Christos Rozakis;Dean Spielmann;Elisabeth Steiner;George Nicolaou;Giorgio Malinverni;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

At the material time the applicant , who has retired in the meantime , was a practising lawyer . For DATE he represented company ORG , which traded in cars . In DATE insolvency proceedings were commenced before the St ORG ( PERSON ) in respect of company H.

NORP In these proceedings the applicant asserted claims totalling CARDINAL,CARDINAL,CARDINAL.CARDINAL euros ( EUR ) . The liquidator only acknowledged claims in the amount of ORG GPE and refused to admit the remaining claim of ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL to the insolvency proceedings . According to the ORG , the liquidator acknowledged the applicant 's claims insofar as they related to services rendered to the insolvent company ORG He rejected the remainder of the applicant 's claim as it related to services rendered to other entities within the group of companies .

The applicant brought proceedings under section CARDINAL of LAW ( GPE ) before the St ORG , requesting a declaratory decision that he was entitled to claim ORG CARDINAL from the company 's assets . He estimated the amount in dispute ( PERSON ) , which serves as the basis for calculating court fees , lawyers ' fees and other procedural costs , at LAW . Apparently this amount was what he expected to obtain as his quota in the insolvency proceedings . On the basis of this estimated amount in dispute , the applicant paid court fees of LAW .

By decision of DATE the PERSON Regional Court , of its own motion , fixed the amount in dispute at ORG CARDINAL,CARDINAL,CARDINAL.CARDINAL , holding that the claim was of a pecuniary nature and could not therefore be the subject of an estimate .

The applicant appealed claiming , inter alia , that the fixing of the amount in dispute violated his right of access to a court . He argued that since the liquidator had contested his claim , he had no choice other than to request a declaratory decision under section CARDINAL of LAW in order to participate in the insolvency proceedings , in which he could at best hope to obtain a small percentage of the overall amount claimed . It was excessive to take the overall amount claimed as the amount in dispute , because the ensuing court fees would exceed the amount he could realistically expect to obtain . The contested decision therefore prevented him in practice from pursuing his claims .

On DATE ORG ( Oberlandesgericht ) dismissed the applicant 's appeal . It referred to its own established case - law and to ORG case - law which confirmed the view that in proceedings under section CARDINAL of LAW the amount the claimant wished to assert in the insolvency proceedings had to be taken as the amount in dispute , without regard to the quota likely to be obtained .

On DATE ORG rejected the extraordinary appeal on points of law lodged by the applicant , without examining the merits .

At some later stage the applicant and the liquidator agreed to suspend the proceedings , apparently in order to reach an out - of - court settlement . On DATE the liquidator , noting that it had not been possible to resolve the matter , requested ORG to resume the proceedings . A hearing took place on DATE . The proceedings are currently still pending .

On DATE the costs officer ( Kostenbeamter ) of the St ORG ordered the applicant to pay court fees of ORG CARDINAL,CARDINAL.CARDINAL pursuant to section CARDINAL of the ORG fees act ( see paragraph CARDINAL below ) .

Subsequently , the applicant filed an application for rectification . He claimed that ORG CARDINAL,CARDINAL and not EUR CARDINAL,CARDINAL,CARDINAL.CARDINAL should be taken as the basis for calculating the court fees . He repeated his argument that the request for a declaratory decision under section CARDINAL of LAW had been aimed solely at establishing whether he was entitled to participate in the insolvency proceedings , in which he could at best expect to obtain a small percentage of the overall amount claimed . The court had therefore wrongly found that the claim at issue was of a pecuniary nature and that the amount in dispute should be equal to the amount claimed .

By decision of CARDINAL DATE the President of ORG dismissed the applicant 's request for rectification , stating that the costs officer was bound by the decision of DATE which had fixed the amount in dispute .

The applicant lodged a complaint with ORG ) , in which he repeated his allegation that the fixing of the amount in dispute and the ensuing costs order violated his right of access to a court .

On DATE ORG dismissed the applicant 's complaint for lack of prospects of success .

On DATE ORG ( Verwaltungsgerichtshof ) dismissed the applicant 's complaint as being unfounded . It referred to its established case - law according to which , in proceedings concerning a pecuniary claim , the amount of the claim was to be taken as the amount in dispute . Consequently , there was no scope for an assessment of the amount in dispute by the claimant . The court noted that this case - law also applied to proceedings under LAW . Again referring to its established case - law , ORG confirmed that the costs officer and the President of ORG were bound by the decision of DATE which had fixed the amount in dispute .

NORP The decision was served on the applicant on DATE . The applicant paid the court fees in their entirety on DATE .

LAW ( PERSON ) deals with court fees in civil proceedings . According to section CARDINAL of that Act , the amount in dispute serves as the basis for calculation of the court fees , unless otherwise provided .

Under LAW of LAW , court fees are fixed as a lump sum depending on the value in dispute . For an amount in dispute exceeding ORG CARDINAL,CARDINAL they are fixed at PERCENT of the amount in dispute , plus ORG CARDINAL,CARDINAL , for first - instance proceedings .

The detailed table for court fees for civil proceedings at first instance as in force at the material time reads as follows :

amount in dispute court fee

up to MONEY

above MONEY up to FAC euro MONEY

above MONEY up to MONEY CARDINAL

above MONEY up to MONEY CARDINAL

above MONEY up to MONEY CARDINAL

above MONEY up to MONEY CARDINAL

above MONEY up to MONEY QUANTITY

above MONEY up to MONEY MONEY

above MONEY up to MONEY MONEY

above MONEY up to MONEY MONEY

above MONEY up to MONEY MONEY

above MONEY up to MONEY MONEY

above MONEY PERCENT of the amount in dispute

CARDINAL plus MONEY

A creditor who wishes to participate in the proceedings must register his claims , indicating the facts and evidence on which they are based and their ranking ( section CARDINAL ) . A claim is deemed to be established if the trustee in bankruptcy or liquidator has acknowledged it and no other creditor has contested it .

If a claim is contested , the creditor has to bring an action under section CARDINAL of LAW which , in so far as material , reads as follows :

“ Creditors whose claims continue to be contested as to their accuracy and ranking may seek have them established ... by means of a complaint directed against all the contesting parties . ”

According to ORG case - law ( see , as a leading case , QUANTITY g , judgment of DATE ) , the amount in dispute for the purposes of an action under section CARDINAL of LAW is the amount of the claim which the creditor seeks to have admitted in the insolvency proceedings . In the above - mentioned case , ORG dealt with the claimant 's argument that it would be more appropriate to make an estimate of the amount in dispute . The court noted that as a general rule there was no scope for making an estimate of the amount in dispute where the subject of the action for a declaratory decision was a pecuniary claim . The question of whether a claim was recoverable or not was not material for fixing the amount in dispute , and in that respect there was no difference between proceedings under section CARDINAL of LAW and other civil proceedings . Moreover , an action under section CARDINAL also had effects outside the insolvency proceedings .

Regarding the costs of proceedings concerning the admission of claims , section CARDINAL of LAW provides as follows :

“ The procedural costs are to be met from the estate in so far as the trustee in bankruptcy or liquidator has participated in the contesting of claims . The court may , however , require the ORG or liquidator to repay the procedural costs to the estate if he or she has contested claims or conducted the proceedings in a vexatious manner . ”

Legal aid can be obtained under LAW ( Zivilprozeßordnung ) which , in so far as relevant , provides as follows :

“ Natural persons who are a party to proceedings shall be granted full or partial legal aid to the extent that they are unable to pay the cost of participating in the proceedings without adverse effects on their capacity to meet necessary expenditure , and the intended action or defence is not manifestly vexatious or without prospects of success . Necessary expenditure shall be taken to mean the expenditure required to provide the person concerned and his or her dependants with a basic standard of living . ”

Section CARDINAL § CARDINAL of the Code of Civil Procedure enumerates the costs which can be covered by legal aid :

“ Legal aid in respect of a specific set of proceedings may cover ... the following :

( CARDINAL ) NORP exemption from :

( a ) NORP court fees ... ”

Regarding the collection of court fees , section CARDINAL of LAW ( Gerichtliches Einbringungsgesetz ) , in so far as material , provides :

“ ( CARDINAL ) A request for extension of the time - limit for payment , or for payment in instalments , may be granted if collection would cause particular hardship to the person concerned ...

