Remainder inadmissible;Violation of Article 14+P1-1 - Prohibition of discrimination (Article 14 - Discrimination) (Article 1 of Protocol No. 1 - Protection of property;Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary damage - claim dismissed;Non-pecuniary damage - claim dismissed

András Sajó;Françoise Tulkens;Guido Raimondi;Isabelle Berro-Lefèvre

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

The applicants were all reservists who had been drafted by ORG in connection with ORG intervention in GPE . They remained in military service DATE , and were thus entitled to a certain per diem , as recognised in a number of decisions and orders of DATE signed by the then Chief of ORG . These decisions and orders were themselves based on the relevant bylaws adopted in accordance with the armed services legislation , specifically the Rules on Travel and Other Expenses in ORG ( PERSON o naknadi putnih i drugih troškova u PERSON ) as amended in DATE .

NORP However , following the demobilisation the Government refused to honour their obligation to the reservists , including the applicants .

NORP The reservists subsequently organised a series of public protests , some of which ended in open confrontation with the police . Ultimately , following protracted negotiations , on DATE the Government reached an agreement with some of the reservists , in particular those residing in the municipalities of GPE , GPE , PERSON , PERSON , PERSON , PERSON and ORG , whereby the latter were guaranteed payment in CARDINAL DATE instalments . This payment was to be effected through their respective municipalities , aggregate sums having been specified per each municipality . The said municipalities were chosen because of their “ underdeveloped ” status , implying the reservists’ indigence . For their part , the reservists in question accepted to renounce all of their outstanding claims based on their military service in DATE which were still pending before the civil courts , as well as any other claims in this connection . It was , lastly , stipulated that the criteria for the distribution of the “ financial aid ” in question shall be set out by a Commission consisting of local government representatives and the representatives of the reservists themselves .

The applicants , just like all other reservists without a registered residence in the listed municipalities , could not benefit from the agreement of DATE .

On DATE the applicants therefore filed a civil claim against the respondent ORG , seeking payment of their per diems and alleging discrimination .

On DATE ORG ( PERSON ) in LOC ruled against the applicants . In so doing , it acknowledged the valid legal basis of their claim but noted that , as pointed out by the respondent , the applicable prescription period had been DATE as of their demobilisation , in accordance with LAW . The ORG claim had thus been filed out of time .

On DATE ORG ( PERSON ) in LOC upheld this judgment on appeal , and it thereby became final . In its reasoning ORG noted that both the DATE and the DATE prescription periods provided in LAW had already elapsed before the applicants filed their civil claim ( see paragraph CARDINAL below ) .

Having been served with ORG decision , on DATE the applicants lodged a further appeal with ORG ( Ustavni sud ) . Therein they maintained , inter alia , that the impugned judgment of ORG in GPE was inconsistent with numerous judgments adopted by the other appellate courts in GPE – i.e. the district courts ( okružni sudovi ) while they existed , as well as the high courts and the appeals courts ( viši i apelacioni sudovi ) thereafter DATE which on the same facts applied a longer , DATE , prescription period and thus ruled in favour of the plaintiffs ( see LAW at paragraph CARDINAL below ) . The applicants also referred to the agreement concluded between the Government and some of the reservists of CARDINAL DATE , which agreement excluded all of the remaining reservists including themselves .

NORP The proceedings before ORG are still pending .

DATE and DATE the first instance and appellate courts across GPE ruled both in favour of the reservists in a situation such as the ORG and against them , relying on the DATE / DATE or the DATE prescription periods respectively .

In the meantime , in DATE and DATE , ORG adopted CARDINAL legal opinions ( pravna shvatanja ) , both of which implied that the applicable prescription period should be DATE pursuant to LAW ( see paragraphs CARDINAL , CARDINAL and DATE below ) .

It was also alleged by the Government that ORG had adopted a further legal opinion on the matter in DATE , to the same effect but in more specific terms , but no such opinion has ever been published in its official ORG ) .

DATE and DATE various appellate courts substantively ruled in compliance with ORG opinions of DATE and DATE ( see , for example , the decisions of ORG in GPE , PERSON . CARDINAL/CARDINAL of DATE ; ORG in PERSON , PERSON . CARDINAL/CARDINAL of DATE , CARDINAL/CARDINAL of CARDINAL DATE , CARDINAL of DATE , ORG of CARDINAL DATE and CARDINAL/CARDINAL of DATE ; ORG in GPE , PERSON . CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ; as well as ORG in GPE , Gž . CARDINAL of DATE , CARDINAL/CARDINAL of DATE , DATE of DATE and CARDINAL/CARDINAL of CARDINAL DATE ) .

DATE and DATE there were also a number of decisions where the appellate courts ruled against the reservists , albeit on a different ground . Specifically , their claims , unlike the claims of the applicants in the present case , were rejected as administrative in nature , and as such outside the competence of the civil courts ( see the decision of ORG in GPE Gž . CARDINAL of DATE , as well as the decisions of ORG in GPE Gž . CARDINAL , ORG and PERSON of CARDINAL DATE , DATE and DATE respectively ) .

On DATE ORG in ORG adopted a default judgment in favour of a reservist ( ORG . CARDINAL ) . According to the information provided by the parties , there is no evidence that this judgment had ever become final .

On DATE the Government endorsed the agreement of CARDINAL DATE , and decided to pay to the municipalities in question the amounts specified therein .

On DATE the Government set up a working group tasked with addressing the requests of all other reservists , i.e. those not resident in the said CARDINAL municipalities . However , having discussed the issue with various groups of reservists , this working group ultimately concluded that their demands were not acceptable , inter alia , because : ( i ) they had not harmonised or specified their requests ; ( ii ) some of their representatives had had dubious standing to represent them ; ( iii ) there had been a lack of ORG funds which could be used for this purpose ; and ( iv ) in most cases , war per diems had already been paid to the reservists .

On DATE the Commissioner for ORG ) , an Ombudsman - type office established on the basis of LAW ( published in OG RS no . CARDINAL ) , considered the complaints brought by an organisation representing the interests of reservists in a situation such as the applicants’ . In so doing , she concluded that they had been discriminated against on the basis of their registered residence , i.e. as non - residents of the CARDINAL privileged municipalities , and recommended to the Government to take all necessary measures in order to ensure that all reservists be afforded the payments recognised by their decision of DATE . The Government was also invited to provide the Commissioner with an appropriate “ action plan ” within DATE . In its reasoning , the Commissioner ’s decision noted , inter alia , that the payments in question were per diems , notwithstanding that the Government had chosen to consider them as social benefits awarded to persons in need ( socijalna pomoć ) , and that this was best exemplified by the fact that the reservists in question had had to renounce their legal claims concerning the per diems as well as the fact that the individual reservists resident in the CARDINAL municipalities at issue were never under an obligation to prove their indigence ( imovinsko stanje i socijalnu ugroženost ) . This being so , there was clearly no objective and reasonable justification for the differential treatment of reservists merely on the basis of their residence .

On DATE ORG ( Ministarstvo rada i socijalne politike ) noted that the discussions should continue with the various groups of reservists and that , if possible , financial support should be offered to the most indigent among them .

On DATE ORG ( ORG ekonomije i regionalnog razvoja ) sent a memorandum to ORG ( ORG pravde ) , stating , inter alia , that there were numerous employment - related civil suits , brought against current or former socially - owned companies , which could endanger the country ’s economic stability . It thus urged ORG to review the possibility of advising the courts to suspend certain types of these suits until DATE , as well as to desist from the enforcement of any final judgments already adopted in these proceedings . According to numerous media reports , having received it , ORG forwarded the memorandum to ORG ( PERSON ) , which then faxed it to the presidents of the appellate courts for information .

On DATE ORG informed the public that it had rejected the recommendation of ORG . In so doing , it noted , inter alia , that the NORP judiciary was independent of the executive as well as the legislative branches of Government .

The relevant provisions of the LAW read as follows :

“ Everyone shall have the right to equal legal protection , without discrimination .

