CASE OF RUSSIAN CONSERVATIVE PARTY OF ENTREPRENEURS v. RUSSIA

Violation of P3-1 in respect of the applicant party and the second applicant;No Violation of P3-1 in respect of the third applicant;Violation of Art. 13 in respect of the applicant party and the second applicant;No violation of Art. 13 in respect of the third applicant;Violation of P1-1 in respect of the applicant party;Non-pecuniary damage - finding of violation sufficient;Pecuniary damage - financial award (applicant party);Costs and expenses award - domestic and Convention proceedings

The applicant party , ORG ( Российская консервативная партия предпринимателей ) , is a nationwide political party established under the laws of GPE .

The second applicant , Mr PERSON , was born in DATE and lives in GPE . He stood as CARDINAL of the applicant party 's candidates for the DATE elections to ORG .

The third applicant , PERSON PERSON , was born in DATE and lives in GPE . He was a supporter of the applicant party .

On DATE the applicant party nominated CARDINAL candidates for the elections to ORG of GPE , the lower chamber of the NORP bicameral parliament .

On DATE ORG of GPE ( Центральная избирательная комиссия РФ – “ the ORG ” ) confirmed receipt of the applicant party 's list of candidates . The applicant party paid the election deposit .

On DATE the ORG refused to register the applicant party 's list , with reference to sections DATE ) , CARDINAL ( CARDINAL ) ( d ) , CARDINAL ( CARDINAL ) and CARDINAL ( CARDINAL ) of LAW . The ORG established that CARDINAL candidates had submitted substantially inaccurate information about their income and property and struck them off the list . CARDINAL of them was the number CARDINAL candidate on the list . On that ground the ORG decided :

“ CARDINAL . To refuse the registration of the federal list of candidates to ORG of GPE nominated by [ the applicant party ] because of the withdrawal [ выбытие ] of the candidate listed as number CARDINAL in the nationwide section of the accepted federal list of candidates . ”

NORP The applicant party appealed to a court against the ORG 's refusal to register it .

On DATE ORG of ORG of GPE , acting as a first - instance court , upheld the ORG 's decision to remove from the list the candidates who had made false representations , but declared unlawful the ORG 's refusal to register the list in its entirety . The court interpreted the term “ withdrawal ” in section CARDINAL(CARDINAL ) of LAW as meaning only a candidate 's voluntary withdrawal of his or her own free will . The court therefore held that the provision should not apply to a situation where one of the top CARDINAL candidates had been struck off the list by the ORG .

The ORG appealed against that judgment . The applicant party submitted its observations on the ORG 's grounds of appeal .

On DATE ORG of ORG of GPE upheld the judgment of DATE . The court thoroughly analysed the wording of LAW and agreed that the word “ withdrawal ” in section CARDINAL(CARDINAL ) of the LAW should only refer to situations where the candidate 's name had been taken off the list of the candidate 's own free will or at the request of the candidate 's electoral union .

On DATE the ORG allowed the registration of the applicant party 's list of candidates .

On DATE a deputy Prosecutor General of GPE lodged an application for supervisory review with the Presidium of ORG of GPE . The prosecutor argued that “ withdrawal ” was a generic term which applied to any situation where a candidate was struck off the list , be it the expression of will of the candidate himself , of his electoral union , or of the ORG . Hence a candidate 's exclusion as a result of the ORG 's decision should count as “ withdrawal ” and thus render section CARDINAL(CARDINAL ) of LAW applicable .

On DATE the ORG of ORG of GPE granted the application for supervisory review and quashed the judgment of DATE . The court followed the line of reasoning suggested by the deputy ORG . The court emphasised that the exclusion of a candidate from the list as a result of the ORG 's decision was only a specific instance of “ withdrawal ” and that the ORG 's refusal to register the list had therefore been lawful .

On DATE the ORG annulled its earlier decisions , refused the registration of the applicant party 's list and ordered the applicant party 's name to be removed from the ballot papers . The applicant party appealed against the ORG 's decision to ORG of GPE . On DATE ORG of GPE dismissed the applicant party 's complaint . The court found that pursuant to the judgment of the ORG of ORG of GPE , the ORG had no discretion in the matter and it was obliged as a matter of law to refuse the registration of the applicant party 's list .

On DATE the elections to ORG took place . The applicant party was not listed in the voting papers .

On DATE ORG of GPE , acting on an application by a group of NORP MPs , declared unconstitutional the part of section CARDINAL(CARDINAL ) of LAW which provided for the refusal or cancellation of a party 's registration in the event of the withdrawal of CARDINAL of the top CARDINAL candidates on the list .

The Constitutional Court stressed that the right to stand for election was an individual rather than a collective right . However , the contested provision made the exercise of that right conditional on the consistent presence of the top CARDINAL candidates on the list , which amounted to a restriction on the other candidates ' right to stand for election and on the citizens ' right to vote for them . It violated the principle of equality between the candidates because it only applied in the event of withdrawal of CARDINAL of the top CARDINAL candidates but not of those in lower positions on the list . Such a restriction could not be justified by the special role played by the top CARDINAL candidates , who were usually political heavyweights , in the electoral campaign and it did not serve any legitimate aim listed in the LAW .

NORP Moreover , withdrawal of CARDINAL of the top CARDINAL candidates had a disproportionately crippling effect on the electoral union or bloc , which forfeited the right to stand for election through no fault of its own . On the other hand , it made it difficult for the top CARDINAL candidates to leave an electoral union whose platform had changed to the point of being inconsistent with their own views . It also encroached on the active voting rights of the electorate , depriving them of an opportunity to vote for the candidates and impairing the formation of a representative spectrum of members of ORG .

Finally , ORG noted that the refusal or cancellation of registration was essentially a sanction imposed on an electoral union or bloc . Sanctions could only be inflicted for violations of the electoral laws and should be proportionate to the violation . However , the contested provision made it possible to sanction electoral unions , blocs and other candidates who had not committed any violation , and this was incompatible with the general principles of justice and rule of law .

ORG also ruled that the finding that section CARDINAL(CARDINAL ) was unconstitutional was of no consequence for the State Duma elections of DATE and could not be relied upon to seek a review of their results .

On DATE ORG of GPE disallowed the applicant party 's application for review of the compatibility of section CARDINAL(CARDINAL ) with LAW , because the subject - matter of the application was essentially the same as the matter adjudicated on DATE .

In DATE the applicant party lodged an application with the ORG of ORG of GPE to review the judgment of DATE in the light of a new circumstance , namely the ruling of ORG .

On DATE the ORG of ORG refused the applicant party 's application . The court ruled that the ruling of ORG was not a new circumstance under domestic law and that , in any event , the applicant party had failed to comply with the procedural time - limit of DATE for lodging its application for a review .

On DATE the applicant party applied to the ORG to have its election deposit paid back .

In a letter of CARDINAL DATE , the ORG informed the applicant party that the election deposit had been credited to the federal budget and could not be repaid . The ORG maintained that the decision of ORG did not apply to the DATE elections and that there was consequently no ground for returning the election deposit .

On DATE the applicant party brought a civil action against the ORG for the return of the election deposit .

In a judgment of DATE , ORG of GPE dismissed the applicant party 's action . The court based its decision on a provision of LAW to the effect that the election deposit could not be repaid if the party 's list had not been registered in accordance with section CARDINAL(CARDINAL ) of the LAW . The court held that the applicant party 's request for the return of the deposit on the basis of ORG ruling was in fact a disguised request for a review of the election results , which had been expressly prohibited by ORG .

On DATE ORG upheld on appeal the judgment of DATE .

The LAW of the Russian Federation guarantees to the citizens of GPE the right to elect and to stand for election to ORG and municipal bodies ( LAW ) .

