Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Peer Lorenzen

The applicant was born in DATE and lives in the town of Beloyarskiy in LOC .

On DATE the applicant ’s son , PERSON , was called up for DATE of mandatory military service . He was assigned to serve in military unit no . DATE in the town of GPE .

On TIME left the military unit without permission . DATE he was arrested in a local village and his detention for DATE on a charge of absence without leave was authorised . He was placed in a disciplinary cell at FAC .

On DATE junior sergeant PERSON took up convoy duty in the detention unit of ORG . On DATE , on an order from the commandant of the garrison , junior sergeant PERSON attempted to search the applicant ’s son . Mr GPE headbutted the junior sergeant , hurting PERSON lip . PERSON did not fight back . In view of the incident , the commandant ordered a medical examination of the applicant ’s son and junior sergeant PERSON While escorting the applicant ’s son from a military hospital back to the garrison ’s detention unit , PERSON , in an attempt to prevent the applicant ’s son from escaping , fired at him and wounded him in the right buttock . On TIME the applicant ’s son died from the gunshot wound , which had caused injuries to internal organs and extensive bleeding .

The commandant of the Uzhur Town Garrison immediately reported the shooting to the military prosecutor ’s office of military unit no . DATE . A criminal investigation was opened into the reported incident . On DATE , at TIME , an acting assistant to the military prosecutor examined the scene of the incident . Junior sergeant PERSON participated as a witness . The record showed that the grounds adjacent to the military hospital were surrounded by a concrete fence . A road between the hospital building and the fence led to metal gates guarding the entrance to the hospital grounds . A used cartridge from an automatic gun was found on the road QUANTITY from the entrance gates . The plan of the scene drawn up by the investigator showed that the applicant ’s son had started running along the road towards the gates from QUANTITY back . He had passed the gates without any attempt being made to stop him . The plan also indicated that junior sergeant PERSON had also passed the gates in pursuit of the applicant ’s son and , having run QUANTITY beyond them , had stopped and shot PERSON . A blood stain measuring CARDINAL by QUANTITY was discovered QUANTITY from the place where Mr L. had started shooting , on the road between CARDINAL fences separating the main grounds of the military unit and the grounds of the disciplinary division where the applicant had been detained . The plan also included a drawing of the applicant ’s son ’s path from the place where he had started running to the blood stain . According to the drawing , having passed the gates of the hospital grounds , he had been running towards the checkpoint of the main grounds of the military unit situated right across from the hospital gates and then , having turned , had sprinted along the road between the CARDINAL fences .

The investigator seized the applicant ’s son ’s uniform and underwear , having made photos of the clothes and a detailed description of the stains and damage to them . The photos showed a blood - soaked undershirt and DATE underpants . The investigator also took possession of PERSON ORG automatic machine gun and the ammunition , including CARDINAL live cartridges and CARDINAL used ones , collected by officer PERSON and other soldiers after the shooting .

TIME Mr L. was interrogated as a witness . He described his dispute with the applicant ’s son which had caused him a lip injury and their subsequent visit to the military hospital for medical examinations . Junior sergeant PERSON insisted that on the way to the hospital officers had warned the applicant ’s son that he would be shot should he attempt to escape . That had not stopped the applicant ’s son from running away on their way back from the hospital . Mr L. stressed that despite his warning shouts and his firing CARDINAL warning shots into the air , PERSON had continued running away , at the same time inviting PERSON and accompanying officer PERSON to catch him . PERSON had shot at the applicant ’s son once , aiming at his legs . QUANTITY had separated the applicant ’s son from PERSON at the moment of the shooting . At the same moment in time , officer PERSON had been QUANTITY away from the applicant ’s son , having continued to run after him . The applicant ’s son had fallen to the ground and officer PERSON had ordered PERSON to call for an ambulance . After the applicant ’s son had been taken to hospital , officer PERSON had told PERSON to collect the used cartridges . They had been able to recover CARDINAL of them : CARDINAL from the CARDINAL warning shots and CARDINAL from the target shot .

