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);Pecuniary and non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Helen Keller;Helena Jäderblom;Luis López Guerra;Pere Pastor Vilanova

The applicant was born in DATE and lives in GPE .

In DATE the applicant started attending public pre - school educational institution no . DATE ( “ the nursery school ” ) . His teachers were Ms K. , PERSON and an assistant teacher , PERSON .

In DATE the applicant ’s parents noticed a change in his behaviour . In particular , he became nervous and unwilling to go to nursery school . During DATE the applicant ’s physiological state significantly ameliorated and his mood returned to normal . However , as soon as he resumed nursery school in DATE he again became nervous and frightened of the dark and noises . He resisted going to school and refused to discuss school with his parents or sisters .

On DATE , when picking him up from the nursery school , the applicant ’s mother noticed that his eyes were twitching and that he had a bruise on his left temple . The applicant complained that his neck and eyes were aching . The teacher , PERSON , told the applicant ’s mother that the children had been given eye drops containing an antibiotic . According to her , one of the children in the class had an eye infection and it was necessary to take preventive measures against its spreading among the children .

On DATE the applicant was examined by an ophthalmologist , who noted a bruise on his temple . She found no symptoms of any eye infection or disease . She recommended a consultation with a neurologist in order to verify whether the eye tics could have neurological causes .

On DATE the applicant started to display mouth tics .

On DATE the applicant ’s mother lodged a complaint with the local department of ORG Well - being . She complained that the teachers at nursery school no . DATE had administered eye treatment to her son without her consent and had used physical force against him . Her son had developed nervous tics as a result .

On DATE the applicant was examined by a neurologist and was diagnosed with hyperkinesia ( a state of excessive restlessness which is manifested in a wide variety of disorders that affect the ability to control motor movement and which is mainly psychological in nature ) .

On DATE the applicant ’s mother complained to the local department of education about the incident of DATE and asked that the applicant be transferred to another nursery school .

By a letter of CARDINAL DATE the local department of ORG informed the applicant ’s mother that the director of nursery school no . CARDINAL had been disciplined for breaching sanitary standards .

By a letter of CARDINAL DATE the local department of education replied to the applicant ’s mother , stating that the facts described in her complaint had been confirmed in part and that the director of the nursery school , teachers PERSON and medical nurse PERSON . had been disciplined . It had been decided to transfer the applicant to another public nursery school .

When the applicant learnt that he would not have to return to nursery school no . DATE , he was happy and told his parents that he had been mistreated by Ms K. and PERSON In particular , he had been punished for a failure to sleep during the afternoon sleeping hours . Sometimes he had been made to lie on a folding bed in the toilets . The lights in the toilets had been switched off and the teachers had told him that he would be eaten by rats . The applicant had felt very frightened as he had once seen a rat in the toilets . On other occasions he had been forced to stand in the entrance hall , barefoot and wearing only his underpants , for the entire duration of the sleeping hours . He had been very cold . The applicant had also on occasions been hit on the back with a fist . On CARDINAL occasion the teachers had taped his mouth shut with sellotape . After he had started to suffocate , he had tried to remove the sellotape . The teachers had then taped his hands behind his back . Some other children had also been subjected to similar punishments . They had been threatened that if they complained to their parents about the teachers they would be punished .

The applicant also told his parents in detail about what had happened on DATE . He had been given eye drops twice . In TIME PERSON had bent his head back with such force that his neck had ached . In the afternoon , she had sat on the applicant ’s legs and tried to force his eyes open with her hands . Frightened , the applicant had resisted . PERSON had then slapped his face .

On DATE the applicant ’s father was questioned by the police in connection with a complaint lodged by PERSON and PERSON . that he had assaulted them . The applicant ’s father stated to the police that his conflict with PERSON and PERSON . had arisen because his DATE son had been mistreated by the staff of the nursery school . He denied assaulting them . The criminal proceedings against the applicant ’s father were discontinued after CARDINAL of the nursery school staff members stated in writing that Ms Pt . had attempted to convince her and other staff members to falsely accuse the applicant ’s father of assaulting PERSON and PERSON .

On DATE the local department of education informed the applicant ’s mother that the director of nursery school no . CARDINAL had been dismissed .

By a letter of CARDINAL DATE the local department of education informed the applicant ’s father that an internal inquiry had established that teachers PERSON and PERSON had made some of the children sleep outside the sleeping quarters . That fact , although denied by PERSON and PERSON , had been confirmed by assistant teacher PERSON . and by the grandmother of CARDINAL of the children . PERSON and PERSON had been disciplined .

By a letter of CARDINAL DATE the Vice - Governor of GPE informed the applicant ’s mother that medical nurse PERSON . had been disciplined .

On DATE the applicant ’s mother sued nursery school no . CARDINAL for compensation for the damage sustained by the applicant to his health .

On DATE the ORG of GPE approved a friendly settlement agreement between the applicant ’s mother and nursery school no . DATE . Under that agreement , the nursery school was to pay the applicant ’s mother MONEY ( RUB ) ( MONEY ( ORG ) ) in compensation for medical expenses .

On DATE the applicant ’s mother complained to the ORG district prosecutor ’s office about her son ’s ill - treatment by the staff of nursery school no . DATE . She described the incident of DATE , complained that during TIME her son had been occasionally locked in the toilets with the lights off , and submitted that as a result of such treatment he had developed nervous tics . She also submitted that she had not received an adequate response to her complaints to the local department of education and the local department of ORG Well - being .

NORP By letter of DATE the ORG district prosecutor ’s office informed the applicant ’s mother that an inquiry had been opened into her allegations of ill - treatment . It also noted that the local department of education had failed in its obligation under section CARDINAL of LAW to inform the district prosecutor ’s office of the applicant ’s ill - treatment ( see paragraph CARDINAL below ) .

On DATE the investigator questioned several of the parents of the children who had attended nursery school no . CARDINAL with the applicant . Some of them stated that their children had never complained about being mistreated by teachers PERSON or PERSON stated that their children had told them about being locked in the entrance hall or in the toilets , where they had on occasion seen rats . They also confirmed that on DATE eye drops had been given to the children without the GPE consent .

Assistant teacher PERSON . stated to the investigator that on DATE CARDINAL children had shown symptoms of eye infection . Teacher PERSON had consulted medical nurse PERSON . , who had decided to give eye drops to all children in order to prevent the spread of the infection . The GPE consent had not been obtained . The drops had been given by the teacher herself rather than by the medical nurse . PERSON had used physical force against those children who had resisted . Many of them had been frightened and had cried . Immediately after that the applicant ’s eyes had started twitching . PERSON . also stated that both PERSON and PERSON had many times made certain children , including the applicant , sleep on folding beds in the toilets or in the entrance hall . PERSON and PERSON had often shouted at the children and had punished them by sending them to the toilets . She had once seen a child tied with string to his chair .

The investigator also questioned PERSON , who denied mistreating the applicant or other children . She stated that on DATE the children had been given eye drops by the medical nurse . The children had submitted to the treatment without any resistance or stress . No physical force had been used against the applicant or other children . The applicant had already had nervous tics before DATE .

On an unspecified date at DATE the applicant was questioned by the investigator . The applicant ’s mother and a psychologist were present during the questioning . The applicant described the incident of DATE . He also stated that he and some other children had often been made to sleep on a folding bed in the entrance hall or in the toilets with the lights turned off or left standing in the entrance hall with few clothes on . They had been frightened and cold .

On DATE the ORG district prosecutor ’s office refused to open a criminal investigation against the teachers of nursery school no . DATE , finding no evidence of a criminal offence . The applicant ’s parents were not given a copy of that decision .

On DATE the ORG district prosecutor ’s office cancelled its decision of DATE and resumed the preinvestigation inquiry .

The investigator then questioned PERSON and medical nurse Ms Pt . , who gave the same testimony as PERSON

During DATE the ORG district prosecutor ’s office issued CARDINAL more decisions ( on DATE and DATE respectively ) refusing to open a criminal investigation against the teachers of nursery school no . DATE on the ground that there was no evidence of a criminal offence having been committed .

The applicant ’s mother challenged those decisions before ORG . However , before ORG could examine her complaints against the decisions , the ORG district prosecutor ’s office annulled them ( on DATE and DATE respectively ) and resumed the pre - investigation inquiry . No investigative measures were performed during this DATE period .

On DATE the applicant ’s medical documents were examined by a child psychiatrist at the request of the applicant ’s mother . The psychiatrist found that before DATE the applicant had not suffered from any neurological or psychiatric disorders . He had , however , on occasions suffered allergic reactions . The psychiatrist further noted that in DATE the applicant had been subjected to a prolonged , psychologically traumatic experience at the nursery school . Against the background of that prolonged , traumatic experience , the incident of DATE involving the use of violence had served as a trigger for his present neurological disorder . An allergic reaction to the eye drops could have also contributed to the development of the disorder . The psychiatrist concluded that there had been a causal link between the traumatic experience suffered by the applicant in the nursery school from DATE and his persistent neurological disorder .

