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

Dmitry Dedov;Elisabeth Steiner;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Ksenija Turković

The applicant was born in DATE and lived , before his arrest , in the town of PERSON in ORG . He is serving a prison sentence of DATE having been convicted of several counts of aggravated robbery and theft committed within an organised criminal group .

It appears from the parties’ submissions that at TIME on DATE , police officers from the interregional crime detection division of ORG arrested the applicant , together with several other individuals , including Mr T. , on suspicion of car hijacking and took them to police station no . CARDINAL in PERSON . TIME an officer on duty , PERSON , drew up an administrative offence record which , in its relevant part , read as follows :

“ At TIME on DATE [ the applicant ] , was inebriated in a street ... in PERSON ; [ his appearance ] was an insult to human dignity and social morals .

He committed an administrative offence under LAW ...

[ The applicant ] , in the presence of witnesses , refused to give any explanations and to sign the administrative offence record ...

It has been decided to levy a fine of MONEY [ on the applicant ] . ”

After the police officers from the crime detection division had left the police station , the officer on duty called police officer PERSON who was to interrogate the applicant about the car hijacking .

According to the applicant , during the interrogation the police officer , PERSON , and the officer on duty , PERSON , urged him to confess to the hijacking . When the applicant refused to sign a confession statement , the police officers handcuffed him , tied his legs with a rope in a crisscross manner , threw the rope over his head and tied it to his arms . The applicant was forced to remain in a very painful position for TIME . According to him , the police called that form of torture “ an envelope ” . A number of times the police officers untied and re - tied the applicant , causing him severe pain . When his resistance had worn down , the applicant asked the officers to untie him , promising to write a confession statement . The officers waited for TIME before untying the applicant . Unable to move , he had to sit on the floor for TIME , trying to regain his strength . He was too weak to write , so the police officer wrote the confession statement and told the applicant to sign it . Once he had complied , he was placed in a cell for administrative detainees .

In TIME of DATE the applicant was taken to the office of the police investigator , PERSON . , for questioning . The applicant complained to her that he had been forced to confess to a hijacking which he had not committed . In response , PERSON . ordered an officer on duty to take the applicant back to the cell .

The applicant was taken to another room where both officers , PERSON and PERSON , were present . They tied up the applicant in the same manner as on TIME and began beating him . They hit him several times in the head with a chair leg and kicked him a number of times in various parts of his body . During the beatings a police investigator , PERSON . , entered the room . He placed a metal beer bottle top in the applicant ’s mouth and ordered him to swallow it . When the applicant refused , PERSON . punched him in the face . Officers PERSON asked PERSON . not to leave marks on the applicant ’s face and PERSON . left the room . The beatings continued for TIME or so . Unable to bear them any longer , the applicant lost consciousness and was taken to a cell for administrative detainees . The police officers poured cold water on the applicant to “ revive ” him .

When the applicant regained consciousness , he was taken back to the office of the police investigator , PERSON . Under PERSON . ’s influence and being afraid of further beatings , the applicant confirmed his confession statement given in TIME of DATE .

In the meantime , the applicant ’s relatives were trying to establish his whereabouts . In TIME of DATE his wife , who had noticed his car near police station no . CARDINAL , enquired about him at the station , but the officers on duty refused to give her any information . On DATE the applicant ’s father called the station and talked to the police investigator , Ms GPE . , who , at first , refused to answer any questions and then , following a number of phone calls , told the father that the applicant had attempted to escape from the police , had run into a store , bought a bottle of alcohol and drunk it . Police officers had brought the applicant to the station because he had behaved inappropriately . PERSON . insisted that the applicant would remain at the station until he had sobered up and could answer her questions .

The applicant ’s parents arrived at the police station and at TIME the applicant was released . When he approached his father in a corridor of the police station , he was only wearing trousers and an overcoat and was holding the rest of his clothes , which were wet , in his hands . On the way home , the applicant lost consciousness in the car and his parents took him to hospital no . CARDINAL in PERSON .

As the Government pointed out , at TIME the applicant was examined in the hospital and diagnosed with a closed cranio - cerebral injury , concussion and multiple injuries to the head , including on its capillary surface and the left side of the parietal area , back , arms and chest . He was admitted to the surgery department of the hospital where he underwent treatment until DATE .

The applicant submitted that his confession statement had served as a ground for instituting criminal proceedings on the charge of car hijacking . However , shortly afterwards , the criminal proceedings against him were discontinued as there was no other evidence linking him to the criminal offence in question .

The Government , citing the statements which the applicant had made at various stages of the inquiry into his complaints of ill - treatment by the police , stated that there was no evidence that the injuries on the applicant ’s body recorded in the hospital on DATE had been caused by the police officers . They stressed that on a number of occasions the applicant had changed his statements . In their view , it was possible that he had sustained those injuries as a result of his own careless actions or in a fight which had occurred before his arrest .

On DATE the applicant ’s parents lodged a complaint with the PERSON town prosecutor ’s office , describing in detail the events on CARDINAL and DATE and asking them to institute criminal proceedings against the police officers .

DATE a senior assistant of the PERSON town prosecutor refused to institute criminal proceedings , finding no prima facie case of illtreatment . The senior assistant ’s decision read as follows :

“ On DATE the parents , PERSON and PERSON , complained to the PERSON town prosecutor ’s office that their son ... had been beaten up . They stated that police officers of the PERSON town police department had arrested [ the applicant ] in TIME of DATE . Their son had not been released until after TIME on DATE , His clothes had been wet ; he had been unable to move unassisted . [ The applicant ] had lost consciousness and his parents had brought him to the admissions department of hospital no . CARDINAL in PERSON , where [ the applicant ] had been examined by a doctor on duty and admitted to the surgery department .

[ The police investigator ] PERSON . explained that on DATE police officers of the interregional crime detection division of ORG had arrested [ the applicant ] while he had been trying to sell a stolen car ... During an interrogation [ she ] had informed him [ of his rights ] under LAW and he had agreed to give a statement in the case ; [ he ] had described the circumstances surrounding the theft of the car . PERSON . had not applied any pressure on the applicant ; he had refused legal assistance . After the interrogation [ the applicant ] had been allowed to go home ; his father had waited for him in the corridor . [ The applicant ] had not been arrested in compliance with LAW ; he had been released at TIME [ The applicant ] had not made any complaint about the actions of the police officers . He had not had any visible injuries ; she had only seen that there had been marks on [ the applicant ’s ] hands from handcuffs .

Mr S. , a police officer of the crime detection unit of the PERSON town police department stated that at TIME on DATE , an officer on duty , PERSON , had summoned him to work because several persons who had tried to sell a stolen car had been arrested . PERSON had interrogated [ the applicant ] in his office in the police station . [ The applicant ] had described the circumstances surrounding the theft of the car ; during the interrogation [ the applicant ] had been touching his chest . When asked what had happened to him , [ the applicant ] had explained that before his arrest he had had a fight with unknown persons near the entrance to his house . [ The applicant ] had no visible injuries . Another police officer , PERSON , had entered the office a number of times . [ The applicant ] had not told PERSON whether another [ police officer ] had questioned him before Mr S.

According to the police officer of the crime detection unit of the NORP town police department , PERSON , at TIME on DATE , police officers from the interregional crime detection division of ORG , who had arrested CARDINAL residents of PERSON , including [ the applicant ] , had arrived at police station no . CARDINAL . Mr M. had offered them his office and had left . After the police officers of the interregional crime detection division of ORG had left , PERSON had been summoned from his home because the car hijacking had been committed on territory which he supervised . [ Mr S. ] had questioned [ the applicant ] alone . PERSON had entered the office a number of times , but the atmosphere had been calm ... [ The applicant ] , while in PERSON office , said that before his arrest he had been beaten up and , apparently , he had a broken rib , but he did not mention whether he had contacted a hospital or the police in respect of that [ incident ] .

According to an extract from the registration log of urgent medical assistance of the admissions unit of hospital no . CARDINAL in PERSON , when [ the applicant ] requested [ medical assistance ] at TIME on DATE , he had injuries ... to the head , the wrists , the back [ and ] the chest [ and he had ] painful pink bruises in the lumbar region .

According to a statement by PERSON , who had examined [ the applicant ] in the admissions unit , [ the applicant ] had no fresh injuries or bruises .

According to a statement by a medical assistant of the admissions unit , PERSON , [ the applicant ] had undressed in her presence and she had not seen any injuries on his body , face or hands . After [ the applicant ] had been examined by doctors , he had been admitted to the surgery department .

