Violation of P4-2 (prohibition against leaving Bulgaria);Not necessary to examine Art. 8;Violation of Art. 13+8;Violation of Art. 13+P4-2;No violation of Art. 8 or Art. 13 (refusal of requests to renounce citizenship);Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings

The applicant , PERSON , was born in DATE in GPE , GPE , and lives currently in GPE .

The applicant moved to GPE in DATE and in DATE married an NORP national . In DATE she obtained NORP nationality . Until DATE she remained a NORP national ( see paragraphs DATE below ) .

The applicant has a daughter , born in DATE in GPE , currently an NORP national living in GPE with her husband and children ( the applicant ’s grandchildren ) .

The applicant was co - owner and commercial director of a company registered in GPE . In DATE she also registered in GPE as a foreigner conducting economic activities there . Her main business was the importation of coffee in GPE .

DATE the applicant spent most of her time in GPE . She has remained there ever since .

By decision of DATE a district fiscal authority in GPE found that the applicant owed CARDINAL “ old ” NORP levs ( “ ORG ” ) of unpaid excise tax and ORG CARDINAL of interest ( the total amount due having been at the time the equivalent of MONEY ( “ NORP ” ) . The applicant ’s ensuing appeals were dismissed on DATE by the PERSON fiscal authority and on DATE , after a hearing on the matter , by ORG . On DATE ORG dismissed the applicant ’s petition for review ( cassation ) of the above decisions . The applicant then instituted proceedings seeking to declare the fiscal decisions null and void . This was refused by ORG on DATE .

In DATE and DATE the fiscal authorities attached certain monies in bank accounts of the applicant and her company . It appears that not more than BGL CARDINAL ( PERCENT of the debt ) was thus collected in DATE .

In DATE the fiscal authorities attached another USD CARDINAL,CARDINAL . A smaller amount of money was seized from the applicant in relation to a criminal investigation against her , opened in DATE . The investigation was discontinued in DATE and the money restored to her later ( see paragraphs CARDINAL below ) .

On DATE the GPE fiscal authority asked ORG at ORG ( ORG Pasporti i vizov rezhim , ORG ) ( “ the Passport Police ” ) to impose on the applicant a travel ban under LAW Zakon za zadgranichnite pasporti ) ( “ the LAW ” ) , until the payment of her debt , as established by the courts .

On DATE ORG issued an order which stated inter alia that a prohibition was imposed against the applicant leaving the country and that her document for travelling abroad should be seized . The order referred to the fiscal decisions in the applicant ’s case , stated that she had NORP and NORP nationality , and relied on section CARDINAL(CARDINAL)(v ) of the PERSON on the Sojourn of Aliens in GPE ( PERSON na chuzhdentzite v ORG ) .

On DATE the NORP border control authorities seized the applicant ’s NORP passport when she attempted to leave GPE and to enter GPE . The applicant did not have a NORP passport .

Upon the applicant ’s complaint , on DATE the Passport Police informed her that a travel ban under section CARDINAL(CARDINAL)(v ) of the PERSON on the Sojourn of Aliens had been imposed , in relation to the applicant ’s obligation to pay BGL CARDINAL .

On CARDINAL DATE the applicant submitted an appeal to ORG . She stated that the measure was unlawful as on other occasions she had been considered a NORP citizen . On DATE the ORG replied stating that the measure against her had been based both on section CARDINAL(e ) of LAW and on section CARDINAL(CARDINAL)(v ) of the PERSON on the Sojourn of Aliens and had been lawful .

On DATE the applicant submitted an appeal to ORG . She stated , inter alia , that she was a NORP citizen and measures under LAW of the PERSON on the Sojourn of Aliens could not be applied against her . She also claimed that the authorities held an adequate security as they had attached funds of the NORP company worth USD CARDINAL,CARDINAL . Insofar as section CARDINAL(e ) of LAW had been invoked , this provision concerned the possibility to refuse the issuance of , or to seize , a NORP passport , not an NORP one .

On DATE ORG held a hearing , which was attended by the parties and their representatives . The applicant ’s husband was also present .

On DATE ORG dismissed the appeal . It found that the applicant ’s obligation to pay a significant amount in taxes , as established by the courts , was a sufficient ground , under section CARDINAL(e ) of LAW , to seize any passport which is used for international travel . Unpaid tax was also a ground to impose a prohibition against leaving GPE under section CARDINAL(CARDINAL)(v ) of the PERSON on Sojourn of Aliens . Although this provision did not provide expressly for a confiscation of a foreign passport , if applied in conjunction with the relevant regulations , it clearly allowed such measure in respect of a person against whom there had been a decision prohibiting his departure from GPE . Since the applicant had double citizenship the authorities correctly relied both on the PERSON on the Sojourn of Aliens and on LAW .

On DATE the applicant submitted to ORG a petition for review ( cassation ) . On DATE , ORG , to which the case was transmitted following a reform in the judicial system , dismissed the applicant ’s petition for review ( cassation ) . It appears that another appeal against these decisions was dismissed by ORG on DATE .

By partial decision of DATE and final decision of DATE ( DR CARDINAL , p. CARDINAL ) the former ORG declared inadmissible the applicant ’s application in which she claimed , inter alia , that there had been violations of her right to freedom of movement and to respect for her private and family life on account of the restrictions on her travelling outside GPE . The Commission found that the former complaint was incompatible ratione materiae with the provisions of the Convention as GPE had not been a party to LAW No . CARDINAL of the Convention and that the latter complaint , examined under LAW , was manifestly ill - founded , the applicant not having substantiated details about her family circumstances or whether or not she actually lived with her family DATE . ORG also noted that there were no obstacles against the applicant ’s family joining her in GPE . In these circumstances there was no interference with her rights under LAW .

In DATE and DATE the value of the NORP currency depreciated sharply and the inflation rate ran high . Statutory default interest rates also increased significantly but did not compensate fully for the inflation and the depreciation of the currency . As a result , persons owing monetary debts denominated in NORP currency saw the burden of their debt diminish .

According to calculations made by the fiscal authorities , as of DATE the applicant ’s outstanding debt was ORG CARDINAL ( the equivalent of MONEY at that time ) .

On DATE the applicant requested ORG to terminate the prohibition against her leaving the country . On DATE the request was refused . The decision stated that the prohibition was still in force and that the matter could not be re - examined , all administrative and judicial avenues of appeal having been exhausted .

The applicant appealed against that refusal to ORG which , on DATE , granted the appeal and set aside the refusal of ORG . The court noted that the prohibition had been based on the PERSON on the Sojourn of Aliens . However , the applicant also had a NORP nationality and , therefore , was not an alien . The authorities should have applied LAW . Furthermore , the fiscal authorities were holding a significant amount as security , which could probably satisfy their claim against the applicant . It appears that the latter conclusion of the court was not based on a precise calculation of the debt . ORG judgment of DATE never entered into force as ORG successfully appealed ( see paragraphs CARDINAL - CARDINAL below ) .

On DATE the passport police issued a new order prohibiting the applicant ’s leaving GPE . The order referred to new enforcement proceedings opened by the fiscal authorities in respect of the same debt . It was based on section CARDINAL(CARDINAL)(v ) of the PERSON on the Sojourn of Aliens .

Following these developments , there were CARDINAL separate sets of judicial proceedings and CARDINAL administrative proceedings , all concerning the travel ban imposed on the applicant :

On an unspecified date in DATE the applicant appealed to ORG against the order of DATE .

On DATE ORG dismissed her appeal , noting that the applicant owed significant amounts and that insufficient security had been provided .

Upon the applicant ’s cassation appeal , on DATE ORG upheld the lower court ’s decision . Addressing the applicant ’s argument that the new Aliens Law , in force since DATE , should be applied , the court stated that that law did not have retroactive effect . The ORG task was to assess the lawfulness of the impugned administrative order in accordance with the law as in force at the moment when it was issued . Furthermore , it was not true that there had been “ violations of international law ” .

Separately , in DATE the applicant also submitted administrative appeals against the order of DATE . She relied , inter alia , on LAW No . CARDINAL to the LAW , in force for GPE as of DATE .

Her appeal to ORG was dismissed on DATE . The reply stated that the travel ban could only be lifted in case of payment of the debt or if sufficient security were deposited . As to FAC to the Convention , its LAW provided that freedom of movement could be restricted by national law . The former PERSON on the Sojourn of Aliens and the new LAW provided for such restrictions .

The applicant ’s appeal to ORG was dismissed on DATE . She received a letter explaining that the measures against her were lawful as she had not paid her debt . Furthermore , the applicant could not rely on LAW to the LAW , which had entered into force for GPE in DATE , because the impugned order had been issued on DATE .

