Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention);Violation of Article 5 - Right to liberty and security (Article 5-4 - Speediness of review)

Branko Lubarda;Dmitry Dedov;Helena Jäderblom

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

The applicants complained of the excessive length of their pre - trial detention . In application no . CARDINAL , the applicant also raised other complaints under the provisions of the Convention .


Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Just satisfaction reserved (Article 41 - Just satisfaction)

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

The applicant was born in DATE and lives in Bad GPE , GPE . Through the NORP stock market , he purchased CARDINAL NORP and CARDINAL NORP share certificates in PERSON , which at the time was identified as the fifth largest private bank in GPE .

By a decision dated DATE ( no . CARDINAL ) , ORG ( Bankalar Düzenleme ve PERSON , hereinafter referred to as “ the Board ” ) transferred the management and control of PERSON to ORG ( PERSON Fonu – hereinafter “ the Fund ” ) , pursuant to section CARDINAL(CARDINAL ) of LAW ( Law No . DATE ) . In its decision ORG held that the assets of PERSON were insufficient to cover its liabilities and that the continuation of its activities would threaten the security and stability of the financial system . Accordingly , PERSON ’s management and control , and the privileges of its shareholders except for dividends , were transferred to the ORG . The ORG also confiscated all properties belonging to PERSON .

On DATE all of the bank ’s equities were removed from its account at ORG ( GPE Menkul Kıymetler DATE hereinafter “ the ORG ” ) and transferred to the account of the ORG . Subsequently , on DATE the ORG entered into an agreement with the ORG bank and sold PERSON to the latter for CARDINAL United States dollars ( ORG ) . As a result , on DATE PERSON ’s legal personality was extinguished and it was struck off the commercial register .

On DATE , the main shareholder of PERSON , namely ORG , brought administrative proceedings against ORG ( Bankalar Düzenleme ve Denetleme Kurumu – hereinafter “ the NORP ” ) before ORG , seeking a ruling setting aside the decision of DATE to transfer PERSON to the ORG .

ORG found that it lacked jurisdiction , and transferred the case to ORG .

In its submissions before ORG , the plaintiff claimed that its property rights had been violated . It also raised a plea of unconstitutionality under section CARDINAL of LAW . The company further stated that prior to DATE PERSON had never encountered major financial problems . It was pointed out that pursuant to section GPE ) of the LAW , a bank with financial difficulties should first be given a warning to strengthen its financial structure and be allowed time to take specific measures . However , no such warning had been given in the instant case . Secondly , ORG had not claimed that PERSON ’s financial situation was so weak that it could not be strengthened even if specific measures were taken . Lastly , the company stated that following the transfer of the bank to the ORG , a ORG composed of the ORG ’s officials had exonerated the former managers of PERSON , holding that they had not been at fault in the incident leading to the bank ’s transfer .

After examining the case file , on DATE ORG dismissed the case . It held that the takeover of the bank by the ORG had been in accordance with section CARDINAL(CARDINAL ) of LAW .

On DATE ORG of ORG decided to quash the decision of DATE . In its judgment , the court held that prior to ordering the transfer of PERSON to the ORG , the ORG should have carried out an objective evaluation of the bank ’s financial situation . The court also concluded that the ORG should first have ordered PERSON to take specific measures in accordance with section GPE ) of LAW before applying section CARDINAL(CARDINAL ) of the LAW .

On DATE a request for rectification lodged by the ORG was refused .

The case was remitted to ORG , which delivered its decision on DATE applying the decision of ORG of ORG . It accordingly set aside the ORG ’s decision of DATE ordering the transfer of PERSON to the ORG , holding that the takeover had been illegal . A further appeal and a request for rectification lodged by the ORG were rejected on DATE and DATE respectively .

On DATE PERSON , the main shareholder of PERSON , brought administrative proceedings against ORG before ORG , seeking the annulment of the agreement to sell PERSON to ORG .

Given that the transfer of PERSON to the ORG had been found to be illegal by ORG of ORG , on DATE ORG annulled the agreement entered into by the ORG and ORG on DATE . An appeal and a request for rectification lodged by the ORG were rejected on DATE and DATE respectively .

Following the transfer of PERSON to the ORG , the applicant applied to the ORG claiming compensation . He did not receive any reply .

Subsequently , on an unspecified date in DATE , the applicant brought compensation proceedings against the ORG before ORG . He argued that he had lost his shares in PERSON as a result of its transfer to the ORG and requested that the ORG ’s implied rejection of his compensation claim be reversed .

On DATE ORG dismissed the applicant ’s case . On the basis of a previous judgment it had rendered on DATE ( see paragraph CARDINAL above ) , the court found that the takeover of the bank by the Fund had been in accordance with section CARDINAL(CARDINAL ) of LAW .

The applicant lodged an appeal .

On DATE ORG of ORG decided to quash the judgment . It indicated that the previous judgment dated DATE , which had constituted the basis of the latter , had been quashed on DATE ( see paragraph CARDINAL above ) .

A rectification request lodged by the ORG was rejected on CARDINAL DATE .

On DATE ORG held that it lacked jurisdiction ratione materiae , as the applicant ’s case merely concerned an implied rejection by ORG , which should be assessed by ORG .

On DATE ORG dismissed the case as out of time . The court held that the applicant should have initiated proceedings within DATE of the date on which ORG ’s equities had been transferred to the ORG ’s account at ORG , namely DATE ( see paragraph CARDINAL above ) .

ORG upheld the first - instance court ’s judgment on DATE .

Following the CARDINAL judgments in respect of the main shareholders ( see paragraphs CARDINAL above ) , on DATE the applicant applied to the ORG and the ORG respectively , requesting the restitution of his rights as a shareholder . Relying on the restitutio in integrum principle , he claimed that the above - mentioned judgments of ORG should be enforced and his rights as a shareholder of PERSON reinstated .

The Agency did not respond to the applicant ’s request within the statutory time - limit .

On DATE the ORG refused the applicant ’s request , stating that restitution was legally and practically impossible .

Subsequently , the applicant initiated another set of proceedings before ORG , claiming that the ORG should enforce the above - mentioned judgments and that his rights as a shareholder of PERSON should be reinstated . He argued that the bank still owned a certain amount of assets following its sale to ORG and that restitution was therefore possible to a certain extent . He further claimed that in the event that his rights were not reinstated , he ought to be awarded compensation for the loss of his shares .

On DATE , ORG dismissed the case . It pointed out that under LAW of LAW only “ those concerned ” had the right to bring proceedings seeking to remedy the situation in full ( tam yargı davası ) . It found that the applicant could not be considered as “ concerned ” as he had not been a party to the annulment proceedings ( iptal davası ) brought by the main shareholders . The court held that if the annulled administrative act had been regulatory ( düzenleyici işlem ) , the concept of “ concerned persons ” would have applied to anyone who had been affected by it , whereas in the case of an individual act ( bireysel işlem ) , it applied only to those who had been parties to the annulment proceedings . Holding that the annulled administrative acts were individual acts , the court considered that the applicant had not been “ concerned ” by the annulment . Lastly , it indicated that the decisions of the ORG and the ORG to reject the applicant ’s requests had been lawful and that restitution would not be possible .

On DATE ORG upheld that judgment and on DATE it rejected the applicant ’s request for rectification .


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

The applicants , Mr PERSON and PERSON , are NORP nationals , who were born in DATE and live in GPE . They are represented before the Court by PERSON of GPE , a firm of solicitors based in GPE .

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

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

On DATE the first applicant purchased FAC ( “ the property ” ) , apparently with the assistance of a mortgage in favour of ORG . The property subsequently became the applicants’ main residence . Although the second applicant claims that she used some of her funds to purchase the property , it was registered in the first applicant ’s sole name .

On DATE the first applicant entered into a second mortgage with ORG ( “ LOC ” ) . The total amount loaned was ORG .

The first applicant fell into mortgage arrears in or DATE and ORG commenced possession proceedings against him in ORG .

Around this time , the first applicant ’s solicitor became concerned that he lacked the capacity to manage his own affairs . Medical reports indicated that he had ORG ’s Syndrome and a schizophrenic illness . On DATE , DATE after the claim form was issued in ORG by ORG , the solicitor applied to ORG for an order authorising her to act as an Interim Deputy for ORG ( “ Interim Deputy ” ) to defend , inter alia , the possession proceedings on his behalf . ORG made an order on DATE authorising her to take control of his property and affairs and to exercise the same power over them as a beneficial owner . In doing so , the court imposed a security bond requirement on the Interim Deputy in the sum of GBP CARDINAL in favour of the first applicant .

