the finding and seizure of a smoothbore rifle and cartridges for it , a handgun of foreign manufacture , home - made knives and knives with long blades , and CARDINAL pirated ORG tapes . During the search the witness had not seen the events in the courtyard , but when he walked out , no one had been using violence on the applicants . He also noted that during the searches both families had behaved emotionally , and had shouted and vowed to lodge complaints .

The head of PERSON , PERSON PERSON , stated on CARDINAL DATE that he had been informed on TIME DATE that both searches had taken place in a calm manner , without any problems . The head of the ROVD criminal department , Mr PERSON , explained that he had participated in the search at the Antayevs’ house and had seen their CARDINAL sons in the courtyard , guarded by the special police force near the police car . The servicemen explained that the sons had obstructed the execution of the search . The CARDINAL had been put in handcuffs , which Mr. PERSON later removed , and he had remained with them outside . At some point the fourth applicant had felt unwell and the witness had asked PERSON GPE . to take him into the house to get treatment . After that he had accompanied the first and third applicants to the offices of the local administration , where the questioning had taken place . The applicants had not displayed any signs of ill - treatment or beatings .

On DATE the investigators questioned Mr GPE . , a policeman with PERSON . He stated that he had not participated in the search of the Antayevs’ house and had entered it only after one of the officers had told him to take the fourth applicant from the police PERSON vehicle into the house to treat him with medicine . Witness PERSON . accompanied the fourth applicant into the house and then travelled by car to the offices of the local administration . TIME later he had returned to the GPE house and observed that the applicants were in good health , with no signs of ill - treatment . He had then accompanied the group to the Vashayevs’ house , which he likewise did not enter . He had remained by the fence , where he met the ninth applicant and talked to him until the search ended . The ninth applicant had appeared to be in good health and neither he nor any other family members had displayed signs of ill - treatment .

The police also questioned CARDINAL officers from the PERSON , including Mr GPE and PERSON V.G. They stated that the searches had proceeded calmly , except when the first applicant ’s CARDINAL sons , the fourth and fifth applicants , had to be escorted out of the house because they objected to the search .

Six officers from the regional special police force confirmed their presence during the searches on DATE . Their involvement had been limited to ensuring the security of the investigative measures . At the Antayevs’ house they had escorted CARDINAL young men , the first applicant ’s sons , out of the house and put handcuffs on them because they had interfered with the search . At the PERSON family house they had not applied force to anyone , nor had they put handcuffs on anyone . Furthermore , they had not hit or used physical force on anyone , had not made anyone lie on the floor or covered anyone ’s head with clothes or hats , and they had not noticed that any of the applicants had injuries .

On DATE the attesting witness for both searches , PERSON , stated that both had been initiated by a number of the special police force officers DATE who were wearing masks and were armed with automatic weapons – running into the houses . At the NORP house the witness had seen CARDINAL man being led out , with his pullover over his head , and being stood up against the police vehicle with his legs apart . When she had entered the house , the men of the house were lying on the floor face down , with their hands behind their heads , while the woman was sitting on the sofa . The men were then allowed to stand up ; they walked around the house and , initially , they had voiced their objection to the search . The search at the NORP family home had proceeded in a similar manner . She had seen Mr GPE . and the ninth applicant talking by the fence ; she had also seen the eighth applicant in the PERSON where he had been talking to a man dressed in civilian clothes . No one had been hit or hurt .

The other attesting witness , as well as several local residents questioned by the police , had not witnessed any ill - treatment of the applicants on DATE .

It is apparent from the list of documents in the criminal investigation file that in DATE , in the course of the investigation , CARDINAL face - to - face confrontations were conducted between the applicants and the officers of LOC and the ORG who had taken part in the searches . In addition , CARDINAL identification sessions were carried out involving both the victims and the officers .

The case file contains records of the face - to - face confrontation on DATE between the applicants and the police officers . On the one hand , the first , second , seventh and ninth applicants , and on the other hand PERSON N.P. – who had been in charge of the operation – recounted their different and irreconcilable versions of events . The first applicant stated during the confrontation that PERSON ORG had kicked him once in the chest ; the second applicant confirmed this statement . During another confrontation the first applicant insisted that PERSON GPE . had beaten the fourth and the fifth applicants , while Mr. GPE . denied this . The fourth applicant also stated that he and his brother , the fifth applicant , had been beaten by Mr GPE . Other face - to - face confrontations with police officers contained similar statements .

On DATE the first and fourth applicants identified CARDINAL of the ORG officers , PERSON ORG , as a person who had participated in the search in their house ; the fourth applicant identified PERSON ORG , also a ORG officer , as the person who had hit him during the searches .

Also on DATE , the first applicant stated , during questioning , that he disagreed with the way the face - to - face confrontations and identification parades had been carried out . The record of the questioning , which the first applicant refused to sign , contains his allegations that these events had been arranged so as to exclude the individuals who had beaten them , and that the members of both families refused to attend them in the future . The case file also contains the investigator ’s reports of CARDINAL DATE and DATE and DATE which record that the first applicant ’s behaviour had been hostile and that he had stated his disagreement with the manner in which the investigation was being conducted .

On DATE during a face - to - face confrontation , the fifth applicant identified PERSON ORG as the person who had beaten his brothers , the third and fourth applicants . Mr ORG denied this . Also on DATE , the fourth applicant identified PERSON GPE , a ORG officer , as the person who had hit him in the back and neck .

On DATE during a face - to - face confrontation , the second applicant identified Mr GPE as the person who had beaten her sons and husband and had pushed her onto the floor . Mr PERSON denied that he , or other officers , had used violence . He also denied that he had taken the gun cartridge out of his pocket , insisting that he had found it in a kitchen drawer . On DATE , after the confrontation with the second applicant , the applicants’ representative noted that the investigator had refused to put a number of questions to ROVD officer Mr U. and had failed to record in full the second applicant ’s statements about her son ’s beatings .

The applicants submitted that during the questioning they had been threatened by the investigators , openly or covertly . Moreover , the investigator had refused to record certain statements , especially ones relating to the ethnically motivated nature of the attacks .

DATE . On DATE both applicant families wrote to ORG , seeking an update on the investigation into their complaints of racial insults and injuries .

