Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect)

Alvina Gyulumyan;Johannes Silvis;Josep Casadevall;Luis López Guerra

The applicant was born in DATE . He is currently detained in FAC .

On DATE the applicant was detained pending trial on charges of human trafficking and was placed in ORG detention facility ( PERSON şi PERSON ) .

On DATE he was transferred to FAC .

In his initial letters to the ORG the applicant stated that in ORG detention facility he had been forced to sleep on the floor because there had been more detainees than beds . He was forced to eat without cutlery and sitting on the floor because the cell was unfurnished . In addition , he was not provided with a blanket and had to share the room with smokers even though he was a non - smoker .

In the same letters he also stated that in FAC he had had to sleep in overcrowded , flooded and damp cells infested with bed bugs , without furniture and on very old , smelly and lumpy mattresses without any bed linen , blanket or pillow . He was forced to eat sitting on the floor and was not provided with a broom or any cleaning products . The bathroom pipes and lavatories were defective and he had been splashed with waste from the pipes located on the ceiling . The rooms smelled and he could not sleep at TIME on account of the constant noise made by some detainees and their conversations with the women inmates detained in the same prison . Furthermore , he was forced on many occasions to eat spoiled food because there was no refrigerator . There was no access to natural light , nor any ventilation or opportunity to air the cells . The food was insufficient and poorly cooked . He was not allowed TIME of outdoor exercise per day and his health was affected because he had to share the cell with smoking detainees , even though he was a non - smoker .

The applicant was detained in cell no . CARDINAL of ORG detention facilities . The cell measured QUANTITY m and contained CARDINAL beds . During DATE of his detention the applicant shared the cell with CARDINAL other inmates . For the remainder of his time in police custody he shared his cell with QUANTITY other inmates .

The applicant was assigned a bed , and was provided with a mattress , a blanket and a pillow . The cell was also fitted with a window which ensured natural ventilation and light , a radiator for heating the cell and with air - conditioning . No other furniture was available in the cell .

On DATE the Service for the Coordination of Pre - trial ORG attached to ORG informed the Government that it would have been impossible to have separated smokers and non - smokers in ORG detention facility on account of the large number of smokers .

The applicant was detained in FAC from DATE to CARDINAL DATE and from CARDINAL DATE to DATE .

The applicant was detained in several cells measuring CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and QUANTITY . m , which he shared with a maximum number of CARDINAL , CARDINAL , DATE , DATE , DATE , DATE and QUANTITY other detainees , respectively .

The cells had bathrooms , toilets and showers . They were fitted with windows for natural light and ventilation . The available furniture allowed the detainees to store their clothes and eat . The cells were also fitted with radiators , which were connected to the prison ’s central heating system .

Every detainee was assigned a bed and was provided with a mattress , a blanket and a pillow .

In DATE the cells in which the applicant was detained were extensively renovated and repaired , and the water infiltration problem on the ceilings was fixed .

The cells were properly ventilated . The food was prepared according to the rules in force . Its quality and taste were tested DATE by , inter alia , a representative assigned by the detainees .

The detainees were responsible for cleaning the cells using cleaning materials provided regularly by the prison authorities and given to the detainees against their signature . They also had access to running water .

The cells were disinfected regularly each trimester or as often as required , and the detainees were allowed a minimum of CARDINAL outdoor exercise per day .

When he was transferred to FAC , the applicant declared that he was a non - smoker . However , having been informed by the prison authorities that , as a non - smoker , he could not buy cigarettes , he did not ask to be detained in a cell reserved for non - smokers . In addition , according to the information submitted by the prison authorities , supported by evidence , during his detention in FAC DATE and DATE the applicant had regularly purchased cigarettes and lighters .

On DATE and on an unspecified date the applicant brought CARDINAL sets of criminal proceedings against some of the staff members and the medical personnel of ORG detention facility , claiming that they had not provided him with adequate medical care and had failed to correctly fulfil their professional duties . In addition , he claimed that on DATE he had been hit and threatened by several ORG agents , including GPE , which resulted in him losing his eyesight .

By decisions of DATE and CARDINAL September CARDINAL the Bacău Prosecutor ’s Office and ORG attached to ORG , respectively , discontinued the criminal proceedings . They held that the doctor and other medical and regular staff at the detention facility were constantly involved in examining and appropriately treating the detainees . In addition , according to the available medical reports , the applicant had not suffered any recent trauma in the eye region , but was suffering from severe eyesight problems which made it unlikely that even if he underwent surgery his eyesight would be restored . There is no evidence in the file that the applicant appealed against the decisions before the domestic courts .

By an interlocutory judgment of CARDINAL DATE the post - sentencing judge dismissed the applicant ’s complaint that ORG authorities had not allowed him to receive an electric television set . The applicant was advised to get a battery - powered CARDINAL .

By an interlocutory judgment of CARDINAL DATE the postsentencing judge dismissed the applicant ’s complaints that FAC authorities had refused to allow him to receive chocolate from his wife and that they had forwarded several medical documents from his prison file to ORG without his consent . It held that according to the information provided by the prison authorities there was no evidence that the applicant had not been allowed to receive chocolate from his wife . In addition , PERSON no . CARDINAL/CARDINAL did not provide that medical documents were confidential in so far as the criminal investigation bodies were concerned .

By an interlocutory judgment of CARDINAL DATE the postsentencing judge dismissed the applicant ’s complaint that his right to private life and information had been breached because FAC authorities had unlawfully cut the power after TIME On DATE the applicant ’s complaint that FAC authorities had refused to provide him with copies of the requests he had lodged before them was also dismissed for lack of competence ratione materiae .

By an interlocutory judgment of CARDINAL DATE the postsentencing judge allowed the applicant ’s complaint that his right to correspondence had been breached in so far as FAC authorities had retained some summonses issued in his name and a judgment delivered by the domestic courts in connection with criminal proceedings instituted against him . The judge ordered FAC authorities to stop retaining the applicant ’s correspondence and to give it to him .

By an interlocutory judgment of DATE the postsentencing judge dismissed the applicant ’s complaint that FAC authorities had not allowed him to receive chocolate and prescribed medication from his wife . It held that there was no proof that his wife had brought him chocolate and that the prison authorities had denied it to him . The medication had been returned to his wife because she had brought him capsules instead of tablets as required by law . Moreover , the medication had to be given to the prison ’s medical office and not directly to the applicant , and had to be managed separately .

By an interlocutory judgment of CARDINAL DATE the postsentencing judge dismissed as inadmissible the complaint lodged by the applicant against FAC authorities that the food received on DATE had been insufficient and had not contained the correct ingredients .

By an interlocutory judgment of CARDINAL DATE the postsentencing judge dismissed the applicant ’s complaints that FAC authorities had turned off the electricity after TIME , thereby breaching his statutory right to watch television as long as the national television station was being broadcast , and had failed to ensure that he could sleep TIME a night without disturbance from other detainees . The judge held that the prison authorities did not have a legal duty to keep the electricity on and to allow him to watch television after TIME In addition , they could not force every detainee to sleep at TIME . Silence could be enforced by punishments imposed by the prison ’s disciplinary commission .

