Preliminary objection partially allowed (six months);Preliminary objections partially rejected (six months, non-exhaustion of domestic remedies);Violation of Art. 6-1;No violation of P1-1;No violation of Art. 14+P1-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

The applicants are fishermen operating in the coastal region of LOC on the basis of leases contracted with the ORG in DATE and renewed in DATE ( for a further period ending in DATE ) as well as in DATE ( for the period DATE ) .

By virtue of section CARDINAL , subsection CARDINAL , of the CARDINAL LAW ( kalastuslaki , lag om fiske CARDINAL/CARDINAL ) ORG may restrict fishing , inter alia , if this is deemed necessary in order to safeguard future fish stocks . Since DATE the ORG has imposed such restrictions by issuing decrees . The restrictions have varied to some degree as regards their timing , territorial scope , the fish species in question and the prohibited fishing gear . The restrictions may also extend to private waters .

In DATE PERSON and others challenged the lawfulness of Decree no . CARDINAL/CARDINAL ( “ the DATE Decree ” ) , whereby fishing with certain gear had been prohibited , inter alia , in waters leased by him . In its judgment of DATE ORG ( korkein hallinto - oikeus , högsta förvaltningsdomstolen ) declined to examine the merits of the appeal , considering that it lacked jurisdiction to consider the appellants ' demands that the decree be revoked and the implementation thereof stayed .

By Decree no . DATE , which entered into force on DATE ( “ the DATE Decree ” ) , the Ministry prohibited salmon fishing with certain gear during certain periods in the main basin of LOC , in LOC and in LOC . The restrictions concerned the fishing of salmon between certain latitudes in the open sea and in coastal waters as well as in certain rivers and their estuaries , and extended to the fishing waters which the applicants were leasing from the ORG . The decree was later repealed and replaced by Decree no . CARDINAL/CARDINAL ( “ the DATE Decree ” ) . The date of entry into force of the last - mentioned decree ( DATE ) was specified by Decree no . CARDINAL/CARDINAL . In so far as the restriction concerned the applicants , it was maintained on substantially similar terms by Decree no . DATE , which entered into force on DATE ( “ the DATE Decree ” ) .

On DATE , in response to a petition lodged by the applicants and others , ORG ( eduskunnan oikeusasiamies , riksdagens justitieombudsman ) found no indication that ORG had , in restricting the salmon fishing in certain waters , acted contrary to , inter alia , ORG decision of CARDINAL DATE ( see paragraph CARDINAL below ) or otherwise incorrectly .

On DATE the applicants and the ORG extended their respective leases up to DATE . In so far as relevant to the present case , the leases referred back to the terms of the DATE leases .

In a further decision of CARDINAL DATE , in response to a petition by others , the ORG considered that , in issuing LAW , the Ministry had not exceeded the powers which LAW had conferred upon it . After hearing submissions from the Ministry he concluded that the restrictions set forth in the decree had been justified in order to safeguard the fish stocks . In so far as the petitioners had complained of discriminatory treatment , the ORG noted that the restrictions had differed from area to area in order to take into account the spawning routes of the salmon . He therefore accepted that there had been sufficient justification for the different timing of the prohibition in the respective water areas and for prohibiting different fishing gear in different areas .

Having reviewed the territorial scope of the restrictions , the ORG considered , however , that the ORG had not sufficiently taken into account the need for equal treatment of fishermen in different areas . He noted that the decree had been based on a report of ORG on salmon fishing in the open sea which ORG had appointed in DATE ( avomerilohityöryhmä , havslaxarbetsgruppen CARDINAL:CARDINAL ) . ORG had found certain fishing restrictions necessary so as to enable the salmon to reach the northernmost rivers and thereby to safeguard the fish stocks . It had been of the further opinion that in order to be non - discriminatory in character the restrictions should apply equally to fishing in the open sea and to coastal fishing ( within village boundaries ) within the whole of the areas located between certain latitudes . The ORG noted that the terms of the decree had differed from the opinion of ORG , without any convincing reasons having been given therefor . The resultant differential treatment , without any generally acceptable grounds , of certain water owners and fishermen who had contracted leases , was therefore in violation of section CARDINAL of the LAW .

On DATE the GPE District for ORG ( maaseutuelinkeinopiiri , landsbygds - näringsdistrikt ) granted PERSON CARDINAL NORP markkas ( FIM ) ( MONEY ( ORG ) ) and Mr PERSON FIM CARDINAL ( EUR CARDINAL ) in compensation for losses suffered as a result of the fishing prohibition imposed by LAW . Their average salmon catch per year during the periods in DATE when a fishing prohibition had been in force was estimated at QUANTITY and QUANTITY respectively , at the price of FIM QUANTITY . The applicants ' average catch of whitefish was estimated at QUANTITY and QUANTITY respectively , at the price of FIM CARDINAL per kg . The overall compensation amounts were reduced by PERCENT in order to accommodate the awards within the funds foreseen in the ORG budget . An appeal lay to ORG but the applicants did not avail themselves of that possibility .

On DATE the applicants ' respective leases were further prolonged until DATE . The leases stipulated , inter alia , that salmon fishing was allowed within the leased areas “ in so far as prescribed in the ... decree on salmon fishing or other provisions ” .

According to LAW ( NORP hallitusmuoto , NORP för GPE CARDINAL/CARDINAL ) , as in force up to DATE , everyone was to be equal before the law and his or her property was to be protected ( sections CARDINAL and CARDINAL ) . A judge or other officer was under an obligation not to apply a provision in a decree which conflicted with constitutional or other laws of ORG ( section CARDINAL , subsection CARDINAL ) . The LAW has been incorporated into NORP law by an ORG with the status of ordinary law ( Law no . CARDINAL/CARDINAL ) .

Under LAW of DATE , anyone who had suffered an infringement of his rights , or damage , through an illegal act or negligence on the part of a civil servant was entitled to demand that the civil servant be convicted and held liable for damages , or to report him for the purpose of having charges brought ( section CARDINAL , subsection CARDINAL ) . A similar provision appears in section CARDINAL , subsection CARDINAL , of LAW ( NORP perustuslaki , PERSON grundlag CARDINAL/CARDINAL ) . LAW ( “ Basic rights and liberties ” ) of LAW of DATE was amended by PERSON no . PERSON , which entered into force on DATE . The new LAW includes , inter alia , the right to property ( section CARDINAL ; as from DATE section CARDINAL ) and has been incorporated as such into LAW . Under LAW a court of law must give precedence to a provision therein if the application of a provision of ordinary law would be in evident conflict with LAW . If a provision in a decree or any other statute of lower rank than an Act of Parliament is in conflict with the LAW or ordinary law , that provision shall not be applied by a court of law or any other public authority ( sections CARDINAL - CARDINAL ) .

Under LAW ( vahingonkorvauslaki , skadeståndslag CARDINAL ) proceedings for damages may be initiated against the ORG on the basis of its vicarious liability for mistakes or omissions in the exercise of public authority . The ORG 's vicarious liability comes into play only if the responsible official fails in his or her duty to take a measure or perform a task that could reasonably be required in the light of the nature and purpose of the activity in question ( Chapters CARDINAL and CARDINAL ) . The claim for damages must be made within DATE from the date when the damage occurred , unless a shorter limitation period applies ( LAW , section CARDINAL ) .

According to LAW ( vesilaki , vattenlag CARDINAL/CARDINAL ) , the holder of a building permit relating to a water area may , if the construction would clearly damage the fish stocks , be ordered to restock the area and take other necessary measures in order to safeguard the fish stocks in the affected waters ( LAW , section CARDINAL , subsection CARDINAL ) .

An application concerning a measure alleged to be in violation of LAW whereby it is sought to have such a measure prohibited , the previous conditions re - established or damage compensated may be lodged with the competent water court ( LAW , section DATE , subsection CARDINAL ) .