On DATE the ORG district prosecutor ’s office noted that the pre - investigation inquiry was incomplete and that it was necessary to question the children who had attended the nursery school with the applicant and their parents , to obtain an expert opinion on the contraindications and side - effects of the eye drops given to the children , and to question other teachers at the nursery school .

On DATE the case was transferred to the ORG district police department for further pre - investigation inquiry .

In DATE the investigator questioned the parents of some of the children who had attended the nursery school with the applicant . They stated that they did not have any complaints against teachers PERSON and PERSON of them gave the investigator permission to question their children .

The investigator also questioned CARDINAL of the teachers at nursery school no . CARDINAL . The teacher stated that she could not give any useful information .

NORP On DATE the ORG district police department refused to open a criminal investigation against PERSON and PERSON , having found no evidence of a criminal offence . The applicant ’s parents were informed about that decision on DATE and received a copy of it on an unspecified later date .

On DATE , after being criticised by the GPE prosecutor ’s office for delays in the conduct of the pre - investigation inquiry and for its ineffectiveness , the ORG district police department cancelled the decision of CARDINAL DATE and resumed the preinvestigation inquiry .

On DATE , in reply to a complaint by the applicant ’s mother , the GPE prosecutor ’s office again criticised the ORG district prosecutor ’s office for delays in the conduct of the pre - investigation inquiry and for its ineffectiveness .

On DATE the ORG district police department informed the staff of nursery school no . CARDINAL that criminal proceedings into the applicant ’s allegations of ill - treatment would not be opened because the prosecution had become time - barred .

On DATE the ORG district police department refused to open a criminal investigation into the allegations of ill - treatment , finding no evidence of a criminal offence . On DATE the ORG district prosecutor ’s office quashed that decision and ordered a further inquiry .

On DATE the ORG district police department refused to open a criminal investigation against PERSON It found that , although there was evidence that PERSON actions amounted to cruel treatment of minors , an offence under LAW , the criminal proceedings had become time - barred .

On DATE the GPE prosecutor ’s office quashed the decision of DATE , finding that the inquiry had been incomplete . It noted that it was necessary to question the children who had attended the nursery school with the applicant and with their parents ; to establish the seriousness of the damage sustained by the applicant to his health ; to obtain and analyse the documents regulating the actions of the staff of public nursery schools ; and to investigate PERSON actions .

On DATE the investigator questioned the father of a child who had attended the nursery school with the applicant . He stated that his son had never complained of being ill - treated by the nursery school teachers .

On DATE and then again on DATE the ORG district police department refused to open a criminal investigation against Ms K. on the ground that there was no evidence of a criminal offence having been committed . Those decisions were cancelled on unspecified dates .

In reply to new complaints lodged by the applicant ’s mother , on DATE the GPE prosecutor ’s office again criticised the ORG district prosecutor ’s office for the delays in the conduct of the pre - investigation inquiry and for its ineffectiveness .

On DATE the investigator questioned the mother of another child who had attended the nursery school with the applicant . She stated that her daughter had never been mistreated by the staff of the nursery school .

On DATE the ORG district police department opened a criminal investigation against PERSON and PERSON

On DATE the applicant was granted the procedural status of victim . The applicant ’s mother was recognised as his representative .

In the course of the criminal investigation , which lasted DATE , the police department collected the following evidence .

On DATE the applicant was questioned by the investigator in the presence of his counsel , his mother and a teacher . The applicant stated that Ms K. and PERSON had often punished him and some other children . In particular , on many occasions they had made him sleep in the toilets and had threatened that he would be eaten by rats . PERSON had once taped his mouth and hands with sellotape . She had also slapped him on the face when he had refused to open his eyes to receive eye drops . On another occasion PERSON had splashed paint over his friend ’s face because she had not liked his drawings . The applicant also stated that Ms PERSON and PERSON had forbidden him from telling his parents about those punishments .

On DATE the applicant was taken by the investigator to nursery school no . CARDINAL , where he repeated his previous statements . In particular , he showed the investigator the spot in the toilets where his folding bed had been placed and the place in the entrance hall where he and other children had been forced to stand wearing only their underwear and Tshirts and keeping their arms up and apart during the entire duration of the sleeping hours . He further showed the investigator where and how he had been bound with sellotape and where and how he had been given eye drops . He also showed the investigator a closet in which he had been locked in the dark . Lastly , he told the investigator that if he did not sleep during the sleeping hours PERSON and PERSON would hold his head against the bed until it started to ache . The applicant ’s lawyer , the applicant ’s mother , a psychologist and a teacher were present during the questioning .

On DATE the applicant was questioned again . He repeated his previous statements . He also added that PERSON had hit him on the back .

PERSON was questioned by the investigator on DATE and CARDINAL DATE , CARDINAL DATE and DATE . She initially cited her right to remain silent and refused to testify . She then denied ill - treating the applicant or other children . She stated that the applicant had had nervous tics since DATE . During the last round of questioning she asked that the criminal proceedings be discontinued as time - barred .

PERSON was questioned on DATE and DATE and DATE . She also initially refused to testify . She then denied illtreating the applicant or other children . She stated that the applicant had had nervous tics since DATE and that assistant teacher PERSON . had given false testimony against her in revenge for critical remarks she had made in respect of Ms Ch . ’s unsatisfactory work . During the last round of questioning she again refused to testify and asked that the criminal proceedings be discontinued as time - barred .

On DATE medical nurse PERSON . was questioned . She stated that she had been the one who had administered eye drops to the children on DATE because CARDINAL of them had had an eye infection . When she had learned from the applicant ’s mother that the applicant had eye tics , she had talked to PERSON and PERSON , who had affirmed that the applicant had had nervous tics before DATE . She had never seen PERSON and Ms P. mistreating the children . However , when questioned on DATE and DATE CARDINAL PERSON . stated that she had lied during the previous rounds of questioning about having given the eye drops to the children on DATE . In fact the eye drops had been given by PERSON without her ( that is to say PERSON ’s ) permission . She had lied about that fact because she had had felt sorry for PERSON and had not wanted her to be punished .

On DATE and DATE assistant teacher PERSON . was questioned . She stated that on DATE PERSON had given eye drops to the children on the advice of the medical nurse . PERSON had used physical force against those children who had resisted . Many of them had been frightened and had cried . Immediately after that the applicant ’s eyes had started twitching . PERSON . also stated that on many occasions she had seen PERSON and PERSON make the applicant and some other children sleep on folding beds in the toilets or in the entrance hall . PERSON and PERSON had often shouted at the children and had punished them by locking them up in the toilets . She had once seen a child tied with string to his chair . She added that she had never talked to the applicant ’s parents except at the nursery school .

On DATE , CARDINAL and DATE , and CARDINAL and DATE the investigator held confrontations between Ms Ch . and PERSON , between PERSON . and PERSON , and PERSON . and PERSON . They all reiterated their previous statements .

In DATE and DATE , DATE and DATE and DATE the investigator questioned CARDINAL teachers from nursery school no . CARDINAL . They stated that they had never seen PERSON or PERSON mistreating the children . Some of them also stated that the applicant had already had nervous tics before the incident of DATE . CARDINAL of them stated that assistant teacher PERSON . had sometimes taken the applicant home in the evenings because she lived in the same block of flats as the applicant . Ms Ch . had often shouted at the children in the nursery school and the children had been afraid of her .

On DATE the investigator questioned the former director of nursery school no . DATE . She stated that PERSON and PERSON had been competent and affectionate teachers who had been appreciated by the children and their parents . She had never received any complaints about them .

On DATE and DATE the investigator questioned the then director of nursery school no . DATE , who had taken up that position in DATE . She gave positive references for PERSON and PERSON She stated that she had never seen them mistreating the children or received any complaints from the parents in respect of her .

In DATE , DATE and DATE , DATE and DATE , and DATE the investigator questioned the parents of several children who had attended the nursery school with the applicant . Most of them stated that their children had never complained of having been mistreated by Ms K. or Ms P. One of them stated that her son had on occasions been punished by the teachers ; in particular he had been made to sleep outside DATE , in the changing room . Her son had also told her that he had seen a rat in the toilets . She had , moreover , seen some children carrying heavy folding beds from CARDINAL place to another upon the instruction of the teachers . Lastly , she stated that her son had told her on DATE that PERSON had used force against the applicant ( who had resisted and cried ) when administering eye drops to him . Another parent stated that PERSON had locked her son up in the toilets on QUANTITY occasions and had once made him sleep outside DATE , near the toilets . Another parent stated that her daughter had told her about the applicant and another boy being made to sleep separately from the others . She however did not know the details .