By an interlocutory judgment of CARDINAL DATE the post - sentencing judge dismissed as time - barred the applicant ’s complaint against FAC authorities for failing to commit him to a psychiatric unit following a recommendation of ORG .

The applicant challenged some of the interlocutory judgments delivered by the post - sentencing judge before the domestic courts , but subsequently withdrew his challenge . There is no evidence in the file that he appealed against any of the interlocutory judgments before the domestic courts .

On DATE the Târgu - Ocna Prison Hospital informed FAC authorities that they would accept the applicant after a psychiatrist from ORG recommended the applicant ’s hospitalization .

On DATE FAC authorities informed the Government and submitted documents attesting that the applicant had bought items from the prison shops CARDINAL times DATE and DATE .

On DATE FAC authorities also informed the Government that the applicant ’s request of DATE that he be categorised as a vulnerable detainee had been allowed and he had been transferred to a cell reserved for vulnerable detainees .


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

Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Torture) (Substantive aspect);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

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

The applicant was born in DATE . He resides in GPE .

At TIME on DATE an anti - tank mine exploded in the courtyard of a police station in GPE , causing considerable material damage .

On DATE an investigating judge of ORG ( “ the trial court ” ) ordered ( Kri.br.CARDINAL/CARDINAL and ID.br.CARDINAL/CARDINAL ) a search of the home and other property belonging to the applicant ’s father and the father of GPE ( a co - defendant in the ensuing criminal proceedings , see paragraph CARDINAL below ) , on account of a reasonable suspicion that relevant items of evidence relating to allegations of terrorism and trafficking in arms would be found .

The search was carried out at TIME on DATE , in the presence of the applicant ’s father and QUANTITY neighbours , who acted as witnesses . According to the search record , which was signed by a police officer , the applicant ’s father and the witnesses , the following objects were found : a semi - automatic weapon ; a case containing CARDINAL bullets ; CARDINAL ORG bullets ; a slow - burning fuse and a detonator ; an audio tape ; CDs ; CARDINAL photographs of the applicant and a piece of paper with a map drawn on it . At the request of the applicant ’s father , the search record indicated that he “ does not know the origin of the objects found ” , and at the request of the attending witnesses the record noted that they “ had no comments to make on the work of the police officers ” . A certificate of the seized objects was issued to the applicant ’s father , which the latter signed .

NORP The police officer who had carried out the search submitted an official note , in which he listed all the above objects found in the house of the applicant ’s father . The note stated , inter alia :

“ The wanted person [ the applicant ] was not found and according to his mother , he was on a visit , but ( the mother ) did not want to specify where . ”

The applicant ’s father was taken to a police station for an interview . On that occasion he denied that weapons found in his house belonged to him . He stated that it was possible that they belonged to the applicant , whom he had not seen since DATE at TIME , when he ( the applicant ) had left his house .

According to an official record ( записник за задржување на лице ) of ORG , a copy of which was included in the file , at TIME on DATE the applicant , who had no previous criminal record , was arrested near a department store in a suburb of GPE by PERSON and TIME , police officers . The record stated the following reasons for his arrest :

“ ( since the applicant ) was not in possession of any identification document and his suspicious movement in the vicinity of buildings which are targets for criminal offences ( објекти кои се цел на извршување на кривично дело ) . ”

At TIME he was taken to a police station , where he remained until TIME that day . As stated in the record , the applicant was informed about his rights ; he waived the right to be represented by a lawyer ; he had no visible injuries , nor were there any signs of illness , alcohol or drug addiction . The applicant signed all CARDINAL pages of the record separately .

At TIME on DATE the applicant was brought before the investigating judge under suspicion of having been involved in the incident of DATE . According to the court record of that date , which was duly signed by the applicant , he understood the charges against him ; he had sufficient command of NORP ; he had waived the right to an interpreter ; and he had stated that he would testify in the absence of a lawyer . In the presence of the investigating judge and a public prosecutor , the applicant stated , inter alia :

“ ... ( referring to the request for investigation ) it is true that at TIME on DATE I placed an explosive device , namely a round anti - tank mine , together with a fuse and a detonator , in the western part of the courtyard of a police station , ORG ... I placed the explosive device , lit the fuse with a lighter , and immediately ran home ... PERSON gave me this explosive ... GPE was with me all the time ... he was also with me when PERSON gave me the anti - tank device ... I would like to underline that it was a slow - burning fuse which was TIME ; it took a long time to burn and to detonate the device ... I would also like to note that GPE knew that I was going to place this anti - tank device in GPE police station . I told him that after we had obtained the device from R.S ... PERSON and I agreed to a proposal by PERSON ( that we place the device in front of a police station ) and went towards GPE by taxi ... I borrowed an old car from neighbour PERSON , telling him that I wanted to drive around . He lent me the car , which was not registered , and I ( with GPE ) took the device and placed it on the floor behind the driver ’s seat ... At TIME I left home and walked to this car ; I took the anti - tank device ... and carried it as far as the LOC police station , as I have described above , and then I detonated ( the device ) . Some time after TIME . GPE had called me to arrange to go and set up the device . Indeed , GPE arrived ... and we both went to the car ; we took the device together and we walked towards the LOC police station . I was carrying the bag with the device . When I went into the police station GPE left the scene : I do not know where he went . I went to the back of the police station and placed the device . Regarding weapons found in my house on the occasion of a search carried out by the police on DATE , I had in my possession a semi - automatic weapon with CARDINAL bullets ; I do not know anything about the CARDINAL explosive items , the fuse or the detonator . I had stolen the semi - automatic weapon and the bullets ... DATE before the explosion in the LOC police station ... I was not carrying the weapon when I placed the device , and the phone that I had in my possession was switched off . ”

On DATE the investigating judge delivered several decisions , by means of which he appointed GPE , a lawyer , to represent the applicant ; found of his own motion that the applicant ’s detention had been lawful ; opened an investigation against the applicant , GPE and GPE ( the latter was from GPE ) ; he also ordered that they be detained on remand for DATE . All the decisions contained an instruction on legal remedies . They were served on the applicant DATE . They were delivered to his lawyer DATE . No appeal was submitted against any of these decisions .