The arguments laid down in the complaint of [ the applicant ’s ] parents are refuted by the materials of the investigation .

On the basis of the above - mentioned elements , ... [ the senior assistant ] has decided to :

Dismiss the request of [ the applicant ’s father ] for the institution of criminal proceedings concerning the beating of his son by police officers of the PERSON town police department ... ”

The applicant appealed against the decision to a higher - ranking prosecutor .

On DATE , on an order of the PERSON town prosecutor , a forensic medical expert examined the applicant and issued a report confirming that the latter had the following injuries : concussion , bruises on his scalp , wrists , back , chest and on the lumbar region , and abrasions on the left side of the parietal region of the head . The expert concluded that the injuries had been caused by a blunt , firm object , possibly on DATE , and had resulted in insignificant damage to the applicant ’s health .

When he was interrogated by the town prosecutor on DATE , the applicant had provided a detailed description of the alleged ill - treatment in the police station . The description was similar to that provided in the application to the ORG .

On DATE the PERSON town prosecutor quashed the decision of DATE , instituted criminal proceedings against the police officers and initiated an additional inquiry .

According to the Government , on DATE the applicant asked the prosecutor ’s office to end an inquiry into his complaints about ill - treatment following the arrest , stating that he had no hard feelings against the police officers .

On DATE a senior investigator of the PERSON town prosecutor ’s office discontinued the criminal proceedings , finding no case to be answered . The decision was based on statements by the police officers , PERSON and PERSON , and the police investigator , PERSON . , identical to those which served as the basis for the decision of DATE , and the restatement of the conclusion of the medical expert in the report of CARDINAL DATE . The senior investigator also relied on a record of the applicant ’s questioning on DATE in which the latter had denied the beatings and had stated that he had hit his head several times against a bookshelf when he had stood up from his chair at the police station . The applicant had also explained that when he had gone to the lavatory in the police station , a water tap had broken off and he had got doused with cold water . According to that interrogation record , the applicant had decided to complain about the alleged beatings in order to discredit the police officers investigating the criminal case against him .

The senior investigator ’s decision was not served on the applicant . DATE , the applicant ’s lawyer learned about it during a phone call to the PERSON town prosecutor ’s office . On DATE , following the lawyer ’s complaint to the GPE NORP regional prosecutor ’s office , the applicant received a copy of the decision of DATE .

On DATE a deputy prosecutor of PERSON town quashed the decision of DATE and ordered an additional investigation into the applicant ’s ill - treatment complaints .

An expert opinion issued following another forensic medical examination performed on DATE again listed the numerous injuries to the applicant ’s head and body , and stated that those injuries had probably been sustained within TIME prior to the applicant ’s admission to hospital on DATE .

On DATE the senior investigator of the PERSON town prosecutor ’s office again adjourned the criminal proceedings , holding that there was no criminal conduct in the police ORG actions . The decision was similar in wording to the one issued by the senior investigator on DATE , save for CARDINAL paragraphs . In the first paragraph the investigator cited statements by the QUANTITY police officers from the interregional crime detection division of ORG , who had arrested the applicant . The police officers stated that they had handcuffed the applicant , but had not applied any force . They also noted that the applicant had been in a state of drug intoxication and that he had had bruises under his nose and on his lips . The second paragraph read as follows :

“ It appears from materials of criminal case no . DATE , which was instituted in respect of a car hijacking ... , the police officers of [ the interregional crime detection division of ORG ] had lawful grounds for arresting [ the applicant and another person ] . Moreover , as they had operative information pertaining to [ the applicant ’s and another person ’s ] characters ... the police officers ... lawfully handcuffed [ the applicant and another person ] , without overstepping the boundaries of the measures necessary to arrest persons who have committed a criminal offence . According to [ the applicant ’s ] statement , which he gave as a witness , and the statement by a witness , [ the police officer ] , PERSON , [ the applicant ] sustained the concussion , injuries to the scalp and the left side of the parietal region of the head as a result of his own carelessness , and the police officers have nothing to do with these injuries . It was impossible [ to establish ] the circumstances in which [ the applicant ] had sustained the injuries to his back , chest and the back of his head . The witnesses , [ the police officers ] Mr M. and PERSON , stated that during the interrogation [ the applicant ] had been touching his chest , explaining that he had been beaten up by unknown persons in the entrance lobby of his home . [ The applicant ] did not give any explanations as to that fact during the interrogation . Given that those injuries did not damage his health and [ the applicant ] did not request that criminal proceedings be instituted against the unknown persons , there are no grounds for institution of criminal proceedings . It appears from the above - mentioned events that the fact that [ the applicant ] had been beaten up on TIME of his arrest ... was not confirmed during the pre - trial investigation . ”

The applicant was informed about the decision of DATE by a letter of DATE enclosing a copy of that decision . The applicant ’s lawyer appealed against the decision to a higher - ranking prosecutor .

On DATE a deputy prosecutor of PERSON town quashed the decision of DATE and re - opened the criminal proceedings against the police officers .

On DATE an investigator of the PERSON town prosecutor ’s office issued a decision to adjourn the criminal proceedings . The decision was identical to the one issued on DATE , save for CARDINAL paragraphs , in which the investigator restated the results of an additional medical examination of the applicant performed on DATE and cited the report of the applicant ’s questioning on DATE . It appears from the investigator ’s decision that during the questioning on DATE the applicant refuted his previous statement given to the police officers on DATE and insisted that he had been beaten up at the police station after his arrest . The applicant explained that prior to his being interviewed on DATE the police investigator , PERSON . , had threatened him with criminal prosecution and had forced him to lie that he had hit his head against a bookshelf . The expert report again listed the injuries recorded in the previous medical examinations .

On DATE that decision was quashed by a higher - ranking prosecutor . However , DATE an investigator of the PERSON town prosecutor ’s office , by a decision identical to the one issued on DATE , closed the criminal case .

On DATE , following a complaint submitted by the applicant ’s lawyer , the Gorodets ORG found that the decision of DATE had been unlawful because the investigator had not interrogated the applicant , his father and mother in compliance with LAW . Nor had he questioned the person with whom the applicant had been arrested , who could have specified whether the applicant had sustained the injuries prior to his arrest . ORG also noted that the investigator had not carried out other investigative measures necessary for the establishment of the truth in the case ( for example , an additional expert examination of the applicant , in view of the fact that the previous ones were contradictory ) . The court quashed the investigator ’s decision and ordered the re - opening of the criminal proceedings .

On DATE , in a decision identical to those issued on DATE and DATE , a senior investigator closed the investigation , finding that the ORG conduct had not been illegal . That decision was annulled on DATE and a new round of criminal proceedings commenced .

The decision of DATE was supported by the ruling of the Gorodets ORG , which on DATE examined the complaint lodged by the applicant ’s lawyer and held that the decision of CARDINAL DATE had been unlawful because the senior investigator had failed to comply with ORG orders laid down in the decision of DATE . ORG reiterated its findings of DATE and also noted that the prosecuting authorities had not interrogated a Mr So . , who could have been “ an eyewitness in the case ” . It further pointed out that the investigating authorities had not resolved the discrepancies between the police ORG statements pertaining to the applicant ’s injuries prior to the arrest and the medical expert reports , which had not recorded those injuries . ORG stressed that the officers had given conflicting statements , changing their description of the events as the criminal case had progressed .

On DATE and DATE the criminal proceedings against the police officers were discontinued , with the finding that there was no case of ill - treatment . Both decisions were quashed by higher - ranking prosecutors on DATE and DATE , respectively , and the criminal proceedings were re - opened . The decision of CARDINAL DATE mentioned an experiment during which the investigators attempted to verify whether the applicant could have sustained the head trauma by hitting his head against a bookshelf . It appears that such a possibility was not excluded if the applicant had stayed in a very specific position and had hit his head a number of times .

On DATE the senior investigator of the PERSON town prosecutor ’s office closed the criminal case , finding that the injuries to the applicant ’s head had resulted from his own careless actions ( namely , hitting his head several times against a bookshelf ) and that the remaining injuries had been caused by unknown individuals before the applicant ’s arrest . The decision was based on statements by the police officers , who had denied any involvement in the alleged beatings , the results of the medical examinations and the applicant ’s statements which the investigator considered to be contradictory and manifestly ill - founded .

According to the applicant , the decision of DATE was annulled on DATE . However , in DATE the investigation was again closed . Despite numerous requests from the applicant , copies of those decisions were not served on him . Without providing the ORG with a copy of the decision , the ORG submitted that the final decision in the course of the inquiry into the applicant ’s ill - treatment complaints had been issued by a senior investigator of the PERSON town prosecutor ’s office on DATE . The senior investigator had not found any evidence in support of the applicant ’s allegations .