DATE and DATE the investigator questioned CARDINAL of the children who had attended the nursery school with the applicant . They all stated that PERSON and PERSON had been kind to them and had never mistreated them or other children .

The applicant ’s mother was questioned on DATE and DATE and on DATE . She described the applicant ’s change in behaviour and mood after he had started to attend nursery school . She described the incident of DATE and her son ’s subsequent development of nervous tics . She also related a conversation she had had with her son during which he had for the first time told her about being mistreated by PERSON and PERSON also stated that her son continued to suffer from nervous tics and to undergo treatment for them . Lastly , she told the investigator that although PERSON . ’s sister was her neighbour she did not have any friendly relationship with her .

DATE . On DATE and CARDINAL DATE the applicant ’s father was questioned . He made similar submissions as the applicant ’s mother .

On DATE and CARDINAL DATE the investigator held confrontations between the applicant ’s mother and CARDINAL of those teachers at the nursery school who had already been questioned in DATE . They both reiterated their previous submissions .

On DATE and CARDINAL DATE the investigator held confrontations between PERSON . and one of the teachers of the nursery school . Ms PERSON . confirmed her previous submissions , while the teacher stated that PERSON and PERSON had never mistreated the children , that PERSON . had shouted at the children , that Ms. PERSON . had sometimes babysat the applicant and that the applicant had had nervous tics before DATE .

On DATE the investigator questioned the applicant ’s neighbour who lived on the same landing , who stated that the applicant ’s tics had started in DATE . She also stated that the applicant ’s parents were on good terms with PERSON . ’s sister but that she had not noticed any kind of relationship between the applicant ’s parents and PERSON . herself .

On DATE the applicant ’s mother produced material from the civil case file and asked that it be included in the criminal case file . In particular , she asked for the inclusion of the written statement by CARDINAL of the staff members of nursery school no . DATE ( see paragraph CARDINAL above ) that medical nurse PERSON . had attempted to convince her and other staff members to give false testimony against the applicant ’s family . On DATE the investigator refused the requests , finding that the documents from the civil case file were irrelevant to the criminal case .

On DATE a panel of psychiatrists and psychologists examined the applicant and issued an expert opinion . They found that the applicant continued to suffer from nervous tics . Given that such tics could have had both organic and neurological causes , it was impossible to establish a causal link between the events of DATE and the applicant ’s current neurological disorder . Given the applicant ’s age at the material time and the time that had passed since the events in question , the applicant could not accurately recall those events . He was therefore psychologically incapable of testifying within the framework of the criminal proceedings .

On DATE a panel of medical experts examined the applicant ’s medical records and issued an expert opinion . They noted that his nervous tics could have had both organic and neurological causes . It was therefore impossible to establish a causal link between the events of DATE and the applicant ’s current neurologic disorder .

On DATE a panel of experts in psychiatry and psychology examined the applicant and analysed his medical records . When interviewed by the experts , the applicant stated that he wanted to forget about what had happened to him in the nursery school but he was constantly being reminded of those events because of the investigation . He affirmed that his tics were aggravated each time that he remembered , or had to discuss , the treatment to which he had been subjected in the nursery school . The experts confirmed that the aggravation of the tics was indeed related to the applicant ’s memories of the nursery school . The experts found that before DATE the applicant had not suffered from any psychiatric disorder . There had been a causal link between his nervous disorder and the prolonged , psychologically traumatic experience to which he had been subjected in the nursery school from DATE . DATE he still continued to suffer from nervous tics . He had therefore suffered damage of medium severity to his health . The experts further noted that the applicant did not suffer from any memory or intellectual disorder and that his intellectual development corresponded to his age ; he was therefore capable of understanding and relating the relevant events accurately . However , his ability to remember the events had decreased with time . If in DATE he had been still capable of remembering the events in question accurately , with the passage of time his memory of the events had become unrealistic and distorted . His statements – both in DATE and at that current moment DATE could not therefore be relied upon in the criminal proceedings . Moreover , given that each discussion of the relevant events revived his memories of the traumatic experience and prevented him from moving on , his further participation in investigative measures was inadvisable .

DATE . On DATE and CARDINAL DATE the investigator questioned a psychiatric expert chosen by the applicant ’s mother . The expert stated that she disagreed in part with the expert opinion of DATE . In her opinion , the applicant had suffered severe damage ( rather than damage of medium severity ) to his health .

On DATE and DATE and DATE and CARDINAL DATE the investigator questioned some of the experts who had participated in the expert examinations mentioned above . They confirmed the findings contained in the respective expert opinions .

On DATE the psychologist treating the applicant stated to the investigator that the applicant had been suffering from a neurological disorder since DATE . His health had improved as a result of the treatment .

On DATE the applicant ’s mother submitted to the investigator a copy of a medical certificate showing that the applicant did not have any anomalies in the brain . She argued that the certificate proved that the applicant ’s neurological disorder was psychological rather than organic in nature .

On DATE the investigator questioned a child psychiatrist who , after examining the applicant ’s medical records , stated that there was a causal link between the traumatic experience suffered by the applicant in the nursery school from DATE until DATE and his persistent neurological disorder .

On DATE a psychiatrist and a psychologist analysed the applicant ’s medical records at the applicant ’s mother ’s request . They found that in the absence of any anomalies in the applicant ’s brain , his neurological disorder could not be organic in nature . It was highly probable that they had been caused by psychological trauma . Given that the nervous tics had appeared for the first time in DATE , there was a causal link between the ill - treatment in the nursery school to which the applicant had been subjected from DATE until DATE and his nervous tics . Finally , the experts noted that the applicant was of normal intellectual development and did not suffer from any memory or intellectual disorders . His statements to the investigator had been detailed and consistent . There were therefore no reasons to consider that the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings .

The investigation was suspended from CARDINAL until DATE , from CARDINAL until DATE , from CARDINAL until DATE , from DATE until CARDINAL DATE and from DATE until DATE ; from DATE until DATE , and from DATE until DATE ; from DATE until DATE , from DATE until DATE , from CARDINAL until DATE , from DATE until DATE , and from CARDINAL until DATE ; and from DATE until DATE . The decisions to suspend the investigation were taken by the investigator on the basis of medical certificates showing that PERSON was on maternity leave and could not therefore participate in investigative measures . All those decisions were annulled by the ORG superior as unlawful .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and Ms. PERSON , finding that their actions in the period from DATE amounted to battery or other violent acts causing physical pain and cruel treatment of minors , offences under LAW and CARDINAL § CARDINAL of LAW . The prosecution of those offences was time - barred . There was insufficient evidence of premeditated infliction of damage of medium severity to health , an offence under LAW . Moreover , according to the experts , the applicant could not remember the relevant events accurately and was psychologically incapable of testifying within the framework of the criminal proceedings .

On DATE the ORG district prosecutor ’s office quashed the decision of CARDINAL DATE , finding that the investigation was incomplete , and ordered further investigative measures .

On DATE the applicant ’s mother complained to the ORG district prosecutor ’s office that , despite her having lodged numerous requests , she had still not been given copies of the decisions of CARDINAL and DATE .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and Ms. PERSON for the same reasons as those set out in the decision of CARDINAL DATE .

On DATE the ORG found that the decision of CARDINAL DATE had been unlawful because the findings contained in that decision had been contradictory . It held , in particular , that in order to resolve those contradictions it was necessary to perform a new psychiatric examination of the applicant .

On DATE the ORG district prosecutor ’s office quashed the decision of CARDINAL DATE and ordered further investigative measures .

By a letter of CARDINAL DATE the GPE prosecutor ’s office criticised the ORG district prosecutor ’s office for the delays and the ineffectiveness of the investigation . On DATE the ORG district prosecutor ’s office gave instructions to the ORG district police department as regards further investigative measures to be performed .

On DATE PERSON asked the investigator to discontinue the proceedings . She was suspected of inflicting damage to health of medium severity , an offence under LAW . The statutory limitation period for that offence was DATE . The proceedings had therefore become time - barred . On DATE the prosecutor refused PERSON request , finding that the previous expert examinations had yielded contradictory results . It was therefore necessary for a new expert examination to be performed in order to establish the severity of the damage sustained to the health of the applicant . The investigation could not therefore be discontinued .

On DATE PERSON also asked the investigator to discontinue investigations as time - barred . On DATE the prosecutor refused the request for the same reasons as those for which PERSON similar request had been refused .

