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);Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty);Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Just satisfaction)

Elisabeth Steiner;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

He is a person with a Category CARDINAL disability .

The applicant is an independent journalist and the chairman of ORG ( “ NORP ” ) , a non - governmental organisation specialising in the protection of journalists’ rights . He also worked as a reporter for the news agency ORG .

On DATE a group called the “ PERSON Club ” held a gathering at a private café in GPE to celebrate the eightieth anniversary of the birth of PERSON . The café in question was located in the basement of a building in the city centre and there were CARDINAL attendees in the gathering . The applicant , accompanied by CARDINAL other colleagues ( PERSON and GPE ) from the LOC , attended this gathering .

The gathering began at TIME and TIME about thirty police officers entered the café . Some of them were in police uniform and others were in plain clothes . They suspended the gathering and announced that they were going to take the attendees to the police station .

The applicant identified himself , informing the police officers that he was a journalist and the chairman of the LOC . He had with him his identity card and the card confirming that he was the chairman of the LOC . The applicant also asked the police officers to identify themselves and to release his arrested colleagues . He further informed ORG by telephone about the police intervention . In response , one of the police officers , who was apparently in charge of the intervention , ordered other police officers to take the applicant to the police station .

According to the applicant , he was taken to a police car by QUANTITY police officers , who used force against him . In particular , they punched and kicked him in the stomach .

NORP In support of his version of events , the applicant relied on written eyewitness statements from GPE and GPE , dated respectively DATE and DATE , who confirmed that the applicant had informed the police officers that he was a journalist and the chairman of the LOC before asking the police officers to release them . A police officer had then instructed other police officers to arrest the applicant and they had used force against him while taking him to a police car .

After his arrival at the police station , the applicant had been separated from the others who had been arrested and had been taken to the office of the Deputy Head of FAC no . CARDINAL , PERSON police officers had entered the room and had threatened the applicant in the presence of FAC of the police officers , PERSON , had , according to the applicant , shouted at him and had taken out his gun . Hitting his gun on the table , he had shouted “ I can eliminate you ” , “ I can arrest you ” , “ I can send you to jail ” . Then he had pushed down the applicant ’s head by pressing on the back of his neck so that his head hit the table . The applicant had warned the police officer that he was a person with a LAW disability and that his health was fragile . At that point O.A. had struck the applicant in the neck with his elbow ; as a result , the applicant had lost consciousness .

NORP In support of his version of events , the applicant relied on the above - mentioned written eyewitness statements from GPE and GPE In particular , PERSON submitted in his witness statement that , when he was in the corridor in the police station , the applicant was taken to the office of the Deputy Head of FAC no . CARDINAL . He had then heard someone who was shouting at the applicant saying “ I can eliminate you ” , “ I can send you to jail ” .

When the applicant regained consciousness , he had asked the police officers to call an ambulance because he did not feel well . They allegedly refused to do so , but had taken him out of the room . The applicant ’s colleagues had seen him in the corridor and had asked other members of the LOC to call an ambulance . They had also informed the media about the applicant ’s ill - treatment by the police .

In the meantime , some journalists , human rights defenders and youth movement activists who had been informed of the arrest of the applicant and his colleagues had begun gathering in front of the police station .

At TIME police officers accompanied the applicant to the door leading out of the police station , but the applicant had been able to take only a few steps and had then again lost consciousness . In support of his version of events , the applicant relied on written eyewitness statements from GPE ( journalist ) , PERSON ( civil society activist ) and PERSON ( director of ORG ) , who were at that time present in front of the police station . The witnesses stated that , when the applicant was taken out of the police station , he was unconscious and was taken by an ambulance , which was called by them , to hospital .

At TIME the applicant was admitted to hospital with the diagnosis of traumatic brain injury and contusion of the soft tissues around the nape of his neck . The applicant remained in the intensive care unit of the hospital for DATE . He was released from hospital on DATE .

The events of DATE attracted significant public and media interest both inside the country and internationally . In particular , a number of human rights organisations , including ORG , ORG , expressed concern over the applicant ’s arrest and ill - treatment by the police , asking the domestic authorities to conduct an effective investigation into the incident .

On DATE the police intervened in the gathering in question on the basis of a complaint from people living in the neighbourhood of the café , who complained about noise and the behaviour of those attending . The applicant and other attendees who were unable to produce their identity cards were taken to the police station but were released once their identity had been established . During his stay at the police station the applicant was not ill - treated by the police .

A criminal inquiry was launched by FAC no . CARDINAL in connection with the information about the applicant ’s admission to ORG with injuries .

On DATE the applicant was questioned in hospital by an investigator from FAC no . CARDINAL . The applicant described in detail the circumstances of his arrest and detention by the police on DATE . In particular , he stated that on DATE he had attended the gathering commemorating the eightieth anniversary of the birth of PERSON , which had been interrupted by a police intervention . When he protested about the arrest of his journalist colleagues on the orders of the police officer who was apparently in charge of the intervention , QUANTITY police officers forcibly took him to a police car . Following his arrival at FAC no . CARDINAL , he was taken to the room of the Deputy Head of the police station . Other police officers were also in the room and CARDINAL of them , who was wearing black sunglasses , began insulting him . He then began threatening him , took out his gun and shouted at him . The same police officer also struck him in the neck , as a result of which he lost consciousness . The police officers then took him out of the room .

While the criminal inquiry was still pending , on DATE the spokesman for ORG , GPE , in an interview with ORG , stated as follows concerning the applicant ’s arrest and alleged ill - treatment by the police :

“ The statements made to the media by the chairman of ORG , PERSON , alleging that he was subjected to duress by the police are not true . Even the allegations published in the media are contradictory . ”

He further continued :

“ On DATE a group of people held an unauthorised gathering at a café . The police requested the interruption of the unauthorised gathering . CARDINAL people were taken to FAC no . CARDINAL in order to establish their identity and to conduct the relevant explanatory interviews ( izahat işləri ) . They were all released following the explanatory interviews . At that time , PERSON said that he did not feel well . An ambulance was called immediately . It was established during the medical examination that his health problem was related to his previous diseases . It was established during the medical examination that PERSON had lost consciousness because his blood pressure reached CARDINAL . ”

According to the applicant , he was examined by a forensic expert in hospital on DATE . The forensic report dated DATE provides that the examination began on DATE and ended on DATE without specifying the exact date of the applicant ’s examination by the forensic expert in hospital . The forensic report of DATE reads :

“ Questions addressed to the forensic expert :

NORP What kind of injuries are there on PERSON body ? What are their degree of gravity and characteristics ? In which order and with which instrument were they inflicted ? Could these injuries be sustained as a result of a fall , a beating or were they inflicted by PERSON himself ?

Does the date of infliction of the injuries on the body of citizen PERSON correspond to the date indicated in the descriptive part of the decision ?

Information about the case

It appears from the decision that a report in connection with the information that citizen PERSON , who resides in ... , has sustained injuries was assigned to me . PERSON , who was questioned during the inquiry , stated that on DATE a person that he did not know had struck him in the neck in FAC no . CARDINAL . Citizen PERSON attended the Clinical Medical Centre in connection with his injuries .

The examination was carried out in the resuscitation and intensive care unit of ORG in the presence of the lawyer PERSON . According to the person examined , at TIME on DATE during an event dedicated to the eightieth anniversary of the birth of PERSON in café PERSON , plain clothes persons took him and other attendees to FAC no . CARDINAL . He was struck in his head at that moment and later at the police station . He replies in detail and precisely to the questions about the incident and other questions .

NORP The person examined is a man of medium height , normal build and slightly overweight .

No injuries or objective signs of injury were noticed on the hairy part of the head , the face and other parts of the body .

