Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction);Respondent State to take measures of a general character (Article 46 - Systemic problem;General measures)

George Nicolaou;Guido Raimondi;Krzysztof Wojtyczek;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

On DATE the applicant , then a CARDINAL-year - old student , left GPE for ORG in a vehicle with CARDINAL young men , GPE and GPE , and another young woman whom she frequented at the time and whose acquaintance she had made through CARDINAL of her close friends , GPE During the journey the CARDINAL men told her that they intended to “ sell ” her as a prostitute to people with whom they were in contact in ORG , and then to “ take her back ” after receiving the money . The applicant refused , but was threatened by ORG On their arrival at ORG the group met a number of people in various cafés in the town ; those people were apparently involved in prostitution rings abroad and discussed with GPE and PERSON sending the applicant to GPE , GPE or GPE to work as a prostitute and her alleged experience in the trade . The applicant was told that CARDINAL of the men they had met were police officers . The applicant was then taken to a flat where she was held against her will and repeatedly beaten and raped by several men for TIME , following which she managed to escape and found refuge in a neighbouring apartment block where occupants called the police .

During her first police interview the applicant attempted to throw herself out of the window and was then admitted to a psychiatric hospital . She subsequently received psychological counselling .

A criminal investigation was instituted by ORG for abduction and false imprisonment ; abduction for the purposes of coercing into prostitution ; and rape . The applicant identified some of her assailants and QUANTITY police officers whom the group had met prior to holding her against her will . She stated that the men were part of a criminal gang involved in human trafficking who wanted to force her into prostitution in western LOC .

In an order of CARDINAL DATE the ORG military prosecutor considered that there was insufficient evidence to prosecute the QUANTITY police officers , GPE and GPE , who had been charged with abduction , and discontinued the proceedings against them . The prosecutor observed , in particular , that after initially identifying the police officers , the applicant had not subsequently claimed that they had taken part in her abduction and false imprisonment . The prosecutor ’s order was amenable to appeal , but the applicant does not appear to have lodged CARDINAL .

During DATE and DATE several people involved were questioned , and an expert medical report was drawn up . The investigation was closed and the case sent to the prosecutor for a decision regarding committal for trial . However , on DATE the prosecutor decided to send the case back for further investigation on the grounds that irregularities had been committed and further evidence was required regarding the involvement of GPE and another individual , ORG the case was returned CARDINAL more times for further investigation . In an order of DATE , the prosecutor found that the investigator had failed to carry out any investigative measures since the case had been sent back . He also noted a number of irregularities in the charges against the various defendants , such as wrong dates , inaccurate legal classifications or inconsistencies between the facts set out and the legal classification retained . The prosecutor also noted that the investigation had been carried out in the absence of CARDINAL of the defendants without a duty lawyer being appointed and that some of the charges had to be amended , to take account , inter alia , of the fact that the applicant had attempted to commit suicide , which was an aggravating circumstance . In an order of DATE , the prosecutor noted that no measures had been carried out in accordance with his previous decision . In a further order of CARDINAL DATE , he observed that the instructions given had not been followed in their entirety , and in particular that the charges had not been amended .

The investigation was closed again and sent to the prosecutor on ORG DATE . On DATE the prosecutor decided to discontinue the proceedings against GPE and GPE , who had been prosecuted for abduction for the purposes of coercing into prostitution and incitement to prostitution respectively , on the grounds that the offences had not been made out . On appeal by the applicant , that decision was set aside by the court on DATE .

NORP The investigation was closed in DATE and the applicant was served with the investigation file . She then requested that CARDINAL of the men she had identified from a photo , Y.Y.G. , also be charged with rape . Her request was rejected on DATE by the district prosecutor , who considered that there was insufficient evidence against him , the applicant ’s statement being the only basis for implicating him in the attack . On DATE part of the investigation , which concerned the offences of which the applicant accused Y.Y.G. and PERSON , was severed from the main proceedings and fresh proceedings brought against persons unknown . On DATE the ORG appellate prosecutor ’s office upheld the decision not to charge Y.Y.G. , noting that if new evidence were to emerge , the investigators could bring further charges in the proceedings against persons unknown . On DATE those proceedings were stayed , on the ground that the perpetrators had not been identified .

On an unspecified date in DATE CARDINAL defendants were committed for trial in ORG on charges of false imprisonment , rape , incitement to prostitution or abduction for the purposes of coercing into prostitution .

On DATE the applicant sought leave to join the proceedings as a private prosecutor and civil party seeking damages . The court granted the application at a hearing held on DATE .

ORG held CARDINAL hearings . CARDINAL of these were adjourned , mainly because the defendants or witnesses had not been properly summoned . The trial took place in the absence of CARDINAL of the defendants , PERSON , whom the authorities had been unable to find .

In a judgment of DATE , the court convicted PERSON and GPE of gang rape , aggravated by the fact that the victim had attempted to commit suicide , and false imprisonment with aggravated circumstances . They were sentenced to DATE imprisonment . ORG and GPE were convicted of abducting the applicant for the purposes of coercing her into prostitution and sentenced to CARDINAL and CARDINAL years’ imprisonment respectively . GPE was convicted of false imprisonment and sentenced to a fine of MONEY ( ORG ) . The court found that the offence of incitement to prostitution for which ORG was being prosecuted was time - barred in accordance with the absolute limitation period and discontinued the proceedings against him . Lastly , it found GPE not guilty of abduction for the purposes of coercing into prostitution on the grounds that the offence had not been made out as GPE had not been present at the material time . The CARDINAL defendants who had been convicted were ordered to pay the applicant damages , and the claim against the other CARDINAL defendants was rejected .

The CARDINAL defendants who had been convicted appealed . The applicant appealed only against the part of the judgment concerning GPE , requesting the imposition of a heavier sentence and an increase in the amount awarded in damages .

Seven hearings before ORG were adjourned on account of the absence of CARDINAL of the accused or their lawyers . The first hearing on the merits took place on DATE . As CARDINAL of the defendants , PERSON and PERSON had not appeared , the court decided to examine the case in their absence .

In a final judgment of DATE , the court set aside GPE ’s conviction and terminated the proceedings against him on the grounds that they had become irrevocably time - barred . It amended the judgment concerning the other defendants : the classification of the offence of which PERSON and GPE had been convicted was slightly amended and their sentence reduced to DATE imprisonment . The sentence imposed on ORG was reduced to CARDINAL years’ imprisonment and ORG DATE prison sentence was upheld .

The court also reduced the amounts awarded to the applicant in non - pecuniary damages . It awarded the applicant a total amount of ORG CARDINAL,CARDINAL , which was the equivalent of MONEY ( ORG ) , ordering FAC and GPE to pay the applicant ORG CARDINAL,CARDINAL each , and GPE , GPE and GPE to pay her ORG CARDINAL , ORG CARDINAL,CARDINAL and ORG CARDINAL respectively .

During the judicial proceedings the applicant , who was living in GPE , had to travel to ORG on numerous occasions to attend hearings . She was called to the witness stand CARDINAL times . According to a medical opinion produced by the applicant , each summons to appear before the court had adversely affected her psychological condition .


Preliminary objection dismissed (Article 35-1 - Six month period);Remainder inadmissible;Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Respondent State to take measures of a general character (Article 46-2 - Legislative amendments);Respondent State to take individual measures (Article 46-2 - Individual measures);Non-pecuniary damage - award

Egidijus Kūris;Guido Raimondi;Helen Keller;Nebojša Vučinić;Paul Lemmens;Robert Spano

The applicant was born in DATE and lives in GPE . He is the father of PERSON , born on DATE , who died on DATE .

A. Incident of DATE

Following the death of CARDINAL members of the ORG ( ORG , an illegal armed organisation ) in an armed clash on DATE , many illegal demonstrations took place in ORG DATE , during which a number of demonstrators were killed . According to the Government , CARDINAL individuals took part in those demonstrations , in which the police headquarters was bombarded with stones , sticks and petrol bombs , with the police and their vehicles coming under attack around the city . It was reported that , during those incidents , CARDINAL people died and CARDINAL members of the police force and CARDINAL higher - ranking officers , a doctor , a nurse , CARDINAL journalists and an ambulance driver were wounded . Similarly , a number of offices and public buildings , including the school of medicine of ORG and police premises , were damaged .

On DATE , at TIME , on leaving his workplace , ORG found himself in the middle of a demonstration . The Government accepted the argument that ORG had not taken part in the demonstration but had just been passing by , and explained that the police had fired a large number of tear - gas grenades to disperse the demonstrators . PERSON was struck on the head by CARDINAL of the grenades and died TIME .

On DATE , at TIME , an autopsy was carried out at the public hospital of ORG . The report ’s conclusions read as follows :

“ CARDINAL . Death was caused by a haemorrhage and brain damage inflicted by a firearm projectile ( tear - gas grenade – gaz fişeği ) .

