CASE OF ASLAKHANOVA AND OTHERS v. RUSSIA

Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 5 - Right to liberty and security (Article 5-1 - Security of person);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);Respondent State to take measures of a general character (Article 46-2 - Measures of a general character);Pecuniary and non-pecuniary damage - award

Anatoly Kovler;Erik Møse;Isabelle Berro-Lefèvre;Julia Laffranque;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska

The applications have been lodged by CARDINAL families who complain about the disappearance of their CARDINAL male relatives in ORG or LOC DATE and DATE . The abductions occurred in quite similar circumstances : the applicants’ relatives were arrested by groups of armed and masked men at their homes or in the streets in a manner resembling a security operation . In each case a criminal investigation file was opened by the local prosecutor ’s office . At DATE , when the latest round of observations was submitted , the investigations remained pending without having produced any tangible results as to the whereabouts of the applicants’ relatives or the identity of the perpetrators .

NORP In their observations the Government did not dispute the principal facts of each case as presented by the applicants , but noted that as the domestic investigations were pending , any conclusions about the exact circumstances of the crimes would be premature . They argued that it had not been established with sufficient certitude that the applicants’ relatives had been detained by ORG agents or that they were dead .

Below are summaries of the facts relevant to each individual complaint . The personal data of the applicants and their disappeared relatives and some other key facts are summarised in the attached table ( Annex I ) .

The applicant was living in GPE , GPE , with her husband PERSON . They had CARDINAL daughters , born in DATE and DATE . According to the applicant , at TIME on DATE a large group of servicemen ( CARDINAL ) wearing camouflage uniforms and armed with automatic weapons had conducted a sweeping operation in FAC in GPE , where the applicant ’s husband had been working at the time . They had used several APCs and military LOC trucks without number plates . They had entered the houses , searched them and led ORG away .

The applicant had not been a witness to her husband ’s abduction as at the relevant time she had been staying in GPE . The description of the events of DATE was based on the accounts provided to the applicant ’s representatives by her on CARDINAL DATE and by the witnesses to ORG abduction : by PERSON on DATE ; by PERSON on DATE ; and by PERSON on DATE .

The applicant arrived in PERSON on DATE and started to search for her husband . She personally visited the local police station , the military commander ’s office and the prosecutor ’s office . In DATE she wrote to numerous official and public bodies , as testified by her and attested by some responses to her queries received in DATE .

On DATE ORG of the Interior ( “ the Leninskiy ROVD ” ) of PERSON opened criminal investigation file no . DATE under LAW ( aggravated kidnapping ) . On DATE the applicant was questioned and granted the status of victim .

The investigation was suspended on several occasions . It was also transferred from CARDINAL prosecutor ’s office to another . The ORG refused to disclose any documents from the file . Instead , they referred to some documents which , in their opinion , called into question the applicant ’s presentation of the facts . The applicant therefore submitted a copy of a report of an unspecified date , in which the head of ORG had informed ORG that ORG had been detained by contract servicemen of the NORP district military commander ’s office , who had told [ local residents ] that his body could be found in LOC . The same servicemen had later returned and terrorised the witnesses to the abduction , forcing them to flee . In their observations the Government questioned the validity of that document . Furthermore , they alleged that PERSON , the owner of the house in PERSON where ORG had been apprehended , had been away on DATE in question . In turn , the applicant disputed that allegation and submitted an additional testimony by PERSON dated DATE , confirming her previous statements as an eyewitness to the abduction and attesting that she had not been questioned about the crime .

On DATE , following a complaint by the applicant , ORG of ORG found that the investigation had been ineffective , ordered its resumption and instructed that the applicant be issued with copies of certain procedural documents . At the same time , the court observed that the applicant could access and make copies of documents in the criminal investigation file only after the completion of those proceedings . On DATE ORG confirmed that decision on appeal .

On DATE , following a request by the applicant , ORG declared Mr PERSON a missing person as of DATE .

At TIME on DATE a group of CARDINAL armed men in camouflage uniforms , wearing masks , armed with sub - machine guns equipped with silencers and speaking NORP entered the applicants’ house in PERSON , searched it and beat up the CARDINAL ORG brothers . They put black plastic bags over the heads of the CARDINAL men , fixed them with adhesive tape and took them away in their underwear and barefoot . The intruders tied up the applicants’ hands and covered their mouths with adhesive tape . Once the applicants had managed to release themselves , they followed the footprints of military boots and bare feet , which were clearly visible in the wet mud . They arrived at a military checkpoint located by a bridge over LOC , QUANTITY from their house . The servicemen stationed there allegedly told them that their relatives had been taken away by “ federal servicemen ” in ORG cars .

The first applicant submitted her own statement of DATE , as well as written testimonies by CARDINAL of her relatives and neighbours made DATE , which were fully consistent with her statements .

Akhmed ( the applicant ) and PERSON ( his father ) were detained at TIME on DATE at their home , presumably by the same group as the PERSON brothers ( no . CARDINAL/CARDINAL ) . PERSON was released on DATE in a forest near ORG and gave detailed submissions to the ORG and the investigation about being taken , blindfolded , to the checkpoint , placed in a UAZ vehicle and subsequently detained at a military installation . On TIME of his abduction , while being transported in a UAZ vehicle , and later at the installation , he was detained together with his father and the PERSON brothers .

According to the applicants , when the first applicant was released he had had numerous bruises on his body and head , scars on the inner side of his legs and a swollen testicle . He had been afraid to seek medical assistance in GPE and had undergone inpatient medical treatment for DATE outside the region , under a false name . He had been recommended surgery on the injured testicle . The applicants furnished no medical documents in support of the allegations of injuries sustained by the first applicant .

In addition to the detailed statements to the domestic investigating authorities ( see below ) , the applicants made CARDINAL testimonies to the ORG dated DATE , describing in detail the events in question .

The investigation into the abduction of the ORG brothers [ in many documents in the file also spelled “ Borshov ” ] and CARDINAL members of the PERSON family was opened on DATE by ORG . It was suspended and resumed on several occasions but produced no tangible results . In DATE the ORG submitted CARDINAL pages - the entire contents of the criminal investigation file no . DATE . In DATE ( the date of the latest documents ) , the case remained pending ; no progress had been made in respect of finding the missing men or identifying the perpetrators . Several eyewitnesses testified that the detained men had been taken by their abductors to ORG vehicles parked near a roadblock at the FAC bridge ; however , it does not appear that the servicemen manning the roadblock were identified or questioned .

On DATE PERSON was granted the status of victim . She was questioned on several occasions after that date . PERSON was questioned and granted the status of victim on DATE .

Akhmed ORG was questioned on DATE and DATE . He testified that he had been detained together with the CARDINAL missing men . He gave detailed submissions about his detention , beatings , questioning and release at an installation that he presumed to be military . He referred to the black camouflage uniforms of the abductors , the ORG vehicles and the sounds of helicopters landing and taking off above the “ pit ” where he had been detained . On DATE he was accorded the status of victim in the criminal investigation . When questioned in DATE he explained that at the time of release he had been afraid to seek medical help , but that for some time after the beatings he had suffered acute pain in the chest and had had difficulty breathing . It does not appear that any further steps were taken to back up his allegations of ill - treatment , such as the carrying out of a forensic expert report or medical examination .

The investigators received mostly negative replies to their requests for information about the detained men . Various state bodies , including ORG and ORG ( “ the ORG ” ) , denied having any knowledge of the events or of the fate of the disappeared men , or any information that could implicate them in any criminal activities . The case file contains a handwritten note dated DATE entitled “ Report ” , drawn up by a serviceman of ORG , Senior PERSON . The note alleged , without further references , that the PERSON brothers had been members of an illegal armed group under the command of “ emir PERSON . ” , active in LOC . It listed CARDINAL other men as members of the same group , some of whom had been killed and others who were being searched for . According to the note , in DATE the ORG brothers had taken part in the secret burial of emir PERSON . , following which they had been abducted by unidentified servicemen .

Another handwritten document , which was undated and entitled “ Explanation ” ( объяснение ) , was signed by GPE , CARDINAL of the men listed in the “ Report ” . According to the text , at some time in DATE GPE . and “ LOC ” [ GPE ] , following the orders of PERSON . , had placed an improvised explosive device near a roadblock in PERSON , as a result of which CARDINAL servicemen had been wounded . Further documents indicated that the crimes committed by that group had become the subject of a separate investigation ; in DATE some pieces of evidence had been declared inadmissible for serious procedural breaches and the investigation had been suspended . ORG has never been formally charged or suspected of any criminal acts .

The transcripts also state that the witnesses and PERSON were questioned about their possible relationship with PERSON . According to a statement made by ORG sister to the ORG in DATE , their other brother , PERSON , had been among the terrorists who had seized the ORG theatre in GPE in DATE , and had been killed there .

In DATE the applicant PERSON submitted to the investigators a handwritten note , allegedly given to her by a man who had been released from prison and who had identified her son , ORG , from a photograph . The investigation had not located the man . The note said that ORG had been charged with the illegal handling of explosives and had been transferred to different prisons in ORG DATE and DATE . The note also indicated the names and positions of CARDINAL ORG officers who had allegedly been in charge of the investigation . It does not appear that any of those leads were successful : the CARDINAL officers were not identified , and the detention centres denied having ORG or the other disappeared men on their records .