( CARDINAL ) A request for fees and costs to be reduced may be granted if their collection would cause particular hardship to the person concerned ... ”


Remainder inadmissible;Violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);No violation of Art. 3 (substantive aspect);Violation of Art. 3 (procedural aspect);Violation of Art. 5-4;Non-pecuniary damage - award

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Elisabeth Steiner;Khanlar Hajiyev;Sverre Erik Jebens

The applicants were born in DATE and DATE respectively and live in the town of ORG in GPE . They are son and father .

On DATE criminal proceedings were instituted against the first applicant . He was suspected of having broken into the online security system of an NORP bank , ORG ( hereafter DATE the ORG ) , and having stolen the ORG ’s client database . According to the prosecution , in DATE the first applicant contacted the ORG using a fake name . He demanded money in exchange for a promise not to publish the ORG ’s database on the Internet . The ORG agreed to pay and the first applicant provided it with his real name and address . At the same time he published a part of the ORG ’s database on the Internet . The ORG transferred MONEY to the first applicant .

At DATE the first applicant was charged with aggravated extortion . He gave a written undertaking not to leave the town .

On DATE a deputy prosecutor general of ORG authorised the first applicant ’s placement in custody on the ground that he had been charged with a serious criminal offence and was liable to pervert the course of justice , reoffend or abscond .

The first applicant was arrested on DATE and placed in a detention ward at Surgut police station . On DATE he lodged a complaint with the ORG challenging the grounds for his placement in custody . His lawyer submitted a separate complaint . On DATE the first applicant was transferred to a detention facility in LOC .

On DATE the ORG declined to examine the first applicant ’s and his lawyer ’s complaints , noting that it did not have territorial jurisdiction over the matter . ORG advised the first applicant and his lawyer to lodge complaints with a court in GPE .

On DATE the first applicant ’s counsel , PERSON . , lodged a complaint with ORG arguing that the first applicant ’s arrest and detention were unlawful .

On DATE the ORG declined to examine the complaint giving the same reasons as those cited in its decision of DATE . On DATE the Khanty - Mansi Regional Court upheld ORG findings .

NORP On DATE PERSON . complained to ORG that the first applicant ’s arrest and subsequent detention were unlawful and asked for his release .

DATE the ORG declined to examine the complaint , once again relying on a lack of territorial jurisdiction . On DATE the Khanty - Mansi Regional Court , acting in its appellate jurisdiction , confirmed the lawfulness of ORG decision .

On DATE ORG carried out a psychiatric examination of the first applicant and issued an expert report . The relevant part of the report read as follows :

“ ... the psychiatric examination concludes that [ the first applicant ] is showing signs of brief reactive psychosis .

The examinee reports that the illness emerged after the offence , during his stay in the temporary detention facility where he developed strong feelings of fear and hopelessness accompanied by psychologically understandable feelings of depression as a result of additional traumatic experiences , systematic ill - treatment , and physical and psychological abuse inflicted on him by his fellow inmates . There is no information in the medical record concerning [ the first applicant ’s ] mental health during his stay in the hospital of the temporary detention facility with concussion and broken ribs .

[ The first applicant ] can not take part in any investigative or judicial activities .

[ The first applicant ] needs to be placed in a psychiatric hospital for compulsory treatment ... until his recovery from the psychosis ... ”

On DATE a deputy prosecutor of ORG sent the case to ORG for trial . He noted that the first applicant was mentally ill , presented a danger to public safety and was liable to cause substantial damage . The deputy prosecutor argued that compulsory measures of a medical nature ought to be applied to the first applicant .

On DATE the ORG fixed the first hearing for DATE . It also examined a request from the second applicant seeking his son ’s release or , alternatively , his transfer to a psychiatric hospital . ORG decided that the first applicant was to remain in custody because he had been charged with a serious criminal offence . However , he was to be transferred to ORG in view of the state of his mental health . The first applicant was placed in that hospital on DATE .

On DATE the Presidium of the Khanty - Mansi Regional Court considered , by way of supervisory review , that on DATE ORG had incorrectly applied the law and had wrongfully concluded that it had not had territorial jurisdiction over the matter of the first applicant ’s detention . The ORG quashed the decision of CARDINAL DATE and sent the case to ORG for fresh examination .

In the meantime , on DATE the ORG found that the first applicant had committed aggravated extortion but absolved him of criminal responsibility finding that he was mentally incapacitated . ORG ordered that compulsory measures of a medical nature should be applied to the first applicant and that he should be placed in a psychiatric hospital for general care . The judgment was not appealed against and became final .

On DATE the ORG declined to re - examine the complaints of the first applicant and his lawyer that his arrest and detention were unlawful . ORG held that on DATE it had examined the criminal case , found that the first applicant had committed aggravated extortion and ordered that he be placed in a psychiatric hospital . It had no competence to examine the subject of the applicant ’s detention after the criminal case had been decided on its merits .

On DATE the ORG of the Khanty - Mansi Regional Court , by way of supervisory review and giving the same reasons as it had given on DATE , quashed the decisions of DATE and DATE by which the lawyer ’s request of DATE for the first applicant ’s release had been refused . The ORG ordered an examination of the detention on its merits .

On DATE ORG , having re - examined the lawyer ’s complaint concerning the lawfulness of the first applicant ’s detention , dismissed it finding that the criminal case had already been closed , the first applicant was being detained by virtue of the final judgment and ORG could no longer examine the matter .

On DATE the Khanty - Mansi Regional Court quashed the decision of CARDINAL DATE and ordered a fresh examination of the applicant ’s detention . The relevant part of the decision read as follows :

“ By virtue of LAW , parties to criminal proceedings and other persons , in so far as their interests have been affected by procedural actions and decisions , can appeal against [ the ] actions and decisions of a pre - trial investigation body , an investigator , an interviewing officer , a prosecutor or court in accordance with the procedure established by the present Code .

LAW sets forth the judicial procedure for an examination of such complaints .

Examination of the presented materials shows that the [ town ] court did not in fact examine the grounds for [ the first applicant ’s complaints ] or check the lawfulness of the actions and decisions of the indicated persons .

The record of the court hearing does not show which materials were examined by the court .

The [ town ] court ’s conclusion that the subject of the complaint no longer existed was not based on law ; the fact that a court has given a judgment in a criminal case can not serve as a ground for declining to examine the lawfulness of procedural actions and procedural decisions taken in the course of that criminal case and affecting the [ first applicant ’s ] interests , [ and can not serve as a ground ] for declining to examine the [ first applicant ’s ] complaints .

Moreover , that complaint was lodged with the court long before the examination of the criminal case by the court . ”

On DATE the ORG found that the first applicant ’s arrest and subsequent detention had been lawful . The first applicant ’s lawyer attended the hearing . However , the second applicant , despite having been properly summonsed , defaulted and did not notify ORG of the reasons for his absence .

On DATE the NORP - Mansi Regional Court upheld the decision on appeal .

On DATE ORG examined the first applicant and recommended that he be released from hospital because he no longer presented a danger to himself or the public . On DATE the Director of ORG applied to ORG seeking the release of the first applicant .