All direct or indirect discrimination based on any grounds , particularly on the grounds of race , sex , national or social origin , birth , religion , political or other opinion , property status , culture , language , age , mental or physical disability shall be prohibited . ”

“ Everyone shall have the right to ... [ a fair hearing before a ] ... tribunal ... [ in the determination ] ... of his [ or her ] rights and obligations ... ”

“ Equal protection of rights before the courts of law ... shall be guaranteed . ”

“ A constitutional appeal may be lodged against individual decisions or actions of ORG bodies or organisations exercising delegated public powers which violate or deny human or minority rights and freedoms guaranteed by LAW , if other legal remedies for their protection have already been exhausted or have not been prescribed . ”

On DATE and CARDINAL DATE ORG rejected CARDINAL separate constitutional appeals lodged by reservists who were in a situation such as the applicants’ . The said court noted , inter alia , that the civil courts’ decisions rendered against them , respectively , had been “ based on the applicable domestic legislation ” . The appellants , however , never specifically complained about the inconsistency of the relevant case - law or being discriminated against ( Už . CARDINAL/CARDINAL and Už . CARDINAL ) .

On DATE , in another case such as the applicants’ , ORG , inter alia , effectively ignored a complaint about the differential treatment of the CARDINAL groups of reservists stemming from the agreement of DATE . In particular , it offered no substantive assessment of the issue raised by the appellants , noting further that they had not offered adequate proof as regards the existence of inconsistent case - law on the matter ( Už . GPE ) .

On DATE , in yet another case such as the applicants’ , ORG ruled against the appellants as regards their complaint about the outcome of their case before the lower courts . There was no reference in the decision itself to the agreement of DATE and it remains unclear as to whether this issue was ever raised by the appellants ( Už . CARDINAL ) .

On DATE , in a case such as the applicants’ but where the civil courts had rejected the reservists claims as being outside of their competence ratione materiae ( see , for example , paragraph CARDINAL above ) , ORG ruled in favour of the appellants who had alleged inconsistent case - law ( between the judgments adopted in their cases and several other judgments adopted by the courts in DATE ) and ordered that the impugned civil proceedings be re - opened . As regards the NORP discrimination complaint , ORG reasoned that the said inconsistency did not amount to discrimination since the impugned court decisions had not been rendered on the basis of the appellants’ personal status ( ličnog svojstva ) . There was also no reference in the court ’s reasoning to the agreement of DATE ( Už . CARDINAL ) .

In decision Už . CARDINAL , adopted on DATE , and decisions Už . CARDINAL/CARDINAL , CARDINAL and CARDINAL/CARDINAL , all adopted on DATE , as well as in decisions Už . CARDINAL , DATE , ORG , CARDINAL , ORG , CARDINAL , CARDINAL and DATE , rendered between DATE and DATE , ORG noted the existence of inconsistent domestic case - law in the civil context and then went on to find that this had been in breach of the principle of judicial certainty as an integral part of the appellants’ right to a fair trial . The appellants’ complaints to the effect that the same situation had also resulted in discrimination against them , was rejected by ORG as manifestly ill - founded , since the impugned court decisions had not been rendered on the basis of the appellants’ personal status . No re - opening of the proceedings was ordered . The above - cited decisions concerned matters which were factually unrelated to the applicants’ situation in the present case .

Article CARDINAL § CARDINAL provides , inter alia , that all parties shall be entitled to the equal protection of their rights .

Article CARDINAL sets out the circumstances in which a default judgment ( presuda zbog izostanka ) may be adopted , based on , inter alia , the respondent ’s failure to appear before the court despite being duly served with the summons .

Article CARDINAL provides that a case may be reopened if ORG has in the meantime rendered a judgment in respect of GPE concerning the same or a similar legal issue .

Article QUANTITY provides , inter alia , that a meeting of a division ( sednica odeljenja ) of ORG shall be held if there is an issue as regards the consistency of its case - law . Any opinions ( pravna shvatanja ) adopted thereupon shall be binding for the panels ( veća ) of the division in question .

These Rules set out the relevant details concerning the reimbursement of expenses incurred in connection with military service .

Article CARDINAL § CARDINAL provides that courts may not , in the course of proceedings before them , take into account negative prescription periods unless an objection to this effect has been made by the debtor .

Article CARDINAL states that the general negative prescription period for civil claims shall be DATE , unless provided otherwise .

Article CARDINAL § § CARDINAL and QUANTITY provides , inter alia , that the negative prescription period for seeking civil compensation shall be DATE as of when the claimant learned of the damage in question , but that , in any event , the absolute deadline shall be DATE as of when the damage occurred .

Articles CARDINAL and CARDINAL provide , inter alia , that the running of a negative prescription period shall be interrupted by the debtor ’s acceptance of the claim at issue , directly or indirectly , as well as by the claimant ’s lodging of a civil action in this respect .

Article CARDINAL § § CARDINAL provides , inter alia , that the effect of such an interruption shall be that the applicable period shall start running anew as of the debtor ’s acceptance of the claim in question and the conclusion of the civil suit , respectively .

On DATE ORG held , inter alia , that , quite apart from the competence of the administrative authorities in respect of the reservists’ claims concerning their per diems , civil courts shall have jurisdiction to rule on the merits in all related cases where they seek damages ( see paragraph CARDINAL above ) based on the ORG ’s alleged malfeasance ( pravno shvatanje ORG odeljenja ORG utvrđeno na sednici od CARDINAL . DATE . godine , published in ORG Bulletin no . CARDINAL ) .

On DATE ORG essentially reaffirmed the opinion of CARDINAL DATE , extending its application to certain other “ military entitlements ” . It also noted that there have been some inconsistencies before the courts in the meantime ( pravno shvatanje ORG utvrđeno na sednici od CARDINAL . aprila DATE . godine , published in ORG Bulletin no . CARDINAL ) .


CASE OF SHARKUNOV AND MEZENTSEV v. RUSSIA

Preliminary objection dismissed (non-exhaustion of domestic remedies);No violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 6-1 and 6-3-d;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively . They are serving their prison sentences in LOC .

On DATE the first applicant ( Mr PERSON ) was brought to ORG of ORG of the ORG in the town of ORG . He was suspected of a Mr M. 's murder . As can be seen from the arrest report drawn up at TIME on DATE , the applicant 's family and next of kin were not informed . According to the applicant , the police officers placed a canvas bag on his head , beat him and administered electric shocks with the purpose of extracting a confession from him . The applicant made no confessions .

During TIME , from CARDINAL to TIME , the first applicant was brought before investigator PERSON record of interview contains the following pre - typed standard wording :

“ I have been informed that LAW CARDINAL of LAW , no one is required to testify against himself , his spouse or next of kin ... I have also been apprised of the rights of the suspect during the preliminary investigation under Articles CARDINAL and QUANTITY of LAW :

A suspect has the following defence rights : to know the accusation against him ; to make statements ; to adduce evidence ; to make requests ; to have access to the records of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody ; to lodge challenges and complaints against the investigator 's decisions and actions ; to read this record after the interview , request its amendment and to make observations , which must be included in the record .

I have also been informed that under ORG CARDINAL of the RSFSR Code of Criminal Procedure a suspect has a right of defence . For this investigative measure I required _ _ _ counsel ( appointed by an advocates ' office ; a lawyer named by me ; if no counsel requested – indicate a reason ... ) . ”

The applicant made a handwritten statement indicating that he did not require counsel and that he would defend himself . This note bears his signature .

The record of the interview also contains another handwritten note by the applicant in the following terms :

“ I have been apprised of the content of LAW . For the time being I refuse to speak . ”

This note bears the applicant 's signature .

On TIME a medical assistant in the local sobering - up centre carried out a medical check of the upper part of his body ; no injuries were recorded . The applicant was then placed in the ORG temporary detention centre . The applicant was examined by a medical assistant and complained of “ pain all over the body ” . Blue bruises on the hip / thigh and blue injection marks on his arms were recorded . The medical assistant ascribed the marks to drug addiction and withdrawal symptoms . As can be seen from the applicant 's written statement made on DATE , he had been horse riding DATE before and had no complaints against any public official .

On the investigator 's order , on CARDINAL DATE the applicant was examined by a medical expert . The examination was carried out in the presence of CARDINAL convoy officers . The report drawn up on DATE stated that the first applicant had no physical injuries .