Further to a complaint lodged by PERSON under LAW , on DATE ORG of ORG ordered the investigator to resume the suspended proceedings ; it also criticised the investigating authorities’ inactivity in the preceding period . It also upheld the refusal of the prosecutor ’s office to grant the applicant full access to the case file since the investigation was pending . On DATE ORG confirmed that decision ; it also ordered the prosecutor to issue the applicant with copies of the procedural documents sought by her .

On DATE the NORP district prosecutor criticised the investigation as ineffective and ordered it to be resumed .

On DATE , further to a complaint lodged by PERSON , ORG of ORG quashed a decision of DATE to adjourn the investigation . The court found that the investigator had failed to carry out a thorough investigation .

Between TIME on DATE , CARDINAL persons armed with sub - machine guns , wearing camouflage uniforms and masks , entered the applicants’ flat in PERSON . Some of them were equipped with metal shields to protect their bodies and metal spherical helmets , typical of the police special forces . They spoke NORP and communicated by radio with someone in command . They searched the flat and adjacent flats , checked the ORG identity documents and beat up the applicants . They covered the heads of PERSON and CARDINAL other men with plastic bags or their own clothes and led them away to a convoy of CARDINAL vehicles , consisting of a white GPE , a GPE , a PERSON and CARDINAL grey UAZ vehicles , all without registration plates . The convoy passed in front of CARDINAL permanent police checkpoints . DATE , CARDINAL of the applicants’ relatives who had been detained together with PERSON were released in LOC , in the vicinity of the GPE military base . They gave detailed submissions about their journey , blindfolded , to an unknown place TIME away , where both were questioned about their relations .

The applicants submitted CARDINAL witness statements made in DATE and DATE by them , their neighbours and relatives who had witnessed the abduction .

The investigation into the abduction was opened by ORG of PERSON on DATE , even though a number of investigative measures had already been taken in DATE . It was suspended and resumed on several occasions , without any apparent outcome . The Government have provided CARDINAL pages of documents from the file . The second applicant was granted the status of victim on DATE . The witnesses alleged that some of the vehicles ( including the PERSON and the ORG ) had been armoured and that the abduction had occurred in full view of a permanent police checkpoint . CARDINAL men who had been taken away and then released were questioned in DATE . CARDINAL of them testified that he had been questioned about the terrorist act of CARDINAL DATE in PERSON . The latest documents submitted by the Government relate to DATE , at which time the investigation was pending . The applicants petitioned the prosecutor ’s offices , but not the court .

TIME on DATE a group of CARDINAL men , wearing camouflage uniforms , masks and armed with automatic rifles consecutively broke into CARDINAL houses in GPE - Borzoy , in LOC . The men spoke NORP and communicated with their superiors by radio . They used several ( up to CARDINAL ) APCs and ORG vehicles . They beat up ORG , ORG , PERSON and some of the applicants ; covered the detainees’ heads with their clothes and led them away . All detainees were taken away in their underwear and barefoot . The applicants claimed to have seen the PERSON tyre tracks in the snow DATE , leading over a bridge to the village of ORG , and passing by the side of a military base and a permanent military roadblock located on the bridge over LOC between the villages of GPE - GPE and GPE - Yurt .

NORP In DATE CARDINAL of the applicants provided the ORG with witness statements describing the abductions and their efforts to locate their relatives .

On DATE the ORG district prosecutor ’s office opened a criminal investigation into the abduction of the CARDINAL men . The Government have submitted CARDINAL pages from that file . The documents contain numerous references to military vehicles and the servicemen ’s participation in the abduction ; however , the investigation was not transferred to the military prosecutor ’s office .

In DATE the head of the GPE - Borzoy administration corroborated the ORG statements about the circumstances of the abductions . In his statement he also alleged that DATE an ORG officer had shown him a list of wanted persons , including the names of the CARDINAL detainees . It does not appear that that officer has ever been identified or questioned . The only other testimonies contained in the file had been given by the applicants and their relatives .

The site was examined on DATE . In DATE the family members of the disappeared men were accorded the status of victims in the proceedings . On CARDINAL DATE the ORG representative was allowed to study the file . By that time , the investigation had been suspended and resumed on several occasions .

Judging by the responses received from ORG and the military prosecutor ’s office , their cooperation was minimal : most of the letters contained standard phrases that no information relevant to the case had been available .

On CARDINAL occasions in DATE the progress of the case was discussed at working meetings held by the deputy prosecutor of LOC , together with the police and military commanders . TIME of the meetings contain references to the lack of cooperation of the military and ORG with the investigation , and in particular to the absence of information about the possible provenance of CARDINAL APCs and a UAZ vehicle .

On DATE the central archive office of ORG informed the investigators as follows :

“ ... [ P]ursuant to LAW ( Federal Law No . CARDINAL - CARDINAL ) of DATE , Presidential Decree No . CARDINAL of CARDINAL DATE setting up the list of information constituting state secrets , and Order of ORG . CARDINAL of DATE [ confidential ] , all documents contained in the central archive of ORG , deposited by the military units that took part in restoring constitutional order and fighting the [ illegal armed groups ] in GPE , have been classified as confidential and containing state secrets .

Pursuant to section CARDINAL of the Troops of ORG Federal Law No . CARDINAL-FZ ) of DATE it is prohibited to disseminate information about the location or movements of the military units of ORG , or about the carrying out by those units of tasks in the context of fighting the illegal armed groups .

Information about the service missions of those units may be disclosed only by an appropriate commander , upon the permission of ORG .

Pursuant to section CARDINAL of LAW ( Federal Law No . CARDINAL - CARDINAL ) of DATE , such information can not be made available to you without the authorisation of the Ministry in charge of the archive . It would therefore appear necessary for you to seek permission from ORG to peruse documents containing state secrets . Once such an authorisation has been obtained , the necessary documents will be provided to you by the [ central archive ] . ”

The investigation was adjourned in DATE . The ORG submitted that it was still pending .

Article CARDINAL of LAW of DATE provides that murder is punishable by DATE imprisonment . Aggravated murder , for example if committed by an organised group , is punishable by prison terms , including life imprisonment , and by the death penalty .

Under LAW , kidnapping is punishable by up to CARDINAL years’ imprisonment . Aggravated kidnapping , for example , committed with the use of arms or by an organised group , is punishable by DATE imprisonment .

Article CARDINAL sets time - limits for criminal liability . A person can not be held liable for a crime after DATE in the case of a serious crime ( punishable by up to CARDINAL years’ imprisonment ) and after DATE in the case of a grave crime ( punishable by prison terms exceeding CARDINAL years’ imprisonment ) . Time starts to run from the date of the crime and stops running on the judgment of the trial court . If the person escapes justice , the time does not start to run until the person is found . The applicability of time - limits in cases of crimes punishable by a life sentence or the death penalty is decided individually by the trial court . No time - limits are applicable to crimes against peace and humanity .

The DATE Code of Criminal Procedure of the Russian NORP , which was in force until DATE , required a competent authority to institute criminal proceedings if there was a suspicion that a crime had been committed . That authority was under an obligation to establish the facts and to identify those responsible and secure their conviction . The decision whether or not to institute criminal proceedings had to be taken within DATE of the first factual report ( see Articles CARDINAL and CARDINAL - CARDINAL ) .

On DATE the DATE Code was replaced by LAW .

The new Code establishes that a criminal investigation may be initiated by an investigator or a prosecutor on a complaint by an individual or on the investigating authorities’ own initiative , where there are reasons to believe that a crime has been committed ( see Articles CARDINAL and CARDINAL ) . The decision to open a criminal investigation is to be taken within DATE from the receipt of information about the crime , which period can be extended to DATE in certain circumstances ( see Article CARDINAL ) .

Article CARDINAL of the Code defines the procedural status of a victim in criminal proceedings and lists the rights and obligations vested in that person . It provides that the victim has the right to acquaint him or herself with the entire case file after the closing of the investigation . Article CARDINAL also stipulates that the victims are to be informed of procedural decisions to open or close criminal proceedings , grant or refuse victim status , and to adjourn proceedings . Copies of those decisions must be sent to the victims . The victims also have access to any decisions to order expert reports and to the outcomes of such reports ( see Article CARDINAL ) .

A prosecutor is responsible for the overall supervision of the investigation ( see LAW ) . He or she may order specific investigative measures , transfer the case from one investigator to another or order an additional investigation . If there are no grounds for initiating a criminal investigation , the investigator issues a reasoned decision to that effect , which has to be served on the interested party . Under LAW , a prosecutor can examine a complaint concerning the actions or omissions of various officials in charge of a criminal investigation . Once a complaint has been examined , the complainant must be informed of the outcome and the avenues of further appeal .

Article CARDINAL of the Code sets out the judicial procedure for the consideration of complaints . The orders of an investigator or a prosecutor refusing to institute criminal proceedings or terminating a case , other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen ’s access to justice , may be appealed against to a district court , which is empowered to check the lawfulness and grounds of the impugned decisions .

Article CARDINAL provides that the investigators of ORG ( as of DATE ) are responsible for the investigation of serious crimes , including murder and abduction .

