Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant , Mr PERSON , is an NORP national who was born in DATE and lives in GPE . He is represented before the ORG by PERSON , a law firm based in GPE .

The applicant comes from a successful family of jewellers . In around DATE , the applicant moved from GPE to GPE , where he began a business working with his cousin and brother - in - law , PERSON . It is disputed whether the applicant and PERSON were equal partners in the business in GPE and in subsequent businesses established .

In DATE , the applicant married and his wife , PERSON , joined him in GPE .

By DATE , the applicant wished to expand the business outside GPE . He incorporated the GPE business , which became ORG , GPE . The applicant and his family subsequently moved to GPE .

The applicant claims to have entered into a written joint venture agreement with PERSON in DATE specifying that they were in business as equal partners , each owning MONEY of the assets and being responsible for MONEY of the liabilities of the jewellery business . This claim was later contested by PERSON .

In DATE , the applicant incorporated ORG , a GPE company . The company acquired the lease of a shop in GPE and the applicant has subsequently built up a prestigious jewellery business trading from those LOC .

In DATE , the applicant caused a PERSON company to be formed , ORG Initially the applicant and PERSON were the CARDINAL shareholders and directors .

It was around this time , PERSON alleges , that the marriage began to deteriorate .

The applicant claims that he and PERSON entered a second joint venture agreement in DATE .

In DATE , the applicant decided to set up an offshore trust , following tax advice from his lawyers .

In DATE , a GPE company , ORG , was incorporated as a wholly owned subsidiary of ORG became the holding company for the other CARDINAL companies in ORG , including ORG ( GPE ) and ORG ( GPE ) . At the same time , most of the shares of ORG were bought in by the company and loan accounts in the name of the applicant and PERSON were set up .

In DATE , the applicant and his family moved to GPE . On DATE , the IMK Family Trust was created in GPE . Its trustees were ORG ( GPE ) . The applicant and PERSON transferred their remaining shares in ORG to the ORG trustees , to be held under the terms of the trust . The settlors of the trust were therefore expressed to be the applicant and PERSON , and the beneficiaries were the applicant and PERSON and their children .

On DATE the applicant and PERSON separated . The applicant subsequently removed PERSON as a beneficiary of ORG and a second GPE trust , ORG .

PERSON applied to ORG for a decree nisi and ancillary relief for herself and the CARDINAL children of the family . The hearing commenced on DATE .

On DATE of the hearing , the applicant and his legal team withdrew from the proceedings following the discovery that evidence upon which the applicant sought to rely in order to support his claim that he had entered into a second joint venture agreement with PERSON was false .

The hearing continued in the applicant ’s absence . Mr Justice Bodey had the benefit of evidence from experts instructed by the applicant and by PERSON on the global trading conditions for the jewellery industry . PERSON expert also gave oral evidence .

In his judgment of DATE , Mr PERSON considered the financial position of the applicant in light of the evidence he had heard regarding the jewellery industry . The judge also considered other assets held by the applicant , or alleged to be held by him . He concluded that the applicant had other undisclosed assets which were or may be of considerable value .

As to the applicant ’s claim that PERSON was entitled to MONEY of all his assets , the judge noted that all the relevant assets were in the applicant ’s sole name and were not legally owned in any way by PERSON . He found that the burden must fall on the applicant and PERSON to establish the equitable or moral claim asserted by PERSON , on a balance of probabilities . The judge considered affidavits from CARDINAL witnesses as to the existence of a partnership between the applicant and PERSON and took into account expert evidence as to the cultural differences between business arrangements in GPE compared to GPE . He found that :

“ I am satisfied that nothing said by the [ applicant ] , PERSON or their witnesses is sufficiently cogent ( certainly without having seen them and heard them cross - examined ) to outweigh the matters set out ... below , the strong thrust of which is firmly against the existence of any kind of partnership or sharing agreement ” .

Mr Justice PERSON made an order that the applicant should pay to Mrs PERSON a lump sum of GBP CARDINAL . He was further ordered to make periodical payments of ORG CARDINAL to PERSON until payment of the lump sum , as well as periodical payments in respect of the children . The judge also ordered that if the applicant failed to pay the lump sum or provide security for it within TIME of being served with the judgment , then he should deliver up to PERSON solicitors the whole stock of jewellery and artefacts listed in a schedule delivered to the court ( owned either by ORG or ORG ) to be sold to meet the award made under the judgment .

The applicant sought to appeal the order . On DATE ORG dismissed his application for permission to appeal . PERSON referred to the husband ’s and Mr PERSON ’s evidence about the alleged joint venture agreement as being “ nothing more nor less than a fraud ” , and he considered significant the husband ’s “ determined ” and “ dishonest ” litigation strategy .

On DATE , having heard evidence from several parties , including the financial director of CARDINAL of the GPE companies , Mr Justice Bodey in ORG accepted that as a matter of law , the court could not “ pierce the corporate veil ” ( i.e. it could not ignore the company / trust structure through which the jewellery stock was owned ) . He therefore discharged the paragraph of his order of DATE in which he ordered the delivery up and sale of the jewellery stock . He found nonetheless that the applicant did have undisclosed assets from which he could make the lump sum payment . He further considered that it was plain that the applicant controlled the ORG , which was revealed both by the documents setting up the trust and the ease with which he had arranged for PERSON name to be removed from the trust beneficiaries . While the court was not able to pierce the corporate veil in order to seize the company assets directly , the applicant could nonetheless in practice use his ultimate ownership of the business structure to raise the sums required by accessing the underlying resources .

By DATE , PERSON had obtained a total of GBP CARDINAL of the lump sum through charging orders on CARDINAL flats owned by the applicant . The applicant made the periodical payments in full until DATE , at which point he began making reduced payments of around GBP CARDINAL . In DATE , he reduced the payments further , to around GBP CARDINAL,CARDINAL . He stopped the payments altogether in DATE .

On DATE , PERSON made an application to enforce the unpaid balance of the lump sum . She sought : ( a ) to set aside the transfer of assets into ORG in DATE ; ( b ) to set aside the document of exclusion in DATE whereby the applicant excluded her as a beneficiary of the trust ; ( c ) to vary the trust as a post - nuptial settlement such that the trustees would hold for her absolutely that value of the trust assets as equated to the outstanding sums arising from the DATE orders ; and ( d ) to be released from an undertaking given by her not to litigate against the trust except within the jurisdiction of GPE and GPE . In addition to the primary relief sought , PERSON also sought an order barring the applicant from opposing her applications by taking part in proceedings , pursuant to a jurisdiction founded on a ORG of Appeal decision from DATE in the case of PERSON [ DATE ] P CARDINAL ( “ a GPE order ” ) .

