Violation of Art. 2 in respect of failure to protect life;Violation of Art. 2 in respect of ineffective investigation;Not necessary to examine Art. 10;Violation of Art. 13;Not necessary to examine Art. 14;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

PERSON , the applicant 's brother , was a journalist working for the newspaper PERSON in ORG .

PERSON was a DATE newspaper , with its main office in GPE . Its owners described the newspaper as seeking to reflect NORP opinion . It was published between CARDINAL DATE and DATE . By the time it ceased publication , numerous prosecutions had been brought against it on the grounds , inter alia , that it had published the declarations of the ORG ( ORG of Kurdistan ) and disseminated separatist propaganda . Following a search - and - arrest operation at the PERSON office in GPE on DATE , charges were brought against , inter alia , the editor , the manager and the owner of the newspaper , alleging that they were members of the ORG and had assisted the ORG and made propaganda in its favour . On DATE the GPE office , which had been taken over by PERSON successor , the newspaper ORG , was blown up by a bomb .

PERSON , who was unmarried , lived with his father in the village of GPE , outside ORG . Besides working as a journalist , he was a member of ORG .

On DATE PERSON sent a press release to the governor of ORG . This stated that death threats had been made against ORG representative carrying out the distribution of PERSON and against the driver and owner of the taxi used for deliveries . It stated that it was known that persons working for PERSON had been attacked or killed and that those involved in the sale and distribution of the newspaper had been the victims of arson attacks and assaults . Reference was made to the fact that in other provinces in the south - east security officers were protecting the offices , employees and distributors . PERSON requested that measures be taken to protect the safety of people working for the FAC office , including himself , another journalist and the newspaper 's distributor and driver .

NORP By letter dated DATE , the governor 's office replied that PERSON request for protection had been examined . No protection had been assigned to distributors of newspapers in any of the provinces nor had there been any attacks on , or threats to , distributors in the area . His request was refused .

On DATE PERSON issued a press release stating that attacks against persons involved in the sale and distribution of PERSON in ORG were continuing , despite urgent requests for protective measures . Details were given of an arson attack on a news - stand on DATE and on another news - stand on DATE . The press release criticised the governor for not ensuring the safe distribution of the newspaper and called on him and the police to fulfil their responsibilities .

Following a complaint by the governor , PERSON was charged with insulting the governor through the publication and circulation of the press release . He was taken into detention at ORG on DATE and released DATE .

At TIME on DATE PERSON left the newspaper office in the centre of LOC and walked to the coach station . At CARDINAL , he caught the Şanlıurfa to PERSON coach from PERSON . Before the coach reached the junction of the main road with the road to ORG , it was overtaken by a white ORG car , which turned into the village road , turned around and parked , with its headlights off . The car was noticed at TIME by PERSON , TIME at a nearby construction site . PERSON was the only passenger to leave the coach when it stopped at the junction . He walked up the road towards the village . PERSON heard voices arguing and a cry for help , followed by CARDINAL shots .

The incident was reported to the gendarmes who rapidly arrived on the scene . PERSON body was discovered with CARDINAL bullet wounds in the head . The applicant and other members of his family came from the village to see what had happened .

Captain PERSON , the central district gendarmerie commander , took charge of the investigation at the scene . CARDINAL cartridges were found and handed over to the public prosecutor when he arrived . The victim 's mouth was found to have been covered with CARDINAL strips of packaging tape and there was a rope around his neck . A piece of paper bearing the letters NORP and Y , stained with blood , was also discovered . A sketch map of the scene was drawn up . Captain Kargılı took photographs with his own camera and looked , unsuccessfully , for tyre marks . A statement was taken by the gendarmes from PERSON , TIME , who stated that because of the darkness he had not seen the victim , the assailants or the car .

An examination of the body was carried out by a doctor in the presence of the public prosecutor on DATE . The report found that CARDINAL bullets had entered the head and noted the mark of a blow to the right temple , a graze on the right hand , bruising on the back and a semi - circular lesion on the left hand , which resembled a bite mark . It concluded that PERSON had died due to destruction of brain tissue and brain haemorrhage .

On DATE statements were taken by the gendarmes from the driver of the ORG coach and his assistant . The gendarmes also took statements DATE from the applicant , his father , CARDINAL of his brothers and CARDINAL passengers on the coach .

On DATE Captain PERSON carried out a search , with a warrant , of the house where PERSON had lived , removing , inter alia , books , newspaper cuttings , a photograph and CARDINAL cassettes for further examination .

On DATE Captain PERSON informed the public prosecutor of the search , enclosing several of the items removed from the house and other documents concerning the investigation .

On DATE the public prosecutor issued a decision to continue the investigation , which stated that it had not been possible to identify or apprehend the perpetrators of the killing and that the search should continue until the expiry of the DATE limitation period .

On DATE an armed attack was carried out on the ORG Ticaret shop in GPE . The suspected perpetrators were pursued by police and a number of persons were arrested . The police incident report dated DATE stated that the suspect PERSON had been seen trying to escape by running up the stairs of a block of flats and was apprehended in a breathless , perspiring state . It was understood that he was returning to recover the NORP QUANTITY pistol located in front of the building .

A ballistics report dated DATE reported that the NORP pistol had been used in CARDINAL other shooting incidents , including the killing of PERSON . In an indictment dated DATE , also concerning CARDINAL other defendants , PERSON was charged with the offence of membership of the outlawed ORG organisation and carrying out activities with the intention of removing part of the country from the sovereignty of the ORG and forming a NORP State based on NORP principles . These activities were said to include the attack on Aydın Ticaret and the CARDINAL incidents in which the NORP pistol had been used .

NORP In the undated interrogation notes taken at ORG , PERSON was recorded as admitting his membership of the ORG and his participation in the attack on PERSON . He denied participation in the killing of PERSON and stated that he had been given the NORP pistol by another member of the group . In his statement of CARDINAL DATE to the public prosecutor , PERSON stated that his confessions to the police had been obtained by torture and denied that he had joined the ORG or that he had attacked PERSON .

The trial of GPE Güney , with other defendants , was conducted before ORG no . CARDINAL between DATE and DATE . On DATE ORG Güney denied his involvement in any of the incidents . At the hearing on DATE , the police officers who had arrested him confirmed the incident report of CARDINAL DATE without adding anything further . On DATE the court issued a request for documents relating to the killing of PERSON to be obtained .

In its judgment of DATE , the court convicted PERSON of being a member of a separatist organisation , the ORG . The court noted that he had been found trying to escape in the vicinity of the NORP QUANTITY pistol and that , although he later denied it , he had admitted to the police that he was a member of the ORG and that he had participated in the attack on the shop . It noted , however , that pistols belonging to the organisation could have been used by different individuals and that the defendants had stated that the guns had been given to them by other members of the group before the attack . It was found that although ORG Güney had participated in the attack on the shop he could not be held responsible for any other actions . ORG Güney was sentenced to life imprisonment .

Following the court 's decision , ORG chief public prosecutor opened an investigation into the killing of PERSON ( file no . CARDINAL/CARDINAL ) . By letter dated DATE , the prosecutor instructed the ORG gendarmerie command to report to him DATE concerning any evidence obtained about the GPE murder .

The contents of the investigation file compiled by the gendarmes and public prosecutor at ORG , as well as the minutes from the hearings in the trial of ORG Güney in ORG no . CARDINAL from DATE , were submitted to ORG . The Government provided the ORG with the judgment of ORG no . CARDINAL of DATE .

The applicant provided the ORG with a copy of the so - called “ GPE report ” , produced at the request of the Prime Minister by PERSON Kutlu Savaş , Vice - President of ORG within ORG . After receiving the report in DATE , the Prime Minister made it available to the public , although CARDINAL pages and certain annexes were withheld .

The introduction states that the report was not based on a judicial investigation and did not constitute a formal investigative report . It was intended for information purposes and purported to do no more than describe certain events which had occurred mainly in south - east GPE and which tended to confirm the existence of unlawful dealings between political figures , government institutions and clandestine groups .

NORP The report analyses a series of events , such as murders carried out under orders , the killings of well - known figures or supporters of the NORP and deliberate acts by a group of “ informants ” supposedly serving the ORG , and concludes that there is a connection between the fight to eradicate terrorism in the region and the underground relations that have been formed as a result , particularly in the drug - trafficking sphere . The passages from the report that concern certain matters affecting radical periodicals distributed in the region are reproduced below .

“ ... In his confession to ORG , ... PERSON ... had stated that PERSON [ ] [ p. CARDINAL ] would say from time to time that he had planned and procured the murder of PERSON [ ] and other partisans from the mafia and the ORG who had been killed in the same way ... The murder of ... PERSON [ ] had also been planned and carried out by PERSON [ p. CARDINAL ] .

Summary information on the antecedents of PERSON , who was of NORP origin , are set out below [ p. CARDINAL ] .