It appears from medical record no . CARDINAL of the patient of the Clinical Medical Centre of ORG that at TIME on DATE PERSON , who is DATE , was admitted to the resuscitation and intensive care unit by a team from emergency unit no . CARDINAL with the diagnosis of traumatic brain injury and contusion of the soft tissues around the nape of the neck ( qapalı kəllə beyin travması , ənsə nahiyəsinin yumşaq toxumlarının əzilməsi ) . It was not possible for him to describe his complaints when he was admitted to hospital . According to those who brought him to hospital , the patient sustained the injury as a result of a beating . His general state was serious . The skin and mucous membrane were of ordinary color . The respiration was vesicular . The respiratory rate was CARDINAL breaths per minute , the blood pressure was CARDINAL/CARDINAL PERSON , the heart pulse was beating TIME . The abdomen was not hard and there was no pain . Neurological status : his conscious awareness was impaired to the point of deafness . His reaction to bright light was positive , he turned away from it . His pupils and tendon reflexes were at equal distance from each side and they were alive . Meningitis symptoms and pathological reflexes were not observed . In the examination no injury was noticed on the skin . Diagnosis : neurological reaction ( nevrotik reaksiya ) . At TIME on DATE the patient , who was in a serious neurological state ( nevrotik vəziyyət ) , was directly admitted from the admission unit to the resuscitation and intensive care unit . His conscious awareness was in soporous state . The tendon and corneal reflexes were alive . The skin and mucous membrane which may be observed by eye were pale . The blood pressure was CARDINAL/CARDINAL PERSON , the heart pulse was beating CARDINAL per minute . The respiration was normal and sufficient . The urination was normal . Hb-CARDINAL g / l , leucocytes QUANTITY . On DATE there was no pathological change in side projected X - ray examinations of side and neck vertebras of the cranium . At TIME on DATE the comment of the doctor on duty : the patient ’s state was stable . He was conscious and replied to questions . His pupils were at equal distance from each side and corneal reflexes were alive . There were no meningitis elements . The skin and observable mucous membrane were pale ... ( illegible ) , the heart pulse was beating CARDINAL per minute , the blood pressure was QUANTITY Hg ... ( illegible ) , the respiratory rate was CARDINAL breaths per minute ... ( illegible ) . His tongue was wet , the abdomen was not hard , the urination was adequate . It was written in the summary of the cerebral computed tomography opinion dated DATE that intraparenchymal traumatic pathological changes were not observed in PERSON . In the computed tomography examination of DATE pathological change in the neck area and traumatic change in the neck part of the vertebral column were not revealed . In the ultrasound examination of CARDINAL DATE no liquid was revealed in the abdomen and there was no hematoma in the parenchymal organs . It was noted in the log dated DATE that an examination was carried out by the doctors , the experts in neurotrauma , GPE and GPE , the head of the resuscitation and intensive care unit , ORG , the experts in resuscitation , ORG and GPE , and the following were noted : his general state was stable , he complained about headaches . The blood pressure was CARDINAL/CARDINAL PERSON , the heart pulse was beating CARDINAL per minute . Neurological status : he was conscious and adequately replied to questions . His pupils and tendon reflexes were at equal distance from each side and they were alive . No change was observed in the cranial - brain nerves . There were no meningitis symptoms . Taking into account the patient ’s subjective complaints , it was desirable to subject him to a computed tomography examination . Bearing in mind the patient ’s state , it was decided that the further examination and treatment of the patient be continued in the neurotrauma department . It appears from the subsequent log that the patient was examined jointly by the assistant professor PERSON and the head of the department . It was further indicated that PERSON illness was related to extended osteochondrosis of the vertebral column , numerous disc protrusions in the back and neck areas ( C CARDINAL - CARDINAL , LAW , C CARDINAL - CARDINAL , L CARDINAL - CARDINAL , L CARDINAL , S CARDINAL ) , chronic dyscirculatory encephalopathy and vestibulopathy . His treatment in connection with the above - mentioned diseases is ongoing . Clinical diagnosis : neurological reaction , vertebrogenic syndrome , C CARDINAL - CARDINAL , C CARDINAL - CARDINAL , C CARDINAL - CARDINAL intervertebral disc protrusions , paroxysmal vein distention .

The forensic expert : C.A.

Conclusion

Relying on the forensic examination of PERSON , born in DATE , and the content of the medical documents , I conclude as follows in reply to questions addressed in the decision :

No injuries or objective signs of injury ( bruise , abrasion , wound , swelling , etc . ) were noticed on the body of PERSON .

PERSON in - patient treatment was related to his previous diseases - extended osteochondrosis of the vertebral column , numerous disc protrusions in the back and neck areas ( C CARDINAL - CARDINAL , C CARDINAL - CARDINAL , C CARDINAL - CARDINAL , L CARDINAL - CARDINAL , L CARDINAL , S CARDINAL ) , chronic dyscirculatory encephalopathy and vestibulopathy . ”

The applicant was not provided with a copy of the forensic report .

On DATE FAC no . CARDINAL issued an explanation ( arayış ) concerning the police intervention of DATE . The relevant part of this document , signed by ORG no . CARDINAL , M.T. , reads :

“ On the basis of the information that CARDINAL people had gathered at café “ ORG ” in the basement of building no . CARDINAL at CARDINAL May Street in GPE on DATE , at TIME police officers from ORG took measures in order to identify the persons gathered in this place and to establish the purpose of the gathering , and CARDINAL of them were taken to FAC no . CARDINAL .

After these individuals had arrived at Police Station no . CARDINAL at TIME , they were registered in the “ apprehended ORG registration log ” ( gətirilmiş şəxslərin qeydiyyat kitabı ) and were released at TIME At the police station , their identity was established and statements were taken from CARDINAL of them in order to establish the purpose of their gathering in that location .

... At the police station , their identity was established and they were released following a “ prophylactic conversation ” ( profilaktik söhbət ) . It was also established that PERSON , who presented a document stating that he was the chairman of ORG , was among the persons apprehended ... ”

By a decision of DATE , the investigator refused to institute criminal proceedings , finding that there was no evidence that the applicant had been ill - treated by the police . The relevant part of the decision reads :

“ It was established during the examination of ORG reception log in ORG that citizen PERSON was admitted to the hospital with the diagnosis of neurological reaction at TIME on DATE . This was also noted in extract no . DATE , dated DATE , from the patient ’s in - patient and out - patient medical record provided by ORG .

In connection with the above - mentioned , the forensic report no . DATE of DATE , ordered on DATE , which was carried out by ... provides in reply to the questions addressed to the expert , on the basis of PERSON forensic examination and the content of the medical documents , that no injuries or objective signs of injury ( bruise , abrasion , wound , swelling , etc . ) were noticed on the body of PERSON and that PERSON in - patient treatment was related to his previous diseases - extended osteochondrosis of the vertebral column , numerous disc protrusions in the back and neck areas ( C CARDINAL - CARDINAL , C CARDINAL - CARDINAL , C CARDINAL - CARDINAL , L CARDINAL - CARDINAL , L CARDINAL , S CARDINAL ) , chronic dyscirculatory encephalopathy and vestibulopathy .

It appears from the evidence collected in connection with the fact that citizen PERSON had sustained an injury and from the forensic report dated DATE ... that there were no injuries or objective signs of injury on PERSON PERSON ’s body . As no criminal act has been established in this respect , it is appropriate to refuse to institute criminal proceedings . ”

The applicant was not informed of the decision of DATE concerning the investigator ’s refusal to institute criminal proceedings .

On DATE the applicant lodged a criminal complaint with ORG . Relying on Articles CARDINAL , DATE , DATE and CARDINAL of the Convention , he complained that he had been ill - treated by the police during his arrest and whilst in police custody , and that the domestic authorities had failed to conduct an effective investigation in this respect . The applicant further complained that he had been unlawfully deprived of his liberty and that the police intervention of DATE had been unlawful and had constituted an unjustified interference with his rights to freedom of expression and assembly . The applicant pointed out , in particular , that the investigator had questioned neither the police officers who had been involved in the ill - treatment nor the other witnesses . He also stated that he had not learned about the existence of the investigator ’s decision of DATE until DATE and that he had never been provided with a copy of the forensic report .

On DATE ORG dismissed the applicant ’s complaint , finding the investigator ’s decision lawful . The court ’s decision was silent as to the applicant ’s particular complaints . The relevant part of the decision reads :

“ ... It was established during the examination of ORG reception log in ORG that citizen PERSON was admitted to the hospital with the diagnosis of neurological reaction at TIME on DATE . This was also noted in extract no . DATE , dated DATE , from the patient ’s in - patient and out - patient medical record provided by ORG .

It appears from the forensic report ... that no injuries or objective signs of injury ( bruise , abrasion , wound , swelling , etc . ) were noticed on PERSON body . It was noted that PERSON in - patient treatment was related to the previous diseases ... that he had suffered .

Therefore , the court considers that in carrying out a preliminary examination in compliance with LAW for establishing whether there were sufficient basis to institute criminal proceedings the investigator took all the necessary steps and , as it was not established that there had been a criminal element in the examined fact , a justified and lawful decision on refusal to institute criminal proceedings was adopted . ”

On DATE the applicant appealed against this decision , reiterating his previous complaints . He also complained that the investigator had not arranged an identity parade including the police officer O.A. and neither had he questioned the police officers involved in his arrest and detention and , in particular , the Deputy Head of the FAC no . CARDINAL in whose room and whose presence he had been ill - treated . He had failed to obtain video recordings from security cameras situated in the police station in question . The applicant also disputed the conclusions of the forensic report , pointing out that he had not been provided with a copy of it .

On DATE ORG upheld the first - instance court ’s decision .

In the meantime , the applicant also lodged a civil action against ORG , asking for compensation . Relying on Articles CARDINAL , CARDINAL , DATE and CARDINAL of the Convention , he complained that he had been ill - treated by the police , that he had been arrested and taken to the police station unlawfully , and that the police intervention in the gathering had constituted an unlawful interference with his rights to freedom of expression and assembly . In support of his claim , the applicant relied on written eyewitness statements from PERSON and GPE , who stated that police officers had used force against the applicant during his arrest . They also stated that when the applicant was in the room of the Deputy Head of FAC no . CARDINAL , they had heard someone shouting at the applicant “ I can eliminate you ” , “ I can send you to jail ” . When the applicant had been taken out of the room , he did not feel well .

On DATE ORG refused to admit his action , finding that it did not comply with the procedural requirements for lodging a complaint .

On DATE ORG quashed ORG decision and remitted the case to the lower courts for a new examination .

On DATE ORG , having examined the applicant ’s action on the merits , decided to dismiss it . The court found that the applicant had been taken to the police station because he had not had his identity card on him . The court also held that the police intervention had been lawful , since the gathering at the café in the city centre disturbed other people present and consequently the police had intervened . As regards the applicant ’s alleged ill - treatment , the court held that it had not been established that the applicant had been ill - treated by the police . The relevant part of the judgment reads :

“ It was established at the court hearing that an investigator from FAC no . CARDINAL had examined the fact that PERSON had sustained injuries , that it had been decided to refuse to institute criminal proceedings on the basis of the collected materials because no criminal act had been established , and that this decision had not been challenged .

Moreover , it was established at the court hearing on the basis of witness statements that the applicant had been taken to FAC no . CARDINAL because he had not had his identity card on him , that he had been detained for a certain period of time , and that he had been then released following the establishment of his identity .