The Interim Deputy thereafter informed ORG that there was money available to pay the arrears and make advance payments .

The possession claim was heard on DATE . The first applicant did not attend and was not represented , although a letter from him was submitted to the court . The contents of that letter are not known . PERSON indicated to the court that the first applicant had made no payments on the mortgage since DATE . Consequently , the District Judge ordered that he give LAW possession of the property before DATE .

The Office of the Public Guardian commissioned a ORG to meet with the applicants and the Interim Deputy on DATE . The visitor was ( incorrectly ) told by the Interim Deputy that all payments on the mortgage were up to date . He also noted that the applicants’ situation was “ very difficult and unstable ” and seemed to be “ on the edge of crisis ” as the second applicant was unwell and might not be able to continue to care for the first applicant .

In DATE the second applicant complained to ORG about the conduct of the Interim Deputy . In particular , she claimed that the Interim Deputy had failed to use funds of GBP CARDINAL to discharge the mortgage arrears and that she had been on sick leave for DATE and was not dealing with her deputyship duties . ORG also complained about the Interim Deputy ’s conduct , both to ORG and to ORG . They claimed that they had discontinued possession proceedings after the Interim Deputy had verbally agreed a settlement with them but that she had subsequently reneged on that agreement by insisting , without foundation , that ORG pay her costs . Following the complaints , ORG launched an investigation into the activities of the Interim Deputy .

The second applicant subsequently withdrew her complaints against the Interim Deputy unreservedly . In a report dated DATE ORG found that there had been a dispute between ORG and the Interim Deputy which should be resolved between the parties . It also found that there had been a dispute between the Interim Deputy and her firm which resulted in her leaving the firm and working from home . Following a period of claimed ill - health , she had resumed activity in the affairs of the first applicant . ORG therefore closed its investigation .

On DATE ORG obtained a warrant for possession from ORG . On DATE , a Notice of Eviction was sent to the first applicant “ and any other occupiers ” at FAC , stating that the eviction would take place on DATE .

By DATE an application had been made on the first applicant ’s behalf to suspend the eviction . A further application appears to have been made to “ withdraw ” the warrant of possession .

Both applications came before a district judge on DATE , on which date the first applicant appears to have been represented by the Interim Deputy . The applications were adjourned .

On DATE ORG ordered a report into the management and administration of the property and affairs of the first applicant by the Interim Deputy . The report was prepared by ORG and published on DATE . The report noted that on her appointment , the Interim Deputy had advised ORG that there was sufficient money in the PERSON ’s client account to pay their arrears . However , ORG informed ORG that the Interim Deputy had “ made no attempt to pay the outstanding arrears or to ensure that mortgage payments are going forward ” . In fact , she had entered into a verbal agreement to pay the arrears but then reneged on the agreement leaving ORG no alternative but to seek possession . The report concluded that the Interim Deputy was struggling with her general , day - to - day duties and that there was a worrying – and unexplained – disparity as to the disbursement of MONEY received into her employer ’s client account in DATE . Although ORG stated that all payments were up to date and that the GBP CARDINAL received in DATE had been used in paying the arrears of the mortgage , in DATE those funds were still in the client account . The report concluded that the first applicant ’s best interests had not been served by the Interim Deputy .

On DATE the adjourned applications to suspend and withdraw the warrant for possession were heard by a district judge . Both parties were represented by counsel at the hearing . However , the applications were dismissed and the possession warrant was returned to the bailiff for a new eviction date to be set .

On DATE the Interim Deputy ’s authority to act in the possession proceedings came to an end .

Nevertheless , it appears that the Interim Deputy filed an application for permission to appeal against the district judge ’s decision of CARDINAL DATE on behalf of the first applicant without any authority to do so . The application was dismissed on CARDINAL DATE at a hearing at which both parties were represented .

On DATE the applicants were evicted from the property .

On DATE the Interim Deputy made a further application to set aside the first applicant ’s credit agreement with LAW on the ground , inter alia , that he had not had the mental capacity to enter into it in DATE . This application was not made with the authority of ORG . On DATE second applicant applied to join the application on the ground that she had also been in occupation of the property , she had an interest in the property and she was left homeless after LAW were granted possession . She wrote to the court , setting out details of the first applicant ’s mental health problems and outlining her own health concerns ( including severe spondylosis , sciatica , heart disease , angina and depression ) .

On DATE , ORG revoked the appointment of the Interim Deputy with immediate effect . However , she was appointed as the first applicant ’s Deputy limited to the single issue of making an application on his behalf for public funding to apply for judicial review of the decision of CARDINAL DATE . This appointment was to expire on DATE unless extended by the ORG .

On DATE , following a hearing at which the parties were represented by counsel , the ORG Judge dismissed the application to set aside the credit agreement and join the second applicant to the proceedings . The second applicant was ordered to pay ORG ’s costs of the application , which were assessed in the sum of GBP CARDINAL,CARDINAL.CARDINAL . Permission to appeal was refused .

On DATE , the applicants , through the Interim Deputy ( again acting without authority ) , sought to appeal against the order of the ORG Judge . In particular , they submitted that there had been no consideration of their rights under LAW .

On DATE ORG gave the applicants’ daughter , PERSON , authority to act as the first applicant ’s litigation friend at the appeal hearing .

The appeal was heard on DATE . The judge found that the first applicant was not validly a party to the purported appeal as the Interim Deputy had not had authority to issue it . The second applicant and her representative were not able to attend the hearing owing to difficult weather conditions . Her appeal was dismissed as totally without merit and she was ordered to pay costs of GBP CARDINAL . The Interim Deputy was joined to the proceedings and was ordered personally to pay to ORG costs in excess of GBP CARDINAL .

According to the applicants , following the eviction the first applicant spent DATE without his maintenance medication , which caused a temporary deterioration in his condition . The applicants initially lived with their youngest daughter in a van before all CARDINAL moved to a tent in another daughter ’s garden . They stated that during this period the first applicant attempted suicide on CARDINAL separate occasions . The family later stayed in a hotel for DATE before moving into a rental property from DATE .

The medical evidence submitted to the ORG indicates that the first applicant has a history of mental illness and had made a number of suicide attempts prior to the eviction proceedings which are the subject of his complaint to ORG . While there is some evidence to support the assertion that he also attempted suicide following the eviction , this attempt appears to have taken place while he was in custody and psychiatrists were establishing his fitness to plead in respect of a prosecution for conspiracy to defraud .

Section CARDINAL permits ORG to appoint a Deputy to act on behalf of a person who lacks capacity in relation to matters concerning either his personal welfare or his property and affairs . However , the powers conferred on the Deputy should be as limited in scope and duration as is reasonably practicable in the circumstances and the court may revoke the appointment of a Deputy or vary the powers conferred on him if it is satisfied that he has behaved , is behaving , or is proposing to behave in a way that contravenes the authority conferred on him by the court or is not in the protected party ’s best interests .

Pursuant to section DATE , the Deputy ’s powers extend , inter alia , to the discharge of the protected person ’s debts and obligations , whether legally enforceable or not .

Section CARDINAL(CARDINAL ) provides that the Deputy is to be treated as the protected person ’s agent in relation to anything done or decided by him within the scope of his appointment .

The Office of the Public Guardian is an executive agency of ORG which implements LAW DATE by administering powers of attorney , supervising Deputies who manage the affairs of others and investigating and acting on allegations of abuse by attorneys and Deputies .

Pursuant to Regulation CARDINAL(CARDINAL ) of The Lasting Powers of Attorney , PERSON of Attorney and ORG DATE ( “ the DATE Regulations ” ) the court may order a person to give to ORG security in the form of a bond for the discharge of his functions .

Pursuant to Regulation CARDINAL of the DATE Regulations , the court may order the enforcement of the security .

Possession claims are governed by Part CARDINAL of ORG CARDINALA. With regard to land subject to a mortgage , ORG provides that at the hearing the claimant ’s evidence should include the amount of any rent or mortgage arrears and interest on those arrears . These amounts should , if possible , be up to date to the date of the hearing ( if necessary by specifying a DATE rate of arrears and interest ) .

If relevant , the defendant should give evidence of the amount of any outstanding social security or housing benefit payments relevant to rent or mortgage arrears and the status of any claims for social security or housing benefit about which a decision has not yet been made or any applications to appeal or review a social security or housing benefit decision where that appeal or review has not yet concluded .

