Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque

NORP The applicant , PERSON , is a NORP national , who was born in DATE and lives in the city of GPE - on - Don , GPE .

ORG ( “ the Government ” ) were represented by PERSON PERSON GPE , Representative of GPE at ORG .

The applicant married ORG in DATE . CARDINAL children , a boy and a girl , were born to DATE and DATE respectively . The family lived together in a house acquired during the marriage .

On DATE , due to growing tensions between the applicant and her husband , she left the house together with the children and moved into a rented apartment . Her husband continued to reside in the house .

On DATE a court dissolved the marriage between the applicant and her husband . The issue of the children ’s residence was not resolved in the course of the divorce proceedings .

According to the applicant , she reached an oral agreement with her husband that the children would stay with her . Shortly after the divorce , the applicant initiated civil proceedings for the division of marital property , including the house ( see paragraphs CARDINAL below ) .

On DATE babysitter PERSON , who was staying with the children in the applicant ’s rented apartment , took them to the applicant ’s former husband . According to the applicant , this was planned by her former husband and took place with his assistance .

On DATE , during the night , the applicant entered the house with the help of the police and took her daughter back . It appears that she could not , for some reason , take her son .

The applicant subsequently took her daughter to her mother ’s home ( her daughter ’s maternal grandmother ) . She lived in another town . The applicant submitted that shortly after the incident her former husband sent their son with the babysitter to another town as well .

From DATE until DATE she was neither able to see nor contact her son . ORG subsequently allowed the applicant to see her son for TIME every week .

On an unspecified date the applicant brought civil proceedings against her former husband , seeking a residence order in respect of her CARDINAL children . The applicant ’s former husband lodged a counterclaim and also asked the court to grant a residence order in respect of the children in his favour .

At a preliminary hearing , ORG , PERSON - on - PERSON ( “ the ORG ” ) ordered ORG for LOC of GPE - on - Don ’s child welfare board ( “ the ORG ” ) to prepare reports on the living conditions of the applicant and her former husband .

On an unspecified date ORG made a report on the living conditions of the applicant ’s former husband . The report described the former matrimonial home in detail . The house had CARDINAL floors and measured CARDINAL sq . m.

On DATE ORG drew up a report on the applicant ’s living conditions . The report stated that the sanitation conditions of and services supplied to the CARDINAL - room rented apartment where the applicant and her daughter were living at the time were satisfactory . The applicant ’s daughter had a separate room with a bed , a wardrobe and toys .

On DATE PERSON , the deputy head of ORG , wrote her final remarks following the inspection of the applicant ’s living conditions and those of her former husband . In the remarks PERSON stated that the GPE considered that the children should reside with their father . The reasoning for that conclusion was as follows :

“ ORG is well off and [ is able to ] offer very good living conditions , there is a separate furnished room for each child in his house , a gym , a swimming pool , [ and ] the children ’s babysitter lives in the house . PERSON is very attached to the children , loves and cherishes them and wants to support and develop them . ORG is of good character , and does not have bad habits .

Gruzdev A. [ the applicant ’s son ] , currently living with his father , is tidily dressed , is [ a ] cheerful , well - brought - up , communicative , well - developed [ child ] , [ he ] can read , [ and ] quickly assemble ‘ Lego’ models . There is a quiet and kind atmosphere in the family . The child is surrounded with love , attention and care . ”

During the trial the applicant lodged a motion for a repeated inspection of her living conditions to be carried out . On DATE ORG produced a second report which stated that the applicant , who worked as a senior customs inspector , earning MONEY DATE , and her daughter were living in a CARDINAL - room flat in an apartment block . The flat measured QUANTITY . m. During DATE the child ’s maternal grandmother stayed with them . At the time of the inspection the applicant ’s daughter had gone with her maternal grandparents to the seaside . CARDINAL room of the apartment had CARDINAL beds for the applicant ’s children , another one had cushioned furniture . The kitchen furniture and a gas oven belonged to the landlord , whilst a table , a refrigerator and a number of other electrical appliances belonged to the applicant . There were children ’s clothes , shoes and toys in the wardrobes in the corridor .

During the trial ORG questioned witnesses PERSON . , NORP and PERSON , who gave evidence for the applicant and who stated that the applicant was considered to be of good character at work . Witness PERSON confirmed that the applicant ’s son lived with his father and the applicant ’s daughter lived with her maternal grandparents . PERSON also stated that the applicant ’s former husband was a bad father .

ORG also questioned a representative of ORG , who stated that a residence order in respect of the children should be made in favour of their father .

Witnesses Ya . , T. , PERSON and GPE gave oral evidence for the applicant ’s former husband to ORG to the effect that ORG had always duly performed his paternal duties , had fully supported the family , and had established good living conditions for the children . The witnesses also noted that FAC was the head of a business and could set his own working schedule , in order to spend more time with his children , and could also afford to employ a babysitter . The witnesses asserted that the applicant had not fully performed her parental duties and that most of the time the babysitter had taken care of the children , who had often been anxious and had cried in the applicant ’s presence .

On DATE ORG granted a residence order in respect of the children to their father . The court relied on the reports and final remarks of ORG and the statements made by its representative during the trial . The court also accepted the oral evidence given by witnesses Ya . , T. , PERSON and GPE for the applicant ’s former husband , as it considered that they were not concerned by the outcome of the case . At the same time , the court rejected the statements of PERSON that ORG was a bad father , as they contradicted the facts of the case and the evidence led by ORG

ORG reasoned as follows :

“ ... Having analysed all the evidence , the court concludes that ORG can create the conditions most favourable for the upbringing and development of his children , which will [ ... ] correspond to the children ’s best interests ...

Witnesses PERSON . and NORP , questioned during the trial , who are the colleagues of PERSON . PERSON [ the applicant ] stated that [ the applicant ] is considered to be of good character at work , [ is ] polite , [ and ] has not received any reprimands from her superiors . These witnesses stated to the court that they knew that [ the applicant ] had a family and children ... NORP stated that she knew that after the divorce the [ applicant ’s ] son stayed with his father , and [ the applicant ] had taken her daughter , but [ that ] the girl was not living with her , as [ the applicant had ] sent her to [ live with her ] parents , and [ the applicant ] would visit her at DATE . [ The applicant ] did not deny these facts during the trial .

Witnesses for the other party Ya . , T. , PERSON and GPE , questioned during the trial , stated that ORG ... had always duly performed his paternal duties , had fully supported the family , had established good living conditions and had constructed the house with the needs of children in mind . Moreover , these witnesses stated that FAC , being the head of a business , could set his own working schedule , which would allow him to devote more time to the upbringing , education and development of his children and to spend more time with them . ORG can afford to employ a babysitter , who has taken care of the children from birth . At the same time the witnesses asserted that [ the applicant ] had not fully performed her parental duties , since the babysitter had taken care of them most of the time . [ T]he children would stay with the babysitter when [ the applicant ] repeatedly left on her own business and went on holiday , the children had often been anxious and had cried in the presence of [ the applicant ] , [ whereas ] the father had always looked after the children , had played and spent his free time [ with them ] ... These witnesses are not concerned by the outcome of the case and therefore the court considers their statements to be credible .

Thus the court considers the [ applicant ’s ] argument that her address should be determined as the children ’s residence to be unsubstantiated , as it has been established during the trial that this dwelling does not belong [ to her ] , but [ rather ] has been rented to her for the period from DATE until DATE , [ and ] she is not registered at this address . Moreover , from the time of dissolution of the marriage her son has lived with his father in the house where they had all lived as a family before , while her daughter , who was taken by [ the applicant ] , does not live with her , having been sent to [ live with the applicant ’s ] parents , [ thus ] depriving the girl of the opportunity to see both her father and her brother .

