CASE OF TOKIĆ AND OTHERS v. BOSNIA AND HERZEGOVINA

Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-1;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

On DATE the local police searched the applicant and found a hand grenade on him . The police acted on a tip - off because the applicant had a history of violent outbursts , including the killing of his first wife .

On DATE he was charged with possessing a prohibited weapon .

On DATE ORG found the applicant not guilty by reason of insanity ( paranoid schizophrenia ) and imposed a hospital order on him under LAW DATE ( “ old LAW ” ) . The decision entered into force on DATE .

On DATE he was placed in FAC .

On DATE ORG reviewed the necessity of the applicant ’s continued confinement pursuant to LAW ( “ old LAW ” ) . It decided on the basis of reports prepared by ORG that the applicant ’s condition did not allow for his discharge .

On DATE the applicant lodged a complaint with ORG concerning the lawfulness of his detention .

On DATE the ORG relinquished jurisdiction in favour of ORG in GPE pursuant to LAW ( “ new LAW ” ) .

On DATE ORG in GPE established that the applicant ’s mental disorder no longer warranted his confinement and ordered his conditional discharge . He was released from ORG on DATE .

In the light of the applicant ’s release , on DATE ORG ( “ the LAW ” ) , the legal successor of ORG , held that it was no longer justified to continue the examination of the applicant ’s case .

The applicant was born in DATE and lives in a care home in GPE .

On DATE he threatened GPE with a knife on the LOC of ORG in GPE .

On DATE he was charged with threatening behaviour .

On DATE ORG found the applicant not guilty by reason of insanity ( schizophrenia ) and imposed a hospital order on him under LAW . The decision entered into force immediately .

On DATE the applicant was placed in FAC .

On DATE ORG established that the applicant ’s mental disorder no longer warranted his confinement and ordered his conditional discharge . He was released on DATE .

On DATE ORG recalled the applicant to ORG , after he had been found to be abnormally aggressive by ORG .

On DATE the applicant complained of the unfairness and outcome of the criminal proceedings ( which had ended on DATE ) to ORG .

On DATE ORG relinquished jurisdiction in favour of ORG in GPE pursuant to LAW .

Relying on section CARDINAL of LAW of ORG ( “ LAW ” ) , on DATE ORG in GPE reviewed the necessity of the applicant ’s continued confinement . It decided on the basis of reports prepared by ORG that the applicant ’s condition did not allow for his discharge . The applicant appealed to ORG in GPE pursuant to the instructions of the social work centre .

On DATE ORG in PERSON declined jurisdiction and , since it was unable to determine the competent body to which to transfer the file , dismissed the appeal . The applicant lodged a further appeal with ORG .

On DATE ORG dismissed the appeal because the applicant had not appealed to the competent second - instance body . ORG was silent regarding which body was competent at second instance .

On DATE the applicant complained of the unlawfulness of his detention to special chambers which had been created within ORG on DATE with a mandate to decide on cases received by the former ORG ( namely , ORG within ORG ) .

On DATE ORG in GPE established that the applicant ’s mental disorder no longer warranted his confinement and ordered his unconditional discharge . It relied on section CARDINAL(CARDINAL ) of LAW . The applicant was released from ORG on DATE .

On DATE ORG , the legal successor of ORG , dismissed the applicant ’s complaint of DATE as out of time and that of CARDINAL DATE as incompatible ratione temporis : ORG had jurisdiction to deal only with those unresolved cases of the former ORG which had been introduced by DATE .

The applicant was born in DATE . He is still in FAC .

On DATE the applicant killed his parents under the delusion that they were trying to kill him . On DATE , having surrendered himself to the police , the applicant was remanded in custody .

On DATE he was charged with CARDINAL counts of murder .

On DATE ORG found the applicant not guilty by reason of insanity ( schizophrenia ) and imposed a hospital order on him under LAW . The decision entered into force on DATE .

On DATE the applicant was transferred from the remand section of FAC to FAC .

On DATE and CARDINAL DATE ORG reviewed the necessity of the applicant ’s continued confinement pursuant to LAW ( notwithstanding the fact that the LAW was in force only until DATE ) . It decided on the basis of reports prepared by ORG that the applicant ’s condition did not allow for his discharge .

On or DATE ORG relinquished jurisdiction in favour of ORG in GPE pursuant to LAW .

On DATE the applicant complained to ORG of the unlawfulness of his detention . His application and a number of other similar applications were subsequently joined .

On DATE ORG found that the applicant ( like others in a similar situation ) had found himself in a legal vacuum following the DATE reform of the criminal legislation . Furthermore , it held that FAC was not an appropriate institution for the detention of mental health patients . As a result , ORG found breaches of LAW and CARDINAL of LAW and ordered the competent authorities to undertake such legislative and other measures as might be necessary within DATE of delivery of the decision . The decision was delivered on DATE . It would appear that the applicant and the other complainants did not seek any compensation .

On DATE he entered a tram and stabbed I.D. for no apparent reason . PERSON survived the attack .

On DATE the applicant killed E.G. under the delusion that he was persecuting his mother . He was remanded in custody the same evening .

On DATE the applicant was charged with murder .

On DATE he was transferred from the remand section of FAC to FAC

On DATE ORG found the applicant not guilty by reason of insanity ( hebephrenic schizophrenia ) and imposed a hospital order on him under LAW . The decision entered into force on DATE .

On CARDINAL occasions ( DATE , DATE , DATE , DATE and DATE ) , ORG reviewed the necessity of the applicant ’s continued confinement pursuant to LAW ( although the LAW was no longer in force ) . It decided on the basis of reports prepared by ORG and ORG that the applicant ’s condition did not allow for his discharge .

On DATE , DATE and CARDINAL DATE ORG upheld the decisions of DATE , DATE and DATE respectively .

On DATE ORG examined a number of joined applications ( including that of PERSON ) and found breaches of LAW and CARDINAL of LAW ( see paragraphs DATE above ) .

On DATE the ORG established that the applicant ’s mental disorder no longer warranted his confinement and ordered his conditional discharge . It relied on LAW ( although the LAW was no longer in force ) . The applicant was released from ORG on DATE .

There are CARDINAL legal regimes applicable to psychiatric detention .

First of all , the competent civil court can order compulsory confinement of a mental health patient in a psychiatric hospital if it is satisfied on the evidence of a psychiatrist that this is necessary in order to protect the patient concerned and/or the public from serious harm ( see sections CARDINAL(CARDINAL ) , PERSON ) and CARDINAL ) of LAW of ORG ; PERSON o zaštiti osoba sa duševnim smetnjama ; published in ORG ( “ OG FBH ” ) no . CARDINAL of DATE ; amendments published in OG FBH no . CARDINAL of CARDINAL DATE ; “ LAW ” ) . The patient concerned must be summoned by the court , where this is possible , and must be examined in person by a psychiatrist ( see sections CARDINAL(CARDINAL ) and GPE of LAW ) . Proceedings must be concluded within DATE and a court decision must be issued within DATE ( see sections CARDINAL(CARDINAL ) and CARDINAL(CARDINAL ) of the Non - Contentious Proceedings Act of the Federation of Bosnia and DATE ; PERSON o vanparničnom postupku ; published in OG FBH no . CARDINAL of DATE ; amendments published in OG FBH nos . CARDINAL of DATE and CARDINAL of DATE ) . A court decision ordering civil psychiatric detention must always indicate the duration of such detention ; that period can not be longer than DATE , but is renewable ( see sections CARDINAL of LAW ) . The patient concerned , among other authorised persons and bodies , has the right to appeal within DATE ( see section DATE of LAW ) . The competent second - instance court must give a decision within DATE ( ibid . ) . A civil psychiatric detainee has the right to seek judicial review of his or her detention at any time ( see section CARDINAL of LAW ) .

Secondly , the competent criminal court can impose a hospital order ( obavezno psihijatrijsko liječenje i čuvanje u zdravstvenoj ustanovi ) on an offender who at the time of committing a criminal offence was suffering from a mental disorder affecting his or her mental responsibility , if it is satisfied on the evidence of a psychiatrist that this is necessary in order to prevent the offender from committing another criminal offence . However , there is an important difference in this regard between the old and new criminal legislation ( the latter entered into force on DATE ) . While a hospital order can still be imposed on those who have been found guilty although suffering from diminished responsibility , it can no longer be imposed against those who have been found not guilty by reason of insanity ( see LAW DATE ; NORP zakon PERSON i ORG ; published in OG FBH no . CARDINAL of DATE ; amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of DATE ) .

Accordingly , as from DATE an offender who has been acquitted on the grounds of insanity can be placed in psychiatric detention only by the competent civil court if this is considered necessary for the protection of the offender and/or the public from serious harm ( see paragraph CARDINAL above ) . Any such acquittal is therefore reported to the competent social work centre which must initiate the appropriate procedure ( see LAW ; PERSON o krivičnom postupku PERSON i ORG ; published in OG FBH no . CARDINAL of DATE ; amendments published in OG FBH nos . CARDINAL of DATE , CARDINAL of DATE , CARDINAL of DATE , CARDINAL of CARDINAL DATE , CARDINAL of DATE , CARDINAL of DATE and CARDINAL of CARDINAL DATE ) .

The relevant authorities had until DATE to verify the status of all those who had been acquitted on the grounds of insanity pursuant to the old criminal legislation , to terminate the application of any hospital orders which were still pending and to initiate the procedure in which the competent civil court would decide whether to prolong the detention of any such mental health patient ( see Article CARDINAL of LAW DATE and the instructions of ORG no . CARDINAL - CARDINAL - CARDINAL/CARDINAL of DATE ) .