On DATE ORG sent the request to ORG , finding that the latter had territorial jurisdiction over the matter .

On DATE ORG returned the case file to ORG noting that the matter should be examined in ORG .

On DATE the ORG of the Khanty - Mansi Regional Court , by way of supervisory review , quashed the decision of CARDINAL DATE and ordered ORG to examine the request for the first applicant ’s release .

On DATE ORG carried out a psychiatric examination of the first applicant and considered that the conclusions reached by ORG on DATE had been incorrect and that the first applicant should remain in a psychiatric hospital for further compulsory medical treatment .

On DATE ORG dismissed the request for the release of the first applicant on the ground that the expert report of CARDINAL DATE had been inconclusive , that on DATE it had been found that the first applicant was still suffering from schizophrenia and had been considered in need of further compulsory psychiatric treatment . The decision was not appealed against and became final .

On DATE , following a new psychiatric examination of the first applicant and a request from ORG , the ORG authorised his release from hospital .

At DATE the first applicant was transferred to PERSON no . CARDINAL temporary detention facility and placed in cell no . CARDINAL . The cell housed CARDINAL inmates . According to the first applicant , he was systematically humiliated and ill - treated by warders and detainees alike . On DATE his cellmates , acting upon an order of the administration of the detention facility , severely beat him up with long wooden sticks which they had received from the warders .

The Government disputed the first applicant ’s version of events , arguing that on TIME the first applicant had initiated a conflict with CARDINAL of his cellmates , calling him names . A fight broke out and the first applicant received injuries . The Government insisted that the first applicant ’s allegations of the authorities’ instigating role in the dispute were not supported by any evidence .

The Government submitted medical certificate no . CARDINAL drawn up in the detention facility on DATE following an examination of the first applicant by a prison doctor . It appears from the certificate that the prison doctor diagnosed the first applicant with concussion and numerous abrasions to his arms , legs , back , shoulders , face and ears and prescribed him bed rest . The doctor also noted that the first applicant had received those injuries over DATE in cell no . CARDINAL . The first applicant was transferred to the medical unit of the detention facility on TIME DATE .

According to a copy of the facility ’s logbook produced by the Government , on TIME DATE an officer on duty made an entry in the log of an incident involving the first applicant and listed his injuries .

On DATE the acting director of detention facility no . CARDINAL , having examined the information about a possible offence committed against the first applicant , refused to institute criminal proceedings . He found that on DATE the first applicant had had a heated argument with CARDINAL of his cellmates , PERSON latter had kicked the first applicant once in the stomach , as a result of which the first applicant had fallen , having hit his head and back against a wall . The first applicant had got back to his feet and attempted to strike back , but was stopped by CARDINAL other cellmates who broke up the fight . The director of the facility also noted that , when questioned about the incident , the first applicant had confirmed that he had verbally assaulted PERSON and asked that criminal proceedings against the latter not be instituted . The CARDINAL remaining cellmates gave similar descriptions of the incident . A copy of the director ’s decision of DATE was served on the first applicant and sent to ORG to verify that the domestic law had been properly applied in the case .

In DATE the second applicant was appointed the legal guardian of the first applicant . On DATE he complained to ORG about the decision of DATE .

On DATE the GPE Regional Prosecutor quashed the decision of DATE finding that it had been issued “ prematurely ” and ordered an additional investigation into the first applicant ’s complaints . The prosecutor also noted that the first applicant suffered from a serious mental illness impairing his legal capacity and that in those circumstances his alleged request that no proceedings be instituted against cellmate PERSON should not have had any legal implications .

On DATE the administration of the temporary detention facility refused to institute criminal proceedings in respect of the first applicant ’s complaint of ill - treatment on the ground that the statutory limitation period had expired . That decision was quashed on DATE and an additional investigation was authorised .

On DATE an assistant to ORG refused to institute criminal proceedings against PERSON because the statutory limitation period of DATE had expired on DATE and PERSON could no longer bear criminal responsibility . In his decision the assistant also listed statements by warders who had insisted that the first applicant had had a dispute with PERSON The latter had beaten up the first applicant . The fight had been stopped by the CARDINAL other cellmates . The warders had not asked the cellmates to threaten the first applicant or to beat him up . At the same time , PERSON retracted his previous statements and claimed that he had not beaten up the first applicant . The other CARDINAL inmates were not questioned because their whereabouts were unknown . A copy of the decision of DATE was served on the second applicant .

The Government submitted that on CARDINAL DATE the decision of DATE had been quashed by a higher - ranking prosecutor and the investigation was now pending .

The first applicant complained that he had been systematically beaten up by warders . He claimed that on DATE the warders had broken CARDINAL of his ribs .

The Government argued that on TIME DATE the first applicant had fallen over on his way to the lavatory , breaking CARDINAL ribs .

As can be seen from a copy of the first applicant ’s medical record drawn up in detention facility no . CARDINAL and submitted by the Government , on DATE the first applicant was examined by a neurologist and the head of the detention facility ’s medical unit . They noted an injury to the first applicant ’s chest and authorised a chest X - ray . The X - ray was taken on DATE and showed that the first applicant had CARDINAL broken ribs on his right side . DATE the first applicant was again examined by the facility doctors , who noted his anxious state . The doctors recorded that the first applicant had refused to remain in his cell , had been disorientated and inert , and had not given proper responses to their questions . Following a further medical examination on DATE the doctors noted that the first applicant had had difficulty formulating sentences and concentrating , that his reactions had been slow and that he had constantly stared straight ahead . A psychiatric examination of the first applicant was recommended .

On DATE the director of the facility closed an investigation into the cause of the first applicant ’s injury , finding that he had broken his ribs when falling over in a cell on DATE . The decision was based on statements by the first applicant ’s CARDINAL cellmates who had insisted that no force had been used against him . The director also noted that it had been impossible to interview the first applicant as his behaviour had been strange and he had not answered the questions put to him owing to the poor state of his mental health . A copy of the director ’s decision was served on the first applicant and sent to ORG for verification .

On DATE a deputy to ORG quashed the decision of DATE and ordered an additional investigation , having found that it was necessary to carry out a forensic medical examination of the first applicant and to question his cellmates and the warders . The deputy prosecutor stated that his decision was a response to information received on DATE from the director of detention facility no . CARDINAL about a possible criminal offence .

On DATE a senior inspector , having concluded that on DATE the first applicant had slipped , fallen to the floor and injured himself , found that the complaint was unsubstantiated . The decision was based on evidence collected during the internal investigation carried out by the administration of the detention facility in DATE . In addition , the senior investigator relied on a report by forensic medical experts who had studied the first applicant ’s medical documents in DATE and concluded that there was insufficient evidence to confirm that the first applicant had had broken ribs .

On DATE the decision of DATE was quashed and an additional investigation was ordered .

DATE . On DATE an assistant of ORG refused to institute criminal proceedings against the warders , finding no prima facie case of ill - treatment . The assistant ’s decision was based on the statements of CARDINAL of the first applicant ’s cellmates , a warder and a medical assistant who had examined the first applicant on DATE . The first applicant ’s cellmate stated that he had fallen over . He had had no visible injuries , but had complained of being in pain . The warder , while noting that conflicts among detainees had been very frequent and that it was impossible to remember each and every CARDINAL of them , insisted that no force had been used against the first applicant on any occasion . The medical assistant stated that prior to his placement in the detention facility ’s medical unit on DATE the first applicant had acted aggressively towards other inmates and provoked , in turn , aggressive actions towards himself .

The assistant was unable to locate and question the first applicant ’s other cellmates .

It appears from the ORG ’s submissions that the decision of DATE was quashed on CARDINAL DATE . A fresh investigation appears to be pending now .