Section CARDINAL of ORG DATE provides that :

“ ( CARDINAL ) Where the mortgagee under a mortgage of land which consists of or includes a dwelling - house brings an action in which he claims possession of the mortgaged property , not being an action for foreclosure in which a claim for possession of the mortgaged property is also made , the court may exercise any of the powers conferred on it by subsection ( CARDINAL ) below if it appears to the court that in the event of its exercising the power the mortgagor is likely to be able within a reasonable period to pay any sums due under the mortgage or to remedy a default consisting of a breach of any other obligation arising under or by virtue of the mortgage .

( CARDINAL)The court—

( a ) may adjourn the proceedings , or

( b ) on giving judgment , or making an order , for delivery of possession of the mortgaged property , or at any time before the execution of such judgment or order , may—

( i ) stay or suspend execution of the judgment or order , or

( ii ) postpone the date for delivery of possession ,

for such period or periods as the court thinks reasonable .

( CARDINAL)Any such adjournment , stay , suspension or postponement as is referred to in subsection ( CARDINAL ) above may be made subject to such conditions with regard to payment by the mortgagor of any sum secured by the mortgage or the remedying of any default as the court thinks fit . ”

Pursuant to section ORG ) DATE ( CARDINAL ) of LAW , which applies if a mortgagee of a dwelling house brings an action in any court for the enforcement of its security ,

ʺ(CARDINAL ) A connected person who is not already a party to the action is entitled to be made a party in the circumstances mention in subsection ( CARDINAL ) .

( CARDINAL ) The circumstances are that—

( a ) the connected person is enabled by section CARDINAL(CARDINAL ) ... to meet the mortgagor ’s liabilities under the mortgage ;

( b ) he has applied to the court before the action is finally disposed of in that court ; and

( c ) the court sees no special reason against his being made a party to the action and is satisfied—

( i ) that he may be expected to make such payments or do such other things in or towards satisfaction of the mortgagor ’s liabilities or obligations as might affect the outcome of the proceedings ; or

( ii ) that the expectation of it should be considered under section CARDINAL of ORG CARDINAL.ʺ


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy)

George Nicolaou;Ineta Ziemele;Krzysztof Wojtyczek;Ledi Bianku;Päivi Hirvelä;Zdravka Kalaydjieva

The applicants were born in DATE and DATE respectively . At the time of the events in question they were detained in FAC , serving sentences of life imprisonment , after being convicted of numerous crimes , including murder , rape and armed robberies .

On an unspecified date in DATE the CARDINAL applicants brought proceedings against ORG under the ORG and ORG , seeking damages for the allegedly poor conditions of detention in FAC . The case was examined by ORG , which accepted a request by the applicants to have CARDINAL of their fellow inmates questioned as witnesses regarding the living conditions in the prison .

A special court hearing for that purpose took place on DATE in a hearing room in FAC .

The applicants were brought to the hearing with their arms handcuffed behind their backs and their ankles shackled . Once the hearing began , PERSON PERSON requested that his handcuffs be removed because he was uncomfortable . The judge presiding over the hearing refused , without giving any specific reasons . Mr PERSON then asked that it be noted in the record of the hearing that his handcuffs had not been removed either . The applicants’ arms remained handcuffed behind their backs until the end of the hearing .

The CARDINAL witnesses heard by the court – who were from the same group of life prisoners – had their handcuffs removed .

A prosecutor was also present at the hearing .

The hearing continued for TIME .


Remainder inadmissible;Violation of Article 11 - Freedom of assembly and association (Article 11-1 - Freedom of peaceful assembly)

Jon Fridrik Kjølbro;Julia Laffranque;Nebojša Vučinić;Georges Ravarani;Ksenija Turković

The applicant was born in DATE and lives in GPE .

On DATE a demonstration was held in GPE to protest about the conditions of detention of PERSON , the leader of the ORG ( NORP Workers’ Party ) , an illegal armed organisation .

According to a report prepared by QUANTITY police officers on DATE following the examination of video footage of the demonstration recorded by the police , on DATE ORG , a website which was controlled by the ORG , had published a declaration of ORG of GPE and GPE . The declaration contained instructions to hold meetings and marches in each town and city on DATE to show support for PERSON . The report also stated that on the website www.rojaciwan.com , which was also controlled by the ORG , a news article containing a call for participation in the reading out of a press statement to be held by ORG ( ORG ) ) in ORG on DATE had been published .

NORP The report stated that the police had received information according to which the ORG branch of the ORG was the organiser of the press statement to be held and MPs , mayors and local politicians from the ORG as well as members of a number of non - governmental organisations would gather in front of the ORG ’s ORG party office at TIME and march to FAC , where they would make a press statement . The police took the necessary measures as they suspected that there could be violent protests during the march , which could become a demonstration for the ORG .

According to the police report , people started to assemble by TIME in front of the ORG party office . Mayors and MPs were among the demonstrators . By TIME CARDINAL people had gathered . Thereafter , demonstrators started to march , arriving at TIME p.m.at FAC , where the press statement was made . At TIME while PERSON , a Member of ORG from the ORG , was giving a speech , a group of people started throwing stones at the police officers and the cars parked in the neighbourhood . Both in front of the local branch of the ORG and during the march , demonstrators chanted slogans praising PERSON , such as “ ORG is LOC fedai ” ( “ Her Kürt Apo’nun Fedaisidir ” ) , “ We will drop the world without FAC your head ” ( “ PERSON dünyayı başınıza yıkarız ” ) , “ The Youth to PERSON , to the free country ” ( “ PERSON , PERSON ” ) , “ Salutations to ORG ” ( “ PERSON İmralı’ya PERSON ” ) , “ With our blood , with our life , we are with you , ORG ( “ Canımızla , kanımızla , seninleyiz FAC ) , “ Long live President FAC ( “ FAC ) , “ Martyrs are immortal ” ( “ PERSON ” ) , “ No life without the Leader , ORG ( “ Başkansız yaşam olmaz , Sayın Öcalan ” ) . They carried banners which contained slogans such as “ Stop the torture in NORP ” ( “ PERSON işkencesine son ” ) and “ We make war for life , we die for peace ” ( PERSON savaşırız ; PERSON ölürüz ” ) ; photographs of PERSON and flags of the so - called “ Confederation ” were also brandished . Subsequent to the press statements , when the crowd dispersed , some people within the crowd knocked over waste containers and attacked the police and the shops in the neighbourhood with stones and bats while chanting slogans in support of the ORG and its leader . The police gave a warning to those people and asked them to disperse . The demonstrators refused to obey the warnings . As a result , the police had to use proportionate force against the group , who were holding an illegal demonstration . The police intervened using truncheons , water and tear gas . The police report also noted that some people had taken down the NORP flag in the schoolyard of the ORG nursery school .

At the end of the report it was noted that , according to the video footage , the applicant had thrown stones at the police together with a number of other persons and had acted with the group which had taken down the NORP flag at the ORG nursery school .

The report of DATE also contained CARDINAL photographs extracted from the video footage recorded by the police . In CARDINAL photographs , the applicant is seen in a group of young men while , according to the police , throwing stones at the security forces . In CARDINAL photographs , he is seen while standing together with a group of people by a flag pole . A total of CARDINAL photographs concern the taking down of the NORP flag ; one photograph contains an image of a knocked - over waste container ; and CARDINAL other photograph shows a damaged passenger van . The remaining photographs contain images of demonstrators standing in front of a building or walking .

The applicant was arrested on DATE . According to the arrest and transfer report , the video recording of the demonstration by the police showed that the applicant had thrown stones at the police officers and had been in the crowd which had taken down the NORP flag in a schoolyard . The officers who drafted the report stated therein that the applicant had been informed of his rights when arrested and had been transferred to the children ’s branch of ORG , as he had been found to be a minor subsequent to a medical check . The applicant noted “ I am not signing ” and put his signature under that sentence on the report .

NORP On DATE the applicant made statements before the ORG public prosecutor in the presence of a lawyer . His statement reads as follows :

“ ... I am a primary school graduate and a peddler . On DATE my brother and I were selling watermelons in front of FAC in GPE . Suddenly , a large group of demonstrators chanting the slogan “ Long live President FAC ( “ FAC ) approached us . Subsequently , the police intervened and took a number of persons into custody . Some individuals among the crowd then began throwing stones at the police officers . I also joined the demonstrators at the beginning and chanted the slogan “ Long live President FAC . I then threw stones at the police officers . After a short while , some people went to a school . I also went with them . Some of them climbed on the flagpole in the school garden . They took down the NORP flag and replaced it with a NORP flag . I was not involved in taking down the NORP flag . I did not have any particular purpose when I chanted the slogan and threw stones at the police . I only acted together with the crowd . I do not know why there was a demonstration . I do not have any connection with the illegal organisation . The person in the photograph that you have shown is me . ”

On DATE the applicant was brought before a judge of ORG . He maintained that his statements to the public prosecutor had reflected the truth . His lawyer asked the court not to remand the applicant in custody , submitting that the applicant was a minor and therefore not capable of realising the meaning and consequences of his acts .

