CASE OF ASADULAYEVA AND OTHERS v. RUSSIA

Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Remainder inadmissible;Violation of Art. 2 (substantive aspect);Violation of Art. 2 (procedural aspect);Violation of Art. 3;Violation of Art. 5;Violation of Art. 13+2;Pecuniary and non-pecuniary damage - award

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

The applicants are :

CARDINAL ) PERSON ( also spelled as PERSON / PERSON ) , born in DATE ;

CARDINAL ) PERSON , born in DATE , and

CARDINAL ) PERSON ( also spelled as PERSON ) PERSON , born in DATE .

The applicants live in LOC , in LOC of GPE .

The first and third applicants are sisters of Mr PERSON , born in DATE . The second applicant is his wife . The couple have CARDINAL children , born in DATE and DATE .

At the material time PERSON lived in the village of ORG together with the second applicant and their child . He was employed as a police officer of the NORP police station of the NORP district office of the ORG ( ROVD ) .

On DATE Mr S. , head of the ROVD , summoned PERSON to the ROVD and instructed him to go to ORG of GPE ( MVD ) to give an explanation to PERSON , an official of the ORG human resources department , in connection with his unauthorised absence from work .

PERSON , PERSON . , the then acting head of the NORP police station , and a Mr A. drove to the FAC .

At TIME on DATE they arrived at the FAC . The ORG grounds , including the FAC building , were surrounded by a high fence and could be entered only through a checkpoint . At that checkpoint visitors had either to apply for a special temporary pass or show their identity cards . Every visitor 's identity information was registered at the checkpoint in special visitors ' logbooks . Armed security guards were stationed at the secure gate leading to the FAC grounds . The external access road to the FAC grounds had CARDINAL further checkpoints . Each of them was guarded by security personnel and kept its own visitors ' logbook .

Upon arrival at the FAC secure gate PERSON and Mr PERSON . got out of the car and went into the ORG building . PERSON stayed in the vehicle . PERSON and PERSON . were received by PERSON made a written statement and handed it over to PERSON At that moment CARDINAL armed men in military uniforms walked into the room . Their uniforms were unusual in that they were grey and had many pockets . While leaving the building PERSON and PERSON . were stopped by the armed men who had apparently followed them . The men asked for PERSON and PERSON . 's identity cards . After checking the documents , they returned PERSON identity card to him but did not give PERSON his identity card back . They told PERSON that they would take him with them “ for a check ” , handcuffed him and put him in a dark blue VAZ-CARDINAL car which was parked at the entrance of the FAC building . The car , which did not have licence plates , was driven to the checkpoint at the gate . The officers at the checkpoint did not stop the car ; the driver merely honked and the car was allowed to pass through without being checked . Having left the FAC grounds , the car was driven to an unknown destination .

When PERSON . left the FAC grounds and met PERSON , he told the latter about the incident and they decided to go to PERSON , head of the ROVD , to alert him to the abduction of PERSON . Meanwhile , PERSON had arrived at the FAC entrance gate in his car . Having heard their account , Mr S. reassured them that there were no reasons to worry and that on DATE they would “ have information about everything ” . Mr S. took PERSON service submachine gun from the car in which the CARDINAL men had arrived at the FAC and left .

In DATE that followed Mr S. tried to find out who had apprehended PERSON , how the abductors had managed to enter the LOC of the LAW and where they could have taken PERSON . However , his attempts failed to produce any results .

On an unspecified date in DATE PERSON . was killed .

The description of the above events is based on complaints by the first applicant to various ORG bodies dated DATE , a written statement by the first applicant to her representative made on DATE , an undated written statement by PERSON and CARDINAL hand - drawn maps of the grounds of the FAC .

The Government submitted , with reference to the information obtained in the course of the investigation in criminal case no . DATE ( see below ) , that on DATE unidentified armed men in camouflage uniforms had abducted PERSON from the secure grounds of the FAC .

On DATE the third applicant complained about the abduction of PERSON to the prosecutor 's office of LOC of PERSON ( the district prosecutor 's office ) . She described the circumstances of her brother 's abduction from the FAC grounds and requested assistance in establishing his whereabouts .

On DATE the district prosecutor 's office instituted an investigation into the abduction of PERSON under LAW ( aggravated kidnapping ) . The case file was given number DATE . It does not appear that the applicants were notified of that decision .

On DATE the district prosecutor 's office summoned the third applicant to their office on an unspecified date in connection with her complaint of CARDINAL DATE . It is unclear whether the meeting took place and if so , whether any investigative measures were carried out with the third applicant 's participation .

On DATE the first applicant complained about the disappearance of PERSON to a number of ORG authorities , including the prosecutor of GPE , the Minister of the Interior of GPE and the Prosecutor General of GPE . In her letters she described the circumstances of PERSON abduction from the grounds of the ORG . She submitted , in particular , that on DATE had been summoned to the ORG to meet Mr D. , the deputy Minister of ORG . PERSON had obtained PERSON statement and while the latter had been leaving , unidentified men had apprehended him and had taken him away in a dark blue ORG vehicle . The first applicant pointed out that the abductors ' vehicle had not been stopped at the checkpoint and provided the names of the CARDINAL persons who had witnessed her brother 's apprehension , PERSON . and PERSON

On DATE the district prosecutor 's office granted the third applicant victim status in connection with the proceedings in case no . DATE . She was notified of the decision on the same date .

On DATE the ORG informed the first applicant that they had conducted an internal inquiry in connection with her complaint about the abduction of PERSON ; however , it had failed to establish his whereabouts . The letter further stated that all information concerning the criminal investigation was to be obtained from the district prosecutor 's office .

NORP In a letter of CARDINAL DATE the prosecutor 's office of GPE ( the NORP prosecutor 's office ) notified the third applicant , in reply to her query , that the district prosecutor 's office had instituted a criminal investigation into the abduction of PERSON and that operational and search measures aimed at establishing his whereabouts and solving the crime were under way .

On DATE the third applicant complained to the district prosecutor 's office about the lack of information concerning the progress and the results of the investigation in criminal case no . DATE . She requested the authorities to conduct an effective and thorough investigation into her brother 's abduction and to update her on the steps taken by the investigating authorities .

On DATE the third applicant submitted to the district prosecutor 's office a repeated complaint about the lack of information on the investigation in case no . DATE , reiterating the grievances she had raised in the letter of CARDINAL DATE and pointing out that the district prosecutor 's office had disregarded her previous complaint .

On DATE the applicants ' representatives wrote to the district prosecutor 's office . They described in detail the circumstances of PERSON abduction and complained about the lack of information concerning the criminal investigation in case no . DATE . In particular , they requested that the applicants be updated on the progress of the investigation and that it be resumed if it had been suspended . They further enquired whether the investigating authorities had questioned the servicemen on duty at the checkpoint of the FAC at the material time ; whether measures had been taken to establish the circumstances of abductors ' vehicle 's unhindered passage through the checkpoints ; whether the crime scene had been inspected ; and whether eyewitnesses to the abduction had been questioned . It does not appear that the applicants or their representatives received a reply to that request .

On DATE the applicants ' representatives wrote a letter along the same lines to the NORP prosecutor 's office . They forwarded a copy of their letter to the district prosecutor 's office . It does not appear that their letters were ever replied to .

From the ORG 's submissions it transpires that on DATE the authorities launched an internal inquiry into the incident of DATE . The Government neither specified the authority in charge of the inquiry nor furnished any other information in that connection .

On DATE Mr Sh . was questioned as part of the inquiry . He submitted that on DATE , at TIME , he had arrived by car at the FAC with PERSON and PERSON had been summoned to the ORG by their human resources department . Mr LOC . and PERSON had entered the FAC building while Mr A. had stayed outside in the car . PERSON and PERSON had gone to the office of PERSON , an official of the human resources department , who had instructed PERSON to write a statement with a view to clarifying certain personal information in connection with his recruitment . At that moment CARDINAL men in camouflage uniforms armed with automatic weapons had entered the office of Mr G. TIME the armed men had left .

When PERSON had finished writing his statement , PERSON had allowed him and PERSON . to leave and they had left the building . There they had seen a dark blue VAZ-CARDINAL car with tinted windows and without licence plates . There had been CARDINAL men armed with automatic weapons by the car . They had not been wearing masks . CARDINAL of the armed men had asked PERSON and PERSON . who they had been visiting . PERSON had replied that they had just seen PERSON The armed man had then requested that PERSON . and PERSON produce their service certificates . Having checked them , the armed men had returned PERSON document to him . They had told him that he was free to leave but had taken PERSON with them . PERSON had requested the armed men to identify themselves but they had refused . They had forced PERSON into the back of the VAZ-CARDINAL car , had honked to the guards who had opened the gate for them and had left the FAC grounds for an unknown destination .