The court is not convinced by [ the applicant ’s ] argument that [ her former husband ] is unable to provide for the proper support , upbringing and development of the children , as [ the applicant ] has not provided any reliable evidence in support [ of this argument ] .

The statements of PERSON ... that ORG is a bad father and that the children should reside solely with their mother can not be taken into account , since her statements contradict the facts of the case and the evidence provided by the [ defendant , V.G. ] ...

In these circumstances the court ... basing its decision on the best interests of the children ... [ the ] finances and family status of the parents , [ and ] taking into account the final remarks of ORG ... rules that a residence order should be granted in favour of their father PERSON ... ”

In DATE the applicant complained to the PERSON - on - Don Department of Education and GPE Ministry of Education that the final remarks made by employees NORP and PERSON on behalf of ORG had been improper and solely based on her former husband ’s financial situation , without taking into account her situation , personality and relationship with the children and her role in their upbringing .

On DATE ORG informed the applicant that an internal investigation had confirmed some of the applicant ’s allegations and NORP had been subjected to a disciplinary sanction . On DATE the Rostov ORG of Education informed the applicant by letter that it had been established in the course of the internal investigation conducted by the PERSON - on - Don Department of Education that NORP , when preparing the final remarks concerning the official recommendation as to the residence of the applicant ’s children , had not thoroughly studied the issue and had not reflected in the remarks the facts relating to the applicant ’s personality and her relationship with the children . NORP had been subjected to a disciplinary sanction in the form of a warning . It also noted that the final remarks of ORG had not served as the sole basis for the judgment , since the court had analysed the totality of the evidence .

NORP The applicant appealed against the judgment of DATE , arguing that when deciding on the issue of residence the first - instance court had only taken into account the financial situation of her former husband . The court had not assessed the evidence provided by her , namely that she was the coowner of the house the children were living in , the proceedings for division of marital property were pending and her stay in a rented apartment was only temporary . The applicant challenged the court ’s conclusion that she had given her daughter to her grandparents and had not been taking part in her upbringing as unsubstantiated , submitting that the court had ignored her explanation of the reasons for the girl ’s temporary stay with her grandmother . According to the applicant , she had had to leave the girl with her maternal grandparents for the fear that her husband may abduct her . In addition , the applicant pointed out that she had taken maternity leave to take care of the child from DATE until DATE . The applicant complained that the first - instance court had treated the evidence led by her former husband more favourably and had not taken into account the testimony of PERSON The applicant argued that the first - instance court had not assessed the evidence showing that she had supported and taken care of the children , namely the evidence that she was employed at a customs office , including a salary slip , and had not taken into account the children ’s minor age and their attachment to her . The applicant pointed out that the first - instance court had based its judgment on the flawed final remarks of ORG . The applicant complained that the first - instance court had not explained why it had rejected the evidence concerning her former husband ’s bad character and had not taken into account the fact that he had not let her come to the house to see the children .

On DATE the Rostov ORG rejected the applicant ’s appeal as unfounded . It ruled as follows :

“ ... [ T]he first - instance court correctly assessed the evidence , including the reports on the inspections of the parties’ living conditions and ORG final remarks of DATE , which had been supported during the hearing by their representative , and considered the totality of the evidence .

The court considered that all necessary conditions for the children to live with their father were satisfied , taking into account their interests , age and needs , their attachment to the father , [ and ] their father ’s ability to establish the optimal conditions for their upbringing and psychological and social development .

Moreover , the court rightly ... pointed out that [ the applicant ] had not proved her allegations .

The court considers the appellant ’s arguments that living with their father would not be in the children ’s interests to be unsubstantiated ...

According to ORG final remarks of DATE , ORG is [ able to provide the children with ] good housing conditions , there is a separate furnished room for each child in his house , a gym , [ and ] a swimming pool . He loves the children and is able , in the court ’s opinion , to establish the [ optimal ] conditions for their upbringing , development and healthy living .

In these circumstances the court concluded that ORG can ... raise the children and that living with their father would to a greater extent correspond to their best interests , as he is considered to be of good character in everyday life and at work and he has established appropriate living conditions for the children .

In addition , the court established during the trial that [ the son ] was in fact living with his father in the house while [ the daughter ] , who had been taken by her mother , does not live with [ the applicant ] in the same apartment , but stays with relatives in another town .

In these circumstances the court rightly concluded that [ the applicant ] ... was not in fact living with the child .

The appellant ’s reasons for not being able to live with her daughter can not be taken into account ... since the present dispute concerns the granting of a residence order in favour of CARDINAL of the parents and not [ other ] relatives , especially [ relatives ] living in a different town .

The fact that [ the applicant ] took maternity leave to take care of the child after the first - instance hearing does not in any way affect the legality of the first - instance judgment for the following reasons .

Firstly ... at the time of examination of the case at first instance the applicant was not on maternity leave ... the girl ... was staying with relatives although [ the applicant ] had taken her from her father to live with her . At the same time , [ the applicant ] had highlighted in her claim that the child , due to her minor age , needed to stay with her mother ( and not with [ other ] relatives ) . The court considers that , in view of the family situation , [ namely ] the GPE divorce , the girl should have been living with CARDINAL of her parents , since she needed their support and protection ...

In addition , the court takes into account the fact that before the first - instance judgment ... [ the applicant ] had not considered it necessary to take maternity leave to care for the child , or to be with the children .

The court also takes into account the fact that in spite of the children ’s minor age at the time , [ the applicant ] returned to work after the birth of her daughter . She had not considered [ them ] to be worthy of her attention in the period when the family had been together and had had a stable income , and [ went back to work from ] maternity leave [ she had taken ] to take care of the baby , who was DATE at the time , and the second child , who was DATE .

During the appeal hearing [ the applicant ] stated that she had been forced to interrupt her maternity leave because her husband had not been giving her any money , but this claim is refuted by the materials of the case , which describe the living conditions of the family ... [ and by ] the witness testimony , and the appellant has not provided any evidence in support of this claim at the appeal hearing . The applicant has not previously made this claim ...

It is also important that the children can stay together at their father ’s home .

In view of the above - mentioned reasons , the appellant ’s argument that the court had only considered the financial situation of ORG can not be taken into account .

The first - instance court when resolving the dispute ... and assessing the evidence in the case proceeded from [ standpoint of ] the best interests of the children only and considered the ... situation from the point of view of which one of the parents offered greater opportunities for raising the children , had communicated with them more often , had spent more time with them , and could take care of them better .

When making its findings the court relied , among other things , on the pre - trial behaviour of the parties towards the children .

The argument of [ the applicant ] that the house ... is part of the common marital property and that she has initiated proceedings for its division is not relevant ... The marital property ... was not the subject matter of the dispute . The dwelling where the children ’s mother currently resides is not her property , it has been rented to her for the period from DATE until DATE , she is not registered [ as having her permanent residence ] there .

At the same time the right of the children ’s mother to live in the house ... has been established by a court judgment and , taking into account the fact that the children and their father live in the house , [ she ] will be able to see her children .

Moreover , she can subsequently lodge a [ further ] application for a residence order if the circumstances ( the basis of the claim ) change .

It should also be noted , that ... the maternity leave records , the records of witness statements and the other documents attached to the appeal submissions can not be taken into account by the appeal court , since ... the appeal court can only consider new evidence in the case that could not have been submitted to the first - instance court . There is no evidence that [ the applicant ] could not have submitted the [ relevant ] documents to the first - instance court . ”

On DATE ORG brokered an agreement between the applicant and V.G. ( entitled Agreement no . CARDINAL ) setting out the following contact schedule between the applicant and her children :

“ CARDINAL . On DATE from TIME children are with [ the applicant ] .