The general right to fish in public water areas and within the NORP fishing zone does not include the right to fish for salmon and sea trout ( see , for example , section CARDINAL , subsection CARDINAL , and section CARDINAL of LAW ) . According to LAW , provisions restricting fishing with certain gear may be introduced by decree . Restrictions on fishing within or outside the territorial waters of GPE may likewise be imposed by decree for the purpose of fulfilling obligations set in an international agreement binding on GPE , for safeguarding fish stocks or for any other comparable special reason ( section CARDINAL ) . The decrees of DATE which are of relevance to the present case ( see paragraph CARDINAL above ) were issued on the basis of section CARDINAL . Non - compliance with a fishing restriction may be subject to prosecution ( sections CARDINAL ) .

The provisions concerning the ORG 's fishing waters and fishing rights can now be found in LAW ( no . DATE ) .

On DATE ORG ( Pohjois - Suomen vesioikeus , PERSON vattendomstol ) ordered that certain companies permitted to construct hydroelectric power stations in LOC should DATE restock its estuary with an average of CARDINAL young salmon . This compensation order aimed at safeguarding the future salmon stocks in the waters affected by the construction . ( The LOC flows into LOC at Kemi , not far from ORG . ) ORG decision was upheld by ORG on DATE .

In a judgment of CARDINAL DATE ( no . CARDINAL/CARDINAL ) ORG ( vesiylioikeus , vattenöverdomstolen ) found that since time immemorial the owners of fishing waters in LOC and its estuary had been engaged in fishing for salmon and sea trout without any ORG interference and with its de facto consent . Compensation for the loss of fishing benefits resulting from permitted construction should therefore be awarded to all individuals who had been engaged in such fishing in the area , provided they had been using legal fishing gear . ORG further found that the ORG too was entitled to compensation for the permanent loss of the use of its limited right in rem in respect of the fishing waters . In addition , compensation was awarded to the ORG for its loss of income from leasing out those waters .

ORG ( korkein oikeus , högsta domstolen ) found in its decision of CARDINAL DATE ( no . DATE ) that the damage which a company had caused by setting up timber floating routes in LOC had caused the private owners of water areas to suffer losses which were to be compensated under LAW . The State , which traditionally had the right to fish for salmon in the river , had not used that right for DATE , either by leasing out its waters or in any other way .

By a judgment of DATE ( no . CARDINAL ) ORG upheld a decision of ORG of DATE which had dismissed various fishery associations ' claim for compensation for the alleged failure to restock the estuary of LOC as ordered on DATE . ORG had found that the defendants had complied with the obligations imposed on them in DATE for the purpose of safeguarding the relevant fish stocks . In such circumstances the defendants could not be held responsible for the reduction in catches for which compensation had been sought .

In its precedent CARDINAL:CARDINAL ORG examined an action for damages which a hydroelectric power company had brought against the ORG on the grounds that a contract between the CARDINAL with a view to establishing CARDINAL power plants along LOC could not be implemented in full , as ORG had enacted legislation for the protection of the river ( CARDINAL/CARDINAL ) . The company had sought compensation for wasted planning costs in so far as those had exceeded the amount paid out following the assessment procedure provided for in the LAW on ORG and Special Rights ( PERSON ) . ORG declined to examine this part of the claim , as the costs to be compensated had already been finally determined in the procedure under LAW .

In so far as the company had claimed compensation for projected profit and related losses , ORG dismissed the action after having examined its merits . ORG reasoned , inter alia , as follows :

“ ... The contract did not bind the legislative arm . Possible legislative changes and the possibility that no building permit would be granted were specifically taken into account in the contract . The government is therefore under no obligation to compensate the company for the economic losses it suffered on account of the fact that the contract for the construction of the power plant was never implemented . The company is therefore not entitled to any compensation ... other than that stipulated in [ Law no . DATE on the protection of the river ] . ... ”


CASE OF M.A.K. AND R.K. v. THE UNITED KINGDOM

Reminder inadmissible;Violation of Art. 8;Violation of Art. 13;Pecuniary and non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nebojša Vučinić;Nicolas Bratza

The first applicant 's daughter , who is the second applicant , was born on DATE .

On DATE the first applicant took the second applicant to see their general practitioner because he and his wife were concerned about what appeared to be bruising on her legs . A clotting test was carried out but it showed no abnormality .

On DATE the first applicant took the second applicant back to the general practitioner because her swimming teacher had expressed concern about the marks on her legs . The first applicant asked for a referral to hospital and an appointment was made for CARDINAL DATE with PERSON , a consultant paediatrician .

On DATE the second applicant hurt herself in the genital area while riding her bike . She complained to her mother of hurting between her legs . Her mother did not examine her and she did not tell the first applicant of the incident .

On DATE the first applicant took the second applicant to the appointment with Dr PERSON said that the bruising did not appear to be a skin disease and admitted the second applicant to hospital for further examination . The first applicant had to go to work but before leaving the hospital he told Dr PERSON that his wife would arrive soon and there should be no further examination or tests until she came and gave any necessary consent .

When the first applicant 's wife arrived TIME , she found that a sample of the second applicant 's blood had been taken for testing , photographs had been taken of her legs and the local authority had been notified . A social worker informed her that Dr PERSON thought the second applicant had been abused . The first applicant 's wife then gave consent for a further examination . Dr PERSON and a police surgeon examined the second applicant 's legs and genitalia . The second applicant was given no explanation for the examinations and she was not questioned about the allegations of abuse . Following the examination , Dr PERSON informed the first applicant 's wife that the second applicant had been sexually abused and that it had probably been going on for DATE on account of the bruising . The social worker interviewed the second applicant generally , but asked no direct questions about sexual abuse . No record was made of the interview . During the interview the social workers told the first applicant 's wife to ask the first applicant and their eldest son to move out of the family home until further investigations had taken place . At this point she recalled that the second applicant had “ hurt between her legs ” while on her bicycle . She informed the social worker , who said that she would pass the information on to the doctor .

At TIME , when the first applicant and his wife attempted to visit the second applicant on the ward , a nurse told them that there were orders that the first applicant should not be allowed to see her . This exchange was witnessed by other people on the ward . News was passed through the community and reached acquaintances in GPE . The following day , hospital staff were correctly informed that there could be no restrictions on visitors . The first applicant was thereafter permitted to visit the second applicant in hospital , although all visits were supervised on account of the suspicion that she had been sexually abused .

On DATE the first applicant 's wife informed PERSON that the second applicant had “ hurt between her legs ” on her bicycle . Dr PERSON told her that there was no doubt the second applicant had been sexually abused and advised her that if she did not accept it , there was a risk that her other children would be taken into care .

On DATE social workers visited the applicants ' home . The applicant 's wife asked for a second opinion on the cause of the bruising but the social workers told her that they saw no point in obtaining a second opinion . They did not , however , insist that the first applicant should leave the family home ; instead it was arranged that the first applicant 's wife should sleep in the room with her daughters .

On DATE the first applicant 's wife noticed that the second applicant had marks on her hands . An appointment was made for the second applicant to see a dermatologist .

On DATE the dermatologist reported that the marks on the second applicant 's legs were caused by vasculitis .

On DATE the second applicant was diagnosed with PERSON 's disease , a rare condition of the capillaries which is manifested by the eruption of purple patches on the skin . She was discharged from hospital . PERSON wrote a letter to the first applicant and his wife which stated that there was insufficient evidence to say that the second applicant had been sexually abused and that the first applicant should no longer be considered to be implicated in the sexual or physical abuse of his daughter .

The first applicant and his wife were unhappy with what had happened and made a formal complaint to ORG . ORG set up ORG with CARDINAL Assessors who were consultant paediatricians experienced in child abuse cases . The Panel report concluded that Dr PERSON had been right to admit the second applicant to hospital but found that she had acted too quickly in carrying out examinations . The report further noted that examinations and photographs should not have been taken while no parent was present ; that while Dr PERSON was not to blame for misdiagnosing the bruises , she should have monitored them and obtained a dermatologist 's opinion as a matter of urgency ; that the first applicant should have been properly consulted and interviewed ; and that Dr PERSON had attached far too much importance to the bruising , neglecting other relevant information available from the first applicant , his wife and the family doctor . Finally , the report noted that Dr PERSON had , without convincing explanation , failed to write to the first applicant with an explanation and an apology .