On DATE the first and second applicants complained to the PERSON prosecutor of bias on the part of the investigator . They referred to the threats made by him to the victims . They also argued that since the ROVD officers had been directly implicated in the alleged events , the victims were at risk of further abuse and asked for the suspects to be arrested . The first applicant stressed , in particular , that the investigator had refused to record the statements made during questioning about the ethnic insults directed at them , in particular at the third applicant and the eighth and ninth applicants , who had been told that they “ would not be able to beget more NORP ” .

On DATE the district prosecutor ’s office dismissed a request by the ORG representative to obtain access to the criminal case file .

On DATE the applicants’ complaint regarding the investigator was rejected by the district prosecutor .

On DATE the ORG representative lodged a complaint with ORG concerning the failure to take the necessary steps to investigate the crime and to look into its ethnically motivated nature . The complaint stated that the face - to - face confrontations and the questioning of the victims had been used to exert pressure on the applicants and noted that the investigator had failed to react to the threats made to the victims by those conducting the search . On DATE the district prosecutor ’s office rejected this request as unfounded .

On DATE the district prosecutor ’s office suspended the investigation for the first time owing to the failure to identify the alleged perpetrators . The CARDINAL - page document summarised the steps taken so far and indicated that all the men who had taken part in the searches had been identified and questioned . At least some of them had been identified by the victims as the persons who had hit them . The document nevertheless concluded that –while certain evidence supported the ORG allegation of ill - treatment DATE it appeared impossible to reconcile the inconsistencies in the ORG statements with the results of the face - to - face confrontations and identification parades , which was necessary in order to identify the police officers to be charged . This decision was quashed on DATE , in response to a complaint by the applicants .

On CARDINAL DATE the district prosecutor ’s office again suspended the investigation owing to the failure to identify the alleged perpetrators . In this decision it was held that the ORG statements had been inconsistent and that they had refused to take part in additional identification parades and face - to - face confrontations . It concluded :

“ The criminal file contains sufficient evidence that [ DATE applicants ] were injured by police officers during the searches . ... The results of the forensic expert reports and the ORG statements could serve as evidence [ as to ] where , how many times , by what means and by which officers the victims were hit on DATE during the searches . However , the victim statements submitted during the questioning and the confrontations are mutually contradictory in part , and in parts are refuted by other evidence collected . ... [ T]his gives rise to a critical attitude to these testimonies and undermines trust in [ the victims ] . In addition , the [ special police force ] officers were wearing masks , making it impossible to determine which of them hit which victim , where exactly and how many times . The special police officers deny that they beat the victims .

The above makes it impossible to determine levels of individual guilt and to bring charges against any members of PERSON , the ORG or [ the special police force ] . ”

On DATE that decision was set aside by the district prosecutor ’s office in response to a complaint by the applicants . The investigation was resumed and several other police officers were questioned . On DATE it was again suspended , for reasons similar to those quoted in the decision of CARDINAL DATE . The document concluded :

“ The file contains sufficient evidence that [ DATE applicants ] were injured by police officers during the searches . However , given the inconsistencies in their later testimonies , it could not be established with certitude that the injuries were indeed caused by any particular officer and in the circumstances as described by the victims ” .

DATE . According to the information submitted by the Government along with their observations in DATE , in DATE that decision was quashed and the investigation was resumed by ORG of ORG . No documents relating to this latest stage of proceedings have been submitted and it does not appear that it has produced any results .

On DATE , pursuant to LAW , the applicants lodged a complaint concerning the actions of the district prosecutor ’s office with ORG . In their complaint the applicants alleged that the opening of the investigation had been delayed , that it had failed to take into account the ethnically motivated nature of the attack , despite the consistent testimonies to this effect , that the investigator had shown bias and threatened the victims , that their complaints to the district prosecutor ’s office had been futile , that they had not been allowed access to most of the documents in the case file , that no one had been charged with any crime and that all servicemen implicated in the events had been questioned only as witnesses . The applicants requested that the prosecutor ’s office be ordered to replace the investigator and to ensure proper supervision , in addition to reviewing the complaints about the ethnically motivated nature of the attack .

On DATE ORG partly dismissed the ORG request and partly refused to consider it on the merits . In respect of the alleged failure to investigate the ethnically motivated nature of the crime and the investigator ’s bias , the court found that these issues fell within the prosecutor ’s professional discretion . The applicants appealed , referring in particular to the lack of investigation of the ethnically motivated nature of the crime .

On DATE ORG upheld the decision of DATE .


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

Angelika Nußberger;Erik Møse;Mārtiņš Mits;Nona Tsotsoria;Síofra O’Leary;Yonko Grozev

The applicant was born in DATE and lives in PERSON .

The applicant ’s son , PERSON ( GPE ) , was born in DATE ; on CARDINAL DATE he was drafted into the army to perform his compulsory military service . From DATE he served as a sniper in GPE region in military unit no . CARDINAL .

On TIME DATE PERSON was on guard duty with CARDINAL other soldier ( PERSON ) at a military post called “ A ” in GPE region . At TIME he left his post and went into the nearby forest , where CARDINAL peasants were cutting wood . PERSON called the applicant using the telephone of CARDINAL of the peasants and asked his father to provide him with some belongings . He also asked the applicant to send him a mobile telephone topup card worth CARDINAL NORP manats ( AZN ) . During the telephone conversation he was in a good mood and did not complain about any problems . PERSON also asked the applicant to tell his mother to leave her mobile telephone turned on as he would call her later . Following that conversation , the applicant bought mobile telephone top - up cards and sent their passwords to his son by a telephone message .

According to the material in the case file , following the telephone conversation with the applicant , PERSON returned to his guard duty post . At TIME Q.S. left the post in order to change the guard and PERSON remained alone . TIME the soldiers heard a gunshot and went to the post , where they discovered GPE ’s body .

On DATE criminal proceedings were instituted under LAW ( incitement to suicide ) of LAW by ORG .

On DATE a record of an inspection of the scene of the crime was drawn up and signed by the commander of military unit no . CARDINAL , Major PERSON It was also signed by CARDINAL attesting witnesses , GPE and GPE , who were soldiers in the same military unit . The record states that the inspection began at TIME and ended at TIME According to the record , PERSON had been wearing a shoe and CARDINAL socks on his left foot ; however , the shoe and the sock of his right foot had been taken off . His right shoe had been found next to his body . According to the record , CARDINAL cartridge , a pen and a note written on a cigarette pack were found at the crime scene . Various photographs of GPE ’s body , the cartridge , the pen and the note were taken . The note read as follows :

“ I , GPE , commit suicide and nobody is responsible for that . I commit suicide because I do n’t want to be a burden to anyone . Mum and PERSON , forgive me . Goodbye to everyone ; goodbye to life . PERSON . GPE

On DATE a record of the examination was drawn up by the investigator in charge of the case , who examined GPE ’s body at the headquarters of military unit no . CARDINAL in GPE region . According to the record , the examination began at TIME and ended at TIME Various photographs of PERSON ’s body were taken .