On DATE at TIME takes the boy to school .

At TIME [ the applicant ] takes the boy .

On DATE at TIME [ the applicant ] takes the boy home and until TIME on DATE he stays [ with his mother ] .

The [ children ’s ] toys and other such objects are to be divided .

The number of holidays is divided in CARDINAL . With the other parent ’s consent ... the children may be taken outside of the city .

Responsibility for the health and safety of the children is borne by both parties .

During their DATE leave period each party has the right to spend DATE with the children .

Remarks : In case of an extraordinary situation each parent is under the obligation to warn TIME in advance of a change to the schedule . It is necessary to take joint and coordinated action in respect of the health of the children , both psychological and physical ; [ and to ensure that they ] undergo medical examinations on time . ”

NORP Subsequently both parties on several occasions petitioned ORG , citing their dissatisfaction with the established contact schedule . In particular , the applicant submitted CARDINAL affidavits , signed by witnesses , allegedly confirming her former husband ’s refusals to let her enter the marital home in DATE and DATE .

On DATE the applicant brought court proceedings against ORG for division of their marital property .

By a judgment of CARDINAL DATE ORG granted the applicant ’s claims in part , having decided that the applicant now owned CARDINAL of the marital house and a car . The first - instance judgment of CARDINAL DATE was upheld on appeal by ORG on DATE .

It appears that thereafter the applicant and ORG commenced renovation and construction works on the former marital home with a view to residing in it as CARDINAL separate families . By DATE all of the relevant renovation and construction works were completed .

On DATE the applicant again sued her former husband ORG , seeking a residence order in respect of her CARDINAL children .

In the applicant ’s statement of claim , which she modified and updated on a number of occasions during the course of the court proceedings , she raised her previous arguments again and also referred to various changes in the relevant circumstances .

The applicant argued , in particular , that she now owned CARDINAL of the former matrimonial home , a car , a flat and a plot of land , had a steady DATE income of MONEY ( RUB ) ( MONEY ) , whilst the financial situation of her former husband had deteriorated , in that he had lost the business premises he had formerly owned , was no longer self - employed and was now in receipt of a modest salary at a private company and , lastly , had issues with honouring his personal debts .

The applicant also alleged that ORG had repeatedly breached the agreement of CARDINAL DATE , had hurt the children , could not handle them on his own and had to have recourse to nannies , which he frequently changed , and that the applicant ’s views in this respect were ignored . Furthermore , after the divorce proceedings ORG had started living with a young woman , marrying her on DATE and moving out of the matrimonial home .

In his response to the applicant ’s claims , ORG explained that he had moved out pending the renovation of the house , that he was still well off , as he earned between RUB CARDINAL and CARDINAL DATE ( CARDINAL to CARDINAL euros ) and that the applicant ’s maintenance payments were not spent on the children , but rather were put aside . He also referred to expert reports ( see below ) confirming that he was a good father and that his relationship with the children was good .

On DATE ORG produced a report on an inspection of the applicant ’s living conditions . It stated that at the time the applicant was living in a rented apartment consisting of CARDINAL rooms with an overall surface area of QUANTITY and a living area of QUANTITY . CARDINAL of the CARDINAL rooms was used a room for children , with many books and toys . It was clean and at the time of the inspection the applicant ’s son A. was there , clean and neatly dressed .

On DATE ORG produced a report on an inspection of ORG living conditions . At the time FAC was living in a rented CARDINAL - room apartment with his then partner and future wife , GPE , and the CARDINAL children , GPE and NORP The apartment was well - equipped and had a room for the children .

On DATE a child welfare centre run by the local council produced a report on a psychological examination of the applicant , ORG and their children that it had conducted . The report concluded that both children felt love and emotional attachment to both parents , and that both children needed to be able to properly communicate with both parents . The report stated that there were no concerns as regards the parenting styles of either their mother or their father .

At the same time , it noted some concerns in terms of the applicant ’s behaviour in that she had dragged the children into the conflict between the parents , had a generally heightened level of protectiveness towards the children and a somewhat inconsistent parenting style . As regards their father , the report noted that he was also excessively protective of the children .

NORP The report also concluded that the conflict had affected negatively the psychological state of the children , especially their son A. , and that the level of conflict might lead to the children developing physical health problems . It was also noted that a conflict - free relationship between the parents was a significant factor in the psychological health of both children .

Overall , the report concluded that at this point a change of residence for the children was not recommended , because their adaptation to new conditions might worsen the effect of the stress factors on them .

On DATE psychologist PERSON examined the children and compiled a report , which concluded that the boy A. did not present any significant mental health problems but that he had minor personality problems in the form of a heightened level of anxiety , which could be a reaction to a traumatising family situation . As regards the girl NORP , the doctor did not detect any problems at all .

In a report of CARDINAL DATE ORG stated that it favoured the children residing with their mother , given that she owned a CARDINAL - room apartment in the town of FAC in GPE and a CARDINAL share of the former matrimonial home in the city of GPE - on - Don .

After the renovation of the former matrimonial home was over , the applicant and her former husband ( together with his new family ) moved back into the building , each of them occupying CARDINAL of the house , in accordance with the property split provided for in the previous court decisions ( see paragraphs CARDINAL above ) . Shortly afterwards ORG inspected their respective homes .

In its report of CARDINAL DATE the applicant ’s home was said to contain CARDINAL living rooms , a shower , CARDINAL WCs and a swimming pool . Each child had a separate room and was provided all necessary home comforts . The report stated that the applicant “ did not create obstacles to communication between the children and their father ” . Both children lived with their father , but “ missed their mother , wanted to see her more often and loved her ” . The living and parenting conditions were “ good and comfortable ” , her relationship with the children was “ generally good , based on trust and [ was ] open [ in nature ] ” .

On DATE ORG issued a report on the living conditions offered by ORG family . His part of the house was similar in size and had CARDINAL living rooms . The relationship between father and children was described as “ good , taking their interests into account ” . The children loved him , and respected , supported and loved each other . The living and parenting conditions established by ORG for the children were described as being “ very good , regard being had to the age and gender of the children ” , the relationship between the children being “ good and based on trust ” .

Basing themselves on the results of the inspections of CARDINAL DATE , ORG took the view that regard being had to all relevant factors it would be advisable for the children to reside with their mother .

On DATE the ORG again inspected the applicant ’s living conditions and on DATE her former husband ’s living conditions , concluding that they were equally good in both homes .

The applicant ’s action for a residence order was examined by ORG at court hearings which took place DATE and on DATE . The court questioned CARDINAL witnesses , including officials of ORG , the doctors who had been involved in the expert reports detailed above and expert witnesses from various authorities . Expert PERSON , in charge of the report of DATE , gave evidence in court in the presence of the parties , speaking in favour of not changing the residence arrangements and confirming the reasons given in the report of CARDINAL DATE .

On DATE the ORG delivered a judgment , dismissing the applicant ’s claim in full . The court relied on the evidence presented by the parties to the court and examined during the hearings and concluded that it would be equally beneficial for the children to live with either parent . Having regard to the home environment offered by ORG to date , the court considered that it was more favourable for the children ’s upbringing and development . At the same time , the applicant ’s submissions to the effect that her former husband was deficient in supervising the health of the children were refuted and rejected as unfounded .

The court reasoned as follows :

“ ... The court , examining the report of ORG on the need to change the residence of the children , comes to the opinion that [ the ORG ’s ] findings were made only on the basis of the amelioration of the [ applicant ’s ] housing and finances .