Mr Sh . had decided to follow the armed men but by that time he had seen Mr S. , head of the ROVD , arrive at the FAC building . Mr Sh . had immediately alerted PERSON to the abduction of PERSON . Mr PERSON had taken PERSON service submachine gun and explained to PERSON . that he had talked to the head of the ORG human resources department , PERSON . , and that the “ competent authorities [ were ] dealing with PERSON ” because they had had “ information capable of compromising him ” ( компрометирующий материал ) .

On DATE Mr S. , head of the ROVD , was questioned . He submitted that in the afternoon on DATE he had been instructed to send PERSON to see the deputy head of the ORG , in charge of human resources . PERSON had summoned PERSON and his superior , PERSON . , to his office on DATE , at TIME Both men had arrived at the indicated time and had surmised that the summons to the FAC human resources department could have been prompted by PERSON missing of classes in a police school . After a conversation with PERSON , PERSON and PERSON . had left for the ORG .

At TIME at the FAC . At the building entrance he had met PERSON . who had informed him that unidentified armed men had taken PERSON away in a dark blue VAZ-CARDINAL car without licence plates . PERSON had not been worried , considering that it would be impossible to abduct a person from the FAC grounds without the knowledge of ORG senior officials . PERSON had made enquiries to the heads of various ORG departments about the circumstances of the disappearance of PERSON but none of them had furnished any specific information . All persons questioned by him had supposed that the case had been dealt with by the security services , without however naming any particular service . Subsequently Mr S. had requested information about the incident involving PERSON from various bodies , including the heads of the criminal police of ORG , the special police forces ( PERSON ) , operational and search Bureau no . CARDINAL ( ORB-CARDINAL ) and the internal security directorate of ORG . However , none of those bodies had furnished any relevant information . PERSON lastly stated that he had no information on the whereabouts of PERSON or his abductors .

On DATE the district prosecutor 's office launched a criminal investigation into the abduction of PERSON under LAW of LAW ( aggravated kidnapping ) and assigned the case DATE .

On DATE Mr Sh . was questioned . He confirmed his statement of CARDINAL DATE .

On DATE Mr S. , questioned as a witness , confirmed his statement made on DATE .

On DATE the district prosecutor 's office requested ORB-CARDINAL to inform the investigators whether they had carried out any special operations aimed at arresting PERSON and whether they had at their disposal any information capable of compromising him .

On DATE the investigators sought from ORG in GPE information similar to that requested from ORG .

According to the Government , the replies of the above authorities indicated that they had not carried out any special operations with a view to arresting PERSON and had not had information capable of compromising him .

On DATE investigators of the district prosecutor 's office questioned Mr Zh . , who at the time of the incident had held the post of deputy Minister of the Interior of GPE and had been head of the ORG human resources department . PERSON . submitted that on DATE or DATE he had been contacted over the phone by Mr NORP , the acting Minister of ORG . Mr NORP had informed Mr Zh . that a certain PERSON , a police officer of ORG , had concealed important personal information at the time of his recruitment by the police . Mr NORP had instructed Mr Zh . to summon PERSON to the ORG and to obtain his explanation .

Following the conversation , PERSON . had ordered his assistant , PERSON , to summon PERSON to the ORG and to obtain from him a written explanation concerning his personal file and , in particular , the lacking data on the relatives of his wife .

On DATE Mr Zh . had received a phone call from PERSON , notifying him that PERSON had arrived at the FAC . PERSON . had instructed PERSON to receive PERSON and to obtain the information required from him . PERSON to TIME Mr PERSON had reported to PERSON . that he had obtained PERSON statement and had allowed him to leave . In TIME Mr Zh . had met PERSON The latter had asked him who might have taken PERSON away . Mr Zh . had replied that he did not know . DATE after the abduction of PERSON , the latter 's relatives , worried by his absence , had gathered at the FAC checkpoint . DATE after the abduction Mr Zh . had been approached at the FAC checkpoint by CARDINAL men and a woman who had enquired about PERSON . PERSON . had explained to them that he did not have any information about him . Lastly , PERSON . submitted that he had not seen PERSON on DATE .

On DATE Mr A. was questioned as a witness . He submitted that on DATE , CARDINAL , he had arrived at the FAC building with PERSON and PERSON . PERSON had stayed in the car , keeping an eye on PERSON service weapon , while the latter and PERSON . had entered the ORG building . TIME Mr Sh . had returned and had told PERSON that CARDINAL men in camouflage uniforms had taken PERSON away to an unknown destination . TIME Mr S. , head of the ROVD , had approached PERSON and PERSON . PERSON had asked PERSON what had occurred and why PERSON had been taken away . Mr PERSON had explained that PERSON had been taken away to be questioned . Mr S. had then collected PERSON submachine gun .

On DATE the investigators questioned the third applicant as a witness . She submitted that on DATE her brother had been summoned to the ORG , together with PERSON . , in connection with the former 's absence from the police school . The third applicant had learnt from PERSON . that when PERSON . and PERSON had left the FAC building , located within the secure grounds of the ORG , several men armed with automatic weapons had approached them . They had forced her brother into a dark blue VAZ-CARDINAL car without licence plates and had taken him to an unknown destination . Subsequently , the third applicant had been received by the deputy Minister of the Interior of GPE , Mr Zh . , who had confirmed that PERSON had been summoned to the ORG to provide some information . PERSON written statement had been given to PERSON . himself had not seen her brother , but had promised to investigate the incident .

On DATE the third applicant was granted the status of victim in criminal proceedings no . DATE .

On DATE the investigators conducted an on - site verification of the statements by PERSON . During the verification Mr Sh . confirmed his previous statements and “ indicated to the investigators the location of the objects of interest to the [ them ] ” .

On DATE a certain PERSON gave the investigators a written statement which was appended to case file no . DATE . PERSON stated , in particular , that she traded food at a market in FAC , opposite the FAC . On DATE Ms M had been trading at the market . On DATE she had not noticed anything suspicious and had not heard about the abduction of PERSON .

The Government submitted that on an unspecified date a certain Ms Z. A. and a certain PERSON made statements similar to that of PERSON

On DATE the investigators questioned as a witness Mr NORP , who at the time of the incident had held the post of acting Minister of ORG . Mr NORP submitted that on DATE Mr Zh . had informed him that the personal files of several police officers were incomplete . In that connection Mr NORP had summoned to the ORG all police officers whose personal files did not comply with the established requirements . In DATE relatives of PERSON had on several occasions applied to Mr NORP in connection with the alleged abduction of their relative from the secure grounds of the FAC . Mr D. had not met PERSON and had never spoken to him .

The Government submitted that the investigators had not questioned PERSON , who had received PERSON on DATE , because he had left GPE on an unspecified date .

The Government further submitted that the investigation in case no . DATE had been suspended several times owing to the failure to identify those responsible for the abduction of PERSON . The investigation had then been resumed with a view to verifying the information obtained as a result of the investigative steps taken by the authorities . The Government did not indicate the dates of the decisions to suspend and resume the investigation , nor did they furnish any further information in that connection . According to the ORG , the investigation into the abduction of PERSON was still ongoing .

NORP Despite specific requests by ORG , the ORG refused to furnish any copies from the investigation file in case no . DATE . They claimed that the investigation was in progress and that disclosure of the documents would be in violation of LAW , since the file contained information of a military nature and personal data concerning witnesses and other participants in the criminal proceedings .

By a judgment of DATE the ORG of GPE ( ORG ) allowed an action by the second applicant to have her husband declared a missing person .

On an unspecified date in DATE the second applicant filed with ORG a civil action to have her husband declared dead . She submitted , in particular , that PERSON had disappeared in life - threatening circumstances , that DATE had elapsed since his disappearance and that , given the situation in GPE , there were grounds to believe that he had been killed following his abduction .

On DATE ORG dismissed the second applicant 's claim . The court 's reasoning , in its relevant parts , was as follows :

“ [ The court ] obtained copies of materials from criminal case file [ no . DATE ] .

From the decision of DATE to institute criminal proceedings it transpires that on DATE CARDINAL unidentified men in camouflage uniforms , armed with automatic weapons , arrived at the entrance to the [ ORG ] building in a dark blue VAZ-CARDINAL vehicle without licence plates and took PERSON , born in DATE , by force to an unknown destination from the secure grounds of the [ ORG ] ; [ PERSON ] whereabouts remain unknown .