On DATE ORG examined Ms K. ’s complaint against the decision of CARDINAL DATE and dismissed it . It found that it was necessary for an additional expert examination to be performed in order to establish the severity of the damage sustained by the applicant to his health . If experts were to find that the applicant had sustained severe damage to his health , the limitation period would be DATE and the proceedings would not have become time - barred .

On DATE PERSON again asked the investigator to discontinue the investigation because the proceedings had become time - barred . On DATE the investigator refused the request for the same reasons as those above .

On DATE the investigator found that after DATE the investigation had been extended in breach of the procedure and time - limits provided by law . The investigative measures carried out DATE and DATE had therefore been unlawful and all evidence collected during that period was inadmissible .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and PERSON , finding that there was insufficient evidence of a criminal offence under LAW . It noted that CARDINAL witnesses had confirmed that illtreatment had occurred : the applicant , the applicant ’s mother , PERSON . and PERSON . ( in her statements of DATE ) . The experts had found that , because of his young age at the material time , the applicant ’s description of the events was unreliable and his further participation in investigative measures was inadvisable . There were therefore doubts about the credibility of his statements . The applicant ’s mother ’s statements were equally unreliable because she had learned about the events from the applicant . Ms Pt . ’s statements of CARDINAL DATE contradicted her previous statements and statements by other witnesses . They could not therefore be considered reliable either . The expert opinions establishing a causal link between the alleged ill - treatment and the applicant ’s neurological disorder could not serve as evidence of ill - treatment because it was not within the experts’ remit to establish whether or not ill - treatment had occurred . The expert opinions had been made on the assumption that such ill - treatment had indeed taken place . PERSON . ’s statements therefore constituted the only evidence of such ill - treatment . The investigator considered that those statements were insufficient to prove that ill - treatment had indeed taken place . The investigator further noted that all evidence collected between QUANTITY DATE and DATE had been declared inadmissible . Given that that evidence did not contain any proof of ill - treatment , it was not necessary to collect it again .

The applicant ’s parents learned about that decision on DATE and received a copy of it on CARDINAL DATE .

On DATE the applicant ’s mother challenged the ORG district police department ’s decision of CARDINAL DATE to discontinue the criminal proceedings before ORG against PERSON and PERSON On DATE the applicant ’s mother also challenged that decision before the St GPE prosecutor ’s office .

On DATE the GPE prosecutor ’s office found that the decision of DATE had been lawful .

On DATE ORG rejected the complaint lodged by the applicant ’s mother on DATE . It found that the investigation had been thorough and effective . The breaches of procedure committed during the investigation – such as the failure to promptly notify the applicant ’s mother about certain procedural decisions taken by the investigator or the investigator ’s failure to comply with the prosecutor ’s instructions – were insufficiently serious as to warrant the quashing of the decision of CARDINAL DATE .

On DATE GPE quashed the decision of CARDINAL DATE on appeal and found that the decision of CARDINAL DATE to discontinue the investigation had been unlawful . It found that the investigation had been ineffective . In particular , given that all evidence collected between PERSON and DATE had been declared inadmissible , it was necessary to undertake anew the investigative measures carried out during that period and to carry out further investigative measures . The court also noted that although , according to the experts , the statements that the applicant had given after DATE were unreliable , the statements that he had given before then could be taken into account in the assessment of evidence . ORG also criticised ORG for the delays in the examination of the complaint lodged by the applicant ’s mother on DATE and the resulting excessive length of the judicial proceedings .

On DATE the applicant ’s mother applied to the investigator , asking that Ms P. and PERSON be charged with the premeditated infliction of severe damage to health . The investigator refused her request , finding that there was no evidence of the premeditated infliction of severe damage to health .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and PERSON , finding that their actions did not amount to a criminal offence under LAW .

On DATE the applicant ’s mother challenged that decision before the GPE prosecutor ’s office , submitting that the investigation had been incomplete . On DATE the GPE prosecutor ’s office found that the decision of DATE to discontinue the criminal proceedings had been lawful .

On CARDINAL DATE ORG held that the decision of DATE had been unlawful , finding that the investigator ’s assessment of evidence had been selective and that he had disregarded some facts and evidence ( such as a bruise on the applicant ’s face ) , some witness statements , and expert opinions . It also found that the investigation had been excessively long .

On DATE the ORG district police department annulled the decision of DATE and resumed the investigation . After CARDINAL written requests for a copy of that decision , the applicant eventually received it on DATE .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and PERSON The investigator found that although they had indeed given eye drops to the applicant , thereby causing damage of medium severity to his health , there was no evidence of intent to cause such damage . The infliction of damage to health had not therefore been intentional or premeditated . The police department further added that although the applicant had indeed had a bruise on his face , it was not possible to establish how he had received that bruise . The applicant ’s testimony was unreliable due to his young age and mental development at the time of his giving it , while the allegations of illtreatment made by the applicant ’s mother and by PERSON . had been countered by the statements of all other witnesses DATE namely the staff of the nursery school and the parents of other children DATE that PERSON and PERSON had never mistreated the applicant or other children . The investigator concluded that the evidence collected was contradictory and that it was not possible to resolve that contradiction . Any further investigative measures would be useless . Given that suspects should benefit from any doubt , it could not be found that PERSON and PERSON actions amounted to a criminal offence under LAW .

On DATE the GPE prosecutor ’s office annulled the decision of DATE , finding that the investigation had been ineffective and incomplete . In particular , the criminal proceedings had been unlawfully discontinued even though it had been established that PERSON and PERSON had mistreated the applicant and had caused damage to his health .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and PERSON for the same reasons as those given in the decision of DATE .

On DATE the GPE prosecutor ’s office annulled the decision of DATE , finding that the investigator had not complied with the prosecutor ’s decision of CARDINAL DATE .

On DATE the ORG district police department discontinued the criminal proceedings against PERSON and PERSON , repeating verbatim the decision of DATE .

On DATE the ORG district police department again refused to open criminal proceedings against PERSON and PERSON under LAW of LAW ( cruel treatment of minors ) , finding that the prosecution had become time - barred .

NORP The applicant ’s mother several times asked the investigator to declare the expert opinions of DATE and CARDINAL DATE inadmissible as evidence . She argued in particular that the panel of experts of DATE had not included an expert in child psychiatry . The investigator refused the requests made by the applicant ’s mother , finding that the expert opinions of DATE and CARDINAL DATE had been obtained in accordance with the procedure prescribed by law and had contained clear findings .

NORP The applicant ’s mother lodged numerous complaints about the alleged ineffectiveness of the investigation with the ORG district police department , the ORG district prosecutor ’s office , the GPE prosecutor ’s office , ORG and the ORG and FAC of GPE . She complained that the investigation had been flawed by delays , in particular on account of the numerous unlawful suspensions of the investigation , and that she had often been denied access to the case file . She also complained that , although sufficient evidence of ill - treatment had been gathered , PERSON and PERSON had still not been charged with a criminal offence . She further argued that the applicant had sustained severe damage to his health ( rather than damage of medium severity ) as a result of the ill - treatment he had suffered . She also challenged the investigator ’s refusals to declare the expert opinions of DATE and CARDINAL DATE inadmissible as evidence .

By letters of CARDINAL and DATE the GPE prosecutor ’s office informed the applicant ’s mother that the investigator and the officials of the ORG district prosecutor ’s office responsible for supervising the case had been disciplined for the delays during the investigation and its ineffectiveness .

On DATE the ORG district prosecutor ’s office noted that the investigation had been conducted with serious delays and shortcomings . In particular , the investigator had not performed all requisite investigative measures , such as an additional medical examination of the applicant .

On DATE the ORG found that it had no authority to assess whether the evidence was sufficient for charges to be brought . It was for the investigator to assess the collected evidence and to decide whether charges were to be brought .

On DATE the ORG district prosecutor ’s office found that the investigator ’s refusals ( see paragraph CARDINAL above ) to declare the expert opinions of DATE and CARDINAL DATE inadmissible as evidence had been lawful .

On DATE the ORG found that the rights of the applicant ’s mother had indeed been breached by the failure to provide her with copies of the numerous decisions to suspend the investigation . However , given that all of those decisions had been annulled , it was not necessary to examine the applicant ’s complaint relating to those decisions . Moreover , given that the decisions had been annulled by the investigator ’s superiors , the court concluded that those superiors had exercised effective supervision over the course of the investigation . On DATE GPE quashed that decision on appeal for procedural defects .

On DATE the ORG found that the investigator had still not organised an additional expert examination of the applicant , even though he had been instructed to do so in DATE and again in DATE . It also found that the applicant ’s mother had been unlawfully denied access to some documents in the case file . On DATE GPE quashed that decision on appeal for procedural defects .