On DATE the applicants brought proceedings in negligence against the local authority and hospital trust claiming compensation for personal injury and financial loss . Both were legally aided .

On DATE ORG judge struck out the claims , finding that no duty of care arose between the local authority and the first applicant and that the hospital but not the local authority had owed a duty of care to the second applicant . The applicants appealed . Their appeals were joined to those of a number of other appellants .

On DATE ORG granted the second applicant 's appeal and allowed her claim to proceed against the local authority as well as the hospital . ORG , however , withdrew the second applicant 's legal aid certificate on the basis that it was no longer reasonable for her to receive legal aid because the likely costs were disproportionate to the value of the claim . On DATE the second applicant 's appeal against the withdrawal was dismissed by an independent ORG , which agreed that the costs of pursuing the claim considerably outweighed any likely award of damages .

On DATE ORG dismissed the first applicant 's appeal together with the appeals of the other appellants . The first applicant and the other appellants were granted leave to appeal to ORG .

ORG gave judgment in DATE ( see ORG v ORG and Ors [ DATE ] CARDINAL AC CARDINAL ) . The question before ORG in ORG was whether the parent of a minor child falsely and negligently said to have abused or harmed the child could recover common law damages for negligence against a doctor or social worker who , discharging professional functions , made the false and negligent statement , if the suffering of psychiatric injury by the parent was a foreseeable result of making it and such injury had in fact been suffered by the parent . ORG concluded ( Lord PERSON of NORP dissenting ) that there were cogent reasons of public policy for holding that no common law duty of care should be owed to the parents and it would not be just or reasonable to impose such a duty .

Section CARDINAL of LAW DATE provides as follows :

“ Consent by persons DATE to surgical , medical and dental treatment

( CARDINAL ) The consent of a minor who has attained DATE to any surgical , medical or dental treatment which , in the absence of consent , would constitute a trespass to his person , shall be as effective as it would be if he were of full age ; and where a minor has by virtue of this section given an effective consent to any treatment it shall not be necessary to obtain any consent for it from his parent or guardian .

( CARDINAL ) In this section “ surgical , medical or dental treatment ” includes any procedure undertaken for the purposes of diagnosis , and this section applies to any procedure ( including , in particular , the administration of an anaesthetic ) which is ancillary to any treatment as it applies to that treatment .

( CARDINAL ) Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted . ”

NORP In relation to children under the age of sixteen , ORG has held that such minors have the right to consent on their own behalf to a variety of medical procedures , as long as they fully understand what is involved . Until the child achieves the capacity to consent , however , the parental right to make the decision continues save only in exceptional circumstances ( see FAC v GPE and ORG [ DATE ] ORG CARDINAL ) .

ORG ( “ GMC ” ) guidelines for doctors in relation to obtaining consent for the treatment of children provide as follows :

“ CARDINAL . You must assess a child 's capacity to decide whether to consent to or refuse proposed investigation or treatment before you provide it . In general , a competent child will be able to understand the nature , purpose and possible consequences of the proposed investigation or treatment , as well as the consequences of non - treatment . Your assessment must take account of the relevant laws or legal precedents in this area . You should bear in mind that :

At DATE a young person can be treated as an adult and can be presumed to have capacity to decide ;

Under DATE children may have capacity to decide , depending on their ability to understand what is involved ;

Where a competent child refuses treatment , a person with parental responsibility may authorise investigation or treatment which is in the child 's best interests . The position is different in GPE , where those with parental responsibility can not authorise procedures a competent child has refused . Legal advice maybe helpful on how to deal with such cases .

Where a child under DATE is not competent to give or withhold their informed consent , a person with parental responsibility may authorise investigations or treatment which are in the child 's best interests . This person may also refuse any intervention , where they consider that refusal to be in the child 's best interests , but you are not bound by such a refusal and may seek a ruling from the court . In an emergency where you consider that it is in the child 's best interests to proceed , you may treat the child , provided it is limited to that treatment which is reasonably required in that emergency .

The statutory framework for civil legal aid is contained within Parts IV and I of LAW .

A civil Legal Aid Certificate can only be issued where the case has sufficient merit to justify public funding . With limited exceptions , every application for civil legal aid is subject to CARDINAL statutory tests : first , section CARDINAL(CARDINAL ) of the CARDINAL Act requires that the applicant have reasonable grounds for taking , defending or being a party to the proceedings ( “ the legal merits test ” ) ; secondly , section CARDINAL(CARDINAL)(a ) of the DATE Act provides that civil legal aid might be refused if is unreasonable that the applicant should be granted legal aid ( “ the reasonableness test ” ) .

Factors relevant to determining the reasonableness of a grant of legal aid include , inter alia , a cost benefit analysis , the importance of the case to the applicant , and whether the case is in the public interest .

Once an applicant is granted legal aid , the merits are kept under review throughout the case . Under ORG ( General ) Regulations DATE , ORG has the power to discharge or revoke a ORG .

If a certificate is discharged or revoked , the assisted person may appeal to ORG . If they remain dissatisfied with the decision , they may seek to have ORG decision quashed by ORG by way of judicial review . It is possible to appeal against a decision of ORG on judicial review to ORG and ( with leave ) to ORG .

ORG Convention for the Protection of Human Rights and Dignity of the Human Being with regard to ORG ( opened to signature at GPE on DATE ) contains the following principles regarding consent :

“ LAW

DATE General rule

An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .

The person concerned may freely withdraw consent at any time .

DATE of persons not able to consent

Subject to Articles CARDINAL and CARDINAL below , an intervention may only be carried out on a person who does not have the capacity to consent , for his or her direct benefit .

Where , according to law , a minor does not have the capacity to consent to an intervention , the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law .

The opinion of the minor shall be taken into consideration as an increasingly determining factor in proportion to his or her age and degree of maturity .

Where , according to law , an adult does not have the capacity to consent to an intervention because of a mental disability , a disease or for similar reasons , the intervention may only be carried out with the authorisation of his or her representative or an authority or a person or body provided for by law .

The individual concerned shall as far as possible take part in the authorisation procedure .

NORP The representative , the authority , the person or the body mentioned in CARDINAL above shall be given , under the same conditions , the information referred to in LAW .

The authorisation referred to in DATE and CARDINAL above may be withdrawn at any time in the best interests of the person concerned .

DATE Emergency situation

When because of an emergency situation the appropriate consent can not be obtained , any medically necessary intervention may be carried out immediately for the benefit of the health of the individual concerned . ”


CASE OF ZULPA AKHMATOVA AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect);Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 5 - Right to liberty and security;Violation of Article 13+2 - Right to an effective remedy (Article 2 - Right to life);Violation of Article 13+3 - Right to an effective remedy (Article 3 - Prohibition of torture);Violation of Article 13+5 - Right to an effective remedy (Article 5 - Right to liberty and security)

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicants are :

( CARDINAL ) PERSON ( also spelled PERSON ) , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ( died in DATE ) ;

( CARDINAL ) PERSON , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE ;

( CARDINAL ) PERSON , born in DATE ;

( CARDINAL ) Mr PERSON , born in DATE .

The applicants are NORP nationals and live in GPE , in the village of PERSON , in LOC , except for the fourth applicant , who lives in PERSON .

The applicants submitted that CARDINAL the federal troops had conducted a “ sweeping ” operation ( “ зачистка ” ) in the neighbouring villages of PERSON and PERSON . TIME on DATE the federal forces blocked the roads leading into PERSON and stopped the traffic on the PERSON to GPE highway , which is the main road leading into and out of the village . They then disarmed and blocked the local police and cut off their communications . After that they proceeded to carry out house - to - house searches and identity checks .

The military operation was allegedly in response to the kidnapping on DATE of a ORG sans GPE humanitarian worker , PERSON PERSON , which had occurred on the road outside GPE Atagi . The operation was well documented by human rights NGOs , such as ORG . The applicants submitted numerous affidavits about the events of DATE produced by members of the families of the detained persons and by neighbours . They suggested that CARDINAL men had been detained in PERSON and PERSON during that operation , including their relatives PERSON , PERSON and PERSON .