On DATE a record of the examination of the body was drawn up in the presence of a forensic expert in the city of PERSON .

On DATE a post - mortem examination of GPE ’s body was carried out . Report no . CARDINAL dated DATE showed that death had resulted from CARDINAL gunshot wound to the left part of the rib cage . The expert found that the seam of the left pocket of ORG ’s uniform had become unstitched . The expert did not find any other injury on GPE ’s body or uniform .

On DATE the investigator questioned CARDINAL soldiers of the military unit in which GPE had served . The soldiers stated that PERSON had never been ill - treated during his military service . CARDINAL of the soldiers , GPE , further stated that when they had been on guard duty on DATE , GPE had been in a bad mood and had told him about his family problems . In particular , according to GPE , the applicant ’s son told him that he had talked to his mother - in - law , who had said that his parents had gone to GPE and would not be visiting him . However , another soldier ( GPE ) stated that on CARDINAL DATE PERSON had been in a good mood and had told him that he had talked to his mother - in - law by telephone .

On DATE the investigator also took signature and writing samples from the soldiers of the military unit in order to identify the author of the written note found at the crime scene .

On DATE the investigator requested ORG to provide the investigation with the signature and samples of the applicant ’s son ’s writing .

On DATE the investigator also sent an operational request ( əməliyyat tapşırığı ) to the head of the military counterintelligence department of military unit no . CARDINAL , asking him to investigate whether ORG had been subjected to unlawful actions during his military service . In a letter dated CARDINAL DATE and marked “ secret ” , the head of the military counterintelligence department of military unit no . CARDINAL , a lieutenant - colonel ( GPE ) , replied to the investigator ’s request of CARDINAL DATE . He noted that according to the information obtained after having taken operational measures ( əməliyyat tədbirləri ) , on DATE , before going to the guard post , PERSON had had a dispute with a sergeant ( ORG ) and a soldier ( PERSON ) , who had beaten him . TIME after this incident , a gunshot had been heard and GPE , ORG and another soldier ( PERSON ) had gone to the post , where they had discovered GPE ’s body . It was also indicated in the letter that the soldiers had removed PERSON ’s body after the incident in order to help him , but upon realising that he was dead they had laid the body back in its original place .

On DATE the investigator sent another operational request to the head of ORG , asking him to investigate whether PERSON had had any family problems , whether PERSON had been engaged to anyone , or whether any of his close relatives had been suffering from any psychological illnesses . By a letter of DATE , the head of ORG informed the investigator that GPE had had no family problems , that he had not been engaged to anyone and that his relatives had not been suffering from any psychological illnesses .

By a decision of CARDINAL DATE , the investigator recognised the applicant as a legal heir of the victim ( zərərçəkmiş şəxsin hüquqi varisi ) . On DATE the applicant was questioned by the investigator . He stated that at TIME on DATE he had talked to his son by telephone . PERSON had been in a good mood and had not complained about anything . PERSON had asked the applicant to tell his mother to leave her mobile telephone turned on as he would call her later . The applicant further stated that at the request of his son he had bought mobile top - up cards and sent their passwords to him by a telephone message . The applicant also stated that his son had not had a fiancée or a mother - in - law and that he had not had any family problems .

On DATE the investigator ordered forensic medical , ballistic , chemical and trace examinations . Report no . CARDINAL dated DATE showed that ORG had used his service weapon – an ORG - type DCARDINAL sniper rifle DATE to commit suicide . The report further found that the seam of the left pocket of GPE ’s uniform had become unstitched and that this could have resulted either from contact with a blunt object or the use of physical force .

On DATE the investigator ordered a handwriting examination of the written note found at the crime scene . Report no . DATE dated DATE concluded that a comparison of the samples submitted to the examination showed that the note had similarities with PERSON ’s writing and signature . Report no . CARDINAL dated DATE concluded that the coloured elements used in the writing of the note in question and of the pen found at the scene of the crime had the same chemical characteristics .

According to a document entitled “ Instruction ” ( GPE ) dated DATE the Deputy Military Prosecutor of GPE gave various instructions to the prosecuting authorities in connection with the criminal proceedings relating to GPE ’s death . In particular , he asked the prosecuting authorities to inspect the scene of the crime . The relevant part of the document reads as follows :

“ It appears from the case material that ORG received the information that GPE died ... and the agents of the prosecuting authorities went to the scene of the crime , but it was not possible for them to inspect the scene of the crime , given the foggy weather conditions in the mountainous area . The military commander who carried out the preliminary inspection of the scene of the crime presented the collected material evidence to ORG . In order to reconstruct the conditions in which the incident took place , the scene of the crime should again be inspected ... ”

On DATE the investigator visited the “ A ” military post and inspected the scene of the crime . According to the record of the inspection ( dated DATE ) , it began at TIME and ended at CARDINAL p.m. The investigator took various photographs of the area where the military post was situated .

On DATE the investigator questioned CARDINAL soldiers , including ORG and GPE They denied having beaten GPE on DATE and submitted that PERSON had never been subjected to ill - treatment . As regards the investigator ’s question regarding the fact that the seam of the left pocket of GPE ’s uniform had been unstitched , they stated that they had not noticed it .

On DATE the investigator questioned the CARDINAL peasants who had seen GPE on DATE . They stated that on DATE , as they had been cutting wood in the forest , GPE and GPE had approached them . PERSON had used their mobile telephone to call his father ; GPE and GPE had then left the area . They also stated that GPE had been in a good mood before and after the telephone conversation .

On DATE the investigator carried out a reconstruction of the events in order to establish whether GPE had been technically able to commit suicide with his service weapon . The investigator concluded that it would have been possible if he had pressed the trigger of the weapon with the toe of his right foot when standing up or lying down .

On DATE the applicant was again questioned by the investigator .

On DATE the investigator ordered a post - mortem psychiatric and psychological examination ( məhkəmə - psixiatrik və psixoloji ekspertizası ) of ORG no . CARDINAL of that examination , dated DATE , concluded on the basis of the statements available in the case file that GPE had not been suffering from any mental disorder , but that he had probably been in a state of depression before his death . However , it was not possible to determine the reason for that depression .