On DATE the ORG of GPE found that the complaints lodged by the applicant ’s mother about the delays and the ineffectiveness of the investigation were wellfounded . However , given that on DATE the investigation had been discontinued for lack of evidence of a criminal offence , they had to be dismissed . On DATE GPE quashed that decision on appeal . It found that some of the complaints lodged by the applicant ’s mother had not been examined , that the decision had been based on certain documents that had not been examined during the hearing and that the court , even though it had found some of the complaints to be wellfounded , had nevertheless dismissed them .

On DATE the ORG found that the investigator ’s decisions issued DATE and DATE to suspend the investigation had been unlawful . The rights of the applicant ’s mother had , moreover , been breached by the investigator ’s failure to inform her about the suspensions of the investigation . Her complaint that the investigator had intentionally delayed the investigation with the aim of rendering the proceedings time - barred was , however , unsubstantiated . The investigation had been discontinued for lack of evidence of a criminal offence rather than on the ground that the proceedings had become time - barred .

On DATE the ORG found that the applicant ’s mother had been unlawfully denied access to certain documents in the case file . It however rejected the remainder of her complaints relating to the alleged ineffectiveness of the investigation . In particular , the court established that the investigator had not complied with the prosecutor ’s instructions as to additional investigative measures to be performed . However , the prosecutor had later confirmed the investigator ’s decision to discontinue the investigation , thereby agreeing that it was no longer necessary to comply with his previous instructions and to undertake the investigative measures in question . The investigator ’s actions had therefore been lawful . On DATE GPE upheld that decision on appeal , finding it lawful , well - reasoned and justified .

On DATE the ORG district police department replied to the applicant ’s mother that all necessary investigative measures had been performed and that all relevant facts had been established . It was therefore not necessary to carry out any further investigative measures . On DATE the ORG district prosecutor ’s office also replied to the applicant ’s mother that the investigation had been thorough and complete and that there was no need for any further investigative measures .

The applicant is regularly examined by a neurologist . After the initial diagnosis of hyperkinesia on DATE ( see paragraph CARDINAL above ) , he was examined by a neurologist on DATE , DATE and DATE and DATE , DATE , and CARDINAL and CARDINAL DATE . He complained of nervous tics , sleeping difficulties , nervousness and fears . The neurologist noted that the symptoms had been caused by a prolonged , psychologically traumatic experience at the nursery school in DATE . The applicant was prescribed treatment .

From DATE until DATE the applicant followed a course of treatment for nervous tics .

On DATE the applicant ’s medical documents were examined by a child psychiatrist , who found that the applicant continued to suffer from a neurological disorder of medium severity .

DATE until DATE the applicant underwent a new course of treatment for nervous tics . He underwent a further course of treatment DATE .

NORP Further medical certificates stated that in DATE the applicant was still suffering from a neurological disorder and was following treatment for it .


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

The applicants , PERSON , Mr PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE , in GPE . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

NORP On DATE , during the NORP invasion , a military aircraft carrying the CARDINALst commando battalion of GPE , sent as reinforcements from GPE , was shot down by friendly fire in the area of Tymvos , in GPE . Out of the CARDINAL commandos and crew only one survived . The victims included the first applicant ’s brother , PERSON , and the son and brother of the second and third applicants respectively , NORP .

According to army records , PERSON and NORP were buried in individual and marked plots in ORG on DATE . Not all the bodies of the victims of the crash had been recovered and buried separately . The crash site had been covered over and converted into a FAC for all NORP soldiers killed in the conflict ; some unidentified remains from the crash had been buried in an unnamed mass grave , due to the small size of the bones , at the ORG itself . At the site , there was built a memorial as well as a military cemetery with a church . The site was regarded altogether as a monument for honouring and commemorating those who fell .

In DATE , the army authorities exhumed and returned the bodies of CARDINAL NORP soldiers killed in DATE and buried in graves at FAC , including CARDINAL victims of the crash . The remains from the grave bearing the name of PERSON were exhumed in the presence of his father and returned to the family in GPE on DATE . The grave bearing the name of NORP was exhumed in the presence of CARDINAL of his brothers and returned to his relatives in GPE on DATE .

Sometime later a doubt arose as to the correct identification of remains . Beginning in DATE , an organization ORG ( “ Physicians for Human Rights ” ) in agreement with the authorities conducted exhumations at ORG and other cemeteries , in particular of unidentified remains . In a DATE report , ORG stated that burials in DATE had taken place “ under confusing circumstances ” and that it appeared that the identifications had not been objectively verified , resulting in many mistaken attributions of identity and that due to lack of expertise , incomplete skeletons had been removed and parts of several individuals had been mixed together .

In DATE the families of the victims , including the applicants’ families , were visited by experts involved in the exhumation of the remains of the victims and were asked to give blood with a view to proceeding to proper identifications .

NORP In DATE the first applicant ’s family handed over to the NORP authorities for DNA tests the remains which they had been given in DATE . Following such tests , the first applicant and her family were informed that these remains received in DATE had not been those of PERSON .

In DATE , following testing of the remains given to the family of the second and third applicants and sent back to GPE , the family were informed that the remains contained parts of several other individuals .

In DATE , DNA tests disclosed that the remains buried under the name of ORG had included part of the remains of PERSON . The family was so informed . The applicant was informed in DATE that further remnants of PERSON had been discovered .

In DATE , it became apparent that the CARDINAL remains returned to families represented CARDINAL different individuals .

The first applicant applied to the authorities in DATE and DATE , urging that the crash site be excavated in order to find the remains of her brother that she thought must still be at that location . It is not apparent that the second or third applicants approached the authorities on this matter .

By a letter dated DATE , the Director of ORG of the President informed the first applicant that instructions had already been given for the planning of the excavations . The letter stated as follows , in so far as relevant :

Before receiving your letter instructions had been given to start the planning for the excavation in Tymvos .

We had discussed the matter with the NORP Ambassador and following the instructions of the President of the Republic we are taking the necessary measures to excavate the site where the remains of the aircraft are and to exhume the remains which may have possibly been buried with them .

As I had told you orally we acknowledge the obligation to fully investigate the possibility that human remains have been buried with the aircraft remains ; upon a possible finding of such remains and their forensic identification , we will give a reply to the family / families concerning the fate of their loved ones who fell while carrying out their duties for their country .

We also have an obligation in such a case to deliver the remains to the families so they can be buried with the befitting honour and in accordance with the religious rites and customs .

You appreciate that this task will take time and we therefore ask you to be patient . ”

By a letter dated DATE the Director General of ORG informed the first applicant that the authorities were doing everything possible to locate the remains of her deceased brother in order to end the agony and uncertainty of her family and of the families of the remaining victims .

On DATE the first applicant filed a complaint with ORG ( “ Ombudsman ” ) against ORG ( complaint CARDINAL ) .

In a letter dated DATE the ORG informed the first applicant that the Director General of ORG had informed her that they were taking the necessary measures towards excavating the remains of the aircraft and to exhume the bodies that may have been buried there . In view of this the ORG considered that there were no grounds for her continued intervention .

The Government submitted that work was undertaken to identify all the available remains in order to clarify the situation before proceeding to any large - scale excavations at the ORG site . They also stated that they were hampered in identifications by the decisions of some families not to participate in the return of remains for identification ; it also appears that CARDINAL family had destroyed the remains . They stated that a large part of the remains of PERSON were recuperated ; as his commando badge and ID tags had been found at ORG , there were no strong grounds for assessing that his body had been left at the site and that it was more likely that his remains were with all those transferred to ORG .

Meanwhile several surveys and exploratory excavations were carried out at the PERSON site . This culminated in a ORG report of DATE which stated that the unnamed remains stored at the ORG site had been removed but their state was such that current DNA analysis methods had not been able to yield reliable results . It appears that there was a decision by the authorities not to proceed to excavate the site at this time due to

Unreliable evidence as to whether there were any bodies or remains buried under the PERSON site without being marked ;

No indication from surveys and excavations that any remains were present at the site ;

The incomplete DNA samples from families and return of remains which meant that there was no comprehensive identification of those who had been buried at ORG ;

Concerns that the excavation would require the dismantling of the memorial erected on the site as well as disturbing existing graves at the cemetery on the site ;

Lack of certainty as to where on the site the aircraft was located .

On DATE , the ORG issued a report , stating inter alia , that some victims of the crash remained unaccounted for and that there was a possibility that remains had been buried along with the aircraft on the site and urged that an investigation be launched to put an end to the uncertainty of the relatives .

On DATE ORG approved ORG proposal no . ECARDINAL/CARDINAL for the excavation of the air crash site . The excavation was to take place under the supervision of ORG and will be conducted by the scientific staff of ORG in co - operation with the NORP archeologists , ORG and ORG . The proposal included an analysis of the costs to be incurred in the total amount of CARDINAL .