The judge remanded the applicant in custody in view of the existence of a strong suspicion that he had committed the offences of “ committing an offence on behalf of an illegal organisation without being a member of the organisation ” , in breach of PERSON no . CARDINAL , and “ dissemination of propaganda in support of a terrorist organisation ” , and having regard to the evidence .

On DATE the ORG public prosecutor filed a bill of indictment against the applicant with ORG , which had special jurisdiction to try a number of aggravated crimes enumerated under LAW at the material time . The applicant was charged with membership of an illegal organisation as he was considered to have committed a crime on behalf of an illegal organisation under LAW no . DATE ) on the basis of LAW and CARDINAL § CARDINAL of the same Code , resisting the security forces by way of throwing stones under sections CARDINAL ) and PERSON ) of ORG ( Law no . CARDINAL ) , disseminating propaganda in support of the ORG under section CARDINAL(CARDINAL ) of LAW ( Law no . ORG ) and denigration of the symbols of the sovereignty of the ORG under LAW § CARDINAL of LAW .

On DATE ORG held the first hearing in the case . During the hearing , the applicant reiterated his statements of DATE and asked to be released . He maintained that he had participated in the demonstration , chanted the slogan “ Long live President PERSON and thrown stones at the police when they intervened . He submitted that he had not been among those who had taken down the NORP flag .

NORP The public prosecutor asked the court to convict the applicant under Articles CARDINAL and CARDINAL of Law no . DATE , section CARDINAL(CARDINAL ) of PERSON no . ORG and sections CARDINAL ) and PERSON ) of PERSON no . CARDINAL . The public prosecutor also requested that the sentences be reduced taking into account the fact that the applicant had been aged DATE at the material time .

On DATE ORG rendered its judgment in the case against the applicant . The court noted , at the outset , a summary of the applicant ’s defence submissions , the public prosecutor ’s observations on the merits of the case and the following evidence in the case file : the applicant ’s statements before the public prosecutor and the judge on DATE ; his identity documents and a document showing that he did not have a previous criminal record ; the arrest and transfer report of DATE ; an incident report dated DATE ; printed versions of documents downloaded from the Internet ; the police report of DATE describing the events of DATE and the applicant ’s participation in those events ; photographs extracted from the video footage recorded by the police ; and medical reports .

In its judgment , ORG held as follows :


Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention)

The applicant was born in DATE and is detained in GPE .

The authorities initiated several criminal proceedings against the applicant . On CARDINAL DATE she was arrested on suspicion of fraud .

On DATE ORG remanded her in custody . The court extended her detention stating that she was accused of serious crimes , the crimes did not relate to commercial sphere , another set of criminal proceeding against her was pending and she had been convicted previously , she did not live at her place of residence , she might put pressure on witnesses , destroy or conceal evidence , re - offend , abscond or in any other way interfere with investigation . It appears that criminal proceedings against the applicant are still pending .


Remainder inadmissible;Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-e - Persons of unsound mind);No violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Dmitry Dedov;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Ksenija Turković

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

The applicant is a mentally disabled person . On DATE the applicant was arrested on a suspicion of having committed a murder . On DATE the applicant ’s mother informed the investigator that the applicant suffered from a mental disease .

In the period from DATE until DATE during the questionings conducted in the presence of counsel the applicant confessed , and furthermore confessed to murders of another CARDINAL persons .

On DATE ORG of GPE remanded the applicant in custody upon the investigator ’s request .

On DATE ORG of GPE extended the applicant ’s detention . It was subsequently extended on DATE , DATE and CARDINAL DATE on the grounds that he was suspected of an especially serious criminal offence , might abscond , reoffend , interfere with the witnesses or obstruct the investigation in some other way . On DATE the applicant detention was extended until DATE .

On DATE the investigator ordered a psychiatric expert examination of the applicant .

On DATE the commission of experts concluded that at the time of examination the applicant was in an acute phase of the disease and was not able to account for his actions . It was therefore impossible to determine the applicant ’s state of mind at the time of the offences . The experts stated that the applicant posed a danger to society and needed a compulsory treatment at a psychiatric institution of a specialized type with intensified supervision .

NORP On DATE the applicant ’s case was sent by the investigator to the court .

On DATE ORG held a preliminary hearing and extended the applicant ’s detention .

The court hearings in the applicant ’s case started on DATE .

On DATE the ORG ordered compulsory treatment of the applicant in a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition subsequently followed by the expert examination . The court also stated that until his placement to the hospital the preventive measure should remain unchanged . The relevant part of the decision reads as follows :

“ The court has no reason to doubt the conclusions of the medical experts [ of DATE ] . Taking into account the mental state of ORG and the nature of committed acts posing a danger to society and the need for compulsory treatment in a specialized psychiatric hospital with intensive supervision , the court considers that in accordance with ORG , CARDINAL ) ( g ) , CARDINAL ( CARDINAL ) of LAW he should be placed in this kind of hospital for compulsory treatment . However the question of releasing him from execution of sentence or criminal responsibility can not be currently resolved , as it was not possible to resolve the question of sanity of Y. in relation to the alleged acts due to a temporary disorder , namely the depressive episode of severe degree . In these circumstances Y. should be placed in the mental hospital until the improvement of his condition ...

The preventive measure should remain unchanged until his placement in the mental hospital . ”

The applicant ’s counsel appealed . In particular she argued that the applicant should be released , as the compulsory treatment of the applicant in a psychiatric institution of a specialized type with intensified supervision would worsen his state of health . He should be treated in a mental hospital of a general type , noting that DATE had passed since the last medical examination .

On DATE the ORG extended the applicant ’s detention until DATE on the grounds that he was suspected of an especially serious criminal offence and the consideration of his case on the merits was still pending .

On DATE ORG of GPE quashed the decision of QUANTITY DATE and remitted the case for fresh examination to the first instance court . ORG noted that the first instance court had wrongly applied the provisions of the PERSON of the Criminal Procedure on compulsory medical treatment of offenders who had committed a crime in the state of insanity to the applicant ’s case since his state of mind at the time of the commission of the crimes had not yet been established . The relevant part of the decision reads as follows :

“ Having examined the materials of the case , grounds of appeal statements ... the court finds that the decision should be quashed due to the violation of rules of criminal procedure .

The present criminal case was transmitted to ORG with a view of application of the compulsory measures of a medical nature . The court considered this case according to the ORG CARDINAL - CARDINAL of the Code of Criminal Procedure ... and found that Y. having a mental disease , currently in acute state , committed the acts ... and placed him in a psychiatric institution of a specialized type with intensified supervision for compulsory treatment until the improvement of his condition subsequently followed by the expert examination .

However according to LAW [ Code of Criminal Procedure ] the measures indicated in LAW could be applied only in respect of the person who has committed an act , prohibited by the criminal law , in the state of insanity , or to a person who became mentally ill after committing the crime , which makes it impossible to sentence him or to execute it . Only in such circumstances is it possible to consider the case according to these rules ... provided by Articles CARDINAL of LAW .

It follows from the materials of the case , in particular from the results of the expert examination , that Y. does not fall into any of these categories of persons as until improvement of his acute condition it is not possible to establish whether he committed an act , prohibited by the criminal law , in the state of insanity , or has plunged into a state of mental disorder after committing the crime , which makes it impossible to sentence him or to execute the sentence .

Nevertheless the court accepted this case and considered it according to Articles CARDINAL - CARDINAL of LAW , at the same time the court in its decision notes that ORG committed the act , prohibited by the criminal law ... However as it mentioned before it does not follow from the expert report that he was in a state of insanity ...

At the same time it follows from the experts report ... that Y. suffers from the acute state of the disease and is in need of the treatment in a psychiatric institution . According to LAW when it is established that a person to whom detention on remand has been applied as a preventive measure suffers from a mental illness , a court , upon a prosecutor ’s request and in accordance with the procedure laid down in LAW , shall take a decision authorising a transfer of that person to a psychiatric hospital ...

The preventive measure shall remain unchanged . ”

On DATE the ORG scheduled another hearing of the applicant ’s case for DATE .

On DATE ORG returned the case to the prosecutor in order to cure the violations of certain procedural rules . The court also extended the applicant ’s detention on remand . The decision remained silent as to the grounds on which such conclusions were based and also as to the period of such authorised detention or the date of its next review . The applicant appealed . In particular he indicated that the period of his detention had expired .

