Preliminary objection rejected (victim);No violation of Art. 3;No violation of Art. 8;Not necessary to examine Art. 13

ORG PERSON and PERSON are both NORP nationals . Bata GPE was born on DATE , PERSON on DATE .

ORG At the time of the events complained of PERSON lived in PERSON ( near GPE ) with her son , who according to her passport was born there in DATE . She has since moved to GPE .

ORG arrived in the GPE in DATE , claiming status as a refugee .

The GPE authorities did not recognise her as such but eventually , on CARDINAL DATE , issued her with a residence permit ( vergunning tot verblijf - see paragraph DATE below ) for " cogent reasons of a humanitarian nature " ( klemmende PERSON aard ) . This permit also applied to her son .

ORG A birth certificate issued by the District Commissioner and ORG , Deaths and Marriages ( commissaire de zone et officier de l’état civil ) of GPE of GPE states that PERSON was born on DATE as the daughter of a Mr Mbemba ( no first name given ) and PERSON .

It is accepted by those appearing before the ORG that PERSON ’s parents are dead . The date of her father ’s death has not been communicated to the ORG , although it appears to have been some time before the events complained of . The ORG assume that her mother died in GPE , GPE , in DATE . However , death certificates were produced neither before ORG nor , apparently , before the GPE judicial or administrative authorities .

ORG The applicants claim that ORG is the sister of PERSON ’s mother .

When interviewed by the immigration authorities in relation to her claim of refugee status , in DATE , ORG stated that she had a sister called PERSON who was then DATE .

ORG The Commission ’s file contains a photocopy of a note which is claimed by the applicants to be a request by PERSON ’s mother to ORG to take care of PERSON . This note is headed Testament and handwritten in the PERSON language on a page apparently torn out of a school exercise book . It reads as follows :

" I , NSONA NDOMBE ,

If DATE I die , please entrust my daughter PERSON to the care of my little sister NSONA BATA .

Thank you .

GPE , DATE . "

ORG It is not established whether , apart from the alleged ties between PERSON and PERSON , PERSON has any other living relatives .

According to information obtained by the ORG , before her journey to the GPE ( see paragraph CARDINAL below ) , she lived with a PERSON PERSON and PERSON in GPE .

PERSON is claimed to be a sister of a business relation of PERSON ’s father , who had allegedly taken care of PERSON on the death of her mother and subsequently entrusted her to LOC and her family . The Government further state that Mr Mbemba and PERSON do not know any living relatives of PERSON ’s , that they do not know Bata GPE , and that they are not acquainted with the note dated DATE allegedly written by PERSON ’s mother .

A publication entitled " PERSON was QUANTITY binnen " ( Gather in the washing ) by ORG ( published in DATE ) suggests that Mr GPE and PERSON may simply be PERSON ’s parents .

Francine , PERSON and the latter ’s son arrived at FAC on DATE on ORG flight SR CARDINAL from GPE .

Bata Nsona ’s passport - which had been issued in GPE DATE before - listed PERSON as one of ORG children . However , on inspection by ORG ( ORG marechaussee ) border guards , it was found that the passport had been tampered with : PERSON ’s name and photograph had not been entered into it by the proper authority . When confronted with this finding , PERSON claimed that PERSON was her niece but she proffered no documentary evidence to prove this .

It appears that ORG was arrested on suspicion of having committed forgery but later released .

ORG Other NORP nationals arriving on the same flight included a Ms M.M. According to a note made by an officer of ORG , copies of documents relating to her were found in ORG luggage . PERSON was found to be in possession of identity documents in the names of different persons .

Bata Nsona and her son were allowed to enter the GPE on DATE since they held valid residence permits .

As PERSON did not have a provisional residence visa ( machtiging tot voorlopig verblijf ) or even a travel visa ( reisvisum ) ( see paragraphs CARDINAL and CARDINAL below ) , she was refused entry and taken to the airport hotel at GPE , where she stayed under the supervision of ORG .

Bata Nsona was informed by ORG that she would have to accompany PERSON back to PERSON , which - as would appear from a note by a ORG officer – she agreed to do . Seats for her and PERSON had already been reserved on a flight on DATE to GPE , from where they would fly on to GPE DATE , tickets having been provided by ORG .

ORG On DATE ORG filed an application to the head of the local police at PERSON on behalf of PERSON for a residence permit as a foster child and for compelling humanitarian reasons .

She also applied to ORG ( kantonrechter ) of PERSON to be appointed as PERSON ’s temporary guardian ( tijdelijk voogdes ) and another person to be appointed as temporary co - guardian ( tijdelijk toeziend voogd ) . It is common ground that ORG , having been informed that PERSON had been made to leave the country for the time being , suspended its decision on this application .

ORG On DATE PERSON returned to FAC requesting that PERSON be allowed to accompany her to her home in PERSON , claiming that there was nobody in PERSON who could take care of her . She also stated that she would not accompany PERSON back to PERSON .

ORG Also on DATE , at TIME , the ORG lawyer , intending to seek an injunction against the ORG prohibiting PERSON ’s removal , applied for a hearing date for summary proceedings ( kort geding ) before the President of ORG ( arrondissementsrechtbank ) of GPE . The President set the case down for hearing on DATE . At TIME this date was communicated by the ORG lawyer to the lawyer representing ORG GPE ) , who in turn informed ORG .

ORG The responsible official of ORG decided that PERSON would not be allowed to await the outcome of the summary proceedings in the GPE .

ORG On DATE , at TIME , the ORG lawyer was informed by telephone by an officer of ORG that at that time PERSON was boarding a ORG flight for GPE . The lawyer informed this officer of the date set for the hearing in summary proceedings before the President of ORG . The officer , however , replied that he was bound to remove PERSON from GPE territory unless instructed otherwise by ORG . The aircraft took off at TIME

ORG The Government state that ORG , assuming that the applicants and PERSON had been travelling together - copies of documents relating to PERSON having been found in ORG luggage ( see paragraph CARDINAL above ) - had entrusted PERSON to Ms GPE , who was also being removed and had agreed to accompany PERSON . PERSON and PERSON were both booked on a flight from GPE to GPE on DATE .

The applicants later claimed before the GPE courts that the person in whose company PERSON arrived at GPE was not PERSON but someone else . In any event , it is common ground that this person left FAC before Francine . The applicants have stated before the ORG that she absconded DATE .

ORG Seeking to prevent PERSON ’s being sent on from GPE , the applicants’ lawyer requested the President of ORG of GPE on DATE to bring forward the date of the hearing . The hearing took place DATE at TIME There being no longer any point in obtaining an injunction preventing PERSON ’s removal from the GPE , the lawyer sought an order addressed to the ORG to allow PERSON to return and subsequently remain in the GPE pending a decision by the administrative authorities on a request for a residence permit .

ORG On DATE , following a request by the applicants’ lawyer not to send ORG , the NORP authorities decided to postpone her departure from GPE .

ORG Also on CARDINAL DATE the President of ORG of The Hague gave judgment finding that the applicants had no locus standi . PERSON being a minor , she had to be represented by a guardian , which ORG was not .

Noting that no death certificate of PERSON ’s mother had been submitted , he found that the document of CARDINAL DATE allegedly containing the last will of ORG mother in respect of the care of PERSON ( see paragraph CARDINAL above ) did not contain any concrete indication that Bata Nsona had in fact been entrusted with the custody of PERSON . Furthermore , ORG could have applied to ORG for appointment as temporary guardian DATE ; there were no exceptional circumstances on the basis of which the ORG requests should be held admissible .

In an obiter dictum the President extensively discussed the substance of complaints adduced by the applicants .

He did not consider ORG ’s removal to be unlawful , since the application for a residence permit made on her behalf had no reasonable prospects of success in any event . Nor did he find it established that PERSON had been made to travel unaccompanied .

In so far as the applicants had relied on LAW ( article CARDINAL ) , there were no substantial grounds on the basis of which the existence of a genuine and personal risk of inhuman treatment in PERSON had to be assumed .

It had not been suggested , nor did it appear , that the applicants were in a position to rely on the ORG ’s policy with regard to foreign foster children .

Finally , he did not consider that ORG ’s removal gave evidence of disproportionate harshness . PERSON had apparently been able to support herself either in GPE or in PERSON from the death of her mother until she left for the GPE . Not finding it established that in these countries her care was not assured , the President found no compelling humanitarian reasons on the basis of which she should be allowed to reside in the GPE .

ORG On DATE the applicants appealed against this judgment to ORG ( gerechtshof ) of GPE .

ORG On DATE the applicants’ lawyer was informed by the NORP border police that PERSON ’s departure was scheduled for DATE and that this would only be cancelled if evidence were submitted that she would not be met upon her arrival in PERSON , or if confirmation were received that she would be granted entry into the GPE .

ORG On DATE , PERSON , who until that moment had stayed in a PERSON nursery , left GPE on a ORG flight to GPE , where she arrived on DATE . It appears that she travelled alone .

On DATE FAC at GPE requested ORG to meet her at FAC . This request was later withdrawn , since the GPE authorities had been informed that PERSON would be met there by a Mr GPE , the external relations manager of ORG and a business relation of ORG , whom ORG had contacted apparently of its own motion .

ORG PERSON arrived in GPE on DATE at TIME

Subsequent events are described in a letter dated DATE from the Minister for ORG ( Minister PERSON ) to the Minister of Justice ( Minister PERSON ) . The Minister for ORG stated that due to communication problems with the FAC in GPE it had not been possible to inform the ORG in time about PERSON ’s arrival in GPE and that therefore no employee of the ORG had been present at her arrival , but that she had been met by PERSON . Since Mr ORG could not reach PERSON ’s family or any of her acquaintances , he had entrusted her to the NORP immigration authorities . In TIME CARDINAL DATE the Director of ORG had requested a member of his staff to take PERSON to the address which she had given , as no member of her family had contacted the immigration authorities . After having spent TIME at the home of this immigration officer , PERSON had been taken to the address of PERSON and PERSON ( see paragraph CARDINAL above ) , where she had lived since then . The Minister added that PERSON also stayed with her grandmother from time to time .

