The applicant is a NORP citizen of NORP origin , born in DATE . He resides at GPE , GPE . Before the ORG he is represented by PERSON , a lawyer practising in GPE . The respondent Government are represented by PERSON of ORG .

A.

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

The applicant is the majority shareholder of CARDINAL limited companies in GPE , both trading with various forms of clothing . In DATE the police investigated certain economic transactions between companies in GPE and GPE and it appeared that the applicant was involved in those transactions . As the applicant was suspected of having violated i.a . the tax legislation , it was decided to carry out a search . The search took place on DATE in the LOC of CARDINAL of the companies and the applicant ’s home . After the search the applicant was questioned by the police and provisionally charged ( sigtet ) with aggravated tax evasion under LAW of LAW ( straffeloven ) and LAW , subsection CARDINAL , of LAW ( skattekontrolloven ) in an amount exceeding MONEY ( ORG ) .

In DATE the police carried out an investigation of the applicant ’s economic transactions and questioned a number of persons . At the same time the tax authorities carried out an investigation of the tax assessments for DATE concerning the applicant and CARDINAL of his companies . An extensive auditor ’s report was issued on DATE by ORG ( PERSON ) . On DATE a meeting was held between ORG and the applicant assisted by his lawyer and accountant . The applicant largely disagreed with the findings in the report . Decisions on tax increases concerning the applicant personally and the company were made in accordance with the report , and in DATE they appealed to ORG ( skatteankenævnet ) of respectively PERSON and GPE .

On DATE ORG requested ORG ( Told- og PERSON ) to have criminal charges brought against the applicant for aggravated tax evasion .

On DATE ORG informed the applicant that the consideration of his appeal would await the outcome of the appeal made by the company to ORG .

In a letter of DATE ORG B , ( GPE , PERSON ) informed ORG that further investigations concerning the criminal charge against the applicant would await the decision of ORG . On DATE the ORG requested the police to advance the criminal charge against the applicant as the tax assessment to a large extent depended on questions of evidence . On CARDINAL DATE the police insisted , however , that the tax appeal case be decided first . The applicant was informed of this decision on DATE .

On DATE ORG decided the appeal made by the applicant ’s company . ORG found that during DATE the company had evaded CARDINAL ORG . ORG considered that the outcome of the case to a large extent depended on questions of evidence .

On DATE the company appealed against the decision to ORG ) .

On DATE ORG informed the applicant that the consideration of his appeal would await the outcome of the company ’s appeal to ORG , but that he was entitled to bring the complaint about the tax increases concerning him before ORG without awaiting the decision of ORG . The applicant apparently did not make use of this possibility .

In letters of CARDINAL DATE to ORG and ORG the applicant ’s present lawyer complained about the length of the criminal proceedings against the applicant and requested that they be speeded up and the case pending before ORG be suspended awaiting the outcome of the criminal charge . The request was , however , rejected by the authorities . A similar request in a letter of DATE to ORG was likewise rejected .

On DATE ORG upheld the decision of CARDINAL DATE by ORG . At that time the applicant ’s complaint against his personal tax increase was still pending and the criminal charge against him was still under investigation by the police .

On DATE the applicant was informed that the criminal charges against him were dropped . The reason therefor was that a continuation of the case appeared to involve difficulties , costs or processing time which would not be proportionate to the importance of the case and the sentence which could be imposed in case of conviction .

On DATE the applicant submitted a request for damages pursuant to chapter CARDINALa of ORG ( retsplejeloven ) to ORG ( Statsadvokaten ) . He referred , inter alia , to the length of the proceedings and to LAW . On DATE ORG rejected the claim as it had been submitted out of time .

On DATE the applicant appealed against this decision to ORG PERSON ) referring to LAW a of ORG and maintaining that the delays in submitting his claims were excusable . On DATE the Prosecutor General agreed with the applicant and referred the case back to ORG for a determination on its merits . The case is at present pending there .

B. Relevant domestic law

Section CARDINAL a § CARDINAL , first sentence , of ORG provides that any person who has been arrested or remanded in custody as part of criminal prosecution is entitled to damages for the tort so inflicted if the charge is withdrawn or the accused is acquitted except where the acquittal is due to the fact that the person was not accountable for his / her actions .

Under the same rules as stated in section DATE a , damages may be awarded to a provisionally charged ( sigtet ) person who has been subjected to other criminal procedural interventions as part of the criminal prosecution , cf . section CARDINAL b of ORG .

ORG decides claims for damages pursuant to sections DATE a to d of ORG , cf . section CARDINAL e § CARDINAL , first sentence , of the LAW .

Claims from a person who has been provisionally charged must be made within DATE of notice to the person so charged that the charge has been withdrawn or of pronouncement of a final judgment , cf . section CARDINAL e § CARDINAL , third sentence , of ORG .

Where the claim is made after expiry of the deadline referred to in section CARDINAL e § CARDINAL , the claim can be considered provided that it is found excusable for the person to exceed the deadline , cf . section CARDINAL e § CARDINAL of ORG .

The Prosecutor General considers appeals against decisions made by ORG concerning claims for damages , cf . section CARDINAL e § CARDINAL , first sentence .

Where the claim for damages is dismissed , the claimant may demand the claim brought before the courts , cf . section CARDINAL f of ORG .

Claims for damages raised on the basis of the general rules on damages under NORP law by the person charged or convicted , or by others subject to criminal prosecution , are considered , upon request , in accordance with the rules in chapter CARDINAL a , cf . section CARDINAL h of ORG .


David Thór Björgvinsson;George Nicolaou;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Päivi Hirvelä;Vincent A. De Gaetano

NORP The applicant , Mr PERSON , is a NORP national of ORG origin , who was born in DATE and lives in GPE , in the northern part of GPE . He is represented before the ORG by Mr T. Akillioğlu , a lawyer practising in GPE . The respondent Government ( “ the Government ” ) were represented by their Agent , Mr P. Clerides , Attorney - General of GPE . The Government of GPE were given notice of the application and they informed ORG on DATE that they would not exercise their right to intervene in the present case .

NORP On DATE the applicant lodged an application with ORG ( application no . CARDINAL/CARDINAL ) against GPE under former LAW . The applicant alleged that he had been in effect kidnapped and tortured by the authorities of GPE , that he had never been informed of the reasons for his arrest , that he had not been brought promptly before a judge , that he had been unable to obtain review of his detention , which had been unlawful , and that he did not have an effective remedy before the courts of the Republic .

On DATE the Commission declared the application admissible and decided to take oral evidence in respect of the applicant ’s allegations . CARDINAL DATE , the delegates of the Commission heard CARDINAL witnesses in GPE , including the applicant , the police officers involved in the applicant ’s arrest and the doctors who had examined the applicant . In its report of DATE ( former LAW the Commission expressed unanimously the opinion that there had been a violation of ORG and CARDINAL of the LAW and no violation of LAW , DATE , DATE and DATE and LAW .

The application was then considered by the ORG which gave judgment on DATE ( PERSON v. GPE , no.CARDINAL/CARDINAL , ORG ORG ) . In its judgment the ORG accepted the findings of fact made by ORG ( see § § DATE and § § DATE of the judgment ) . It first rejected the respondent Government ’s preliminary objection of non - exhaustion of domestic remedies to the applicant ’s complaint under LAW . In this respect the ORG noted that although the ORG had opened the way for the institution of criminal proceedings against the officers involved in the applicant ’s alleged ill - treatment , the Attorney - General had refrained from taking any action ( § CARDINAL of the judgment ) . The ORG considered that the competent authorities of GPE would have discharged their obligations under the LAW by instituting criminal proceedings against the officers named in the ORG ’s report , irrespective of the outcome of such proceedings ( § CARDINAL of the judgment ) . This was , in the ORG ’s complaint to the ORG should have normally brought about this result ( § DATE of the judgment ) . ORG then held that the ill - treatment to which the applicant had been subjected had been inhuman in breach of LAW ( § § CARDINAL - CARDINAL of the judgment ) . Further , the ORG held that there had been a breach of LAW as the authorities had not conducted an investigation capable of leading to the punishment of the officers involved in the applicant ’s ill - treatment . The ORG observed that such an investigation was “ the only remedy that was appropriate for the kind of violation complained of ” ( § CARDINAL of the judgment ) ; however , the ORG , who was the official in charge of bringing criminal proceedings in the Republic , had not taken any steps in this direction ( § CARDINAL of the judgment ) .

The ORG also found that there had been no violation of LAW CARDINAL , CARDINAL , DATE and CARDINAL of the Convention ( § § CARDINAL of the judgment ) and that no separate issue arose under LAW ( § MONEY of the judgment ) .

As to the application of LAW awarded the applicant LAW for non - pecuniary damages together with GBP CARDINAL in legal costs and expenses for the proceedings before the Commission ( § § CARDINAL - CARDINAL of the judgment ) .