NORP The characteristics of the projectile ’s point of entry show that it had not been fired from a short distance ... ”

On DATE , ORG , an eyewitness and colleague of PERSON , went with ORG , another eyewitness and colleague of the latter , to the office of ORG in ORG . ORG stated in particular as follows :

“ ... On DATE , at around TIME , we closed the workshop with PERSON , CARDINAL of the workers , and returned home on foot . We saw tanks go past . People were very worried . CARDINAL members of the security forces , armed and wearing the uniform of special teams ( they were wearing special military uniforms with mixed colours , they were not ordinary policemen or soldiers ) , arrived . They started shooting at random . There was a great pandemonium . While we were running we heard gunfire ... We saw PERSON fall to the ground unconscious ( the security force personnel were firing with CARDINAL knee on the ground and taking aim . That means they were not firing in the air but towards people ) . ... I realised that [ Tarık Ataykaya ] was wounded in the head . ORG also realised this . We carried PERSON to an empty space near a building and called an ambulance ... ”

Following a request by the ORG public prosecutor ’s office on DATE , a forensic report was drawn up on DATE by the presidency of the criminal investigation department ’s forensic laboratories attached to the LOC police headquarters . It showed that the object extracted from ORG head was a plastic cartridge ( muhimmat ) from a tear - gas grenade of type no . CARDINAL . The report also stated that the cartridge did not bear any characteristic markings from which the firearm in question could have been identified .

B. Administrative and criminal investigations

NORP The applicant ’s complaint

On DATE the applicant filed a criminal complaint . Referring to the statements of ORG and ORG to ORG in ORG ( see paragraph CARDINAL above ) , he asked the public prosecutor of ORG to identify the police officer who had fired at his son and to bring criminal proceedings against him for murder . He also asked that the object extracted from the deceased ’s head be examined by a panel of experts from the forensic institute .

Attempts by the public prosecutor ’s office to determine the identity and number of members of the security forces authorised to use grenade launchers

On DATE the ORG public prosecutor ’s office responsible for investigating organised crime declined jurisdiction to examine the case . It stated , inter alia , as follows :

“ ... the autopsy carried out on the deceased showed that death had been caused by a cartridge striking [ the deceased ’s head ] . [ Subsequently ] , the forensic report established that this cartridge came from a tear - gas grenade of type no . CARDINAL , a type used by the security forces ... Consequently , the investigation must be carried out by the public prosecutor [ responsible for investigating ordinary crimes ] . ”

On DATE the public prosecutor of ORG dealing with the case , following the decision to decline jurisdiction on DATE , sent a letter to the LOC police headquarters . He asked for information on the police units which had been equipped with tear - gas grenade launchers during the incident of DATE and for the identification numbers of the personnel who had used them . However , it can be seen from the answers given by the ORG police headquarters , as summarised below , that it was not possible to establish with certainty the identity or number of all the members of the security forces who had been authorised to use that type of weapon .

First , in DATE , the ORG police informed the ORG public prosecutor that during the incident in question CARDINAL police officers from the special forces ( özel harekat ) , whose identification numbers were indicated in the letter , had used grenade launchers in order , according to them , to disperse demonstrators who had been throwing stones and petrol bombs at the security forces .

In a letter of CARDINAL DATE the head of ORG of the LOC police informed the ORG public prosecutor that it had not been possible to identify the individuals responsible for the death of PERSON .

On DATE the ORG public prosecutor asked the ORG police headquarters to inform him of the positions to which the QUANTITY police officers concerned had been assigned on the date of the incident in question .

On DATE a document concerning the assignment of the CARDINAL police officers was added to the file . It showed that these officers had been assigned to various zones during the incident .

In a letter of DATE , the head of ORG of the LOC police in turn informed the ORG public prosecutor ’s office that CARDINAL tear - gas grenade launchers had been listed in the names of CARDINAL officers of the special forces , that those officers had not been posted to GPE avenue ( near the site of the incident ) and that , in the course of the incident , those teams had been assigned to various zones on the instructions of the police chiefs . In addition , it stated that CARDINAL other police officers of ORG ( çevik kuvvet ) had used grenade launchers and that they had been assigned to different zones during the incident . He lastly concluded that grenade launchers had been used by a total of CARDINAL police officers attached to ORG .

Testimony obtained by the public prosecutor ’s office

On DATE the applicant was heard by the public prosecutor ’s office . He requested the identification and punishment of those responsible for his son ’s death .

On DATE , ORG , CARDINAL of the QUANTITY police officers whose identification numbers had been communicated previously ( see paragraph QUANTITY above ) , gave evidence to the public prosecutor ’s office . He stated that , on DATE of the incident , some CARDINAL police officers and soldiers had used tear - gas grenade launchers and that , if PERSON had died as a result of a tear - gas grenade fired by the security forces , any CARDINAL of those CARDINAL police officers and soldiers could have fired it . He added that , during the incident , CARDINAL tear - gas grenades had been used by police officers from the special forces in order to disperse the demonstrators .

On DATE the applicant was again heard by the public prosecutor ’s office . He repeated his request for the identification and punishment of those responsible for his son ’s death .

On DATE , ORG , an eyewitness and a colleague of PERSON , gave evidence to the public prosecutor ’s office . He stated in particular as follows :

“ ... On DATE we were working with PERSON in the joinery workshop on NORP boulevard in GPE . Around TIME , a large crowd had gathered on NORP boulevard because of the demonstrations ... We had to close the workshop . There were CARDINAL demonstrators and CARDINAL police officers , wearing camouflage clothing and balaclavas . As we were locking up the workshop , I saw that masked policemen , with CARDINAL knee on the ground ( yere diz çökerek ) , were firing guns unremittingly towards the demonstrators . PERSON was with us . He did not take part in the demonstrations . After leaving the workshop PERSON went back there because the demonstrators were heading towards us . [ At that moment ] , PERSON , hit by a bullet fired by CARDINAL of the policemen , fell to the ground , which means that he was shot by police gunfire . Supporting him , we took him to an empty space near a building and called an ambulance . ORG had been struck on the head and small pieces of his brain had come out . We took PERSON to hospital with a pick - up truck as there was no sign of the ambulance . As the policemen were masked , I am unable to identify them . ”

ORG added that , on DATE of the incident , some of his friends had said that they had seen footage of the incident , probably on the private television channel ORG .

On DATE , ORG , an eyewitness and colleague of PERSON , also gave evidence to the public prosecutor ’s office . He confirmed ORG ’s statements .

Also on DATE , PERSON , a resident of the district where the incident had taken place was interviewed by the ORG public prosecutor ’s office . She stated in particular :

“ ... on DATE , at my home on NORP boulevard , I was waiting for my son to come home from school . It was TIME The demonstrations had begun in the streets . My son was late and I went to look for him on NORP boulevard . I saw my son coming back from school . PERSON , with CARDINAL of his colleagues , had closed the workshop and I think he was on his way home . The street was full of people . The policemen were advancing in our direction . They were firing their guns continuously towards the demonstrators . When I got home with my son , I saw that a masked policeman , with CARDINAL knee on the ground , was firing towards PERSON , who had his back to the policeman . I saw PERSON fall to the ground . He was carried to the door of a building . An ambulance was called . When I checked ORG heart , I realised that he was dead . The policemen who had come towards us were masked , so I would not be able to identify them . As my attention was totally focussed on PERSON , I did not see what the policeman was doing . The individuals present during the incident were ORG and GPE ... ”

On DATE the ORG public prosecutor asked the GPE public prosecutor ’s office to take testimony from police officers ORG , to establish whether they had been present on NORP boulevard or GPE avenue during the incident .

On DATE N.O. and H.A. were interviewed by the public prosecutor ’s office . They stated that they had not been assigned to those CARDINAL places at the time the incident had taken place and had not witnessed it .

Administrative investigation

In the meantime , in a letter of CARDINAL DATE , the public prosecutor asked the ORG provincial governor ’s office to open an administrative investigation and to transmit the relevant file to the public prosecutor ’s office . He pointed out that in the context of that investigation it would be appropriate to take statements from the QUANTITY police officers of ORG and the CARDINAL police officers of the special forces .

It can be seen from the file that an administrative investigation was opened by the ORG provincial governor ’s office in order to determine the responsibility of CARDINAL police officers in the incident . Following that investigation , on DATE , the police disciplinary board of the provincial governor ’s office made up of the governor , the head of the health department and CARDINAL police superintendents , decided not to impose any sanction on the police officers who had used tear gas during the demonstration of DATE . The board made the following observations in particular :

“ ... It is appropriate to close the case having regard [ to the following points : ] it was a major incident . According to the witness statements , the face of the officer who fired the tear - gas grenade which caused the death of the deceased was not visible because he was wearing a balaclava . All officers have undergone training in which they learned that the firing [ of grenades ] must be carried out in such a way as not to hit the target directly . There is no document , evidence , sign or circumstantial evidence ( emare ) from which it could be established that the officers under investigation committed the offence in question ... ”

Permanent search notice

On DATE the ORG public prosecutor ’s office issued a permanent search notice for the purposes of tracing the person who fired the grenade in question , with effect until DATE , when the offence would become time - barred . Referring , inter alia , to the decision taken by the police disciplinary board to close the case , it found in particular as follows :

“ ... The autopsy carried out on DATE showed that the death was caused by a tear - gas grenade of type no . CARDINAL which struck [ the deceased ’s head ] ... This projectile was used by the forces on duty at the time of the incident ...

