Violation of Art. 6-1;Not necessary to examine Art. 13;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicants were born in DATE and DATE , respectively and live in GPE and GPE .

On DATE their house in GPE , GPE , was set ablaze by unknown perpetrators .

On DATE they instituted civil proceedings before ORG ( PERSON ) seeking damages from GPE for their damaged property .

Pursuant to ORG ( LAW ( ORG o izmjeni PERSON o obveznim odnosima ) , ORG stayed the proceedings on DATE .

The proceedings resumed on DATE pursuant to the “ Damage from ORG Demonstrations Act DATE ” ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija ) .

The relevant part of LAW ( Zakon o obveznim odnosima , ORG nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) read as follows :

“ Responsibility for loss caused by death or bodily injury or by damage or destruction of another ’s property , when it results from violent acts or terror or from public demonstrations or manifestations , lies with the ... authority whose officers were under a duty , according to the laws in force , to prevent such loss . ”

The Civil Obligations ( Amendments ) Act DATE ( Zakon o izmjeni PERSON o obveznim odnosima , ORG no . CARDINAL/CARDINAL , hereinafter “ the DATE LAW ) entered into force on DATE . The relevant parts of that Act read as follows :

“ Section CARDINAL of LAW ... shall be repealed . ”

“ Proceedings for damages instituted under LAW shall be stayed .

The proceedings referred to in sub - section CARDINAL of this section shall resume after the enactment of special legislation governing responsibility for damage resulting from terrorist acts . ”

The relevant part of LAW ( Zakon o parničnom postupku , ORG nos . CARDINAL , GPE , CARDINAL and CARDINAL ) provides :

“ Proceedings shall be stayed :

( CARDINAL ) where another statute so prescribes . ”

The “ Damage from Terrorist Acts and Public Demonstrations Act DATE ” ( Zakon o odgovornosti za štetu nastalu uslijed terorističkih akata i javnih demonstracija , ORG no . CARDINAL , hereinafter “ the DATE LAW ) entered into force on DATE . It provides that proceedings which were stayed pursuant to LAW will resume and defines circumstances in which GPE is liable for damage resulting from terrorist acts and public demonstrations .


The applicant , born in DATE , presently resides in GPE , GPE . In his application form , he states that he has NORP nationality .

a.

On DATE the applicant arrived in GPE . He requested asylum DATE . He had a NORP passport but stated that he considered himself to be a citizen of GPE and not of GPE . He claimed further that he had been a soldier in the NORP army from which he had deserted .

On DATE ORG ( ORG invandrarverk ) rejected the applicant ’s request and ordered his deportation to GPE . ORG found that the applicant held both NORP and NORP citizenship . Noting that the prevailing situation in GPE rendered a deportation to that country impossible , the ORG examined the applicant ’s situation with respect to GPE . ORG found that he did not risk to be sent from GPE to GPE or to be punished for desertion in GPE .

The applicant appealed to ORG ( Utlänningsnämnden ) . On DATE ORG granted the applicant a temporary residence permit until DATE and quashed the deportation order . In so doing , the ORG referred to a Government decision of CARDINAL DATE according to which the worsened situation in GPE constituted an impediment to the deportation of asylum seekers to that country .

On DATE the applicant submitted a new application for a residence permit . He referred to his previous statements and added that he is an ethnic NORP from GPE in GPE . Further , he had been informed by his parents in GPE that he had been sentenced to CARDINAL years’ imprisonment for desertion . He was convinced that , if returned to that country , he would have to serve the sentence and also risk harassment as the majority of the population in his home district were now NORP . The applicant referred also to the time he had spent in GPE .

On DATE ORG rejected the applicant ’s new application and ordered his deportation to GPE . ORG had regard to a guiding decision taken by ORG on DATE . In that decision the ORG stated , inter alia , the following :

( Translation )

“ As regards the situation in GPE and the region , the ongoing peace process , based on a general agreement on peace in GPE , has lead to stabilisation . The relations between GPE and GPE have improved . GPE has been admitted into ORG . Acts of warfare have not occurred on NORP territory since DATE . The risk of further conflicts appears unlikely . The general situation in GPE has improved in such a way since the Government ’s previous assessment in DATE that nowadays NORP citizens can generally be afforded protection in GPE . ”

As in its previous decision concerning the applicant , the ORG found that he could not be sent back to GPE . ORG considered , however , that the applicant ’s submissions did not show that he was unable to go to GPE .

Following the applicant ’s appeal , ORG , on DATE , quashed ORG decision and referred the case back for re - examination . ORG found that no oral hearing had been held by ORG , as required by law .

ORG later held an oral hearing at which the applicant stated that , being a NORP , he would be persecuted by NORP in GPE . He maintained further that he had obtained his NORP passport illegally and that he could not be considered as a citizen of that country . He had no relatives or friends in GPE and could not see any reasons why GPE should admit him . Allegedly , during his stay in GPE he had adjusted to NORP society .

In a decision of DATE ORG rejected the applicant ’s new application and ordered that he be deported to either GPE or GPE . ORG referred to ORG decision of CARDINAL DATE in which the following conclusions were drawn as regards the situation in GPE :

( Translation )

“ Recently , the situation in GPE has improved . After the parties signed a general agreement on peace in GPE there is an ongoing peace process in the country . It has been strengthened by the establishment of Government institutions and the general elections held in DATE . There are still actual restrictions on the movement of people within the territory of the ORG . The possibility to return to the home district without risking harassment and outrage is , in the present circumstances , dependent on the prevailing ethnic composition of the population in the district . In the ORG ’s view , it is now possible to return to the home district where one ’s own ethnic group is in the majority . This view corresponds to the position taken by the ORG in regard to the return of people to GPE . The relative stability enjoyed by “ the majority population ” in the respective regions leads to the conclusion that asylum seekers from such places in GPE can no longer be considered as generally being in need of protection . ”

ORG noted that , according to information from the ORG High Commissioner for Refugees ( ORG ) , the majority of the population in GPE were NORP . Consequently , the applicant ’s fear of persecution was considered to be exaggerated . ORG considered also that the amnesty laws enacted in GPE would be applicable to the applicant .

As regards the possible deportation of the applicant to GPE , ORG considered that the applicant ’s NORP passport was genuine and noted that the applicant had previously stated that this was the case . According to ORG , there was thus no reason to assume that GPE would not afford him protection . In this respect , the ORG again referred to information available from ORG and the ORG . This view had been confirmed also by ORG . Finally , the ORG found that there were no reasons of a humanitarian nature to grant the applicant a residence permit .

On DATE ORG upheld ORG decision .

On DATE the applicant submitted yet another application for a residence permit to ORG . He referred to his long stay in GPE and to the fact that he had already had a temporary residence permit . Furthermore , he claimed that , while serving in the NORP army , he had seen how his neighbour and a work - mate had been killed . His experiences during the war , a difficult childhood and his fears of persecution and punishment for desertion in GPE had impaired his mental health and rendered the deportation to that country impossible . He could not be deported to GPE either , as he had no connections to GPE and as the situation for NORP in GPE had worsened as of late . He invoked a medical certificate issued on DATE by chief physician E.A. and psychologist PERSON at the psychiatric clinic at the hospital in GPE , according to which the applicant suffered from insomnia , anxiety and flashbacks from the war .

By a decision of DATE ORG rejected the applicant ’s latest application .

In a further medical certificate issued at the above - mentioned psychiatric clinic on DATE physician ORG stated that the applicant , as from DATE , received treatment at the clinic for a post - traumatic stress syndrome . ORG found that there was a considerable risk that the applicant would attempt to commit suicide . The applicant states that he has since left the clinic but that he continues to visit his psychiatrist on a regular basis .

Relevant domestic law

Under LAW of LAW ( Lagen om psykiatrisk tvångsvård , DATE ) , such care shall be terminated at the request of the competent police authority whenever the person placed in care is ordered to be deported . This presupposes , however , that the chief physician finds that the alien ’s condition allows that the deportation takes place . According to LAW , no appeal lies against the chief physician ’s decision .


Violation of Art. 5-1;No violation of Art. 5-1;Violation of Art. 5-3;Remainder inadmissible;
Non-pecuniary damage - award;Pecuniary damage - claim dismissed

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

The applicant was born in DATE and lives in GPE .

On DATE the applicant , with a number of his friends , including PERSON , celebrated a New Year party at the bar ' PERSON ' in PERSON . At around TIME a quarrel with PERSON , another visitor to the bar . The quarrel turned into a big fight in which the applicant took part on the side of PERSON

On DATE the Slavyansk town police instituted criminal proceedings for disorderly conduct in relation to the above fight .

In TIME DATE the applicant and PERSON were attacked by unknown persons . As a result of the attack , the applicant was injured and PERSON died .

At TIME on DATE the police officers , in the knowledge that the applicant and PERSON were both attacked that night , visited the applicant 's home and took him to the local police station in order to question him as an eyewitness to PERSON 's death . According to the Government , the applicant agreed to go to the police station voluntarily and there was no coercion on the part of the police officers . However , according to the applicant , the police officers forced him to go to the police station without regard for the injuries he was visibly suffering from .

Upon arrival at the police station the applicant was questioned about the circumstances of PERSON 's death . That questioning , though with some pauses , lasted until TIME of the same day .