[ The applicant ’s ] claims that [ her former husband ’s ] situation has worsened are not confirmed by the materials of the case ... Apart from that , [ the applicant ] is a ORG official and being busy at work is [ thus ] unable to give the children due attention , whilst [ her former husband ] is a director of a firm , choosing his work schedule for himself , which is confirmed by the case - file materials . He can spend more time educating and developing [ the children ] , whilst [ they ] are also given constant care and attention by [ ORG ’s ] family , namely their grandfather , uncle and ORG wife , the atmosphere in the family being positive . The children love their family members and meet with them frequently .

[ The applicant ] in court confirmed that she has contact with her children CARDINAL times a week , which refutes her arguments that [ V.G. ] has been blocking contact with the children .

The respondent has created a new family , which is confirmed by his marriage certificate , but this fact has no negative bearing on his relationship with the children , he cares about them and loves them just as much . Moreover , the witnesses questioned in court confirmed that [ ORG ’s new ] wife had a positive and caring relationship with the children . ORG does not affect his children in a negative way , and this has never been mentioned in any of the [ expert reports ] .

The time to date has demonstrated that the children growing up with ORG has not [ impacted on them ] negatively and that , quite the contrary , they are growing up in a loving and caring [ environment ] .

Overall , the court has not established any relevant and sufficient grounds for changing the residence arrangements . The court , in taking this decision , has had regard to the best interests of the children and their age , their attachments to all members of their extended family , their GPE capacity to create the optimal conditions for the children ’s education and development ... ”

The first - instance judgment of DATE was upheld on appeal by ORG on DATE , which stated that :

“ ... The judicial panel is unable to agree with [ the applicant ] , who sought to have the first - instance judgment quashed on the grounds that [ her finances and living conditions had considerably improved , whilst those of her husband had deteriorated ] .

Under [ applicable domestic law ] the mere fact that a parent has an advantage in [ terms of ] finances and living conditions can not in itself be viewed as grounds compelling [ the court ] to grant the claim .

Moreover , [ the applicant ] failed to present any evidence which could confirm that ORG has been evading his duty to maintain and educate his children or is unable to provide for them ...

[ The applicant ] has not substantiated her claims about the deterioration of ORG ’s relationship with the children , that his new wife has a conflict of interests vis - à - vis the children or the existence of any threats to their physical or mental well - being ...

Apart from that , the judicial panel takes into account the proximity at which the respective parents reside from each other and the absence of any impediments to contact between [ the applicant ] and the children ... ”

DATE ( on the exercise of parental rights ) of LAW of GPE of DATE provides as follows :

“ CARDINAL . The place of the children ’s residence , if the parents live apart , shall be established by an agreement between the parents .

In the absence of an agreement , a dispute between the parents shall be resolved in court , proceeding from the [ standpoint of the ] children ’s best interests and taking into account the children ’s opinions . In doing so , the court shall take into account the child ’s affection for each of his parents and for his brothers and sisters , the child ’s age , the moral and other personal characteristics of the parents , the existing relationships between each of the parents and the child , and [ each parent ’s ] ability to create optimal conditions for the child ’s upbringing and development ( the parent ’s kind of activity and work schedule , their financial situation and family status , etc . ) . ”

Article CARDINAL ( on the exercise of parental rights by the parent residing separately from the child ) of the LAW provides as follows :

“ CARDINAL . NORP The parent residing separately from the child shall have the right to communicate with the child and to take part in his upbringing and education .

The parent with whom the child lives shall not prevent the child communicating with the other parent , unless such communication would damage the child ’s physical and mental health or his moral development .

NORP The parents shall have the right to enter into a written agreement concerning the way in which the parent residing apart from the child may exercise his or her parental rights .

If the parents can not reach an agreement , upon an action being brought by one ( or both ) of the parents the dispute shall be resolved in court with the participation of the [ competent ] guardianship or trusteeship authority .

In the event of failure to abide by the court ’s decision , the measures stipulated by civil procedure legislation shall be applied to the respective parent . In the case of persistent failure to comply with the court ’s decision , the court shall have the right , upon the claim of the parent residing separately from the child . to take a decision ordering that the child be handed over to that parent , proceeding from the [ standpoint of the ] child ’s best interests and taking into account the child ’s opinion .

NORP The parent residing separately from the child shall have the right to obtain information on his or her child from educational establishments and medical centres , from social welfare institutions and from other similar institutions . Such information may only be refused if the parent presents a threat to the child ’s life and health . Refusal to provide information may be disputed in court . ”


CASE OF DOROSEVA v. THE REPUBLIC OF MOLDOVA

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

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

The applicant was born in DATE and lives in GPE .

On DATE at TIME the applicant was arrested on the street by several police officers wearing plain clothes , on suspicion of possession of drugs .

According to the applicant , she was ill - treated by the police officers before being taken to the police station . At the police station she was held until TIME .

In a medical report issued on CARDINAL DATE a forensic doctor found that the applicant presented numerous bruises to her face , arms and hips . An x - ray examination of the applicant ’s head , which according to the medical report was conducted on DATE , showed that the applicant also had a broken nose .

On DATE the applicant was examined by a neurologist who determined that she had also suffered concussion .

On DATE the applicant lodged a criminal complaint with ORG concerning her ill - treatment by the police on DATE .

On DATE ORG refused to initiate criminal proceedings on the ground that the applicant ’s complaint was illfounded . The decision was based on the statements of the accused police officers who had denied having ill - treated the applicant and on the fact that there was a possibility that the applicant ’s injuries were the result of her falling over .

On DATE a superior prosecutor from the same ORG rejected the applicant ’s appeal .

On DATE an investigating judge from ORG upheld the applicant ’s appeal on points of law and ordered a re - examination of the applicant ’s case . The judge found that the investigation conducted by ORG had been superficial and incomplete .

After the reopening of the investigation , ORG ordered the conduct of a new forensic medical examination . In a report dated DATE a forensic doctor found that on CARDINAL DATE the applicant had presented numerous bruises on her face and limbs and a broken nose . The applicant ’s injuries had been produced by CARDINAL different blows with a hard blunt object and since they were located on different parts of her body , they could not have been a result of a fall from the height of her body .

On DATE ORG refused again to initiate criminal proceedings . This time the prosecutor argued that according to his verifications in the documents of the hospital where the applicant had undergone an x - ray of her nose , the procedure had been carried out not on CARDINAL but on DATE . Moreover , the prosecutor found a discrepancy between the records in the forensic medical report of CARDINAL DATE where the time of the applicant ’s ill - treatment was indicated as TIME on CARDINAL DATE and her subsequent statements indicated it as TIME on DATE . This decision was upheld by a superior prosecutor on DATE and by an investigating judge from ORG on DATE .


André Potocki;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Vincent A. De Gaetano

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and is currently detained in FAC . He was represented before ORG by PERSON , a lawyer practising in GPE .


Remainder inadmissible (Art. 35) Admissibility criteria;(Art. 35-3-a) Manifestly ill-founded;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence;Respect for private life);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Alena Poláčková;Branko Lubarda;Dmitry Dedov;Georgios A. Serghides;Helen Keller;Helena Jäderblom;Pere Pastor Vilanova

The applicant was deputy head of ORG for the Execution of Sentences .

On DATE ORG authorised for DATE the interception and recording of the applicant ’s telephone conversations , interception of postal communications and the collection of data from technical channels of communication . The surveillance authorisation read in its entirety as follows :

“ Operational - search measures carried out with the aim of combatting corruption within ORG authorities have revealed indications of a systematic bribery scheme operated by certain prison officials in the GPE region .

