Violation of Article 2 - Right to life (Article 2 - Positive obligations;Article 2-1 - Life;Effective investigation);Pecuniary damage - award;Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

The applicant was born in DATE and lives in GPE .

On DATE the applicant ’s son , PERSON , born on CARDINAL DATE and then DATE , was playing with other children outside the applicant ’s apartment , situated in GPE district ( Naujamiesčio seniūnija ) in the city of GPE . Whilst the children were standing on the balcony of an ancillary building containing cellars , the balcony broke off the building and collapsed . Part of the balcony fell on ORG , who died at the scene from the injuries he received . CARDINAL other children , GPE and PERSON , suffered minor bodily injuries .

On DATE the police opened a pre - trial investigation . On DATE and the next investigators surveyed the scene of the accident .

On DATE a forensic expert established that ORG had died because the balcony block had fallen on to him , broken his spine and crushed his internal organs .

By GPE city police investigator ’s decision of CARDINAL DATE the applicant was recognised as having victim status .

According to the Government , after the accident the future of the ancillary building containing the cellars was discussed at a meeting of the GPE municipal council on DATE . An expert inspection of DATE recommended that the building be fenced off until it could be demolished . [ The GPE city municipality ] Commission on Residential and Non - Residential Houses and Premises on DATE approved the demolition of the building . In accordance with a contract signed on DATE between the GPE city council and Naujamiesčio būstas , the GPE municipal enterprise , in DATE that enterprise demolished the building .

On DATE the applicant lodged , in the criminal proceedings , a civil claim for non - pecuniary damage , in the sum of CARDINAL NORP litai ( LTL ) , and for litigation costs with ORG . She submitted that the GPE city municipality and its institutions had failed to supervise the buildings and , as a result , her son had died . The loss caused her immense moral suffering and depression . Even though it was not possible to bring her son back , the persons responsible should compensate the non - pecuniary damage . The applicant also referred to LAW ( see Relevant domestic law below ) , arguing that the amount of damage could be assessed according to all the circumstances established in the criminal case and the [ criminal ] court had such competence .

By a decision of DATE , the prosecutor recognised the applicant as a civil claimant in the criminal case , on the basis of ORG CARDINAL and CARDINAL of the Code of Criminal Procedure .

On DATE PERSON , an employee of Naujamiesčio būstas , was charged with the offence of failure to fulfil official duties , under LAW . The authorities considered that PERSON had failed to inspect the buildings at issue and to inform the municipality of their condition , even though he had been assigned that function by order of the Naujamiesčio būstas director on DATE . On DATE the authorities imposed a restrictive measure on PERSON , namely an obligation not to leave his place of residence .

By a decision of CARDINAL DATE ORG discontinued the pre - trial investigation . The prosecutor referred to LAW which determined that in the most general sense supervision of the use of construction works was the municipality ’s responsibility . Similarly , LAW set out the municipality ’s duty to supervise the use of residential houses and other constructions . The prosecutor analysed in detail whose responsibility it had been , and when , in respect of GPE city municipality and Naujamiesčio būstas , to supervise the buildings , given that there had been changes in the bodies DATE . She noted that in DATE the city had made some enquiries of Naujamiesčio būstas about the cellars , but there was no - one in the municipality who had the responsibility of supervising the activities of Naujamiesčio būstas . However , the prosecutor considered that the evidence gathered was contradictory , and that therefore it was not possible to establish which body – the GPE city municipality or Naujamiesčio būstas DATE had been responsible for the proper maintenance of the building , the collapse of which had resulted in the death of the applicant ’s son . Therefore the prosecutor could not identify any physical person who could be held accountable for failure to act and to ensure that the building was in good condition and not dangerous . The prosecutor thus dropped the criminal charges in respect of PERSON Moreover , under LAW a corporate person could not be held criminally liable . However , the prosecutor noted that , in accordance with LAW , the applicant and the parents of the CARDINAL injured children could lodge civil proceedings against GPE city municipality or Naujamiesčio būstas , and claim that the building had been left unattended .

The applicant appealed against the above decision , arguing that the GPE city municipality and Naujamiesčio būstas had been aware for a long time that the building was in a dangerous state ( avarinės būklės ) , but no one had known what to do with it . The father of PERSON also appealed , submitting that the investigation had been going on for a long time , but no person had been found responsible for the building and thus for the accident .

By a decision of CARDINAL DATE a prosecutor reopened the investigation . She noted that it was imperative to take measures to identify the person or persons whose responsibility it had been to take care of the building ’s maintenance and to establish why they had not done so .

On DATE another prosecutor at ORG decided to discontinue the pre - trial investigation . The prosecutor found that the evidence as regards which body owned the collapsed building was contradictory . However , he considered that the GPE city municipality was the de facto owner of the building . On the basis of documents dated DATE and DATE , the prosecutor also concluded that the municipality had known earlier about the poor condition of the building where the accident had happened . Nonetheless , in DATE an administrative reform had taken place within the GPE city municipality , as a result of which new administrative units had been created , the responsibilities of those units redistributed and new people assigned to those administrative units . Consequently , at the time of the incident there was no one who had the duty to manage derelict and unused buildings . There was therefore insufficient evidence to find that a crime under LAW had been committed .

The prosecutor also suggested that the applicant lodge a civil claim on the basis of LAW .

On DATE a higher prosecutor upheld that decision . The applicant appealed .

On DATE the FAC found that the pre - trial investigation had not been sufficiently thorough and effective . As a result , the identity of the owner of the derelict buildings had not been established . The court drew the prosecutor ’s attention to specific actions to be taken and specific circumstances to be examined , whilst noting the applicant ’s earlier requests to the prosecutor to the same effect . Having given the prosecutor precise instructions , including to obtain archived documents from DATE , the district court emphasised that without that specific information it was not possible to establish the identity of persons who had failed to adopt a timely final decision , in accordance with their official duties , about the future of the derelict buildings and their proper maintenance . The prosecutor ’s decision was quashed as unfounded .

On DATE and CARDINAL DATE the applicant wrote to the Attorney General , arguing that the pre - trial investigation had been superficial and that the prosecutors at ORG had been passive and unwilling to discover the truth , thus stalling the investigation . For the applicant , the investigation in essence consisted of sending written questions and answers from CARDINAL municipal institution to another . It was clear that neither of the institutions , GPE city municipality or Naujamiesčio būstas , was willing to take responsibility for failing to perform its duties . The applicant thus asked the Attorney General to take over the investigation or to transfer it to ORG . She also observed that although DATE had passed since the court decision of CARDINAL DATE , the prosecutors had still not taken all the required investigative actions .

On DATE , ORG again discontinued the pre - trial investigation , in essence upholding the conclusions of the decision of DATE to the effect that the evidence as to which body was in possession of the building at issue was contradictory . Accordingly , it was not possible to identify the physical person whose duty it was to maintain the building , and who was therefore liable for the death of CARDINAL child and injury of CARDINAL others .

On DATE the applicant appealed , arguing that even though DATE had passed since the accident , the prosecutors had not been active enough and had therefore failed to establish who was responsible for the maintenance of the building . The applicant argued in addition that the prosecutors had also failed to take all the steps which had been ordered by the court on CARDINAL DATE . The correspondence between GPE city municipality and Naujamiesčio būstas showed that both bodies had known the building was derelict , and yet no effort had been made to repair or demolish it . Immediately after the incident the building had been fenced off and demolished by the municipality , even though the municipality had earlier denied that it was within its control and had argued that it did not have the legal authority to tear down the building . The applicant asked for the pre - trial investigation to be reopened .

By a higher prosecutor ’s decision of DATE , the investigation was reopened . For the prosecutor , it was possible that the employees of the GPE city municipality or those of Naujamiesčio būstas had not performed their duties that stemmed from [ Article CARDINAL of ] LAW , LAW and other relevant legal acts . It was therefore indispensable to establish which particular person had been designated by the municipality to inspect / supervise the buildings without owners in question ( kam pavesta bešeimininkių pastatų priežiūra ) in LOC . If such functions had not been assigned to any particular unit or person at the municipal or district level , the prosecutor should consider whether the municipality ’s or district ’s managers ( vadovai ) should be held responsible under LAW .

On DATE GPE , a senior specialist in LOC , was charged with failure to carry out official duties , under Article CARDINAL of LAW . By a decision of the LOC director ( seniūno ) on DATE GPE had been given the responsibility of monitoring empty buildings belonging to the municipality . The criminal investigator considered that GPE had failed to inform the municipality about the danger posed by the derelict cellars in question , as he should have done under LAW [ § CARDINAL ( CARDINAL ) ] of ORG ( see paragraph CARDINAL below ) .