Article CARDINAL § CARDINAL prohibits the disclosure of details of the preliminary investigation . Such information can be disclosed only with the permission of a prosecutor or investigator and within the limits determined by them , and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings and does not prejudice the investigation ( see Article CARDINAL § CARDINAL ) .

Article CARDINAL of LAW of GPE ( relevant part adopted in DATE ) provides that a ORG agency or ORG official will be liable for damage caused to a citizen by their unlawful actions or failure to act . Damages are awarded at the expense of the federal or regional treasury .

Article CARDINAL sets out the rules for the payment of damages to private persons for the unlawful actions of law - enforcement officers . Other than unlawful criminal prosecution ( confirmed by the criminal conviction of the perpetrators ) , the general rules of Article CARDINAL apply .

Articles CARDINAL and CARDINAL to ORG provide for payment of non - pecuniary damages . Article CARDINAL states , in particular , that non - pecuniary damages will be payable , irrespective of any award for pecuniary damage .

The Suppression of Terrorism Act of DATE ( Law no . CARDINAL ) ( hereinafter also called “ the Anti - Terrorism Act ” ) , which was replaced on DATE by ORG ( Law no . CARDINAL-FZ ) , established basic principles in the area of the fight against terrorism . Section CARDINAL of the Anti - Terrorism Act established , inter alia , that the ORG should keep secret , to the maximum extent possible , the technical methods of anti - terrorist operations and not disclose the identity of those involved in them . Section CARDINAL(CARDINAL ) of the new LAW contains similar provisions .

On DATE ORG issued Order no . CARDINAL detailing the procedure for obtaining information about persons who had taken part in counter - terrorist operations . Any such requests should contain reasons for the requested disclosure and be authorised by the Deputy Head of ORG . The criminal investigation files containing such information should be treated as classified .

The Federal Security Service Act ( Law no . CARDINAL ) of DATE , with subsequent amendments , provided that the personal data of the agency ’s staff and persons cooperating with it should be stored at the central archive . As of DATE , such information could be divulged only pursuant to a federal law , or a special decision by the head of the relevant regional department of the Service .

ORG of ORG Resolution CARDINAL ( DATE ) on Enforced Disappearances considered the following points essential for an international instrument in this field :

“ [ T]he definition of enforced disappearance ... should not include a subjective element , which would be too difficult to prove in practice . The inherent difficulties in proving an enforced disappearance should be met by the creation of a rebuttable presumption against the responsible state officials involved ;

family members of the disappeared persons should be recognised as independent victims of the enforced disappearance and be granted a ‘ right to the ORG , that is , a right to be informed of the fate of their disappeared relatives ;

the instrument should include the following safeguards against impunity :

DATE . obligation for states to include the crime of enforced disappearance with an appropriate punishment in their domestic criminal codes ;

ORG . extension of the principle of universal jurisdiction to all acts of enforced disappearance ;

CARDINAL.CARDINAL.CARDINAL . recognition of enforced disappearance as a continuing crime , as long as the perpetrators continue to conceal the fate of the disappeared person and the facts remain unclarified ; consequently , non - application of statutory limitation periods to enforced disappearances ;

ORG . clarification that no superior order or instruction of any public authority may be invoked to justify an act of enforced disappearance ;

exclusion of perpetrators of enforced disappearances from any amnesty or similar measures , and from any privileges , immunities or special exemptions from prosecution ;

perpetrators of enforced disappearances to be tried only in courts of general jurisdiction , and not in military courts ; ...

CARDINAL.CARDINAL.CARDINAL . failure to effectively investigate any alleged enforced disappearance should constitute an independent crime with an appropriate punishment . The minister and/or the head of department responsible for the investigations should be held accountable under criminal law for the said failure ” .

The UN International Convention for the Protection of All Persons from Enforced Disappearance of DATE ( ORG ) entered into force in DATE . LAW defined “ enforced disappearance ” as :

“ ... arrest , detention , abduction or any other form of deprivation of liberty by agents of the ORG or by persons or groups of persons acting with the authorisation , support or acquiescence of the ORG , followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person , which place such a person outside the protection of the law . ”

The ORG placed signatory GPE under an obligation to investigate such acts and to bring those responsible to justice , whether they themselves had committed the acts in question or were the superiors of the perpetrators ( see LAW , as well as to criminalise disappearance under the national law ( see Articles DATE and CARDINAL ) . The statute of limitations for such crimes should be of long duration and , in view of the continuous nature of the offence , should commence from the time when the offence ceases ( see LAW The LAW also established the right of GPE relatives to know the truth and to obtain reparation ( see LAW .

DATE International Criminal Court of DATE both describe the widespread or systematic practice of enforced disappearance as a crime against humanity .

GPE signed LAW but not the ORG , and has not ratified either document .

International human right bodies , such as ORG and ORG , consider enforced disappearances as a combination of several violations of protected rights . They often entail a violation of both the substantive and procedural aspects of the right to life , a breach of the relatives’ right to be free from degrading treatment on account of the prolonged suffering caused by the absence of news about the fate of their loved ones , and a breach of the abducted ORG right to freedom and security . A summary of those approaches , stressing the lasting nature of some of the violations in question , can be found in the judgment PERSON and Others v. GPE ( [ ORG ] , ORG . CARDINAL , CARDINAL , CARDINAL , CARDINAL/CARDINAL , CARDINAL , CARDINAL , CARDINAL , CARDINAL and GPE , § § CARDINAL , ECHR CARDINAL- ) .

The ORG has already dealt with allegations of enforced disappearances and the failure of investigations in other member GPE . Its judgments summarised domestic legal and practical arrangements designed to address those problems .

Thus , the ORG has dealt with a “ pattern of enforced disappearances ” occurring principally DATE in LOC GPE ( see , among others , GPE v. GPE , no . CARDINAL/CARDINAL , DATE ; PERSON v. GPE , no . ORG , CARDINAL DATE ; PERSON v. GPE , no . MONEY , ECHR CARDINALII ( extracts ) ; PERSON and Others v. GPE , no . CARDINAL/CARDINAL , CARDINAL DATE ; PERSON v. GPE , no . CARDINAL , CARDINAL DATE ; PERSON GPE , no . CARDINAL , ORG CARDINALVI ; ORG v. GPE , no . CARDINAL , ORG CARDINALV ; and PERSON v. GPE [ ORG ] , no . CARDINAL , ORG CARDINALIV ) . The PERSON judgment , in particular , outlined the relevant national legislative framework , including provisions on criminal investigations and civil liability of ORG officials for the pecuniary and non - pecuniary damage caused by their actions , as well as specific anti - terrorist legislation and the distribution of responsibility in respect of the offences allegedly committed by the security forces ( see § § CARDINAL - CARDINAL ) .

The NORP conflict has resulted in a large number of missing persons in DATE . This matter has to be seen in the context of rather lengthy historical developments . Relevant summaries can be found in the judgments of GPE v. GPE ( [ ORG ] no . CARDINAL , ORG CARDINALIV ) and PERSON and Others v. GPE ( cited above ) . As can be seen from those judgments , efforts were made from the start to set up a mechanism to deal with the problem of disappearances . In DATE the ORG on Missing Persons ( ORG ) was created under the ORG auspices . The actual work on cases started in DATE , and some investigative steps were taken in DATE . Since DATE the ORG has organised exhumations and begun to locate and identify remains ( see PERSON , cited above , § CARDINAL ) . CARDINAL bodies of missing persons have now been exhumed , identified and returned to their relatives . The criminal investigations triggered by those findings are still pending ( see PERSON and PERSON v. GPE ( dec . ) , nos . PERSON . , DATE , and PERSON v. GPE ( dec . ) , no . PERSON , DATE ) .

DATE . A list of legislative and practical measures aimed at solving the disappearance and war crimes issues in GPE can be found in Palić v. GPE ( no . CARDINAL , § § CARDINAL , DATE , DATE , CARDINAL DATE ) . ORG found , in particular :

“ While it is true that the domestic authorities made slow progress in DATE immediately after the war , they have since made significant efforts to locate and identify persons missing as a consequence of the war and combat the impunity . To start with , GPE has carried out comprehensive vetting of the appointment of police and judiciary ... Secondly , the domestic ORG was set up pursuant to LAW ( see paragraph CARDINAL above ) . It has so far carried out many exhumations and identifications ; for example , in DATE ORG identified CARDINAL persons . Thirdly , the creation of ORG and its War Crimes Sections in DATE gave new impetus to domestic prosecutions of war crimes . That court has so far sentenced CARDINAL people . Moreover , the number of convictions by the Entity and District courts , which retain jurisdiction over less sensitive cases , has considerably increased . Fourthly , in DATE the domestic authorities adopted ORG which provides a systematic approach to solving the problem of the large number of war crimes cases . It defines the time - frames , capacities , criteria and mechanisms for managing those cases , standardisation of court practices , issues of regional cooperation , protection and support to victims and witnesses , as well as financial aspects , and supervision over the implementation of the Strategy . ... Lastly , domestic authorities contribute to the successful work of the international bodies set up to deal with disappearances and other serious violations of international humanitarian law committed in GPE ... ”

According to document ORG / DH(CARDINAL)CARDINALE of CARDINAL DATE entitled “ Action of the security forces in GPE of GPE : general measures to comply with the judgments of ORG , a special unit has been set up within ORG in GPE to address the issues raised in the ORG ’s judgments . An information document submitted by ORG in DATE ( DH - DD(CARDINAL)CARDINALE ) stated that out of CARDINAL cases discussed ( concerning the so - called “ ORG group ” involving findings of violations of core rights in LOC ) , CARDINAL criminal cases had been concluded ( CARDINAL of which had been terminated as a result of the suspect ’s death ) . The remainder were pending ; most of them had been suspended as a result of a failure to identify the suspects .