... Under LAW appended to LAW no . CARDINAL on the duties and powers of the police , the police are entitled to use physical force , material force and weapons in order to immobilise offenders , in a gradual manner and in proportion to the particularities and degree of resistance and aggressiveness of the offender . In those circumstances , it will be for the superior to determine the degree of force to be used ... [ Moreover ] , under LAW , a person who complies with statutory obligations can not be punished and a person who obeys an order given by a competent authority in the exercise of its power can not be held responsible for his action .

In the registers of the security forces , there is no information concerning the manner in which the death occurred .

The deceased PERSON found himself among the demonstrators during the social demonstrations which took place on DATE in the centre of ORG , either because he was taking part in those demonstrations or because he had just left the workshop where he was working . During the incidents , demonstrators were clashing with the police and throwing sticks and stones . The police intervened against the demonstrators using tear - gas grenades and rubber bullets . The casing of a tear - gas grenade thrown against the moving demonstrators struck the head [ of ORG ] and caused his death . This incident is not mentioned in the police documents . The witnesses to the incident stated that they could not identify the person who had fired it because his face was masked . It was not possible to determine which weapon had been used . The casing did not bear any characteristic mark of the weapon from which it was fired . Even though there is no tangible evidence to show that the person who fired was definitely a police officer , as no register suggested that other armed individuals had used tear - gas grenades [ it can be concluded that ] this grenade was probably used by the security forces which were operating at that time . [ However , ] it is not possible to identify the perpetrator , whether from the autopsy report , the statements of the complainant and witnesses , the forensic report or the case file as a whole ... ”

This decision was notified to the applicant on DATE .


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

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


No violation of Article 3 - Prohibition of torture (Article 3 - Expulsion) (Conditional) (Russia)

Ineta Ziemele;Ledi Bianku;Nona Tsotsoria;Päivi Hirvelä;Paul Mahoney;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

The applicant had a husband and CARDINAL daughters in GPE . In DATE CARDINAL of the daughters moved to GPE and has lived there permanently since then . She is a NORP citizen . The other daughter went missing in DATE and is probably dead . The applicant raised her granddaughter , who was born in DATE , from DATE , when the child ’s mother went missing .

NORP In DATE the applicant suffered a stroke in GPE . Apparently her right side was then paralysed . At the time , she lived with her husband , until he died in DATE . Thereafter the applicant apparently lived with her granddaughter and her family near ORG .

On DATE the applicant arrived in GPE with a tourist visa issued for DATE , without having lodged a prior application for a residence permit at a NORP Representation . Since then she has been living with her daughter in GPE .

On DATE the applicant applied for a residence permit on the basis of family ties to her daughter .

On DATE ORG ( GPE , PERSON ) refused the applicant a residence permit and ordered her removal to GPE .

NORP The applicant appealed to ORG ( hallinto - oikeus , förvaltningsdomstolen ) , presenting new medical evidence about her state of health .

On DATE ORG quashed ORG decision and referred the case back to it for reexamination as new evidence had been presented in the matter on which it could not take a stand as a first instance .

On DATE ORG again refused the applicant a residence permit and ordered her removal to GPE . It found that , according to the domestic law , the applicant was not entitled to a residence permit on the basis of family ties as she was not a family member ( a spouse or a minor child ) of a person living in GPE . Other relatives than family members were issued a residence permit only in exceptional circumstances , mainly if the purpose was to continue close family life in GPE or if the relative was completely dependent on a NORP citizen living in GPE . The applicant and her daughter had not had any family life since DATE when the daughter had moved to GPE . A residence permit could not be granted on the basis of health reasons either . It did not appear that the applicant could not receive proper medical treatment or care in GPE . The applicant ’s age , her state of health and the fact that her relative lived in GPE were not sufficient reasons to issue her a residence permit .

The applicant appealed to ORG , requesting that ORG decision be quashed . She claimed , inter alia , that she had not received proper treatment in GPE and that such treatment could not be provided . She had no relatives in GPE who could take care of her . This meant that she would have to be put in a nursing home , the standard of which was generally poor in GPE . Her daughter could not move back to GPE either as she would have to leave her job in GPE and take her daughter with her . It was not even certain that they would be issued a residence permit in GPE . The applicant ’s mental condition was such that she could not endure removal and separation from her daughter . Separation would lead to her death either through sickness or suicide .

On DATE ORG ordered a stay on removal for the duration of the proceedings before it .

On DATE ORG rejected the applicant ’s appeal . In its reasons the court noted that the essential question was whether the applicant was completely dependent on her daughter who lives in GPE . The applicant ’s state of physical and mental health was attested by proper medical certificates . However , it was not shown that the applicant could not receive proper medical treatment or care in GPE , in her own language . The applicant was thus not completely dependent on her daughter in GPE , nor did she have any close ties to GPE . The applicant had close ties to GPE where she could also receive treatment . The fact that treatment would be more expensive there was not a ground to grant a residence permit . The applicant ’s daughter could help her financially and could also visit her in GPE .

The applicant appealed to ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) , requesting that she be granted leave to appeal and that the court order a stay on removal .

No stay on removal was ordered by ORG .

On DATE ORG refused the applicant leave to appeal .


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

André Potocki;Mārtiņš Mits;Síofra O’Leary

The relevant details of the application are set out in the appended table .


NORP The applicant , PERSON , is an NORP national , who was born in DATE and lives in Reggio Emilia . She was represented before the ORG by Mr PERSON , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , and their Co - agent Mr PERSON .

The facts of the case are disputed by the parties and may be summarised as follows on the basis of the information available to the ORG , without prejudice to the merits of the case .

The applicant worked as a director in a subsidiary company of ORG , until the date she resigned pending disciplinary proceedings brought against her following claims made by the bank in respect of misappropriation of funds by her . The bank also instituted proceedings against the applicant claiming damages and requested precautionary measures ( namely , a conservatory seizure - to be distinguished from a precautionary seizure for the purposes of NORP legislation ) , particularly in connection with transfers to a certain Mr S.

Following her resignation the applicant was owed ( by ORG bank ) work - related credits including , amongst other things , salary arrears and LAW ( spettanza di fine rapporto ) , a lump sum awarded in compensation at the end of an employment relationship .

On DATE , upon an ex parte request of the bank , the labour judge within the GPE tribunal ( ORG ) , considered that there existed both a “ presumption of sufficient legal basis ” ( fumus boni iuris ) and a “ danger in delay ” ( periculum in PERSON ) : the applicant having resigned from her work , could easily dispose of or hide her possessions . It therefore ordered the conservatory seizure ( sequestro conservativo ) of the applicant ’s assets up to a value of LAW ( amounting to the damage claimed by the bank ) , which reflected any prejudice in connection with transfers made to PERSON The court fixed a date to hear the parties , namely DATE , and fixed the deadline for notification of the order at CARDINAL DATE ( notification occurred on DATE ) .

According to the enforcement act of the conservatory seizure , dated DATE , the judicial officer executing the order attached , “ within the limits of the law , the sums owed by ORG to PERSON , under any title including those connected with the termination of her employment , as well as any deposits , shares , obligations or investment funds , that is any movables up to the amount in respect of which she appears to be a debtor , that is MONEY . ”

On DATE the applicant challenged the labour judge ’s decision of CARDINAL DATE . However , the order was confirmed on DATE . The court considered in detail the results obtained from the investigation to that date , namely that most suspicious dealings ( transfer of funds ) had been signed by the applicant . Nevertheless , the court noted that the applicant had not transferred any funds to herself , but to third parties , particularly Mr S. It considered that the bank ’s contention that such funds had been transferred on the applicant ’s own initiative was ill - founded .

Nevertheless , it was clear that the applicant had misappropriated funds contrary to internal bank rules , abusing her power as director of the bank branch . It followed that there was a real risk that the bank would lose such money , and therefore the requisite of fumus boni iuris persisted together with that of periculum in ORG .

The court also considered that it could not accept the applicant ’s request to hear PERSON ( whose relation with the applicant was also of relevance , but that was not a matter to be assessed at that stage ) . It considered that although PERSON was the beneficiary of the misappropriated funds , he had an interest in being a party to the proceedings , but he had not been summoned to intervene by any of the parties . Under NORP law a person who has an interest in being a party to the proceedings can not be heard as a witness .

The applicant further challenged the measure on CARDINAL DATE , asking the court , inter alia , to revoke the conservatory seizure order , in so far as the requisites under LAW [ ORG ] had not been fulfilled , and in the absence of such revocation to limit the conservatory seizure order , in respect of her TFR to the amounts which might be attached according to LAW .