ORG Also on DATE the head of the local police in PERSON informed PERSON of the refusal of her application on behalf of PERSON for a residence permit . The application could not be considered , on the formal ground , inter alia , that the form had not been signed by PERSON herself or by her legal representative , the question of custody over PERSON being still pending before ORG .

ORG filed an administrative appeal ( administratief beroep - see paragraph CARDINAL below ) against this decision to the Deputy Minister of Justice ( Staatssecretaris van Justitie ) on DATE .

ORG In his letter to the Minister of Justice ( see paragraph CARDINAL above ) , the Minister for ORG stated that a meeting took place at FAC at GPE on DATE between ORG officials and PERSON . PERSON was accompanied by Mr PERSON and PERSON . She was reported to be in good health and attending school .

ORG By this time the case had been widely reported in the press .

By a notarial deed dated DATE , CARDINAL GPE nationals founded the PERSON terug ( " ORG for the return of Francine " ) , the purpose of which was " to further the interests " of PERSON , inter alia by " promoting her immigration in the GPE " .

ORG On DATE the applicants and the PERSON terug applied under section CARDINAL:CARDINAL ( CARDINAL ) of LAW ( PERSON ) to the President of ORG for interim measures including an order to grant PERSON immediate provisional access to the GPE .

On DATE the Acting President of ORG held that the PERSON terug lacked the required standing but found the applicants’ application admissible . However , he rejected the application as ill - founded . The Acting President held that PERSON or her legal representative should apply for a provisional residence visa in the normal way . He did not find it established that it was unreasonable to require her to await the decision on this application in PERSON .

ORG On DATE ORG applied to the Minister for ORG , via the head of the local police , for a provisional residence visa for PERSON ( section CARDINAL of LAW and section CARDINAL of LAW ( PERSON ) of CARDINAL DATE paragraph CARDINAL below ) .

ORG On DATE the Deputy Minister declared the administrative appeal against the refusal of ORG application for a residence permit for PERSON ( see paragraph CARDINAL above ) well - founded and annulled the decision of the head of police . PERSON was given DATE to arrange for the appointment of a guardian for PERSON ; once that was done , the application would once more be considered .

ORG On DATE an official of ORG visited PERSON at the home of PERSON and PERSON , where she was still living , and found her in good health and better spirits than in DATE .

ORG On DATE the applicants’ lawyer lodged an appeal with ORG ) of ORG against the Deputy Minister of ORG ’s decision of CARDINAL DATE ( see paragraph DATE above ) , seeking a decision that PERSON should be allowed to await the outcome of the application proceedings for a residence permit in the GPE .

ORG application for a provisional residence visa for PERSON ( see paragraph CARDINAL above ) was refused on DATE .

ORG The case of PERSON continued to occasion considerable interest in the press throughout DATE . Questions were asked about it in ORG on several occasions .

ORG PERSON arrived in the GPE a second time on DATE , again without a provisional residence visa . The Government state that they made enquiries as to her situation in PERSON . She was allowed to await the outcome of these in the GPE .

ORG It is common ground that on DATE ORG forwarded ORG application to be appointed as ORG ’s temporary guardian and another person to be appointed as temporary coguardian ( see paragraph CARDINAL above ) to ORG for the reason that PERSON now lived within the jurisdiction of the latter court .

The application was granted by ORG on DATE .

ORG The Government state that on DATE the Deputy Minister of ORG decided , partly in PERSON ’s interests , no longer to oppose her residence in the GPE and to instruct the GPE head of police to invite her to apply for a residence permit for the purpose of " residence in the foster family of PERSON " .

Such a permit was applied for on DATE , granted on DATE and issued on DATE .

ORG On DATE the applicants withdrew their appeal against the judgment of the President of ORG ( see paragraph CARDINAL above ) as far as the merits of the case were concerned , maintaining only their claim for costs . On DATE they withdrew their appeal against the decision of the Deputy Minister of Justice ( see paragraph CARDINAL above ) .

ORG The following is a description of the regime governing the admission of aliens to GPE territory applying , at the time of the events complained of , to aliens in general . Binding rules were , and are , laid down in GPE ( Vreemdelingenwet ) , LAW ( Vreemdelingenbesluit ) and PERSON ( Voorschrift Vreemdelingen ) .

ORG Until DATE , the ORG ’s policy was defined in the CARDINAL Aliens Circular ( Vreemdelingencirculaire DATE ) and the DATE Border Guarding Circular ( Grensbewakingscirculaire ) . The competent tribunals ( see paragraphs CARDINAL - CARDINAL below ) have consistently held that it was incompatible with general principles of good governance ( algemene beginselen van behoorlijk bestuur ) to deviate from the policy rules set out in these documents to the detriment of an alien .

ORG LAW was extensively amended by LAW ( Staatsblad ( Official Gazette ) DATE , no . CARDINAL ) which came into force on DATE . To accommodate these amendments a new Aliens Circular was issued , the DATE Aliens Circular ( Vreemdelingencirculaire DATE ) .

ORG Special regimes , not relevant to the present case , applied to citizens of ORG or of the GPE member GPE , to nationals of certain other GPE ( not including PERSON ) under bilateral treaties , and to refugees as defined in LAW A of LAW of DATE relating to ORG - no . CARDINAL , vol . CARDINAL , pp . CARDINAL et seq . ) and LAW relating to LAW DATE ( ORG no . DATE . ORG , pp . CARDINAL et seq . ) .

ORG Under LAW ( CARDINAL ) of LAW , to be allowed access to the GPE an alien had to qualify for admission - that is , either fulfil the requirements of section CARDINAL of LAW ( see paragraph DATE below ) , or possess a residence or settlement permit ( see paragraphs CARDINAL and DATE below ) - and hold a valid passport or equivalent identity document containing a visa if a visa requirement applied ( see paragraph CARDINAL below ) .

ORG An alien who was refused access to GPE territory had to leave the country as soon as possible and could , if necessary , be forcibly removed . If the alien had arrived on board a ship or an aircraft belonging to a shipping company or airline , the alien could be removed by placing him or her on board an outward bound ship or aircraft belonging to the same company or airline ( section CARDINAL of LAW ) .

ORG Under section CARDINAL of LAW taken together with section DATE of LAW , aliens who , upon entering the country , had complied with the required formalities at the border were admitted if and for so long as they conformed with LAW and delegated legislation , had sufficient means to cover the cost of living in the GPE and of the return journey , and did not threaten public peace , public order or national security . The right to admission based on section CARDINAL was a temporary right based directly on the law and therefore not conditional on the grant of any permit . However , in principle , a visa was required ( see paragraph CARDINAL below ) and the duration of the right was limited : to the period of validity of the visa , or to DATE in the case of those aliens not subject to visa requirements .

Subject to certain exceptions not relevant to the present case , to be granted access to the GPE aliens had to hold a valid passport containing a transit visa ( transitvisum ) , valid for DATE , or a travel visa , valid for DATE ( section CARDINAL ( CARDINAL ) of LAW ) .

ORG To obtain access to the GPE with a view to remaining for DATE , aliens who had not already been granted a residence permit must hold a valid passport containing a provisional residence visa ( section CARDINAL ( CARDINAL ) of LAW ) . A provisional residence visa was valid for a period of DATE ( section CARDINAL of LAW ) .

ORG A provisional residence visa could be applied for abroad , through a diplomatic or consular representative , or in the GPE , via the head of the local police . Applications were decided on by the Minister for ORG ( section CARDINAL of the Aliens Ordinance and section CARDINAL of the Sovereign Ordinance of DATE ) after consultation with the Minister of ORG . Applications for such a visa were considered according to the same criteria as those applying to applications for a residence permit , since such a visa would only be issued if the alien concerned was expected to be granted such a permit .

ORG Aliens wishing to reside in the GPE for DATE ( see paragraph CARDINAL above ) had to hold a residence permit ( section CARDINAL of LAW ) . Such a permit was applied for to , and granted by , the Minister of Justice ( LAW ( CARDINAL ) of LAW ) . It was valid for DATE and renewable ( section CARDINAL of the Aliens Schedule ) .

ORG A residence permit could be applied for either in the GPE ( through the head of the local police - section CARDINAL of LAW ) or abroad ( through a diplomatic or consular representative ) . The application had to be submitted by the alien him- or herself or , if he or she was a minor , by his or her legal representative ( LAW ( CARDINAL ) of PERSON ) .

ORG The decision to grant a residence permit was delegated by the Minister of Justice to the head of the local police in certain cases , including cases where the alien applying for a residence permit already held a provisional residence visa .

In principle , a residence permit was refused an alien who did not already hold a provisional residence visa ( DATE Aliens Circular , LAW , para . DATE Aliens Circular , LAW , para . CARDINAL ) .

ORG A residence permit could be made subject to restrictions ( LAW ( CARDINAL ) of LAW ) .

ORG An alien holding a valid residence permit was allowed to re - enter GPE territory after having left it .

ORG The Minister of ORG could grant a settlement permit ( vergunning tot vestiging ) ( LAW of LAW ) ; such a permit was normally granted only after the alien had been legally resident in the GPE for DATE .

After such an initial period , a settlement permit would be granted unless there was no reasonable certainty that the alien would be able to meet the costs of living , or unless he or she had committed serious breaches of public peace or public order or constituted a serious threat to national security .

ORG Given the situation obtaining in the GPE with regard to population size and employment , government policy was , and remains , aimed at restricting the number of aliens admitted to the GPE . In general , aliens were only granted admission for residence purposes if :

a ) the GPE were obliged under international law to do so , as in the case of nationals of ORG and GPE member GPE and refugees covered by LAW relating to LAW ; or

b ) this served " essential interests of the GPE " ( wezenlijk Nederlands belang ) , e.g. economic or cultural interests ; or

c ) there were " cogent reasons of a humanitarian nature " .

In addition , aliens who , under this policy , were eligible for admission were in principle expected to have sufficient means at their disposal to cover the costs of living and not to threaten public peace or public order or national security .