As of DATE he was CARDINAL of the financiers of the newspaper PERSON . ... Although it was obvious who PERSON was and what he did , the ORG was unable to cope with him . Because legal remedies were inadequate PERSON was blown up with plastic explosives and when PERSON started to set up a new undertaking , when he was expected to submit to the ORG , ORG decided that he should be killed and that decision was carried out [ p. CARDINAL ] .

All the relevant ORG bodies were aware of these activities and operations . ... When the characteristics of the individuals killed in the operations in question are examined , the difference between those NORP supporters who were killed in the region in which a state of emergency had been declared and those who were not lay in the financial strength the latter presented in economic terms . ... The sole disagreement we have with what was done relates to the form of the procedure and its results . It has been established that there was regret at the murder of PERSON , even among those who approved of all the incidents . It is said that PERSON was not involved in any armed action , that he was more concerned with the philosophy of the matter and that the effect created by his murder exceeded his own real influence and that the decision to murder him was a mistake . ( Information about these people is to be found in Appendix CARDINAL [ ] ) . Other journalists have also been murdered [ p. CARDINAL ] [ ] . ”

The report concludes with numerous recommendations , such as improving co - ordination and communication between the different branches of the security , police and intelligence departments ; identifying and dismissing security - force personnel implicated in illegal activities ; limiting the use of “ confessors ” ; reducing the number of village guards ; terminating the use of ORG outside the south - east region and incorporating it into the police outside that area ; opening investigations into various incidents ; taking steps to suppress gang and drug - smuggling activities ; and recommending that the results of ORG inquiry be forwarded to the appropriate authorities for the relevant proceedings to be undertaken .

The applicant provided this DATE report into extra - judicial or “ unknown perpetrator ” killings by ORG of ORG . The report referred to CARDINAL unsolved killings , of which CARDINAL involved journalists . It commented on the public lack of confidence in the authorities in south - east GPE on and referred to information that the ORG had a camp in the Batman region where they received political and military training and assistance from the security forces . It concluded that there was a lack of accountability in the region and that some groups with official roles might be implicated in the killings .

A delegation from the Commission heard evidence from CARDINAL witnesses : the applicant , Captain PERSON , the gendarme in charge of the investigation into the killing of PERSON , Mr PERSON , public prosecutor at ORG who had initiated the proceedings against PERSON , and Mr PERSON GPE , public prosecutor at ORG who had acted in the trial against PERSON .

Three other witnesses did not appear . PERSON , the night watchman , could not be traced . Mr ORG Fidanboy , the ORG public prosecutor , was due to attend but his flight to GPE was cancelled due to snow . Mr Ziyaeddin LOC , the governor of ORG at the material time , was asked to attend the hearings on DATE and DATE but did not appear . After the first hearing , the Agent of the Government provided the explanation that Mr Akbulut had been taking his DATE leave . Regarding the second hearing , the Agent submitted a letter from PERSON Akbulut which stated that he could not remember being petitioned by PERSON , that the allegations made were false and that he could not attend due to his annual leave .

The principles and procedures relating to liability for acts against the law may be summarised as follows .

Under LAW all forms of homicide ( Articles CARDINAL to CARDINAL ) and attempted homicide ( Articles CARDINAL and DATE ) constitute criminal offences . The authorities ' obligations in respect of conducting a preliminary investigation into acts or omissions capable of constituting such offences that have been brought to their attention are governed by ORG CARDINAL to CARDINAL of LAW . Offences may be reported to the authorities or the security forces as well as to public prosecutors ' offices . The complaint may be made in writing or orally . If it is made orally , the authority must make a record of it ( LAW .

If there is evidence to suggest that a death is not due to natural causes , members of the security forces who have been informed of that fact are required to advise the public prosecutor or a criminal court judge ( Article CARDINAL ) . By Article CARDINAL of LAW , any public official who fails to report to the police or a public prosecutor 's office an offence of which he has become aware in the exercise of his duty is liable to imprisonment .

A public prosecutor who is informed by any means whatsoever of a situation that gives rise to the suspicion that an offence has been committed is obliged to investigate the facts in order to decide whether or not there should be a prosecution ( LAW ) .

In the case of alleged terrorist offences , the public prosecutor is deprived of jurisdiction in favour of a separate system of national security prosecutors and courts established throughout GPE .

If the suspected offender is a civil servant and if the offence was committed during the performance of his duties , the preliminary investigation of the case is governed by LAW on the prosecution of civil servants , which restricts the public prosecutor 's jurisdiction ratione personae at that stage of the proceedings . In such cases it is for the relevant local administrative council ( for the district or province , depending on the suspect 's status ) to conduct the preliminary investigation and , consequently , to decide whether to prosecute . Once a decision to prosecute has been taken , it is for the public prosecutor to investigate the case .

An appeal to ORG lies against a decision of the council . If a decision not to prosecute is taken , the case is automatically referred to that court .

By virtue of DATE , paragraph ( i ) , of Decree no . CARDINAL of DATE on the authority of the governor of a state of emergency region , the DATE PERSON ( see paragraph CARDINAL above ) also applies to members of the security forces who come under the governor 's authority .

If the suspect is a member of the armed forces , the applicable law is determined by the nature of the offence . Thus , if it is a “ military offence ” under LAW ( Law no . CARDINAL ) , the criminal proceedings are in principle conducted in accordance with PERSON no . CARDINAL on the establishment of courts martial and their rules of procedure . Where a member of the armed forces has been accused of an ordinary offence , it is normally the provisions of LAW which apply ( see LAW and sections CARDINAL to CARDINAL of Law no . CARDINAL ) .

The Military Criminal Code makes it a military offence for a member of the armed forces to endanger a person 's life by disobeying an order ( LAW ) . In such cases civilian complainants may lodge their complaints with the authorities referred to in LAW ( see paragraph CARDINAL above ) or with the offender 's superior .

Under LAW of PERSON no . CARDINAL on administrative procedure , anyone who sustains damage as a result of an act by the authorities may , within DATE after the alleged act was committed , claim compensation from them . If the claim is rejected in whole or in part or if no reply is received within DATE , the victim may bring administrative proceedings .

Article CARDINAL § § CARDINAL and CARDINAL of the LAW provides :

“ All acts or decisions of the authorities are subject to judicial review ...

The authorities shall be liable to make reparation for all damage caused by their acts or measures . ”

That provision establishes the ORG 's strict liability , which comes into play if it is shown that in the circumstances of a particular case the ORG has failed in its obligation to maintain public order , ensure public safety or protect people 's lives or property , without it being necessary to show a tortious act attributable to the authorities . Under these rules , the authorities may therefore be held liable to compensate anyone who has sustained loss as a result of acts committed by unidentified persons .

DATE of Decree no . CARDINAL of DATE , the last sentence of which was inspired by the provision mentioned above ( see paragraph CARDINAL above ) , provides :

“ No criminal , financial or legal liability may be asserted against ... the governor of a state of emergency region or by provincial governors in that region in respect of decisions taken , or acts performed , by them in the exercise of the powers conferred on them by this decree , and no application shall be made to any judicial authority to that end . This is without prejudice to the rights of individuals to claim reparation from the ORG for damage which they have been caused without justification . ”

Under LAW , anyone who suffers damage as a result of an illegal or tortious act may bring an action for damages ( Articles CARDINAL to CARDINAL ) and non - pecuniary loss ( Article CARDINAL ) . The civil courts are not bound by either the findings or the verdict of the criminal court on the issue of the defendant 's guilt ( Article CARDINAL ) .

However , under LAW no . CARDINAL on ORG employees , anyone who has sustained loss as a result of an act done in the performance of duties governed by public law may , in principle , only bring an action against the authority by whom the civil servant concerned is employed and not directly against the civil servant ( see LAW ) . That is not , however , an absolute rule . When an act is found to be illegal or tortious and , consequently , is no longer an “ administrative ” act or deed , the civil courts may allow a claim for damages to be made against the official concerned , without prejudice to the victim 's right to bring an action against the authority on the basis of its joint liability as the official 's employer ( LAW ) .


No violation of Art. 3 (procedural aspect)

Anatoly Kovler;Erik Møse;Julia Laffranque;Khanlar Hajiyev;Mirjana Lazarova Trajkovska;Peer Lorenzen

The applicant was born in DATE and lived in GPE , GPE . On DATE the applicant died . On CARDINAL DATE Ms PERSON , the late applicant ’s mother ( born on DATE ) , and Mr PERSON , the late applicant ’s son ( born on DATE ) , expressed their wish to pursue the proceedings before the ORG .

On an unspecified date the police received information that certain “ persons with a criminal propensity ” would be gathering at the grave of a deceased gangster on CARDINAL DATE and that they would be carrying guns , explosives and drugs .