A search for the bullet with which the applicant had been shot , including with the use of mine detectors , did not produce any results .

On DATE the investigator ordered a report from the military unit ’s psychologist to address the applicant ’s son ’s psychological condition preceding the incident . The psychologist indicated that during interviews the applicant ’s son had “ hinted at the presence of hazing in the unit directed towards him by junior commanding officers ( sergeants ) [ whose ] last names he [ had ] not mentioned [ and ] [ had ] complained of the impossibility of establishing social contacts and friendly relationships within his military unit ” . At the same time , the psychologist described Mr GPE as a psychologically settled , stubborn and determined person , able to defend his opinion “ until the very end by any means ” . Having observed during an interview the applicant ’s son ’s breaking down and developing signs of depression , the psychologist recommended his transfer to another military unit without giving him access to firearms and placing him under psychological supervision in the new unit .

In DATE following the shooting the investigator interviewed the applicant ’s son ’s fellow soldiers , including those who had been on duty at the checkpoint of the military unit on DATE and had witnessed the incident , personnel of the military hospital and the unit ’s commanding officers . The witnesses described Mr Putintsev as a calm , but unsociable , person and denied subjecting him or witnessing his being subjected to any form of harassment or ill - treatment . Certain witnesses had seen the applicant ’s son on the ground after the shooting with his hips and stomach covered in blood . Several of them had helped to transport him to the hospital .

The commandant of the garrison stated that he had had a talk with the applicant ’s son following his unauthorised leave . Mr Putintsev had allegedly confided to him that he had had problems with fellow soldiers from the GPE but had refused to identify them . The commandant insisted that while giving the TIME ’s instructions to the convoy groups he had paid particular attention to PERSON , having heard that he had been “ mentally unbalanced ” . On TIME the officer had received a report of a dispute between the applicant ’s son and a convoy soldier , PERSON , following PERSON refusal to submit to a search . The officer had had a talk with the applicant ’s son , during which the latter had complained that convoy soldiers had been beating him up . The commandant had called the officer in charge of the convoy unit , junior sergeant PERSON , and soldier PERSON and had ordered junior sergeant PERSON to examine the applicant ’s son in their presence to verify whether he had had any injuries . Having complained of insufficient space in the office to perform the examination , PERSON had asked for the commandant ’s permission to do it in another room , where he had then taken Mr PERSON . On their return TIME , PERSON had had an injured lip and had complained of the applicant ’s son having attacked him . The commanding officer had authorised a medical examination of the applicant ’s son and PERSON by hospital doctors . He had offered PERSON the opportunity to step down from convoy duty but the latter had assured him that he had no hard feelings towards the applicant ’s son and that he was willing to escort PERSON to the hospital .

NORP The investigator also studied materials of an internal inquiry into the applicant ’s son ’s unauthorised leave . The case file included Mr Putintsev ’s explanation of his decision to leave the military unit . He stated that he had felt lonely and depressed and had been tired of military service . The inquiry had led to a decision refusing the institution of criminal proceedings against PERSON in view of his sincere remorse and the fact that his decision to leave the LOC of the military unit had been no more than an attempt to cast off the difficulties of life in the army .

On DATE the investigation into the shooting took a new turn in view of the applicant ’s son ’s death . The investigator of the military prosecutor ’s office authorised a post - mortem forensic examination , having asked experts to identify the cause of Mr Putintsev ’s death and the distance from which the shot had been fired . The experts were also to list any injuries present on the applicant ’s son ’s body and to determine their nature . In report no . CARDINAL experts identified a perforating wound from the gunshot as the cause of the applicant ’s son ’s death .

Another expert examination was meant to determine whether Mr L. ’s actions had complied with military regulations , in particular whether the use of a gun had been lawful . An expert report issued on DATE confirmed that PERSON had been under an obligation to open fire at ORG during his escape . PERSON had complied , to the letter , with the rules regulating the use of firearms in such a situation . He had only shot at the applicant ’s son after he had exhausted other means of preventing an escape . He had warned PERSON that the firearm would be used and had made warning shots .