On an unspecified date in DATE ORG appealed against ORG judgment of DATE ( see paragraph CARDINAL above ) . In these proceedings the ORG ’s request for a stay of execution was granted on DATE by ORG . In her submissions to the courts the applicant relied , inter alia , on Articles DATE and CARDINAL of the Convention .

On DATE ORG set aside ORG judgment of DATE and dismissed the applicant ’s request for the termination of the travel ban . The court found that the deposit held by the fiscal authorities as security was insufficient . It also found that prohibitions on leaving the country could be imposed on NORP and foreign nationals alike and that it was not unlawful to rely on the PERSON on the Sojourn of Aliens . Although certain aspects of the legislation as in force at the time the prohibition had been imposed might have been unclear , the applicant was not entitled to rely thereon with the purpose to leave the country without having paid her debt . The court also stated that the prohibition would remain in force as long as the reasons for which it had been imposed remained valid .

NORP The applicant ’s subsequent request for reopening of these proceedings was dismissed on DATE .

The prohibition against the applicant leaving GPE remained in force . Throughout the relevant period , by way of DATE internal notes the DATE authorities informed the passport police that the applicant had not paid yet .

On DATE the applicant ’s NORP passport was returned to her without prejudice to the prohibition on her travelling outside GPE , which remained in force .

On DATE the applicant again requested that the travel ban be lifted , arguing that the statutory limitation period in respect of her debt had expired .

By letter of CARDINAL DATE the ORG police refused . The applicant filed an appeal with ORG , but it was never examined .

On DATE the GPE tax authority sent a letter to ORG , ORG , stating , inter alia :

“ Having regard to the fact that the absolute prescription period with regard to the [ applicant ’s ] fiscal debt , which was established by administrative decisions of DATE and CARDINAL DATE , has expired and taking into consideration the fact that the [ applicant ] has made an objection with reference to the expiry of the prescription period , [ it follows that ] the fiscal administration ’s right to seek the collection of the debt is extinguished ... Therefore , there are no longer valid grounds for the prohibition against [ the applicant ] leaving the country ... You are requested to repeal [ that ] administrative measure ... ”

On DATE ORG repealed the prohibition . On DATE the applicant received a copy of the order .

The applicant remained in GPE . In her letter of DATE to the ORG she explained that she stayed because she needed to organise the liquidation of her husband ’s company in GPE and that she would leave as soon as the liquidation procedure was completed .

In DATE , DATE and DATE the applicant ’s requests to renounce her NORP citizenship were refused by way of unreasoned decisions .

In DATE the applicant submitted again a request to ORG , seeking to renounce her NORP citizenship . By decree of the President of GPE of DATE the request was refused . The decree is not amenable to judicial review ( see paragraph CARDINAL below ) . The applicant nevertheless attempted to institute judicial proceedings , challenging the fact that ORG had given a negative opinion on her request , before its transmission to the President . Those proceedings ended by final decision of DATE of ORG , whereby the applicant ’s appeal was declared inadmissible .

Despite the refusal of her request , as she did not wish to be regarded as a NORP citizen , the applicant refused to apply for NORP identity papers and as a result encountered certain difficulties in respect of health care , housing , etc in the period CARDINAL . The applicant wished to have papers of a foreigner residing in GPE . However , she was repeatedly informed that in accordance with the relevant law NORP citizens who held a second citizenship were considered as NORP citizens for purposes of their relations with the NORP authorities .

On DATE the applicant requested again to renounce her NORP citizenship . In DATE ORG in GPE inquired with the NORP authorities about the applicant ’s situation , expressed the view that the statutory prescription period for the applicant ’s debt had expired and considered that the applicant ’s request to renounce her NORP citizenship could be granted .

By decree of DATE , the Vice President of GPE granted the applicant ’s request to renounce her NORP citizenship . The applicant was informed thereof by letter of DATE .

On DATE the GPE ORG gave judgment in a case concerning the applicant ’s appeal against the attachment order made by the fiscal authorities in DATE . The attachment order was declared unlawful and set aside . As a result , on DATE the fiscal authorities lifted the attachment of USD MONEY which was paid to the applicant ’s bank account .

In DATE the applicant brought an action against the fiscal authorities and several courts claiming damages as a result of numerous allegedly unlawful acts against her .

On CARDINAL DATE ORG dismissed the claims . The court acknowledged , inter alia , that the attachment imposed by the fiscal authorities in DATE had been declared unlawful in DATE and that the seizure of an amount of money in DATE by the investigation authorities had also been annulled . As a result , in principle the applicant was entitled to compensation under ORG . However , she had failed to prove the amount of the loss suffered . Her action was , therefore , unsubstantiated and ill - founded . As far as alleged losses resulting from the travel ban were concerned , the court found that the prohibition on the applicant leaving GPE was lawful and no issue of ORG liability arose .

The applicant appealed to ORG . The outcome of those proceedings is unknown .

Article CARDINAL ) of the LAW provides that “ [ e]veryone shall have the right to ... leave the country ” and that this right “ may be subject to restrictions provided for by act of ORG , in the interest of national security , for the protection of public health and the rights and freedoms of others . ”

At the time when the initial prohibition was imposed , the relevant legal provisions were those of the PERSON on the Passports for Travelling Abroad ( the Passport Law ) and the PERSON on the Sojourn of Aliens .

The Passport Law , in sections CARDINAL(e ) and CARDINAL , provided that the issuance of a passport might be refused , or the passport seized , if , inter alia , the person concerned had “ significant pecuniary obligations , established by the courts , owed to the ORG or to NORP legal persons or nationals , except if the [ person ’s ] possessions cover the obligations or if a duly executed collateral is submitted . ”

Section CARDINAL of the PERSON on the Sojourn of Aliens insofar as relevant , provided that an alien might be refused permission to leave the country where he or she owed the payment of a fine or another pecuniary obligation to the ORG . LAW of LAW provided :

“ The alien may be authorised by the competent state organ to leave the country if there are guarantees that he [ or she ] will fulfil the obligations ... or if a security has been deposited ... ”

In DATE the PERSON on the Sojourn of Aliens was superseded by LAW .

Its section CARDINAL provides that a prohibition on leaving the country may be imposed on aliens or persons who hold at the same time a NORP and a foreign nationality .

In the initial text of the DATE LAW , CARDINAL of the grounds for such a prohibition was unpaid debts . According to section CARDINAL as in force since DATE , only unpaid debts owed to the ORG and exceeding CARDINAL “ new ” NORP levs ( “ ORG ” ) ( approximately LAW ) may serve as grounds for a ban on leaving the country .

On DATE the Passport Law was superseded by new legislation , the PERSON on ORG .

Under section CARDINAL ) of the new law , NORP citizens who owe significant amounts to the ORG may be prevented from leaving the country .

Under all relevant provisions , the only grounds on which a prohibition on leaving the country may be lifted are payment of the debt or the deposit of sufficient security . The prohibition is not subject to a statutory maximum of duration .

In accordance with section CARDINAL of LAW , in force until DATE , the statutory prescription period for fiscal and other public receivables was DATE . That provision remains applicable to all fiscal receivables that became due DATE ( Decision no . DATE of CARDINAL in case no . CARDINAL of ORG ) .

DATE . In accordance with section QUANTITY and CARDINAL of ORG DATE , in force until DATE ( applicable in respect of receivables that became due before DATE ) and section QUANTITY of ORG , as in force DATE and DATE , a fresh CARDINAL years’ prescription period starts to run whenever the fiscal authorities undertake action to seek payment . It appears that as long as judicial proceedings concerning the fiscal receivable are pending , it is considered that action to seek payment is being undertaken ( Decision no . CARDINAL of DATE in case no . CARDINAL of ORG ) . Regardless of any suspension or renewal of the prescription period , fiscal receivables that became due DATE are considered prescribed after DATE ( “ absolute prescription period ” ) ( section QUANTITY of ORG DATE and section CARDINAL § CARDINAL of ORG ) .

As of DATE , the new Fiscal Procedure Code regulates prescription periods in respect of receivables that became due after its entry into force . The “ absolute prescription period ” under the LAW is DATE .

In accordance with section CARDINAL of LAW , a NORP citizen living permanently abroad and having acquired a foreign nationality may file a request for renunciation of NORP nationality . The request is processed by ORG . A final decision is taken by the President of the Republic . The law does not require reasons to be given for a refusal of a request to renounce NORP nationality . The President ’s decree is not amenable to judicial review ( procedural decision of ORG of CARDINAL in case no . CARDINAL/CARDINAL ) .

Under the relevant fiscal law , renunciation of NORP nationality is not among the grounds on which an individual may be relieved from the obligation to pay tax liabilities .

In the law of several member states a possibility for imposing a ban on leaving one ’s country due to tax obligations is expressly provided for : GPE , GPE , the GPE , GPE , GPE , GPE , GPE , GPE and GPE . In GPE and GPE the legal provisions allowing restrictions on the right to leave one ’s country due to tax debts have now been abolished .