The Code of Criminal Procedure of GPE ( in force since DATE , “ the CCrP ” ) provides that a criminal investigation can be initiated by an investigator or a prosecutor upon a complaint by an individual or on the investigative authorities’ own initiative where there are reasons to believe that a crime has been committed ( Articles CARDINAL and CARDINAL ) . The prosecutor is responsible for the overall supervision of the investigation ( Article CARDINAL ) . He or she can order specific investigative measures , transfer the case from CARDINAL investigator to another or order an additional investigation . If there are no grounds upon which to initiate a criminal investigation , the prosecutor or investigator shall give a reasoned decision to that effect , which must be brought to the attention of the interested party . The decision is amenable to appeal to a higher - ranking prosecutor or to a court of general jurisdiction in accordance with a procedure established by LAW Article CARDINAL ) . Article CARDINAL of the ORG provides for judicial review of decisions given by investigators and prosecutors that might infringe the constitutional rights of parties to proceedings or prevent access to court .

NORP law sets out detailed guidelines for the detention of individuals in temporary detention facilities . These guidelines are found in ORG Decree no . CARDINAL on ORG ( “ the Decree ” ) , enacted on DATE . In particular , Section II of the LAW provides that an investigation should be carried out into the circumstances in which a detainee has sustained injuries . Case - file materials drawn up as part of the investigation into the circumstances of a possible offence should be transferred to a prosecutor ’s office which has to take a decision on the institution or refusal to institute criminal proceedings in compliance with the requirements of LAW ( paragraph CARDINAL of LAW ) .

Chapter III of the Prosecutor ’s Offices Act ( Federal Law no . CARDINAL-I of CARDINAL DATE ) identifies the jurisdiction and powers of prosecution authorities in the field of prosecution supervision . In particular , if information about a possible violation of NORP law is received , prosecution authorities should carry out their supervisory function . Prosecutors are authorised to monitor the enforcement of LAW and laws by various federal and local authorities and their officials , including the administrations of detention facilities ( section CARDINAL ) . They should also ensure that the rights and freedoms of detained individuals are respected in places of detention . In performing their task prosecutors should respond to information about possible violations of human rights and freedoms and take measures to prevent or eliminate such violations , bringing those responsible to justice , which can include instituting administrative or criminal proceedings and awarding damages ( sections CARDINAL , DATE and DATE ) . While supervising the work of the administration of a detention facility , prosecutors are to demand that the administration creates conditions in which the rights and freedoms of detained individuals are fully respected , to check that the administration ’s decisions comply with domestic legal norms and to receive additional explanations from officials of the detention facility if needed ( section CARDINAL ) .

The complexity and importance of prevention of violence in detention facilities , specificity of procedures to be employed by facility administration addressing inter - prison violence and necessity of special care , including psychiatric care , of detainees was discussed by ORG for the Prevention of Torture in its ORG . The following are the extracts from the Reports :

“ DATE . Effective grievance and inspection procedures are fundamental safeguards against ill - treatment in prisons . Prisoners should have avenues of complaint open to them both within and outside the context of the prison system , including the possibility to have confidential access to an appropriate authority . The ORG attaches particular importance to regular visits to each prison establishment by an independent body ( eg . a Board of visitors or supervisory judge ) possessing powers to hear ( and if necessary take action upon ) complaints from prisoners and to inspect the establishment ’s premises . Such bodies can inter alia play an important role in bridging differences that arise between prison management and a given prisoner or prisoners in general .

It is also in the interests of both prisoners and prison staff that clear disciplinary procedures be both formally established and applied in practice ; any grey zones in this area involve the risk of seeing unofficial ( and uncontrolled ) systems developing . Disciplinary procedures should provide prisoners with a right to be heard on the subject of the offences it is alleged they have committed , and to appeal to a higher authority against any sanctions imposed . Other procedures often exist , alongside the formal disciplinary procedure , under which a prisoner may be involuntarily separated from other inmates for discipline - related / security reasons ( eg . in the interests of " good order " within an establishment ) . These procedures should also be accompanied by effective safeguards . The prisoner should be informed of the reasons for the measure taken against him , unless security requirements dictate otherwiseCARDINAL , be given an opportunity to present his views on the matter , and be able to contest the measure before an appropriate authority . ”

“ ii ) psychiatric care

In comparison with the general population , there is a high incidence of psychiatric symptoms among prisoners . Consequently , a doctor qualified in psychiatry should be attached to the health care service of each prison , and some of the nurses employed there should have had training in this field .

The provision of medical and nursing staff , as well as the layout of prisons , should be such as to enable regular pharmacological , psychotherapeutic and occupational therapy programmes to be carried out .

The ORG wishes to stress the role to be played by prison management in the early detection of prisoners suffering from a psychiatric ailment ( eg . depression , reactive state , etc . ) , with a view to enabling appropriate adjustments to be made to their environment . This activity can be encouraged by the provision of appropriate health training for certain members of the custodial staff . ”

“ Staff - prisoner relations

The cornerstone of a humane prison system will always be properly recruited and trained prison staff who know how to adopt the appropriate attitude in their relations with prisoners and see their work more as a vocation than as a mere job . Building positive relations with prisoners should be recognised as a key feature of that vocation .

Regrettably , the ORG often finds that relations between staff and prisoners are of a formal and distant nature , with staff adopting a regimented attitude towards prisoners and regarding verbal communication with them as a marginal aspect of their work . The following practices frequently witnessed by the ORG are symptomatic of such an approach : obliging prisoners to stand facing a wall whilst waiting for prison staff to attend to them or for visitors to pass by ; requiring prisoners to bow their heads and keep their hands clasped behind their back when moving within the establishment ; custodial staff carrying their truncheons in a visible and even provocative manner . Such practices are unnecessary from a security standpoint and will do nothing to promote positive relations between staff and prisoners .

The real professionalism of prison staff requires that they should be able to deal with prisoners in a decent and humane manner while paying attention to matters of security and good order . In this regard prison management should encourage staff to have a reasonable sense of trust and expectation that prisoners are willing to behave themselves properly . The development of constructive and positive relations between prison staff and prisoners will not only reduce the risk of ill - treatment but also enhance control and security . In turn , it will render the work of prison staff far more rewarding .

Ensuring positive staff - inmate relations will also depend greatly on having an adequate number of staff present at any given time in detention areas and in facilities used by prisoners for activities . ORG delegations often find that this is not the case . An overall low staff complement and/or specific staff attendance systems which diminish the possibilities of direct contact with prisoners , will certainly impede the development of positive relations ; more generally , they will generate an insecure environment for both staff and prisoners .

It should also be noted that , where staff complements are inadequate , significant amounts of overtime can prove necessary in order to maintain a basic level of security and regime delivery in the establishment . This state of affairs can easily result in high levels of stress in staff and their premature burnout , a situation which is likely to exacerbate the tension inherent in any prison environment .

Inter - prisoner violence

The duty of care which is owed by custodial staff to those in their charge includes the responsibility to protect them from other inmates who wish to cause them harm . In fact , violent incidents among prisoners are a regular occurrence in all prison systems ; they involve a wide range of phenomena , from subtle forms of harassment to unconcealed intimidation and serious physical attacks .