CASE OF SPIRIDONOVSKA AND POPOVSKI v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property)

The applicants were born in DATE and DATE respectively and live in GPE .

On DATE a plot of agricultural land ( “ the land ” ) was confiscated from ORG , the ORG late grandmother , on the basis of LAW ( акт за експропријација – “ the first confiscation order ” ) , issued by ORG ( PERSON во ORG ) . According to the first confiscation order , the total surface area of the land was CARDINAL shinik ( шиник – an old unit of land area ( see paragraph CARDINAL below ) ) .

On DATE a second confiscation order was issued concerning a plot of land owned by ORG The second confiscation order did not specify the surface of the land which was to be confiscated .

On DATE ORG adopted a confiscation decision ( решение за експропријација ) , which confirmed the above confiscations of ORG ’s real property . According to the decision , the total area of the confiscated land was QUANTITY ( sq . m ) .

In a final court decision in inheritance proceedings of DATE , each applicant was declared heir of CARDINAL of the land confiscated from their late grandmother . According to this decision , the surface area of the land in question was CARDINAL shinik .

On DATE the applicants instituted restitution proceedings under LAW seeking restoration of the land confiscated from their grandmother . In support of their claim they submitted the first confiscation order ( see paragraph CARDINAL above ) . Copies of the restitution claim and the accompanying documents were communicated to ORG ( ORG ) . It appears that ORG did not submit any observations in reply .

On DATE ORG ( part of ORG ) ( “ the ORG ” ) made an on - site inspection and found that the land in question had been free of any buildings .

On DATE ORG accepted the applicants’ restitution claim and decided to restore to their possession the plot of land , the total surface area of which was QUANTITY . m , which , as stated in the order , corresponded to CARDINAL shinik ( “ the restitution order ” ) . The order stated that the plot had been confiscated on the basis of the first confiscation order ( see paragraph CARDINAL above ) . Through a proprio motu investigation it also established that the land in question had been part of a larger undeveloped , ORG - owned plot .

It appears that the Solicitor General was served with a copy of the order but did not lodge an appeal against it . As a consequence , it became final on DATE .

On DATE the total area of the land was transferred in the second applicant ’s possession ( воведување во владение ) . The applicants then had their property rights registered in the relevant ORG .

In a decision of DATE , which became final on DATE , ORG , in non - contentious proceedings , accepted the applicants’ application to have the ORG , represented by ORG , delineate the area belonging to them ( CARDINAL sq . m ) from a larger plot of land belonging to the ORG . By this decision the applicants became the owners of a separate plot of land with the total area of CARDINAL sq . m.

NORP In DATE the Solicitor General applied to have the applicants prohibited from further disposing of the land since the land restored to their possession had not corresponded to the land confiscated from their late predecessor in terms of its surface area .

On DATE ORG Instance dismissed that application finding that the land had been restored to the applicants’ possession on the basis of the restitution order . Furthermore , no proceedings had been instituted under LAW of LAW ( see paragraph CARDINAL below ) by a third party .

On DATE ORG upheld this decision noting that ORG had furthermore participated in the proceedings concerning the delineation of the land ( see paragraph CARDINAL above ) .

On DATE the Solicitor General sought , in administrative proceedings , that the restitution order be declared , under section CARDINAL ) of LAW ( see paragraph CARDINAL below ) , partially null and void in respect of the part of the land which had been returned to the applicants but allegedly had not been confiscated from their predecessor . ORG argued that the restitution order had been based on the first confiscation order , which had been invalid since it had neither been signed nor stamped and it had specified the surface of the confiscated land in shinik . He had submitted the second confiscation order , which had specified that the surface area of the confiscated land had been CARDINAL . The Solicitor General therefore lodged an application to have the restitution order declared partially null and void regarding the difference in surface area of the land specified in the first confiscation order of CARDINAL DATE and the confiscation decision of CARDINAL DATE .

On CARDINAL DATE the Second - Instance Administrative - Procedure Commission in ORG за решавање во управна постапка во втор степен од областа на денационализацијата – “ the second - instance commission ” ) dismissed that application finding that the final restitution order , which had meanwhile been enforced , could not be declared null and void on the basis of section ORG ) of LAW because the sections of LAW on the basis of which the restitution order had been made had not contained any explicit provisions allowing for its nullification , as required under that subparagraph . As for the argument that the confiscation order had been neither signed nor stamped , is was stated that this could have been put forward before the finality of the restitution order , and could not have led to declaring the order null and void on the basis of section FAC ) .

The Solicitor General challenged the latter decision by lodging an administrative action ( тужба за управен спор ) with ORG in which he complained that the restitution order of DATE had been based on a confiscation order which had not been signed and stamped and on erroneous facts regarding the surface area of the land . In this connection the Solicitor General referred to an extract from ORG dated DATE which indicated that the land had been expropriated on the basis of a confiscation order of DATE . In this submission ORG noted that his claims regarding the differences in the surface areas had been substantiated by documents supplied to him by “ interested parties ” according to which the accurate area of the land could be established .

On DATE ORG upheld the decision of the second - instance commission , finding that the remedy under section ORG ) relied on by ORG had been inapplicable to the facts of the case . It further stated that the missing stamp and signature were not sufficient reasons to declare the restitution order null and void . Under the terms of the relevant domestic law applicable at the time , this was the final decision . With regard to the differences in surface areas the judgment stated :

“ The court , in deciding , assessed the arguments of the [ Solicitor General ] put forward in the claim , but it did not accept them as bases to decide differently , because none of the conditions under [ section ] CARDINAL of LAW for declaring the order null and void had been fulfilled . ”

On DATE ORG , acting on its own motion ( по службена должност ) and relying on section CARDINAL(CARDINAL)(CARDINAL ) of LAW , found that the restitution order was unenforceable and declared it null and void in full ( “ the nullity decision ” ) . It further held that the merits of the case would be decided in a separate decision . It also issued a provisional measure ( привремен заклучок ) , prohibiting the applicants from selling the land until the final resolution of the case .

ORG indicated that in the course of examining a separate restitution claim submitted by the heirs of a certain G.T , it had reviewed the documents concerning the applicants’ restitution application .

ORG held that under the applicable law in DATE , a confiscation order ( акт за експропријација ) had had to precede a confiscation decision ( решение за експропријација ) . It found that the restitution order had been based on the confiscation order of DATE , according to which the total surface area of the land formerly owned by the applicants’ predecessor had been CARDINAL shinik . However , the confiscation decision dated DATE , on the basis of which the plot had been confiscated , had specified that the surface area of the confiscated land had been QUANTITY m. ORG also referred to evidence submitted on DATE by ORG , according to which the area of the plot had been CARDINAL shinik and had represented a part of a larger plot of land , the total surface area of which was QUANTITY . m. A further extract from a “ ORG of ORG and “ Review of old units of land area and their conversion into hectares , areas and sq . m ” , issued on the basis of a letter dated DATE , specified that CARDINAL shinik corresponded to QUANTITY . m. Lastly , the ORG relied on a cadastral plan drawn up by a licenced surveyor ( катастарска скица изработена од геометар ) made for a separate set of restitution proceedings ( instituted by the heirs of ORG ) , according to which the surface area of the land , formerly owned by the ORG predecessor , had been QUANTITY m. In such circumstances , the ORG found that the applicants had unlawfully obtained possession of CARDINAL sq . m of land , on the basis of the restitution order . For those reasons , the Commission held that the restitution order had been contrary to sections CARDINAL and CARDINAL of LAW and was legally unenforceable pursuant to section CARDINAL(CARDINAL)(CARDINAL ) of LAW . In respect of the latter section , the Commission held that the unenforceability of a decision concerned not only the factual ( фактичка ) , but also the legal ( правна ) impossibility of enforcement .

Both applicants appealed , arguing that the restitution order was a final decision which could not be altered . They also referred to the judgement of ORG of DATE , which had stated that none of the conditions for nullity under section CARDINAL of LAW had been fulfilled ( see paragraph CARDINAL above ) .

On DATE the second - instance commission dismissed the ORG appeals , endorsing the reasoning given by ORG . It held that ORG had been obliged , pursuant to section CARDINAL of LAW , to declare the restitution order null and void .

The applicants lodged an administrative action against the latter decision before ORG . They again referred to the judgement of ORG of DATE ( see paragraph CARDINAL above ) . They further stated that the issue of nullity had already been finally resolved following the application lodged by ORG ( see paragraphs CARDINAL above ) .