As from TIME on DATE the police , knowing that on TIME the applicant had been present at the bar ' PERSON ' , decided also to question the applicant as a witness in respect of the fight which had taken place at the bar that night . The applicant was questioned in respect of that incident till TIME

Between TIME the police also questioned PERSON and other victims of the fight , who , when confronted with the applicant , identified him as CARDINAL of the persons who had injured them .

At TIME on DATE the police investigator , pursuant to ORG CARDINAL and CARDINAL of the Code of Criminal Procedure ( see paragraph CARDINAL below ) , drew up an arrest order ( протокол затримання ) authorising the applicant 's preliminary detention as a suspect in the crime of disorderly conduct in the bar ' PERSON ' .

On DATE the police instituted criminal proceedings on account of PERSON 's death .

On DATE the applicant was charged with the crime of disorderly conduct in the bar ' PERSON ' , and brought before ORG ( the “ FAC ” ) . ORG , relying on LAW , extended the applicant 's preliminary detention , as a temporary preventive measure , up to DATE . It noted that the case file did not contain sufficient information characterising the applicant and , in particular , the evidence that the applicant might intend to abscond .

On DATE ORG ordered the applicant 's detention in custody as a preventive measure . It had regard to the “ character of the applicant ” , the circumstances in which the crime had been committed , the fact that he had been charged with a serious crime , and the necessity to ensure the execution of procedural decisions .

On DATE , after the investigation had been completed , the case file was transferred to ORG for committing the applicant for trial .

On DATE ORG committed the applicant for trial . It also upheld the preventive measure , in respect of the applicant , without giving any reasons .

On DATE ORG decided to maintain the preventive measure ( the detention in custody ) in respect of the applicant . It did not provide any specific reasons for that decision .

On DATE the applicant lodged an application with ORG alleging that , on DATE , he had been unlawfully taken to the police station and unlawfully held there until DATE , despite his bodily injuries and the absence of any medical assistance . He further contended that his subsequent pre - trial detention had been unlawful .

On DATE the Deputy President of ORG replied to the applicant and informed him that it was too late to challenge the lawfulness of his preliminary detention CARDINAL and DATE as the case was at the trial stage . He further stated that the application of CARDINAL DATE would be qualified as an ordinary request , submitted by a party to the proceedings , and that therefore it could only be considered in the course of the court hearing in his criminal case . He informed the applicant that the application would be considered on DATE .

Subsequently , the judge in charge of the applicant 's criminal case confirmed to the applicant that his application of DATE for review of the lawfulness of his detention would be considered on DATE in the course of the court hearing in his criminal case .

On DATE ORG , referring to the seriousness of the charges levelled against the applicant , found , in the presence of his counsel , that the applicant was being detained lawfully and that there had been no grounds to change the preventive measure . In this decision ORG did not address the issue of the applicant 's preliminary detention .

On DATE ORG considered the applicant 's request to change the preventive measure and rejected it , noting that the applicant 's further detention had been necessitated by the gravity of the charges levelled against him .

On an unspecified date the applicant complained to ORG seeking to institute criminal proceedings against the police officers for his unlawful preliminary detention .

On DATE the deputy prosecutor refused to institute criminal proceedings against the police officers . He found that on DATE the applicant had agreed to go to the police station voluntarily with the purpose of being interviewed concerning the death of PERSON The deputy prosecutor further noted that the applicant had later been questioned as a witness to the fight in the bar ' PERSON ' . In particular , at TIME the applicant had been transferred to the police officer NORP TIME the applicant had been questioned by that police officer following which “ the applicant 's guilt in the fight had been established ” . Later on , the applicant had been arrested because there had been enough evidence of his involvement in the latter crime . The deputy prosecutor therefore concluded that there had been no actus reus in the acts of the police officers . The applicant did not lodge a formal appeal against the prosecutor 's decision of DATE .

Subsequently , ORG informed the applicant that the lawfulness of his preliminary detention would be reviewed in the course of the trial in his criminal case .

On DATE ORG considered the applicant 's other request for changing the preventive measure and found that the applicant 's detention had been justified by the gravity of the charges levelled against him . It therefore held that the preventive measure should be left unchanged .

On DATE ORG found the applicant guilty of disorderly conduct and sentenced him to DATE imprisonment , but on the basis of the Amnesty Act released him from serving the sentence . It also noted that the applicant 's preliminary detention had been lawful and no wrongdoing on the part of the police officers could be discerned . ORG further ordered that the applicant be released from custody immediately .

By letters of DATE and CARDINAL August DATE ORG informed the applicant that the lawfulness of his preliminary detention had been reviewed in the judgment of DATE .

On DATE and DATE ORG and ORG upheld the judgment of DATE as substantiated .

The relevant part of LAW reads as follows :

“ ... In the event of an urgent necessity to prevent or stop a crime , bodies authorised by law may hold a person in custody as a temporary preventive measure , the reasonable grounds for which shall be verified by a court within TIME . The detained person shall be released immediately if he or she has not been provided , within TIME of the moment of detention , with a reasoned court decision in respect of the holding in custody . ...

Everyone who has been detained has the right to challenge his or her detention in court at any time . ... ”

The relevant provisions of the LAW read as follows :

“ A person , summoned as a witness by a body of inquiry , investigator , prosecutor , or a court , is obliged to appear at the specified time and place and make truthful statements about the circumstances of the event to the best of his or her knowledge .

If the witness fails to appear without a valid reason , the body of inquiry , the investigator , the prosecutor , or the court may order the witness 's compulsory appearance which shall be enforced by the bodies of internal affairs , pursuant to the procedure provided for by Articles CARDINAL and CARDINAL of this Code . ... ”

“ ... If it is necessary to verify a statement or notification of a crime before instituting criminal proceedings , such verification is made by the prosecutor , investigator , or a body of inquiry within DATE by taking explanations from specific citizens or officials or by requesting necessary documents .

A statement or notification of crime can be verified , prior to instituting criminal proceedings , by means of the search and seizure activities . ... ”

“ The body of inquiry shall be entitled to arrest a person suspected of a criminal offence for which a penalty in the form of deprivation of liberty may be imposed only on one of the following grounds :

if the person is discovered whilst or immediately after committing an offence ;

if eyewitnesses , including victims , directly identify this person as the one who committed the offence ;

if clear traces of the offence are found either on the body of the suspect , or on his clothing , or with him , or in his home .

If there is other information giving ground to suspect a person of a criminal offence , a body of inquiry may arrest such a person if the latter attempted to flee , or does not have a permanent place of residence , or the identity of that person has not been established .

For each case of a suspect 's arrest , the body of inquiry shall be required to draw up an arrest order ( протокол затримання ) outlining the grounds , the motives , DATE , time , DATE , the place of arrest , the explanations of the person detained and the time when it was recorded that the suspect had been informed of his right to have a meeting with defence counsel as from the moment of his arrest , in accordance with the procedure provided for in paragraph CARDINAL of Article CARDINAL of the present Code . The arrest order shall be signed by the person who drew it up and by the detainee .

A copy of the arrest order with a list of his rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for the arrest shall be sent to him as well . ...

Within TIME of the arrest , the body of inquiry shall :

( CARDINAL ) release the detainee if the suspicion that he committed the crime has not been confirmed , if the term of the preliminary detention established by law has expired or if the arrest has been effected in violation of the requirements of CARDINAL of the present Article ;

( CARDINAL ) release the detainee and select a non - custodial preventive measure ;

( CARDINAL ) bring the detainee before a judge with a request to impose a custodial preventive measure on him or her .

If the arrest is appealed against to a court , the detainee 's complaint shall be immediately sent by the head of the detention facility to the court . The judge shall consider the complaint together with the request by the investigating body for application of the preventive measure . If the complaint is received after the preventive measure was applied , the judge shall examine it within DATE after receiving it . If the request has not been received or if the complaint has been received after the term of TIME of detention , the complaint shall be considered by the judge within DATE after receiving it .

The complaint shall be considered in accordance with the requirements of Article CARDINAL - CARDINAL of this Code . Following its examination , the judge shall give a ruling , either declaring that the arrest is lawful or allowing the complaint and finding the arrest to be unlawful .

The ruling of the judge may be appealed against within DATE from the date of its adoption by the prosecutor , the person concerned , or his or her defence counsel or legal representative . Lodging such an appeal does not suspend the execution of the court 's ruling .

Preliminary detention of a suspect shall not last for CARDINAL .

If , within the terms established by law , the ruling of the judge on the application of a custodial preventive measure or on the release of the detainee has not arrived at the pre - trial detention facility , the head of the pre - trial detention facility shall release the person concerned , drawing up the order to that effect , and shall inform the official or body that carried out the arrest accordingly . ”

“ The pre - trial investigation shall be carried out exclusively after the criminal proceedings have been instituted and in accordance with the procedure provided for by LAW . ... ”

“ An investigator may arrest and question a person suspected of having committed a crime according to procedure envisaged by Articles CARDINAL , CARDINAL - CARDINAL , and CARDINAL of the Code . ”

“ ... The valid reasons for failure to appear before investigator at the requested time shall be the following : a belated receipt of the summons , illness , and other circumstances preventing the accused from attending the investigator at the requested time . ”

“ Compulsory appearance of the accused shall be ordered by the investigator 's decision . Compulsory appearance of the accused shall be enforced in the daytime except for emergencies .

Compulsory appearance without prior notice may be applied only if the accused evades investigation or does not have a permanent place of residence .