From the transcripts of the interview of the deputy Minister of the Interior of GPE , PERSON . , dated DATE ; the head of the Groznenskiy ROVD , Mr S. , dated DATE ; the acting head of the NORP police office , Mr Sh . , dated DATE , and the then acting Minister of the Interior , Mr NORP , dated DATE , it follows that [ PERSON ] had been taken away with their knowledge [ с их ведома ] and , most likely , by officials of the power structures . Hence , the court finds no reasons to believe that [ PERSON ] could have perished during his abduction and is not alive .

Thus , DATE when there was information on [ PERSON ] whereabouts is DATE . The DATE term has not expired .

However , under LAW , a citizen may be declared dead if in his place of residence there has been no information on his whereabouts for DATE ; if he has gone missing in life - threatening circumstances or there are grounds to believe that he has died as a result of an accident [ a citizen may be declared dead ] within DATE .

The court is not in possession of any information that [ Bekman Asadulayev ] went missing in life - threatening circumstances , as a consequence of which his death could be presumed , because he was taken away from secure grounds to which no person has access without a proper pass . ”

There is no indication that the second applicant challenged the ORG judgment on appeal .

Article CARDINAL of LAW Procedure DATE ( “ ORG ” ) provides that an investigator 's or prosecutor 's decision to refuse to institute criminal proceedings or to terminate a case , and other orders and acts or omissions which are liable to infringe the constitutional rights and freedoms of the parties to criminal proceedings or to impede a citizen 's access to justice may be appealed against to a local district court , which is empowered to examine the lawfulness and grounds of the impugned decisions .

LAW ORG prohibits the disclosure of information from the preliminary investigation file . Under part CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the parties to the criminal proceedings or prejudice the investigation . Divulging information about the private lives of parties to criminal proceedings without their permission is prohibited .

Article CARDINAL of the NORP Civil Code provides that damage sustained by an individual because of unlawful actions or inaction of ORG and municipal agencies or their officials is to be compensated for by a ORG or municipal treasury .


Violation of P1-1;Pecuniary damage - financial award;Costs and expenses award - domestic proceedings

The first applicant was born in DATE . The second and third applicants were born in DATE . They live in GPE .

The company “ ORG in which the applicants own all of the shares owned an estate of QUANTITY situated in GPE . In DATE the company requested the local administration to give a decision on the division of the estate , a decision necessary to proceed with construction on the land .

Eventually , on DATE ORG gave a decision by which the division of the estate was approved . Certain plots of land were designated for construction purposes and others for open space and garages . A number of plots were designated for construction of “ internal estate roads ” . This decision became final on DATE .

Subsequently , the applicant company , relying on the provisions of LAW , requested the Mayor of ORG to determine the compensation due for the plots designated for road construction . It submitted that under the relevant provisions of that Act plots designated , by virtue of decisions on the division of properties into smaller plots , were expropriated ex lege on the date on which such decisions became final .

By a decision of CARDINAL DATE the President of the Poznań City dismissed the application to have the compensation determined , holding that the roads to be built on the estate concerned had not been provided for in the local land development plan . Hence , in the DATE decision they had been designated as “ internal roads ” which would serve the inhabitants of a housing estate the construction of which the company had been planning . Not having been provided for in the local land development plan , these roads did not belong to the category of public roads . Under the provisions of LAW , as amended in DATE , only plots designated for the construction of “ public roads ” were to be expropriated ex lege , and only in respect of such expropriated plots could compensation be sought . In the applicants ' case , the plots in question were designated for internal roads ; they had therefore not been expropriated and , consequently , no compensation could be determined .

The applicants appealed . They argued that the roads to be constructed on the housing estate were to be public , for all practical purposes . They were to be open to all roads users , including all means of public and private transport . The term “ internal roads ” used in the contested decision did not exist in LAW as applicable in DATE . This Act had been amended after this decision had been given and it was only in its amended text that it was clearly stated that compensation was due only for “ public ” roads ( see paragraphs QUANTITY below ) .

The fact that the plots concerned were referred to in the decision of DATE as designated for the construction of “ internal ” roads was an unlawful attempt to deprive them of a public character and to exempt them thereby from the operation of that Act insofar as it provided for ex lege expropriation of plots designated for road construction . Most importantly , it was an attempt to evade the obligation to pay compensation for such plots .

The applicants further argued that the fact that these roads had not been provided for in the local land development plan was immaterial , given that the decision of DATE had obviously been given in such a way as to be consistent with the local land development plan . Otherwise , the division of the estate could not have been approved .

They lastly argued that the decision complained of breached the constitutional guarantees of ownership .

On DATE the PERSON Governor upheld the decision . The Governor 's decision referred to section CARDINAL of the CARDINAL Act as applicable when the DATE decision had been given . It provided that plots designated for road construction under a decision on the division of property for the construction purposes were expropriated ex lege on the date on which such a decision became final . However , the essential purpose of the decisions on the division of property was to serve the implementation of local land development plans . In the absence of the inclusion in such a plan of roads on the land subject to the division decision given in the applicants ' case in DATE , the plots designated for road construction could not be regarded as designated for the construction of “ public roads ” . Hence , there were no grounds on which to expropriate them and to grant compensation to the owners .

The applicants appealed , essentially reiterating their arguments submitted in their appeal against the first - instance decision .

On DATE ORG dismissed the appeal . It referred to section CARDINAL ( CARDINAL ) and ( CARDINAL ) of LAW . It noted that under these provisions a decision on the division of property into smaller plots could be given only if the division proposal was compatible with the local land development plan and if the newly created plots had access to a public road .

In the present case the local development plan did not provide for any public roads on the land owned by the company . Hence , the fact that certain parts of the land as divided under the DATE decision had been designated for construction of roads could not entail their automatic expropriation under LAW . These roads remained in the ownership of the company and there were therefore no grounds on which to determine compensation .

In so far as the applicants relied on decisions of ORG in which it had expressed the view that under section CARDINAL of the DATE Act all land designated for roads in the division decisions was subject to expropriation ex lege , the court noted that judgments given in other cases were not binding on it .

It further noted that the DATE amendment to section CARDINAL of LAW ( see paragraph CARDINAL below ) which provided that land designated for the construction of public roads only was subject to expropriation :

“ did not so much limit the scope of roads to which that provision was applicable , but was only intended to make more precise the intentions of the lawmaker regarding [ the application ] of this Act ” .

It concluded that that the contested decision was in conformity with the law .

Later on , the applicants ' lodged a claim in a civil court seeking a declaration under LAW as to who was the owner of the plot of land concerned , listed in the land register as plot No . DATE and covering a surface area of QUANTITY .

By a judgment of DATE the ORG established that the owner of the plots was GPE .

The court considered , inter alia , that the plan for the division of the land as adopted in the DATE decision was concordant with the local land development plan . It further observed that such compliance was an essential condition for the decision on division to be given in the first place . The court further noted that the local zoning plan was of a very general character and contained practically no details as to the planning of roads , apart from major thoroughfares , and that it did not determine which roads were to be regarded as public . In these circumstances , the court was of the view , having regard to the public use of the roads on the property concerned , that they had been expropriated by the city .

GPE appealed .

By a judgment of CARDINAL DATE ORG dismissed the claim for a declaration . It considered that the company had no legal interest in seeking clarification of the legal situation of the plots concerned by way of a declaratory judgment under LAW . The legal situation of the land had already been determined by the judgment of ORG which was binding on the civil court . Pursuant to this decision , the claimant remained the owners of the plots in question .

The court further observed :

“ Obviously , there was also another legal problem in the case . The conduct of the city in the present case had caused a situation in which the owner could not use his land freely , as provided for in LAW . At the same time , the property serves CARDINAL of the purposes [ road construction ] which normally should be ensured by the local municipality ; what is more , it is the owner who bears the costs of achieving of this purpose .

It can be argued that a situation worse even than a so - called de facto expropriation obtains in the present case . This is so because LAW the term “ expropriation ” covers not only formal expropriation or restriction of ownership carried out in proper expropriation proceedings . The caselaw of ORG also distinguishes a category of de facto expropriation , namely such acts by the public authorities which lead to a practical deprivation of possessions or to restrictions on their use ( PERSON and Others v. GPE , DATE ) . ”

The applicants lodged a cassation appeal with ORG . By a decision of DATE , served on the applicants on DATE , it refused to examine it .

“ CARDINAL . GPE shall protect property and a right to inherit .

Expropriation is allowed only in the public interest and against payment of just compensation . ”

Article LAW reads :

“ Freedom of the person shall be legally protected .

Everyone shall respect the freedoms and rights of others . No one shall be compelled to do anything which is not required by law .