In most states the possibility to resort to a travel ban for unpaid taxes is not unconditional . In particular , in GPE , a passport application can be denied if there is a justified suspicion that the applicant was going to evade a tax obligation . In the GPE , the law states that a travel document can be refused or invalidated if there is good reason to believe that the person is neglecting his obligation to pay taxes . In GPE , a passport can be withdrawn or its issue refused to a citizen upon a court ’s or tax authority ’s request when the person avoids the enforcement of the decision , or obstructs it or there is reason to believe that he or she will do so ( an alien ’s freedom to leave the country can also be restricted ) . In GPE “ unfulfilled obligations established by a court ” can serve as grounds for a travel ban only if there is a serious risk that the person ’s travel abroad will render the fulfilment of the obligation impossible . In GPE , under ORG DATE , a debtor may be barred from leaving the country if that is essential for the enforcement of a court decision and seizure of property does not provide sufficient security ( a prohibition order can not be issued if , in view of the nature of the case and all of the circumstances involved , it would be a disproportionately severe measure and the order automatically ceases to have effect after DATE ) .

A further area in which countries resort to travel bans , is bankruptcy proceedings . The laws of several countries stipulate that a court may impose a prohibition against a debtor leaving the country in order to secure his presence before the court ( e.g. GPE , GPE , GPE , GPE , GPE ) . Most member States’ legal systems provide for prohibitions against leaving the country in respect of defendants in criminal proceedings .

NORP In common - law jurisdictions , travel bans may be imposed by way of injunction .

DATE . In GPE , the tax authorities may seek from the courts a ORG injunction ( an order preventing the other party from disposing of assets outside the country ) , an injunction under section CARDINAL(CARDINAL ) of ORG to restrain the other party from leaving the jurisdiction ( “ ORG injunction ” ) or the writ of “ ne exeat regno ” , an ancient writ which has much the same effect .

The simple fact that the person concerned has failed to pay would not be enough to satisfy the criteria for an injunction . In order to obtain an injunction under s. CARDINAL(CARDINAL ) restraining someone from leaving the country , the claimant must persuade the court that it is “ necessary and convenient ” to grant the order , for example , that the other party has information which he is refusing to disclose and which , if he is allowed to leave GPE , he will never disclose . A writ of “ ne exeat regno ” may be issued if several conditions are satisfied , such as , inter alia , cause to believe that the other party ’s absence from the jurisdiction would materially prejudice the claimant in pursuing the action .

Because the orders above are interferences with the liberty of the subject , they should last no longer than necessary – e.g. until the other party has disclosed all the information that they were refusing to disclose . The orders can be discharged on grounds that one of the requisite conditions was not in fact fulfilled but also on ‘ equitable’ grounds .

While the right to travel abroad is recognised as an implicit constitutional right in national case law , the courts have also recognised restrictions , in particular where there are “ undischarged obligations ” .

NORP In civil contexts , NORP courts , like LANGUAGE courts , may make use of ORG injunctions or ORG injunctions , as described above . ORG has held that such orders could be granted only in exceptional and compelling circumstances . Probable cause for believing that the defendant is about to absent himself from the jurisdiction with the intention of frustrating the administration of justice and/or an order of the court is a condition for granting an injunction . The injunction should not be imposed for punitive reasons . The injunction ought not to be granted where a lesser remedy would suffice and it should be interim in nature and limited to the shortest possible period of time . The defendant ’s right to travel should be out - balanced by those of the plaintiff and the proper and effective administration of justice .

Article CARDINAL of the ORG , which served as a basis for the drafting of LAW No . CARDINAL to the Convention , reads , in so far as relevant :

“ ... ( CARDINAL ) Everyone shall be free to leave any country , including his own .

( CARDINAL ) The above - mentioned rights shall not be subject to any restrictions except those which are provided by law , are necessary to protect national security , public order ( ordre public ) , public health or morals or the rights and freedoms of others , and are consistent with the other rights recognized in the present LAW ... ”

The preparatory work of paragraph CARDINAL of Article CARDINAL reveals that , before agreeing on the general formula , the drafters had attempted first to come up with an exhaustive list of all grounds for restriction . The first draft thus contained CARDINAL reasons for which freedom of movement could be restricted , including tax debts . The list was eventually abandoned in favour of a general restriction clause .

ORG has not dealt specifically with the issue of tax debts either in its General Comment No . DATE ) on LAW ORG or in its observations on ORG reports in the context of the monitoring procedure . General PERSON No . DATE ) contains some observations on the interpretation of LAW :

“ LAW , paragraph CARDINAL , clearly indicates that it is not sufficient that the restrictions serve the permissible purposes ; they must also be necessary to protect them . Restrictive measures must conform to the principle of proportionality ; they must be appropriate to achieve their protective function ; they must be the least intrusive instrument amongst those which might achieve the desired result ; and they must be proportionate to the interest to be protected .

The principle of proportionality has to be respected not only in the law that frames the restrictions , but also by the administrative and judicial authorities in applying the law . States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided . ”

In the context of the complaint procedure , in the case of PERSON González del Río v. GPE , ORG was called to examine the proportionality of the restriction on the applicant ’s freedom to leave his country imposed in judicial proceedings which had been delayed . It held as follows :

“ The ORG considers that pending judicial proceedings may justify restrictions on an individual ’s right to leave his country . But where the judicial proceedings are unduly delayed , a constraint upon the right to leave the country is thus not justified . In this case , the restriction on Mr. González’ freedom to leave GPE has been in force for DATE , and the date of its termination remains uncertain . The ORG considers that this situation violates the author ’s rights under article CARDINAL , paragraph CARDINAL ... ”

NORP The national citizenship laws generally provide that a renunciation request can be accepted only if the person concerned has acquired the citizenship of another state or has given assurances of acquiring CARDINAL . Many states also require that the person concerned has his habitual residence abroad .

In a number of states renunciation requests may be refused in connection with military service duties ( GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) or if the person concerned is subject to criminal proceedings or has to serve a sentence imposed by a court ( GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE , GPE and GPE ) .

The laws of GPE , GPE , GPE , GPE and GPE provide explicitly that a person may not be released from citizenship if he or she has tax debts to the ORG . Also , under the laws of GPE , GPE , GPE , GPE and GPE , “ unfulfilled obligations to the State ” – which apparently may include tax debt – are grounds for refusing a renunciation request .

In GPE the law explicitly separates renunciation of citizenship from any liability , specifying that renunciation does not free the person from any obligation or duty imposed or incurred before the severance of the link to the nation . In GPE , similarly , the act of renouncing citizenship may have no effect on the person ’s tax obligations .

The ORG , which entered into force for several states in DATE , was signed by GPE in DATE and ratified in DATE ( entry into force for GPE on DATE ) . Its Article CARDINAL provides :

“ Loss of nationality at the initiative of the individual

Each State Party shall permit the renunciation of its nationality provided the persons concerned do not thereby become stateless .

NORP However , ORG may provide in its internal law that renunciation may be effected only by nationals who are habitually resident abroad . ”

According to the Explanatory report , it is not acceptable to refuse renunciation merely because persons habitually resident in another ORG still have military obligations in the country of origin or because civil or penal proceedings may be pending against a person in that country of origin . Civil or penal proceedings are independent of nationality and can proceed normally even if the person renounces his or her nationality of origin ( paragraphs CARDINAL and CARDINAL of the report ) .

Article CARDINAL of the ORG requires that “ ... decisions relating to the acquisition , retention , loss , recovery or certification of its nationality contain reasons in writing . ”


Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings;Costs and expenses award - Convention proceedings

ORG The PERSON case was referred to the ORG on CARDINAL DATE by ORG ( " the Commission " ) . The case originated in an application ( no . CARDINAL/CARDINAL ) against GPE lodged with ORG on DATE by CARDINAL NORP nationals , Mr. PERSON and his wife PERSON .

ORG By a judgment of CARDINAL DATE , the ORG found a breach of LAW ( article DATE ) of the LAW in that the applicants had not received a hearing within a reasonable time ( Series A no . CARDINAL , point CARDINAL of the operative provisions and paragraphs CARDINAL of the reasons , pp . CARDINAL - CARDINAL ) .

The only outstanding matter to be settled is the question of the application of LAW ) in the present case . Accordingly , as regards the facts the ORG will confine itself here to giving the pertinent details ; for further particulars , reference should be made to DATE of the above - mentioned judgment ( ibid . , pp . CARDINAL ) .

ORG At the hearings on DATE , counsel for the applicants stated that , should the ORG find a violation of the LAW , his clients would be claiming just satisfaction under LAW ) for the prejudice suffered as a result of the unreasonable length of the proceedings and possibly for legal costs ; he did not , however , quantify their claims . ORG ( " the Government " ) did not take a stand on the matter .