CASE OF X, Y AND Z v. THE UNITED KINGDOM

No violation of Art. 8;Not necessary to examine Art. 14+8

ORG The applicants are NORP citizens , resident in GPE , GPE .

The first applicant , " X " , was born in DATE and works as a college lecturer . X is a female - to - male transsexual and will be referred to throughout this judgment using the male personal pronouns " he " , " him " and " his " .

Since DATE he has lived in a permanent and stable union with the second applicant , " Y " , a woman born in DATE . The third applicant , " Z " , was born in DATE to the second applicant as a result of artificial insemination by donor ( " AID " ) . Y has subsequently given birth to a second child by the same method .

X was born with a female body . However , from DATE he felt himself to be a sexual misfit and was drawn to " masculine " roles of behaviour . This discrepancy caused him to suffer suicidal depression during adolescence .

In DATE , he started to take hormone treatment and to live and work as a man . In DATE , he began living with Y and DATE he underwent gender reassignment surgery , having been accepted for treatment after counselling and psychological testing .

ORG In DATE , X and Y applied through their general practitioner ( " GP " ) for AID . They were interviewed by a specialist in DATE with a view to obtaining treatment and their application was referred to a hospital ethics committee , supported by CARDINAL references and a letter from their GPE . It was , however , refused .

ORG They appealed , making representations which included reference to a research study in which it was reported that in a study of CARDINAL children raised by transsexual or homosexual parents or carers , there was no evidence of abnormal sexual orientation or any other adverse effect ( NORP Green , " Sexual identity of CARDINAL children raised by homosexual or transsexual parents " , ORG , DATE , vol . CARDINAL , pp . CARDINAL - CARDINAL ) .

In DATE , the hospital ethics committee agreed to provide treatment as requested by the applicants . They asked PERSON to acknowledge himself to be the father of the child within the meaning of ORG see paragraph CARDINAL below ) .

ORG On DATE , Y was impregnated through AID treatment with sperm from an anonymous donor . X was present throughout the process . Z was born on DATE .

ORG In DATE , X had enquired of ORG ( see paragraph CARDINAL below ) whether there was an objection to his being registered as the father of Y ’s child . In a reply dated DATE to ORG Member of ORG , the Minister of ORG replied that , having taken legal advice , the Registrar General was of the view that only a biological man could be regarded as a father for the purposes of registration . It was pointed out that the child could lawfully bear ORG surname and , subject to the relevant conditions , X would be entitled to an additional personal tax allowance if he could show that he provided financial support to the child .

ORG Nonetheless , following Z ’s birth , X and Y attempted to register the child in their joint names as mother and father . However , X was not permitted to be registered as the child ’s father and that part of the register was left blank . Z was given X ’s surname in the register ( see paragraph CARDINAL below ) .

ORG In DATE , X ’s existing job contract came to an end and he applied for DATE posts . The only job offer which he received was from a university in GPE . The conditions of service included accommodation and free education for the dependants of the employee . However , PERSON decided not to accept the job when he was informed by a PERSON official that only spouses and biological or adopted children would qualify as " dependants " . He subsequently obtained another job in GPE where he continues to work .

ORG LANGUAGE law defines a person ’s sex by reference to biological criteria at birth and does not recognise that it can be changed by gender reassignment surgery ( PERSON v. PERSON [ DATE ] Probate Reports CARDINAL and NORP v. PERSON [ DATE ] ORG Bench Reports CARDINAL ORG ) ) .

As a result of this principle , a female - to - male transsexual is not permitted to marry a woman and can not be regarded as the father of a child .

The Human Fertility and Embryology Act DATE ( " LAW " ) provides , inter alia , that where an unmarried woman gives birth as a result of AID with the involvement of her male partner , the latter , rather than the donor of the sperm , shall be treated for legal purposes as the father of the child ( LAW ( CARDINAL ) ) .

Section CARDINAL ( CARDINAL ) of the Births and Deaths Registration Act DATE ( " the CARDINAL Act " ) requires that certain prescribed details concerning the birth of every child born in GPE and GPE , including the names of the parents , be entered in a register . ORG is the official ultimately responsible for the administration of this scheme .

ORG If the child ’s father ( or the person regarded by law as the father - see paragraph DATE above ) is not married to the mother , his name shall not automatically be entered on the register in the space provided for the father . However , it will be entered if he and the mother jointly request that this be done ( section CARDINAL of the DATE Act , as amended by LAW DATE ) .

ORG A birth certificate takes the form either of an authenticated copy of the entry in the register of births or an extract from it . A certificate of the latter kind , known as a " short certificate of birth " , is in a prescribed form and contains such particulars as are prescribed by regulations made under LAW . These particulars are the name , surname , sex and date and place of birth of the individual concerned . Under LANGUAGE law , a child may be given any first name or surname as the parents see fit , and may change his or her name or surname at any time , without restriction .

ORG " Parental responsibility " in respect of a child automatically vests in the mother and , where she is married , in her husband . It may , additionally , be granted to certain other persons ( see paragraphs DATE below ) .

" Parental responsibility " means all the rights , duties , powers , responsibility and authority which by law a parent of a child has in relation to the child and his or her property ( section CARDINAL of LAW CARDINAL - " LAW " ) .

It does not , without more , confer on the child any rights in the property of the person granted parental responsibility , such as the right to inherit on intestacy or to financial support . Similarly , it does not entitle the child to benefit through that person from the transmission of tenancies pursuant to certain statutory provisions , from nationality and immigration measures or from rights accruing from that person ’s citizenship in ORG .

ORG The father of a child who was not married to the mother at the time of the birth may apply for a court order granting him parental responsibility or may attain it by virtue of an agreement , in a prescribed form , with the mother ( section CARDINAL of the CARDINAL Act ) .

ORG Parental responsibility can not vest in any other person , unless a " residence order " in respect of the child is made in his or her favour .

A residence order is " an order settling the arrangements to be made as to the person with whom the child is to live " ( section CARDINAL of the CARDINAL Act ) . Any person may apply for such an order ( although individuals outside certain defined categories must first seek the leave of the court in order to apply ) .

Where the court makes a residence order in respect of any person who is not the parent or guardian of the child , that person is automatically vested with parental responsibility for the child as long as the residence order remains in force ( section CARDINAL ( CARDINAL ) of the DATE LAW .

ORG Thus , although the first applicant could not apply directly for parental responsibility of the third applicant , he could apply with the second applicant for a joint residence order which would have the effect of giving him parental responsibility while it remained in force . On DATE , Mr Justice PERSON in the ORG made a joint residence order in favour of CARDINAL cohabiting lesbian women in respect of the child of CARDINAL of them ( unreported ) .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Kristina Pardalos;Luis López Guerra;Nona Tsotsoria

NORP The applicant , Mr PERSON , is a NORP national , who was born in DATE and currently lives in GPE , GPE . He was represented before the ORG by PERSON , a lawyer practising in GPE .

On DATE the applicant , former Head of GPE ( see PERSON v. GPE [ ORG ] , no . MONEY , § § CARDINAL , CARDINAL and DATE , ECHR CARDINALII ) , was charged with abuse of power , misappropriation of public funds and a number of other offences committed in public office . The applicant evaded the investigation and trial , but his lawyer , PERSON , ensured his defence in the criminal proceedings .

By a judgment of CARDINAL DATE , ORG convicted the fugitive applicant of the above - mentioned offences in absentia , sentencing him to DATE in prison and to pay a fine of CARDINAL NORP laris ( MONEY ) . ORG explained in the operative part of its judgment , which was announced to the applicant ’s lawyer at the end of the hearing on DATE , that , given the applicant ’s absence , the judgment was final and immediately enforceable ; an appeal lay against it only in the situation envisaged by LAW ( “ the ORG ” ) , namely after the applicant ’s surrender to the law - enforcement authorities .

Article CARDINAL § CARDINAL of LAW , as it stood at the material time , read as follows :

Article CARDINAL

“ CARDINAL . If a conviction was delivered following a trial in absentia , the accused may lodge an appeal [ on points of law and findings of fact ] within DATE after having been arrested or surrendered to the relevant authorities ”


Preliminary objection dismissed (non-exhaustion of domestic remedies, six month period);No violation of Art. 2 with regard to death of applicant's wife;Violation of Art. 2 with regard to lack of effective investigation;Not necessary to examine Art. 2 with regard to lack of protection of the right to life;Not necessary to examine Art. 6;Violation of Art. 13;No violation of Art. 3;No violation of Art. 8;No violation of Art. 14;No violation of Art. 18;No violation of P1-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE . He is the widower of the deceased PERSON . He introduced this application on his own behalf and on behalf of his family and deceased spouse . At the time of the events at issue the applicant was residing in the village of PERSON ( PERSON ) attached to the ORG district .

In DATE the commander of ORG , ORG , ordered all the villagers from ORG village to evacuate their homes . This instruction was communicated to the villagers by the headman ( muhtar ) of the village . In response , the villagers requested the commander 's permission to remain in the village long enough to harvest their crops .

Commander PERSON began to pressurise and intimidate the villagers . No cars were allowed in or out of the village . The livestock was taken away from the villagers . A food embargo was imposed . At DATE soldiers told the villagers that should they fail to evacuate the village by DATE , their houses would be burned down .

On DATE an armed clash broke out between members of the ORG ( proscribed as a terrorist organisation under NORP law ) and the security forces stationed on FAC , which is situated between the applicant 's village and ORG .