On DATE a former President of ORG was appointed as an independent criminal investigator ( “ the investigator ” ) by the Attorney - General acting ex officio .

The Government , in giving their factual account , relied on a letter sent by the investigator to the Attorney - General dated DATE in which the former set out the various developments that had taken place in the investigation and , in particular , the problems he had faced in trying to obtain a statement from the applicant . The Government submitted that in DATE , the investigator , after having carried out all the background preparatory work , had contacted PERSON , the lawyer who had represented the applicant before ORG and the Ombudsman ( see § § CARDINAL and CARDINAL of the judgment ) , who informed him that the applicant would see him for the purpose of giving a statement . The investigator also made arrangements for an interpreter so that the statement could be taken in the NORP language . Mr PERSON was informed of this .

On DATE a person who stated that he was the applicant ’s friend , visited the investigator and suggested that the applicant be paid a sum of money in return for a statement to the effect that he did not have a complaint and that the case be closed . The investigator informed him that as a criminal investigator he did not have or handle money . This person then suggested that both parties think about it . The investigator gave him his office and home phone numbers .

The following night , at TIME , the applicant telephoned the investigator at his home and a meeting was arranged for DATE , at TIME at the investigator ’s office for the purpose of taking the applicant ’s statement . On the above date and at TIME the applicant called the investigator and informed him that he would not be coming to the meeting . He made a passing reference to Mr PERSON without further explanation . The investigator stated in his letter ( see paragraph CARDINAL above ) that he expected that the applicant would contact him but that had not happened . Neither the applicant nor his lawyer contacted the investigator after this . In his letter the investigator informed the Attorney - General that it would not be possible to continue a criminal investigation without the complainant ’s statement and sought the instructions of the Attorney - General as to how to proceed .

The Government submitted that as the applicant had not given a statement , the criminal investigation had not been able to proceed and remained open . The applicant had not contacted the investigator or the Attorney - General since DATE in order to arrange a meeting and give his statement . The investigator had not contacted the applicant but was waiting for the applicant to get in touch with him .

NORP The applicant maintained that he had not been invited to make a statement , he had never been formally summoned by the investigator , and that he had never been informed of the new criminal investigation by the Government or ORG or sent a document explaining the new procedure to be followed . He had found out about this new investigation from the letter dated DATE he had received from ORG of ORG following the closure of the case ( see paragraph CARDINAL below ) . He stated that he had contacted the investigator who had informed him after a long period of time that he could not register the applicant ’s complaint against the police officers because the Government had not appointed an interpreter .

In the revised memorandum of DATE , a revised version of the memorandum presented at the ORG meeting of ORG , the ORG considered that the information provided by the Government on the measures adopted until then indicated that sufficient improvements in existing procedures and safeguards had been introduced . The relevant parts of the memorandum read as follows :

Specific issues : recent developments and information received

i. appointment of an independent investigator and progress of the investigation

The NORP authorities stated in their letter of CARDINAL/CARDINAL/CARDINAL that the investigator had contacted the applicant through his lawyer in GPE and practical arrangements for meeting and taking a statement from him were in the process of completion . They further indicated , in their letter of CARDINAL/CARDINAL/CARDINAL , that it was expected that the criminal investigator would meet the applicant in the near future to interview him and take a statement .

As regards cases of criminal offences involving human rights violations alleged to have been committed by members of the police where , following the evaluation of all collected evidential material submitted by the criminal investigator , it is decided that the latter does not warrant the filing of criminal proceedings , the Deputy Attorney General issued a circular on DATE addressed to criminal investigators and all members of the Attorney ORG . In accordance with the circular , which is binding in form , in such cases , a letter shall be sent to the complainant / victim , or his or her lawyer or other person having made the relevant allegations ( whether these were brought to the Attorney General ’s knowledge directly or indirectly ) , informing him or her that the independent criminal investigator appointed by the Attorney General has completed the investigation , and that , following the study and evaluation of all collected evidential material submitted , the Attorney ORG is of the view that , for reasons which shall be stated in the letter , this does not warrant the filing of criminal proceedings against any member of the police . A copy of the circular was forwarded to the ORG on CARDINAL/CARDINAL/CARDINAL .

The same circular addresses cases in which , at the stage of evaluation of evidential material collected and submitted by the criminal investigator , or at any other stage of the criminal investigation , it comes to the knowledge of the Attorney ORG through the criminal investigator or through any event in the case - file that the complainant / victim withdraws his or her allegations , or does not wish the investigation to continue , or is uncooperative , or that at present the complainant / victim or substantial witnesses are not in GPE and can not be traced . In accordance with the circular , in such cases , the investigation file must remain open until the investigation is completed . Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue / complete the investigation , they may not do so indefinitely . Consequently , a decision as to whether or not to file criminal proceedings is not required at that stage . Henceforth , the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney ORG considers that , in the circumstances , the investigation for the time being can not proceed further . The investigation and the matter of whether or not to bring criminal proceedings thus remain open , with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved .

iv . access of complainants to investigations

The NORP authorities have stated that the investigation process is confidential . However , the complainant ’s participation in the investigation process is important , whether the alleged offence was committed by police officers or members of the public .

From the outset of the investigation process , where the alleged offence was committed by a police officer , the complainant is informed by a letter from the Attorney General that an independent criminal investigator has been appointed to investigate his or her allegations ; the letter includes the name and particulars of the investigator . A copy of CARDINAL such letters was forwarded to the ORG on CARDINAL/CARDINAL/CARDINAL .

Complainants participate in investigations by giving their own testimony , upon which the investigation is based . The complainant is always the first to be interviewed ; he or she supplies information and his or her statement is taken by the investigator . The investigator can come back to the complainant for any clarifications and supplementary statements or information as the investigation proceeds , thereby giving the complainant the opportunity to challenge the statements of other witnesses . The complainant is not , however , given the statements of other persons interviewed in the course of the investigation ; nor are the latter given the complainant ’s statement . Criminal investigations proceedings in GPE are modelled on those of GPE .

Complainants are also prosecution witnesses in the criminal proceedings . Thus , during a criminal trial , complainants can give their own testimony in front of the ORG . Indeed , the prosecution bases its case on the testimony of complainants . The latter also have the opportunity to confront the alleged perpetrators and their witnesses during the hearing , to listen to their testimonies and to their cross - examination by the prosecution . Criminal trial proceedings in GPE are modelled on those of GPE .

ORG assessment :

Since the ORG ’s judgment in the present case and the requests received from the applicant , an independent investigator has been appointed and his investigation opened . The applicant has not submitted any further complaints about the manner in which this investigation is being carried out .

The ORG further notes the circular issued by the Deputy Attorney General on DATE , which is binding on all members of the Attorney ORG assessing criminal investigation files involving allegations of human rights violations committed by members of the police force and on criminal investigators appointed to deal with such cases . The ORG notes that , following the issuing of this circular , the aforementioned officials are now required to inform victims / complainants when it is decided not to proceed with the prosecution of the alleged perpetrator in such cases , and of the reasons for such a decision . The fact that such investigations are not to be closed in cases where an obstacle temporarily prevents the investigation from being pursued further is also noted .

In sum , the NORP authorities have taken a number of measures to strengthen the effectiveness of investigations into allegations of human rights violations committed by members of the police . In addition , following the events that gave rise to the present judgment , a possibility has been introduced of opening a fresh , independent investigation into the allegations at the basis of the present violation and such an investigation has indeed been opened , which , in the circumstances of the present case , appears to meet the requirements of execution . In the light of the foregoing , it would now appear that the guarantees surrounding such investigations , combined with the appointment of an independent investigator in the present case , are sufficient to allow the ORG to close its examination of the individual measures taken in the present case . ”

ORG concluded its examination of the cases of PERSON v. GPE ( cited above ) and LOC and Others v. GPE ( nos . DATE - CARDINAL/CARDINAL and CARDINAL , ORG CARDINALV ) by adopting ORG ResDH(CARDINAL)CARDINAL , the relevant parts of which read as follows :

“ ORG , under the terms of Article CARDINAL , paragraph CARDINAL , of ORG hereinafter referred to as “ the Convention ” ) ,

Having regard to the judgments of ORG in the cases of PERSON against GPE , delivered on DATE , and GPE and others against GPE , delivered on DATE , transmitted to ORG once they had become final under Articles CARDINAL and CARDINAL of the Convention ;

Having regard to the Rules adopted by ORG concerning the application of Article CARDINAL , paragraph CARDINAL , of the Convention ;

Having invited the government of the respondent state to inform it of the measures taken in consequence of ORG judgments , having regard to Cyprus’ obligation under LAW , paragraph CARDINAL , of the Convention to abide by them ;

Having satisfied itself that on DATE and on DATE , within the time - limits set , the government of the respondent state had paid the applicants the sums provided for in these judgments ;