On DATE the applicant was examined by paramedics , who concluded that he was suffering from withdrawal syndrome . On DATE the applicant was examined in relation to abdominal pains and pain in the neck and in the thoracic spine area . It appears that he was given unspecified medicines .

According to the ORG , the applicant had access to counsel PERSON on CARDINAL DATE , and on DATE he was interviewed in the presence of counsel and remained represented throughout the pre - trial investigation and trial .

On DATE the applicant was transferred from the temporary detention centre to a remand centre .

On DATE the applicant 's mother lodged a complaint with ORG of the Kurgan Region and the ORG town prosecutor , alleging that her son had been ill - treated in police custody :

“ My son was arrested on CARDINAL May CARDINAL ... I became aware later on that on DATE he had been taken to section CARDINAL of the town department of the ORG and had been severely beaten and tortured by electric shocks in order to obtain confessions ... Ill - treatment continued later on ... The above was confirmed by my son 's former counsel NORP who told me on DATE that my son was being ill - treated . D. saw my son on DATE and called me , asking me to bring my son clean clothes . On CARDINAL May the lawyer told me that my son had been beaten again and had been given electric shocks ... On DATE I unsuccessfully asked investigator PERSON to let me see my son ... On CARDINAL May the investigator told me that he would hand over the clean clothes to my son if I refused to take away the old ones , which might be needed for an expert examination ... After the arrest my son named the lawyers he wanted to instruct ; since they were not available the investigator should have appointed legal aid counsel instead ... I was misled by the staff of the temporary detention centre about the withdrawal pains my son had allegedly been suffering from ... This did not make any sense to me ... On DATE I had brought some pain killers and asked – in vain – to call for an emergency squad for my son ... My son has a medullispinal hernia , which can be painful at times ... ”

The complaint was forwarded for examination by the Shadrinsk Inter - District Prosecutor 's Office . A preliminary inquiry was ordered .

During the inquiry the medical assistant of the sobering - up centre affirmed that no injuries had been recorded and that the applicant had made no complaints or allegations on DATE at or QUANTITY However , according to the on - duty officer of the temporary detention centre , on DATE at TIME the applicant had been brought to the temporary detention centre ; blue bruises and injections marks were visible on his body ; the applicant explained that he had sustained the bruises while horse riding and that he was a drug addict . As can be seen from a statement issued on DATE by the medical assistant of the temporary detention centre , on DATE the applicant complained of pain in the body ; the examination at TIME revealed blue bruises on the hip / thigh and blue injection marks on his arms ; the medical assistant ascribed these to drug addiction and withdrawal symptoms . According to her statement , the applicant was also seen on DATE for unspecified reasons , and on DATE on account of his complaints of pain in the neck and the thoracic spine area ; he had had no health - related complaints when transferred to the remand centre on CARDINAL DATE .

A number of officers made written statements . Officer PERSON stated that he had brought the applicant to ORG DATE at or TIME ; investigative measures had been taken until TIME in the presence of investigator PERSON ; thereafter , the applicant had been brought to the sobering - up centre for an examination and then to the temporary detention centre ; he had not witnessed any ill - treatment against the applicant ( see also paragraph CARDINAL below ) .

PERSON . stated that the applicant had been brought to the Unit on CARDINAL DATE ; investigator PERSON had also been present while some measures were being carried out ; no ill - treatment was inflicted on the applicant in the ORG and no signs of ill - treatment were visible on his body .

Senior officer PERSON . made a similar statement ( see also paragraph CARDINAL below ) indicating that the applicant had been brought to the Unit on CARDINAL or CARDINAL DATE in the TIME .

Officer PERSON stated that the applicant had been present on the LOC on DATE in the afternoon and that he had seen investigator PERSON and officers PERSON and Ya . with the applicant at TIME . Officer PERSON did not witness any ill - treatment .

Lastly , investigator PERSON stated that he had issued an arrest warrant against the applicant and questioned him ; no ill - treatment had been inflicted on the applicant ; a medical expert had examined him on DATE and found no injuries .

By a decision of DATE the ORG refused to institute criminal proceedings against the officers allegedly responsible for the first applicant 's ill - treatment . It was established that the applicant had been arrested on DATE and had been brought to ORG for investigative measures . Thereafter , he had been examined by a medical assistant of the sobering - up centre ; no injuries had been noted . The applicant was then brought to the temporary detention centre and examined by an “ on - duty ” officer ; the applicant explained that the bruising on his hips / thighs had been sustained before the arrest ( probably from horse riding ) ; no injuries had been found during his placement in the remand centre on DATE . In DATE the applicant made no complaint about his health and did not raise any allegations against any public official . Nor did he raise any allegations during the inquiry that had been initiated following his mother 's complaint .

As can be seen from the decision of DATE , “ the persons concerned should be informed of the decision and the procedure for appealing against it ” . By a letter of the same date , the applicant 's mother was notified of the decision and of the possibility of appealing to a higher prosecutor .

On an unspecified date Mr T. was appointed as counsel for the applicant . On DATE he sought a copy of a search order in respect of the applicant 's flat ; he also asked the investigator to allow the applicant visits from his family .

A medical certificate dated DATE , issued by the local drug addiction hospital , states that the first applicant did not suffer from alcohol or drug addiction and did not require any related treatment while in detention .

On DATE the first applicant complained to the PERSON prosecutor 's office supervising detention facilities about the events of CARDINAL and CARDINAL DATE and the investigation . The applicant made the following statement :

“ On DATE ... I was interrogated in a particularly intensive manner , which I can describe if you so require . The officers tried to compel me to make confessions in respect of a criminal offence in which I was not involved and of which I knew nothing . At TIME investigator PERSON joined in . When physical violence temporarily ceased and the bag was taken off my head , investigator PERSON compelled me to make written statements ... He told me that he had witness statements against me ... For DATE in the temporary detention centre I made statements concerning my alibi on DATE of PERSON 's murder and the alleged animosity between myself and the above witness ... ”

By a letter of CARDINAL DATE the applicant was informed that his renewed complaint had been dismissed by ORG because the inquiry had already resulted in a decision not to initiate criminal proceedings in relation to the alleged ill - treatment .

On DATE the applicant was interviewed in the presence of counsel , pleaded not guilty , sought a face - to - face confrontation with the second applicant and then chose to remain silent .

DATE the applicant sent several unspecified complaints from the detention facility to ORG . In DATE the applicant 's mother complained to the regional prosecutor about the inquiry into the allegation of ill - treatment .

On DATE the second applicant ( Mr PERSON ) was brought to the above - mentioned ORG in GPE from a detention facility in the town of GPE .

According to the applicant , he remained in the police car with a canvas bag on his head and received several blows from the convoy officers . In the ORG the officers connected wires to his little fingers and applied electric shocks . When he fainted they hit him on the head so that he would regain consciousness . A canvas bag was placed over his head , restricting the airflow . He could not bear the pain and admitted his complicity in the killing of a PERSON

On DATE , TIME , the second applicant was questioned by investigator PERSON record of interview contains the following pre - typed standard wording :

A suspect has the following defence rights : to know the accusation against him ; to make statements ; to adduce evidence ; to make requests ; to have access to the TIME of investigative measures carried out in his presence and to have access to the file submitted to the court confirming the lawfulness of and reasons for remanding him in custody ; to lodge challenges and complaints against the investigator 's decisions and actions ; to read this record after the interview , request its amendment and to make observations , which must be included in the record .

The applicant made a handwritten statement indicating that he did not require counsel and that he was not waiving his right on account of lack of means . This note bears his signature .

The record of interview also contains another handwritten note by the applicant in the following terms :

“ I have been apprised of the content of LAW . I agree to testify on the substance of the suspicion against me ” .

This note bears the applicant 's signature . During this interview the applicant confessed to having been an accessory to ORG 's murder , committed , according to the second applicant , by the first applicant ( Mr PERSON ) . The record ended with a handwritten note stating that the second applicant had read the record , that it was correctly transcribed , that the applicant had no comment or objection to make , that he had been made aware of the video recording and had no comment to make on it . The interview was videotaped by officer Ba .