Any limitation upon the exercise of constitutional freedoms and rights may by imposed only by statute , and only when necessary in a democratic state for the protection of its security or public order , or to protect the natural environment , health or public morals , or the freedoms and rights of other persons . Such limitations shall not violate the essence of freedoms and rights . ”

Article CARDINAL § CARDINAL of the LAW provides as follows :

“ In accordance with principles specified by statute , everyone whose constitutional freedoms or rights have been infringed , shall have the right to appeal to ORG for a judgment on the conformity with LAW of a statute or another normative act on the basis of which a court or an administrative authority has issued a final decision on his freedoms or rights or on his obligations specified in LAW . ”

Under its settled case - law , ORG has jurisdiction only to examine the compatibility of legal provisions with the LAW and is not competent to examine the way in which courts interpreted applicable legal provisions in individual cases ( e.g. SK CARDINAL/CARDINAL , DATE ; Ts CARDINAL , DATE ; Ts CARDINAL/CARDINAL , DATE ) .

On DATE the ORG gave a judgment ( K MONEY ) , following a request of the President of ORG to examine the compatibility of certain provisions of the DATE LAW with the constitutional protection of the right to the peaceful enjoyment of possessions . The court noted that the impugned provisions of the DATE Act provided , in respect of properties of an agricultural character , for a reduction of compensation to be paid to owners who had requested that they be divided , by way of an administrative decision , into smaller plots and to have certain plots of land expropriated for road construction purposes . This reduction was based on the premise that the land to be expropriated ceased to be used for agricultural purposes and that the negative results of such a change had to be offset by the owners .

ORG observed that the nature of expropriations carried out in this context did not differ from expropriations effected for the purposes of public use , regardless of the fact that an expropriation was effected in proceedings different from ordinary expropriation proceedings . Hence , the provisions of the LAW as they stood at that time and insofar as they provided for the protection of the right to the peaceful enjoyment of possessions were applicable to such expropriations . LAW allowed for the expropriation of private properties only for the purposes of public use and only against compensation . Compensation , in order to comply with constitutional requirements , had to be just and fair . The notion of fair compensation , including for expropriation carried out at the request of the owner and in his or her interest , had to be in the amount corresponding to the value of the expropriated property . Only compensation satisfying these conditions was in compliance with the nature and purpose of the obligation of the public authorities to compensate an owner whose property was expropriated . Any restrictions on the right to a fair compensation , including by way of reductions of its amount , was in breach of constitutional principles .

On DATE LAW of DATE ( LOC o gospodarce nieruchomościami – “ the DATE LAW ” ) entered into force . Pursuant to section CARDINAL of that Act , expropriation consists in taking away , by way of an administrative decision , of ownership or of other rights in rem . Expropriation can be carried out where public interest aims can not be achieved without restriction of these rights and where it is impossible to acquire these rights by way of a civil law contract .

Under section CARDINAL an expropriation can only be carried out for the benefit of ORG or of the local municipality .

In accordance with section CARDINAL § CARDINAL of the LAW , expropriation can be carried out against payment of compensation corresponding to the value of the property right concerned . Under section CARDINAL § CARDINAL of the LAW , the amount of compensation shall be fixed , regard being had to the status and value of the property on DATE on which the expropriation decision was given . The value of property shall be estimated on the basis of an opinion prepared by a certified expert .

Section CARDINAL provides that a replacement property can be awarded to the expropriated owner , if he or she so agrees .

Pursuant to section CARDINAL , compensation shall be paid within DATE from the date on which the expropriation decision becomes subject to enforcement .

The question of expropriation of land for the purposes of road construction is regulated in that LAW . LAW § CARDINAL of the LAW provides that the division of an estate into smaller plots is possible only when the division proposed by the owner is compatible with the local land development plan . Under LAW of this section , a decision on the division can not be given if the plots resulting from the division would have no access to a public road . Access to a public road is also deemed to be available if a plot has access to an internal road .

Until DATE section QUANTITY read as follows :

Plots of land designated for the construction of roads in an administrative decision on the division of property shall be expropriated ex lege on the date on which such a division decision becomes final . ( ... )

The compensation due for such plots shall be established by way of negotiation between the expropriated owner and the relevant public authority ; if negotiations fail , compensation shall be determined according to the principles applicable in respect of land expropriation .

On DATE amendments to this Act came in force . Following these amendments , the text of subsection ( CARDINAL ) read as follows :

“ CARDINAL . Plots of land designated in a decision on the division of property for the construction of public roads , such as municipal , county , regional and national roads shall be expropriated ex lege on the date on which such a division decision becomes final . ( ... ) “

NORP In a legal opinion of CARDINAL DATE , prepared for a different case from that of the applicants ' , ORG stated that section CARDINAL of LAW in its version applicable until DATE was a legal basis for the expropriation ex lege of all land designated for road construction purposes under decisions on the division of properties , regardless of whether these roads were of a public character or were to be considered internal roads , on the date when such decisions became final .


Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 3 - Prohibition of torture (Article 3 - Effective investigation) (Procedural aspect)

András Sajó;Françoise Tulkens;Helen Keller;Paulo Pinto De Albuquerque

NORP The applicant , born in DATE , is a lawyer and lives in GPE .

At TIME on DATE , while attempting to participate in a demonstration in the form of “ a press conference ” held in GPE , GPE , by members of ORG , the applicant was arrested , with CARDINAL others . The applicant alleged that the large number of police officers on duty at the site of the demonstration , who were wearing special uniforms , had used disproportionate force to disperse the crowd and arrest the potential demonstrators . He claimed in particular that the police had kicked and punched him , beaten him with a stick , and sprayed tear gas in his face inside the police bus following his arrest . The Government , on the other hand , argued that the demonstrators had resisted the police and had refused to disperse despite numerous warnings .

The applicant was subsequently taken to the police station , along with the others who had been arrested , apparently for an identity check .

At TIME on DATE the applicant was taken to the FAC branch of ORG for a medical examination . The doctor who examined the applicant reported bruising on his inner left knee , left ankle and inner left arm . He also noted that the injuries would render the applicant unfit for work for DATE .

The applicant was released from police custody after the medical examination at ORG .

On DATE the applicant sought a medical examination at the GPE branch of ORG of GPE , in order to have the bruises which had developed on his body after his arrest recorded by an independent medical expert . The CARDINAL doctors who examined the applicant noted the following on his body : a QUANTITY yellowgreen bruise on the left part of the chest , a QUANTITY yellow - green bruise on the left buttock , a spotted haemorrhage measuring QUANTITY behind the left knee , a bleeding yellow - green bruise accompanied by a spotted haemorrhage measuring QUANTITY on the left calf , a QUANTITY graze on the left ankle , a QUANTITY graze behind the left ankle , a scabbed wound QUANTITY in diameter , with an area of hyperaemia CARDINAL cm in width around the wound , on the right ankle . The applicant stated to the doctors that he had been kicked and punched and beaten with sticks by the police and had had tear gas sprayed in his face . He further stated that he had been coughing and had a burning sensation in his throat on account of the tear gas . The doctors reported that the injuries on the applicant ’s body and his complaints regarding his throat matched his account of events , but they did not note any physical findings indicating if and how the applicant had been affected by the tear gas .

On DATE CARDINAL members of ORG , including the applicant , lodged a criminal complaint with the ORG public prosecutor against the GPE governor , the deputy chief of police of GPE and the police officers on duty at the time of their demonstration . They alleged that they had all been illtreated by the police during their arrest , on the orders of the governor and the deputy chief of police .

It appears that on DATE the ORG public prosecutor took statements from CARDINAL of the complainants . The applicant was not summoned for a statement .

On DATE the ORG public prosecutor requested ORG to decide whether it would grant authorisation for prosecution of the governor and the deputy chief of police . There is no further information in the case file in relation to this request .

On an unspecified date the public prosecutor further requested the GPE governor to decide whether authorisation would be granted to prosecute the QUANTITY police officers who had been identified from various photographs and video footage as having carried out the ORG arrests . CARDINAL of the lawyers who had lodged the criminal complaint on DATE were indicated as complainants , not including the applicant .

On DATE the GPE governor decided not to grant authorisation for the prosecution of the QUANTITY police officers , due to lack of sufficient evidence in support of the allegations of ill - treatment . The governor indicated in his decision that despite warnings by the police the demonstrators , who had gathered illegally without obtaining permission , had refused to disperse , and the police had therefore been obliged to use some degree of force to disperse them and restore public order .

On an unspecified date CARDINAL of the complainants objected to the decision of DATE .

On DATE ORG upheld the objection , holding that the evidence in the case file was sufficiently strong to require an investigation . It therefore decided to grant authorisation for the prosecution of the relevant police officers .

On CARDINAL DATE the ORG public prosecutor filed a bill of indictment with ORG against the QUANTITY police officers in question , charging them with ill - treatment under LAW . CARDINAL of the CARDINAL lawyers who had filed the complaint of DATE were indicated as complainants in the bill of indictment , and they did not include the applicant .