On DATE a prosecutor for the Vilnius City District discontinued the investigation , as no physical persons criminally liable for the accident could be identified . The prosecutor noted , however , that the GPE city municipality had learned on DATE of the poor state of the building the collapse of which had caused the death of the applicant ’s son . However , at that time the municipality was going through structural changes and the duties and responsibilities of the municipality ’s employees were being redistributed , therefore there was no particular person with the specific duty to take action on derelict and abandoned buildings . Moreover , taking into account the short period of time that had elapsed between that date and the accident ( DATE ) , it was not possible to conclude that the municipality ’s employees had been stalling the process of finding a solution to the question of what had to be done with the building . The evidence collected in the case did not prove that employees of the GPE city municipality , the LOC district or Naujamiesčio būstas had failed to carry out any of their clearly prescribed duties and had thus caused the death of one child and injuries to CARDINAL others . The prosecutor therefore dismissed the criminal charges against PERSON , an employee of Naujamiesčio būstas , and against GPE , a LOC specialist . The prosecutor suggested that the applicant and the parents of the CARDINAL children who had been injured in the accident bring separate civil proceedings under LAW .

The applicant appealed , arguing that the case should be returned for a fresh pre - trial examination , so that the ownership of the buildings could be established and the persons ( physical and corporate ) liable for the accident thus identified .

By a ruling of CARDINAL DATE the GPE City ORG refused to reopen the pre - trial investigation , because a criminal action under LAW had become time - barred . The pre - trial investigation had been opened on DATE and LAW provided a DATE term to prosecute a crime of a negligent or minor premeditated nature . The court therefore did not address the applicant ’s complaint that the pre - trial investigation had been flawed .

The applicant appealed , questioning the effectiveness of the investigation and asking for it to be reopened .

By a final ruling of CARDINAL DATE ORG upheld the lower court ’s decision to discontinue criminal proceedings under the statute of limitations .

According to LAW , a person ’s right to life shall be protected by law .

The Law on Local Self - Government provides that CARDINAL of the functions of a municipality is to supervise how buildings are used and to manage land and other property which belong to it by the right of ownership ( LAW and CARDINAL ) .

The Law on Construction at the relevant time provided :

“ CARDINAL . The following public administration bodies shall exercise supervision of use of construction works :

CARDINAL ) NORP the regional governor ’s office as in the list approved by the Government , or an institution authorised by it , in respect of constructions of exceptional significance , those of national significance , and construction works situated within establishments of likely hazard , with the exception of the construction works referred to in subparagraph CARDINAL of paragraph CARDINAL of this Article ;

CARDINAL ) ORG and/or organisations authorised by it as in the list approved by the ORG or an institution authorised by it , in respect of traffic routes and other engineering constructions related thereto , as well as hydrotechnical construction works in LOC and bodies of inland water , with the exception of traffic routes which do not belong to the sphere of its management ;

CARDINAL ) municipal authorities , in respect of residential dwellings and other constructions which are not specified in sub - paragraphs CARDINAL and CARDINAL of paragraph CARDINAL of this Article ...

Public authorities which are engaged in supervision of the use of buildings shall enjoy the following rights :

CARDINAL ) NORP in the event that it becomes clear that the condition of a building poses a threat to the health or life of people who reside , work or happen to be for other purposes in the building or near it , or to the environment , and taking into account the type of threat posed , they may demand that the operator of the building take measures to protect people and , if necessary , may insist that the area be evacuated , that the building cease to be used , or they may prohibit any activity in the building ( if necessary also within the construction site or area ) ;

CARDINAL ) NORP they may set time - limits for taking all the actions specified in sub - paragraph CARDINAL and immediately inform the owner of the building ( when the user is not the owner of the building or works ) ;

CARDINAL ) NORP they may contact the police in order to temporarily restrict access to the area or LOC , to stop works which are being carried out there , and to restrict or prohibit traffic , if the environment , public order , personal safety or the ORG are endangered ;

CARDINAL ) NORP in cases and procedures laid down by LAW , they may draw up a record of administrative offences , consider administrative offences and impose administrative penalties , or refer administrative offences to the courts .

Officers of public administration bodies which are engaged in supervision of the use of buildings shall have the right to demand that the operator of a construction site produce mandatory documents relating to the supervision of the site , as referred to in LAW , indicating that they have permission to perform such other functions in connection with supervision of the use of buildings , which have been assigned to them ... ”

On DATE the GPE city management board adopted decision CARDINAL “ Approval of order giving power to declare buildings in poor condition , and identification of buildings in GPE which may be taken into the possession of the local authority ” . Paragraphs CARDINAL and CARDINAL of the order set out the district director ’s ( seniūno ) duty to manage lists and keep records of derelict buildings , and to periodically provide those documents to the GPE city management board . Companies which have contracts to manage buildings , district engineers and senior local architects were responsible for the provision of data for the above - mentioned lists .

On DATE the GPE city mayor adopted decision CARDINAL “ ORG ” . The commission was to meet once DATE , to analyse information provided by district directors and to deal with issues concerning demolition of buildings in poor condition .

The Criminal Code provides :

“ A civil servant or a person equivalent thereto who fails to perform his duties through negligence or performs them inappropriately , where this results in significant damage to the ORG or to a legal or a natural person , shall be punished by deprivation of the right to be employed in certain positions or to engage in certain types of activity or by a fine or by arrest or by imprisonment for a term of DATE . ”

Pursuant to LAW and LAW ( CARDINAL ) of LAW , as relevant at the material time , a person who has committed a criminal offence may not be convicted once DATE have lapsed , if for example an offence such as failure to perform official duties has been committed .

Articles CARDINAL and CARDINAL of the Code of Criminal Procedure stipulate that a person who has sustained pecuniary or non - pecuniary damage because of a crime may lodge a civil claim against the suspect within criminal proceedings . The claim will be examined by the criminal court together with the criminal case . A civil claimant may submit evidence and requests and appeal against the decisions of the investigators , prosecutors or a court .

The Civil Code provides :

“ CARDINAL . ORG - pecuniary damage shall be deemed to be a person ’s suffering , emotional experiences , inconvenience , mental shock , emotional depression , humiliation , deterioration of reputation , diminution of possibilities to associate with others , and so on , evaluated by a court in terms of money .

ORG - pecuniary damage shall be compensated for only in cases provided for by laws . Non - pecuniary damage shall be compensated for in all cases where it has been incurred due to crime , health impairment or deprivation of life , as well as in other cases provided for by laws . The courts shall , when assessing the amount of non - pecuniary damage , take into consideration the consequences of such damage being sustained , the gravity of the fault of the person by whom the damage is caused , his financial status , the amount of pecuniary damage sustained by the aggrieved person , also any other circumstances of importance for the case , while abiding by the criteria of good faith , justice and reasonableness . ”

“ CARDINAL . If damage has been caused by the collapse of buildings , construction works , installations or other structures , including roads , or if the damage has been caused by any defect thereof , the owner ( manager ) shall be liable for damages unless he can prove that the situation has occurred because of circumstances indicated in Paragraph CARDINAL of Article CARDINAL of this Code .

It shall be presumed that the owner ( manager ) of buildings , construction works , installations or other structures is the person indicated as their owner ( manager ) in ORG . ”

“ CARDINAL . Damage caused by unlawful acts of institutions of public authority must be compensated for by the ORG from the ORG budget , irrespective of the responsibility of a particular public servant or other employee of public authority institutions . Damage caused by unlawful actions of municipal authority bodies must be redressed by the municipality from its own budget , irrespective of whether an employee is at fault .

For the purposes of this Article , “ public authority institution ” means any entity of public law ( including a ORG or municipal institution , official , public servant or any other employee of these institutions ) , as well as private individuals executing functions of public authority .

For the purposes of this Article , “ action ” means any action ( active or passive ) of an institution of public authority or its employees that directly affects the rights , liberties and interests of persons ( including legal acts or individual acts adopted by the institutions of ORG and municipal authority , administrative acts , physical acts , with the exception of court judgments DATE verdicts in criminal cases , decisions in civil and administrative cases and orders ) .

Civil liability of the ORG or municipality , subject to this LAW , shall arise where employees of public authority institutions fail to act in the manner prescribed by laws for these institutions and their employees . ”

The Government provided NORP court decisions concerning effective remedies in personal injury or destruction of property cases . They firstly noted ORG ruling of CARDINAL DATE in civil case CARDINALK-CARDINAL - CARDINAL/CARDINAL , in which the GPE city municipality had been held liable for the improper maintenance of the drainage system . The municipality was held accountable under LAW for the injuries the claimant had sustained and ordered to pay LTL CARDINAL,CARDINAL for the non - pecuniary damage she had sustained by falling into a sewer well .

As the second example the Government referred to ORG ruling of CARDINAL DATE in civil case ORG , in which the claimant claimed damages for a broken clavicle suffered by her son , who had fallen into an uncovered cellar . The court concluded that the municipality ’s department responsible for maintenance of the buildings had failed to act with due diligence and , on the basis of Article CARDINAL of LAW , awarded the child ’s mother LTL CARDINAL,CARDINAL in non - pecuniary damages .

Lastly , the Government noted ORG ruling of CARDINAL DATE in civil case MONEY - CARDINAL/CARDINAL , concerning liability in tort of the building owners , under LAW . ORG held that the owner ( manager ) of the buildings , installations and other structures had absolute ( no - fault ) responsibility for damage caused by its collapse or deficiencies . In that case the GPE city municipality was determined to be the owner of the LOC in question and therefore liable for the pecuniary damage caused by the rupture of a water pipe . The municipality was to compensate the claimant for destruction of its property in the amount of LTL CARDINAL,CARDINAL .