The first and second applicants are the mother and father of PERSON ( also spelled PERSON ) PERSON , born in DATE . Both applicants retired and lived at CARDINAL FAC . The first applicant suffers from epilepsy and diabetes and the second applicant had advanced tuberculosis ( he died in DATE ) . Their son PERSON was a cattle - breeder , and after finishing his army service in DATE he lived in GPE . He was married and had CARDINAL minor children ; his family resided in GPE . He was also suffering from tuberculosis . In DATE PERSON came to his home village of PERSON to visit the first and second applicants , whom he also supported financially . Immediately upon arrival he registered with the village administration . PERSON Magomed Debizov was described by the head of the village administration as a good member of the community and part of a large and hard - working family , who had not taken part in unlawful activities .

The third and fourth applicants are the mother and brother of PERSON , born in DATE . PERSON was the youngest of the third applicant ’s CARDINAL children , and lived with her at CARDINAL FAC in GPE . He was married and the father of CARDINAL minor children . After completing his service in the NORP army in DATE , he graduated from university with a degree in economics . However , he could not find work in this field , and supported his family by working as a car mechanic in PERSON . PERSON was described by the head of the village administration as a respectful and honest man , who had no connections with the illegal fighters .

Said - Magomed Debizov and Iznovr PERSON had been friends since childhood . TIME on DATE they both went to the car repair shop where Mr PERSON worked . They were both carrying identity documents . When the electricity was cut off , they decided to close the workshop and to return home . At TIME they went out into FAC , along which CARDINAL armoured personnel carriers ( APCs ) and an LOC military truck were passing . Several witnesses testified that the CARDINAL men had been accompanied by servicemen , who had not been wearing masks and were described as “ contract soldiers ” , to CARDINAL of the trucks and put into the back . The vehicles had then driven off towards ORG , in the direction of the military checkpoint on the main road .

The fifth and sixth applicants are the mother and father of PERSON , born in DATE . They lived at CARDINAL FAC in GPE . The fifth applicant is a bookkeeper and the sixth applicant is unemployed . PERSON graduated from the CARDINALth grade of ORG school no . CARDINAL . He was described by the head of the village administration as a modest , good - natured young man , who had mostly stayed at home and had never participated in illegal activities .

According to the applicants , on DATE PERSON was washing the family car , a GPE , near a stream , QUANTITY from his home . At TIME he saw APCs entering the village and started driving back towards home . An ORG , driving at high speed , chased his car and smashed into it . Mr PERSON was not hurt and climbed out of the car . The fifth applicant , who was at home , ran out because of the noise and the bursts of submachine - gun fire . She saw the servicemen beating her son with rifle butts and tried to intervene . The soldiers beat her , and she fell to the ground . PERSON was forced into an ORG with an obscured hull number and driven away . The neighbours who witnessed the scene were prevented from interfering by armed soldiers .

NORP The families of LAW , PERSON and PERSON have had no news of them since DATE .

The Government in their observations did not challenge the facts as presented by the applicants . They stated that it had been established that on DATE during the daytime , unidentified persons wearing camouflage uniforms and masks , armed with automatic weapons and using armoured vehicles , had arrived in the village of PERSON in LOC , apprehended PERSON , PERSON and PERSON and taken them away in an unknown direction .

NORP Immediately after the detention of their family members the applicants started to search for them . Until DATE PERSON remained sealed off , and the applicants could not travel and search for their relatives .

Most of the men detained during the sweeping operation were released within DATE , except CARDINAL men , CARDINAL of them the applicants’ relatives . On DATE the bodies of CARDINAL detainees were discovered in the Novye Atagi quarry . According to witness statements and a PERSON report , the bodies bore clear signs of torture and violent death : fingers and ears were cut off , there were scars from electric shocks , and knife and gunshot wounds . The Government disputed this information ( see below ) .

The applicants applied to numerous official bodies , both in person and in writing , trying to find out the whereabouts and the fate of the CARDINAL disappeared men . Among other authorities they applied to the departments of the ORG , to the military ORG offices , to ORG ( the ORG ) , to the civil and military prosecutors at various levels , to administrative authorities and public figures , and to the OSCE mission in GPE . The applicants also personally visited detention centres and military bases . On DATE the applicants completed ORG Human Rights Centre individual reports about cases of forced disappearance .

The applicants received no substantive information about the fate of their family members and about the investigation . On several occasions they were sent copies of letters by which their requests had been forwarded to the different ORG services . Below is a summary of the letters kept by the applicants and the replies they received from the authorities .

On DATE the first and third applicants , PERSON and PERSON , wrote letters to the military prosecutor of GPE , the head of ORG , the military commander of GPE and the Special Envoy of the NORP President in GPE for rights and freedoms , asking for help in finding their sons .

DATE after their sons had been detained , the first and third applicants wrote to ORG , the head of the ORG and the Minister of the ORG . In the letters they recounted the details of their ORG detention and stated that PERSON , the deputy mayor of ORG in charge of the release of illegally detained persons , had unofficially told them that ORG and Iznovr PERSON had been detained at “ CARDINAL LOC ( special mission brigade no . CARDINAL ) and that a criminal charge had been brought against them . The applicants asked to be informed of the charges against their sons and to receive confirmation of the place of their detention .

On DATE the applicants wrote to the member of ORG for GPE , Mr PERSON , and asked for his assistance in finding their family members .

On DATE ORG ( “ the district prosecutor ’s office ” ) informed the third applicant that on DATE that office had instituted criminal proceedings ( case file no . ORG ) in respect of the kidnapping of PERSON and PERSON , and that she could review the relevant documents in that office .

On DATE the third applicant submitted a petition to the head of ORG , the military prosecutor and the military commander of GPE to help her find her son .

On DATE the office of ORG ( “ ORG Office ” ) forwarded the first and third ORG complaint to the district prosecutor ’s office with a request to open a criminal investigation under LAW ( kidnapping ) following the “ disappearance ” of their CARDINAL relatives after “ unknown persons dressed in camouflage uniform had conducted an identity check in the village of GPE ” . Similar letters were sent on DATE .

On DATE the district prosecutor ’s office informed the first and third applicants that on DATE it had instituted criminal proceedings under LAW into their ORG kidnapping , and that the file had been assigned no . CARDINAL .

On DATE the first and third applicants requested the district prosecutor ’s office to inform them about the progress in the investigation .

On DATE ORG forwarded the applicants’ letter to the district prosecutor ’s office for action and requested that office to transfer the investigation file to it .

On DATE ORG stated in reply to the applicants’ letters that it had examined the investigation files opened in respect of the kidnapping of Said - Magomed Debizov , PERSON and PERSON , and that the proceedings had been suspended on account of the failure to identify the culprits . The district prosecutor had been instructed to reopen the investigation and to take further steps in order to identify the culprits and to establish the missing ORG whereabouts .

On DATE the district prosecutor ’s office informed the first and third applicants that the criminal investigation in case no . PERSON had been reopened and that they should report to the office for questioning .

On DATE the first and third applicants asked the district prosecutor ’s office to inform them about the progress in the investigation and to grant them victim status in the proceedings .

On DATE the district prosecutor ’s office informed the applicants that the proceedings in criminal case no . CARDINAL had been adjourned and reopened on CARDINAL occasions . In DATE the investigation had forwarded a number of requests for information to the military commander of the district , to all the local departments of the interior in GPE , to all pre - trial detention centres in GPE and to the ORG . These measures had produced no results and the investigation had been adjourned on DATE . The measures aimed at finding their sons would continue .

On DATE the district prosecutor ’s office reminded the first applicant that in DATE she had been questioned and had been granted victim status in the criminal proceedings regarding her son ’s abduction .

On DATE the district prosecutor ’s office informed the third applicant that on DATE it had questioned Iznovr PERSON ’s wife and granted her victim status in the proceedings .

On DATE the district prosecutor ’s office again informed the first and third applicants about the adjournment of the proceedings and the absence of relevant information from the law - enforcement authorities in GPE .