On DATE the investigator seized the applicant ’s son ’s personal belongings , including a number of letters to him from family members and letters in which Mr Putintsev had complained of being in poor health , extremely homesick and depressed , experiencing difficulties in adjusting to the army , degrading treatment of soldiers by officers , and forced labour for the ORG benefit to the point of being treated like a slave .

On DATE the military prosecutor of military unit no . DATE assigned a group of investigators to take over the applicant ’s son ’s case .

In DATE the investigators performed additional interrogations of a large number of witnesses , having attempted to clarify certain aspects of the applicant ’s son ’s military service , his relations with fellow soldiers and commanding officers , and so on .

DATE the criminal proceedings were closed in view of the absence of criminal conduct on PERSON part . The investigator concluded that PERSON had followed , to the letter , the rules regulating the use of firearms to prevent the escape of an arrestee . On DATE the military prosecutor for ORG quashed that decision and reopened the criminal proceedings , having considered that the investigators had not sufficiently thoroughly studied alternative versions of the events of DATE , including CARDINAL of intentional murder as a result of hazing in the military unit , and had omitted to perform a number of important investigative steps , including an expert examination of the machine gun and used cartridges seized from the scene , a reconstruction with the participation of PERSON , an expert examination of the applicant ’s son ’s clothes , and an assessment of the quality of the medical assistance provided to him in hospital after the shooting .

Having fully complied with the instructions laid down in the decision of DATE and having re - interviewed a large number of witnesses , on DATE the investigator again closed the criminal proceedings , having considered that there was no evidence of a criminal offence . The final reasoning of the decision read as follows :

“ [ T]he actions of PERSON , who on DATE , while being on convoy duty ... preventing the escape of PERSON , a detainee for a disciplinary offence , having [ the character of ] “ shoot to kill ” , [ and ] as a result of which ORG was injured and soon died , contain the formal features of the criminal offence proscribed by LAW . However , taking into account the fact that PERSON used the weapon in compliance with LAW in ORG of GPE [ ... ] and that he did not violate his responsibilities imposed on him by the [ ... ] Statute , it is necessary to conclude that his actions do not constitute criminal conduct ” .

On DATE , following the applicant ’s complaint , a deputy military prosecutor overturned the decision of DATE and reopened the investigation . The deputy prosecutor held that the investigator ’s decision had been premature and ordered him to take a number of additional investigative measures .

On DATE a deputy military prosecutor of military unit no . DATE closed the criminal proceedings , finding no case to be answered . The relevant parts of the decision read as follows :

“ On DATE , at TIME , on an order of the military commandant [ the applicant ’s son ] was escorted by junior sergeant PERSON and an assistant to the head of the convoy regiment , senior lieutenant PERSON , to the military hospital of military unit no . DATE for a medical examination .

On their way back to the detention unit , at TIME , [ the applicant ’s son ] absconded near isolation wards situated in the grounds of the military hospital . In order to prevent [ the applicant ’s son ] committing any criminal acts , junior sergeant PERSON warned [ him ] by shouting : ‘ Stop , [ I ] will GPE , but the [ applicant ’s son ] did not obey the order . [ Junior sergeant ] L. disabled the safety device of his ORG submachine gun and changed the gun lever to trigger single shots . He put a bullet in the firing chamber and fired CARDINAL warning shots in the air . [ The applicant ’s son ] did not react in any way and continued running .

[ Senior lieutenant ] PERSON ran after [ the applicant ’s son ] to try to catch him , but he tripped and fell . Then junior sergeant PERSON ran after [ the applicant ’s son ] and , realising that he could not catch up with [ him ] , stopped near the entrance gate to the military hospital and fired one shot at [ the applicant ’s son ] , as a result of which [ the applicant ’s son ] sustained a bodily injury in the form of a perforating bullet wound to the right buttock , causing injuries to the main blood vessels , right hip and bone structure , accompanied by a disturbance of the blood flow to the right lower extremity with subsequent necrobiotic changes in the crus muscles and complications in the form of acute renal failure , the appearance of stress ulcers on the large and small intestines and their subsequent perforation , [ and ] the development of fecal peritonitis and general poisoning of his system , [ resulting in ] serious damage to his health .