On DATE the applicant was again taken to ORG , where the ill - treatment , namely beating him on the head , allegedly resumed . According to the applicant , while in a cell he cut the veins in both his arms , allegedly as a protest at the beatings and pressure put on him . According to the Government , the second applicant mutilated himself because the first applicant had put pressure on him while in GPE remand centre no . CARDINAL .

After the second applicant had been provided with medical assistance , at an interview on DATE he was informed of his rights and pleaded innocent ; he declined legal assistance “ for this interview ” and refused to testify .

On DATE the second applicant lodged a complaint with ORG , alleging that he had been forced to confess to the murder and to make false accusations against other persons :

“ I urge you to carry out an inquiry and to stop the unlawful methods of investigation used against me by the officers of ORG . As a result of these , I was forced to made confessions on DATE . I complained to the regional prosecutor 's office but subsequently learnt that the complaint had not been forwarded ... On DATE I was brought to the Unit again and was forced to incriminate myself and others of various crimes . To overcome my resistance , the officers offered a visit from my family in exchange for a confession ; this was a form of psychological pressure ... Since I could not stand the pressure I cut my veins with a razor blade I found in the cell ... ”

On DATE the applicant amended his statement , alleging that electric shocks had been administered on DATE ; that the waiver of legal assistance had been imposed on him ; that he had been told to be natural during the videotaping and to answer in line with the previously discussed version of the relevant events .

An inquiry was ordered in relation to the second applicant 's allegation of ill - treatment . Officer PERSON stated that the applicant had been brought to ORG for interview with investigator PERSON ; the interview was videotaped ; no ill - treatment or pressure had been used against the applicant ( see also paragraph CARDINAL below ) . A similar statement was made by senior officer Ya . ( see also paragraph CARDINAL below ) . To a statement in similar terms investigator PERSON added that while the applicant had not requested counsel for the interview on DATE he had expressed the wish to have a consultation with a lawyer later on in the remand centre . PERSON . confirmed that he had videotaped the interview on DATE and that he had seen no beatings .

The prosecutor also obtained a written statement from the applicant alleging that during his transfer to the ORG on DATE he had a canvas bag on his head ; in the ORG he had cables attached to his fingers and that electric shocks had been administered . The applicant alleged that on DATE he had received several blows from Unit officers ; that he could not identify them as he had a canvas bag on his head ; and that in reply to his request for counsel investigator PERSON had told him to write to the local bar association .

On DATE the applicant was examined by a medical expert who found scars on his forearms and concluded that these scars could have been self - inflicted on DATE . The expert did not record any traces of electric torture or blows to the second applicant 's head .

On DATE ORG office refused to institute criminal proceedings in relation to the alleged ill - treatment . The prosecutor relied on the above - mentioned statements and the expert report . He also noted that the applicant had not made any complaint while in the remand centre and that no injuries had been recorded there . The decision states that “ the persons concerned should be informed of the decision and the procedure for appealing against it ” .

On DATE the second applicant asked for legal - aid counsel , referring to the lack of means to retain CARDINAL . The applicant was questioned in the presence of counsel on DATE and retracted the confession made on DATE as given under duress .

On DATE investigator PERSON , who was also in charge of the criminal case against the applicant , refused to institute criminal proceedings , dismissing as unsubstantiated the second applicant 's renewed complaint of ill - treatment .

On DATE the second applicant was interviewed in the presence of counsel and , having been apprised of the privilege against self - incrimination , asserted his innocence and remained silent .

On DATE the investigator rejected a number of applications by the defence , indicating , inter alia , that the allegation of ill - treatment had previously been dismissed after the inquiries and that the case file contained the relevant decisions not to institute criminal proceedings .

The applicant sent unspecified complaints to ORG from the detention facility in DATE and to ORG DATE .

NORP In DATE and DATE the police questioned a PERSON in the framework of unrelated criminal proceedings . It appears that he was informed of his rights and declined the legal assistance offered to him . In substance , he stated that he had served as a driver for the applicants on DATE when PERSON 's murder had been committed and that he had heard about another murder , allegedly committed by the first applicant . ORG also stated that “ in DATE ” the second applicant had set a car on fire on the first applicant 's instructions ; the latter had unsuccessfully tried to extort a sum of money from the car owner ; the first applicant had then allegedly told PERSON that the second applicant had broken the car window , thrown a bottle of gasoline in the car and set it on fire . ORG confirmed his earlier statements during a face - to - face confrontation with the second applicant . However , on DATE PERSON retracted his statement , alleging ill - treatment in DATE and DATE . It appears that the authorities refused to initiate a criminal case against the officers .

At the pre - trial stage , PERSON was interviewed as a witness regarding the arson charges against the applicants . She identified the second applicant from his general facial traits , in a line - up of CARDINAL persons , as the person she had first seen “ in or around DATE ” when he had tried to set a car on fire in the yard of the block of flats where she lived ; the second time was when he broke the car window and spilt gasoline in it . A lawyer and CARDINAL attesting witnesses were present at the line - up .

The applicants and ORG were accused of several criminal offences , including murder and arson . The first applicant was charged with CARDINAL counts of murder , CARDINAL counts of instigation to destruction of property by arson , unlawful possession of firearms and extortion . The second applicant was charged with murder and CARDINAL counts of destruction of property by arson . The first count of destruction of property by arson was based on the statement of the victim of the arson attack who alleged that he had had “ tensions ” with the first applicant . That statement was partly confirmed by witness PERSON . The second count was based , in particular , on PERSON 's statement , an eyewitness who had identified the second applicant as the arsonist .

On DATE ORG held the first hearing . The applicants pleaded not guilty to the murder and arson charges . The second applicant stated that his confession of DATE had been obtained under duress after TIME of torture . The applicants ' co - defendant ORG also stated that he had been severely beaten by police officers and , in consequence , had falsely denounced the applicants . He submitted that the officers had beaten him on the upper part of his body but that the blows had left no traces .

PERSON was called to testify at the trial in relation to the second arson case ( concerning the events in DATE ) . According to a report dated DATE , a bailiff came to her home but she refused to appear before the trial court , alleging that she had to nurse her underage child .

By a judgment of CARDINAL DATE ORG found the first applicant guilty on CARDINAL counts of murder , unlawful possession of firearms and on the second count of instigation to destruction of property by arson and sentenced him to DATE imprisonment . The second applicant was found guilty on the second count of the destruction of property by arson and of complicity in the above murder , and sentenced to DATE imprisonment . The court acquitted the second applicant of another arson count ( concerning the events in DATE ) and discontinued the related prosecution on that count against the first applicant .

On the murder charges the trial court relied on the second applicant 's confession , various testimonies by other persons , certain forensic reports and physical evidence . The court dismissed the defendants ' allegations of ill - treatment as unsubstantiated because “ no injuries had been identified on the applicants ' bodies during the preliminary investigation ” .

On the second arson charge , the trial court relied on ORG 's pre - trial statement ( see paragraph CARDINAL above ) , PERSON 's pre - trial identification report of the second applicant as the arsonist ( see paragraph CARDINAL above ) ; the victim 's and a witness 's statements that there had been “ tensions ” between the first applicant and the victim .

The applicants appealed , alleging , inter alia , that the trial court had failed to summon various witnesses and had wrongly assessed some pieces of evidence , including the self - incriminating statements made by the second applicant and other persons . On DATE ORG of GPE upheld , in essence , the judgment of DATE . The charge against the first applicant of unlawful possession of a gas pistol was dropped . The appeal court considered that the trial court had rightly referred to S. 's statement because that person had seen the second applicant set fire to the victim 's car and had identified him as the arsonist . The appeal court also noted that PERSON 's statement and a statement from another person confirmed that there had been tensions between the first applicant and the victim .

DATE . On DATE the Presidium of ORG , sitting in its supervisory - review capacity , acquitted the first applicant of unlawful possession of firearms and reduced his sentence to DATE and DATE .

In DATE , in reply to requests from the deputy President of ORG , ORG and the ORG stated that in DATE and DATE they had not received any complaints from the applicants against the administrations of remand centres , investigating or prosecuting authorities or the police department or its units ( see also paragraphs CARDINAL and DATE above ) .