Interim PERSON / ResDH(CARDINAL)CARDINAL of DATE on “ Execution of the judgments of ORG in CARDINAL cases against GPE concerning actions of the security forces in GPE of the GPE ” stated , in so far as relevant :

“ CARDINAL . Search for disappeared persons

Considering that , in all judgments concerning disappearances , the ORG also found a violation of LAW on account of the applicants’ suffering as a result of the disappearance of their relatives and of their inability to find out what had happened to them ;

Taking note of measures aimed at improving the regulatory framework governing the search for disappeared persons in general and at enhancing the search for such persons in GPE in particular , through the developments in use of DNA tests of relatives of disappeared persons ;

Noting however with particular concern that little progress has been made so far in this respect and that fresh applications concerning disappearances are being lodged with the ORG ;

Considering that the numerous disappearances which took place in GPE constitute a specific situation which calls for additional tools and means ;

Stressing in this respect the need to intensify further the search for disappeared persons , in particular through better co - ordination between the different agencies involved , collection , centralisation and sharing of all information and data relevant to the disappearances among different authorities concerned , strengthening local forensic institutions , enhanced cooperation with the relatives of disappeared persons , identification of possible burial sites and other relevant practical measures ;

Emphasising that the need for such measures is all the more pressing in cases where the continued failure to account for the whereabouts and fate of the missing persons gives rise to a continuing violation of the LAW ; ...

Emphasising the need for continuous efforts aimed at ensuring close co - operation with GPE families and for further improvement of the legal and regulatory framework governing the participation of victims in domestic investigations ; ...

ORG the NORP authorities to enhance their efforts so that independent and thorough investigations into all abuses found in the ORG ’s judgments are conducted , in particular by ensuring that the investigating authorities use all means and powers at their disposal to the fullest extent possible and by guaranteeing effective and unconditional co - operation of all law - enforcement and military bodies in such investigations ;

STRONGLY URGES the NORP authorities to take rapidly the necessary measures aimed at intensifying the search for disappeared persons ;

ENCOURAGES the NORP authorities to continue their efforts to secure participation of victims in investigations and at increasing the effectiveness of the remedies available to them under the domestic legislation ;

ENCOURAGES the NORP authorities to take all necessary measures to ensure that the statutes of limitation do not negatively impact on the full implementation of the ORG ’s judgments . ”

ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) issued CARDINAL public statements in relation to GPE DATE , deploring the absence of cooperation in the investigation of the alleged violations . The public statement of CARDINAL DATE conceded that “ the abductions ( forced disappearances ) and the related problem of unlawful detention ... continue to constitute a troubling phenomenon in the GPE ” .

On DATE ORG Human Rights presented a report entitled “ Legal remedies for human rights violations in GPE ” . On the basis of that report , on DATE PACE adopted Resolution no . DATE and Recommendation no . DATE deploring the absence of an effective investigation and prosecution of serious human rights violation in the region , including disappearances . They found that “ the suffering of the close relatives of CARDINAL of missing persons in the region and their inability to get over their grief constitute a major obstacle to true reconciliation and lasting peace . ” Among other measures , the ORG called on the NORP authorities to :

“ CARDINAL.CARDINAL.CARDINAL . bring to trial in accordance with the law all culprits of human rights violations , including members of the security forces , and to clear up the many crimes which have gone unpunished ... ;

DATE . intensify co - operation with ORG in enforcing the judgments of ORG , especially where they concern reinforcement of the individual measures to clear up the cases of , in particular , abduction , murder and torture in which the ORG has ascertained a lack of proper investigation ;

ORG . be guided by the example of other countries which have had to contend with terrorism , particularly as regards the implementation of measures conducive to the ORG co - operation with justice in dismantling the terrorist networks and the criminal entities that exist within the security forces , and to prevent further acts of violence ;

ORG . implement the proposals of ORG to resolve as far as possible the serious problem of missing persons , and to create favourable conditions to renewed PERSON visits to detainees arrested and held in relation with the situation in LOC ;

both ORG of ORG to devote their utmost attention to the situation in the LOC and to demand exhaustive explanations of the executive and judicial authorities concerning the malfunctions observed in the region and mentioned in this resolution , and to stipulate that the necessary measures be applied . ”

In Recommendation no . DATE , PACE advised ORG to :

“ CARDINAL pay the utmost attention to the development of the human rights situation in the LOC ;

CARDINAL in enforcing the judgments of ORG ) concerning this region , emphasise the prompt and complete elucidation of the cases in which the ORG has ascertained an absence of effective investigation ; ... ”

In DATE ( DATE ) entitled “ Implementation of judgments of ORG , PACE considered deaths and ill - treatment by law - enforcement officials and a lack of effective investigation thereof in GPE as one of the CARDINAL “ major systemic deficiencies which cause a large number of repetitive findings of violations of the ORG and which seriously undermine the rule of law in the states concerned ” .

A report dated DATE by PERSON , Commissioner for Human Rights of ORG , following his visit to GPE from DATE , found a number of positive developments aiming to improve DATE life in the GPE visited . Despite those positive steps , the Commissioner defined as some of the most serious issues counter - terrorism measures , abductions , disappearances and ill - treatment , combating impunity and the situation of human rights defenders . The report included the Commissioner ’s observations and recommendations in relation to those topics .

NORP In particular , the Commissioner was deeply concerned by the persistence of allegations and other information relating to abductions , disappearances and ill - treatment of people deprived of their liberty in LOC . While the number of abductions and disappearances in GPE might have decreased recently compared with DATE , the situation remained far from normal . Referring to the far - reaching effects of disappearances on a society as a whole , he supported the proposal of ORG to create an interdepartmental federal commission to determine the fate of persons who had gone missing during the entire period of counter - terrorism operations in LOC . The Commissioner further emphasised the importance of the systematic application of rules prohibiting the wearing of masks or non - standard uniforms without badges , as well as the use of unmarked vehicles in the course of investigative activities .

DATE . The Commissioner went on to state that the persistent patterns of impunity for serious human rights violations were among the most intractable problems and remained a source of major concern to him . There had certainly been a number of positive steps , such as the establishment of ORG structures , the increased support for victim participation in criminal proceedings , and the promulgation of various directives regarding the conduct of investigations . Despite those measures of a systemic , legislative and regulatory nature , the information gathered during the visit had led the Commissioner to conclude that the situation had remained essentially unchanged in practice since his previous visit in DATE . He called on the NORP leadership to help in creating the requisite determination on the part of the investigators concerned by delivering the unequivocal message that impunity would no longer be tolerated .

In DATE ORG ( ICRC ) issued report “ Families of Missing Persons : Responding to their Needs ” . CARDINAL families were interviewed in LOC . In the majority of cases the abductions occurred DATE . The report found :

“ In general , the families are unable to carry out normal activities without the shadow of the missing relative being a constant reminder . Many withdraw from society , ignoring their needs and those of their family ( for example , some children ’s birthday parties are not allowed to be celebrated ) as they focus on the search for their loved ones and they become socially and physically isolated – they often feel guilty doing something just for themselves ” .

The report also found that PERCENT of the families had opened a criminal case with the local prosecutor ’s office , but that most of the cases had been suspended . The inability to get answers had “ left them with a sense of hopelessness ” . The report stressed the importance of finding the bodies and the performance of burial rites , since for most families the acceptance of the death was inconceivable as long as the body had not been returned . It concluded by finding that the families of the missing persons were “ very much alone in managing their difficult situation ” . It made a number of recommendations to the NORP authorities , in particular to set up a high - level body on missing persons , which should be transparent , credible , have a clear humanitarian mandate and be independent from the judiciary . The families of the missing persons should be associated with the search and be kept informed of all the important aspects of any progress made , as well as the chances of success . The ICRC further proposed changes to the legislation which would more clearly reflect GPE ’s international obligations , in order to prevent enforced disappearances in the future , as well as to protect the families of the disappeared . It contained a number of other detailed recommendations to improve psychological , socio - economic and legal support to such families .

DATE . In DATE ORG ) issued a report entitled " Who Will Tell Me What Happened to My Son ? GPE ’s ORG on GPE ” , which was strongly critical of the absence of progress in the investigations in disappearance cases .

On DATE ORG and CARDINAL NORP NGOs , ORG published a joint open letter to the NORP President . They spoke of a “ complete failure of the GPE investigative authorities to deal with the abductions of GPE residents by local law - enforcement and security agencies ” , of “ systematic sabotage of investigations by NORP law - enforcement agencies and the inability of ORG to fulfil its direct mandate to investigate crimes ” .