On DATE , without reopening the inquiry into the incident on CARDINAL and DATE , a commission comprising CARDINAL high - ranking prosecutors from the GPE NORP regional prosecutor ’s office examined the materials of the inquiry . Having read the statements that the applicant had given during various stages of the inquiry , the statements by the police officers and investigators implicated in the events and the results of the medical expert examinations , the commission confirmed that the decision to close the inquiry had been reasonable . In addition , the commission cited statements by the applicant ’s co - defendant , Mr T. , who had allegedly told the investigators that the applicant had acknowledged an attempt to frame the police officers by complaining of ill - treatment . According to PERSON , the applicant had told him that he had hit his head against a bookshelf a number of times during the interrogation , and had broken a tap in a lavatory in the police station and had poured water on his clothes . The commission concluded that the applicant ’s head injury had resulted from his own careless actions and that his statements about the beatings should be treated with caution as they had been merely revenge for his arrest and the subsequent institution of criminal proceedings against him . The commission also noted that it had been impossible to establish the cause of the bruises on his back and chest . They also relied on statements by the police officers , who had allegedly observed the applicant touching his chest during the interrogation after his arrest and who had reiterated the applicant ’s explanations that he had been beaten up by unknown persons in the entrance lobby of his home .

At TIME on DATE , police officers of the LOC traffic police stopped the applicant ’s car and searched it . They discovered a television set , a claw hammer and CARDINAL balaclava masks . Suspecting that the television set could have been stolen , the officers decided to arrest the applicant and his CARDINAL passengers , Mr T. and PERSON According to the ORG , the applicant refused to proceed to the police station and verbally insulted the officers . Following an altercation with the applicant during which he had used force , had physically resisted the ORG order to get into a police car and had hurled himself against the car , officers PERSON . and PERSON . forced him into the car and took him to the LOC police station .

A senior inspector of the LOC traffic police drew up an administrative offence report . The report issued on DATE stated that the applicant had committed a disorderly act : he had used offensive language , had cursed passers - by , had not responded to reprimands and had acted provocatively . The applicant signed the report , noting that he did not agree with it . CARDINAL police officers , acting as witnesses , also signed the report .

According to the applicant , in the police station he was placed in office no . CARDINAL where QUANTITY police officers were present . The officers handcuffed him to a metal safe and began hitting and kicking him . The officers urged the applicant to confess to the theft of the television set . The beatings continued for TIME .

On DATE , the chief of the PERSON town police department examined the administrative offence report and decided to levy a fine of RUB MONEY on the applicant . The examination record states that the applicant was transferred to the temporary detention unit of the police station at TIME

The applicant submitted that at TIME on DATE , he had again been taken to office no . CARDINAL in the police station . A police officer ordered him to sit on a metal chair near a safe and handcuffed him to the safe . Another police officer placed a gas mask over the applicant ’s head . A number of times the officer squeezed the inlet pipe of the gas mask , completely cutting off the air supply so that the applicant could not breathe . According to the applicant , that method of torture continued for TIME . Almost suffocating , the applicant tore off the handcuffs . The officers put him on the floor and placed another pair of handcuffs , bearing the sign “ Kostya ” , on him . While CARDINAL police officer sat on the applicant ’s back , another held his legs and a third officer again started squeezing the pipe of the gas mask . Then they connected wires to the applicant ’s fingers . The applicant heard the sound of someone turning a phone handle and felt an electric shock . The officers applied electric shocks to him and at the same time continued to cut off the air supply in his gas mask . A number of times during the torture , the applicant lost consciousness . He also suffered involuntary defecation . When the police officers had grew tired , they placed him back on the chair and again handcuffed him to the safe . He spent the rest of DATE in that position and was taken back to his cell in the evening .

On DATE a police investigator of the ORG town police department drew up a record stating that the applicant had been arrested at TIME on DATE on suspicion of having stolen the television set on DATE .

On DATE the applicant had a meeting with a lawyer , who asked for the applicant to be medically examined . In response to the request , on DATE a police investigator issued a letter of referral addressed to ORG of ORG . According to the applicant , on DATE a medical expert examined him and DATE issued a report , the relevant part of which read as follows :

“ According to the letter of referral , [ the applicant ] was allegedly beaten up by police officers in an attempt to extract a confession from him .

OBJECTIVELY : on the external surface of the lower right forearm there is a bruise which has an irregular oval form , measures QUANTITY in width and QUANTITY in length and is covered by a brownish crust ... There is a similar injury measuring QUANTITY in width and QUANTITY in length on the inside of the same forearm ; [ there are ] CARDINAL [ injuries ] measuring QUANTITY in width and QUANTITY in length on the inside of the left forearm ; [ there is a bruise ] measuring QUANTITY in width and QUANTITY in length on the right cheekbone ; [ there is an injury ] measuring QUANTITY in width and QUANTITY in length on the right shoulder [ and there is a bruise ] measuring QUANTITY in width and QUANTITY in length on the left shoulder . In the lumbar region there is a bruise which has an irregular oval form , measures QUANTITY in width and QUANTITY in length and is light blue in colour . There is a similar bruise , measuring QUANTITY in width and QUANTITY in length in the middle of the lower spine . There is another similar bruise measuring QUANTITY in width and QUANTITY in length on the chin .

CONCLUSIONS :

[ The applicant ’s ] injuries on the chin , right and left forearms , right and left shoulders , right cheekbone , bruises on the chest [ and ] the right side of the lower spine were caused by a firm blunt object . Those injuries did not cause health damage . The injuries were sustained DATE before the examination . ”

The report indicated that the examination was performed on the basis of the police investigator ’s decision of DATE . It also stated that the examination commenced and ended on DATE , on DATE . The expert signed the report on DATE .

On DATE the applicant ’s lawyer lodged a complaint with the PERSON town prosecutor , seeking the institution of criminal proceedings against the police officers .

DATE . On DATE an assistant to the PERSON town prosecutor refused to institute criminal proceedings , noting that the applicant had written a note withdrawing his complaint against the police officers and explaining that he had received the injuries before his arrest .

According to the applicant , he wrote that note while he was still at the hands of the alleged perpetrators of the offence against him , that is , while he was being held in the temporary detention unit at the police station . He insisted that the police officers had forced him to write the note and that the assistant prosecutor had never talked to him in person .

On DATE , following a complaint lodged by the applicant ’s lawyer with the ORG NORP regional prosecutor , the PERSON town prosecutor quashed the decision of CARDINAL DATE and initiated an additional inquiry into the applicant ’s ill - treatment complaints .

DATE , the PERSON town prosecutor closed the inquiry , finding that there was no case to be answered . Without indicating the evidence on which his findings were based , the prosecutor noted that the fact that the police officers had used physical force against the applicant had not been confirmed .

On DATE the PERSON town prosecutor annulled his previous decision , finding that the inquiry had been incomplete .

On DATE and CARDINAL DATE a deputy prosecutor of LAW town refused to institute criminal proceedings against the police officers , holding that there was no prima facie case of ill - treatment . Both decisions were quashed by the town prosecutor on DATE and DATE , respectively .

On DATE a deputy prosecutor of ORG town issued a decision dismissing the applicant ’s ill - treatment complaints . The relevant part of the decision read as follows :

“ In the course of the investigation it was established that from DATE [ the applicant ] was detained in the temporary detention unit of the ... police station on the basis of an administrative offence record ... which had been drawn up by the senior inspector of the NORP district traffic police , PERSON . , under LAW , [ that is ] “ a minor disorderly act ” . On DATE [ the applicant ] was fined RUB CARDINAL in accordance with the decision of the deputy chief of the ORG town police department , PERSON On DATE a police investigator of the ORG town police department , PERSON , arrested [ the applicant ] as a suspect in compliance with LAW .

The deputy chief of the LAW town police department , PERSON , in relation to the fact of [ the applicant ’s ] arrest and his placement in the temporary detention unit ... , explained that ... he had fined [ the applicant ] for a minor disorderly act on DATE and not on DATE as it was indicated in the record of the administrative offence . The date of DATE was indicated incorrectly . On DATE the materials in the case of the administrative offence [ committed by the applicant ] were not sent to a court because it was no longer necessary . He was arrested on DATE by the investigator , PERSON , by virtue of LAW .