On DATE the applicant lodged a petition with the ORG public prosecutor ’s office requesting information as to the outcome of the investigation of his complaints .

The public prosecutor informed the applicant on the same date that criminal proceedings had been brought against CARDINAL female and CARDINAL male police officers ( case no . CARDINAL/CARDINAL E. ) following complaints by CARDINAL lawyers from ORG . The public prosecutor did not give any information as to why no action had been taken on his complaints .

On DATE the applicant made an application to ORG , requesting leave to join the criminal proceedings which were pending against the QUANTITY police officers as a civil party , in the absence of any separate proceedings in connection with his complaints .

Also on DATE ORG dismissed the applicant ’s request to join the proceedings , as his name was not included in the bill of indictment as a victim .

On DATE the ORG public prosecutor took a statement from the applicant for the first time , in relation to the complaints he had made on DATE . In his statement , the applicant complained that the relevant authorities had failed to take any action on his complaints for DATE , and requested the identification and punishment of the officers responsible for this delay .

On DATE the ORG public prosecutor filed a further bill of indictment with ORG against the same QUANTITY police officers previously indicted under case no . CARDINAL/CARDINAL E. , this time charging them with inflicting illtreatment on the applicant . The public prosecutor relied on the findings in the medical reports of CARDINAL and DATE as evidence of ill - treatment .

On an unspecified date the applicant ’s case was joined to case no . CARDINAL/CARDINAL E.

At a hearing held on DATE the applicant stated that he had not been given an opportunity by the public prosecutor to identify the police officers who had illtreated him . He stated that none of the CARDINAL female officers charged in respect of his complaints had used any force against him . He was not PERCENT sure about the remaining CARDINAL male officers , no confrontation procedure having taken place with the latter or with any witnesses .

At the next hearing , held on DATE , CARDINAL of the defendant male officers was present , namely ORG The applicant stated that ORG resembled CARDINAL of the police officers who had kicked him during the demonstration , but he could not be PERCENT certain after so much time had passed .

On DATE ORG acquitted the police officers of the charges of ill - treatment of the applicant , as the applicant could not identify them as the perpetrators . The court held in relation to one of the male defendants , ORG , that he had been on leave on the date of the demonstration .

On DATE the applicant appealed to ORG . He stated that he had informed the first - instance court from DATE four female defendants had not used any force against him . Moreover , at the hearing held on DATE , he had been able to identify CARDINAL of the male defendants , ORG , albeit with some doubts , which should nevertheless have been sufficient to convict ORG when combined with other evidence . As regards the defendant ORG , he protested about how it could happen that a police officer initially identified by the authorities as having been on duty could later be found to have been on leave on the relevant day . Lastly , he complained that the public prosecutor had made no efforts to duly identify the officers who had illtreated him , or to collect the relevant evidence in a timely manner , in order to bring about their punishment . The additional indictment prepared in his respect DATE after the incident was , therefore , no more than a mere formality .

On DATE ORG upheld the judgment of DATE in so far as it concerned the applicant , without responding to any of his objections .

In the meantime , on DATE , the ORG public prosecutor had brought charges against demonstrators who had been arrested on DATE , including the applicant , for violation of ORG ( Law no . CARDINAL ) .

In a judgment dated DATE , ORG acquitted the applicant and his co - accused of the above - mentioned charges , finding that the demonstrators had exercised their democratic rights without committing any offences . The first - instance court also noted that the police had learned in advance that the press conference was being planned and had therefore taken the necessary security measures .

On DATE the applicant brought a case before ORG seeking compensation under PERSON no . CARDINAL on the payment of compensation to persons unlawfully arrested or detained , ( “ FAC ” ) in relation to his arrest and detention for TIME on DATE .

On DATE ORG rejected the applicant ’s request . It held that the applicant had been taken to the police station merely to determine his identity , without being taken into detention , and that he had been released as soon as he had had a medical examination . He was therefore not entitled to seek compensation under PERSON no . CARDINAL .

On DATE ORG upheld the judgment of ORG . ORG decision was served on the applicant on DATE .


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

NORP The applicant , PERSON was born in DATE and lives in GPE . She was represented before the ORG by Mr PERSON and PERSON , lawyers practising in GPE and GPE .

NORP Since DATE , the applicant has owned plots of land in GPE . In DATE , she fled north to the area occupied by GPE , where she has lived ever since . The applicant discovered in DATE that part of her property was occupied by ORG , a weighing station and a private company ; a road had also been built across the plot . She found that in DATE part of the land had been compulsorily acquired by ORG for the purpose of building the road .

NORP The applicant brought proceedings for compensation for the land subject to compulsory acquisition ( case no . CARDINAL ) . On DATE , ORG of GPE delivered judgment in her favour , ordering the Government to pay MONEY in compensation for the compulsory acquisition , with costs and interest until final payment .

NORP The applicant ’s lawyer made repeated unsuccessful requests for payment .

The relevant laws , including LAW and relevant case - law on application of the legislation , are set out in GPE and Others v Cyprus ( no . CARDINAL/CARDINAL et al , § § CARDINAL , decision of CARDINAL DATE ) . The provisions in issue in the present case are set out below .

This provides :

“ The payment of any sum due to an owner of NORP - Cypriot property in relation to such property is suspended during the abnormal situation which exists in GPE by reason of the NORP occupation . ”

Law CARDINAL/CARDINAL was amended by PERSON . CARDINAL ) of DATE , published in ORG no . CARDINAL of DATE , by the insertion of additional provisions . The following was inserted at the end of section CARDINAL :

“ Provided that in the exercise of his above authority to administer NORP - Cypriot properties during the abnormal situation the Minister also has the power as custodian , to lift by duly reasoned decision and under terms which are in his judgment appropriate the custodianship concerning particular NORP - Cypriot property or part of it , after taking into account in connection with the administration the situation and circumstances of each case and weighing all factors relevant to this matter , including whether the NORP - Cypriot owner of the property or his heirs or successors in title , as the case may be , occupy property belonging to a NORP - Cypriot in the areas not under the ORG ’s control :

Provided further that inter alia the following factors weigh in favour of lifting the Custodianship of NORP - Cypriot property–

( a ) that the matter concerns the administration of property which at the time it came under its regime of custodianship , its NORP - Cypriot owner had ordinary residence abroad where he had gone at any time before or after the NORP invasion of DATE , and the said owner continues to reside there or has returned or intends to return from abroad for permanent settlement in the Government controlled areas of the Republic ,

( b ) that the matter concerns the administration of property which at any time after it came under its regime of custodianship by the Custodian the NORP - Cypriot owner of the property settled permanently in the Government controlled areas of the LOC and continues to be constantly settled there permanently ,

( c ) that the property under administration concerns a house which its ORG owner was living [ in ] and occupying before the NORP invasion of DATE and intends to live in it upon his coming from the occupied areas for permanent settlement in the Government controlled areas of the LOC . ”

A new section CARDINAL was inserted into the PERSON :

“ ( CARDINAL ) Violation of a right guaranteed by LAW or the Protocols thereto ratified by PERSON , owing to the application of a provision of this PERSON , is actionable .

( CARDINAL ) A person alleging violation of any right guaranteed by LAW and or its Protocols owing to the application of a provision of this PERSON in his case , is entitled , in case of rejection of his relevant claim by the Minister , to have recourse to the district courts by way of action brought against the Republic and the Custodian for the alleged violation , and to claim for the violation the remedies provided for in this section :

Provided that where the remedies sought include a claim by the owner for an order of the court that his property under custodianship under the provisions of this law be restored to him , the action is also directed against the person lawfully in occupation of the property .

( CARDINAL ) In determining in an action under sub - section ( CARDINAL ) whether the plaintiff’

( CARDINAL ) Where in an action under this section the court determines that the plaintiff ’s right was violated , he is entitled in the action :

( a ) to compensation for any pecuniary damage , loss , costs , and expenses actually incurred on account of the violation ,

( b ) to compensation for non - pecuniary damage or injury sustained on account of the violation ,

( c ) to legal costs actually incurred by him on account of the violation ,

( d ) to the issue of a binding order of recognition of right under ORG ,

( e ) to any other remedy that the court has power to grant in exercise of its civil jurisdiction under the Courts of Justice Laws or any other law for the time being in force , or the applicable general principles of law .

( CARDINAL ) For ascertaining the damage attributable to the violation as provided for in subsection ( CARDINAL ) and assessing and awarding compensation under the said sub - section , the court takes into account the criteria and factors taken into account for this purpose by ORG as they transpire from its case - law in cases of violation of the right concerned which is guaranteed by LAW or its Protocols .