Before its enforcement , the decision on applying the compulsory appearance shall be announced to the accused . ”

“ Preventive measures shall be imposed on a suspect , accused , defendant , or convicted person in order to prevent him from attempting to abscond from an inquiry , investigation or the court , from obstructing the establishment of the truth in a criminal case or to pursue criminal activities , and in order to ensure the execution of procedural decisions .

Preventive measures shall be imposed where there are sufficient grounds to believe that the suspect , accused , defendant or convicted person will attempt to abscond from investigation and the court , or if he fails to comply with procedural decisions , or obstructs the establishment of the truth in the case or pursues criminal activities . ... ”

“ The preventive measures are as follows :

( CARDINAL ) a written undertaking not to abscond ;

( CARDINAL ) a personal guarantee ;

( CARDINAL ) the guarantee of a public organisation or labour collective ;

( DATE ) NORP bail ;

( CARDINAL ) NORP detention in custody ;

( CARDINAL ) NORP supervision by the command of a military unit .

As a temporary preventive measure , a suspect may be detained on the grounds and pursuant to the procedure provided for by Articles CARDINAL , CARDINAL and CARDINAL of this Code . ”

“ At the stage of the pre - trial investigation , a non - custodial preventive measure shall be selected by the body of inquiry , the investigator , or the prosecutor .

If there are grounds for applying a custodial preventive measure , the body of inquiry or the investigator , following the prosecutor 's consent , shall lodge an application with the court . The prosecutor is entitled to lodge a similar application . In determining this issue , the prosecutor shall familiarise himself with all the material in the case file that would justify placing the person in custody , and verify that the evidence was received in a lawful manner and is sufficient to bring charges against the person .

The request shall be considered within TIME of the arrest of the suspect or accused .

If the application concerns the detention of a person who is at liberty , the judge shall have the power to issue a warrant for the arrest of such a person and for escorting him to the court . The preliminary detention in such cases shall not exceed TIME ; and if the person concerned is outside the locality in which the court operates , it shall not exceed TIME from the time the arrested person was brought to the locality .

Upon receiving the application , the judge shall examine the material in the case file submitted by the body of inquiry , the investigator , or the prosecutor . A judge shall question the suspect or the accused and , if necessary , hear evidence from the person who is in charge of the criminal case , obtain the opinion of the prosecutor , the defence counsel , if the latter appeared before the court , and make an order :

( CARDINAL ) refusing to apply the [ custodial ] preventive measure if there are no grounds for doing so ;

( CARDINAL ) applying the custodial preventive measure .

Having refused to apply the custodial preventive measure , the court shall have the power to apply a non - custodial preventive measure in respect of the suspect or the accused .

The judge 's order may be appealed against to the court of appeal by the prosecutor , the suspect , the accused or his or her defence counsel or the legal representative , within DATE of its delivery . The introduction of an appeal shall not suspend the execution of the judge 's order .

If in order to select a preventive measure in respect of a detained person it is necessary to examine additional material concerning the personality of the detained person or to clarify the other circumstances that are important for the adoption of the decision on this matter , the judge may extend the applicant 's preliminary detention DATE or , if requested by the suspect or the accused , DATE . If it is necessary to examine additional material concerning the person who has not been arrested , the judge may adjourn the consideration of this issue for DATE and take measures for ensuring the proper conduct of that person or make an order that that person be arrested and detained for the same period . ”

“ The witness shall be summoned by the investigator with a notice , which shall be given to the witness against receipt . In case of the witness 's temporary absence the notice shall be given to any adult member of his family ... The witness may also be summoned by a telegram or by a telephone message . ... ”

Section CARDINAL of the PERSON establishes that the grounds for carrying out the search and seizure activities shall be , among other things , sufficient information , which has been lawfully obtained but needs to be verified by means of search and seizure activities , that a crime is being prepared or has been committed .

Section CARDINAL of the PERSON provides , inter alia , that in the event of the existence of the grounds to carry out search and seizure activities , the relevant authorities shall have a right to interview the persons upon their consent .

Section CARDINAL of the PERSON provides that for the purpose of fulfilling its tasks the police have a right , inter alia , to summon citizens in connection with the criminal and other cases that the police are dealing with ; to carry out inquiry in criminal cases in accordance with the legislation on criminal procedure .


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

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

On DATE the applicant was arrested on suspicion of being part of a criminal gang specialised in the smuggling of heroin through GPE to ORG . His arrest took place as a result of the seizure of a large quantity of heroin in PERSON .

Between the date of his arrest and DATE the applicant was remanded in custody . The detention warrants were issued on a DATE basis and the reasons given for prolonging his detention were the same throughout the entire period of detention : the applicant was accused of a serious criminal offence punishable with DATE imprisonment and he could abscond or hinder the investigation . All of the applicant 's habeas corpus requests were dismissed .

On DATE the applicant was acquitted of all the charges against him .

The relevant provisions of Law No . DATE “ on Compensation for Damage caused by ORG ” , read as follows :

Article CARDINAL

( CARDINAL ) In accordance with the present law , individuals and legal entities are entitled to compensation for non - pecuniary and pecuniary damage caused as a result of :

a ) illegal detention , illegal arrest , illegal indictment , illegal conviction ;

b ) illegal search carried out during the investigation phase or during the trial of the case , confiscation , levy of a distraint upon property , illegal dismissal from employment , as well as other procedural acts that limit the persons ' rights ;

c ) illegal administrative arrest or order to work for the community , illegal confiscation of the property , illegal fine ;

d ) the carrying out of operative investigative measures in breach of lawful procedure ;

e ) illegal seizure of accounting documents , other documents , money , or stamps as well as the blocking of bank accounts .

( CARDINAL ) The damage caused shall be fully compensated , irrespective of the degree of culpability of the agents of the criminal investigation organs , prosecution and courts .

Article CARDINAL

A person shall be entitled to compensation in accordance with the present law when one of the following conditions is met :

a ) the pronouncement of an acquittal judgment ;

b ) the dropping of charges or discontinuation of an investigation on the ground of rehabilitation ;

c ) the adoption of a decision by which an administrative arrest is cancelled on the grounds of rehabilitation ;

d ) the adoption by ORG or by ORG of a decision in respect of damages or in respect of a friendly settlement agreement between the victim and the representative of ORG before ORG . The friendly settlement agreement shall be approved by ORG ; ...


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 14+2 - Prohibition of discrimination (Article 2-1 - Life;Effective investigation;Article 2 - Right to life);Pecuniary and non-pecuniary damage - award

The case concerns the killing on DATE of PERSON and PERSON PERSON by a member of the military police who was attempting to arrest them .

All the applicants are NORP nationals who describe themselves as being of GPE origin .

PERSON , who was born in DATE , is Mr PERSON 's daughter . PERSON , who was born in DATE , is PERSON mother . Both live in GPE ( GPE ) . Ms PERSON and Mr PERSON , who were born in DATE and DATE respectively and live in PERSON ( GPE ) , are PERSON parents .

In DATE PERSON and PERSON , who were both DATE , were conscripts in ORG ( Строителни войски ) , a division of the army dealing with the construction of apartment blocks and other civilian projects .

Early in DATE PERSON and PERSON were arrested for repeated absences without leave . On DATE Mr PERSON was sentenced to DATE imprisonment and PERSON to DATE imprisonment . Both had previous convictions for theft .

On DATE they escaped from a construction site outside the prison where they had been brought for work and went to the home of Mr PERSON 's grandmother , PERSON , in the village of PERSON . Neither man was armed .

Their absence was reported DATE and their names put on the military police 's wanted list . A warrant for their arrest was received on DATE by ORG .

At TIME on DATE the officer on duty in ORG received an anonymous telephone message that PERSON and PERSON were hiding in the village of PERSON . On CARDINAL of the previous occasions when he had been absent without leave , it was there that Mr PERSON had been found and arrested .

The commanding officer , Colonel NORP , decided to dispatch CARDINAL military police officers , under the command of Major PERSON , to locate and arrest the CARDINAL men . CARDINAL of the officers knew CARDINAL or both of them . Major PERSON apparently knew PERSON since , according to a secretary who worked at the municipality and was heard later as a witness , his mother was from the village .

Colonel NORP told the officers that “ in accordance with the rules ” they should carry their handguns and automatic rifles and wear bullet - proof vests . He informed them that Mr PERSON and PERSON were “ criminally active ” ( криминално проявени ) DATE a euphemism used to denote persons with previous convictions or persons suspected of offence – and that they had escaped from detention . The officers were instructed that all means and methods dictated by the circumstances were to be used to arrest them .

NORP The officers immediately left for PERSON in a jeep . CARDINAL officers wore uniforms while the others were in civilian clothes . Only Major PERSON wore a bullet - proof vest . He was armed with a personal handgun and a QUANTITY . calibre PERSON automatic rifle . The other men carried handguns . CARDINAL PERSON automatic rifles remained in the boot of the vehicle throughout the operation .

The officers were briefed orally by Major PERSON on their way to PERSON . PERSON was to cover the east side of the house , Major PERSON the west side and PERSON was to go into the house . PERSON , the driver , was to remain with the vehicle and keep watch over the north side .

At TIME the officers arrived in PERSON . They asked a secretary at the town hall and one of the villagers , PERSON , to join them and show them PERSON grandmother 's house . The vehicle drove into PERSON 's GPE district .

Sergeant N. recognised the house since he had previously arrested PERSON there for being absent without leave .