After having heard the parties at a hearing on DATE , the labour court dismissed the applicant ’s challenge by a decision of CARDINAL DATE filed in the relevant registry on DATE . It noted that the applicant had failed to disprove the findings referring to her involvement . Neither did the court accept her contention that PERCENT of her TFR could be attached . It rejected the applicant ’s argument that in view of LAW ( “ LOC ) , it was not possible to attach CARDINAL of her TFR , in the context of the legal relationship between the employer and the employee . The court held that it was so possible in accordance with constant case - law arising from a number of judgments ( inter pluribus , the following ORG judgments : CARDINAL . CARDINAL/CARDINAL ; TIME ; CARDINAL ; CARDINAL ; CARDINAL ; CARDINAL ; DATE ; DATE ) , and it had not been disproved by the CARDINAL , CARDINAL - off , case cited by the applicant ( judgment of ORG no . DATE ) , which was more recent .

NORP The attachment of her assets remained in place .

On DATE ORG ( competent for the enforcement proceedings in the case ) upheld the applicant ’s plea concerning the limitations on the attachment of her pension fund . The court noted that the fund had been funded partly through voluntary contributions by the employee of part of her salaries ( which had to be considered as a voluntary transfer ) , partly through the LAW , and partly through the obligatory contributions of the employer . Thus , the part of the fund which referred to the sums voluntarily transferred by the applicant could be attached in its entirety but the other CARDINAL parts which were made up of salaries and pension contributions could only be attached up to a limit of PERCENT . In practice , this decision unblocked some of the fund and reduced the attachment of the applicant ’s pension fund to the global amount of approximately ORG CARDINAL .

NORP This decision was notified on DATE and on DATE the applicant requested the liquidation of the relevant amount . Such funds were only released DATE , namely on DATE .

In the meantime the labour judge within the GPE tribunal in the main proceedings had requested the parties to go through mediation with the aim of reaching a settlement . The latter not having been successful , the proceedings were continued and the rest of the assets remained attached .

On DATE the labour judge within the GPE tribunal issued a first - instance judgment on the merits of the case , which was filed in the registry on DATE . It found that the applicant had not been responsible for any misconduct in the transfer of funds to Mr S. Thus , the precautionary interim measure connected with this matter had no longer any useful effect . It further found both the applicant and the bank responsible for damage caused in connection with other matters and ordered the applicant to pay CARDINAL of the damage incurred , namely ORG CARDINAL .

Pending the appeal proceedings , the applicant proceeded to donate part of her immovable property to her children . In DATE ORG bank lodged an application before the domestic court challenging such a donation .

The applicant claimed that following the interim measure of CARDINAL DATE all her assets were attached . However , no documentation has been submitted to this ORG specifying which movable and/or immovable assets had in fact been attached . From vague documentation , namely a mortgage history search on the basis of names ( ispezione ipotecaria per dati anagrafici ) issued by the land registry , it would appear that an unspecified apartment registered in the applicant ’s name was affected by the order of CARDINAL DATE . The application to the courts lodged by ORG bank , dated DATE ( see paragraph CARDINAL above ) , also makes reference to an enforcement act of the conservatory seizure of CARDINAL DATE by which CARDINAL immovable properties co - owned by the applicant were attached – however , the original enforcement act has not been provided .

The Government contested the applicant ’s allegations , claiming that she had not substantiated that all her assets had been frozen . According to the Government it was not for them to prove what had not been attached . They conceded , however , that on the basis of the enforcement of the order of CARDINAL DATE approximately ORG CARDINAL consisting of the applicant ’s pension fund had originally been attached . Despite certain documentation , the Government appeared to doubt whether an apartment , where the applicant lived with her family , and of which she owned PERCENT , had been attached . Even if that were so , the apartment at issue was subject to a mortgage in connection with a loan and thus could in any case not be sold .

The relevant articles of the ORG , in so far as relevant , read as follows :

“ Sums such as salaries , allowances or benefits , including termination of employment sums ( TFR ) , owed by private individuals to their employees , may be seized to the extent allowed by a tribunal or judge . CARDINAL of such sums may be seized for the purposes of taxes owed to the state , province or commune , and in the same measure for any other credit .

Seizure in respect of CARDINAL of the abovementioned purposes jointly can not exceed CARDINAL the mentioned sums .

Without prejudice to any other limitation expressly provided for in specialized legal provisions . ”

“ Once seized the debtor becomes the custodian of the items seized as well as any accessories [ ... ] ”

“ Having heard the parties and omitting any formality which is not essential for an adversarial procedure , the judge proceeds to examine the requirements necessary for the purposes of the requested measure , before accepting or rejecting the request by means of an order . If notification to the defendant may prejudice the coming to be of the measure , the judge may proceed by means of a reasoned decision or if necessary summary reasons . In such a case , by means of the same decision the judge shall fix a date to hear the parties , not DATE , and award the applicant a peremptory time period of a maximum of DATE within which to carry out the notification of the application and the decision . At the hearing the judge may , by means of an order , confirm , modify or revoke the measures ordered in the decision . ”

“ On the request of the creditor who has a well - founded fear of losing any guarantee over his claim , the judge may authorise a conservatory seizure of movable or immovable property belonging to the debtor , or of any sums due to the creditor , within the limits allowed by the law for such seizures . ”

“ A conservatory seizure over immovable property is enforced by registering the measure ordered at the relevant land registry ( l’ufficio del conservatore dei registri immobiliari del luogo in cui i beni sono situati ) . Article CARDINAL applies in respect of the custody of the immovable property . ”

Article CARDINAL of the Civil Code provides for exceptions to what assets can be set - off , and includes under sub - article CARDINAL “ assets which can not be seized ” .

Other relevant articles of the ORG read as follows :

“ A creditor may request a conservatory seizure over the debtor ’s assets in accordance with the rules of the code of civil procedure .

Such a seizure may also be requested in respect of a third party acquirer of the debtor ’s assets , in so far as an appropriate action to declare the ineffectiveness of the transfer has been lodged . ”

“ Transfers or any other acts concerning the affected assets may not prejudice the creditor requesting the measure , as provided in the rules for seizure ( pignoramento ) . ”


CASE OF DİCLE AND SADAK v. TURKEY [Extracts]

Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Violation of Article 3 of Protocol No. 1 - Right to free elections-{general} (Article 3 of Protocol No. 1 - Right to free elections;Stand for election);No violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

András Sajó;Egidijus Kūris;Helen Keller;Jon Fridrik Kjølbro;Nebojša Vučinić;Robert Spano

Mr Hatip Dicle and Mr PERSON were born in DATE and DATE and live in GPE and PERSON , respectively .

Mr Hatip Dicle and PERSON PERSON , who were MPs in ORG of GPE and members of the DEP political party ORG ) , which has since been dissolved by ORG , were arrested on DATE and DATE respectively .

On DATE they were sentenced by ORG to DATE imprisonment for belonging to an illegal organisation , pursuant to LAW .

By judgment of CARDINAL DATE ORG upheld that judicial decision .

On DATE , adjudicating on an application lodged by the applicants and CARDINAL other persons , ORG found , in its judgment in the case of PERSON and Others v. GPE ( no . CARDINAL ) ( nos . QUANTITY , GPE , CARDINAL and CARDINAL , ORG CARDINALVIII ) , a violation of LAW on account of the lack of independence and impartiality of ORG , as well as a violation of LAW § CARDINAL ( a ) , ( b ) and ( d ) of the LAW in conjunction with LAW on the grounds that the applicants had not received timely information on the reclassification of the charges against them and had been unable to question the prosecution witnesses or to have them questioned .

On DATE , at the FAC meeting of ORG at ORG , ORG adopted a Final Resolution ( ResDH(CARDINAL)CARDINAL ) on the judgment of ORG in the case of PERSON and Others , cited above . The relevant passages of that ORG read as follows :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of ORG , as amended by LAW No . CARDINAL ( hereinafter referred to as ‘ the Convention’ ) ,

Having regard to the final judgment of ORG in the PERSON and others case delivered on DATE and transmitted DATE to ORG under LAW ;

Recalling that the case originated in several applications ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and CARDINAL ) against GPE , lodged with ORG DATE under former LAW by Mr PERSON , PERSON , Mr Hatip Dicle and Mr PERSON , CARDINAL NORP nationals , and that the Commission declared admissible the complaints relating to the lack of fairness of the criminal proceedings conducted against them , to the lack of independence and impartiality of ORG which convicted them , in DATE , to CARDINAL years’ imprisonment for belonging to an armed organisation , as well as to the discriminatory violation of their right of freedom of expression and freedom of association ;

Whereas in its judgment of DATE the ORG unanimously :

- held that there had been a violation of LAW on account of the lack of independence and impartiality of ORG ;

- held that there had been a violation of LAW , paragraphs CARDINAL ( a ) , ( b ) and ( d ) , of the LAW , taken together with paragraph CARDINAL , on account of the fact that the applicants were not notified in good time that the charges against them had been altered and that they were unable to examine or have examined the witnesses against them ;

- held that it was not necessary to examine the other complaints under LAW ;

- held that it was not necessary to examine the complaints under Articles CARDINAL , CARDINAL and DATE of the Convention ;