On DATE the Chelyabinsk Regional Court extended the applicant ’s detention until DATE on the grounds that he was suspected of an especially serious criminal offence .

On DATE ORG dismissed the applicant ’s appeal . Referring to the gravity of the charges , it noted that there were no reasons which would make it necessary to cancel or change that preventive measure .

On DATE ORG extended the applicant ’s detention until DATE on the grounds that he was suspected of an especially serious criminal offence and the consideration of his case on the merits was still pending .

On DATE the investigator suspended the criminal investigation until the improvement of the applicant ’s condition . The deputy prosecutor of GPE asked the court to transfer the applicant to a psychiatric institution , relying on LAW .

On DATE ORG of GPE , relying on LAW , ordered the applicant ’s transfer to a psychiatric institution until the improvement of his condition . The court noted that since it did not deal with the issue of compulsory medical treatment of the applicant it was not authorized at that stage to determine the type of the institution the applicant had to be transferred to . The relevant part of the decision reads as follows :

“ It follows from the medical expert ’s report that Y. suffers from the acute state of the disease . Currently he is not able to understand the factual character of his actions and control them . Taking into account his current mental state it is not possible to establish his mental state at the material time in respect of the acts he is accused of . Taking into account his current mental state , the presence of the mood disorders , the hallucinatory experiences , the lack of criticism towards his own mental state , ORG represents a danger to society and is in need of the treatment in a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition . According to LAW can transfer a person who is detained on remand to an inpatient psychiatric institution when it is established that the person suffers from a psychiatric illness . he court takes the decision about the transfer of Y. to the mental hospital . However the court does not deal with the issue of compulsory medical treatment of the applicant ; thus it is not authorised at that stage to determine the type of the institution the applicant had to be transferred to ...

... Decides to transfer the applicant to a psychiatric institution ... ”

The applicant ’s counsel appealed . She argued , in particular , that she had not been notified of the hearing and the applicant was not in the acute state of the disease anymore .

On DATE ORG upheld the decision on the applicant ’s transfer .

The administration of the remand prison GPE of GPE asked the court to determine the type of psychiatric institution the applicant had to be transferred to .

On DATE the applicant was transferred to the GPE psychiatric hospital of a specialized type with intensified supervision .

On DATE ORG of Chelyabinsk taking into account the results of the expert examination of DATE decided that the applicant had to be transferred to a psychiatric institution of a specialized type with intensified supervision . The relevant part of the decision reads as follows :

“ ... Taking into account the medical expert ’s report of CARDINAL ... the court considers it necessary to transfer ORG to a psychiatric institution of a specialized type with intensified supervision until the improvement of his condition ... ”

On DATE ORG upheld the decision of DATE .

On DATE ORG of GPE upheld the investigator ’s decision of DATE to suspend the proceedings . The applicant appealed .

On DATE the medical commission of the GPE psychiatric hospital concluded that the applicant ’s condition had improved so that he could be transferred back to the judicial and investigation authorities .

On DATE the ORG of GPE passed the decision to stop the compulsory medical treatment of the applicant .

On DATE the investigation was resumed and the applicant signed an undertaking not to leave the town and was released .

On DATE the prosecutor decided to conduct an outpatient psychiatric expert examination of the applicant . The applicant failed to appear and his representative requested an inpatient examination .

On DATE ORG of Chelyabinsk ordered the applicant ’s inpatient psychiatric expert examination .

On DATE the commission of experts delivered the results of the examination . The commission of experts concluded that at the time of the crimes the applicant was in a state of insanity . The experts stated that the applicant posed a danger to society and needed a compulsory treatment in a psychiatric institution of a specialized type with intensified supervision .

On DATE the applicant ’s case was sent to the court .

By decision of CARDINAL DATE ORG scheduled the hearing of the applicant ’s case for CARDINAL DATE .

On DATE ORG ordered the applicant ’s detention for DATE with reference to the expert ’s report of CARDINAL DATE and to the fact that he was suspected of an especially serious criminal offence .

On an unspecified date the applicant ’s counsel lodged a request for conducting an additional psychiatric expert examination of the applicant . On CARDINAL DATE ORG granted the request of the lawyer .

On DATE ORG extended the applicant ’s detention until the end of consideration of the case by the trial court . It referred to the seriousness of the charges against him and the fact that he had changed his place of residence without due notification of the investigation authorities . On DATE ORG upheld the decision of CARDINAL DATE .

On DATE the commission of experts delivered the results of the psychiatric examination , which confirmed the conclusions reached in the report of DATE and the applicant ’s inability to take part in the court ’s hearings .

On DATE ORG decided to return the case to the prosecutor to correct the inaccuracy in the description of the facts of the case . On DATE the court also extended the applicant ’s detention on remand until DATE .

On DATE the ORG scheduled the hearing of the applicant ’s case for DATE and extended the applicant ’s detention on remand until DATE .

On DATE ORG extended the applicant ’s detention on remand until DATE . It referred again to the fact that he had changed his place of residence without due notification of the investigation authorities .

DATE . On DATE the Chelyabinsk Regional Court found it established that the applicant had sexually assaulted and murdered CARDINAL women and stole the belongings of CARDINAL of them . Since the applicant had committed the crimes in the state of insanity , the court relieved him of criminal responsibility and ordered his compulsory treatment in a psychiatric institution of a specialized type with intensified supervision . The applicant appealed .


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;No violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life)

André Potocki;Angelika Nußberger;Erik Møse;Síofra O’Leary;Yonko Grozev;Gabriele Kucsko-Stadlmayer

The applicants in application no . CARDINAL/CARDINAL ( NORP ) are a mother and father . Their son PERSON was born on DATE . The applicants in application no . CARDINAL ( ORG ) are also a mother and father . Their CARDINAL daughters PERSON and NORP were born on DATE and their son PERSON was born on DATE . All the applicants are members of ORG ( PERSON ) who lived in a community of around CARDINAL members of the church in GPE , GPE . A second community with CARDINAL members was located in the nearby village of GPE .

NORP In DATE the press reported about ORG and its position on the right of parents to apply corporal punishment , especially caning . Furthermore , statements by a former member of the community were published , confirming that children had been punished with rods .

In DATE and DATE the local youth offices ( ORG ) visited both communities and its spokespersons were invited to a meeting at ORG . Corporal punishment and the issue of compulsory schooling were discussed at the meeting .

On DATE the NORP youth office and ORG received video footage from a television reporter showing CARDINAL different instances of corporal punishment in the community in GPE . The footage , filmed with a hidden camera , showed the caning of various children DATE . According to the television reporter , the person who carried out the punishment was not , in most cases , a parent of the child being punished .

On DATE the ORG , upon an application by the competent youth office , made an interlocutory order regarding all children in the CARDINAL NORP community in GPE , including the applicants’ children . The court withdrew the applicants’ rights to decide where their children should live ( GPE ) , and to take decisions regarding their health ( GPE ) , schooling and professional training , and transferred those rights to the youth office . The court based its decision on the above - mentioned video footage and the testimony of the television reporter and CARDINAL former members of the CARDINAL NORP community . It concluded that there was a reasonable likelihood that the children would be subjected to corporal punishment in the form of caning and so - called “ restraining ” , involving holding a child ’s limbs tight and pressing his or her head down until the child had no strength left to cry and struggle .

On DATE the youth office took the community ’s children into care . They were supported by around thirty police officers , who , at the same time , searched the community ’s premises and found a wooden rod .

NORP The applicants’ children were subsequently examined but no physical signs of abuse or beating were revealed .

J. Tlapak was subsequently placed in a foster family . As he was still being breastfed , his mother was permitted DATE visits to give him milk .

A. and PERSON were also placed in a foster family . Their aunt ’s family was approved as fosterers and they were then placed with them .

NORP Since PERSON was then only DATE and DATE and was also still being breastfed , he and his mother were placed together in a foster family .

On DATE the ORG heard the applicants and on DATE it upheld its order of CARDINAL DATE in an interim decision .

On DATE ORG dismissed an appeal by the applicants against the interim decision of ORG in essence , but set the decision aside to the extent it concerned the parental right to decide on schooling matters . Given the son ’s age , the court held that there was no need to decide on that issue in the interim proceedings .

In DATE the applicants moved – without their son PERSON to GPE , where they have been living since .

The Ansbach Family Court heard the applicants on DATE and the applicants’ daughters on DATE in the foster family ’s home . The daughters reported that their parents had hit them on the hand with a rod as a form of corporal punishment . On DATE ORG upheld its order of DATE .