On DATE a group of police officers came to the cemetery and started checking the identification of the men and women gathered at the said grave . The applicant was among them . He did not have any documents on him . He was placed in a police car together with PERSON and NORP to be taken to the police station by officers PERSON .

On the way to the police station an altercation occurred between the applicant and the police officers . As a result , the applicant sustained multiple injuries and PERSON had an index finger cut . The police officers and the applicant disputed the circumstances of the incident . It appears that investigation was opened into the incident on DATE and resulted in CARDINAL sets of proceedings .

The applicant was released from the police custody on DATE . On DATE he was examined by a doctor in a clinic , who noted numerous bruises on his face and alcoholic intoxication .

On DATE the applicant underwent an X - ray examination which showed that he had sustained a fractured nose .

On an unspecified date the applicant lodged a complaint about police brutality . With regard to the events of CARDINAL DATE , he submitted that he had been detained by the police at the cemetery . No explanation had been furnished by the police officers as to the reasons for his detention . The applicant had criticised the police ’s actions and the policemen had then forced him into the car together with PERSON and NORP On the way to the police station he had continued to express his dissatisfaction with the police . S. , who had been driving the car , had turned back , had told him to shut up and had hit him in the face , breaking his nose . Then PERSON had stopped the car , and together with PERSON . , the other police officer , had pulled the applicant out of the car and had continued beating him . The applicant had lost consciousness . He had then been taken to the police station and released DATE .

On DATE the applicant was subjected to another forensic examination . The expert reiterated the earlier findings of the forensic examination of CARDINAL DATE , including the nature and time of the injuries , and added that the applicant had also sustained a fractured nose with a time of the injury similar to that of the other injuries .

On DATE an investigator from ORG in GPE dismissed the applicant ’s complaint of police brutality as unsubstantiated . In particular , the investigator stated as follows :

“ In the course of the inquiry [ the applicant ] submitted that on DATE the policemen had beaten him up at the cemetery ... in GPE . As result , he sustained injuries , including the nose fracture . He denied having assaulted the police officer .

Within the framework of the inquiry in response to the [ applicant ’s ] complaint of police brutality , he underwent a medical examination . It was established that [ the applicant ] sustained bruises on the top right side of the head , bruises on the left part of the forehead , bruises under the left eye and dorsum of the nose , petechiae on the left temple and on the right cheek and a fractured nose . The said injuries resulted from blunt force trauma ...

[ Policeman ] S. submitted that [ on DATE ] he had been in the taskforce which arrived at the cemetery ... where he had asked [ the applicant ] to proceed to the police car . Neither he nor other policemen had beaten the applicant . [ The applicant ] could have sustained injuries ... when they had pulled him out of the car after his assault . It was possible that [ the applicant ] had caused those injuries himself when resisting the policemen , hitting himself against the car and then falling .

[ Policeman ] Kh . submitted that [ the applicant ] had refused to get out of the car and had resisted when they pulled him out .

Having regard to the above , [ I conclude ] that the [ applicant ’s ] complaint of police brutality has not been confirmed . ... The fact that the applicant resisted being pulled out of the car suggests that his injuries could have been caused by his own actions or by the actions of the policemen who restrained him . ”

The applicant did not appeal against the decision of DATE to the courts

A criminal investigation was opened against the applicant due to the version of events provided by police officers PERSON . concerning the incident of CARDINAL DATE . According them , in the car the applicant took out a knife and tried to stab PERSON , who was driving the car , in the neck . S. saw the applicant ’s movements in the rear - view mirror and covered his neck with his hands . The applicant cut PERSON ’s right index finger . Kh . grabbed the applicant by the arm . S. stopped the car and got out . He opened the rear door and pulled out the applicant , who had managed to free himself from PERSON . The applicant fell out of the car , hitting his head against the car as he did so , and then landed on his face . The knife fell onto the road . The police officers handcuffed the applicant and took him to the police station .

NORP The investigator ordered the forensic examination of the applicant . On DATE the forensic expert examined the applicant and noted the following injuries : bruises on the top right side of the head , bruises on the left part of the forehead , bruises under the left eye and top of the nose , and petechiae ( evidence of bleeding under the skin ) on the left temple . The expert considered that the said injuries could have resulted from blunt force trauma occurring no earlier than one day prior to the applicant ’s examination .

On DATE NORP was questioned by an investigator and stated the following :

“ As I had drunk wine , I immediately fell asleep in the back seat . Then I was woken up by noise . I saw that the policeman who was in the driver ’s seat had blood on his right hand . I can confirm that when we were leaving the cemetery , that policeman had no injuries on his hands . Nor did I see any blood on him .

When I was woken up by the noise to see the policeman ’s hand covered with blood , I felt sick and lost consciousness . I can not tell whether the car stopped on the way [ to the police station ] . Nor do I know why the policeman ’s hand was bleeding . I do not know if anyone in the car had a knife on him ...

I regained consciousness when the car stopped at the police station . ”

PERSON was also questioned on DATE . He stated the following :

“ [ At the cemetery ] I was asked to get into [ a police car ] . I complied and got into the back seat . There was a guy wearing sunglasses sitting next to me behind the driver ’s seat ... [ He ] was severely intoxicated . He was mumbling ... On the way [ to the police station ] the guy who was sitting behind the driver moved his right arm towards the driver . In his hand he had an object which resembled a knife . The driver saw the guy ’s movements in the rear - view mirror and leaned forward . After that , the guy made another move with his right arm – [ holding ] the object resembling a knife – towards the driver . The driver , however , covered his neck with his right hand to protect himself and then grabbed the guy by the right hand . Then the driver stopped the car , opened the rear door next to the guy with the sunglasses with his left hand , grabbed the guy ’s right hand – holding a knife – with his left hand and pulled him out of the car . He kicked the guy in the chest . The other policeman ... took out a gun , told the others present in the car to sit and be quiet . Then he got out of the car and helped the driver to handcuff the guy . When the driver pulled the guy out of the car , the guy fell down on the asphalt and hit his face . ”

On DATE the applicant was charged with assaulting S.

It appears that on DATE the applicant was remanded in custody pending investigation . He was released on DATE .

On DATE a court authorised the applicant ’s detention arguing that the applicant might abscond , tamper with evidence or put pressure on witnesses . He remained in custody pending investigation and trial . In particular , the court noted as follows :

“ The court takes into account the fact that [ the applicant ] has a permanent place of residence . However , he is not officially married and he is unemployed ...

The [ applicant ’s ] contacts with PERSON and NORP , even though denied by the [ applicant ’s ] lawyer , have been noted by [ the investigators ] . Furthermore , the applicant himself did not deny that he was in contact with them ... Pursuant to the materials in the case - file , PERSON and NORP are the only eye - witnesses of the crime the applicant is charged with . Those persons have registered residence in GPE and GPE . They are unemployed and failed to appear [ for questioning ] . The court considers that , if released , the applicant might influence those witnesses .

The court takes into account the information furnished by [ the police department ] concerning the applicant ’s connection with [ known gangsters ] , that he is a member of an organised criminal group ... Having regard to the above , the court considers that ... the applicant might continue his criminal activities . ”

The investigating officer commissioned several expert evaluations , including that of the knife found at the alleged crime scene . As it turned out , the quality of the fingerprints on the knife was not good enough to determine their origin . The investigator also questioned the applicant , the police officers involved , the paramedic who had attended to LOC , and PERSON mother .

On DATE the investigator summoned PERSON and NORP to appear for questioning . Neither PERSON nor NORP were found at their last known addresses . The police questioned their neighbours and family , who stated that they had no knowledge of PERSON and NORP ’s whereabouts .

On DATE the forensic expert prepared another report on the basis of the prior medical documentation , including the results of the medical examination of CARDINAL DATE , the forensic report of CARDINAL DATE , GPE examinations of CARDINAL June and DATE , and the applicant ’s medical file . The expert concluded that the applicant might have sustained a fractured nose DATE prior to the date of the first X - ray examination of DATE . As regards the origin of the injury , the expert reiterated the earlier forensic findings .

On DATE the investigator forwarded the applicant ’s case file to the court .

During the trial the applicant pleaded not guilty . He denied assaulting PERSON or having had a knife .