Violation of Article 6 - Right to a fair trial (Article 6 - Enforcement proceedings;Article 6-1 - Access to court);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions;Possessions);Non-pecuniary damage - award

The applicant was born in DATE and lives in GPE , ORG .

In DATE the applicant was engaged in emergency operations at the site of the GPE nuclear plant disaster . The applicant ’s entitlement to certain State benefits is linked to the category of disability assigned to him as a result of the deterioration in his health arising from that event .

In DATE the applicant applied for free accommodation from the ORG . His housing conditions were recognised as substandard and he was placed on a waiting list .

In DATE the applicant brought proceedings against ORG , contesting its failure to make accommodation available to him within DATE of placing him on a waiting list .

On DATE the ORG of GPE ruled in the applicant ’s favour . It referred to ORG as a Result of the Chernobyl Nuclear Power Station Explosion , noted that the applicant 's accommodation was substandard and ordered ORG to provide the applicant with a flat “ in accordance with the applicable standard conditions and with the order of precedence on the waiting list ” . This judgment was not appealed against , and enforcement proceedings were instituted on DATE .

On DATE the bailiffs’ service informed the applicant about a lack of progress in the enforcement proceedings , due to an insufficient number of flats allocated to the waiting list . It advised the applicant to apply to the ORG for replacement of the inkind award , conferred by the judgment of DATE , with an equivalent amount of money .

On DATE the bailiffs’ service informed the applicant that it had sought instructions from the ORG concerning enforcement of the judgment of DATE . In particular , it asked that a time - limit be imposed , within which the authorities were to provide the applicant with a flat .

On DATE ORG of Belgorod examined the applicant ’s complaint about the failure of the bailiffs’ service to enforce the judgment of DATE . It found no fault on the part of the service because the judgment had not included a time - limit for enforcement .

NORP On DATE the ORG of ORG conducted supervisory review of the judgment of DATE . It held that the statutory time - limit of DATE was applicable and not amenable to further extensions . It removed the condition that the flat was to be provided in accordance with the order of precedence on the waiting list and upheld the remainder of the judgment .

The applicant was still waiting for accommodation in DATE .

According to the applicant , on DATE a group of CARDINAL people , including the applicant , began a hunger strike to protest against the poor level of welfare protection provided for the GPE victims . The mayor of PERSON launched a public call for donations in support of the protestors and collected the amount necessary to provide all of them with housing . The applicant submitted a statement signed by CARDINAL other protesters in support of his version of events .

According to the Government , on DATE the mayor of PERSON decided , pursuant to the judgment of DATE , to provide the applicant with a flat measuring CARDINAL m² , valued at MONEY .

On DATE the applicant received from the mayor an occupancy voucher in respect of the flat assigned to him . He found the flat satisfactory .

No decision appears to have been taken as to the pending enforcement proceedings .

The Law On Social Protection of Citizens Exposed to Radiation as a Result of the Chernobyl Nuclear Power Station Explosion ( no . CARDINAL-I of CARDINAL DATE , as amended at the material time ) set out that disabled victims of the GPE explosion were to be granted social housing within DATE of submitting an appropriate application , provided that their existing accommodation did not comply with the minimum housing standards ( section CARDINAL ( CARDINAL ) ) .

Section CARDINAL of LAW ( Law no . CARDINAL of DATE ) provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow should the defendant fail to comply with the time - limit . Pursuant to section CARDINAL , the enforcement proceedings must be completed within DATE of the receipt of the writ of execution by the bailiff .

The RSFSR Housing Code ( Law of DATE , effective until DATE ) provided that NORP citizens were entitled to possess flats owned by the ORG or municipal authorities or other public bodies , under the terms of a tenancy agreement ( section CARDINAL ) . Certain “ protected ” categories of individuals ( disabled persons , war veterans , GPE victims , police officers , judges , etc . ) had a right to priority treatment in the allocation of flats .

Decisions on granting flats were to be implemented by way of issuing the citizens concerned with an occupancy voucher ( ордер на жилое помещение ) from the local municipal authority ( section CARDINAL ) . The voucher served as the legal basis for taking possession of the flat designated therein and for the signing of a tenancy agreement between the landlord , the tenant and the housing maintenance authority ( section CARDINAL , and also ORG CARDINAL and CARDINAL of ORG ) .

Members of the tenant ’s family ( including his or her spouse , children , parents , disabled dependants and other persons ) had the same rights and obligations under the tenancy agreement as the tenant ( section CARDINAL ) . The tenant had the right to accommodate other persons in the flat ( section DATE ) . In the event of the tenant ’s death , an adult member of the tenant ’s family succeeded him or her as a party to the tenancy agreement ( section CARDINAL ) .

Flats were granted for permanent use ( section CARDINAL ) . The tenant could terminate the tenancy agreement at any moment , with the consent of his or her family members ( section CARDINAL ) . The landlord could terminate the agreement on the grounds provided for by law and on the basis of a court decision ( sections CARDINAL - CARDINAL ) . If the agreement was terminated because the house was no longer fit for residence , the tenant and family were to receive a substitute flat with full amenities ( section CARDINAL ) . Tenants or members of their family could be evicted without provision of substitute accommodation only if they “ systematically destroyed or damaged the flat ” , “ used it for purposes other than residence ” or “ systematically breached the [ generally accepted rules of conduct ] making life with others impossible ” ( section CARDINAL ) .

Tenants had the right to exchange their flat for another flat from the ORG or municipal housing stock , including CARDINAL in another region ( section CARDINAL ) . Exchanges involved reciprocal transfer of rights and obligations under the respective tenancy agreements and became final from the moment of issuing new occupancy vouchers ( section CARDINAL ) . “ Speculative ” or sham exchanges were prohibited ( section CARDINAL(CARDINAL ) ) .

LAW ( Law no . CARDINAL-I of DATE ) provides that the payments for a flat comprise ( i ) a housing maintenance charge , ( ii ) a housing repair charge , and , in the case of tenants only , ( iii ) rent ( section CARDINAL ) . Maintenance and repair charges are payable irrespective of whether the flat is in private ownership or owned by the ORG . Rent is fixed by regional authorities , taking into account the surface area and quality of the housing . It is usually considerably lower than free - market rent . For example , the highest DATE rent for municipal housing in GPE is MONEY ( CARDINAL ) per square metre ( Resolution of ORG no . CARDINAL-PP of DATE ) .

In DATE , ORG ( Law no . CARDINAL-I of DATE ) was adopted ( and will remain effective until DATE ) . It grants NORP citizens the right to acquire title to ORG and municipal - owned flats of which they have taken possession on the basis of a social tenancy agreement ( section CARDINAL ) . The acquisition of title does not require any payment or fee ( section CARDINAL ) . The right to privatisation can be exercised once in a lifetime ( LAW ) and requires the consent of all adult family members .


The applicants , GPE , GPE and GPE , are NORP nationals , born in DATE , DATE and DATE respectively and living in GPE . They are represented before the Court by Mr PERSON , a lawyer practising in GPE .

The facts of the case , as submitted by the applicants , may be summarised as follows :

C.D.M. was the owner of an apartment in GPE , which he had let to GPE

Since DATE , ORG fell in rent arrears and in a writ served on her on CARDINAL DATE , C.D.M. informed her of his intention to terminate the lease and summoned her to appear before ORG .

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

On DATE , C.D.M. served notice on the tenant requiring her to vacate the premises .

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

DATE and DATE , the bailiff made CARDINAL attempts to recover possession .

Each attempt proved unsuccessful , as the applicant was not entitled to police assistance in enforcing the order for possession .

According to LAW , on DATE and on CARDINAL and DATE , ORG made CARDINAL requests to ORG for police assistance in enforcing the order for possession , but they were never granted .

On DATE ( the owner ) died , his spouse and his daughters ( the applicants ) inherited the apartment and pursued the enforcement proceedings for non - payment of rent .

On DATE , ORG ( the spouse ) made another request for police assistance

On DATE , the applicants recovered possession of their apartment .


Preliminary objection rejected (abuse of right of petition);Violation of Art. 5-1;Violation of Art. 5-4;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant is a NORP national born in DATE and living in GPE . He is an economist , now retired .

On DATE a Mr Z. lodged with ORG ( ORG прокуратура ) in PERSON a complaint against the applicant , stating that he was mentally ill and dangerous . The applicant and PERSON had been involved in disputes related to their joint business activity which had been the object of CARDINAL sets of judicial proceedings between them . The applicant had apparently threatened Mr PERSON , stating in a letter to him that , inter alia , the only possible method of getting his money back was “ the axe ” , and that “ a dog deserves a dog 's death ” . Mr PERSON , for his part , threatened the applicant with punishment according to medieval laws .

Following the receipt of PERSON complaint , ORG opened an inquiry . The purpose of the inquiry was , initially , to establish whether there were grounds to institute criminal proceedings against the applicant for having threatened to kill someone . On DATE the prosecutor transmitted the file to the local police department with instructions to investigate Mr PERSON 's complaint and to serve the applicant with a warning that he should cease his unlawful behaviour . On DATE , after hearing the applicant , a police officer drew up a report in which he stated , inter alia , that the applicant had repeated his threats against Mr Z. , and that he appeared to have mental problems and was likely to carry out his threats . The police officer also heard a neighbour of the applicant who stated that he was a troublemaker .