- held that the government of the respondent state was to pay , within DATE , MONEY to each of the CARDINAL applicants in respect of all heads of damage taken together ; MONEY to all the applicants together in respect of costs and expenses , and that simple interest at an DATE rate of PERCENT would be payable on those sums from the expiry of the above - mentioned DATE until settlement ;

- dismissed the remainder of the applicants’ claim for just satisfaction ;

Having regard to the Rules adopted by ORG concerning the application of Article CARDINAL , paragraph CARDINAL , of the Convention ;

Having invited the Government of the respondent state to inform it of the measures which had been taken in consequence of the judgment of DATE , having regard to GPE ’s obligation under Article DATE , paragraph CARDINAL , of the Convention to abide by it ;

Whereas during the examination of the case by ORG , the government of the respondent state gave ORG information about the measures taken in order to erase the consequences for the applicants of the violations found by ORG and to prevent new violations of the same kind as those found in the present judgment ; this information appears in the appendix to this resolution ;

Having satisfied itself that , on DATE , within the time - limit set , the government of the respondent state paid the applicants the sums provided for in the judgment of DATE ;

Recalling , as far as individual measures are concerned , Interim Resolution ResDH(CARDINAL)CARDINAL of DATE in which the ORG requested the reopening of the criminal proceedings against the applicants or the adoption of other ad hoc measures to erase the consequences of their unfair conviction , as well as Interim Resolution ResDH(CARDINAL)CARDINAL of DATE by which the ORG , stressing the importance of the presumption of innocence , requested that the applicants be released pending the outcome of their new trial in the absence of any compelling reasons justifying their continued detention ;

Having noted with satisfaction that , on DATE , ORG quashed the judgment of DATE of ORG confirming the ORG previous conviction , that , since DATE , the applicants are no longer in detention following the suspension of the execution of their sentence , that restrictions on their travel abroad were removed on DATE , that the applicants are no longer deemed to be convicted and that a new trial is currently pending before ORG ;

Considering that , since the violation found by ORG concerned the fairness of the incriminated proceedings and not their outcome , it is not necessary to await the outcome of the new trial ;

Declares , after having examined the information supplied by the Government of GPE , that it has exercised its functions under LAW , paragraph CARDINAL , of the LAW in this case . ”

ORG Meanwhile , on DATE , Act No . DATE reforming a number of previous Acts came into force . It added to LAW a new paragraph CARDINAL providing for the reopening of criminal proceedings following a finding of a violation by ORG .

On DATE the applicants requested the reopening of proceedings on the basis of the judgment delivered by the ORG in their case .

On DATE , having ordered the reopening of the proceedings against the applicants pursuant to LAW , ORG reiterated its judgment of DATE . In the grounds for the judgment it mainly used the words “ accused ( convicted ) ” with reference to the applicants . Occasionally it used the words “ convicted ( accused ) ” with reference to Mr PERSON and the word “ convicted ” with reference to Mr Hatip Dicle .

On DATE the applicants lodged an appeal on points of law against the DATE judgment of ORG . In that appeal they requested their release under LAW , relying on their right to the presumption of innocence . They argued that under LAW reopening of proceedings had invalidated the finality of their first conviction . They pointed out that in the event of an application for reopening of proceedings the law was silent on the issue of the execution of the initial sentence and on the conduct of the future proceedings . The applicants submitted that the absence of provisions in that regard did not mean that there was a legal vacuum provided that any proceedings reopened returned to the trial phase . They added that persons being retried no longer had the status of convicted persons , which meant that the restriction on their liberty could no longer be considered as being in “ execution ” of the sentence initially imposed on them . Consequently , they concluded that the reopening of the proceedings had given them prisoner status , and that they had therefore lost their “ convict ” status .

Subsequently the applicants submitted another brief memorial to ORG , arguing , in particular , that by referring to them as “ convicted persons ” ORG had flouted their right to the presumption of innocence . Indeed , they took the view that since proceedings had been reopened their conviction was no longer res judicata and therefore that they should no longer have been considered as convicted persons and their right to the presumption of innocence should have been respected , pursuant to LAW .

On DATE ORG ordered the applicants’ release .

By judgment du CARDINAL DATE ORG quashed the judgment of CARDINAL DATE , stating that the violations found by ORG in its judgment of DATE had not been remedied . The relevant part of the judgment read as follows :

“ III . NORP The procedural phase following the reopening of the proceedings

It is accepted , in both legal practice and legal theory , that where an application for a reopening of proceedings pursuant to LAW is accepted , the investigation which must be conducted [ after the reopening of proceedings ] is independent and distinct from the previous investigation , and the decision to reopen the proceedings provides the basis for that fresh investigation . As stated in the judgment of ORG of ORG . CARDINAL . DATE ( E. CARDINAL/CARDINAL and PERSON ) , the hearings to be organised [ in the framework of the new trial ] are not the continuation of those held previously , and all the procedural rules must be applied to those hearings as if the case were being tried for the first time . The assessment of new evidence , of the nature of the offence and of the sentencing in the framework of the hearings to be held when the proceedings are reopened must be conducted quite independently and separately from the assessment during the initial proceedings , and new pieces of evidence ... may be gathered and examined .

IV . Conclusion

DATE The proceedings as reopened under the relevant decision is completely independent from the previous proceedings ; in accordance with that principle , all the legal rules of procedure must be applied to the new hearings , the indictment must be read out , the reclassification of charges must be notified and fresh interrogations must be conducted ... ”

ORG having in the meantime been abolished under LAW . CARDINAL , ORG referred the case to ORG ( “ the ORG ” ) .

On DATE the new NORP Penal Code came into force . The offence of belonging to an armed band formerly set out in LAW is now governed by LAW .

On DATE , having taken note , in particular , of ORG argument that the procedure for reopening the trial was completely independent from the initial one , ORG upheld the conviction of DATE . It nevertheless reduced the applicants’ sentence to a prison term of DATE and DATE pursuant to Article CARDINAL § CARDINAL of LAW . In the reasoning of its decision the court used the words “ accused ( convicted person ) ” with reference to the applicants .

On DATE ORG upheld that judgment .

Meanwhile , on CARDINAL DATE , ORG had issued a decision setting out the conditions to be met by candidates – including independent candidates with no party political affiliation – standing for the parliamentary elections of CARDINAL DATE . The relevant part of that decision read as follows :

“ CARDINAL . ... After serving final sentences ... [ the candidate ] must , pursuant to section CARDINAL/A of the PERSON on the register of police records , provide , for each conviction , a document certifying that he has recovered his civil rights and that the conviction has become res judicata .

Pursuant to LAW ... save in cases of negligence , persons who have been sentenced to a prison term of DATE or more or who have been convicted of an offence , pursuant to LAW ( f ) of Act No . CARDINAL on the election of members of parliament and whose prison sentence has become res judicata , must provide a document certifying that they have , or are deemed to have , served their sentence . ”

On DATE , Mr Hatip Dicle applied to ORG for a document establishing that he had indeed served his full prison term .

NORP In its CARDINAL DATE decision ORG held as follows :

“ In applying to the convicted person the provisions of Act No . DATE on the entry into force of [ LAW ] of DATE , it was decided to sentence PERSON to a prison term of DATE , to apply section CARDINAL of Act No . DATE and to deduct from that sentence the period which he had served in detention .

ORG has filed an appeal on points of law against that judgment , but the latter has not yet become final .

The convicted person PERSON , whose sentence was commuted to DATE and DATE pursuant to the provisions [ of LAW ] , was remanded in custody from DATE to CARDINAL DATE , and imprisoned from DATE to CARDINAL DATE as a detainee and then as a convicted person .

In the light of the foregoing considerations , the final sentence to be imposed on ORG for belonging to an illegal armed organisation is a prison term of DATE ... In order to serve that sentence , he was held in prison for the aforementioned periods .

Pursuant to the provisions of LAW [ in respect of the applicant ] , this court delivered judgment on DATE ( E. CARDINAL and K. CARDINAL/CARDINAL ) reducing the DATE prison sentence to a term of DATE . Since that judgment is not yet final it has not become res judicata . Consequently , it is impossible to indicate the date on which the sentence was completed . However , [ it may be said that ] the sentence served by the convicted person up to the date of his release corresponds to a sentence of DATE ...

On those grounds :

This court can not lawfully adjudicate on the application lodged by the convicted person PERSON for a document certifying that he has served the full sentence imposed on him , firstly because the decision to reduce his sentence to DATE has not yet become final , and secondly because the [ initial ] judgment sentencing him to a DATE term did become res judicata and he was released on account of the stay of execution of that sentence . ”

On DATE Mr Hatip Dicle and Mr PERSON submitted their names as independent candidates for the parliamentary elections of CARDINAL DATE in the constituencies of ORG and PERSON respectively . They provided , inter alia , copies of their police records mentioning their DATE conviction by ORG and the decision given by ORG on DATE .

By decision of CARDINAL DATE ORG rejected the applicants’ candidacies on the grounds that their criminal convictions had rendered them ineligible .


No violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

The applicant was born in DATE .

On DATE the applicant started serving a sentence in FAC after his conviction for rape and theft .

NORP In subsequent separate proceedings the applicant and his CARDINAL accomplices were found guilty of murder and robbery committed as part of an organised group in DATE . A final decision in that case was adopted in DATE by ORG . The applicant was sentenced to DATE imprisonment . That sentence was added to the applicant ’s prior conviction , and a final sentence of DATE imprisonment was imposed .

On DATE the applicant was found beaten up and unconscious in FAC after being attacked by other prisoners . A pre - trial investigation into the incident was opened DATE by FAC authorities , who informed the ORG prosecutor about it . Immediately after the event an investigator of the prison inspected the area where it had taken place .

DATE the applicant was taken injured and unconscious to ORG ( PERSON atėmimo vietų ligoninė ) and then to ORG greitosios pagalbos universitetinė ligoninė ) , where he underwent an operation . DATE he was transferred back to ORG .

On DATE the investigators ordered that the applicant be examined by a forensic medical expert . According to the medical record , the applicant had sustained beatings ( muštinė žaizda ) to the head and haematoma .

On DATE the applicant ’s mother wrote to the ORG authorities that she had learned about the incident DATE , when she wanted to visit her son in FAC . She alleged that the prison was dangerous and demanded that those responsible for the assault on her son be found and punished .

By a letter of CARDINAL DATE the ORG prosecutor informed the applicant ’s mother that a pre - trial investigation into the assault on her son had been opened on DATE of the incident . She was also informed that a medical examination had been ordered to establish the severity of the injury .

On DATE the FAC investigator wrote to the GPE police that the applicant ’s mother was avoiding coming to the prison and testifying and he therefore requested the police to question her as a witness ; it was indispensable to ask her whether her son had ever told her about having disagreements with other prisoners or whether he had received threats . The police were also asked to employ operational measures to identify suspects and determine the circumstances surrounding the severe bodily injury ( sunkus sveikatos sutrikdymas ) of the applicant .

On DATE the applicant was granted victim status by the investigators . It was explained to him that in that status he could submit requests or lodge complaints , under LAW ( see paragraph CARDINAL below ) . On DATE and CARDINAL DATE the applicant was questioned about the incident . However , he stated that , given his state of health , he did not remember how he had been attacked and injured .

According to a medical certificate of CARDINAL DATE , a severe fracture of the skull had occurred as a result of what the doctors described as CARDINAL blows to the applicant ’s head . He had been unconscious for some time just after the assault , and then neurosurgery had been carried out . The doctors concluded that the applicant had sustained a serious head injury and would need a long period of rehabilitation . In DATE the applicant was declared Category II disabled , and in DATE he was declared Category III disabled ( a less severe level of disability ) . As the applicant ’s state of health improved , in DATE he was declared able to work at PERCENT .

On DATE the applicant was discharged from ORG and returned to ORG for outpatient health care . Afterwards , on different dates , the applicant spent time in FAC , FAC and ORG .

On DATE the applicant testified that on DATE of the incident he was taking exercise when another prisoner approached him and asked him to go to DATE of FAC no . CARDINAL . They went to a place where there were other prisoners , among whom the applicant noticed a person he had known earlier from the time outside the prison . That person was holding a knife , and hit ( smogė ) the applicant on the head . The applicant described him as a tall , well - built man of CARDINAL , who had previously been convicted of murder . The applicant was confident that he could recognise his attacker . On DATE the applicant identified from photographs of CARDINAL persons a suspect who appeared to be a certain PERSON

A report of CARDINAL DATE from FAC showed that PERSON had a conviction for robbery under LAW , and had been sentenced to DATE of imprisonment . According to that report , PERSON had left FAC on DATE for FAC and had come back to FAC on DATE , which was DATE after the incident . An extract from PERSON ’s personal file indicates that PERSON arrived at FAC on DATE and left that prison on CARDINAL DATE .

On DATE ORG authorities concluded , on the basis of the DATE report , that on DATE of the incident PERSON was not being held in FAC but was in FAC in GPE .

According to ORG internal investigation report of DATE , the authorities questioned CARDINAL witnesses , including prisoners , operational investigation measures were ordered , medical examinations were carried out and photographs of possible suspects were shown to the applicant and witnesses .

By a letter of DATE to the NORP police , FAC authorities reiterated their request that suspects be identified . The letter also mentioned that , according to the medical report , the applicant had sustained CARDINAL blows to the head with blunt objects ( sužalojimai padaryti veikiant bukais daiktais – dviem smūgiais ) . The prison authorities also observed that the applicant ’s testimony lacked consistency ( apklausiamas keičia parodymus ) and that he claimed not to remember the circumstances of the incident .

On DATE the GPE police informed FAC investigators that no reliable information enabling identification of the perpetrators of the assault on the applicant had been established .

On DATE and DATE FAC authorities requested the ORG prosecutor and the GPE and GPE police authorities to order additional operational measures , inter alia , to question CARDINAL witnesses – inmates of FAC at the time when the applicant was injured . The last letter ended with a request for the criminal police “ to identify persons who had committed the impugned crime and to find the crime weapon ” ( nustatyti asmenis , padariusius minėtą nusikaltimą ir surasti nusikaltimo padarymo įrankius ) .

On DATE the prosecutor ordered the NORP police to carry out the aforementioned actions . The prosecutor also informed the applicant ’s mother that the criminal investigation file had been examined by a prosecutor . DATE , the GPE police authorities sent the report of questioning to FAC investigators .

Considering that the process of investigation was not producing any results , in DATE the applicant ’s mother objected to the way the investigation in the case was being conducted and asked the prosecutors to find her son ’s attackers .

By a letter of CARDINAL DATE the prosecutor dismissed the complaint by the applicant ’s mother that the criminal investigation was not effective . According to the prosecutor , even though a number of investigative actions had been carried out , it was not possible to identify the persons who had injured the applicant . It was explained to the applicant ’s mother that , if she disagreed with the prosecutor ’s conclusion , she could appeal to a court .

On DATE the ORG district prosecutor refused to comply with a request by the applicant ’s mother to start an investigation into whether ORG authorities had failed to act and to protect her son ’s safety and health in prison . In the decision , the prosecutor wrote :

“ The [ applicant ’s mother ] cites matters which are relevant to the criminal case concerning the injury to ORG . A pre - trial investigation into this incident is already pending . In the event that a failure of the officers to perform their official duties is established , the question of their criminal responsibility will be decided subsequently . The question of pecuniary and non - pecuniary damage [ caused to the applicant ] will also be decided within the current pre - trial investigation , once a person or persons who have committed the crime , that is , injured PERSON , are identified . If then , due to his state of health or for other reasons , ORG is unable to submit a civil claim on his own account , the prosecutors will have to submit such a claim , as prescribed by LAW . ”

The decision stated that it could be appealed against within DATE to the pre - trial investigating judge of the ORG district court .

According to a report by ORG authorities of CARDINAL DATE , even though prisoners who had served in that prison DATE had been questioned about the attack on the applicant , no relevant information had been obtained .

On DATE the prosecutor informed the applicant ’s mother that no suspect had been identified during the investigation .

The pre - trial investigation was still pending on DATE , as was later observed by ORG in the administrative case for damages ( see paragraphs CARDINAL below ) .

In reply to a request for information by the applicant ’s mother , on CARDINAL DATE the prosecutor wrote to her that the pre - trial investigation was still pending , no suspect had been identified and no procedural decision had been taken in the criminal case .

In their observations of CARDINAL DATE on the admissibility and merits of the case , the ORG stated that the criminal investigation remained open until new circumstances came to light . On DATE the ORG received observations from the applicant , in which he noted that the criminal investigation was still continuing .

In DATE the applicant was granted ORG - guaranteed legal aid and on DATE he instituted proceedings against the ORG .

Firstly , the applicant claimed damage to his health resulting from the failure of the prison authorities to protect him from ill - treatment . To this claim the ORG administration responded that the applicant had never indicated that he was in danger in prison .

Secondly , in the rectified complaint of CARDINAL DATE the applicant criticized the authorities for not having established who his assailant was . On DATE , when addressing ORG in writing , the applicant further argued that the authorities had failed to act diligently and to take all necessary measures so that the crime was solved quickly .

During those proceedings the applicant contended that the introduction of his civil claim for damages in respect of the injury had been delayed for objective reasons , namely the state of his health , his continuing stay in prison , the failure of the investigating authorities to indicate suspects and to inform the applicant in a timely fashion of the possibility of submitting such a claim and of his right to legal aid .

On DATE ORG dismissed the applicant ’s claim . The court established that the applicant had been injured on DATE , and the statutory time - limit to lodge a claim for damages caused by health impairment was DATE . The applicant had lodged his claim only on DATE , that is , DATE after the injury had been sustained .

The applicant appealed . On DATE ORG remitted the case to the first - instance court to verify whether part of the applicant ’s claim that the pre - trial investigation had not been effective was also time - barred .