Whereas during the examination of the cases by ORG , the government of the respondent state gave ORG information about the measures taken , in compliance with LAW , paragraph CARDINAL , of the Convention , in order to grant the applicants , as far as possible , full redress for the violations found ( restitutio in integrum ) and to prevent new violations of the same kind as those found in the present judgments ; this information appears in the appendix to this resolution ;

Recalling , as far as individual measures are concerned , the continuing obligation to conduct effective investigations into the actions of security forces , particularly in cases where procedural violations of ORG or CARDINAL have been established ( cf Interim Resolution ResDH(CARDINAL)CARDINAL Action of the Security Forces in GPE ) or , as in the PERSON case , a violation of LAW ;

Noting in this context with interest the ex officio appointment by the Attorney General of an independent criminal investigator in both cases ( see appendix ) and that the ensuing investigations appear “ capable of leading to the identification and punishment of those responsible ” ; regretting , however , the time required for this appointment in view of the importance of taking individual measures promptly ,

Welcoming the general measures adopted by GPE following the judgments of the ORG which DATE appear effectively to prevent new , similar violations ; noting , in particular , with satisfaction the rapid interim measures taken by ORG , the Attorney General and the Minister of ORG and Public Order to prevent as far as possible new violations awaiting the entry into force of the comprehensive reforms which had been initiated ,

Declares , after having examined the information supplied by the government of GPE , that it has exercised its functions under LAW , paragraph CARDINAL , of the LAW in these cases . ”

The appendix to ORG ResDH ( CARDINAL)CARDINAL sets out the information provided by ORG during the examination of the cases of PERSON and GPE and Others by ORG . The relevant parts of the appendix read as follows :

“ I. Individual measures aimed at achieving restitutio in integrum for the applicants

I.a . Introductory note

It is recalled that in the case of PERSON a violation of LAW was found by ORG on the ground that there had been no “ thorough and effective investigation capable of leading to the identification and punishment ” of the police officers responsible for the applicant ’s ill - treatment ( see , in particular , DATE , DATE , CARDINAL of the judgment ) . This was despite the fact that the Ombudsman of GPE , following a complaint by the applicant , had carried out an investigation into the case and on DATE issued , and transmitted amongst others to the Attorney General , a report identifying police officers who had been involved in the applicant ’s ill - treatment .

I.b . Appointment of an independent criminal investigator

Following ORG judgments , the GPE government decided to proceed to the initiation of fresh , independent criminal investigations into both cases . On DATE , by decision of the Attorney General , Mr D.S , former President of ORG , was appointed as criminal investigator in both of these cases . These investigations are not as yet concluded .

It is noted that the applicant in the case of PERSON has not , since the opening of investigations , pursued his requests in this respect ( initially raised in letters addressed to ORG in DATE and in DATE ) or submitted any complaints regarding their conduct . The applicants in the case of GPE and others have not , in any way , pursued this matter with the ORG .

The government considers that the powers of independent investigators and the procedural safeguards surrounding them guarantee that the fresh investigations , which will be concluded without delay , meet the requirements of the Convention ( see below ) .

I.c . Powers and effectiveness of the independent criminal investigator

After the events at issue , the Attorney General received the power to appoint independent investigators in cases of alleged abuses by police forces ( see further section II.CARDINAL.b below ) . Criminal investigators appointed by the Attorney General are independent lawyers or former judges . They have the same powers and duties as police officers investigating the commission of offences allegedly perpetrated by members of the public . Under LAW ( CARDINAL ) of LAW both are “ investigating officers ” having the powers given to such officers by sections LAW of the PERSON . They are empowered by this PERSON not only to order attendance and taking of statements by witnesses , but also to require the production of documents . They can also carry out searches under the authority of search warrants issued by a court . Such warrants may be issued by a court upon a sworn written declaration by the investigator that there are reasonable grounds for believing that evidence as to the commission of an offence is to be found in the place concerned .

The duties of police officers required to give information / statements in criminal investigations carried out by investigators appointed by the Attorney General are the same as those of members of the public when the investigation is being carried out by police officers .

Complainants participate in investigations by giving their own testimony , upon which the investigation is based . The complainant is always the first to be interviewed ; he or she supplies information and his or her statement is taken by the investigator . Complainants are also prosecution witnesses in the criminal proceedings .

The effectiveness of these investigations is also safeguarded by the general measures adopted by the GPE government after ORG judgments ( see below , especially section II.CARDINAL ) .

II . General measures

PERSON Interim measures awaiting the entry into force of comprehensive legislative reforms

Immediately following the delivery of the present judgments , the Attorney General of GPE and the Minister of ORG and ORG took a number of measures to enable GPE to meet its obligation under LAW , paragraph CARDINAL , of the ORG to prevent new violations as far as possible pending the legislative and other reforms made necessary by the present judgments . These measures are outlined below , in sections II.CARDINAL.b and GPE - c .

A more general reflection also rapidly started on the more comprehensive measures required effectively to prevent new violations of the present kind . The resulting legislative and other measures are presented below .

II.CARDINAL General measures adopted for the prevention of similar violations of ORG CARDINAL and CARDINAL

II.CARDINAL.a . Legislative amendments to enhance arrested and detained persons’ protection from torture or inhuman or degrading treatment by members of the police and prosecution in such cases

i ) New legislation for the effective protection of persons in detention from illtreatment

The “ Rights of Persons under Arrest and Detention Law DATE ” , which entered into force on DATE , includes a series of provisions in particular aimed at better implementing constitutional protection from torture or inhuman or degrading treatment or punishment . The major provisions of this PERSON are the following :

( a ) All detainees now have a statutory right to be protected from torture or inhuman or degrading treatment or punishment or “ any other physical , psychological or mental violence ” ;

( b ) The PERSON expressly states that the state is under an obligation to ensure the above right ;

( c ) Detention centres’ principals are under an obligation to care for the detainees’ physical and mental health ;

( d ) Detention centres’ principals are under an obligation to ensure that minor ( under DATE ) detainees are separated from adults ;

( e ) Women detainees should be separated from men ; special protection measures should be taken for pregnant detainees or for those with newborn children ;

( f ) Detainees have the right to medical checks , care and supervision by private medical doctors of their own choice or by ORG medical doctors ;

( g ) A list of detainees’ rights should be held in every cell , at least , in NORP , NORP and LANGUAGE .

These new statutory rights and obligations play an important role in improving the criminal and civil liability of the state and of principals of detention centres in case of abuse .

ii ) New legislation providing for heavier sanctions against offending police officers

The “ United Nations Convention against Torture and other Cruel , Inhuman or Degrading Treatment or Punishment ( Ratification ) Laws ” of DATE and DATE have , by the amendments which came into force on CARDINAL DATE , been extended to cover cruel , inhuman or degrading treatment . It was thus an offence at the time of the events in question , for any person , including a member of the police , to subject another person to torture . Commission of the offence by members of the police carried a heavier sentence than its commission by other persons and was punishable with imprisonment for DATE , instead of for DATE .

As a result of these above amendments , members of the police committing the offence of inhuman , cruel or degrading treatment or punishment , are now exposed to even heavier sanctions ( sentence of DATE imprisonment maximum ) than was earlier the case .

iii ) Enlargement of personal scope of police ORG criminal liability and new evidentiary rules

By virtue of these legislative amendments , in cases where ill - treatment is alleged to have been committed at police stations during detention of the complainant , it is not only the members of the police actually perpetrating the acts of ill - treatment who are subject to criminal liability ( for torture , or inhuman or degrading treatment , or for assault , as the case may be ) , but also the officers in charge , provided that it is ascertained by medical examination carried out at any time before the complainant ’s release from the station , or immediately after , that he / she bears external injuries which he / she did not have at the time of admission .

This criminal liability of officers is not dependent on whether the actual perpetrators are identified by the investigation . The finding of such injuries gives rise to a presumption that the complainant was ill - treated by a member of the police at the police station of his detention , and that the police officers in charge of the station and of the investigation bear responsibility for the ill - treatment unless they give a reasonable explanation as to the injuries having been caused otherwise than by ill - treatment of the complainant by a member of the police ( for example self - inflicted , or inflicted by another detainee or visitor at the station ) .

In the absence of a reasonable explanation , the officers concerned are considered to have committed the criminal offence carrying a term of imprisonment for DATE , and if the ill - treatment qualifies as torture , or as inhuman , cruel or degrading treatment or punishment , for CARDINAL and three years respectively .

The introduction of this new legislation aims at eliminating the possibility of impunity in cases in which , although there may be sufficient evidence of injuries having been sustained by the complainant at a police station , there is not sufficient , or any evidence as to the identity of the policeman concerned , so that criminal proceedings can be instituted . It thereby considerably limits the Attorney General ’s discretion pertaining to the initiation of criminal proceedings against offending police officers .