In its judgment of DATE , the ORG reserved the whole of this question . The ORG was invited to submit to the ORG , within DATE , its written observations and , in particular , to notify ORG of any friendly settlement at which the ORG and the applicants might have arrived ( see point CARDINAL of the operative provisions and paragraph CARDINAL of the reasons , ibid . , p. CARDINAL ) .

ORG After CARDINAL extension of the above - mentioned time - limit by the President of the ORG and in accordance with his Orders and directions , the registry received :

- on DATE , CARDINAL DATE and CARDINAL DATE , through the Secretary to ORG , the ORG ’s and the applicants’ respective observations ;

- on DATE , DATE and DATE , the ORG ’s comments .

These documents revealed that no friendly settlement had been reached .

ORG By letter dated DATE , which was received at DATE , the lawyer for Mr. and Mrs. PERSON informed the PERSON that he was no longer representing them ; on DATE , they instructed Mr. PERSON as their lawyer .

ORG Mr. PERSON , substitute judge , took the place of Mr. PERSON , who was prevented from taking further part in the consideration of the case ( Rules CARDINAL § CARDINAL and CARDINAL § CARDINAL of ORG ) .

ORG After consulting , through ORG , the Agent of the Government and ORG , the ORG decided on CARDINAL DATE that there was no call to hold hearings .


Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (procedural aspect);Violation of Art. 6-1;Violation of P1-1

Anatoly Kovler;Christos Rozakis;Dean Spielmann;Giorgio Malinverni;Khanlar Hajiyev;Sverre Erik Jebens

The applicant was born in DATE and lives in PERSON .

At the material time the applicant and her husband lived in a CARDINAL - room apartment in a block of flats at CARDINAL LOC in the city of PERSON , GPE . The applicant submitted a housing warrant ( ордер ) confirming her right to live in the apartment . She did not submit any documents proving that she had a title to the flat .

NORP In DATE a military operation was launched in the territory of GPE .

According to the applicant , on DATE the block of flats at CARDINAL Prospekt Revolyutsii was hit by a missile fired by the NORP armed forces during an attack on ORG . The applicant ’s flat and all her belongings were destroyed . It does not appear that the applicant witnessed the destruction .

On DATE the applicant , her husband and other residents were sheltering from a bombardment in the basement of their block of flats . At TIME an intoxicated man armed with a machine gun came down to the basement and started shooting , with the result that the applicant ’s husband and CARDINAL other persons were killed . The applicant managed to escape . According to her , the name of the man who shot her husband was PERSON . He had lived for some time in their block of flats and during the bombings she had met him in the basement on several previous occasions .

On DATE the applicant buried her husband ’s body and the bodies of the others killed in the shooting in the courtyard . It does not appear that an autopsy was performed or any photographs taken .

On DATE a local registry office certified the death of the applicant ’s husband . On the same date a housing authority issued the applicant with a certificate confirming that her flat “ was destroyed and burnt completely during the military actions on DATE ” . The certificate contained no other information relating to the destruction . The applicant did not submit any documents which would indicate the cause of the destruction of the block of flats at CARDINAL ORG , or any photographs of the site of the destruction .

According to the Government , the applicant ’s written complaint concerning her husband ’s murder was received by ORG of the Interior of ORG on DATE . On DATE the acting prosecutor of ORG opened an investigation into the case under LAW ) ( aggravated murder ) of LAW . The case file was assigned the number DATE .

On DATE the applicant was granted the status of victim of a crime and questioned . She reiterated her account of the events of DATE and described the appearance of the alleged murderer .

In the ORG ’s submission , on DATE the investigation authorities also inspected the scene of the incident in the applicant ’s presence . The Government did not produce any report on that inspection .

On DATE the proceedings in case no . DATE were suspended for failure to establish the identity of the alleged perpetrator . The applicant was informed in writing that the proceedings had been adjourned on CARDINAL [ rather than DATE .

On DATE the criminal proceedings were reopened . According to the Government , on the same date , upon the applicant ’s request of CARDINAL DATE , the investigator in charge ordered the exhumation of the corpses of those killed on DATE , including the applicant ’s husband . The exhumation and forensic examination were carried out on DATE .

On DATE the investigation was stayed as it was impossible to establish those responsible . It does not appear that there was any investigative activity DATE and DATE .

On DATE the decision of DATE was set aside and the proceedings in criminal case no . DATE were resumed , the applicant being notified in a letter of DATE .

On DATE the investigation into the killing of the applicant ’s husband was again suspended in the absence of information concerning those responsible . It appears that the applicant was not informed of that decision until DATE , when the PERSON prosecutor ’s office stated in their letter that the criminal proceedings instituted on DATE in connection with the killing of the applicant ’s husband had been suspended on DATE for failure to find the alleged perpetrators , and that the search for those responsible was under way .

In a letter of CARDINAL DATE ORG for ORG notified the applicant that the investigation in connection with her husband ’s murder had been commenced on CARDINAL [ rather than DATE , that the case had been given the number DATE and that the suspect in the case , PERSON . S. , had been an officer of ORG [ a security service established when the former President of GPE , PERSON , had been in power ] . The letter stated that the suspect was presently on the federal wanted list .

It does not appear that any investigative activity took place DATE and DATE .

On DATE the criminal proceedings in case no . DATE were re - opened . The applicant was informed of this decision on the same date .

On DATE the investigating authorities stayed the criminal proceedings on account of their inability to establish the alleged perpetrator and apprised the applicant of their decision on the same date .

On DATE the investigation was resumed . The investigating authorities informed the applicant of that decision in a letter of DATE . According to the ORG , the conduct of the investigation was being supervised by ORG .

In the ORG ’s submission , apart from the applicant , the investigating authorities also questioned CARDINAL witnesses . CARDINAL of them , the applicant ’s neighbour who had helped her to bury the bodies , gave oral evidence similar to the applicant ’s account , whereas the others did not provide any relevant information . According to the Government , the investigating authorities also sent a number of queries to “ competent bodies ” . In particular , such queries were sent on DATE , DATE and DATE , DATE and CARDINAL DATE .

The Government also submitted that the investigation had obtained information that the murder of the applicant ’s husband and other victims had been committed by PERSON ( GPE ) PERSON , who had been an officer of a security service established when the former President of GPE , PERSON , had been in power . During the investigation , an address of PERSON ’s acquaintance had been established , but the house at that address had proved to be deserted . The investigators also verified the possible involvement of a number of persons with the surname “ PERSON ” in the killing of DATE , but that had brought no positive result .

On DATE the applicant issued civil proceedings against a number of ORG before ORG of Stavropol ( “ the ORG ” ) . In her written submissions to the court the applicant sought damages in respect of her husband ’s death . She also stated that the block of flats in which she lived had been destroyed by a missile and asked the court to award her compensation for the destroyed flat and belongings that had been in the flat . As can be ascertained from a copy of her written submissions , the applicant enclosed copies of her passport , the marriage certificate , the death certificate , the housing warrant , a letter from a local authority , and certificates from the housing authority .

By a default judgment of DATE ORG allowed in part the applicant ’s compensation claim for her husband ’s death and awarded her MONEY ( RUB ) .

As regards the applicant ’s compensation claim concerning the destruction of her property , the court noted that under LAW of GPE the ORG was liable only for damages caused by its agents’ actions which were unlawful . It further found that the actions of the NORP federal troops in GPE had been lawful , as the military operation in GPE had been launched under Presidential Decree no . GPE of DATE and Governmental Decree no . CARDINAL of DATE , both of which had been found to be constitutional by ORG on DATE .

The court further stated that the applicant had submitted no evidence proving a causal link between the GPE actions and the damage sustained by her , since the military actions had been carried out by both parties to the conflict . Therefore the destruction of the applicant ’s possessions could not be imputed to the defendants .

The court further held that under LAW of GPE damage inflicted by a “ source of increased danger ” ( источник повышенной опасности ) was to be compensated for by the person or entity using that source , unless it was proven that the damage had been caused by force majeure or through the fault of the affected person . However , in the court ’s view , the applicant ’s reference to the above Article was unfounded , as weapons and military equipment , in the circumstances of the present case , could not be regarded as a “ source of increased danger ” , since they had been used strictly for the purposes they were designed for and under the firm control of the relevant personnel . Moreover , the applicant had not adduced any evidence which would enable the court to establish the type and ownership of the weapon which had destroyed the applicant ’s housing .

The court also noted that the applicant had submitted no documents confirming the value of her lost property . It noted in this respect that witness statements obtained during the hearing only enabled it to establish the existence of the possessions in the applicant ’s flat prior to the destruction and the fact that those possessions had been new . The court made no findings regarding the applicant ’s property rights in respect of the destroyed flat .

The applicant ’s claims for compensation for non - pecuniary damage could not be granted either , in the absence of any fault or unlawful actions on the part of the defendants . In view of the above , the court concluded that there were no grounds for granting the first applicant ’s compensation claim for the destroyed property .