The parties have submitted to the ORG documents in respect of the applicant 's mental health . A certificate issued on DATE by a doctor at ORG ( GPE психиатричен диспансер ) established that the applicant , who had requested a psychiatric examination declaring that he needed to have his capacity to make a will certified , was mentally healthy . In their report of DATE , the medical experts who examined the applicant during his confinement in a psychiatric hospital ( see paragraph CARDINAL below ) concluded that he had a paranoiac psychosis , that he was aggressive and posed a threat to others . In a later certificate , issued on DATE , another doctor who had examined the applicant found that he was mentally healthy . The applicant did not have a history of psychiatric problems .

NORP In DATE ORG instructed the local police department to inquire whether it was necessary to request , from the competent court , the applicant 's compulsory psychiatric treatment under section CARDINAL of LAW ( ORG за народното здраве ) .

According to the applicant 's version of the facts , in DATE and again in DATE he submitted to the prosecution authorities a copy of the certificate of DATE which established that he was mentally healthy ( see paragraph CARDINAL above ) and another document to that effect . He alleged that he had gone to ORG on CARDINAL occasions requesting to be examined , but that had been refused .

As it transpires from the summary of facts contained in the medical report of CARDINAL DATE ( see paragraph CARDINAL below ) , in the course of the prosecutor 's inquiry the applicant was invited on DATE and again on CARDINAL DATE by the director of ORG to come for a psychiatric examination . It appears that the applicant received these invitations . He sent letters in reply stating , inter alia , that he would not undergo an examination unless an international commission were set up , and described the hospital as “ corrupt ” and as a “ department of the ORG security police ” .

On DATE a prosecutor from ORG ordered that the applicant should be brought by force to a psychiatric hospital , and be kept there for DATE to undergo a psychiatric examination . This was necessary in view of the prosecutor 's intention to submit to the competent court a request for the applicant 's committal for compulsory psychiatric treatment . The order also stated that it was issued pursuant to section CARDINAL of LAW , LAW no . CARDINAL of ORG ( ORG прокуратура ) and section CARDINAL(CARDINAL ) of Instruction no . CARDINAL of ORG ( инструкция на LOC здраве ) . It was based on the material collected in the course of the inquiry ( see paragraphs CARDINAL above ) .

On DATE the prosecutor 's file was sent to the psychiatric clinic in GPE , with a copy to the local police . On CARDINAL DATE ORG asked the police to explain their failure to enforce the order of DATE . On DATE the police returned the file to ORG with the explanation that the applicant had not allowed access to his home . On DATE ORG again transmitted the file to the police and insisted on the enforcement of the order of DATE .

On DATE , on the basis of the prosecutor 's order of CARDINAL DATE , the applicant was taken from his home by the police and brought to a psychiatric hospital .

The applicant underwent psychiatric examinations . He was given sedatives . The doctors also interviewed his wife , asking her questions about his past .

On DATE the applicant was diagnosed as suffering from pneumonia . A treatment with antibiotics was applied .

On DATE the applicant 's wife submitted a complaint to ORG ( PERSON прокуратура ) . She stated , inter alia , that the manner in which her husband was treated was inhuman , that she had not been given a copy of the prosecutor 's order and that she had not been allowed to visit her husband in the hospital until DATE . She asked the prosecutor to release the applicant from the psychiatric clinic .

On DATE the applicant was transferred to a general hospital in a critical condition because of the developing pneumonia . In DATE his health improved .

It appears that during DATE after his transfer to the general hospital the applicant remained under the control of a psychiatrist . He was instructed not to leave the room where he had been placed and was tied to his bed during TIME . The applicant stated , and the Government did not dispute , that this situation lasted until DATE , when his health started to improve .

On DATE the psychiatrists who were in charge of conducting the applicant 's compulsory examination at the psychiatric hospital informed ORG about the applicant 's transfer and requested an extension until DATE of “ the time - limit for the forensic psychiatric report ” . The request was granted orally by telephone . It appears that the prosecutor did not make any formal order terminating the compulsory stay of the applicant at the psychiatric clinic .

On DATE a regional prosecutor wrote to the applicant 's wife in relation to her complaint of CARDINAL DATE . The letter stated only that her husband had been transferred to a general hospital and that , therefore , the district prosecutor would be given additional time to deal with his inquiry .

On DATE the applicant was discharged from the general hospital and went home as “ no psychiatric treatment was necessary at [ that ] moment ” , according to a psychiatrist who had examined him .

NORP In DATE and later again the applicant complained in respect of the events of DATE to the prosecution authorities stating , inter alia , that the district prosecutor had acted unlawfully . The complaints were examined by ORG and then by ORG , which replied by letters of DATE and DATE respectively that the district prosecutor had complied with the applicable procedure .

The applicant also sent numerous letters to the Minister of Health , to the courts and to other institutions complaining that he had been ill - treated and that the doctors and the prosecutors wanted to kill him . He received answers from the public - health authorities reciting the sequence of events and assuring him that his suspicions were unfounded .

In the continuing inquiry of the district prosecutor , CARDINAL medical experts , who had examined the applicant at the time when he was at the psychiatric hospital , delivered a report dated DATE in which they recommended compulsory treatment because , inter alia , he did not understand his condition , refused any form of voluntary treatment and was extremely aggressive .

In DATE the district prosecutor submitted a request to ORG ( Районен съд ) for an order committing the applicant for compulsory psychiatric treatment under section CARDINAL(CARDINAL ) of LAW . On DATE , after a hearing , the court dismissed the request . The applicant 's and the prosecutor 's ensuing appeals were rejected as being out of time .

According to section QUANTITY ) to ( CARDINAL ) read in conjunction with section CARDINAL ) , section CARDINAL and section CARDINAL(CARDINAL ) of LAW , a mentally ill person can be committed for compulsory psychiatric treatment by a decision of a district court .

Such judicial proceedings are instituted by a district prosecutor who is under the obligation to undertake a prior inquiry , including a psychiatric examination , in order to assess the need for instituting proceedings . The prosecutor therefore would normally invite the person concerned to undergo an examination in the framework of his inquiry .

LAW , as in force at the relevant time , did not contain any provision expressly authorising a prosecutor to order a person to be brought by force to a hospital and detained there for the purpose of such a psychiatric examination . Under section CARDINAL ) , a prosecutor could issue an order for a compulsory examination , but only in respect of alcoholics or drug addicts .

Certain powers were given to the prosecutor where the person 's state of health required emergency measures . In such a situation the chief medical officer of a hospital could order a person 's temporary compulsory treatment . The doctor had to inform immediately the competent prosecutor , who had to institute proceedings before the competent court ( section CARDINAL ) of the LAW and section QUANTITY ) . According to Section CARDINAL(CARDINAL ) of the LAW 's implementing regulations , if the prosecutor refused to institute judicial proceedings , the chief medical officer had to release the patient immediately .

The relevant law did not provide for an appeal to a court where persons were detained for an examination in the framework of a district prosecutor 's inquiry . Section CARDINAL(CARDINAL ) of LAW , read in conjunction with LAW ( ORG за административното производство ) , provided for a judicial appeal , but only against orders for compulsory treatment of persons suffering from a contagious disease ( section PERSON ) ) and against “ [ other orders ] of the public - health authorities ” , not of the prosecution authorities .

Instruction No . CARDINAL of ORG is a piece of delegated legislation . It is based on section CARDINAL of the supplementary provisions to LAW , which stipulates that the Minister of Public Health shall issue regulations and instructions for the implementation of LAW . The instruction is published in ORG .

Section CARDINAL(CARDINAL ) of the instruction , in its relevant part , provides as follows :

“ ... the [ forensic psychiatric ] examination shall be effected by the health - care authorities with the consent of the person concerned . Where the person concerned does not consent , the health - care authorities shall promptly request a written order and assistance from a prosecutor or a court for the [ person 's ] examination without admission to a hospital , or for the [ person 's ] temporary committal to a psychiatric clinic for the purpose of effecting a forensic psychiatric examination . ”

Guidelines no . CARDINAL of ORG is an internal document for prosecutors in their work in cases of compulsory medical treatment . It has not been published .

Sections CARDINAL et seq . concern the steps to be taken where there has been information that a person may be liable to compulsory psychiatric or other treatment . These provisions deal with compulsory examinations and treatment of persons of unsound mind , alcoholics and drug addicts , without distinguishing between these CARDINAL categories ( in contrast to the provisions of LAW , where separate rules exist ) .

According to the guidelines , following the receipt of a complaint or other information the prosecutor has to conduct an inquiry and , if there are clear indications that a psychiatric problem is involved , to invite the person concerned for a psychiatric examination . Section CARDINAL(CARDINAL ) provides as follows :

“ In case the person concerned does not appear [ for the examination ] within the time - limit indicated to him , the prosecutor shall order him to be brought by force by the police ( section CARDINAL(CARDINAL ) of LAW ) . ”

Section CARDINAL of the guidelines provides as follows :

“ Upon the proposal of the chief medical officer of the psychiatric clinic the prosecutor may , on the basis of the medical documentation provided , authorise in writing the temporary internment of mentally ill persons in a specialised hospital , for a psychiatric examination ( section CARDINAL of LAW implementing regulations ) . The prosecutor shall then promptly submit a request for compulsory treatment . ”

Certain amendments to LAW were introduced in DATE . These amendments , in paragraphs CARDINAL to CARDINAL of section CARDINAL , provide that a prosecutor , in the framework of his inquiry , can order the confinement in a psychiatric hospital for DATE ( DATE in exceptional cases ) , for the purpose of a medical examination , of a person who has refused to undergo such an examination voluntarily . However , no provision allowing judicial review of the prosecutor 's order was introduced .