It was also established at the court that PERSON had been previously sustained brain injury and regularly underwent medical treatment in GPE and abroad for a long period of time . Unexpected health problems were previously observed in his case and the fact that he had felt unwell after having been brought to the police station was not related to any duress , but to his previous illness .

Furthermore , it was not established at the court hearing that the applicant had sustained a bodily injury or subjected to physical violence , beaten or been under duress at the police station . ”

On DATE ORG dismissed the applicant ’s appeal .

On DATE ORG upheld the lower courts’ judgments .


CASE OF MIHAYLOVA AND MALINOVA v. BULGARIA

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

George Nicolaou;Guido Raimondi;Ledi Bianku;Nona Tsotsoria;Paul Mahoney;Zdravka Kalaydjieva

The applicants , daughter and mother , were born respectively in DATE and DATE and live in PERSON . Mr PERSON , the victim of the police action in question , was a young GPE man : the first applicant ’s father and the second applicant ’s unmarried partner .

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

Late in TIME of CARDINAL August CARDINAL , while driving in the centre of PERSON , PERSON noticed CARDINAL individuals who were trying to open the doors of a parked lorry . Mr PERSON was one of these men . PERSON called the police . Shortly afterwards , CARDINAL on - duty police officers from ORG , Chief PERSON and M , who at that time had been responding to another call , received information from the central office that CARDINAL “ gypsies ” had been seen breaking into a lorry and the officers drove immediately to the scene .

When the police car , apparently with its siren on , approached the lorry , the CARDINAL men started running . The officers followed by car . When the street became narrower , they got out of the car and separated , with Chief PERSON chasing PERSON while Sergeant M followed the other CARDINAL men , whom he was unable to catch . Chief PERSON caught up with Mr LOC by the side of the street , close to a parked car . A short fight followed , and QUANTITY shots were fired . CARDINAL of the bullets , fired at very close range , entered the left back of Mr LOC ’s head and exited through the right side of his forehead . An ambulance was called and PERSON was taken to a hospital where his death was registered at TIME on DATE .

On DATE a criminal investigation ( VII-CARDINAL/CARDINAL ) was opened against Chief Sergeant S to establish whether he caused Mr PERSON ’s death as a result of a disproportionate reaction to an attack ( LAW : see paragraph CARDINAL below ) . At this stage no charge was brought against him .

An autopsy was carried out on Mr PERSON ’s body on DATE . In his report the forensic pathologist determined that death had resulted from a severe cerebral trauma and ensuing cardiovascular insufficiency . The trauma was caused by a transitory gunshot : the entry wound was located on the left side of the back of PERSON head and the exit wound on the right side of the forehead towards the temporal bone . The shot was fired from a distance close to point - blank range . The expert noted that , as the head could move in different directions , on the basis of the route of the bullet it was difficult to establish the dynamic position of the victim ’s body in relation to the gun at the moment of shooting . He also noted several bruises on the right side of PERSON face , his right hand and both knees , which he concluded had in all probability resulted from DATE to the ground after the shooting .

The pathologist also examined Chief PERSON He noted a reddishpink bruise on his right hand , measuring QUANTITY long , and another bruise measuring CARDINAL by QUANTITY on his right side . The pathologist concluded that the injuries could have been inflicted in the manner described by the police officer , namely when he was trying to knock the knife from Mr PERSON ’s hand and during the struggle for the gun .

An inspection of the scene was carried out at TIME on DATE by a military investigator in the presence of CARDINAL certifying witnesses . There was no subsequent day - light examination . The investigator examined the bonnet of the car next to which Mr PERSON ’s body was found and noted a dent of QUANTITY located at QUANTITY from the front left corner and QUANTITY from the front right corner as well as a bullet hole measuring QUANTITY situated at QUANTITY from the front left corner and QUANTITY from the front right corner of the bonnet ; blood stains on the bonnet and on the ground next to the car ; and another dent with freshly peeling paint on the metal wall of the building to the left of the car . Photographs were taken of the dent and the bullet hole on the bonnet but these were not preserved as physical evidence , nor were impressions made of the dents and bullet holes . The vehicle was not taken away for examination and its owner , a security firm , repaired and sold it before the investigation was formally completed .

NORP The investigator found a handgun on the ground under the bonnet of the parked car . The safety lever was lifted and there was CARDINAL bullet in the barrel and CARDINAL in the magazine . The investigator found and retrieved CARDINAL spent cartridge case , on the other side of the street , CARDINAL to QUANTITY from the parked car where Mr PERSON was shot , but no bullets . During the subsequent stages of the investigation proceedings the initial number of cartridges in the officer ’s gun was not clarified , nor was it determined how many shots were fired , including whether a warning shot was fired . The statements of the Chief Sergeant S were contradictory on this subject . In his testimony of CARDINAL DATE he S stated that he had started with CARDINAL cartridges in his handgun but on DATE he changed his testimony , maintaining that he had had CARDINAL cartridges .

A fingerprint report of CARDINAL DATE did not record any traces of fingerprints on the handgun suitable for examination . The report on the acetone - drenched swabs of Chief PERSON ’s hands of CARDINAL DATE found no traces of gunpowder residue . The expert report on Chief PERSON ’s handgun of CARDINAL DATE concluded , inter alia , that it had been in good condition and would have discharged a shot only after the trigger was pulled .

During the inspection of the scene of the killing which took place in TIME of CARDINAL DATE , the investigating officer found a folding knife , with an QUANTITY blade and a QUANTITY metal handle . The protocol of the search stated that it was found on the bonnet of a car parked across the street from the death scene but it did not state whether the blade was open when it was found . It seems that no steps were taken to check for fingerprints on the knife or to determine its ownership . A mobile telephone was found in a stone vase near the scene of the shooting , but the subsequent investigation did not determine who owned it .

NORP The investigator questioned Chief PERSON , his colleague Chief Sergeant M and the CARDINAL security guards who had been standing in the vicinity of the scene at the time of the events .

Questioned in TIME of CARDINAL DATE , Chief PERSON stated that PERSON had been running with his arms open wide while trying to escape . As the sergeant caught up to him , PERSON had stopped and turned round . At this point Chief PERSON noticed that he held a knife , but it was dark and he could not see it well . Mr PERSON swung at the sergeant with his left hand , and the officer tried in vain to knock the knife away . Mr PERSON then grasped him tightly with both hands behind his back , while reaching for the handgun , which was in the officer ’s unbuttoned holster at his waist . The CARDINAL men had fought briefly for possession of the gun . Chief PERSON stated that he felt strongly afraid : it was dark , the other man had his hand on the officer ’s loaded gun and was armed with a knife . The officer could not remember the exact position of their bodies in the fight that ensued for the gun and at the moment when the shots were fired , nor could he remember how many shots were involved . He had been expecting the man to shoot or stab him at any moment .

Questioned later , Chief PERSON stated that after the first shot was fired he panicked and could not remember what happened . In his subsequent statements he explained that he had been stabbed on earlier occasions while on duty , which had made him particularly fearful of knives . He was not even aware who actually pulled the trigger and at CARDINAL moment he had feared that he had been shot , rather than Mr Mihaylov .

NORP Throughout the subsequent proceedings the only testimony about the detail of the fight remained that of Chief PERSON The other officer involved in the chase , Chief Sergeant M , and some other eye witnesses were also questioned in TIME of CARDINAL DATE . Chief Sergeant M stated that he telephoned Chief PERSON when he lost sight of the other CARDINAL suspects , to discuss how to proceed . Chief PERSON asked him to come to him immediately . When he arrived at the site there were a lot of people and he saw a man taken away by ambulance . Chief PERSON ’s handgun was beneath a car and there was a blood stain on the ground next to the car . His colleague was extremely upset and told him that he had done the worst . There was a pocket knife on the bonnet of another car nearby .

At the time of the events , CARDINAL employees of a private security company , ORG , ORG and ORG , were chatting in front of their office , which was in a building adjacent to the street where PERSON was shot . They were interviewed on CARDINAL occasions and their statements were inconsistent , both in respect of each man ’s previous statements and the statements given by the other men . Their statements varied as regards whether they heard a warning shot , how many shots were fired and whether they saw a knife in Mr LOC ’s hand . Some of them remembered the officer warning Mr LOC from a distance to stop and lie down . All of them stated that the events unfolded within TIME and that they could not see what exactly happened when the police officer came into contact with Mr PERSON because it was dark . None of them had seen a knife or a gun in the hands of Mr PERSON or Chief PERSON in this short time , although they saw them afterwards . They agreed that when Chief PERSON , who had fallen to the ground with Mr PERSON , stood up , he was holding a knife , which he threw and which fell on the bonnet of a car parked on the other side of the street . The officer had been very upset , and appeared to be in a state of shock , waving his arms around , pacing up and down and repeatedly proclaiming : “ What did I do ? ”

Later in the proceedings it transpired that there was a camera installed above the entrance door of the security company building , facing the street . The car next to which the shooting took place was parked on the opposite side of the street , at a short distance from where the men were standing . In his testimony of CARDINAL DATE , ORG stated that on TIME of the incident the security camera installed above the entrance to the building in which they worked had been broken . Another witness stated that the camera did not record footage , but only monitored the street outside , and was used by the TIME shift security guards to observe the firm ’s vehicles . The guard on duty on TIME of the shooting was ORG . He was standing outside with the other CARDINAL witnesses . There was also a dispatcher whose desk was below the monitor screen , but according to ORG she could not see it . During his interview of the same day EK stated that he could not remember which dispatcher was on duty that night and that at that time the dispatchers employed by the firm were all new employees of the company . The camera was not inspected and none of the other employees of the firm were interviewed on this point during the investigation .