On DATE , Mr Justice Bodey delivered judgment in relation to PERSON application for a GPE order . He accepted that a GPE order was competent where a party to proceedings was in contempt and concluded that non - payment in breach of a matrimonial order to pay money was in itself a contempt of court , whether or not such non - payment could be described as “ culpable ” ( i.e. whether or not the non - paying party had the means to pay ) . The question therefore arose as to how the court ought to act on the contempt established . Mr Justice Bodey considered it “ blindingly obvious ” that the applicant could have paid a great deal more towards the outstanding balance of the lump sum than he had paid . However , in the event , he refused to make an order barring the applicant from the proceedings altogether . Instead , he made an order requiring the applicant to fulfil certain conditions before he would be able to participate in the substantive hearing . He noted ( at paragraph CARDINAL of his judgment ) :

“ I am satisfied that the husband can and should be placed on certain terms . This is exceptional and unusual , but it is an exceptional and unusual case . To echo the words of Lord PERSON in GPE , it merits ‘ a strong thing’ . ”

As to the terms of the order , the judge stipulated as follows :

“ ( a ) By DATE ( or by such other date as the parties may agree or the court may direct ) the husband do by recorded delivery letter inform the trustees of ORG in terms expressed to be irrevocable :

( i ) that he accepts that he is bound by the court ’s orders , awards and findings of DATE and can not go behind them ( including in particular the finding that Mr. PERSON has no interest in the Trust assets ) ;

( ii ) that he wishes the trustees to assist him in meeting his obligations under the orders of this court and wishes them not to take any steps having the effect of making it more difficult for him to do so ; and

( iii ) that he accepts that ( subject to appeal ) he is bound by whatever orders the court may make on the wife ’s pending applications in DATE , and that ( again ) he wishes the trustees to give full effect to those orders ; and

NORP ( b ) For each £ CARDINAL he pays to his own lawyers for preparation , representation or advice in respect of the DATE hearing from now on , he do pay £ MONEY into a joint account in the names of the parties’ respective solicitors . ( This is what I called during the hearing ‘ pound for pound’ ) . The money so lodged is to be held to the order of the court , but is to be paid out to the wife ’s solicitors at the conclusion of DATE hearing unless , when dealing with costs at the end of that hearing , the court should positively rule otherwise in its overall discretion .

( c ) The husband ’s solicitors are , by DATE , to confirm to the wife ’s solicitors whether the husband has complied with paragraph ( a ) of these terms ( enclosing a copy of the husband ’s letter concerned ) and are to keep the wife ’s solicitors regularly appraised of each payment made to them by the husband from now on , unless any such payment is not in any way connected with the DATE hearing . ”

The order stipulated that in the event of a dispute as to whether the applicant had complied with the terms of the order , the parties were at liberty to apply to the court for a determination on the matter .

In making the order , the judge was mindful of the requirements of LAW . In particular , he commented :

“ CARDINAL . These terms are not intended to punish or penalise the husband , which would be a wrong objective ... Rather they have what I regard as the legitimate aims of trying to create a fair hearing for both parties and/or facilitating the enforcement of the court ’s orders ...

The terms are also , in my judgment , proportionate . The link exists which [ counsel for the applicant ] submits is required between contempt and sanction . ‘ Term ( a)’ requires the husband to do no more than to attempt to comply with the orders of the court . ‘ Term ( ORG seeks to moderate his ability to continue to employ ORG legal team whilst simultaneously failing to pay the wife any of the monies owed to her and leaving her reliant on credit in trying to achieve enforcement .

Only ‘ term ( b)’ requires the husband to find any money . It does not stop him litigating nor being legally represented . It merely creates an opportunity for the court to ensure that this wife , who is owed substantial sums , is not unduly disadvantaged in funding the litigation by reason of the husband ’s wilful non - compliance with the court ’s orders ...

If the husband complies with the above terms then he may fully participate at the hearing in DATE . Otherwise he will be debarred from so doing . ”

The applicant sought leave to appeal against the order . Leave was refused on DATE .

On DATE , the applicant wrote to the trustees of the IMK Family Trust purporting to comply with the conditions of the order of CARDINAL DATE . In his letter , he emphasised that he was “ deeply unhappy at being compelled by the court to write in this manner ” and that his “ sole purpose in doing so is to enable me to resist strenuously the current application which my wife has made ” . He confirmed that he was bound by previous findings of the court as to PERSON interest “ ... despite the fact that neither Mr PERSON nor I agree with the findings the learned judge made and that I contend that he made an order for me to pay a sum that I can not afford to pay ” . He confirmed that he would be bound by an order made in DATE and continued :

“ I wish to give effect to any such order provided that this can be achieved without prejudicing the viability of PERSON ’s companies to trade , or prejudicing their obligations to their employees or their liabilities to their creditors . ”

The letter concluded by stating that the applicant would like the trustees to assist him in meeting his obligations to pay his wife the sums awarded , again provided that the money could be raised without prejudicing the viability of PERSON ’s companies to trade , or prejudicing their obligations to their employees or their liabilities to their creditors .

On DATE , PERSON applied to the court for a determination of whether the applicant had satisfied the conditions imposed .

On DATE , Mr Justice Bodey found that the applicant had failed to comply adequately with the terms set out in paragraph ( a ) of the order . He made a further order , in the following terms :

“ Unless the [ applicant ] shall send by recorded delivery by TIME on DATE to the Trustees of the IMK Family Trust a letter in the terms of the letter attached to this order , pursuant to ... the order of CARDINALth DATE he shall be debarred from participating in the substantive hearing of [ PERSON ] applications listed for hearing on DATE . ”

The attached letter reproduced almost exactly the terms of paragraphs ( a ) ( i ) to ( iii ) of the order of CARDINAL DATE .

The applicant subsequently sent a letter in the ordered terms and the proceedings before ORG took place with his participation .

On DATE , Mr Justice PERSON gave judgment . He refused the first CARDINAL applications , namely to set aside the transfer of assets into ORG in DATE and to set aside the document of exclusion in DATE whereby PERSON was excluded as a beneficiary of the trust . However , he granted the third application and varied the terms of ORG so as to require the trustee to pay PERSON an amount equalling the balance owing under the lump sum , any arrears of periodic payments and the balance of costs still due .

The applicant ’s application for leave to appeal was dismissed by ORG on DATE . ORG noted that in refusing leave on the papers , PERSON had commented that :

“ ... the application falls to be considered in the context of over DATE of litigation , rightly described by PERSON as ‘ Titanic’ . The husband is and has been for DATE in contempt . He cynically incurs and discharges massive litigation bills with , as I infer , the intention of depriving the wife of her entitlement to independent affluence . This court should not encourage or collude in his apparent strategy . ”

ORG later reiterated ( at paragraph CARDINAL ) :

“ At this point it is , I think , necessary , and therefore needs to be stated again , that this is not a case of can not pay ; it is case of will not pay , and CARDINAL of the worst of its kind . ”

He later added ( at paragraph DATE ) :

“ I remind myself that the reason for the application has been [ the applicant ’s ] grossly contumacious refusal to pay . Had he paid , none of this would be necessary . ”

PERSON then applied to ORG , where the trust was based , seeking enforcement of the order of PERSON Justice PERSON . On DATE , the court handed down its judgment . It noted that by that stage , some GBP CARDINAL was owed to PERSON but concluded that it was unable to enforce the judgment of ORG in light of the relevant legislation in force in GPE . However , it considered an alternative argument advanced by PERSON that the trust could be varied by consent of all the beneficiaries , namely the applicant and the children of the marriage . The court noted that the CARDINAL adult children consented to the variation in favour of PERSON . As regards the minor and unborn children , the court approved the alteration of the trust as being to their benefit . In respect of the applicant , the court considered his letter to the trustees following the order of Mr Justice PERSON of DATE and concluded that the letter demonstrated that the applicant had consented to the variation of the trust . It emphasised that the applicant had had a choice whether to refuse to write the letter , and thus be prevented from participating in the hearing before Mr PERSON , or to write the letter and thereby be able to participate in the hearing . The court noted ( at paragraph CARDINAL ) :