Where in an action under this section the court issues an order for the restoration to the plaintiff of property under custodianship , the Custodian and the property ’s lawful occupier are entitled in the action by relevant respective counterclaims against the plaintiff , to any amounts of costs that each has actually incurred for repairs , improvements , developments , building and conversions he has effected on the property under this PERSON :

Provided that the said right of the lawful occupier is only for costs of repairs , improvements , developments , building and conversions he has effected on the property with the Custodian ’s permission .

( CARDINAL ) Where the Custodian for purposes of compliance with a judgment by the court in an action under this section decides to lift the custodianship of NORP - Cypriot property , he is entitled by action against the owner in whose favour the said judgment was issued , or against his heirs or successors in title , as the case may be , to any amount of costs he has actually incurred for repairs , improvements , developments , building and conversions he has effected on the property under this PERSON while it was under custodianship :

Provided that a person lawfully in occupation of the said property at the time of the judgment of the court or of the above decision of the Custodian and subsequently forced to abandon it as a result of the court judgment or the lifting of its custodianship , is entitled by action against the above owner , his heirs and successors in title , to any amount of costs he has actually incurred for repairs , improvements , developments , building and conversions he has effected on the property with the Custodian ’s permission whilst he was in occupation . ”


Violation of Article 6 - Right to a fair trial

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

The applicant was born in DATE and lives in the village of NORP , the LOC .

On DATE the applicant lodged complaint with ORG against CARDINAL private agricultural companies “ NORP ” ( C. ) and “ GPE ” ( P. ) , seeking to recover salary arrears .

The first hearing was fixed for DATE .

DATE and DATE TIME out of QUANTITY hearings were postponed due to the respondents’ representatives’ failure to appear before the court .

In DATE the proceedings were suspended as the term of office of the presiding judge had expired .

The proceedings were resumed in DATE .

On DATE the applicant ’s claims were allowed in full .

The judgment was not appealed against and became final on DATE .

NORP The applicant was provided with a written copy of the judgment on DATE .

In the course of DATE the amount awarded to the applicant against C. was paid in full .

The enforcement proceedings against P. were suspended on an unspecified date as the company was insolvent and this part of the judgment of DATE remains unenforced .


Alvina Gyulumyan;Elisabet Fura;Ineta Ziemele;Josep Casadevall;Luis López Guerra

The applicant , Mr Urban GPE , is a NORP national who was born in DATE and lives in ORG . He was represented before the ORG by Mr P. ORG , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by their Agent , PERSON , of ORG .

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

The applicant owned and ran a private limited company ( later called ORG ) which , from DATE , imported and sold cars from GPE .

The applicant alleged that in DATE ORG orally informed him that ORG had to be paid in GPE and not in GPE , where it was MONEY higher . He applied these rules . In DATE , however , ORG asserted that ORG had to be paid in GPE and not in GPE . Realising that he would thereby be charged ORG and a tax surcharge in GPE , and that the VAT paid in GPE would not be refunded , and that consequently he would go bankrupt , he burned all his bookkeeping records .

By a letter of CARDINAL DATE ORG announced that it would revise the applicant ’s tax assessment . It had noted that the applicant had advertised numerous cars for sale in the papers but hardly paid any GPE in GPE .

On DATE ORG made an announced visit to inspect the applicant ’s business records .

On DATE the applicant ’s company went bankrupt . The public receiver established that no cars remained in the company ’s possession .

On DATE ORG procured an audit report concerning the applicant and his company . The report stated that on DATE the applicant had told the tax officials who made the official visit that he suffered from memory loss after having slipped and injured his head and therefore could not remember where he had put the business records . Subsequently , the auditors of ORG had on several occasions requested to see the records but their requests had been in vain .

By a decision of DATE ORG determined the applicant ’s taxable income for DATE and DATE and the appropriate tax and tax surcharge to be paid . The decision also contained a discretionary assessment as to the profit made by the company and as to whether the company or the applicant ran the business .

In DATE a newspaper ran an article on the administrative proceedings against the applicant , without naming him . The newspaper article contained information from ORG , including the finding that the applicant had sold CARDINAL cars without paying ORG and that he had not been in possession of any sort of accounting records . It was mentioned that if the case were pursued by the prosecution the applicant risked incurring a prison sentence .

On DATE the applicant complained of ORG decision of CARDINAL DATE before the administrative courts , making various allegations and maintaining that his personal tax debt should be set at MONEY ( SEK ) . The applicant did not apply for free legal aid in those proceedings .

ORG issued a revised decision on DATE .

By a judgment of DATE , ORG ( Länsrätten i PERSON ) found against the applicant and on DATE ORG ( ORG ) found against him in part . Leave to appeal to ORG ( Regeringsrätten ) was refused on CARDINAL DATE .

In the meantime , by a letter of DATE ORG informed the prosecution authorities that it suspected that the applicant had committed a bookkeeping offence .

Unbeknown to the applicant , on DATE the prosecution authorities opened a file on him .

By a letter of DATE the applicant was informed that the public prosecutor had opened a preliminary investigation against him and that he was suspected of having committed a bookkeeping offence with aggravating circumstances . He was summoned to an interview with ORG within ORG , which had been instructed by the prosecution to carry out an investigation .

The said interview was held on DATE . Another CARDINAL was held on DATE .

On DATE an indictment as regards the applicant was submitted to ORG ) , before which the applicant , represented by counsel , made submissions . He confirmed that he had burned all the accounting records . He had thought that he would thereby be able to reach a friendly settlement with ORG . He estimated that the company had sold CARDINAL cars with a turnover for the relevant DATE of MONEY , equal to MONEY ( ORG ) . In addition a witness was heard and substantial written evidence submitted .

By a judgment of CARDINAL DATE ORG convicted the applicant of CARDINAL offences with aggravating circumstances , one being the lack of bookkeeping and CARDINAL the obstruction of tax revision . Taking the applicant ’s own information as to the company ’s turnover into account , ORG sentenced him to DATE imprisonment . In addition , he was deprived of his right to run a business ( näringsförbud ) for DATE .

On DATE the applicant appealed against the conviction to ORG ( Hövrätten for ORG ) . In the alternative , he maintained that there were no aggravating circumstances and that he should therefore maintain the right to run a business . In any event , he submitted , the sentence should be reduced and suspended . In support of that submission , he claimed to be a victim of a violation of LAW in that there had been a long period between receiving notification on DATE that he was suspected of having committed an offence and receving a summons on DATE to an interview , that is , a period of DATE , which , he submitted , had caused him significant psychological suffering .

By a judgment of CARDINAL DATE ORG upheld ORG judgment in its entirety . It did not comment specifically on the length - of - proceedings issue . ORG judgment was appended to ORG judgment .

On DATE the applicant requested leave to appeal to ORG ) , which was refused on DATE .

Domestic provisions of relevance to the present case are found mainly in DATE ( rattegångsbalken ) , the DATE LAW ( brottsbalken ) and LAW ( skattebrottslagen ; LAW CARDINAL:CARDINAL ) .

Provisions governing the conduct of preliminary investigations are contained in LAW of LAW . Save in a few exceptional cases , a preliminary investigation is initiated as soon as there is reason to believe that an offence subject to public prosecution has been committed ( LAW ) . During the investigation an inquiry is made concerning who may be reasonably suspected of having committed the offence and whether sufficient reason exists for prosecution ( LAW ) . A suspect is not informed that a preliminary investigation has been initiated . A ORG decision to initiate a preliminary investigation is made either by the police authority or by the prosecutor ( LAW ) . If the investigation has been initiated by the police authority and the matter is not of a simple nature , the prosecutor assumes responsibility for conducting the investigation as soon as someone is reasonably suspected of the offence . A prosecutor conducting a preliminary investigation may require the assistance of the police authority ( ibid . ) .

A preliminary investigation regarding a bookkeeping offence with aggravating circumstances is conducted by the prosecutor . Pursuant to section CARDINAL of ORG ) Act ( lagen om Skatteverkets medverkan i brottsutredningar , ORG ) , the prosecutor is entitled to seek the assistance of a criminal investigator at ORG .

A preliminary investigation is conducted as expeditiously as possible and in such a manner that no one is unnecessarily exposed to suspicion or put to unnecessary cost or inconvenience ( LAW , LAW , of LAW ) . Special requirements for expedition apply in certain circumstances , inter alia , when the suspect is under DATE or when he is remanded in custody . There are no rules stipulating that a preliminary investigation must be concluded within a certain time - limit . If there is no longer any reason for pursuing the investigation , it will be discontinued ( LAW , LAW , of LAW ) .

During the preliminary investigation , anyone who is reasonably likely to possess information relevant to the inquiry may be questioned ( LAW , LAW , of LAW ) .