On DATE , on the occasion of a regular visit of a judge responsible for the execution of sentences to GPE detention centre , the applicant asked to give evidence before the investigating judge . On DATE , the investigating judge heard oral evidence from the applicant in the presence of the court - appointed lawyer and the public prosecutor . As indicated in the transcript of the hearing of that date , signed by the applicant , he stated , inter alia :

“ I called you because on DATE I was beaten and intimidated by the police to force me to testify . I was under duress to testify and threatened with being killed after leaving the prison . All the names they mentioned are unknown to me . I know nothing about the case of which I am accused . I have never been in conflict with the police and I have no idea what a bomb is . Regarding the home search , this is false evidence . There were no weapons or explosives there . That ’s all . I agree to be represented by the court - appointed lawyer who is present at the moment . I would like to say that I have not been placed under any pressure by the court . I was just afraid and in a panic due to my previous stay in the police station . Actually , I was afraid when giving the statement ... I must say that everything I said on DATE before the judge I was told to say by the police , and was put under strong pressure to do so . All the charges against me are false . I did not commit that crime . ”

Asked by the public prosecutor to explain why he had not told the investigating judge previously that he had been placed under pressure and beaten by the police , the applicant stated :

“ They did beat me , and I was under strong pressure not to tell anything to the judge . ”

He further stated :

“ They were beating me all the time while I was at the police ( додека бев во полиција ) . I had ( visible ) injuries , but I could not say anything to the judge , as the police had told me not to . ”

The investigating judge then requested the applicant to take off his clothes and show the injuries he had . As noted in the transcript , the investigating judge described the injuries as follows :

“ A yellow - brown bruise on the left upper arm , QUANTITY long , in an irregular triangle shape ; a dark - red bruise can be seen on the left buttock , QUANTITY long , with an irregular rectangular shape . The accused complained of severe pain in his feet , but the court can not see any injury there ... Light - yellow bruises on both left and right thighs , QUANTITY long with an irregular oval shape . No other injuries can be seen . ”

On DATE the investigating judge ordered an immediate expert examination of the applicant to determine the type , origin and date of the injuries .

At TIME on DATE CARDINAL experts ( GPE and FAC ) of ORG за PERSON ) examined the applicant in the detention centre . In a detailed expert report dated DATE , the experts noted bruises ( CARDINAL in number ) on the applicant ’s back , chest , stomach , both arms and legs and the left buttock ( no injuries were noted on the applicant ’s feet ) . According to the report , the bruises were mostly green and violet in colour . The report further explained that after DATE a bruise became green , and after DATE yellow . It went on to state that :

“ Having regard to ( the applicant ’s ) statement that he had sustained the injuries while he was detained in the police station on DATE , we can say that , given the noted characteristics of the ( applicant ’s ) injuries , especially their greenish colour , they ( the injuries ) could not have been inflicted on DATE . This is because DATE have passed between then and DATE , the date of the medical examination , and bruises could not acquire such a greenish colour in DATE . More precisely , the injuries noted during the examination are older , and date from DATE before the examination .

Given their characteristics , the bruises are mostly external ( површински ) , except in the area of the left buttock , where there is more intensive bruising . ”

NORP The medical report concluded that the injuries sustained by the applicant had been inflicted by a “ blunt dynamic force ” . As regards the injuries to the applicant ’s arms , the experts stated that they were the result of pressure exerted by parts of a body , including hands . While they could not determine the exact means by which the remaining injuries had been inflicted , they nevertheless specified that they had been caused by beatings . The injuries were to be regarded as bodily injuries .

On DATE the public prosecutor lodged an indictment against the applicant and GPE on terrorism charges . On DATE an indictment on the same charges was lodged against GPE

At a hearing held on DATE the trial court decided to consider both indictments in CARDINAL set of proceedings . According to depositions taken on DATE , the applicant , who was represented by a lawyer of his own choosing , stated , inter alia , that :

“ The accusations described in the indictment , which I contest , are wrong . At TIME on DATE , QUANTITY in front of my house ... members of special ( police ) forces jumped on my back and put me in a car ... they took me to a forest , I do not know exactly where ... When they abducted me , there were QUANTITY of them ... In the forest there was a change of driver , and they hooded me and drove me far away in a different direction . We arrived in a house , where they unhooded me ; it was a luxurious house . I was told to sit on a chair ; uniformed people wearing masks and others in plain clothes arrived . They asked me if I knew why I had been brought there , to which I replied that I had not done anything wrong . They started insulting me ... QUANTITY people started beating me with plastic bottles and a rubber tube . I stayed in the house for DATE . During that time , while my hands and legs were handcuffed , I was held under water in a swimming pool . A big man was trying to force me to confess about the police station , to which I replied ‘ to confess what about the police station?’ . When they took me out of the pool , other people continued beating me . They ordered me to admit that I had placed the bomb in the LOC police station . I told them that I had not done that ... they also brought a dog into the house . The dog did nothing to me . They held me under water in the pool CARDINAL more times ... I believe that we were in PERSON ... The same uniformed men , who wore masks , brought me [ near the department store in GPE , see paragraph CARDINAL above ] and told me to go home . There were other people around . I was wet and could not walk . Men in plain clothes without uniforms or masks handcuffed me and took me to K. police station . They slapped me twice and started interrogating me about the bomb in GPE police station . I told them that I knew nothing ... They asked me if I knew GPE and GPE , and I said that I did not know them . I stayed in GPE police station from DATE to the TIME of DATE , when they brought me before the investigating judge . I note that while I was in the house in PERSON I was given a blank paper which I had to sign because they had beaten me . In PERSON I think I signed CARDINAL blank papers and I ’m sure that I saw those papers in the police station changing hands between police officers . The investigating judge also showed them to me . When the judge had them they were no longer blank , but I do n’t remember what was written on them . In PERSON I was told to say ‘ admit that you placed the bomb and we will let you go , we will take you home’ .

On DATE ... I could not tell the investigating judge that police officers had threatened me , because they had said they would kill my family . What I said to the investigating judge on DATE was what I had been told to say by the police officers in ORG . What I said to the investigating judge was invented by the police officers ... I want to say that I was afraid because while in PERSON I heard screams and voices saying ‘ we caught his ORG , so I was convinced that they had captured and tortured my father . I was further told by the police that they had apprehended and taken my father to P. police station , that they had found weapons in my house , and that my father had admitted that they belonged to him . That was a stratagem of the police . ”

NORP The applicant further denied that he knew GPE He said :

“ This is the first time I have seen him . I do not know him ; I do not know where he lives , I know nothing about him . I do not know NORP nor have I ever heard about him ... ”

He further stated :

“ On DATE the investigating judge asked me about weapons , a gun , and some missiles . I was shocked . The investigating judge told me that all those items had been found in my house . I saw the certificate regarding items which had been seized . I do not know who signed it ... ( after the certificate was shown to him ) : the investigating judge did not show this certificate to me . I saw it then for the first time . The signature on it does not belong to my father . The items that the judge read aloud from the certificate had not been found in my house ... [ The accused was shown a note referring to LOC and he said ] : Maybe I wrote that , I do not remember . Maybe someone from the school wrote it . It was found in my house . I drew it , it was a game . The words that are on the map , I am confused ; the words DATE Jihad , PERSON ; the interpreter says that the following is written on the map : ORG , Jihad , ORG , Allah Aqbar ... maybe I found this map and maybe I drew it . I do not know what that map means , it was a game ... ”

The applicant denied that he had spoken on his mobile phone with GPE and PERSON His phone had been seized by the police while he was in PERSON . He confirmed that on DATE he had been in possession of his mobile phone and denied that ORG had called him DATE . He further stated :

“ ... DATE ( DATE ) ... when I was sitting with my friends , we heard an explosion . Everyone went outside to see what had happened . I had some visitors . Someone said a bridge had collapsed , later someone said that a missile had been launched against ORG police station ... At TIME , the time of the explosion , I was in my neighbourhood . When the explosion happened , I did not have my mobile phone - it was charging . When I arrived home , I saw that there were no missed calls . ”

Asked by the public prosecutor why he had not revealed , during his examination on DATE , that he had been abducted on DATE and about the subsequent sequence of events , the applicant stated :

“ I did not tell the investigating judge , because I was told by police officers in ORG that I should not say anything . What I said DATE , I also said on DATE , but the judge did not note it ... I signed the record ( of CARDINAL DATE ) , but I did not read it . I do not know why the judge did not note down the whole event in ORG and then in GPE police station ... ”

The applicant further named CARDINAL individuals , including a certain PERSON and S.A. , with whom he had allegedly been at the critical time on DATE . In this connection he asked the court to examine those witnesses .