Thus , there is no criminal conduct ... in the actions of the deputy chief of the LAW town police department , PERSON

Earlier , in the course of the inquiry into [ the applicant ’s ] complaint , [ the applicant ] was questioned [ and he ] explained that at TIME on DATE , he had been arrested by the police officers of the LOC traffic police on suspicion [ that he had ] stolen a television set . [ He ] was taken to an office on the second floor of the ... police station where CARDINAL police officers were present . [ The applicant ] stated that during an interrogation the police officers had applied physical force to him : [ they ] had handcuffed him to a safe , [ they ] had punched him in various parts of his body , [ they ] had put a gas mask on him and had cut off [ the air supply in ] the inlet pipe . Subsequently , he was taken to the temporary detention unit of the LAW town police station . At TIME on DATE , he was taken to the same office , where the same police officers continued a discussion with him , during which they used physical force against him .

In the course of the check of [ the applicant ’s ] statement , a police officer of the crime detection unit of the LAW town police department , PERSON , was also questioned ; [ he ] explained that on DATE [ the traffic police ] had arrested [ the applicant ] on suspicion of theft . Subsequently he was taken from the duty unit of the ... police station to office no . CARDINAL ... where PERSON talked to him . PERSON stated that during the talk [ the applicant ] had acted provocatively , had used offensive language towards the police officers and had suddenly thrown himself on [ Mr L. ] . PERSON thought that [ the applicant ] wanted to take possession of his service gun . In this connection , PERSON , in compliance with section DATE of LAW , had handcuffed [ the applicant ] to the safe to restrict his actions . Mr PERSON stated that during the talk with [ the applicant ] he had noticed abrasions on his chin . Mr L. could not explain the origin of those injuries . He had not talked to [ the applicant ] on CARDINAL and DATE because he had taken DATE off . Moreover , PERSON noted that police officers of the crime detection unit of the PERSON town police department , PERSON . , PERSON . , PERSON , PERSON . , and PERSON , had been in the office during the questioning of [ the applicant ] ; [ they ] had not taken part [ in the talk ] , [ they ] had performed their work and had not used physical and moral pressure against [ the applicant ] .

Police officer ... PERSON . stated that on DATE PERSON had talked to [ the applicant ] in office no . CARDINAL of the police station . He did not take part in the talk [ and ] carried on with his work . However , during the talk with PERSON he heard [ the applicant ] use offensive language against the police officers a number of times . PERSON explained that at the moment when [ the applicant ] had attacked PERSON , he had paid attention to him and had noticed abrasions on his face . When PERSON handcuffed [ the applicant ] to the safe , he had continued with his work . He did not talk to [ the applicant ] on DATE and DATE because he took those DATE off .

In the course of the additional inquiry , police officers ... , PERSON , PERSON . and PERSON PERSON were questioned ; [ they ] explained that on DATE they had been in office no . CARDINAL of the police station , to which [ the applicant ] had been brought for a talk . However , they were unable to recollect who had talked to him owing to the remoteness of the events . [ They ] also could not recollect whether [ the applicant ] had had any injuries on his face or other parts of his body .

Moreover , police officers ... PERSON and PERSON . explained that on DATE and DATE they had not talked to [ the applicant ] , because they had had DATE off . Police officer PERSON explained that on DATE he had been on the reserve list , and on DATE he had had a day off . However , he had not talked to [ the applicant ] on CARDINAL and DATE .

It was impossible to question police officer ... PERSON . in the course of the additional investigation because since DATE he has been serving in ORG of GPE .

According to the report of [ the applicant ’s ] forensic medical examination [ issued ] on DATE , [ the applicant ] had the following injuries : abrasions on the chin , right and left shoulders , right and left forearms , right cheek , bruises on the chest and the right side of the lower spine . The injuries were caused DATE before the examination . Thus , according to the report of the forensic medical examination [ the applicant ] could have sustained the injuries on CARDINAL , DATE , CARDINAL or DATE .

In the course of the examination of [ the applicant ’s ] complaint , the police officers of the LOC traffic police ... , an inspector ... , Mr PERSON . , and the senior inspector , PERSON . , were questioned .

During the questioning PERSON . stated that on DATE he , together with the senior inspector of the traffic police , PERSON . , had been supervising the traffic . They had received an order from an officer on duty ... to stop a white car .... At TIME ..... near a railway crossing they stopped a similar car [ intending ] to check the documents . There were CARDINAL persons in the car ; [ the applicant ] , CARDINAL of the persons in the car , started using offensive language towards the traffic police officers ; [ he ] resisted being placed in a police patrol car . It was apparent that [ the applicant ] did not want to get into the patrol car , resting his hands against the car door and roof . That is why Mr PERSON . grabbed [ the applicant ] by one hand and PERSON . by the other and they twisted [ his hands ] behind his back . However , [ the applicant ] continued his resistance , turning from side to side in his struggle to break loose . At the same time he was bumping against various parts of the car ( a door , the car body ) with his shoulders and other parts of his body . Then PERSON . and PERSON . pushed [ the applicant ] into the patrol car . PERSON . gave a similar statement in respect of those events . Moreover , PERSON PERSON . and PERSON . explained that [ the applicant ] had had abrasions on the chin . Subsequently , the arrestees were taken for further inquiry to the PERSON town police station , where PERSON . drew up an administrative offence record in respect of [ the applicant ] under LAW .

In the course of the additional investigation an expert of ORG of ORG , PERSON . , was questioned as to whether the injuries on the [ applicant ’s ] arms , chest and lower spine could have been caused when he had been placed in and taken out of the car while [ he ] had been bumping against protruding parts of the car door and body . In response to that question , PERSON . stated that those injuries had been caused by a blunt firm object and they could have been caused when [ he ] had bumped against protruding parts of the car door and body when [ he ] had been placed in and taken out of the car .

Thus , the orders of the LAW town prosecutor , PERSON , were complied with fully .

However , [ the applicant ’s ] allegations that the police officers of the LAW town police department used physical force against him are not corroborated by any material evidence . ”

The applicant ’s lawyer appealed against the decision to the Balakhny Town Court , complaining that it was unlawful and manifestly ill - founded .

On DATE the ORG accepted the complaint , quashed the decision and ordered an additional investigation into the applicant ’s allegations of ill - treatment . In particular , ORG noted that there were eyewitnesses of the applicant ’s arrest who could have testified as to whether the applicant had resisted arrest , had used offensive language , and so on . ORG also found that there were a number of discrepancies in the materials submitted by the prosecution . It ordered the relevant authorities to resolve them .

On DATE the deputy prosecutor of ORG town again dismissed the request for the institution of criminal proceedings against the police officers . The deputy prosecutor copied the complete text of the decision of CARDINAL March CARDINAL , and added CARDINAL more paragraphs in which he noted that a record of the crime scene examination and extracts from registration logs had been enclosed in the case file .

That decision was annulled by a higher - ranking prosecutor . However , on DATE the deputy prosecutor of PERSON town issued another decision refusing to institute criminal proceedings . That decision was identical to those issued on DATE and DATE , save for CARDINAL paragraph in which the deputy prosecutor drew attention to the statements by PERSON , QUANTITY eyewitnesses of the applicant ’s arrest on DATE . Both witnesses testified that the applicant had had no visible injuries prior to his arrest and that he had not complained about the state of his health . He had not resisted the arrest or his placement in the patrol car , and the police officers had not used force during the arrest .

According to the applicant , the decision of DATE was not served on him and he learned about it in DATE during a phone call to the ORG town prosecutor ’s office . In DATE he lodged a complaint with the GPE NORP regional prosecutor ’s office about the ineffectiveness of the investigation . By a letter of CARDINAL DATE he was informed that on DATE a deputy prosecutor of ORG had instituted criminal proceedings against the police officers .

On DATE an investigator interviewed the applicant in the correctional colony where he was serving his sentence at the time ( see paragraph CARDINAL above ) about the circumstances surrounding his arrest on DATE and his complaints of ill - treatment by the police . The applicant refuted his previous statements , insisting that he had fallen down the stairs in the detention unit of the police station . He stressed that the police officers had not used force against him and that he had no intention of pursuing the complaint against them .

DATE , on DATE an investigator of the PERSON town prosecutor ’s office closed the criminal proceedings against the police officers , finding no criminal conduct in their actions . Neither the applicant nor his lawyer was notified of the decision . The lawyer learned about the decision in DATE . He immediately lodged a motion with the PERSON town prosecutor ’s office , asking for permission to study the case file . The request was dismissed . The lawyer repeated his request without success and appealed against the refusal to the Balakhny Town Court , providing the court with copies of the prosecutor ’s refusals and the power of attorney issued by the applicant and confirmed by ORG on DATE .