As soon as the jeep drew up in front of the house at TIME , PERSON recognised PERSON , who was inside , behind the window . Having noticed the vehicle , the fugitives tried to escape . The police officers heard the sound of a window - pane being broken . Major PERSON and PERSON and ORG jumped out of the vehicle while it was still moving . Major PERSON and PERSON went through the garden gate , the former going to the west side of the house , and the latter entering the house . PERSON headed to the east side of the house . PERSON remained with the car , together with the secretary who worked at the town hall and PERSON

Sergeant N. later testified that , having noticed Mr PERSON and PERSON PERSON escaping through the window and running towards a neighbour 's yard , he had shouted : “ Stop , military police ! ” . He had pulled out his gun , but not fired any shots . The CARDINAL men had carried on running . PERSON had run out on to the street in an effort to intercept them by circumventing several houses . While running , he had heard Major PERSON shout : “ Freeze , military police , freeze [ or ] I 'll shoot ! ” . It was then that the shooting had started .

Major PERSON stated in his testimony :

“ ... I heard Sergeant N. shouting : ' Freeze , police' ... I saw the privates ; they were running and then stopped in front of the fence LOC and the neighbour 's yards ... I saw that they were trying to jump over the [ chain - link ] fence , so I shouted : ' Freeze , or I 'll shoot ' . I released the safety - catch and loaded the automatic gun . Then I fired a shot in the air , holding the automatic rifle upwards with my right hand , almost perpendicular to the ground ... The privates climbed over the [ chain - link ] fence and continued to run , I followed them , then I fired one , CARDINAL or CARDINAL more times in the air and shouted : ' Freeze ! ' , but they continued running . I again fired shots in the air with the automatic and shouted : ' Freeze , or I will shoot with live cartridges ” , I warned them again , but they continued running without turning back . I fired to the right [ of the QUANTITY men ] with the automatic after the warning , aiming at the ground , hoping that this would make them stop running . I again shouted “ Freeze ! ” when they were at the corner of the other house and then I aimed and fired at them as they were scaling the fence . I aimed at their feet . The ground where I stood was at a lower level ... [ B]y jumping over the second fence they would have escaped and I did not have any other means of stopping them . The gradient there was a bit steep , [ I ] was standing on lower ground ... the second fence was on the highest ground , that is why when I fired the first time I aimed to the side [ of the CARDINAL men ] , as I considered that nobody from the neighbouring houses would be hurt , and the second time I aimed at the privates , but fired at their feet . Under Regulation CARDINAL we can use firearms to arrest members of the military forces who have committed a publicly prosecuted offence and do not surrender after a warning , but in accordance with paragraph CARDINAL of [ that regulation ] we have to protect the lives of the persons against whom [ we use firearms ] – for that reason I fired at [ the victims ' ] feet – with the intention of avoiding fatal injury . The last time that I shot at the privates ' feet , I was QUANTITY away from them and they were exactly at the south - east corner of the neighbouring yard . After the shooting they both fell down ... They were both lying on their stomachs , and both gave signs of life , ... moaning ... then Sergeant S. appeared , I called him ... and handed him my automatic rifle ... ”

According to the statements of the CARDINAL subordinate officers , Mr PERSON and PERSON were lying on the ground in front of the fence , with their legs pointing to the direction of the house from which they had come . CARDINAL of them was lying on his back and the other on his stomach .

A neighbour , PERSON , who lived opposite PERSON grandmother , also gave evidence . At CARDINAL or TIME he had seen a military jeep pull up in front of PERSON house . Then he had heard somebody shout : “ Do n't run , I am using live cartridges ” . He had then heard shots . He had looked into the next yard and seen PERSON , whom he knew , and another man leap over the chain - link fence between PERSON and another neighbour 's yards . He had not seen the man who had been shouting as he was behind PERSON house . Then he had seen PERSON and PERSON fall to the ground and the man who had shot them emerge , holding an automatic rifle . Mr PERSON further stated :

“ The other men in uniform then started remonstrating with [ the man who had shot PERSON and PERSON ] telling him that he should not have fired , that he should not have come with them . Of those who came in the jeep , only the senior officer fired ... I know him by sight , he has relatives in PERSON ” .

Sergeant S. stated that upon arriving at the house he had remained with the vehicle and had heard Sergeant N. shouting from the east side of the house : “ Freeze , police ! ” . He had also heard Major PERSON shout several times : “ Freeze , police ! ” , from the west side of the house . Then Major PERSON had started shooting with his automatic weapon , while continuing to shout . PERSON had then entered the yard . He had seen Major PERSON leap over the chain - link fence and heard him shouting . He had gone up to him , had taken his automatic rifle and seen Mr PERSON and Mr PERSON lying on the ground next to the fence . They were still alive . At that moment PERSON had come out of the house . Major PERSON had gone to get the jeep and had reported the event over the vehicle radio . When they returned , PERSON had appeared from the neighbouring street and helped them put the wounded men in the vehicle .

The head of ORG and other officers were informed about the incident at TIME

Sergeant K. testified that he had entered the house and had been speaking to PERSON grandmother and another woman when he heard Major PERSON shouting at Mr PERSON and PERSON to halt . In the house , he had noticed that a window - pane in the room overlooking the yard had been broken . He had been on the verge of leaving the house when he heard shooting coming from behind the house . On his way to the yard he had met PERSON , who had told him that the fugitives had been wounded . Sergeant ORG had then climbed over the chain - link fence and approached the wounded men , who were still alive and moaning . He had found himself holding the automatic rifle , but could not remember how it had come into his possession . He had opened the magazine and seen no cartridges in it . There was CARDINAL cartridge left in the barrel .

NORP Immediately after the shooting , a number of people from the vicinity gathered . PERSON and PERSON took the wounded men to ORG , while Major PERSON and PERSON remained at the scene .

Mr Angelov and PERSON died on the way to Vratsa . They were pronounced dead on arrival at the hospital .

Mr PERSON 's grandmother , PERSON , gave the following version of the events : Her grandson and PERSON had been in her house when they had noticed a jeep approaching . She had gone outside and seen CARDINAL men in uniform . They had all entered the yard , CARDINAL of them had gone round the house and started shooting with an automatic rifle for a very long time . The other CARDINAL men were also armed but had not fired any shots . She had been in the yard , pleading with the man who had been shooting to stop . However , he had walked towards the back of the house . Then she had heard shooting in the backyard . She had followed and then seen her grandson and PERSON lying in the neighbours ' yard with bullet wounds .

According to another neighbour , Mr GPE , all CARDINAL policemen were shooting . CARDINAL of them had fired shots in the air and the third officer – who had been on the west side of the house ( Major PERSON ) DATE had been aiming at someone . Mr PERSON had heard CARDINAL shots , perhaps more . Then he had seen the military policemen go to the neighbouring yard , where PERSON and PERSON had fallen . That yard belonged to PERSON and his daughter . On seeing his grandson – a young boy – standing there , PERSON PERSON had asked Major PERSON for permission to approach and collect him . Major PERSON had pointed his gun at him in a brutal manner and had insulted him , saying : “ You damn NORP ! ” .

On DATE all the officers involved made separate reports in connection with the deaths to ORG . None of them was tested for alcohol .

A criminal investigation into the deaths was opened DATE and TIME and TIME a military investigator inspected the scene . In his report he described the scene , including the respective positions of PERSON house , the first chain - link fence , and the spent cartridges and bloodstains found there . He indicated that the structure of the first chain - link fence was damaged and the fence had been torn down in CARDINAL place .

A sketch map was appended to the report . It showed the yard of Ms PERSON 's house and the neighbouring yard where PERSON and PERSON PERSON had fallen . The places where spent cartridges had been found were indicated . The sketch - map and the report gave only some of the measurements of the yards . The gradient and other characteristics of the terrain and the surrounding area were not described .

Nine spent cartridge were retrieved . CARDINAL cartridge was found in the street , in front of PERSON house ( apparently not far from where the jeep had stopped ) . CARDINAL cartridges were discovered in PERSON yard , behind the house , close to the first chain - link fence separating her yard from the neighbour 's yard . CARDINAL cartridges were found in the neighbour 's ( Mr MONEY 's ) yard , close to the place where the bloodstains were found . Although the exact distance between those cartridges and the bloodstains was not given , it appears from the other measurements on the sketch map to be QUANTITY . A ninth cartridge was found subsequently and handed in to the military police by PERSON uncle . There is no record of where it was found .

The bloodstains were a metre apart . They were marked on the sketch map as being slightly QUANTITY from the first chain - link fence . The distance between the bloodstains and the second fence that Mr Angelov and PERSON were apparently trying to scale when they were shot was not indicated . Samples of the bloodstains were taken by the investigator .

On DATE , a pathologist carried out an autopsy .

According to the autopsy report no . CARDINAL/CARDINAL , the cause of PERSON death was “ a wound to the chest ” , the direction of the shot having been “ from front to back ” . The wound was described as follows :

“ There is an oval - shaped wound of QUANTITY by QUANTITY in the chest , at a distance of QUANTITY from the feet , with missing tissues , and jagged and compressed edges in the area of the left shoulder . There is an oval - shaped wound of QUANTITY in the back , to the left of the infrascapular line at a distance of QUANTITY from the feet with missing tissues , jagged and torn edges turned outwards . ”

As regards PERSON , the report found that the cause of death had been “ a gunshot wound , which [ had ] damaged a major blood vessel ” and that the direction of the shot had been “ from back to front ” . It was further stated :

“ There is a round wound on the left of the buttocks at a distance of QUANTITY from the feet ... with missing tissue , jagged walls and edges , and a diameter of QUANTITY ... There is an oval wound of QUANTITY with jagged torn edges and walls turned outwards and missing tissues on the border between the lower and middle third [ of the abdomen ] , at a distance of QUANTITY from the feet , slightly to the left of the navel . ”

The report concluded that the injuries had been caused by an automatic rifle fired from a distance .