After the court read out his statement of CARDINAL DATE given in the pre - trial proceedings , the applicant confirmed the part of that statement indicating that he had been threatened by ORG to force him to make the statement .

The applicant ’s father stated that the police had searched his house in his absence and that he had been forced to sign the search record and the certificate of seized objects . He confirmed that the map of LOC belonged to the applicant . Lastly , he stated that on DATE , at the time of the explosion , the applicant had been in the house .

At a hearing of CARDINAL DATE , the applicant was shown the map of LOC , which the applicant confirmed that he had found at his school . He was further shown photographs of himself wearing a military uniform and carrying a machine gun . In this connection the applicant stated that the photographs had been taken on the occasion of a religious holiday when it had been possible , for a certain price , to be photographed wearing such a uniform .

The trial court also heard oral evidence by PERSON and ORG stated , inter alia :

“ On DATE , as on any other night , we met friends outside our doors , because it was very hot . That night [ the applicant ] was with us ... That night ( the following were present ) I , S. , PERSON , as well as A. ... At TIME we were outside . At TIME or TIME we were all outside , including GPE I want to say that many other people were there as well . Then , there was an explosion , everybody went out , we did not know what was going on . At the time of the explosion , [ the applicant ] was with us ... TIME later someone came out of the house saying he had seen on television that a bomb had exploded at GPE police station . We stayed there talking . [ The applicant ] was there as well . On DATE we noticed that [ the applicant ] was absent . He was not there on DATE either . On DATE [ the applicant ’s ] father told us that [ the applicant ] had been arrested . There were rumours that he had been arrested in connection with the explosion at the police station . That is why I agreed to testify as a witness , to say that [ the applicant ] did not do it . No one asked me to testify . I volunteered to do it ... I gave a list of everyone who was there that night with [ the applicant ] to [ the applicant ’s ] father . I gave him that list after [ the applicant ] had been arrested ... We wanted to vouch that [ the applicant ] had been with us and that he had not done it . ”

On being asked by the public prosecutor how he remembered that the applicant had not been there on DATE , PERSON said :

“ Since [ the applicant ] was normally there TIME and was not there that TIME , his friends were wondering where he was ; his friends noticed his absence ; I learned about it from them . ”

S.A. also confirmed that at the critical time on DATE the applicant had been outside his house talking with other people . He stated , inter alia :

“ That night [ the applicant ] was with us ; he stayed out other TIME as well , but I can not say whether it was TIME , because I go out only some nights ... I can not say exactly whether it was TIME or TIME when we heard a very loud explosion ... We were standing in front of [ the applicant ’s ] house after TIME , until TIME ... ( the applicant ’s ) father asked me to testify as a witness ... He asked me if I would like to testify in court that ( the applicant ) had been with us that night ; I agreed . ”

On DATE GPE , the expert doctor who had carried out and signed the medical report regarding the applicant ’s injuries of DATE ( see paragraph CARDINAL above ) , gave oral evidence before the trial court in the presence of the accused and their representatives . He explained the recovery process of a bruise and its colour changes . He confirmed the veracity of the written report and that the applicant ’s injuries had been inflicted DATE ( or DATE more than that ) before the date of examination .

The applicant ’s lawyer stated :

“ I do not contest the expert report regarding the injuries specified therein and their colour . ”

At a hearing on DATE the public prosecutor made the charge specific , and also accused the applicant and GPE of trafficking in arms .

On DATE the trial court convicted the applicant , GPE and GPE ( in absentia ) and sentenced them to CARDINAL , ten and CARDINAL years’ imprisonment respectively . The applicant was found guilty of terrorism and trafficking in arms under ORG CARDINAL and CARDINAL of LAW ( see paragraphs CARDINAL below ) . The court further ordered confiscation of the semi - automatic weapon , CARDINAL bullets and CARDINAL explosive items from the applicant . The convicts were also ordered to compensate for the damage sustained . An indefinite expulsion order ( протерување странец од земјата засекогаш ) was issued in respect of LANGUAGE The court established that the applicant and GPE , together with ORG , were responsible for the explosion of DATE in the LOC police station , the aim of which was to endanger the constitutional order and public safety .

In the judgment , which runs to CARDINAL pages , the court reproduced and analysed the statements that the applicant had given in the pre - trial proceedings ( CARDINAL and DATE ) and at the trial ( DATE ) , as well as the medical report dated DATE and the oral evidence of the expert of DATE . Noting that the applicant ’s statements were inconsistent , the court gave weight to his confession statement of CARDINAL DATE , finding that it contained a clear , complete and logical description of the events of the critical date . It was given in accordance with the law : the applicant had been informed of his rights , and he had read the written transcript of the court hearing and had signed it . It held that that statement was consistent and reliable , because the applicant had given a chronological description of the events ; he had also given a detailed description of the device , the place and the means by which he had detonated it , which corresponded to the experts’ reports regarding the incident . The statement of CARDINAL DATE was also corroborated with a detailed list of calls on the mobile phones confiscated from the convicted individuals , which confirmed that there had been intense communication between them before and after the incident .

NORP The court further established that in the statement of CARDINAL DATE the applicant had retracted his confession of QUANTITY DATE , which he had stated had been given under duress , namely that he had been beaten on that date by police while detained in the police station . On the basis of that testimony , the investigating judge had ordered an expert examination of the applicant . The experts , relying on medical science and practice , had established that the applicant ’s injuries had been inflicted DATE before the date of the examination ( DATE ) . Accordingly , the injuries had not been inflicted on DATE when he had been arrested and detained ; they had therefore not been inflicted by the police .

The court went on to say that after the expert examination the applicant had concocted another version of the events he had presented in his statement of CARDINAL DATE . In that statement the applicant had given another description of events , namely that he had not been detained on DATE and beaten up in the police station , but that on DATE the police had abducted and detained him in a luxurious house in ORG ; that he had been held under water in a swimming pool ; tied up ; and beaten , to make him confess to the crime . The court held that nothing suggested , as implied by the defence , that there had been CARDINAL periods of detention , the first unlawful ( DATE ) and the second ( DATE ) , lawful . The court held , referring to the decision of the investigating judge ( see paragraph DATE above ) , that the applicant had been detained on DATE in accordance with the law .

It further found that no evidence had been presented that the applicant had been arrested by the police on DATE and ill - treated in a house in ORG . That version of events , according to the court , was fictional and invented in order to match the date when the injuries had been inflicted , as established in the expert report . The court held that the applicant ’s statements of CARDINAL DATE and DATE were inconsistent and implausible . In his testimony of CARDINAL DATE the applicant had made no comment as regards his alleged abduction on DATE and interrogation in ORG . Contrary to the applicant ’s argument that he had been scared and confused when he had given his confession statement on DATE , the court record of his questioning of that date suggested no disorder or lack of capacity for rational perception . Had the investigating judge noticed any indication of unsafety , fear , panic or lack of capacity on the part of the applicant , he would have terminated the questioning .