When the clash was over , at TIME soldiers who were stationed at ORG fired CARDINAL artillery shells towards the village . A piece of shrapnel wounded CARDINAL of the villagers , ORG , in the foot . Hearing ORG screams , the applicant attempted to leave his house to help her . However his wife , PERSON , tried to pull him back . At that moment a second artillery shell landed QUANTITY from their house and a piece of shrapnel struck the applicant 's wife in the abdomen .

Around TIME , when the shooting was over , the applicant and his elder brother , PERSON , together with some other relatives , PERSON , GPE Yaşar , PERSON and a group of women set out for ORG in order to take PERSON to the local health clinic . She died on the way .

On DATE a group of terrorists attacked the security forces which were stationed near the village of ORG in the ORG district . At around TIME terrorists tried to escape through the village . When they arrived in PERSON the terrorists fired randomly at the houses . The applicant 's wife and another villager were wounded in the incident . The security forces identified the footprints of members of the ORG in the village .

When the applicant and his relatives were returning to their village they were stopped on LOC by the security forces . The senior lieutenant examined the corpse of the applicant 's wife . According to the applicant , the senior lieutenant drafted a report which stated that PERSON had died due to a shrapnel wound caused by an artillery shell fired by the soldiers . However , the applicant did not submit this report to ORG claimed that it did not exist .

The applicant requested to have an autopsy performed before burying the corpse . The senior lieutenant told him that there was no need to carry out an autopsy and reassured him that his report would be given to the relevant authorities .

On DATE PERSON and a unit of soldiers arrived in the village to investigate the circumstances of the incident . CARDINAL villagers , namely PERSON , ORG , PERSON and ORG , gave statements to the sergeant . They all stated that at TIME , CARDINAL terrorists arrived in the village and indiscriminately opened fire with rockets and long - barrel guns . ORG had been wounded and the applicant 's wife had died in the incident .

According to the applicant , he expressly told the sergeant that the artillery shell that caused the death of his wife had been fired by the soldiers . He also told the sergeant that the senior lieutenant had seen the corpse and confirmed this fact in his report . The sergeant contacted the senior lieutenant by radio . According to the applicant , the senior lieutenant verbally confirmed his version of the facts .

The sergeant drew a sketch map of the scene of the incident and drafted CARDINAL incident reports . The more detailed report stated as follows :

“ ... When the members of the ORG failed to strike the security forces , they ran away towards NORP village . When they entered the village , they yelled ' you still have not evacuated the village ! Because of you very many of us have been wounded and we have lost very many soldiers ! ' and they started to shoot at random using heavy weapons and missile launchers . ... CARDINAL persons were wounded . CARDINAL of the places where the missiles fell , as well as bullet marks on the houses , have been noted . Moreover , according to the footprints left by the ORG members they ran off towards the forest near the village . As far as it could be construed by looking at the footprints , they were CARDINAL people . ... ”

The houses of the applicant and the other witnesses , the sites where the shells fell and the footprints of members of the ORG were indicated in the sketch map . All the statements and reports were co - signed by PERSON and non - commissioned officer PERSON .

Upon the applicant 's request to have an autopsy carried out on the corpse , the sergeant told him that this was not possible , as the public prosecutor and the doctor refused to come to the village for security reasons . He reassured the applicant that he would make sure that the senior lieutenant 's report was forwarded to the public prosecutor . Later on DATE , the applicant buried his wife .

On DATE ORG , the father of ORG , and the applicant gave statements to the sergeant . The applicant 's statement was as follows :

“ On DATE , at TIME , I heard guns being fired from the direction of FAC , which is located to the south of our village . Everybody was sleeping . I went out of the house . It was silent in the village . At TIME I heard [ people ] screaming in the village . These sounds were coming from a distance . Then I heard firing coming from the village . My wife came outside to look for me . There was random gun fire . My wife was wounded in the abdomen . I took her into the house but I was n't able to do anything as the shooting continued . I waited at home until TIME When the shooting was over I called my relatives and we set off for ORG in order to take my wife to the hospital . She died when we reached FAC . After a short while another group of people who was transporting ORG came along . They went to ORG . We returned to NORP village . We buried my wife in the village ... ”

“ ... terrorists were shouting in the middle of the village . After yelling ' you still have not evacuated the village ! Because of you very many of us have been wounded and we have lost very many soldiers ! ' They started to shoot at random . ... My daughter PERSON was wounded in her foot . I saw CARDINAL of the terrorists with my own eyes . I believe there were in total CARDINAL people . ... After we waited for a while we set off for ORG . ... When we were almost on FAC we saw another wounded person being transported . ... I am complaining about those terrorists who attacked our village and who are responsible for wounding my daughter . ”

A preliminary investigation into the incident was initiated by ORG .

On DATE the applicant went to see the ORG Commander , ORG . The applicant alleged that ORG prepared a petition for him , the contents of which laid blame on the ORG for the incident . He refused to sign it . On DATE ORG sent all the documents concerning the incident to the office of ORG along with an explanatory letter . In his letter he explained that the death of PERSON and ORG injuries were the result of random shooting by the terrorists . The annexed documents consisted of CARDINAL witness statements , CARDINAL incident reports and CARDINAL medical report PERCENT state of health , drafted on DATE by a doctor at ORG .

On DATE the applicant filed petitions with the offices of LOC and ORG . He stated that his wife had died during an artillery attack launched from the direction of ORG . A senior lieutenant , after examining the corpse , confirmed that she had been killed by artillery fire . He further stated that he had had to move to ORG with his CARDINAL children following the evacuation of his village . The applicant requested that an investigation be initiated in order to find those responsible . He also requested compensation .

On DATE the applicant filed similar petitions with ORG and ORG . On DATE he went to see ORG and the LOC Governor personally .

On DATE the applicant submitted a petition to the Lice Governorship about the death of PERSON . In the petition he stated that his wife died on DATE during an operation carried out against terrorists . Moreover , he stated that neither the public prosecutor nor a doctor had examined the corpse . The ORG Governor transferred the applicant 's petition to ORG . On DATE ORG requested ORG to provide information about the death of PERSON .

On DATE the ORG informed ORG in a letter that PERSON had been wounded on DATE due to random shooting by terrorists who entered the village , that she died while being transferred to a hospital and that she had been buried in the village cemetery . The district gendarmerie had also provided ORG with reports and written statements which confirmed the accuracy of these findings .

Following the applicant 's petitions filed with ORG and the Lice District Governor , ORG decided to grant the applicant the sum of MONEY . This sum was paid to the applicant on DATE .

On DATE the applicant filed petitions with ORG and ORG . In these petitions he maintained that his wife died during an artillery attack by the security forces and he requested that an investigation be initiated into the killing of his wife . He stated that he was stunned to find out that in the case file at the office of ORG the perpetrators of the incident were stated to be members of the ORG . Moreover , he maintained that he had had to move to ORG with his CARDINAL children following the evacuation of his village . The applicant also informed the authorities in his petition that he would lodge an application with ORG .

On DATE ORG issued a decision of non - jurisdiction as the death of the applicant 's wife fell within the jurisdiction of ORG . In his decision the public prosecutor maintained that after engaging in a combat with the security forces , terrorists retreated to NORP village . When they arrived in the village they started shooting at random using large weapons to force the villagers to evacuate . The applicant 's wife was killed as a result of this random shooting .

On DATE the public prosecutor at ORG also issued a decision of non - jurisdiction and referred the case file back to the office of ORG . The decision on lack of jurisdiction indicated that PERSON was killed by an artillery shell fired from ORG .

On DATE the public prosecutor at ORG , seeing that an investigation had already been initiated by his office into the same incident , decided to join the CARDINAL case files within the jurisdiction of ORG . The decision joining the case files named the defendant(s ) as “ member(s ) of the illegal ORG organisation ” and the offence as “ engaging in acts aimed at the separation of a part of the territory of the ORG ” .

On DATE the public prosecutor at ORG issued a search warrant for the terrorist(s ) who wounded PERSON and killed PERSON on DATE . According to this order ORG , together with ORG and ORG , had to carry out a rigorous investigation so as to identify the perpetrator(s ) by the date fixed for the expiry of the warrant . He further requested to be kept informed of the outcome of the investigation DATE .

On DATE the public prosecutor at ORG requested from ORG a copy of PERSON details of birth . On DATE ORG submitted the information requested .

By a letter dated DATE , the public prosecutor at ORG requested ORG to conduct an investigation in order to identify the officials who had failed to carry out an autopsy on PERSON .

By a letter dated DATE the public prosecutor at ORG , referring to the applicant 's application to ORG , requested authorisation from ORG to initiate an investigation against ORG who had failed to organise an autopsy on the applicant 's wife 's body .

On DATE and on DATE the public prosecutor at ORG renewed the warrant issued on DATE .

On DATE , in accordance with Law no . DATE , ORG postponed the criminal proceedings initiated against ORG and the non - commissioned officer PERSON who had allegedly failed to carry out an autopsy on the applicant 's wife 's body .

On DATE , upon the FAC Governor 's inquiry , the ORG Commander sent him a letter stating that it was clear from the incident report and the witness statements that the applicant 's wife was killed by members of the ORG . He maintained that there was no documentation in their files which proved that , after examining the corpse of the applicant 's wife , a senior lieutenant drafted a report in which the cause of death was described as resulting from artillery shell fire . Moreover , he stated that the letter sent by them to ORG in which the ORG was stated to be responsible for the death of PERSON , had not been found in their files . However , he indicated that this letter could be located at ORG .