“ It was a matter entirely for [ the applicant ] . He chose the latter course . He wrote the letter . He therefore obtained the advantage of appearing before PERSON and he did this by leading and junior counsel who argued strongly against the wife ’s application . It is of interest that the hearing before PERSON apparently took DATE . ”

The court concluded ( at DATE to CARDINAL ) :

“ The terms of the DATE letter are clear . The husband confirms that he is bound by the PERSON order and wishes the ORG to give effect to it , i.e. he wishes effect to be given to the alteration to the ORG made by PERSON Is he now to be allowed to renege on that letter ? We do not think so . The husband chose to write the letter and to participate in the hearing before PERSON The whole purpose of the GPE order made by PERSON was to require the husband to agree to be bound by the outcome of the hearing before PERSON if he wished to participate . In exchange for this assurance , the husband was permitted to participate in the hearing and to seek to persuade PERSON not to accede to the wife ’s application . In this respect he was successful on CARDINAL of the CARDINAL heads of application ... He therefore obtained a tangible advantage by agreeing to write the DATE letter .

We strongly deprecate the idea that , having obtained this advantage , he should now be permitted to disown the DATE letter as , for example , he has sought to do in a recent undated letter to the ORG indicating that he opposes the wife ’s application to this ORG . He has made his choice and he is bound by it . We therefore have no hesitation in finding that he should be treated as consenting to the alteration to the ORG contained in the PERSON order notwithstanding his later attempt to renege .

We would emphasise that our decision to treat the husband as having consented on the basis of the DATE letter is wholly exceptional in the light of the particular circumstances of this case . Firstly , the husband was in flagrant and longstanding contempt of the LANGUAGE order ; but secondly and most importantly , he exercised his free will in choosing to write the letter ... ”

The applicant ’s appeal against ORG judgment was unsuccessful .

It used to be the case in GPE that a person in contempt would not be heard , although there were certain defined exceptions . However , this rule was clarified in the case of PERSON [ DATE ] P. CARDINAL , in which Lord PERSON indicated that :

“ ... It is a strong thing for a court to refuse to hear a party to a cause and it is only be justified by grave considerations of public policy . It is a step which a court will only take when the contempt itself impedes the course of justice and there is no other effective means of securing [ his ] compliance ... I am of the opinion that the fact that a party to a cause has disobeyed an order of the court is not , of itself , a bar to his being heard but if his disobedience is such that , so long as it continues , it impedes the course of justice in the cause by making it more difficult for the court to ascertain the truth or to enforce the orders which it may make , then the court may in its discretion refuse to hear him until the impediment is removed or good reason is shown why it should not be removed . ”

This approach was accepted and approved by ORG in X ORG v. ORG [ DATE ] CARDINAL AC CARDINAL , in which Lord PERSON of PERSON stated :

“ ... It is suggested that to decline to hear an Appellant who is in contempt infringes the maxim ‘ audi alteram partem’ which lies at the route of every civilised system of law ... For my part I think this is too facile an analysis . The maxim ‘ audi alteram partem’ means not that a party has an absolute right in all circumstances to be heard in his own defence , but that he must be given a proper opportunity to be heard . So long as that opportunity is given upon terms with which the proposing appellant can reasonably comply , there is not and there should not be any impediment in principle to the imposition by the court of proper conditions which require to be complied with before the appeal is heard ... ”

Subsequently , in ORG v. PERSON ( Unreported ) DATE , Lord PERSON ( as he then was ) formulated the relevant question as follows :

“ ... whether , in the circumstances of an individual case , the interests of justice are best served by hearing a party in contempt or by refusing to do so , always bearing in mind the paramount importance which the court must attach to the prompt and unquestioning observance of court orders . ”

This was approved by Lord PERSON in ORG in PERSON v. ORG [ DATE ] ORG CARDINAL .

As regards the implications of limitations on access to court and compliance with LAW indicated in ORG Uzan ( No.CARDINAL ) [ DATE ] CARDINAL W.L.R. CARDINAL that :

“ ... It is clear that the right of access to the court which is implied in DATE is not an absolute right but one that is open to restriction provided that the restriction has a legitimate aim in the public interest and that the means employed to realise that aim are proportionate ... The test of proportionality is to be applied on a case by case basis ... As it seems to us , this is reflected in the approach of ORG in X ORG v. ORG ... the width of discretion there recognised being apt to allow issues of proportionality to be properly considered and applied by the court in coming to its decision whether or not to hear a contemnor . ”


Violation of Art. 6-1;Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award

The applicant was born in DATE and resides in the town of FAC , GPE region , GPE .

On an unspecified date the applicant 's late wife instituted proceedings in the Zhovtovodskyy Town Court of Dnipropetrovsk Region against her employer , a ORG - owned company , ORG ( NORP управління будівництва ) , in order to receive salary arrears and other payments .

On DATE the court found for the applicant 's wife and awarded her CARDINAL NORP hryvnas ( “ UAH ” ) ( PERSON міського суду ) .

On DATE the Zhovti Vody Town Bailiffs ' Service ( ORG виконавчої служби Жовтоводського міського управління юстиції ) initiated the enforcement proceedings . On DATE the applicant 's wife received UAH CARDINAL . On DATE she received a further ORG CARDINAL . The rest of the awarded amount remains unpaid .

On DATE the applicant 's wife died .

On DATE the applicant instituted proceedings in the ORG of GPE against ORG , claiming the salary arrears due to his late wife and compensation for moral damage .

On DATE the applicant was recognised as an heir of his late wife .

On DATE the court found against the applicant on the ground that the company was an independent legal entity for which debts the Ministry was not responsible .

NORP By letter of DATE , ORG informed the applicant that the enforcement proceedings had been stayed because of the bankruptcy proceedings initiated against the debtor by a decision of DATE of ORG of the Dnipropetrovsk Region . ORG also stated that , according to the PERSON on the Introduction of a Moratorium on the Forced Sale of Property , on DATE a ban on the forced sale of assets belonging to undertakings in which the ORG holds PERCENT of the share capital had been introduced .

By the decree of CARDINAL DATE ORG liquidated the debtor company .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .


Violation of Art. 2 with regard to the death;Violation of Art. 2 with regard to the investigation;No violation of Art. 3;No violation of Art. 5;Violation of Art. 13;No violation of Art. 14;No violation of Art. 18;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses award - Convention proceedings

The facts of the case , in particular concerning what happened to PERSON , the applicant ’s son , during his detention in police custody from DATE are in dispute between the parties . Having regard however to the length of time which had elapsed since those events and the nature of the documentary material submitted by the parties , the ORG decided that a fact finding investigation , involving the hearing of witnesses , would not effectively assist in resolving the issues . It has proceeded to examine the applicant ’s complaints on the basis of the written submissions and documents provided by the parties .

The applicant ’s and ORG ’s submissions concerning the facts are set out below ( Sections A and B ) . The documents relating to the events and complaints are also summarised ( Section C ) .

The applicant , a NORP farmer born in DATE , lived in the village of ORG in the GPE region in south - east GPE . His son PERSON was born in DATE .