II.CARDINAL.b . Creation of a more effective legal framework for independent investigations

i ) Strengthening the Attorney General ’s power to appoint independent criminal investigators

On DATE , ORG delegated to the Attorney General the power to appoint independent criminal investigators in cases where a written complaint has been addressed to him .

As an interim measure , following the judgments of the ORG , ORG , by decision of DATE , strengthened the powers of the Attorney General , so that he could also appoint independent criminal investigators ex officio , i.e. even without any written complaint by the victim . The aim of this measure was notably to allow for rapid and effective investigations into the violations established in the present cases ( see above section I , Individual Measures ) .

ii ) Enhancement of the effectiveness of investigations carried out by independent investigators

In addition to the above measures , the Deputy Attorney General issued a circular on DATE entitled “ Criminal investigations by independent criminal investigators appointed by the Attorney General of the Republic concerning allegations of commission of criminal offences by members of the police which concern human rights violations ” . It was addressed to criminal investigators and all members of the Attorney ORG .

In accordance with the circular , which is binding in form , in cases of decisions not to file criminal proceedings against any member of the police , after an evaluation of evidential material , a letter should be sent to the complainant / victim or their lawyer or other person having made the relevant allegations ( whether these were brought to the Attorney General ’s knowledge directly or indirectly ) , informing them that the independent criminal investigator appointed by the Attorney General has completed the investigation , and that , following the study and evaluation of all collected evidential material submitted , the Attorney ORG is of the view that , for reasons which shall be stated in the letter , this does not warrant the filing of criminal proceedings against any member of the police .

The same circular also provides that if at the stage of evaluation of evidential material collected and submitted by the criminal investigator , or at any other stage of the criminal investigation , it comes to the knowledge of the Attorney ORG through the criminal investigator or in any event from the investigation file that the complainant / victim withdraws his or her allegations , or does not wish the investigation to continue , or is uncooperative , or that at present the complainant / victim or substantial witnesses are not in GPE and can not be traced , the investigation file must remain open until the investigation is completed . Although developments in the course of the investigation such as those mentioned above make it temporarily impossible to continue / complete the investigation , they may not do so indefinitely . Consequently , a decision as to whether or not to file criminal proceedings is not required at that stage . Henceforth , the investigation file is to remain open in such cases and instructions are to be given to the criminal investigator to the effect that the Attorney ORG considers that , in the circumstances , the investigation for the time being can not proceed further . The investigation and the matter of whether or not to bring criminal proceedings thus remain open , with the possibility of continuing and completing the investigation and deciding whether or not to file criminal proceedings in the event that the relevant problem is solved .

II.CARDINAL.c . Improved legal aid - Enactment of “ Legal Aid Law DATE ”

According to the “ LAW DATE ” , in force as from DATE , legal aid in civil as well as criminal proceedings is now granted to victims of human rights violations . It is noted that relatives of persons who allegedly died as a result of a serious police abuse may also benefit from legal aid .

II.CARDINAL.d . New legislation providing for an actionable compensation claim by detainees

In case of violation of any of the rights enshrined in LAW under Arrest and Detention Law DATE ” mentioned above , detainees have a reinforced constitutional right to lodge an action for damages against the state and member of the police , the detention centre or the prison where they are or have been detained . This is without prejudice to any other right to compensation provided for by law .

III . Conclusion

The Government of GPE considers , in view of all individual and general measures adopted , that GPE has satisfied its obligation , under LAW , paragraph CARDINAL , of the Convention to abide by ORG judgments in the present cases . ”

In a letter dated DATE the applicant informed ORG that the respondent Government had paid him the amount of GBP CARDINAL . He maintained , however , that the perpetrators of his ill - treatment had been treated with impunity and that there was no effective domestic remedy . He asked ORG to take into account that the respondent Government were seeking to conceal the fact that the police officers responsible for the applicant ’s illtreatment had not been prosecuted .

The applicant maintained that he had received no reply to his letter .

By a letter dated DATE to ORG the applicant repeated his request and expressed his concern about the silence of the respondent Government on the issue of the prosecution of police officers responsible for “ the torture and ill - treatment ” inflicted on him . He stated that the identification of the suspects had been sufficient to enable the Attorney - General of the Republic to use his discretionary power and open an investigation . He claimed , however , that the Attorney - General did not want to use his powers to initiate an investigation against the “ torturers ” . The Government were under obligation to respect the ORG ’s judgment and prosecute the relevant police officers , who were still in service . The applicant expressed his wish to be added as a civil party if such an investigation took place .

The applicant maintained that there had been no response to his letter .

In a letter dated DATE addressed to ORG , the applicant noted that on the website of ORG the following was stated , inter alia , in respect of individual measures adopted in connection with the execution of application no . CARDINAL/CARDINAL :

“ The applicant ’s lawyer sent a letter to the ORG on DATE raising several questions about the need to adopt individual measures in this case . In DATE the ORG forwarded a copy of the letter to the NORP authorities . The latter confirmed that they were presently examining the measures that might need to be taken in respect of this case and indicated that the ORG would be kept informed in writing of any development in this field . ”

NORP The applicant noted that he wished to have information on the measures adopted by the Government in this respect as well as the reasons for their silence . He requested , inter alia , that ORG adopt a recommendation reminding the Government of their obligation to comply with the findings of ORG under LAW .

The applicant maintained that he had never received a reply either from ORG or from the respondent Government .

In an e - mail dated DATE to ORG of the ORG the applicant requested information concerning the developments in his case . He further noted that the police officers involved in his ill - treatment were known to the authorities but despite this the Attorney - General , exercising his discretionary powers , had not prosecuted them .

In an e - mail sent in reply on DATE , the applicant was informed by ORG that the ORG considered that there were still some outstanding questions in respect of individual and general measures that GPE needed to adopt in order to comply with the judgment , and that further information and clarifications had been requested from ORG in this connection .

In a letter dated DATE addressed to ORG the applicant repeated his complaint in general that ORG had failed to comply with CARDINAL of the ORG ’s judgment .

The applicant maintained that he had received no response to his complaint .

By a letter dated CARDINAL DATE the applicant was notified of the adoption of Resolution ResDH ( DATE . In his application form the applicant stated that he received this letter on DATE .

In a letter dated DATE addressed to ORG of ORG the applicant expressed his disappointment with the lack of effectiveness of the supervision of the execution of the ORG ’s judgment in his case . In his view it was regrettable that ORG had declared that the Government had complied with their obligations to execute the ORG ’s judgment when nothing had been done . The applicant stated , inter alia , that he had never been summoned by the investigator to give a statement in the course of the new investigation . This showed that nothing had been done by the ORG in DATE that had followed the ORG ’s judgment . The ORG had not taken into account the findings made by the ORG which named the perpetrators of his ill - treatment . Further , the applicant repeated his view that , in order to comply with the ORG ’s judgment , the Attorney - General had to use his power to prosecute the relevant police officers . The applicant noted that he had made CARDINAL separate complaints since DATE to ORG the Government ’s inertia . Finally he stressed that the Government should revise their out - dated criminal procedure which provided that in the absence of a statement from a victim it was not possible to commence criminal proceedings .

By a letter dated DATE ORG of ORG replied that having examined the issues raised by the applicant in his letter , it drew the applicant ’s attention to the fact that , following the opening of the new criminal investigation in DATE , he had not repeated his requests made in this respect in DATE and DATE .

By a letter dated DATE to the abovementioned ORG , the applicant stated amongst other things that he had contacted the independent investigator who , after a long delay , had informed him that it had been impossible to register his complaint against the relevant police officers as the ORG had not appointed an interpreter .


Remainder inadmissible;Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for family life);Pecuniary and non-pecuniary damage - award

Aleš Pejchal;Angelika Nußberger;Ganna Yudkivska;Helena Jäderblom;Mark Villiger;Paul Lemmens

The applicants , who were originally of NORP origins , were born in DATE and DATE respectively and live in GPE .

On DATE ORG of GPE lodged a request with ORG to withdraw the ORG parental rights over their CARDINAL children , a daughter ( born in DATE ) and a son ( born in DATE ) . According to information provided by the girl ’s headmistress , their father systematically beat both children if they did not achieve good school grades . The school had already received information during DATE that the girl had been beaten . As the girl ’s parents appeared to be well adjusted and overly polite , the school did not react immediately , but decided to observe the child more closely . It was thus observed that the children ’s family closely supervised the girl via her mobile phone . Furthermore , the father had taken the girl out of biology class because the curriculum provided for sexual education . The girl was not allowed to leave on a school trip and was reported sick instead .

When a teacher caught the girl in the act of manipulating the marks of a school exam , she opened up to her teacher . The girl further reported that her brother was under even more pressure to achieve good grades and was punished “ draconically ” if he did not comply . The headmistress contacted ORG in GPE , which had informed ORG .

NORP By interim order of CARDINAL DATE ORG , in its capacity as a family court , and referring to the reasons submitted in ORG request , temporarily withdrew the ORG parental rights over their CARDINAL children and transferred them to ORG .