An ambulance took [ the applicant ’s son ] to the surgical department of the military hospital of military unit no . DATE , where he underwent surgery .

On DATE [ the applicant ’s son ] was taken to ORG no . CARDINAL where on DATE , at TIME , he died from his injuries .

[ Junior sergeant ] L. , questioned as a witness during the pre - trial investigation , stated that ... on DATE he had taken up convoy duty in the detention unit of ORG . [ The applicant ’s son ] , a soldier in military unit no . DATE , had been kept in the detention unit as a disciplinary detainee . On DATE , at TIME , on an order from the military commandant , [ the applicant ’s son ] , escorted by PERSON and [ officer ] PERSON , had been taken to the military hospital of military unit no . DATE for a medical examination . After the examination , at TIME , they had left the hospital and had headed back to the detention unit . Officer PERSON had slipped near the hospital isolation wards and at that moment [ the applicant ’s son ] had started running towards the checkpoint yelling ‘ try to catch GPE . PERSON had run after him . In order to prevent [ the applicant ’s son ] from committing any criminal acts , PERSON had warned [ him ] by shouting : ‘ Stop , [ I ] will ORG . However , [ the applicant ’s son ] had not complied with the order . Then PERSON had stopped , disabled the safety device of his submachine gun , changed the gun lever to trigger single shots and fired a warning shot in the air . [ The applicant ’s son ] had not reacted and had continued running . PERSON had run after him again . After QUANTITY , he had fired another warning shot in the air . [ The applicant ’s son ] had continued running . Then PERSON had fired a single shot at him , aiming at his legs . [ The applicant ’s son ] had fallen down after the shot . Officer K ... had approached [ the applicant ’s son ] and had told PERSON to call an ambulance . Junior sergeant PERSON had run to the hospital and then , together with a doctor on duty , had run to the place where [ the applicant ’s son ] was lying . The doctor had examined [ the applicant ’s son ] , [ had ] placed him in the ambulance and [ had ] taken [ him ] to the hospital .

Junior sergeant PERSON confirmed his statements during a reconstruction [ conducted as part of the ] investigation on DATE .

Officer PERSON , questioned during the pre - trial investigation as a witness , stated that he had been in contractual military service in military unit no . CARDINAL . At TIME on DATE he had gone on duty as a garrison guard in the detention unit of ORG in the capacity of an assistant to the head of the convoy regiment ... On DATE , at TIME , on the commandant ’s order , he and junior sergeant PERSON had escorted [ the applicant ’s son ] to the military hospital of military unit no . DATE for a medical examination . After the examination , he , PERSON and [ the applicant ’s son ] had left the hospital and had headed back to the detention unit . On their way to the detention unit , near the hospital isolation wards , [ the applicant ’s son ] had suddenly started running towards the hospital entrance gates and had yelled : ‘ Try to catch and hit me’ . At the same moment officer PERSON had slipped and had been unable to apprehend [ the applicant ’s son ] . Junior sergeant PERSON had immediately shouted to [ the applicant ’s son ] : ‘ Stop , [ I ] will GPE , but [ the applicant ’s son ] had continued running . PERSON had fired a warning shot in the air and had run after [ the applicant ’s son ] . [ The applicant ’s son ] had not reacted in any way and had run through the hospital entrance gates and had continued running along the fence . Mr L. had stopped near the gates and had fired a second warning shot in the air . [ The applicant ’s son ] had continued running , not paying attention to the shots and shouts . After PERSON had run through the hospital gates , he had fired at [ the applicant ’s son ] and had wounded him . At that moment officer PERSON had been QUANTITY away from [ the applicant ’s son ] . After that he had approached [ the applicant ’s son ] and had immediately called an ambulance , which had taken [ the applicant ’s son ] to the hospital .