On DATE , upon an appeal by the applicants , ORG reversed the decision to withdraw the right to decide where PERSON should live . The earlier decision on the daughters was upheld , with the proviso that the parents were to retain the right to take decisions on school matters and on their daughters’ choice of education or training and career .

The son was subsequently returned to the applicants , who moved first to GPE and later to GPE , where they have been living since . The applicants’ daughters are still in the care of the foster family ( see paragraph CARDINAL above ) .

Upon an application made by the applicants on DATE ORG initiated the main proceedings and , on DATE , it commissioned an expert opinion .

After interviewing the applicants and observing a meeting between them and their son , the expert submitted a written opinion on DATE . He found that even though the applicants had a loving attitude towards their son , they considered corporal punishment with objects as an appropriate and necessary parenting method . Owing to their willingness to apply that method to their son , there was a likelihood bordering on certainty that if he remained with them , they would apply corporal punishment . This , the expert concluded , would significantly jeopardise the son ’s development and result in psychological problems . Overall , it was in the child ’s best interests to place him away from his parents to protect him from the applicants’ parenting methods , which were dangerous for the child . Since their parenting was based on religious convictions , they were unwilling to abandon the parenting method of corporal punishment and lacked the will to cooperate with the authorities or accept help . Consequently , less intrusive measures could not be considered sufficient .

Subsequently the applicants submitted a privately commissioned expert opinion , in which the court - appointed expert ’s approach and methodology was criticised . In addition , the applicants retrospectively withdrew their consent to being assessed by the court - appointed expert and to an assessment of their son .

In separate proceedings ORG , on DATE , issued an interim decision in which it withdrew the ORG parental right to decide on the son ’s assessment by the court - appointed expert and consented to such a measure .

On DATE , ORG forwarded the privately commissioned expert opinion to the court - appointed expert , who responded to the criticism and gave details of his methodology in a letter of DATE .

In a hearing on DATE the court proposed an agreement between the applicants and the youth office , with the aim of returning their son to them . However , the applicants and the youth office did not agree on a settlement owing in particular to a disagreement about the son attending a state school and play therapy . Moreover , there were concerns about the parents attending a development course and assisting with medical measures . The youth office considered those aspects as essential and declined the partial settlement proposed by the applicants .

After hearing the applicants’ son in the home of the foster family where he had been placed on DATE , ORG decided on DATE to withdraw the applicants’ right to decide where their son should live and to take decisions regarding his health and schooling , and transferred those rights to the youth office , which had been appointed as supplementary guardian .

ORG stated that it would be very detrimental to the best interests of the child if the son continued to live with the applicants owing to their parenting methods . Based , in particular , on the courtcommissioned expert opinion and the statements by the applicants during the court proceedings , the court concluded that there was a high , concrete probability that the son would be subjected to corporal punishment using physical objects over the course of DATE . According to the expert , this would give rise to an expectation that the ORG son would suffer from psychological issues . Even though separating the parents and the child constituted a severe interference with their right to a family under LAW ( see paragraph CARDINAL below ) and may possibly have negative consequences for the child , that interference was justified in the case at hand . Corporal punishment of the kind at issue was particularly degrading for a child . It was not only banned by LAW ( see paragraph CARDINAL below ) but also constituted an interference with a child ’s human dignity , protected under LAW ( see paragraph CARDINAL below ) , and a child ’s right to physical integrity , protected under LAW ( see paragraph CARDINAL below ) .

The court also held that the risk to the child could not be averted using less drastic measures . Throughout the course of the proceedings the applicants had unreservedly advocated their parenting style and had refused to accept the opinion that the type of corporal punishment they endorsed was covered by the ban on violence under LAW . The physical effects of such punishment were only short - lived , which was why it would only be possible for the youth office to observe any such effects if it made unannounced visits and the child had – by chance – been punished immediately prior to such a visit . According to the expert ’s explanations , the psychological consequences could , by contrast , only be determined after a longer period of time and they were difficult to discern at first glance . Although the applicants had most recently indicated to the court that they were ready to refrain from corporal punishment in the future , the court regarded such statements as not being compelling since they had not provided any grounds . ORG , nonetheless , pointed out that the applicants were free to reach an out - of - court settlement with the youth office concerning the conditions under which the son could be returned after the proceedings had been concluded . However , the previous settlement proposal had been refused because the applicants had not been willing to agree to have their son take part in play therapy and attend a state school .

In regard to the fact that the applicants had withdrawn their consent to being examined by the court - appointed expert after the expert opinion had already been submitted , both for themselves and their child , the court held that this did not render the expert ’s report unusable in the proceedings . While the court had given its own consent in place of the GPE as far as it concerned the son , the GPE actions on that point could not , in light of the state ’s obligation to protect children under constitutional law , hinder the use of the expert opinion in the proceedings . Allowing parents to reject expert opinions they disagreed with by retrospectively withdrawing consent to an examination would prevent any effective protection of children in family court proceedings .

The applicants subsequently appealed against the decision of ORG . ORG , after hearing the applicants , their son , the son ’s guardian ad litem , a representative of the youth office , the courtappointed expert and the expert commissioned by the applicants , dismissed the ORG appeal on DATE .

In a decision of CARDINAL pages , ORG considered in detail the applicants’ statements concerning corporal punishment , publications by ORG , the expert ’s opinion and the criticism of the report by the privately commissioned expert . Overall it confirmed the decision and reasoning of ORG of DATE . The court emphasised that not all individual violations of the right to a non - violent upbringing under Article CARDINAL § CARDINAL of LAW ( see paragraph DATE below ) could justify a withdrawal of parental authority . However , there was a fear in the applicants’ case that systematic caning with a rod would be the reaction whenever the child was deemed to have broken a rule . There was moreover already a threat to the child ’s best interests as he would live in constant fear of suffering physical pain and experiencing the resulting humiliation as psychological suffering . Beatings as such , the court held , constituted child abuse and misuse of parental authority . It was of no relevance whether or not lasting physical injuries occurred .

The court further held that on account of their religious beliefs , the applicants were convinced that their child - rearing methods were legitimate . Accordingly , they were neither willing nor able to avert the danger to their child and the recent contradictory statements they had made could not be considered as credible .

ORG , upon an application by the applicants dated DATE , initiated the main proceedings and on DATE commissioned an expert opinion .

After interviewing the applicants , their CARDINAL daughters and the children ’s foster parents , and observing a meeting between the applicants and their children , the expert submitted a written opinion on DATE . He stated that the applicants and their daughters had confirmed that the parents had used a rod as corporal punishment on the daughters and that even though the applicants had a loving attitude towards their children , they considered corporal punishment using physical objects as an appropriate and necessary parenting method . Given the past incidents of corporal punishment and the ORG general willingness to use that method on their children , it was virtually certain that they would subject them to corporal punishment again . The expert concluded that the ORG rigid , authoritarian parenting style and their conviction that children should be raised to obey their parents by means of corporal punishment using physical objects from DATE conflicted significantly with the best interests of the children and was also detrimental to the unimpaired development of their personality . He expected that such methods would likely result in psychological issues . Overall , it was in the best interests of the children to place them away from their parents . Since the applicants’ parenting style was based on religious convictions , they were unwilling to abandon the parenting method of corporal punishment and were not fully prepared to cooperate with the authorities and accept help . Consequently , measures that infringed on their rights to a lesser degree could not be considered sufficient .

Subsequently , the applicants submitted a privately commissioned expert opinion , in which the court - appointed expert ’s approach and methodology was criticised . In addition , the applicants retrospectively withdrew their consent to being assessed by the court - appointed expert and to the assessment of their CARDINAL children .

In separate proceedings ORG , on DATE , issued an interim decision in which it withdrew the ORG parental right to decide on the children being assessed by the court - appointed expert and consented to the psychological examination . It also forwarded the privately commissioned expert opinion to the court - appointed expert , who responded to the criticism in it and gave details of his methodology in a letter of CARDINAL October CARDINAL .

NORP In a hearing of DATE the parties discussed an agreement between the applicants and the youth office , with the aim of returning the daughters to the applicants and protecting all CARDINAL children . However , the applicants and the youth office could not agree on a settlement as there was disagreement in particular on the children attending a state school and therapy . Moreover , the applicants were unwilling to remain in GPE under the supervision of the youth office for an extended period of time .

After hearing the applicants and their daughters several times , including in parallel proceedings , ORG decided on DATE to withdraw the applicants’ right to decide where all CARDINAL children should live and to take decisions regarding the children ’s health and schooling , and transferred those rights to the youth office , which had been appointed as supplementary guardian . Additionally , the court ordered the ORG son to be handed over to the youth office .