These were general rules which did not apply in the same way to all categories of aliens , specific criteria having been developed applicable to certain categories ( DATE Aliens Circular , LAW , para . CARDINAL.CARDINAL.CARDINAL.CARDINAL ; DATE Aliens Circular , LAW , paras . CARDINAL ) .

ORG Specific criteria applied to the admission of aliens in connection with the reunification or establishment of families involving spouses , partners or close relatives of GPE nationals or aliens holding settlement or residence permits . Under these criteria , it was possible that admission could be granted for the purpose of reuniting or establishing a family even if the applicable conditions had not all been met , if there were " cogent reasons of a humanitarian nature " ( DATE Aliens Circular , Chapter BCARDINAL , paras . CARDINAL and CARDINAL ; DATE Aliens Circular , Chapter CARDINAL , para . CARDINAL ) .

Specific conditions also applied to the admission of foreign foster children , i.e. minors DATE who were not GPE nationals , and who were , or were intended , to be cared for in a family other than that of the parents in such a way that the carers in fact replaced the parents . The applicable rules distinguished CARDINAL categories , namely children taken into a foster family with a view to adoption and others . The present case concerns the latter category ( DATE Aliens Circular , Chapter BCARDINAL , para . CARDINAL ; DATE Aliens Circular , Chapter BCARDINAL , para . CARDINAL ) .

The recognised motive for taking on a foster child in this way was a moral obligation of the prospective foster parents vis - à - vis the child , the prospective foster parents normally being close relatives ( grandparents , brothers , sisters , aunts , uncles ) . Additional conditions included the following :

a ) in principle , the prospective foster parents to be a married couple ;

b ) the circumstances to be such that the child could not be cared for by close relatives living in the country of origin except with great difficulty . In principle , this condition would not be met if the child was resident with his or her parents in his or her country of origin in circumstances which , although they reflected less affluence than was enjoyed in the GPE , could be considered normal by the standards of the country in question ;

c ) the prospective foster parents to prove themselves able to provide proper care and upbringing , and to stand surety for the costs caused by the child ’s stay and if necessary his or her return journey ;

d ) documentary evidence to be submitted that the child ’s parents or legal representative , and if necessary the national authorities of the child ’s country of origin , consented to the child ’s staying with the prospective foster parents ;

e ) a medical certificate to be submitted from which it appeared that the child was not suffering from a dangerous infectious disease , nor from a physical or mental disease or deficiency likely to have long - term effects ;

f ) the child ’s passage to the GPE to have been arranged in a responsible way and a provisional residence visa , if required , to have been granted .

However , even if these conditions were met , this possibility was not normally open .

ORG Until DATE , an application for a residence permit for a minor could be filed by the prospective foster or adoptive parents , whether or not they were the minor ’s legal representatives ( DATE Aliens Circular , Chapter BCARDINAL , para . CARDINAL.CARDINAL.CARDINAL ) .

As of that date , the person making such an application in respect of a minor had to be the minor ’s legal representative . If the person applying for a residence permit on behalf of a minor was not the minor ’s legal representative , DATE were allowed to provide for the minor ’s legal representation . That done , the application for a residence permit would be considered ( DATE Aliens Circular , LAW , para . CARDINAL.CARDINAL.CARDINAL.CARDINAL ) .

ORG The Government ’s policy with regard to children arriving at FAC who had been refused access appears from a reply by the then Deputy Minister of Justice , PERSON , to questions asked by members of parliament about the present case ( see paragraph CARDINAL above ) .

If refugee status was claimed , the child was accommodated in the GPE and allowed to await the outcome of proceedings .

If no refugee status was claimed , arrangements were made for the child to be returned . If the child had arrived in the company of an adult , he or she was offered the opportunity to accompany the child on the return journey . Otherwise , ORG , acting in consultation with ORG if necessary , would make arrangements for the child to be accompanied on the journey and met in the country of origin . If the child could not be removed immediately , he or she was placed in the care of ORG and accommodated in FAC .

It appeared from the same reply that during DATE access was initially refused to CARDINAL minors , CARDINAL of whom were sent back to where they came from . The other QUANTITY were subsequently admitted .

ORG An administrative appeal may be lodged with the Minister for ORG ( sections DATE of LAW ) .

A further appeal lies to ORG ( section CARDINAL:CARDINAL of LAW , section CARDINALa of LAW ) . No further appeal is allowed ( section FAC of LAW ) .

ORG If the party seeking review is a minor , he or she has to be represented by a legal representative ( wettelijke vertegenwoordiger - see paragraphs DATE and DATE below ) .

ORG An administrative appeal against a refusal of a residence permit , or against the imposition of limiting conditions , may be filed with the Minister of Justice ( LAW ) .

A further appeal lies to ORG ( section CARDINAL:CARDINAL of LAW , section CARDINALa of LAW ) . The procedure is the same as that outlined in DATE and DATE above .

ORG An alien who was refused access either at the border or , having arrived by sea or air , at a port or an airport , could bring summary proceedings against the ORG before the President of ORG . The claim had to be based on the proposition that the refusal constituted a tort ( onrechtmatige daad ) . If the President of ORG accepted that proposition , he could provisionally order that the alien be granted access pending a decision by the competent administrative authorities with regard to an application for a provisional residence visa or a residence permit .

A hearing date was set by the President on an application by the alien ’s lawyer .

The bringing of summary proceedings did not in itself have suspensive effect and the plaintiff was not normally allowed to await the outcome of such proceedings in the GPE ( DATE Border Guarding Circular , LAW ACARDINAL , para . CARDINAL.CARDINAL.CARDINAL ) .

Minors are defined in GPE law as persons who have not yet reached DATE and who are not , and have not been , married ( Article CARDINAL:CARDINAL of LAW ) . They can not independently perform legal acts ( rechtshandelingen ) except in so far as the law determines otherwise ( Article CARDINAL:CARDINAL para . CARDINAL ) ; to do so they must normally be represented by a legal representative .

ORG The determination whether a foreign national is a minor or not is normally made with reference to that person ’s national law ( see the judgment of ORG of CARDINAL DATE , GPE Law Reports - Nederlandse Jurisprudentie , GPE - DATE , no . CARDINAL ) .

ORG A minor ’s parents are normally his legal representatives ( Article CARDINAL para . CARDINAL ) .

DATE . ORG If , for whatever reason , the parents can not act as such , a guardian and a co - guardian ( toeziende voogd ) must be appointed ( Articles CARDINAL:CARDINAL and CARDINAL of LAW ) . In cases not involving the divorce of the minor ’s parents or the annulment of their marriage , or the removal of authority from a parent or guardian for reasons of incompetence or abuse , the competent court is ORG ( Articles CARDINAL:CARDINAL , CARDINAL para . CARDINAL , CARDINAL:CARDINAL ) .

The ORG appoints a guardian and a co - guardian of its own motion or on an application by the minor ’s relatives , ORG ( PERSON ) , the child ’s debtors or other interested persons ( LAW .

ORG The determination whether a minor who has a foreign nationality is legally represented is normally made with reference to the law of the State of the minor ’s habitual residence ( LAW concerning the powers of authorities and the law applicable in respect of the protection of infants ( see paragraph CARDINAL below ) , applied by analogy ) .

ORG A temporary guardian and co - guardian may be appointed , inter alia , if it is unclear whether the minor ’s parents are alive or whether there is a guardian or if their whereabouts are unknown ( Article CARDINAL ) .

ORG In the above cases , the competent ORG is that within whose district the minor is domiciled or has his or her habitual residence , or , if the minor does not habitually reside in the GPE , ORG ( Articles CARDINAL and CARDINALa of the Code of Civil Procedure - Wetboek van Burgerlijke Regtsvordering ) .

However , if the minor is not a GPE national , the GPE courts must decline jurisdiction if the case has insufficient connection with the GPE legal order ( onvoldoende aanknoping met de rechtssfeer van GPE - at the relevant time , LAW para . CARDINAL of the Code of Civil Procedure ) .

ORG LAW concerning the powers of authorities and the law applicable in respect of the protection of infants of DATE ( ORG no . DATE . CARDINAL , pp . CARDINAL et seq . ) - to which the GPE is a party - defines " infants " ( mineurs in the NORP text , which is authentic ) as " any person who has that status , in accordance with both the domestic law of the State of his nationality and that of his habitual residence " ( LAW ) .

ORG LAW provides that the judicial or administrative authorities of ORG the habitual residence of an " infant " have power to take measures directed to the protection of his or her person or property . In so doing they apply their own law ( LAW .

However , Article CARDINAL provides that a relationship subjecting the " infant " to authority which arises directly from the domestic law of the State of the " infant"‘s nationality shall be recognised in all the contracting GPE , including the State of the " infant"‘s habitual residence .

ORG ( PERSON ) has construed LAW in such a way that it does not prevent the GPE authorities - if the GPE are GPE infant"‘s habitual residence - from taking what measures are necessary for his or her protection and from applying their domestic law ( see its judgments of DATE , GPE DATE , no . CARDINAL , and DATE , GPE DATE , no . CARDINAL ) .


Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On an unspecified date in DATE ORG and Highways expropriated a plot of land belonging to the applicant in GPE in order to build ORG . The authorities paid him the value of the land , assessed by a committee of experts , when the expropriation took place .

Following the applicant ’s request , on DATE ORG awarded her additional compensation plus interest at the statutory rate applicable .

On DATE ORG upheld that judgment .

On DATE the amount of MONEY ( TRL ) was paid to the applicant .

The relevant domestic law and practice are set out in the case of ORG v. GPE ( judgment of DATE , Reports of Judgments and Decisions DATE , § § CARDINAL ) .


Violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-3 - Trial within a reasonable time);No violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review;Speediness of review);Violation of Article 5 - Right to liberty and security (Article 5-4 - Procedural guarantees of review)

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in the town of GPE in GPE .

At TIME on DATE the applicant and his accomplice were arrested when attempting to rob a private shop . The applicant had tied up a shop attendant and the guard . His accomplice had threatened the staff with a gun . The police had to use physical force against the applicant , who was pacified and was then taken to a police station .