NORP On DATE , DATE and DATE the CARDINAL military police officers , CARDINAL neighbours ( FAC and PERSON ) , the secretary who worked at the town hall , and PERSON uncle were questioned by the investigator . PERSON mother was also questioned subsequently .

On DATE Major PERSON 's automatic rifle , a cartridge found in it and the CARDINAL spent cartridges found on the scene were examined by a ballistics expert from ORG . According to his report the automatic rifle was serviceable , all CARDINAL retrieved cartridges had been fired from it and the last cartridge which had not been fired was also serviceable .

A report by a forensic expert dated DATE found an alcohol content of CARDINAL per thousand in Mr PERSON 's blood and CARDINAL per thousand in Mr PERSON 's blood ( under NORP law driving with alcohol content of CARDINAL per thousand is an administrative offence ) .

On DATE a forensic examination of the bloodstains found on the scene was carried out by an expert from ORG and they were found to match the victims ' blood groups .

On DATE and on DATE another neighbour ( Mr PERSON ) and PERSON ( CARDINAL of the applicants ) were questioned . On DATE Mr PERSON 's grandmother and a neighbour , PERSON , were questioned .

On DATE the families of PERSON and PERSON were given access to the investigation file . They requested that CARDINAL more witnesses , PERSON , PERSON and PERSON be heard . Their request was granted . The witnesses were heard by the investigator on DATE and DATE . The applicants did not ask for any other evidence to be obtained .

On DATE the investigator completed the preliminary investigation and drew up a final report . He noted that PERSON and PERSON PERSON had escaped from detention while serving a prison sentence , and had thus committed an offence . Major PERSON had done everything within his power to save their lives : he had instructed them to stop and surrender and had fired warning shots . He had aimed at them only after seeing that they were continuing to run away and might escape . He had not sought to injure any vital organs . The investigator , therefore , concluded that Major PERSON had acted in accordance with LAW of ORG and made a recommendation to ORG that the investigation should be closed as Major PERSON had not committed an offence .

On DATE ORG accepted the investigator 's recommendation and terminated the preliminary investigation into the deaths . He concluded that Major PERSON had proceeded in accordance with LAW of ORG . He had warned the CARDINAL men several times and fired shots in the air . He had shot them only because they had not surrendered , as there had been a danger that they might escape . He had sought to avoid inflicting fatal injuries . No one else had been hurt .

When describing the victims ' personal circumstances , including such matters as their family , education and previous convictions , in the decree , the prosecutor mentioned that they both originated from “ minority families ” , a euphemism mostly used to designate people from the GPE minority .

By an order of DATE the prosecutor of ORG dismissed the applicants ' subsequent appeal on the ground that Mr PERSON and PERSON had provoked the shooting by trying to escape and that Major PERSON had taken the steps required by law in such situations . Therefore , the use of arms had been lawful under LAW of ORG .

On DATE the prosecutor from ORG in ORG dismissed a further appeal on grounds similar to those relied on by the other public prosecutors .

The Report on ORG and Its Member States in DATE , prepared by the ORG network of independent experts in fundamental rights at the request of ORG , stated , inter alia , that police abuse against GPE and similar groups , including physical abuse and excessive use of force , has been reported in a number of GPE member GPE , such as GPE , GPE , GPE , GPE , GPE and GPE .

ORG against Racism and Intolerance at ORG , in its country reports in DATE , has expressed concern about racially motivated police violence , particularly against GPE , in a number of NORP countries including GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE .

In its report of DATE on GPE , ORG against Racism and Intolerance ( ECRI ) stated , inter alia :

“ Of particular concern is the incidence of police discrimination and mistreatment of members of the Roma / Gypsy community . ORG ( ORG ) noted in DATE that ' criminal suspects deprived of their liberty by the police in GPE run a significant risk of being ill - treated at the time of their apprehension and/or while in police custody , and ... on occasion resort may be had to severe ill - treatment / torture ' ... [ T]he ORG documents in its DATE Report for DATE numerous other cases of police misconduct towards members of the ORG community . It cites as the most common violations : use of excessive physical force during detention for the purposes of extorting evidence ; unjustified use of firearms ; home searches conducted without search warrants ; destruction of private property ; and threats to the personal security of individuals who had complained against the police to the competent authorities ...

ORG reports that [ criminal proceedings against perpetrators of violent acts ] have been used in DATE to protect GPE rights , but that convictions are isolated compared to the scale of the problem . ORG notes in its DATE Report for DATE that the majority of complaints filed by this non - governmental organisation on behalf of GPE victims of police violence have not been followed up by the authorities .

In the present situation , victims seem unwilling to come forward with complaints , particularly when they are awaiting court sentences : there may be a perception that bringing complaints may actually worsen the situation of the victim before the courts . A lack of confidence on the part of victims in the possibility of redress may be compounded by some unwillingness on the part of the authorities to admit that problems of police misconduct do exist . A first step would therefore seem to be the need to acknowledge on a public level that problems exist in this area , and for police and political leaders to express their strong commitment to ensuring that any allegations of misbehaviour or criminal acts on the part of the police are promptly and stringently investigated and dealt with .

ECRI in its first report recommends that an independent body be set up DATE acting at central and local level DATE to investigate police , investigative and penitentiary practices for overt and covert racial discrimination and to ensure that any discrimination perpetrated be severely punished . ORG would wish to reiterate this proposal . A specialised body to combat racism and discrimination , as advocated above , could also play an important role in this respect ...

It is reported that ORG in NORP prisons are also subject to physical abuse by prison guards and other officials : to date ; no prosecution of abuses by prison officials has been initiated ...

ORG is concerned at the persistence of widespread discrimination against members of the ORG community in GPE ... It is reported that local authorities are sometimes involved in the illegal administration of justice as regards ORG communities , often with the silent collusion of local police . ECRI stresses that such forms of discrimination practised by local authorities should not be tolerated by the national authorities . In this respect , it is particularly important to ensure that national policies and legislation against discrimination are understood and applied at a local level . Training for officials working within local administrations , to raise awareness and combat prejudices , would also be most desirable .

ORG welcomes signs that the NORP government is willing to address such issues of discrimination . This attitude has been demonstrated by the adoption in DATE of ORG . This programme was prepared on the initiative of ORG organisations and in discussion with representatives of all the NORP associations in GPE ... This document contains strategies for achieving equality for GPE in GPE , and poses as the main issue the discriminatory treatment of GPE . ”

The applicants in their submissions referred also to the findings of specialised bodies of ORG ( see paragraph CARDINAL below ) .

ORG - governmental organisations , such as ORG and ORG have reported in DATE numerous incidents of alleged racial violence against GPE in GPE , including by law enforcement agents .

Section CARDINAL of LAW ) , as in force at the relevant time , provided as follows :

“ ( CARDINAL ) Military police officers may use firearms ... under the following circumstances : ...

NORP to arrest a person serving in the army who has committed or is about to commit a publicly prosecuted offence and who does not surrender after being warned ...

( CARDINAL ) The use of force shall be preceded by an oral warning and a shot fired in the air ...

( CARDINAL ) When using firearms military police officers shall be under a duty , as far as possible , to protect the life of the person against whom they use force and to assist the wounded ...

( CARDINAL ) Whenever firearms have been used , a report shall be prepared describing the circumstances which provoked their use ; [ the report ] shall be transmitted to the superiors of the officer concerned . ”

In DATE Regulation CARDINAL was superseded by Decree No . CARDINAL of DATE on the use of force and firearms by military police ( published in ORG . CARDINAL , amended in DATE ) . According to section CARDINAL of the Decree , firearms may be used , inter alia , for the arrest of any person who has committed an offence of the category of publicly prosecuted offences . The vast majority of offences under LAW fall within that category , except offences prosecuted privately , such as light bodily injury and certain types of criminal libel . Nevertheless , according to sections DATE ) and CARDINAL of the Decree , the nature of the offence committed by the person against whom the force and firearms are used and the character of the offender are factors to be taken into consideration . Also , force and firearms may only be used in the last resort , where the aims pursued can not be achieved by any other means .

Article CARDINAL of the Criminal Code regulates the degree of force that may be used in self - defence . It requires essentially that any action in self - defence or defence of another be proportionate to the nature and intensity of the attack and reasonable in the circumstances . The provision does not regulate , however , cases where force has been used by a police officer or another person in order to effect an arrest , without there being an attack on the arresting officer or any third party . Until DATE no other provision regulated that matter . It appears , nevertheless , that on some occasions the courts applied LAW by analogy .

To fill that lacuna , in its interpretative direction no . CARDINAL issued in DATE , ORG proclaimed , without further clarification , that causing harm in order to effect an arrest should not lead to prosecution if no more force was used than was necessary ( DATE ) .

NORP In its decision no . CARDINAL of DATE , ORG , while noting that the use of force in order to effect an arrest was not regulated by law and thus engendered difficulties for the courts , considered that the principles to be applied were those that had been identified by legal commentators . In particular , inflicting harm would be justified only where there was a reasonable suspicion that the person to be arrested had committed an offence , if there were no other means to effect the arrest and if the harm caused was proportionate to the seriousness of the offence . ORG also stated :

“ ... [ Causing harm to an offender in order to effect an arrest ] is an act of last resort . If the offender does not attempt to escape or ... does attempt to escape , but to a known hiding - place , causing harm will not be justified ...