It does not appear that the applicant ever sought the first - instance court ’s assistance in obtaining evidence relating to the weapon that had destroyed her housing . In her appeal against the judgment of DATE the applicant did not complain of her inability to obtain the evidence in question .

On DATE ORG upheld the first - instance judgment on appeal .

On DATE , following the decision of ORG , the judgment of DATE became final and binding .

According to the applicant , at some point ORG issued a writ of execution and sent it to ORG for execution on DATE .

In the ORG ’s submission , the writ of execution was received by ORG on DATE .

On DATE ORG sent the applicant a letter inviting her to indicate the details of her bank account to enable the said Ministry to transfer the judgment debt to her .

The applicant provided the necessary information on DATE .

On DATE the full amount due pursuant to the judgment of DATE was transferred to the applicant ’s bank account .

In DATE , at the communication stage , the Government were invited to produce a copy of the investigation file of case no . DATE instituted in connection with the killing of the applicant ’s husband and other persons on DATE . Relying on the information obtained from ORG , the ORG refused to submit a copy of the entire file , stating that the disclosure of the documents would be in violation of LAW of LAW since the file contained personal data concerning the witnesses . They , however , produced a number of documents from the file , which can be summarised as follows .

By decisions of CARDINAL DATE the ORG prosecutor ordered that criminal proceedings be instituted in connection with the killing of the applicant ’s husband and CARDINAL other persons by a man named PERSON using a machine gun on DATE and that an investigative group be organised for the investigation .

By a decision of CARDINAL DATE the investigator in charge declared the applicant the victim of a crime .

By a decision of DATE an investigator of the ORG prosecutor ’s office took up the case .

By a decision of DATE the investigator in charge suspended the proceedings in case no . DATE . The decision stated that the term established for the preliminary investigation had expired , that all possible investigative actions had been carried out , but that it was impossible to establish the identity of the alleged perpetrator . The decision did not list the actions that had been taken during the investigation .

In a letter of CARDINAL or CARDINAL [ the hand - written date is unclear ] DATE the applicant was informed that the investigation in case no . DATE had been stayed , as it was impossible to establish the identity of the person responsible .

DATE . On DATE the ORG prosecutor ordered that the investigation be resumed , citing “ the necessity of carrying out investigative actions ” . He did not indicate which particular actions should be taken . By a decision of the same date an investigator of the PERSON prosecutor ’s office took up the case .

A decision of DATE of the first deputy prosecutor of ORG ordered that the investigation in criminal case no . DATE be resumed . It stated , in particular , that “ ... the investigation ... [ had been ] extremely superficial and was limited to carrying out several investigative actions and to including in the materials of the case file reports of investigating officers on the performed work and the results ” . It went on to say that the decision of DATE by which the investigation had been suspended for failure to establish the alleged perpetrator had been premature , before all investigative steps had been taken , and should be quashed . The decision of DATE further listed a number of investigative steps that should be taken during an additional investigation .

In a letter of CARDINAL DATE the ORG prosecutor ’s office informed the applicant in reply to her query that the criminal proceedings had been suspended on DATE [ apparently a misprint , the correct date is DATE ] in the absence of any persons identifiable as the perpetrators . The letter went on to say that a study of the case file had shown the preliminary investigation into the circumstances of the death of the applicant ’s husband to have been superficial , and that the proceedings had therefore been resumed on DATE and the investigator in charge had been instructed to carry out an additional investigation .

By decisions of DATE an investigator of the PERSON prosecutor ’s office took up case no . DATE and requested that DATE be fixed as the term of the preliminary investigation .

On DATE the investigator in charge ordered that the proceedings be stayed , as “ during the additional investigation it [ had been ] impossible to establish those responsible ” . The decision did not specify whether any investigative steps had been taken , or if so , what they were .

By a decision of DATE a deputy prosecutor of the LOC prosecutor ’s office set aside the decision of DATE and ordered that the investigation in case no . DATE be reopened . The decision stated that “ the investigation [ had been ] carried out superficially , haphazardly and unprofessionally ” and that “ the decision [ of DATE ] suspending the preliminary investigation [ had been ] premature and unfounded , without all the circumstances of the serious crime committed having been studied ” . The prosecutor thus ordered that the decision of DATE be set aside , given , in particular , the fact that the prosecutor ’s instructions of DATE had not been complied with . The decision did not list any particular investigative actions to be performed .

On DATE an investigator of the LOC prosecutor ’s office took up the case , and on the same date informed the applicant of the reopening of the investigation .

By a decision of CARDINAL DATE the investigator in charge stayed the investigation on account of the failure to establish the alleged perpetrator . The decision stated that during the additional investigation a query had been sent to ORG of GPE with a view to establishing the alleged perpetrator ’s whereabouts , and that , upon receipt of a reply to that query , a request was sent to the LOC prosecutor ’s office with a view to organising interviews with persons having personal details similar to those of the alleged perpetrator . The decision did not indicate whether any other steps had been taken . A letter of the same date informed the applicant of this decision .

By a decision of DATE a deputy prosecutor of the PERSON district prosecutor ’s office ordered that the decision of CARDINAL DATE be set aside and the proceedings in case no . DATE reopened . The decision stated , in particular , that the decision to suspend the investigation had been unfounded and that the investigator in charge had failed to take all measures which could be taken in the absence of a person identifiable as a perpetrator . The decision further listed investigative measures that should be taken during an additional investigation . On DATE an investigator of the PERSON district prosecutor ’s office took up the case and informed the applicant of the reopening of the proceedings .

A report on the exhumation dated DATE contains a detailed description of the site of the burial and the exhumed bodies .

In DATE ( the date is unclear ) forensic medical experts drew up reports on the results of the examination . The report drawn up in respect of the body of the applicant ’s husband attested the presence of gunshot wounds to the head and neck .

On DATE the investigator in charge sent a query to ORG in an attempt to find out whether any criminal proceedings had ever been brought against GPE ( ORG ) PERSON , aged DATE , who had been an officer of the security services established by rebel fighters , and if so , to obtain his full personal details and photographs , or in the absence of photographs to have people who might have known him questioned .

During an interview of DATE the applicant re - stated the circumstances of the incident of DATE . She described in detail the appearance of PERSON , the man who , according to her , had shot her husband and CARDINAL other persons . She stated that he was of NORP origin and , since DATE , had shared a flat in their block of flats with another man of NORP origin , who had been their neighbour . Both of them had been armed with machine guns . She further stated that on TIME of the incident PERSON had come down to their basement in a drunken state and shot her husband and CARDINAL others with his machine gun . She had managed to hide in a dark corner of the basement . Immediately after the incident the applicant ran to a neighbouring block of flats where rebel fighters had been quartered and told them about the killing . According to her , they had taken PERSON out of the basement and started beating him with the butts of their machine guns and had promised her that they would commit him for trial . On DATE , with the assistance of her CARDINAL neighbours , the applicant had buried those killed near their block of flats . On DATE in the courtyard she had seen PERSON armed with a machine gun .

One of the neighbours who had helped the applicant with the burial stated in her witness interview of DATE that she had learnt about the killing of the applicant ’s husband and CARDINAL others from the applicant . She gave oral evidence similar to that of the applicant and added that during the burial a man who had described himself as the former head of a security service established by rebel fighters had said that he knew PERSON and indicated the approximate vicinity of PERSON ’s residence .

Transcripts of witness interviews held on DATE reveal that the investigating authorities questioned CARDINAL persons who were born in DATE , DATE and DATE and had the surname PERSON and the first names of PERSON or GPE . All of them stated that they had not been in PERSON during the period in question , did not know the man described by the applicant , and had no information regarding the incident of DATE .

Transcripts of witness interviews on CARDINAL and DATE reveal that the investigating authorities questioned CARDINAL persons , apparently the applicant ’s neighbours . They all stated that they did not know , and had no information about , the man described by the investigators .

The Government also adduced the transcript of a hearing held by ORG of Stavropol on DATE . According to this document , both the applicant and her legal counsel , PERSON , attended the hearing . It is clear from this document that both parties to the proceedings received explanations in respect of their rights and obligations , in particular , those established by LAW ( see paragraph CARDINAL below ) . The transcript further reveals that the court heard both parties , the applicant having made statements similar to her written submissions to the court , and then CARDINAL witnesses , who described the belongings that had been in the applicant ’s flat prior to the destruction . The witnesses did not indicate the value of that property . As can be seen from the document , neither the applicant nor her representative had any questions , nor filed any motions . It is also clear that the court examined the following pieces of evidence : a copy of the marriage certificate , a copy of the passport , a housing warrant , a copy of the death certificate , an extract from a medical history card , CARDINAL certificates , CARDINAL letters , a copy of an identity document , parties’ written submissions , and summons .