On DATE ORG refused to examine the applicant ’s claim for damage caused to his health on the ground of prescription . The court established that as early as DATE the applicant ’s health had improved ; he had been released from hospital and had returned to prison . The applicant had relatives to assist him in making use of his rights , and he could also have asked for free legal aid in a timely fashion . Lastly , it was only the applicant ’s own unfounded belief that a court action for damages against FAC was not possible before the person who had attacked him was identified .

By a final decision of DATE ORG dismissed the claim due to the expiry of the DATE prescription period applicable to claims relating to damage to health . The court rejected the applicant ’s arguments that he had been misled by the prosecutors investigating the incident , who had convinced him that he would be able to lodge a civil claim for damages only after the person responsible for his injury was identified . The applicant ’s contention that his health had prevented him from submitting the claim in time was likewise dismissed . ORG also observed that the applicant could have appealed against the investigating ORG or prosecutor ’s actions , if he considered them improper . However , the applicant had not made use of any of his rights under LAW . The pre - trial investigation was not yet over .


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

Elisabeth Steiner;Erik Møse;Paulo Pinto De Albuquerque

The applicant was born in DATE and lives in GPE .

The applicant ’s ex - husband initiated civil lawsuit before ORG against the applicant for dissolution of marital property and for return of present on DATE .

The court separated the claim to CARDINAL proceedings and dismissed the claimant ’s claim in respect of the return of present .

Subsequently , after several hearings , the first - instance court delivered the judgment in respect of dissolution of the marital property on CARDINAL DATE .

On appeal , ORG delivered the final and binding judgment on DATE amending the first - instance judgment in several aspects .

Both the applicant and the claimant challenged the judgment before ORG which upheld the judgment on DATE .


Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention)

The applicant was born in DATE and resides in GPE .

NORP The applicant suffers from emotional instability and slight mental retardation since childhood . Several forensic psychiatric examinations found him to have sufficient mental capacity to be held criminally liable .

On DATE Ms O. , a tobacco kiosk seller , was stabbed to death at her working place .

On DATE the applicant was apprehended by the police . According to the police reports , that measure was undertaken on CARDINAL different occasions , each time in respect of an administrative ( minor ) offence formally unrelated to the murder .

Under the first police report , at TIME on DATE , the applicant was noted in a public place while being in a state of manifest alcohol intoxication , swearing and disturbing passers - by . When the police ordered him to produce his documents and follow them to their vehicle , he resisted in a vehement manner . As indicated in the apprehension report , at TIME on DATE the applicant was taken to the court for the examination of the above administrative offence case .

In TIME on DATE FAC ( “ the ORG ” ) found the applicant guilty of the administrative offence of resisting the police and fined him CARDINAL NORP hryvnias ( around QUANTITY ) .

It is not known what exactly happened next . The case file contains CARDINAL more reports on the applicant ’s administrative apprehension dated DATE . According to CARDINAL of them , he was released at TIME on that date , without any further details being indicated . As noted in the other report , at TIME on DATE the applicant was apprehended again in respect of an administrative offence . According to the related judicial ruling of DATE ( see paragraph CARDINAL below ) , at TIME on DATE the police apprehended the applicant in a street after he resisted to an identity check .

It appears from the materials of the criminal proceedings against the applicant , which were instituted later ( see paragraph CARDINAL below ) , that on DATE he was questioned in respect of PERSON murder . He submitted that he had bought cigarettes at her kiosk on DATE , without anything unusual having happened . The case file does not contain any further information regarding that questioning .

On DATE the applicant had a conversation with his cell - mate in the temporary detention facility , PERSON . , who convinced him to confess to the murder . He also promised the applicant money in exchange for the information as to where the applicant had thrown the knife . The applicant drew a scheme . Subsequently the police found the knife at the indicated place . PERSON . ’s statements and the related material evidence were eventually relied on by the trial court in the criminal proceedings against the applicant .

Still on DATE , from TIME , the police carried out a search in the applicant ’s flat in the context of the investigation of the murder of Ms O. It appears that they seized his shirt .

On DATE ORG found the applicant guilty of the administrative offence of resisting the police at TIME on DATE ( see also paragraph CARDINAL above ) and sentenced him to CARDINAL days’ administrative detention to be calculated from DATE ( at TIME ) to DATE .

On DATE the applicant was questioned as a witness in the murder case . He reiterated his statement that he had only bought cigarettes at Ms O. ’s kiosk .

On DATE the applicant was questioned again as a witness concerning the murder of PERSON He confessed to having stabbed her several times after she had refused to give him cigarettes without payment .

On DATE the applicant repeated his confession during a reconstruction of the crime . He also showed where he had thrown the knife .

Later on DATE the applicant was questioned as a criminal suspect . The questioning took place in the presence of a lawyer appointed for him . As noted in the investigator ’s decision to that effect , there were sufficient reasons to suspect the applicant of the murder and , given the fact that he suffered from a mental disorder , his legal representation was mandatory . During that questioning the applicant retracted his earlier confession and submitted that he had not been at the tobacco kiosk on DATE of the murder . He explained that he had invented his confession being scared that otherwise he would not be released .

On DATE at TIME the applicant was formally arrested on suspicion of PERSON murder . The arrest report noted that there were eyewitnesses who had directly pointed at him as the offender . During his questioning on that and the following day the applicant confessed to that crime .

On DATE ORG ordered the applicant ’s pretrial detention as a preventive measure pending trial .

NORP The trial court remitted the case for additional investigation many times . According to the case - file materials , the most recent such remittal took place on DATE . There is no information about any subsequent developments .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Non-pecuniary damage - award

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

The applicant was born in DATE and lives in LOC .

On DATE the applicant ’s wife , in DATE of pregnancy , gave birth to a stillborn child at ORG ( ORG bolnički centar Split ) , a publicly owned health institution .

After the birth the applicant and his wife did not want to take their child ’s remains , so the hospital assumed the responsibility for the body .

An autopsy carried out in the hospital on DATE showed that the child had died as a result of gestational complications .

On DATE the hospital disposed of the child ’s body together with other clinical waste ( human tissue and amputated body parts ) . The clinical waste was taken by the hospital ’s contractor , company L. , to the GPE cemetery for cremation .

Soon afterwards the applicant and his wife started to enquire about their child ’s burial , but were unable to obtain any specific information .

On DATE the applicant and his wife brought a civil action against the hospital in ORG ( PERSON ) , seeking damages for distress caused by the manner in which it had disposed of their child ’s body . They argued that they had given their consent to an autopsy and burial of their child , but the hospital had failed to show that they had performed the burial and to inform them where it had taken place .

NORP The hospital raised the defence that they had acted in accordance with section II of ORG Instructions on ORG , allowing them to dispose of the child ’s body together with other clinical waste .

At a hearing on DATE the court heard evidence from pathologist PERSON , who carried out the autopsy of the child ’s body . He explained that in situations in which parents did not want to assume responsibility for the body of their stillborn child , the hospital was required by law to treat the body as clinical waste and to dispose of the remains by cremation or burial . He further explained that before concluding the contract with company DATE , the hospital had buried bodies of stillborn babies in a communal grave . PERSON had then suggested cremating the bodies rather than burying them , because the communal grave had been full . The applicant ’s child ’s remains had therefore been packed together with other clinical waste and taken to the GPE cemetery for cremation . The applicant ’s wife disputed GPE ’s version of events , arguing that PERSON had first told her that her baby had been buried . PERSON replied that he had initially thought that to be the case , not finding out until later what had actually happened .

Another hearing was held on DATE , at which a nurse from the hospital , GPE , gave oral evidence . She testified that after the child ’s body had been taken to the pathology department , she had spoken to the applicant who had told her that he wanted the hospital to bury his child . She had seen the applicant on another occasion , and he had told her that he did not want to assume responsibility for the funeral . When the applicant had again approached her to ask where the burial had taken place , she had told him that his child had been buried in the communal grave , although she had not been sure , but in any event she had considered cremation in the communal grave to be a form of burial . The witness also expressed her regret that the applicant might have been under the impression that the child would be buried in an individual grave . The applicant disputed PERSON ’s version of events , asserting that he had asked for all the documents and invoices concerning the burial to be forwarded to him . Nurse PERSON admitted that that was true , but that no such documents existed , which she had told the applicant already .

At the same hearing CARDINAL other witnesses , GPE and GPE , technicians in the hospital ’s pathology department , gave evidence . PERSON testified that the hospital had abandoned its practice of burials in DATE and had started cremations . The same procedure had been applied in the case of the applicant ’s stillborn child , whose remains had been taken together with other clinical waste and cremated . PERSON confirmed that he had personally placed the remains of CARDINAL children in a box , which had been taken away by company PERSON , but he did not know what had happened to them later .

At a hearing on DATE the director of company ORG testified that the remains of the applicant ’s child had not been buried at the cemetery , but had been disposed of with other clinical waste and cremated . He explained that there was a communal grave in which bodies could be buried , if parents so requested and were granted the necessary authorisation . Otherwise the bodies were cremated . The practice was to place the bodies in CARDINAL large wooden box together with other clinical waste and to take them to the GPE cemetery for cremation .