On DATE the applicant unsuccessfully asked the court to admit as evidence written statements made by PERSON and NORP which corroborated his version of the events of CARDINAL DATE . In particular , the court indicated as follows :

“ Pursuant to the [ rules of criminal procedure ] , [ such ] statements can not be considered as evidence . Furthermore , [ PERSON and NORP ’s ] signatures are not duly certified , which fact may give rise to doubts as to whether the statements were made by PERSON and NORP and as to their admissibility as evidence . If the defence can obtain NORP and PERSON ’s attendance in court for questioning or indicate their whereabouts to the court , the court , if requested so by the parties , may summon and question those persons . ”

On DATE the ORG found the applicant guilty as charged and sentenced him to DATE imprisonment . In particular , the court noted as follows :

“ ... the fact that the [ applicant ] has committed the crime ... is confirmed by the following evidence :

By the testimony given by [ police officer ] S. ... ;

By the testimony given by [ police officer ] Kh . ... ;

By the testimony of [ Police officer ] ORG . , who testified that on the way from the cemetery to [ the police station ] he was in the car that followed the one PERSON was driving . ... When PERSON stopped his car , [ Sh . ] saw PERSON , whose right hand was bleeding , and PERSON . , who ran out of the car . They opened the rear door of the car and pulled [ the applicant ] out . [ The applicant ] had a knife in his right hand . The [ police officers ] knocked the knife out of his hand , put him on the ground and handcuffed him . Then PERSON wrapped his injured finger with a handkerchief . TIME an ambulance appeared and provided medical assistance to S.

The crime scene investigation report notes that ... inside the [ police car ] , CARDINAL brown stains were discovered on the left rear door . PERSON spots resembling blood ... were also discovered inside the car on the steering wheel , on the interior of the window pane next to the driver ’s seat , on the door near the driver ’s seat , [ and on the ] windscreen wiper stalk near the steering wheel . A handkerchief covered with brown stains was found on the floor of the car , on the left side near the driver ’s seat . A flick knife ... was found next to the left of the car ...

The report on the findings of the biological forensic expert evaluation ... of DATE states that blood , which could have belonged to PERSON , was found on the flick knife and the handkerchief and in CARDINAL samples taken from the asphalt next to the police car , the car ’s steering wheel , the handle in the car and the [ applicant ’s ] right hand . It is possible that the samples also contain the [ applicant ’s ] blood provided that he sustained injuries causing bleeding , but it is ruled out that the blood belonged only to him ...

Further to defence counsel ’s request , witness ORG , [ R. ’s mother ] , testified in court .

She learnt from her son , NORP , that on the way to the police station [ the applicant ] continued to “ ask for trouble ” in the car . The policemen advised him to shut up and then CARDINAL of them punched him in the face with his fist . He started bleeding . The policemen pulled him out of the car and continued beating him .

Regard being had to all the evidence examined in the course of the proceedings , the court views witness ORG ’s testimony critically ... Her testimony is refuted not only by the testimony given by ORG . , but also by data contained in the crime scene investigation report and the findings of the biological forensic expert report .

According to the testimony given by PERSON . , and [ the applicant ] , the latter was seated in the back seat of the car . [ The applicant ] and ... PERSON alleged that the [ applicant ] bled severely after the policeman hit him in the face .

However , this is not confirmed by the crime scene investigation report , which shows that there was no blood discovered in the seat occupied by the [ applicant ] in the car .

Furthermore , according to the above - mentioned report and the findings of the biological forensic expert evaluation report , the blood found both in the car and next to it , belonged to [ S. ] and possibly to [ the applicant ] . It did not belong only to [ the applicant ] .

Having regard to the data contained in the crime scene investigation and the forensics reports , it is not possible to accept as substantiated the applicant ’s allegations about being beaten in police custody ...

According to the testimony given by PERSON . , the applicant sustained the injuries as a result of the police efforts to put a stop to his unlawful actions . He hit his head and face against the asphalt and the frame of the car when [ the policemen ] pulled him out of the car . This is confirmed by the findings of the medical forensic report of CARDINAL DATE confirming that [ the applicant ] could have sustained the injuries as a result of contact with solid blunt objects within the period in question .

The court finds [ the applicant ] guilty [ beyond reasonable doubt ] . ”

On DATE ORG upheld the applicant ’s conviction on appeal . As regards the trial court ’s failure to question PERSON and NORP , ORG indicated as follows :

“ According to the materials of the case file , PERSON and NORP were detained together with [ the applicant ] and placed in the same police car . They made written statements [ about the incident ] . However , they were not questioned , pursuant to the rules of criminal procedure . During the investigation and at trial it was impossible to establish their whereabouts .

According to ORG ’s testimony , NORP is her son . He left home on CARDINAL DATE . Since then , he has showed up only once – in DATE . His whereabouts are not known to her .

As regards her son ’s account of the events of [ CARDINAL DATE ] , PERSON gave contradictory testimony . First , she claimed that her son had seen that [ the applicant ] had been beaten up and covered with blood . He had not remembered , however , what had happened in the car because he had been asleep there after drinking . Then she asserted that [ the applicant ] had been beaten up by the policemen in the car and then next to it . Under such circumstances , the [ trial ] court had reasons to critically assess that witness ’s testimony .

The court ’s decision not to admit as evidence PERSON and PERSON ’s written statements submitted by [ the applicant ’s ] counsel has also been justified . ”

On an unspecified date the applicant sued ORG for damages resulting from his injuries . On DATE the ORG of GPE dismissed the claim without examination of the merits for the applicant ’s failure to comply with certain procedural requirements for lodging civil claims . It appears that the applicant failed to comply with those requirements and on DATE the statement of claim was returned to him . On DATE ORG upheld the decision of DATE on appeal .

On an unspecified date the applicant resubmitted his claims . On CARDINAL DATE ORG dismissed them . The applicant ’s representative was present in court . On DATE ORG upheld the judgment on appeal .

On DATE the applicant was transferred to correctional colony no . CARDINAL in GPE . On DATE he was placed in a prison hospital . He died on DATE . The autopsy showed tuberculosis and AIDS as causes of death .

On DATE the case file containing the applicant ’s complaint of police brutality was destroyed after the expiry of the statutory period for its storage .


Violation of Art. 5-4;No violation of Art. 5-1;Violation of Art. 5-3;No separate issue under Art. 13;No violation of Art. 14;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

The applicant , then DATE , was convicted of the murder of his grandmother on DATE . At his trial , he had unsuccessfully raised the defence of diminished responsibility , based on the fact that he had been addicted to glue sniffing for DATE . He was sentenced to detention at Her ORG Pleasure pursuant to section CARDINAL(CARDINAL ) of ORG . His tariff ( the portion of sentence representing punishment and deterrence ) was set at DATE .

On DATE , the applicant , aged DATE , was released on life licence .

No concerns arose with his supervising probation officer until in DATE the applicant told her that he had been having a sexual relationship with GPE , a DATE youth . PERSON was regarded as a vulnerable youth and had been provided with the support of a social worker following his involvement in a theft offence .

NORP In DATE , the applicant was arrested on suspicion of being in possession of prohibited drugs ( namely , ecstasy tablets ) . He was taken to a police station and released on bail . His probation officer sent him a registered letter requesting him to meet her on DATE . He did not attend the meeting or make any contact by telephone until DATE , when he agreed to meet her DATE .

On DATE , however , the applicant made a suicide attempt , taking CARDINAL paracetamol tablets . He was discharged from hospital on DATE . He met his probation officer on DATE and agreed to meet her again on DATE . He failed to keep the appointment , telephoning to say that he had overslept .

On DATE , he met with his probation officer and PERSON from ORG . During this meeting , the applicant admitted that he had been using drugs ( ORG , ecstasy and cannabis ) since his release from prison and that his use of ecstasy was beyond his control . He obtained the drugs from friends or acquaintances who expected him to do favours for them in return . He stated that he was no longer having a sexual relationship with PERSON but that PERSON had been staying with him at his flat . He met with his probation officer again on DATE .

In her report of DATE , the probation officer stated :

“ Until DATE [ the applicant ’s ] response to his ORG , in terms of reporting for appointments , had been exemplary and he appeared to have made good progress in settling into the community , via stable employment and the allocation of his own council flat . It would appear however , that his resignation from his job in DATE significantly impacted on the sense of structure and purpose he then had DATE to day life which he now admits he has since found difficult to attain . Until recently , his presentation during our meetings gave no cause for concern . However , he now reports that he had been less than honest about the changes in his functioning as he feared a recall to prison , particularly given his initial stability and progress . In addition to his now admitted drug use , it would appear that [ the applicant ’s ] anxieties about his future are limited to : ( a ) his previous unsafe sexual practices and the possible consequences of this on his health ; ( b ) his wish to have a long - term and supportive monogamous relationship ; ( c ) his growing sense of loneliness and isolation despite a wide social network ... and ( d ) a sense of stagnation about the course of his life , particularly in finding alternative employment to date , despite extensive efforts . These issues , alongside [ the applicant ’s ] behaviour over DATE , clearly indicate that he is vulnerable and that close monitoring of his situation at this time is crucial . ”

She concluded that he posed a risk to himself and that there are “ no indications that he is a risk to the public in terms of dangerousness ” .