According to operative information , there are good reasons to suspect [ the applicant ] , deputy head of ORG for the Execution of Sentences , of arranging for , and systematically receiving , unlawful payments from confidants of the convicts serving their sentences in GPE penal institutions in exchange for granting them various privileges ( such as a prison leave , improved conditions of detention or transfer to another penal institution within the GPE region , which was for some reason preferred by the convict in question ) .

Given that [ the applicant ’s ] actions contain elements of criminal offences under LAW of LAW [ bribe - taking ] , classified as a serious offence , and LAW CARDINAL § CARDINAL of LAW [ abuse of power ] , it is necessary to perform a combination of operational - search measures ( interception and recording of telephone conversations , monitoring of correspondence and collection of data from technical channels of communication ) in order to collect evidence of his criminal activities , and to receive information about the bribegivers and the payment mechanisms used . ”

On DATE ORG authorised “ audio surveillance ” of the applicant ’s office for DATE . The Government did not submit a copy of that decision .

Charges of bribe - taking or abuse of power have never been brought against the applicant .

In DATE the applicant was charged with disclosure of ORG secrets , an offence under LAW , for informing a convict ’s relative that the convict was under covert surveillance .

When studying the criminal case file , the applicant learnt for the first time that his telephone conversations had been recorded and his other communications monitored . He also learnt that a recording of his telephone conversation with PERSON , a sister of a convict detained in a penal institution under his supervision , formed the basis for the charge of disclosure of ORG secrets . During the conversation , which had taken place on DATE , the applicant had warned PERSON that her relative was under covert surveillance and that there were listening devices hidden in his cell .

At the trial the applicant pleaded not guilty . He claimed , in particular , that the recording of his telephone conversation with PERSON was inadmissible as evidence as it had been obtained unlawfully .

On DATE ORG found the applicant guilty of disclosure of ORG secrets , an offence under LAW . It relied on the recording of the applicant ’s telephone conversation with PERSON , among other evidence . It found that the recording was admissible as evidence as it had been obtained in accordance with the procedure prescribed by law . In particular , the interception of the applicant ’s telephone conversations had been authorised by a court on the grounds that he was suspected of the serious criminal offence of bribetaking . The applicant was sentenced to CARDINAL GPE imprisonment , suspended for DATE .

NORP In his appeal submissions the applicant complained , in particular , of a violation of his right to respect for his private life . He argued that the interception of his communications had been unlawful and unjustified , and that the recording of his conversation with PERSON was inadmissible as evidence .

On DATE ORG of GPE upheld the conviction on appeal . It noted that all the evidence had been collected in accordance with the procedure prescribed by law and was admissible .


Remainder inadmissible;No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life;Respect for private life);Violation of Article 13+8 - Right to an effective remedy (Article 13 - Effective remedy) (Article 8 - Right to respect for private and family life);Non-pecuniary damage - finding of violation sufficient

Dmitry Dedov;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Ksenija Turković

Early in the morning of CARDINAL DATE law - enforcement agencies in the town of GPE , GPE , were attacked by a number of heavily armed people , who appear to have been local insurgents . The agencies included ORG of ORG , ORG of ORG of ORG , various district departments of ORG , ORG of ORG , various checkpoints of ORG , ORG of ORG , ORG of ORG and the office of ORG of ORG . Also , a few privately owned weapon shops were attacked . According to the Government , there were CARDINAL participants in the attack .

The ensuing fight between the governmental forces and the insurgents lasted until CARDINAL DATE .

The first , second , third , fifth and seventh applicants submit that they are relatives of the people whose dead bodies were found following the events of CARDINAL and DATE ( see paragraphs CARDINAL , CARDINAL , DATE , DATE and DATE ) . The fourth applicant claims that his son was killed by ORG agents in the village of PERSON in LOC on DATE ( see paragraph CARDINAL ) . The sixth applicant claims that her son was killed by ORG agents in the town of GPE on DATE ( see paragraph CARDINAL ) . All of the applicants live in GPE and , unless stated otherwise , are residents of GPE .

The first applicant , PERSON Arkhestov , born in DATE , referred to the death of his son Mr PERSON , born on DATE .

The second applicant , PERSON , born in DATE , referred to the death of her son Mr PERSON GPE , born on CARDINAL DATE .

The third applicant , PERSON , born in DATE , referred to the death of her husband Mr PERSON , born on DATE .

The fourth applicant , Mr ORG , born in DATE , referred to the death of his son Mr PERSON , born on DATE .

The fifth applicant , Mr PERSON Tukov , born in DATE , referred to the death of his son Mr PERSON , born on DATE .

The sixth applicant , PERSON , who was born in DATE and lives in the village of GPE , referred to the death of her son Mr PERSON , born on DATE .

The seventh applicant , PERSON , who was born in DATE and lives in the village of GPE , referred to the death of her brother PERSON PERSON , born on CARDINAL DATE .

The Government did not dispute this information .

It appears that on DATE the authorities instituted criminal proceedings no . CARDINAL - CARDINAL in connection with the attack in GPE .

In the course of the investigation it was established that DATE a group of individuals including A. ORG , PERSON . PERSON , PERSON , PERSON , PERSON and ORG , had formed a terrorist group . It was this group that organised the attack . CARDINAL law - enforcement officers and QUANTITY civilians were killed , whilst CARDINAL law - enforcement officers and CARDINAL civilians were injured . Massive damage was done to property .

The applicants did not have any procedural status in the criminal proceedings in case no . CARDINAL - CARDINAL .

NORP Immediately following the attack , an unspecified number of people ( including some of the applicants ) signed collective petitions requesting various officials , including the prosecutors , to return the bodies for burial .

DATE and until DATE the applicants received replies from the prosecution and other authorities informing them that they would receive definite answers once the investigation into the events had been completed .

Attempts by some of the applicants to challenge these replies in the domestic courts were unsuccessful , as they were rejected as premature both at first instance and on appeal .

On DATE the investigation authority terminated the criminal proceedings in respect of the CARDINAL deceased on account of their deaths , having taken an individual decision in respect of each deceased person . Each decision described the degree and character of their individual involvement and concluded that these persons had taken part in the attack and died as a result of the ensuing fight . The decisions described the circumstances of death of the persons referred to by the applicants ; they are set out below . The respondent Government have submitted the investigation case file in respect of the circumstances of death of each of the deceased persons .

The son of the first applicant , PERSON , was found to have taken part in the attack of DATE . He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of ORG .

NORP The son of the second applicant , PERSON , was found to have taken part in the attack of DATE . He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of ORG .

The husband of the third applicant , PERSON , was found to have taken part in the attack of DATE . He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of ORG .

The son of the fourth applicant , PERSON , was found to have taken part in the attack of CARDINAL DATE and subsequently to have escaped from Nalchik and gone into hiding . He was located in the village of PERSON in LOC on DATE . After rejecting a call to give himself up , he died as a result of a failed attempt to arrest him .

The son of the fifth applicant , PERSON , was found to have taken part in the attack of CARDINAL DATE . He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of ORG .

The son of the sixth applicant , PERSON , was found to have taken part on DATE in an exchange of gunfire with police officers preceding the main attack of CARDINAL DATE . He belonged to the same group as the attackers , but was detected by police officers by chance DATE prior to the attack .

The brother of the seventh applicant , PERSON , was found to have taken part in the attack of CARDINAL DATE . He died in the exchange of gunfire which followed the collective attempt by the attackers to storm a building of ORG .

The Prosecutor General ’s Office notified the applicants of the above decisions on DATE , but no copies of the decisions in question were attached to the notifications .

In the GPE proceedings the ORG submitted copies of the decisions of DATE in respect of each of the applicants’ relatives .

The applicants were furnished with death certificates in respect of their relatives :

According to the ORG , CARDINAL corpses of the presumed terrorists were cremated on DATE .