On DATE ORG confirmed that the refusal had been lawful as the lawyer had not presented any document authorising him to act on the applicant ’s behalf . That decision was quashed on appeal on DATE by ORG and a reexamination of the matter was ordered .

On DATE ORG ruled that the refusal to provide the applicant ’s lawyer with access to the case file had been unlawful .

On the basis of ORG decision , the applicant ’s lawyer was given access to the file and was able to make copies of documents , including the decision of CARDINAL DATE . The investigator , having exclusively relied on statements by the police officers who had come into contact with the applicant DATE , had found that there was no evidence of ill - treatment and that the applicant had sustained the injuries in resisting arrest .

Responding to an appeal lodged by the applicant ’s lawyer against the decision of CARDINAL DATE , ORG upheld that decision , finding it to be lawful and reasonable . ORG noted that the investigators had collected evidence in support of their version that the applicant had sustained the injuries in his attempt to resist arrest . It also drew attention to the applicant ’s statements made in DATE when he had provided another cause for his injuries .

On DATE the applicant was transferred to detention facility no . IZ-CARDINAL/CARDINAL in GPE . On CARDINAL , DATE and DATE and CARDINAL and DATE he was taken from facility no . IZ-CARDINAL/CARDINAL to a temporary detention ward in LOC of PERSON , where police officers interrogated him . The applicant alleged that the officers had used force against him following his refusals to answer their questions . On DATE the applicant complained to the ORG NORP regional prosecutor of ill - treatment in DATE and DATE . On DATE the PERSON town prosecutor refused to carry out an inquiry into the applicant ’s complaints , reasoning that the PERSON town prosecutor ’s office had no competence to examine it .

DATE . On DATE CARDINAL police officers took the applicant from his cell in detention facility no . IZ-CARDINAL/CARDINAL to an investigation ward . They allegedly ordered the applicant to confess to a robbery , threatening that they would dress him in a police uniform and place him in a cell with “ hardcore criminals ” . The officers also repeatedly threw the applicant ’s hat in a dustbin and then forced him to take the hat out of the dustbin and put it on his head .


No violation of P1-1;Not necessary to examine Art. 14+P1-1

ORG The applicants are property owners who complain of the reduction of rent due to them under tenancy agreements by operation of the DATE LAW ( Mietrechtsgesetz ) .

ORG The applicants jointly own a building in GPE comprising several apartments leased to tenants .

CARDINAL of these apartments , consisting of CARDINAL rooms and a kitchen ( with a total surface area of CARDINAL ) , was let on DATE under a freely negotiated lease in accordance with the provisions of the DATE LAW , as amended in DATE , at a rent of ORG ( NORP schillings ) CARDINAL per month .

ORG Pursuant to GPE , the tenant of the above apartment applied on DATE to ORG ( PERSON ) for a reduction of his rent to ORG CARDINAL per month , that is PERCENT of the maximum basic rent for class D apartments , as from DATE . After holding a hearing on CARDINAL DATE , ORG allowed the application on DATE .

ORG The applicants appealed against this decision to ORG ( LOC für GPE ) of GPE . Their tenant claimed that the apartment was in class D because , when he had rented it , there had been no running water or lavatory ; these facilities were subsequently installed at the tenant ’s expense .

On DATE the PERSON court confirmed that the apartment was in class D and that under section PERSON ) of the DATE LAW the DATE rent might not therefore exceed the amount of ORG CARDINAL per square metre . Under section CARDINAL(CARDINAL ) , the rent had to be reduced to PERCENT of the statutory amount , which resulted in a rent of ORG DATE in this case . The overcharge as from DATE ( ORG CARDINAL ) was ordered to be repaid to the tenant .

ORG The applicants appealed , claiming in particular that the restrictions resulting from the application of LAW were unconstitutional . The reduction of a freely and lawfully negotiated rent in fact amounted to an expropriation of the landlord ’s property without compensation . For these reasons , the applicants suggested that the appellate court refer the question of the constitutionality of the relevant legislation to ORG ) .

ORG ( PERSON für GPE ) of PERSON rejected the appeal on DATE . It did not consider it necessary to submit the matter to ORG having regard to ORG case - law on similar issues .

ORG The applicants are members of the same family and reside in GPE .

They jointly own a building in GPE . CARDINAL of the apartments in this house , having a total surface area of QUANTITY and consisting of CARDINAL rooms and a kitchen , plus lavatory and water facilities accessible by a corridor outside the apartment , was let on DATE under a freely negotiated lease in accordance with the provisions of the CARDINAL Rent Act , as amended in DATE .

ORG The rent was set at ORG CARDINAL per month until DATE , and at ORG DATE as from DATE , regard being had to certain improvements to be made by the tenants ( including in particular the transfer of the water installations to the apartment itself ) . The rent was furthermore subject to an indexing provision on the basis of the consumer - price index for DATE . As from DATE , the rent would therefore have been ORG DATE . In fact , the tenants actually paid ATS DATE as from DATE .

ORG On DATE , pursuant to the CARDINAL Rent Act , the tenants of the above apartment applied to ORG to reduce the rent to PERCENT of the maximum basic rent for class D apartments . ORG granted the application on DATE .

ORG The applicants appealed to ORG . They argued that , although certain improvements had not been financed by themselves but by the tenants , those improvements had in fact been agreed in the original lease and had been reflected in a reduction of the rent for the initial period . The tenants objected that the costs of their investments had by far exceeded the amount by which the rent had temporarily been reduced .

The court decided on DATE that the chargeable rent should be based on that for class D apartments because the apartment in question had been in this class when the lease was concluded and the improvements had not been carried out by the landlords . It accordingly reduced the rent to ORG DATE as from DATE . At the same time , it ordered the applicants to pay back to the tenants the overpayments received since that time ( amounting to some ORG CARDINAL,CARDINAL ) .

ORG The applicants appealed against this decision , claiming that the rent should be based on that for class B apartments and not for class D and that they had suffered expropriation or other disproportionate interference with their property rights as guaranteed under LAW ) and LAW No . CARDINAL ( PCARDINAL - CARDINAL ) to the Convention . They submitted that the question of constitutionality should be referred to ORG .

ORG of Innsbruck , although it allowed the appeal in part by a decision of CARDINAL DATE , confirmed the classification of the apartment in class D , regard being had to its standard at the time of the conclusion of the lease . The court entertained no doubt with regard to the constitutionality of the applicable legislation . LAW provided for a measure of deprivation which was in conformity with the requirements of the LAW and of the LAW . The public interest served by this legislation was securing the stable , socially and economically justified housing rents for apartments which as a rule served the important needs of those broad sections of the population who depended on leased accommodation .

ORG On DATE the applicants applied to ORG for compensation from the ORG for expropriation , in the amount of ORG CARDINAL ( in regard to the CARDINAL-month period DATE ) . The application was rejected on DATE and the applicants did not appeal in time against this decision . Their subsequent application to be granted leave to appeal out of time was finally rejected by ORG on DATE .

ORG The applicants also lodged an appeal against ORG decision of CARDINAL DATE based on the unconstitutionality of the applicable legislation . On DATE ORG ( Oberster Gerichtshof ) rejected this appeal as inadmissible .

ORG The first applicant is the owner , and the late PERSON , whose successors in title have pursued the application , was the usufructuary , of a house in GPE comprising several apartments leased to tenants . Other premises in the house are let for non - residential purposes .

One of the apartments , consisting of CARDINAL rooms , a kitchen , a corridor , a bathroom and a lavatory ( total surface CARDINAL ) , was let on DATE under a freely negotiated lease in accordance with the provisions of the CARDINAL Rent Act , as amended in DATE . The rent was set at ORG DATE , subject to an indexing provision on the basis of the consumer price index for DATE . The rent had risen to ORG DATE by DATE .

Pursuant to the DATE LAW , the tenant of the above apartment asked on DATE for a reduction of his rent to ORG DATE ( that is PERCENT of the maximum basic rent for class C apartments ) as from DATE . The ORG lawyer replied on DATE that the request was unjustified .

ORG On DATE the tenant applied to ORG for the rent to be reduced to ORG DATE as from DATE . After holding a hearing on DATE , ORG decided on CARDINAL DATE to allow the application .

ORG The applicants appealed to ORG ( Bezirksgericht Innere PERSON ) . They submitted that the apartment was in class B for the purposes of section CARDINAL of the DATE LAW and also that the house was situated in a zone for the protection of monuments to which section CARDINAL of the LAW applied .