The harm caused must be proportionate to the seriousness ... of the offence . If the offender has committed an offence representing insignificant danger to the public , his life and health can not be put at risk . Putting his life or health at risk could be justified , however , where a person is in hiding after committing a serious offence ( such as murder , rape or robbery ) .

The means used to effect the arrest ( and the harm caused ) must be reasonable in the circumstances . This is the most important condition for lawfulness ...

Where the harm caused exceeds what was necessary ... , that is to say , where it does not correspond to the seriousness of the offence and the circumstances obtaining during the arrest , ... the person inflicting it will be liable to prosecution ... ”

In DATE ORG decided to fill the legislative lacuna by adding a new LAW to LAW . It provides that causing harm to a person while arresting him or her for an offence shall not be punishable where no other means of effecting the arrest existed and the force used was necessary and lawful . The force used will not be considered “ necessary ” where it is manifestly disproportionate to the nature of the offence committed by the person to be arrested or is in itself excessive and unnecessary . Few judgments interpreting LAW have been reported .

Article CARDINAL provides that proceedings concerning publicly prosecuted crimes may only be initiated by a prosecutor or an investigator , acting on a complaint or ex officio . Under Article CARDINAL § CARDINAL , as worded until DATE , the victim had a right of appeal to a higher ranking prosecutor against a decision not to proceed with pending criminal proceedings . The victim had no other means of challenging a refusal to prosecute .

When military courts have jurisdiction to hear a case , as for example when it concerns military - police officers , the responsibility for conducting the investigation and prosecuting lies with the military investigators and prosecutors , whose decisions are amenable to appeal before ORG .

Article CARDINAL entitles victims of crime to join the criminal proceedings , and in that connection to claim damages , to inspect the case file and take copies of relevant documents , to adduce evidence , to raise objections , to make applications and to appeal against the decisions of the investigating and prosecuting authorities .

The Protection against Discrimination Act was passed in DATE and entered into force on DATE . It is a comprehensive piece of legislation designed to create machinery providing effective protection against unlawful discrimination . It applies mainly in the spheres of labour relations , ORG administration and the provision of services .

Section CARDINAL provides for a shifting burden of proof in discrimination cases . Under that section , where the claimant has proved facts from which an inference that there has been a discriminatory treatment might be drawn , it is incumbent on the defendant to prove that there has been no violation of the right to equal treatment . The LAW also provides for the creation of ORG with jurisdiction , inter alia , to hear individual complaints .

The United Nations Basic Principles on ORG ( “ ORG Firearms Principles ” ) were adopted on DATE by ORG on ORG and the Treatment of Offenders .

DATE . Paragraph CARDINAL provides :

“ Law enforcement officials shall not use firearms against persons except in self - defence or defence of others against the imminent threat of death or serious injury , to prevent the perpetration of a particularly serious crime involving grave threat to life , to arrest a person presenting such a danger and resisting their authority , or to prevent his or her escape , and only when less extreme means are insufficient to achieve these objectives . In any event , intentional lethal use of firearms may only be made when strictly unavoidable in order to protect life . ”

According to other provisions of the Principles , law enforcement officials shall “ act in proportion to the seriousness of the offence and the legitimate objective to be achieved ” ( paragraph CARDINAL ) . Also , “ Governments shall ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law ” ( paragraph CARDINAL ) . National rules and regulations on the use of firearms should “ ensure that firearms are used only in appropriate circumstances and in a manner likely to decrease the risk of unnecessary harm ” .

Paragraph CARDINAL of the Principles states that victims or their family should have access to an independent process , “ including a judicial process . ” Further , paragraph CARDINAL provides :

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

ORG on ORG , Arbitrary and Summary Executions , adopted on DATE by ORG CARDINAL/CARDINAL , provide , inter alia , that there shall be a thorough , prompt and impartial investigation of all suspected cases of extra - legal , arbitrary and summary executions and that the investigation should aim at , inter alia , determining “ any pattern or practice which may have brought about ” the death . LAW states :

“ In cases in which the established investigative procedures are inadequate because of a lack of expertise or impartiality , because of the importance of the matter or because of the apparent existence of a pattern of abuse , and in cases where there are complaints from the family of the victim about these inadequacies or other substantial reasons , Governments shall pursue investigations through an independent commission of inquiry or similar procedure . Members of such a commission shall be chosen for their recognised impartiality , competence and independence as individuals . In particular , they shall be independent of any institution , agency or person that may be the subject of the inquiry . The commission shall have the authority to obtain all information necessary to the inquiry and shall conduct the inquiry as provided in these Principles . ”

Paragraph CARDINAL states :

“ A written report shall be made within a reasonable time on the methods and findings of such investigations . The report shall be made public immediately and shall include the scope of the inquiry , procedures , methods used to evaluate evidence as well as conclusions and recommendations based on findings of fact and on applicable law ... ”

In its decision of DATE , ORG , examining Complaint No . CARDINAL/CARDINAL submitted by PERSON and others against GPE , found that a mob action by non - GPE residents of GPE , GPE , who destroyed a GPE settlement on DATE in the presence of police officers , was “ committed with a significant level of racial motivation ” . That fact aggravated the violation of LAW and Other Cruel , Inhuman or Degrading Treatment or Punishment found in the case .

In assessing the evidence , the ORG noted that it had not received a written explanation from ORG concerned and decided to rely on “ the detailed submissions made by the complainants ” .

Council Directive CARDINAL of DATE implementing the principle of equal treatment between persons irrespective of racial or ethnic origin and ORG Directive CARDINAL/CARDINAL/CE of DATE establishing a general framework for equal treatment in employment and occupation , provide , in LAW respectively :

“ CARDINAL . Member GPE shall take such measures as are necessary , in accordance with their national judicial systems , to ensure that , when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish , before a court or other competent authority , facts from which it may be presumed that there has been direct or indirect discrimination , it shall be for the respondent to prove that there has been no breach of the principle of equal treatment .

Paragraph CARDINAL shall not prevent Member GPE from introducing rules of evidence which are more favourable to plaintiffs .

Paragraph CARDINAL shall not apply to criminal procedures .

Member GPE need not apply paragraph CARDINAL to proceedings in which it is for the court or competent body to investigate the facts of the case . ”

The preambles to the directives state , inter alia , that national rules for the appreciation of the facts may provide for indirect discrimination to be established by any means including on the basis of statistical evidence .

DATE . This provision , which was introduced in DATE , provides :

“ The penalties incurred for a crime or major offence shall be increased where the offence is committed on account of the victim 's actual or supposed membership or non - membership of a particular ethnic group , nation , race or religion .

The aggravating circumstance defined in the first paragraph is constituted where the offence is preceded , accompanied or followed by written or spoken comments , images , objects or acts of any kind which damage the honour or consideration of the victim or of a group of persons to which the victim belongs on account of their actual or supposed membership or non - membership of a particular ethnic group , nation , race or religion . ”


The applicants , PERSON and PERSON and PERSON , are GPE nationals , who were born in DATE , DATE and DATE , respectively . They are currently detained in GPE , GPE and ORG , respectively . They are represented before ORG by PERSON , a lawyer practising in GPE .

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

The applicants were arrested and interviewed by police , along with CARDINAL other persons , in connection with the robbery , false imprisonment and murder of a woman in DATE . It was alleged that the victim , an DATE schizophrenic girl , had been held at the flat where CARDINAL of the applicants lived and had been subjected to numerous acts of violence . According to the evidence later adduced at trial , the victim was , inter alia , punched and kicked , beaten with a snooker cue and an iron , urinated upon , forced to drink disinfectant and locked in a kitchen cupboard . Once the victim died , she had been placed in a shallow grave where she was found on DATE .

During the police interviews , PERSON and PERSON , on the advice of their solicitor , made no comment to questions put to them . In his first interview , PERSON admitted to disposing of the body and described the deceased ’s appearance after she had been struck with an iron by another co - accused . He stated that the deceased had been put in a cupboard and described seeing the deceased with a plastic bag over her head and the same co - accused with her hands round the deceased ’s neck . At his second interview , PERSON made no comment when the allegations of other witnesses were put to him . All CARDINAL applicants were subsequently charged with murder and false imprisonment and PERSON was also charged with robbery . The CARDINAL other persons arrested were also charged with murder , false imprisonment and CARDINAL was charged with robbery .

The trial of all CARDINAL co - accused was held from DATE to CARDINAL DATE . The evidence against the applicants consisted of forensic evidence and the statements of a number of witnesses who called at the flat while the deceased was there . The witnesses described injuries being inflicted upon the deceased by each of the applicants . There was also evidence from witnesses to admissions made by PERSON and PERSON while they were in custody , in which they independently gave detailed descriptions of what had happened to the deceased while in the flat . CARDINAL witness stated that PERSON and PERSON had told her that they were going to try to blame it all on CARDINAL co - accused and that it was PERSON who had placed the bag over the deceased ’s head and burnt her with a cigarette .

At trial , each of the applicants gave evidence and offered an account of events , admitting their presence at the flat but stating that it had been the acts of another co - accused which had killed the deceased without their encouragement or participation .