The applicant complained about the use of force against him . A medical report dated DATE indicated that he displayed linear joining bruises on his left hip and QUANTITY oval bruises on the right hip . The expert concluded that the injuries could have been inflicted with a man ’s boots . The town prosecutor refused to initiate criminal proceedings against the officers . The inquiry was closed and reopened on several occasions DATE .

On an unspecified date an investigating or prosecuting authority decided that the applicant should be kept in detention pending the investigation of the attempted armed robbery . On DATE the applicant was informed of his right to legal assistance . As can be seen from the notification record , the applicant waived the right to legal assistance for reasons “ unrelated to financial hardship ” and refused to sign the record . His accomplice also waived his right to legal assistance ; the record was signed by a lawyer .

On an unspecified date the criminal case against the applicant was committed for trial at ORG in GPE . On DATE ORG rejected an application by the defence for the applicant ’s release , noting that he was charged with a particularly serious offence and was not a resident of ORG . At the same hearing the court decided that the case file should be returned to the prosecutor “ in view of the violation of the applicant ’s right to legal assistance at the pre - trial stage of the proceedings ” . On DATE ORG decided , without giving any reasons , that the applicant should remain in custody .

On DATE ORG extended the applicant ’s detention as follows :

“ LAW entered into force on DATE ... and requires that the detention issue be determined by a court ... [ The applicant ] is charged with a particularly serious offence , has pleaded not guilty , has no permanent place of residence in ORG and , therefore , might abscond and obstruct the proceedings ... The court decides that [ the applicant ’s ] detention should be extended to DATE . ”

The applicant appealed . On DATE , for unspecified reasons , ORG adjourned the examination of the applicant ’s appeal against that decision ( see also paragraph CARDINAL below ) .

On DATE ORG ordered another extension , to DATE , in the following terms :

“ While the court has taken note of the [ applicant ’s ] state of health and disability , it can not release him because he is charged with a violent and particularly serious offence , has pleaded not guilty and has no permanent place of residence in ORG . He might evade trial , continue his criminal activity and obstruct the proceedings ; the victims fear to attend hearings . ”

On DATE ORG again adjourned the examination of the applicant ’s appeal against the detention order of DATE because the applicant had not been brought to the appeal hearing . On an unspecified date in DATE ORG upheld the detention order .

On an unspecified date , CARDINAL of the victims of the armed robbery of DATE made a written statement indicating that she would not participate in the trial hearings because she had received a letter containing threats . CARDINAL other persons made written statements indicating that they refused to participate in the trial hearings for unspecified reasons . In DATE CARDINAL unsigned type - written letters , apparently addressed to CARDINAL victims , were admitted to the criminal case file . They read as follows :

“ I urge you to be honest at the trial hearing as regards what happened on DATE , that is , the ORG actions . This is in your best interest . I do not give any details since you know everything and saw everything . ”

On DATE and DATE ORG extended the applicant ’s detention , referring to the absence of residence registration and permanent place of residence in GPE , the gravity of the charges concerning use of violence and firearms . On both occasions , the court also mentioned that several hearings had to be adjourned because the victims had not attended fearing for their lives . On DATE and CARDINAL DATE ORG heard the applicant ’s counsel and issued further extensions on the same factual and legal grounds , also expressly referring to the above - mentioned letters . It appears from the above court decisions that the applicant was ill and , for that reason , did not attend the hearings .

From DATE to CARDINAL DATE the applicant was kept in a psycho - neurological dispensary and subsequently received in - patient treatment in a hospital .

On DATE ORG held an appeal hearing concerning the detention order of DATE . The court refused to hear the applicant in person and endorsed the reasoning of the detention order .

The applicant subsequently lodged a request to be released . On DATE ORG rejected it and extended his detention until DATE , reproducing verbatim the text of the earlier extension orders . The applicant was represented by counsel at the hearing . It appears that the applicant appealed and that ORG dismissed his appeal on an unspecified date in DATE .

On DATE the trial judge granted the applicant ’s request for a medical examination and ordered that an expert from the ORG psychiatric hospital be designated to carry out a forensic psychiatric examination of the applicant . On DATE the applicant was transferred from ORG remand centre to GPE for the psychiatric examination . The examination was not carried out , for unspecified reasons ( see also paragraph CARDINAL below ) . It appears that the applicant remained in GPE for some time .

On DATE the ORG extended the applicant ’s detention until DATE . The applicant did not attend the hearing . Having agreed that the hearing be held without the applicant , his counsel made short submissions to ORG . On DATE ORG upheld the detention order in the following terms :

“ ... [ the applicant ] supplied no evidence in support of his argument that his state of health was incompatible with further detention in the remand centre and that he needed medical treatment ...

... his right to be present at the first - instance hearing was not violated because he had been transferred to a hospital for a forensic examination . ”

The applicant and his lawyer did not attend the appeal hearing .

From DATE to CARDINAL DATE the applicant was kept in a psycho - neurological dispensary .

In the meantime , on DATE ORG extended the applicant ’s detention until DATE . His counsel attended the hearing and made short submissions to ORG . As can be seen from the hearing record , in reply to a question from the judge the applicant ’s counsel agreed that the hearing could proceed without the applicant .

On DATE the applicant was returned to ORG remand centre . The President of ORG was informed accordingly on DATE .

On DATE ORG rejected the applicant ’s complaint of procrastination in the proceedings and upheld the detention order of DATE as follows :

“ ... the grounds for extending [ the applicant ’s ] detention still obtain ... The proceedings were adjourned on several occasions for valid reasons ... The applicant ’s disability can not justify his release . ”

The applicant and his counsel did not attend the appeal hearing .

On DATE the trial judge heard the prosecutor and the applicant ’s counsel , rejected the latter ’s challenge to the prosecutor and extended the applicant ’s detention until DATE . The judge held as follows :

“ It is noted that [ the applicant ] has been accused of a particularly serious violent offence causing damage to the GPE life and limb and committed with the use of weapons . It is also noted that the expert report has not been issued ; that [ the applicant ] has no permanent or registered residence in GPE ; and that several adjournments have been ordered on account of the GPE failure to appear before the court out of genuine fear for their life and limb . Since the circumstances justifying detention persist , the court has every reason to believe that [ the applicant ] would evade justice , continue his criminal activity , interfere with the course of proceedings and put pressure on the victims . ”

The applicant did not attend the hearing .

NORP In a procedural order of DATE , the trial judge noted that his order of CARDINAL DATE ( see paragraph CARDINAL above ) had not been executed for unspecified reasons , and ordered that the applicant be transferred to another remand centre to enable the authorities to prepare the expert report ordered by the court .

DATE the applicant was kept in the remand centre or a hospital in GPE . In the meantime , on DATE ORG upheld the detention order of DATE as follows :

“ ’s personality .... The court rejects [ the applicant ’s ] argument about the excessive length of his detention because the proceedings are pending and a forensic examination is required . ”

NORP In DATE the applicant sought the appointment of legal - aid counsel for the trial . In DATE lawyer PERSON was appointed by ORG . He represented the applicant until in DATE , when the applicant dismissed him . Another lawyer was appointed , whom the applicant also dismissed . Many hearings were adjourned in DATE and DATE because the presiding judge was involved in other proceedings or was on leave . In DATE the proceedings were suspended , in particular because the applicant had been ill ( after an attempted suicide at a court hearing in DATE ) . It appears that the applicant hurt himself with some kind of needle or spike .

By a letter of DATE ORG wrote to the President of ORG indicating that the trial had been unreasonably long and urging him to speed it up . It was noted that there had been unjustified delays in the proceedings in DATE .

By a judgment of DATE ORG convicted the applicant of robbery and possession of weapons , and sentenced him to CARDINAL years’ imprisonment , to be counted from DATE .

On DATE ORG examined the applicant ’s request for early release . Noting that he had already served most of the prison term and had a permanent place of residence , the court ordered his release .

According to the applicant , during his detention in ORG remand centre no . CARDINAL pending trial he began a hunger strike in DATE . Allegedly , he was placed in a punishment cell , where it was cold . During TIME a search was carried out in the cell , which he shared with several other detainees . The guards hit the detainees , including the applicant , with rubber truncheons . On CARDINAL and DATE the prison doctor refused to record the injuries . On DATE the applicant was taken to a hearing in ORG , where he told the guards that he had swallowed a razor blade . This was true . The applicant explained that his intention had been to gain access to an “ independent ” medical professional in order to have his earlier injuries recorded .

The applicant was then taken to the city hospital where a trauma specialist observed linear blue bruises in the area of the shoulder blades . On the discharge certificate and the trauma card the trauma specialist concluded that the applicant had recently sustained bruises to the soft tissues of the thorax ( front and back ) and numerous oval bruises to the back . On or around DATE the applicant asked his counsel to lodge a complaint about the unjustified use of force .

According to the ORG , DATE the applicant did not seek any medical assistance in the medical unit of the remand centre . Nor did he make any complaint during DATE checks carried out by the staff of that unit . On DATE the applicant was taken from the courthouse to a hospital after swallowing a razor blade . As he also complained of chest and stomach pain , he was examined by a doctor . The applicant was issued with a certificate confirming thorax contusions . The certificate did not contain any detailed description of the injuries . On DATE the applicant lodged a complaint about ill - treatment . The ORG acting deputy prosecutor supervising detention facilities was instructed to carry out a preliminary enquiry .

Following the applicant ’s complaint , on DATE a refusal to prosecute the remand centre officers was issued for lack of a criminal offence / event .

It appears that the refusal of CARDINAL DATE was revoked in DATE because the applicant had lodged a new complaint . In the resumed inquiry several detainees and remand centre officers were interviewed . The prison medical officer stated that the records DATE did not mention any complaint from the applicant . The trauma specialist of the hospital stated that he had examined the applicant on DATE in the presence of a surgeon and that he was not able to describe the injuries , which had been recorded on the “ trauma record card ” at the time . This card had been handed over to the convoy officers .