On DATE the district prosecutor ’s office informed the applicants that the investigation in cases nos . ORG and DATE had been adjourned , but that steps aimed at finding their relatives continued . The applicants were informed of the possibility of appealing against the decisions to a higher - ranking prosecutor or to a court .

The fifth applicant , PERSON , submitted that in DATE immediately following her son ’s detention , the military commander of the village , whose name she did not recall , had told her that PERSON had been in a hospital in GPE and that he had been “ registered on a computer as an illegal fighter ” .

In DATE the fifth applicant wrote to the district prosecutor ’s office , the military commander and the military prosecutor of GPE , the head of the district administration and the head of the district department of the interior , stating the circumstances of her son ’s detention and asking for help in finding him .

At some point in DATE the fifth applicant wrote to the Deputy Prosecutor General in charge of ORG and asked for assistance in finding her son .

On DATE the fifth applicant wrote to the head of ORG , the military prosecutor and the military commander of GPE , requesting them to help her find her son .

On DATE the military prosecutor of military unit no . CARDINAL , based in GPE , the main NORP military base in GPE , informed the fifth applicant that her complaint about the alleged kidnapping of her son by military servicemen had been forwarded to the military prosecutor of military unit no . DATE , based in LOC .

On DATE the district prosecutor ’s office informed the fifth applicant that a criminal investigation ( file no . DATE ) had been opened into her son ’s kidnapping .

On DATE the military prosecutor of military unit no . CARDINAL forwarded the fifth applicant ’s complaints to ORG for further investigation , since there were no grounds to conclude that military servicemen had been involved in Mr PERSON ’s abduction .

On DATE ORG forwarded the fifth applicant ’s letter to the district prosecutor ’s office .

On DATE ORG stated in reply to the applicants’ letters that it had examined the files opened in respect of the kidnapping of Said - Magomed Debizov , PERSON and PERSON , and that the investigation had been suspended on account of the failure to identify the culprits . The district prosecutor had been instructed to reopen the investigation and to take further steps to identify the culprits and to establish the missing ORG whereabouts .

On DATE the district prosecutor ’s office informed the applicants that the investigation of cases nos . ORG and DATE had been adjourned , but that measures aimed at finding their relatives were being taken . The applicants were informed of the possibility of appealing against the decisions to a higher - ranking prosecutor or to a court .

The applicants referred to the report “ ORG ” produced by ORG , which in LAW described the sweeping operation in NORP DATE and the detention of PERSON , PERSON and PERSON . They also referred to the ORG report of DATE entitled “ The ‘ GPE War’ in GPE : Forced Disappearances , Torture and Summary Executions ” , which listed PERSON , PERSON and PERSON among the victims of “ forced disappearances ” after their detention by the NORP servicemen .

In their observations the Government did not dispute the information concerning the investigation of the abduction of LAW , PERSON and PERSON as presented by the applicants . Relying on information obtained from ORG , they referred to a number of other procedural steps taken by the investigation which had not been mentioned by the applicants . However , despite specific requests from ORG , the Government did not submit copies of any documents to which they referred ( see below ) .

On DATE the district prosecutor ’s office opened a criminal investigation ( file no . CARDINAL ) under LAW , paragraph CARDINAL ( a ) and ( g ) , into the kidnapping of PERSON , acting upon a complaint submitted by the fifth applicant , his mother . On DATE the investigation of the case was assigned to an operational investigative group within the prosecutor ’s office .

DATE . On DATE the fifth applicant was questioned and was granted victim status in case no . DATE . She stated that at TIME her son had been washing his car in the street near their house . The car had been hit by an ORG , from which armed persons in masks had jumped out and taken her son away .

Also on DATE the sixth applicant , the father of the kidnapped man , was questioned and was granted victim status . He stated that he had not been an eyewitness to the events , but he was certain that the crime had been committed by military servicemen . He could not name the source of that information and did not submit any pecuniary claims for the damaged car .

According to the Government , within the same period the investigation had questioned CARDINAL relatives of Mr PERSON and the head of the village administration . It had also carried out on - site examinations and taken other relevant steps . A question had been put to the local military commander .

On DATE the investigation was adjourned on account of the failure to identify the culprits . On DATE the investigation was resumed . In DATE and DATE the investigator forwarded requests to ORG of the ORG , asking that office to take measures to solve the crime . On DATE the investigation was adjourned . On DATE that decision was quashed by ORG . On DATE the investigation was resumed and new information requests were sent to the “ competent bodies ” . On DATE the investigation was adjourned .

On DATE the investigation was resumed . On DATE the investigator in charge of the case again examined the site of the crime and drew up a plan . On DATE the investigation was adjourned . On DATE the investigation of criminal case no . DATE was resumed , and on DATE it was again adjourned .

In the meantime , on DATE the district prosecutor ’s office had opened another criminal investigation ( file no . ORG ) , acting upon a complaint by PERSON about the kidnapping of her cousin PERSON and his friend PERSON , also under LAW , paragraph CARDINAL ( a ) and ( g ) .

On DATE the first applicant was questioned and granted victim status in case no . DATE , concerning the kidnapping of her son PERSON Debizov . On DATE ( in some documents DATE the investigation questioned the wife of PERSON and granted her victim status in the proceedings . On DATE the third applicant was questioned about her son ’s abduction . On DATE the third applicant was also granted victim status in case no . DATE .

On DATE the investigation questioned CARDINAL neighbours of the applicants . The witnesses stated that on DATE at CARDINAL TIME a number of unknown persons had arrived at the car repair shop where Mr PERSON and Mr PERSON worked and had taken them away .

On DATE the investigation was adjourned on account of the failure to identify the culprits . On DATE that decision was quashed and the investigation was resumed . The investigator forwarded requests for information to the local department of the interior . On DATE he informed the fourth applicant that the investigation into his brother ’s abduction was ongoing . On DATE the investigation was adjourned .

On DATE ORG examined the case file and quashed the decision to adjourn the proceedings . On DATE the investigation was resumed . On DATE the first and third applicants were informed about the resumption of the proceedings , and information requests were forwarded to the competent authorities . On DATE the investigation was adjourned on account of the failure to identify the culprits . On DATE the proceedings in case no . CARDINAL were reopened .

The Government submitted in their observations that on DATE the CARDINAL criminal investigations had been joined by the district prosecutor ’s office , because the crimes had been committed at the same time and the same place . The proceedings were assigned case no . DATE .

On DATE and DATE the investigation again examined the site of the crime , questioned the third applicant and forwarded requests for information about the missing persons to the pre - trial detention centres in LOC . On DATE the investigation was adjourned .

On DATE ( or DATE according to CARDINAL document ) the investigation was again reopened . The applicants were informed of this . The investigator instructed the local police service to identify and question witnesses to the abduction . On unknown dates the police questioned CARDINAL persons , who testified that on DATE CARDINAL persons driving an ORG , allegedly military servicemen , had entered PERSON and driven PERSON away . CARDINAL other persons testified that on DATE a group of unidentified persons wearing masks and camouflage uniforms , armed with automatic weapons and moving about in ORG and UAZ vehicles , had taken away ORG and PERSON from the car repair workshop in PERSON .

The Government stated , in summary , that the investigation had questioned CARDINAL relatives and neighbours of the abducted persons , as well as the head of the ORG administration , PERSON , who had given similar accounts of the events . None of the persons questioned had stated that PERSON , Mr PERSON and Mr PERSON had been ill - treated while being apprehended .

Furthermore , the ORG stated that on DATE ORG had opened a criminal investigation ( file no . DATE ) following the discovery on DATE on the outskirts of PERSON of CARDINAL male bodies with firearm wounds . The CARDINAL men had been identified as PERSON . , residents of another village , who had left home in TIME of DATE and had not been seen alive afterwards . The investigation had not obtained information to confirm that ORG . had been tortured before their deaths . The investigation had not obtained any clues to link the case to the abduction of the applicants’ relatives and was ongoing .