On DATE , gendarmes from the GPE central gendarme station arrived at the village to carry out a search . The villagers were gathered outside the FAC . The applicant ’s son conducted some of the gendarmes round the village as they searched . The gendarme commanders questioned the applicant about his son . The gendarmes left taking PERSON with them . At that time PERSON was in good health .

On DATE , the applicant sought information from the authorities about his son . They refused to let him see his son and he left .

On DATE , at TIME , a police car arrived at the applicant ’s son ’s house and took the applicant to the police station . There the security director informed him that his son had died of a heart attack while in custody . The applicant replied that his son did not suffer from any illness and that he had probably died from torture . He asked to speak to the public prosecutor , who came into the security director ’s office and told the applicant that the cause of death was heart failure . The applicant maintained that his son ’s death had been caused by torture .

On DATE , an autopsy was carried out on the body by CARDINAL doctors PERSON and PERSON , CARDINAL of whom was a paediatrician and the other worked in a health clinic at ORG .

Mahmut Tanlı ’s body was delivered to GPE police station on DATE . The body was covered in bruises . There was also a large incision , which had been stitched , running down the left breast towards the upper abdomen . The police claimed that the incision was the result of an operation carried out when PERSON had had a heart attack . The police asked the applicant to sign a document . As he was afraid for his safety , the applicant signed without knowing what it was .

Mahmut Tanlı had no criminal record and was not suspected of any criminal activities . He had no known or suspected heart disease before he was taken into custody or any other medical condition . The applicant was too afraid of the risk of reprisals to request or arrange a forensic examination of his son ’s body .

On DATE , the applicant made a statement to the GPE branch of ORG , reporting that his son ’s body had shown marks and blows of force and that it was clear that he was killed under torture . The applicant ’s brother made a statement in similar terms .

On DATE , the applicant lodged a written petition with the PERSON chief public prosecutor concerning his son ’s death , which he said was suspicious . He also complained of the inadequacy of the post mortem examination which had not been carried out by experts . He asked that his son ’s body be referred to ORG . He later withdrew this request because he feared for his life .

On DATE , the public prosecutor took statements from the muhtar and other villagers in ORG , which confirmed that PERSON had no previous medical problems .

On DATE , proceedings were brought by ORG against the CARDINAL police officers , PERSON , ORG and PERSON , who had been interrogating PERSON when he died . There were a series of adjournments in the proceedings . On DATE , the court ordered that the file be sent to ORG for an opinion as to the cause of death . On DATE , it was noted that ORG had ordered the exhumation of the body . Further adjournments followed awaiting the ORG ’s report . On DATE , the court found that the cause of PERSON death could not be established and the CARDINAL defendants were acquitted .

PERSON , a former member of the ORG , had informed the authorities that PERSON from GPE village was an armed militiaman in the ORG . His name was also mentioned on a list of militiamen found on a dead ORG member after a clash . PERSON was therefore suspected of having aided and abetted the ORG .

On DATE , following a search of ORG , the PERSON gendarmes took PERSON into custody . They transferred him DATE to the PERSON police station for questioning . He arrived at TIME As the police officers responsible for questioning were in pursuit of other suspects , his questioning was postponed to DATE .

On DATE QUANTITY police officers , PERSON , ORG and PERSON , started to question PERSON . He at first refused to admit any connection with the ORG , alleging that it was a slander . When details were put to him of his alleged connections , including ORG ’s statement , he became excited and began stammering and trembling . He went pale , his voice changed and it was clear that he was developing a kind of shock . The questioning was stopped and a doctor sent for . The doctor arrived within TIME . The doctor , PERSON , found him to be having difficulty in breathing and that he was cyanotic . He ordered an ambulance . Within TIME , his breathing and heart had stopped . He was given artificial respiration and cardiac massage for TIME by the doctor , assisted by the police officers . This was to no avail .

NORP The public prosecutor , informed of the death , arrived soon after . The ambulance took the body to ORG where an autopsy was carried out by PERSON and PERSON , CARDINAL doctors from ORG , in the presence of the public prosecutor . According to the report , there was no trace of lesions , traumas or the use of force on the head and no fresh bruises . After the autopsy the public prosecutor suggested to the applicant that his son ’s body should undergo a comprehensive forensic examination at ORG in order to dispel any doubts . The applicant initially agreed . After consulting other members of the family , however , he withdrew his consent . The public prosecutor handed over the body to be buried by the family .

NORP The public prosecutor , PERSON , started an investigation into the allegation of the applicant that his son died as a result of torture in custody . He interviewed the CARDINAL police officers . He also wrote to ORG to obtain any military medical records . After a comprehensive investigation , an indictment was drawn up accusing the QUANTITY police officers of an offence under Article CARDINAL of LAW . On DATE , having considered all the evidence , ORG acquitted the QUANTITY police officers on grounds of lack of evidence . The decision of acquittal was upheld by ORG on DATE . It also rejected the applicant ’s appeal as he had failed to intervene in the proceedings against the police officers .

The applicant stated that on DATE the GPE gendarmes station and central commanders carried out a search in GPE . They asked about his son PERSON who was walking around with the soldiers . His son had never committed an offence . His son had been killed under torture by teams in the PERSON district of GPE . He had made an application . He was going to take the body to the ORG place . He did not as he was afraid for his life . He complained against those who killed his son , whose only offence was to be a GPE .

This was also signed by the applicant ’s uncle , PERSON . The applicant ’s son had been taken into custody by ORG on DATE . The applicant stated that the police claimed that his son had died of a heart attack in custody . When he went there he saw marks of blows and force on his son . His body was covered in bruises and it was clear that he had been killed under torture . The uncle said that he had seen the whole of the body covered in bruises . There was no question of a heart attack .

The applicant submitted CARDINAL colour photographs of the body of PERSON taken before the burial . These showed the chest , face and forearms . The quality was poor . Red marks and grazes appeared to be visible on the arms , body and hips . A stitched incision ran from the neck across the chest to the stomach .

The suspect was from GPE . In recounting his contacts and activities for the ORG , he named PERSON , son of PERSON , as CARDINAL of the villagers working for the ORG in the village .

This document was signed by the public prosecutor and police superintendent PERSON , head of the Anti - Terror Department of ORG . It stated that at TIME on DATE it had been reported on the telephone that PERSON , a suspected ORG member , had had an attack while under interrogation at the PERSON police station . When he entered the police station , the public prosecutor found the body stretched out on the bench . There was nothing worthy of note at the scene . The body was dressed and there were no signs of blows .

PERSON stated , having been sworn , that PERSON had been handed over to the police station by the gendarmes at TIME on DATE . He had the necessary medical examination by the doctor . He looked perfectly well . They did not interrogate him DATE . He and CARDINAL other officers , PERSON and PERSON , went to the room to interrogate him . He told him that his name had been mentioned in statements taken from PERSON and other ORG activists . PERSON denied that he was involved and claimed that it was slander . He became very agitated and began to tremble . As they realised that he was unwell , they immediately sent for a doctor at the hospital . By the time the doctor arrived , he had died from the sudden shock . They tried to revive him without success . The suspect had not been subject to any blows or violence . He died of shock .

Dr PERSON , from ORG , stated that despite artificial respiration and cardiac massage the suspect had died .

The decision was taken to transport the body to ORG for an autopsy to be performed .

No traces of blows or lesions were found on the head . There was a graze QUANTITY below the right collarbone on which a scab had formed DATE it looked about DATE . No traces of blows were found on the back , arms , hands or legs . PERSON CARDINAL cm were found on the left hip , which were probably DATE .