NORP On DATE a letter from the gendarmerie headquarters in GPE was sent to ORG . The letter was a reply to an inquiry made by ORG following the communication of the applicant 's case by the ORG to the respondent Government . It was stated in the letter that on DATE , following an armed clash between terrorists and the security forces , terrorists fled to NORP village and killed the applicant 's wife by firing at random with rockets and long - barrel guns in the middle of the village . Moreover , it was incorrect that a senior lieutenant had examined the corpse of the applicant 's wife and drafted a report which concluded that she had died due to a shrapnel wound caused by an artillery shell fired by soldiers . Such a report did not exist . It was apparent from the witness statements and from the incident report that the perpetrators of the incident were members of the ORG . It was also stated in the letter that ORG submitted the document concerning the death of PERSON to ORG .

In respect of relevant domestic legislation , the ORG refers to its case - law in GPE v. GPE ( no . CARDINAL , § § DATE , CARDINAL DATE ) .

Article CARDINAL of the Code on Criminal Procedure provides :

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

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

According to Law no . DATE on conditional release , the suspension of proceedings or the execution of sentences in respect of crimes committed before DATE , proceedings could be suspended and subsequently dropped if no crime of the same or more serious kind was committed by the offender within DATE .


Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Peer Lorenzen;Rait Maruste;Renate Jaeger;Zdravka Kalaydjieva

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

The applicant practices as an ophthalmologist . From DATE to CARDINAL DATE he held a license as a statutory health insurance physician ( PERSON vertragsärztlichen PERSON ) . Having renounced his licence , he exclusively treats patients in private practice .

On DATE ORG ( GPE ) ordered the applicant to participate in the medical emergency services organised by ORG , KVSA ) . His duty was suspended until determination of the modalities of his remuneration .

On DATE the KVSA informed the applicant about the modalities of his remuneration during emergency services . He was further informed that , notwithstanding the fact that he was not a member of the KVSA , his services and remunerations within the framework of the emergency services were subject to the ORG 's supervision .

On DATE the applicant informed the KVSA that he refused to serve in the emergency service and would only be willing to serve in an emergency service which was organised by ORG .

On DATE ORG informed the applicant that he was statutorily obliged to participate in the emergency service . They pointed out that the emergency service was a common project by the KVSA and ORG and that all pertinent decisions were taken jointly by both associations .

On DATE the applicant lodged a motion against ORG . He argued that he was not obliged to participate in the emergency service organised by the KVSA , because he did not practice as a statutory health insurance physician . He further alleged that the order lacked a sufficient legal basis .

On DATE ORG ( Verwaltungsgericht ) dismissed the applicant 's motion as being unfounded . According to that court , the impugned order was compatible with the pertinent law . The emergency service was set up jointly by ORG and by the KVSA in order to avoid overlapping emergency services .

The pertinent provisions did not violate the applicant 's rights under LAW . The infringement on the applicant 's right to freedom of profession was neither disproportionate nor excessive . Furthermore , there was no violation of the right to equal treatment , as all medical practitioners were equally obliged to provide emergency services to their patients outside consultation TIME . This duty constituted an intrinsic part of a medical practitioner 's occupation . The organisation of emergency services released the medical practitioner from the obligation to be available for his patients “ around the clock ” , at TIME and during DATE . Having regard to the fact that all medical practitioners DATE and not only those who held a license as statutory health insurance physicians DATE profited from this service , it was justified to order all practitioners to participate in the emergency service .

The fact that the emergency service was organised by the KVSA did not turn the applicant into a member of that organisation ; he merely profited from its organisational structures .

On DATE ORG ( Oberverwaltungsgericht ) refused to allow the applicant leave to appeal . Further to the administrative court 's considerations , ORG found that the duties imposed on the applicant were not excessive , as it was merely envisaged to oblige the applicant to serve on DATE during a DATE - interval . ORG further considered that it was justified to oblige all medical practitioners , irrespective of the fact if they were willing to assure “ around the clock ” availability to their own patients . The system could only function if , as a matter of principle , all physicians concerned took part in it .

On DATE ORG refused to admit the applicant 's constitutional complaint as there was no indication of a violation of the applicant 's basic rights ( application no . CARDINAL BvR CARDINAL/CARDINAL ) .

According to section CARDINAL LAW of the LAW on the Associations of Medical Practitioners for Saxony - Anhalt ( PERSON über die NORP für GPE ) ORG is entitled to issue regulations on medical emergency service .

Section CARDINAL of ORG professional Code of Conduct ( PERSON der GPE ) provides that every resident medical practitioner is obliged to participate in emergency service . Regulations on the organisation of the emergency service have been jointly issued by ORG , representing all medical practitioners , and by the KVSA , representing only those physicians practicing under the public health insurance scheme .

Non - compliance with the obligations under ORG professional Code of Conduct can lead to disciplinary proceedings . The disciplinary court has the capacity to issue formal reprimands , impose fines and to advice the authorities to revoke a physician 's license ( sections CARDINAL and CARDINAL of the PERSON on the Associations of Medical Practitioners ) .


Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Non-pecuniary damage - award

Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Ineta Ziemele;Josep Casadevall

The applicant was born in DATE and lives in FAC . He is the father of Mr Valdis Jasinskis ( “ the applicant 's son ” ) , a NORP national who was born in DATE and who died on DATE .

On DATE the applicant 's son ( who had been deaf and mute since birth ) and several of his friends were drinking beer in a bar in FAC . Witness statements differ somewhat as to how much alcohol the applicant 's son consumed that night . After the applicant 's son 's death , a forensic expert took into the account witness testimonies and used Widmark 's equation to arrive at the estimate that , after finishing his last drink , the alcohol concentration in the applicant 's son 's blood would have been CARDINAL ‰ , which meant that all traces of alcohol would have left his body TIME . The expert , however , noted that this figure was approximate . The applicant disagreed with the estimate , noting that such a concentration of alcohol would be deadly .

After leaving the bar , the applicant 's son and his friends walked to a nearby school where a party was taking place . In front of the school entrance ORG DATE a minor – pushed the applicant 's son , who fell backwards down the stairs in front of the school , hit his head against the ground and lost consciousness for TIME . The persons present then tried to attract the attention of the security guards , who were inside the school , by knocking on the locked doors . In the process a glass pane of the entrance doors was cracked . It appears from the subsequent investigation that the glass was broken by CARDINAL of the students of the school .

The security guards came outside and saw the applicant 's son lying unconscious on the ground . They called an ambulance and the police . After the applicant 's son had regained consciousness , the security guards sat him down on the stairs of the school .

The police arrived on the scene at CARDINAL a.m. They later reported that the applicant 's son had been unable to stand up on his own and had been flailing his arms . Upon their arrival the officers were informed that the applicant 's son was deaf and mute and that he had fallen down the stairs . They were also told that he was probably responsible for breaking the glass of the entrance doors .

The policemen decided not to wait for the ambulance that had been called and took the applicant 's son to the LOC Police station in order to initiate administrative proceedings for petty hooliganism and public drunkenness . The policemen alleged that in the car on the way to the police station the applicant 's son had behaved aggressively and had been flailing his arms and kicking .

The record of the administrative detention of the applicant 's son indicates that the reason for the detention was to “ sober up ” the detainee . The only injury that was noted was a graze on his face . The same record also notes that at CARDINAL TIME on the following day the applicant 's son was released from detention because he had “ sobered up ” ( but see paragraph CARDINAL below ) .

NORP The policemen alleged that on the premises of the police station the applicant 's son had continued to behave aggressively by flailing his arms . The applicant submits that it is probable that his son was trying to communicate with the policemen by using gestures , because they had taken away the notebook he normally used to communicate with persons who did not understand sign language .

Shortly afterwards the ambulance crew contacted the police station . The officer on duty informed them that no medical aid was necessary , since the applicant 's son was merely intoxicated . He was then placed in the sobering - up room . For a while he kept knocking on the doors and walls but stopped doing so after a while and went to sleep .

At TIME the duty officers tried to wake the applicant 's son but he only opened his eyes and , according to the conclusions of the internal investigation of the police , “ did not want to wake up ” .

Approximately TIME after the applicant ' son had been brought to the police station ( at QUANTITY one of the policemen considered that he had been “ sleeping for too long ” and called an ambulance . The doctors apparently refused to take ORG to a hospital ( during the internal investigation the officers reported that the ambulance crew had indicated that he was “ faking ” and was healthy ) . The Government dispute that fact , observing that it had not been mentioned in the report on the quality of medical care provided to the applicant 's son ( see below , paragraph CARDINAL ) . Nevertheless , the fact of the ambulance crew 's initial refusal is confirmed by the statements of the police officers who were present at the police station at the time , which have been recounted in several documents , such as the conclusions of the internal inquiry of DATE ( see below , paragraph CARDINAL ) , the report of the additional internal inquiry of CARDINAL DATE ( see below , paragraph CARDINAL ) , the DATE decision to terminate the criminal proceedings ( see below , paragraph CARDINAL ) and others .

The applicant 's son was taken to hospital only after repeated requests from his father , who had at that time been informed of his son 's arrest and had arrived at the police station . From the reports of the internal investigation it appears that the transfer took place at TIME on DATE . Upon arrival at the hospital it was noted that the applicant 's son was conscious but “ non - communicative ” . His condition was characterised as “ serious ” and he was diagnosed with severe intoxication with unknown alcohol surrogates . At CARDINAL p.m. the applicant 's son lost consciousness and his condition was described as “ very serious ” . At TIME the medical report was updated to note that the presence of an intracranial haematoma could not be excluded but that because of his condition the patient could not be transported for a GPE scan ( which was only available at a hospital in GPE , QUANTITY from FAC ) . The applicant 's son died at CARDINAL a.m. on DATE .