A medical expert report was commissioned on DATE . In a report of CARDINAL DATE the expert stated that he could not determine the nature and origin of the injuries but considered that they could not be classified by national standards as “ causing any damage to the health ” .

On DATE the deputy prosecutor issued a decision refusing to initiate criminal proceedings against the staff of the detention facility on charges of abuse of authority by a public official ( Article CARDINAL of LAW ) . The deputy prosecutor held as follows :

“ As alleged by the applicant during his initial interview , in TIME prison guards carried out a search in his cell and somebody inflicted several blows on his back with a rubber truncheon ...

[ CARDINAL people ] , the applicant ’s co - detainees at the time , stated that during the search the prison officers had been rude , and had taken the detainees into the lobby and placed them in another cell . They had heard the officers hit someone , but had not seen anything . They had not applied for medical assistance or examination in the medical unit of the detention facility .

CARDINAL on - duty or other staff members , stated that no cell search had been carried out during TIME ; no restraints had been used against the applicant or any other detainee . The detainees had lodged complaints to slander staff members in order to obtain a better detention regime or to intimidate the staff .

The information provided by the medical unit and the security unit indicates that the applicant did not seek medical assistance or examination , that no cell search was carried out , that no restraints were used against the detainees and that no relevant record was drawn up ... The applicant could not name any of the officers who had allegedly beaten him up ... The detainees interviewed did not see any officer beat the applicant . No force or restraints were used against the detainees .

Since no medical record had been drawn up in the city hospital , the forensic expert could not determine the timing or origin of the injuries in the absence of information concerning the morphological features of the injuries . ”

The applicant sought judicial review of the above refusal to prosecute . On DATE ORG heard the parties and upheld the prosecutor ’s decision . It held as follows :

“ ... [ CARDINAL people ] , the applicant ’s co - detainees , heard and saw somebody being beaten up and threatened with dogs ... Certain belongings were removed from the cell ... The applicant stated that the prison officers had beaten up the detainees , then removed them from the cell and carried out the search ...

The dog handler at the detention facility stated that she had not taken part in any cell search on TIME ; instead , she had been called to zone no . CARDINAL where detainees were making a noise . When she got there , she remained in the lobby . Prison officers took some detainees out of their cells to have them tested for alcohol intoxication ...

The officer in charge of the locker - room stated that on CARDINAL or DATE no GPE belongings had been taken out of any cell or placed in the locker - room for safekeeping ...

The refusal to prosecute is lawful and properly reasoned , being supported by the evidence gathered during the inquiry . The applicant has not raised before the court any argument capable of casting doubt on the findings made by the prosecutor . The applicant has not submitted any further material or request , for example , to call other witnesses or carry out investigative measures . The presence of injuries on his body is not the result of the use of force against him in TIME . The applicant first sought medical assistance in a hospital on DATE . His cellmates did not apply for medical assistance . ”

The applicant appealed . Having heard a representative of the prosecutor ’s office , on DATE ORG upheld the judgment of DATE , endorsing the reasoning of ORG . However , the appeal court concluded that there was “ no corpus delicti in the actions of the officers of the remand centre ” .

In DATE the applicant brought civil proceedings , claiming the outstanding amount of his disability pension . By a judgment of CARDINAL DATE ORG rejected his claims . On DATE ORG upheld that judgment .

NORP Under LAW of LAW ( Federal Law no . CARDINAL of DATE ) , physical force may be used against a suspect or an accused in a detention facility in order to put an end to an offence or to resistance to lawful orders issued by public officials , if other means prove ineffectual . Rubber truncheons may be used to stop a detainee assaulting a public official , to put an end to mass disorder or breaches of prison rules committed in a group , to put an end to unlawful actions on the part of the detainee if he resists a lawful order , or to prevent him from causing damage to others ( section CARDINAL ) . Handcuffs may be used to put an end to unlawful actions on the part of the detainee if he resists a lawful order , or to prevent him from causing damage to himself or others ( ibid . ) .

Article CARDINAL of the ORG provides for judicial review of a decision or ( in)action on the part of an inquirer , investigator or prosecutor , which has affected constitutional rights or freedoms . The judge is empowered to verify the lawfulness and reasoning of the decision/(in)action and to grant the following forms of relief : ( i ) to declare the impugned decision/(in)action unlawful or unreasoned and to order the respective authority to remedy the violation ; or ( ii ) to reject the complaint .

In its ORG of CARDINAL DATE ORG of GPE considered that the above judicial review proceedings should not prejudge issues which could or the legal classification of the events ( § QUANTITY of the Resolution ) . As regards a refusal to institute criminal proceedings , a judicial - review court should verify compliance with the procedure for dealing with a complaint about a committed or planned crime , to verify whether the refusal was taken by a competent authority or official and whether it was based on relevant legal grounds ( § CARDINAL ) . When declaring an official ’s decision or ( in)action unlawful and/or unreasoned , the judicial - review court should indicate that the official should remedy the shortcoming identified by the court . However , the court is not empowered to determine which actions should be taken by an investigating authority or official , or to annul or require annulment of their decision ( § CARDINAL ) .

For a summary of the applicable national legislation relating to detention on remand , see the ORG ’s judgment in the case of PERSON v. GPE ( no . CARDINAL , § § CARDINAL , ECHR DATE ) .

The instrument of ratification of the Convention deposited by GPE on DATE contained the following reservation :

“ In accordance with LAW , GPE declares that the provisions of LAW and CARDINAL shall not prevent ... the temporary application , sanctioned by the second paragraph of point CARDINAL of LAW of GPE , of the procedure for the arrest , holding in custody and detention of persons suspected of having committed a criminal offence , established by LAW paragraph CARDINAL , LAW paragraph CARDINAL , ORG CARDINAL , CARDINAL , DATE , CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the RSFSR Code of Criminal Procedure of CARDINAL DATE , with subsequent amendments and additions ... ”

On DATE a new NORP Code of Criminal Procedure entered into force , replacing LAW DATE .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Fair hearing);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

David Thór Björgvinsson;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano;Zdravka Kalaydjieva

The applicants - Mr Blagota Barać , Mr PERSON , Mr PERSON , Mr PERSON , PERSON , Mr PERSON , Mr Ranko Tomašević , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , Mr PERSON , and Mr PERSON - are all LOC nationals who were born in DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , DATE , and DATE respectively and live in GPE .

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

On DATE the applicants filed a claim for compensation ( isplata zimnice ) against their employer .

On DATE ORG ( PERSON ) in GPE ruled in their favour , awarding them MONEY ( ORG ) each , plus legal costs totalling ORG CARDINAL .

On DATE ORG ( PERSON ) in GPE overturned the previous judgment and rejected the ORG claim , relying solely on the Act on Changes and LAW to LAW ( Zakon o izmjenama i dopunama PERSON , hereinafter “ LAW ” ) . At the same time , the applicants were ordered to pay jointly to their employer LAW for legal costs . The applicants received this judgment on DATE at earliest .

On DATE ORG ( PERSON ) in GPE rejected the ORG appeal on points of law on procedural grounds ( revizija se odbacuje ) .

On DATE ORG ( Ustavni sud ) declared LAW unconstitutional ( see paragraph CARDINAL below ) .

On DATE that decision was published in Official Gazette no . CARDINAL ( NORP list br . CARDINAL ) , and thereby the said LAW ceased to be in force ( see paragraph CARDINAL , in particular LAW therein , and paragraph CARDINAL below ) .

The relevant provisions of the LAW provided as follows :

“ When it is established that an LAW [ ... ] is not in accordance with LAW [ ... ] that LAW [ ... ] ceases to be in force on DATE when ORG decision is published in ORG . ”

“ [ Such an ] Act [ ... ] can not be applied to matters ( odnosi ) which arose before DATE when the decision of ORG was published unless a final decision in the particular matter was rendered before DATE . ”

“ Those whose rights have been violated by final decisions rendered on the basis of an Act ... which ORG established was not in accordance with LAW ... have the right to request the body in charge to change the final decision [ in question ] .

A request to have [ such a ] decision changed shall be submitted within DATE when the decision of ORG was published in ORG . ”

“ If the consequences of the implementation of the [ unconstitutional ] Act ... can not be removed by having the impugned decision changed , ORG can determine that the consequences be removed by restitutio in integrum , compensation , or in some other way . ”

The relevant part of the ORG reads as follows :

“ It has been established that LAW ( ORG , no . CARDINAL ) is not in accordance with LAW and it shall cease to exist on DATE when this decision is published .

The Decision specified that the reason for declaring the above Act unconstitutional was that it had not been adopted in ORG by an absolute majority of MPs , as required by LAW .

The Decision was published on DATE .

The Government submitted CARDINAL decisions of ORG , rendered in DATE , DATE and DATE , respectively , on the basis of Articles DATE and CARDINAL of LAW DATE . In all CARDINAL decisions ORG , in rejecting other PERSON requests , had held that Article CARDINAL actually provided for an individual the right to request the reopening of proceedings in which an impugned decision had been rendered .

In particular , in its decision of DATE ORG had rejected an initiative to assess the constitutionality of LAW .

In DATE ORG rejected a claimant ’s request to amend a decision rendered by ORG in DATE , which first - instance decision had been based on a provision which was later , in DATE , declared unconstitutional .

NORP In DATE ORG rejected a claimant ’s request to remove the consequences he had allegedly suffered before DATE on account of the implementation of a decision of ORG , the decision having been declared unconstitutional in DATE .

In the latter CARDINAL decisions , the PERSON requests were rejected as they had failed to previously request the reopening of the proceedings in which the impugned decisions had been rendered .


Violation of Art. 6-1;Violation of Art. 13+6-1

Ganna Yudkivska;Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

The applicants were born in DATE , CARDINAL , DATE , DATE and DATE respectively and live in the village of GPE near GPE .

On DATE the second , third , fourth and fifth applicants and the son of the second and third applicants , PERSON , were caught by the police when attempting to transport stolen fruit . The police officers ordered the second applicant who was driving the cart with the stolen goods to bring the goods to the police station . He did not comply and drove the cart away . The remaining applicants and Mr R.R. went home .