The Federal Law on Elections of Deputies to ORG of ORG ( no . CARDINAL-FZ of DATE – “ LAW ” ) provided at the material time as follows :

“ CARDINAL . CARDINAL after the submission of the lists of signatures ( [ or ] upon receipt of the election deposit in the special account of ORG ) and of other documents required for the registration of the federal list of candidates , ORG shall make a decision to register the federal list of candidates or a reasoned decision to refuse to register the said list ...

CARDINAL ... FAC for a refusal shall include :

( d ) [ “ ( г ) ” in the original ] inaccuracy of information submitted by candidates , electoral unions or blocs in accordance with the present ORG , provided that such inaccuracy is substantial ( inaccuracy of information in respect of specific candidates on the federal list of candidates of an electoral union or bloc may only be a ground for the exclusion of the candidates in question from the approved federal list ) ... ”

“ CARDINAL . If the number of candidates , registered candidates and candidates excluded from the federal list of candidates of their own motion or by virtue of a decision of the electoral union or electoral bloc exceeds MONEY of the total number of candidates in the approved electoral list or if withdrawal of CARDINAL or more candidates listed in the top CARDINAL positions in the nationwide section of the approved federal list of candidates occurs ( except in the event of compelling circumstances as described in subsection QUANTITY of this section ) , ORG shall refuse to register the federal list of candidates or shall cancel such registration .

... [ If ] the registration of the federal list was cancelled pursuant to subsection CARDINAL of this section ... , all expenses incurred by the electoral commission in connection with the preparation and organisation of elections shall be reimbursed by that registered candidate , electoral union or electoral bloc . ”

“ CARDINAL . ... If ... a registered candidate withdraws on his own initiative or a candidate , registered candidate or the federal list is withdrawn by the electoral union or electoral bloc ( with the exception of cases described in section CARDINAL(CARDINAL ) of LAW ) ... [ or ] registration of a candidate or of the federal list is refused ( except on the grounds set out in section PERSON ) of LAW ) ... , the election deposit that has been paid shall be returned by the electoral commission to the appropriate electoral fund DATE after an application ( notice ) to that effect is submitted to ORG ... by the electoral union , electoral bloc , candidate , or registered candidate , or after the registration is refused . ”

“ CARDINAL . An electoral commission may refuse to register a candidate or a federal list of candidates if :

( а ) it is established that the information submitted by the candidate or an authorised representative of an electoral union or bloc under LAW is substantially inaccurate ... ”

On DATE the ORG approved , by the above decree , the general election results . It appears from the appendices to the decree that CARDINAL political parties and blocs took part in the elections , of which CARDINAL passed the requisite PERCENT threshold for representation in ORG . CARDINAL voters cast their votes in the election , representing PERCENT of the voting population . PERCENT of voters voted “ against all candidates ” .

The relevant parts of LAW ( DATE ) adopted by ORG on DATE , read as follows :

“ CARDINAL . The holding of free , equal , universal , secret and direct elections at regular intervals remains a sine qua non [ condition ] for recognising a political system as democratic ...

The ORG considers that the code constitutes a major step towards harmonising standards for the organisation and observation of elections and in establishing procedures and conditions for the organisation of the electoral process ...

The ORG considers that , as a reference document not only for member states but also for itself , the code would reinforce the impact and the credibility of the electoral observation and monitoring activities conducted by ORG . ”

The relevant parts of the declaration adopted by ORG on DATE at its CARDINALth Session , read as follows :

“ ORG ...

Recalling the importance of the effective implementation of the principles of LOC 's electoral heritage : universal , equal , free , secret and direct suffrage ...

Recognises the importance of LAW , which reflects the principles of LOC 's electoral heritage , as a reference document for ORG in this area , and as a basis for possible further development of the legal framework of democratic elections in NORP countries ;

Calls on governments , parliaments and other relevant authorities in the member states to take account of LAW , to have regard to it , within their democratic national traditions ... ”

The Code of Good Practice was adopted by ORG ) at its CARDINALst ( Guidelines ) and CARDINALnd ( Report ) sessions on DATE and DATE ( Opinion no . CARDINAL/CARDINAL , ORG ( DATE ) CARDINAL rev . ) .

Guidelines on Elections provide as follows :

“ The CARDINAL principles underlying LOC 's electoral heritage are universal , equal , free , secret and direct suffrage . Furthermore , elections must be held at regular intervals .

Freedom of voters to form an opinion

a. State authorities must observe their duty of neutrality . In particular , this concerns :

i. media ;

ii . billposting ;

iii . the right to demonstrate ;

iv . funding of parties and candidates .

b. The public authorities have a number of positive obligations ; inter alia , they must :

i. submit the candidatures received to the electorate ;

ii . enable voters to know the lists and candidates standing for election , for example through appropriate posting .

iii . The above information must also be available in the languages of the national minorities .

c. Sanctions must be imposed in the case of breaches of duty of neutrality and voters ' freedom to form an opinion .

Freedom of voters to express their wishes and action to combat electoral fraud

i. voting procedures must be simple ;

ii . voters should always have the possibility of voting in a polling station ...

vii . CARDINAL criteria should be used to assess the accuracy of the outcome of the ballot : the number of votes cast and the number of voting slips placed in the ballot box ...

x. polling stations must include representatives of a number of parties , and the presence of observers appointed by the candidates must be permitted during voting and counting ...

xiii . counting must be transparent . Observers , candidates ' representatives and the media must be allowed to be present . These persons must also have access to the records ;

xv . the state must punish any kind of electoral fraud . ”

Explanatory Report reads as follows :

“ CARDINAL . Free suffrage

Free suffrage comprises CARDINAL different aspects : free formation of the elector 's opinion , and free expression of this opinion , i.e. freedom of voting procedure and accurate assessment of the result .

CARDINAL Freedom of voters to form an opinion

a. Freedom of voters to form an opinion partly overlaps with equality of opportunity . It requires the state DATE and public authorities generally DATE to honour their duty of even - handedness , particularly where the use of the mass media , billposting , the right to demonstrate on public thoroughfares and the funding of parties and candidates are concerned .

b. Public authorities also have certain positive obligations . They must submit lawfully presented candidatures to the citizens ' votes . The presentation of specific candidatures may be prohibited only in exceptional circumstances , where necessitated by a greater public interest . Public authorities must also give the electorate access to lists and candidates standing for election by means , for instance , of appropriate billposting ...

Freedom of voters to express their wishes and combating electoral fraud

Freedom of voters to express their wishes primarily requires strict observance of the voting procedure . In practice , electors should be able to cast their votes for registered lists or candidates , which means that they must be supplied with ballot papers bearing their names and that they must be able to deposit the ballot papers in a ballot box . ... Electors must be protected from threats or constraints liable to prevent them from casting their votes or from casting them as they wish , whether such threats come from the authorities or from individuals ; the state is obliged to prevent and penalise such practices . ”

The relevant part of the summary of the findings of ORG on the parliamentary elections in GPE ( DATE ) , prepared by ORG ) , reads as follows :

“ In general , and in spite of episodic challenges that could have undermined the general integrity of the process as a whole , the State PERSON elections marked significant progress in consolidating representative democracy in GPE . They reflected a political environment in which voters had a broad spectrum of political forces from which to choose .

A solid turnout demonstrated a respectable level of public confidence in the process , and the final result showed a significant increase in the representative share of overall voter support actually included in LOC .

The electoral laws governing the process had improved significantly with each successive election and were found to be consistent with commonly recognized democratic principles , including those formulated in ORG of DATE . This legal framework provided a sound basis for the conduct of orderly , pluralistic and accountable elections .

The law provides the framework for parties and blocs to enter the political arena on an equal basis and provides a foundation for maintaining a level playing field for political participants . In particular , the law provided a basis for equal access to free media time for all participants , and instituted rigid parameters for enforcing accountability measures and controlling the use of campaign funds .