On DATE the investigator decided to terminate the criminal proceedings , finding that there had been no criminal element in GPE ’s death . The investigator concluded that PERSON had committed suicide because he had probably been in a state of depression . The investigator further held that it had not been established that GPE had been ill - treated by other soldiers . The investigator also decided to destroy the material evidence found at the crime scene , including the written note found next to GPE ’s body .

On DATE the applicant lodged a complaint with ORG against the investigator ’s decision of DATE , complaining of the ineffectiveness of the criminal investigation . He disputed the investigator ’s conclusions relating to the suicide of his son , pointing out that PERSON had not suffered from any mental disorder . He submitted in that connection that the statements of the soldiers had been contradictory and had been fabricated , as his son had never had a fiancée or a mother - in - law . The applicant alleged that his son had been either killed or had been driven to suicide by GPE and GPE In that connection , he relied on the content of the letter of CARDINAL DATE from the military counterintelligence department of the military unit . He also submitted that the fact that the seam of the left pocket of GPE ’s uniform had become unstitched proved that his son had been beaten before his death . The applicant further pointed out that the note found at the crime scene had been written using certain words that his son had never used . In particular , he noted that even though PERSON had never called his parents “ ana ” ( mum ) and “ ata ” ( dad ) , but rather “ mama ” and “ papa ” , he had addressed them as “ ana ” and “ ata ” in that note . The applicant also complained that his son had been harassed by ORG , who had regularly forced GPE to ask the applicant to send mobile telephone top - up cards for ORG In that connection , he asked for an examination of the list of calls made to and from his mobile telephone during the entire period during which his son had been undertaking military service .

On DATE ORG overruled the investigator ’s decision and remitted the case to the prosecuting authorities for fresh examination . The court ordered the investigating authority to examine the applicant ’s particular complaints . It further found that the investigator had not had the right to decide to destroy the material evidence found at the scene of the crime .

As can be seen from the documents submitted by the Government , following ORG decision of DATE , on DATE the investigator decided to continue the investigation .

On DATE the investigator questioned the expert who had conducted forensic medical , ballistic , chemical and trace examinations ( see paragraph CARDINAL above ) . The expert stated that the seam of the left pocket of GPE ’s uniform could have come unstitched because it had come into contact with his service weapon after his suicide .

On DATE the investigator also questioned CARDINAL soldiers , who stated that they did not remember whether PERSON had called his parents “ ana ” ( mum ) and “ ata ” ( dad ) or “ mama ” and “ papa ” .

On DATE the same investigator again decided to terminate the criminal proceedings . That decision was identical in its wording to the investigator ’s previous decision of CARDINAL DATE , except for the part concerning the preservation of the written note found at the scene of the crime and CARDINAL newly added paragraphs . In those paragraphs , the investigator noted that the CARDINAL soldiers questioned during the investigation had not remembered whether PERSON had called his parents “ ana ” ( mum ) and “ ata ” ( dad ) or “ mama ” and “ papa ” . Moreover , relying on the questioning of the expert on DATE , the investigator concluded that the seam of the left pocket of ORG ’s uniform had been unstitched because it had come into contact with his service weapon after his suicide and not as a result of any ill - treatment .

On DATE the applicant lodged a complaint with ORG against that decision . He complained of the ineffectiveness of the criminal investigation , pointing out that , taking into consideration that there had been a national holiday in the country from DATE , it had been impossible to carry out a new investigation DATE . The applicant also argued that the investigator should have questioned PERSON ’s parents and relatives – not the CARDINAL soldiers in question – in order to establish whether ORG had called his parents “ ana ” ( mum ) and “ ata ” ( dad ) or “ mama ” and “ papa ” . He further disputed the investigator ’s interpretation of the expert ’s conclusion ( see paragraphs CARDINAL and DATE above ) , alleging that the investigator had substituted his own opinion for the expert ’s conclusion . Lastly , he complained that his lawyer had not had access to the case file .

As can be seen from the documents in the case file , on DATE ORG overruled the investigator ’s decision of CARDINAL DATE and remitted the case for fresh examination . Despite ORG explicit request to the Government that they submit copies of all the documents relating to the criminal proceedings concerning GPE ’s death , the Government failed to provide the ORG with a copy of the decision of DATE of ORG .

The criminal case was allocated to another investigator at ORG .

NORP In DATE and DATE the new investigator questioned PERSON ’s parents , CARDINAL schoolmates , and QUANTITY soldiers ( including GPE ) who had served in the same military unit . During the questioning , despite stating that PERSON had never complained before his death about being ill - treated , the applicant reiterated his previous complaints . It further appears that , even though on CARDINAL DATE the investigator questioned the CARDINAL soldiers separately , the wording of their statements was identical . They each stated that PERSON had never been ill - treated during his military service .

On DATE the investigator in charge of the case decided to terminate the criminal proceedings . The investigator found that the allegation of GPE ’s ill - treatment by GPE and ORG had not been proved during the investigation and that GPE had committed suicide because he had probably been in a state of depression .

On DATE the applicant lodged a complaint against that decision , reiterating his previous arguments . He also noted that the investigator ’s decision of DATE was almost identical in its wording to the previous decisions of the prosecuting authorities . He further complained that the new investigator had failed to question NORP again or to address the contradictions in the statements of the soldiers . In that connection , he pointed out that , although GPE had had no fiancée or mother - in - law – which had been confirmed in a letter dated DATE from ORG – the soldiers had referred in their statements to an alleged telephone conversation with a mother - in - law . The applicant lastly complained about the investigator ’s failure to attach any importance to the letter dated DATE from the head of the military counterintelligence department of military unit no . CARDINAL .

On DATE ORG again quashed the investigator ’s decision and remitted the case to the prosecuting authorities for fresh examination . The Government failed to provide the ORG with a copy of the decision of DATE of ORG .

On DATE the investigator again questioned PERSON ’s parents , who reiterated their previous complaints . They also stated that GPE and ORG had regularly harassed their son into obtaining mobile telephone top - up cards .

In DATE the investigator also questioned various soldiers , who denied any ill - treatment or harassment of GPE during his military service .

According to the documents submitted by the ORG , on CARDINAL DATE the investigator again sent an operational request to the head of the military counterintelligence department of military unit no . CARDINAL . The investigator noted that , although in the letter dated CARDINAL DATE it was stated that GPE had been beaten by ORG and GPE on DATE of the incident , that allegation had not been proved during the investigation . The investigator further asked the head of the military counterintelligence department to investigate whether ORG and GPE had tried to extort money from GPE during his military service .