Officer PERSON confirmed his statements during a reconstruction [ conducted as part of the ] investigation on DATE .

ORG , questioned as a witness during the pre - trial investigation , stated that he had been in mandatory military service in military unit DATE . On DATE he had taken up guard duty at the checkpoint . That checkpoint was situated opposite the military hospital of military unit no . DATE . On DATE , at TIME , he had been outside , near the entrance gates of checkpoint no . CARDINAL , and had been inspecting ... cars ... He had been alone outside . When he had once again closed the gates ... he had heard someone shout ‘ Stop , [ I ] will ORG , from the direction of the hospital . He had noticed a soldier running from the hospital and CARDINAL people , an officer and a soldier with a gun , running after him . The fleeing soldier had not reacted to the shouts ... and had continued running , then the soldier with the gun had fired a shot in the air , but [ the applicant ’s son ] had continued running and had not reacted in any way . Then [ Mr N. ] had heard another shot in the air but the situation did not change . The fleeing soldier had started running on the road alongside the fence and Mr N. had no longer been able to see [ him ] from where he had been standing at checkpoint no . CARDINAL ; he had only been able to see when the soldier with the gun had run through the hospital gates and had fired at the fleeing [ soldier ] . [ Mr L. ] had fired once . After that Mr N. had gone onto the road and had looked in the direction where the soldier with the gun had fired . Mr N. had seen that the [ soldier who had been fleeing ] was lying on the verge of the road and that the officer was standing near him ; [ the officer ] had told the soldier with the gun to run to the hospital for an ambulance . CARDINAL or TIME later a doctor , and then an ambulance , had arrived . Mr PERSON remembered clearly that the soldier with the gun had only fired an aimed shot once and had wounded the fleeing soldier with the third shot , as the first CARDINAL shots had been fired in the air .

The head of military unit no . DATE , Lieutenant Colonel PERSON , questioned as a witness in the criminal case , stated that he had only known [ the applicant ’s son ] from CARDINAL to DATE . He described him as a reserved , unsociable person . [ The applicant ’s son ] had overreacted to commanding ORG remarks . He had had no friends . On DATE ... [ Mr B. ] had been informed that [ the applicant ’s son ] had left the military unit without permission . A search had produced no results . On DATE , at TIME , Mr B. had been notified that ORG had apprehended a soldier who had identified himself as PERSON PERSON and had refused to show a military card . It had turned out that that apprehended person had been [ the applicant ’s son ] . [ Mr PERSON ] had refused to explain the reasons for his absence without leave . PERSON had brought [ the applicant ’s son ] back to the military unit , had authorised his disciplinary detention and had had him detained in the garrison ’s detention unit . [ The applicant ’s son ] had had no injuries on his face . He had had a dry abrasion which , according to him , he had sustained during work in a study unit in the town of ORG .

Mr PERSON . , questioned as a witness in the criminal case , testified that he worked as a surgeon at ORG no . CARDINAL . On DATE he had been working , and sometime after TIME he had been called to the hospital admissions room . A soldier , [ the applicant ’s son ] , who had suffered a gunshot wound , was lying on a stretcher . During an examination no injuries , save for a gunshot wound , had been discovered on his body .

According to forensic medical examination no . CARDINAL of the corpse of [ the applicant ’s son ] :

The death of [ the applicant ’s son ] resulted from a perforating bullet wound to the right buttock , causing injuries to the main blood vessels , right hip and bone structure ... The conclusion made as to the cause of death was confirmed by the presence of entrance and exit wounds on the skin , [ and by ] gross and microscopic impressions .

According to the medical documents submitted , death was pronounced at CARDINAL a.m. on DATE .

It was impossible to identify from what distance the gunshot was fired and to give a detailed description of the exit and entrance wounds because they were treated surgically .