The political campaigns were competitive and pluralistic with CARDINAL parties and blocs ultimately competing on the federal list and CARDINAL to CARDINAL candidates appearing on ballots for the single - mandate constituency races ... ”


Violation of Article 1 of Protocol No. 1 - Protection of property

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

The applicant was born in DATE and lives in GPE .

The applicant first stated that he was the owner of a fully furnished house in LOC . However , in his observations of DATE he listed his properties as follows :

( a ) ORG , registration no . DATE , plot no . DATE , sheet / plan XIII/CARDINAL.E.CARDINAL , field with various trees , area : CARDINAL sq . m ;

( b ) ORG , registration no . DATE , plot no . CARDINAL , sheet / plan PERSON and PERSON , inaccessible hilly field , area : CARDINAL sq . m ;

( c ) ORG , registration no . DATE , plot no . CARDINAL , sheet / plan XIII/CARDINAL.W.CARDINAL , inaccessible field with olive trees , area : QUANTITY . m ;

( d ) ORG , registration no . DATE , plot no . CARDINAL , sheet / plan XII/CARDINAL.E.CARDINAL , field with small former farmhouse and stables , area : CARDINAL sq . m ;

( e ) ORG , registration no . DATE , plot nos . CARDINAL and GPE , sheet / plan XIII/CARDINAL.E.CARDINAL , inaccessible field with CARDINAL olive trees , area : CARDINAL sq . m.

An expert appointed by the applicant conducted researches in the NORP lands registers and obtained the above registration numbers and references . In support of his claim of ownership , the applicant submitted a survey map on which his properties were marked in yellow .

Moreover , in an affidavit of CARDINAL DATE the applicant stated that from the time he was born he had lived with his parents in their home in ORG . When he got married in DATE he moved to his wife ’s house in GPE , a village which had never been occupied by NORP military forces . After his marriage , the applicant used to spend weekends and holidays in ORG .

As a result of the DATE NORP military intervention the applicant had been deprived of his property rights , his properties being located in the area which was under the occupation and overall control of the NORP military authorities . The latter had prevented him from having access to and using his property and his GPE house located in ORG . Moreover , the applicant stated that his house had been occupied by officers and/or other members of the NORP military forces .

NORP On DATE the applicant made an attempt to return to his property in ORG by participating in a convoy of cars of fellow refugees from the same district wishing to return home during a peaceful march towards their villages .

The applicant and his fellow refugees , who had informed the Commander of ORG ( ORG ) forces in GPE of their intention , stopped at the checkpoint in the “ buffer zone ” , on the main road linking GPE with ORG and GPE . There , they asked the ORG officer on duty to be allowed to return to their homes , property and villages . They requested the officer to transmit to the NORP military authorities their demand to return to their homes . The officer announced to them that the NORP military authorities had refused their request .


Violation of Art. 6-1;Violation of Art. 6-2;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - Convention proceedings

On DATE the ORG ( PERSON für PERSON ) took the applicant into detention on remand ( GPE - haft ) on charges of attempted murder . He was suspected of having , together with an accomplice , tried to kill PERSON in that his accomplice attacked GPE with a knife , while the applicant prevented him from fleeing . In these and the following proceedings the applicant was represented by counsel .

On DATE the ORG , sitting as an ORG ( Geschwornengericht ) , acquitted the applicant . The jury answered the main question as to attempted murder and the alternative question as to aggravated assault with CARDINAL votes " no " to CARDINAL vote " yes " . According to the record of its deliberations ( PERSON ) , the jury had answered both questions in the negative as “ the evidentiary basis was insufficient ” . Following his acquittal , the applicant was released .

On DATE the applicant , relying on the Compensation ( Criminal Proceedings ) Act DATE ( ORG DATE , hereinafter “ the DATE LAW ) , filed a compensation claim relating to his detention on remand .

On DATE , ORG , after a first decision had been quashed on appeal , dismissed the applicant 's compensation claim . The court was sitting in camera .

The court noted that it had heard the applicant on DATE . It also noted the submissions of ORG of DATE , proposing that the compensation claim be dismissed . The court , referring to section CARDINAL ( CARDINAL ) ( b ) of LAW , found that there had been a reasonable suspicion against the applicant , which had not been dissipated , particularly in view of the statement made by the victim at the hearing of DATE , which was not entirely without credibility .

On DATE the applicant filed an appeal . He submitted in particular that ORG reasoning violated the presumption of innocence guaranteed by LAW . For the same reason , LAW b ) of LAW was unconstitutional . It put the onus of proof as regards the dissipation of the suspicion on the person claiming compensation , even if that person had been acquitted . Further , the applicant claimed that LAW applied to the compensation proceedings at issue , as they related to a pecuniary claim . He was , thus , entitled to a public hearing and a public pronouncement of the decisions . As there had not been a public hearing at first instance , he requested that such a hearing be held before the court of appeal .

On DATE the ORG of Appeal ( PERSON ) adjourned the proceedings and requested ORG ) to give a ruling that section CARDINAL ( CARDINAL ) ( b ) of the DATE Act was unconstitutional .

On DATE ORG dismissed the request of ORG ( see below , § CARDINAL ) .

On DATE ORG , sitting in camera , dismissed the applicant 's appeal .

The court , referring to the decision of ORG , found that in order to determine whether the suspicion against the applicant had been dissipated it was not entitled to examine the statements of the witnesses heard or other results of the taking of evidence in the criminal proceedings , but had to limit itself to the reasons which the jury gave for its finding . The court also referred to case - law according to which the suspicion was only dissipated if either the claimant 's innocence had been proven , or if all arguments supporting the suspicion against him had been refuted . An acquittal for lack of evidence did not give an entitlement to compensation unless the innocence of the person concerned had at least become probable . Applying these principles to the facts of the case the court continued as follows :

“ It can be concluded here - from the above - mentioned questions which were put to the jury and from the record of that jury ’s deliberations - that both the main and the alternative question were answered with CARDINAL ‘ no’ votes and CARDINAL ‘ yes’ vote and that CARDINAL jurors therefore cast a ‘ no’ vote in response to the main and the alternative question ‘ because the evidence was insufficient’ . This means that on the CARDINAL hand CARDINAL juror in any case found the applicant guilty , whereas on the other hand the other jurors answered the questions addressed to them in the negative only because they considered the evidence insufficient , in other words , they were of the opinion that the evidence did not suffice to find PERSON guilty of the charges brought against him . By no means can CARDINAL draw the conclusion that , as a result of these considerations , the suspicion has been dispelled or PERSON ’s innocence has at least become probable ! ”

It concluded that the suspicion against the applicant had not been dissipated .

NORP This decision was served on the applicant 's counsel on DATE .

The relevant provisions of ORG DATE read as follows :

“ ( CARDINAL ) A right to compensation arises : ...

( b ) where the injured party has been placed in detention or remanded in custody by a domestic court on suspicion of having committed an offence making him liable to criminal prosecution in GPE … and is subsequently acquitted of the alleged offence or otherwise freed from prosecution and the suspicion that he committed the offence has been dispelled or prosecution is excluded on other grounds , in so far as these grounds existed when he was arrested ; ... ”

“ ... ( CARDINAL ) A court which acquits a person or otherwise frees him from prosecution … ( section CARDINAL ( CARDINAL ) ( b ) or ( c ) ) must decide either of its own motion or at the request of the individual in question or the public prosecutor ’s office whether the conditions of compensation under section CARDINAL ( CARDINAL ) ( b ) or ( c ) , ( CARDINAL ) and ( CARDINAL ) have been satisfied or whether there is a ground for refusal under section CARDINAL ... If the investigating judge decides to discontinue the proceedings , ORG concerned shall rule .