On DATE , ORG fetched the CARDINAL children from their respective schools and brought them to a children ’s home . On DATE , ORG informed the second applicant by telephone and in person about the reasons for the placement . The children ’s whereabouts were not disclosed to the applicants . The second applicant insisted that they had never beaten the children .

On DATE the applicants , in the main proceedings , represented by counsel , submitted to ORG that it was true that they considered it important that their children performed well at school . However , they had never been violent towards the children . They further submitted CARDINAL medical attestations by their family physician PERSON dated DATE , certifying that she had seen both children regularly in her medical practice . Both children had made a balanced , stable and cheerful impression . There was no indication that they had suffered from any violent acts . The physician further noted that she had further examined the boy by sonograph . There were no indications of any use of force against the boy , there had been neither hematoma , nor injuries nor bruises . The applicants further submitted medical attestations to demonstrate that the girl had indeed been ill at the dates she had not attended the school trip . They further submitted a number of school reports in order to demonstrate that the children had good grades , showed adequate social behaviour and had rarely been absent from school . They finally submitted that the children regularly attended sports classes . The applicants suggested that there was the possibility that the girl had made the whole story up when she was caught in the act of manipulating school grades .

On DATE , during a first hearing before FAC , the parties agreed that the court should hear the children in person .

On DATE , ORG judge heard the CARDINAL children in the absence of the other parties to the proceedings . According to the court minutes , both children were heard separately . The girl stated that the applicants exerted considerable pressure on her to achieve good school grades . As soon as she did not deliver the requested results , her father beat her both with his hands and with objects . In DATE , her father had beaten her on the soles of her feet with an iron rod . Following this , she had to put her feet into cold water in order to avoid marks . At CARDINAL occasion , her mother had whipped her legs . She further submitted that she was feeling at ease in the children ’s home and that she did not want to return home for fear of further violence .

The boy stated that , since entering school , he had been permanently beaten if he did not achieve the best school grades . His father had also used objects like an iron rod . He did not want to return home as long as his father remained violent .

On DATE , the applicants wrote a letter to ORG in which they denied having ever beaten the children . They submitted that their daughter was lying and that she manipulated her brother . Doctors who could confirm that they had never detected any sign of physical abuse had regularly examined both children . They had regularly attended school and sports classes without the teachers detecting any sign of abuse . The applicants further referred to a staff member of the municipality ’s psychological service who had repeatedly examined the boy without detecting any physical abuse .

On DATE , ORG , in the main proceedings , withdrew the ORG parental authority over their CARDINAL children and transferred it to ORG . Based on its own examination , in particular the hearing of the CARDINAL children , the court was convinced that the applicants had repeatedly acted violently towards their children . Following the children ’s entry into school , the parents had exerted considerable pressure that culminated in corporal punishment if the children did not achieve the expected school results . Both children had inter alia been beaten on the soles of their feet with an iron rod .

As the court was convinced that the children ’s statements reflected the truth , it did not deem it necessary to obtain expert opinion on their credibility . Both children had confirmed their statements in their mother ’s presence before ORG . It could be excluded that the boy had been influenced by his older sister , as ORG employees had paid express attention that the children were not in a position to discuss the events before the boy had also been interrogated . Even taking into account that the girl might be endowed with a vivid imagination , the court ruled out that the girl could have falsely accused her parents over such a long period of time . Her statements were rather characterised by a tendency to exculpate her parents .

Having regard to these facts , the court considered that the applicants were currently incapable of raising their children and that it would seriously jeopardise the children ’s welfare to return them to the applicants’ household .

On DATE , the applicants , represented by counsel , lodged an appeal . On DATE , the applicants submitted that the impugned decision was based on incorrect facts . In particular , the children had never been interrogated in their mother ’s presence . Furthermore , ORG had failed sufficiently to examine the relevant facts before taking the decision on the definite withdrawal of parental rights . In the present case , it was indispensable to hear expert opinion on the children ’s credibility .

At no point in time had there been any objective facts such as bruises , injuries , frequent absences from school etc . , which might indicate physical abuse . Any medical practitioner could confirm that even the submersion in cold water could not prevent the appearance of bruises if the children had indeed been beaten with an iron rod . Furthermore , such treatment would entail reduced mobility , feelings of numbness and pain . No such symptoms had ever been observed on the children .

As the parents vehemently denied having ever beaten their children , there was no objective indication for the alleged abuse other than the children ’s own statements . Before taking such a drastic decision as the withdrawal of parental authority , the applicants thus deemed it necessary to assess the children ’s credibility by hearing expert opinion .

On DATE , ORG rejected the ORG appeal . ORG considered that ORG , having heard the applicants and the children in person , had put forward relevant reasons justifying the withdrawal of parental authority under LAW ( see relevant domestic law , below ) .

ORG confirmed ORG assessment of the evidence . It did not consider it decisive that ORG had assumed that the statements had also been made in the mother ’s presence .

There were no indications that the children , in particular the girl , would wrongly accuse the applicants . This followed from the reasons relied upon by ORG and in particular from the fact that the children , who were fully aware of the consequences of their allegations , repeated these allegations over a longer period of time in a self - consistent way . Under these circumstances , it could be ruled out that the children had invented and maintained their allegations merely because they had been afraid of the teacher ’s reaction to the girl ’s attempts to manipulate MONEY .

According to ORG , ORG had not been obliged further to examine the facts . It was , in particular , irrelevant whether the attending medical practitioners had detected any injuries in the course of regular consultations , as the abusive acts need not have provoked any visible signs , furthermore as such signs could have been overlooked or could have occurred at times when no medical consultation was imminent .

Neither was ORG obliged to hear expert opinion on the children ’s trustworthiness . According to ORG case law , it was up to the courts to assess witness evidence and to establish the trustworthiness of witnesses . Expert opinion was only necessary if there were concrete indications that could call into question the reliability of a witness statement and if specific expert knowledge was necessary to establish these factors and their impact on the witness statement ’s content . Such a concrete indication could not be derived from the mere fact that the witness was a child or juvenile . In the absence of any concrete circumstances to the contrary , both ORG and ORG were in a position to assess the credibility of the statements made by the children before ORG without having recourse to expert help .

On DATE , ORG refused to accept the ORG constitutional complaint for adjudication without giving further reasons .

On DATE , the applicants lodged a request with ORG to be granted contact rights with the children . During a hearing before that court on DATE , a first meeting between the parents , the children and ORG was arranged for DATE .

During the meeting on DATE , the daughter confessed that she had lied and that the allegations she had made DATE had not been true . The son confirmed this . The daughter further submitted CARDINAL letter to her parents and CARDINAL to ORG , in which she confessed to having lied and in which she expressed her wish to return to her family .

On DATE , both children confirmed before the ORG Judge that their parents had never beaten them . The parties agreed to extend contacts between the applicants and their children with a view to return the children to the parental household .

On DATE , the children returned to the applicants’ household . On DATE , ORG lifted its decision of DATE and restored the ORG parental authority .

Section DATE of the Civil Code provides that in cases of a danger to the child ’s welfare the court shall order the necessary measures . Pursuant to section QUANTITY measures which entail a separation of the child from the parents are only permitted if the danger can not be averted by other means , including assistance by public authorities . The complete care for the child ( gesamte Personensorge ) may only be withdrawn if other measures proved unsuccessful or if it has to be assumed that they are insufficient to avert the danger ( section CARDINALa § CARDINAL ) .

Under section CARDINAL of the Rules of Procedure on Family Affairs , the family courts are obliged to carry out on their own motion all investigations necessary to establish the relevant facts .


No violation of Art. 6-1 as regards the right of access to a court;Violation of Art. 6-1 as regards failure to supply a copy of the reporting judge's submissions;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in FAC ( Savoie ) .

On DATE she signed a notarial deed by which she entered into a leasing arrangement with a limited company called NORP for the renovation and furnishment of a holiday centre . She intended to run the business as a sole trader . As early as DATE she complained that the company had failed to complete the renovation works stipulated in the contract .

On DATE the applicant lodged a criminal complaint against the company for fraud , theft and fraudulent breach of trust and sought leave to join the proceedings as a civil party seeking damages .

On DATE the investigating judge discontinued the proceedings in an order worded as follows :

“ It appears , in fact , from the evidence given by the civil parties and the head of PERSON and from the documents produced by the parties that the leasing arrangement , the mechanism of which has been described as fraudulent by the civil party , does not fall within the ambit of the criminal law . The disputes between [ the applicant ] and PERSON are clearly matters governed by civil or commercial law and have , moreover , given rise to various proceedings of this type in the civil or commercial courts . ”

On DATE the applicant appealed against that order .

On DATE ORG of ORG upheld the order in question . It found that the applicant 's complaints were “ manifestly dilatory ” and that some of her allegations were “ contradictory ” , “ purely gratuitous ” or “ entirely unsupported ” .