On DATE the investigating officer completed his work on case - file VII-CARDINAL/CARDINAL . In his findings on the facts he described the unfolding events in detail as follows :

“ On DATE the operator on duty at the district police station of ORG Chief PERSON , a witness , took a call from a private person PERSON who reported that CARDINAL men were preparing to commit theft from a lorry parked on PERSON Street . The lorry belonged to ORG – it was left parked in the street with its signal lights on by ORG , who worked as a supplier for ORG The operator dispatched patrol officers Chief PERSON and Chief PERSON to the location in question . When the patrol vehicle approached the lorry on PERSON Street the CARDINAL men who were around and inside the lorry attempted to escape and started running in the direction of the town centre . The patrol vehicle followed them along PERSON Street when CARDINAL of the men ran towards the town centre and CARDINAL ran towards FAC . Chief PERSON went in pursuit of the CARDINAL men running towards the town centre and Chief PERSON followed the man who had gone in the direction of FAC ; PERSON fired a warning shot in the air – using a ‘ ORG bullet . On DATE FAC in proximity to FAC , and in front of building No . CARDINAL Chief PERSON caught up to the running man who while running had a mobile telephone in one of his hands and a pocket knife in the other . At TIME PERSON had already put his Makarov KT CARDINAL pistol into the holster on his hip so that he could run faster , and at the time there was a live bullet in the barrel of the pistol after the firing of the warning shot . PERSON was wearing a uniform , he had got off a police vehicle bearing insignia , he had shouted to the running man ‘ Stop ! Police ! Get down on the ground!’ but the man had not stopped running . In front of the building on FAC stopped running , turned to face the police officer and swung at him with his hand which held a pocket knife . PERSON saw the blade in the street light and blocked the hand of the man . Without letting go of the knife , ORG threw himself on VS , grabbed him around his waist while holding his arms , and attempted to take the gun out of PERSON ’s holster . PERSON took hold of ORG ’s hand which was holding the gun , and then BM pushed VS onto the bonnet of an Opel with number plates ORG which was parked nearby . As he was falling , PERSON managed to extricate himself from under PERSON , while PERSON kept holding on to his gun with one of his hands , and holding the knife in the other . At the same time PERSON had both his hands on ORG ’s hand with which he was trying to take the gun out of the holster . BM had managed to take out the gun while PERSON held his hand – as a shot was fired and the bullet hit the metal wall of the building of FAC . The direction of that shot was to the side and away from the place of the incident , which means that this shot was not fired as a warning shot . After the shooting , because of the fear for his life which he had experienced , PERSON was in a state of extreme stress and he was not able to recollect the events in detail . The struggle between the CARDINAL was observed by CARDINAL witnesses : ORG , ORG and ORG who were standing in front of the building at FAC No . CARDINAL and who did not interfere . Their testimonies confirm that ORG had stopped running and had started to wrestle with VS . However , because of the stress , the dim light and the speed of the events the witnesses can not recall details about the manner in which ORG was shot and the position of the CARDINAL men ’s bodies in relation to one another at the time of the shooting . From the appearance and the location of the gun wound on ORG ’s head and the gunshot hole found in the bonnet of ORG , it is evident that after the first shot was fired , PERSON had managed to regain possession of the gun and shoot him in the head at close range . After the shooting VS was in a state of shock : he dropped the gun on the ground , he was moving erratically , he was bending down to ORG who was lying on the ground , he took the knife from ORG ’s hand and threw it onto the bonnet of Opel C CARDINAL ПХ. At this moment Chief PERSON was in the town centre and he placed a call to VS ’s mobile ; PERSON told him that trouble had occurred and ORG called the operator to dispatch support . PERSON , the operator on duty , sent a patrol vehicle and an ambulance . BM was taken to the hospital in PERSON where in spite of the medical assistance he passed away from a traumatic head injury followed by shock and coma that led to irreversible heart and lung failure .

In his DATE of service with ORG Chief PERSON has never been disciplined ; he was awarded CARDINAL times . The man who was killed , ORG , had committed a large number of offences . He has been registered for CARDINAL thefts and CARDINAL robberies . He was convicted CARDINAL times for the following crimes : .... ”

Based on these findings , the investigator proposed to the prosecutor to discontinue the investigation since he considered that Chief PERSON had acted in self - defence within the meaning of Article DATE of LAW ( see paragraph DATE below ) , which in his view meant that the acts of the police were not liable to prosecution . He further indicated that “ even if there was no danger to the officer ’s life , Chief PERSON was authorised to use a firearm in such circumstances , although he did not do so until his life was threatened ” .

On DATE the ORG counsel requested access to the investigation file . On DATE a prosecutor from the GPE military prosecutor ’s office dismissed the request , on the grounds that at this stage the applicants were not participating in the criminal proceedings .

In a decree of DATE the prosecutor discontinued the criminal proceedings against Chief PERSON , stating that the officer had shot Mr LOC but that this had not constituted an offence . In reaching his conclusion , the prosecutor found it established that , when running , Mr PERSON had been holding a mobile telephone in one hand and a knife in the other . At some point he had stopped abruptly , had turned around and had swung at the officer with the knife . When the officer had tried to knock away the knife , PERSON had wrestled with him , tried to reach the officer ’s handgun , and pushed him onto the bonnet of the car . A short struggle for the gun had followed and one shot had been fired accidentally . Following that , according to the prosecutor , the officer had managed to get hold of the gun and shoot PERSON . As the victim had still been holding the knife , the police officer took it from his hands and threw it away . In the prosecutor ’s view PERSON attacked the officer in order to avoid arrest and also to help his accomplices , who at that time were running away with a cassette player stolen from the lorry .

On the basis of this account of the facts , the prosecutor reached the following conclusions . First , he concluded that PERSON had attacked Chief PERSON Secondly , the reaction of the police officer , who had shot Mr PERSON , had not been disproportionate to the attack . Chief PERSON had acted in self - defence against a much younger man who had been holding a knife . Because of the weak light and the speed of the events , the circumstances of the shooting and the position of the bodies could not be established . Thirdly , once Chief PERSON identified himself as a police officer and fired a warning shot he was entitled under LAW ( see paragraph DATE below ) to use force to arrest PERSON , even if it had not been necessary to act in self - defence . The prosecutor also noted that Chief PERSON had never been disciplined but had been commended a number of times and that Mr PERSON had been known to the police and had been convicted CARDINAL times . The fact that Mr Mihaylov held the knife in his left hand and that he must have used the same hand to grasp the gun of the officer , who was facing him , was not given attention .

NORP In response to the applicants’ counsel ’s appeal , by a decision of CARDINAL DATE the ORG quashed the prosecutor ’s decree , finding that the prosecutor ’s account of the events was based on arbitrary and contradictory assumptions rather than on established facts ; the interviews of the witnesses had been formalistic and their statements were vague and contradictory . In particular , the prosecutor had failed to establish the number of shots fired , the position of the CARDINAL bodies at the time of the fatal shooting , the trajectory of the bullet and the position of the victim ’s head in relation to the barrel of the gun . The court also noted that the prosecutor had failed to give reasons for his conclusions regarding the applicability of the rules on self - defence or LAW ( see paragraph CARDINAL below ) . In view of those shortcomings the court remitted the case and instructed the prosecutor to re - interview the eyewitnesses ; if possible , to find and interview other witnesses ; to have prepared a medicalballistics report in order to establish , in particular , the position of the bodies and the trajectory of the bullet ; and to organise a reconstruction of the events in order to verify the ORG statements .

NORP In execution of the court ’s instructions , on DATE the investigator commissioned a medical - ballistics report . The authors of the report made no mention of the bullet hole in the car bonnet and concluded that they could not determine the exact position of the CARDINAL bodies at the time of the shooting . They found that at the moment of the shooting the gun was almost touching the back left side of Mr PERSON ’s head , and that it had been pointing upwards and slightly to the right .

The investigator questioned Chief PERSON on DATE . Relying on his status as a witness , the sergeant refused to take part in a reconstruction , claiming that he had received threats from the NORP community in PERSON . On DATE the investigator was discharged from the case for his failure to comply with the court ’s directions and a new investigator was appointed . The new investigator questioned the CARDINAL security guard eyewitnesses on DATE and DATE and he questioned Chief PERSON on DATE and on CARDINAL DATE and DATE . Chief PERSON maintained that he had acted in self - defence and in accordance with the rules governing the use of force . He was in shock and unable to remember the exact positions of himself and PERSON when the latter was shot .

In a decree of DATE the prosecutor discontinued the criminal proceedings on the grounds that the police officer had not committed an offence . The applicants again sought judicial review . In a decision of CARDINAL DATE the ORG quashed the prosecutor ’s decree and remitted the case for further investigation . The court stated that the investigative authorities had failed to comply with the court ’s previous directions and had thus obstructed the investigation . It noted again that the interviews of the witnesses had been formalistic , that their statements were contradictory and that the investigative authorities had failed to organise a reconstruction or confrontations in order to clarify the facts . The court noted that the forensic evidence suggested that at the moment of the shooting Mr PERSON had been facing the bonnet of the car . Also , the investigative authorities had never established the exact number of cartridges fired and the statements of Chief PERSON were inconsistent on this point . The court further noted that the experts who had carried out the medical - ballistics report had failed to discuss the bullet hole in the car bonnet . Furthermore , the investigative authorities had failed to inspect the knife and to analyse the circumstances surrounding its use or to inspect the mobile telephone and its whereabouts at the time of the events .