A post - mortem examination of the applicant 's son 's body was carried out on DATE . It disclosed fractures of the frontal , parietal and occipital bones of the applicant 's son 's cranium , oedema in the brain as well as multiple other injuries to the head and brain . The expert concluded that those injuries had been the cause of death . It was further established that neither the blood nor the urine of the applicant 's son contained any traces of alcohol .

On DATE an expert of ORG ( “ MADEKKI ” ) issued a report on the quality of medical aid provided to the applicant 's son before his death . The report noted several shortcomings in the treatment of the applicant 's son at the police station . In particular , it was noted that no information was available concerning the health condition of the applicant 's son during the time spent in the police station or when he was placed in the sobering - up room . It was further concluded that the ambulance had been called to the police station belatedly . The final conclusion of the report was that the death of the applicant 's son was not attributable to any lack of professionalism on behalf of the doctor who had treated him in the hospital but rather to the severity of his injuries .

After the death of the applicant 's son ORG launched an internal inquiry . On DATE the final report of the inquiry was approved by the head of that department . The report concluded that the policemen present at the police station during the night in question had acted in accordance with the internal guidelines and the legislation governing police work . The report further referred to an article in the local newspaper in which a surgeon had expressed the opinion that injuries such as the ones sustained by the applicant 's son were difficult to detect , in particular if the injured person was intoxicated . The final conclusion was that the staff of the department had committed no infractions .

On DATE an investigator of ORG adopted a decision to terminate the criminal proceedings against ORG , which had been initiated on DATE . In this decision several witness testimonies were recounted and some of them seemed to indicate that the security guards who had been on duty during the party at the school had hit the applicant 's son in the head with a rubber truncheon . It was also found that upon the applicant 's son 's arrival at the police station the policemen had noted that he did not have any visible injuries and that he was heavily intoxicated . The decision further remarked that at TIME at the police station a doctor had observed that the applicant 's son was conscious and had no traces of having been hit on his body or head . There was some dried blood in CARDINAL of his nostrils . However , considering that the applicant 's son was deaf and mute and thus unable to communicate orally any complaints about his health , he had been diagnosed as being intoxicated with alcohol surrogates and taken to the FAC hospital . It was further noted that the internal inquiry of FAC had established that the policemen in charge had not committed any offence . Lastly it was established that ORG 's actions did not constitute corpus delicti . Therefore , the criminal proceedings concerning the death of the applicant 's son were terminated .

On DATE the ORG decided to quash the decision of CARDINAL May and remitted the case for additional investigation . Among other things , the public prosecutor indicated that it was necessary to determine whether it would have been possible to correctly diagnose the applicant 's son 's injuries had he been taken to hospital earlier than he was , whether the police had adequately taken into account the fact that he was deaf and mute , and whether there were any visible external signs of the injuries that eventually caused his death .

On DATE the head of ORG approved a report drawn up in the context of an additional internal inquiry that had been prompted by the decision of DATE . Once again no wrongdoings on the part of the police officers were established . In particular , it was noted that even though an internal police instruction concerning sobering - up rooms prohibited the placement therein of persons with visible physical injuries , the applicant 's son did not fall within that category . The report confirmed that his injuries had not been obvious , in that regard referring to the visit of the ambulance crew to the police station at CARDINAL p.m. on DATE , during which no injuries had been noted .

On DATE FAC terminated the criminal proceedings for the second time . The decision pointed out , inter alia , that even if the applicant 's son had been taken to hospital sooner , it was not certain that he would have received the correct diagnosis due to the absence of a GPE scanner and a specialist neurologist at FAC hospital . It was also established that since the applicant 's son 's injuries were not visible , the police officers in question had not breached the law .

On DATE FAC decided to quash the decision of DATE on the ground that the evidence had not been examined .

On DATE FAC decided to terminate the criminal proceedings . The text of the decision was practically identical to that of DATE .

As of DATE the applicant was represented by a lawyer . Pursuant to a request by the applicant 's representative , on DATE a prosecutor of ORG quashed the decision of DATE and sent the case to ORG ( NORP policijas PERSON drošības birojs ) for continued investigation . The decision of DATE focused , inter alia , on the actions of the policemen before and after the applicant 's son 's arrest as well as on the legality and permissibility of his detention as such . It was suggested that the question of the potential liability of the policemen of ORG for criminal inaction ( section CARDINAL(CARDINAL ) of LAW , see below , paragraph CARDINAL ) needed to be resolved .

On DATE that ORG decided to split the criminal proceedings into CARDINAL parts , CARDINAL regarding the actions of ORG and the other concerning the inaction of the LOC policemen . The first part was transferred back to FAC and the second remained with ORG .

On DATE FAC decided to terminate the criminal proceedings against ORG due to lack of corpus delicti . The applicant did not appeal against that decision .

On DATE ORG of ORG decided to terminate the criminal proceedings against the officers of LOC for want of corpus delicti . During the course of the investigation statements were taken from all CARDINAL officers who had been present at the police station during TIME of the applicant 's son 's arrest and DATE . The officers who had arrested the applicant 's son confirmed that the security guards at the school had informed them that he had fallen backwards down the stairs but they had not waited for the ambulance that had been called because he had behaved in a way that was typical of an intoxicated person and had had no visible injuries . The officers who had been on duty on DATE pointed out that they had tried to wake up the applicant 's son on several occasions without success , but that after they had eventually succeeded , the applicant 's son had gotten up without any help and walked to the reception area of the police station where he had been seen by a doctor who had arrived in an ambulance . The doctor had then allegedly proclaimed that the applicant 's son was “ faking ” and was still drunk . He had only been taken to hospital after the applicant had persuaded the doctor to do so . The decision also pointed out that it was “ obvious ” that a mistake had been made by the doctors , who had failed to correctly diagnose the applicant 's son 's injuries before his death .

On DATE a public prosecutor of ORG dismissed the applicant 's representative 's appeal against the decision of DATE .

On DATE a senior prosecutor of the same office rejected the applicant 's representative 's appeal against the decision of CARDINAL DATE . In addition to upholding the conclusions of the decision of CARDINAL DATE , it was pointed out that no causal link existed between the decision of the officers present at the scene to transport the applicant 's son to the police station without waiting for the ambulance and the applicant 's son 's death , since the death had occurred despite the fact that the applicant 's son had eventually been placed under medical supervision .

In a final decision of DATE a senior prosecutor of ORG attached to ORG dismissed the applicant 's complaint about the decision of CARDINAL DATE .

The fifth paragraph of section CARDINAL of the Law on Police provides one of the basic principles for organising the work of the police is safeguarding the health of persons in police custody , which includes carrying out emergency measures to provide medical assistance . The duty of police officers to provide medical and other assistance to injured persons is repeated in section CARDINAL(CARDINAL ) of the Law on Police . That section specifically provides for a duty to provide assistance to anyone , even persons who , because of their state of inebriation , have lost the ability to move or who pose a danger to themselves or others .

Section CARDINAL(CARDINAL ) of the Criminal Law provides that state officials ' can be held criminally liable for intentional or negligent failure to perform acts which are compulsory by law or are part of the duties assigned to the official in question . In order to engage criminal responsibility such dereliction of duties has to have caused substantial harm to the state or to the rights and interests of individuals .

On DATE the Law of Administrative Procedure entered into force . That law , among many other things , provides for a mechanism for complaining about the legality of de facto actions of state institutions to administrative courts .

The Law on Compensation for Damage Caused by ORG came into force on DATE . It provides for practical implementation of the rights guaranteed by the LAW and LAW to receive compensation for damage caused by unlawful administrative acts issued by state institutions or for unlawful de facto actions of those institutions . Pursuant to section CARDINAL(CARDINAL ) of that law , the maximum compensation for non - pecuniary damage that can be awarded is CARDINAL NORP lati ( ORG ) MONEY ( ORG ) .

As to the consequences of awarding compensation , section CARDINAL of the Law on Compensation for Damage Caused by ORG provides as follows :

“ CARDINAL ) In order to establish the circumstances that have caused or fostered the infliction of the damage to be compensated , an authority hierarchically superior to the CARDINAL which has caused the damage shall evaluate each individual case when damage has to be compensated pursuant to a decision of the authority or a court .

CARDINAL ) NORP After evaluating all the circumstances pertinent to the compensation for damage , a hierarchically superior authority shall adopt a decision concerning forwarding the materials in the case file to a competent authority , which shall decide whether the official responsible for causing the damage ought to be held disciplinarily , administratively or criminally responsible . ”

Section CARDINAL of the Law of Criminal Procedure contains a general principle according to which that PERSON provides for procedural opportunities for persons who have suffered harm as a result of criminal acts to request compensation for pecuniary and non - pecuniary damage . The specifics of the implementation of that principle are contained in various sections throughout the PERSON .

The general standards contained in ORG [ ORG ( CARDINAL ) CARDINAL ] by ORG ( ORG ) provide that persons detained by the police should have the right of access to a doctor , including the right to be examined , if the person detained so wishes , by a doctor of his own choice ( in addition to any medical examination carried out by a doctor called by the police authorities ) ( § CARDINAL ) . Persons taken into police custody should be expressly informed without delay of the above rights ( § CARDINAL ) . The results of the medical examination and relevant statements by the detainee and the doctor 's conclusions should be formally recorded by the doctor and made available to the detainee and his lawyer ( § CARDINAL ) .