The Code of Criminal Procedure , by virtue of an amendment in force since DATE , introduced a judicial procedure for the confinement in a psychiatric clinic of a person against whom criminal proceedings have been brought . This procedure , however , does not concern persons who have been confined in a clinic for a psychiatric examination pursuant to a prosecutor 's order under LAW of LAW .


Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Obligation to furnish all necessary facilities);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 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

Christos Rozakis;Dean Spielmann;Françoise Tulkens;Loukis Loucaides;Sverre Erik Jebens

The applicant was born in DATE and lives in GPE , GPE . Before DATE the applicant was a resident of the village of GPE in GPE . He also submitted the complaint on behalf of his close relatives : his mother , PERSON , brother PERSON ( also spelled GPE ) and sisters PERSON and PERSON , who are not applicants in the present case .

The facts of the case were partly disputed by the parties . Accordingly , the ORG requested the ORG to submit copies of the criminal investigation file . The submissions of the parties are summarised below in Part A. A summary of the documents submitted by the ORG is set out in Part B below .

NORP In DATE the applicant applied for asylum in GPE . He said that he had served in the national security service of the self - proclaimed “ GPE of GPE ” .

The applicant ’s parents , brothers and sisters remained in GPE . His family lived in their house at LOC in the village of GPE NORP .

The applicant ’s mother , PERSON , testified that in TIME of CARDINAL September CARDINAL the family had been woken by loud screams . A large group of men in camouflage uniforms and , in some instances , masks , whom she identified as belonging to the NORP special services ( “ spetsnaz ” ) , entered the house and forced all the inhabitants outside . They were not allowed to get dressed and no reasons were given for their intervention . According to her , the intruders wore insignia of the NORP army and spoke NORP without an accent .

According to the applicant , the inhabitants of the house were lined up in the courtyard facing the wall and their passports were collected . The servicemen read out the names in the passports CARDINAL by CARDINAL . CARDINAL of the applicant ’s brothers , ORG , was not at home TIME and the men asked about his whereabouts . The applicant ’s father Salaudi ( also spelled ORG ) PERSON replied that he was not at home . The intruders hit the applicant ’s other brother , PERSON ( born in DATE ) , with a rifle butt on the head and led the applicant ’s father away . They then forced the women into one of the rooms . In the meantime others opened all the rooms in the house and searched them . They collected valuables and family photographs .

Once the armed men had left , the women went outside and found GPE in the courtyard . The body of the applicant ’s father was found QUANTITY from the house . He had been shot in the back of the head with an automatic rifle .

On TIME and in similar circumstances CARDINAL other persons were killed in NORP : PERSON ( aged DATE ) , PERSON ( who was born in DATE ) , PERSON ( aged DATE ) and PERSON ( aged DATE ) .

The applicant submitted that on DATE the NORP television news had announced that several persons , including the applicant ’s father , had been killed TIME in NORP by religious extremists – the “ wahhabists ” .

The Government submitted that in TIME of CARDINAL September CARDINAL a group of unidentified persons armed with automatic weapons had entered the village of GPE NORP and murdered CARDINAL men , all of whom had been shot with automatic weapons . The Government stressed that all the persons killed had been loyal to the federal authorities , and openly expressed their negative opinion of “ wahhabists . ” The Government also stressed that CARDINAL of the persons killed was the son of a police officer from ORG . They submitted that there was no reason to suspect that the killings had been committed by ORG agents .

The applicant submitted that on DATE the family had been preparing for PERSON funeral when they learnt that there were investigators present at the crime scene . The applicant ’s younger brother PERSON had gone to see them . He had taken along cartridges he had found near his father ’s body DATE from a Kalashnikov QUANTITY automatic rifle and CARDINAL from a QUANTITY pistol .

At the place where his father ’s body had been found the applicant ’s brother saw a group of servicemen surrounded by villagers . He inquired who was the most senior and gave him the cartridges . The officers stated that they had come from ORG . The applicant ’s brother had tried to explain that he was the son of the person killed and a witness of the crime , and that other members of the family were at home preparing the body for burial . As the officers did not seem to be interested in his statements , he had tried to obtain their names and ranks . In response one of the officers had rudely asked if he also wanted to know his home address in GPE . The officers had shouted at him and the other villagers , and had ordered them to disperse and made threats . They had not visited their house . None of the family members were questioned DATE or later about the circumstances of the murders , nor had anyone come to their house to take pictures of the body or to collect other relevant evidence .

The applicant said that his father had been buried on DATE at the village cemetery . The family members had not contacted a doctor or taken pictures of the body before the burial . Nor had they contacted any representatives of the military or investigative bodies , as they considered this to be a waste of time in view of the ORG attitude . They were never contacted by the authorities in relation to the murder .

The Government submitted that on DATE , immediately following the receipt of news of the murders in PERSON , a group of investigators had arrived in the village and taken immediate action . They had submitted copies of documents that had been drawn up by the investigators on DATE , including descriptions of the scenes of the murders and of the bodies , including that of PERSON . The team had also collected cartridges and bullets ( see paragraphs CARDINAL and CARDINAL below ) . The Government denied that the investigators had ever mistreated the relatives of the victims and noted that the case file contained no complaints from the victims or anyone else of reprehensible conduct on the part of the officers of the law - enforcement bodies .

On DATE ORG opened a criminal investigation into the murders of CARDINAL men in GPE NORP under LAW of LAW ( the provision applicable to multiple murders ) . The investigation was assigned case file no . DATE .

On DATE the acting LOC prosecutor informed the prosecutor of GPE about the events and the action that had been taken by his office in the aftermath of the murders . His note referred to the information collected in PERSON , including the examination of the scenes of the crime and of the bodies and to the cartridges and bullets that had been collected . It concluded by saying , on the basis of the statements of the local residents , that the crime had probably been committed by illegal armed groups .

On DATE ORG issued a death certificate for ORG , who had been born in DATE . Death was recorded as having occurred on DATE in GPE .

At DATE the applicant wrote to ORG for Human Rights , complaining of the murder of his father and other persons in GPE NORP and of the absence of an investigation . In a reply dated DATE the Commissioner for Human Rights expressed his sympathy and promised to raise the issue with the Special Envoy of the NORP President in GPE for Rights and Freedoms , PERSON , at a meeting which was due to take place DATE .

On DATE the investigation was adjourned because the killers could not be identified . It does not appear that anyone was granted victim status in the proceedings at that time or that information about the adjournment was communicated to the ORG relatives .

On DATE the investigation was resumed . ORG ordered a number of steps to be taken , in particular eye - witnesses and other witnesses were to be questioned , victim status was to be granted to the relatives of those killed , information concerning the personalities of the deceased was to be collected and forensic and ballistic tests were to be carried out .

On DATE the investigation was adjourned . It does not appear that any investigative activity took place DATE .

In DATE the present application was communicated to ORG .

On DATE the investigation was resumed pursuant to an order of ORG . The order contained criticism of the investigation that had been carried out up to that point and referred to a number of basic investigative steps that needed to be taken ( see paragraph DATE below ) .

NORP In DATE the relatives of the CARDINAL men who had been killed in GPE NORP on DATE were questioned and granted victim status . According to the Government , they stated that their relatives had been killed in TIME of CARDINAL September CARDINAL by unknown armed men wearing masks . They did not have any suspicions as to the identity of the killers . The Government referred to their statements , but did not submit any copies . They also referred to undated statements of other residents of PERSON , who likewise did not possess any information about the identity of the killers .

The Government further submitted that in DATE a certain PERSON had been charged with participating in an illegal armed group and involvement in the murder of Mr NORP on the night of QUANTITY September CARDINAL . Later PERSON retracted his statements in this regard , alleging that they had been made under duress . In DATE the charges relating in part to his involvement in the murders on DATE were dropped . The investigation of the charges against PERSON was at some point joined with the investigation of the QUANTITY murders , but after the charges against him were dropped , the cases were separated ( see paragraphs CARDINAL below ) .

The Government added that the investigation into the murders committed in GPE on DATE had been adjourned and reopened on CARDINAL occasions .

In their observations , the ORG also stated that the relatives of PERSON had not been interviewed or been granted victim status in the proceedings in view of their departure from GPE . In DATE the investigation questioned and granted victim status to Mrs. PERSON , PERSON daughter - in - law . She stated that she had been in PERSON at the relevant time but had no additional information about the circumstances of the crime .

The Government added that the investigation had failed to establish the identity of the culprits and no one had been charged with the crime . However , the implication of servicemen or representatives of other ORG authorities had not been established . The investigation had focused on the main theory that the murders had been committed by members of illegal armed groups in order to intimidate the civilian population and to destabilise the district , especially as one of the persons killed was the son of a police officer from ORG .