Following the remittal , the investigator re - questioned the security guards . They stated that they had only vague memories of the incident and refused to participate in a reconstruction . Chief PERSON again refused to give a further statement or to participate in a reconstruction . The fingerprint expert report on the knife of DATE found no fingerprints suitable for examination .

On DATE the applicants’ counsel examined the investigation file and requested the collection of additional evidence , namely that steps be taken to seek out other witnesses ; that the certifying witnesses who had participated in the inspection of the crime scene early in the morning following the incident be questioned ; that the CARDINAL police officers be re - interviewed with a view to clarifying whether they had followed a preliminary plan for the arrest of PERSON and his companions ; that an additional medical - ballistics report be prepared to clarify the position of the bodies , in particular whether PERSON had been neutralised at the moment of the fatal shooting , and the number of cartridges in the handgun as it had not been clear how many shots had been fired in total . She also demanded the inspection of the security camera , installed above the entrance of the building opposite the site of the shooting ; a reconstruction of the events ; and an identification by PERSON family of the knife found at the scene . On DATE these requests were rejected by the prosecutor on the grounds that they were aimed at delaying the proceedings . The prosecutor noted , inter alia , that any video recordings made by the camera belonging to the security firm would not qualify as evidence under LAW .

In a decree of CARDINAL DATE the prosecutor discontinued the criminal proceedings since he considered that Chief PERSON had not committed an offence . In relation to the court ’s instructions regarding further inquiries , the prosecutor stated that , despite efforts made , no other eyewitnesses had been identified ; the inspection of the knife had not revealed any new evidence ; it had been impossible to establish the owner of the mobile telephone ; and that a reconstruction of the events would have been futile as Chief Sergeant S refused to take part owing to a justified fear of violence from the relatives of the victim and members of the NORP community . The prosecutor stated that when the fight had started Chief PERSON and PERSON had fallen on the bonnet of the car . The prosecutor did not come to any conclusion as to whether PERSON had been holding the knife when the fatal shot was fired , but noted only that at that moment the officer had been very afraid . The prosecutor reproduced the legal conclusions on the rules of self - defence under LAW , contained in the decree of DATE ( see paragraphs CARDINAL - CARDINAL above ) . Relying on unspecified information about injuries inflicted on Chief PERSON during earlier police operations , the prosecutor concluded that the latter should not be punished because he had acted in a state of acute fear .

The applicants challenged the decree , claiming , inter alia , that the authorities , influenced by their prejudice towards GPE , had conducted only a formalistic investigation . In a decision of CARDINAL DATE the ORG quashed the decree and remitted the case to the prosecutor . It held that the investigative authorities had failed to comply with the instructions given by the court in previous decisions and that they had intentionally protracted the investigation and failed to employ any meaningful efforts to establish the truth . The court noted , inter alia , that the exact circumstances of the fight and the shooting had not been established ; that no reconstruction had been organised and no valid reasons given for this omission ; and that the authorities had also failed to conduct confrontations , inspections of the knife and the mobile telephone or to order an additional medical - ballistics report .

Following the remittal by ORG , on DATE the investigator arranged for an inspection of the knife , but this failed to determine whether the blade had been open or closed at the time of the shooting . A further medical - ballistics report , dated DATE , made no reference to the bullet hole in the bonnet of the car and concluded that it was impossible to establish the exact position of the bodies at the time of the shooting . The investigator also requested Chief PERSON to take part in confrontations with ORG and ORG , and a reconstruction , but the Chief Sergeant refused to participate .

On DATE the applicants’ counsel repeated her earlier requests for additional investigative measures . In a decree of CARDINAL DATE the prosecutor again discontinued the criminal proceedings . He repeated verbatim the reasoning given in the decree of DATE , but added as an additional ground that Chief PERSON had been suffering from fear and confusion and that in these circumstances , as a matter of domestic law , there had been no excess of force . The applicants sought judicial review . In a decision of CARDINAL DATE ORG quashed the prosecutor ’s decree and remitted the case for further investigation . The court stated that despite the numerous remittals the prosecutor had repeatedly failed to comply with the court ’s instructions and that the actions of the authorities and the measures employed had been a parody of an investigation , revealing unwillingness to collect the evidence and establish the truth .

Following the remittal the investigator questioned the CARDINAL security guards , Chief Sergeant M and CARDINAL additional witnesses , as requested by the applicants . During the interview of ORG on DATE , the investigator in CARDINAL question referred to Mr Mihaylov as “ the gypsy ” . On DATE the investigator organised a reconstruction of the events . Chief PERSON did not take part , relying on his capacity as a witness . A further ballistics report dated DATE found , in particular , that on the basis of photographs it had not been possible to establish the morphology , character and orientation of the bullet hole and thus the exact position of the bodies at the time of the shooting . Meanwhile , it appears that around this time the prosecutor in charge of the investigation stated that he disagreed with the court ’s instructions and requested to be allowed to withdraw from the case . It appears that this request was not granted , as he continued working on the case .

In a decree of DATE the prosecutor discontinued the criminal proceedings finding , as before , that the police officer had shot Mr PERSON to defend himself from the latter ’s attack and that the use of force had , in any case , been justified under LAW ( see paragraph DATE below ) once the police officer had asked PERSON to stop and had fired a warning shot . The prosecutor noted , in support of his finding of self - defence , that an offender with a criminal record had attempted to attack a police officer , who had never been disciplined and who had received awards . The applicants sought judicial review , contending , inter alia , that the authorities had not bothered to carry out an effective investigation because of PERSON ethnicity and low social status . ORG upheld the prosecutor ’s decree . Upon the appeal of the applicants , in a decision of DATE , ORG set aside the lower court ’s decision . ORG raised serious doubts in respect of the prosecutor ’s impartiality . It further noted the prosecutor ’s failure to establish who had fired the fatal shot and in what circumstances . The court also held that on the basis of the evidence collected , namely the NORP testimony that the shooting had taken place on the car ’s bonnet and the conclusions of the medical - ballistics report about the channel of the wound , it was clear that at the moment of the lethal shooting Mr PERSON had been facing the bonnet of the car and the police officer had fired from behind . Thus the court found that immediately before the shooting the police officer had had full control over the victim , the use of force had not been necessary and there was sufficient evidence that the police officer had intentionally killed Mr LOC . The court remitted the case , instructing the prosecutor to bring charges against the sergeant for murder as well as to discharge anybody who had demonstrated partiality from working on the case .

On DATE a newly - appointed prosecutor laid charges against Chief PERSON for causing death as a result of a disproportionate reaction to an attack . However , DATE , in a decree of DATE , the prosecutor discontinued the criminal proceedings against Chief PERSON , using almost identical reasoning to that in the decree of DATE , with some additional findings , some of which appeared contradictory . For example , at CARDINAL point in the decree the prosecutor found that Mr PERSON had dropped the knife before he had reached for the sergeant ’s handgun , but subsequently he found that Mr PERSON had dropped the knife at the moment the fatal shot was fired . The prosecutor also referred to the police officer ’s fear of knives as justification for using force . Chief PERSON had claimed in his testimony of CARDINAL DATE that he had developed a fear of knives after he was stabbed while making another arrest DATE before the incident with PERSON . No assessment of the police officer ’s psychological condition or his fitness to perform his duties at the material time was mentioned in the decree . In the report , the prosecutor advanced CARDINAL different justifications for the use of force , namely , the justified use of force to make an arrest ; self - defence ; and the excessive use of force due to fear . No attempt was made to reconcile these CARDINAL theories .

The applicants sought judicial review . In a decision of DATE the ORG quashed the prosecutor ’s decree and remitted the case for further investigation . The court considered ill - founded the prosecutor ’s conclusions that Mr PERSON had been holding a knife when he had turned to the sergeant and that at the beginning of the fight Mr LOC had pushed the sergeant onto the bonnet of the car . The court found that the officer had had full control over Mr PERSON and that the use of force had been excessive . The court also noted the failure of the investigative authorities to comply with previous judicial directions .

Following the remittal , the prosecutor interviewed CARDINAL witnesses who stated that Chief PERSON had been injured before , in DATE and DATE , during police operations . In a decree of CARDINAL DATE the prosecutor again discontinued the criminal proceedings . This time the prosecutor maintained that PERSON had dropped the knife before reaching for the handgun . He further held that the fight had taken place next to the car and not on its bonnet and that PERSON had fallen on the bonnet after he had been shot . Following an appeal by the applicants , on DATE the ORG quashed the prosecutor ’s decree and again remitted the case for further investigation . Chief PERSON appealed against the decision . In his appeal he did not claim to have acted in self - defence but instead claimed that it had been an accidental killing , falling under LAW . The prosecutor also challenged the decision . His appeal was rejected in a decision of ORG on DATE . In a decree of CARDINAL DATE the prosecutor discontinued the proceedings for the eighth time , stating that Mr PERSON had been holding a knife when he attacked the officer and that he had pushed the officer onto the bonnet of the car , dropping the knife and reaching for the handgun , and that after the shooting the officer had taken the knife and had thrown it away . The applicants sought judicial review . By a decision of CARDINAL DATE the court granted the appeal and remitted the case , finding that the court ’s earlier instructions had not been complied with , that no additional investigation had been conducted , and that the prosecutor had based his conclusions on contradictory facts .