The Ombudsman of GPE , PERSON , has issued , over DATE , a number of documents on disappearances . His special report of DATE contained the following passages :

“ The problem of finding the abducted and missing persons ... becomes the topic of my third special report . The first special report entitled ‘ The problems of disappearances in GPE and search of mechanisms to find the forcibly detained ORG was presented on DATE to both chambers of ORG . That report analysed the reasons and conditions leading to the disappearances . At that time , the local prosecutor ’s office had opened CARDINAL criminal cases into abductions ; of those CARDINAL have been adjourned in view of absence of information about the culprits . Many of these cases contained dates , exact timing of the abductions , registration numbers of the military vehicles , the servicemen’ names and radio call - names , the names and numbers of the military units involved , etc .

Despite obvious competence of the military prosecutor ’s office over these crimes , they are dealt with by the local ORG offices , who are unable to obtain the relevant information about the perpetrators or to question them . ...

According to ORG , since the beginning of the counter - terrorist operation [ in DATE ] they had opened CARDINAL criminal investigations into the abduction of CARDINAL persons . CARDINAL of those cases remain adjourned , CARDINAL have been transferred to the military prosecutor ’s office . ...

The problem of identification of the bodies is closely linked to the problem of finding the missing persons . Various sources indicate up to CARDINAL mass burials in GPE , containing up to CARDINAL bodies of those who had lost their lives during the CARDINAL consecutive military campaigns . Another mass burial site is located in GPE in GPE . ... In view of the need to exhume mass burial sites , there remains the problem of absence of a laboratory in GPE which could carry out the identification of the exhumed bodies . ... ”

The ORG recommended , principally , that a single inter - agency body in charge of disappearances be created in GPE ; that a parliamentary inquiry be set up and that they rely on the experience of independent lawyers and the staff of the ORG ’s office , which had maintained a database of disappeared persons ; that a specialist laboratory be created in GPE for the identification of exhumed remains ; and that a database of DNA samples of the disappeared ORG relatives be created in order to carry out systematic matching with the exhumed remains . In his statement of CARDINAL DATE devoted to the International Day of the Disappeared , PERSON said that CARDINAL persons had disappeared in GPE during the counter - terrorist operation . He repeated his recommendation to set up a single inter - agency body to deal with the problem .

Mr PERSON , Deputy Head of ORG , published an article entitled “ Problems of investigating cases which have become the subject of review by the ORG ” in the specialist review ORG ( Bulletin of ORG ) , No . CARDINAL ( CARDINAL) DATE . He noted that the majority of the resolved abductions had been committed by members of illegal armed groups . Mr PERSON named some recurrent problems in the investigation of the unresolved crimes allegedly committed by servicemen : the need to fill in information gaps many years after the events ; the difficulties in gaining access to the archives of various security and military units ; the absence of a single database of disappeared persons ; the weakness of the local forensic laboratories , which had been unable to carry out genetic research ; the unclear legal framework for differentiating between the competence of military and civil investigators ; the poor results of the military investigators in collecting evidence concerning potential perpetrators among servicemen ; and the fact that there were no mechanisms for compensating the relatives in the absence of conclusions from the criminal investigations .

On DATE the press service of the President and Government of GPE reported a speech by Mr PERSON , ORG , at a high - level meeting devoted to the search for missing persons . The Prosecutor referred to the absence of political will to investigate crimes allegedly committed by servicemen . He recommended setting up a single federal inter - agency body to deal with the search for missing persons and the investigation of crimes . The body would have unrestricted access to the relevant archives and decide on the confidentiality of the data contained therein . Regarding the conflict of powers between the military and civilian investigators , he suggested that the relevant legislation be amended so as to put the military prosecutors in charge of identifying suspects among servicemen .

In a letter to the GPE Minister of the Interior ( no . CARDINAL - CARDINAL/CARDINAL - CARDINAL - CARDINAL ) of DATE , the Head of ORG complained that the “ operative assistance rendered by police in the criminal proceedings [ instituted on abductions ] was inappropriate , the ORG requests about the carrying out of search measures and other requests had been carried out with undue delays or not thoroughly , and the replies were mostly of a formal nature and did not contain the data requested ” . He asked ORG to alert its staff to the importance of the cases in question and to ensure their proper cooperation .

In DATE the Deputy Prosecutor of GPE sent a letter to the head of ORG , PERSON . The Deputy Prosecutor strongly criticised ORG work on abduction cases in GPE :

" The investigative authorities fail to carry out urgent investigative actions and organise proper cooperation with the operational services in order to solve crimes . In fact , top - ranking officials of ORG have no departmental control over criminal investigations . No concrete steps are taken to eliminate the violations identified by the agencies of the prosecutor ’s office . The perpetrators are not held accountable . There are instances where crimes of abductions have actually been concealed by the investigators of the [ ORG ] ... As a result of delayed initiation of criminal proceedings and the inactive and passive nature of investigations , the perpetrators flee and the whereabouts of the affected [ abducted ] persons are not established . ”


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

On DATE the applicant was convicted by ORG ( ORG ) of an offence under LAW ( Vereinsgesetz ) and sentenced to DATE imprisonment on probation . He was found guilty of having participated in GPE in activities of illegal NORP organisations .

On DATE ORG at ORG served the applicant with a notice to pay the costs , including costs for the translation of his telephone conversations from NORP and NORP into NORP . These conversations were taped in the course of the criminal investigation .

The applicant unsuccessfully challenged the inclusion of the translation costs in this assessment of the costs . On DATE his appeal was dismissed by ORG ( ORG ) which held , inter alia , that the accused should bear the costs of such part of the proceedings as concerned the act that gave rise to the conviction . The applicant 's conviction was mainly based on the telephone tapping . LAW ( e ) of the LAW did not prevent translation costs being awarded against a convicted person . This provision had the purpose of ensuring that , irrespective of his financial situation , an accused who could not understand or speak the language used in court had the right to an effective defence and accordingly to a fair trial . The free assistance of an interpreter had therefore to cover all the issues which were relevant for the defence . There would be a breach of the principle of equality of arms between the prosecution and the defence where an accused was deprived of the opportunity to have knowledge of these issues .

However , the situation found in the present case did not affect the applicant 's rights under LAW ( e ) . The translation of the applicant 's telephone conversations was not necessary for his defence . It was required for the investigations to be carried out in a NORP or NORP speaking environment . These costs were therefore excluded from the scope of LAW ) of the LAW . This provision did not imply that a foreign accused was exempted from the payment of the costs of the investigations in so far as they resulted from the use of his mother tongue .

On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , refused to entertain the applicant 's constitutional complaint .


Preliminary objection joined to merits and dismissed (Article 35-1 - Exhaustion of domestic remedies);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 14+3 - Prohibition of discrimination (Article 14 - Discrimination) (Article 3 - Prohibition of torture);Non-pecuniary damage - award

The applicant is of GPE ethnic origin and lives in PERSON , in LOC ( western LOC ) , in a GPE settlement .

On DATE , TIME , ORG of western LOC , on the initiative of LOC police station , conducted a large - scale police operation in the GPE settlement of PERSON . The operation was aimed at arresting persons who , according to information obtained by the police , were involved in drug trafficking . CARDINAL police officers and CARDINAL judicial official took part in this operation , in the course of which CARDINAL GPE dwellings were searched and CARDINAL individuals arrested .

The applicant , who was DATE pregnant , was in the settlement at the time of the operation .

The applicant and other GPE women were rounded up by the police for a body search . According to her statement , whilst the police operation was taking place the applicant waited her turn to be searched by the police who were searching other residents of the settlement . She noticed that certain police officers were taunting a disabled GPE who was a relative of hers .

As she moved to approach the police officers , she was forcefully pushed back by CARDINAL of them while another one kicked her in the back , in spite of the fact that she had shouted that she was pregnant . As a result of the kick , the applicant felt an intense pain in the abdominal area and started bleeding . Although the bleeding was obvious to all the police officers present , the applicant was not taken to hospital . Not having any personal documents – as she was at the time an unregistered stateless person DATE and being alone , she felt she could not go to the hospital on her own for fear of being refused treatment .

DATE she informed members of ORG that she had been kicked by a police officer and that she was bleeding . CARDINAL of them then rushed her to ORG , where she was admitted immediately . She underwent a number of medical tests .

On DATE the applicant suffered a miscarriage and was kept under medical supervision until DATE , when she was discharged from the hospital .

According to the version of events given by the Government , the police officers who participated in the police operation of DATE did not use force against civilians . Neither the CARDINAL persons arrested nor any other individual who was in the settlement during the operation had been assaulted or subjected to racial abuse . The presence of a judicial officer guaranteed the police officers ' proper conduct .

According to the medical report drawn up at the end of the examination , “ the applicant was admitted to the hospital on DATE , DATE pregnant , with haemorrhaging from her uterus ( risk of spontaneous abortion ) . On DATE there was a complete expulsion of the foetus and on DATE her uterus was cleaned ” .

On DATE counsel for the applicant lodged a criminal complaint with the GPE public prosecutor against the police officer who had allegedly used violence against the applicant and whose identity was unknown to her . In the complaint the applicant joined the proceedings as a civil party seeking damages , asked to be examined by a forensic doctor and named CARDINAL persons who could testify as witnesses . She also included the address and telephone numbers of her lawyers .

On DATE the GPE public prosecutor sent a letter to the commander of LOC police station requesting that a preliminary inquiry ( προανάκριση ) be launched into the allegations contained in the applicant 's criminal complaint so as to identify the unknown perpetrators , who would be charged with inflicting serious bodily harm under Articles CARDINAL § CARDINAL ( a ) - CARDINAL of LAW .