Article GPE ) of LAW on the Rights of Persons with Disabilities ( “ the PERSON ” ) , which entered into force on DATE , was signed by GPE on DATE and ratified on DATE , provides as follows :

“ GPE Parties shall ensure that if persons with disabilities are deprived of their liberty through any process , they are , on an equal basis with others , entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention , including by provision of reasonable accommodation . ”

The Interim Report of the Special Rapporteur on the question of torture and other cruel , inhuman or degrading treatment or punishment , submitted on DATE by ORG High Commissioner for Human Rights to the CARDINALrd session of ORG of the ORG ( ORG ) in its paragraphs CARDINAL and DATE provides as follows :

“ Persons with disabilities often find themselves in ... situations [ of powerlessness ] , for instance when they are deprived of their liberty in prisons or other places ... In a given context , the particular disability of an individual may render him or her more likely to be in a dependant situation and make him or her an easier target of abuse ... ”

and

“ The Special Rapporteur notes that under LAW , paragraph CARDINAL , of the [ Convention on the Rights of Persons with Disabilities ] , GPE have the obligation to ensure that persons deprived of their liberty are entitled to ' provision of reasonable accommodation ' . This implies an obligation to make appropriate modifications in the procedures and physical facilities of detention centres ... to ensure that persons with disabilities enjoy the same rights and fundamental freedoms as others , when such adjustments do not impose disproportionate or undue burden . The denial or lack of reasonable accommodation for persons with disabilities may create detention ... conditions that amount to ill - treatment and torture . ”


The applicant is an NORP national , born in DATE and living in GPE .

He is represented before the ORG by Mr PERSON , a lawyer practising in GPE .

A.

O.I. s.r.l . , a company based in GPE , was the owner of an apartment in GPE , which it had let to GPE In a registered letter of CARDINAL DATE , it informed the tenant that it intended to terminate the lease on expiry of the term on DATE and asked her to vacate the LOC by DATE . In a writ served on the tenant on DATE , it reiterated its intention to terminate the lease and summoned the tenant to appear before ORG .

In a decision of DATE , which was made enforceable on DATE , ORG upheld the validity of the notice to quit and ordered that the premises must be vacated by DATE .

On DATE , the applicant became the owner of the apartment .

On DATE , the applicant served notice on the tenant requiring her to vacate the premises .

On DATE , he served notice on the tenant informing her that the order for possession would be enforced by a bailiff on DATE .

On DATE , the applicant made a statutory declaration that he urgently required the premises as accommodation for himself .

DATE and DATE the bailiff made CARDINAL attempts to recover possession , on DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE , CARDINAL DATE and DATE . These attempts proved unsuccessful , as the applicant was never granted the assistance of the police in enforcing the order for possession .

On an unspecified date DATE and DATE , the applicant repossessed the apartment .

B. Relevant domestic law

The relevant domestic law is described in the ORG GPE judgment of DATE , to be published in the ORG ’s official reports , § § DATE .


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Administrative proceedings;Article 6-1 - Reasonable time);No violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

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

The applicant was born in DATE and lives in GPE .

In DATE a factory owned by the applicant ’s legal predecessor was de facto taken over by the ORG in the context of a countrywide campaign of nationalisation of industry . It was subsequently run by a ORG enterprise .

Pursuant to a decision given on DATE , ORG stated that the factory and the land on which it was situated had become the property of the ORG under the provisions of LAW by the ORG .

In DATE the applicant ’s mother lodged an application with ORG to have the expropriation decision declared null and void under LAW .

In DATE the applicant ’s mother died . The applicant joined the proceedings as her legal successor .

In DATE the ORG found that it lacked competence to deal with the case and referred it to ORG . In DATE the case was referred to ORG as ORG had ceased to exist . In DATE that ORG forwarded the case file to ORG for a decision .

On DATE the applicant complained to ORG about the failure of the administration to rule on his DATE application .

On DATE the Minister of ORG declared that he was competent to deal with the case .

On DATE ORG , having examined the applicant ’s complaint , ordered the Minister of ORG to issue a decision concerning the case within DATE from the date of the service of its judgment .

On DATE the Minister of ORG , having gathered various documents concerning the legal status of the property , declared that the DATE expropriation decision was null and void as it had been given in flagrant breach of the laws applicable to properties de facto taken over by the ORG .

On an unspecified date before DATE the ORG - owned enterprise was transformed into an independent public company , PERSON , the structure and functioning of which were governed by the provisions of LAW . The ORG however retained a minority shareholding in the company . In DATE the NORP company , which was running the factory as the legal successor of the former ORG - owned enterprise , requested that the case be reexamined . Subsequently , the ORG summoned the parties to submit their further pleadings and documents .

On DATE the Minister , having re - examined the case , upheld its previous decision and declared that the expropriation decision was null and void .

The public company in possession of the factory requested that the enforcement of this decision be stayed pending the outcome of the proceedings in which it had appealed against the decision of the Minister to ORG . On DATE ORG allowed this request . On DATE the applicant ’s request to have this decision set aside was dismissed by the same court .

On DATE ORG upheld the decision of DATE .

On DATE the ORG Governor gave a decision to the effect that from DATE the ownership of the factory and the right of perpetual use of the land on which it was situated was to be vested in the NORP company . On an unspecified later date this hitherto ORG company changed its status and became an independent public company governed by LAW and in which the ORG was a minority shareholder ( see also paragraph CARDINAL above ) .

NORP In DATE the applicant instituted proceedings in which he sought to have that decision declared null and void .

On DATE the Kalisz Governor stayed those proceedings , pending the outcome of the administrative proceedings described above .

The proceedings were resumed on DATE .

On DATE the President of ORG declared that the DATE decision was null and void . The company requested that the case be reexamined .

On DATE the President of ORG , having reconsidered the case , upheld his earlier decision .

In DATE the applicant instituted civil proceedings before ORG , seeking recovery of possession of the production hall of the factory .

On DATE the court stayed the proceedings pending the outcome of the administrative case , holding that the outcome of the administrative proceedings in which the lawfulness of the DATE decision was being examined ( see paragraphs CARDINAL above ) was decisive for any decisions to be taken by a civil court . The applicant appealed . On CARDINAL DATE his appeal was dismissed by ORG . The proceedings were later resumed . At a hearing held on DATE the court stayed the proceedings again . On DATE the court resumed the proceedings . On DATE the court , having regard to the parties’ concordant request , stayed the proceedings , with a view to the possibility that they might settle the case .

On DATE the applicant and other successors of the factory ’s former owner submitted a settlement offer to the defendant company . The proceedings were resumed on DATE at the defendant ’s request .

On DATE the court adopted a judgment by which it ordered the defendant company to clear the production hall and return it to the applicant . On CARDINAL and DATE respectively the defendant company and the applicant appealed against that judgment .

On DATE the ORG of Appeal quashed the judgment and remitted the case . On DATE the defendant company informed the court that on DATE it had concluded an agreement with the applicant concerning the settlement of arrears in the payment of compensation for noncontractual use of the property for the period from DATE to DATE . They had agreed that the defendant company would pay the applicant MONEY ( PLN ) in CARDINAL instalments . In addition , the parties concluded a lease contract valid until DATE . As the applicant refused to withdraw his case in so far as it concerned the claim for repossession of the production hall , the proceedings were continued . They are currently pending .

On DATE a lawyer representing CARDINAL legal successors of the former owner , including the applicant , called on the PERSON company to pay ORG MONEY per month for using their property without a contractual basis . On DATE the applicant , together with CARDINAL other legal successors , brought a civil action against the company in ORG , demanding payment for noncontractual use of the property in DATE .

On DATE the ORG gave judgment . It ordered the defendant company to pay ORG plus default interest to the legal successors of the former owner in damages for the use of the property in DATE . The court observed that the company had been in possession of the factory in bad faith at least since the judgment of ORG given in DATE ( see paragraph CARDINAL above ) . This judgment was upheld on DATE by ORG .

Subsequently , the applicant brought civil actions in LOC , seeking compensation from the PERSON company for noncontractual use of the property during the following periods : DATE , DATE and DATE , DATE and DATE , and a number of further similar actions covering the period from DATE until DATE .

ORG joined his CARDINAL first actions and allowed the applicant ’s claim on DATE . Its judgment was upheld on DATE by ORG .

The parties concluded an outofcourt settlement in respect of the third action and the civil proceedings were discontinued . The remaining actions were joined and transferred to the GPE - Praga ORG , before which they are currently pending .

On DATE the applicant brought another civil action in ORG , seeking compensation for the company ’s effective enjoyment of ownership from DATE to DATE .

On DATE his action was dismissed . The court , bearing in mind the presumption of lawfulness of final administrative decisions , considered that in that period the defendant company had been holding the property in question as an independent possessor in good faith . Hence , it was not obliged to pay . This judgment was upheld by ORG on DATE .

On DATE the applicant requested ORG to pay him damages for the period during which the ORG factory had been using his property . He relied on LAW in connection with the decision of CARDINAL DATE declaring the DATE expropriation decision null and void .

On DATE the Minister for Infrastructure refused to grant compensation to the applicant and the other legal successors . He considered that they had not proved that they had sustained damage as a result of the DATE expropriation decision , and that no link between the alleged damage and the decision had been shown .