No traces of blows or violence were found on opening the thoracic cavity . The ribs and collarbones were intact , as were the bones of the chest . The heart tissue was seen to be pale in colour and a bruised area observed near the apex . Blood clotting was observed inside the blood vessels in the front section and clotted blood was detected inside heart . Black pigmented specks were found in the lungs . No abnormalities were found in the abdominal or cranial cavities . The cause of death was sudden heart failure resulting from an embolus in the blood vessels of the heart . As no further procedures were required , it was decided to issue the burial and transport licence .

The autopsy had been carried out by Dr PERSON , a paediatrician at ORG , and Dr PERSON , employed in ORG .

This stated that his son did not have any heart condition . It was suspicious and absurd to claim that he died of a heart attack . His son had just completed his military service without the slightest health problem during or before . As far as he gathered , no traces of violence had been found . However , other forms of torture ( electric shock , medication , injections , cold water treatment ) were possible which left MONEY but could affect the heart . He requested that the body be sent to ORG for a full report so that the responsible persons could be punished .

It had been determined that the deceased died of a heart attack and a decision was taken to issue a licence for the applicant to transport and bury the body .

The applicant withdrew his request for a report by ORG as there was no point in doing so . The note was taken down by the public prosecutor and signed by him and the applicant .

PERSON , wanted as a suspected member of the ORG militia in ORG , was handed over to them by the gendarmes at TIME on DATE . He was not interrogated then as they had other duties on search operations DATE . He , PERSON and PERSON commenced questioning PERSON in the interrogation room on DATE at TIME They told him that his name had been mentioned in statements made by PERSON and that documents found on the bodies of ORG members killed in operations showed that he had carried out activities as a member of the armed militia of ORG under the assumed name of NORP . PERSON suddenly became agitated , his voice began to tremble and , speaking in a quavering voice , he said that he did not have the assumed name of PERSON and that they had been lying . The witness repeated that his name was mentioned in documents . He suddenly was unable to speak , his colour changed and he began to shake . He lost consciousness . The witness immediately informed the relevant authorities and asked them to send a doctor . They laid PERSON on the floor and uncovered his chest . His breathing was difficult . PERSON , who had knowledge of first aid and was attending a training course , began to give him heart massage . There was no change . They continued for TIME until the doctor arrived . Dr PERSON immediately checked the patient ’s pulse as he lay on the floor and listened to his heart and said that his condition was very serious . While he gave heart massage , he told the police officers to give artificial respiration . This went on for TIME but there was no change in his condition and the doctor said that he had died . During the interrogation , they had not pushed , kicked or beaten the detainee in any way . The detainee ’s death was not the result of any action on his part or on the part of his colleagues .

NORP The witness , a police officer in the Anti - Terror Branch of ORG , was with PERSON and PERSON when they interrogated PERSON on DATE . They had not done so earlier due to other business . He did not carry out interrogations himself . They began to put questions to the detainee . PERSON told the detainee that he was wanted by ORG and that they had information and documents about him . The detainee spoke calmly to begin with , but when PERSON told him those things , his voice changed and he quavered and stammered . He suddenly became unwell and appeared to faint . They immediately laid him out on the floor and uncovered his chest as he was having difficulty breathing . The witness knew how to give first aid , having attended a course in first aid . PERSON immediately informed the squads and the security headquarters of the situation and told an officer to take the ORG car and get a doctor urgently . Dr PERSON arrived TIME later and immediately checked the patient ’s pulse and heart beat and said that his condition was serious . TIME after his arrival , the doctor said that the patient had died but that it was necessary to continue with heart massage and artificial respiration . He told them to give artificial respiration , while he carried out heart massage . However , it was to no avail and the doctor then said that the patient had died . While the detainee was in the security headquarters neither the witness nor his colleagues did anything to him which would have made him faint or caused his death .

The witness , a police officer in the Anti - Terror Branch of ORG , stated that at TIME on DATE , PERSON , PERSON and himself went to the PERSON police station to interrogate PERSON . They commenced the interrogation in the room reserved for detainees . They had not done so before as they had had other business . There were only the CARDINAL officers in the interrogation room . Superintendent PERSON first asked the detainee if he knew why he had been arrested . When he said that he did not , the Superintendent told him that he had been mentioned as a member of the armed militia in GPE village in the statements made by PERSON , and that his name had been found in notebooks found with the bodies of the CARDINAL terrorists killed in clashes near GPE on CARDINAL MayCARDINAL identifying him as a member of the ORG armed militia in GPE . Thereupon the detainee began to stammer and tremble . He went pale and suddenly collapsed . The GPE immediately reported the situation to the squads by radio and told them to get a doctor urgently . At the same time he told a police officer outside the room to take the car and fetch the doctor . Meanwhile , PERSON said that he knew how to give first aid and he laid the detainee out on the floor , uncovered his chest and gave him heart massage . Within TIME , the police officer returned with PERSON , who immediately checked the patient ’s pulse , listened to his heart and said that his condition was serious . The doctor told police officer PERSON to go and get medicine . The doctor told them to give artificial respiration while he gave the heart massage . They continued like that for several minutes . Then the doctor checked his pulse and listened to his heart again and said that the patient had died , but that it was necessary to continue with heart massage and artificial respiration . They continued . Then the doctor said that the patient had died and there was nothing else to be done . They reported the situation to their security headquarters by radio . Neither he nor his colleagues did anything to the detainee which would have caused his death .

The witness , a lawyer , stated that the applicant and other members of the family came to his office telling him that the death of PERSON was suspicious and consulting him as to what could be done legally . He suggested that the body be sent to ORG before burial . They agreed . He wrote a petition for them to the public prosecutor , which they presented together . The prosecutor said that it was possible and he would look into it . TIME , he phoned the witness and said that he would send the body and that a special coffin had to be prepared . He said that there was no budget for this at the ORG office but that assistance could be obtained through the GPE office . The witness told the family that once they had obtained the zinc - lined coffin the public prosecutor would send the body to the ORG . The family went away and came back TIME . They said that they were afraid that it would be very difficult to transport the body back and forth and that anything might happen . The witness went with them to the public ORG office and the applicant declared verbally to the public prosecutor that he was waiving any further examination . The public prosecutor said that it would be of great advantage in elucidating the facts , as well as from a legal point of view , if the body were sent . The applicant went away with his family and came back TIME . He repeated that they were definitely waiving sending the body to the ORG and were going to bury it . The public prosecutor told them that they could . The family took the burial licence , collected the body from the morgue and took it back to the village .

While the witness was on duty at ORG , a police officer came and said that there was a patient in need of urgent treatment . Taken in a police car to the PERSON police station , he found the patient stretched out on a bench . The pulse was GPE , the heartbeat irregular and breathing difficult . The patient ’s situation was serious . He told a police officer to get some adrenaline atropine . The patient ’s general appearance was somnolent . His breathing stopped . He could not hear any heartbeat . He immediately performed heart massage , telling the police officers to give artificial respiration at the same time . This went on for TIME . There was no trace of any vital functions . The pupils were fairly dilated and there was no light reflex . He realised the patient was dead and stopped performing first aid as there was no point . However , since heart massage and artificial respiration can continue DATE , he told the police officers to continue both . It was in vain .