In DATE Mr Ya . , senior officer of ORG at the relevant time , made a written statement ( see also paragraphs CARDINAL and DATE above ) , indicating that Mr PERSON had named the applicants as his accomplices in a number of offences . Thereafter , the second applicant was brought from PERSON remand centre no . CARDINAL to ORG and made confessions in respect of murdering victim PERSON and some other offences . The second applicant was questioned by investigator PERSON in relation to the murder ; Officer PERSON . was in charge of the video recording of the interview ; PERSON . was also present . The second applicant was then brought to PERSON remand centre no . CARDINAL . DATE he was brought to the ORG for questioning and a visit from his family . However , in the meantime , he cut his veins and was admitted to hospital for treatment . On DATE he was brought back to the ORG and retracted his earlier confessions in the presence of investigator PERSON and chose to remain silent . The applicant was brought back to the remand centre . Subsequently , it was established that the first applicant had tried to compel the second applicant to retract his confessions . Officer PERSON . also stated that in DATE the first applicant had been brought in for questioning . After his refusal to testify , he had been taken for a medical examination ( for unspecified reasons ) and had then been placed in the temporary detention centre of ORG . Both applicants had lodged numerous complaints against various officers of ORG . However , the inquiries had disclosed no unlawful actions on their part . Except for the murder of PERSON , the other episodes of criminal activity had been dealt with by the ORG office of the ORG .

In DATE PERSON , a police officer in DATE , made a written statement ( see also paragraphs CARDINAL and DATE above ) according to which he had arrested the first applicant in DATE and brought him to ORG for questioning . No physical force had been used against him . Mr PERSON stated that he might have convoyed the second applicant from PERSON remand centre no . CARDINAL , but without recourse to any physical force or pressure .

The LAW of the Russian Federation provides , in so far as relevant :

“ Everyone shall be guaranteed judicial protection of his or her rights and freedoms . ”

“ Decisions and actions or lack of action of ORG bodies , bodies of local self - government , public associations and officials may be appealed against in court ... ”

The DATE LAW ( Federal Law No . CARDINAL - CARDINAL on appeals against acts and decisions infringing individual rights and freedoms ) , as amended in DATE , provides for a judicial avenue for claims against public authorities , except for those for which ORG is competent or for which another procedure is prescribed ( section CARDINAL ) . The LAW states that a decision or omission by a public authority or official can be challenged before a court if it encroaches on an individual 's rights or freedoms or unlawfully imposes an obligation or liability on that individual . In such proceedings the court is entitled to declare the impugned act , decision or omission unlawful , to order the public authority to act in a certain way vis - à - vis the individual , to lift the liability imposed on the individual or to take other measures to restore the infringed right or freedom . If the court finds the impugned act , decision or omission unlawful , this gives rise to a civil claim for damages against the ORG .

NORP Under LAW ( CCrP ) , as in force at the relevant time , a prosecutor , investigator or judge was competent to examine complaints and information about any offence committed and to open or refuse a criminal investigation , or to transmit the matter to a competent authority ( Article CARDINAL ) . A prosecutor 's refusal to open a criminal investigation could be appealed to a higher prosecutor ; a judge 's refusal could be challenged before a higher court ( LAW ) .

On DATE ORG of GPE invalidated LAW because it did not allow for judicial review of a prosecutor 's or investigator 's refusal to institute criminal proceedings . ORG ruled that ORG should amend the legislation on criminal procedure by inserting a possibility of review . It also held that until such amendments were enacted , the national authorities , including courts , should directly apply LAW of the LAW requiring a judicial review of administrative acts . The ruling was published in DATE .

In a ruling of DATE ORG declared unconstitutional several provisions of the RSFSR CCrP authorising the courts to initiate criminal proceedings of their own motion . In the same ruling ORG reiterated that a court could carry out a judicial review of an investigating authority 's decision to open a criminal case , to refuse to initiate criminal proceedings or to discontinue such proceedings , in particular on a complaint of a person that his or her constitutional rights had been breached by such a decision . The ruling was published in DATE .

Under LAW , a suspect has the following rights : a right to know the accusation against him ; to make statements ; to have access to the record of investigative measures ; to lodge complaints ; from the time of the arrest to have meetings with counsel , his next of kin or other persons .

Article CARDINAL of the RSFSR CCrP provided that counsel could participate in the proceedings from the time when a person was informed of the charges against him or her . If a suspect was arrested or detained , counsel could participate in the proceedings from the time when the suspect was given access to the arrest record or detention order . In its ruling of DATE ( no . ORG ) ORG held that LAW ORG was contrary to LAW in so far it excluded the possibility of legal representation at the very first stages of the proceedings , that is , before any charges were brought or before access was given to the arrest / detention record .

The participation of counsel was mandatory in pre - trial proceedings from the date on which charges were brought in respect of offences punishable by the death penalty and in the court proceedings concerning such offences ( LAW ) . If counsel was not retained by the person concerned , the authority in charge of the case had to appoint one ( ibid ) . The defendant could waive legal assistance ; such a waiver could be opposed by the authority in charge of the case if the case concerned offences punishable by the death penalty ( LAW ) .

Article CARDINAL of the Criminal Code provided for the death penalty as a punishment for particularly serious criminal offences against human life , such as aggravated murder .

Article CARDINAL of the LAW guarantees the protection of human dignity and prohibits torture , violence and inhuman and degrading treatment and punishment . LAW punishes torture , in particular when inflicted in order to compel the person concerned to make statements or to perform other acts contrary to the person 's will , as a punishment or for other ends . LAW prohibited compelling another to make a statement through the use of violence , threats or other unlawful means against the accused or other persons involved in the proceedings .

Article CARDINAL CARDINAL of LAW prohibits reliance in a court of law on evidence obtained in breach of federal law . In a ruling of CARDINAL DATE ORG of GPE held that such a breach occurred when the gathering and admission of evidence resulted in a violation of the constitutional rights and freedoms or of the criminal law procedure , as well as when the gathering and admission of evidence was carried out by an authority lacking competence or acting in breach of the applicable procedural rules ( point CARDINAL ) .

Article CARDINAL § CARDINAL of MONEY Procedure provided at the time that evidence obtained unlawfully should be declared devoid of legal force and should not serve as a basis for a prosecution or for proving relevant circumstances such as the damage caused by the criminal offence .

Article CARDINAL of the DATE Code of Criminal Procedure provides that criminal proceedings may be reopened if ORG has found a violation of the Convention .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s brother brought restitution proceedings before ORG ( městský soud ) against ORG ( podnik bytového hospodářství ) .

DATE and DATE , the court and the parties to the proceedings took a number of procedural steps , including a query by the court on DATE regarding a possible settlement , to which the defendant replied on DATE .

On DATE the applicant requested the court to be added to the proceedings as a second claimant . His request was granted at a hearing held on DATE , which was then adjourned sine die , the claimants being requested to complete , within DATE , their action .

On DATE the claimants were urged to supplement their action .

On DATE the court granted the PERSON request that CARDINAL other defendants be added to the proceedings . At the same time , it invited the claimants to present documentary evidence .

On DATE the court dismissed CARDINAL of the GPE appeals of DATE against the previous decision . On DATE it requested that evidence suggested by the applicant be adduced .

A hearing held on DATE was adjourned until DATE . However , on DATE it was again adjourned sine die , the plaintiffs’ submissions and claims still being unclear .

A hearing held on DATE was adjourned in order to complete the evidence . On DATE the applicant adduced further documents in evidence . On CARDINAL DATE the court invited the parties to submit their final written pleadings .

In a judgment of DATE ORG dismissed the claimants’ restitution action .

On DATE and DATE and DATE respectively , the court received the PERSON appeals . According to the applicant , his appeal was dated DATE .

On DATE ORG sent the case file to ORG ( krajský soud ) which , on DATE , invited the applicant to clarify , within DATE , his challenge to ORG presiding judge for bias . On DATE the applicant complied , mentioning at the same time his new domicile . On DATE , ORG remitted the case file to ORG , inviting the presiding judge to submit her comments . On DATE the judge replied that she did not feel impartial .