Following the ORG ’s decision on admissibility in DATE and a request to produce documents from the investigation file , the Government submitted CARDINAL pages of documents from the case file , which contained CARDINAL pages . The documents are summarised below in Part B , and , in addition to the initial documents drawn up on DATE , contained the prosecutor ’s decisions to adjourn and reopen the investigation and papers relating to the charges against PERSON on the information obtained from ORG , the Government observed that the investigation was in progress and that disclosure of the documents would violate LAW , since the file contained information of a military nature and personal data concerning the witnesses . However , they agreed to produce several documents whose “ disclosure did not contravene the requirements of LAW ” .

The applicant ’s relatives stated that on DATE CARDINAL armoured personnel carriers ( APCs ) and CARDINAL LOC truck with soldiers had arrived at their family home . The applicant ’s CARDINAL brothers , ORG and GPE , had run away through the backyard when they heard the vehicles approaching . The applicant ’s mother had remained in the house with her daughters and daughters - in - law .

According to the applicant ’s mother , servicemen wearing masks had entered the house , asked the women about the whereabouts of the men , and then asked if anyone had complained “ to LOC ” . They had also asked them about electronic equipment found in the house and whether they had any weapons or money . The applicant also alleged that the military had taken a number of valuables from the house . The neighbours had later told the PERSON family that the hull and registration numbers of the APCs and the NORP truck were covered with mud and that they had not been allowed to get sufficiently close to note them down .

The raid on the PERSON house on DATE had been reported by ORG in their DATE monitor of human - rights violations in GPE . In DATE the applicant had again written to ORG , to inform him that pressure was being exerted on his family .

Early in the morning of DATE the applicant ’s family ’s house had again been searched by servicemen . After that the applicant ’s remaining family had left the house , as they feared for their lives and security and did not trust the NORP authorities any more .

The applicant presented his mother ’s written account of these events , countersigned by her and her other children who had been living with her at that time .

NORP In DATE ORG published an open letter from the residents of GPE NORP to Mr PERSON , a member of ORG . The letter , which was signed by the head of the village council and CARDINAL villagers , complained of several “ mopping - up ” operations in the village in DATE , including on DATE , when the PERSON family home was raided . The letter further listed CARDINAL inhabitants of the village who had lost their lives since DATE , among them the applicant ’s father and CARDINAL other men , who had been killed on TIME CARDINAL September CARDINAL by unknown persons wearing camouflage uniforms and masks and speaking NORP .

In DATE the applicants’ remaining family left GPE and sought asylum abroad .

The Government denied that there was any information to suggest that the members of the applicant ’s family had been ill - treated or that their homes had been searched or their possessions confiscated .

In DATE the Government informed ORG progress of the investigation and produced several documents from the case file . Altogether , they produced CARDINAL documents running to CARDINAL pages from the file , which , as can be ascertained from the page numbering , comprised CARDINAL pages . Below is a summary of the documents concerned .

On DATE the investigative group of ORG compiled a report on the scene of the crime . The CARDINAL - page handwritten document contained a description of each individual site where the killings had been carried out , a brief description of the bodies of the victims and a list of the cartridges and bullets that had been collected at the sites , some of which bore production numbers . In relation to the applicant ’s father the report read : “ the body of PERSON was examined in his house . The body bears CARDINAL gunshot wounds to the dorsum and CARDINAL to the head : CARDINAL to the back of the head and CARDINAL to the right temple area . ”

On DATE the LOC acting prosecutor drew up the following account of the events for ORG :

“ At TIME on CARDINAL September CARDINAL ORG was informed by ORG of the ORG ( ORG ) of the murder of CARDINAL inhabitants of GPE NORP . Following this message , at TIME a group of [ investigators of the district prosecutor ’s office and the ORG ] set out to the scene of the crime . There , a number of operative and immediate investigative steps were taken , as a result of which it was possible to establish the following .

On TIME DATE , at TIME , a group of persons using a number of vehicles ( probably including a grey NORP car without number plates ) had burst into the village . The group was composed of CARDINAL persons wearing new camouflage uniforms of a green - yellow colour and armed with automatic weapons , hand - pistols and knives . TIME the group murdered CARDINAL inhabitants of the village ; CARDINAL person was wounded and a NORP car was damaged by gunfire .

PERSON , who was born in DATE in GPE NORP and was of NORP ethnic origin and disabled , was taken out of his house at CARDINAL FAC and shot dead in the street , QUANTITY from his home . The body bears gunshot wounds to the head ( CARDINAL ) and back ( CARDINAL ) and a knife wound to the chest .

PERSON , who was born on CARDINAL in ORG and was of NORP ethnic origin and unemployed , was killed in his house at FAC , in the presence of his parents . The body bears gunshot wounds to the head ( CARDINAL ) , back and legs ( CARDINAL ) .

PERSON , who was born on CARDINAL in the village of PERSON and was of NORP ethnic origin and unemployed , was taken out of his house at LOC by the assailants and killed in the courtyard of the house at LOC . The body bears injuries from blunt instruments to the head , gunshot wounds to the chest and abdomen ( CARDINAL ) .

Elmurzayev PERSON ( son of PERSON ) , who was born on CARDINAL in GPE NORP and was of NORP ethnic origin and disabled , was killed in his house at LOC . The body bears gunshot wounds to the neck ( CARDINAL ) and chest ( CARDINAL ) .

PERSON , who was born in DATE in GPE NORP and was of NORP ethnic origin , lived in his house at LOC . He was taken out of his house by the assailants and killed in FAC , QUANTITY away . The body bears gunshot wounds to the back ( CARDINAL ) and head ( CARDINAL ) .

The same armed persons also attacked Moldy [ M. ] , who was at his home at CARDINAL FAC . He received gunshot wounds to both legs and the abdomen . However , he managed to escape from his assailants and his neighbours immediately took him to hospital in a LOC car , where he received first aid . While [ M. ] was being driven to the hospital , the vehicle [ he was travelling in ] was shot at and damaged .

After the assault the criminals left PERSON in an unknown direction .

As the statements of the witnesses show , the criminals used automatic weapons ( AK , ORG ) , hand pistols ( TIME ) and knives . The firearms were equipped with silencers . Attempts from fellow villagers to intervene were cut off by threats and shots fired in the air . Between themselves the criminals spoke LANGUAGE , some with a NORP accent . They did not make any demands of the victims or take any property . They acted in a coordinated way , according to a plan , with remarkable audacity and cynicism . The murders were committed in the presence of relatives and fellow villagers .

The victims had no family , personal or business connections with or dependencies on each other . They did not participate in political or public life . There is no information concerning their possible involvement with illegal armed groups .

During the on - site inspection each of the places where the victims were killed was examined , as were the sites where [ Mr M. ] was attacked and the NORP car shot at . The investigators took a large number of photographs of the relevant spots and traces of blood and collected a number of cartridges and bullets ( QUANTITY , CARDINAL,CARDINAL DATE that is to say AKS-CARDINALU and ORG accordingly , QUANTITY ) .

On DATE ORG opened criminal investigation file no . DATE under LAW part CARDINAL ( a ) of LAW . ...

The main theory of the investigators is that the crime was committed by members of illegal armed groups in order to scare the local population and to destabilize the situation in LOC , in order to provoke a conflict between the population and the acting federal authorities . The investigators are also looking at other possible explanations .

It should further be noted that the crime has been widely reported and prompted an outcry by a large section of the public . It has given rise to antagonism on the part of the population of NORP towards the law - enforcement authorities and allowed them to disparage the work of the law - enforcement bodies and the federal authorities in general . The villagers are certain that the crimes were committed by members of illegal armed groups . The investigative team who came to PERSON on DATE were criticised by the local residents who said that the federal authorities and law - enforcement bodies were unable to protect them against criminal attacks by illegal armed groups ; as an example of this they referred to the events of CARDINAL DATE . ”

On DATE the investigation was adjourned because the identity of the killers could not be established .

On DATE the investigation was resumed . ORG ordered a number of steps to be taken , in particular that eye - witnesses and other witnesses be questioned , victim status be granted to the GPE relatives , information concerning the personalities of the deceased be collected , and forensic and ballistic expert reports carried out .

On DATE the investigation was adjourned . It does not appear that this information was conveyed to anyone outside ORG .

DATE . On DATE the investigation was resumed pursuant to an order of ORG . The order noted that CARDINAL Moldy M. , who had been wounded on DATE , had not been questioned . The district prosecutor stated that he should be questioned and granted victim status in the proceedings and that a medical expert report should be ordered . Furthermore , the investigating authorities were to collect statements from relatives of the CARDINAL men who had been killed and to accord them victim status . They were also to question neighbours , police officers and local public officials about the personalities of the victims and the circumstances of the crime . They were instructed to make an official inventory of the real evidence pertaining to the case , notably the bullets and cartridges , and to obtain the results of a ballistic expert ’s report , which had apparently been commissioned in DATE .