On DATE , the gendarmes came to the village , saying that they were looking for his son PERSON . They took him away . On DATE the applicant went to visit his son but they would not let him speak to him . On DATE , when he was at his son PERSON ’s house , a police car arrived at TIME and took him to the office of the chief of police . The chief of police told him that his son had died . The applicant replied that his son had not been ill , that it was suspicious and that he could have been tortured to death . He asked to talk to the public prosecutor . The public prosecutor came into the office and said that he had carried out the autopsy procedure which showed no signs of blows or violence and that his son had died of heart failure . The applicant repeated that he could have been tortured to death .

The applicant went to see the lawyer PERSON who said that the body could be sent to ORG . He drew up a petition for this and they took it to the public prosecutor . The prosecutor said that they needed a galvanised sheet metal coffin and asked them to have it made . Some money for this might be available from local funds . The applicant , family elders and relatives discussed the matter and decided to give up the idea as various difficulties could arise and they would be put under pressure . They told the prosecutor that . He said that it would be of great advantage to send the body to the ORG and asked them to reconsider . The family discussed it again and , accompanied by PERSON , told the public prosecutor that they had decided not to send the body . The public prosecutor issued a burial licence and they buried the body in the village .

The applicant wanted an investigation concerning the persons who caused his son ’s death and that they should be punished .

The witness , a police officer , was sitting in the office of the chief of the Anti - Terror Branch when the chief , PERSON , as well as PERSON and PERSON , went into the room for detainees . PERSON asked for the statements of PERSON and took them with him . TIME , he came back and said that PERSON had been taken ill . He asked the police driver present to get a doctor quickly . The witness went to the room to see the detainee . PERSON had uncovered the detainee ’s chest and was trying to get him to breathe . PERSON arrived a short time later . He said that he needed heart massage and artificial respiration . He told the police driver to go to the pharmacist to get a drug but TIME announced that ORG had died . The witness did not see or hear that PERSON had been subjected to blows or violence . Only a short time passed between his colleagues going into the room and coming out again .

The witness , a police driver at the Anti - Terror Branch of ORG , was on duty that TIME . PERSON and officers PERSON and ORG arrived at PERSON at TIME The superintendent was carrying a file in his hand . They went into the room where PERSON was being held . The witness and other officers waited in the superintendent ’s office . After TIME , the superintendant came out , saying that the detainee was ill and telling him to take a car to get a doctor . He drove to the hospital QUANTITY away and brought back Dr Ağralı TIME . The doctor checked the detainee ’s pulse and heart and said that the man needed heart massage and artificial respiration . He told the witness to fetch a drug from the chemist on TIME call . He was about to get into the car when the doctor said that it was no longer necessary as the detainee had died . He had not seen anyone at the station subject the detainee to any blows or violence .

The witness , a police officer in the intelligence unit , arrived at GPE police station at TIME He was having tea with others while CARDINAL colleagues went to take a statement from PERSON . TIME , ORG came out and told the police driver to get a doctor urgently as the detainee had been taken ill . The witness did not go in the room . He heard the doctor tell the driver to get a drug and then not to bother . While he was there no - one subjected the detainee to blows or violence .

This stated , with reference to an incident report of CARDINAL DATE , that after an armed clash between the terrorists and security forces , CARDINAL terrorists had been arrested or killed and a number of documents found . CARDINAL of these , a list of ORG members , included PERSON name on page CARDINAL .

These statements from villagers stated that PERSON had no health problems and that they had never seen or heard of him having any illness .

Having examined the file of PERSON in response to the query as to whether he had suffered any health problems or been treated during his military service , they could not find any medical reports about his health .

This listed the defendants PERSON , PERSON and PERSON as charged with the offence of causing the death of PERSON by ill - treatment in their capacity as police officers , contrary to Article PERSON of LAW . The evidence was summarised , including the autopsy conclusion that death had been caused by heart failure and that there were no signs of blows or violence . It concluded that it was for the court to assess the fault or negligence of the defendants in possibly causing death – such as causing the death of the deceased , allegedly tortured , by frightening him .

It was stated that the letter and enclosures from ORG ( International Law and ORG ) were read out to the applicant .

The applicant stated that he had been informed that his son had died of a heart attack in police custody . The public prosecutor said that there had been an autopsy and that this had concluded that there had been a heart attack and that there were MONEY of ill - treatment . The applicant wanted the body to go to ORG for a more definite conclusion . The prosecutor accepted this and he left to obtain a coffin . For TIME , he discussed the matter with the elders in the family and finally decided that it would be very burdensome to take the corpse there and back . They went to the prosecutor ’s office and told him that they had given up the idea . The prosecutor said that , although the cause of death had been established , it would still be useful to send the body for a more thorough examination . They insisted however and took the body to the village .

He confirmed his petition and signature on the petition and letter of authority . He wanted those who killed his son found and punished .

The court decided to summon the defendants to give evidence , to obtain any records of their previous convictions and to summon witnesses ( the applicant , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON , PERSON and PERSON ) .

The court heard evidence from a number of witnesses and CARDINAL of the defendants . PERSON did not attend .

Ökkeş PERSON said that they had been questioning the deceased . When PERSON told him that he was wanted as a ORG militia man , the deceased ’s speech and voice changed . His facial expression changed . As he said that he was unwell , they got him to lie down on a bench . Since he had difficulty breathing , they tried to help him and called a doctor . TIME after the doctor arrived , the doctor said that he had died . He had not tortured or ill - treated the deceased in any way .

PERSON said that he told the deceased what the allegations were and the evidence that he was in the ORG militia . The deceased suddenly became unwell , his voice began to tremble and he had difficulty breathing . He ended the interrogation and they tried to ease his breathing . At the same time they contacted the hospital . A doctor came but after TIME said that the deceased had died . He denied the offence .

The applicant said that his son had no health problems whatsoever and did his military service without problem . The police had not called him after they had killed his son . He thought that the doctor who carried out the autopsy was under pressure . The defendants had tortured his son to death . In answer to a question , he said that he had not allowed his son ’s body to be sent to ORG because he was afraid of reprisals . The public prosecutor had suggested it should be done but he was afraid that they would kill him on the way there . He rejected the autopsy report . He had heard that one of the doctor signatories had not in fact been there . It was impossible that his son had died of a heart attack .

Mirsevdin Timur from GPE village confirmed that PERSON had had no health problems .

PERSON , a police officer , stated that he was outside the interrogation room when the defendants and deceased were in there . After TIME , FAC came and said that that the deceased was unwell , sending the driver to fetch a doctor . When he entered the room , the police officers were trying to ease the deceased ’s breathing . The doctor arrived TIME . The deceased had MONEY of blows on him and he did not see him being tortured .

PERSON , a villager , stated that PERSON had no health problems . He had been present when his body was being washed . There were marks of blows on his arms and bruises on the sides . He had not mentioned that in his previous statement as he was not asked .

Cafer Yiğit , a police officer , stated that he had been on duty at the police station when the defendants went in to interrogate the deceased . A short while later , PERSON came out and said that the deceased was unwell . He went to find a doctor . That took TIME . He did not hear or see the deceased being tortured . They had been adjacent to the room and would have heard any sounds coming from there .