The defence urged that it would not be appropriate to draw any inference from the applicants’ failure to mention during the police interviews facts later relied on in the trial as provided for by LAW DATE . The trial judge , in the exercise of her discretion , agreed that she would direct the jury that they should not draw any adverse inference from the applicants’ silence . Leading counsel for CARDINAL of the applicants told the jury that they would be directed to that effect by the trial judge . However , in her summing - up , the trial judge did not specifically direct the jury that they could not draw adverse inferences from the applicants’ silence at interview .

On DATE , all CARDINAL applicants were convicted of murder and false imprisonment . PERSON was also convicted of robbery . The applicants appealed against conviction and a single judge of ORG granted leave to appeal on certain of the grounds of appeal relied upon . The full ORG granted leave to appeal including on the ground that the failure of the trial judge to specifically direct the jury that no adverse inference should be drawn from their silence during the police interviews rendered their trial unfair within the meaning of LAW and the ORG ’s judgment in the case of ORG v. GPE ( no . CARDINAL , ECHR CARDINAL-V ) .

On DATE , ORG dismissed the ORG appeals against conviction on the ground , inter alia , that any omission or error in the trial judge ’s direction to the jury did not render their convictions unsafe or the trial unfair within the meaning of LAW and the ORG case . The ORG emphasised that everyone involved in the trial accepted that no adverse inference should be drawn and that nothing was said by either the trial judge or counsel which was inconsistent with this . Further , the trial wholly depended on which witnesses the jury believed and they clearly did not believe the accounts given by the applicants .

The applicants subsequently applied to ORG to certify that the case raised a point of law of general public importance and , having done so , to grant leave to appeal to ORG . ORG refused the application on DATE .

Section CARDINAL of ORG LAW DATE ( “ the DATE LAW ) provides that :

“ ( CARDINAL ) Where , in any proceedings against a person for an offence , evidence is given that the accused–

( a ) at any time before he was charged with the offence , on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed , failed to mention any fact relied on in his defence in those proceedings ; or

( b ) on being charged with the offence or officially informed that he might be prosecuted for it , failed to mention any such fact ,

being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned , charged or informed , as the case may be , subsection ( CARDINAL ) below applies .

( CARDINAL ) Where this subsection applies–

( c ) the court , in determining whether there is a case to answer ; and

( d ) the court or jury , in determining whether the accused is guilty of the offence charged ,

may draw such inferences from the failure as appear proper .

( CARDINAL ) Subject to any directions by the court , evidence tending to establish the failure may be given before or after evidence tending to establish the fact which the accused is alleged to have failed to mention .

Section CARDINAL ) of the DATE Act adds that :

“ ( CARDINAL ) A person shall not ... be convicted of an offence solely on an inference drawn from such a failure or refusal as is mentioned in section GPE ) ... ”

ORG has adopted several specimen directions regarding the drawing of adverse inferences from silence according to section CARDINAL of the CARDINAL Act . These specimen directions offer guidance to trial judges as to the directions they should give to the jury . The specimen directions are revised from time to time in accordance with developments in statute and case - law .

Prior to DATE specimen directions existed for the situation in which a trial judge decided that it was open to the jury to draw an adverse inference . Following the case of NORP v. PERSON ( DATE ) CARDINAL Criminal Appeal Reports CARDINAL ) , specimen direction no . CARDINAL , adopted in DATE , provided that , if a trial judge decided as a matter of law that it was not open to the jury to draw an adverse inference , a specific direction ( contained in specimen direction no . CARDINAL ) should be given to that effect .


CASE OF TOCONO AND PROFESORII PROMETEISTI v. MOLDOVA

Remainder inadmissible;Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Impartial tribunal;Independent tribunal);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

In DATE , immediately after the collapse of GPE , ORG , ORG and ORG took the initiative to create the first private high school in GPE ( “ the school ” ) . In view of the lack of legislation regulating private education , ORG no . CARDINAL of CARDINAL DATE , in which they confirmed that ORG was the school 's sole founder and that the school was to be financed from the local budget , donations , fees and money invested by ORG .

In DATE the school , called ORG , was opened .

On DATE the Government issued Decision no . CARDINAL amending the previous decision and naming as co - founders of the school CARDINAL other legal entities which had invested in it .

DATE the school existed without State registration , owing to the lack of any legislation governing that area .

In DATE , after the enactment of legislation concerning private education , the school was required to obtain State registration .

On DATE , following a request by the school 's head teacher , ORG no . CARDINAL , repealing Decision no . CARDINAL . On DATE it was published in ORG and entered into force .

On DATE , ORG and a group of teachers from the school , who had joined forces to create a foundation called “ FAC ” , registered new articles of association for the school in accordance with the new legislation . The new articles stated that there were CARDINAL founders - Tocono and Profesorii Prometeişti- and that the school would thenceforth be called S.R.L. Prometeu . DATE the newly created entity was issued with a ORG registration certificate .

On DATE , following a request by the school 's former co - founders , ORG no . CARDINAL repealing Decision no . CARDINAL .

On DATE CARDINAL of the former co - founders mentioned in Decision no . CARDINAL brought an action against ORG and against ORG , seeking to have the registration of the new entity ORG declared null and void on the ground that they should also have been included as co - founders of the school in accordance with decision No . CARDINAL .

On DATE ORG dismissed the action . It found , inter alia , that at the date of registration of the new school ( DATE ) , Decision no . CARDINAL had no longer been in force .

The plaintiffs lodged an appeal with ORG .

On DATE a panel of ORG , composed of judges PERSON , GPE and GPE , upheld the appeal , quashed the judgment of ORG and ruled in favour of the former co - founders . It observed , inter alia , that the request for registration of ORG had been lodged with ORG on DATE , when Decision no . CARDINAL of DATE had still been in force . It also decided to exclude ORG from the list of founders of the school .

The applicants did not learn of the composition of the panel until DATE of the hearing . They alleged not to have known at the time of the hearing that , DATE , Judge PERSON 's son had been expelled from the school for misbehaviour , truancy and bad grades , an expulsion carried out by the head teacher of the school and by teachers who formed part of ORG . As a result of the incident the judge had allegedly threatened the school authorities with retaliation .

The relevant parts of LAW as in force at the material time read as follows :

LAW for challenging a judge

A judge shall not be admitted to sit in a case or may be challenged in the following cases :

( CARDINAL ) if he or she participated in an earlier stage of the proceedings as a witness , expert , interpreter , representative , prosecutor or registrar ;

( CARDINAL ) if he or she is personally interested , directly or indirectly , in the outcome of the proceedings or if there are other reasons to doubt his or her impartiality ;

( CARDINAL ) if he or she , his or her spouse or his or her ascendants or descendants have any interest in the outcome of the proceedings ... ;

( CARDINAL ) if his spouse ... is a relative of CARDINAL of the parties to the proceedings ... ;

( CARDINAL ) if he or she is a guardian ... of CARDINAL of the parties to the proceedings .

Article CARDINAL The request to challenge a judge

If the circumstances indicated in LAW are present , the judge shall be obliged to withdraw from the case .

For the same reasons the parties to the proceedings may challenge [ a judge ] .

A challenge must be declared , and reasons given , before the examination of the merits of the case . A challenge may be declared later only if the party to the proceedings learned about the reasons for the challenge after the beginning of the proceedings . If the circumstances [ indicated above ] become known to the court after the examination of the case has begun , the court shall be obliged to inform the parties in order to decide on the matter of [ incompatibility ] . ”


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in LOC , GPE .

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

On an unspecified date the applicant sued a certain PERSON before the ORG ( PERSON ) , seeking payment .

On DATE the court granted the applicant 's claim .

On DATE the applicant asked the Bailiff of the ORG ( PERSON przy PERSON w Bielsku - Białej ) to institute enforcement proceedings

The proceedings are pending .

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to a trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) entered into force . It lays down various legal means designed to counteract and/or redress the undue length of judicial proceedings .

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . A complaint about the unreasonable length of proceedings shall be lodged while the proceedings are pending . ... ”

Section CARDINAL provides for measures that may be applied by the court dealing with the complaint . It reads , in so far as relevant :

“ CARDINAL . The court shall dismiss a complaint which is unjustified .

NORP If the court considers that the complaint is justified , it shall find that there was an unreasonable delay in the impugned proceedings .

At the request of the complainant , the court may instruct the court examining the merits of the case to take certain measures within a fixed time - limit . Such instructions shall not concern the factual and legal assessment of the case .

NORP If the complaint is justified the court may , at the request of the complainant , grant ... just satisfaction in an amount not exceeding PLN CARDINAL,CARDINAL to be paid by ORG . If such just satisfaction is granted it shall be paid out of the budget of the court which conducted the delayed proceedings . ”

Section CARDINAL lays down transitional rules in relation to the applications already pending before the ORG . It reads , in so far as relevant :

“ CARDINAL . Within DATE after the date of entry into force of this law persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to a trial within a reasonable time guaranteed by LAW ... , may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this law if their complaint to ORG had been lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case .

On DATE ORG ( PERSON ) adopted a resolution ( no . III SPP CARDINAL/CARDINAL ) in which it ruled that while LAW produced legal effects as from the date of its date of entry into force ( DATE ) , its provisions applied retroactively to all proceedings in which delays had occurred before that date and had not yet been remedied .


The applicant was born in DATE and lives in ORG .

On DATE he lodged a claim with ORG ( “ FAC ” ) against his former employer , the A. company ( subsequently succeeded by the M. company ) , seeking reimbursement of medication expenses and compensation for non - pecuniary damage caused to him as a result of the work - related injury .