The Government further admitted that the investigation into the kidnapping of the applicants’ CARDINAL relatives had been unable to establish their whereabouts . It found no evidence to support the involvement of the “ special branches of the power structures ” ( специальных подразделений силовых структур ) in the crime . The law - enforcement authorities of GPE had never arrested or detained Mr PERSON , Mr PERSON and PERSON PERSON on criminal or administrative charges and had not carried out a criminal investigation in respect of any of them . ORG of the ORG , ORG of the ORG and the LOC military circuit stated that no special operations had been carried out in respect of the CARDINAL men and that they had never been detained by them . Furthermore , the Government stressed that the criminal investigation had obtained no information to confirm the applicants’ allegations that the village had been “ sealed off ” by servicemen or that a special operation had been carried out there at the time . The possibility could not be excluded , in their view , that the crime had been committed by members of the illegal armed groups who had entered the village .

Despite specific requests by ORG on QUANTITY occasions , the Government did not submit any documents from the file in criminal case nos . CARDINAL and DATE , except for a copy of the list of documents contained in it . Relying on the information obtained from ORG , the ORG stated that the investigation was in progress and that disclosure of the documents would be in violation of LAW of LAW , since the file contained information of a military nature and personal data concerning the witnesses or other participants in the criminal proceedings and could prejudice the success of the investigation .

For a summary of the relevant domestic law , see PERSON and GPE v. GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


No violation of Art. 5-3;No violation of Art. 6-1

The applicant was born in DATE and lives in GPE .

On DATE the applicant was arrested on suspicion of having committed multiple gang rape ( including statutory rape ) , of inducing the victims to take intoxicants and of persuading the victims not to inform the police about those crimes .

On DATE the applicant was remanded in custody by ORG . The decision was based on a reasonable suspicion , confirmed by testimonies of the victims and of other suspects , that the applicant had committed the offences with which he had been charged , the severity of the sentence he faced and the need to secure the proper conduct of the investigation . The court pointed to a serious risk that the applicant , if not detained , might attempt to influence the co - accused and the victims .

Subsequently , CARDINAL other persons were charged with participation in the crime and CARDINAL of them were remanded in custody .

On DATE the prosecutor decided to obtain an expert opinion on the mental state of CARDINAL witnesses , who were minors , and on their ability to appreciate and recollect things they had witnessed . The psychologist submitted his opinions on CARDINAL and DATE .

On DATE the public prosecutor decided to prolong the investigation .

The applicant 's detention was extended on DATE , DATE and DATE , CARDINAL DATE , DATE and CARDINAL DATE , DATE , CARDINAL DATE , CARDINAL May , DATE and DATE , CARDINAL DATE , DATE , CARDINAL DATE and CARDINAL DATE , QUANTITY DATE and CARDINAL DATE . The court found that the grounds for detention on remand were still valid and owing to the fact that the crimes had been committed in co - operation with other persons , there remained a high risk that the applicant might interfere with the course of justice and exert pressure on witnesses and victims . The courts also pointed to the necessity of separating the suspects . As the investigation continued , the court stated that there had been exceptional circumstances which precluded the termination of the preparatory proceedings , such as the complexity of the case , the need to obtain further evidence and the multiplicity of plots , accused and charges . The court also found that the applicant 's case had not disclosed any of the grounds for release provided for by LAW .

On DATE and DATE the prosecutor decided to include in the case file the case files of other proceedings conducted against the suspects .

NORP In DATE the public prosecutor ordered expert opinions on the kind of injuries the victims had suffered and whether these might have resulted from the circumstances described by them , and on the ability of the suspects to understand the meaning of their acts and to control their behaviour at the time when the offences had been committed . The opinions were submitted on DATE .

On DATE the NORP Regional Prosecutor charged the applicant , in addition to the previous charges , with participation in an organised criminal gang .

By decision of CARDINAL DATE the investigation was prolonged until DATE .

The preparatory proceedings , during which the prosecutor examined a total of CARDINAL witnesses and obtained over CARDINAL other items of evidence , were closed on DATE . On the same date the public prosecutor lodged a bill of indictment comprising CARDINAL charges and CARDINAL victims . The applicant was charged with CARDINAL offences : participation in an organised criminal gang , gang rape ( including statutory rape ) committed with extreme cruelty and in conjunction with deprivation of liberty , and with threatening the victims and persuading them not to inform the police about the crimes .

In DATE the first - instance court held CARDINAL hearings during which the evidence of the witnesses and defendants was heard : on DATE , CARDINAL DATE , DATE , DATE , DATE , DATE , CARDINAL , DATE , DATE and DATE . CARDINAL other hearings scheduled in DATE were cancelled or adjourned for reasons not attributable to the court , in particular the absence of the defendants , including the applicant , or their representatives . The court remanded in custody CARDINAL of the defendants who had failed to appear at a hearing and lifted the detention of another . It also dismissed from his function a legal - aid lawyer who had failed to appear and appointed a new CARDINAL in his place . The court also decided to examine the case against CARDINAL of the co - accused separately since it was felt that his psychiatric observation could lead to a delay in the proceedings .

At the hearing of CARDINAL DATE the court prolonged the applicant 's detention until DATE . The court emphasised that the absence of CARDINAL of the defendants prevented the hearing of the other accused and that detention was the only preventive measure which could in those circumstances secure the proper conduct of the proceedings .

The hearing scheduled for DATE was adjourned in order to have CARDINAL of the victims heard with the assistance of a psychologist . On DATE the psychologist submitted an opinion in which he considered that it was inadvisable to hear the victim , since this would oblige her to re - live her traumatic experience .

NORP In DATE CARDINAL hearings were held and CARDINAL had to be adjourned or cancelled because of the illness of a judge , the absence of a witness or the fact that the case file was with ORG which was deciding on the prolongation of the detention . The court requested the police to determine the whereabouts of CARDINAL witnesses . Fines were imposed on CARDINAL absent witnesses .

From DATE until DATE the applicant served a DATE prison sentence imposed in separate proceedings .

On DATE ORG prolonged the applicant 's detention until DATE . It held that there had been a serious risk that the applicant might try to hinder the proper course of the proceedings . It was proved that CARDINAL of the defendants had exerted improper pressure on witnesses and thus caused them to alter significantly their versions of the events . The court noted that the case involved CARDINAL defendants and CARDINAL witnesses . Owing to the considerable amount of evidence to be taken , it was inevitable that the proceedings had been prolonged , given the need to ensure that the right to a fair trial was fully respected . At this point the court emphasised that the defendants had been making extensive use of their rights to question witnesses . Several witnesses had changed their testimonies and the reading out of their earlier statements had been justified . TIME witnesses remained to be heard at that stage of the proceedings and there was a need to summon further witnesses and to cross - examine them .

On DATE ORG prolonged the applicant 's detention until DATE . The court endorsed the reasoning of the first - instance court in the latter 's decision of DATE . In addition , it dealt with the length of the proceedings . The court noted that , since DATE , the first - instance court had held CARDINAL hearings and examined CARDINAL witnesses . The absence of other witnesses was the major reason for the prolongation of the proceedings ; however , the trial court had taken proper measures to speed up the trial . The appellate court also pointed to the fact that the examination of the witnesses had been very time - consuming owing to the complexity of the case and the mental state of the victims . The parties had also requested additional witnesses to be heard .

Three hearings were held in DATE , despite the absence of some of the defendants at CARDINAL of the hearings . A number of absent witnesses were ordered to be brought to court .

CARDINAL further hearings were held in DATE . The third hearing , scheduled for DATE , had to be adjourned because of the absence of a key witness . The court fixed a time - limit for submission of the parties ' motions for evidence . Consequently , the defendants ( among them the applicant ) made CARDINAL applications for the examination and cross - examination of witnesses , the ordering of expert opinions and inspections of the crime scene .

On DATE and CARDINAL DATE ORG decided to prolong the applicant 's detention . The court held that the considerable length of the proceeding was due to the complexity of the case coupled with the large number of accused and witnesses . The court concluded that the prerequisites for detention provided for by LAW applied .