On DATE the applicant appealed to ORG . Her appeal was heard on DATE . She was represented by counsel . Both parts of the reporting judge 's report ( the first containing a statement of the facts , the procedure and the grounds of appeal and the second a legal analysis of the case and an opinion on the merits of the appeal ) had been sent to the advocate - general prior to the hearing . However , the applicant had not been sent a copy of both parts of the reporting judge 's report . In a judgment of the same date ORG declared the appeal inadmissible on the following grounds :

“ ORG is satisfied from the wording of the judgment appealed against that , in upholding the order discontinuing the proceedings , ORG , after examining all the facts alleged by the appellant and addressing the main arguments in her memorial , stated the reasons for its decision that there was insufficient evidence that anyone had committed the alleged offences of fraudulent breach of trust and fraud or any other offence .

None of the grounds of appeal , which amount to contesting the validity of the judges ' findings of fact and of law , corresponds to any of the situations in which a civil party may appeal to ORG , under LAW , against a judgment of an indictment division in the absence of an appeal by the prosecution ... ”

Article CARDINAL of the Code of Criminal Procedure provides :

“ A civil party can not appeal to ORG against judgments of the investigation division unless the prosecution lodges an appeal .

However , an appeal to ORG by the civil party alone shall be admissible in the following circumstances :

( CARDINAL ) where the investigation division has stated in the judgment that there are no grounds for an investigation ;

( CARDINAL ) where the investigation division has declared the civil party 's action inadmissible ;

( CARDINAL ) where the investigation division has upheld an objection terminating the criminal proceedings ;

( CARDINAL ) where the investigation division has declared , of its own motion , or on an objection by the parties , that it has no jurisdiction ;

( CARDINAL ) where the investigation division has omitted to rule on a charge ;

( CARDINAL ) where the judgment does not formally satisfy the conditions essential for its legal validity ;

( CARDINAL ) where a breach of personal rights as defined in Articles CARDINAL - CARDINAL to CARDINAL - CARDINAL and CARDINAL to CARDINAL of LAW has been alleged . ”

ORG has confirmed that Article CARDINAL is compatible with LAW . In a recent judgment ORG reiterated that there was no incompatibility between the CARDINAL foregoing provisions , “ since the victim had a remedy in the civil courts by which to exercise his or her rights ” ( Court of Cassation , Criminal Division ( GPE . crim . ) , DATE , PERSON , ORG . crim . ) no . CARDINAL ) .


Remainder inadmissible;Violation of Art. 6-1;Violation of Art. 6-3-b;Damage - claim dismissed;Non-pecuniary damage - award

Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in GPE .

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

The applicant was suspected of an aggravated drugs offence . On an unspecified date the public prosecutor brought charges against him and CARDINAL other persons , PERSON and PERSON According to the indictment , the defendants had decided to obtain a large amount of amphetamine from GPE . CARDINAL and DATE the applicant and PERSON made a trip to GPE to arrange the purchase , acting on instructions from L.J. On DATE the drugs , hidden in a truck , were brought to GPE by a fourth person . During this period the applicant kept in contact with the NORP supplier by telephone . On DATE the truck driver handed over the drugs to ORG and PERSON , who then hid them . Later in the evening PERSON returned for the drugs , as agreed with PERSON While PERSON was driving back to town , the police stopped and detained him and seized the drugs from his possession . In the meantime , the applicant picked up PERSON from a nearby petrol station .

Subsequently , all the defendants contested the above charge . The applicant denied any knowledge of the matter . He maintained that his trip to GPE had only been for pleasure and that he had not received any instructions from GPE relating to it . Nor had he kept any contact with the supplier . He further denied any knowledge of what had happened at the petrol station on DATE . Apparently all the defendants asserted that their collective enterprise had concerned a plan to purchase weapons and not drugs .

On DATE the applicant ’s counsel sent a letter to the police inquiring whether all the telephone calls made between the CARDINAL defendants by mobile phone had been included in the pre - trial investigation material . He also requested the police to confirm in writing that it was not possible to disclose to the defence the telephone metering information in the possession of the police .

In their response of CARDINAL DATE the police stated that all the telephone calls pertaining to the investigated offence had been included in the pre - trial investigation material . The police further confirmed that the telephone metering information in their possession could not be disclosed as it was confidential .

The evidence obtained through telephone surveillance and produced before the court included CARDINAL recorded telephone conversations and CARDINAL recorded text messages between the defendants DATE and DATE , apparently all pertaining to the different stages of the alleged drugs offence .

On DATE ORG ( käräjäoikeus , tingsrätten ) found that the defendants had planned to purchase drugs and had carried out the plan together . It convicted them as charged and sentenced each of them to CARDINAL half years’ imprisonment . As to the conviction of GPE and PERSON the court relied mainly on the testimony of the truck driver and the fact that the drugs had been found in PERSON ’s possession . As to its finding that all CARDINAL defendants had acted in concert in committing the offence , the court relied on information obtained through telephone surveillance . According to the court , the numerous recordings of telephone conversations between the defendants consistently showed that there had been a common understanding about the plan to obtain the drugs DATE before they were delivered . Their co - operation had begun on DATE , at the latest , when the applicant had made a trip to GPE with PERSON Since that journey they had been showing concern about the delay in the delivery . The court found the GPE account of the plan to purchase weapons unsubstantiated . The court also relied on the recordings in concluding that the applicant had participated in the actual receiving of the drugs just as actively as the other defendants , even though he had not been there to receive them in person .

The applicant , along with the other parties , appealed against the judgment to ORG ( hovioikeus , hovrätten ) . In his letter of appeal he claimed that all that had been established beyond dispute was that he had made a trip to GPE and that he had been in contact with the other defendants by telephone , but that did not connect him to the offence of which he had been convicted . ORG had failed to specify which telephone conversations proved that he had been an accomplice .

NORP In his subsequent additional submission to the court the applicant also requested that the public prosecutor be ordered to produce all the recordings of the telephone conversations between the applicant and other defendants , as they would reveal that the dealings involving the defendants had related to matters other than drugs . The applicant contended that only a fraction of all these telephone conversations had been included in the pre - trial investigation material , thus giving a misleading impression of the nature of their association . If the court were to refuse this request , the defence should at least be granted access to all of the recordings .

The court requested the prosecutor to submit a reply regarding , inter alia , the above request . In his reply of DATE the prosecutor stated that it was not disputed that the applicant had been in contact with PERSON and PERSON by telephone also concerning matters other than the purchase of drugs . These conversations had not , however , been included in the case material and had been destroyed , as was required LAW , LAW ( pakkokeinolaki , tvångmedelslag , Act no . PERSON ) . Nor did the conversations in question , according to the prosecutor , relate to any other offence which would have allowed the police to keep the recordings without breaching the law . All the conversations that pertained to the matter had been retained , included in the case file and produced to the court .

Having regard to the prosecutor ’s reply , ORG did not render a decision on the applicant ’s request . On DATE , following an oral hearing , the court upheld the applicant ’s conviction . It increased his prison sentence to DATE .

In its reasons the court stated , inter alia , that , apart from the testimonies given by the defendants , there was no evidence to support the allegations about purchasing weapons . Furthermore , the court found the GPE testimonies regarding those allegations not credible . It also found inconsistencies between the applicant ’s testimony and some of the telephone conversations , which had been played back to the court .

The applicant sought leave to appeal to ORG ( korkein oikeus , högsta domstolen ) maintaining that his conviction had been based mainly , and in practice , on the ORG false interpretation of those telephone conversations which had been included in the case file . The defence had never been given access to a large number of recordings which had not been included therein , although a request to that end had been made during the pre - trial investigation . He submitted as evidence the response given by the police on DATE . As the recordings were subsequently destroyed , the applicant had been denied the right to assess their relevance for his defence . The applicant renewed his contention that the recordings which had not been included in the case file would have shown that he had been involved with the co - defendants in a transaction not related to the purchase of drugs .

On DATE ORG refused leave to appeal .

LAW , section QUANTITY of LAW , as in force at the relevant time , provided that an authority investigating a crime could be granted permission to intercept and record telephone calls made by a suspect using an extension in his possession or another extension presumably used by him , or calls received by a suspect through such an extension , if the information thus obtainable could be assumed to be of vital importance for solving a crime . This permission could only be granted for serious offences listed in the provision , including aggravated drugs offences . Weapons offences were not included in the list .

LAW , sections CARDINAL of the said Act provided that the head of the investigation or another official by his order was to check the recordings at the earliest convenience and that recordings containing information which was not related to the offence covered by the authorisation had to be destroyed after they had been checked . LAW allowed , however , the retention of recordings pertaining to such [ other ] offences where the interception of telecommunications could be permitted . Recordings which were not to be destroyed were to be retained for DATE after the case had been resolved with legally binding effect or removed from the docket .