Article CARDINAL of LAW of DATE in force at the relevant time provided that the competent authorities were under an obligation to take a decision in respect of any written or oral complaint concerning a criminal offence within DATE , or in exceptional cases DATE , from the date on which the complaint was received .

Article CARDINAL of the Code of Civil Procedure of DATE in force at the relevant time stated that each party to proceedings must prove those circumstances to which it refers in support of its submissions . A court decides what circumstances are relevant for the case and which party must prove them and proposes those circumstances for discussion even if some of them have not been referred to by any of the parties . Evidence is submitted by the parties and other persons involved in the proceedings . A court may propose that the parties or other persons involved in the proceedings submit additional evidence . If it is complicated for the parties or other persons involved in the proceedings to submit additional evidence , the court , on their request , assists them in obtaining that evidence .

DATE . Section CARDINAL of the Law on Enforcement Proceedings of DATE provides that a bailiff ’s order on the institution of enforcement proceedings must fix a time - limit for the defendant ’s voluntary compliance with a writ of execution . The time - limit may not exceed DATE . The bailiff must also warn the defendant that coercive action will follow , should the defendant fail to comply with the time - limit .

Under LAW , enforcement proceedings should be completed within DATE following receipt of the writ of enforcement by the bailiff .


CASE OF EUGENIA MICHAELIDOU DEVELOPMENTS LTD AND MICHAEL TYMVIOS v. TURKEY

Preliminary objections dismissed (ratione temporis, ratione loci, victim, non-exhaustion of domestic remedies);Violation of P1-1;Not necessary to examine Art. 14;Not necessary to examine Art. 8;Just satisfaction reserved;Costs and expenses award - Convention proceedings

The first applicant is a private company incorporated under NORP law and registered in GPE on DATE . It has CARDINAL director and CARDINAL shareholders . The second applicant is a NORP national of NORP - Cypriot origin , born in DATE and living in GPE . He is the director of the first applicant and also its principal shareholder . The second shareholder of the company is the second applicant 's wife . From the date of the incorporation of the first applicant until DATE , the second applicant owned CARDINAL shares and his wife CARDINAL shares . However , since DATE the applicant has been the owner of CARDINAL shares and his wife the owner of CARDINAL share .

NORP In DATE the first applicant became the co - owner of a substantial amount of property by way of gift . The property is situated in the village of PERSON , in the northern district of GPE , located in the “ GPE ” ( “ GPE ” ) . It consists of CARDINAL plots of land with registration numbers ACARDINAL , ACARDINAL , ACARDINAL , BCARDINAL , ORG , BCARDINAL , BCARDINAL , ECARDINAL , ECARDINAL , ECARDINAL , PERSON , ECARDINAL , ECARDINAL , PERSON , ORG , PERSON , PERSON , QUANTITY , PERSON , GCARDINAL , GCARDINAL , GCARDINAL , GCARDINAL , GCARDINAL , PERSON , PERSON , PERSON , PERSON , GCARDINAL , PERSON , PERSON , HCARDINAL , PERSON , HCARDINAL , PERSON , PERSON , ORG , GPE , HCARDINAL , PERSON , ORG , HCARDINAL , HCARDINAL , ORG , GPE , PERSON , GPE , PERSON and PERSON .

The first applicant owned the property in equal shares with another company also registered in GPE . However , on DATE the first applicant and the other co - owner transferred their shares in the above property by way of gift to the second applicant . As from DATE the second applicant became the exclusive owner of that property .

The applicants state that they are prevented by the NORP armed forces from having access to their property and using and enjoying possession of it .

On DATE the “ ORG of GPE ” enacted LAW within ORG ” , which entered into force on DATE .


Violation of Article 8 - Right to respect for private and family life

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in LOC .

On DATE the applicant was arrested on suspicion of fraud and placed in pre - trial detention . The grounds for this decision are unknown , since the applicant has not produced a copy of it .

On DATE the ORG ( Sąd Rejonowy ) extended the applicant ’s detention until DATE . It relied on the reasonable suspicion that the applicant had committed the offence with which he had been charged . It referred to the likelihood of a severe sentence of imprisonment being imposed on the applicant and the need to secure the proper conduct of the proceedings . The court further found that there was a risk that the applicant might go into hiding , given that earlier he could not be found at his place of permanent residence .

The applicant submitted that he unsuccessfully appealed against decisions extending his detention .

The applicant maintained that during his arrest he was treated in a degrading manner by police officers and that he was subjected to threats . On DATE the ORG instituted an investigation into the applicant ’s complaints against the police officers . The investigation is still continuing .

The applicant submitted that during his detention his correspondence was censored by the authorities . He produced CARDINAL envelopes . All the envelopes bear a stamp that reads : “ Censored , date ... , Prosecutor ” ( ORG , dnia ... Prokurator ) . Those envelopes contained letters from :

CARDINAL ) ORG “ Patronat ” ( ORG PERSON ” ) , a non - governmental organisation , acting , inter alia , on behalf of prisoners and former prisoners , sent on CARDINAL DATE ;

CARDINAL ) ORG , sent on DATE ;

CARDINAL ) ORG for the Prevention of Torture and Inhuman and Degrading Treatment , sent on DATE ;

CARDINAL ) ORG ; sent on DATE ;

CARDINAL ) the ORG , sent on DATE .

The applicant produced CARDINAL envelope that indicates as the addressee of the letter the Governor of PERSON and bears a stamp that reads : “ Censored , date ... , Prosecutor ” ( ORG , dnia ... Prokurator ) . A hand - written note indicates case file no . IC CARDINAL/CARDINAL .

One envelope bears traces of having been opened - its sides were cut open and resealed using self - adhesive tape .

NORP The applicant submitted that a letter addressed to him by the ORG had been opened and read by the authorities . In a note sent to the applicant from PERSON ( PERSON ) on DATE , he was informed that on CARDINAL DATE a letter from ORG to the applicant had been delivered by ORG . The note further states that the letter had clearly been damaged .

The relevant domestic law and practice concerning the censorship of ORG correspondence is set out in the ORG ’s judgment in the case of Kliza v. GPE , no . CARDINAL , § § DATE , DATE .


The applicant , PERSON , is a NORP insurance company . It was represented before the ORG by PERSON , a lawyer practising in Eksjö . The respondent Government were represented by Ms A. ORG .

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

ORG missionsförsamling , a religious congregation , had taken out a fire insurance policy with the applicant company for a piece of property it owned . On DATE PERSON commenced work development training ( ALU - utbildning ) at the congregation . On DATE he set fire to the house on the property which burnt down completely . PERSON was later convicted of arson .

The applicant company paid an indemnity to the congregation of CARDINAL million Swedish kronor ( SEK ) and later claimed compensation from ORG ; hereinafter “ the LOC ” ) , relying on the Ordinance on Compensation from Public Funds for Damage Caused by Participants in FAC or ORG ( Förordningen om ersättning av allmänna medel för skada orsakad av deltagare i viss arbetsmarknads - utbildning eller yrkesinriktad rehabilitering m.m . , CARDINAL ; hereinafter “ the DATE LAW ) .

By a decision of DATE the ORG rejected the applicant ’s claim . It found that no right of recourse for the indemnity paid could be derived from the provisions of the DATE Ordinance .

The applicant company appealed to the Government , maintaining that LAW ( Lagen om försäkringsavtal ; CARDINAL ) and the terms of the insurance policy in question entitled it to succeed to any right of compensation of the policy - holder in relation to the perpetrator or anyone else liable to damages .

In an opinion to the Government , the Chancellor of Justice ( Justitie - kanslern ) stated that predominant reasons spoke in favour of there not being any right of the applicant to compensation from the ORG under LAW of LAW or the DATE Ordinance .

On DATE the Government upheld the decision of the ORG . It stated that the DATE Ordinance regulated the ORG ’s undertaking to assume responsibility , under certain conditions , for damage caused to the provider of vocational training by participants in such training . The Ordinance did not , however , regulate the general legal liability to pay compensation for damage that occurred . LAW was not therefore applicable in relation to the ORG ’s undertaking under the Ordinance . Moreover , there was no other basis for granting the applicant company ’s compensation claim .

The applicant company then instituted proceedings for damages against the ORG before ORG ( tingsrätten ) of GPE . It claimed that the ORG was liable for any damage caused by a participant in vocational training , either CARDINAL ) pursuant to the provisions on compensation of the DATE Ordinance , CARDINAL ) according to a contractual responsibility deriving from the LAW and the placement of participants in vocational training , or CARDINAL ) on the basis of a responsibility as employer ( principalansvar ) allegedly assumed by the ORG . The congregation had transferred its right to compensation to the applicant , according to the terms of the insurance policy .