On DATE the court held a hearing despite the absence of CARDINAL defendants . A witness was ordered to come to the hearing . The court also obliged the defendants to specify their reasons for requiring the cross - examination of witnesses .

CARDINAL further hearings were held in DATE and QUANTITY in DATE . The court dismissed CARDINAL motions for evidence , having found them irrelevant for proving the facts alleged .

From DATE until DATE the applicant was serving a prison sentence imposed on him in separate proceedings .

Up to DATE QUANTITY hearings had been held during which the court took evidence from further witnesses and an expert . CARDINAL witness was examined at his place of residence and the testimonies of CARDINAL other witnesses , who were abroad , were read out . The court dismissed the defendant 's request to summon other absent witnesses , having found that their examination would not add anything to the case . The police were ordered to determine the whereabouts of CARDINAL defendants .

On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment and a DATE period of deprivation of his civic rights . The time spent in pre - trial detention was deducted from the sentence . All the accused appealed .

On DATE the court prolonged the applicant 's detention until DATE .

On DATE ORG upheld the judgment with respect to the applicant . The applicant appealed .

On DATE ORG rejected the applicant 's complaint of DATE about the excessive length of the proceedings before the Opole ORG , finding that it had been lodged after the termination of the proceedings .

On DATE the applicant lodged a new complaint about the undue length of the proceedings , referring to his application pending before the ORG . On DATE ORG dismissed the complaint as ill - founded . The court admitted that the proceedings had lasted a considerable period of time but stated that this fact alone could not lead to the conclusion that the applicant 's right to a trial within a reasonable time had been violated . The court examined solely the part of the proceedings conducted before the Opole ORG .

On DATE ORG dismissed the applicant 's cassation appeal .

The relevant domestic law concerning the imposition of detention on remand ( aresztowanie tymczasowe ) , the grounds for its prolongation , release from detention and rules governing other so - called “ preventive measures ” ( środki zapobiegawcze ) is set out in the ORG 's judgments in the cases of ORG v. GPE , no . CARDINAL , § § DATE , DATE , and PERSON v. GPE , no . CARDINAL/CARDINAL , § § DATE , CARDINAL DATE .

The judgment PERSON GPE , no . CARDINAL/CARDINAL , § § DATE , DATE , addresses more specifically the issue of domestic practice in the area of pre - trial detention and organised crime .

For the relevant domestic law and practice concerning the available remedies against excessive length of proceedings , see Ratajczyk v. GPE DATE . ) , no . CARDINAL , ECHR DATE ; PERSON v. GPE , no . CARDINAL , judgment of DATE , and ORG v. GPE , no . CARDINAL/CARDINAL , judgment of DATE .


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

André Potocki;Ganna Yudkivska;Mark Villiger

The applicant was born in DATE and lives in GPE .

On DATE the applicant and CARDINAL other persons , all members of the collective enterprise PERSON , lodged a claim with ORG ( “ the ORG ” ) against this enterprise and its director seeking the annulment of decisions on the PERSON ’s re - organisation . The applicant had worked in this enterprise for DATE .

On DATE ORG decided to leave the claim without examination .

On DATE the ORG of Appeal quashed that ruling and remitted the case to the first - instance court for an examination on merits .

Meanwhile the enterprise PERSON was liquidated , and the liquidator became a party to the proceedings .

As a result , on DATE ORG restarted its examination of the case .

On DATE it found against the claimants .

In the course of the proceedings ORG adjourned hearings on CARDINAL occasions in allowing requests of the claimants , who needed additional time for amending their claims , or given their failure to appear . There were also CARDINAL adjournments requested by the defendant enterprise or caused by the absence of its representative . On CARDINAL or CARDINAL occasions hearings were adjourned because the judge was busy or following procedural measures ordered by the court .

On DATE ORG found that the case fell under the jurisdiction of commercial courts and sent it for examination to ORG , which on DATE upheld the judgment of ORG .

On DATE the Higher Commercial Court found that the dispute was to be examined by the courts of general jurisdiction , quashed the ruling of CARDINAL DATE and remitted the case back to ORG .

On DATE ORG discontinued the proceedings in part concerning the claims against the enterprise PERSON , as it had been liquidated by that time , and rejected the remainder of the claims as unsubstantiated .

On DATE ORG upheld that ruling .

On DATE the applicant , as well as the other claimants ( see paragraph CARDINAL above ) , lodged an additional claim against the enterprise PERSON for recovery of a share .

The claimants supplemented and specified their initial claims on a number of occasions .

On DATE ORG stayed the examination of the case pending the outcome in the first set of proceedings .

On DATE ORG quashed the above ruling , and the first - instance court resumed the proceedings .

On DATE ORG allowed the applicant ’s request for an expert assessment of the value of a share in the enterprise PERSON , which it entrusted to ORG for Forensic Expert Examinations .

NORP In DATE the aforementioned expert institution informed the court that it did not have the required expertise capacities . The proceedings were then resumed , without the evaluation in question having been undertaken .

On DATE ORG found against the claimants .

On DATE by ORG upheld that judgment .

On DATE the Higher Commercial Court found that the case was to be examined by courts of general jurisdiction , quashed the ruling of CARDINAL DATE and sent the case for examination to ORG .

On DATE ORG discontinued the proceedings in the part concerning the claims against the enterprise PERSON due to its liquidation and upheld the judgment of DATE in the remaining part .

On DATE ORG upheld that ruling .


CASE OF MAKSYMENKO AND GERASYMENKO v. UKRAINE

Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Deprivation of property);Pecuniary and non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ann Power-Forde;Helena Jäderblom;Mark Villiger;Myroslava Antonovych

The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and died in DATE .

By decision no . CARDINAL of DATE , ORG of ORG ( регіональне відділення ORG державного майна України в PERSON області ) transformed a ORG enterprise , PERSON , into a joint - stock company , which resulted in its privatisation . An audit of ORG ’s assets carried out on DATE revealed that the company ’s immovable property included several hostels .

On DATE M. was reorganised into CARDINAL companies including S. , to which ownership of the hostels was transferred .

On DATE ORG declared S. insolvent .

NORP By letter of DATE , the liquidator in the S. insolvency proceedings informed the mayor of Malyn and the Head of ORG that S. had been declared insolvent . As the sale of the hostels owned by S. would , according to the liquidator , create social tensions in the town , it was proposed that the town would take over their ownership .

By letter of DATE the mayor informed the liquidator that the hostels were not owned by the ORG and it was for the board of creditors to decide what to do with them .

On DATE the board of creditors agreed to sell CARDINAL of the hostels to the applicants .

On DATE a contract of sale was signed . The applicants paid CARDINAL NORP hryvnias ( ORG ) ( at the material time MONEY ( ORG ) ) for the hostel and became owners of a CARDINAL share each .

On DATE the applicants informed a local electricity supply company that they were the new owners of the hostel . They requested the company to cut off the electricity supply until a new contract had been signed with them . The applicants discovered that the power cables and electricity meters serving the property needed to be replaced , and that the hostel occupants had not been paying rent .

On DATE the electricity supply company informed the hostel occupants that the electricity would be cut off on DATE .

On DATE a prosecutor ordered the electricity in the hostel not to be cut off since he had been preparing to institute legal proceedings on behalf of the hostel occupants .

NORP By letter of DATE , the applicants informed ORG , the mayor , the company S. , at that time allegedly in liquidation , and the hostel occupants , that they had bought the hostel in order to live there themselves . The applicants stated that when the hostel was being sold , the occupants had refused to participate in the sale process . Despite the hostel ’s change of ownership and need for refurbishment , its occupants had not been paying rent or communal charges for DATE . The applicants requested PERSON to provide new housing to those occupants , who were requested to vacate the hostel by DATE .

On DATE , PERSON , a DATE hostel occupant , sought the assistance of ORG as she had a young child and had been requested to leave the hostel .