LAW , LAW , of LAW contains provisions regarding the suspect ’s right to be informed of the investigation . When the investigation has advanced so far that a person is reasonably suspected of having committed the offence , he will , when he is questioned , be notified of the suspicion against him . In so far as it is possible without detriment to the investigation , the suspect and his defence counsel will be informed continuously of developments in the investigation . They are also entitled to state what inquiries they consider desirable and necessary .

Upon conclusion of the preliminary investigation , the prosecutor decides whether to bring charges against the individual concerned ( LAW , LAW , of LAW ) . The latter does not contain any formal time - limits in this respect , but it is made clear in the preparatory rules ( ORG DATE p. CARDINAL ) that a prosecutor will bring charges against the suspect as soon as the circumstances so permit .

The Code of Judicial Procedure contains no particular provisions concerning how rapidly a case will be examined and determined in cases where no coercive measures are involved . It does , however , provide that the courts will set the dates for the main hearing as soon as possible ( LAW , LAW ) . Furthermore , it is implied that they will decide on a case as soon as possible , having regard to , inter alia , the nature of the case .

A person who , intentionally or through carelessness , neglects the obligation to maintain accounts in accordance with , inter alia , LAW ( bokföringslagen ; SFS CARDINAL:CARDINAL ; replaced by MONEY ; SFS CARDINAL:CARDINAL ) by failing to enter business transactions into the accounts or to preserve accounting records , or by entering false information into the accounts or in some other way , will , if in consequence the course of the business or its financial results or status can not be assessed , be convicted of a bookkeeping offence ( bokföringsbrott ) . At the material time , the penalty for a bookkeeping offence was imprisonment for a maximum of DATE , or , if the crime was a petty one , a fine ; if the crime was committed with aggravating circumstances , imprisonment for not DATE and not DATE was to be imposed ( LAW , LAW , of LAW as worded before DATE ) . Following amendments to LAW , LAW , which entered into force on DATE , a petty offence carries a penalty in the form of a fine or imprisonment for a maximum of DATE and the maximum punishment for an offence with aggravating circumstances is imprisonment for DATE .

A person who , intentionally or through gross negligence , disregards the obligation to keep accounts or such obligations to maintain and save accounting records as are prescribed for certain persons who are obliged to supply information , and who thereby causes a risk that official control activities when assessing or levying taxes or charges will be seriously obstructed , is to be sentenced for “ obstruction of tax revision ” ( försvårande av skatterkontrol ) to a fine or imprisonment for a maximum of DATE , or , if the offence is one with aggravating circumstances , to imprisonment for not DATE and not DATE ( Section CARDINAL , sub - section I , of the DATE LAW ) .

The content of judgments and decisions

The requirements in NORP law as regards the content of judgments in criminal cases are found in LAW . Pursuant to LAW , LAW , a judgment is in writing and specifies in separate sections :

the court , the time and place of pronouncement of the judgment ;

the parties , their attorneys or counsel , and the defence counsel for the defendant ;

the conclusion of the judgment ( domslutet ) ;

the parties’ claims and the circumstances upon which they are founded ; and

the reasoning of the judgment ( domskälen ) , including a statement of what has been proved in the case .

A judgment rendered by a superior court will , to the extent necessary , describe the judgment of the lower court . If a party is entitled to appeal , the judgment will inform him of the steps he must take in that case .

In certain cases the courts may render a judgment in a so - called simplified form ( förenklad form ) . CARDINAL relevant example is a judgment by a higher court upholding the judgment of a lower court ( LAW , Section CARDINAL , of LAW ) . In such a case the appellate court has to state the reasons in support of its judgment only when they differ from those given in support of the appealed judgment ( section CARDINAL of the Ordinance concerning Cases and Matters before ORG ; förordningen om mål och ärenden i allmän domstol ; ORG CARDINAL:CARDINAL ) . If the appellate court upholds the lower court ’s judgment , it means that it shares the assessment of the lower court with regard to both the final judgment and the reasoning .

In the preparatory rules ( ORG DATE p. CARDINAL ) it is stated that ORG does not need to state reasons in a decision refusing leave to appeal .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award

NORP In DATE the applicant suffered a whiplash injury to her neck as a result of a traffic accident . Her insurance company P. paid her a disability allowance until DATE . In DATE the insurance company refused her a further allowance , considering her continuing disability to be caused by other physical illnesses from which she had been suffering prior to the accident . ORG ( tapaturmalautakunta , olycksfallsnämnden ) rejected her appeal . Her further appeal to ORG ( vakuutusoikeus , försäkringsdomstolen ) was rejected in DATE and ORG ( korkein oikeus , högsta domstolen ) refused her leave to appeal in DATE .

Subsequently the applicant again applied to her insurance company for a disability allowance , now relying on a medical report of DATE concluding that she remained unable to work . This request was rejected in DATE , the insurance company essentially having found that her medical condition had remained unchanged since ORG decision of DATE . The applicant ’s appeal was rejected by ORG in DATE after it had requested an opinion from the insurance company . This opinion was not communicated to the applicant but the company ’s views were reproduced in the decision .

The applicant ’s further appeal was rejected by ORG on DATE after it had obtained a fresh opinion from the insurance company . This opinion , concluding in a proposal that the appeal be rejected , was not communicated to the applicant . Nor was it reproduced or summarised in the ORG decision .

NORP In DATE the applicant ’s insurance company ORG rejected her request for a disability pension , having found that she was not disabled within the meaning of the legislation on employment - based pensions . Her appeal to ORG ( eläkelautakunta , pensionsnämnden ) was rejected . Her further appeal to ORG was rejected in DATE .

NORP The insurance company rejected the applicant ’s renewed pension request in DATE , referring to its previous decision and finding that the new evidence adduced did not warrant any change in the insurance company ’s position . Her appeal to ORG was rejected in DATE after it had obtained an opinion from the insurance company . This opinion proposing that the appeal be rejected was not communicated to the applicant , nor was it reproduced or summarised in ORG decision .

The applicant appealed further to ORG which also requested an opinion from the insurance company . This opinion , again proposing that the appeal be rejected , was not communicated to the applicant . Nor was it reproduced or summarised in the ORG decision of DATE by which her appeal was rejected . ORG considered , in light of the evidence adduced , that the applicant ’s ability to work was not so reduced as to render her eligible for an employment - based disability pension .

The applicant ’s request for a national disability pension was rejected by ORG ( kansaneläkelaitos , folkpensionsanstalten ) in DATE . It found that , although she was still suffering from symptoms caused by her neck injury , her headaches and other symptoms as well as her depression , they were not causing her such inconvenience as to render her incapable of continuing her work as a laboratory assistant when no longer eligible for a DATE allowance under the national health insurance scheme . Her appeal to ORG ( tarkastuslautakunta , prövningsnämnden ; “ the ORG ” ) was rejected in DATE and her further appeal to ORG was rejected in DATE .

The applicant ’s renewed request for a national disability pension was rejected by ORG on DATE . It found that she was still suffering from neck and shoulder pain , stiffness , aches , depression and insomnia . Her ability to function physically was nonetheless satisfactory . Given her overall state of health , she was able to continue working as a laboratory assistant or performing similar tasks . Accordingly , she could not be regarded as disabled within the meaning of LAW ( kansaneläkelaki , folkpensionslagen CARDINAL/CARDINAL ) .

The applicant ’s appeal to ORG was rejected on DATE after it had requested an opinion from ORG . This opinion was not communicated to the applicant nor was it reproduced or summarised in ORG decision . ORG considered , in light of all medical and other evidence , that the applicant was not to be regarded as disabled within the meaning of LAW .

The applicant appealed further to ORG , adducing further medical reports . ORG obtained an opinion from ORG which was dated DATE and concluded in a proposal that the appeal should be rejected . This opinion was not communicated to the applicant , nor was it reproduced or summarised in the ORG decision of DATE by which her appeal was rejected . ORG referred to the reasons invoked in ORG decision and found that the fresh evidence submitted did not call for any change in the assessment of the applicant ’s ability to work .

At the relevant time ORG applied mainly the principles derived from the rules of procedure of the courts of appeal . Insofar as relevant , LAW provided as follows . According to LAW , sections CARDINAL , the opposing party was to be heard in proceedings before appellate courts . According to LAW , section DATE , subsection CARDINAL , a copy of the observations of the opposing party was to be forwarded to the appellant on request . According to LAW , section CARDINAL , the court of appeal was to request written observations from the parties when it obtained evidence on its own initiative and such evidence could affect the decision in the case , unless such hearing of the parties was manifestly unnecessary .