On DATE the third and fourth applicants and Mr R.R. were questioned in connection to the theft , admitted to it and stated that the fifth applicant had also participated in the theft . The second applicant was questioned and confessed to the offence on DATE .

NORP Apparently these questionings were carried within the framework of police investigation ( дознание ) no . CARDINAL/CARDINAL .

On DATE a police officer from the GPE district police department proposed to the prosecution authorities to initiate preliminary investigation ( предварително производство ) for theft against the second , third , fourth and fifth applicants and Mr R.R. He stated in his report that the fifth applicant had not been questioned as he was hiding .

Thereafter the case remained dormant until DATE .

On DATE a witness was questioned and on DATE an expert opinion was commissioned .

On DATE the second , third , fourth and fifth applicants and PERSON ORG were questioned as suspects ( уличени ) under police investigation no . DATE and were charged with theft on the basis of the materials from that police investigation .

NORP In DATE the case was brought to ORG , which on DATE remitted it back to the prosecution authorities because of procedural breaches .

On an unspecified date thereafter the charges against Mr R.R. were dropped .

On an unspecified date in DATE or DATE the case was again brought to ORG .

On DATE the second , third , fourth and fifth applicants concluded a plea bargain agreement and were sentenced to DATE imprisonment suspended for DATE . On DATE the agreement was approved by ORG .

The first applicant did not take part in the above events and was never a party to the criminal proceedings .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE , GPE . The respondent Government are represented by their Agent , Mr PERSON .

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

In DATE the applicant applied for a patent for an invention . In DATE ORG issued the patent to the applicant . In DATE ORG and ORG fixed the royalties to be paid to the applicant for the exploitation of the invention covered by the patent . The exploitation of the invention was then assigned to a ORG enterprise , together with a special fund to cover the royalties due to the inventors including the applicant .

In DATE , after the applicant had received CARDINAL NORP lei ( ROL ) , the payment of further royalties was suspended . In DATE ORG adopted law no . MONEY which considerably reduced the royalties payable for the use of inventions . In DATE ORG adopted law no . CARDINAL/CARDINAL which provided , inter alia , for compensation to be given to persons who had suffered loss as a result of the prejudicial effects of law no . MONEY .

On DATE the applicant lodged with ORG of GPE a claim for the royalties which the above - mentioned ORG enterprise owed him under the original patent for the use of the invention .

On DATE , ORG of GPE allowed the claim and ordered the enterprise to pay the applicant ROL CARDINAL,CARDINAL,CARDINAL in royalties as well as court fees amounting to ORG .

Both parties appealed . The applicant , being dissatisfied with the amount awarded , argued that the first instance court had failed to take account of the need to index - link the TIME rate and the minimum wage when calculating the compensation due to him on the basis of his original patent . The defendant argued that , in DATE , it had stopped using the method which was the central feature of the applicant ’s invention . For that reason , the applicant ’s entitlement to compensation after that date was time - barred .

On DATE ORG allowed the applicant ’s appeal and amended in part the decision of ORG of GPE by awarding him ORG in compensation . The court rejected the defendant enterprise ’s appeal and upheld the remainder of the decision .

The defendant lodged an appeal with ORG against both decisions , arguing that the applicant ’s action had been lodged out of time . On DATE , ORG rejected the appeal as unfounded and upheld the decisions of ORG and ORG , finding that the applicant had lodged his action in time .

On DATE the applicant and the chief - engineer employed by the defendant enterprise signed the minutes of a preliminary settlement meeting wherein it was stated that ORG funds for payment of ORG royalties had never been made available to the enterprise . The TIME further mentioned that , before drawing up the record of negotiations , ORG and ORG were to specify the manner in which the sum due to the applicant was to be paid .

In DATE the applicant complained to ORG about the non - enforcement of the original judgment . In a letter of DATE ORG informed the applicant that the judgment had to be implemented , failing which the applicant could lodge a further claim for damages .

On DATE , following the applicant ’s request , the bailiffs of ORG of GPE drew up TIME on the enforcement of the judgment of DATE . TIME mentioned inter alia that the director general of the enterprise had declared that he was aware of the sum owed to the applicant pursuant to that judgment , but that the sum in question could not be paid on account of lack of funds ; the bailiffs had therefore seized CARDINAL items of the enterprise ’s stock valued at ORG and ORG , respectively . These items remained on the enterprise ’s LOC . The bailiffs also fixed a CARDINAL days’ time limit for the enforcement of the judgment . On an unspecified date in DATE , the bailiffs informed the applicant that they had failed to sell the goods seized from the enterprise as no potential purchasers had been found .

In a letter dated DATE , following the applicant ’s complaint about the non - enforcement of the above judgment , ORG informed the applicant that it was a minority shareholder in the enterprise , that the enterprise was in financial difficulties and was not therefore in a position to satisfy the applicant ’s judgment debt . The letter mentioned that the ORG had decided that the enterprise should pay the applicant an advance of ROL CARDINAL,CARDINAL,CARDINAL by DATE , the rest being paid once the seized goods had been sold . However , no action was ever taken to enforce that decision .

On an unspecified date in DATE , CARDINAL of the enterprise ’s creditor companies instituted bankruptcy proceedings against the enterprise . On DATE , in accordance with the Government Ordinance no . CARDINAL of DATE concerning the enforcement of debts payable to the ORG budget , various assets of the debtor enterprise were sold at a public auction .

On DATE the ORG made the debtor enterprise subject to liquidation proceedings in accordance with law no . CARDINAL concerning judicial reorganisation and bankruptcy . The court also appointed CARDINAL of the creditor companies as administrator of the assets of the debtor enterprise .

On DATE the ORG declared the debtor enterprise bankrupt .

The relevant provisions of Law no . CARDINAL on patents of CARDINAL DATE read as follows :

Section CARDINAL

“ Disputes concerning the capacity of an inventor or patent holder , other rights arising from a patent , including the inventor ’s pecuniary rights , as well as from contracts of assignment and licence ( ... ) , fall within the competence of the courts of law ( ... ) . ”

Section CARDINAL ( CARDINAL )

“ Pecuniary rights due to inventors on the basis of patents granted to them for their inventions which have been exploited , partially remunerated or unremunerated , prior to the entry into force of the present law , shall be negotiated between the inventor and the entity which has used the invention . ( ... ) Should the parties fail to reach an agreement , the pecuniary rights shall be established pursuant to the provisions of LAW of this law . ”

The relevant provisions of ORG DATE approving the Regulation concerning the application of PERSON no . CARDINAL on patents of CARDINAL DATE read as follows :

LAW

“ The pecuniary rights of inventors provided in LAW

Rule CARDINAL - Inventions applied and unremunerated or partially remunerated

( CARDINAL ) ( ... ) These pecuniary obligations shall be considered due as a result of the non - fulfilment by the ORG , represented by the entities to which the patent had been granted and other entities which have exploited the inventions , of its legal and contractual obligations ( ... ) . ”

The relevant provisions of LAW read as follows :

“ Any enforcement proceedings may be challenged by any aggrieved person or other person concerned . “

The relevant provisions of Law no . CARDINAL on judicial reorganisation and bankruptcy of CARDINAL DATE read as follows :

Section CARDINAL

“ The present PERSON shall be applicable to commercial entities - natural persons or commercial enterprises - , which are unable to meet their commercial debts ( ... ) .

Section CARDINAL

( CARDINAL ) Any creditor , which has a specific , liquid and enforceable debt , shall be entitled to bring before a court a claim against the debtor , which for DATE has ceased to make payments .

Section CARDINAL

( CARDINAL ) Within TIME from the registration of the creditor ’s claim ( ... ) , the judge appointed to administer the assets of the debtor shall forward a copy of the claim to the debtor ( ... ) . ”


Isabelle Berro-Lefèvre;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste;Renate Jaeger;Stanislav Shevchuk;Zdravka Kalaydjieva

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before the Court by Mr PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent Mr PERSON and the Head of ORG Office PERSON NORP , of ORG .

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

On DATE the applicant instituted proceedings in ORG , GPE ( ORG міський суд PERSON області ) , seeking compensation for work - related injuries he had sustained on DATE and DATE .

On DATE ORG rejected the applicant ’s complaints as unsubstantiated .

On DATE the ORG upheld the decision of the first - instance court . The court pronounced its decision in the applicant ’s presence .

On DATE the applicant requested the President of ORG to provide him with a copy of ORG of Appeal decision . He stated that the time - limit for lodging a cassation appeal had been reduced and he still had not received a copy of the court of appeal decision .

On DATE the President of ORG informed the applicant about the new procedural time - limit for lodging a cassation appeal introduced on DATE and that he could lodge an appeal before the case file was returned to the first - instance court .

On DATE ORG informed the applicant that his complaints that the judgments of the domestic courts were unfair were outside the scope of its constitutional jurisdiction .

On DATE ORG notified the applicant that the ruling of DATE could be appealed in cassation only through the first - instance court .

On CARDINAL and DATE and DATE , the Deputy President and the President of ORG of Appeal informed the applicant that it was impossible to appeal against the ruling of DATE to ORG as the time - limit for lodging an appeal in cassation had expired .

At the time of the second - instance appeal decision , the first paragraph of LAW ORG provided that a cassation appeal should be lodged within DATE of the appeal decision or within DATE of the decision of the first - instance court , if the latter decision had not been appealed under the normal appellate procedure .

On DATE ORG passed a law amending the ORG ( “ LAW ) , including LAW in question . It came into force on DATE . The new wording of Article CARDINAL created a DATE time - limit for lodging a cassation application against the decision of an appeal court .

Under LAW a cassation appeal should be lodged via the court of first instance that had dealt with the case .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Rait Maruste;Volodymyr Butkevych;Zdravka Kalaydjieva

The first and second applicants , Mr PERSON and PERSON PERSON , born in DATE , are the father and mother of the late PERSON ( hereinafter PERSON ) , who was born in DATE and died in DATE . The third applicant , Mr PERSON , born in DATE , is the son of PERSON . All CARDINAL applicants live in GPE .