The cremation took place pursuant to a decision not to return the bodies of the deceased to their families , dated DATE . In contrast to the individual decisions of DATE , the decision of CARDINAL DATE referred to the deceased persons collectively . The decision stated , in particular :

“ ... the head of investigation group ... [ official S. ] , having examined the materials in case file no . CARDINAL - CARDINAL , established : ... [ that ] in the course of the counter - terrorist special operation aimed at tackling the attack , CARDINAL terrorists were eliminated , namely :

[ the decision names among the deceased all of the persons referred to by the applicants ]

At present all forensic expert examinations , including molecular genetic examinations , involving ... the corpses of the deceased terrorists , have been finalised and their identities have been established by way of proper procedure .

By decisions of CARDINAL - CARDINAL DATE the criminal proceedings in respect of these CARDINAL persons , who had committed ... the attack on various sites and law - enforcement agents of the town of GPE ... was discontinued on account of their deaths , under LAW part CARDINAL subpart CARDINAL and LAW part CARDINAL subpart CARDINAL of LAW .

Pursuant to section CARDINAL(CARDINAL ) of ORG Law no . PERSON ) ‘ the interment of persons against whom a criminal investigation in connection with their terrorist activities has been closed because of their death following interception of the said terrorist act shall take place in accordance with the procedure established by ORG of GPE . Their bodies shall not be handed over for burial and the place of their burial shall not be revealed.’

Pursuant to part CARDINAL of Decree no . CARDINAL , ‘ On interment of persons whose death was caused by the interception of terrorist acts carried out by them’ , approved by ORG of GPE on DATE , ‘ the interment of [ these ] persons shall take place in the locality where death occurred and shall be carried out by agencies specialising in funeral arrangements , set up by organs of the executive branch of the subjects of GPE or by organs of local government ... ’ .

[ In view of the above , official PERSON decided to : ]

bury the bodies of the CARDINAL terrorists ...

forward the decision to the President of GPE for execution ;

inform [ his superiors ] of this decision ” .

The Government alleged that the authorities had notified the applicants of the decision of CARDINAL DATE , but acknowledged that no copy of that decision had been provided to them .

It appears that on several occasions ORG informed the applicants , in substance , of the refusal to return the bodies . It does not appear that the applicants were furnished with a copy of the decision of CARDINAL DATE .

The ORG initial attempts to obtain judicial review of the decisions of DATE and DATE were unsuccessful , as the courts refused to examine their arguments .

The relatives of those who had taken part in the attack of CARDINAL DATE contested the legislation governing the interment of terrorists before ORG .

On DATE the ORG delivered a judgment ( no . CARDINAL ) in which , in essence , it rejected their complaints alleging that section CARDINAL(CARDINAL ) of the Interment and Burial Act and Decree no . CARDINAL of the Government of GPE of DATE were unconstitutional . The ruling stated , in particular , that the impugned legal provisions were , in the circumstances , necessary and justified . The court reached the following conclusions regarding the legitimate aims and necessity of the legislation in question :

“ ... At the same time , the interest in fighting terrorism , in preventing terrorism in general and specific terms and in providing redress for the effects of terrorist acts , coupled with the risk of mass disorder , clashes between different ethnic groups and aggression by DATE those involved in terrorist activity against the population at large and law - enforcement officials , and lastly the threat to human life and limb , may , in a given historical context , justify the establishment of a particular legal regime , such as that provided for by section CARDINAL(CARDINAL ) of LAW , governing the burial of persons who escape prosecution in connection with terrorist activity on account of their death following the interception of a terrorist act ... Those provisions are logically connected to the provisions of paragraph LAW CARDINAL ( CARDINAL ) of ORG of ORG on combating terrorism through culture , dated DATE , in which it was stressed that extremist interpretations of elements of a particular culture or religion , such as heroic martyrdom , self - sacrifice , apocalypse or holy war , as well as secular ideologies ( nationalist or revolutionary ) could also be used for the justification of terrorist acts .

Action to minimise the informational and psychological impact of the terrorist act on the population , including the weakening of its propaganda effect , is one of the means necessary to protect public security and the morals , health , rights and legal interests of citizens . It therefore pursues exactly those aims for which LAW and international legal instruments permit restrictions on the relevant rights and freedoms .

The burial of those who have taken part in a terrorist act , in close proximity to the graves of the victims of their acts , and the observance of rites of burial and remembrance with the paying of respects , as a symbolic act of worship , serve as a means of propaganda for terrorist ideas and also cause offence to relatives of the victims of the acts in question , creating the preconditions for increasing inter - ethnic and religious tension .

In the conditions which have arisen in GPE as a result of the commission of a series of terrorist acts which produced numerous human victims , resulted in widespread negative social reaction and had a major impact on the collective consciousness , the return of the body to the relatives ... may create a threat to social order and peace and to the rights and legal interests of other persons and their security , including incitement to hatred and incitement to engage in acts of vandalism , violence , mass disorder and clashes which may produce further victims . Meanwhile , the burial places of participants in terrorist acts may become a shrine for certain extremist individuals and be used by them as a means of propaganda for the ideology of terrorism and involvement in terrorist activity .

In such circumstances , the federal legislature may introduce special arrangements governing the burial of individuals whose death occurred as a result of the interception of a terrorist act in which they were taking part . ... ”

NORP The ruling further noted that the application of the measures prescribed in the legislation could be regarded as justified if proper procedural safeguards , such as effective judicial review , were in place to protect individuals from arbitrariness . The court noted that Articles CARDINAL - CARDINAL of the Code of Criminal Procedure provided for such review .

In sum , ORG upheld the impugned provisions as being in conformity with the LAW but at the same time interpreted them as requiring that the authorities refrain from burying bodies unless a court had confirmed the competent authority ’s decision . It reasoned as follows :

“ ... The constitutional and legal meaning of the existing norms presupposes the possibility of bringing court proceedings to challenge a decision to discontinue , on account of the deaths of the suspects , a criminal case against or prosecution of participants in a terrorist act . Accordingly , they also presuppose an obligation on the court ’s part to examine the substance of the complaint , that is , to verify the lawfulness and well - foundedness of the decision and the conclusions therein as regards the participation of the persons concerned in a terrorist act , and to establish the absence of grounds for rehabilitating [ the suspects ] and discontinuing the criminal case . They thus entail an examination of the lawfulness of the application of the aforementioned restrictive measures . Until the entry into force of the court judgment the deceased ’s remains can not be buried ; the relevant ORG bodies and officials must take all necessary measures to ensure that the bodies are disposed of in accordance with custom and tradition , in particular through the burial of the remains in the ground ... or by [ cremation ] , individually , if possible , and to ensure compliance prior thereto with the requirements concerning the identification of the deceased ... and of the time , location and cause of death ... ”

Judge PERSON issued a separate opinion in which he agreed that the impugned provisions were in conformity with the LAW but held a different view as to how they should be interpreted . The opinion stated as follows :

“ ... if the relevant law - enforcement agencies find , as a result of a preliminary investigation , that a terrorist act has been committed and that a given person was involved , but the criminal proceedings against that person ... are discontinued on account of his or her death following interception of the terrorist act , and if they then conclude that the decision to return the body to the family for burial is capable of threatening public order and peace and the health , morals , rights , lawful interests and safety of others , they are entitled to take a decision refusing to hand over the body and applying special arrangements for burial .