By a letter dated DATE , the head of the military counterintelligence department of military unit no . CARDINAL , GPE , replied to the investigator ’s request of CARDINAL DATE . GPE noted that , although he had previously indicated in his letter of CARDINAL DATE that GPE had been beaten by ORG and GPE , that information had not been subsequently confirmed . He further informed the investigator that the military counterintelligence department had not received any information relating to the extortion of money .

On DATE the investigator at ORG again decided to terminate the criminal proceedings , finding that there had been no criminal element in GPE ’s death . In that connection , the investigator found that PERSON had committed suicide because he had probably been in a state of depression . Relying on the letter dated DATE from the intelligence department of military unit no . CARDINAL , he also concluded that the allegation that GPE had been ill - treated by ORG and GPE had not been confirmed during the investigation .

DATE . On DATE the applicant lodged a complaint against that decision with ORG . He reiterated his previous complaints , pointing out that the investigator had tried to cover those who had ill - treated his son and driven him to suicide .

On DATE the Deputy Military Prosecutor of GPE dismissed the applicant ’s complaint , finding that the criminal investigation had been effective .

On DATE the applicant lodged a complaint against that decision with ORG , arguing that the investigator had failed to carry out an effective investigation . In particular , he alleged that the appearance of a new letter from the military counterintelligence department of military unit no . CARDINAL ( see paragraph CARDINAL above ) , which clearly contradicted the previous letter from the same organ , had shown that the domestic authorities had tried to cover GPE and GPE , who had beaten his son . He also complained of the investigator ’s failure to address the contradictions in the statements of the soldiers relating to the alleged existence of a fiancée and a mother - in - law and the alleged family problems of GPE

On DATE ORG dismissed the applicant ’s complaint . The court found , without providing any explanation , that the applicant ’s complaints were groundless .

On DATE the applicant appealed against that decision , reiterating his previous complaints .

On DATE ORG dismissed the applicant ’s appeal and upheld ORG decision of CARDINAL DATE .


Violation of Article 8 - Right to respect for private and family life (Article 8 - Expulsion) (Turkey)

Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The first applicant currently lives in GPE and the second to fifth applicants live in GPE , GPE .

The first applicant , a mechanics and a professional driver , is of NORP ethnic origin coming from south - east GPE . He was not a member of any political party but like many other members of his family sympathised with the ORG ( ORG ) . During the violent conflicts between NORP authorities and NORP people in DATE and DATE he lived in GPE . The first applicant stated that he had assisted the ORG and that because of several occurrences he felt persecuted by NORP authorities . Fearing for his life he found it necessary to flee in DATE .

The second applicant , PERSON , married the first applicant in DATE . She and the third applicant , their son PERSON ( born in DATE ) , continued to live with the first applicant ’s parents in GPE . After the latter ’s house was set on fire , she and the son spent a period as refugees in GPE .

NORP Over a period of DATE , the first applicant sojourned at several locations in GPE . He had some contact with his wife and son and applied for visa to visit GPE , where his older brother had obtained asylum ( in DATE ) . Only the first applicant obtained a visa . In DATE he arrived in GPE and applied for asylum . His wife and son went back to PERSON , where she gave birth to the couple ’s second son , PERSON , in DATE ( the fourth applicant ) .

The first applicant ’s asylum application in GPE was refused . He then stayed in several NORP countries and returned to GPE where his second asylum application was refused in DATE .

On DATE he applied for asylum in GPE . ORG rejected the application on DATE . His appeal to ORG was rejected by a decision of DATE , according to which he was under a duty to leave the country and measures were to be taken to implement this decision .

On DATE ORG ( tingrett ) convicted the first applicant on charges of aggravated assault and sentenced him to CARDINAL days’ imprisonment , of which DATE were suspended . He was found guilty of having inflicted with a kitchen knife a cut in the shoulder of another man which had been mended with CARDINAL stiches . Even though the extent of the injury was not considerable , the offence was deemed very serious and could easily have had great consequences for the victim . In mitigation , ORG had regard to its finding that , whilst it was uncertain who had started the row , the victim had gone further than the applicant and had provoked him by hitting his face with his palm and by uttering serious insults against his family . The victim had also withdrawn his criminal complaint against the applicant . The judgment was transmitted to ORG for consideration of whether there was a ground for ordering his expulsion .

On DATE ORG refused to revise its earlier rejection ( of CARDINAL DATE ) of the first applicant ’s asylum application and asked ORG to implement the decision . It contained no mention of the judgment of DATE , but on CARDINAL DATE the ORG also forwarded a copy to ORG requesting it to assess whether there was a basis for expulsion . The applicant did not leave the country , and the authorities took no specific measures to deport him until he received a warning to this effect issued on DATE .

In DATE the applicant was fined for driving too fast , and in DATE and DATE for driving without a license .

The second applicant arrived in GPE with the couple ’s CARDINAL sons and applied for asylum on DATE , which ORG rejected on DATE . ORG upheld the rejection on DATE , stating that unless they left the country voluntarily , the expulsion was to be forcibly implemented , if possible in coordination with that of the first applicant .

On DATE a daughter of the couple , GPE , was born ( the fifth applicant ) .

Pending amendments to ORG , ORG decided on DATE to stay the implementation of the decision of CARDINAL DATE regarding the wife and the sons but in a separate decision , referring inter alia to his conviction of DATE , rejected the first applicant ’s request to stay the implementation of the refusal of CARDINAL may DATE to grant him asylum .

Following the warning of DATE , the first applicant was on DATE arrested and detained for DATE with a view to deportation . On DATE ORG decided , under LAW of LAW DATE , to order his expulsion and to prohibit his re - entry in GPE for an indefinite duration . This was because of his criminal conviction and of his long illegal stay and work in GPE . On appeal , the decision was upheld by ORG on DATE .

In the meantime , on DATE , the first applicant requested ORG ( tingrett ) to issue an order that he be granted a residence- and work permit and an interlocutory injunction to stay his deportation pending the outcome of the judicial proceedings .

Following a request by the first applicant to ORG , the latter granted him on DATE a stay of implementation of his expulsion until ORG had decided on his request for an interim measure to stay his deportation .

On DATE ORG rejected a request to revise its earlier rejection ( of DATE ) as there were not sufficient reasons to grant the wife and the children a residence permit on humanitarian grounds .