On DATE ORG informed ORG ( městské státní zastupitelství ) that the applicant ’s wording in his appeal of DATE had to be interpreted as a criminal claim against ORG presiding judge , with which the court could deal . On DATE ORG informed the court that the motion in question could not be considered as a criminal claim .

On DATE ORG quashed the first instance judgment and remitted the case to ORG , stating that the judgment lacked sufficient reasoning , which consisted in mere references to the legal opinions of the parties and to facts presented by them . It also disqualified ORG presiding judge from considering the applicant ’s case , as she had herself filed a request to be withdrawn , whilst rejecting the applicant ’s allegation of anti - Semitism .

On DATE ORG ( PERSON ) declared the applicant ’s constitutional appeal ( ústavní stížnost ) of DATE inadmissible , stating inter alia that , although the restitution proceedings were long , ORG had acted in the meantime by rendering its decision on DATE .

On DATE the applicant , having received ORG decision on DATE because , according to the Government , he had changed his domicile in the meantime , suggested a modification of the restitution action and the defendants . On DATE his brother informed the court that he agreed with these modifications . On DATE CARDINAL of the defendants submitted its comments .

On DATE ORG took a partial decision on the applicant ’s request that the original action be modified .

On DATE the applicant appealed challenging , at the same time , the presiding judge for bias . Therefore , on DATE , the case file was sent to ORG .

The applicant lodged a constitutional appeal , requesting ORG to recognise the delays in the proceedings and to quash certain statutory provisions . On DATE ORG rejected this appeal as being manifestly ill - founded .

On DATE ORG partly upheld ORG decision of DATE . It also decided that the presiding judge was not excluded from the examination of the restitution case . ORG decision became effective on DATE .

On DATE ORG invited the claimants to specify the defendants in their restitution case . On DATE the applicant replied , but not his brother .

According to the applicant , ORG held a hearing on DATE . On DATE the applicant , following ORG request of DATE , expressed his opinion on the case .

On DATE ORG refused the PERSON request that the defendant party be modified .

On DATE ORG partly granted the claimants’ restitution action .

On DATE the claimants appealed . It appears that the proceedings are still pending .


Violation of Art. 5-1;Violation of Art. 6-1;Not necessary to examine Art. 6-3;Violation of Art. 8;Violation of Art. 13+5;Violation of Art. 13+8;Remainder inadmissible;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , is a NORP national who was born in DATE and lives in the village of GPE .

Her minor son PERSON , who was DATE at the time of the events , was frequently suspected of committing petty thefts and was taken to the police station on numerous occasions . No criminal proceedings were ever instituted against him because of his age . On several occasions he complained about being beaten up by police officers PERSON and GPE and his mother lodged criminal complaints against them . On DATE the applicant complained to ORG that on DATE her son had been ill - treated by police officers PERSON and GPE , as a result of which he had sustained concussion and multiple bruises .

On DATE at TIME , police officer PERSON came to the applicant 's house and demanded that her son accompany him to the police station because he was suspected of being involved in a theft from a neighbour , which had taken place on DATE . According to the Government , the police officer demanded that both the applicant and her son accompany him to the police station . The applicant refused to let her son go unless he was properly summonsed .

DATE the same police officer came to her house accompanied by police officer GPE and CARDINAL neighbours . Since the gate was locked , the police officers asked CARDINAL neighbour to climb over and unlock it from the inside .

One of the police officers announced to the applicant that she was being taken to the police station on a charge of committing the administrative offence of disobeying the lawful orders of a police officer , provided for by LAW ( “ the ORG ” ) .

The applicant was taken by the QUANTITY police officers to the village police station . They did not let her change her clothes or slippers , although she did put on a coat .

On the way to the police station , according to statements of witnesses , as they appear in the domestic case file , the applicant was attacked by the neighbour who was the victim of the alleged theft and fell down during the altercation . The police officers intervened and handcuffed the applicant . The ORG argued that the applicant had attacked her neighbour and that her fall was a result of the altercation .

When they arrived at the police station she was asked to sign a declaration written by CARDINAL of the police officers , but she refused . CARDINAL witnesses , who came along with them , signed declarations written by the police officers , allegedly without reading them .

She was then taken by car to the town of ORG and placed in a cell at the local remand centre , where she was held from TIME on DATE until TIME on DATE .

While in detention she was not given the opportunity to wash herself or to change her clothes . She was not provided with food or water or with a blanket . She was not questioned , informed about the reasons for her detention or provided with a lawyer .

On DATE Decembe DATE the applicant was taken to ORG for the hearing in respect of the alleged offence of disobeying the lawful orders of a police officer in accordance with Article CARDINAL § CARDINAL of the ORG .

According to the applicant , she was taken to the court wearing her slippers and her clothes , still covered in mud . During the hearing the applicant asked for a lawyer and a pro bono lawyer was provided to her .

At her lawyer 's request the hearing was adjourned until DATE . On DATE , witnesses were heard by the judge .

In a judgment of DATE the NORP ORG found the applicant guilty of disobeying the lawful orders of the police officers and imposed a fine of CARDINAL PERSON ( MDL ) ( the equivalent of MONEY ( ORG ) at the time ) . The ORG found that on DATE at TIME CARDINAL police officers had asked the applicant to come with her minor son to the police station in order to be questioned in connection with a theft in which her son was suspected of having been involved . By refusing to accompany the police officers , she had committed the offence provided for in Article CARDINAL § CARDINAL of the ORG .

On DATE criminal proceedings were formally instituted in respect of the theft allegedly committed by the applicant 's son .

On an unspecified date the applicant lodged an appeal on points of law with ORG against the judgment of DATE . She submitted , inter alia , that the actions of the police officers had been motivated by a desire for revenge following her complaint lodged with ORG against them on DATE in connection with the unauthorised search and the alleged beating of her son . She also submitted that the police officers ' orders were unlawful because she had not been summonsed to appear at the police station ; however , when the police officers had insisted that she follow them she had not shown any resistance and had obeyed them .

On DATE the ORG heard the applicant 's appeal in her absence and dismissed it as being unfounded , without stating any reasons . It appears from the case file that the applicant was not summonsed to appear before the court and was not legally represented during the proceedings .

On DATE and DATE the applicant complained to ORG about the illegal actions of the CARDINAL police officers . She argued , inter alia , that they had illegally entered the front garden of her house and that they had subjected her to inhuman and degrading treatment , and asked ORG to institute criminal proceedings against them .

On DATE ORG decided not to institute criminal proceedings . It found that since the applicant had been convicted by a final judgment of the offence of disobeying the lawful orders of police officers , the officers ' actions could not be considered illegal .

Article CARDINAL of the LAW of GPE provides as follows :

“ Inviolability of the home

( CARDINAL ) The home is inviolable . No one may enter or stay on the LOC of a home without the owner 's consent .

( CARDINAL ) The law shall allow for derogation from the provisions of paragraph ( CARDINAL ) under the following circumstances :

( a ) for executing an arrest warrant or a decision of a court of law ;

( b ) for forestalling an imminent danger threatening the life , physical integrity or property of a person ;

( c ) for preventing the spread of an epidemic disease .

( CARDINAL ) Searches and questioning at a person 's home may be ordered and carried out only in accordance with the rule of law .

( CARDINAL ) Except for cases where an obvious offence has been committed , TIME searches are forbidden . ”

The Code of Criminal Procedure , as in force at the material time , provided in LAW that after receiving a complaint about a criminal offence the investigating body could only request supplementary material or explanations but could not conduct any investigative measures until after criminal proceedings had been formally instituted . It had to decide within DATE whether or not to institute criminal proceedings . In exceptional cases such a decision was to be taken within DATE . The provision that a preliminary investigation could only be commenced after the formal institution of criminal proceedings was also contained in Articles CARDINAL and CARDINAL .

Article CARDINAL provided that a suspect was to be summonsed to appear before the investigating body by means of a summons handed to him , and the receipt containing the date of service had to be returned to the criminal investigator . The summons could also be effected by telephone or telegram . Article CARDINAL provided that a suspect who failed to appear before the investigating body without good reason could be forcibly brought before the investigating body . Only suspects who were in hiding or did not have a permanent home address could be taken to the police without a summons .