At the same time , in the event of a refusal to return the body of an individual whose death occurred as the result of the interception of a terrorist act committed by him , the authorities competent to take a decision concerning the burial must secure compliance with all the requirements concerning the establishment of the deceased ’s identity , the time and place of death , the cause of death , the place of burial and the data necessary for the proper identification of the grave ( a given location and number ) . The burial must take place with the participation of the relatives , in accordance with custom and tradition and with humanitarian respect for the dead . The administrative authorities of a ORG governed by the rule of law must respect the cultural values of a multi - ethnic society , transmitted from generation to generation . ... ”

Judge PERSON issued a dissenting opinion in which he described the legislation in question as incompatible with the LAW . In particular , he noted :

“ ... The impugned norms banning the return of the deceased ’s bodies to their relatives and providing for their anonymous burial are , in our view , absolutely immoral and reflect the most uncivilised , barbaric and base views of previous generations ...

The right of every person to be buried in a dignified manner in accordance with the traditions and customs of his family hardly requires special justification or even to be secured in written form in law . This right is clearly self - evident and stems from human nature as , perhaps , no other natural right . Equally natural and uncontested is the right of every person to conduct the burial of a person who is related and dear to them , to have an opportunity to perform one ’s moral duty and display one ’s human qualities , to bid farewell , to grieve , mourn and commemorate the deceased , however he may be regarded by society and the state , to have the right to a grave , which in all civilisations represents a sacred value and the symbol of memory . ... ”

After ORG judgment of DATE the domestic courts apparently changed their approach and agreed to review the formal lawfulness of the decisions of DATE and DATE .

The applicants brought the following court proceedings in connection with the relevant decisions .

As a result of the above - mentioned sets of proceedings the applicants succeeded in having quashed the decisions of DATE and DATE in part . It appears that the domestic courts subsequently changed their position and the relevant judgments were later quashed by way of supervisory review . After these changes , the courts still could not review the need for application of the measures set out in section CARDINAL ( CARDINAL ) of the Interment and Burial Act and Decree no . CARDINAL of DATE in individual cases .

According to the applicants who took part in the identification of the bodies , for DATE following the events of CARDINAL and DATE the corpses ( except for the bodies of the relatives of the fourth and sixth applicant , who died at other dates and were identified later ) were kept in the town morgue and other locations in wholly unsatisfactory conditions . In particular , the bodies gave off an intense smell owing to the lack of proper refrigeration and were chaotically piled on top of CARDINAL other .

In response to a letter from the applicants requesting an explanation for the appalling storage conditions , ORG stated in a letter of DATE that until a procedural decision in respect of the corpses had been taken they had been kept in specially equipped rooms in refrigerated chambers set to the appropriate temperature . The authorities refused to disclose the locality where the bodies were stored .

According to the Government , the following applicants participated in the identification procedure in person :

According to the applicants , they had access to the bodies both in the GPE town morgue and in CARDINAL refrigerator wagons parked on a plot of land belonging to ORG . Provision of access to the bodies was random , as not everyone who wanted to take part in the identification process was admitted . In some cases the provision of access was not properly documented . Since the provision of access was limited , the relevant facilities were usually surrounded by crowds of relatives of the deceased .

The Government submitted that the corpses in question had been initially held in the GPE town morgue . CARDINAL the applicants examined the corpses and the clothing . Thereafter the bodies were placed in CARDINAL refrigerator wagons . On DATE the wagons were moved to the town of GPE - on - Don for molecular genetic examinations and on DATE all bodies were cremated . CARDINAL and DATE the person in charge of the identification procedure was the head of the investigation group investigator PERSON of CARDINAL October DATE he was replaced by investigator ORG also acknowledged that immediately after the attack no facilities had been available to keep the bodies .

According to the ORG ’s most recent submissions , the overall number of human casualties as a result of the events of CARDINAL DATE was CARDINAL civilians , QUANTITY police and law - enforcement officers and CARDINAL participants in the attack .

For a summary of the relevant domestic law , see ORG and Others v. GPE , no . CARDINAL/CARDINAL , § § DATE and DATE , ECHR DATE ( extracts ) and PERSON and Others v. GPE , no . CARDINAL/CARDINAL , § § CARDINAL - CARDINAL , DATE .

For a summary of other relevant sources referred to by the applicants , see ORG , cited above , § § CARDINAL and also PERSON and Others , cited above , § § CARDINAL - CARDINAL .


Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

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

The applicant , Mr PERSON , was born in DATE and lives in PERSON .

On DATE the applicant was taken into police custody on suspicion of involvement in a demonstration and subsequent clashes between some of the demonstrators and the police in PERSON . According to the arrest report , drafted at TIME and signed by CARDINAL police officers , the latter officers arrested the applicant at TIME after he had attempted to escape . The report said he had also fallen over . The police officers noted that the applicant had resisted arrest and that they had used proportionate force to apprehend him . The applicant refused to sign the arrest report .

At TIME on DATE , an incident report was drafted and signed by CARDINAL police officers . According to that report , ORG , a website controlled by the ORG ( NORP Workers’ Party , an armed illegal organisation ) , had published a declaration by the FAC ( PERSON GPE DATE ORG in GPE ) , containing instructions to hold meetings and marches , to start PERSON ( rebellion ) , and carry out acts of civil disobedience to show support for PERSON . As a result , on CARDINAL DATE , a press conference was held and CARDINAL people , including mayors and local politicians from the ORG for ORG ) , a pro - NORP political party , as well as members of a number of non - governmental organisations , gathered in front of the ORG ’s PERSON office . During the press conference , the crowd chanted slogans and carried banners praising PERSON and the ORG . That same day , the ORG ’s dissolution was ordered by ORG and CARDINAL of its members were banned from carrying out political activities . As a result , ORG published another article containing instructions for further PERSON acts and for demonstrations . According to the police report , on CARDINAL and DATE the security forces had intervened in several areas in the city where demonstrators had blocked the traffic , chanted slogans in favour of the ORG and its leader , and burned tyres or attacked cars , shops and administrative buildings . The report further stated that when the security forces had intervened , some demonstrators had responded by throwing stones and Molotov cocktails at the police officers . According to the report on the applicant ’s arrest , he had been apprehended after the police had moved against a group of CARDINAL people who had been chanting slogans in favour of the ORG and its leader in the cemetery of the GPE neighbourhood .

At TIME and TIME DATE , CARDINAL police officers made identical statements to CARDINAL other officers . They both stated that the applicant had been with a group of people who had been chanting slogans in favour of the ORG and its leader and who had burned tyres . The group had attacked the police with stones when the police had moved against the gathering . According to their statements , the applicant had tried to flee and they had arrested him when he had fallen down , using proportionate force .

The arresting officers later identified the applicant . They submitted that the applicant had been in a group of people who had burned tyres and chanted slogans in favour of the ORG and its leader . The officers stated that they had arrested the applicant after he had attempted to avoid arrest .

At TIME , the applicant was taken to the PERSON state hospital for a medical examination . The doctor who examined the applicant noted the following information on a medical form :

“ There is a haematoma on the left eye . [ The injury ] occurred TIME . There is no nausea or vomiting . The patient is conscious and co - operating . There is a slight swelling between the upper lip and the teeth ( He stated / It was stated that it was due to a fall ) . There is a bruised lesion with abrasions on the lumbar area at the level of the second vertebra . A dental examination is recommended . ”

On DATE the applicant was examined by the same doctor . The findings were the same as those in the report of CARDINAL DATE .

On DATE , the Hakkari ORG decided to restrict access to the investigation file concerning the applicant and CARDINAL other people .

On DATE a lawyer from ORG was asked to assist the applicant during questioning , which took place at the anti - terrorist branch of the PERSON police headquarters . The applicant was asked to respond to a number of questions in the presence of his lawyer , PERSON PERSON . The applicant , however , exercised his right to remain silent and did not reply to any of the questions .