The injury caused severe damage to the [ applicant ’s son ’s ] health , which endangered his life at the moment when it was sustained and had a direct causal link with [ the applicant ’s son ’s ] death .

According to the results of outpatient complex forensic psychiatric examination no . CARDINAL performed on DATE in respect of the period prior to [ the applicant ’s son ’s ] absence without leave from the military unit and his subsequent escape from the detention unit , [ the applicant ’s son ] had not exhibited any signs of a psychiatric illness ; he had exhibited the following personality traits – attention seeking , stubbornness , a tendency to hysteria , unwillingness to comply with commonly accepted norms and rules and to serve in the army , persistent desire to achieve goals by any means , tendency to overestimate his abilities , and lack of control over his actions in emotionally meaningful situations , [ but ] which did not render him incapable of fully understanding the actual nature and dangerousness of his actions or controlling them . During his escape from the guard he had not exhibited signs of any temporary mental disorder ... , his actions were committed deliberately , for a purpose and [ the applicant ’s son ] was capable of fully understanding the nature and dangerousness of his actions and of controlling them .

According to the results of the forensic medical report on the medical assistance provided to the [ applicant ’s son ] :

The cause of [ the applicant ’s son ’s ] death was a single gunshot wound to the right buttock and iliac region with gunshot fractures of the right trochanter , pubic and ischial bones , an injury to the right iliac arteries and vein accompanied by massive blood loss , extensive haemorrhaging in the retroperitoneal space , traumatic and hemorrhagic shock and complicated multiple organ failure .

NORP [ The applicant ’s son ’s ] surgical treatment in the hospital ... was necessary , technically correct and timely .

NORP [ The applicant ’s son ’s ] postsurgical treatment in the hospital and subsequently in ORG was performed correctly and to the necessary extent .

No mistakes during the surgical and postsurgical treatment of [ the applicant ’s son ] in the hospital and subsequently in ORG were detected .

According to the results of ballistic examination no . CARDINAL :

CARDINAL cartridge cases submitted for examination are constituent elements of live cartridges ... for an NORP submachine gun ... ;

CARDINAL , CARDINAL , DATE . There are CARDINAL holes [ in the clothes ( an overcoat , pants , coat ) submitted for examination ] caused by mechanical force : those holes were caused by a gunshot ; CARDINAL is the entrance hole and the other is the exit hole .

If the overcoat was not buttoned up , the gunshot holes in the military clothes ... submitted for examination were caused by a single bullet fired once ;

The holes in the clothes submitted for examination were caused by a gunshot fired from a distance of QUANTITY ;

The CARDINAL cartridge cases submitted for examination were fired from the same NORP submachine gun ( no . DATE ) presented for examination .

A senior expert , PERSON , stated that the distance from which the shot had been made was QUANTITY . It was impossible to identify the distance precisely because the submachine gun presented for examination had a flash hider ....

According to military statute examination no . CARDINAL on DATE :

Section CARDINAL of Protocol No . CARDINAL and LAW in ORG of GPE determine the procedure for using firearms ; they state that a sentry should use a firearm after warning an arrestee ( a detainee ) who is attempting to escape with a peremptory shout : ‘ Stop or [ I ] will ORG , and if the order is not complied with , then [ the sentry ] should shoot .

The sentry , junior sergeant PERSON , did not violate the procedure for using firearms in his use of the gun and complied with the requirements set out in LAW .

When a detainee is attempting to escape , a sentry should not run after him ; after giving the warning ‘ Stop or [ I ] will ORG , he must shoot at the detainee .

By virtue of LAW no . CARDINAL of the Statute ... detained soldiers , in a group of CARDINAL , are to be sent from a detention unit to other [ points ] in the grounds of a military unit under the guard of CARDINAL sentry ... On an order of the garrison ’s military commandant , officer PERSON , an assistant to the head of the convoy regiment , was also sent to accompany [ the applicant ’s son ] because the latter was liable to leave the military unit without permission . While accompanying [ the applicant ’s son ] PERSON did not violate any requirement of the Statute .