Tackling the phenomenon of inter - prisoner violence requires that prison staff be placed in a position , including in terms of staffing levels , to exercise their authority and their supervisory tasks in an appropriate manner . Prison staff must be alert to signs of trouble and be both resolved and properly trained to intervene when necessary . The existence of positive relations between staff and prisoners , based on the notions of secure custody and care , is a decisive factor in this context ; this will depend in large measure on staff possessing appropriate interpersonal communication skills . Further , management must be prepared fully to support staff in the exercise of their authority . Specific security measures adapted to the particular characteristics of the situation encountered ( including effective search procedures ) may well be required ; however , such measures can never be more than an adjunct to the above - mentioned basic imperatives . In addition , the prison system needs to address the issue of the appropriate classification and distribution of prisoners . ”


Angelika Nußberger;Ganna Yudkivska;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Zdravka Kalaydjieva

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

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

At TIME on DATE the applicant ’s son , who had earlier consumed alcohol , entered a pub in the centre of ORG . There he met PERSON GPE , whom he apparently knew , who had also consumed a considerable amount of alcohol . The applicant ’s son sat down at Mr GPE ’s table and asked him to lend him some money . Mr GPE refused , but offered to buy him a drink instead . The applicant ’s son became angry and started swearing at Mr GPE He went outside and returned several times , visibly enraged . At CARDINAL point he said to his cousin , who was also in the pub : “ Just watch me slap the halva - seller around in TIME ” . The quarrel escalated . The applicant ’s son grabbed Mr GPE ’s clothes and pulled him up from his chair . After that the CARDINAL stood opposite each other , shouting . A waitress asked them to take their quarrel outside . The applicant ’s son pushed Mr GPE through the door causing him to fall on his back . The applicant ’s son then proceeded to kick him in the midriff and jump on top of him , pinning him to the ground with his knee . According to the findings of the prosecutors who later dealt with the case , he also grabbed Mr GPE by the throat and started strangling him . The applicant strongly disputed that finding . The prosecutors also found that Mr GPE had tried to free himself from the applicant ’s son ’s grip , but to no avail .

According to the ORG findings , at that point Mr GPE , who was choking , drew a knife from a sheath attached to his belt and stabbed the applicant ’s son in the chest . Seeing the knife , a bystander intervened and separated the CARDINAL men . The applicant ’s son got up and took a few steps towards a car parked nearby . Mr GPE followed him with the bloodstained knife , but did not try to hit him again . He said “ Now see who you have sworn at and what it is to hit someone ” . According to the applicant , the stabbing took place after his son had already been separated from Mr GPE

After that CARDINAL eyewitness , Mr GPE and Mr GPE , put the applicant ’s son in a car to take him to hospital . They came across a police car and told the officers about the incident . The police called an ambulance , but the applicant ’s son died before it arrived .

A test revealed that at the time of the incident the alcohol content in the applicant ’s son ’s blood was QUANTITY . Mr GPE ’s bloodalcohol content , measured TIME after the incident , was QUANTITY .

At TIME the same day the police dispatched CARDINAL officers to the scene of the incident . They impounded GPE ’s knife , arrested him , took him to a police station in GPE and took a statement from him .

DATE the authorities opened an official investigation into the incident . TIME and TIME the investigator to whom the case was assigned and a forensic technician inspected the body of the applicant ’s son . TIME and TIME they inspected the scene of the incident .

At the investigator ’s request , at TIME a medical doctor examined Mr GPE TIME and TIME two police officers , acting on the investigator ’s instructions , interviewed QUANTITY eyewitnesses ( Mr PERSON , Mr GPE , PERSON , Mr T.K. and PERSON ) .

DATE , DATE , a forensic pathologist performed an autopsy on the body of the applicant ’s son . He found that he had died as a result of the stabbing , which had ruptured key blood vessels , causing massive loss of blood . He found that the angle of entry of the wound was upwards , from front to back and from right to left .

DATE , DATE , the case was taken up by another investigator . He placed Mr GPE in pretrial detention , charged him with murder under LAW ( see Relevant domestic law below ) and interviewed him , first alone and then in the presence of his counsel . Mr GPE chose not to make a statement , saying that he did not feel very well .

On DATE the investigator ordered an expert report on the blood found on the knife impounded from Mr GPE and on a blood sample taken from the scene of the incident . The results were ready on DATE .

On DATE the investigator asked a forensic expert to examine Mr GPE for injuries and express his opinion on how they had been inflicted . In his report , filed DATE , the expert said , inter alia , that although PERSON GPE complained of pain in the neck , he bore no visible traces of strangulation .

On DATE the investigator interviewed Mr PERSON and Mr PERSON Both of them said that their earlier statements had not been comprehensive and gave fuller accounts of their versions of the events . Mr PERSON mentioned that the hands of the applicant ’s son had left red marks on Mr GPE ’s throat . On DATE the investigator interviewed Mr GPE , who gave a full account of his version of the events . On DATE the investigator interviewed PERSON , Mr PERSON and Mr GPE On CARDINAL and DATE he interviewed CARDINAL other witnesses who had not directly seen the incident .

On DATE the investigator ordered a psychiatric expert report on Mr GPE ’s state of mind at the time of the incident . In their report , filed DATE , CARDINAL experts said that at the time of the incident Mr GPE had been in a state of fear which had influenced his conduct , additionally affected by his state of alcoholic intoxication .

On DATE the investigator amended the charges against Mr GPE to murder committed through the use of excessive force in selfdefence , contrary to LAW ( see Relevant domestic law below ) .

On DATE the investigator asked a forensic expert to express his opinion , based on the materials in the case file , on the relative positions of the applicant ’s son and Mr GPE at the time of the stabbing and on the strength of the blow . In his report , filed on DATE , the expert said that the wound could have been inflicted while the applicant ’s son had been pinning Mr GPE to the ground and strangling him , or if the CARDINAL had been standing opposite each other , or if Mr GPE had been standing behind the applicant ’s son . However , the manner in which the incident had unfolded suggested that the most likely version was that the stabbing had taken place while the CARDINAL men had been struggling on the ground .

In DATE the case was assigned again to the investigator who had dealt with it initially . On DATE and DATE he interviewed Mr ORG , Mr PERSON and Mr GPE , as well as another eyewitness , PERSON , in the presence of counsel for the applicant and his wife and of counsel for PERSON I.M. While on DATE PERSON had maintained that Mr GPE had stabbed the applicant ’s son long after the CARDINAL had been separated , on DATE she said that she had not seen clearly how the stabbing had taken place . When asked to explain the divergence , she said that she had been frightened , had not seen the stabbing directly , and was too frail psychologically and burdened with other problems to be able to have a clear recollection of the events .

Meanwhile , on DATE the applicant and his wife applied to join the proceedings as civil parties . The investigator granted their application DATE .

On DATE the investigator interviewed the former wife and the child of the applicant ’s son .

On DATE the investigator allowed Mr GPE and his counsel to inspect the case file . They objected against the investigator ’s decision to allow the applicant and his wife to join the proceedings as civil parties , pointing out that they had failed to specify the amount of their claim .

DATE , DATE , the investigator sent the case file to ORG , proposing that Mr GPE be put on trial . He described in detail his findings of fact and concluded that by resorting to a knife Mr GPE had used excessive force in selfdefence .

However , on DATE ORG decided to discontinue the investigation . It reasoned that Mr GPE ’s act fell within the ambit of LAW of LAW ( see Relevant domestic law below ) , because he had used excessive force out of fear . He had acted under the influence of fear induced by the applicant ’s son ’s attack , which had significantly reduced his ability to assess the situation correctly and adapt his conduct so as to remain within the limits of selfdefence . His act , which had consisted in a single blow with a knife , had essentially been defensive , in spite of his words after the fight . It was apparent from the statements of the eyewitnesses that the applicant ’s son had pinned Mr GPE to the ground and grabbed him by the throat , preventing him from breathing normally . He had at first unsuccessfully tried to free himself from that robust grip , which had caused him to fear for his life and safety .

On DATE the applicant and his wife appealed against the discontinuance to ORG . They argued that the stabbing had taken place after their son had already been separated from PERSON GPE and that the latter had continued chasing him with a bloodstained knife . They argued that the witnesses had said so in their initial interviews , and had changed their statements only later . Moreover , the fight had been brief and Mr GPE was physically the stronger . In those circumstances , there was no room for the application of LAW of LAW .