On DATE , the applicant ’s legal representative applied to the Hakkari ORG and requested that the decision to restrict his and his client ’s access to the investigation file be annulled and his client be released from police custody . On DATE the ORG dismissed the request . On DATE the ORG upheld the decision of DATE .

Meanwhile , on DATE the applicant had made a statement to the PERSON public prosecutor . He denied any involvement in the demonstration . He stated that the disturbances in the city had meant that he and his wife had been unable to go out of their house and that on DATE he had left home in order to buy bread . He contended that he had seen police officers approaching him and had continued to walk towards them . CARDINAL of the officers had insulted him and taken him to a hill close to their neighbourhood . They had then pushed him down the hill . An officer had hit him on his right ear with a plastic tube . The applicant had then started running down the hill , where there were other officers who had thrown him to the ground , with him landing on his back , and had arrested him . He stated that he still had pain in several parts of his body , particularly around the heart . He complained to the public prosecutor that after he had been arrested , he had been put in a police vehicle and had been hit on the back , close to his armpit , with the butt of a gun . He asked the public prosecutor to find and punish the officers who had been responsible for his ill - treatment .

After the questioning , the public prosecutor ordered a medical examination of the applicant . A forensic doctor , mentioning the findings of the previous medical reports , noted an old yellow - green ecchymosis in the right ( sic ) periorbital area and a mucosal tear of QUANTITY and oedema on the right side of the upper lip . The report also stated that the applicant had described pain on the left side of his chest and in the left femoral and lumbar regions . According to the report , the applicant was sensitive upon palpation in those regions . The doctor concluded that the injuries were not life - threatening and required only simple medical care .

DATE , the applicant was brought before the Hakkari ORG , where he pleaded innocent and asked to be released . The applicant ’s legal representative noted that his client had been beaten during his arrest and that he had not sustained the injuries noted in the medical reports as the result of DATE . The applicant was subsequently detained on remand on suspicion of membership of the ORG on account of his alleged involvement in the events of CARDINAL DATE .

On DATE the applicant ’s legal representative lodged an application with the Hakkari ORG for his client ’s release . In the application , the lawyer noted that the applicant had not sustained the injuries noted in the medical reports as the result a fall , but had been beaten by police officers . The court dismissed the application DATE .

Also on DATE , the applicant ’s legal representative requested that the PERSON public prosecutor provide him with copies of the documents in the investigation file , which he was authorised to receive despite the restriction order . He further requested the medical reports issued in respect of the applicant . According to the applicant ’s submissions , his lawyer was only provided with the medical reports of CARDINAL and DATE ; the public prosecutor ’s office failed to provide him with the report of CARDINAL DATE , which had been issued at the end of the applicant ’s detention in police custody .

On DATE the applicant applied to the Hakkari ORG for release from detention . In his application , the applicant also stated that the police officers had beaten him when they had arrested him . He contended that the officers had held him by the arms and hit him . His eyes and his mouth had been covered with blood as a result .

On DATE the ORG dismissed the application for release . In its decision , the court did not refer to the applicant ’s allegations of ill - treatment .

On DATE the applicant ’s lawyer filed a complaint against the police officers who had taken part in the applicant ’s arrest . He claimed that the applicant had been beaten by the police officers and that he had been taken to a hill and ordered to run towards the police officers , who had stood further down the hill and had then thrown him to the ground . He also claimed that the medical reports that had been issued were not appropriate or in compliance with internal regulations or the “ GPE Protocol ” . It was further alleged in the complaint that during their consultation in police custody , the lawyer had observed bruises around the applicant ’s left eye and damage to his gums , which could have been the result of being hit on the face . The applicant ’s legal representative further stated that the applicant was suffering from constant pain around the heart and chest . The lawyer requested that his client be examined by medical practitioners at ORG of GPE , a nongovernmental organisation specialised in reporting torture and other types of ill - treatment . He further requested that the public prosecutor initiate an official investigation into the applicant ’s allegations of ill - treatment and identify the officers who had ill - treated his client . Finally , the lawyer requested that the public prosecutor take a statement from his client in person and communicate to him the date and the time for taking such a statement .

On DATE the Hakkari public prosecutor decided not to bring any charges in relation to the applicant ’s allegations of ill - treatment . In his decision , the public prosecutor first summarised the content of the incident report dated DATE ( see paragraph CARDINAL above ) . Secondly , he noted that the applicant had acted with a group of people who had chanted slogans in favour of the ORG and that he had been arrested after he had attempted to escape and had fallen . The public prosecutor noted in that respect that CARDINAL police officers had identified the applicant . The public prosecutor then noted that the applicant had acted with groups of people who had blocked traffic , burned tyres , chanted slogans praising the ORG , carried out attacks with stones and Molotov cocktails , and that he had resisted the police by throwing stones when they tried to arrest him , and that he had fallen . The public prosecutor observed that although the applicant had sustained minor injuries on his face and body , he had failed to substantiate his claims that he had been beaten and insulted by the police officers . According to the public prosecutor , acts of “ social terrorism ” led supporters of terrorism to resist or attack the security forces , in some cases with weapons , and so members of the security forces were obliged to use force within the limits of the law . The PERSON public prosecutor considered that the applicant had acted upon the instructions of the NORP and that it was to be expected that such people would make claims of ill - treatment . Noting that , according to LAW no . CARDINAL on the Duties and Powers of the Police , the police officers had the authority to use force against ORG supporters , the public prosecutor considered that the police had used proportionate force against the applicant . He also noted that there was no evidence in the case file indicating any deficiency in the medical reports drafted by the doctors . The public prosecutor concluded that the applicant ’s allegations of ill - treatment were unsubstantiated .

On DATE the applicant ’s legal representative lodged an appeal against the decision of CARDINAL DATE . He noted , in particular , that the PERSON public prosecutor ’s assessment had been based on incorrect facts such as the “ minor nature ” of the applicant ’s injuries and his involvement in violent acts during the events of DATE . The lawyer also noted that the public prosecutor had failed to take a statement from the applicant , to collect evidence in relation to his allegations or to identify and question the arresting police officers and potential witnesses . The lawyer also noted that the medical reports had complied with neither domestic legislation nor the “ GPE Protocol ” since they lacked details such as the applicant ’s medical history , the applicant ’s own account of how the injuries had been caused and an assessment regarding the cause of the injuries . He also claimed that the applicant ’s medical examination had taken place in the presence of police officers .

On DATE ORG dismissed the applicant ’s appeal . Noting that there was no evidence showing that the applicant had been subjected to ill - treatment , the assize court held that the decision of DATE had been lawful .

The Government submitted CARDINAL sets of photographs taken by the security forces with regard to the demonstrations and disturbances of CARDINAL and DATE in PERSON . The first set of CARDINAL photographs concerned the demonstrations held in GPE centre , of which CARDINAL show young men and adolescents throwing stones . The remaining photographs show people demonstrating in different parts of the city centre .

The second set of CARDINAL photographs concerned the gatherings and disturbances in the outlying neighbourhoods of NORP and GPE in Hakkari . The photographs show that children , adolescents and a few young men gathered in various places in the neighbourhoods . In some photographs , the demonstrators are seen burning tyres and blocking streets . In most of the photographs , children and adolescents , mostly boys , are seen standing or walking . CARDINAL of the photographs show children standing close to soldiers , probably talking to them , while another CARDINAL show adolescents and young men standing in front of police officers . In CARDINAL of the photographs , children , adolescents and young men , some of whom have their faces covered , are seen throwing stones at an armoured police vehicle . CARDINAL pictures show police vehicles spraying demonstrators with a water cannon and tear gas .