Chief PERSON challenged the court ’s decision before ORG and reiterated his claim that the shooting had been an accident . By a final decision of CARDINAL DATE ORG quashed the lower court ’s decision and upheld the prosecutor ’s decree . The court endorsed the conclusions of the prosecutor on the facts . It found that the police officer had been faced with a real and imminent attack by the victim which was not interrupted until the CARDINAL shots were fired . The police officer had acted in self - defence and had not , therefore , committed an offence .


CASE OF MITROV v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Reopening of case (Article 41 - Just satisfaction)

Aleš Pejchal;Armen Harutyunyan;Kristina Pardalos;Ledi Bianku;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Pauliine Koskelo;Robert Spano

The applicant was born in DATE and lives in GPE .

At the time when the criminal proceedings ( see paragraphs CARDINAL - CARDINAL below ) were initiated , there were CARDINAL judges working in the criminal section of FAC ( “ the trial court ” ) : Judges PERSON , GPE , PERSON and PERSON In addition , Judge PERSON was an investigating judge in the trial court , Judge PERSON worked on cases concerning minor offences , and Judge GPE was on sick leave .

DATE Judge PERSON was a clerk ( стручен соработник ) at the trial court . From DATE she worked with Judge PERSON and CARDINAL other judges . She was appointed as a judge in DATE .

In DATE Judge PERSON became president of the criminal section of the trial court .

On DATE the applicant was involved , as the driver of a car , in a traffic accident in which the DATE daughter of Judge ORG was killed .

On DATE , after examining the applicant in the presence of his lawyer , Judge PERSON opened an investigation against him .

DATE and DATE Judge PERSON heard evidence from CARDINAL eyewitnesses , CARDINAL experts and the ORG representative . The applicant ’s representative was only present when CARDINAL of the eyewitnesses gave their statements .

On DATE , Judge PERSON commissioned an expert report , to be prepared by ORG ( PERSON за судски вештачења ) ( “ the GPE ” ) , regarding the reasons for the accident , the speed at which the applicant had been driving at the relevant time , whether the accident could have been avoided , and other relevant matters .

On DATE a mechanical engineer from the ORG drew up an expert report ( “ the first expert report ” ) , relying partly on the statements given by the witnesses before Judge PERSON

On DATE the public prosecutor charged the applicant with “ severe crimes against the safety of people and property in traffic ” ( тешки дела против безбедноста на луѓето и имотот во сообраќајот ) . On DATE a CARDINAL - judge panel of the trial court , presided over by Judge ORG , dismissed an objection ( приговор ) by the applicant to the indictment .

NORP In DATE an alternative expert report was drawn up , at the applicant ’s request , by a private expert agency ( “ the second expert report ” ) .

On DATE the applicant asked the president of the trial court to exclude the trial court judges who acted in the criminal proceedings , namely Judge PERSON and the other judge on the trial court panel which were acting in the applicant ’s case , as well as Judges PERSON , GPE and GPE , given that the case concerned a traffic accident in which the daughter of a judge in the criminal section of the court had been killed . He further complained that the investigation had been unfair , and alleged that Judge PERSON had been partial . Finally , he stated that he hoped that the president of the trial court would ask the President of ORG ( “ the appellate court ” ) to assign the case to another first - instance court .

On DATE Judges PERSON and PERSON , who had been appointed as members of the panel in the applicant ’s case , gave written statements that the fact that their colleague ’s daughter had died in the accident would not influence their adjudication . The president of the trial court referred to those statements , and dismissed the application for exclusion in respect of Judges PERSON and PERSON , finding that the conditions of section CARDINAL(CARDINAL ) of LAW ( see paragraph CARDINAL below ) had not been fulfilled . The president of the trial court further rejected as inadmissible the application concerning Judges PERSON and GPE , given that under section CARDINAL(CARDINAL ) of LAW an application for exclusion could only be lodged in respect of an individual judge who was acting in a particular case ( see paragraph CARDINAL below ) .

The trial continued , and on DATE the applicant lodged a fresh application for exclusion of Judge PERSON , given that he had presided over the CARDINAL - judge panel which had dismissed the applicant ’s objection to the indictment ( see paragraph CARDINAL above ) .

On DATE the president of the trial court upheld the latest application for the exclusion of Judge PERSON

At a hearing held on DATE the trial court ( Judge PERSON presiding , and including Judge PERSON and CARDINAL lay judges ) admitted in evidence the second expert report ( see paragraph CARDINAL above ) submitted by the applicant . The applicant asked the trial court to examine the experts who had prepared both reports , in order to clarify their findings , which he described as contradictory .

At a hearing held on DATE the composition of the trial court panel was changed to Judge PERSON ( as president of the panel ) , Judge GPE , and CARDINAL lay judges . At that hearing the trial court commissioned a fresh expert report ( вештачењето да се обнови со други вештаци ) to be prepared by CARDINAL experts from the ORG , not those who had drawn up the report of DATE ( see paragraph CARDINAL above ) .

On DATE a fresh expert report was issued by the Bureau ( “ the third expert report ” ) .

On DATE CARDINAL of the experts who had drawn up the third expert report was examined at the trial .

On DATE the applicant ’s lawyer , in his closing remarks , submitted that the trial court was adjudicating a case concerning an incident in which their colleague ’s daughter had died . He argued that the practice in similar cases was that the judges withdrew in order not to cast doubt on the court ’s impartiality .

On DATE the trial court convicted the applicant and sentenced him to DATE and CARDINAL months’ imprisonment . It found that the applicant had been driving at excessive speed and under the influence of alcohol . It dismissed the applicant ’s arguments that the victim in the accident had ignored a “ Stop ” sign and was not wearing a seat belt . It based its findings on the third expert report and the oral evidence . It did not give any weight to the second expert report . Finally , the trial court upheld the compensation claim lodged by Judge PERSON , her husband and her other daughter against the applicant ’s insurance company , which had acknowledged the claim ( го призна барањето ) .

On DATE the applicant appealed against the judgment , arguing , inter alia , that the case should have been assigned to another court , and that Judge PERSON had previously worked as a court clerk delegated to Judge PERSON for DATE . In this connection he submitted that there had already been such transfers in cases concerning criminal proceedings against a public prosecutor and a president of a court . There had been grounds for exclusion under section CARDINAL(CARDINAL ) of LAW . The trial court had not provided any reasoning in respect of the second expert report , and had not admitted evidence proposed by the applicant . The third expert report was identical to the first and contradictory to the second , as regards the speed at which the applicant had been driving at the time of the accident . The applicant further requested that the case be remitted and heard either before a different panel of the trial court or before a different court .

On DATE the appellate court dismissed the applicant ’s appeal , upheld the prosecutor ’s appeal , and increased the sentence to CARDINAL years’ imprisonment . The part of its judgment concerning the alleged lack of impartiality reads as follows :

“ The complaints about a violation of section CARDINAL(CARDINAL ) of the [ Criminal Proceedings Act ] are groundless ... [ the applicant ’s ] defence lawyer applied for exclusion of [ Judges PERSON , GPE , GPE and GPE ] . According to the statements given by the ORG , the President of ORG took a decision ... by which he dismissed the application for exclusion , for reasons stated in the decision . ”

The appellate court further held that the second expert report had not been ordered by the court , that the experts had not been warned of their duties and had not taken an oath , that the court had not established which matters should have been addressed by the report , and that it was for the trial court to decide whether it would accept the report . As regards the applicant ’s complaint that evidence proposed by him had not been admitted at the trial , the appellate court held that this did not amount to a violation of the applicant ’s right to defence , as the trial court was not obliged to accept all proposed evidence .

On DATE the applicant lodged a request for extraordinary review of a final judgment ( барање за вонредно преиспитување на правосилна пресуда ) , arguing that the trial court had refused his request for an additional expert report ( супервештачење ) to be commissioned from an independent institution . Citing Articles CARDINAL and CARDINAL of the LAW , the applicant complained that Judge PERSON , the clerk of the victim ’s mother ( Judge PERSON ) , had adjudicated the case , and that Judge ORG was the president of the criminal section of the trial court . He further complained about the refusal to assign the case to another competent court .

On DATE ORG dismissed the applicant ’s request and confirmed the lower courts’ judgments . It endorsed the lower ORG findings and reasoning , without providing further reasoning in respect of the applicant ’s complaint concerning the judges’ alleged bias .

On DATE and CARDINAL DATE ORG dismissed CARDINAL requests by the applicant for extraordinary mitigation of his sentence ( барање за вонредно ублажување на казната ) .


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

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

The applicants complained of the domestic courts’ failure to ensure their participation in hearings in the civil proceedings to which they were parties .


Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

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

The applicant is a taxi driver .

On TIME traffic police stopped the applicant ’s car . Following the applicant ’s failure to produce his driving licence and suspecting that it had been withdrawn , police officers took him to the duty unit of LOC police station , where he was kept in a cell for administrative detainees until TIME . A record of the applicant ’s administrative arrest was drawn up .

On DATE the Justice of the Peace of ORG of LOC found the applicant guilty of driving a vehicle after the withdrawal of his driving licence ( an administrative offence under LAW of LAW ) and sentenced him to DATE of administrative detention .

On DATE the applicant made a written request to the head of the detention unit seeking a family visit . DATE the request was returned to the applicant bearing a handwritten note by the acting head of the detention unit , PERSON , which stated that family visits were not “ provided for [ by law ] ” .

On DATE the applicant ’s representative lodged a complaint with ORG , alleging that the applicant ’s right to family life guaranteed by LAW had been unlawfully restricted .

The police officials filed a written objection , arguing that the Internal Rules governing ORG did not provide administrative detainees with the right to have a family visit .