( CARDINAL ) NORP Before ruling , the court shall hear the detained or convicted person and gather the evidence necessary for its decision where this has not already been adduced in the criminal proceedings ...

( CARDINAL ) Once the judgment rendered in the criminal proceedings has become final , the decision , which need not be made public , must , as part of the proceedings provided for in paragraph CARDINAL , be served on the detained or convicted person personally and on the public prosecutor ...

( CARDINAL ) The detained or convicted person and the public prosecutor may appeal against the decision to a higher court within DATE .

( CARDINAL ) The court with jurisdiction to rule on the appeal shall order the criminal court of first instance to carry out further investigations if that is necessary for a decision . If the court which has to rule is the court of first instance , the investigations shall be carried out by the investigating judge .

( CARDINAL ) Once the decision has become final , it is binding on the courts in subsequent proceedings . ”

As a general rule , there is no public hearing in ORG . ORG rules after sitting in private .

In its judgment of CARDINAL DATE ( VfSlg DATE ) ORG dismissed the application filed by ORG to have LAW b ) of LAW annulled as being unconstitutional . It found that section CARDINAL ( CARDINAL ) ( b ) as such did not violate LAW which , under NORP law , has the force of constitutional law . In the light of the GPE v. GPE case ( judgment of DATE , Series A no . CARDINAL-A ) , it held that it was not the refusal of a claim for compensation which was contrary to the Convention , but the re - examination of the question of guilt after a final acquittal . In ORG view only the separate re - assessment of evidence on the basis of the contents of the whole court file was likely to infringe the presumption of innocence . Nevertheless , ORG observed that it would be desirable to amend LAW ( b ) of LAW in order to clarify the law .


The applicant , who is a carpenter by profession , was born in DATE and lives in GPE .

On DATE the applicant had an accident at work . He sustained a splinter fracture of his left elbow which later developed into degenerative arthritis . The insurance company paid him an occupational injury pension ( tapaturmaeläke , olycksfallspension ) until DATE .

The applicant applied to have the pension continued from DATE . On DATE the insurance company rejected his application finding that the applicant 's working capacity had been reduced by PERCENT . It further held that the applicant 's inability to return to his previous profession as a carpenter was not based on the injury to his left arm , but on his neck and shoulder pains which had not been caused by the accident .

The applicant appealed to ORG ( tapaturmalautakunta , olycksfallsnämnden ) , repeating his requests . He relied on a medical opinion dated DATE in which he was found to be unfit for carpentry work as well as an another medical opinion dated DATE . He submitted CARDINAL further medical opinions dated DATE and DATE respectively .

ORG rejected his appeal on DATE by CARDINAL votes to CARDINAL . It ruled , inter alia , as follows :

“ [ t]he medical opinions at its disposal show that the strain tolerance of [ the applicant 's ] left elbow was reduced due to the limitations on moving it and its susceptibility to pain . Therefore he is incapable of full - time carpentry work . ... In the work - testing project ( työkokeilututkimus , arbetsprövning ) no plan for vocational education was tested due to [ the applicant 's ] pain . [ The applicant 's ] neck and head pains were not caused by the accident and therefore can not be compensated under LAW . ”

The applicant , represented by a lawyer , appealed to ORG ( vakuutusoikeus , försäkringsdomstolen ) submitting further evidence . ORG received several other documents , for example medical opinions and case histories of the applicant . The insurance company gave its opinion , to which the applicant replied .

On DATE ORG rejected the bulk of his appeal . It however modified ORG decision so as to grant the applicant a PERCENT occupational injury pension for DATE , during which the applicant had participated in a work - testing project .

Having telephoned ORG , the applicant was told that his case file consisted of CARDINAL pages of material . He acquainted himself with the case file at the office of the court 's registry and found CARDINAL documents , which allegedly had not been communicated to him by ORG . In his application for leave to appeal to ORG ( korkein oikeus , högsta domstolen ) he claimed , inter alia , that he had not been sent all the documents relevant to his case .

ORG refused the applicant leave to appeal on DATE .

On DATE the applicant , using an extraordinary procedure , requested ORG to annul its decision and that of ORG . He argued that the latter court had failed to send him documents , including a hand - written memorandum dated DATE not indicated ) written by a lawyer of the insurance company concerning her telephone conversation with an employee of ORG r.y . , PERSON r.f . , “ the Association ” ) . The note included , inter alia , the following comments : “ [ the applicant ] does not consider pain rehabilitation possible ” and “ [ the applicant ] is currently awaiting ORG decision ” . On DATE he submitted that the case file had also included an assessment and rehabilitation advice by the ORG dated DATE and DATE , respectively , which had not been sent to him .

On DATE ORG rejected his application by a majority . It found that the non - communicated documents related to decision - making within the insurance company and that it remained unclear when and how the memorandum was included in the case file , which was exceptionally voluminous . In any event , the non - communicated documents were not submitted to the court in connection with either of the parties ' submissions relied on in evidence by them or by the court in reaching its decision . One of the Justices considered that the CARDINAL documents mentioned by the applicant were not entirely irrelevant to the proceedings before ORG . In his view , ORG had made a procedural error and concluded that the applicant had not received a fair trial within the meaning of LAW .


Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;George Nicolaou;Giorgio Malinverni;Khanlar Hajiyev

The applicant was born in DATE and lives in GPE .

On DATE presidential elections were held in GPE . The candidate of the opposition ORG lost the election .

On TIME of the election day a group of opposition supporters gathered in front of ORG headquarters in the centre of GPE , claiming their candidate ’s victory in the election . At this time there were some violent altercations between opposition supporters and the security forces .

At TIME on DATE a number of opposition supporters started gathering near ORG , in the centre of GPE , to protest the election results . The crowd then started moving towards FAC , the main square in the city . It was reported that , on their way , some people in the crowd began damaging cars , buildings , benches and other urban constructions . It was also claimed that the organisers of this unauthorised demonstration and certain leaders of the opposition parties were inciting their followers to violence .

Police officers who had been deployed at FAC were attacked by some of the demonstrators . Shortly thereafter large numbers of riot police and military personnel , fully equipped with helmets , shields and truncheons , arrived in the square . The situation quickly escalated into public disorder and violent clashes occurred between the crowd and the police .

At TIME the demonstration was dispersed . CARDINAL of people were arrested during the events of DATE and in their aftermath .

The applicant was at FAC when the demonstration was being dispersed and suffered a serious injury to her right eye . The parties disagreed as to what exactly happened to the applicant on DATE .

According to the applicant , the number of police and military personnel deployed at FAC far exceeded the number of demonstrators . The police and military forces attacked the demonstrators suddenly , without any demands to disperse peacefully or any other prior warning . They used excessive force and clubbed anyone who happened to be in their way . A number of people were injured and CARDINAL man died as a result of police brutality .

As the police and military forces started to gain ground , people panicked as they attempted to run from the square . The applicant also tried to escape , but someone in the crowd pushed her from behind and she fell to the ground . She lifted her head and saw several policemen in helmets standing in front of her . She extended her arm in their direction , asking them to help her stand up . At this moment one of the policemen struck her forcefully in the right eye with a truncheon . The applicant immediately lost the sight in her right eye . The policeman attempted to hit her again , but she managed to evade the second blow .

A number of unknown individuals took her to Pharmacy no . CARDINAL , which was located nearby . The pharmacy ’s employees were trying to provide first aid to a number of other injured people who were already there .

At some point a number of soldiers attempted to enter the pharmacy , apparently with the intention of attacking the people inside , but were prevented from doing so by a person named PERSON and a pharmacy employee . A little later an ambulance arrived and took the applicant and CARDINAL other injured people to an emergency clinic .

The Government stated that , during the disorder , CARDINAL peaceful civilians were injured and serious damage was inflicted on various public and private property .