In its reasoning , which was similar to that in application no . CARDINAL/CARDINAL ( see paragraphs CARDINAL above ) , ORG held that the applicants’ parenting methods meant that it would be very detrimental to the best interests of all CARDINAL children to continue to live with their parents . The court emphasised that the aim of Article DATE of LAW ( see paragraph CARDINAL below ) was not to penalise past child abuse or views on parenting that were in contradiction to Article CARDINAL § CARDINAL of LAW ( see paragraph DATE below ) , but to prevent imminent threats to the best interests of children . Based , in particular , on the opinion by the courtappointed expert and the statements by the applicants and their children , the court concluded that there was a high , concrete probability that the children would be subjected to systematic corporal punishment using physical objects , which would in turn be detrimental to the best interests of the children in physical and psychological terms . The severe interference with the applicants’ right to a family under LAW ( see paragraph CARDINAL below ) by separating them from their children was nonetheless not only justified but also proportionate since the risk to the children could not be averted using milder means . Besides the problem of detecting corporal punishment through unannounced visits by the youth office ( see paragraph CARDINAL above ) , the court also pointed out that the applicants had consistently , over the course of the proceedings , shown a lack of willingness to cooperate with the youth office and had refused to accept state schools , both of which the court found necessary to prevent degrading corporal punishment and ensure the children ’s autonomous development . Furthermore , the court held that it could be expected that the applicants would leave GPE if their children were returned to them and thereby elude any orderly monitoring and supervision by the competent youth office . Lastly , the court concluded that the withdrawal of the consent to being examined by the court - appointed expert did not hinder the use of the expert opinion in the proceedings ( see paragraph CARDINAL above ) .

The applicants subsequently appealed against the decision of ORG and applied for an interim measure to suspend the order to hand their son over to the youth office .

On DATE ORG provisionally suspended enforcement of ORG order on the son . The court held that given his age , DATE and DATE , and the fact that he was still being breastfed , enforcement would constitute an especially serious interference with the applicants’ rights . In addition , the son ’s young age meant there was no imminent and sufficient risk of him being subjected to corporal punishment .

During the appeal proceedings the applicants proposed a settlement to ORG . The applicants would temporarily return to GPE and for DATE they would gradually be reunited with their CARDINAL daughters under the supervision of the youth office . At the end of that period , if the family reunification had been successful , ORG decision would be set aside and the whole family would move to GPE .

On DATE ORG conducted an oral hearing during which it heard , inter alia , the applicants , their daughters , the courtappointed expert , the expert commissioned by the applicants and the children ’s guardian ad litem . The applicants’ daughters stated that , even though they would like to see their parents more often , they would prefer living with their foster parents . Moreover , a representative of the youth office indicated during the hearing that the applicants had not distanced themselves from their previous parenting methods in a credible way and that therefore the youth office was not able to agree to the settlement they had proposed .

On DATE ORG , in a detailed decision of fortyfive pages , rejected the ORG appeal and confirmed the reasoning of ORG . The court held that corporal punishment with a rod , prohibited by LAW ( see paragraph CARDINAL below ) , constituted the physical abuse of children and if applied regularly and repeatedly the competent authorities were obliged under LAW ( see paragraph CARDINAL below ) to intervene and take the necessary measures in the best interests of the children . The applicants’ daughters had consistently stated during the proceedings that they had been caned on a DATE basis and the applicants themselves had confirmed that they had “ disciplined ” their daughters with a rod . The court was convinced that the applicants would continue to use corporal punishment on their children in the future since that parenting method was already firmly established and was based on religious beliefs from which the applicants had not fundamentally distanced themselves . Their statements had shown that they , in essence , continued to approve of corporal punishment and considered it an appropriate parenting method . The fact that the applicants had recently acknowledged that their children had a right to a non - violent upbringing did not mean they had changed their attitudes to parenting in a permanent way ; rather , that had only served a procedural purpose , namely to have their daughters returned to them as soon as possible . In the court ’s opinion , the applicants were only prepared to refrain temporarily from corporal punishment . The court was therefore unable to find that the applicants had changed their way of parenting and distanced themselves from corporal punishment in a manner which the court could regard as credible . Consequently , there was an imminent danger of systematic corporal punishment if the CARDINAL daughters were returned to their parents . The danger also existed for the applicants’ son as there was no fixed age when the applicants started “ disciplining ” their children as they rather considered it a tool to enforce their parental authority . As the DATE son was expected to start his “ phase of defiance ” soon , it also had to be expected that the applicants would respond with caning .

ORG also confirmed that the applicants’ withdrawal of their consent to being assessed did not prevent the courts from using the expert opinion as evidence and that there were no less severe measures available to avert the imminent detriment to the best interests of the children resulting from their GPE use of corporal punishment . In that regard , the court , inter alia , pointed to the fact that the applicants had already left GPE with their son and refused to return to live there permanently . The competent authorities would therefore from the very outset be unable to provide sufficient support to the family or effectively monitor the applicants’ parenting methods .

DATE . On DATE ORG refused to admit a constitutional complaint by the applicants ( CARDINAL BvR CARDINAL/CARDINAL ) , without providing reasons .


Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions;Article 1 para. 2 of Protocol No. 1 - Control of the use of property);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE . He is a businessman living in ORG .

On DATE the GPE State Attorney ’s ORG ( GPE državno odvjetništvo u ORG ) asked an investigating judge of ORG ( Županijski sud u Vukovaru ) to open an investigation in respect of the applicant , in his capacity of the director of company ORG , in connection with suspicion of several charges of economic crime . It also requested that several items of the applicant ’s real property be restrained so as to secure effective enforcement of a probable confiscation order in the amount of CARDINAL,CARDINAL,CARDINAL.CARDINAL NORP kunas ( HRK ) ( MONEY ( ORG ) ) .

The investigation was opened on DATE , and on DATE the investigating judge declared the request for seizure of the applicant ’s property inadmissible on the ground that under LAW applicable at the time the State Attorney ’s Office had not been authorised to make such a request .

After the completion of the investigation , on CARDINAL DATE the applicant was indicted , together with CARDINAL other persons , in ORG on several charges of economic crime , concerning in particular misappropriation of company shares , and misuse of the company PERSON ’s assets and facilities .

On CARDINAL DATE the ORG Attorney ’s ORG amended the indictment , dropping the charges on CARDINAL counts against the applicant and charging him on CARDINAL count of misappropriation of company shares , and several counts of misuse of the company ORG ’s assets and facilities . The total value of the pecuniary gain which the applicant had allegedly obtained by the commission of these offences was set out at approximately EUR CARDINAL .

On the basis of the amended indictment , on DATE ORG found the applicant guilty of charges of misappropriation of company shares and acquitted him of all other charges . The applicant was sentenced to DATE and CARDINAL months’ imprisonment and confiscation of the pecuniary gain in the amount of HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL ( approximately ORG CARDINAL,CARDINAL ) allegedly obtained by the commission of the offence of which he was found guilty .

Upon appeal by the applicant and the GPE State Attorney ’s ORG against this judgment , on DATE ORG ( PERSON ) quashed it and ordered a retrial .

In the resumed proceedings , and after the CARDINAL Confiscation of the Proceeds of Crime Act ( see paragraph CARDINAL below ) had entered into force , on DATE the GPE State Attorney ’s ORG requested ORG that several items of the applicant ’s real property be seized ( CARDINAL plots of land , QUANTITY houses and a commercial building ) so as to secure effective enforcement of a probable confiscation order in the amount of approximately EUR CARDINAL,CARDINAL,CARDINAL .

In support of its request the GPE State Attorney ’s ORG submitted records from the land registry attesting to the applicant ’s ownership of the real properties in respect of which the request for a seizure order was made . It did not submit an assessment of the value of the property nor did it make any reference to its possible value . However , according to the information submitted by the ORG , the assessment of the value of several items of the real property , which were the subject matter of the proceedings , had been made on the basis of the material available from the investigation case file and their estimated value at the moment of purchase in DATE ( in total estimated at approximately ORG CARDINAL ) , whereas the assessment of the value of the remainder of the real property had been made by the GPE State Attorney ’s Office with regard to the information available in the land registry , although the records in the land registry did not contain information on the value of the property itself .

On DATE a single judge of ORG ordered seizure of the applicant ’s real property listed in the request of the ORG Attorney ’s ORG so as to secure effective enforcement of a possible confiscation order in the amount of approximately ORG CARDINAL . No reasoning was provided with regard to the proportionality of the alleged pecuniary gain obtained and the value of the restrained real property .