On DATE a prosecutor from ORG allowed the appeal and ordered ORG to resume its work on the case . He reasoned that the investigation had failed to elucidate the exact timing of the stabbing and the applicant ’s son ’s and PERSON GPE ’s relative positions at that moment . The ORG initial and subsequent statements on that point were contradictory . It was also unclear whether or not the applicant ’s son had in fact been able to walk after the stabbing and at what point he had halted his assault on Mr GPE Finally , it had not been clarified whether or not the fatal blow was delivered while the CARDINAL men were still wrestling on the ground and whether or not it had been indeed feasible for Mr GPE to draw the knife from its sheath and administer a forceful upward blow , as described in the medical expert report .

On DATE Mr I.M. appealed against that decision . On DATE the Head of ORG of ORG quashed it and upheld the discontinuance . He found that the lower prosecutor ’s misgivings about unclarified aspects of the incident were unsupported by the evidence . While it was true that there were discrepancies between the ORG initial statements as to the timing of the stabbing , on requestioning CARDINAL of the witnesses had maintained that the stabbing had taken place while the attack by the applicant ’s son was still continuing and the others said that they had not seen the actual stabbing . Moreover , the medical expert report had concluded that the blow had been delivered in a horizontal position . Therefore , all possibilities of clarifying the facts had been exhausted and the decision to discontinue the investigation had been warranted .

The applicant and his wife appealed to ORG . On DATE the Deputy Chief Prosecutor , to whom the case had been referred , allowed the appeal and ordered ORG to investigate further . He considered that it had not been made clear what had caused the eyewitnesses to change their statements . There were also serious discrepancies between the subsequent statements and the statements of other witnesses . These could have been cleared up by arranging a confrontation between the witnesses . Since the reports describing the crime scene were quite laconic , it would have been helpful to interview the persons present when they were drawn up . No efforts had been made to check the clothes and the shoes worn by the applicant ’s son and Mr GPE in order to determine whether the bloodstains on them corresponded to their relative positions and movements as described by the eyewitnesses . The persons who had taken the applicant ’s son to hospital had not been asked whether he had said anything . No reconstruction had been staged to test the ORG statements . The medical expert had not been asked clear and comprehensive questions . In view of the force of the blow , the expert should have been asked whether or not it was possible for an individual who was under the influence of drink , gripped by the throat to the point of strangling and had a damaged right elbow joint to draw a knife out of its sheath , swing it forcefully and administer a strong blow . The expert should also have been asked whether or not it would have been possible for the applicant ’s son to walk after receiving such a blow . No consideration had been given to bringing in other experts whose specialist knowledge could have shed more light on the circumstances in which the applicant ’s son had died .

On DATE Mr GPE appealed to ORG . On DATE the Chief Prosecutor quashed his deputy ’s decision and upheld the discontinuance . He noted that all eyewitnesses had been questioned several times and all the discrepancies between their initial statements had been cleared up . Fresh interviews would not add anything . The clothes and shoes worn by the applicant ’s son and Mr GPE would not alter the findings either , because the manner of stabbing had been established through a medical expert ’s report and the statements of witnesses . It was also clear that the applicant ’s son had not spoken to the witnesses before his death . Mr GPE ’s act amounted to selfdefence , because he had used the only means at his disposal to repel the attack .

In DATE the Chief Prosecutor ’s term of office came to an end and a new one was sworn in . The applicant and his wife challenged his predecessor ’s decision . On DATE the new Chief Prosecutor assigned the case to a prosecutor of the newly created ORG . On DATE that prosecutor upheld the challenge and ordered ORG to resume the investigation and carry out various steps . Firstly , in view of the dubious validity of the medical expert report and its failure to take into account the eyewitnesses’ initial statements , it was necessary to order a further report to be drawn up by CARDINAL forensic specialists and a surgeon . Secondly , in view of evidence by Mr PERSON that he had seen red marks on Mr GPE ’s throat , and of the fact that a medical expert who had examined Mr GPE that same DATE had not found any visible traces of injuries to his throat , it was necessary to clarify whether it was medically possible for them to have disappeared so fast . It was also not clear why the eyewitnesses had changed their statements and why the investigator who had initially taken up the case had been replaced . The applicant had alleged that the replacement was a friend of Mr GPE ’s son . It was therefore necessary to assign the case to another investigator with instructions to requestion the eyewitnesses and specifically ask them why they had changed their statements and whether they had been pressured into doing so .

After that the case was assigned to another investigator . On DATE she interviewed Mr PERSON , Mr GPE and Mr GPE

On DATE she interviewed PERSON and PERSON As PERSON account differed from the one that she had given on DATE but coincided with the one that she had given on DATE , the investigator asked her to explain the difference and to confirm which CARDINAL was true . After a certain amount of hesitation , PERSON said that her statement of DATE was true and that her statement on DATE had been made under pressure by counsel for Mr GPE , who had talked to her just before the interview . However , she then said that she had not clearly seen the stabbing .

On DATE the investigator interviewed PERSON On DATE , DATE and DATE she interviewed the police officers who had seen the applicant ’s son in the car on his way to hospital and the police officers who had arrested Mr DATE

On DATE Mr GPE appealed to ORG against the investigation ’s renewal . The appeal was rejected on DATE and the case file was sent back to the investigator on DATE .

On DATE the investigator interviewed Mr GPE On DATE she interviewed the applicant and his wife and their other son , the deceased ’s brother .

At the request of Mr GPE , on DATE the investigator revoked the earlier decision to accept the application by the applicant and his wife to join the proceedings as civil parties ( see above ) . She found that the application had been defective , as it had only mentioned their names and their wish to join the proceedings as civil parties , whereas under LAW of LAW ( see Relevant domestic law below ) it should have contained a number of other items . On DATE ORG endorsed that decision . The applicant appealed , but the decision was upheld by ORG on DATE . The applicant appealed further . On DATE a prosecutor of the “ Investigations ” division of ORG also upheld the decision . In his view , there was no legal impediment preventing the investigator from revoking an earlier procedural decision .

On DATE the applicant and his wife lodged a fresh application to join the proceedings as civil parties . On DATE the investigator allowed their application .

In the meantime , on DATE the investigator asked CARDINAL forensic experts to express their opinion on the exact mechanism of the stabbing , based on the materials in the case file . She asked CARDINAL other experts to explain whether it was possible for Mr GPE to have been strangled and to have had MONEY of that on his throat , and , if so , to determine how strong the strangling had been .

In their report , filed on DATE , the first CARDINAL experts said that the stabbing had occurred from a close distance . It was entirely possible that it had occurred while the applicant ’s son was strangling Mr GPE However , it could not be excluded that the blow had been delivered when the CARDINAL were standing upright , or when Mr GPE was chasing the applicant ’s son .

In their report , also filed on DATE , the second group of experts said that the red marks on Mr GPE ’s throat mentioned by Mr PERSON could have many explanations , and that no trace of them had been found during the later medical examinations . It was however possible that they had disappeared in the meantime .

On DATE the investigator amended the charges against Mr GPE , accusing him of an offence under LAW ( see Relevant domestic law below ) , and interviewed him .

On DATE the investigator allowed the applicant and his wife , assisted by their counsel , to inspect the case file . The same day she allowed the wife of the deceased to inspect the file as well .

On DATE Mr GPE was allowed to inspect the case file , in the presence of his counsel . He made a number of objections and requests . The investigator rejected them on DATE .