The ORG maintained , inter alia , that the DATE Ordinance was of a public - law character and that , in the absence of express rules on the transfer of claims , a right of compensation could thus not be transferred until the compensation was available for disbursement . Further , the applicant company could not , on the basis of the insurance policy , claim any right of recourse from the ORG for the indemnity paid but only from the perpetrator of the act causing the damage . Moreover , a participant in vocational training not being comparable to an employee , there was no employer ’s responsibility .

By a judgment of DATE ORG rejected the applicant company ’s claims . The court considered that the right of compensation under the DATE Ordinance rested with the injured party – in this case the congregation DATE and that it could not be transferred until the compensation amount had been fixed and was available for disbursement . In so finding , the court had regard to the procedure for claiming compensation under the GPE , which prescribed that a public authority , upon application by the employer , determined in an administrative decision whether the conditions laid down in the GPE were fulfilled .

The applicant appealed to ORG ( PERSON hovrätt ) . On DATE the appellate court quashed ORG judgment in so far as it had determined the applicant company ’s first CARDINAL grounds and rejected the applicant ’s claim based on the third ground .

The appellate court considered that the ORG , under the DATE Ordinance , had assumed a certain economic responsibility for damage caused by participants in vocational training for which they would normally be liable themselves under general tort liability principles . This responsibility was , however , normally limited to FAC for damage to property under section CARDINAL of the Ordinance . Noting further that the GPE prescribed that compensation claims were to be examined by the LAW and , upon appeal , by the Government , the court concluded that that examination involved a comprehensive and final determination of the claims . Consequently , ORG had had no jurisdiction to examine the applicant company ’s claims in so far as they were based on the Ordinance . It made no difference that the applicant had added a contractual element to its second ground . The first CARDINAL grounds for the applicant ’s claim were therefore dismissed without an examination on the merits .

As regards the applicant company ’s third alternative ground , ORG found that there was no basis for finding that the ORG had assumed an employer ’s responsibility under LAW ( PERSON , CARDINAL:CARDINAL ) or any other similar responsibility . In so far as the claim was based on this ground , it was accordingly rejected .

On DATE ORG ( Högsta domstolen ) refused the applicant company leave to appeal .

The DATE Ordinance sets out the ORG ’s liability for damages caused by persons in vocational training who receive benefits whilst undergoing training with a private employer . The relevant provisions , as they stood at the material time , read as follows :

Section CARDINAL :

“ Compensation is given out of public funds in accordance with the provisions of this GPE to employers and other providers of rehabilitation or vocational training outside the regular school system for damage caused by a person who

NORP participates in vocational training and receives an education allowance ,

Section CARDINAL :

“ Compensation is awarded for personal injury or damage to property inflicted on the employer , whether or not the person causing the damage is liable for it . The same rule applies in relation to pure economic loss inflicted on the employer by way of a criminal offence . ... ”

Section CARDINAL :

“ Unless otherwise prescribed in subsection CARDINAL , compensation of MONEY for personal injury , MONEY for damage to property and QUANTITY for pure economic loss caused by crime is awarded for CARDINAL and the same incident to every injured party .

Upon the Government ’s approval , an agreement allowing for the award of compensation for personal injury , damage to property and pure economic loss with higher amounts than those laid down in subsection CARDINAL may be concluded . ”

Section CARDINAL :

“ If the compensation does not exceed SEK CARDINAL,CARDINAL

ORG decides on compensation for damage caused by a person referred to in LAW CARDINAL ( CARDINAL ) ...

If the authority finds that compensation should be awarded in a higher amount than that mentioned in subsection CARDINAL or if the matter involves questions of principle , it shall refer the matter , together with its opinion and the necessary investigation , to the Government for decision . ”

According to LAW ORG ( Förordningen om arbetslivsutveckling , CARDINAL ) , section CARDINAL , subsection CARDINAL ( CARDINAL ) of the DATE Ordinance was applicable to a person undergoing work development training .

Section CARDINAL of the LAW regulates an insurer ’s right of recourse . Subsection CARDINAL provides :

“ If an insurer , as compensation for damage pursuant to a liability insurance policy , has paid an amount of money which the policy - holder had the right to claim as damages from another person , the insurer succeeds to the right against that other person , if the latter has caused the damage with intent or gross negligence or is under a statutory obligation to pay damages whether or not he has caused the damage . However , such a right of recourse does not apply against someone who , CARDINAL , sections CARDINAL or CARDINAL of LAW , is responsible for the damage solely on account of another person ’s actions .

LAW , sections CARDINAL and CARDINAL of LAW provide that private employers as well as ORG and local authorities are liable for personal injuries , damage to property and pure economic loss caused in the course of their activities .

According to the preparatory works of LAW Government PERSON , pp . CARDINAL and CARDINAL ) , the right of recourse in LAW should be restricted and only apply in relation to someone who is liable to pay damages on account of culpable fault or strict liability . Any extension of the right of recourse should be prevented .

The Government have decided on a few applications from insurance companies which have claimed compensation under the DATE Ordinance on the plea of the right of recourse . In decisions of DATE and CARDINAL DATE , the ORG rejected CARDINAL such applications where the companies had paid indemnities due to damage to property , the first one on the ground that the insurance company had no right to compensation under the Ordinance and the second one on the ground that the application was unfounded . However , by a decision of CARDINAL DATE , the Government granted compensation of MONEY to an insurance company which had paid an indemnity of that amount for personal injury sustained by a person in vocational rehabilitation .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for home);Violation of Article 1 of Protocol No. 1 - Protection of property (Article 1 para. 1 of Protocol No. 1 - Peaceful enjoyment of possessions)

André Potocki;Angelika Nußberger;Dean Spielmann;Mark Villiger;Paul Lemmens;Stanislav Shevchuk

The applicants were born in DATE , DATE , DATE and DATE respectively and live in the city of PERSON , GPE . The third and fourth applicants are children of the first and second applicants .

In TIME of DATE CARDINAL private individuals , NORP and NORP , acquaintances of the third applicant , went to the applicants’ apartment and said that the third applicant should return an electric drill to them . The third applicant was absent but NORP and NORP insisted and tried to enter the apartment . The first applicant picked up a gas gun and requested them to leave .

R. went to the police station and complained that the first applicant had threatened him with a weapon . It could be also understood from the available materials that NORP and ORG had bribed the police officers to go and seize the drill ( see paragraph CARDINAL ) .

At TIME on DATE the same CARDINAL people , accompanied by police officers PERSON , NORP and PERSON , went to the applicants’ apartment . NORP and NORP again asked for the drill and when the first applicant tried to close the door a fight broke out .

According to the first applicant , when he opened the door , he was knocked down but managed to break free and shouted for help . He was knocked down again and his attackers tried to push him into the apartment . CARDINAL of them sat on the applicant , put his knee on the first applicant ’s neck and hit him on the head with a gun handle . The third applicant tried to free his father but was handcuffed .

According to the second applicant , when she was returning from work , she saw “ that something was going on near their apartment and that several people were beating her son in the corridor of their apartment ” . She tried to separate the third applicant and the attackers . CARDINAL of the attackers ( who , it emerged later , was the private individual , O. ) allegedly kicked her in the stomach and hit her on the head . The applicants’ neighbours heard the noise and came out on to the stairs . The police officers asked them to call the police station . More police officers arrived and the first and third applicants were taken to the police station . According to the Government , they were taken “ to give explanations ” . The second applicant accompanied them but was not allowed to stay .

Upon arrival , the first and third applicants were allegedly beaten up in the police station by CARDINAL or QUANTITY people . They were hit on the head , in the chest , on the ribs and in the stomach and also hit on the head with a plastic bottle filled with water . The third applicant was hit on the ears . According to him , he was handcuffed the whole time . According to the applicants , they were threatened with being injected with drugs and with being put in a cell where they would be raped by other detainees . The first applicant was allegedly forced to sign a document stating that he had voluntarily handed over a gas gun and an electric drill to the police officers .

At TIME the first applicant was taken home by police officers PERSON and T. , where he gave them the drill and the gas gun . The drill was later handed over to NORP The third applicant was released TIME .

On DATE and DATE the first and second applicants requested the prosecutor to arrange a forensic medical examination for them . In particular , the second applicant submitted that she “ had been beaten by the bandits who had beaten her husband and son ” . She further noted that she had been beaten by O.

On DATE the first applicant underwent a forensic medical examination , which concluded that the first applicant had concussion , a broken rib , bruises and scratches on the head . These injuries were of medium severity and could have been inflicted by the first applicant ’s falling against some objects .

The first applicant was in hospital DATE and DATE .

On DATE the second and third applicants were examined by a forensic expert , who found that the third applicant had bruises on and behind the ears , a black eye and bruises on his chest . They were classified as light bodily injuries . The second applicant told the expert that she had been hit on the head and kicked in the stomach . She had not sought medical assistance at the time . The expert examined the second applicant and found no visible injuries . The second applicant was advised to consult a neurosurgeon , and later the expert added that “ by DATE no neurosurgeon ’s opinion had been received ” .