On DATE a prosecutor instituted proceedings at the Malynsky ORG on behalf of PERSON , requesting that the decision of CARDINAL DATE and all subsequent transfers of ownership be declared invalid . The prosecutor noted that in DATE the hostel occupants had lodged previous complaints with his office . After examining the case the prosecutor concluded that the hostel ’s privatisation in DATE had been unlawful . He argued that section CARDINAL(CARDINAL ) of ORG ( ORG « Про приватизацію державного житлового фонду ORG ) prohibited the privatisation of rooms in hostels . The transfer of ownership of the hostel and its subsequent sale breached the LAW , other legal provisions and the “ moral principles of society ” , since the occupants’ constitutional rights to housing had been violated . It also adversely affected the economic interests of the ORG and the housing rights of PERSON , who was a single mother with a young child and was therefore unable to lodge a claim herself . Lastly , the prosecutor requested that ownership of the hostel be transferred to ORG ( “ the ORG ” ) .

On DATE the applicants lodged a counterclaim . They reiterated that the hostel occupants had refused to participate in the hostel sale process and had not been paying rent and communal charges which had resulted in S. ’s insolvency . The applicants submitted that they had informed the prosecutor ’s office of the matter and requested PERSON to provide housing to the hostel occupants . The prosecutor ’s office had failed to protect the rights of the new owners despite the fact that the hostel was in an alarming state , the drainage and water supply systems were not functioning and the rooms were being heated by stoves . Moreover , the LOC could no longer be classed as a hostel as it had become a normal multi - family apartment building . Its occupants were no longer employed by the company which had provided them with housing . Lastly , the applicants requested the court , in the event of finding against them , to award them ORG CARDINAL,CARDINAL in compensation , to be paid by the ORG , representing the hostel ’s value and the administrative costs relating to the contract of sale .

On DATE ORG returned the counterclaim to the applicants and provided them with a deadline of CARDINAL DATE to correct errors in their application . In particular , the court noted that the counterclaim “ lacked logical consistency ” , in that there was no clear evidence of causation and loss . The decision was posted to the applicants on DATE . It is unclear when they received it . It appears that the applicants did not re - lodge their claim .

On DATE the second applicant sent ORG a copy of a decision of CARDINAL DATE taken by ORG in which it had rejected a prosecutor ’s application to declare as invalid decisions taken in DATE and DATE by ORG to privatise a certain hostel . The court found that there were no legal provisions prohibiting the privatisation of hostels , as section CARDINAL(CARDINAL ) of ORG prohibited the privatisation of rooms within hostels but not hostels per se . The court did not refer to section CARDINAL of LAW , which prohibited the privatisation of State housing stock .

On DATE , in the applicants’ case , the court rejected the prosecutor ’s request as unsubstantiated . Again , the court did not refer to section CARDINAL of LAW . In reply to the applicants’ objection that the prosecutor had missed the DATE time - limit for lodging his claim , the court noted that the prosecutor had only learned about the situation in question following PERSON ’s complaint .

On DATE ORG quashed that decision and declared the decision of DATE and all subsequent transfers of ownership invalid . The court held that section CARDINAL of LAW provided that State housing stock , including hostels , was not amenable to privatisation . Since , at the material time , the hostel in question was owned by the ORG , it had been privatised unlawfully . Referring to LAW , the court awarded the applicants ORG CARDINAL,CARDINAL , to be paid by S. It further held that ownership of the hostel should be transferred to the ORG .

The applicants appealed on the grounds that the court ’s decision of DATE contradicted another decision taken in an analogous case by ORG , that the court had disregarded the time - limits for lodging claims and that PERSON had been declared insolvent .

On DATE ORG , acting as a court of cassation , rejected the ORG appeal on points of law by finding , without any further explanation , that there had been no breaches of law .

On DATE the ORG agreed to take over ownership of the hostel .

On DATE , in the case of T. and PERSON v. ORG of GPE , PERSON , and ORG , ORG found , referring to decision no . CARDINAL of CARDINAL DATE of ORG , that a transfer of ownership of another hostel in DATE had been lawful , since hostels did not form part of State housing stock .

The applicants submitted that PERSON had failed to comply with the court decision of DATE requiring it to pay them compensation .

DATE , CARDINAL out of the CARDINAL apartments at the hostel were privatised by their occupants pursuant to the amended ORG ( see paragraph CARDINAL below ) .

Article CARDINAL of the Code provided , in so far as relevant , as following :

“ ... In the event of a transaction being declared null and void , each party shall return to the other party the proceeds received for the transaction in question . In the event of such restitution being impossible , ... it shall return to the other party its current value .

If a party or a third party has suffered pecuniary or non - pecuniary damage as a result of a transaction being declared null and void , the liable party shall pay compensation . ”

Articles CARDINAL and CARDINAL of the Code provide that the time - limit for lodging a civil claim is DATE . The calculation of the relevant time - limit starts from DATE a person learns , or could have learned , of a breach of his or her rights .

LAW of LAW provides that ORG housing stock can not be privatised .

DATE LAW provides that the ORG housing stock includes dwelling houses and residences in other buildings belonging to the ORG .

Sections CARDINAL and QUANTITY provide that , as regards privatisation of apartments ( or houses ) , QUANTITY of living space per person and QUANTITY per household should be transferred to tenants free of charge . The remaining living space should be available for purchase .

In DATE the Act was amended so as to allow the privatisation of rooms within hostels .

NORP The decision , which entered into force on DATE , provided that , in the event of insolvency , liquidation or the transfer of ownership of a company , any properties belonging to ORG housing stock but being managed by the said company were to be given to a municipality . Before being amended in DATE , the provision did not apply to hostels .

LAW provides that the prosecutor can join proceedings at any given time if it is in the interests of the ORG or for the protection of ORG constitutional rights .


David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicants , PERSON and Mr PERSON , are NORP nationals who were born in DATE and DATE respectively and both live in PERSON . ORG ( “ the Government ” ) were represented by their Agent , Mr PERSON of ORG .

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

On DATE a certain PERSON applied for permission to build a shed for his agricultural tools on his farm .

Earlier , on DATE the GPE Mayor had given planning permission ( decyzja o warunkach zabudowy i zagospodarowania terenu ) for PERSON land . In accordance with a local master plan ( miejscowy plan zagospodarowania przestrzennego ) the permit provided for a shed to be built .

On DATE the GPE Mayor informed the applicants that he had instituted the proceedings .

On DATE the applicants raised an objection against the proceedings .

On DATE the GPE Mayor informed the parties that he had obtained the evidentiary material in the case .

On DATE the GPE Mayor gave permission for the construction .

On DATE the applicants appealed , alleging that as PERSON farm bordered theirs , the shed would inevitably block their access to a road . They requested to have the decision of DATE declared null and void .

On DATE the ORG ( urząd wojewódzki ) quashed the decision and remitted the case .

On DATE filed a cassation complaint with ORG .

On DATE PERSON complaint was admitted for examination . The court ruled that the case should be remitted to the first - instance authority for reconsideration .

On DATE the applicants lodged a complaint under LAW , alleging inactivity on the part of the administrative authorities and that they had not had their case examined within the prescribed time - limits .

On DATE the PERSON Governor ( wojewoda ) found the ORG complaint to be well - founded and fixed a DATE time - limit for GPE ( which had taken over the functions of the GPE Mayor ) to examine their case .

On DATE the GPE refused to give permission for the construction .

On DATE the applicants filed an appeal with the PERSON Governor against the decision of DATE .

On DATE the applicants withdrew their appeal . In consequence on CARDINAL DATE the PERSON Governor discontinued the appeal proceedings .

For a presentation of the relevant domestic law see the cases of PERSON v. GPE , no . CARDINAL , DATE , and PERSON v. GPE , no . CARDINAL , DATE .

The relevant domestic law and practice concerning remedies for the excessive length of judicial proceedings , in particular the applicable provisions of LAW , are stated in the ORG ’s decisions in the cases of ORG v. GPE no . CARDINAL/CARDINAL ( dec . ) , § § DATE , ECHR CARDINAL-V and NORP v. GPE no . CARDINAL ( dec . ) , ORG CARDINAL-VIII ; and the judgment in the case of ORG v. GPE , no . CARDINAL , § § DATE , ORG CARDINAL