The court decided on DATE to reduce the rent to ORG DATE as from DATE . It held that the apartment had been in class C at the date of the conclusion of the lease , and that section CARDINAL was inapplicable because the house was not situated in a zone of historical or architectural interest . It was true that the applicants had made considerable investments ( in the total amount of ORG CARDINAL ) , but this did not affect the legal position .

ORG The applicants appealed against this decision , alleging in particular that the apartment had been wrongly classified in class C , and that section CARDINAL(CARDINAL)CARDINAL of the DATE LAW was applicable .

ORG of GPE rejected the appeal on DATE . It considered that the court of first instance , on the evidence , had rightly concluded that neither section CARDINAL(CARDINAL)CARDINAL nor section CARDINAL(CARDINAL)CARDINAL of the DATE LAW was applicable . In particular it had not been proven that the investments made by the applicants had been financed from other resources than their rent income which they were legally obliged to use for maintenance purposes . It had therefore not been shown that they had borne a considerable financial risk of their own . In these circumstances the legal conditions for reducing the rent were fully satisfied .

ORG A system of rent control has existed in GPE since World War I. The CARDINAL Rent Act ( PERSON ) which , subject to numerous amendments , remained in force until DATE , provided for the freezing of rents at the DATE level ( section CARDINAL ) . The landlord was entitled to levy extra charges in respect of current costs of administration , taxes , and special equipment ( GPE , sections CARDINAL and CARDINAL ) . On the conclusion of a new lease he could ask for an increase not exceeding a maximum amount laid down in the law ( Neuvermietungszuschlag , section CARDINAL of the DATE version ) .

The landlord was obliged to use the income from rent for the normal maintenance costs of the building but he was not required to carry out any improvements ( section CARDINAL ) , which , however , could be undertaken with the agreement of the tenants concerned subject to a supplement to the rent to be paid by them ( section CARDINAL , first sentence ) . If the necessary maintenance costs were not covered by the rental income of DATE , the landlord could ask for an increase in the amount of rent ( erhöhter ORG ) to be fixed by the court for a period not exceeding ten years . In that case the landlord was required to use the entire additional rental income during that period for the necessary maintenance measures ( section CARDINAL ) .

ORG The DATE LAW further provided for a considerable number of restrictions on the landlord ’s right to terminate a lease ( sections DATE ) . In principle , leases could be terminated only for important reasons ( section CARDINAL(CARDINAL ) ) . The Act specified what was to be regarded as an important reason ( section CARDINAL(CARDINAL ) ) and in practice the grounds upon which a lease could be terminated were interpreted in a restrictive manner . The lease did not terminate when the tenant died . The Act provided for a right of succession ( Eintrittsrecht ) of near relatives ( spouse , children and adoptive children , brothers and sisters ) and other persons who had lived in the household of the tenant ( section CARDINAL(CARDINAL)CARDINAL ) . When the landlord or near relatives wished to use the apartment in question the contract could only be terminated if there existed an " urgent need " ( which in practice was interpreted as meaning a " genuine emergency " ) , and if adequate alternative accommodation was made available to the tenant ( section CARDINAL(CARDINAL)CARDINAL ) .

However , the above restrictions , in particular the restrictions on the claimable amount of rent , were not of general application . No rent restrictions applied to apartments in buildings constructed after DATE or to certain other apartments including apartments built after the entry into force of the CARDINAL LAW ( section CARDINAL ) . A split housing market was therefore created which privileged the owners of newly constructed houses or apartments whose rents were subject only to the general provisions of LAW ( ORG ) concerning the law of contracts .

Under the NORP rule in GPE a rent - freeze was introduced also in respect of certain tenancy agreements which did not come within the scope of the CARDINAL LAW ( Mietzinsregelungsverordnung ) . This freeze was maintained by NORP legislation introduced in DATE ( PERSON ) . In respect of leases in force on DATE the freely negotiated rent resulting from an earlier agreement could no longer be increased unless this was authorised by a judicial decision taken by analogous application of the relevant provisions of the DATE LAW concerning rent increases . However , no restrictions applied to new agreements in respect of apartments which did not come within the scope of the DATE LAW , i.e. principally apartments in new houses .

ORG In DATE , an amendment to GPE ( ORG ) brought about an extensive relaxation of controls in respect of apartments which came within the scope of this LAW . As from DATE rent restrictions were continued only for earlier leases which remained in force , including leases continued on the basis of the right of succession of a person other than the original tenant . Here the rent freeze continued to operate on the basis of the conversion of each Crown of the DATE rent into ORG CARDINAL for apartments and into ORG ( ATS CARDINAL as from DATE ) for business LOC . However , the parties could fix a higher rent by agreement once the lease had lasted DATE . New leases were no longer subjected to any restrictions on the amount of rent even in respect of apartments which had previously been subject to rent control , provided that these apartments were re - let within DATE of the entry into force of the new legislation , or DATE after vacation by the previous tenant ( section DATE ) , new version ) . The landlord was obliged to use CARDINAL of his additional rent income for maintenance purposes ( section CARDINAL(CARDINAL ) ) .

The easing of rent controls led to relatively high rents even for newly let apartments in old houses . The continued rent - freeze in relation to existing leases encouraged a tendency towards the perpetuation of old leases , and a corresponding scarcity of vacant apartments in this category which had repercussions on the free market for new leases . The relatively high rents which could be obtained for newly let apartments in old houses were further boosted by the existence of high rents in the market for newly constructed apartments , which were exempted from the system of rent controls even before DATE . In DATE a landlord could obtain on the free market up to CARDINAL times the rent frozen at the DATE level .

ORG The unfavourable trend in the housing market led to the re - introduction of rent controls for substandard apartments in DATE . By a further amendment to LAW Mietengesetznovelle ) , fresh restrictions were introduced for new leases of such apartments . While the existing leases in respect of these apartments remained unaffected ( even if they were based on a free agreement concluded after DATE ) , new leases could be concluded as from DATE only on the basis of a statutory square metre rent of ORG DATE ( section CARDINAL(CARDINAL ) of LAW as amended in DATE ) . As this amount was regarded as insufficient by many landlords , they preferred to leave vacant apartments in this category unoccupied , a fact which put an additional strain on the housing market and tended to lead to higher rents for the remaining categories of apartments .

Apart from the above rent control provisions which affected mainly apartments in houses constructed before World War I , the legislation prior to DATE also included rent control provisions applicable to certain houses constructed at DATE , in particular houses constructed with public subsidies ( DATE ) or by non - profit - making housing associations ( GPE DATE ) . This legislation contained detailed regulations on the calculation of rents which were based on the principle that they should not exceed the costs incurred by the owner . It has not been affected by the DATE LAW .

ORG The DATE LAW has been repealed and replaced by a new LAW , which entered into force on DATE . It was intended to bring about an overall reform of the law governing the relationship between landlords and tenants .

However , like LAW , LAW does not apply to all leases . LAW ) exempts ( i ) premises let to certain types of enterprises , ( ii ) LOC let as tied accommodation , ( iii ) premises let for DATE and ( iv ) premises let as secondary residences or for leisure purposes . Section CARDINAL(CARDINAL ) excludes the application of the rent control provisions to buildings constructed and owned by non - profit - making housing associations , which in this respect are subject to the special rent control provisions of ORG , see paragraph CARDINAL above ) . Finally , section CARDINAL(CARDINAL ) stipulates that only certain provisions ( concerning the termination of leases , the right of succession to leases and maintenance contributions ) are to apply to ( i ) buildings constructed without public subsidies after DATE , ( ii ) houses with not CARDINAL separate apartments and ( iii ) freehold flats ( ORG ) in buildings constructed DATE . In these cases the amount of rent can be freely agreed without any restrictions .

As regards apartments and LOC which come within the scope of the LAW , there has been a fundamental change concerning the system of rent control . Further important modifications of the earlier legislation concern the landlord ’s obligations as to the maintenance of his property . The provisions on termination of leases have in substance been maintained subject to certain minor amendments .

CARDINAL .

" Rent under the head lease ( ORG )

( CARDINAL ) The rent payable by the tenant under the head lease in respect of the rented premises shall comprise :

the basic rent ( ORG ) ;

the proportion of the running costs attaching to the rented LOC and the recurrent public charges payable on the LOC ;

the proportion of the relevant exceptional expenses attaching to the rented LOC ;

an appropriate amount for furniture rented with the property or other services provided by the landlord in addition to making the rented property available for use .

( CARDINAL ) The landlord shall also be entitled to charge the tenant the turnover tax payable on the rent . If the landlord does this , he must however deduct from the expenses which he passes on to the tenant the tax ( PERSON ) payable thereon .