On DATE , the Assistant Chief Probation Officer prepared a report that stated :

“ [ The applicant ] had demonstrated , and recently admitted , that his behaviour has been both self - destructive ( through drug misuse , relationships with others and a suicide attempt ) and that he posed a risk to a minor . ... The area of risk to the public stems from his relationship with a minor . ”

She noted that there had been an openness about long - standing problems and some degree of insight coming out of the crisis of DATE that suggested that the applicant could work on them . She concluded that a final recommendation was difficult given the area of risk to himself and proposed that a psychiatric report be prepared concerning his current level of functioning and future prognosis and specifically an assessment of self - harm .

On DATE , ORG considered the applicant ’s case and recommended his recall to prison .

On DATE , the Secretary of ORG accepted the recommendation , revoked the applicant ’s licence and recalled him to prison . He was informed that the reasons for his recall were

“ CARDINAL . You have recently disclosed that you have been misusing drugs since your release in DATE , and following your arrest in DATE ] there is also a possibility that you will be convicted of the possession of , and intent to supply , illegal drugs .

You have been associating with a minor and you have admitted that your relationship was of a sexual nature .

You have breached your licence conditions by not maintaining contact with your supervising officer in accordance with her instructions and by not being open and honest with her .

You attempted suicide .

ORG and the Secretary of ORG took the view that for your own safety and the safety of others it was inappropriate to allow you to remain at liberty . ”

On DATE and CARDINAL DATE , the applicant submitted written representations to ORG concerning his recall to prison . He admitted inter alia that before his arrest in DATE he had been taking CARDINAL ecstasy tablets a day and that he had not been honest about his drugs abuse with his probation officer . He stated that his relationship with PERSON was now platonic and that he had terminated sexual contacts on discovering that he was DATE . He stated that he had not been involved in drug dealing and hoped to be able to deal with his drug problem , now it was out in the open , with the assistance of the probation service within the community .

On DATE , ORG considered the applicant ’s case . There was no oral hearing . It decided :

“ The index offence involved the brutal murder of [ the applicant ’s ] grandmother , when he was DATE . After constructive progress in prison , which included work on CARDINAL of the key risk factors - drug abuse - he was released on licence in DATE . In DATE , [ the applicant ] was recalled to prison for drug misuse , including the possibility that he will be convicted of intention to supply , having a sexual association with a minor , breach of licence conditions and attempted suicide .

The ORG has considered all the relevant reports and taken careful note of [ the applicant ’s ] representations ... In spite of the considerable attempts by ORG to enforce [ the applicant ’s ] licence , his behaviour in DATE demonstrates that he is at risk not just to himself but to other members of the community . Irrespective of whether [ the applicant ] is convicted of an offence , he has admitted extensive illegal drug abuse and the concerns about his sexual involvement with a minor were sufficient to merit a case conference . Furthermore , the incidents of self harm indicate the need for thorough psychiatric assessment . It is in the interests of public safety and [ the applicant ’s ] longer term well being that the recall be confirmed . A full assessment of the factors underlying the breakdown of the licence needs to be made , together with plans to tackle what appears to be deep rooted problems of drug abuse and social isolation .

The ORG noted that [ the applicant ] has shown a willingness to co - operate with Probation and has demonstrated an ability to comply with the terms of his licence . DATE should be sufficient time for him to be assessed to stabilise and to tackle the problems identified . ”

On DATE , the applicant was informed that ORG had considered his recall on the papers and upheld the decision to revoke his life licence . He was told that he would be informed of the date of the next review once ORG had made a decision regarding the case against him for drugs possession .

On DATE , the applicant was informed that ORG had decided not to prosecute him for the alleged drugs offence and that his case would be reviewed by ORG in DATE .

A number of reports were prepared to assist ORG in the coming review .

In his report of DATE , PERSON , the Principal Case Officer stated :

“ [ The applicant ’s ] misuse of illegal substances for DATE remains a major risk concern . However he acknowledges this and had taken steps to challenge this issue . If he can display the same harmony in the community as he has in the custodial setting there is no purpose served by his retention in custody . However constructive supervision and support will initially be required . ”

His probation officer stated in a report of CARDINAL DATE :

“ ... provided that he is given the necessary support and receives sustained input to encourage his current anti - drugs attitude and drug - free status , he can safely be released into the community . ”

In a report of DATE , a forensic psychologist noted that “ the major risk factor contributing to his committing the original offence ... was drugs abuse ” .

In DATE , the applicant received his parole dossier . On seeking legal advice prior to his ORG review , the applicant was advised that ORG had failed to apply the procedure applicable to his recall under the interim arrangements implemented pending the entry into force of LAW DATE . He should under those administrative provisions have received an oral hearing concerning his recall , though this was not a statutory entitlement .

An application for legal aid for bringing judicial review proceedings was made on DATE and legal aid granted on DATE .

On DATE , ORG informed the applicant :

“ We have now looked into the circumstances surrounding the revocation of [ the applicant ’s ] life licence in DATE . While we accept that , due to an oversight , the procedures did not follow the interim arrangements for dealing with ORG detainees , there is , in our view , no question that [ the applicant ’s ] recall to prison was or is in any way unlawful or invalid ...

Under the circumstances , we see no reason or justification for any declaration or order directing his release or authorising compensation . ”

On DATE , the applicant applied for judicial review . Leave was granted on DATE . The full hearing of his case was not scheduled to take place until DATE .

An oral hearing was held by ORG on DATE , at which the applicant was present and represented , following which it directed the applicant ’s release . In its decision it stated :

“ In reaching its decision the panel took account of the following :

( i ) the absence of any violence or threat of violence since the index offence either in prison or when on licence for DATE ;

( ii ) your acceptance of an inappropriate lifestyle when previously released on licence and your frank acknowledgement of your drug abuse during that time ;

( iii ) the fact that since recall you have been drug free ;

( iv ) reports of your increased maturity and strong motivation to keep clear of drugs and the drug scene in future ;

( v ) the greater relevance of the proposed community based drugs rehabilitation and relapse prevention programme that is available through drug link ;

( vi ) the agreement of ORG to provide an approved probation hostel place for DATE to assist in your reintroduction to the community and the help you will receive in obtaining employment ;

( vii ) your acceptance of the need to be totally honest with your supervising probation officer in future ... ”

The applicant was released on CARDINAL DATE .

In advice dated DATE , counsel advised that since he had been released no further purpose could be served by continuing with the judicial review application . There was no prospect of obtaining any damages for the period spent in detention after recall .

On DATE , the judicial review proceedings were ended by a consent order .

On DATE , the applicant was again recalled to prison , following his arrest for possession of a Class A drug ( ecstasy ) and a Class B drug ( cannabis ) . His recall was recommended by ORG and he continues to be detained in prison on the recommendation of ORG following periodic reviews of his case . He is currently detained in open prison and his next review is scheduled for DATE .

English law imposes a mandatory sentence for the offence of murder in respect of offenders under the age of CARDINAL known as detention during Her Majesty ’s Pleasure ( section CARDINAL(CARDINAL ) of ORG ) ; in respect of offenders between the age of DATE , custody for life ( section CARDINAL(CARDINAL ) of LAW DATE ) , and in respect of offenders aged CARDINAL and over , life imprisonment ( section CARDINAL(CARDINAL ) of the Murder ( Abolition of Death Penalty ) Act DATE ) .

Mandatory life sentences are fixed by law , in contrast to discretionary life sentences which can be imposed at the discretion of the trial judge on persons convicted of certain violent or sexual offences ( e.g. manslaughter , rape or robbery ) . The principles underlying the imposition of a discretionary life sentence are :

( i ) that the offence is grave , and

( ii ) that there are exceptional circumstances which demonstrate that the offender is a danger to the public and that it is not possible to say when the danger will subside .

Discretionary life sentences are indeterminate in order that “ the prisoner ’s progress may be monitored ... so that he will be kept in custody so long as public safety may be jeopardised by his being let loose at large ” ( R v. PERSON [ DATE ] CARDINAL Cr . App . Rep. CARDINAL , p. CARDINAL ) .

NORP The notion of detention during Her Majesty ’s Pleasure had its origins in an Act of DATE for “ the safe custody of insane persons charged with offence ” . Section CARDINAL provided that defendants acquitted of a charge of murder , treason or felony on the grounds of insanity at the time of the offence were to be detained in “ strict custody until His Majesty ’s pleasure ” and described their custody as being “ during His [ Majesty ’s ] pleasure ” .