On the basis of an order of ORG , the seizure of the applicant ’s real property was registered in the land registry .

The applicant challenged the decision of ORG before ORG and on DATE ORG quashed it and remitted the matter for re - examination on the grounds that the decision on seizure of the real property was not within the competence of a single judge but a panel of CARDINAL judges .

On DATE the applicant requested ORG that the quashed seizure order be removed from the land registry . He contended that he had taken a bank loan which was secured by a mortgage on his real property and that the loan would not be extended due to the seizure of his property , which could lead to his total bankruptcy and destruction of his business . In support of his request , the applicant submitted email correspondence with the bank asking him to clarify when the seizure order would be lifted , as it affected the management of his loan .

On DATE the applicant ’s representative received a summons by ORG to appear before a CARDINAL - judge panel of that court on DATE , without specifying the exact reason for the summons . It was also indicated that the court session could be held in the absence of the defence .

On DATE a CARDINAL - judge panel of ORG examined the request of the ORG Attorney ’s Office for the seizure of the applicant ’s real property . On DATE it accepted the request in full and ordered restraint of the applicant ’s real property listed in the request of the ORG Attorney ’s ORG ( see paragraph CARDINAL above ) by prohibiting its alienation or encumbrance . The relevant part of the decision reads :

“ The records from the land registry ... show that the accused PERSON is the owner of the above listed items of real property .

Under section CARDINAL § DATE ) in conjunction with section CARDINAL § CARDINAL of the Confiscation of the Proceeds of Crime Act ( Official Gazette no . CARDINAL ) , and also in view of LAW of the Confiscation of the Proceeds of Crime Act , this panel finds that it is presumed that there is a danger that the claim of GPE with regard to confiscation of the proceeds of crime would not be enforceable or that its enforcement would be difficult without ordering of a restraint measure .

Under LAW no one can retain the proceeds of crime .

By the indictment of the GPE State Attorney ’s Office ... the accused PERSON is charged , under count CARDINAL ( a ) , ( b ) and ( c ) , of having procured for himself a pecuniary gain in the amount of HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL .

[ T]he proceedings at issue concern ... the confiscation of the proceeds of crime under LAW § CARDINAL(A ) in conjunction with LAW . In view of the above , it is ordered to the land registry of ORG to register the restraint of the listed property in the land registry . ”

The restraint of the applicant ’s real property was registered in the land registry on the basis of an order of ORG .

On DATE the applicant lodged an appeal before ORG challenging the decision of ORG ordering the seizure of his property . He contended in particular that the value of the restrained property was according to his provisional estimate CARDINAL ( approximately FAC ) , which significantly surpassed the pecuniary gain allegedly obtained by the commission of the offences which were the subject matter of the proceedings . He also stressed that it was reasonably expected from ORG to conduct at least a general assessment of the value of the property restrained and the pecuniary gain allegedly obtained by the commission of the offences in question . The applicant therefore submitted that by failing to make any such assessment , ORG had imposed an excessive individual burden on his property rights .

ORG dismissed the applicant ’s appeal on DATE . With regard to the applicant ’s specific complaint concerning the lack of proportionality of the measure imposed , ORG noted :

“ ORG finds that the principle of proportionality has not been breached since PERSON is charged with having obtained a pecuniary gain in the amount of HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL , and the value of the restrained property does not justify [ his ] argument that the value of the restrained property listed in the operative part of the impugned decision significantly surpasses the [ possible confiscation ] claim . ”

On DATE the applicant lodged a constitutional complaint before ORG ( Ustavni sud PERSON ) challenging the decisions of the lower courts on the seizure of his property . He relied on the PERSON and the ORG ’s case - law , contending that the decision on the seizure of his property had been disproportionate .

On DATE the applicant requested ORG that the seizure order be lifted or reassessed . He argued that there were other less restrictive means of securing the enforcement of a possible confiscation order , and contended that it had not been alleged that the seized property had been obtained by a criminal activity . He also urged ORG to make an assessment of the value of the seized property so as to limit the scope of the restraint to the value of the pecuniary gain allegedly obtained . He also contended that the value of the seized property significantly surpassed the alleged pecuniary gain obtained , which had endangered the normal functioning of his business .

On DATE ORG declared the applicant ’s constitutional complaint of CARDINAL DATE ( see paragraph CARDINAL above ) inadmissible on the ground that the decisions of the lower courts did not concern a decision on the merits of any of the applicant ’s rights or obligations or any criminal charge against him .

On DATE a CARDINAL - judge panel of ORG dismissed the applicant ’s request that the seizure order be lifted or reassessed ( see paragraph CARDINAL above ) . The relevant part of the decision reads :

“ The request for the lifting of the restraint and the request for its modification are unfounded .

It follows from the final indictment of the GPE State Attorney ’s Office ... that there is a reasonable suspicion that the accused PERSON , by the offences listed in count CARDINAL ( a ) , ( b ) and ( c ) [ of the indictment ] , obtained pecuniary gain in the total amount of HRK CARDINAL .

Since the [ seizure order ] is based , under section CARDINAL § CARDINAL of the Confiscation of the Proceeds of Crime Act , on the presumption that there is a danger that the confiscation of the proceeds from crime would not be enforceable or that its enforcement would be difficult without ordering of a restraint measure , it was decided as noted in the operative part of this decision . ”

On DATE the applicant challenged this decision by lodging an appeal before ORG . He complained that he had not had an effective opportunity to challenge the seizure order in a hearing before ORG and that the seizure of his property had been disproportionate and thus contrary to LAW . The applicant further stressed that it was unclear for which amount of the alleged pecuniary gain the seizure order had been made given that ORG had only referred to CARDINAL count of the indictment , alleging that he had obtained pecuniary gain in the amount of HRK CARDINAL , whereas it had ignored the other count of the indictment according to which he had obtained a pecuniary gain in the amount of HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL . The applicant , therefore , assuming that the overall amount of the pecuniary gain for which the seizure order had been made corresponded to the sum of the CARDINAL amounts noted ( approximately ORG CARDINAL ) , submitted a detailed estimate value of each item of the restrained property based on the information from a publicly available Internet portal on the market values of real properties in GPE . According to this estimate , the total value of the seized property corresponded to some ORG CARDINAL . The applicant thus contended that there was a gross disproportionality between the alleged pecuniary gain obtained by the commission of the offences referred to in the indictment and the value of the seized property , which imposed on him an excessive individual burden .

On DATE ORG , acting as the appeal court , dismissed the applicant ’s appeal by noting the following :

“ The same complaints had been made against the decision of DATE ... and then it was answered to the appellant that the principle of proportionality had not been breached ... By a speculative assessment of the value of the real properties listed in the appeal , the appellant did not manage to put into doubt the findings of the first - instance court .

The appellant ’s argument that it is not clear from the impugned decision which amount of the pecuniary gain he has allegedly obtained is unfounded .

The first - instance court stated in the impugned decision that the accused had obtained a pecuniary gain in the amount of HRK CARDINAL,CARDINAL,CARDINAL , as referred to in count CARDINAL of the indictment , but it failed to cite the amount referred to in count CARDINAL of the indictment of HRK CARDINAL,CARDINAL,CARDINAL.CARDINAL , which is as such , in view of the status of the case , uncontested . There is therefore no doubt that the [ seizure order ] was made in respect of the overall amount of the possible pecuniary gain , as it was explained in the first decision by which the measure was ordered . ”

The applicant challenged this decision before ORG and on DATE ORG declared it inadmissible , reiterating its previous reasoning ( see paragraph CARDINAL above ) .

At a closing hearing in the criminal proceedings before ORG on DATE , the applicant again requested that the seizure order be lifted .

On DATE ORG found the applicant guilty on the charges of misuse of the company PERSON ’s assets and facilities by which he had allegedly obtained a pecuniary gain in the amount of HRK CARDINAL ( approximately EUR CARDINAL,CARDINAL ) , and acquitted him on charges of misappropriation of company shares and CARDINAL alleged event of misuse of the company ORG ’s assets and facilities . The applicant was sentenced to CARDINAL years’ imprisonment and confiscation of the amount of HRK CARDINAL . The case is pending on appeal before ORG .

On DATE ORG dismissed the applicant ’s request for lifting of the seizure order made at the hearing on DATE ( see paragraph CARDINAL above ) as ill - founded on the ground that the seizure of the property could be maintained for DATE following the relevant procedures related to the finality of the judgment . As the judgment had not become final , ORG considered that there was no ground for lifting of the seizure order .