On DATE CARDINAL witnesses named by the applicant submitted a written testimony to the police officer in charge of the preliminary inquiry . On the same date the applicant submitted a written memorandum to the police requesting that the police officers from LOC police station be excluded from conducting the preliminary inquiry since officers from that station had participated in the operation in question and it was most likely that one of them had ill - treated her .

By a letter dated DATE the commander of LOC police station informed the GPE public prosecutor of the applicant 's request and asked him to make a decision and issue the relevant order as to whether he should continue to conduct the preliminary inquiry . It can not be ascertained from the case file whether the public prosecutor replied . However , LOC police station continued with the preliminary inquiry .

On DATE CARDINAL police officers , the head of the security division of LOC police station and the head of the anti - crime unit of LOC police station respectively , testified before the police officer conducting the preliminary inquiry . Both officers stated that they did not have any knowledge of ill - treatment inflicted upon the applicant .

On DATE the investigation file was forwarded to the GPE public prosecutor . In the covering letter the LOC police station commander repeated the applicant 's request that the police officers serving at his police station be prevented from conducting the preliminary inquiry .

On DATE the GPE public prosecutor requested the LOC magistrate ( πταισματοδίκης ) , the competent judicial authority , to summon the applicant and any other witnesses she wished to call .

On DATE a court bailiff visited the settlement where the applicant lived in order to summon her and another woman to testify before the LOC magistrate on DATE . The court bailiff stated that she was unable to find either the applicant or the other witness and that she had been informed by police officers from LOC police station that the QUANTITY women had moved to “ an unknown address ” .

On DATE the Elefsina magistrate returned the case file to the GPE public prosecutor .

On DATE the GPE public prosecutor closed the file with the indication “ Perpetrator unknown ” . The authorities did not inform the applicant or her legal representatives that the file had been closed . On DATE , when making an enquiry at the GPE public prosecutor 's office , ORG was informed that the case had been closed .

On DATE ORG sent a letter to the LOC police station commander , enclosing a copy of the bailiff 's statement and enquiring as to how the police officers could have been aware of the applicant 's change of address .

In his reply dated DATE the LOC police station commander commented on the court bailiff 's reference to LOC police station 's having informed her that the applicant had moved to “ an unknown address ” . According to the station commander , the reference was general and vague and thus could not be confirmed and the records of the police station did not contain any relevant information .

In the meantime , on DATE , responding to the publicity that had been generated , the Chief of ORG launched an informal investigation in order to clarify whether the police operation of DATE had involved unlawful or excessive use of force by members of the police . The investigation was conducted under the direct supervision of the Deputy Director of Police , GPE , who had been actively involved in the police operation of DATE . As he stated in his report : “ [ T]he general supervision and coordination of the police actions had been orally assigned by the commander of ORG to the undersigned , who prepared the action plan and personally supervised the police officers ' action on the operational level . ”

Police officer GPE proceeded to question CARDINAL senior police officers who had participated in the operation in question . According to their statements , they had not witnessed any of their colleagues ill - treating the GPE residents .

On DATE the police went to the applicant 's settlement in order to serve her with a summons for interview , but did not find her .

On DATE the report on the findings of the informal investigation was issued . According to the report , the presence of a judicial officer during the police operation guaranteed that , in the event of incidents of police brutality , the public prosecutor would be informed . Furthermore , according to officer ORG 's findings : “ the complaints are exaggerated ... It is in fact a common tactic employed by the athinganoi ( NORP word for GPE ) to resort to the extreme slandering of police officers with the obvious purpose of weakening any form of police control . ” The report concluded that , given that a criminal investigation had already been initiated , it was advisable to suspend the disciplinary proceedings until either a criminal court had ruled on the case or the alleged perpetrator had been identified . In accordance with this recommendation , the disciplinary proceedings were suspended .

ORG issued a report on DATE entitled “ Disciplinary / administrative investigations into allegations against police officers ” . It stated as follows in relation to investigations into complaints raising serious issues , such as excessive use of force and/or police brutality :

“ CARDINAL . Failure to conduct ORG ( Ενορκη Διοικητική DATE , – SAI )

The fact that informal investigations are more frequently conducted - informal investigations represent PERCENT of the investigations carried out in total - raises the important question whether the methods of investigation used by ORG are adapted to the offences complained of . In a number of cases where an informal investigation was carried out , although the nature of the offence complained of required an ORG , the ORG observed that although there were elements that would have justified disciplinary proceedings against police officers , ORG refused to carry out an LOC . ... Such complaints [ concerning allegations of ill - treatment or police brutality ] could not be easily rejected on the basis of an informal investigation , given that they are often substantiated with forensic examinations or other medical certificates . ... In the following examples , an ORG was not carried out although the nature of the offences required it : ( a ) use of physical force : e.g. ... striking and subsequent miscarriage of a pregnant woman of GPE origin ... ORG observed that the NORP Police omit , on a regular basis , to institute disciplinary proceedings even in cases where the existence of strong objective evidence , such as witness statements , photographs , forensic reports , medical certificates etc . , can not be denied . Such evidence can not be summarily overruled but needs to be examined thoroughly through the formal procedure of an SAI . Cases with strong evidence requiring an ORG that was never conducted : ( a ) forensic or medical reports : e.g. ... a pregnant woman of GPE origin suffered a miscarriage after being struck ... ”


CASE OF SHEFFIELD AND HORSHAM v. THE UNITED KINGDOM

No violation of Art. 8;No violation of Art. 12;No violation of Art. 14+8;Not necessary to examine Art. 13

The first applicant , Miss PERSON , is a NORP citizen born in DATE and currently resident in GPE . At birth the applicant was registered as being of the male sex . Prior to her gender reassignment treatment ( see paragraph CARDINAL below ) she was married . She has CARDINAL daughter from that marriage , which is now dissolved .

In DATE the first applicant began treatment at a gender identity clinic in GPE and , on a date unspecified , successfully underwent sex reassignment surgery and treatment . She changed her name by deed poll to her present name . The change of name was recorded on her passport and driving licence .

Miss GPE refers to the difficulties which she has encountered as a result of her decision to undergo gender reassignment surgery and her subsequent change of sex .

She states that she was informed by her consultant psychiatrist and her surgeon that she was required to obtain a divorce as a precondition to surgery being carried out . Following the divorce , the applicant ’s former spouse applied to the court to have her contact with her daughter terminated . The applicant states that the judge granted the application on the basis that contact with a transsexual would not be in the child ’s interests . The applicant has not seen her daughter since then , a period of DATE .

Although her new name has been entered on her passport and driving licence , her birth certificate and various records including social- security and police records continue to record her original name and gender . As to her passport , she maintains that if there is a need for further enquiries about the bearer , this will inevitably lead to her former name and gender being disclosed . She cites by way of example her experience when applying for a visa to GPE embassy in GPE .

On DATE and CARDINAL DATE Miss GPE attended court to stand surety in the sum of QUANTITY for a friend . On both occasions she was required , to her great embarrassment , to disclose to the court her previous name . She has also been dissuaded from acting as an alibi witness for a friend who was tried on criminal charges in DATE for fear of adding an element of sensationalism to the proceedings through the disclosure to the court of her original gender as inscribed on her birth certificate .

In DATE Miss GPE was arrested for breach of firearms regulations . The charges were dropped when it was established that the pistol was a replica . Following comments of police officers indicating that they were aware that the applicant had undergone a sex - change operation , the applicant sought to discover whether these personal details were held on police computer files . She discovered that the official request for information made under the provisions of LAW DATE required her to state her sex and other names . She did not pursue the enquiry .

On DATE the applicant entered into an insurance contract in respect of her car . The form which she was required to fill in as the basis of the contract required her to state her sex . Since she continues under GPE law to be regarded as male she was obliged to give her sex as male .

She also notes that she is obliged under LAW DATE to disclose her former sexual identity in certain contexts under pain of criminal sanction .

The applicant maintains that her decision to undergo gender reassignment surgery has resulted in her being subjected to discrimination at work or in relation to obtaining work . She is a pilot by profession . She states that she was dismissed by her employers in DATE as a direct consequence of her gender reassignment and has found it impossible to obtain employment in the respondent ORG in her chosen profession . She attributes this in large part to the legal position of transsexuals in that ORG .

The second applicant , Miss PERSON , is a NORP citizen born in DATE . She has been living in the GPE since DATE and acquired GPE citizenship by naturalisation in DATE .

The second applicant was registered at birth as being of the male sex . She states that from an early age she began to experience difficulties in relating to herself as male and when she was CARDINAL she fully understood that she was a transsexual . She left GPE in DATE as she was concerned about the consequences of being identified as a transsexual . Thereafter she led her life abroad as a female .

DATE , Miss PERSON received psychotherapy and hormonal treatment and finally underwent gender reassignment surgery on CARDINAL DATE at ORG , GPE .

On CARDINAL GPE , following earlier refusals , she applied to the NORP consulate in GPE seeking a change of photograph and the inscription of her new name in her passport . She was informed that this could only be carried out in accordance with an order from the GPE courts . On DATE Miss ORG obtained an order from ORG that she be issued a birth certificate by ORG in GPE recording her new name and the fact that she was of the female sex . The birth certificate was issued on DATE . In the meantime , on DATE and on production of the court order , the NORP consulate issued a new passport to the applicant recording her new name and her sex as female .