PERSON had a history of mental illness and drug addiction . At the time of her arrest , she was a registered schizophrenic and infected with HIV ( Human Immunodeficiency Virus ) .

On DATE FAC of GPE ( ORG PERSON DATE “ the ORG ” ) instituted criminal proceedings against PERSON and PERSON for assaulting and robbing a certain A. On DATE the cases against PERSON and PERSON were disjoined . S. was subsequently sentenced to DATE imprisonment for assault and robbery committed jointly with “ another person ” .

On DATE PERSON was charged with robbery .

On DATE FAC of GPE ( PERSON районний суд PERSON “ the Solomyanskyy Court ” ) ordered PERSON pre - trial detention .

On DATE the ORG convicted PERSON of robbery and sentenced her to DATE imprisonment .

On DATE ORG ( PERSON суд PERSON “ the Court of Appeal ” ) , following an appeal by PERSON , quashed this judgment , remitted the case for further investigation and decided DATE without stating any grounds – that she should remain in detention . From that point on , according to the applicants , no investigative action was taken and PERSON was on no occasion visited by the investigator .

On DATE PERSON died in pre - trial detention .

On DATE ORG discontinued the proceedings against PERSON , in view of her death .

On DATE the ORG quashed ORG ruling and ordered the rehearing of the case . On DATE ORG dismissed a prosecution appeal against this decision .

On DATE the Solomyanskyy Court found PERSON guilty of robbery and discontinued the proceedings against her because of her death .

On DATE ORG upheld PERSON conviction . On DATE that court issued a separate ruling to the effect that , in breach of LAW and section CARDINAL of the Pre - trial GPE , the authorities had failed to implement immediately the investigator 's decision to release PERSON ( see paragraph CARDINAL below ) . ORG decided to bring this violation of the domestic law to the attention of ORG ( прокурор міста PERSON ) .

On DATE ORG of GPE quashed the decisions of DATE and DATE , including separate rulings , and remitted the case for fresh consideration to the first - instance court . The proceedings are apparently still pending .

The applicants complained on many occasions that the real reason behind PERSON prosecution was revenge for her refusal to cooperate with officers ORG from the ORG ( PERSON по боротьбі з незаконним обігом наркотиків ) , who had allegedly proposed that she sell drugs seized by the police from street dealers .

The applicants have requested on numerous occasions that criminal proceedings be instituted against the above - mentioned police officers ; however , all their requests have been rejected .

On DATE PERSON was arrested and brought to ORG , where she was held until DATE .

On DATE ( according to some documents not until DATE ) , she was examined and X - rayed at ORG and GPE ( NORP фізіатрії і пульмонології ) . She was found to be healthy .

On DATE PERSON was transferred to ORG no . CARDINAL ( ORG слідчий ізолятор № DATE “ the GPE ” ) .

Upon her arrival at the GPE , PERSON was examined by prison doctors , whom she informed that she had been using drugs since DATE . No other complaints were made during this examination . According to the Government , she refused to take an HIV test . She was found to be generally healthy and fit for detention in the GPE .

On DATE PERSON wrote in her diary that she had pneumonia .

On DATE a panel of psychiatrists examined PERSON in the GPE . It established that she was suffering from schizophrenia , but considered that a more detailed assessment was necessary .

On DATE ORG ordered an in - patient psychiatric examination of PERSON . On DATE she was transferred to a psychiatric hospital .

On DATE , following completion of the psychiatric assessment , PERSON was transferred back to the GPE and again placed in the shared cell , where she remained until her death on DATE .

NORP The psychiatric panel drew up a report on DATE . They concluded that PERSON was suffering from a mental disorder but at the time of the offence would have been in control of her actions .

On DATE , CARDINAL DATE and DATE PERSON complained to a GPE physician that her legs were swollen . She was examined and , since no abnormalities were revealed , no treatment was prescribed for her complaints . However , on the last of these dates PERSON was diagnosed with pyelonephritis .

In DATE PERSON wrote in her diary that she had again developed pneumonia .

On DATE her gastric ulcer worsened . She vomited undigested food and then blood . A paramedic ( фельдшер ) prescribed “ medical activated charcoal ” ( активоване вугілля ) .

On DATE the first applicant lodged a request with the GPE seeking to have his daughter hospitalised . He attached to that request a letter of CARDINAL DATE in which ORG no . CARDINAL confirmed that PERSON had been HIV - positive since DATE and had undergone related treatment .

On DATE and DATE CARDINAL PERSON was examined by a neuropathologist and a psychiatrist , who identified some problems with her mental health .

On DATE the Governor of the GPE and the head of its medical unit informed the first applicant that PERSON had been examined by a cardiologist and a neuropsychiatrist and had been diagnosed with vasomotor neurosis ( вегето-судинна дистонія ) ( a dysfunction in the nervous system affecting the blood vessels ) and a stomach ulcer . According to them , she did not require inpatient treatment in hospital .

On DATE PERSON was prescribed a diet .

On DATE PERSON complained to a prison doctor of general weakness and pain in her lungs . She was diagnosed with chronic bronchitis and multi - drug dependence .

According to the entries of DATE in PERSON diary , her state of health started to deteriorate seriously . On DATE she had shaking chills and a rising temperature . On DATE PERSON wrote that she was losing weight rapidly . On DATE she complained of nervous exhaustion , stating that she could hardly eat , being only able to keep down tiny pieces of food . She continued to lose weight very quickly . On DATE PERSON recorded that a high temperature had caused her fifth sleepless night . Constant weakness , drowsiness and a high temperature prevented her from going outside for walks . On DATE PERSON started to lose herself in time . On DATE , with her temperature constantly around CARDINALoC , PERSON was given a couple of fever - reducing pills . Her only friend in the cell prepared her tea in the TIME , coffee and biscuits during DATE and milk with sugar and butter in the evening . On DATE PERSON was given another pill and informed that she was to have her lungs X - rayed . Her body temperature that DATE was CARDINALoC , subsequently receding to TIME On DATE PERSON was scheduled for an X - ray and given another fever - reducing pill .

From DATE the applicants and PERSON lawyer repeatedly requested the authorities to release her on account , inter alia , of her rapidly deteriorating state of health . On DATE the Deputy Prosecutor of the Solomyanskyy District of GPE ( заступник прокурора Солом'янського району PERSON ) and , on DATE , the investigator dealing with her case , rejected those complaints without addressing the health issues .

On DATE PERSON complained of stomach pain and was diagnosed with chronic gastritis .

On DATE Olga Biliak again complained to a physician that she had stomach pains and had vomited undigested food .

On DATE PERSON was examined by a cardiologist , a psychiatrist and the Head of ORG ( начальник медичного відділу управління Державного департаменту виконання покарань ) , and underwent an X - ray and a blood test . The X - ray revealed no abnormalities . According to the blood test , there was serious inflammation in PERSON body . She was diagnosed with acute bronchitis , chronic gastritis , anaemia , cachexia and mental disorders . Her state of health was assessed as being of “ medium seriousness ” . She was prescribed some anti - inflammatory and light tranquilising drugs , as well as some antibiotics . PERSON was asked if she was HIV - positive . She replied that she was not and refused to take a HIV test . However , that was the date when , according to the Government , the prison doctors started to suspect that she was HIV - positive .

On DATE the Governor of the GPE applied to the Head of ORG , stating that PERSON poor state of health prevented her from participating in any investigative actions and that she needed to be admitted to hospital urgently . He asked that the investigative authorities consider the possibility of her release on an undertaking not to abscond .

On DATE and DATE PERSON was examined by a GPE physician . Her state of health was again assessed as being of “ medium seriousness ” and a recommendation was made to “ continue treatment ” .

On DATE the investigator of ORG ordered PERSON release on health grounds . From the documents submitted by the parties , it is unclear when exactly this decision was received by the ORG . CARDINAL available copy of the decision has a stamp of the GPE on the reverse side and a handwritten date – “ CARDINAL ” . However , another copy of the decision bears a GPE stamp for incoming correspondence with the number CARDINAL and an incoming date of DATE .

On DATE at TIME was visited by a prison doctor who gave her a painkiller and an anti - spasmodic drug . At TIME died . The death certificate issued on DATE indicated bilateral pleurisy as the cause of death . According to the ORG , PERSON death was caused by acute heart failure .

The applicants provided CARDINAL colour photographs of PERSON body , which show that she had been in an advanced state of exhaustion when she died .

Immediately after PERSON death , the applicants lodged a criminal complaint against the GPE staff for negligence .

DATE . During the investigation into the applicants ' complaint , the investigator questioned a GPE physician , PERSON , who had treated her , and the head of the GPE medical unit . S. submitted that the deceased had been examined on a number of occasions ; the last examination took place on DATE . According to him , at that time there were no grounds for placing PERSON on the medical ward . She was found to be suffering from bronchitis , drug addiction , anaemia and cachexia . Taking into account her state of health , he had recommended her release .

The head of the medical unit testified that on her arrival at the SIZO Olga Biliak had been examined and found to be suffering from drug addiction and certain psychiatric problems ( such as hysteria ) , but in general her state of health had been considered satisfactory . The instructions of the GPE physician were fully complied with and there had been no reason to transfer her to the GPE medical wing .

The head of the medical unit further stated that on DATE he had examined PERSON himself and found her state of health to be satisfactory . On DATE she was examined by the Head of ORG who diagnosed her with “ possible AIDS , acute bronchitis , drug addiction and anaemia ” and considered that she should be released on medical grounds .

The CARDINAL inmates who had shared the cell with PERSON before her death claimed that during her detention she was frequently attended to by doctors and paramedics , and that her health had been satisfactory . Their written testimonies given to the Head of the GPE are all very brief and drafted using the same style and expressions .

According to the autopsy report of CARDINAL March CARDINAL PERSON died from HIV - related advanced purulent pneumonia . The autopsy also revealed a number of bruises on her hands , legs , left cheekbone and chin .

In a decision of DATE the investigator found that PERSON death was not caused by any violence or negligence , and decided not to institute criminal proceedings .