While escorting [ the applicant ’s son ] junior sergeant PERSON complied with the established procedure , walking CARDINAL steps to the left behind [ the applicant ’s son ] , and [ officer ] PERSON walked ahead of the detainee , not violating the requirements of the Statute ...

According to statements by soldiers in mandatory military service in military units nos . DATE and DATE , [ the applicant ’s son ] was not subjected to acts of violence or harassment by other soldiers or officers in the aforementioned units ; no one beat him up or intimidated or insulted him or forced him to do any work for them .

Captain PERSON . stated ... that on admittance to the detention unit he had examined [ the applicant ’s son ] , who had not had any injuries or bruises on his body save for a bruise on the left shank which , according to [ the applicant ’s son ] , he had sustained as a result of a fall during his absence from the military unit ... In the detention unit [ the applicant ’s son ] had been given food according to the established regulations ; he had not made any complaints concerning the conditions of detention in the detention unit . While PERSON . had been on duty no one had committed acts of violence or harassment towards [ the applicant ’s son ] .

A medical officer in military unit no . DATE , PERSON , stated ... that on [ the applicant ’s son ’s ] arrival from the study unit in the town of ORG she had examined him ... During the first examination she had not noticed any injuries or bruises or any other signs of possible beatings on [ the applicant ’s son ’s ] body . When she had examined [ the applicant ’s son ’s ] head she had noticed an infected injury on his scalp ; as per [ the applicant ’s son ’s ] explanations he had sustained that injury when he had hit his head on a low door frame in Pereslavl – Zalesskiy . She had examined soldiers DATE , and during [ the applicant ’s son ’s ] service in military unit no . DATE she had not discovered any injuries , bruises or other signs of beatings on his body . [ The applicant ’s son ] had not made any complaints about the state of his health .

A medical officer in military unit no . DATE , PERSON , made statements identical to those by PERSON , and she additionally stated that ... in DATE [ the applicant ’s son ] had been admitted to hospital in military unit no . DATE with a diagnosis of “ difficulty in adapting ” . During a conversation with a doctor , T. , she had found out that [ the applicant ’s son ] had wanted to be transferred to a communication centre of military unit no . PERSON as he had been unable to adapt in military unit no . DATE . At the same time , [ the applicant ’s son ] had not told doctor T. that he had been harassed by his fellow soldiers or other individuals .

Major PERSON stated that ... at CARDINAL [ on DATE of the shooting ] [ the applicant ’s son ] and PERSON had been brought for a medical examination . During the examination [ the applicant ’s son ] had stripped naked and PERSON had examined him , searching for injuries , bruises , scratches , etc . He had performed the examination starting from [ the applicant ’s son ’s ] head and face and finishing with his legs . During the examination he had discovered an injury covered by a brown scab on [ the applicant ’s son ’s ] scalp . He had concluded that the injury had been sustained DATE before . He had also discovered a small injury on [ the applicant ’s son ’s ] left shank which could also have been sustained DATE before . He had not discovered any other injuries on [ the applicant ’s son ’s ] body . When he had examined PERSON , he had discovered a lacerated wound , measuring QUANTITY , on the inner side of the upper lip . That injury could have been sustained TIME before their arrival at the hospital . Subsequently , [ major A. ] had recorded [ the applicant ’s son ’s ] and PERSON injuries in letters of referral for medical examinations .

According to [ the applicant ’s son ’s ] written statements , he had sustained an injury to his scalp in the study unit in ORG in DATE .

During the pre - trial investigation , the allegations that [ the applicant ’s son ] had been subjected to acts of violence or harassment by other servicemen during his service in military units nos . CARDINAL and DATE were not confirmed . The allegations of extortion of money , personal and military belongings from [ the applicant ’s son ] were not confirmed either . It is established that [ the applicant ’s son ] had sustained an injury to the scalp during his service in the study unit in ORG ; he had sustained an injury to the left shank as a result of a fall during his absence without leave from the military unit DATE ; a bruise on [ the applicant ’s son ’s ] right eye had been sustained as a result of resuscitation actions taken in ORG no . CARDINAL ; CARDINAL is responsible for causing injuries to [ the applicant ’s son ] .