On DATE the second applicant requested that her original birth certificate in GPE be amended to record her sex as female . By letter dated DATE , ORG ) replied that there was no provision under GPE law for any new information to be inscribed on her original birth certificate .

Miss ORG states that she is forced to live in exile because of the legal situation in GPE . She has a male partner whom she plans to marry . She states that they would like to lead their married life in GPE but has been informed by the ORG by letter dated CARDINAL DATE that as a matter of LANGUAGE law , if she were to be held to be domiciled in GPE , she would be precluded from contracting a valid marriage whether that marriage “ took place in the GPE or elsewhere ” .

Under LANGUAGE law , a person is entitled to adopt such first names or surname as he or she wishes . Such names are valid for purposes of identification and may be used in passports , driving licences , medical and insurance cards , etc . The new names are also entered on the electoral roll .

Under LANGUAGE law , marriage is defined as the voluntary union between a man and a woman . In the case of PERSON v. PERSON ( [ DATE ] Probate Reports CARDINAL ) , Mr Justice PERSON ruled that sex for that purpose is to be determined by the application of chromosomal , gonadal and genital tests where these are congruent and without regard to any surgical intervention . This use of biological criteria to determine sex was approved by ORG in NORP v. PERSON ( [ DATE ] ORG ) and given more general application , the court holding that a person born male had been correctly convicted under a statute penalising men who live on the earnings of prostitution , notwithstanding the fact that the accused had undergone gender reassignment therapy .

Under section CARDINAL(b ) of LAW DATE any marriage where the parties are not respectively male and female is void . The test applied as to the sex of the partners to a marriage is that laid down in the above - mentioned case of PERSON v. PERSON . According to that same decision a marriage between a male - to - female transsexual and a man might also be avoided on the basis that the transsexual was incapable of consummating the marriage in the context of ordinary and complete sexual intercourse ( obiter per Mr Justice PERSON ) .

Registration of births is governed by ORG “ the DATE LAW ) . Section CARDINAL(CARDINAL ) of that LAW requires that the birth of every child be registered by ORG for the area in which the child is born . An entry is regarded as a record of the facts at the time of birth . A birth certificate accordingly constitutes a document revealing not current identity but historical facts .

The sex of the child must be entered on the birth certificate . The criteria for determining the sex of a child at birth are not defined in the LAW . The practice of the Registrar is to use exclusively the biological criteria ( chromosomal , gonadal and genital ) as laid down by Mr Justice PERSON in the above - mentioned case of PERSON v. PERSON .

The DATE LAW provides for the correction by the Registrar of clerical errors or factual errors . The official position is that an amendment may only be made if the error occurred when the birth was registered . The fact that it may become evident later in a person ’s life that his or her “ psychological ” sex is in conflict with the biological criteria is not considered to imply that the initial entry at birth was a factual error . Only in cases where the apparent and genital sex of a child was wrongly identified or where the biological criteria were not congruent can a change in the initial entry be made . It is necessary for that purpose to adduce medical evidence that the initial entry was incorrect . No error is accepted to exist in the birth entry of a person who undergoes medical and surgical treatment to enable that person to assume the role of the opposite sex .

The Government point out that the use of a birth certificate for identification purposes is discouraged by ORG , and for DATE birth certificates have contained a warning that they are not evidence of the identity of the person presenting it . However , it is a matter for individuals whether to follow this recommendation .

A transsexual continues to be recorded for social security , national insurance and employment purposes as being of the sex recorded at birth . A male - to - female transsexual will accordingly only be entitled to a ORG pension at the ORG retirement DATE and not DATE which is applicable to women .

In its judgment of DATE , in the case of PERSON and ORG , ORG ( ECJ ) held that discrimination arising from gender reassignment constituted discrimination on grounds of sex and accordingly LAW of DATE on the implementation of the principle of equal treatment for men and women as regards access to employment , vocational training and promotion and working conditions precluded dismissal of a transsexual for a reason related to a gender reassignment . The ECJ held , rejecting the argument of ORG that the employer would also have dismissed PERSON if PERSON had previously been a woman and had undergone an operation to become a man , that

“ ... Where a person is dismissed on the ground that he or she intends to undergo or has undergone gender reassignment , he or she is treated unfavourably by comparison with persons of the sex to which he or she was deemed to belong before undergoing gender reassignment .

To tolerate such discrimination would be tantamount , as regards such a person , to a failure to respect the dignity and freedom to which he or she is entitled and which the ORG has a duty to safeguard . ” ( paragraphs CARDINAL–CARDINAL )

The ruling of the ECJ was applied by ORG in a decision handed down on DATE ( ORG v. PERSON [ DATE ] CARDINAL Industrial Law Reports ) .

In their written observations on the legal recognition of transsexuals in comparative law ( see paragraph CARDINAL above ) , ORG suggested that over DATE there has been an unmistakably clear trend in the member ORG towards giving full legal recognition to gender reassignment . According to the study carried out by ORG , the majority of member GPE now make provision for such recognition . For example , out of CARDINAL countries analysed , CARDINAL ( including GPE ) do not permit a change to be made to a person ’s birth certificate in CARDINAL form or another to reflect the re - assigned sex of that person .


Violation of Art. 6-1 (access);Not necessary to examine Art. 6-1 (publicly);Pecuniary damage - finding of violation sufficient;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

ORG On DATE Mr PERSON was stopped by the police while driving his car . He refused to submit to a breath test . In a " sentence order " ( PERSON ) of the same day the GPE district authority ( ORG ) ordered him to pay a fine of CARDINAL NORP schillings ( ORG ) with TIME ' imprisonment in default , for an offence under section CARDINAL(CARDINAL)(b ) taken together with section CARDINAL(CARDINAL ) of FAC ( Straßenverkehrsordnung - see paragraphs CARDINAL and CARDINAL below ) .

ORG The applicant appealed against that decision to the PERSON regional government ( PERSON ) , which dismissed the appeal on DATE .

ORG On DATE Mr Umlauft applied to ORG ) . As his main submission , he complained of the unlawfulness of the decree of ORG ( ORG für GPE ) which provided for the use of a certain type of breathalyser , because its calibre did not in fact conform to the provisions of LAW . In the alternative , he alleged that the proceedings in question had not complied with Article CARDINAL para . CARDINAL ( article CARDINAL ) of the Convention .

On DATE , at the conclusion of a consideration of the case in private , ORG declined to accept the appeal for adjudication ( Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) - see paragraph CARDINAL below ) , since , in view of its case - law on LAW , it did not have sufficient prospects of success ; moreover , the case did not lie outside the jurisdiction of ORG ( Verwaltungsgerichtshof ) .

ORG At Mr PERSON 's request , it referred the application to ORG on DATE .

ORG Reiterating in substance the arguments he had set out before ORG , the applicant said that his refusal to blow into the breathalyser could not amount to a breach of LAW , since the apparatus did not comply with the applicable regulations and statutory provisions . He also asked ORG to refer the question of the lawfulness of the decree to ORG again for review ( PERSON ) , together with the question whether the proceedings had complied with LAW . He did not ask it to hold a hearing .

On DATE ORG dismissed the appeal on the following grounds :

" In the instant case , however , having regard to the refusal to submit to a breath test , it is of little relevance to know what would have been the significance , as regards the seriousness of the intoxication , of the fact that the colouring had reached or gone beyond the mark on the tube .

Having regard to the unlawfulness ( GPE ) of refusing to submit to a breath test , which is the offence the applicant was charged with , the fact that the tube which was to be used to analyse his exhaled breath did not comply with the aforementioned decree is not , in administrative criminal law , of such importance as to require the impugned decision to be set aside .

Since it is apparent from the very content of the application that the contravention of the law alleged by the applicant has not occurred , the application falls to be dismissed at a private sitting without further formality under section CARDINAL(CARDINAL ) of LAW . "

The court refused to refer the case to ORG , holding that the latter had already ruled on the other CARDINAL points raised by the applicant .

ORG Under LAW DATE it is an offence for any person to drive a vehicle if the proportion of alcohol in his blood or breath is equal to or QUANTITY respectively . The same section also lays down the conditions for the use of breathalysers and blood tests .

ORG In its DATE version , section CARDINAL(CARDINAL ) of the Act provided :

" It shall be an administrative offence ( PERSON ) , punishable with a fine of not CARDINAL and not QUANTITY or , in default of payment , with DATE imprisonment , for any person

( b ) to refuse to submit to a breath test where the conditions laid down in section CARDINAL are satisfied ;

ORG In DATE , at the time when ORG ratified LAW ( see paragraph CARDINAL below ) , section CARDINAL of LAW ( ORG ) provided :

" Every driver shall be under a duty to pay reasonable heed to other road users and to display the care and diligence necessary to ensure the maintenance of order , safety and a proper flow of traffic . "

Article CARDINAL para . CARDINAL of LAW ( Bundes - Verfassungsgesetz ) provides :

" Hearings by trial courts in civil and criminal cases shall be oral and public . Exceptions may be prescribed by law . "

ORG By Article CARDINAL para . CARDINAL of LAW , ORG , when an application ( Beschwerde ) is made to it , has to determine whether an administrative decision ( Bescheid ) has infringed a right guaranteed by the LAW or has applied regulations ( Verordnung ) contrary to the law , a law contrary to LAW or an international treaty incompatible with NORP law .