LAW , section CARDINAL of LAW was amended by Act no . CARDINAL , which came into force on DATE . The current provision states that superfluous information obtained through interception of telecommunications but not related to the offence or pertaining to an offence other than the CARDINAL covered by the authorisation , is to be destroyed after the case has been resolved with legally binding effect or removed from the docket . The Government PERSON ( hallituksen esitys , regeringens proposition , no . CARDINAL/CARDINAL ) concerning the amendment stated that , according to the provision in force at the time , superfluous information was to be destroyed as soon as it had been checked . Information supporting the innocence of the suspect could thus also be destroyed as superfluous information . The provision was thus proposed for amendment in order to ensure that all the material would be available for the [ subsequent ] proceedings , where necessary .

Section CARDINAL of the Act on Public Prosecutors ( laki yleisistä syyttäjistä , lag om allmänna åklagare , Act no . ORG ) provides , inter alia , that it is the duty of a prosecutor to see to the realisation of criminal liability in the consideration of a criminal case , the assessment of the charge and the trial in a manner consistent with the public interest and the legal safeguards of the parties .

The same principle applies to the conduct of the police , which has the duty , under section CARDINAL ( CARDINAL ) of LAW ( esitutkintalaki , förundersökningslag , Act no . CARDINAL/CARDINAL ) to investigate and take into consideration the facts both for and against the suspect .


No violation of Art. 5-1-c;Violation of Art. 5-3;Pecuniary damage - financial awards to two applicants, one claim dismissed;Non-pecuniary damage - financial awards to all applicants;Costs and expenses partial award - Convention proceedings

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

The first and the third applicant are lawyers . The first and the second applicants were members of ORG and the third applicant was the president of the HADEP ORG provincial headquarters at the time of the events .

Following information received by the gendarmes that there was a meeting related to the ORG in the provincial headquarters of the HADEP ( PERSON ) and the ORG branch of ORG , the police officers at ORG , after receiving authorisation from ORG and a search warrant from the judge at ORG upon the request of the public prosecutor at that ORG on DATE , conducted a search on the LOC and arrested the applicants together with CARDINAL other persons .

On DATE the applicants were handed over to the gendarmes at ORG .

According to the report drafted by the gendarmerie on DATE , at the HADEP headquarters , the police seized CARDINAL ERNK ( ORG of GPE ) and ORG flags , a ORG emblem , CARDINAL books and CARDINAL ORG videotapes about the ORG , CARDINAL audio tapes and documents addressed to the Secretary General of ORG . They also found a pistol on one of the suspects .

On DATE the applicants were brought before the public prosecutor and ORG . The latter ordered their remand in custody .

On DATE the public prosecutor at ORG filed an indictment with the latter accusing the applicants and the other suspects of having made propaganda on behalf of the ORG . He requested that the applicants and other detainees be convicted and sentenced for membership of an illegal organisation under LAW .

On DATE ORG , taking into account the charges and the evidence against the applicants , ordered their release pending trial .

On DATE ORG acquitted the applicants of all charges . It held that the materials found in the search could have been placed there by anyone and that apart from their statements in custody , which the applicants claimed to have given under duress , there was no evidence to convict them .

On DATE ORG upheld the aforementioned judgment .

On DATE the first applicant filed a petition with ORG under PERSON no . CARDINAL pertaining to the payment of compensation to persons unlawfully arrested or detained . On DATE ORG awarded the applicant an amount of compensation in respect of non - pecuniary damage to compensate the periods he spent in detention . This decision was upheld by ORG on DATE .

NORP The relevant domestic law and practice in force at the material time can be found in GPE and Others v. GPE ( nos . CARDINAL/CARDINAL and LOC , § § CARDINAL - CARDINAL , CARDINAL DATE ) and PERSON v. GPE ( no . PERSON , § § CARDINAL - CARDINAL , DATE ) .


András Sajó;Antonella Mularoni;Françoise Tulkens;Vladimiro Zagrebelsky

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

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

On DATE ( first round ) and CARDINAL ( second round ) DATE legislative elections took place in GPE . The coalition which had governed the country from DATE and , therefore , had been in charge of organising the elections , lost their majority .

The official results of the elections were established by the local and regional electoral commissions following the second round . After the courts had ruled on certain complaints concerning the legality and outcome of the voting procedure , on DATE ORG made a public statement in ORG , according to which the result had become final . As in previous NORP elections , they were virtually identical to the results of the exit poll carried out on DATE of the second round and to the preliminary results announced by ORG DATE . Nevertheless , views were subsequently voiced in certain sections of the media that the elections had been “ rigged ” .

International observers , in particular ORG in LOC ( OSCE ) , found that the parliamentary elections had been conducted in a manner consistent with international standards and that the NORP election system had provided the basis for a generally transparent , accountable , free , fair and equal process .

A period of DATE elapsed during which a new government , in a coalition of the ex - opposition parties , was formed which took up its functions on CARDINAL DATE . On TIME , DATE CARDINAL demonstrators started to protest against the statutory destruction of the ballots , scheduled for DATE . They blocked the centrally located FAC in GPE with their cars . Their objective was to force a recount of the election votes . Since they brought the traffic to a complete standstill and had not given prior notice of their gathering to the police , as required by Act no . DATE on ORG ( “ the LAW ” ) , the demonstration was dispersed after TIME .

Shortly afterwards , at TIME , more demonstrators , again without any prior notification , assembled at FAC in front of the ORG building demanding a recount of the votes and expressing their support for the participants in the TIME ’s events at FAC .

According to the applicant ’s submissions of DATE and the ORG ’s observations , these demonstrators had been at FAC and then relocated to FAC . However , in her submissions of DATE , the applicant stated that they had merely been supporters of those who had blocked FAC .

Having learnt of these events from the news , the applicant joined the demonstration at TIME By that time , traffic and public transport – including the circulation of trams and trolley - buses – had become seriously disrupted in the area of FAC . The estimated number of demonstrators ranged from CARDINAL . The police initially attempted to allow the circulation of traffic to continue but eventually had to close some streets nearby . Finally , faced with an unmanageable situation , they broke up the demonstration at TIME without using any force . The applicant participated in the demonstration until it was dispersed .

NORP The NORP media reported in detail on the events , and the affair was the leading news in the country . In an official communiqué , the President of the GPE condemned the events of DATE , declaring them illegal . He underlined that GPE was a stable parliamentary democracy where human rights were observed and where even critical views should be voiced in a lawful manner .

The applicant sought judicial review of the actions of the police before ORG . She asserted that the dispersal of the demonstration had been unlawful .

On DATE ORG dismissed the applicant ’s claim . It established that the duty to inform the police about planned assemblies was applicable to every type of demonstration , including spontaneous ones . Since the applicant did not deny that the demonstration in question had not been notified to the police , as required by section CARDINAL of LAW , the latter had not had any other choice but to break it up .

NORP Moreover , the court found that the duty to inform the police in advance about assemblies held in public served the protection of the public interest and the rights of others , namely the prevention of disorder and the undisturbed circulation of traffic . Therefore , it concluded that the measures taken by the police had been in compliance with the law .

The applicant appealed . On DATE ORG upheld the first - instance decision . Its judgment was served on the applicant ’s lawyer on DATE .

The LAW of GPE no . DATE as amended ) provides , in so far as relevant , as follows :

“ GPE acknowledges the right to peaceful assembly and secures its free exercise . ”

The relevant provisions of Act no . DATE on ORG ( “ the LAW ” ) read as follows :

“ ( CARDINAL ) The exercise of freedom of assembly shall not constitute a crime or an incitement to crime ; moreover , it should not result in the infringement of the rights and freedoms of others . ”

“ The organisation of an event held in the public domain shall be notified to the competent police headquarters according to the place of the event , and in GPE to ORG , DATE prior to the planned date of the event . The obligation to notify the police lies with the organiser of the event . ”

“ ( CARDINAL ) If the holding of an event subject to prior notification seriously endangers the proper functioning of the representative bodies or courts , or results in a disproportionate hindrance of the circulation of traffic , the police may ban the holding of the event at the place or time indicated in the notification , within TIME from the receipt of the notification by the authority . ”

“ ( CARDINAL ) No appeal shall lie against the decision of the police , but the organiser may seek judicial review of the administrative decision within DATE of its notification . ”

“ ( CARDINAL ) The police shall disperse the event if the exercise of the right to freedom of assembly contravenes subparagraph CARDINAL of section CARDINAL or if the participants appear at the event ... in possession of arms , or if an event subject to prior notification is held without notification , ... or despite a decision banning the event . ...

( CARDINAL ) If an event is dispersed , the participants may seek judicial review within DATE with a view to the establishment of the illegality of the dispersal . ”


Violation of Art. 6-1 (length);Remainder inadmissible;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 was born in DATE and lives in PERSON .