On DATE the investigator sent the case file to ORG with a recommendation to bring Mr GPE to trial . She analysed the statements of the witnesses in detail , noting that they were quite contradictory and , save for those of Mr S.P. , unclear as to the exact timing and mechanism of the stabbing . She also analysed the expert reports and concluded that Mr GPE could not have genuinely feared for his life and had stabbed the applicant ’s son when the CARDINAL had already been separated . Based on that , she found that by pulling out his knife and administering a blow with it Mr GPE had used excessive force in selfdefence , contrary to LAW ( see Relevant domestic law below ) .

On DATE ORG , disagreeing with the investigator ’s proposal , discontinued the proceedings . It noted that the medical expert report had concluded that the applicant ’s son ’s wound could have been inflicted either while he and Mr GPE were wrestling on the ground , or later , when they had been already separated . Whereas the first scenario was consistent with the statements of CARDINAL witnesses – Mr PERSON , PERSON and PERSON DATE , the second scenario was not supported by any evidence save for the account of CARDINAL witness PERSON whose statement had been changed several times and was therefore not credible . The experts had , moreover , found that the applicant ’s son would not have lost all his strength immediately and would have been able to take a few steps before falling to the ground . It could therefore be concluded that in stabbing the applicant ’s son Mr GPE had used excessive force in his selfdefence on account of the fear caused by the applicant ’s son ’s attack . Mr GPE ’s inability to assess the facts correctly had been exacerbated by the influence of drink . His act had been intended to repel a direct attack posing a threat to his life , not to cause the death of the applicant ’s son . This was borne out by the fact that before drawing the knife he had tried to free himself from the latter ’s grip .

On DATE the applicant sought judicial review of that decision . He argued that it was almost identical to the previous decision to discontinue the investigation and failed to take into account the newly gathered evidence . No consideration had been given to the explanation which Ms ORG had provided for changing her statement . It would , moreover , have been impossible to deliver such a strong blow while being strangled and pinned to the ground . In addition , Mr GPE had been so heavily intoxicated that his actions had been driven entirely by drink and not by fear . It was necessary to order an additional expert report on that point .

On DATE ORG decided to examine the case at a public hearing , which took place on DATE . The applicant appeared together with his counsel . Mr GPE also appeared with his counsel . The court heard the public prosecutor , counsel for the applicant , counsel for Mr GPE and Mr GPE

On DATE the court upheld the prosecutor ’s decision . It found that the investigation had not been characterised by significant omissions and that the authorities had taken the necessary steps to establish the facts . The higher prosecutor ’s offices had ordered further investigatory measures – requestioning of witnesses and fresh expert reports – which had been carried out . The prosecutor ’s findings , based on the evidence thus obtained , were correct , and the applicant ’s arguments were not sufficient to cast serious doubt on them . The main issue in determining whether Mr ORG ’s act had been justified under LAW , was at which point the applicant ’s son had stopped attacking him . The available evidence categorically showed that he had used the knife at a time when the attack was still going on . That was confirmed by the accounts of the eyewitnesses Mr PERSON and PERSON , who had clarified the discrepancies between their various statements . Moreover , their statements supporting the version that Mr GPE stabbed the applicant ’s son when he was still strangling him fully coincided with the statements of the other eyewitnesses ( Mr GPE , Mr GPE , PERSON and PERSON ) , and the remaining witnesses . The second medical expert report came to the conclusion that the blow could have been administered when the applicant ’s son had been on top of Mr GPE and had been strangling him . That conclusion , as well as the report ’s other conclusions , fully matched the statements of the witnesses . The court went on to say that there was no need for an additional psychiatric expert report . There was enough evidence to allow the conclusion that Mr GPE had used excessive force out of fear .

On DATE the applicant appealed to ORG , reiterating his arguments . However , an amendment to LAW which came into force on DATE ( see Relevant domestic law below ) removed the possibility of appealing against firstinstance court decisions reviewing discontinuances of preliminary investigations . Accordingly , on DATE ORG terminated the proceedings .

According to information produced by the ORG , the applicant has not tried to bring separate civil proceedings against Mr GPE

LAW provides for a defence of selfdefence . Under paragraph CARDINAL of that provision , an act committed in selfdefence and not inflicting disproportionate damage on the attacker is not criminal . Excessive force is used if the defence is clearly out of proportion to the nature and dangerousness of the assault ( paragraph CARDINAL ) . The use of excessive force is nevertheless not punishable if committed out of fear or bewilderment ( at the relevant time paragraph CARDINAL , now paragraph CARDINAL ) .

Article CARDINAL of the Code makes it an offence to wilfully take the life of another . The penalty on conviction is DATE imprisonment .

Article CARDINAL of the LAW provides that murder committed under provocation is punishable by DATE imprisonment . Aggravated cases carry a penalty of CARDINAL to ten years’ imprisonment .

Article CARDINAL of the Code provides that homicide committed through the use of excessive force in selfdefence is punishable by up to five years’ imprisonment .

Persons who have suffered damage from a publicly prosecutable criminal offence have a choice of either bringing an action against the alleged tortfeasor in the civil courts , with the result that the proceedings will be stayed in anticipation of the outcome of the pending or impending criminal investigation against the tortfeasor ( LAW ( d ) of LAW , superseded by LAW ( CARDINAL ) of the DATE Code of Civil Procedure ) , or making a civilparty claim in the context of the criminal proceedings instituted by the prosecuting authorities ( LAW , superseded by LAW ) . Until DATE a civilparty claim could be made even during a preliminary investigation , before the case had gone to trial ( LAW DATE Code , as in force until DATE ) . At present it can be made only after the case has already been brought to trial ( LAW DATE Code , as in force after DATE , and LAW ) . The claim can be made in writing or orally , and has to specify the PERSON and the GPE names , the number of the criminal case , the offence which has caused the damage , and the nature and extent of the damage ( LAW and DATE Code and LAW ) . In a judgment of DATE ORG accepted that it could be made even by simply taking an active part in the preliminary investigation ( реш. № CARDINAL от CARDINAL октомври DATE г. по н. д. № CARDINAL г. , ORG , I ORG ) .

ORG claimants are entitled to take part in the proceedings , inspect the case file and make copies , adduce evidence , make requests and objections , and challenge rulings which impinge on their rights and legitimate interests ( LAW DATE Code , superseded by LAW § CARDINAL of the DATE Code ) . Those rights can be exercised only in so far as necessary for establishing the wellfoundedness of the claim and the extent of the damage suffered ( LAW DATE Code , superseded by LAW ) .

Under LAW of LAW ( superseded by LAW DATE Code ) the examination of the civilparty claim can not cause the criminal case to be adjourned . If the proceedings are discontinued , the claim is not determined , but can be lodged separately with the civil courts ( LAW , superseded by LAW ) . The criminal court rules on the claim only when giving judgment on the merits of the criminal case , even if in that judgment it finds that the accused ’s criminal liability has been extinguished ( LAW , superseded by LAW ; and реш. № CARDINAL от DATE г. по н. д. № CARDINAL , ORG , ORG н. о. ) .

Under LAW ( CARDINAL ) of the LAW , as in force until DATE , public prosecutors were to discontinue proceedings if they found that , inter alia , the acts alleged did not constitute an offence . Copies of the decision were to be served on the accused and the victim ( paragraph CARDINAL of the same Article ) , who were entitled to challenge it before a more senior prosecutor ( paragraph CARDINAL of the same LAW ) .

As worded after DATE , Article CARDINAL provided that the decision to discontinue the proceedings was reviewable by a firstinstance court , whose decision was in turn subject to appeal to a higher court ( LAW , as in force DATE and DATE , and LAW ) and , from there , on points of law ( LAW , as in force between DATE and DATE , and LAW ) . An amendment which came into force on DATE removed the possibility of appealing against the firstinstance court ’s decision .