Lastly , the court concluded that the applicant ’s confession statement of CARDINAL DATE coincided with the motives for committing the crime and the intention to provoke fear and unsafety . The drawing of the map of LOC and photographs of himself wearing military uniform and carrying weapons found in the applicant ’s possession confirmed his political determination to create an imaginary , non - existent entity by DATE through jihad . The court examined the evidence produced by ORG , but dismissed it as unreliable , for the following reasons : the witnesses were neighbours of the applicant ; the applicant ’s house was in the immediate vicinity of the LOC police station where the explosive had been placed , which had allowed him to leave the scene without being noticed ; they had been instructed to provide alibis , but their statements were incoherent .

The applicant appealed against the judgment to ORG . He submitted , inter alia , that he had been convicted on the basis of unlawfully obtained evidence , namely his testimony of DATE , which had been given under duress . That the applicant had been subjected to police brutality was confirmed by his injuries described in the expert report of CARDINAL DATE . Besides that medical evidence and his clear description of events as to what had happened CARDINAL DATE , he could not produce any other evidence to support his allegations of abduction and ill - treatment . He further complained that he had not been legally represented when he had given the statement of CARDINAL DATE , notwithstanding that legal representation was obligatory . Lastly , he contested the lawfulness of the search of his father ’s house .

At a public session held on DATE , ORG , sitting in a CARDINAL - judge panel , upheld the trial court ’s judgment and dismissed the applicant ’s appeal . The court stated :

“ The complaints ( that the applicant ’s conviction had been based on his confession statement given under duress ) were the subject of a complete and careful review by the adjudicating panel , which found them unsubstantiated . The trial court did not commit a substantive violation of procedural rules ... since there had been no evidence that ( the applicant ’s ) statement of DATE before the investigating judge had been given under duress ; ill - treatment ; physical assault ; or threats . That this statement was lawful was explained by the trial court in detail ( on CARDINAL pages ) ...

The trial court , after examining all CARDINAL statements of ( the applicant ) , gave weight to his statement of CARDINAL DATE given before the investigating judge , as lawfully obtained and reliable evidence . The statement of CARDINAL DATE is clear ; it provides a reasonable description of the entire incident ; it gives a chronological account of all details of the manner and place he had met the other CARDINAL co - defendants ; of all activities and preparations pre - dating the incident ; of the means by which the crime had been committed ; also a description of the device ; the length of the fuse ; the role of the co - defendants GPE and ORG .... Details regarding the place where the device had been placed , which could have been known to the applicant as the perpetrator of the crime , matched the on - site examination report ; there were also photographs , as well as the expert reports regarding the nature and description of the explosive device and the place where it had been placed ...

( The applicant ) gave his testimony of DATE before the investigating judge , the public prosecutor and a court interpreter , without the presence of the police ; he was advised of all his rights under LAW , including the right to remain silent and the right to an attorney ; which ( the applicant ) waived . That he confessed to the crimes was not the result of external pressure or threats , but an act of acceptance and remorse for the unlawful actions . ”

As regards the right of the applicant to be legally represented at his questioning before the investigating judge on DATE , the court held that notwithstanding that he had been informed of his right to mount a defence , including the right to an attorney , he had clearly stated that he would give his testimony without a lawyer . He did not mention to the investigating judge that he was in any particular mental state or that he was otherwise unfit to testify . After the investigating judge had ordered the applicant ’s pre - trial detention , a court - appointed lawyer was appointed ( see paragraph CARDINAL above ) . That had been done in compliance with section CARDINAL of LAW ( see paragraph CARDINAL below ) . The search warrants had been issued , and the search records had been duly signed by the applicant ’s father and the attending witnesses who had attested to the lawfulness of the search carried out in the house of the applicant ’s father ( see paragraphs CARDINAL and CARDINAL above ) .

The applicant and GPE appealed against these judgments by means of a request for extraordinary review of a final judgment , which ORG , with a judgment of DATE , allowed in part and dismissed the indictment regarding trafficking in arms , which , as found by ORG , had not been submitted in accordance with the law . The court upheld the lower courts’ judgments in the remaining part and dismissed the applicant ’s complaints that his conviction had been based on unlawfully obtained evidence ( the statement of DATE ) given allegedly under duress . The court ruled that the lower courts had examined , but nevertheless dismissed , that complaint , providing sufficient reasons for their judgments . The court concluded that the applicant ’s conviction had not been based solely on his testimony of CARDINAL DATE . It rested also on other documentary and verbal evidence , which had been communicated to the defence .

On DATE the applicant lodged with the public prosecutor ’s office a criminal complaint in which he alleged that he had been subjected to police brutality . In the complaint the applicant outlined his statements given on CARDINAL and DATE and DATE , as well as the expert report regarding his injuries admitted in evidence in the criminal proceedings against him . He alleged that an unidentified perpetrator had tortured him . He attached a copy of the medical expert report and the court record of DATE , as well as a copy of the trial court ’s judgment .

As no action was taken regarding his criminal complaint , on CARDINAL DATE the applicant approached the public prosecutor ’s office , seeking that measures be taken to bring those responsible to justice , but he received no reply from the public prosecutor .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Constitutional proceedings;Article 6-1 - Impartial tribunal);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Aleš Pejchal;André Potocki;Angelika Nußberger;Ganna Yudkivska;Mark Villiger;Vincent A. De Gaetano

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

Since DATE , the applicant and GPE have been involved in legal disputes against each other concerning the property rights in PERCENT of the bearer shares in both the EMK stock corporation and the EMK Engineering stock corporation , companies resident and registered in GPE which trade in building units .

By an immediately enforceable interim injunction dated DATE , taken in accordance with LAW ( see paragraph CARDINAL below ) , ORG granted GPE ’s request to prohibit ORG to register certain changes concerning the EMK Engineering stock corporation which had been decided in the corporation ’s extraordinary ORG meeting of DATE ( file no . CARDINAL.CG.CARDINAL.CARDINAL ) . It thereby confirmed its provisional order of CARDINAL DATE to that effect . The ORG notably prohibited registering the decisions taken in that meeting that GPE had been voted out of his office as a representative and member of the corporation ’s supervisory board with power to represent the corporation and that the applicant had been elected managing director of the corporation with power to represent the corporation alone .

On DATE ORG quashed that decision on the applicant ’s request and the case was remitted to ORG for a further investigation of the facts .

On DATE ORG issued a fresh identical interim injunction . It stated that the interim order served to secure GPE ’s claim in the main proceedings for a declaration that the decisions taken in the EMK Engineering stock corporation ’s extraordinary ORG meeting of CARDINAL July DATE were null and void and for a prohibition of the entry of those decisions in the real property and commercial register .