On DATE the applicant brought a civil action in ORG against ORG , seeking compensation for the damage resulting from the unlawful expropriation decision issued in DATE . He based his claim on LAW . The applicant specified that the damage should be assessed as the difference in the value of the enterprise DATE . He also claimed CARDINAL of the profits which the enterprise had made DATE .

On DATE the GPE - ORG dismissed the applicant ’s action . It was of the view that the applicant had failed to show that he had suffered damage . It noted that it was open to him to bring a claim for repossession against the company . The only damage that could be examined was the alleged difference in the value of the property on DATE when it had been taken over by ORG and the date on which the unlawfulness of the expropriation decision had been recognised . However , it transpired from the evidence submitted by the applicant that the buildings on the property had been modernised by the company . Hence , the value of the property had in fact increased .

On DATE the judgment , together with its reasoning , was served on the applicant . The applicant did not appeal and on DATE the judgment became final .

The factory remains in the possession of the PERSON company and DATE rent for the lease is paid to the applicant .

Under NORP law no provisions have been enacted allowing specifically for the redressing of wrongs committed in connection with expropriations effected in the context of agrarian reform . Therefore , no specific legal framework is available , enacted with the purpose of mitigating the effects of certain infringements of property rights .

However , it is open to persons whose property was expropriated or their legal successors , to institute , under LAW , administrative proceedings in order to claim that the expropriation decisions should be declared null and void as having been issued contrary to law . In particular , a final administrative decision can be declared null and void at any time if it was issued without a legal basis , or in flagrant violation of law .

If the flaw that taints the challenged decision is of a substantive character , i.e. if the decision had been given without a legal basis or in flagrant violation of law , the administrative authority shall declare it null and void .

Decisions flawed as a result of lesser procedural shortcomings , listed under items CARDINAL , CARDINAL , DATE and CARDINAL of Article CARDINAL § CARDINAL , such as those given by an authority which lacked competence to issue a decision in a given case , or in a case which had already been decided or addressed to a person not being a party to the proceedings , can only be declared null and void if DATE have elapsed from the date on which such decisions were given . In respect of such decisions it is only possible to declare that they were issued contrary to law ; the decisions themselves remain valid .

A decision to declare the old decision null and void , or a refusal to do so , may ultimately be appealed to ORG .

Article CARDINAL of LAW , as applicable at the material time , read in its relevant part :

" A person who has suffered a loss on account of the issuing of a decision in a manner contrary to LAW or on account of the annulment of such a decision shall have a claim for compensation for actual loss , unless he has been responsible for the circumstances mentioned in this provision . "

An administrative decision in respect of the compensation claim could be appealed against in a civil court .

Under LAW , the administration was obliged to deal with cases without undue delay . Simple cases should be dealt without any delay . In cases requiring some enquiry a first - instance decision should be given in DATE . In particularly complex cases decisions should be taken within DATE .

If the decision had not been given within those time limits , a complaint under LAW could be filed with the higherinstance authority , which should fix an additional time limit , establish the persons responsible for the failure to deal with the case within the timelimits , and , if need be , arrange for preventive measures to be adopted in order to prevent further delays .

In DATE ORG was adopted , which entered into force on DATE . It created further procedures in which a complaint about the administration ’s failure to act could be raised .

Under LAW , that court was competent to examine complaints about the administration ’s inactivity in administrative proceedings in cases referred to in LAW .

Pursuant to LAW , if a complaint about the inactivity of an administrative authority was well - founded , the court should oblige the competent authority to give a decision , or to carry out the factual act , or to confer or acknowledge an individual entitlement , right or obligation .

On DATE the Law on Administrative Courts came into force , which replaced LAW and established a CARDINAL - tiered system of appeals against administrative decisions to administrative courts .


Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Equality of arms);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-2 - Presumption of innocence);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicant was born in DATE and lives in GPE .

The applicant ’s father , PERSON , was chairman and managing director of the ORG and ORG companies .

On DATE Lambda , a company representing certain shareholders in ORG and ORG , lodged a complaint for misappropriation of corporate assets , together with an application to join the proceedings as a civil party .

By an order of DATE , PERSON was sent before ORG on suspicion of having , DATE , as chairman and managing director of ORG and ORG in GPE , knowingly fraudulently misused assets of those companies against their interest , in particular by letting them bear the full cost of an DATE licence fee equal to PERCENT of the CARDINAL ORG turnover , only part of which was justified , for his personal gain or to help another company in which he had a direct or indirect interest .

CARDINAL agreements were signed for the purpose : CARDINAL on DATE , between ORG and ORG , and the other on DATE , between ORG and ORG . They were adopted by the general assemblies of ORG and ORG on DATE and DATE respectively .

In a judgment of DATE ORG declared the prosecution against PERSON time - barred , the starting point for the purposes of limitation being fixed at CARDINAL and DATE , the dates of signature of the agreements by the shareholders . As a result , the court declared the civil party action brought by Lambda inadmissible .

On DATE and DATE Lambda and the public prosecutor at the GPE tribunal de grande instance appealed .

NORP In a judgment of DATE ORG confirmed the judgment in all its provisions . Lambda appealed on points of law .

On DATE J .- L. Lagardère died .

In a judgment of DATE , after declaring that the prosecution had lapsed , this time as a result of the accused ’s death , ORG quashed and annulled the judgment of ORG concerning the civil action , considering that the moment at which time had started to run for the purposes of limitation was the presentation of the ORG special report to the general assemblies , which post - dated the signature of the disputed agreements . The case was sent before ORG .

Jean - Luc Lagardère ’s heirs , his widow ORG and the applicant , challenged that court ’s competence to judge the civil action .

In a judgment of DATE ORG dismissed that objection , considering that the civil action continued when the offender ’s death occurred after a decision on the criminal prosecution had been given .

It declared the instances of misappropriation of corporate assets committed in DATE time - barred , but not those committed in DATE .

The court accordingly considered that it had first to determine whether the constituent elements of the offence of misappropriation of corporate assets were established in respect of PERSON late father . To do this it examined “ the personal interest ” in the signature and execution of the contracts in issue , “ whether they were against the corporate interests of ORG and ORG ” , and whether PERSON had acted in “ bad faith ” . It concluded its reasoning in the following terms :

“ the system set in place ... at the request of Mr [ J .- L. ] Lagardère ... constitutes the offence of misappropriation of corporate assets to the detriment of ORG and ORG . ”

ORG explained that the profit had been MONEY ( ORG ) , or MONEY ( ORG ) , without any real added value for the injured companies .

In the operative part of its judgment ORG held :

“ that the constituent elements of the offence of misappropriation of corporate assets to the detriment ORG and ORG are established for that period against Mr ORG . ”

In view of that finding ORG ordered ORG and the applicant , as the heirs , to pay the civil party ORG in damages .

The applicant , ORG , ORG and ORG at ORG appealed on points of law . In support of his appeal the applicant argued that there had been a violation of LAW because the criminal court had no authority to judge the matter after his father ’s death .

In his opinion on the appeal the advocate - general at ORG , having examined the different possible solutions and the relevant legal theory and case - law , concluded that ORG had no authority to judge the civil action after PERSON ORG death . He also justified his opinion on principle . First , he pointed out that whatever the place reserved for the victim in the criminal trial , the judgment of the civil action remained contingent on the outcome of the criminal proceedings as it required the prior demonstration of the existence of an offence of which a particular individual was guilty , which ruled out the possibility of continuing the action against the heirs . He cited a passage from an authoritative work ( PERSON pénale , by Professors PERSON , GPE and GPE , CARDINALth edition ) : “ in our modern law we no longer bring actions against the dead or the memory of the dead ” . Next , he explained that the need for a violation of the criminal law which was inherent in any decision of the criminal courts justified the fact that , for the court even to rule only on the civil action , the accused had to be given a criminal trial that respected the “ principle that hearings must be oral ... and the adversarial nature of the trial , which was an essential component of a fair trial . In other words , in order for the criminal court to be able to rule , in both the criminal and the civil proceedings , there is a condition : the effective participation of the accused in his trial ” . This meant that in order for the criminal court to be able to examine the civil action alone , it would be necessary for the accused “ at CARDINAL time or another , to have had an effective opportunity to submit his arguments in full concerning the presence and the solidity of all the constituent elements of the offence with which he has been charged , and his responsibility in the matter ” .

NORP In a judgment of DATE ORG declared ORG appeal inadmissible and rejected those lodged by the applicant and ORG

Regarding the arguments submitted by the applicant , the judgment read as follows :

“ In overruling the objection that the criminal court had no authority to hear the civil action brought by the heirs of [ J .- L. Lagardère ] because no decision had been given on the merits in the criminal proceedings prior to the death of the accused , the judgment states , among other things , that the proceedings and the judgment found that the prosecution was time - barred before the accused died ; furthermore , the criminal court to which the case was remitted by ORG is the only court competent to determine whether the prosecution was time - barred and whether , having regard to the civil claim , the constituent elements of the offence of misappropriation of corporate assets have been made out ;

In pronouncing itself in those terms the Court of Appeal justified its decision ;

Trial courts before which action was lawfully taken before the criminal prosecution lapsed continue to have jurisdiction in the civil proceedings ... ”

Ruling on the civil party claim , it quashed and annulled the judgment of ORG solely on the issue of the capitalisation of the interest on the sums owed by ORG heirs . On that occasion it noted that ORG had “ found PERSON guilty ” .