At the same hearing the applicant and his wife GPE gave their oral evidence . GPE stated that she had been in a state of shock after the birth of her stillborn child and had been suffering psychologically ever since . They had therefore requested that nurse GPE arrange for the child to be buried in the local graveyard . As soon as she was feeling better , GPE had requested information from the hospital about the child ’s burial and was told that her child was buried in the local graveyard . However , at the graveyard she was told that no such burial had taken place . For some time afterwards nobody could tell her what had happened to her child ’s body , until a meeting was held in DATE at the hospital where she learned that the child had been cremated at the GPE cemetery . She and her husband had contacted the cemetery , who replied that they did not know anything about the cremation of their child , and that the remains of a stillborn child would not be cremated without the relevant documentation . The applicant testified that nurse PERSON had never advised him exactly what would happen to his child ’s body , and that he would have never allowed his child to be cremated in such a manner . He also confirmed that he had learned from the GPE cemetery that the body of a stillborn child would not be cremated without the relevant procedural documentation .

On DATE ORG dismissed the civil action on the grounds that after the applicant and his wife had declined to assume responsibility for the body , the hospital had , in accordance with the law , disposed of the child ’s body together with other clinical waste . The relevant part of the judgment reads :

“ There is no dispute between the parties that on DATE [ GPE ] gave birth to a stillborn child , and that an autopsy of the remains and placenta has been carried out , and that in the pathologist ’s office [ the applicant ] declined nurse ORG suggestion that he assume responsibility for the burial of the stillborn child . The defendant therefore , in accordance with the Instructions on ORG ( Official Gazette no . CARDINAL ) in conjunction with section QUANTITY of the Protection from Infectious Diseases Act ( ORG nos . DATE , CARDINAL and CARDINAL ) , considered the placenta and foetus to be clinical waste within the meaning of LAW the by - law on the measures of preventing and combating hospital infections ( Official Gazette no . CARDINAL/CARDINAL ) , which provides that foetuses are clinical waste in cases where the mother was up to DATE ( CARDINAL - and - a - half months ) pregnant , although there is no dispute in the case at issue that [ GPE ] gave birth to a stillborn child after DATE of pregnancy , who was not however reported as living , unlike in cases where the child was born alive and then died .

It therefore follows that the defendant , in disposing of the plaintiffs’ stillborn child ( in a situation in which they had refused to assume responsibility for the burial and did not have a family grave ) , acted in compliance with the above - mentioned regulations and the contract with company L. The defendant therefore is under no obligation to pay compensation . ”

The applicant and his wife appealed to ORG ( PERSON ) on DATE . They argued that the relevant facts had not been properly established , and that it remained unclear where and how the body of their child had been buried . They also pointed out that the regulations to which the first - instance court had referred did not stipulate that the body of a stillborn child could be treated as clinical waste .

On DATE ORG dismissed the appeal and upheld the first - instance judgment . It considered , however , that the first - instance court had erred in finding that the child ’s body had been disposed of in accordance with the law , but that given that no provision of the law obliged the hospital to inform parents where their stillborn child was buried , the applicant and his wife could not claim any damages in that regard . ORG in particular held :

“ It should be noted at the outset that this court does not accept the findings of the first - instance court , which found the defendant ’s exoneration from liability under the provisions of the ORG on the Disposal of Clinical Waste ( Official Gazette no . CARDINAL ; hereinafter ‘ the Instructions’ ) and the by - law on the measures of preventing and combating hospital infections ( Official Gazette no . CARDINAL/CARDINAL ; hereinafter ‘ the by - law’ ) . These regulations do not concern the question as to the manner in which hospitals should deal with the bodies of stillborn children . They concern , inter alia , the manner in which clinical waste should be disposed of , including foetuses in cases where the mother was up to DATE pregnant ( section CARDINAL(CARDINAL ) of the by - law ) , which is not the case in the present case , in which [ GPE ] gave birth to a stillborn child after DATE of pregnancy .

Although the existing legislation has not regulated the issue of the legal status of a stillborn child coherently , this court finds that the aforementioned ORG and by - law are not applicable . This is because there are specific provisions which clearly differentiate between a foetus and a stillborn child . Unlike a foetus :

- a stillborn child must be registered in the register of births ( sections CARDINAL and CARDINAL of LAW Official Gazette no . CARDINAL/CARDINAL )

- a stillborn child , just like any other deceased person , may only be buried or cremated after examination by a coroner ( sections CARDINAL and CARDINAL of the by - law on the examination and establishment of the time and cause of death DATE ORG nos . CARDINAL , GPE and GPE ) .

There is therefore no doubt for this court that a stillborn child , unlike a foetus , can be buried ( or cremated ) in the same manner as any other deceased person under the relevant provisions of LAW ( Official Gazette no . CARDINAL/CARDINAL ) , which provides that a deceased person shall be buried in his [ or her ] local cemetery or another graveyard chosen by the deceased or his or her next - of - kin ( section CARDINAL ) .

However , neither the above - mentioned provisions , any other provisions regulating the conduct of the defendant towards its patients ( LAW – Official Gazette nos . CARDINAL , CARDINAL/CARDINAL and DATE ) , nor any other provisions of the law , oblige the defendant , as a healthcare institution , to bury a body not taken away by the next - of - kin at a location which is known to them .

The defendant is therefore not liable for damages because the grounds for liability , within the meaning of section CARDINAL of LAW ( Official Gazette nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL and DATE ) in conjunction with section DATE of LAW ( Official Gazette no . CARDINAL/CARDINAL ) , have not been established . The plaintiffs’ reliance on liability for breach of a contractual duty is not applicable because the relevant provisions of LAW do not provide for such damages . ”

NORP The applicant and his wife also lodged an appeal on points of law with ORG ( PERSON ) on DATE , arguing that they found it incomprehensible that the hospital could not be held to account despite failing to act in compliance with the relevant domestic law when disposing of the body of their stillborn child .

On DATE ORG dismissed the appeal on points of law , endorsing the reasoning of ORG . It added :

“ It should also be noted that the mental anguish the parents are suffering because they do not know where their child ’s grave is and thus are unable to visit it , is not a form of non - pecuniary damage within the meaning of sections CARDINAL and CARDINAL of LAW ( Official Gazette nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) ... only mental anguish caused by loss of amenities of life , disfigurement , breaches of reputation , honour , liberty or personality rights or the death and serious disability of a close relative warrant the award of non - pecuniary damages . Any other mental anguish arising from other situations is not a legal basis for the award of damages . ”

The applicant and his wife then lodged a constitutional complaint with ORG ( Ustavni sud PERSON ) reiterating his previous arguments . He argued that the remains of his stillborn child had been disposed of improperly and that he was unable to obtain information about where the child was buried .

On DATE ORG declared it inadmissible as manifestly ill - founded , holding the following :

“ In their constitutional complaint , the appellants were unable to show that the competent courts had acted contrary to the constitutional provisions concerning human rights and fundamental freedoms or had arbitrarily interpreted the relevant statutory provisions . ORG therefore finds that the present case does not raise an issue of the ORG constitutional rights . Thus , there is no constitutional law issue in the case for ORG to decide on . ... “

NORP This decision was served on the applicant on DATE .

On DATE the applicant lodged a criminal complaint with the Split Municipal State Attorney ’s Office ( Općinsko državno odvjetništvo u PERSON ) against the employees of the hospital and company ORG , alleging that the burial of his stillborn child had not been documented or conducted properly .

The Split Municipal State Attorney ’s ORG questioned the pathologist ( see paragraph CARDINAL above ) , who explained that foetuses and the bodies of stillborn children were disposed of together with other clinical waste , as had happened with the body of the applicant ’s stillborn child . There was no need for parents to give any special written consent , because it was not required by law .

On DATE the Split Municipal State Attorney ’s ORG rejected the applicant ’s criminal complaint on the grounds that the body of his stillborn child had been disposed of in accordance with the relevant law and procedures .

The applicant took over the prosecution as a subsidiary prosecutor and on DATE lodged an indictment in ORG against GPE , GPE and GPE ( see paragraphs CARDINAL and CARDINAL above ) on charges of negligent performance of duties .

On DATE ORG rejected the indictment on the grounds that the hospital ’s employees had acted in accordance with the relevant legislation , namely ORG Instructions on ORG , the Protection from LAW , and the by - law on the measures of preventing and combating hospital infections .

The applicant appealed to ORG , but on DATE it was dismissed as groundless .

In DATE the applicant brought his case to the attention of media , which prompted the State Attorney ’s Office to re - examine his complaints .

In a report dated DATE , the ORG Attorney ’s ORG informed the GPE ORG Attorney ’s ORG ( GPE državni odvjetništvo u GPE ) of the course of the applicant ’s case . It referred to the civil proceedings in which the applicant ’s damages claim against the hospital had been dismissed , and reiterated that the body of the stillborn child had been disposed of in accordance with the procedure required by law and thus did not constitute a criminal offence .