NORP In an appeal of DATE the applicants’ lawyer challenged the lawfulness of the decision of CARDINAL DATE on the ground that ORG had been diagnosed as suffering from child autism and had special needs .

In the light of this information the parties agreed before ORG that the immigration authorities should consider the matter anew for all the family members .

After having decided on DATE not to implement the expulsion with respect to the wife and the children , ORG on DATE decided ( with CARDINAL votes to CARDINAL ) to alter its decision of CARDINAL DATE and granted the second applicant , with the children , a residence- and work - permit under section CARDINAL(CARDINAL ) of LAW DATE ( according to which such a permit could be granted if warranted by weighty humanitarian considerations or particular links to the country , see paragraph CARDINAL below ) . The majority attached decisive weight to the new information concerning the daughter ’s health together with the length of the children ’s residence in GPE ( DATE and DATE in the case of the sons ) . It also had regard to more recent practice of ORG . The permit was granted for DATE and could on certain conditions be renewed , constitute a ground for settlement permit and for family reunification . A prerequisite for the permit was that the wife continued to live in GPE .

On DATE ORG carried out a new assessment of the first applicant ’s immigration status . It did not alter its decision of DATE upholding the ORG ’s decision of DATE to order his expulsion , stating inter alia the following reasons .

In the ORG ’s view , the ORG could in principle have responded more rapidly with regard to the question of expulsion in connection with the applicant ’s conviction . The ORG had had an occasion to bring this matter up as early as in DATE , when ORG by a letter of CARDINAL DATE forwarded a copy of the judgment with a request for assessment of the question of expulsion ( see paragraph CARDINAL above ) . By the fact that counsel for the applicant was sent a copy of the ORG ’s letter , the applicant had been made aware that the offence could constitute a ground for expulsion . The specific procedural rules concerning expulsion of convicted foreign nationals indicated in principle that a decision to expel should be made as soon as possible after conviction with no further right of appeal or after the serving of a sentence had been commenced ( section CARDINAL of ORG ) .

There was nevertheless nothing to prevent that the offence be taken into account at DATE together with any other factors militating in favour of expulsion in a global assessment . In the ORG ’s view , it could not be decisive for the applicant ’s expulsion from the country pursuant to LAW ) of LAW that his DATE conviction had not been raised until DATE . In this connection , it referred to the fact that at the date of the ORG ’s expulsion decision the applicant had resided unlawfully in GPE for DATE and had in addition worked without a work permit for large parts of this period . In addition , since his conviction in DATE , he had on CARDINAL occasions been fined for violation of LAW ( on the latter two occasions for driving without a driving license , see paragraph CARDINAL above ) . Whilst these offences were regarded individually and on principle as being relatively minor , they ought to be viewed in connection with the applicant ’s previous conviction for bodily harm , in addition to his failure to respond to the order to leave the country as well as his prolonged unlawful residence and employment throughout DATE . These offences , when considered as a whole , indicated a lack of respect for NORP law and for NORP authorities’ decisions .

The ORG further observed that intentional or negligent violations of LAW of DATE of the nature involved in the instant case in principle constituted a criminal offence ( section CARDINAL(CARDINAL)(a ) of LAW of DATE ) . It reiterated that the legislative bill to ORG ( GPE . MONEY ( DATE ) ) stated inter alia the following with regard to expulsion on the grounds of violations of LAW ( page CARDINAL ) :

“ Although such violations [ i.e. gross violations of LAW ] normally also may lead to criminal liability , in terms of prosecution costs , it would be advantageous if an expulsion order could be made without requiring a legally enforceable criminal judgment . ”

On the other hand , the ORG altered its decision of DATE prohibiting the first applicant to return to GPE indefinitely and limited the prohibition to DATE . A decisive consideration for this change was that his spouse and children had been granted a residence permit . ORG observed that as a starting point the first applicant ’s expulsion would mean that the family would be split . However , the right of the other family members to reside in GPE did not imply any corresponding duty to do so . The whole family originated from GPE , where the older children had been born and lived during their childhood . Their family life could in principle be secured either by the whole family moving to GPE or through the visits of the wife and children of the husband in GPE . His expulsion was of limited duration and at the expiry of the period it would be possible to apply for a residence permit on family reunification ground . Whether such a permit would be granted would depend on future circumstances . However , an expulsion for DATE did not imply a permanent splitting of the family .

The Board had particular regard to the daughter ’s situation , which was followed up and was to be the subject of measures in GPE , and to the scarcity and low quality of public assistance in GPE to children suffering from handicaps and other types of illnesses affecting their functional capacities , where assistance to children suffering from autism and their parents was provided primarily by private institutions . Bearing in mind especially the daughter ’s interests , ORG had understanding for the fact that the family as a whole did not prefer to return to GPE .

In the light of the above , ORG discontinued , by decisions of DATE and DATE , the proceedings in so far as the spouse and the children were concerned . As regards the first applicant , ORG found for ORG and rejected his request for an interlocutory injunction to stay his deportation , by a judgment and a decision of DATE .

On DATE ORG ( lagmannsrett ) rejected the first applicant ’s appeal against ORG decision not to grant an interlocutory injunction , as did ORG on DATE .

On the other hand , ORG , by a judgment of DATE , quashed ORG decision of DATE as being unlawful .

ORG had no doubt , nor was it disputed , that the objective conditions set out in section CARDINAL(CARDINAL)(a ) and ( c ) of the DATE LAW for ordering the first applicant ’s deportation had been fulfilled ; the only question was whether the measure would be proportionate as required by section CARDINAL(CARDINAL ) . In this regard , ORG observed that his conviction in DATE for having caused physical injury to a third party with a knife was serious , even though there had been mitigating circumstances and the sentence ( DATE of which CARDINAL were suspended ) had been relatively short . General considerations of crime prevention suggested that one ought to react to violence of this character .

However , the expulsion of a convicted person ought to be effected as soon as possible after the criminal judgment had become enforceable . The fact that DATE had elapsed before concrete measures had been taken to expel him , which could hardly be due to anything else than a lack of coordination on the part of the immigration authorities , weakened the significance of the judgment .

On the other hand , the fact that the first applicant for DATE had stayed and worked unlawfully in GPE was very serious and was not altered by the authorities’ passiveness . ORG had not incorrectly assessed his attachment to GPE and lack of legitimate expectations of being able to stay there . The fact that his spouse and children had been granted a residence permit would not hinder his expulsion , as this would not in the circumstances be a disproportionate measure vis - à - vis him . Another question was whether his DATE daughter PERSON with her special care needs ought to be viewed as such extraordinary circumstances as could warrant his being able to stay in GPE .