ORG confirmed that the applicant had not obtained property of PERCENT of the bearer shares in the EMK Engineering stock corporation and had not therefore validly represented PERCENT of the shares in the corporation ’s extraordinary ORG meeting . The decisions taken in that meeting were thus unlawful . It further found that interim injunctions under LAW could also be taken in order to secure claims for a declaration ( Feststellungsansprüche ) if such a measure was necessary to preserve the status quo of either an object or a legal relationship . For such interim orders the restriction that interim injunctions should not anticipate the outcome of the main proceedings did not apply . In the present case , it was necessary to maintain the status quo in the commercial register in order to prevent GPE from suffering irreversible damage . GPE could suffer such damage if the changes in question were made in the real property and commercial register as dispositions could then be taken for the stock corporation without his participation .

On DATE ORG dismissed the applicant ’s appeal against the order of DATE .

On DATE the applicant lodged a constitutional complaint with ORG against ORG decision dated DATE .

On DATE ORG informed the applicant that judges PERSON . , PERSON , ORG and PERSON would deliberate on his complaint in private on DATE .

By submissions dated DATE , which were received at the court on DATE , the applicant , who was not represented by counsel at that stage of the proceedings , lodged motions for bias against all CARDINAL judges called upon to decide on his complaint and against the secretary in charge ( PERSON ) , PERSON

The applicant argued , in particular , that ORG had to his disadvantage not quashed previous decisions of the lower courts in related proceedings . Moreover , he complained that it had taken LAW DATE to assign the judges who were to decide on his complaint despite the importance of the proceedings for him and that the court discriminated against NORP nationals .

Furthermore , in the applicant ’s submission , judges PERSON , PERSON and PERSON and secretary PERSON had failed to take measures to remedy the disadvantages resulting from the fact that the commercial register did not reflect his rights concerning the EMK Engineering stock corporation and had arbitrarily disregarded his rights under LAW no . CARDINAL to the LAW in previous related proceedings .

The applicant further submitted that , for different reasons , the CARDINAL judges of ORG individually were not impartial . As regards the court ’s president , judge PERSON , the applicant complained that the latter had not granted his constitutional complaint suspensory effect and had refused to order interim measures in related proceedings . Furthermore , judge PERSON was a member of different committees and commissions of which judges of ORG , which had given a decision contested by him in the main proceedings , and judge PERSON , who was a judge at ORG and GPE ’s brother , were equally members .

In the applicant ’s submission , judge PERSON . , for his part , was biased because he worked for the Government in that he drew up expert reports on constitutional questions and taught at seminars organised by the Government . He further worked with judge PERSON on a regular basis .

The applicant further stressed that judge PERSON was a member of the supervisory board of a state - owned company and was therefore not independent and impartial .

Judge PERSON , for his part , had been a professor at ORG and was , therefore , not independent as he had worked for the Government and as judges had short terms of office . Moreover , he was biased as he was a good friend of judge PERSON , GPE ’s brother .

Finally , judge PERSON , in his law firm , was the partner of a lawyer against whom the applicant had brought proceedings concerning an inheritance . Another lawyer of that law firm had already represented the EMK Engineering stock corporation . Moreover , judge PERSON had previously worked as a lawyer in judge PERSON ’s law firm .

CARDINAL of the judges of ORG made statements on the applicant ’s motions for bias . Judge PERSON . stated that he had not drawn up any expert reports for the Government since his appointment as a judge . Judge S. submitted that he did not draw considerable income from his work as a member of the supervisory board of a state - owned stock corporation . Judge PERSON explained that he did not have any knowledge of whether his partner in the law firm , who was currently absent , was involved in unrelated legal proceedings with the applicant . His work for judge PERSON dated back DATE and he had been working as a self - employed counsel for DATE already since then .

On DATE ORG , composed of judges PERSON . , PERSON , ORG and PERSON , dismissed the applicant ’s motion for bias against them ( file no . PERSON ) .

ORG stated that , in accordance with the principle that , if possible , a motion for bias should not be decided upon by the challenged judge , the challenged judges , respectively , had not participated in the deliberations and the decision on the respective motion for bias against them , which had been decided upon by the CARDINAL remaining judges .

The Constitutional Court considered that the fact alone that judges PERSON , PERSON and PERSON had already taken part in decisions finding against the applicant in related proceedings did not suffice to substantiate that there were objectively justified doubts as to their impartiality . Likewise , the fact that the judges were elected for DATE did not compromise their impartiality .

NORP The independence of the judges of the Constitutional Court vis - à - vis the executive was guaranteed by LAW . The applicant further had not substantiated that the executive had influenced the judges of ORG in the present proceedings in any way . The fact that some of the judges had previously worked for the executive did not suggest that the executive had influenced the present proceedings .

Finally , the fact that the challenged judges worked together with ORG brother , the vice - president of ORG , on a regular basis and were friends of the latter did not objectively cast doubts on their impartiality in the circumstances of the present case . In a small country like GPE , excessively strict standards in this respect would disproportionately obstruct the administration of justice .

The decision was served on the applicant on DATE .

On DATE ORG , composed of judges PERSON . , PERSON , PERSON allowed the applicant ’s constitutional complaint in so far as he had complained under LAW about the unreasonable length of the proceedings and dismissed the remainder of his complaint ( file no . PERSON ) . The applicant complained about that judgment in a new , separate application ( no . CARDINAL/CARDINAL ) to the ORG .


George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney

NORP The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the ORG by Mr Jaakko Tuutti , a lawyer practising in GPE .

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

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

The applicant is in prison . On DATE a letter sent to the applicant was withheld by the prison authorities on the basis of LAW , section CARDINAL , of FAC on suspicion that it contained drugs . The letter was sent to the police for further investigation . The applicant was informed about the withholding of the letter on DATE . According to the established prison practice , the withheld letter was either given to the applicant to read or it was read to him .

On DATE the police found that no crime had been committed as they could find only a very small amount of possible traces of drugs in the letter using the means at their disposal . For this reason , as well as for expediency and cost - effectiveness , the police decided not to forward the letter to a forensic laboratory for further testing but returned it to the prison .

The prison decided to withhold the letter still as it had not been examined properly . The applicant was informed that he would receive the letter only upon his release .

On an unspecified date the applicant sought rectification of the prison director ’s decision of CARDINAL DATE to withhold his letter .

On DATE ORG ( rikosseuraamusvirasto , brottspåföljdsverket ) refused his application finding that , according to domestic law , mail sent or received by a prisoner could be withheld , inter alia , in order to prevent danger or to protect safety in prisons . Such mail was to be returned to the sender or given to the prisoner upon release .

NORP By letter dated DATE the applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , requesting that the prison director ’s decision be quashed . Interpretation of the domestic provisions in accordance with fundamental rights should have led to the use of alternative , less restrictive means . As no traces of drugs had been found , the letter or a copy of it should have been given to the applicant .

On DATE ORG , by a final decision , rejected the applicant ’s appeal . It found that the withholding of the applicant ’s letter had been necessary in order to prevent danger and crime in the prison . The letter had been singled out by a sniffer dog , which had led to a strong suspicion of the presence of drugs . In such a situation the domestic law did not oblige the prison authorities to give a copy of the withheld letter to a prisoner .

On DATE a copy of the letter was given to the applicant .