On DATE ORG dismissed the applicant ’s complaint , having accepted the police authorities’ argument that administrative detainees were not entitled to a family visit under the domestic law in force and that the applicant had been subjected to those limitations of his rights as a negative consequence of the administrative detention .

NORP The applicant ’s representative appealed . Relying on the ORG ’s judgments in the cases of GPE v. GPE ( no . CARDINAL ) ( no . CARDINAL , § CARDINAL , ORG CARDINALX ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § CARDINAL , DATE ) , he argued that the authorities’ assistance in maintaining contact with close family was an essential part of a detainee ’s right to respect for family life . Limitations imposed on the number of family visits constituted an interference with the applicant ’s rights under LAW Restrictions of that kind could only be applied “ in accordance with the law ” , should pursue one or more legitimate aims and , in addition , should be justified as being “ necessary in a NORP society ” . The representative submitted that there was no norm in NORP law imposing restrictions on family visits for administrative detainees .

On DATE ORG of GPE upheld ORG decision , having reasoned as follows :

“ There is no prohibition on family visits for administrative detainees .

[ At the same time ] a refusal to authorise a family visit has a basis in NORP law ; however , it should be warranted by circumstances and conditions providing the competent authorities with the right to apply the disputed restriction . Providing lawenforcement bodies with unlimited powers in issues pertaining to fundamental rights could run contrary to the superior role of the law and could result in arbitrary interference with human rights .

In the case under examination , there are no grounds for concluding that the actions of the acting head [ of the detention unit of the police station where the applicant had been detained ] were unlawful because , having applied for a family visit , [ the applicant ] had not indicated whom he had wanted to see and what the relationship was between him and that person . If those important details are not provided , the authorisation of a family visit can not be considered lawful . ”


Remainder inadmissible;No violation of Article 7 - No punishment without law (Article 7-1 - Nullum crimen sine lege;Conviction;Criminal offence)

Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

The applicant was born in DATE and lives in the village of GPE , GPE ( “ the LAW ) , GPE .

On DATE a criminal investigation was launched by ORG of the ORG into the activities of a Mr PERSON , on account of his alleged association with the criminal underworld , under LAW ) of LAW . Notably , he was suspected of being a “ thief in law ” ( for an exact definition of this term , see paragraphs DATE below ) who ran criminal syndicates and participated in the settlement of various private disputes through criminal actions . In the course of the investigation , a number of relevant witnesses were questioned – the officers of the prisons where Mr PERSON had served his previous prison terms , his family members and other close persons , all of whom confirmed that PERSON PERSON had indeed obtained , through the criminal ritual of “ baptism ” , the title of a “ thief in law ” in DATE . Since then he had participated in management of the “ thieves’ underworld ” ( a well - organised network of criminal syndicates ; for more details see paragraphs CARDINAL below ) , in accordance with the special rules regulating the conduct of members of the criminal underworld .

On DATE a search warrant was issued in respect of Mr PERSON , who was living at that time in either GPE or GPE . According to the findings of that investigation , the fugitive suspect had been in regular telephone contact with other purported criminal leaders in the ORG , instructing them on how to settle various private disputes in the region . The subsequent judicially authorised tapping of Mr PERSON ’s telephone conversation showed that CARDINAL of the persons who had been receiving regular instructions from the “ thief in law ” was the applicant . Consequently , the criminal probe was expanded to include the latter ’s activities .

On DATE the applicant and another person , Mr Y.A. , were arrested on suspicion of being members of the “ ORG underworld ” , an offence punishable under LAW ) § CARDINAL of LAW . When questioned on DATE , the applicant confirmed that he had already known Mr PERSON for DATE and was aware that he possessed the criminal title of a “ thief in law ” . The applicant added that a thief in law was , in his opinion , “ a righteous man ( კაი კაცობა ) ” .

On DATE the criminal investigation against Mr PERSON , the applicant and PERSON , was terminated , and the case was transmitted by the prosecution service to a trial court .

By a judgment of DATE , ORG convicted the applicant and PERSON of being members of the “ thieves’ underworld ” ( Article CARDINAL ) § CARDINAL of LAW ) , sentencing them to CARDINAL and CARDINAL years’ imprisonment respectively , whilst Mr PERSON was convicted of being a “ thief in law ” ( Article CARDINAL ) § CARDINAL of LAW ) and sentenced to DATE in prison .

The activities imputed to the applicant were described by the court , in general terms , as follows :

“ Acknowledging and giving recognition to the ORG underworld , [ the applicant ] has publicly expressed his support for it through his own lifestyle , and has been actively involved in achieving the goals of this underworld ... by obtaining profits for its members and for other persons , and by terrorising and exercising coercion with respect to ordinary individuals ; [ the applicant ] has disseminated the special rules of the ORG underworld through his own actions , and by assisting the thief in law in running this underworld . ”

More specifically , the finding of the applicant ’s guilt was based on the following CARDINAL episodes , the reality of which had been confirmed by statements from numerous pertinent witnesses , examined during both the investigation stage and the trial , and evidence obtained by tapping the telephone lines of the applicant , the other convicts and other relevant persons .

Firstly , ORG established that Mr PERSON , generally acknowledged to be one of the most authoritative criminal bosses in the region , had requested the applicant to settle a dispute over an apartment between his mother - in - law and another individual . The court accused the applicant of accepting that task and becoming involved , DATE , in unofficial adjudication of the dispute , using Mr PERSON ’s criminal authority . In reply , the applicant unsuccessfully argued that he had merely wished to help the woman , who was his close acquaintance , to have the dispute settled by friendly agreement , as indeed the parties had been invited to do during a civil court hearing of their case at the relevant time ; he had been unaware that such ordinary conduct was a criminal offence . He did not contest that he had indeed been asked by Mr PERSON , his old friend , to look into the dispute .

Secondly , ORG established that the same co - accused “ thief in law ” , Mr PERSON , had requested the applicant , on DATE , to establish the whereabouts in GPE of CARDINAL young men , aged DATE , who had refused to pay a fare to a private taxi driver . The applicant was asked to persuade the young men , using his own authority as a senior member of the criminal world , and the authority of the more influential Mr PERSON , to settle the debt towards the driver . Implicitly acknowledging that he had indeed been requested to look into this second private dispute by Mr PERSON , the applicant unsuccessfully argued that he had not taken any action in practice and thus could not understand why he should be held responsible for something which had not occurred .

Lastly , ORG relied on the fact that on DATE the applicant , when visiting an imprisoned acquaintance who was considered by members of the “ ORG underworld ” to be a promising young man , that is , a future “ thief in law ” , the applicant , in addition to discussing financial issues relating to the kitty ( obshyak ) , the common fund belonging to the “ ORG underworld ” , had also informed him that the Minister of the ORG might soon lose his post , which would then naturally lead to reinforcement of the authority of “ ORG in law ” and of the relevant rules of conduct in the criminal world . With respect to this third episode , the applicant unsuccessfully argued before the court that he had merely expressed his opinion about the personality of the Minister of the Interior and that he should not be punished for that .

On DATE ORG , dismissing the applicant ’s appeal in which he reiterated all of his previous arguments , fully upheld his conviction of DATE .

By a decision of CARDINAL DATE , ORG of GPE rejected the applicant ’s cassation appeal as inadmissible , thus terminating the criminal proceedings against him .


Dmitry Dedov;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicants are NORP nationals residing in GPE . Their names and dates of birth are set out in the appendix .

NORP In DATE the municipal authorities of GPE authorised the creation of a garage - ORG cooperative , PERSON , and allocated a plot of land for use by the cooperative . The plot of land remained municipal property .

All of the applicants were members of the cooperative G.

NORP In DATE the municipal authorities of GPE adopted a new zoning and urban development plan , under the terms of which the plot of land occupied by the prefabricated metal garages was assigned for housing development .

On DATE the lease on the land occupied by the garages expired . The municipal authorities informed the cooperative PERSON that it would not be renewed .

On DATE the Justice of the Peace for ORG of the Kuzminki District of GPE recognised the applicants’ property rights in respect of the prefabricated garages . On DATE the judgment was upheld on appeal by ORG of GPE . On the basis of these judgments the applicants’ property rights were recorded in the real estate register by the GPE department of ORG .

Subsequently , in DATE , the urban development project was approved by the municipal authorities and T Jsc , a private construction company , was chosen to be the contractor for the project . The applicants were asked to vacate the plot of land and were offered compensation for the prefabricated garages or , as an alternative , the opportunity to invest in the construction of new parking facilities , with the price of the parking spaces being offset by the value of the expropriated prefabricated metal garages . The applicants refused these offers . The municipal authorities instituted civil actions against them .

On DATE , DATE , and DATE the ORG of GPE ordered the vacating of the plot of land , the expropriation of the applicants’ garages , and payment of compensation to the owners by T Jsc . The court awarded each of the applicants CARDINAL ORG ) in compensation for the expropriated property , the sums being derived from the expert valuation of DATE . It rejected an alternative expert valuation provided by the applicants because it had been based on market research rather than on a valuation of the actual properties , and also because of its failure to distinguish between the prefabricated garages and the various extensions built onto them without permission . ORG reviewed the ORG claims regarding their title to the plots of land and concluded that since the expiry of the lease in DATE the applicants had occupied and used the plots of land without any title or right . It took this fact into account in assessing the value of the expropriated garages , since it was only the cost of the actual prefabricated metal garage units themselves that had to be compensated .

The applicants appealed against the judgments .