" Agreements concerning the amount of the basic rent

( CARDINAL ) Agreements between the landlord and the tenant concerning the amount of the basic rent for LOC rented under a head lease shall be permissible , irrespective of the restrictions set out in sub - section ( CARDINAL ) , up to the amount appropriate to the size , type , layout , location , fittings and condition of the property , if :

the rented property is not used for residential purposes ;

the property is located in a building which has been newly constructed on the basis of a building permit issued after DATE , or if the LOC for rent have been newly created by conversion , the addition of an extra storey , the installation of fixtures or the building of an extension on the basis of a building permit issued after DATE ; ...

the property is located in a building which qualifies for protection as a monument , or in order to preserve the townscape or local architectural environment or on similar grounds of public interest , provided that , apart from the grant of public funds , the landlord has himself made a considerable financial contribution for its preservation after DATE ;

the rented property is a class A apartment with a usable floor - space of over GPE or a class B apartment with a usable floor - space of over CARDINALmCARDINAL , provided that the landlord lets an apartment of this description within DATE of its vacation by the previous tenant or occupier to a person not entitled to succeed to the rights of the previous tenant ;

the rented property is a class A or B apartment in a good condition , the standard of which has been raised by the landlord , after DATE , by combining class C or D apartments , by other large - scale construction work for the extension or conversion of CARDINAL or more class C or D apartments or otherwise by means of considerable financial expenditure ; ...

the rented property is a class C apartment in a good condition , the standard of which has been raised by the landlord , after DATE , by combining class D apartments or by other large - scale construction work for the extension or conversion of CARDINAL or more class D apartments or otherwise by the investment of considerable financial expenditure ; ...

the tenancy has been in existence for DATE .

( CARDINAL ) If the conditions set out in sub - section ( CARDINAL ) are not satisfied , the basic rent agreed between the landlord and the tenant for an apartment rented under a head lease may not exceed , per DATE and per square metre of usable floor - space :

ATS CARDINAL for a class A apartment , that is a habitable apartment with CARDINAL of usable floor - space , comprising at least a room , a kitchen ( kitchenette ) , hall , lavatory and bathing facilities corresponding to the current standard ( bathroom or bathing recess ) and which has central heating , or single - storey heating , or comparable built - in heating and a source of hot water ;

ORG CARDINAL for a class B apartment , that is a habitable apartment comprising at least a room , a kitchen ( kitchenette ) , hall , lavatory and bathing facilities corresponding to the current standard ( bathroom or bathing recess ) ;

ORG CARDINAL for a class C apartment , that is a habitable apartment which has at least inside water facilities and lavatory ;

ATS CARDINAL for a class D apartment , that is an apartment which has either no inside water facilities or no inside lavatory , or which has these facilities CARDINAL of which is however not usable and has not been repaired within a reasonable time after the tenant has informed the landlord [ of the defective state ] .

( CARDINAL ) Classification in accordance with sub - section ( CARDINAL ) shall be determined by the standard of equipment of the apartment at the time of the conclusion of the lease . ...

( CARDINAL ) The amounts specified in sub - section ( CARDINAL ) shall decrease or increase in accordance with any variation of the DATE Consumer Price Index published by ORG , or the index replacing it , as compared with the time when LAW comes into force . Such variation shall not be taken into account if it does not exceed PERCENT of the relevant reference figure . ...

( CARDINAL ) If the basic rent agreed under sub - section ( CARDINAL ) exceeds the appropriate amount for the size , type , layout , location , fittings and condition of the property , the agreement as to rent shall be invalid to the extent that it exceeds this maximum . If the basic rent has to be calculated according to the provisions of sub - sections ( CARDINAL ) and ( CARDINAL ) , the agreement as to rent shall be invalid to the extent that it exceeds the maximum permitted in those sub - sections .

" Increase in the basic rent

( CARDINAL ) Where the costs of urgent , major maintenance work to be completed by the landlord , including interest and other costs relating to the securing of the necessary funds , within the meaning of section CARDINAL(CARDINAL)CARDINAL , are not covered by the sum of the rent surplus or rent deficit ( PERSON oder Mietzinsabgänge ) constituted over DATE , and exceed the expected rental income for the period of amortisation , the basic rent may be increased to cover the shortfall . To establish the amount of the requisite increase the following factors shall be taken into account :

the amount of the rent surplus or rent deficit resulting from DATE including any grant awarded in connection with the execution of the work ;

reasonable costs in respect of urgent maintenance work as set out in an estimate , including reasonable administrative and supervision costs in so far as these do not exceed PERCENT of the construction costs . These costs are to be reduced or increased , as the case may be , by any surplus or deficit ( shortfall ) DATE . ;

a period of amortisation not exceeding DATE , which is to be fixed , according to a fair assessment , with regard to the period in which in the light of experience and on the basis of ordinary durability such or similar work is to be repeated and having regard to the financial position of the landlord and all the tenants in the building ;

the landlord ’s capital required to finance the " shortfall " , whether such capital is his own or borrowed , together with the costs relating to the securing of the necessary funds , if they are borrowed , and the DATE repayments thereon as well as reasonable interest attaching thereto ;

an overall amount , freely determined ( ‘ nach freier Überzeugung’ : LAW ) , representing the costs of recurring maintenance work and regular payments due in respect of wealth tax plus surcharge attaching to the ownership of the property , as well as any DATE repayments covering capital and interest for earlier maintenance work financed in accordance with the provisions of section CARDINAL(CARDINAL)CARDINAL ;

the total amount of the DATE basic rents for the rented premises , which , for the purposes of standardising the calculation , shall be determined as follows :

( a ) for the rented dwellings each basic rent fixed pursuant to section CARDINAL(CARDINAL ) to ( CARDINAL ) ;

" Basic rent - rendering of accounts

( CARDINAL ) The landlord shall provide a clear statement of the income and expenditure for DATE .

With regard to income the statement shall indicate :

( a ) the amounts paid to the landlord for the rented premises as basic rent ( including increased rent and maintenance contributions ) ;

( e ) the grants which the landlord receives in connection with maintenance or useful improvement work .

With regard to expenditure the statement may indicate :

( a ) the amounts spent in respect of the ordinary maintenance ( section CARDINAL ) or useful improvement ( sections CARDINAL and CARDINAL ) of the building , as evidenced by invoices and receipts ;

( b ) PERCENT of the costs , as evidenced by invoices and receipts , which the landlord has incurred in respect of the ordinary maintenance ( section CARDINAL ) or useful improvement ( sections CARDINAL and CARDINAL ) of the building in DATE in which the tenant has not been required to pay increased basic rent under section CARDINAL(CARDINAL ) or ( CARDINAL ) ;

( c ) amounts which the landlord is required to pay in respect of wealth tax plus surcharge attaching to the ownership of the property .

( CARDINAL ) The difference between the income and expenditure for DATE as indicated constitutes the rent surplus or rent deficit for DATE , as the case may be .

" Running costs and current taxes

( CARDINAL ) The following costs incurred by the landlord shall be regarded as running costs :

the supply of the LOC with water ... ;

regular chimney - sweeping in accordance with the relevant regulations , drain - cleaning , waste disposal and pest control ;

the suitable lighting of parts of the building to which there is general access ... ;

appropriate fire insurance for the building ... ;

... statutory civil liability insurance ... and insurance against damage caused by mains water , including corrosion ;

appropriate insurance for the building against other risks ... ;

the administrative costs referred to in LAW ;

" Exorbitant basic rent

( CARDINAL ) The tenant under the head lease of an apartment rented before LAW came into force may require the landlord to reduce the basic rent which was previously agreed if :

the conditions set out in section CARDINAL(CARDINAL)CARDINAL to CARDINAL were not satisfied in respect of the apartment when the amount of the basic rent was agreed , and

the agreed basic rent exceeds by CARDINAL the amount of the basic rent calculated under section CARDINAL(CARDINAL ) for the size and class of the apartment at the time of the tenancy agreement or a subsequent improvement to the standard of the LOC , financed by the landlord .