In DATE , detention during His LOC pleasure was introduced in respect of offenders aged DATE and then extended to cover those under DATE . The provision in force at present is Section CARDINAL(CARDINAL ) of ORG as amended ) which provides :

“ A person convicted of an offence who appears to the ORG to have been under DATE at the time the offence was committed shall not , if he is convicted of murder , be sentenced to imprisonment for life nor shall sentence of death be pronounced on or recorded against any such person but in lieu thereof the court shall ... sentence him to be detained during Her ORG ’s pleasure and , if so sentenced , he shall be liable to be detained in such a place and under such conditions as the Secretary of ORG may direct . ”

In the case of ex parte PERSON on DATE , PERSON in ORG held as follows in respect of detention during Her ORG Pleasure :

“ At the time of sentencing , the detention orders under LAW were mandatory . It is indeed the statutory equivalent for young persons of the mandatory life sentence for murder . But the sentence itself is closer in substance to the discretionary sentence of which part is punitive ( retribution and deterrence ) and the balance justified only by the interests of public safety when the test of dangerousness is satisfied . The fact that the mandatory life prisoner may be given similar rights as regards release on licence does not alter the fact that the mandatory life sentence is justifiable as punishment for the whole of its period : see NORP v. Secretary of ORG , ex . p. Doody & others [ DATE ] Q.B. CARDINAL and GPE v. GPE ( DATE ) . The order for detention under section DATE is by its terms both discretionary and indeterminate : it provides for detention ‘ during Her Majesty ’s pleasure’ . ( Section CARDINAL(CARDINAL ) which expressly authorised the Secretary of ORG to discharge the detainee on licence ‘ at any time’ was repealed by ORG provisions of LAW DATE , but this does not , in my judgment , alter the nature of the sentence in any material respect . ) I would decide the present case on the narrow ground that , notwithstanding ORG practice , the applicant should be regarded as equivalent to a discretionary life prisoner for the purpose of deciding whether ORG rather than ORG governs his case . ”

The Divisional Court accordingly held that the applicant in that case , who was detained during Her Majesty ’s pleasure , should be afforded the same opportunity , as would be given a discretionary life prisoner , to see the material before ORG when it decided upon whether he should be released after his recall to prison on revocation of his licence .

Persons sentenced to mandatory and discretionary life imprisonment , custody for life and those detained during Her ORG have a “ tariff ” set in relation to the period of imprisonment they should serve in order to satisfy the requirements of retribution and deterrence . After the expiry of the tariff , the prisoner becomes eligible for release on licence . Applicable provisions and practice in respect of the fixing of the tariff and release on licence have been subject to change in DATE , in particular , following the coming into force on DATE of LAW DATE .

Under the relevant provisions of LAW DATE , the regime applying to the release of discretionary and mandatory life prisoners was the same . Section CARDINAL(CARDINAL ) of the CARDINAL Act provided inter alia that :

“ The Secretary of ORG may , if recommended to do so by ORG , release on licence a person serving a sentence of imprisonment for life or custody for life or a person detained under LAW DATE ( young offenders convicted of grave crimes ) , but shall not do so in the case of a person sentenced to imprisonment for life or custody for life or to detention during Her Majesty ’s pleasure or for life except after consultation with the Lord Chief Justice of GPE and the trial judge if available . ”

The DATE Act instituted changes to the regime applicable to the release of discretionary life prisoners following the decision of ORG in the case of GPE , PERSON and PERSON v. GPE ( judgment of DATE , Series A no . CARDINAL ) .

Pursuant to section CARDINAL of the CARDINAL Act , after the tariff expired , the prisoner could require the Secretary of ORG to refer his case to ORG which had the power to order his release if it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined . Pursuant to ORG DATE which came into force on DATE , a prisoner was entitled to an oral hearing , to disclosure of all evidence before ORG and to legal representation . He was also entitled to call witnesses on his behalf and to cross - examine those who have written reports about him .

The regime applicable to mandatory life prisoners and prisoners detained during Her ORG Pleasure was , however , preserved within LAW . LAW of the DATE Act provided insofar as relevant :

“ ( CARDINAL ) NORP If recommended to do so by ORG , the Secretary of ORG may , after consultation with the Lord Chief Justice together with the trial judge if available , release on licence a life prisoner who is not a discretionary life prisoner . ”

The criterion for determining whether re - detention was justified was that of dangerousness , meaning a consideration of whether the offence constitutes an unacceptable risk of physical danger to the life or limb of the public ( see R v. Secretary of ORG for ORG , ex parte PERSON , unreported , transcript pp . DATE ; PERSON v. the GPE , judgment of DATE , Reports of Judgments and Decisions CARDINAL-I , at § CARDINAL ) .

Pursuant to section CARDINAL of the DATE Act , the Secretary of ORG could , on recommendation of ORG , revoke the licence of such a life prisoner who had been released on licence . In such circumstances , the prisoner had the right to make written representations with respect to his recall and for a review to be carried out by ORG . Where the ORG then recommended release on licence , the Secretary of ORG was under a duty to give effect to that recommendation ( section CARDINAL(CARDINAL ) ) .

In light of the judgments of the ORG in the cases of PERSON v. the GPE ( cited above , p. CARDINAL ) , and PERSON v. the GPE ( judgment of DATE , Reports CARDINAL , p. CARDINAL ) , the Secretary of ORG announced , on DATE , the introduction of interim measures taking effect from DATE which changed the procedure under which the cases of prisoners detained during Her ORG were reviewed by ORG .

Pursuant to these measures , the review took the form of an oral hearing at which prisoners were entitled to legal representation and to examine and cross - examine witnesses . Prisoners also normally received full disclosure of all material relevant to the question of whether they should be released prior to the hearing . Pending amendment of CARDINAL ) of the CARDINAL LAW , ORG did not , however , have power to direct the release of any prisoner ( save in circumstances provided for in section CARDINAL of the DATE Act above ) .

On DATE , ORG came into force , giving statutory effect to the interim arrangements . ORG ) further provided that the Secretary of ORG was under a duty to release a prisoner detained during Her ORG where so directed by ORG .


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

On an unspecified date the applicant ’s mother was granted , by way of an administrative decision , a protected tenancy of an apartment located in a house owned by the municipality and subject to the compulsory management of the local housing administration . The applicant lived in this apartment since he his birth .

In DATE his brother and father , who apparently had been in conflict with the applicant , instituted proceedings to have the applicant ’s name deleted from the local register of inhabitants on the ground that he did not live in the apartment . On an unspecified date the housing administration refused their request .

On DATE the applicant ’s mother died . The applicant requested that the housing administration conclude a tenancy agreement with him as her mother ’s legal successor in respect of the tenancy contract , as provided for by law . This was refused by a letter of DATE on the ground that the applicant did not comply with the requirement for such a succession set out by LAW , since he did not live in the apartment . At the same time the housing administration instituted proceedings to delete the applicant ’s registration from the list of inhabitants of the building . On DATE the administration reiterated their refusal to conclude a tenancy agreement with him .

On DATE the Mayor of PERSON gave a decision striking the applicant ’s name from the register of inhabitants of the building concerned , considering that it transpired from the evidence that he had not been living there . On DATE this decision was upheld .

On DATE the applicant brought a civil action against the municipality under LAW , regulating conditions of succession to the right of lease of apartments , including protected tenancies , claiming a declaration that he was a legal successor of the former tenant of the apartment , his mother .

On DATE the ORG , by way of a judgment in default , allowed his claim . The housing administration lodged an objection against this judgment .

On DATE ORG , having reconsidered the case , upheld the judgment and confirmed that the applicant was a successor in respect of the tenancy contract .

On DATE the applicant requested ORG to take steps to make the judgment operational by concluding a tenancy agreement with him .

In a letter of DATE the municipality stated the following :

“ In reply to your letter and with reference to the attached judgment of DATE , I should inform you that under that judgment you became your mother ’s successor in respect of the tenancy contract , but that it is impossible to conclude such a contract with you .

This is so because an internal enquiry showed that you had not been living in that apartment on a permanent basis . This has already resulted in the decision of the Mayor striking your name out of the list of inhabitants of the building .

Consequently , pursuant to LAW . of LAW of DATE on the protection of the rights of tenants , housing resources of municipalities and amendments to LAW , the municipal office hereby gives DATE notice in respect of the contract which you obtained under the judgment referred to above , the contract expiring on DATE . The factual basis for the termination of contract is the fact that you have not been living in this apartment for a period longer then DATE . “

The applicant appealed against this letter , the legal status of which was uncertain , in that it was not clear whether it was an administrative decision ; he complained that the municipality had refused to comply with the final judgment of the civil court .

On DATE ORG of the Wrocław Region informed the applicant that it was not competent in housing matters , and that the letter complained of was not an administrative decision in any event , against which an appeal to a higher authority would lie .

On DATE the applicant lodged an action with ORG in which he sought a declaration under LAW that a contractual tenancy relationship existed between him and the municipal office . These proceedings are pending .

DATE on , housing matters were subject to a high degree of state control under successive provisions of housing legislation . The most important characteristic of this system , a so called “ special lease scheme ” , was that a tenancy was created by means of an administrative decision and not by a civil law contract between the landlord and the tenant . Under these protected tenancies , the tenants paid controlled rent and the owners could not terminate lease by giving notice to the tenant . The special lease scheme was also applicable to houses owned , until DATE , by ORG , and after the reform of the local administration , by the municipalities .