The relevant provisions of the ORG , as in force at the material time , read :

“ Non - compliance in bad faith with the lawful orders of a police officer or of an agent of the internal affairs authorities ... shall be punishable by a fine of up to MDL CARDINAL or by administrative detention of DATE .

“ Persons who ... disobey in bad faith the lawful orders of police officers ... may be detained until the case is examined by a court ... ... ”

LAW of DATE , in so far as relevant , read at the material time as follows :

“ The police have the right to :

( CARDINAL ) enter at any time of DATE the premises of homes ... front gardens ... and inspect them with a view to putting an end to criminal offences , pursuing persons suspected of having committed criminal offences , persons hiding from the investigating authorities and from courts , or persons who are seeking to avoid executing a criminal or administrative sentence or an order for forced detoxification treatment . [ The police may also enter ] if they have sufficient grounds to believe that an offence has been committed or is being committed on the LOC , or in the event of natural disasters and in other circumstances which endanger the public order and the safety of persons . A prosecutor must be informed about all cases in which police officers have been forced to enter the LOC of homes ... within TIME . ”

The relevant provisions of Law No . DATE on compensation for damage caused by the illegal acts of the criminal investigating authorities , prosecuting authorities and courts read as follows :

“ ( CARDINAL ) In accordance with the present law , individuals and legal entities are entitled to compensation for the non - pecuniary and pecuniary damage caused as a result of :

( a ) NORP illegal detention , illegal arrest , illegal indictment or illegal conviction ;

( b ) illegal searches carried out during the investigation phase or during trial , confiscation , levy of a distraint upon property , illegal dismissal from employment , as well as other procedural acts that limit the person 's rights ;

( c ) NORP illegal administrative arrests or orders to perform community service , illegal confiscation of property or illegal fines ;

( d ) the carrying out of unlawful investigative measures ;

( e ) the illegal seizure of accounting documents , other documents , money or stamps and the freezing of bank accounts .

( CARDINAL ) The damage caused shall be fully compensated , irrespective of the degree of fault of the criminal investigating authorities , prosecuting authorities and courts .

“ A person shall be entitled to compensation in accordance with the present law when CARDINAL of the following conditions is met :

( a ) delivery of a judgment acquitting him / her ;

( b ) the dropping of charges or discontinuation of the investigation on the ground of rehabilitation ;

( c ) NORP the adoption of a decision by which an administrative arrest is annulled on the grounds of rehabilitation ;

( d ) the adoption by ORG or by ORG of a decision in respect of damages or in respect of a friendly - settlement agreement between the victim and the representative of ORG before ORG . The friendly - settlement agreement shall be approved by ORG ; ... ”


The applicants , whose names are listed in the appendix , are NORP nationals and live in GPE . Before the Court , they were represented by PERSON , a member of ORG .

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

The applicants are pupils at ORG in the Eyüp , ORG , PERSON , PERSON and NORP districts of GPE , and their parents . ORG are State - funded religious schools .

The applicants explained that , with certain exceptions , on enrolling at ORG the pupils concerned had produced identity photographs that showed them wearing the headscarf . The pupils had always worn the NORP headscarf to school , in accordance with both their own and their parents ' religious beliefs . As a general rule , they had started to wear the NORP headscarf at the onset of puberty at the age of CARDINAL .

However , from DATE pupils wearing the headscarf had been refused access to the schools . Pupils attending school in the headscarf had been seen by the school educational psychologist , who had attempted to justify the need for the rules . These measures were based on a directive which ORG had issued to the district education officers on DATE . The relevant sections of the directive provided :

“ Pupils are enrolled at ORG only once a document signed by the parents has been lodged confirming that the pupils will comply with the rules on dress . In addition , a letter was sent on DATE requesting compliance with this practice .

However , we have been informed that a small number of pupils do not comply with the rules on dress .

Their persistent failure to comply with the rules shows that they are not acting innocently . Their decision to wear the headscarf at school thus amounts to a rejection of the rules on dress and a protest against the education system .

That being so , disciplinary proceedings will be taken against head teachers or members of the teaching staff who fail to ensure rigorous compliance with the rules on dress ... Furthermore , all sporting , cultural and social activities that are liable to cause tension at school and unsettle the pupils must cease and links between the schools and associations , foundations and boarding schools [ promoting such practices ] must be severed .

In the light of this , you are requested to take all necessary measures to reintegrate these pupils into our education system , to refuse pupils who do not obey the rules on dress access to school LOC and to institute disciplinary proceedings against them without delay under LAW in Secondary Schools dependent on ORG [ ORG Ortaöğretim Kurumları Ödül ve PERSON – ' the disciplinary rules ' ] . [ Likewise , ] proceedings must be brought against head teachers or members of the teaching staff who fail to apply the disciplinary rules diligently . ”

On DATE a further memorandum issued by the Chief Education Officer at ORG was sent to the district offices . The relevant sections of the memorandum stated :

“ The İmam - Hatip Secondary Schools are vocational secondary schools that are part of our ORG education system ...

It would appear that some girls in these schools do not comply with the rules on dress . Their acts are concerted and conscious and the girls are supported by certain groups outside the school which are exploiting this issue . [ Consequently , ] it is clear that these girls are , under the political and ideological influence of groups both inside and outside the school , putting pressure on head teachers , members of the teaching staff and pupils who do not share their views . [ It is further established that , ] although they attend school , neither they , nor their supporters among the boys , go to classes .

On enrolling , all pupils in these schools are informed of the school rules and give a written undertaking to comply with them . However , with the help of their supporters , some pupils have for ideological reasons stated and demonstrated by their conduct a determination to pursue their studies without obeying the rules .

Rule DATE . of the Rules on Dress for Staff and Pupils in GPE dependent on ORG and ORG ( no . DATE of DATE ) states : ' On school premises , girls shall not wear any head covering and their hair shall be clean and tidy ' ...

An exception to this rule is made in Rule ORG ) , which provides ' [ i]n PERSON - Hatip schools , girls may cover their heads only during Koran lessons ' .

Further , in judgment no . ORG dismissed an appeal brought by a parent whose daughter , a pupil at an ORG , was required to remove her headscarf under the disciplinary rules published in ORG of DATE . It found that ' such behaviour at school is the symbol of a vision that is contrary to the fundamental principles of the Republic ' .

Accordingly , it is necessary to ensure continuity within the education system and to make schools accessible to everyone by establishing a calm environment at school and harmonising practice when applying the rules to pupils who do not obey the rules on dress or wish to pursue their studies ... ”

The memorandum characterised the failure to comply with the rules on dress as a concerted attack on the fundamental principles of the Republic and gave the head teachers CARDINAL instructions on how to deal with breaches . In the first instance , pupils were to be informed of the relevant rules , which were to be applied strictly . In the event of repeated transgressions , the pupil was to be given an immediate warning and disciplinary proceedings were to be commenced . The head teachers were also requested to prevent those who supported such misconduct for political and ideological ends from meeting within the vicinity of the school .

The applicants produced to the ORG eleven documents signed by a group of people ( pupils , parents and third parties ) who had gathered outside FAC and PERSON attesting that on DATE , CARDINAL , DATE , DATE and DATE , the head teachers , accompanied by members of the security forces , had prevented pupils wearing the headscarf from entering the schools .

At TIME on DATE a meeting was organised outside ORG . According to a report by the security forces , CARDINAL PERSON , who claimed to be a member of ORG ( an association formed by former pupils of ORG ) , was arrested on suspicion of provocation . The report also stated that CARDINAL headscarf - wearing pupils had demonstrated outside the school shouting slogans such as “ If you are in [ the school ] , come on out ” , “ ORG ! Do not sleep ! Defend your pupils ” , “ ORG , do not sleep ! Your turn will come ” . After warnings by the security forces , CARDINAL pupils were taken to the police station at TIME that same day for identity checks . They were released at TIME

Similarly , at TIME on DATE CARDINAL of the applicants , PERSON , the father of PERSON , a pupil at FAC , was arrested by police officers at a gathering outside the school and taken to Kadıköy police station . He was accused of inciting pupils to disobey the rules on dress . He was released at TIME , after the police had taken a statement .