On the evidence ORG found that ORG chronic and very serious degree of child autism and need for follow - up would affect the other family members strongly in DATE to come and entail a burden on them far beyond the normal level . Her functional incapacity meant that she would always be dependent on her GPE resources . Her mother was exhausted and had a marginal level of functioning . It was the father who had activated GPE on a DATE basis and she was particularly attached to him . Should he be deported it was likely that the disturbance to her development would be aggravated and would cause a further burden to the mother , to the brothers and to others who assumed responsibilities for her .

ORG concluded that the first applicant ’s expulsion would expose GPE to an extraordinary burden that would not be justified by general considerations of crime prevention or immigration policy and would constitute a disproportionate measure . In this context ORG had regard to the importance of the fact that the residence permit to the mother and the children had so far been limited to DATE at a time .

ORG upheld ORG findings that the first applicant had not made it sufficiently probable that he upon return to GPE would risk such persecution as could justify granting him a refugee status or would otherwise face a real danger of loss of life or exposure to inhuman treatment .

Finally , ORG dismissed the claim for a residence- and work permit from the courts .

The ORG appealed to ORG ( PERSON ) challenging ORG proportionality assessment under section CARDINAL ) of the DATE LAW .

NORP In its judgment of CARDINAL DATE ( PERSON ) ( NORP Supreme Court Law Reports – “ ORG . ” p. CARDINAL ) ORG observed inter alia that considerable time had elapsed from the rejection of his asylum application in DATE until the expulsion decision of DATE and further to the present review of the case by ORG . Throughout this time , the first applicant had resided in GPE unlawfully , of which he had also been aware . The time factor could thus not be given particular weight in the assessment . Whilst his residence had naturally resulted in strengthening his attachment to GPE , it had equally aggravated his violations of LAW . This point of view was particularly valid in a case such as the present one , where the applicant had been aware throughout that he was required to leave the country .

Nor had the first applicant had any legitimate expectation of being allowed to remain in the country . Also , his criminal conviction meant that an instruction of DATE issued by ORG to put certain cases in abeyance , notably cases concerning applications for asylum or residence , involving or relating to children , made by persons who had resided in GPE for DATE , did not apply to the first applicant .

ORG found it established that the first applicant had committed serious violations of LAW DATE which of their own clearly constituted a sufficient ground for expulsion . An additional ground were the offences he had committed under Article CARDINAL , cf . Article CARDINAL , of LAW and , albeit of lesser importance , under LAW . ORG had in its decision of DATE pointed out that immigration policy considerations then ought to militate strongly in favour of upholding the expulsion order . Also the background – his unlawful stays in other NORP countries with unsuccessful asylum applications , including once under a false name – was a factor that to some extent went in the same direction .

ORG further observed that the first applicant lacked a legal basis for residing in GPE and therefore ought to leave the country in any event . What the likely outcome could be of an application for residence permit in the current situation could not enter into the consideration of the case . The disputed decision entailed the consequence for him that he would be expelled from the country for a period of DATE and he could not apply for a residence- or work permit during this period . GPE ’s participation in the GPE cooperation meant as a rule that an expulsion from GPE also implied a prohibition to enter the entire LOC . In the case of a foreigner , whose unlawful residence had been so extensive and so long and who had been convicted of violence , it could not be said that an expulsion in such circumstances would constitute an extraordinary burden .

The interests pertaining to his wife and his CARDINAL eldest children could hardly speak in favour of making a different assessment than that which applied to the first applicant . They had for DATE lived on their own in GPE . That the first applicant in the event of an expulsion could not come for visit for DATE was a normal consequence of expulsion and did not constitute an extraordinary burden . The family life could be maintained by his wife and children travelling to GPE for shorter or longer periods .

ORG also noted that , whilst ORG had relied on the consideration that GPE was suffering from a chronic and serious degree of child autism , the first applicant had submitted a medical statement of DATE from which it appeared that her current diagnosis was “ unspecified far - reaching developmental disturbance ” . The expulsion applied for DATE during which the first applicant would not have the opportunity to help his daughter upon visits in the country . As already mentioned , the family contact would instead be maintained through visits in GPE . Nor in this respect could there be a question of any extraordinary burden .

ORG , having regard the ORG ’s case - law , notably PERSON and Others v. GPE ( no . CARDINAL/CARDINAL , § § CARDINAL and CARDINAL , DATE ) and the criteria of “ exceptional circumstances ” and “ insurmountable obstacles ” relied on there , concluded that the first applicant ’s expulsion would not give rise to a violation of LAW . His expulsion would not constitute a disproportionate measure vis - à - vis the other family members .

On DATE the first applicant was expelled to GPE .

The second to fifth applicants were granted NORP citizenship on DATE .


Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE , GPE . He is represented before ORG Lończyk - Colin , a lawyer practising in Ruda Śląska .

NORP In DATE the applicant ’s daughter , ORG , was born out of his informal relationship with GPE , a NORP national . The family lived together in GPE .

NORP In DATE the couple split up and GPE and GPE moved to GPE with the applicant ’s consent .

Since then , the applicant has maintained his contact with his daughter through frequent phone calls , regular meetings in GPE and several meetings in GPE . During these visits , the child was always accompanied by her mother , who would not allow the child to make unaccompanied visits to GPE or to travel to GPE without her .

The child does not speak NORP . Her mother occasionally teaches her NORP and reads to her in this language . The applicant communicates with his child in basic NORP or through the child ’s mother . He pays child support and tuition for the child ’s private school .

On DATE the applicant applied for contact with his daughter . He did not ask for an interim order to be issued to secure his contact rights during the proceedings . He wished to take his daughter to GPE DATE in DATE , for the All Saints’ holiday , and for the DATE or GPE holidays in DATE .

On DATE ORG ordered a report from ORG ( Rodzinny Ośrodek PERSON , “ the RODK ” ) to establish what kind of bond existed between the applicant and his child , the quality of the direct communication between the applicant and the child , and whether the child ’s travel to GPE without the mother and contact between the applicant and the child without the presence of the mother or an interpreter would be contrary to the child ’s best interests .