Although “ the special lease scheme ” was abolished under LAW , the system of protected tenancy is still applicable to tenants who were allocated their apartments on the basis of previous administrative decisions .

Under transitional provisions of the DATE Law , protected tenancies which had originated in administrative decisions given in the past under the special lease scheme were to be regarded as contractual leases concluded for an indefinite period and governed by the provisions of the DATE Law . LAW maintained , albeit with slight modifications of wording , the rules concerning the protection of tenants against termination of leases continued on the basis of previous administrative decisions and the right of succession to a lease .

Until the entry into force of the DATE Act the right to succession of a protected tenancy was regulated by LAW , which provided that in case of the death of a tenant , his descendants had a right of succession in respect of the tenancy , if they lived in the same apartment at the time of the original tenant ’s death .

The DATE Act repealed this provision and replaced it by LAW , which read :

“ CARDINAL . In case of the death of a tenant and on condition that they lived in the household of a tenant until his death , his descendants , ascendants , adult siblings , adoptive parents or adopted children and a person who has lived with a tenant in de facto marital cohabitation , shall succeed to the tenancy agreement and acquire the tenant ’s rights and obligations connected with [ the lease of ] the flat , unless they relinquish that right to the landlord . This provision does not apply to persons who , when the [ original ] tenant died , had title to another residential dwelling .

NORP In cases where there is no successor to the tenancy agreement , or where the successors have relinquished their right , the lease shall expire . ”

In DATE parliament adopted a new law governing housing matters and relations between landlords and tenants . LAW of DATE on the protection of the rights of tenants , housing resources of municipalities and amendments to LAW ( LOC o ochronie praw lokatorów , mieszkaniowym zasobie gminy i o zmianie LOC cywilnego ) ( “ the DATE LAW ) entered into force on DATE . It repealed LAW and reinserted LAW into LAW .

Under LAW ( CARDINAL ) CARDINAL of that Act , the owner of apartment can give DATE notice on the tenancy contract if the tenant has not been living in that apartment for DATE .

The obligation for NORP citizens residing in GPE to register their permanent address in a municipality ’s register of inhabitants is stipulated in LAW ( LOC o ewidencji ludności i dowodach osobistych z CARDINAL.CARDINAL.CARDINAL ) .

Under LAW , the notion of “ living permanently ” implies residing at a given address with the intention of making it the principal centre of one ’s vital interests . LAW provided that : “ a person applying to have their permanent or temporary residence registered shall submit a certificate to the effect that they are entitled to stay in the apartment ( or other dwelling LOC ) concerned . ” On DATE the NORP Constitutional Court declared Article CARDINAL ( CARDINAL ) of LAW unconstitutional and , subsequently , this provision was repealed with effect from DATE . As a result of the judgment of ORG , a certificate to the effect that a person is entitled DATE within the civil law sense of the term - to stay in an apartment is no longer a prerequisite for having his permanent or temporary residence registered .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Mihai Poalelungi;Nicolas Bratza

The first applicant is PERSON . He was born in DATE and is represented by Mr PERSON , a solicitor with ORG , a non - governmental civil liberties organisation based GPE . The second applicant is PERSON . She is represented by PERSON of Bindmans Solicitors , GPE . Both are NORP nationals and live in GPE .

s , may be summarised as follows .

s

On DATE the first applicant participated in a demonstration , which he had organised , in GPE opposite FAC , a “ designated area ” within the meaning of section CARDINAL of the Serious Organised Crime and Police Act CARDINAL ( “ the DATE LAW ) . The second applicant also participated in it .

Prior to DATE the first applicant had informed the police orally that the demonstration was going to be held , he gave the time , date and place of the demonstration and ( politely ) informed the police that an authorisation would not be sought . He had also posted information DATE before the demonstration on a website confirming that it was not authorised so that the risk of arrest was high and that , in fact , he had been informed by the police that he would be arrested under LAW . The second applicant was also aware prior to the relevant date that authorisation had not been sought so that demonstrating in that area would be an offence . ORG later noted that the demonstration was just as much a demonstration against the requirement for an authorisation under LAW as against the NORP conflict . ORG ( in its case stated to ORG in the first applicant ’s case ) noted police evidence to the effect that , had authorisation been sought , no conditions would have attached to it .

At the demonstration , the first applicant read out names of NORP citizens killed in the NORP conflict and the second applicant read out names of NORP soldiers killed in that conflict . Placards were displayed about the GPE conflict and a bell was rung at regular intervals . The applicants behaved in a peaceful and orderly manner throughout . The police attended at the demonstration and warned the applicants that they would be arrested and charged if they continued given the lack of an authorisation . The police then withdrew to enable the applicants to stop the demonstration . They chose to continue .

The first and second applicants were therefore arrested , detained in the police station for a number of TIME and charged : the first applicant for having organised an unauthorised demonstration in a designated area contrary to section CARDINAL ) of LAW and the second for having participated in the same demonstration contrary to section CARDINAL ( CARDINAL ) of that Act . It appears that both were granted police bail : the documents submitted do not indicate that bail was subject to any conditions ( apart from appearing before ORG on the relevant date ) .

Before ORG the applicants argued that section CARDINAL(CARDINAL ) ( a ) and ( b ) of the DATE Act were not compatible with Articles CARDINAL and CARDINAL of the Convention . Unless those provisions were interpreted compatibly with those ORG , their convictions would be unlawful . ORG found that the relevant sections were necessary and proportionate restrictions of the applicant ’s rights under LAW . In any event , additional words could not be read into the sections as that would run counter to legislative intent . The convictions would not therefore be unlawful under LAW . The applicants were convicted as charged on DATE and DATE , respectively . The first applicant was sentenced to a fine of QUANTITY ( GBP ) and ordered to contribute to prosecution costs in the sum of GBPCARDINAL and the second applicant was sentenced to a conditional discharge of DATE and to contribute to costs in the sum of GBPCARDINAL .

The applicants appealed by way of a case stated to ORG . They conceded that section CARDINAL ) and ( b ) was not incompatible with Articles CARDINAL and CARDINAL of the Convention but argued that the relevant State actors ( the police , ORG and the courts ) should have been required to justify the necessity to act ( arrest , prosecute and convict ) on the facts of each individual case . Accordingly , those authorities should have looked not merely at whether there was an authorisation but also at the later peaceful conduct of the actual demonstration . Since ORG had not considered the justification for their conviction along those lines , their arrest , prosecution and conviction were contrary to their Convention rights .

By judgment dated DATE , ORG dismissed the ORG appeals ( and the appeals of CARDINAL others , PERSON and Others v Director of Public Prosecutions [ CARDINAL EWHC CARDINAL ( Admin ) ) . It noted that the only charge against the applicants was demonstrating without an authorisation . ORG considered that the reasoning in the case of PERSON v. GPE ( no . CARDINAL/CARDINAL , DATE ) was compelling . Nothing in the other Convention or domestic jurisprudence opened to ORG undermined that reasoning . Those Convention and domestic cases rather raised various public order , safety and security issues ( NORP “ FAC für das PERSON ” v. GPE , DATE , Series A no . CARDINAL ; PERSON v. GPE , DATE , Series A no . CARDINAL ; and PERSON and ORG v. GPE , ORG CARDINAL and CARDINAL , ECHR CARDINALIX , as well as PERSON v. ORG , no . CARDINAL/CARDINAL , Commission decision of DATE , CARDINAL Decisions and Reports ( “ GPE ” ) , CARDINAL ; and PERSON v. GPE , No . CARDINAL/CARDINAL , Commission Decision of DATE , PERCENT DATE ) . Accordingly , once it was accepted that the section requiring the authorisation was compatible with LAW ( as the applicants did ) , ORG was not required to look at the nature of the activity actually pursued thereafter without authorisation in order to determine whether a sanction should be imposed . Once an authorisation procedure was LAW , ORG was entitled to impose sanctions for a failure to obtain authorisations . ORG refused to certify a point of law of general public importance for ORG .

B. Relevant domestic law and practice

Section CARDINAL of the DATE Act is entitled “ Demonstrating without authorisation in designated area ” and reads as follows :

“ ( CARDINAL ) Any person who–

( a ) organises a demonstration in a public place in the designated area , or

( b ) takes part in a demonstration in a public place in the designated area , or

( c ) carries on a demonstration by himself in a public place in the designated area ,

is guilty of an offence if , when the demonstration starts , authorisation for the demonstration has not been given under section CARDINAL(CARDINAL ) .

( CARDINAL ) It is a defence for a person accused of an offence under subsection ( CARDINAL ) to show that he reasonably believed that authorisation had been given .

( CARDINAL ) Subsection ( CARDINAL ) does not apply if the demonstration is–

( a ) a public procession of which notice is required to be given under ... LAW ( c. CARDINAL ) , or of which ... notice is not required to be given , or

( b ) a public procession for the purposes of LAW of [ LAW ] .