The applicant ’s mother , PERSON , owned real property . She died in DATE . Her estate was determined by ORG ( Štátne notárstvo ) in PERSON in a decision of DATE . The inheritance comprised inter alia a share in a complex of agricultural land which was located in GPE and was formally divided into several plots . The share of PERSON passed to the applicant ’s father , Mr NORP , who himself already owned an equal share in the land .

In DATE Mr NORP died . His estate was determined by notarial decisions of CARDINAL DATE and CARDINAL DATE . His own share in the above land as well as the share inherited from PERSON passed to the applicant and her sister .

On DATE the applicant and her sister , who were represented by a lawyer , made a submission to PERSON súd ) described as a “ motion for commencement of inheritance proceedings ” . They maintained that the above inheritance decisions were flawed by inaccuracies as regards the definition of the parcels , their acreage and the ownership shares to be inherited . The applicant and her sister asserted in particular that in the original decisions no account had been taken of the fact that PERSON and Mr NORP both had equal shares in the land and that the decisions were wrongfully based on their having CARDINAL of these shares . They sought “ additional inheritance proceedings ” and the “ correction of obvious errors ” in the original decisions .

On DATE ORG took a formal decision to commence inheritance proceedings and authorised a notary public to carry them out .

On DATE ORG discontinued the proceedings . It interpreted the motion of DATE as being formally aimed at determining a “ newly discovered inheritance ” on the death of PERSON It observed that no such new inheritance had in fact been disclosed and concluded that , therefore , there was no case to be determined .

On DATE , on appeal by the applicant and her sister , PERSON ( PERSON súd ) quashed the decision of CARDINAL DATE and remitted the matter to ORG for reexamination . ORG found that the written version of the decision of DATE did not correspond to the oral version as recorded in TIME of the hearing at which it had been pronounced . ORG instructed ORG to bring the written version in line with the recorded oral version . ORG observed that even the oral version was not absolutely precise . However , in ORG view , once the written version of the decision was so “ corrected ” and a copy of it was served on the parties , they could appeal against it on the merits .

The casefile was subsequently transmitted to a notary public who was designated by ORG to effect certain procedural steps in the matter ( súdny komisár ) .

NORP In DATE the notary public obtained a report from ORG explaining changes in definition of the land in issue in the context of the preceding land reforms .

On DATE ORG gave a decision under LAW correcting errors in the operative part of the written decision of PERCENT by aligning it with the oral version .

On DATE the applicant and her sister appealed against the decision of CARDINAL DATE , as corrected by the decision of DATE . They argued that , even after the correction , the ruling as regards the land in question was inoperative as the land was not defined clearly .

On DATE the ORG quashed the decision of DATE . It found that it was not bound by the views of ORG as expressed in its decision of DATE and found that it was not right “ to correct ” the decision of CARDINAL DATE by bringing it in line with the recorded oral version which itself was inaccurate . ORG remitted the case to ORG and instructed it to examine the contents of the case file . On the basis of such contents the decision of DATE was to be corrected by defining the land properly .

In a letter of DATE the Vice President of ORG acknowledged that there had been unjustified delays in the proceedings , especially in the period prior to DATE and DATE and DATE .

On DATE ORG gave a new decision under LAW correcting errors in the decision of PERCENT . It defined the parcels belonging to the inheritance and took account of the shares in the ownership of these parcels of both PERSON and Mr NORP However , ORG also found that some other parcels to which the applicant and her sister claimed title by way of succession did not belong to the estate of PERSON

On DATE the applicant and her sister lodged an appeal challenging the decision of CARDINAL DATE mainly in so far as it concerned the parcels which had been left out from the estate . They demanded that the decision of CARDINAL DATE be quashed and that in the subsequent proceedings a hearing should be held before ORG in order to clarify the matter and to avoid further confusion .

On DATE ORG upheld the decision of CARDINAL DATE . In its summary reasoning ORG referred to and fully endorsed the findings and conclusions of ORG . ORG decision was served on the applicant ’s lawyer at some point after CARDINAL DATE .


The applicants , whose names appear in the appendix , are NORP nationals . They are represented before the ORG by Mr PERSON , a lawyer practising in GPE .

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

Until DATE the applicants lived in GPE , a hamlet of LOC village , in the district of ORG , in GPE , where they own property . It is to be noted that PERSON and FAC did not submit their authority forms .

In DATE , following the incidents that took place in the district of ORG , security forces arrived in GPE and forcibly evicted the applicants from their hamlet .

On DATE the mayor of LOC village , Mr PERSON , filed petitions , on behalf of the applicants , with the offices of the Prime Minister , ORG , the Lice District Governor and ORG Governor requesting permission to return to their hamlet .

On DATE the mayor of ORG village filed petitions , on behalf of the applicants , with the offices of the Prime Minister , ORG , the Lice District Governor , ORG and ORG ve PERSON ) requesting permission to return to their hamlet . He further requested the ORG to provide aid for the infrastructure of the hamlet . He also noted that the inhabitants of GPE were willing to return to their hamlet .

On DATE the mayor of ORG village filed a petition , on behalf of the applicants , with the office of the ORG Governor requesting permission to return to their hamlet .

On DATE CARDINAL inhabitants of GPE hamlet filed a petition , on behalf of the other inhabitants , with the office of the ORG Governor requesting permission to return to their hamlet and a solution to the problems of infrastructure of the hamlet .

It is to be noted that they did not receive any response to their petitions .

On an unspecified date CARDINAL Members of ORG , Mr PERSON , Mr PERSON and Mr PERSON , filed petitions , on behalf of the applicants , with the offices of the Prime Minister , the Deputy Prime Minister , the Minister of the ORG , the Minister of ORG , ORG and the ORG Governor .

The investigation carried out by the authorities indicated that the applicants had left their villages of their own will . The security forces had not forced the applicants to leave their village .

The official records indicated that there was no obstacle preventing villagers from returning to their homes and possessions in their villages . Persons who had left their villages as a result of terrorism had already started returning and regaining their activities in their villages .

Currently there was no obstacle preventing villagers from returning to their homes and possessions in their villages .

On DATE the Law on Compensation for Losses resulting from Terrorism and the Fight against Terrorism was passed by ORG and entered into force on DATE ( “ Compensation Law ” ) . That PERSON provided for a sufficient remedy capable of redressing the LAW grievances of persons who were denied access to their possessions in their villages .

In that connection Damage Assessment and Compensation Commissions were set up in QUANTITY provinces . Persons who had suffered damage as a result of terrorism or of measures taken by the authorities to combat terrorism could lodge an application with the relevant compensation commission claiming compensation .

The number of persons applying to these commissions had already attained CARDINAL . CARDINAL persons , whose applications were pending before the ORG , had also applied to the compensation commissions . Many villagers had already been awarded compensation for the damage they had sustained .

A description of the relevant domestic law can be found in the ORG ’s decision of PERSON v. GPE ( no . CARDINAL/CARDINAL , § § DATE , DATE ) and in its judgment of ORG and Others v. GPE ( nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL - CARDINAL/CARDINAL , § § DATE , ORG CARDINAL-VI ) .


Violation of Article 5 - Right to liberty and security;Violation of Article 6 - Right to a fair trial;Violation of Article 13 - Right to an effective remedy

Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

The applicant was born in DATE and is remanded in custody in ORG prison .

On DATE the applicant was taken into police custody on suspicion of membership of ORG , an illegal organisation .

On DATE a single judge at ORG remanded him in custody .

On DATE the public prosecutor at ORG filed a bill of indictment against the applicant and CARDINAL other persons . The applicant was charged with attempting to undermine the constitutional order , an offence proscribed by LAW . According to the information in the case file , the proceedings against the applicant are still pending at first instance , which is now ORG , and the applicant remains in detention on remand .

During the proceedings , the first - instance courts have examined the applicant ’s continued detention at the end of every hearing , either on their own motion or at the applicant ’s request . The courts ordered the applicant ’s continued detention , having regard to the nature of the offence , the state of evidence and the content of the file on each occasion .


Violation of Art. 6-1;Violation of Art. 13;Pecuniary and non-pecuniary damage, costs and expenses - financial award

The applicant was born in DATE and lives in the city of GPE , GPE .

On DATE ORG ordered ORG “ LOC ” to pay the applicant ORG CARDINAL in salary arrears and other payments .

On DATE the Torezk ORG instituted enforcement proceedings in respect of that judgment .

On DATE ORG informed the applicant that the judgment of DATE could not be executed due to the large number of enforcement proceedings against the debtor , and that the procedure for the forced sale of assets belonging to the debtor has been suspended due to the moratorium on the forced sale of property belonging to ORG enterprises introduced by the PERSON of DATE .

On DATE and DATE , respectively , the full amount of the judgment debt was paid to the applicant in CARDINAL instalments of ORG CARDINAL,CARDINAL.CARDINAL and CARDINAL .

The relevant domestic law is summarised in the judgment of ORG v. GPE ( no . CARDINAL , § § DATE , DATE ) .