According to LAW perustuslaki , ORG grundlag , Act no . CARDINAL/CARDINAL ) , the secrecy of correspondence , telephony and other confidential communications is inviolable . Provisions concerning limitations of the secrecy of communications which are necessary in the investigation of crimes that jeopardise the security of the individual or society or the sanctity of the home , at trials and security checks , as well as during the deprivation of liberty , may be laid down by an Act .

According to LAW , the rights of individuals deprived of their liberty shall be guaranteed by an LAW . The rights of convicted prisoners and pre - trial detainees and the necessary restrictions on these rights are regulated by LAW and LAW .

Chapter CARDINAL , section CARDINAL , subsection CARDINAL , of FAC ( vankeuslaki , fängelselagen , Act no . CARDINAL/CARDINAL ) provides that a prisoner has the right of correspondence . Any sealed letter or other mail destined for the prisoner or sent by the prisoner may be checked by X - ray or by similar methods without opening the mail , in order to examine whether it contains prohibited substances or objects referred to in LAW , section CARDINAL , subsection CARDINAL or CARDINAL , of the LAW .

LAW , section CARDINAL , of the LAW provides that a letter , mail or message sent by or destined for a prisoner may be withheld , if the withholding is necessary for the prevention or solving of crime , prevention of disorder in the prison or for the safety of the detainee or other persons . The recipient or the sender shall be immediately informed about the withholding and the reasons for it . A letter , mail or message which has not been delivered shall be returned to the sender or given to the prisoner upon release .


CASE OF DİLİPAK AND KARAKAYA v. TURKEY [Extracts]

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms);Violation of Article 10 - Freedom of expression -{General} (Article 10-1 - Freedom of expression);Just satisfaction reserved

András Sajó;Guido Raimondi;Helen Keller;Paul Lemmens;Peer Lorenzen;Robert Spano

The applicants were born in DATE and DATE respectively and live in GPE . They are both journalists who were working for the PERSON DATE newspaper at the material time .

On DATE , on the occasion of the funeral of Admiral Güven GPE , the former Commander - in - Chief of the navy and member of ORG , PERSON PERSON published an article in the PERSON DATE newspaper , whose front - page headline read “ We will not waive our rights ” . In the article the journalist criticised the late Admiral for the role he had played in the political process triggered by the meeting of ORG on DATE , which some observers have called a “ post - modern coup d’état ” .

On DATE Mr PERSON also published an article in the same newspaper on Admiral PERSON , criticising his actions .

On DATE the deceased ’s family brought a civil action for damages in ORG of First Instance ( “ the ORG ” ) against the applicants and the company owning the newspaper . The family also lodged a complaint with the GPE public prosecutor ’s office .

When bringing their civil action , the PERSON family gave the newspaper ’s registered office as the GPE address .

NORP However , the postal service did not succeed in serving the summons and the statement of claim on the applicants at this address , as they were not to be found there . This fact was confirmed by the elected neighbourhood leader ( muhtar ) , who countersigned the report noting that the summons could not be served on the relevant persons .

ORG then asked the police to ascertain the applicants’ addresses .

According to ORG , after the police had completed their inquiries , they informed it of CARDINAL addresses in GPE : CARDINAL in the LOC neighbourhood ( PERSON no . CARDINAL ) , in respect of Mr PERSON , and the other in the Mecidiyeköy neighbourhood ( ORG no . CARDINAL ORG ) , in respect of PERSON PERSON .

The decision was subsequently taken to send fresh summonses to these addresses .

The record of the service of Mr PERSON ’s summons stated that it had been handed to a certain PERSON , describing him as an “ authorised employee ” ( yetkili personel ) .

In the case of Mr PERSON , the summons could not be served on the ground that he was unknown at the stated address .

ORG decided to serve the summons via publication in the press on the ground that it was impossible to ascertain Mr PERSON ’s address .

On DATE , in the absence of the defendants , who had never appeared at the hearings , ORG delivered a judgment ordering them jointly to pay the sum of MONEY ( TRY ) , equivalent to MONEY ( ORG ) , together with interest in arrears from DATE , for non - pecuniary damage .

ORG considered that in his article Mr PERSON had insinuated that the deceased would pay for his wrongdoing and that justice would be done ORG noted that he had used the phrase “ may your land be abundant ” , which was reserved for non - NORP . It cited the following passage in particular :

“ Whatever you do , do not remind me of the injunction ‘ do not speak ill of the dead’ . This injunction does not apply to PERSON , PERSON or PERSON . Otherwise the Koran would not say what it does about PERSON and PERSON . PERSON was certainly not PERSON , but nonetheless he holds a particular place in the consciousness of our people . ”

In the case of Mr PERSON , ORG held that he had insinuated that the circumstances surrounding the Admiral ’s death –particularly his cancer – were but his due for the suffering which he had inflicted on the people . It noted that the journalist had also written that this death had not saddened him , that he would not attend the Admiral ’s funeral and that he would not waive his rights over him . It also noted the following passage :

“ He made the people weep , but now his family are weeping ... He invented the lie that Koranic school students swore an oath to combat the secular system and PERSON . The PERSON schools may now be closed , but so are PERSON ’s eyes . ”

ORG concluded that the applicants had “ exceeded the limits of criticism by launching a personal attack on the deceased on the ground of his functions ” , especially since he had been a “ valorous army commander who [ had ] served the nation ” .

Furthermore , it pointed out that inquiries had been carried out into the defendants’ economic and social situation and that the turnover of the company owning the PERSON newspaper had been ascertained from the tax authorities .

The judgment was not served on Mr PERSON because he no longer lived at the latest address known to the registry ( PERSON ) . As he had not informed the court of his change of address , the judgment was deemed to have been served in accordance with section CARDINAL of LAW ( see paragraphs CARDINAL below ) .

The record drawn up by the notifying officer stated that a local resident , R.Ö. , had been questioned about Mr PERSON ’s new address , albeit in vain . A stamp used by the local muhtar indicates that the address of service was a business address which had not been recorded in his files .

In the case of Mr PERSON , the judgment was served via publication in a newspaper on DATE . The judgment became final on CARDINAL DATE .

On DATE ORG added an annotation to its judgment to the effect that it was final ( kesinleşme şerhi ) .

On DATE the PERSON family submitted a copy of the final judgment to ORG and brought enforcement proceedings . On DATE the payment orders were drawn up and posted to the applicants ...

Mr PERSON received his payment order at his home address in the ORG neighbourhood in GPE ( GPE ) . Mr PERSON also received his order at his home address in GPE ( GPE ) .

On an unspecified date the applicants sought leave from ORG to appeal on points of law against the judgment of DATE , observing that they had been apprised of the latter on receipt of the aforementioned payment orders .

On DATE ORG rejected the ORG appeal ( temyiz dilekçesinin reddi ) on the ground that the judgment had become final .

The applicants lodged an appeal on points of law against the CARDINAL DATE decision .

Mr GPE challenged the lawfulness of serving the documents in question by publication in the press , contending that this procedure could only be used after all other methods had failed . He pointed out that he had been residing at the same address for DATE , and submitted that the requisite steps had not been taken to find his address . In his view , his address could have been easily ascertained by means of a simple letter to ORG ( PERSON ) or to ORG ( a department operating under the Prime Minister , with responsibility for issuing press passes ) .