On DATE ‒ following interviews with both parents and the child , which took place in the presence of a NORP interpreter ‒ the RODK produced an expert report . It was found that the child had a strong bond with both parents and that both of them were considerate , emotionally balanced and loving . It was also concluded that the quality of the linguistic communication between the applicant and his daughter was good and sufficient for the applicant to understand the needs of his child and for their mutual communication and that it was in the child ’s best interests that contact arrangements be made . It was also recommended that before the applicant travelled with his daughter to GPE , they should have several unaccompanied meetings in GPE and that the child ’s mother should accompany the child on a trip abroad .

On DATE ORG ( Sąd Rejonowy ) dismissed the applicant ’s application . The domestic court heard both parents and a witness . The domestic court also relied on the RODK report which was considered to be full and thorough , although it led the domestic court to draw partly different conclusions . In particular , it was held that the quality of the independent communication between the applicant and his child was not sufficient for carrying out long - term unaccompanied visits to GPE . Even though the lack of adequate linguistic exchange might not have significantly impeded the applicant ’s play - time with his child as tested by the RODK , the lack of a common language between a father and a fouryear - old constitutes a serious obstacle to their contact in the longer term . In particular , the child would not be able to inform the applicant about her feelings or possible health disorders , and she would therefore not feel secure in the new environment . In this respect , the domestic court considered the RODK report to be inconsistent because , on the one hand , the experts had found that the quality of the communication between the father and the daughter was sufficient whilst , on the other , they recommended a transitional period during which the child would be accompanied by her mother on trips to GPE and the father could meet her without any linguistic assistance in GPE . In view of these considerations and the child ’s young age , the domestic court held that ensuring her feeling of security ‒ which would in turn guarantee her adequate development and the proper course of the meetings ‒ was more important than her independent contact with her father . The domestic court had no doubt that the applicant had a right to unaccompanied contact with his daughter and that he had adequate parenting skills for such contact . But the language barrier between him and his child was an obstacle . The district court upheld the recommendation of the RODK experts that the child should be prepared for future independent contact by means of unaccompanied meetings in GPE and visits to GPE in her mother ’s company . Eliminating such a transitional period would deprive the child of the possibility of a gradual adaptation to such a new and important event as unaccompanied travel with her father to GPE . The domestic court decided not to rule on any contact arrangements during the transitional period because the applicant had not requested it in his application .

The applicant appealed on the merits , including the grounds that a family court was duty - bound to rule on contact arrangements when the parties were in disagreement . The applicant also applied for an interim order for the duration of the appellate proceedings by virtue of which he would be authorised to have his daughter ’s passport and to spend DATE and DATE with the child without the mother ’s presence .

On DATE ORG ( PERSON ) issued an interim order authorising the applicant to visit his daughter DATE in her home in GPE from TIME to CARDINAL p.m. without the presence of any third parties , and to take his daughter out for no longer than TIME ( with the mother having a right to one phone call during this time ) . A copy of this decision has not been submitted . It appears that the applicant did not lodge an interlocutory appeal .

The applicant met his daughter in compliance with the above interim decision . He spoke with her mainly in NORP .

The applicant later modified his application for contact , wishing to spend his time with the child in GPE , DATE ‒ from TIME on DATE until TIME on DATE ‒ in the period up until DATE , and from TIME on DATE until TIME on DATE , with the right to take her to his home . In the later phase , he wished to have extended contact rights as set out in his DATE application .

On DATE ORG amended the first - instance decision by authorising the applicant to visit his child DATE , on DATE between TIME , on DATE from TIME and on DATE from TIME , and DATE from TIME in the period from DATE . The meetings were to take place at the child ’s home without the presence of the mother or any third parties . The applicant was also authorised to take the child out for a maximum of TIME , with the mother being entitled to one phone call . Additionally in DATE , the applicant was authorised to take the child out for a maximum of TIME and , DATE , to take the child to his place of residence in GPE and to travel alone with the child within a radius of QUANTITY for a maximum of TIME , with the mother being entitled to CARDINAL phone calls .

In the domestic court ’s view , such a schedule would deepen the bond between the father and the child and would help them improve their communication without the risk of the child feeling insecure . It was observed that the schedule was a temporary solution of indeterminate duration until the child reached a certain level of maturity and learned to speak NORP , which would be necessary in order for her to make unaccompanied visits to GPE .

The applicant regularly travels to GPE to exercise his contact right in line with the above schedule .

He has recently submitted to the ORG , however , that since DATE GPE had been interfering with the course of his visits by remaining present in the room designated for the applicant ’s visits and not letting him take the child out . Out of CARDINAL recent visits , the applicant had been allowed to take his daughter out CARDINAL times , including twice after police intervention . The time out had often been shorter than TIME and GPE had telephoned her daughter more frequently than was authorised by the family court .

On DATE the applicant applied for GPE ’s custody to be restricted on the grounds that she had been hindering his contact with the child .

In the course of these proceedings , GPE made the following submissions to the family court .

The applicant is not being impeded from having contact with his daughter in line with the court ’s decision of DATE . In particular , a room with toys is at his disposal in GPE ’s house and his visits are undisturbed by the child ’s mother . The applicant is in principle allowed to take his child out for TIME , with the mother telephoning only once . Out of CARDINAL recent meetings between the applicant and his daughter , the child did not go out with the applicant on only ten occasions . On these occasions , either the child was ill or the weather was bad or the child did not want to go out . To substantiate this , GPE presented a medical certificate confirming that the child had bronchitis in DATE . She also submitted that on DATE she had called the police after the applicant had used physical force to carry his crying and struggling daughter outside . DATE the police had told the applicant to leave .

GPE also informed the family court that the applicant provoked disputes and threatened her with child abduction . Moreover , the applicant filmed GPE during each visit , following her inside the house . The applicant ’s visits were becoming more and more unpleasant for the child because he never brought books or toys to play with and was unable to entertain the child due to the language barrier . He sometimes gets angry with his daughter and makes her cry . He has also used firm grips to stop her from leaving the room . On CARDINAL occasion he had left bruises on the girl ’s arms . If the child does not want to go out with the applicant , the latter calls the police . On CARDINAL occasion , he did so when the child was in bed with fever . The child associates his visits with violence and police intervention .

On DATE ORG issued an interim decision ordering the visits to the child to be supervised by a court bailiff who was to report to the family court once DATE . The aim behind this decision was to verify ORG parenting attitude and to enable the applicant to exercise his contact right . It was emphasised that the decision had a temporary character and was susceptible to change in the event of new circumstances and if the best interests of the child so required .