Following CARDINAL remittals of the case for fresh examination , on DATE the court partly allowed the claim and awarded the applicant certain amounts . The judgment was enforced on DATE .

On DATE and CARDINAL DATE , respectively , ORG and ORG ( the latter court acting as a court of cassation ) upheld that judgment .

According to the Government , in the course of the proceedings the applicant specified his claim and lodged several procedural petitions . CARDINAL hearings were adjourned following his requests or due to his or both parties’ failure to appear , which protracted the proceedings by DATE approximately . CARDINAL hearings were adjourned mainly due to the respondent ’s failure to appear or following its requests , due to the absence of a judge , because the court needed to obtain additional documents or for unspecified reasons . CARDINAL forensic examinations were carried out .

On DATE , in the course of the first set of proceedings , the applicant lodged an additional clam with ORG against the A. company , seeking the recovery of salary - related arrears . On DATE the court disjoined this claim from the first set .

Following CARDINAL remittals of the case for fresh examination , on DATE the court partially allowed that claim and awarded the applicant certain amounts . The judgment was enforced on DATE .

On DATE and DATE , respectively , ORG and ORG ( the latter court acting as a court of cassation ) upheld that judgment .

According to the Government , in the course of the proceedings the applicant specified his claim , lodged several procedural petitions and twice lodged appeals in breach of the procedural formalities . CARDINAL hearings were adjourned following his requests or due to his failure to appear , which protracted the proceedings by DATE approximately . CARDINAL hearings were adjourned mainly due to the respondent ’s failure to appear or following its requests , because the court needed to obtain additional documents or for unspecified reasons . CARDINAL forensic examinations were carried out .

In DATE the applicant lodged a claim with ORG against the A. company , seeking the recovery of certain health - related payments .

As it appears from the case file , on DATE the court partially allowed the applicant ’s claim and awarded him certain amounts . On DATE and DATE , respectively , ORG and ORG partially amended that judgment and upheld its remainder .

On DATE the applicant lodged a claim with ORG against ORG , seeking the recovery of certain health - related payments .

Following CARDINAL remittal of the case for fresh examination , on DATE the court allowed the claim in part and awarded the applicant certain amounts . On DATE and DATE , respectively , ORG and ORG amended that judgment having increased the amounts due to the applicant .

According to the Government , in the course of the proceedings the applicant specified his claim and challenged the judge . CARDINAL hearings were adjourned due to his absence or following his requests . The applicant disagreed that he had requested adjournments . These delays on the applicant ’s part protracted the proceedings by DATE approximately . CARDINAL hearings were adjourned mainly upon the respondent ’s requests or its failure to attend the hearings , absence of a judge , electricity blackouts in the court LOC , because the court needed to obtain additional documents or for unspecified reasons .

In DATE the applicant lodged a claim with the domestic courts against ORG , seeking the recovery of the cost of sanatorium vouchers .

By the final ruling of DATE , ORG rejected that claim as unsubstantiated .


The applicant , Mr PERSON , is a NORP national , who was born in DATE and lives in GPE . The responded Government were represented by their Agent , PERSON , of ORG and , subsequently , PERSON , Acting Government Agent .

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

The applicant owns a flower shop in LOC . On DATE the applicant parked his car in an unauthorized place . He was stopped by the municipal police officers while he was transporting flowers and QUANTITY of soil to his shop . The police officers proposed the applicant to pay ORG MONEY as a fine for parking in an unauthorized place . The applicant refused to pay the fine and , consequently , in accordance with the law then in force , the municipal police officers lodged a motion for punishment of the applicant by ORG ( PERSON do PERSON ) .

On DATE the municipal police requested ORG to punish the applicant for a petty offence of illegal parking .

The hearings listed for DATE and for DATE by ORG were adjourned due to the absence of the municipal police officers .

At the hearing held on DATE ORG heard a municipal police officer in the presence of the applicant .

By a decision of DATE ORG imposed a fine of PLN CARDINAL on the applicant for illegal parking of his car .

The applicant appealed against this decision , claiming that he could not transport the commodity in a different manner , especially the flowers , without exposing them to damage during DATE . He alleged that the municipality did not provide any other possibility of parking which could allow him to run his business .

On DATE the applicant ’s appeal and the case - fine was transmitted to ORG for examination .

On DATE the president of the court listed a hearing for DATE .

On DATE the applicant was duly summoned to the hearing . As transpires from an acknowledgment of receipt , on DATE the applicant ’s apartment was closed . Thus , the postman left him a written notice on the door of his apartment to collect the summons at the post office . The summons was not collected by the applicant by DATE and consequently , it was returned to the court with a note that it was not collected by the applicant within the prescribed time - limit of DATE .

By a judgment in default of CARDINAL DATE ORG upheld the contested decision . Neither the applicant nor a prosecutor was present at the hearing . The court noted in the records of the case that the applicant was duly summoned to the hearing .

On DATE the applicant had been served with the judgment . He confirmed this fact with his own signature .

In a letter of DATE he requested to be served with the written grounds of the judgment . He also contended that the proceedings were not fair as he had not been informed of or summoned to the hearing on DATE and therefore his arguments could not have been adequately presented to the court . He asked the court for the explanation and redress of this procedural shortcoming .

By a letter of ORG of CARDINAL DATE , the applicant was informed that the judgment was final and no appeal lay against it .

In a letter of CARDINAL DATE to the President of ORG , the applicant explained that on DATE he had been served with the judgment of CARDINAL DATE . He had also been informed that he could request the written grounds within DATE time - limit . He had done so in his letter of DATE .

On DATE the court decided that the applicant should pay the costs of the proceedings in amount of PLN CARDINAL . On DATE the applicant appealed against this decision . On DATE ORG decided to uphold the contested decision .

By a letter of DATE the President of ORG informed the applicant that he could not appeal against the contested judgment as it had already become final , but that he could have the written grounds prepared .

On DATE the applicant lodged a new complaint with ORG that he was not summoned to the hearing and he had not presented his arguments . He also alleged that he had repeatedly requested the written grounds of the judgment and the explanation in respect of the summons to the hearing , but all his requests remained unanswered . ORG

Following the applicant ’s further request of CARDINAL DATE , the court sent him the written grounds of the judgment on DATE . The court emphasised therein , inter alia , that the applicant could have used a parking place located QUANTITY away from the place where he had illegally parked his car .

At the material time the rules concerning a police order to pay a fine were defined in the Ordinance of ORG of DATE on imposition , payment and execution of fines imposed by an order of an appropriate organ ( rozporządzenie PERSON w sprawie nakładania , uiszczania i ściągania grzywien w postępowaniu mandatowym- PERSON , or ORG , of DATE , CARDINAL , Item CARDINAL ) . Pursuant to § CARDINAL ( CARDINAL ) of the LAW in the proceedings concerning imposition of a fine , an appropriate organ may order a fine payable immediately in cash only if the amount of this fine does not exceed LAW . Pursuant to LAW ( CARDINAL ) of the LAW , imposition of a fine in such proceedings is possible only if a person punished by a fine accepts it . In case of refusal , the police or municipal police are obliged to submit a motion for punishment of such a person to ORG .

Under LAW in connection with LAW DATE ( ORG ) , applicable to the judicial proceedings concerning minor offences in which a decision was given by ORG , the provisions concerning the criminal summary proceedings shall be applicable .

At the material time the rules concerning service of summons in criminal proceedings were defined in LAW ORG . Pursuant to LAW , if a personal summoning of an addressee is impossible , a summons sent by the post should be left at the post office located the nearest to the addressee . According to LAW ORG , the addressee should be informed about the summons left at the post office by a written notice left on the door of his / her home . The notice should inform the addressee that the summons should be taken up within DATE .

According to well - established jurisprudence of ORG , a party in criminal proceedings shall not be allowed to claim that it was not summoned by a court while being informed about a summons and not collecting it from an indicated place ( see a decision of ORG of DATE , III ORG DATE , published in OSNKW No . CARDINAL - CARDINAL/CARDINAL , Item CARDINAL ) .

LAW , applicable to the summary proceedings , provided that if a suspect , who was served with the summons to the hearing , did not attend the hearing , the court could hold the hearing in the absence of the suspect and a judgment in default could be given .


CASE OF KEPENEKLİOĞLU AND CANPOLAT v. TURKEY

Violations of Art. 6-1;Not necessary to examine Arts. 6-2 and 6-3

The applicants , Mr PERSON and Mr PERSON , are NORP nationals , who were born in DATE and DATE respectively . When they lodged their application with the ORG they were imprisoned in GPE .

On DATE and DATE the applicants were taken into custody in GPE by police officers from the GPE Anti - Terrorist Branch . On DATE they were detained on remand .

On DATE ORG at ORG filed a bill of indictment accusing the applicants of , inter alia , organised murder and armed burglary , as well as being members of an illegal terrorist organization .

On DATE ORG commenced the trial against the applicants and CARDINAL other accused and prolonged the applicants ' detention .

On DATE ORG convicted the applicants under LAW and sentenced them to death .

On DATE ORG quashed the judgment .

On DATE ORG convicted them of the same crimes .

On DATE , upon the applicants ' appeal , ORG upheld the judgment of ORG .

A full description of the domestic law may be found in the judgments of PERSON v. GPE ( no . ORG , § § DATE , DATE ) and PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) .