NORP However , the Government disputed the applicant ’s version of the incident when she had suffered her injury . With reference to the investigation carried out by the domestic authorities ( see sections C. and NORP below ) , they maintained that the applicant ’s injury was not caused by the police and that the injury was suffered as a result of her falling down on a blunt object .

On DATE the applicant was taken to an emergency clinic . The medical record indicated that she was diagnosed with “ haemophthalmia [ bleeding into the eyeball ] and contusion of the right eye ; a bruised wound of the right supraorbital ridge ” . It was noted that the applicant “ suffered the injury during the well - known events which took place in the city on DATE ” .

After receiving initial treatment , on DATE the applicant was transferred to ORG , a hospital specialising in ophthalmology . She was admitted with a diagnosis of “ severe rupture of the OD [ right eye ] sclera , ... hyphema [ blood in the anterior chamber of the eye ] , haemophthalmia , stitched injury of the supraorbital ridge ” . The applicant told the doctors that she had suffered the injury as a result of a blow by a police truncheon .

On DATE urgent surgery was performed on the applicant . Despite the surgery , she became permanently blind in her right eye .

On DATE the applicant was discharged from the hospital . She claimed that DATE the sight in her left eye also started to deteriorate rapidly .

On DATE the applicant filed a criminal complaint with ORG , asking that the policeman who had hit her with the truncheon be identified and incriminated . On an unspecified date she also lodged a petition asking to be granted the formal status of a “ victim of crime ” ( zərər çəkmiş şəxs ) .

By that time ORG had already instituted criminal proceedings concerning the public disorder which took place on DATE . It appears that this criminal case concerned the offences against public order allegedly committed by the demonstrators , and did not concern any violations allegedly committed by the police during the events in question . No separate criminal proceedings were instituted on the basis of the applicant ’s complaint and her letter was admitted to the case file of the above - mentioned criminal case .

On DATE and DATE the applicant was interrogated by an investigator as a witness ( not as a “ victim of crime ” ) . According to the applicant ’s testimony , on DATE she went to the seaside park ( located across the road from both ORG and FAC ) and sat on a bench to read a newspaper . At around TIME she saw CARDINAL people in the park , shouting slogans and protesting the election results . She joined this group because she too was discontent with the election . The group headed in the direction of ORG and , from there , to FAC . CARDINAL young people in the crowd were destroying things on their way , while some also attacked a group of policemen standing near the museum . The applicant and others in the crowd admonished these young people for their actions . When she arrived in FAC she saw that more people had already gathered there , including some opposition leaders . She also saw that riot police and military personnel were arriving and grouping in CARDINAL corner of the square . She did not hear the police or the military issue any demands to the crowd to disperse and leave the square . Suddenly the crowd and the police forces clashed . The demonstrators were throwing stones and pieces of wood and metal at the police , while the latter advanced upon the crowd , beating the demonstrators with rubber truncheons . When the police started gaining the upper hand , people started panicking and running away .

The applicant continued as follows :

“ ... I wanted to go home . When I was walking between the trees [ in CARDINAL corner of FAC ] I was pushed from behind by people who were running past me and fell to the ground . ... I asked an approaching policeman , who was dressed in a helmet and black uniform and was holding a truncheon and a shield , to help me stand up . Instead of helping me , the policeman hit me over my right eye with the truncheon . I held my eye crying , and when I said to him : “ What have I done to you that you hit me ? ” , I saw him raising his arm to hit me again . At this point I felt that some other policemen standing nearby said something to him , and then all of them went away from me . I could not see any rank insignia on their shoulders . I would not be able to recognise the policeman who hit me and the policemen who were near him . It is possible that some of the civilians who were nearby saw [ this incident ] , but I do not know specifically who witnessed it . I stood up by myself and while I was hobbling in the direction of Pharmacy no . CARDINAL , an unknown old man took me by the arm and accompanied me to the pharmacy so that I could get medical aid . That man left after we arrived at the pharmacy . The pharmacy was all covered with blood , [ and ] there were several injured civilians inside . At this point some soldiers approached the pharmacy and started knocking on the window , and a grey - haired old woman who was an employee of the pharmacy [ admonished them ] . At the same time , when ORG , whom I recognised because he used to be a television journalist , tried to open the door of the pharmacy [ from inside ] , one of the soldiers [ who was standing outside ] tried to hit him with a truncheon but missed . The reason [ ORG wanted to open the door and go outside ] was that he wanted to call an ambulance for the injured ... After a while an ambulance took us to a hospital ... In the hospital , I received stitches on my wounded eyebrow , and DATE I was transferred to ORG ... There I underwent an operation which lasted TIME ... However , the surgery did not help and my right eye became completely blind ... ”

On DATE the investigator requested a forensic expert ’s opinion on the applicant ’s injuries . According to the forensic report of CARDINAL July CARDINAL ( “ the First Forensic Report ” ) , issued by an expert of ORG of ORG , the forensic examination started on DATE and ended on DATE .

ORG was CARDINAL pages long and mostly consisted of copied extracts from the applicant ’s medical records . Inter alia , the report contained the following description of the injury :

“ The size of the right eyeball has shrunk , and [ the eyeball ] has sunk into the eye socket . The symmetry of the right eye and the left eye has been disrupted and remains in a deformed state . The circumference of the right eye ’s cornea is [ diminished ] in comparison with the left eye ’s cornea . Its anterior spherical shape is deformed . A [ scar ] is observable on the upper side of the cornea . The round shape of the right eye ’s iris is deformed and contains a whitish substance . There is a slanted whitish scar measuring QUANTITY on the right supraorbital ridge . ”

The report concluded , on the basis of previous medical records and diagnoses , that the applicant had indeed suffered injuries to her right eye , resulting in irreversible deformation of her face , which were not lifethreatening but nevertheless qualified as severely harmful to health . It was noted that “ [ based on the available materials ] it can not be excluded that these injuries ... were caused on DATE by a blow ( blows ) from a narrowly - shaped hard blunt object ... in the circumstances described by the applicant ... or other circumstances ” . However , the expert was unable to reach a definitive conclusion as to the cause of the injury , noting that such a conclusion could be made by a medical board comprised of experts specialised in ophthalmology .

In the meantime , prior to the delivery of this forensic report , on CARDINAL DATE the applicant wrote a letter to ORG , complaining , inter alia , that , instead of taking a formal procedural decision ordering a forensic examination , the investigator had simply informed her about the request for a forensic examination by a letter . She also complained that the appointed forensic expert had delayed the examination and avoided examining her in person under various pretexts . On DATE she wrote another letter to ORG , reiterating the above complaints . It appears that none of these letters were answered .

According to the applicant , she had not seen ORG prior to the receipt of the Government ’s observations in the present proceedings before the ORG .

On DATE the investigator ordered another forensic examination . The experts were asked , inter alia , the following specific questions :

“ CARDINAL . To determine whether the loss by PERSON of the vision in her right eye was the direct result of the initial injury or of any errors committed during the subsequent medical treatment .

To determine whether the injury sustained by PERSON was caused in the circumstances described by her , i.e. as a result of falling down during the incident or as a result of being struck with a truncheon by a policeman . ”

According to the forensic report of DATE ( “ the Second Forensic Report ” ) , this examination was carried out from DATE to DATE by a board of CARDINAL experts of ORG of ORG , including CARDINAL expert specialised in ophthalmology .

ORG was CARDINAL pages long . The report consisted almost entirely of copied extracts from ORG and the applicant ’s medical records . It was noted that she had received adequate medical treatment both in the emergency clinic and ORG and that the medical personnel had committed no errors .

The body of the report did not contain any analysis as to possible causes of the injuries sustained by the applicant .

In the conclusion part of the report , the following answers were given to the questions asked ( see paragraph CARDINAL above ) :

“ CARDINAL . The full loss by PERSON of the vision in her right eye was caused by the trauma suffered by her .