Article CARDINAL para . CARDINAL provides :

" Up to the time of the hearing ORG may by means of a decision ( ORG ) decline to accept a case for adjudication if it does not have sufficient prospects of success or if it can not be expected that the judgment will clarify an issue of constitutional law . The court may not decline to accept for adjudication a case excluded from the jurisdiction of ORG by Article CARDINAL . "

ORG By LAW para . CARDINAL of LAW , ORG has jurisdiction to hear , inter alia , applications alleging that an administrative decision is unlawful .

Section CARDINAL(CARDINAL ) of LAW ( Verwaltungsgerichtshofsgesetz ) provides :

" Applications from whose content it is apparent that the contravention of the law alleged by the applicant has not occurred shall be dismissed , at a private sitting , without further formality . "

Section CARDINAL(CARDINAL ) provides , in particular , that at the end of the preliminary proceedings ( GPE ) ORG must hold a hearing where the applicant makes a request to that effect .

Section CARDINAL(CARDINAL ) reads as follows :

" Notwithstanding a party 's application under subsection ( CARDINAL ) , ORG may decide not to hold a hearing where

ORG the proceedings must be stayed ( section CARDINAL ) or the application dismissed ( section CARDINAL ) ;

ORG the impugned decision must be quashed as unlawful because the respondent authority lacked jurisdiction ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed as unlawful on account of a breach of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) ) ;

ORG the impugned decision must be quashed because its content is unlawful according to the established case - law of ORG ;

ORG neither the respondent authority nor any other party before the court has filed pleadings in reply and the impugned decision is to be quashed ;

ORG it is apparent to the court from the pleadings of the parties to the proceedings before it and from the files relating to the earlier administrative proceedings that a hearing is not likely to clarify the case further . "

ORG - paragraphs CARDINAL of section CARDINAL ) were in force in DATE ; sub - paragraphs CARDINAL and CARDINAL were inserted in DATE and sub - paragraph CARDINAL in DATE .

Section CARDINAL(CARDINAL ) of the Administrative Court Act provides :

" In so far as ORG does not find any unlawfulness deriving from the respondent authority 's lack of jurisdiction or from breaches of procedural rules ( section CARDINAL(CARDINAL)(CARDINAL ) and ( CARDINAL ) ) ... , it must examine the impugned decision on the basis of the facts found by the respondent authority and with reference to the complaints put forward ... If it considers that reasons which have not yet been notified to CARDINAL of the parties might be decisive for ruling on [ CARDINAL of these complaints ] ... , it must hear the parties on this point and adjourn the proceedings if necessary . "

Section CARDINAL(CARDINAL ) of the same LAW states that , save as otherwise provided , ORG must either dismiss an application as ill - founded or quash the impugned decision .

By section ORG ) ,

" The Administrative Court shall quash the impugned decision if it is unlawful

ORG by reason of its content , [ or ]

ORG because the respondent authority lacked jurisdiction , [ or ]

ORG on account of a breach of procedural rules , in that

( a ) the respondent authority has made findings of fact which are , in an important respect , contradicted by the case file , or

( b ) the facts require further investigation on an important point , or

( c ) procedural rules have been disregarded , compliance with which could have led to a different decision by the respondent authority . "

ORG If ORG quashes the impugned decision , " the administrative authorities [ are ] under a duty ... to take immediate steps , using the legal means available to them , to bring about in the specific case the legal situation which corresponds to ORG view of the law ( PERSON ) " ( section CARDINAL(CARDINAL ) ) .

ORG In a judgment of CARDINAL DATE ( G CARDINAL/CARDINAL ) ORG held :

" From the fact that it has been necessary to extend the reservation in respect of LAW to cover the procedural safeguards of LAW , because of the connection between those CARDINAL provisions ( article CARDINAL , article CARDINAL ) , it follows that , conversely , the limited review ( die ( bloß ) nachprüfende PERSON ) carried out by ORG or ORG is insufficient in respect of criminal penalties within the meaning of the Convention that are not covered by the reservation . "

ORG Pursuant to LAW , administrative courts called " independent administrative tribunals " ( ORG ) were set up in the Länder with effect from DATE . The functions of these tribunals include determining both the factual and the legal issues arising in cases concerning administrative offences ( ORG ) .

ORG The instrument of ratification of the Convention deposited by ORG on DATE contains , inter alia , a reservation worded as follows :

" The provisions of LAW shall be so applied that there shall be no interference with the measures for the deprivation of liberty prescribed in the laws on administrative procedure , BGBl [ ORG ] No . CARDINAL , subject to review by ORG or ORG as provided for in LAW . "


DE CRISTOFARO v. ITALY AND OTHER APPLICATIONS

András Sajó;Françoise Tulkens;Guido Raimondi;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

NORP The applicant , Mr PERSON , is an NORP national born in GPE on DATE .

On DATE the applicant instituted proceedings before ORG .

NORP The proceedings were concluded by a judgment dated DATE .

On DATE the applicant applied to ORG under PERSON no . CARDINAL of DATE , known as the “ Pinto Act ” , complaining about the excessive length of the above - mentioned proceedings .

ORG , by a decree filed in the relevant registry on DATE , awarded to the applicant the sum of CARDINAL ORG as compensation .

On an unspecified date in DATE , the applicant challenged the decree of ORG of GPE before ORG complaining about the insufficient amount of the compensation obtained .

The sum due was paid to the applicant on DATE . On DATE the applicant lodged an application with the ORG [ no . MONEY ] complaining about the delayed payment of the “ Pinto ” compensation .

ORG , by a decision filed in the relevant registry on CARDINAL DATE , dismissed the appeal and ordered the applicant to pay the legal fees , costs and expenses of the proceedings quantified at CARDINAL EUR .

On DATE the applicant lodged a further application with the ORG [ no . CARDINAL/CARDINAL ] in relation to the same “ Pinto ” proceedings , complaining about the insufficiency of the “ Pinto ” compensation awarded to him , the order of ORG to pay legal fees , costs and expenses of the proceedings and the ineffectiveness of the “ Pinto ” remedy .

The applicant , Mr PERSON , is an NORP national born in GPE ( GPE ) on DATE .

The proceedings ended on DATE .

NORP On DATE the applicant instituted “ Pinto ” proceedings before ORG of GPE , seeking compensation for the excessive length of the above - mentioned proceedings , which at the time were still pending .

ORG of GPE , by a decree filed in the relevant registry on DATE , awarded to the applicant the sum of CARDINAL,CARDINAL.CARDINAL EUR as compensation .

On an unspecified date in DATE the applicant challenged the decree before ORG , complaining about the insufficiency of the compensation obtained .

On DATE the applicant lodged an application with the ORG [ no . CARDINAL ] complaining , inter alia , about the insufficient amount of the “ Pinto ” compensation .

On DATE the applicant lodged a further application with the ORG [ no . CARDINAL/CARDINAL ] in relation to the same “ Pinto ” proceedings , complaining about the delayed payment of the “ Pinto ” compensation and the ineffectiveness of the “ Pinto ” remedy .

On DATE , the applicant filed an appeal against a decision of the ORG before ORG .

On DATE the applicant instituted “ Pinto ” proceedings before ORG , seeking compensation for the excessive length of the above - mentioned proceedings .

By a decree filed in the relevant registry on DATE , ORG of GPE awarded to the applicant the sum of CARDINAL ORG as compensation .

On an unspecified date in DATE , the applicant challenged the decree before ORG , complaining about the insufficiency of the compensation obtained .

On DATE the sum awarded by ORG was paid to the applicant .

On DATE the applicant lodged an application with the ORG [ no . PERSON ] complaining about the delayed payment of the compensation awarded by ORG .

By a decision filed in the relevant registry on DATE , ORG upheld the appeal of the applicant and increased the compensation to CARDINAL ORG .

On DATE the sum due was paid to the applicant .

On DATE the applicant lodged a further application with the ORG [ no . CARDINAL/CARDINAL ] in relation to the same “ Pinto ” proceedings , complaining about the delayed payment of the “ Pinto ” compensation awarded by ORG and the ineffectiveness of the “ Pinto ” remedy .

On DATE the applicant instituted administrative proceedings before ORG . The final judgment in the proceedings was delivered on DATE .

On an unspecified date in DATE the applicant instituted “ Pinto ” proceedings before ORG of GPE , seeking compensation for the excessive length of the above - mentioned proceedings .

On DATE the applicant filed an application ( no . CARDINAL/CARDINAL ) before the ORG complaining about the delayed payment of the compensation awarded by ORG of GPE .

On an unspecified date in DATE the applicant challenged the decree of ORG of GPE before ORG , complaining about the insufficiency of the compensation obtained .

By a decision filed in the relevant registry on DATE , ORG upheld the appeal and increased the compensation to CARDINAL ORG .

On DATE the applicant lodged a further application with ORG ( no . CARDINAL ) in relation to the same “ Pinto ” proceedings , complaining about the delayed payment of the “ Pinto ” compensation awarded by ORG and the ineffectiveness of the “ Pinto ” remedy .