From DATE onwards ORG has been applying LAW ( hallintolainkäyttölaki , förvaltningsprocesslagen ORG ) except with regard to extraordinary proceedings , in respect of which special rules apply ( section CARDINAL of the Act on ORG , as amended by Act no . CARDINAL ) .


The applicant was born in DATE and lives in PERSON .

On DATE ORG ( PERSON ) expropriated a plot of land belonging to the applicant . A committee of experts assessed the value of the plot of land and the relevant amount was paid to him on DATE .

On DATE the applicant filed an action for compensation with ORG .

On DATE the first - instance court ordered the administration to pay the applicant MONEY ( TRL ) plus interest at the statutory rate , running from DATE , the date on which the ownership of the property was transferred to the administration .

On DATE ORG upheld the decision of the first - instance court .

On DATE ORG rejected the applicant ’s request for the rectification of its decision .

On DATE ORG paid the applicant the amount due together with interest .

NORP The relevant domestic law and practice are set out in the Aka v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL-VI , pp . DATE , § § DATE ) and PERSON v. GPE judgment of DATE ( Reports CARDINAL , § § CARDINAL ) .


Remainder inadmissible;Violation of Art. 5-5;Non-pecuniary damage - finding of violation sufficient

Lech Garlicki;Ledi Bianku;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Zdravka Kalaydjieva

The applicant was born in DATE and lives in GPE .

DATE and DATE the applicant was detained on charges of trafficking in children on account of his suspected involvement in illicit adoptions , and incitement to false testimony . The proceedings as regards the charge of trafficking in children were discontinued on DATE by ORG . The court found that the applicant ’s actions did not fulfil the description of such an offence . The decision was upheld on DATE by ORG . The remainder of the charges against the applicant were discontinued on CARDINAL DATE .

On DATE the applicant was charged with using a forged power of attorney authorising him to represent Mr and PERSON On DATE ORG found him guilty on this charge and sentenced him to a fine of MONEY ( ORG ) , calculated as CARDINAL DATE rates , each equivalent to ORG CARDINAL . At the same time the court decided , under LAW § CARDINAL of LAW , to credit the period of the applicant ’s pretrial detention from DATE to CARDINAL DATE towards the fine . Since , according to LAW , DATE of deprivation of liberty equalled CARDINAL DATE rates of a fine , the period of the applicant ’s detention of DATE was credited in its entirety towards the fine . An appeal by the applicant against that judgment was dismissed on DATE by ORG .

On DATE the applicant lodged an application for compensation for unjustified detention . He sought MONEY in respect of nonpecuniary damage and ORG CARDINAL for pecuniary damage ( at the material time these sums amounted to MONEY ( ORG ) in total ) .

On DATE ORG dismissed the application . On DATE ORG quashed the judgment and remitted the case .

On DATE ORG dismissed the application . The court established that the applicant ’s detention DATE and DATE had undoubtedly been unjustified within the meaning of Article CARDINAL § CARDINAL of the Code of Criminal Procedure . It relied on ORG interpretation to the effect that pretrial detention was undoubtedly unjustified if it had been imposed in violation of LAW as well as if it had caused the applicant suffering to which , taking into account all the circumstances and particularly the outcome of the case , he should not have been subjected . Accordingly , the final outcome of the case was to be considered decisive for finding that the pretrial detention in a case had been “ undoubtedly unjustified ” . In this connection the court established that the applicant had not been convicted of any of the offences which had been the basis of his pretrial detention . Moreover , it pointed to the findings of the courts , which had discontinued the proceedings against him on the ground that the applicant ’s actions did not fulfil the description of the offences he had been charged with . Taking into account all these arguments , the court concluded that the applicant ’s pretrial detention had undoubtedly been unjustified .

NORP However , ORG dismissed the applicant ’s application for compensation , reiterating that on DATE he had been convicted of forgery , for which he had been fined ORG CARDINAL ( approximately ORG CARDINAL ) . In accordance with Article CARDINAL § CARDINAL of LAW , the total period of the applicant ’s pretrial detention had been credited towards the fine in such a way that DATE of pretrial detention had equalled CARDINAL DATE rates of ORG CARDINAL . The court thus considered that ORG had no longer been liable for undoubtedly unjustified detention , because the damage that had been sustained by the applicant had been correctly compensated for by crediting the period of his deprivation of liberty towards the fine ordered against him .

NORP The applicant appealed against the judgment , relying , inter alia , on LAW . He argued that the crediting of a period of deprivation of liberty towards a fine should not be automatic and that the courts should assess the actual damage sustained by a detainee .

On DATE ORG ( FAC ) dismissed the appeal . The court agreed with the lower court ’s findings , and those expressed in ORG Resolution of DATE , which had stated that if the pretrial detention had been compensated for by being credited towards a fine , even one ordered in another set of proceedings , no compensation would be granted .

The applicant lodged an appeal on points of law against that judgment .

ORG applied to an extended bench of ORG for a resolution which would answer the following question :

“ In the event that a period of pretrial detention ordered in another set of proceedings is credited towards a fine – under LAW of LAW and LAW of LAW – should the claim for compensation for undoubtedly unjustified detention be considered to have already been satisfied ; or , in application of LAW of LAW ( a contrario ) and the principles on calculating compensation as encompassing both [ pecuniary and nonpecuniary ] damage , would there still be a claim in so far as the just amount of compensation would exceed the amount of the fine that had been ordered ? ”

On DATE ORG , sitting as a bench of CARDINAL judges , dismissed the application for a resolution in the applicant ’s case . The court considered that the law and practice were clear and that further interpretation of them in a resolution was not required . It considered that there existed CARDINAL ways of compensating for damage caused by unjustified pretrial detention . The first was of nonpecuniary nature , and applied when there was a possibility to credit a period of detention towards another penalty ordered against the same person in the same or another set of proceedings . The second was of a pecuniary nature , under Article CARDINAL of the Code of Criminal Procedure , and was applicable only if the first way was not practicable . These CARDINAL methods were mutually exclusive in that making use of CARDINAL excluded the possibility of using the other . ORG concluded :

“ ... crediting of a period of pretrial detention towards a penalty ordered in the same or in another set of proceedings precludes the possibility of subsequently bringing an effective claim for compensation [ under the relevant provisions of LAW ] for the same period [ of pretrial detention ] ... ”

On DATE ORG , sitting as a panel of CARDINAL judges , dismissed the applicant ’s appeal on points of law following the interpretation provided by ORG in the abovementioned decision . The court considered that there were no provisions of NORP law that would allow for supplementary compensation in cases where the period of detention had been credited towards another penalty .

The applicant was notified of the ORG decision on DATE .

Article CARDINAL of LAW provides :

“ CARDINAL . An accused who , as a result of the reopening of proceedings or an appeal on points of law , has been acquitted or resentenced under a more lenient provision , shall be entitled to receive from the ORG compensation for the pecuniary and nonpecuniary damage which he has suffered as a result of having served all or part of the sentence unjustifiably imposed on him .

The provisions of paragraph CARDINAL shall also be applicable if , after the sentencing judgment has been reversed or declared null and void , the proceedings have been discontinued by reason of material circumstances not duly considered in prior proceedings .

A right to compensation for pecuniary and nonpecuniary damage shall also arise if a preventive measure has been applied under the conditions specified in paragraphs CARDINAL and CARDINAL .

A right to compensation for pecuniary and nonpecuniary damage shall also arise in the event of undoubtedly unjustified ( niewątpliwie niesłuszne ) pretrial detention or arrest . ”

Article DATE ( CARDINAL ) of LAW deals with the crediting of a period of actual deprivation of liberty towards other penalties ordered in the same set of proceedings . It provides :

“ The period of actual deprivation of liberty in a given case , rounded to a full number of DATE , shall be credited towards the penalty ordered , with DATE of actual deprivation of liberty equalling CARDINAL day of the penalty of deprivation of liberty , or DATE of the penalty of restriction of liberty , or CARDINAL DATE rates of a fine . ”

On DATE ORG partly upheld the firstinstance court judgment and awarded compensation for unjustified detention to Mr U.M.K. in the amount of ORG CARDINAL as regards nonpecuniary damage and ORG CARDINAL for pecuniary damage ( in total approximately ORG CARDINAL ) . The claimant was detained for a total period of twentyfour days in DATE . The criminal proceedings against him , linked to the applicant ’s case and also concerning trafficking in children , were finally discontinued in DATE .

On DATE the ORG gave a judgment in which it granted compensation for unjustified detention to Mr ORG in the amount of ORG CARDINAL as regards pecuniary damage and ORG CARDINAL in respect of nonpecuniary damage ( in total approximately ORG CARDINAL ) . It appears that Mr ORG was also detained in connection with the same investigation as the applicant .