No damage typically attributatle to a police truncheon have been discovered on PERSON person . ”

On DATE the investigator issued a decision to discontinue the criminal investigation .

According to this decision , in addition to the applicant , a total of CARDINAL witnesses had been questioned in connection with the applicant ’s complaint . All of these witnesses were shown a photo of the applicant and none of them recognised her .

Six of the witnesses were policemen who had been present at or near FAC during the dispersal of the unauthorised demonstration of DATE . All of them testified that they had not known the applicant , that they themselves had not hit the applicant with a truncheon , and that they had not seen any woman being hit by a policeman during the events of DATE . They also surmised that the applicant had suffered her injury as a result of her own actions , i.e. falling down while running away from FAC , or being pushed by people in the crowd .

NORP The remaining CARDINAL witnesses , GPE and ORG , were employees of Pharmacy no . CARDINAL . They were both male . Both of them testified that they had been at work on DATE , that they had not seen any injured woman brought to the pharmacy on DATE , had not known the applicant and had not seen how she had sustained her injury .

The decision further stated that none of the police or military personnel present at FAC during the events of DATE had been presented to the applicant for identification , because in her testimony she had stated that she would not be able to recognise the person who had allegedly caused her injury .

Further , according to the investigator , ORG “ stated that ... [ the applicant ’s injuries ] were a result of her falling down and her head striking an outstanding blunt object located on the ground , and that there were no damage on her person typically attributable to a blow from a police truncheon ” .

The investigator concluded that it could not be established that the applicant had been struck by a policeman and determined that the applicant had received the injuries as a result of her own actions . Accordingly , it was found that no crime had been committed ( cinayət hadisəsinin olmaması ) and that the applicant ’s petition to be recognised as a “ victim of crime ” should be rejected . For these reasons , the investigator decided to discontinue the investigation into the applicant ’s allegations .

According to the ORG , the applicant was sent a copy of this decision by a letter of CARDINAL DATE . According to the applicant , she was never informed of this decision .

In the meantime , in DATE the applicant lodged a civil action with ORG against ORG , claiming monetary compensation for her injury . On DATE the ORG refused to examine the case , noting that compensation claims against the ORG should indicate ORG as a codefendant and should be lodged with ORG .

On an unspecified date the applicant lodged her civil claim with ORG , indicating ORG and ORG as co - defendants and claiming compensation for her injury .

By a letter of CARDINAL DATE , ORG informed ORG that a criminal investigation in respect of the applicant ’s allegations was in progress .

On DATE ORG held its first hearing and heard the submissions of the applicant and co - defendants . The applicant gave her account of the incident leading to her injury and reiterated her claim . The counsel for the first defendant , ORG , submitted that the applicant had filed a criminal complaint which was pending before the investigation authorities . He further argued that the police had been entitled to use force against the crowd during the events of DATE because the manifestation had been unauthorised and its participants had been causing public disorder . In any event , he maintained that the police had not inflicted any injuries on the applicant and that her claims were unsubstantiated . The counsel for ORG submitted that he was in accord with the submissions of the first defendant .

DATE . On DATE the ORG heard oral testimonies by CARDINAL witnesses who testified on behalf of the applicant .

Mr I.G. ( the man whom the applicant mentioned in her testimony , cited in paragraph CARDINAL above ) testified as follows ( the trial transcript omitted the questions asked by the parties’ counsels during cross - interrogation , but contained the record of the witness ’s answers to them ) :

“ On DATE I saw PERSON , who was wounded in her eye , in Pharmacy no . CARDINAL . At that time , some policemen tried to enter the pharmacy and , when I wanted to open the entrance door , they tried to kick me . I did not see who had hit PERSON and can not say anything in this respect .

[ Answers to cross - interrogation by the applicant ’s counsel : ]

- No , I did not see the claimant PERSON being hit by a policeman .

- Yes , as PERSON was injured , I called an ambulance on DATE .

- Yes , when I saw PERSON at FAC , her eye had already been put out and her face was covered with blood .

- Yes , when I opened the door of the pharmacy , [ they ] wanted to kick me , but I evaded the kick by quickly closing the door .

[ Answer to cross - interrogation by the defendant ’s counsel : ]

- No , I did not see the claimant PERSON being hit by a policeman . ”

Ms A.A. testified as follows :

“ [ People ] were gathering at FAC at TIME on DATE . At that time I was near ORG [ located on FAC ] , and I saw the police and special forces attack the people who had gathered at FAC without any warning and start to beat them with truncheons . I was there on DATE and I saw the claimant , whose name I learnt thereafter , falling to the ground as a result of being pushed [ in the crowd ] and [ I saw ] police officers in black uniforms , wearing protective helmets on their heads and holding truncheons in their hands . She [ the applicant ] extended her arm towards those police officers and asked them to help her stand up , but CARDINAL of the police officers struck her forcefully in her right eye with his truncheon . When the police officer attempted to hit her again , she evaded the blow by moving away her head . Then some civilians took her to Pharmacy no . CARDINAL which was located nearby . She was given some first aid in the pharmacy and thereafter she and other injured people in the pharmacy were taken to hospital by ambulance .

- Yes , I was among those who gathered at FAC on DATE .

- Yes , PERSON , whom I had not known before , was there on DATE .

- Yes , on DATE I saw that PERSON fell to the ground and that one of the police officers hit her with the truncheon that he was holding .

- Yes , PERSON eye was injured as a result of the blow inflicted by the police officer .

- Yes , she was given medical aid in the ‘ Green Pharmacy’ located nearby and was then taken to a hospital by an ambulance .

- No , I would not be able to recognise the police officer who hit PERSON .

- Yes , I had known [ ORG ] before , but I saw PERSON for the first time at FAC ] . ”

Ms PERSON testified as follows :

“ I had not known the claimant before . I was an observer in Polling Station no . CARDINAL during the presidential election of DATE . At TIME on DATE , near FAC , I saw PERSON fall to the ground and ask some masked police officers with truncheons in their hands not to hit her , but one of the police officers hit PERSON with his truncheon and , as a result , her eye was injured . I bought medication for [ the applicant ] from the ‘ Green Pharmacy’ .

- Yes , on DATE I saw PERSON , whose name I learnt later , falling to the ground at FAC .

- Yes , on DATE one of the police officers who were at FAC hit PERSON in the eye area with his truncheon .

- No , I had not known PERSON before .

- Yes , CARDINAL man brought PERSON , I saw that her eye was bleeding .

- Yes , I was told that the medication necessary for PERSON was available at the ‘ Green Pharmacy’ , located nearby . ”

On DATE , DATE , ORG delivered its judgment , dismissing the applicant ’s claim . Having regard to the medical records , the court noted that the applicant had suffered an injury to her eye . However , it considered that she failed to substantiate her allegation that the injury had been inflicted by a police officer . In particular , the court assessed the witness testimonies as follows :

“ During the hearing PERSON , heard by the court as a witness , testified that she had not personally known PERSON previously . ... At TIME on DATE she saw that PERSON fell to the ground and that she asked the masked policemen , holding truncheons in their hands , not to hit her . However , CARDINAL of the policemen hit PERSON with his truncheon . As a result , PERSON suffered an injury to her eye . [ The witness ] bought some medication for PERSON from the ‘ Green Pharmacy’ .

PERSON , a witness , gave a similar testimony .

PERSON , a witness , testified that on DATE he saw PERSON with an injured eye in Pharmacy no . CARDINAL . ... He did not see who had beaten the applicant .

In accordance with Article CARDINAL of LAW , each party must prove any allegations which it makes in support of its claims and objections .

During the hearing , PERSON has failed to prove the allegations she made in her judicial claim .

The court finds that the testimonies of witnesses heard during the trial can not serve as a ground for upholding the applicant ’s claim .