On DATE the GPE Deputy Prosecutor instituted disciplinary proceedings against the employees of the GPE administrative office for mishandling correspondence , since they had registered the decision of DATE and handed it to the Head of the GPE only on DATE , although it had been received on DATE .

On DATE ORG Office ( ORG м. PERSON ) rejected the applicants ' request to set aside the decision of DATE , stating that the investigation had been thorough and complete . During her detention the deceased had had appropriate medical treatment , and had received food and medication from her relatives . Until DATE the authorities had had no information about her HIV status .

On DATE , the Governor of the GPE reprimanded the head of its registry for “ antedating the letter from the investigator which contained PERSON release order ” .

The applicants challenged the decision of DATE before ORG of Kyiv ( ORG районний суд PERSON “ the ORG ” ) . On DATE the court quashed that decision and ordered further inquiries , finding that the initial investigation had been inadequate and incomplete . It ordered an official postmortem examination of the body and sought to clarify the following issues :

whether PERSON , given her state of health , had been fit for detention in the GPE ;

whether she had received proper medical treatment when in custody ;

whether she would have survived if she had been taken quickly to hospital ;

exactly when prison doctors had started to treat her health problems ;

the time and cause of death .

Following this decision , ORG Office of Kyiv ( ORG Шевченківського району м. PERSON “ ORG Office ” ) requested that the authorities of the GPE carry out additional inquiries into the circumstances of the death of PERSON . Having received no reply , on DATE ORG decided against instituting criminal proceedings on the ground that there was no indication that her death had been caused by violence or that any other parties had been involved in her death . According to the applicants , they were not informed of this decision .

On DATE the applicants inquired about the progress of proceedings in the case . In a letter of CARDINAL DATE ORG informed them that the investigations were still ongoing .

In DATE the applicants , in the course of proceedings concerning their civil action for damages against the PERSON ( see paragraphs CARDINAL - CARDINAL below ) , learned of ORG decision of DATE . On DATE ORG , following an application by the applicants , quashed that decision and ordered further investigations . The court found , in particular , that none of the actions indicated in the decision of DATE had been taken .

It appears that the prosecution authorities were not informed of this decision and , on DATE , ORG Office quashed the DATE decision of ORG of its own motion and ordered reinvestigation .

In the course of the additional investigations ORG ordered that further medical evidence be obtained .

On DATE ORG ( PERSON міське бюро судово-медичної експертизи – “ the Bureau ” ) issued a report in which it stated that PERSON death was caused by the hematogenously disseminated tuberculosis affecting the lungs , liver , spleen and other parts of the body , which led to purulent necrotising pneumonia . All these diseases had developed against the background of the concurrent HIV - infection . The lack of correct diagnosis had resulted in a failure to provide appropriate medical treatment ; therefore , the death of PERSON had been indirectly caused by the actions of the GPE officials .

On DATE the Deputy Prosecutor of the GPE of GPE requested that the ORG carry out further examinations with a view to establishing whether PERSON had required urgent hospitalisation in DATE and in DATE and whether she had received adequate medical assistance during her detention in the GPE .

NORP However , on DATE the investigator from ORG , taking into account the fact that the reply from the ORG could not be received before the expiry of the statutory time - limit for reaching a decision on a criminal complaint , decided not to institute criminal proceedings into the death of PERSON as the evidence in the case file did not show that her death had been caused by violence or by the negligence of the GPE staff .

On DATE ORG , acting on an appeal lodged by the applicant , quashed this decision on the ground that the investigating authorities had failed to follow the instructions set out in that court 's decisions of DATE and DATE . The court ordered that further investigations into the death of PERSON be carried out . The proceedings are apparently still ongoing .

DATE . On DATE the applicants sued the GPE for non - pecuniary damage incurred on account of the inadequate medical treatment of PERSON and the failure to hospitalise or release her on medical grounds . They also claimed compensation for burial expenses .

On DATE the ORG partially allowed these claims . It found , inter alia , that the prison authorities had learned of PERSON HIV status on DATE from her father 's letter . The court further indicated that although the relevant regulations provided that each newly admitted detainee should be examined and interviewed in relation to AIDS or HIV infection , this had never been done in respect of PERSON . ORG also established that , contrary to the domestic law , she had not been X - rayed within DATE of her arrival at the GPE . She did not undergo that examination until DATE .

The court further indicated that on DATE the Head of ORG had requested the GPE to bring PERSON to ORG on DATE . According to the ORG incoming mail register this request has been received on DATE . The decision of CARDINAL DATE to release PERSON was registered only on DATE with the incoming mail number CARDINAL .

ORG concluded that the applicants had suffered distress on account of the inadequate medical assistance offered to their daughter and mother in the GPE . The court further stated that :

“ It should be noted that [ the finding of PERSON lack of medical treatment in the GPE ] does not mean that there is a causal link with PERSON death , the circumstances of which have not been established during the hearings and are currently being considered by ORG of Kyiv in the context of the criminal investigation into the death of PERSON . ”

The applicants were awarded CARDINAL NORP hryvnas ( ORG ) in total for non - pecuniary damage . The claim for burial expenses was rejected as unsubstantiated .

The GPE and the applicants appealed against this judgment .

On DATE ORG quashed the judgment of DATE and remitted the case for fresh consideration on the ground that the first - instance court had failed to identify the medical staff who had examined PERSON , diagnosed her , prescribed her treatment , etc . , and to decide whether they should have participated in the proceedings

The relevant extract of the LAW of GPE provides :

Article CARDINAL

“ Every person has the inalienable right to life .

No one shall be arbitrarily deprived of life . The duty of the ORG is to protect human life . ... ”

Article CARDINAL

“ Everyone has the right to respect for his or her dignity .

No one shall be subjected to torture , cruel , inhuman or degrading treatment or punishment that violates his or her dignity . ... ”

“ Human and citizens ' rights and freedoms shall be protected by the courts .

Everyone shall be guaranteed a right to challenge in court the decisions , actions or omissions of bodies of ORG power , bodies of local self - government , officials and officers . ...

Everyone shall have a right to protect his or her rights and freedoms from violations and illegal encroachments by any means not prohibited by law . ”

Article CARDINAL

“ Everyone shall have a right to compensation from public or municipal bodies for losses sustained as a result of unlawful decisions , acts or omissions by public or municipal bodies or civil servants in the performance of their official duties . ”

DATE . The Code requires a competent authority to institute criminal proceedings if there is a suspicion that a crime has been committed . That authority is under an obligation to carry out all measures provided for by law to establish the facts and to identify those responsible and secure their conviction ( DATE ) .

Article CARDINAL of the Code provides that criminal proceedings shall be instituted in the following cases :

“ Criminal proceedings shall be instituted following :

( CARDINAL ) applications or communications from ... individuals ; ...

( CARDINAL ) direct detection of signs of a crime by a body of inquiry , investigation , a prosecutor or a court .

A case can be instituted only when there is sufficient information indicating a crime . ”

No criminal proceedings can be brought in the absence of a corpus delicti ( LAW .

According to LAW , the decision of the body of inquiry , investigator , prosecutor or court to apply , change or discontinue a preventive measure ( including pre - trial detention ) should be communicated to the person concerned immediately .

Article CARDINAL of the PERSON provides :

“ Within DATE of notification , a decision of the body of inquiry , investigator or prosecutor not to institute criminal proceedings or a refusal of the higher prosecutor to quash such a decision can be appealed against by an interested party or their representative to the district ( town ) court within whose area of jurisdiction the authority which took the decision falls ... ”

The relevant part of LAW provides :

“ An appeal against the decision of the body of inquiry , investigator or prosecutor not to institute criminal proceedings shall be examined [ by a court ] in a single - judge formation within DATE of being lodged .

The judge shall request the materials on the basis of which the decision not to institute criminal proceedings was made , examine them and inform the prosecutor and the appellant of the date on which the hearing of the appeal is listed .

Having examined the case , the judge ... may take CARDINAL of the following decisions :

( CARDINAL ) to set aside the decision not to institute criminal proceedings and to remit the case for further preliminary inquiries ...

( CARDINAL ) NORP to dismiss the appeal ... ”

Articles DATE and DATE of LAW , as in force since DATE , provide for the possibility to claim pecuniary and non - pecuniary damages inflicted as a result of the unlawful decisions , actions or inactivity of an individual or a legal entity , including ORG bodies .

Article CARDINAL § CARDINAL ( CARDINAL ) of LAW provides in its relevant part :

“ The court must suspend its examination of a case if ... it is impossible to hear that case before the termination of another set of civil , criminal or administrative proceedings . ”

Article CARDINAL § CARDINAL reads as follows :

“ Rulings , judgments or decisions granting release shall be implemented immediately upon their receipt by the detention centre . ”

In accordance with Section CARDINAL.CARDINAL.CARDINAL of the LAW , all persons should undergo an initial medical examination on their arrival at the GPE . The results of this examination are entered in the GPE medical register . During the examination the doctor should inform the detainee about the possibility of undergoing a HIV test .

The relevant extracts from ORG read as follows :

“ Medical services

CARDINAL . At every institution there shall be available the services of CARDINAL qualified general practitioner . The medical services should be organised in close relation with the general heath administration of the community or nation . They shall include a psychiatric service for the diagnosis and , in proper cases , the treatment of states of mental abnormality .

Sick prisoners who require specialist treatment shall be transferred to specialised institutions or to civil hospitals . Where hospital facilities are provided in an institution , their equipment , furnishings and pharmaceutical supplies shall be suitable for the medical care and treatment of sick prisoners , and there shall be staff of suitably trained officers .

CARDINAL . The medical officer shall have the care of the physical and mental health of the prisoners and shall see , under the conditions and with a frequency consistent with hospital standards , all sick prisoners , all who report illness or injury and any prisoner to whom attention is specially directed .

The medical officer shall report to the director whenever it is considered that a prisoner 's physical or mental health has been or will be adversely affected by continued imprisonment or by any condition of imprisonment . ”

The relevant extract from the Report of the ORG on a visit to GPE from DATE to DATE reads as follows :