In DATE LOC extended the term of the investigation for DATE . He noted that a number of procedural steps had been carried out in the meantime , in particular , Mr PERSON had been questioned and , he and the relatives of the QUANTITY persons killed had been granted victim status in the proceedings . Witness statements had been collected from villagers , police officers and local officials in GPE NORP . A number of expert reports had been commissioned and in some cases the results had already been obtained . However , a number of other investigative actions were still pending and therefore the term of the investigation was extended .

On DATE a certain PERSON was arrested and charged with participation in an illegal armed group ( LAW part CARDINAL of LAW ) and murder committed by a group ( LAW part CARDINAL ( j ) ) .

On DATE the acting deputy to ORG ordered the joinder of the proceedings in criminal investigation file no . DATE against PERSON and criminal investigation file no . DATE concerning the murder of QUANTITY persons in GPE NORP on DATE . The decision referred to a statement of DATE in which Mr PERSON had admitted his involvement in the murders . He stated that since DATE he had been a member of an illegal armed group , at that time headed by “ PERSON ” . In DATE , before becoming a full member of the gang , he had been asked by CARDINAL of its members to assist in “ settling the scores ” with the NORP local police inspector [ Mr GPE ] . It was thus established that the investigation concerned the same set of events and the proceedings were joined to case no . DATE .

PERSON was questioned again on DATE and stated that in the evening of CARDINAL September CARDINAL he had been asked to keep watch outside the house of the police officer . He had heard shots fired inside the house . After TIME he saw that other members of the gang had brought an older man to the house and heard further shots being fired . The gang members later told him that they had not found the police inspector at home and had killed his son [ Zaur NORP ] in his bed because they had mistaken him for his father . He had later learnt that the gang members had killed several other persons in the village that night .

On DATE Mr PERSON stated that he had made his statement under duress from the police officers who had arrested him and that he had not taken part in the killing of PERSON . His relatives testified that PERSON had been in ORG from DATE to DATE , together with the rest of the family . He had not been in GPE even for short periods prior to DATE . On DATE the murder charges were withdrawn . As a result , on DATE the CARDINAL criminal cases were again severed and the QUANTITY murders of CARDINAL September CARDINAL were reassigned to case file no . DATE . In DATE Mr PERSON was charged with participation in an illegal armed group , armed robbery , the illegal handling of arms and explosives and stealing identity documents .

On DATE investigation no . DATE was adjourned . The victims were informed of that decision and of the possibility of an appeal .

On DATE the investigation was resumed , before being further adjourned on DATE and reopened on DATE . The victims were informed .


Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Elisabet Fura;Josep Casadevall;Luis López Guerra

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

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

NORP The applicant ran a contracting business dealing with excavation and drilling of wells for fresh water and geothermal heating . In DATE and DATE he purchased CARDINAL excavators , for which he obtained financing from CARDINAL credit institutions . According to the CARDINAL contracts for purchase by instalments , the excavators were to remain the property of the credit institutions until the full purchase price had been paid . The interest fixed in the contracts was CARDINAL and PERCENT , respectively .

NORP In DATE , the applicant ’s contracting business went bankrupt . As a consequence , by a decision of ORG ( tingsrätten ) of PERSON of DATE , a third credit institution , which apparently had acquired title to the CARDINAL contracts mentioned above , claimed possession of the CARDINAL excavators . According to the applicant , the credit institution did not render any account to him concerning the further administration of the excavators but he learned much later that they had been sold to a buyer in the GPE , allegedly for a price much below their market value .

Apparently , title to the CARDINAL contracts were later acquired by a fourth credit institution , ORG ( hereinafter “ NORP ” ) . In DATE , ORG applied to ORG ( kronofogdemyndigheten ) for a payment order ( betalningsföreläggande ) against the applicant . It claimed MONEY ( SEK ; corresponding to MONEY ( ORG ) ) in recovery of the debt and DATE interest on overdue payments of PERCENT . According to the applicant , neither that application nor ORG injunction to reply was served on him .

By a decision of DATE , ORG issued a payment order , in accordance with ORG ’s application . The decision stated that the applicant had been served with the ORG ’s reply injunction but had failed to contest the bank ’s claim . According to the applicant , as with the application by ORG and the ORG ’s reply injunction , he did not receive the payment order . It appears , however , that the order was sent to his registered address at GPE . This address was not changed by the applicant although , after the bankruptcy , he bought a caravan , moved away from the house he had been renting and came to live , for DATE , at various temporary places . Allegedly , in DATE , he reported to the authorities that he lived in GPE .

On DATE the applicant received from a debt - recovery company owned by ORG a claim for repayment of the debt , now amounting to SEK CARDINAL,CARDINAL plus SEK CARDINAL,CARDINAL,CARDINAL ( approximately EUR CARDINAL ) in accrued interest . Apparently without having received a reply from the applicant , ORG subsequently applied to ORG for enforcement of the DATE payment order .

In a reply to the ORG dated DATE , the applicant contested the claim which , he asserted , was completely unknown to him and , in any event , statute - barred . He further stated that , if the case was not dismissed , he wished to see the original documents relating to the debt with his signature .

By a decision of DATE , ORG dismissed ORG ’s claim . Basing itself on the incorrect assumption that the debt in question concerned a consumer credit – for which a DATE period of limitation applied , as opposed to DATE for a commercial credit DATE , the ORG found that the DATE payment order was no longer enforceable .

Handelsbanken appealed to ORG . By a letter of DATE , the applicant ’s legal counsel requested that ORG be ordered to give information on how and when ORG ’s application for a payment order and the ORG ’s subsequent decision of DATE had been served on the applicant .

DATE , ORG informed counsel for the applicant by telephone that the entire file had been destroyed , as DATE had passed since the DATE decision .

On DATE ORG rejected ORG ’s appeal against ORG decision of DATE . The reasons were , however , different from those given by the ORG . ORG noted that , under sections CARDINAL and CARDINAL of LAW ( Preskriptionslagen , CARDINAL ) , the running of the period of limitations was interrupted by an application to a court or to ORG , such interruption , however , requiring additionally that the debtor had been served with the creditor ’s application . The court further stated that the burden to prove that such service had taken place rested with the creditor , in this case ORG , which had had the opportunity to secure evidence in this respect . Noting that the only proof of service that had been presented was the statement in the decision of DATE that the applicant had been served with the ORG ’s reply injunction , the court concluded that ORG had failed to show that the running of the period of limitation had been interrupted .

Handelsbanken appealed to ORG ( PERSON hovrätt ) . Confident that the appellate court would find in his favour , the applicant stated , in a submission of DATE , that there seemed to be no reason to have an oral hearing since the case concerned “ a simple matter of law ” .

Further on DATE the applicant instituted proceedings before ORG ( PERSON hovrätt ) , requesting that ORG decision of DATE be set aside due to a miscarriage of justice ( domvilla ) . He claimed that the decision had been taken without his having been duly served with the injunction to reply , in accordance with the provisions of LAW ( PERSON ) . He did not invoke any evidence .

Handelsbanken argued in these proceedings that the payment order had been sent in the applicant ’s name to his registered address . In relation to the applicant ’s claim that he had not had any contact with ORG after the excavators had been reclaimed in DATE , ORG stated that it had sent letters by ordinary mail to the applicant on CARDINAL occasions DATE requesting him to pay the debt . Due to a special agreement with the postal service any letter not successfully delivered to the addressee would usually be returned , but none of the letters sent to the applicant had allegedly been returned . Furthermore , ORG had already applied for enforcement of the payment order in DATE but had been informed by ORG , in a report of CARDINAL DATE , that the applicant lacked attachable property . In the same report , the ORG stated that it had been in contact with the applicant during the course of the matter . Furthermore , ORG asserted that , according to a note made by the above - mentioned debt - recovery company , the applicant had called the company on DATE and asked for copies of “ everything ” . Consequently , ORG strongly doubted that the applicant , before receiving the application for enforcement on DATE , had been unaware of its claim and the payment order .

The submissions of ORG were sent to the applicant but he did not submit any comments in reply .

In the present proceedings before the ORG , the applicant claimed that after his bankruptcy he had not had any contact whatsoever with ORG until DATE when he received the application for enforcement of the payment order . He had felt that the ORG had caused him harm in the bankruptcy proceedings and had not wished to have any further contact with the ORG . He further rejected ORG ’s assertion that he had called the debt - recovery company in DATE . In any event , he asserted that such a contact could not have cured the failure in DATE to properly serve him with the injunction to reply in the payment order proceedings . These statements were , however , not submitted to ORG .

By a decision of DATE , ORG rejected the applicant ’s request in regard to miscarriage of justice . The court first rejected ORG ’s objection that the case should be dismissed on the ground that the matter was already pending before ORG ( lis pendens ) . In so doing , it stressed that ORG case concerned the question whether the claim was statute - barred whereas the case before ORG determined whether any procedural error had been committed in the handling of the claim . With regard to the substance of the latter issue , the court noted that the decision of ORG stated that the applicant had been duly served and considered that there was no reason to question the accuracy of this statement . Consequently , there had not been any miscarriage of justice .

On DATE ORG ( Högsta domstolen ) refused leave to appeal against the above decision of ORG .