On DATE ORG upheld their action and annulled the decision of the second - instance commission . The court further rejected as inadmissible an application by PERSON and ORG , the legal successors of ORG ( “ the third persons ” ) , to intervene in the proceedings . The relevant part of the judgment reads as follows :

“ ... In the court ’s opinion , there has been no breach of section CARDINAL(CARDINAL)(CARDINAL ) of LAW ... This section concerns the impossibility for factual enforcement and the legal impossibility for enforcement which would be in contravention of ... legislation . In the present case there is no such situation and therefore it can not be considered that LAW has been breached ... This is so because the evidence admitted in the course of the proceedings provides a certain basis for the court to conclude that in the present case the restitution order ... was adopted in accordance with LAW , which had been preceded by a correct and full establishment of the facts , thereby leading to the conclusion that in that case all statutory conditions had been fulfilled for [ the return of ] the property concerned .

With regard to the application lodged by PERSON and ORG ... it is clear that [ they ] did not participate , nor could they have participated in the administrative proceedings initiated by other persons who claimed a right to restitution of a part of the property which had indisputably been in the possession of their legal predecessors . In view of that ... in the present case there is no possibility that third persons ( interested persons ) can have standing as parties to the restitution proceedings . However , that does not mean that those persons will be deprived of the right to protect their rights and interests ... a possibility remains for them to establish their rights by lodging a civil claim before a competent court within DATE of the finalisation of the restitution order ( section DATE , paragraph CARDINAL of the Act ) , against the persons to whom possession was restored or compensation was paid in accordance with the provisions of the LAW . ”

On DATE ORG and the third persons respectively appealed against that judgment before ORG , which had in the meantime become competent to act upon appeals against judgments of ORG . In the appeal the third persons argued that the difference between QUANTITY . m and the surface originally granted to the applicants belonged to them and adduced evidence to this end . The applicants submitted observations in reply .

On DATE ORG accepted the appeal submitted by ORG and overturned the decision of ORG . The relevant part of the judgment reads as follows :

“ In ORG opinion , which has been stated in several of this court ’s cases , a restitution order can be considered as legally impossible to enforce , if there are breaches of the law which can not be remedied with the application of other legal means , as is the situation in the present case . In particular , with the [ restitution ] order more was restored to the [ applicants ] than what they had been entitled to , having in mind the surface of the property which was in their legal predecessor ’s possession . In support of this , the ORG organs submit ‘ ORG of ORG and ‘ Review of old units of land area and their conversion into hectares , areas and sq . m’ as evidence that CARDINAL shinik in the city of PERSON amounted to QUANTITY . m. This finds support in the expropriation decision of CARDINAL DATE where it was noted that the expropriated land had had a surface of QUANTITY m , which had been preceded by an accurate determination of the object of expropriation . The finding is further supported by a cadastral plan done by a licenced surveyor ( катастарска скица изработена од геометар ) on the basis of the limits and boundaries of the plots of land as laid out in the expropriation decision .

... [ T]he conclusion is correct that in the present case , with the restitution order , the property registered as property of the ORG was restored contrary to the conditions specified in LAW , sections CARDINAL and CARDINAL . Since the ORG organs established that part of the concerned property was not in possession of the legal predecessor [ of the applicants ] , there is a legal obstacle for the exercise of a restitution right over that part of the property . Hence , such an order can not be enforced , which is grounds for the application of paragraph CARDINAL subparagraph CARDINAL of section CARDINAL of LAW , meaning that the decision is null and void ( ништовно ) ...

... In respect of the third persons , or the interested persons , LAW excludes the possibility for them to appear as parties to the restitution proceedings , but what remains for them is the possibility to claim their rights in a civil suit before a competent court within DATE after the finalisation of the restitution order ( section CARDINAL paragraph CARDINAL of the Act ) , against the persons to whom possession was restored or compensation was paid in accordance with the provisions of this LAW . ”

This decision was served on the applicants on DATE and DATE respectively . By decisions of DATE and DATE ORG rejected as inadmissible their applications for the reopening of the proceedings .

On DATE , in civil proceedings initiated by the second applicant against ORG , ORG issued an injunction banning the respondent ORG from disposing of the plot of land . On DATE the latter decision was annulled ( става вон сила ) as the applicant had withdrawn the action against ORG .

Acting upon the initial restitution application , ORG requested clarification from ORG regarding the historical records of the plot of land in question on DATE . ORG confirmed that the plot which had been taken from the applicants’ predecessor was now a part of a plot owned by the ORG with an area of QUANTITY . m.

On DATE ORG accepted the applicants’ restitution claim and decided to restore to their possession a plot of land with an area of QUANTITY . m and to award them financial compensation for the remaining part of the plot with an area of CARDINAL sq . m which could not be restored , in total amounting to a total surface area of CARDINAL sq . m.

On DATE the second applicant challenged the latter decision with an administrative action . It appears that the proceedings are still pending .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Deprivation of liberty;Article 5-1-e - Persons of unsound mind);No violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention)

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

The applicant was born in DATE and lived in PERSON . She is currently residing in a social care home in PERSON

The applicant , who is a widow , was living alone in an apartment in PERSON . She was receiving a pension from ORG . She has a daughter , with whom she apparently had had no contact for DATE .

On DATE , at the request of the applicant ’s daughter , the PERSON Regional Court declared the applicant to be partially incapacitated . The court established that she had been suffering from psycho - organic dementia syndrome with elements of paranoia and that she had a tendency to abuse alcohol and medications . It reasoned that it was necessary to declare her to be partially incapacitated because she needed help in making the right decisions , particularly as regards her treatment and the amount of money she spent on alcohol .

On DATE the Żary City Centre for Social Services ( PERSON ) requested ORG to place the applicant , against her will , in a social care home . ORG submitted that the applicant was suffering from mental disorders , did not go to doctors and behaved in a way that departed from “ socially accepted norms ” , which posed a threat to her health and life . The ORG explained that the applicant had been “ walking in the streets incompletely dressed , untidy and dirty . She smelled , talked to herself and often looked as if she was under the influence of alcohol ” . A medical certificate dated DATE was attached to the request . The certificate had been issued by a psychiatrist on the basis of an examination of the applicant in the psychiatric ward of ORG . It had been found that the applicant had been suffering from organic personality disorders ( organiczne zaburzenie osobowości ) and that she needed constant care . However , she did not require hospital treatment .

The Żary District Court scheduled several hearings at which the applicant failed to appear . Therefore , it was decided to hear the applicant at her place of residence on DATE . On DATE contact with the applicant was difficult ; her answers to some of the court ’s questions were illogical . She made it clear , however , that she did not want to be placed in the social care home . At the end of the hearing she refused to sign the relevant document and told the people present in her apartment to get out .

On DATE ORG decided to place the applicant in a social care home . The court based its decision on an opinion given by a psychiatrist , PERSON , who had examined the applicant once , on DATE , and had diagnosed her with chronic schizophrenia and a disorder of the central nervous system . The doctor found that until the time of the examination the applicant had been in the care of a social guardian , PERSON However , the doctor claimed that “ care was not provided properly or was not provided at all ” . The applicant had been neglecting the basic principles of hygiene and nutrition , which might lead to infections or undernourishment . He stressed however that she did not pose a direct danger to her own or other peoples’ health or life . The doctor also found that the applicant needed to be under the constant care of a third person . The relevant part of the opinion read as follows :

“ Through her behaviour she poses a risk to her life , i.e. in certain circumstances leaving her without constant care significantly raises the probability of risk to her life . It is not however a direct risk , but it results rather from the applicant ’s neglect of basic hygiene principles , place of residence and nutrition . [ The applicant is therefore exposed to ] a risk of malnutrition , [ and ] infections . ”

The court also examined the possibility of the applicant ’s stay at her home and referred in this respect to the possibility of taking care of the applicant by third persons and to the assistance provided by ORG . The relevant part of the court ’s decision read as follows :

“ ... there are no members of family or third persons who could take care of the applicant on permanent basis . In particular the applicant ’s daughter declared that she did not want to look after her mother on permanent basis and that she would not take her mother to her place ...

The expert opinion is clear in so far as it states that ( the applicant ) needs constant care lack of which poses a danger to her life .

As regards the assistance from the employees of ORG it is to be noted that this assistance is not of a permanent nature . This means that social employee does not spend DATE with a person concerned and does not take care of that person on permanent basis because , as a rule , social employees [ ... ] assist at the same time many persons living in the area covered by their activity . The applicant in turn , requires permanent care which can not be secured by the social employees . ”

NORP The applicant was placed in a social care home in PERSON on DATE .

It appears that ORG granted the applicant a legal aid lawyer in DATE . However , according to the applicant ’s submission the lawyer was not present at the hearing before the first - instance court and de facto she was not represented in the judicial proceedings .

On DATE the applicant ’s daughter appealed against the decision of DATE . She also requested that her mother be granted a legal aid lawyer and that she be served with the decision of DATE with written reasoning .