( CARDINAL ) In this section and in sections CARDINAL to CARDINAL–

( a ) “ the designated area ” means the area specified in an order under section CARDINAL ,

( b ) “ public place ” means any highway or any place to which at the material time the public or any section of the public has access , on payment or otherwise , as of right or by virtue of express or implied permission ,

( c ) references to any person organising a demonstration include a person participating in its organisation ,

( d ) references to any person organising a demonstration do not include a person carrying on a demonstration by himself ,

( e ) references to any person or persons taking part in a demonstration ( except in subsection ( CARDINAL ) of this section ) include a person carrying on a demonstration by himself . ”

Section CARDINAL is entitled “ Notice of demonstrations in designated area ” and reads as follows :

“ ( CARDINAL ) A person seeking authorisation for a demonstration in the designated area must give written notice to that effect to the Commissioner of Police of the LOC ( referred to in this section and section CARDINAL as " the Commissioner " ) .

( CARDINAL ) The notice must be given–

( a ) if reasonably practicable , not CARDINAL clear days before DATE on which the demonstration is to start , or

( b ) if that is not reasonably practicable , then as soon as it is , and in any event not less than TIME before the time the demonstration is to start .

( CARDINAL ) The notice must be given–

( a ) if the demonstration is to be carried on by CARDINAL person , by any of the persons organising it ,

( b ) if it is to be carried on by a person by himself , by that person .

( CARDINAL ) The notice must state–

( a ) the date and time when the demonstration is to start ,

( b ) the place where it is to be carried on ,

( c ) how long it is to last ,

( d ) whether it is to be carried on by a person by himself or not ,

( e ) the name and address of the person giving the notice .

( CARDINAL ) A notice under this section must be given by–

( a ) delivering it to a police station in the metropolitan police district , or

( b ) sending it by post by recorded delivery to such a police station .

( CARDINAL ) Section CARDINAL of LAW DATE ( c. CARDINAL ) ( under which service of a document is deemed to have been effected at the time it would be delivered in the ordinary course of post ) does not apply to a notice under this section .

Section CARDINAL is entitled “ Authorisation of demonstrations in designated area ” and reads as follows :

“ ( CARDINAL ) This section applies if a notice complying with the requirements of section CARDINAL is received at a police station in the metropolitan police district by the time specified in section CARDINAL ) .

( CARDINAL ) The Commissioner must give authorisation for the demonstration to which the notice relates .

( CARDINAL ) In giving authorisation , the Commissioner may impose on the persons organising or taking part in the demonstration such conditions specified in the authorisation and relating to the demonstration as in the Commissioner ’s reasonable opinion are necessary for the purpose of preventing any of the following–

( a ) hindrance to any person wishing to enter or leave FAC ,

( b ) hindrance to the proper operation of ORG ,

( c ) serious public disorder ,

( d ) serious damage to property ,

( e ) disruption to the life of the community ,

( f ) a security risk in any part of the designated area ,

( g ) risk to the safety of members of the public ( including any taking part in the demonstration ) .

( CARDINAL ) The conditions may , in particular , impose requirements as to–

( a ) the place where the demonstration may , or may not , be carried on ,

( b ) the times at which it may be carried on ,

( c ) the period during which it may be carried on ,

( d ) the number of persons who may take part in it ,

( e ) the number and size of banners or placards used ,

( f ) maximum permissible noise levels .

( CARDINAL ) The authorisation must specify the particulars of the demonstration given in the notice under LAW pursuant to subsection ( CARDINAL ) of that section , with any modifications made necessary by any condition imposed under subsection ( CARDINAL ) of this section .

( CARDINAL ) The Commissioner must give notice in writing of–

( a ) the authorisation ,

( b ) any conditions imposed under subsection ( CARDINAL ) , and

( c ) the particulars mentioned in subsection ( CARDINAL ) ,

to the person who gave the notice under LAW . ”

Section CARDINAL is entitled “ Offences under sections CARDINAL to CARDINAL : penalties ” and reads , in so far as relevant , as follows :

“ ( CARDINAL ) A person guilty of an offence under section CARDINAL ) is liable on summary conviction to imprisonment for a term not exceeding DATE , to a fine not exceeding level CARDINAL on the standard scale , or to both .

( CARDINAL ) A person guilty of an offence under section CARDINAL ) or ( c ) is liable on summary conviction to a fine not exceeding level CARDINAL on the standard scale . ”

Section CARDINAL is entitled “ The designated area ” and provides as follows :

“ ( CARDINAL ) The Secretary of ORG may by order specify an area as the designated area for the purposes of sections CARDINAL to CARDINAL .

( CARDINAL ) The area may be specified by description , by reference to a map or in any other way .

( CARDINAL ) No point in the area so specified may be QUANTITY in a straight line from the point nearest to it in FAC . ”

By ORG Designated Area ) Order DATE , the Secretary of ORG defined , pursuant to section CARDINAL of the CARDINAL Act , an area of GPE surrounding ORG and FAC as constituting a “ designated area ” for the purposes of the CARDINAL Act . The text of the Order and a map attached to it delineated the precise area .


André Potocki;Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Karel Jungwiert;Paul Lemmens

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

NORP In DATE GPE started issuing a multifunctional smart card called “ Opencard ” for GPE residents and visitors . It can be used for numerous services offered by the LOC or other providers , including the GPE public transport system .

There were CARDINAL kinds of Opencard : ordinary or anonymous . An ordinary card is free of charge and anybody can apply by completing an application form that includes personal details such as name , date of birth , place of residence , email address , telephone number and a photo . Applicants must also sign a consent form on the processing of personal details and provision of information in which they consent to the further processing of the personal data from the application form and from using the card by both GPE and any provider of a service which the applicant would use in the future with the PERSON system . Withdrawal of consent by the applicant results in suspension of the card ’s use for services . An anonymous card without any personal identification information costs CARDINAL NORP korunas ( CZK ) ( MONEY ( ORG ) ) but its use is limited to certain services .

DATE an Opencard could be used as a public transport pass . A yearly pass that could be downloaded onto the card cost CZK CARDINAL,CARDINAL ( ORG CARDINAL ) . Those without an PERSON could not buy a DATE pass but instead could buy CARDINAL DATE passes , which together cost CZK CARDINAL ( EUR CARDINAL ) .

On DATE ORG concluded its investigation into the Opencard system and found that GPE had not adequately informed users of the future processing of their personal data and that they were therefore in violation of ORG ( no . CARDINAL ) . The ORG also reiterated its previous opinion that there should be an alternative way to access the services for those not wishing to use an Opencard . It also ordered GPE to offer each PERSON user the possibility of using a card without the necessity of consenting to further processing of his or her personal data .

As a result GPE introduced in DATE a third type of PERSON , which is personal . Personal data are printed on the card but not stored or further processed . Adults holding this PERSON can buy long - term passes for public transport under the same conditions as holders of Opencards who gave consent to the processing of their personal details . This new type of card costs CZK CARDINAL ( EUR CARDINAL ) .

NORP The current price ( from DATE ) of a yearly pass for GPE public transport is CZK MONEY ( ORG CARDINAL ) for holders of both types of personal LAW CARDINAL,CARDINAL ( EUR CARDINAL ) for holders of an anonymous PERSON or for those without an PERSON .

The applicant did not want to provide his personal details to GPE and consent to processing , and therefore did not apply for an Opencard .

On DATE he asked ORG ( a joint - stock company PERCENT owned by GPE ) whether he could buy a yearly pass for the same price as users of the PERSON system . He explained that he did not wish to consent to the processing of his personal data . As he received no reply he bought CARDINAL consecutive DATE passes .

On DATE he requested ORG to reimburse him CZK CARDINAL ( EUR CARDINAL ) , corresponding to the difference between the price of DATE pass and the price he had to pay for DATE passes . Having received no reply , the applicant brought civil proceedings for unjust enrichment .

On DATE the GPE ORG rejected this claim . It held that the income from fares was further redistributed and thus the defendant was not its only receiver and was therefore not responsible for any loss suffered by the applicant . No appeal lay against that decision .

NORP The applicant lodged a constitutional appeal alleging a violation of his right to privacy and fair trial . He argued that the brief judgment of ORG was beyond any legal logic and in effect lacked any reasoning . He further maintained that there was no other remedy in the domestic law to protect him from violations of his private life and that he could only claim compensation for the financial loss he had sustained as a result of refusing to give his personal details .

On DATE ORG dismissed the applicant ’s constitutional appeal as manifestly ill - founded . It held that the subject matter of the proceedings was CARDINAL and , applying the de minimis non curat praetor rule , there could be an interference with fundamental rights only exceptionally in such instances . It did not find any special circumstances in the present case that would require it to hold otherwise . It added that it was obvious that the applicant ’s primary concern was not unjust enrichment but protection of his personal data ; however , an action for unjust enrichment was not a means to protect those rights .