Having assessed the above , the court concludes that the claim must be rejected as unsubstantiated . ”

On DATE ORG upheld the first - instance court ’s judgment , noting , without any further elaboration , that the applicant had been unable to prove her allegations .

On DATE ORG upheld the lower courts’ judgments .

Police officers may use special equipment in respect of offenders in the event of , inter alia , a mutiny or mass unrest ( Article CARDINAL.II ) . “ Special equipment ” is defined as truncheons , arm - restraining instruments , tear gas , rubber bullets , water cannons and other means ( Articles CARDINAL ) . Physical force , special equipment or firearms may be used when absolutely necessary in a manner proportionate to the danger posed . Loss of life caused by such absolutely necessary use of physical force , special equipment or firearms can not be considered as a violation of the right to life ( Article CARDINAL ) . The police authorities must perform an enquiry into every incident involving the use of physical force , special equipment or firearms and issue a relevant opinion concerning its lawfulness ( Article CARDINAL.VII ) . Unlawful use of force by a police officer entails the officer ’s responsibility under the relevant legislation ( Article CARDINAL ) .

Police officers may use physical force , special equipment or firearms only in the event of absolute necessity or necessary self - defence , after all other means of coercion have failed to produce the required result , and depending on the gravity of the offence and the personality of the offender ( Article CARDINAL ) . Persons injured as a result of the use of physical force , special equipment or firearms must be provided with necessary medical aid ( Article CARDINAL ) . The police officer must inform the relevant police authority , in writing , about the instances in which he or she used physical force , special equipment or firearms ( DATE . The relevant prosecutor must also be informed about such use of force within TIME ( Article CARDINAL.I.CARDINAL ) .

Military servicemen must issue a prior warning about their intention to use physical force , special equipment , firearms or combat equipment , and allow sufficient time for compliance with their demands prior to resorting to such use of force . However , exceptions are made in cases where issuance of such prior warning would be untimely or impossible , or where a delay in the use of force would create danger to human health or life or other serious consequences . Military servicemen are required to provide first aid to injured persons and to inform the relevant prosecutor about any cases of injuries or death resulting from the use of force . Use of force by military servicemen in excess of their competence entails their responsibility under the relevant legislation ( Article CARDINAL ) .

If necessary , the following special equipment may be used in cases of mass unrest : rubber truncheons , tear gas , light- and noise - emitting distracting devices , water cannons , armoured vehicles and service dogs ( LAW ) .

Under Articles CARDINAL.CARDINAL.CARDINAL and CARDINAL of LAW ( “ the CCrP ” ) , criminal proceedings may not be instituted and , if instituted , must be discontinued at any stage of the pre - trial proceedings if it is found that no crime has been committed ( cinayət hadisəsi olmadıqda ) .

If there are sufficient grounds to consider that a person has sustained direct moral , physical or material damage as a result of an act proscribed by criminal law , this person shall be recognised as a “ victim of crime ” ( zərər çəkmiş şəxs ) ( Article CARDINAL ) . If there are not sufficient grounds for recognising a person as a “ victim of crime ” at the time of institution of criminal proceedings , a decision to grant “ victim of crime ” status shall be taken ( either by a preliminary investigator , investigator , prosecutor or court ) as soon as the existence of such grounds is established ( Article CARDINAL ) .

A person recognised as a “ victim of crime ” has , inter alia , the following procedural rights : to submit materials to the criminal case file ; to request the status of a private prosecutor at any pre - trial stage ; to make objections to the actions of the criminal prosecution authority ; to lodge petitions ; to have access to transcripts and documents in the case file ; to be informed about and to obtain copies of the procedural decisions of the criminal prosecution authority ( including a decision to discontinue the criminal proceedings ) ; to lodge appeals against procedural actions or decisions , etc . ( Article CARDINAL ) . In contrast , a person participating in the proceedings as a witness is entitled to have access only to those transcripts and documents which are related to him or her ( Article PERSON ) .

NORP Parties to criminal proceedings ( and other persons involved in such proceedings in cases specified in the CCrP ) are entitled to complain about procedural actions or decisions by the criminal prosecution authority . Procedural actions or decisions by the preliminary investigator or the investigator may be appealed to the supervising prosecutor and the procedural actions or decisions of the latter may be appealed to the hierarchically superior prosecutor ( Articles CARDINAL.CARDINAL.CARDINAL and CARDINAL.CARDINAL.CARDINAL ) . Certain types of procedural actions or decisions ( of the preliminary investigator , investigator or supervising prosecutor ) stipulated in LAW ORG may be appealed directly to the supervising court ( LAW ) .

The following persons may lodge complaints against the procedural actions or decisions of the criminal prosecution authority directly with the supervising court : ( CARDINAL ) the accused person ( or a suspect ) and his or her representative ; ( CARDINAL ) the aggrieved party ( victim of the crime ) and his or her representative ; and ( CARDINAL ) other persons whose rights have been violated by the impugned action or decision ( LAW ) . A decision to discontinue the criminal proceedings may be appealed , inter alia , to a supervising court ( LAW .

Articles CARDINAL - CARDINAL of the ORG provide for a procedure of carrying out expert examinations . In particular , LAW provides that a person suspected or accused of committing a criminal offence has a right , inter alia , to procure an “ alternative expert examination ” and request that the results of such examination be admitted to the criminal file .

Under Article CARDINAL of LAW ( “ the ORG ” ) , each party in civil proceedings bears the burden of proving the grounds for their respective claims and objections .

Under LAW ORG , a judge must suspend the civil proceedings if it is impossible to examine the claim prior to the completion of another set of constitutional , civil , criminal or administrative proceedings precluding such examination .

DATE . Under LAW ORG , if upon examination of a civil claim a court discloses an appearance of criminal elements in the actions of the parties to the case or other persons , it must deliver a special ruling ( xüsusi qərardad ) informing a public prosecutor thereof .

The relevant extracts from LAW ( adopted by ORG CARDINAL/CARDINAL of CARDINAL DATE ) reads :

Article CARDINAL

“ Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty . ”

Article CARDINAL

“ No law enforcement official may inflict , instigate or tolerate any act of torture or other cruel , inhuman or degrading treatment or punishment , nor may any law enforcement official invoke superior orders or exceptional circumstances such as a state of war or a threat of war , a threat to national security , internal political instability or any other public emergency as a justification of torture or other cruel , inhuman or degrading treatment or punishment . ”

The relevant extracts from ORG ( adopted by the Eighth UN Congress on ORG , GPE , GPE , DATE to CARDINAL DATE ) read :

“ ... CARDINAL . Governments and law enforcement agencies should develop a range of means as broad as possible and equip law enforcement officials with various types of weapons and ammunition that would allow for a differentiated use of force and firearms . These should include the development of non - lethal incapacitating weapons for use in appropriate situations , with a view to increasingly restraining the application of means capable of causing death or injury to persons . For the same purpose , it should also be possible for law enforcement officials to be equipped with self - defensive equipment such as shields , helmets , bullet - proof vests and bullet - proof means of transportation , in order to decrease the need to use weapons of any kind .

The development and deployment of non - lethal incapacitating weapons should be carefully evaluated in order to minimize the risk of endangering uninvolved persons , and the use of such weapons should be carefully controlled .

Law enforcement officials , in carrying out their duty , shall , as far as possible , apply non - violent means before resorting to the use of force and firearms . They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result .

Whenever the lawful use of force and firearms is unavoidable , law enforcement officials shall :

( a ) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved ;

( b ) Minimize damage and injury , and respect and preserve human life ;

( c ) Ensure that assistance and medical aid are rendered to any injured or affected persons at the earliest possible moment ; ...

Where injury or death is caused by the use of force and firearms by law enforcement officials , they shall report the incident promptly to their superiors , in accordance with principle CARDINAL .

Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law .

Exceptional circumstances such as internal political instability or any other public emergency may not be invoked to justify any departure from these basic principles . ...

... CARDINAL . Governments and law enforcement agencies shall establish effective reporting and review procedures for all incidents referred to in principles CARDINAL and CARDINAL ( f ) . For incidents reported pursuant to these principles , ORG and law enforcement agencies shall ensure that an effective review process is available and that independent administrative or prosecutorial authorities are in a position to exercise jurisdiction in appropriate circumstances . In cases of death and serious injury or other grave consequences , a detailed report shall be sent promptly to the competent authorities responsible for administrative review and judicial control .

Persons affected by the use of force and firearms or their legal representatives shall have access to an independent process , including a judicial process . In the event of the death of such persons , this provision shall apply to their dependants accordingly .

Governments and law enforcement agencies shall ensure that superior officers are held responsible if they know , or should have known , that law enforcement officials under their command are resorting , or have resorted , to the unlawful use of force and firearms , and they did not take all measures in their power to prevent , suppress or report such use . ”

The relevant extracts from Functioning of democratic institutions in GPE , Report of ORG ) , by co - rapporteurs PERSON and PERSON ( DATE , ORG . DATE ) , read :

“ D. ORG - election events

Security forces maintained a heavy presence around PERSON headquarters since TIME on polling DATE . In TIME supporters of the PERSON party gathered in front of the party ’s office and this meeting , although not authorized by the authorities , was described as rather peaceful . Shortly after the closing of the poling stations , PERSON supporters announced the victory of the leaders of the party . Some turmoil started and the demonstration was strongly repressed by policemen . Alleging they had to enter the party office to arrest party officials , security forces started to use force against the protesters and violent fights followed .

Once the preliminary final results had been announced on DATE , the PERSON party denounced them as unrealistic and falsified and called for a demonstration in the main square of the capital . During the demonstration , the demonstrators stole a police vehicle and charged against the police forces killing a policeman . In the clashes which followed , several persons , both demonstrators and policemen , were seriously wounded . Several other sources indicated that CARDINAL persons died during the clashes . ”

The relevant extracts from ORG ( ORG Report from ORG in GPE DATE ( DATE ) read :

“ In the immediate aftermath of the elections , demonstrations took place on CARDINAL and DATE , which resulted in violent clashes between security forces and demonstrators in GPE .

On TIME CARDINAL DATE in front of ORG , members of the OSCE / ODIHR Election Observation Mission witnessed police attacking peaceful pro - opposition supporters . On DATE , CARDINAL demonstrators and pro - opposition supporters gathered in FAC in the centre of GPE to protest what they considered to have been a stolen election .

On their way to the square demonstrators were witnessed vandalizing buildings and vehicles , and attacking police forces with metal bars and stones . At the square , demonstrators were rapidly surrounded by police and security forces , which used overwhelming force to disperse the crowd . Security forces were witnessed beating demonstrators with truncheons after they had been detained and no longer posed any danger or as they were fleeing the area . Video tape recordings provide evidence of the scale of excessive force and brutality used by government forces to overwhelm the demonstrators .

The violence was followed by a wave of detentions . According to officials , the detainees were persons involved in the violent activities or responsible for organizing the violence . ... The Minister of Interior reported that CARDINAL persons were detained following the violent clashes . ...

The majority of the people detained in connection with the elections were later released without charge . In total , CARDINAL persons were charged with criminal offences in connection with the post - election clashes , of whom CARDINAL had been brought to trial at the time this report was prepared . ...

At the time of the writing of this report , the OSCE / ORG was unaware of any cases of charges having been brought against police officers or other officials for brutality or excessive use of force against demonstrators . ”

The relevant extract from the DATE Report of ORG reads :

“ On TIME CARDINAL DATE and DATE , clashes between the police ( and the military ) and protesters grew into a massively violent confrontation as the opposition protested the flawed elections . The police and the military surrounded PERSON using tear gas , rubber bullets , police dogs and truncheons on protesters . They brutally beat protesters , even after they had fallen to the ground , injuring scores of people , as well as members of the press . Many police officers were also injured . At the time of this writing the number of casualties was not DATE clear : depending on sources , CARDINAL deaths were reported , along with CARDINAL of injuries , including a DATE child . NORP authorities maintained that the mass unrest was instigated by the opposition leaders in order to destabilize GPE , but according to numerous accounts , the police actions were unprovoked . ”

The relevant extract from ORG of ORG reads :

“ On DATE , opposition activists tried to conduct an unapproved meeting at GPE , the central plaza in GPE . They were beaten by the police . CARDINAL of the activists , CARDINAL-year old PERSON , was beaten to death by police , while CARDINAL of others were injured . The protesters resisted by throwing stones and injuring CARDINAL of policemen . In the ensuing criminal investigation , police cruelty was not investigated at all . Moreover , in a joint statement by ORG and ORG , the opposition was accused for being responsible for the death of a protester . ”

The relevant extract from the DATE Country Report on Human Rights and Practices of ORG , released by ORG , and ORG on DATE , reads :

“ On DATE , a large crowd gathered for an unsanctioned demonstration in downtown GPE that turned violent . Protestors marched from PERSON headquarters to FAC and along the way beat CARDINAL of security officers , destroyed security forces’ vehicles , and damaged government buildings . As CARDINAL security forces surrounded the square , a group of protestors attacked the security forces , who stormed the demonstrators with tear gas and truncheons , while unknown demonstrators drove a stolen military truck into police lines . Security forces responded with excessive force , beating many demonstrators , sometimes to the point of unconsciousness and even after they were trying to leave the area or were detained , killing CARDINAL and reportedly injuring CARDINAL persons . ”

DATE . The relevant extracts from the ORG press release of CARDINAL DATE ( GPE : Post - Election Clashes Turn Deadly ) read :

“ CARDINAL of opposition protesters took to the streets of GPE , the capital , at TIME . The demonstration quickly grew violent , in part because once the protesters began to congregate , police and military forces immediately surrounded them . The protesters drove away members of the security forces there and marched to GPE ’s PERSON ( Freedom ) Square . During their march , protesters severely beat some police officers and soldiers , who remain hospitalized . The protesters also destroyed a number of police and military vehicles , and damaged government buildings along the way .

Soon after the opposition protesters arrived at FAC , CARDINAL riot police and military troops surrounded the entire plaza . Riot police and military stormed the opposition protest , using tear gas , rubber bullets , police dogs and truncheons . From the roof of a nearby building , a ORG researcher saw police and military troops chase down protesters , surround them and viciously beat them . Many of the protesters continued to be beaten after they had fallen to the ground . ORG observed a number of civilian pro - governmental supporters participating in the beatings with the security forces .

Police beat to death CARDINAL person , ORG , DATE , whose body ORG viewed after the protests . His body was completely black and blue , and his head smashed and bloody ...

So far , CARDINAL persons have sustained serious injuries during the clashes , according to local hospital officials and other sources . Many of the wounded were unable to walk and had to be carried away from the square . ORG has conducted interviews with CARDINAL of the wounded , all of who describe being surrounded by groups of riot police and military troops who beat them severely , leaving many unconscious . ... Also among the injured are CARDINAL police and army personnel . ”

The relevant extract from ORG DATE ( DATE , Country Summary : GPE ) reads :

“ Post - Election Trials

CARDINAL opposition party members and supporters were tried on charges relating to the post - election violence . CARDINAL were released on bail , the rest remained in pre - trial detention for DATE . NORP courts convicted all of the defendants , sentencing CARDINAL people to custodial sentences ranging from DATE . The remainder were released on three- to DATE suspended prison sentences . On DATE , ORG sentenced CARDINAL opposition leaders to between CARDINAL - and - a - half and DATE in prison for their role in the postelection violence . ”