In the enforcement proceedings , pending before ORG , the applicant changed his view on the necessity of an oral hearing following the decision by ORG in the proceedings concerning miscarriage of justice . Thus , he asked ORG to hold a hearing , at which he wished to be heard about the service of documents in the case . The court , however , informed the parties that it found a hearing unnecessary . The applicant was given an opportunity to submit final observations in writing . He did so and , at the same time , reiterated his request for a hearing .

By a decision of DATE , ORG reversed ORG decision of DATE . The appellate court interpreted the preparatory works ( prop . CARDINAL/CARDINAL:CARDINAL , p. CARDINAL et seq . ) of section CARDINAL , subsection CARDINAL of LAW ( ORG , CARDINAL ) and found that the requirement to serve the application for a payment order on the debtor in order to interrupt the running of the period of limitations did not apply to situations where the matter had been finalised with a decision by ORG . Instead , the requirement of service , contained in this rule of exception , was aimed at cases where a creditor applied for a payment order and then withdrew the claim before service had taken place , with the purpose of starting a new period of limitations . Consequently , in assessing the period of limitations in the present case , it was irrelevant whether the payment order had been properly served or not . That period should therefore be counted from DATE , the date of the ORG ’s decision . The court noted that it was undisputed that ORG ’s claim for enforcement had been introduced within DATE from DATE .

ORG went on to examine the applicant ’s objection that the payment order had been issued under such circumstances that there were reasons to quash it . The court noted that a writ of execution could be quashed in enforcement proceedings only in highly exceptional situations . Noting that the applicant ’s objection had been examined in the case concerning miscarriage of justice and that that examination had not led to the order being quashed , the court found no reason to question the validity of the payment order as a writ of execution .

The Court of Appeal therefore concluded that there were no impediments to the enforcement of the payment order and returned the matter to ORG for further processing .

As questions concerning service of documents were of no relevance to the determination of the case , ORG further found that there was no reason to hold an oral hearing and , accordingly , refused the applicant ’s request in this respect .

On DATE ORG refused the applicant leave to appeal against ORG decision of DATE .

Chapter CARDINAL of LAW ( ORG ) contains provisions on execution titles . LAW provides the following on objections to enforcement :

“ If the defendant shows that he has satisfied an obligation to pay or other obligation to which the application for enforcement relates , enforcement may not take place . This also applies if the defendant as a set - off invokes a claim that has been confirmed by an execution title which may be enforced or which is based on a promissory note or other written evidence of debt , and the general preconditions for set - offs are met .

Nor may enforcement take place if the defendant claims that another circumstance relating to the dealings between the parties constitutes an impediment to enforcement and the objection can not be ignored .

If a situation referred to in the first or second paragraph is at hand and a measure of enforcement has already been taken in the case , the measure shall be annulled , if this is possible .

The decision of ORG by reason of an objection referred to in the first or second paragraph does not prevent the matter from being considered by a court . ”

An objection based on a circumstance relating to the parties’ dealings may only concern the substantive judicial relationship between the parties , for instance that the person seeking enforcement has granted the defendant a respite for the payment , that they have agreed on a service in return for the payment or that the execution title has become statute - barred ( see PERSON , PERSON , PERSON , PERSON – en kommentar ( commentary to LAW ) , CARDINALrd edition ( DATE ) , pp . CARDINAL - CARDINAL ) .

In a case where the defendant had claimed that a decision constituting an execution title was unlawful or at least incorrect , ORG , which dismissed the objection by a decision of DATE , stressed that the scope for rejecting an execution title in an enforcement case is extremely limited ( ORG DATE , p. CARDINAL ) . In a more recent decision , taken on DATE ( NJA DATE , p. CARDINAL ) , ORG expressed the following :

“ A basic principle in cases of enforcement is that the enforcing authority has no right to examine anew issues that have been determined in the execution title . Upon appeal in enforcement cases , the courts’ powers are no wider than those of ORG .

Accordingly , in so far as the courts’ determination is concerned , objections against an execution title , which refer to circumstances dating back to time before it was issued , can not be examined in the enforcement case . In respect of decisions taken by an administrative authority , it is likely that there is a somewhat wider scope for such objections , but then they would , as a rule , concern issues that have not been examined in the execution title . ”

Section CARDINAL of LAW reads as follows :

“ Where a limitation period is interrupted through the commencement of legal proceedings or otherwise through the pleading of a claim as stated in DATE , subsection CARDINAL , a new limitation period shall run in accordance with the provisions of section CARDINAL from DATE of the publication of a judgment or a final decision or from DATE on which the legal proceedings are concluded in any other way . Where , prior to the expiry of the new limitation period , the case is appealed or the proceedings are resumed for any other reason , the period of limitation is interrupted , and a new period of limitation shall run from DATE of the conclusion of the resumed proceedings .

However , where the legal proceedings are concluded without the debtor having been served with , or otherwise informed of , the creditor ’s statement of claim , the period of limitation shall be calculated as if no interruption had occurred . The claim shall nevertheless not be barred by the expiry of the limitation period DATE after the conclusion of the proceedings .

The period of limitation may no be extended more than once pursuant to the provisions of the second paragraph , second sentence . ”


CASE OF BOGDANSKA DUMA v. "THE FORMER YUGOSLAV REPUBLIC OF MACEDONIA"

Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in GPE .

On DATE Mr. PERSON , the applicant ’s former husband , bought a state - owned apartment and a garage ( “ the property ” ) . By a deed of gift of DATE ( “ the DATE gift ” ) , Mr PERSON transferred CARDINAL of the property into the applicant ’s possession . The spouses divorced in DATE . By court decisions of DATE and DATE respectively , the DATE gift was rescinded .

The present case concerns CARDINAL sets of proceedings concerning the property at issue .

On DATE Mr PERSON and PERSON , Mr PERSON ’s parents ( “ the plaintiffs ” ) , brought a civil action against the applicant and Mr PERSON to establish their title to the property and to rescind the DATE gift . The plaintiffs alleged that they had transferred to their son the right to buy the property and that they had paid the price .

Of CARDINAL hearings scheduled between CARDINAL DATE and DATE , none was rescheduled on the applicant ’s request .

Sixteen hearings fixed between CARDINAL DATE and DATE were adjourned because of incorrect service of the court summons , late exchange of applications by the parties , belated submissions or the failure of the national authorities and the parties to respond to court orders in time . A hearing fixed for CARDINAL DATE was postponed due to the applicant ’s absence for work - related reasons .

On DATE ORG upheld the plaintiffs’ claim and recognised their title to the property . It rescinded the DATE gift and declared that PERSON had the title to CARDINAL of the property . The court established that Mr PERSON had tenancy of the property since DATE and that the plaintiffs had authorised the defendants to buy the property under the condition of caring for them and living under the same roof . As the applicant had divorced her husband and ceased to live with the plaintiffs , the court held that the right to buy the apartment remained groundless and considered it as if it had not been established .

On DATE ORG accepted an appeal by the applicant and remitted the case for a fresh consideration . It established that the lower court had not given sufficient reasons for its decision . It further ordered a stay of the proceedings pending assessment of the validity of the sale agreement of DATE , the subject of other proceedings .

DATE and DATE the first - instance court listed CARDINAL hearings which were re - scheduled for similar reasons as those described in paragraph CARDINAL above . The applicant did not attend CARDINAL hearings . During this time , the applicant claimed title to CARDINAL fifths of the property , as a joint property acquired through marriage . She further proposed an out - of - court settlement on CARDINAL occasions and requested the court to expedite the proceedings .

The proceedings resumed on DATE when a new judge was assigned to sit in the case . The court listed CARDINAL hearings until DATE . The proceedings are still pending before ORG .

On DATE Mr PERSON requested annulment of a deed of gift of DATE ( “ the DATE gift ” ) under which the applicant had transferred into the possession of their CARDINAL daughters CARDINAL of the property . Referring to the annulment of the DATE contract , Mr PERSON claimed that the applicant had not been entitled to dispose of the property . On DATE Mr PERSON extended his claim against their daughters . On DATE , CARDINAL of the daughters , PERSON , came of age .

On DATE ORG granted Mr ORG ’s action and annulled the DATE gift . It further ordered their daughters to restore the property into Mr PERSON ’s possession . Lastly , it ordered the applicant not to dispose of the property . The court established that the applicant had made the DATE gift while the proceedings regarding the DATE gift had been pending on appeal . It ruled that the applicant accordingly had known or ought to have known that she could not make the DATE gift while the proceedings in respect of the DATE gift were pending . It dismissed the applicant ’s objection that her lawyer had not been provided with explicit authority to represent PERSON In this respect , it held that the applicant had been her daughters’ statutory guardian and they all acted as a single party to the proceedings . The court concluded that they had not had conflicting interests , but that the applicant had acted on behalf of her daughters .

On DATE ORG upheld the lower court ’s decision concerning the annulment order and injunction . It found no reasons to depart from the established facts and legal reasoning given by the lower court in respect of the deed of gift . It ruled , however , that the lower court had wrongly ordered the applicant ’s daughters to restore the property into Mr PERSON ’s possession . The applicant unsuccessfully requested the public prosecutor to lodge with ORG a request for the protection of legality .

On DATE ORG Instance dismissed the remainder of Mr PERSON ’s claim .

These proceedings ended on DATE when the first - instance court ’s decision concerning trial costs became final .