He pointed out that the judgment had become enforceable on DATE and that the payment order had been drawn up and sent to his home within DATE of that date . Furthermore , the address had been given to ORG by counsel for the PERSON family . He specified that the latter had long been in possession of his address and had deliberately refrained from saying so until the judgment had become final .

Mr PERSON concluded that neither the summons nor the judgment had been validly served on him .

Mr GPE , for his part , complained that the documents had been served at another person ’s address rather than his own .

He pointed out that in accordance with the law , when judicial documents were served at a business address , they could be handed over to CARDINAL of the addressee ’s permanent employees if , and only if , the addressee was absent . He submitted that in the present case , the documents had been served at a business address but that the person mentioned in the record had not been CARDINAL of his employees . Moreover , the record did not mention the reason why the documents had not been handed over to him in person .

Lastly , he found it surprising that the claimants had considered throughout the proceedings that his address was “ PERSON no : CARDINAL – Aksaray / GPE ” and that , DATE after the judgment had become final , they had suddenly found his real address and given it to ORG .

On DATE ORG dismissed on the merits the appeal on points of law against the impugned judgment on the ground that the latter was “ in conformity with procedural and statutory law ” .

On DATE Mr PERSON submitted a request for rectification of the judgment .

He submitted that ORG had not made any serious attempt to find his address .

Mr PERSON pointed out that the court had indeed submitted a request to the police and that the report sent to the court had indicated CARDINAL address for each of the other CARDINAL defendants , but that neither of these addresses had concerned him . He specified that the document in the case file contained a handwritten entry “ PERSON Is . Ad . NORP , GPE ” alongside his name , that the author of this entry was unknown , and that the judge had , strangely enough , considered that it referred to the address “ PERSON . no : CARDINAL Cavuşoğlu Iş Merkezi Mecidiyeköy GPE ” , to which he had decided to send the summons made out to him .

Explaining that according to the law and the case - law of ORG the court should have made enquiries among the relevant government departments and institutions and not confined itself to police searches , he accused the court of having failed to take the necessary action . In this connection , he produced letters from the civil status register , ORG ) , ORG , ORG , and an ORG organisation ( ORG ) , stating that according to their files , he was a long - term resident of the ORG neighbourhood in GPE . He also submitted a document from the elected leader of the ORG neighbourhood to the effect that he had been living at the same address in that neighbourhood since DATE .

Mr PERSON also presented a letter from ORG confirming that he had been assigned a bodyguard . In his view this meant that his address was known to the police .

NORP Moreover , ORG , ORG and ORG had all been aware of his address .

He also submitted that the PERSON family must have known his address because it had been mentioned in the case file for the criminal proceedings which they had jointed as intervening parties , the summons had been sent to him at that address and he had stated the same address at his hearing before ORG .

He based his whole line of reasoning on the case - law of ORG , including a judgment delivered by its ORG on DATE ( MONEY E – CARDINAL/CARDINAL K ) . In this judgment the court had stressed the importance of judicial notices , which were closely linked to the rights of the defence . It had held that efforts to ascertain an address should be very wide - ranging , covering enquiries to government bodies such as municipal councils , civil status and land registries and various professional bodies , and that such action should not be confined to police investigations .

On an unspecified date Mr PERSON also submitted a request for rectification of the judgment .

On DATE the court dismissed the applicants’ requests on the ground that the conditions had not been met for rectifying the judgment .

On DATE ORG invited ORG at ORG to lodge an appeal in the interests of the law against the judgment of DATE on the ground that the rules on notification of judicial documents had been infringed . He backed up his arguments by citing the aforementioned judgment adopted on CARDINAL DATE by ORG of ORG .

DATE . On DATE ORG dismissed the appeal in the interests of the law lodged by ORG .

On DATE the applicants applied for the reopening of the proceedings before ORG of First Instance and a stay of execution of the judgment of DATE . In support of their application , they submitted that criminal proceedings for an attempted coup ORG had been instituted against senior army officers who had been on ORG in DATE , and that those concerned had been taken into pre - trial detention . According to the applicants , this was a new fact that had been unknown to the court at the time of the judgment . They pointed out that this fact was liable to cast doubt on the court ’s use of such laudatory expressions as “ valorous army commander who served the nation ” in connection with the deceased . Furthermore , the applicants submitted that the applications which they had lodged with ORG were currently under examination and that a finding of a violation of the LAW was a ground for reopening the proceedings . They therefore invited the court to order a stay of execution of the judgment until the ORG had heard and determined their applications .

By an order of CARDINAL DATE , ORG decided to suspend the enforcement procedure on condition of payment of a surety of TRY CARDINAL ( approximately EUR CARDINAL at the time ) .

No information has been provided on the action taken on this order .


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

Branko Lubarda;Dmitry Dedov;Luis López Guerra

The applicants complained of the excessive length of different administrative and civil proceedings under LAW .

All applicants obtained decisions of ORG , which found a violation of their right to a hearing within reasonable time .

As regards the applicant Mr PERSON , according to the regulations applicable at that time , the ORG established his right to seek compensation for non - pecuniary damage before ORG . Mr GPE submitted his request for damages to the Commission on DATE , but he has not received the response to date .

As regards the applicants Mr PERSON and Mr PERSON , ORG awarded them certain sums in respect of the non - pecuniary damage suffered ( see appendix to this judgment ) .


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

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

The applicant was born in DATE and lives in GPE .

On DATE F. bought a QUANTITY flat at CARDINAL PERSON , GPE . On DATE F. died intestate and without heirs . According to the Government , his flat was locked and sealed by the housing maintenance company .

On an unspecified date ORG brought a civil action seeking recognition as F. ’s heir - at - law . GPE authorities took part in the proceedings as a respondent . On DATE the Simonovskiy District Court of GPE granted her claim and recognised her title to F. ’s flat . The judgment came into force on DATE .

On DATE ORG sold the flat to ORG transaction was registered by ORG .

On DATE ORG quashed the judgment of DATE on appeal and dismissed ORG ’s claims .

On DATE PERSON sold the flat to the applicant . On DATE ORG registered the sale agreement and the transfer of the title to the flat to the applicant .

On an unspecified date ORG brought a civil action claiming that ORG had been erroneously recognised as F. ’s heir - at - law and that GPE should inherit his property instead .

On DATE ORG granted ORG claims . It ordered the transfer of title to the flat to the City and the requisition of the flat from the applicant . The court also considered that the applicant had not demonstrated due diligence when buying the flat from PERSON and could not be recognised as a bona fide purchaser .

On DATE , following an appeal by the applicant , ORG upheld the judgment of DATE .

On DATE ORG granted ORG claims against the applicant and ordered her eviction .

According to the Government , the applicant has not been evicted and continues to reside in the flat .

On DATE ORG upheld the judgment of DATE on appeal .

According to the Government , the bailiff failed to establish PERSON ’s whereabouts or locate any of his assets . The judgment in the applicant ’s favour remains unenforced . The enforcement proceedings are still pending .