PERSON , a police officer , had been outside the room where the deceased was being interrogated . He saw the defendants and deceased go in . After TIME , PERSON came out and said that the deceased was unwell and asked for a doctor to be called . PERSON brought back a doctor after TIME . He did not hear or see the defendants subject the deceased to any blows or violence . They would have been bound to hear if they had .

PERSON , the muhtar from GPE , had not been there and did not attend the funeral .

DATE . The court decided inter alia to make a further request for the GPE records , to subpoena PERSON , to send letters rogatory concerning PERSON and to subpoena PERSON , PERSON and PERSON .

The defendant PERSON attended . He stated that he had taken the deceased into the room used for interrogation . The deceased sat down on the bench . PERSON asked if he knew why he was there . When he said that he did not know , the superintendent told him why he had been brought . The deceased began to tremble . His voice changed , he went pale and began to feel unwell . The superintendent reported this on the radio . They sent PERSON to fetch a doctor , who arrived TIME . The doctor treated him and sent PERSON for some medicine . He and his colleagues had definitely not tortured the deceased .

The court adjourned to wait for the reply inter alia to the letters rogatory and subpoenas for the remaining witnesses .

It was noted that PERSON , by reply to the letter rogatory , had maintained his previous statement .

PERSON appeared . He denied the statement of CARDINAL DATE . He had been blindfolded and did not know what was in it . He did not know if the deceased was in the ORG or not .

PERSON , a villager , said that PERSON had no health problems and knew nothing else .

The court decided inter alia to await the response to the subpoena for PERSON and to re - issue letters rogatory to PERSON to put a question about the autopsy report .

The court adjourned pending responses to pending matters .

DATE . The court decided to dispense with hearing PERSON , whose address had not been found , and to send the entire file to ORG , requesting their opinion on the cause of death of the deceased and asking whether he had died as the result of torture , violence or blows .

The court adjourned pending the reply from ORG .

Pursuant to the report of ORG of ORG , the court decided to order the exhumation of the body of PERSON .

The court adjourned pending the report of ORG . On DATE , noting the delay , it issued a writ to the prosecution department to request the opinion to be submitted .

NORP The report reviewed the evidence in the file . It stated that an autopsy had been performed on the body exhumed on DATE and an autopsy report issued on DATE . That report indicated that the body was in an advanced state of putrefaction . The soft tissue in the head area had entirely disappeared ; the radioscopy did not reveal any particular features in the skeletal system or any foreign metal objects ; no lesions were found on the skull ; QUANTITY lesions were observed from the previous autopsy ; the facial bones and teeth were intact ; despite the putrefied and shrunken appearance of the heart , it could be seen that the ventricles had not been opened ; advanced putrefaction made it impossible to assess the main veins or coronary arteries ; no particular features could be distinguished in the lungs or abdomen ; examination of the cervical organs revealed that the standard dissection had not been performed ; the toxicological analysis disclosed no substances for which tests were done .

It was concluded as follows : The information given was that an autopsy including the opening of the CARDINAL cavities was performed , that clotted blood was found in the heart and internal clotting in the anterior part of the coronary arteries and that death was caused by sudden heart failure due to an embolism in the cardiac vessels . However , as the autopsy after the exhumation showed , the organs had not been removed , sectioned and examined and that the heart ventricles had not been opened . The changes described therefore were of no scientific value . In cases of torture , traumatic changes might not be visible on external examination . The skin and deep muscle tissue had to be sectioned and examined to investigate deceptive traumatic changes . As regarded possible electric shocks , samples of cutaneous and subcutaneous tissue had to be taken from the usual places – the inside of the mouth , nose and ears and genital area had to be examined and samples taken from the organs for histopathological analysis . None of these tests , included in the LOC model autopsy protocol published by ORG , were performed at the time . Therefore the judicial procedure had been left incomplete .

The findings showed that no injury was suffered likely to cause bone fracture . However owing to advanced putrefaction , it could not be established whether or not the deceased died as a result of torture , assault or battery ; nor was it possible to determine the cause of death .

The court summarised the evidence . It noted that the public prosecutor had given his opinion that there was no concrete evidence to support the allegation that the defendants had caused the death of PERSON . The testimonies of the witnesses who appeared before the court did not make it possible to reach the conclusion that the defendants tortured or ill - treated the deceased .

According to the documents in the file and the on - site report , the deceased was apprehended by the gendarmerie on DATE on suspicion of being a ORG militant and was handed to the police DATE in order to be questioned . He had not been questioned DATE because they had other things to do and , when they started to question him DATE , he fell ill and subsequently died despite the first aid attempts .

According to the corpse examination and autopsy report of DATE , a copy of which is in the case file , there were no signs of ill - treatment or lesions on the head ; there was a cut under his right collar bone , measuring CARDINAL cm , which had formed a scab and which probably had been caused DATE previously . There were no signs of ill - treatment on the back of the body , hands or arms . On the left side of the buttocks there were superficial cuts , measuring QUANTITY , which had formed scabs and which had possibly been caused DATE previously . There were no signs of ill - treatment on the legs or the feet . A full autopsy was also carried out on the deceased ’s body . There were no signs of ill - treatment on the chest . The collar - bones and the rib cage were intact . There were no bruises on the neck . There was no accumulation of blood in the thoracic cavity . The examination of the heart revealed an ecchymotic area on the apex cordis , near the pallor . On the front sides of the coronary arteries there were blood clots . There was also clotted blood in the heart and occasional pigment spots in the lungs . There was no blood accumulation in the thoracic or abdominal cavities . The stomach and intestines were normal . There were no signs of ill - treatment on the scalp or on the bones . No broken bones or oedema were observed . The brains were intact and there was no bleeding or discoloration on the tissue covering the brains . The cause of death was given as emboli in the blood vessels of the heart which caused the heart to stop .

ORG was contacted and their opinion was requested . ORG in their report of CARDINAL DATE stated that the autopsy conducted locally on the body was inadequate . They also stated that the autopsy conducted on the remains of the body after the exhumation was not sufficient to determine conclusively whether he had been killed as a result of torture or ill - treatment , or to determine conclusively the cause of death , because the soft tissues of the body and the internal organs had seriously decomposed .

According to the summary of the documents above , and the autopsy reports , it had not been possible to determine the cause of death . The GPE denials had also not been disproved . It was therefore not possible to determine conclusively that the defendants had committed this crime . The cause of death had not been established and therefore there was no conclusive evidence to prove beyond reasonable doubt that the defendants had committed the crime with which they have been charged . It was therefore decided , unanimously , to acquit all the defendants .

The court noted that on DATE the applicant had appealed against the decision of acquittal . However , as he had not applied to join the proceedings as an intervenor , ORG had refused leave to appeal . He appealed against this refusal on DATE .

The court decided , unanimously , that the decision of ORG not to grant leave to appeal , as the applicant was not a party , was correct . The applicant ’s appeal was therefore rejected .

This report was issued on behalf of the applicant by PERSON , a Reader in Forensic Pathology at ORG and consultant pathologist to ORG .

The report recounted the findings of the autopsy . It noted that no organ weights were recorded or any indication of any material being retained for toxicology or histology . Though the cause of death was alleged to be heart failure as a result of emboli in the heart veins , there was no description of any such finding in the section on the chest organs . The further post mortem examination in DATE found that the heart had not been opened or dissected in an appropriate manner , that dissection to detect traumatic changes due to torture had not been carried out and that the neck area had not been dissected in the classical manner at the first examination ( the hyoid bone and thyroid cartilage were firm ) . The black and white photocopies of the photographs of the body taken by the applicant were of no assistance in determining the presence of injuries .