On DATE ORG dismissed the request for a legal aid lawyer , finding that the applicant ’s daughter had sufficient knowledge and abilities to represent her mother before the court . It also rejected the appeal and the request for the reasoning of the first - instance decision .

On DATE the applicant lodged another appeal against the decision of DATE and requested leave to appeal out of time .

On DATE the applicant was granted a legal aid lawyer . Since she was not satisfied with the lawyer who represented her , on DATE she was granted another lawyer , who subsequently requested that the court grant the applicant leave to appeal out of time .

On DATE the ORG granted the applicant ’s request for leave to appeal out of time .

On DATE the ORG dismissed the applicant ’s appeal . TIME of the court decision reveal that nobody was present at the hearing on DATE . The same minutes state , however , that “ the applicant , who was not represented by a lawyer , was informed that she could request reasons for the decisions in writing if she lodged a relevant request within DATE from DATE of publication [ of the decision ] . ” The applicant submitted that she had not been served with the court ’s decision and that she had found out about it by chance DATE . In the meantime she lodged a complaint with the court about the excessive length of the proceedings . Her complaint was rejected by the PERSON Regional Court on DATE .

When the applicant learned that her appeal had been dismissed she requested the leave of ORG to lodge a request for written reasons for the decision out of time . She also requested leave to lodge a cassation appeal out of time , to be exempted from the court fees and to be granted a legal aid lawyer who would prepare and lodge a cassation appeal on her behalf .

On DATE the ORG dismissed her request for leave to appeal out of time and therefore she could not lodge a cassation appeal with ORG .

On DATE the Zielona ORG dismissed the applicant ’s request for exemption from the court fees and for the appointment of a legal aid lawyer to lodge a cassation appeal on her behalf .

On DATE the applicant ’s daughter requested ORG to vary the measure applied to her mother and to amend the decision of DATE .

ORG ordered that the applicant be examined by a psychiatrist in order to check whether she needed to remain in the social care home . It also ordered that the applicant be heard by the Gorzów PERSON ORG by way of judicial assistance .

The applicant was examined by a psychiatrist on DATE . The relevant part of the psychiatric opinion reads as follows :

“ In her current mental state the applicant does not need to be admitted and treated in hospital .

As a result of her sickness she requires help in day - to - DATE matters , first of all , taking care of her treatment process and controlling her expenses so that she does not spend money on alcohol . She also needs assistance in preparing meals , personal hygiene and shopping .

The applicant needs the twenty - four - hour care that may be offered in a social care home . It is admissible that she be placed in a family home provided that the family is able to assure TIME care .

There has been no change in the applicant ’s mental state or circumstances which constituted the basis for her placement in the social care home .

The applicant does not require to be placed in a psychiatric ward ... She does not pose a direct danger to her own or a third person ’s health or life . ”

On DATE the applicant was also heard by the Gorzów ORG . The hearing lasted TIME . The applicant ’s statement reads as follows :

“ I am afraid that I could be locked up . I would need a sanatorium where they treat heart disease . I do not feel at ease in the social care home because the people there are not normal , they are constantly asking for cigarettes and I do not smoke . Medical care is assured there . The doctor is a colleague of mine , because I was manager of a chemist and he was the doctor . I take the medication promazyn because I was exposed to radiation during the war , but now I am fine . I am in good hands , I need my home , my daughter comes to see me . She comes DATE . I lived in my home in Żary for DATE . My daughter , when she became an adult , used to come to see me and she helped me out . I want to stay in my apartment in PERSON , which is situated not far from my daughter ’s apartment . ”

On DATE the court summoned the applicant ’s daughter in order to establish whether she was capable of providing care for her mother . She failed to appear , so a further hearing was scheduled for DATE . The applicant ’s daughter again failed to appear . The court then decided to close the case , finding that the facts had been sufficiently established to make a final decision .

On DATE ORG dismissed the request lodged by the applicant ’s daughter to vary the measure applied to the applicant . Neither the applicant , her daughter , nor the applicant ’s guardian was present when the court announced its decision . The decision was not appealed against and became final on DATE .

On DATE the applicant requested ORG to reopen the proceedings which had resulted in her placement in the social care home . If it was not possible to re - open the proceedings , she requested that the respective decision be varied .

On DATE ORG rejected her request . The court found that there were no grounds for reopening the proceedings . It further informed the applicant that , under section CARDINAL of the DATE LAW , an applicant placed in a social care home or members of his or her family could request that the court vary the decision on placing him or her in the social care home . The court disregarded the applicant ’s alternative request in that regard .

On DATE the applicant requested ORG to supplement the decision of DATE and allow her to leave the social care home for TIME a day in order to go to a shop , as well as allow her to stay in her room DATE .

On DATE ORG dismissed the request to supplement the original decision , finding that those matters fell outside the court ’s jurisdiction and that they were provided for by the internal regulations of each social care home .

On DATE the applicant again asked the court to vary the measure applied to her . She also requested legal aid ; she submitted that she could not afford to appoint a lawyer at her own expense because PERCENT of her pension was retained by the social care home .

On DATE the ORG refused to grant a legal aid lawyer , finding that the applicant was able to deal with her affairs herself and that her case was not complicated from a legal or factual point of view .

The applicant appealed against that decision .

On DATE the ORG quashed the challenged decision and granted the applicant a legal aid lawyer .

As regards the applicant ’s request to vary the measure , a hearing took place on DATE in the presence of both the applicant and her lawyer . Following a request by the lawyer , the court decided to stay the proceedings . They were resumed on DATE .

On DATE ORG dismissed the applicant ’s request . The applicant did not appeal against that decision and it became final on DATE .


CASE OF ÖZMURAT İNŞAAT ELEKTRİK NAKLİYAT TEMİZLİK SAN. VE TİC. LTD. ŞTİ. v. TURKEY

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

Jon Fridrik Kjølbro;Julia Laffranque;Ledi Bianku;Paul Lemmens;Robert Spano

The applicant is a construction company , which was established in DATE and has its seat of business in GPE .

In DATE , after having obtained a permit to operate a mine , the applicant opened a mine in a plot of land of CARDINAL ORG which it owned .

During the course of its mining activities , on DATE an audit commission under ORG conducted an inspection . Subsequently , the commission drew up a report , proposing that the applicant should be ordered to pay MONEY ( TRY ) for quarrying substantial amounts of sand in the neighbouring plots of CARDINAL m² , outside of its licensed area .

On DATE the ORG informed the applicant that it had decided to impose the proposed administrative fine pursuant to LAW ( A Grubu Madenlerle İlgili Uygulama PERSON ) .

On DATE the applicant company ’s president , Ü.T. , filed a complaint with ORG office , stating that one of the auditors in the commission , ORG , had told him that the fine had initially been calculated as TRY CARDINAL,CARDINAL and that he had reduced that amount . Ü.T. claimed that ORG had asked him to pay TRY CARDINAL in return and had threatened to have his mine closed if he refused to do so . He indicated that ORG had acted together with a certain ORG , an official at ORG .

In his police statements on DATE , Ü.T. described his conversations with PERSON in detail . He noted , inter alia , that after the inspection of the audit commission , he had conducted another inspection with an official from ORG , and had calculated that he had trespassed on the neighbouring plots by QUANTITY . He also explained that he had acted as an undercover agent in line with the directions of ORG to catch the perpetrators in flagrante delicto . Accordingly , the police gave him TRY CARDINAL and noted down the serial numbers of the banknotes . He stated that in line with the instructions of ORG and ORG , he had given the money to a third person , who had received it in the name of the other CARDINAL .

Subsequently , on DATE ORG issued an indictment against ORG and ORG , accusing them of extortion .

On CARDINAL DATE ORG found the CARDINAL officials guilty as charged . The appeal proceedings with regard to that judgment are still pending before ORG as of DATE .

In the meantime , on DATE the applicant had filed an objection with ORG and requested a stay of execution of the fine . It informed the court of the criminal proceedings pending against certain officials involved , in which they were being tried for extortion . By a subsequent petition dated DATE , the applicant also requested the court to hold an oral hearing , to carry out an on - site examination , and to hear its witnesses in order to better evaluate the credibility of the inspection report the fine was based on .

On DATE , ORG rejected the applicant ’s requests for an oral hearing and on - site examination without indicating any reasons for its decision . Relying on the inspection report drawn up on DATE , the court rejected the applicant ’s objection .

The applicant objected to that decision , arguing that the fine had been unlawfully imposed on it and that ORG had failed to adequately assess the case as it had not held a hearing . It drew the court ’s attention once again to the criminal proceedings against the officials involved .

On DATE ORG rejected the applicant ’s objection without holding a hearing .

On DATE the administration seized the plot of land where the applicant conducted mining activities due to the latter ’s failure to pay the administrative fine .