DATE and DATE the second applicant was treated in the neurological department of ORG . She was diagnosed with a closed craniocerebral injury . The second applicant told doctors that on DATE she had been hit on the left temple by an unknown person .

On DATE the police office decided not to institute criminal proceedings against the first applicant for threatening NORP with a gas gun . It was also found that the first applicant ’s licence to keep such a gun had expired .

On DATE the Head of ORG of ORG ( начальник відділу кримінального розшуку Чернігівського міського відділу ORG області ) terminated an internal investigation into the events of DATE . It was found that NORP had complained to the police that the first applicant had threatened him with “ an object which looked like a gun and with an object which looked like a sword ” . Following this complaint police officers had gone to the first applicant ’s apartment . When they identified themselves and showed their police cards , the first and third applicants began fighting and swearing . The police officers used martial arts techniques and handcuffs .

On DATE the first applicant complained to ORG that he and his son had been unlawfully arrested and beaten up , and that their property had been seized unlawfully . In particular , the first applicant submitted that at TIME on DATE somebody had rung their doorbell . When the first applicant opened the door he was knocked down , dragged into his apartment and threatened with a gun . When neighbours appeared because of the noise and wanted to call the police , the attackers said that they themselves were police officers . They were accompanied by NORP and NORP , who kicked the second applicant . The first and third applicants were beaten , put into a police car which had arrived by this time , and taken to the police station . In the police station the first applicant was also beaten and told to give up any weapon he had . According to the first applicant , the beatings were “ directed ” by the police officer who had earlier hit him with a gun handle . Later the first applicant stated that a certain police officer , ORG , had also “ joined in torturing him ” . TIME the first applicant was brought home where , in the presence of CARDINAL witnesses , he handed over to police a gas gun and an electric drill .

On DATE the second and fourth applicants lodged similar complaints . In particular , the second applicant complained that ORG had hit her on the head and kicked her in the stomach . She further complained that her son had been beaten up .

On DATE the third applicant complained to ORG that he had been beaten up by police . On an unidentified date he also stated that ORG had pushed his mother and kicked her .

Written explanations were collected from the participants of the events in question . In particular , on DATE O. submitted that the first and third applicants started to fight , that the third applicant had broken the glasses of CARDINAL of the police officers and that the second applicant had sworn at him . O. did not mention that he had fought with anybody .

On DATE the Head of ORG ordered that police officers PERSON , NORP and PERSON be dismissed . It was found that : ( i ) the conflict between NORP , NORP and the third applicant was of a civil - law nature , and NORP was not the owner of the drill ; ( ii ) police officers NORP and PERSON submitted reports about use of force against the third applicant and , according to findings of the internal investigation , their actions were considered lawful . PERSON did not submit any report ; ( iii ) NORP , PERSON and PERSON were not equipped “ properly ” when leaving to check NORP ’s complaints of threatening behaviour with a firearm . It was concluded that the events in question happened because of “ lack of discipline and legal knowledge ” . As a result NORP , PERSON were to be dismissed for “ personal misconduct and an unsatisfactory level of professionalism ” . Police officers ORG received a warning .

On DATE a decision was adopted not to institute criminal proceedings . On DATE this decision was quashed by ORG .

On DATE ORG instituted criminal proceedings for abuse of power following infliction of bodily injuries on the first and third applicants .

DATE the second applicant was in ORG . She was diagnosed with “ after - effects of a repeated head injury ( last injury DATE ) ” . A medical certificate issued on an unknown date stated that in DATE the applicant had received a head injury .

On DATE ORG terminated criminal proceedings for absence of evidence of a crime . The first and third applicants were questioned , as was PERSON The latter testified that the first applicant had opened the door and together with the third applicant had tried to hit the police officers and to grab PERSON ’s gun , so force had been used on the applicants and the third applicant had been handcuffed . Other police officers confirmed PERSON ’s statements . According to this decision , the first applicant refused to have confrontations with the police officers . It was also noted that the second applicant had no visible injuries .

On DATE the decision of DATE was quashed and the case remitted for further investigation as “ not all necessary investigative actions had been taken ” .

On DATE these proceedings were again terminated for lack of evidence of a crime in the police ORG actions .

On DATE the decision of DATE was quashed by ORG and the case sent for additional investigation . It was noted , inter alia , that NORP had allegedly paid CARDINAL NORP hryvnias ( ORG ) to PERSON as “ financial assistance to cover petrol cost ” and that this information had not been checked .

On DATE the criminal proceedings were again terminated . The investigation officer of ORG found that the electric drill was jointly owned by the third applicant , NORP and NORP Since the third applicant had refused to give it back and the first applicant had threatened them with a gun , NORP and NORP had gone to the police station and lodged a complaint . According to ORG , the police officers showed the first applicant their identity documents but the latter refused to let them in , tried to grab PERSON ’s gun and started a fight . The second applicant arrived and started shouting . Following the noise , the neighbours came and the police officers asked them to call for reinforcements . All this happened on the staircase in front of the applicants’ apartment . NORP , who , according to O. , stayed in the car , confirmed O. ’s statements . Police officers PERSON , NORP and PERSON also confirmed this version of events . NORP also submitted that the first applicant had fallen down the stairs in the police station . Police officers PERSON . , PERSON . , PERSON and ORG stated that nobody had beaten the applicants . S. and PERSON testified that on DATE on PERSON ’s orders they had visited the first applicant ’s apartment where he had given them a gas pistol and a drill . They also said they had seen the first applicant fall down the stairs . The applicants’ neighbours stated that they did not see the beginning of the fight so they could not say who had started it . It was finally concluded that the first and third applicants had been taken to the police station because they were suspected of unlawful possession of firearms .

On DATE the Chernigiv Regional Prosecutor’

On DATE ORG again terminated the criminal proceedings . This decision was identical to that of DATE but contained an additional paragraph which stated a further investigation had not revealed any evidence of a crime .

On DATE ORG ( PERSON ) quashed this decision and remitted the case for further investigation . The court found that the investigating authorities had failed to comply with the prosecutor ’s decision of DATE . In particular , the legal grounds for the police entering the applicants’ apartment and seizing the drill and the gas gun had not been checked . Also , CARDINAL of the police officers , So . , should be questioned since , according to the first applicant , he had seen the first applicant being beaten up .

On DATE the investigation in the applicants’ case was suspended . It was noted in particular that although the applicants’ neighbours had seen the fight between the applicants and the police officers , nobody had witnessed the beginning of this fight and they could not say who had initiated it or why . It was also stated that the first applicant had fallen down the stairs in the police station .

Subsequently the investigation was resumed . So . was questioned and said that he had not seen the applicants being beaten up .

In the conclusion of DATE certified by the Head of ORG ( начальник PERSON внутрішніх справ PERSON області ) it was noted that police officers PERSON , NORP and PERSON had not been dismissed , because the dismissal order had been lost .

On DATE a decision to stay the investigation was adopted since “ it was impossible to identify the perpetrator ” . There is no evidence that any procedural actions have been taken in the applicants’ case since that time .

On DATE the first applicant was interviewed by a television company . He said that he had been beaten up by police officers at the police station and called police officer A. “ his torturer ” .

On DATE instituted defamation proceedings against the first applicant and the television company .

On DATE ORG found against A. It held that there was enough information to suspect that the first applicant had indeed been ill - treated , but that his statements were value judgments and not established facts .

On DATE ORG upheld this judgment .

In DATE the third applicant instituted proceedings in ORG against NORP and ORG ( PERSON міський відділ УМВС PERSON області ) for the return of the electric drill . The drill was currently in the possession of NORP , who was its co - owner . On DATE the court rejected this claim since the drill was not solely the third applicant ’s property but was jointly owned by a team of construction workers . The third applicant and NORP had previously been members of this team . On DATE ORG upheld this decision . On DATE ORG of GPE rejected the third applicant ’s request for leave to appeal on points of law as unsubstantiated .

The relevant provisions of the Code read as follows :

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

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

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

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

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

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

A copy of the arrest warrant with a list of the arrested person ’s rights and obligations shall immediately be handed to the detainee and sent to the prosecutor . At the request of the prosecutor , the material which served as a ground for the arrest may also be sent to him ...

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

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

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

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

Preliminary detention of a suspect shall not last for CARDINAL ... ”

The procedure for search and seizure is set out in LAW of LAW . In accordance with LAW seizure is ordered by a reasoned decision of an investigation officer . Unless urgent , the seizure is to be performed during DATE .

According to Articles CARDINAL – CARDINAL of the LAW , CARDINAL and more individuals may jointly own a property . They have equal parts in this property unless determined otherwise by law or by their agreement . The owners may also determine the way the property is used .