The relevant provisions of LAW read as follows :

“ Anyone who has personally suffered damage directly caused by a criminal offence may bring civil - party proceedings to seek compensation for such damage . ... ”

“ Civil - party proceedings may be conducted simultaneously with the public prosecution and before the same court .

Civil - party proceedings may be brought for any head of damage , whether pecuniary or physical or non - pecuniary , caused by the acts under prosecution ”

“ Civil - party proceedings may also be conducted separately from the public prosecution , before a civil court .

However , judgment in civil - party proceedings brought in a civil court shall be suspended until final judgment has been given in any public prosecution .

Setting the public prosecution in motion does not suspend the other actions before the civil court , whatever their nature , even if the decision to bring criminal proceedings is likely to directly or indirectly influence the outcome of the civil proceedings . ”

“ A party who has brought proceedings in a civil court may not refer the same complaint to a criminal court unless the prosecution has preferred charges in that court before the civil court has ruled on the merits . ”

“ The public prosecution for the imposition of a penalty is extinguished by the death of the defendant or by limitation , amnesty , the repeal of the criminal law and res judicata . ”

“ When civil action is taken before a criminal court , limitation is governed by the rules of public prosecution . When the action is taken before a civil court , limitation is governed by LAW .

When the court has made a ruling on the public prosecution , the investigative measures ordered by the criminal court on the civil claims alone are governed by the rules of civil procedure . ”

When criminal and civil proceedings are brought simultaneously before the criminal court , the civil action is considered contingent on the outcome of the criminal prosecution ( see , for example , ORG , CARDINAL DATE , ORG . crim . no . CARDINAL ) .

NORP The public prosecution is extinguished by the death of the accused during the appeal on points of law . When ORG of ORG decides to discontinue the proceedings , the criminal courts can no longer rule on the criminal proceedings and therefore have no authority to examine the civil action ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ) . If the accused dies before any decision is reached on the merits , the criminal court has no authority to examine the civil action ( Court of Cassation , Criminal Division , DATE ; CARDINAL DATE , Bull . crim . no . CARDINAL ) .

The criminal courts can rule on the civil action only where a decision has been reached in the criminal proceedings ( Court of Cassation , Criminal Division , DATE , ORG . crim . no . CARDINAL ) . In that case , when death occurs during the appeal or the appeal on points of law , the public prosecution is extinguished but ORG and ORG can still examine the civil claims ( Court of Cassation , ORG , CARDINAL DATE ; CARDINAL DATE , ORG . crim . no . CARDINAL ; DATE , ORG . crim . no . ORG ; DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ; CARDINAL DATE , ORG . crim . no CARDINAL ; CARDINAL DATE , ORG . crim . no . CARDINAL ) . ORG remains competent if death occurs after cassation but before the accused is summoned to appear before the court to which the case has been remitted ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ) . ORG must examine the grounds of appeal concerning both the civil action and the criminal prosecution , the latter serving as the basis for the former ( Court of Cassation , Criminal Division , CARDINAL DATE , ORG . crim . no . CARDINAL ) .


The applicants , all farmers , are NORP citizens who are related to each other and are resident in GPE , GPE . They are represented by Mr PERSON , a practising lawyer in GPE .

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

The applicants maintain that their families had de facto possession ( zilyedlik ) of an area of land in LOC in GPE for DATE . They allege that over DATE their ascendants had been leasing the land to various villagers and had successfully claimed and defended their rights over the land .

According to the applicants , CARDINAL of their ancestors in DATE leased the land to a family in the village ( aşiret ) . For reasons which are unknown , the money which was received in rent for the lease of the land was paid directly to the village administration . The ancestor sued ORG for the return of the money , claiming that the latter had unlawfully retained it . However , their ancestor and the village mayor ( GPE ) reached a friendly settlement ( sulh ) . According to the terms of that settlement , the ancestor agreed that the village mayor could collect and keep the rent due under the lease up until DATE . In return the mayor agreed that , after DATE , “ the village people ” would respect the ancestor ’s property ( mülkiyet ) rights over the land . On DATE , this friendly settlement was registered with ORG ) in the form of a judgment .

At various times in DATE their ancestors complained to ORG that some villagers had trespassed on and used the land without their consent . ORG , with reference to the judgment of ORG , upheld the complaint .

In DATE the former mayor of the village was charged with abusing his official powers as a civil servant in connection with the conclusion of the DATE friendly settlement with CARDINAL of the applicants’ ancestors . In a judgment dated CARDINAL DATE ORG acquitted the former mayor of the charge .

In DATE several villagers requested ORG ) to rule that the applicants’ ancestors had unlawfully interfered with their use of the land . In its judgment of DATE that court held that the consent of the former mayor of the village to the friendly settlement which was registered with ORG on DATE did not bind the villagers . The court nevertheless found that the plaintiff villagers’ claims to be in de facto possession ( zilyedlik ) of the land were manifestly ill - founded . On the other hand , the court also accepted that the villagers had built houses and barns on the land and had cultivated fruit gardens in good - faith and with the knowledge of the applicants’ ancestors . For that reason , it held that the latter had interfered with the plaintiffs’ possessions on the land . It would appear that the applicants’ ancestors did not appeal .

In DATE other villagers resident in LOC challenged the decision of ORG of DATE before ORG ) . However , a friendly settlement ( sulh ) was reached between the applicants’ ancestors and the plaintiff villagers according to which the former accepted the villagers’ property rights with respect to a certain part of the disputed land . This friendly settlement was registered with ORG in the form of a judgment dated DATE . The applicants’ ancestors appealed on procedural grounds . ORG upheld the registration judgment .

On DATE , at the request of the applicants’ ancestor , the disputed areas of land were registered with the land registry ( PERSON ) of PERSON . This registration was based on the judgment of ORG of DATE .

In DATE and twice in DATE some villagers attempted to use the land without the consent of the applicants’ ancestors . The latter complained to ORG under PERSON No . DATE which protects de facto possessors of immovable property against third party interferences . The Governor ordered the villagers to leave the land with the exception of that part of the land which they used as meadowland ( mera ) .

At some stage , certain villagers together with ORG requested ORG ) to annul the title deed to the land which had been registered by the ORG ancestor with the land registry of ORG in DATE . On DATE the court concluded that the mayor was not entitled to enter into a friendly settlement on behalf of the village in the absence of a decision of ORG ( PERSON ) . The court nevertheless ruled that the plaintiffs failed to provide sufficient evidence to show that the disputed land was meadowland and as such the property of the LOC . The plaintiff village and the villagers appealed . The applicants have not provided a copy of the decision of ORG .

Following an official cadastre measurement ( tapulama tesbiti ) dated DATE , ORG ( PERSON ) identified the disputed land as “ village heritage ” and classified it as meadowland , which was to be registered as the property of the village .

On an unknown date the applicants challenged the decision of ORG before ORG . The court held on DATE that the applicants had to lodge their complaint with ORG ( İtiraz GPE ) of ORG ( Tapulama Müdürlüğü ) and for that reason the file was transferred to the latter authority .

On DATE ORG of ORG ( Tapulama Müdürlüğü ) rejected the ORG complaints .

On DATE and DATE , the applicants challenged the decision of the CARDINAL DATE before ORG . The respondents were ORG ( legal entity ) represented by its mayor ( muhtar ) and GPE PERSON ) of ORG . The applicants requested that the administrative classification be annulled and their former registration as owners in the land registry ( tapu kütüğü ) be reconfirmed . ORG of ORG ( PERSON ) also challenged the decision before the same court , claiming that certain lots which were registered as the property of GPE village were in fact the property of the ORG .

In support of their claims , the applicants referred to the events surrounding the land since DATE . They argued that their property rights as the undisputed owners of the land had been determined and affirmed by the DATE court decision and that no other court could alter that decision .

ORG heard all the concerned parties as well as witnesses . The court commissioned the preparation of expert reports on the disputed land and also inspected the site .

On DATE ORG concluded that the classification of the land as meadowland by ORG and the registration of LOC as the owner was lawful . The court also ruled that certain parts of the disputed land were the property of ORG of ORG . In its reasoning the court held that the judgment of ORG of DATE only pertained to a dispute over receivables between CARDINAL parties ( CARDINAL of the applicants’ ancestors and the village ) and was only intended to register the friendly settlement reached . According to the court , the DATE judgment was neither a determination of ownership of the land nor a legal basis for registering the applicants’ title to it in the land register in DATE .

The applicants appealed . They complained that the trial court did not investigate the case sufficiently . They also claimed that the court could not give a judgment which was in contradiction to the judgment of the Kadirli Magistrate ’s Court of DATE .

On DATE the CARDINALth Chamber of ORG upheld the judgment of ORG . It ruled that the lower court had investigated the case sufficiently and evaluated the evidence in accordance with the law . It concluded that the DATE registration of the applicants as owners in the land registry was groundless since it was not based on a judgment validating title to the land ( tescil ilamı ) . According to ORG , the DATE judgment of ORG did not affect the rights of ORG of the PERSON village since it was not a party to the friendly settlement . It added that the meadowland was public property and bona fide possessors thereof could not acquire property rights with the passage of time . The ORG furthermore found that in any event the land was never in the undisputed and uninterrupted possession of the applicants for DATE . The ORG nevertheless stated that it was not the first instance court ’s task to determine the true owners of the lots . The trial court should have confined itself to ordering that the classification of the land as meadowland be registered as such in the relevant register . The ORG corrected the corresponding parts of the trial court ’s judgment .

The applicants asked for the correction ( karar düzeltme ) of ORG judgment . On DATE Chamber of ORG rejected their request .