Section CARDINAL of the DATE LAW provides that no tort liability arises in cases of selfdefence . In a binding interpretative decision of CARDINAL DATE ( пост. № CARDINAL от CARDINAL ноември DATE г. по н. д. № DATE г. , GPE на ВС ) the former ORG held that in cases where excessive force has been used in self - defence the individual defending himself is liable in tort , even if not subject to a criminal sanction under LAW ( former LAW ) of LAW Criminal Code ( see above ) .

The limitation period for bringing a tort claim is DATE ( section CARDINAL of the DATE LAW ) . By section CARDINAL(CARDINAL)(h ) of the LAW , time ceases to run during the “ pendency of the judicial proceedings relating to the [ tort ] claim ” . In some cases the courts construed that phrase as meaning that time stops running not only during the pendency of a civil suit , but also during the pendency of criminal proceedings relating to the same facts , even at their preliminary investigation phase ( реш. № CARDINAL от CARDINAL г. по н. д. № CARDINAL г. , ORG , ORG н. о. ) . In other cases they held that even the bringing of a civil claim in the context of a preliminary investigation does not stop the running of time , because these proceedings are not “ judicial ” ( реш. № ORG от CARDINAL март DATE г. по гр. д. № DATE г. , ORG , ORG г. о. ) . The matter was settled by ORG and ORG of ORG , which held , in a binding interpretative decision of DATE , that time stops running under section CARDINAL(CARDINAL)(h ) of the LAW only when the victim brings a claim against the tortfeasor , whether in the context of the criminal proceedings or in separate civil proceedings ( тълк. реш. № CARDINAL от CARDINAL април DATE г. по тълк. д. № CARDINAL/CARDINAL г. , ОСГК и ОСТК на ORG ) .


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

The applicants , Mr Romulus PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the ORG by PERSON , a lawyer practising in GPE . ORG ( “ the Government ” ) were represented by their Agent , Mr Răzvan - Horaţiu Radu , of ORG .

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

From DATE the applicants lived in an apartment rented from the ORG in a nationalised building . On DATE , under PERSON no . LANGUAGE on the legal status of certain residential property , the applicants bought their apartment from the ORG , represented by the mayor of GPE .

On DATE ORG , the former owner 's heir , took action against the ORG and the applicants for recovery of possession of the flat , seeking also to have the DATE sale declared null and void .

In a judgment of DATE the NORP ORG found in favour of ORG and ordered the applicants to surrender possession of the apartment . It considered that the ORG 's initial title deed had been null and void and therefore gave preference to ORG 's title , which had come from the apartment 's real owner .

The court refused however to declare the sale contract null and void , as no cause of nullity was identified and the applicants had acted in good faith .

In a final decision of DATE ORG upheld that judgment .

On DATE , in the presence of a bailiff , ORG took possession of the apartment .

On DATE the applicants asked for the mayor of GPE to be joined to the proceedings for restitution of property lodged against them ( see paragraph CARDINAL above ) . Under the Civil Code guarantee concerning responsibility for eviction , the applicants sought to recover the apartment 's market value from the authorities .

On DATE ORG considered that the applicants ' request had been made out of time and decided to separate it from the main file .

Several hearings took place before ORG . On DATE , at ORG 's request , the case was suspended pending the outcome of the action for recovery of possession .

A new hearing was scheduled for DATE , but none of the parties attended . On that date ORG noted the parties ' unjustified absence and suspended the proceedings once again .

ORG summonsed the parties to a hearing on DATE .

On DATE the applicants requested that the case be postponed until after DATE , as they were going to be absent from the country from DATE to DATE .

On DATE ORG noted the parties ' absence and set a new hearing date for DATE .

In a judgment of DATE ORG noted that the case had been suspended since DATE and that the parties had not manifested any interest in it since then . It therefore concluded that the action had become extinct ( perimată ) .

The applicants did not appeal against that judgment , which became final .

Under NORP law , an action for recovery of possession is one of the principal remedies for the protection of a right of property . Such action is not governed by statute per se but has emerged from case - law . An action for recovery of possession can be defined as the bringing of proceedings to enforce a right in rem in which a dispossessed owner claims back his or her property from the person currently in possession of it . When both the plaintiff and the defendant have a title deed , the court must compare the CARDINAL deeds and decide which one is preferred . The main outcome of such an action , if successful , is the acknowledgment by the court of the claimant 's title to the property , with retrospective effect , thus obliging the defendant to return the property . If physical restitution is no longer possible , that obligation is replaced by an obligation to pay compensation on the basis of an equivalent sum ( see PERSON and Others v. GPE , no . MONEY , § CARDINAL , ORG CARDINALVII ) .

Articles CARDINAL of the Civil Code institute the seller 's responsibility for eviction . They provide for the evicted buyer to claim reimbursement of the price and also the payment of costs and damages , regardless of the seller 's good or bad faith . The buyer can either join the seller to the proceedings instituted against him by the third party or lodge a new action against the seller after having been evicted . In the latter case , if the seller proves that he could have won the case against the third party had he been joined to the proceedings , he will be exempted from compensating the buyer ( Article CARDINAL of LAW ) .

A bona fide buyer continues to enjoy the benefits of the property until he is no longer considered bona fide , that is at the latest when the action for eviction is lodged against him , at which time enjoyment of the property reverts to the rightful owner . However , the buyer may still claim compensation for his loss from the seller .

The constant practice of the domestic courts DATE , as available to the ORG , indicates that the Civil Code guarantee in the event of eviction is applied in cases similar to the one at hand , and the interested parties are awarded the indexed purchase price and , in most cases , damages and any costs reasonably incurred for the upkeep of the house . Most of the domestic courts consider that PERSON no . CARDINAL on the rules governing immovable property wrongfully seized by the ORG DATE and DATE ( “ Law no . CARDINAL ” ) is not applicable to actions for recovery of possession when the sale contract is not declared null and void in such proceedings .

If the sale contract is cancelled , however , the courts consistently apply PERSON no . CARDINAL/CARDINAL and only award the buyer the indexed purchase price .

NORP In decision no . CARDINAL of DATE ORG found in favour of the buyer in an action for recovery of possession lodged by the former owner of a nationalised apartment against the person who in good faith had bought the apartment from the ORG in DATE . The court decided that the restitution of the apartment to the former owner was no longer possible and , based on the ORG 's case - law on LAW CARDINAL ( in particular : PERSON and PERSON v. GPE , no . CARDINAL/CARDINAL , PERSON CARDINALVIII , ORG v. GPE , no . CARDINAL , DATE , and ORG v. GPE , no . CARDINAL , ORG CARDINALXII ( extracts ) ) , it compelled the ORG to pay the market value of the apartment in compensation to the former owner . In the court'tary award was the only solution to the action for recovery of possession .

In a similar decision of CARDINAL DATE ORG and ORG found in favour of the buyer in an action for recovery of possession lodged by the former owner . ORG took account of the fact that the buyer 's title had been confirmed by the courts in an action in nullity of the sale contract lodged against him by the former owner whereas the former owner 's title had not been upheld by a court . It further considered that dispossessing the buyer regardless of the circumstances , in order to restore the property to the former owner , would create disproportionate new wrongs in the attempt to attenuate old injuries . It also considered , in a general statement , that reimbursement of the indexed purchase price under PERSON no . CARDINAL/CARDINAL could not compensate the buyer as it did not reflect the property 's market value .

In decision no . CARDINAL of DATE ORG declared LAW no . CARDINAL/CARDINAL unconstitutional in so far as it breached the buyer 's property title . Under the provision concerned , persons whose actions based on LAW had been dismissed before the entry into force of Law no . CARDINAL/CARDINAL could use this PERSON in order once again to seek the restitution of their property . ORG considered that persons whose title to property had been confirmed by a court decision could not be compelled to surrender that property where there was no serious justification for such a measure , based on public order , under LAW .