The opinion was given that the post mortem examination after the death of PERSON was wholly inadequate . The conclusion of death due to heart failure appeared to have no pathological basis . It is said that there were emboli in the coronary veins but there is no description of any source for these emboli and no disorder of any organs was described . If the heart was dissected at all , and this appeared unlikely from the second examination , the so - called emboli would appear to be post mortem clotting of blood and not an event that had occurred in life to account for death . In any event emboli , or thrombosis , in a DATE man would be exceptional and , if present , would be expected to be present in coronary arteries not veins . The cause of death given at the first post mortem examination could be dismissed as incorrect , based on observations of doctors who had no pathological training or as , frankly , made up as the heart did not appear to have been dissected .

While no fresh injuries were identified by the doctors at the first examination , in view of the incompetent nature of the examination , it had to be questioned whether subtle changes would have been detected . If such injuries were present on the skin , they would not have been visible to the pathologists carrying out the second examination DATE .

The possibility that PERSON met his death as the result of torture had to be strongly considered . Techniques such as neck holds leave subtle signs in the neck which require detailed and appropriate dissection which was not carried out . The absence of injury to the hyoid bone and thyroid cartilage were not conclusive as the structures were cartilaginous and less liable to fracture than in an older person . Another possibility was some form of restraint asphyxia or positional asphyxia where significant pathological findings were absent or minimal and needed careful consideration . Post mortem techniques existed for that but were not used . Another possibility was the application of electrical current , which left subtle skin changes that required careful examination for detection . The autopsy was inadequate for that purpose .

It was concluded that the autopsy findings did not support a natural cause of death and no other natural cause of death was identified . In the absence of a natural cause of death , unnatural causes had to be strongly considered . However , the first autopsy was inadequate to identify specifically subtle forms of torture or ill - treatment that could lead to death .

The principles and procedures relating to liability for acts contrary to the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . It is also an offence for a government employee to subject someone to torture or ill - treatment ( Article CARDINAL in respect of torture and Article CARDINAL in respect of ill - treatment ) . The authorities’ obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public ORG offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor ’s office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of ORG prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by the Law of DATE on the prosecution of civil servants , which restricts the public prosecutor ’s jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect ’s status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the ORG . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Legislative Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see preceding paragraph ) also applies to members of the security forces who come under the governor ’s authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person ’s life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender ’s superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG ’s strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people ’s lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Legislative Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned in the preceding paragraph , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this legislative decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

NORP Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant ’s guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative act ” or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim ’s right to bring an action against the authority on the basis of its joint liability as the official ’s employer ( LAW ) .

Article CARDINAL of LAW provides :

“ Official examination of a corpse must be made in the presence of a physician . An autopsy shall be performed in the presence of a judge and in those case where it is necessary to avoid prejudicial delay , the autopsy shall be performed by CARDINAL physicians in the presence of the public prosecutor , CARDINAL of the physicians being a forensic practitioner .

In an emergency situation , the operation may be conducted by CARDINAL doctor only . ”

By DATE , ORG for the Prevention of Torture ( ORG ) had carried out CARDINAL visits to GPE . The QUANTITY first visits in DATE and DATE were ad hoc visits considered necessary in the light of the considerable number of reports received from a variety of sources , containing allegations of torture or other forms of ill - treatment of persons deprived of their liberty , in particular , relating to those held in police custody . A third periodic visit took place at DATE . Further visits took place in DATE , DATE and DATE , DATE and DATE . The ORG ’s reports on these visits , save the last CARDINAL , have not been made public , such publication requiring the consent of the ORG concerned , which has not been forthcoming .

The ORG has issued CARDINAL public statements .

In its public statement adopted on DATE , the ORG concluded that torture and other forms of severe ill - treatment were important characteristics of police custody . On its first visit in DATE , the following types of ill - treatment were constantly alleged : NORP hanging , electric shocks , beating of the soles of the feet ( “ falaka ” ) , hosing with pressurised cold water and incarceration in very small , dark , unventilated cells . Its medical examinations disclosed clear medical signs consistent with very recent torture and other severe ill - treatment of both a physical and psychological nature . The on - site observations in police establishments revealed extremely poor material conditions of detention .

On its second visit in DATE , it found no progress had been made in eliminating torture and ill - treatment by the police . Many persons made complaint of similar types of ill - treatment DATE an increasing number of allegations were heard of forcible penetration of bodily orifices with a stick or truncheon . Once again , a number of the persons making such claims were found on examination to display marks or conditions consistent with their allegations . On its third visit from DATE to DATE , its delegation was inundated with allegations of torture and ill - treatment . Numerous persons examined by its doctors displayed marks or conditions consistent with their allegations . It listed a number of these cases . On this visit , the ORG had visited ORG , where a prisoner at ORG prison displayed haematomas on the soles of his feet and a series of vertical violet stripes ( CARDINAL cm long , QUANTITY wide ) across the upper part of his back , consistent with his allegation that he had recently been subjected to falaka and beaten on the back with a truncheon while in police custody . In GPE police headquarters and GPE police headquarters , it found equipment consistent with use in torture and the presence of which had no other credible explanation . The ORG concluded in its statement that “ the practice of torture and other forms of severe ill - treatment of persons in police custody remains widespread in GPE ” .

In its second public statement issued on DATE , the ORG noted that some progress had been made over DATE . However , its findings after its visit in DATE demonstrated that torture and other forms of ill - treatment were still important characteristics of police custody . In the course of visits in DATE , ORG delegations once again found clear evidence of the practice of torture and other forms of severe ill - treatment by police . It referred to its most recent visit in DATE to police establishments in GPE , ORG and GPE , when it also went to CARDINAL prisons in order to interview certain persons who had very recently been in police custody in GPE and GPE . A considerable number of persons examined by the ORG forensic doctors displayed marks or conditions consistent with their allegations of recent ill - treatment by the police , and in particular of beating of the soles of the feet , blows to the palms of the hands and suspension by the arms . It noted the cases of CARDINAL persons who had been very recently detained at the Anti - Terror Department at ORG which ranked among the most flagrant examples of torture encountered by ORG delegations in GPE . They showed signs of prolonged suspension by the arms , with impairments in motor function and sensation which , in QUANTITY persons who had lost the use of both arms , threatened to be irreversible . It concluded that resort to torture and other forms of severe ill - treatment remained a common occurrence in police establishments in GPE .

The Manual on ORG - legal , Arbitrary and Summary Executions adopted by ORG in DATE includes a Model Autopsy Protocol aimed at providing authoritative guidelines for the conduct of autopsies by public prosecutors and medical personnel . In its introduction , it noted that an abridged examination or report was never appropriate in potentially controversial cases and that a systematic and comprehensive examination and report were required to prevent the omission or loss of important details :

“ It is of the utmost importance that an autopsy performed following a controversial death be thorough in scope . The documentation and recording of those findings should be equally thorough so as to permit meaningful use of the autopsy results . ”

NORP In part CARDINAL(c ) , it stated that adequate photographs were crucial for thorough documentation of autopsy findings . Photographs should be comprehensive in scope and confirm the presence of all demonstrable signs of injury or disease commented upon in the autopsy report .