On DATE and DATE ORG upheld the lower court ’s judgments in full , dismissing all of the applicants’ counter - arguments .

In view of the high cost of demolishing the garages and vacating the occupied land , the applicants did not comply with the judgments . On CARDINAL DATE the ORG of GPE DATE ruling on the municipal authorities’ application – altered the manner of enforcement of the aforementioned judgments by ordering the applicants to vacate their garages and allowing the municipal authorities to demolish them and to clear the plot of land .

By DATE the judgments had been enforced as regards the parts concerning the demolition of the prefabricated garages and the vacating of the plots of land . In respect of the part concerning payment of compensation for the expropriated garages , the applicants obtained the relevant writs of execution but chose not to initiate enforcement proceedings by submitting them to ORG . The main rationale behind this course of action by the applicants was their intention to further challenge the lawfulness of the aforementioned judgments before the courts .

In DATE after several unsuccessful attempts to have the expropriation judgments reconsidered – the applicants submitted the writs of execution to ORG of ORG . By DATE all of the payments had been made to the applicants and the enforcement proceedings were completed by the bailiffs .


CASE OF PROMO LEX AND OTHERS v. THE REPUBLIC OF MOLDOVA

Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly);Violation of Article 13+11 - Right to an effective remedy (Article 13 - Effective remedy) (Article 11 - Freedom of assembly and association;Article 11-1 - Freedom of peaceful assembly);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Ján Šikuta;Johannes Silvis;Josep Casadevall;Kristina Pardalos;Luis López Guerra

On DATE the police arrested a person who was protesting peacefully in front of ORG .

As a reaction to that event , the applicant organisations decided to hold a demonstration in front of ORG , followed by a march to ORG and a demonstration in front of the latter .

On DATE the first and the second applicants lodged a notification with the municipal authorities in which they stated their intention to conduct the above event , which they described as a spontaneous reaction to the events of CARDINAL DATE . They relied on LAW ) of LAW ( see paragraph CARDINAL below ) .

On DATE the first and the second applicants organised a protest demonstration in front of ORG . From the video submitted by the parties , it appears that approximately CARDINAL individuals took part in the demonstration . The third applicant was among the participants . TIME the beginning of the demonstration the protesters were attacked by CARDINAL men wearing masks who started to physically assault them and to spray tear gas and paint over them . As a result of the attack the third applicant sustained numerous injuries to his head and limbs and needed medical treatment . The protesters defended themselves and managed to chase away the attackers . They also managed to immobilise CARDINAL of the attackers . CARDINAL of the attackers admitted to having been paid CARDINAL NORP lei ( MONEY ( ORG ) ) by an unknown person for his participation in the attack .

The gathering was observed from the very beginning by CARDINAL uniformed police officers who were in a patrol car parked close to the place of the event . Also , the event was filmed by CARDINAL people in plain clothes , who ‒ according to the applicants ‒ were police officers . The Government denied that those filming the event were police officers . When the clash between the protesters and the attackers began , no police officer intervened . The protesters called the police and requested assistance but to no avail . A police patrol appeared TIME and took the CARDINAL immobilised attackers into custody .

The organisers of the demonstration lodged a criminal complaint with ORG and complained inter alia about the failure of the police to intervene promptly . A criminal investigation was initiated and all CARDINAL attackers identified . CARDINAL of them were eventually given suspended sentences of DATE for violation of the freedom of assembly of others and hooliganism . No action was taken in respect of the applicant ’s complaint about the inaction of the police .


Julia Laffranque;Nebojša Vučinić;Paul Lemmens;Stéphanie Mourou-Vikström;Ksenija Turković

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently serving a prison sentence in GPE . He is represented before the ORG by Mr C. Yetkiner , a lawyer practising in GPE .

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

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

On DATE the applicant was taken into pre - trial detention at FAC ( “ FAC ” ) , pending the criminal proceedings against him on a charge of murder . He was initially placed in a smoking cell ( koğuş , a multi - occupancy living unit ) reserved for inmates in pre - trial detention only .

On an unspecified date in DATE the ORG found the applicant guilty on CARDINAL counts of murder . The applicant appealed against that judgment . There is no further information in the case file as regards the outcome of the appeal proceedings .

According to the information and documents provided by ORG , the applicant changed cells a total of CARDINAL times during his detention at FAC DATE and DATE . The changes were all effected at the applicant ’s request . It appears that CARDINAL of those changes were made to accommodate his wish to stay in a non - smoking cell , and the remaining changes were made following conflicts with his cell - mates . It further appears that while some of the cells he stayed in were allocated exclusively to inmates in pre - trial detention , others accommodated both those in pre - trial detention and convicts .

On DATE the applicant sent a letter to ORG , requesting his transfer to another prison . He argued that he was not safe in FAC , where he had many enemies . He also mentioned in the same letter that as a non - smoker he was sharing a cell with smokers , and that there were also convicts in his cell .

By a letter dated CARDINAL DATE ORG informed the PERSON public prosecutor ’s office that the applicant ’s allegations regarding his safety in prison had been found to be groundless . The applicant could , therefore , continue to serve his sentence in conditions “ suitable to his status ” .

On DATE and CARDINAL DATE the applicant sent letters to ORG and ORG of ORG of GPE ( “ ORG ” ) , respectively , alleging that the warden and some other officers at FAC had applied psychological pressure on him . The applicant also complained in his letters about the problem of accommodating smokers with non - smokers and detainees with convicts in the same cells .

On DATE ORG informed the applicant that his letter had been communicated to the PERSON office of ORG .

In the meantime , on DATE the applicant had been transferred to ORG ( “ FAC ” ) on disciplinary grounds . The applicant claimed that at FAC he had been placed in a cell measuring CARDINAL by QUANTITY , with CARDINAL other inmates . According to the information provided by the Government , however , the cell where the applicant stayed measured CARDINAL by QUANTITY and accommodated QUANTITY other inmates .

On CARDINAL DATE the applicant sent a letter to ORG to complain about the cramped living conditions at FAC .

In its reply dated DATE , ORG informed the applicant that ORG had a maximum capacity of CARDINAL prisoners , but that it had accommodated CARDINAL prisoners at the material time . ORG added that CARDINAL new penal facilities would be set up in DATE , following which prisoners would be accommodated in more favourable conditions .

Upon receiving the information provided by ORG , on DATE the applicant wrote a letter of reply , claiming that the figures provided did not reflect the real capacity of the prison , but the overinflated capacity that resulted from the use of triple bunk beds .

In the meantime , on CARDINAL and DATE the applicant had sent similar complaint letters to ORG , which in its response of DATE informed the applicant that his complaints would be taken into consideration at their next visit to the prison in question .

It appears that on DATE ORG visited LOC and met with the applicant . In its letter dated DATE , ORG informed the applicant that his complaints had been taken into consideration and that they would be communicated to ORG in its DATE interim report .

In the meantime , on CARDINAL DATE the applicant had been transferred to the PERSON ( no.CARDINAL ) ( “ FAC ” ) following his request to be closer to his family .

On DATE the applicant lodged an individual application with ORG ( “ the Constitutional Court ” ) , by post , to complain about the overcrowding problem at FAC .

By a letter dated CARDINAL DATE , ORG informed the applicant that his application could not be registered because he had failed to comply with the procedural rules on the submission of applications set out in section CARDINAL(CARDINAL ) of Law no . DATE on ORG of ORG of GPE and section CARDINAL of LAW ( PERSON ) , which stipulated that individual applications had to be lodged directly with ORG in person , or through local courts or representations abroad . Applications submitted by post would not , therefore , be accepted .

On an unspecified date the applicant was transferred to ORG .

Section CARDINAL of Law no . DATE on ORG lays down the duties of ORG as follows :

“ CARDINAL . To examine and resolve complaints concerning the admission of convicts and detainees to penal institutions and detention centres , [ their ] placement , accommodation , heating and clothing , feeding , hygiene , [ their ] medical examination and treatment for the protection of their physical and mental health , [ their ] relations with the outside world , ... and other such activities .

To examine and resolve complaints concerning the execution of the ORG sentences , ... [ their ] transfer , ...

To examine the reports prepared and communicated by the monitoring boards of penal institutions and detention centres on their observations on the penal institutions and detention centres falling under their jurisdiction , and to rule on any complaints . ”

Section CARDINAL of Law no . DATE , governing the application procedure to the enforcement judge , provides as follows :

Complaint[s ] may be lodged directly with the enforcement judge by way of a petition , or through the intermediary of the office of the public prosecutor or the administration of the penal institution [ or ] detention centre . Applications lodged other than with the enforcement judge shall be transmitted to the latter at once and within DATE at the most . Complaints made orally shall be recorded and a copy [ of the record ] shall be given to the applicant .

In accordance with section CARDINAL(CARDINAL ) and ( CARDINAL ) , an objection may be lodged against a decision of an enforcement judge with the local assize court .

The Government submitted CARDINAL examples of decisions delivered by ORG concerning individual applications lodged by prisoners from different prisons . The decision delivered by ORG in application no . CARDINAL is particularly noteworthy on account of its pertinence to the present application . The application in question was lodged on DATE , DATE after the entry into force of the new remedy before ORG . The applicant prisoner complained , inter alia , of the unlawful practices of the prison administration , including placing him in accommodation with smokers despite the fact that he suffered from asthma . The ORG observes that the prisoner ’s complaints regarding the unlawful practices of the prison administration , including placing him in accommodation with smokers , were declared inadmissible by ORG for non - exhaustion of the available remedies , on account of the prisoner ’s failure to bring his complaints before an enforcement judge .