( CARDINAL ) If the tenant under the head lease requires the landlord to reduce the agreed basic rent , the agreement concerning the basic rent shall be invalid as from DATE on which rent becomes due following receipt of the request , to the extent that the basic rent exceeds CARDINAL times the amount calculated for the size and class of the apartment ( sub - section ( CARDINAL)CARDINAL ) . ... "

" Maintenance contribution

( CARDINAL ) The maintenance contribution shall be calculated as follows :

For an apartment , the amount actually paid as basic rent or increased basic rent shall be subtracted from CARDINAL of the amount calculated under section CARDINAL(CARDINAL)CARDINAL and ( CARDINAL ) as the permissible basic rent ;

( CARDINAL ) If the rent which the tenant under the head lease has to pay for LOC rented before the entry into force of the present LAW , under the previous legislation or an earlier agreement , is so low that a maintenance contribution results from the application of sub - section ( CARDINAL ) , the landlord may require the tenant under the head lease to pay the maintenance contribution calculated in accordance with sub - section ( CARDINAL ) , in addition to the basic rent or increased basic rent applying hitherto , in order to guarantee financial provision in advance for identifiable maintenance work required in the foreseeable future , provided that rented LOC are located in a building the demolition of which has not been authorised or ordered by the housing authorities . The landlord must inform the tenant under the head lease in writing of this demand at DATE for payment of rent on which he is claiming payment of the maintenance contribution and must undertake to use such contribution thus claimed within DATE of its payment to finance maintenance work , the costs of which are not covered by the sums available from the rent surplus and to render a separate account ( section PERSON ) ) relating to this expenditure on DATE . The written demand must further specify the amount of the basic rent or increased basic rent to be paid for the premises , the usable floor - space , and in the case of apartments , the class of apartment at the time of the conclusion of the tenancy agreement .

Subsequently the legislature amended various provisions of the DATE Act . In particular it clarified sections DATE by providing for an improvement contribution .

ORG The restrictions on the landlord ’s right to terminate leases ( see paragraph CARDINAL above ) have in substance been maintained by the DATE LAW .

ORG Certain measures affecting the tenancy , including a reduction of rent under LAW , require a judicial decision in the event of a dispute . According to section DATE the relevant procedure takes place before the competent ORG in non - contentious proceedings ( PERSON ) .

However , in certain municipalities , where this is justified by the number of cases , an administrative body may be set up to deal with the matter in the first place ( section CARDINAL ) . In these municipalities the court procedure can be initiated only after the administrative decision has been given . The court procedure is not construed as an appeal against this decision , but as an entirely new procedure which has the effect of simply setting aside the administrative decision ( sections DATE and DATE ) .

ORG The DATE LAW was adopted after heated debate in ORG and in the media , in which representatives of the political parties and interest groups took part . This discussion has continued .

Harsh criticism was expressed in particular concerning the extremely complicated structure of the legislation and the resultant administrative difficulties created for the landlords . As regards the introduction of square metre rents , the criticism focussed on the appropriateness of this system as such , the lack of differentiation according to the particular circumstances of the buildings concerned especially as to regional market differences , and the low amount of the statutory rents which in many cases are allegedly not sufficient to cover normal maintenance costs . It has also been suggested in DATE that there is no justification for applying the system of square metre rents to existing leases and for leaving it to the tenants concerned to apply for a reduction .

In the latter respect it was disputed whether this measure amounted to an expropriation and whether it was in conformity with the LAW and LAW .

Nevertheless , this matter has not been brought before ORG . According to the relevant provisions of LAW ( GPE , Articles CARDINAL and CARDINAL ) , the individuals concerned have no right to apply directly to this court if the civil courts are competent . The civil appellate courts can request a review by ORG if they have doubts as to the constitutionality of a legal provision which they are required to apply in a particular case ( Articles CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of LAW ) . However , as the present case shows , the competent civil courts had no such doubts concerning section CARDINAL of the DATE LAW .

ORG This is confirmed by a decision of ORG of DATE , in which it held that there was no doubt as to the constitutional validity of this provision . ORG stated as follows :

" In passing LAW , the legislature has , for reasons which are understandable from a historical point of view , limited freedom of contract with regard to the amount of rent payable for properties covered by the LAW . Over DATE , always with reference to current needs , further properties were removed from the sphere of freely negotiated rents , determined by supply and demand . A relaxation was followed by the re - introduction of tighter controls ( Rent LAW , ORG No . DATE ; LAW , ORG . PERSON ) , which led to a situation in which the legislature considered fundamental reform to be necessary .

The legislature therefore restricted agreements on the basic rent for LOC covered by the new legislation generally to the amount regarded as reasonable with reference to the size , type , layout , location , fittings and condition of the LOC and for the sake of greater clarity laid down maximum limits for the most common types of apartments ( section CARDINAL(CARDINAL ) of LAW ) . At the same time , it regarded the fundamental aim of the transitional provisions as being to achieve the gradual and smoothest possible adjustment of existing leases to the new rules . In this connection , it was recognised that this adjustment would be at once the most problematic and at the same time the most urgent part of the transitional arrangements . ...

Undeniably this constitutes an interference with existing leases . Indeed this was the legislature ’s declared intention .

In this connection it must not be overlooked that the obligation to pay rent for an apartment constitutes a continuing obligation and that in general such obligations are not entirely immune to certain adjustments and changes . ...

Existing legal rights are not covered by the general protection afforded under LAW ( VfSlg [ FAC ORG ] CARDINAL/CARDINAL : ‘ There is no provision in LAW which in principle prevents ordinary legislation from interfering with lawfully acquired rights’ ) . The new provisions are entirely consistent with the legislative policy of bringing existing leases into line with the general system of the reform of the rent legislation and are intended to keep the hiatus between the old and new systems to the minimum . LAW ) and ( CARDINAL ) of LAW provide an appropriate mechanism for this adjustment . They also enable the landlord to receive PERCENT more rent than he could charge if the tenant gave notice and he had to re - let the apartment . These provisions are intended merely to prevent the sitting tenant from paying an ‘ unduly high rent’ in relation to what is considered the reasonable square metre rent , if he is unable or unwilling to terminate the lease and rent another apartment . As the tenant can terminate the lease at any time , the right to obtain the fully agreed rent is in fact limited to the effective duration of the lease . When drafting the transitional provisions in section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW , the legislature was guided by the existing rules in LAW , which were already in force when the existing leases were entered into , and by the ideas underlying LAW ... , and , accordingly , allowed rent to be reduced to CARDINAL times the amount of the newly established reasonable rent ... . This power to take the initiative vested in the tenant must not be regarded in isolation but must be seen in the whole context of the new legislation . In granting it , the legislature has neither acted arbitrarily nor exceeded its powers . It has remained within the bounds of the freedom to form legislative policy which , in case of doubt , it must be assumed to have . To place too many limits on this freedom would lead to inflexibility with regard to legal situations and hamper innovations even where necessary .

The possibility available to tenants of applying for a reduction in rent under section CARDINAL(CARDINAL ) and ( CARDINAL ) of LAW is clearly disadvantageous to landlords who have concluded an agreement on the amount of rent to be paid by the tenant under existing legislation and now find that their confidence in the law has been misplaced . It should however be recognised that this is counterbalanced by a series of provisions as a result of which rent is no longer frozen at the DATE level ( e.g. section CARDINAL(CARDINAL ) or section CARDINAL(CARDINAL ) of LAW ) . In addition the possibility of charging maintenance contributions under LAW of LAW is a measure which facilitates the adjustment of existing leases .

Of course the new system may bring more disadvantages for some landlords and more advantages for others . However , at all events , it is merely a restriction on the right of property ( PERSON ) since the rent for a sitting tenant may still exceed the amount chargeable under the new legislation by PERCENT . The legislature may authorise an expropriation only if such a measure serves the public good and the general interest ( see , inter alia , PERSON CARDINAL/CARDINAL ; DATE ; DATE ) . LAW provides that an expropriation may be effected only if it is justified in the general interest ( see , inter alia , PERSON CARDINAL/CARDINAL ; DATE ) . Although the first sentence of LAW does indeed apply to restrictions on the right of property , the legislature can lay down such restrictions without fear of acting in breach of the LAW , provided that they do not threaten the very substance of the fundamental right to the inviolability of property or otherwise violate a constitutional principle binding on the legislature ( ORG ; CARDINAL etc ) . But this is not the case of the transitional provisions contained in section CARDINAL(CARDINAL ) and ( CARDINAL ) of the act which were required by the public interest and for the common good , because they fit into the balanced structure designed to cater for the adjustment of the old system to the new one and are part of the necessary harmonisation leading to the desired objective . Under LAW No . CARDINAL ( PCARDINAL - CARDINAL ) to ORG , restrictions on the right of property must be in accordance with the general interest . In its decision of DATE ( G CARDINAL/CARDINAL - CARDINAL ) , ORG confirmed the principle laid down in previous decisions that restrictions on the right of property which take account of these principles are not unconstitutional . " ( ORG DATE , No . CARDINAL , pp . CARDINAL - CARDINAL )