On DATE one of the applicants , PERSON , lodged a request with ORG for a declaration that the head teachers of ORG had prevented her from wearing her headscarf to school as her religious beliefs required . ORG decided DATE that it had no jurisdiction to hear the request .

A further request to the same end was rejected by ORG on DATE . It found that there was no reason to make any declaration since the act complained of was lawful .

In the meantime the applicants lodged a criminal complaint against the head teachers of ORG and the police . They alleged that denying pupils wearing the headscarf access to school violated their fundamental right to education and was therefore a criminal offence .

The applicants have produced to the ORG a decision dated DATE in which the public prosecutor at ORG declared a complaint against ORG unfounded after deciding that his actions complied with the rules on dress .

The applicants have also produced an opinion issued by ORG attached to ORG Office on DATE after CARDINAL petitions were lodged .

Citing the principle of secularism enunciated in LAW and the risk that the principle of neutrality in ORG education would be undermined , arguments that had already been expounded at length by ORG in a judgment of DATE , ORG concluded that the rules on dress were consistent with the LAW and human rights . It noted that the ORG was required by LAW to take measures to uphold fundamental rights such as freedom of religion and the right to education , and stated that the existence of the ORG schools showed that the ORG had taken concrete measures to secure those rights . It further pointed out that , by its very nature , the right to education required ORG regulation .

In that connection , ORG noted that the main reason the rules on pupils ' dress had been introduced was to protect the principle of secularism and added that the country 's highest courts had on a number of occasions ruled that the rules were consistent with constitutional principles . Furthermore , the pupils who had not complied with the rules on dress had been informed of the reasons for the rules on enrolling at the school and had given a written undertaking to comply with them . However , the pupils concerned and those who supported them for ideological reasons had shown that they did not intend to abide by the rules . ORG concluded that such conduct was not protected in a ORG committed to the rule of law .

At the same time , on DATE a parliamentary commission which had been set up to look into the events that had taken place in ORG in GPE in DATE adopted its opinion . It noted in particular that the forcible removal of certain pupils by the security forces had caused social unrest . Consequently , it advised against any further use of force . It also noted that the events had occurred as a result of the rules on dress for which ORG and the executive were responsible .

Article CARDINAL , in its relevant parts , provides as follows :

“ Everyone shall have the right to freedom of conscience and religious conviction .

No one shall be compelled to participate in prayers , worship or religious services or to reveal his or her religious beliefs and convictions ; no one shall be censured or prosecuted for his religious beliefs or convictions .

Education and instruction in religion and ethics shall be provided under the supervision and control of ORG Instruction in religious culture and in morals shall be a compulsory part of the curricula of primary and secondary schools . Other religious education and instruction shall be a matter for individual choice , with the decision in the case of minors being taken by their legal guardians . ”

Section CARDINAL of LAW ( PERSON no . DATE , which was published in ORG of DATE ) , provides :

“ Secularism is the cornerstone of the NORP State - education system . Religious culture and moral instruction are among the compulsory subjects taught in primary and secondary schools and other schools of the same level . ”

Rules CARDINAL and CARDINAL of the Rules on Dress for Staff and Pupils in GPE dependent on ORG and ORG ( DATE ) lay down the rules governing pupils ' dress . The relevant parts provide :

“ a. Girls

Girls shall wear a black uniform with a white collar . On school premises , they shall not wear any head covering and their hair shall be clean and tidy . Long hair should be worn in plaits and tied ...

b. Boys

Boys shall wear a jacket , shirt and trousers . They shall wear a tie ... ”

“ a. Girls

Girls shall wear a non - revealing knee - length sleeveless uniform without splits . The colour of the uniform shall be decided by the school . Beneath the uniform , a short - sleeved or long - sleeved blouse with closed collar or , depending on DATE , a pullover shall be worn that matches the uniform . On school premises , girls shall not wear any head covering and their hair shall be clean and tidy . Long hair should be worn in plaits and tied ...

b. Boys

c. Girls and boys

( CARDINAL ) In workshops , laboratories or other places of work , they shall wear an apron or dungarees .

( CARDINAL ) For sports lessons and activities , pupils should wear the dress recommended by the school administration .

( CARDINAL ) In PERSON - Hatip schools , girls may cover their heads only during Koran lessons ... ”

Rule CARDINAL of the Rules for Promoting and Ensuring Discipline in Secondary Schools dependent on ORG published in ORG of DATE ( PERSON Ortaöğretim Kurumları Ödül ve PERSON ) provides that the penalty for failing to comply with the rules on dress is a reprimand .

It also lays down that the penalty for wearing symbols that are liable to result in discrimination or for acting with intent to isolate , rebuke or show contempt for a person or group of persons on account of their language , sex , political ideas or philosophical beliefs , race , religion or branch of a religion is temporary suspension .

In a judgment of CARDINAL DATE that was published in ORG of CARDINAL DATE , ORG ruled that a statutory provision permitting the headscarf to be worn in higher - education institutions on religious grounds was unconstitutional , as it contravened the principle of secularism laid down by LAW . It stated that the principle of secularism intrinsically encompassed religious neutrality and precluded the grant of privileges to individual religions . It considered the headscarf to have obvious religious connotations . In GPE , where the majority of the population were NORP , presenting the wearing of the NORP headscarf as a mandatory religious duty would result in discrimination between practising NORP , non - practising NORP and non - believers on grounds of dress , with anyone who refused to wear the headscarf undoubtedly being regarded as opposed to religion or as non - religious . Accordingly , allowing the headscarf to be worn would be liable to undermine order both inside and outside the university ( for a more detailed summary of ORG judgment , see PERSON v. GPE [ ORG ] , no . CARDINAL , § DATE , ORG CARDINAL-XI ) .

The İmam - Hatip Secondary Schools were set up in DATE under LAW ORG ( Merger ) LAW no . CARDINAL ) , which was passed on CARDINAL DATE . They form part of ORG - education system and are dependent on ORG . They are not denominational schools .

Section CARDINAL of LAW defines ORG as follows :

“ The İmam - Hatip Secondary Schools are secondary - level teaching institutions opened by and dependent on ORG . They shall provide vocational teaching for religious functionaries such as imams , hatips [ readers of the Koran ] and teachers of the Koran . They shall offer a curriculum providing vocational training and preparation for higher education . ”

PERCENT of the subjects taught in these schools are primarily aimed at teaching NORP theology . The remainder of the curriculum is taken up by general subjects . According to information furnished by the applicants , in DATE there were CARDINAL İmam - Hatip Secondary Schools in GPE attended by CARDINAL pupils . Once they have completed their secondary - school education , pupils may enrol at the theology faculties after sitting a general examination . Parents send their children to these schools not just to enable them to become future religious functionaries but also to allow them to pursue advanced studies in general subjects while at the same time receiving a sound religious grounding . Many practising families who are dissatisfied with the limited time and facilities devoted to religious studies in the general education system have philosophical affinities with the curriculum offered by the vocational schools for religious functionaries . A section of the population has thus deflected these schools from their original purpose DATE which was to train modern , professional clerics – and has gradually turned them into general secondary - education schools with a religious vocation ( for more detailed information , see “ Teaching of religion and morals in the NORP education system ” , PERSON and GPE , ORG in LOC , www.flwi.ugent.be ) .

Furthermore , a form of religious instruction has been organised in most parts of GPE in the form of courses on the Koran ( PERSON ) . These courses are not part of ORG curriculum but are run under the auspices of ORG , the senior authority responsible for overseeing the management and conduct of NORP affairs in GPE .

Section CARDINAL of the Assemblies and Processions Act ( Law no . CARDINAL ) , which came into force on DATE , provides :

“ In order for a meeting to be held , the regional or provincial governor 's office for the area in which the demonstration is to take place must be given TIME notice before the start of the meeting . Notice must be given during TIME and be signed by all the members of the executive board ... ”

Section CARDINAL of the LAW prohibits assemblies and processions on the public highway , or in parks , places of worship or buildings occupied by public authorities . Assemblies on the public highway have to comply with the safety regulations and must not impede members of the public or public transport . Lastly , section CARDINAL lays down that assemblies or processions that do not comply with the provisions of the LAW shall be broken up by the regional security forces after a warning has been issued to the participants .