Thus , it is necessary to conclude that [ the applicant ’s son ’s ] attempt to escape from the detention unit was caused by his own disorderly actions and lack of understanding of the actual nature and social harmfulness of his actions ; it had a purposeful and conscious character and was not caused by any external factor .

In his use of the gun , junior sergeant PERSON did not violate the procedure on the use of firearms ; [ he ] complied with all the necessary requirements set out in LAW . ”

The applicant appealed against the decision of the deputy military prosecutor to ORG of FAC . Amongst other things , she asked ORG to grant her victim status in the criminal case concerning her son ’s death to enable her to claim compensation later on for the pecuniary and non - pecuniary damage which had resulted from his death .

On DATE ORG , endorsing the findings made by the deputy prosecutor in his decision of CARDINAL DATE , dismissed the applicant ’s complaint . As regards the applicant ’s request for victim status , ORG held :

“ By virtue of LAW , a victim is a person who sustained physical , pecuniary or non - pecuniary damage as a result of a crime . As [ the deputy military prosecutor ] refused to institute criminal proceedings against junior sergeant PERSON , and the criminal case concerning the death of [ the applicant ’s son ] was closed because there was no evidence of a crime , it is necessary to state that [ the applicant ’s ] request for victim status due to the death of her son is unfounded . ”

On DATE ORG of the CARDINALrd Command quashed the judgment of ORG of the CARDINALst Garrison and remitted the case for fresh examination . A copy of the decision of CARDINAL DATE was not submitted to ORG .

On DATE ORG of FAC , again relying on the deputy military prosecutor ’s decision of DATE , found that the use of firearms against the applicant ’s son had been lawful . The court noted that the applicant ’s son had been aware that he was under arrest and had understood the consequences of his attempt to escape , including the possible use of firearms , and that junior sergeant PERSON had had no choice but to follow the rules on the use of firearms laid down by ORG . ORG also dismissed the applicant ’s request for victim status .

On DATE ORG of ORG upheld the judgment of DATE , endorsing the reasoning of the firstinstance court .

LAW , adopted by Presidential Decree no . CARDINAL on DATE and in force until DATE , laid down grounds for the imposition of disciplinary penalties on servicemen , including soldiers performing mandatory military service . In particular , ORG permitted detention for DATE of a soldier for a breach of military discipline or public order ( § CARDINAL ) . A decision authorising the detention was to be taken by the commandant or head of the unit involved ( § CARDINAL ) . An inquiry into the circumstances of an alleged disciplinary offence was to precede a decision by which a disciplinary penalty was imposed . The inquiry was to , inter alia , take account of the purpose for which the alleged disciplinary offence was committed , whether the soldier was guilty of the offence , what the consequences of the offence were and whether there were mitigating or aggravating circumstances ( § DATE ) . A decision to impose a disciplinary penalty was ordinarily to be taken within DATE after the commandant had learned about the offence ( § CARDINAL ) .

The Statute of Military Service of GPE , adopted by LAW as LAW and in force until DATE , contained an exhaustive list of cases in which the use of firearms by servicemen was authorised . In particular , the relevant part of the Statute read as follows :

“ CARDINAL . While performing military service duties and , if necessary , during out - of - office hours , servicemen have the right to store , carry and use firearms .

The procedure for storing and using firearms by servicemen is laid down in the present Statute .

As a measure of last resort , servicemen have the right to use firearms personally or within their military subdivision :

to repel an attack by a group of persons or an armed person on guarded military or ORG installations , as well as on military units and divisions , buildings and LOC of military units , military echelons , motorcades or single cars and convoy units , if it is impossible to use other means and measures to protect them ;

to prevent an attempt to take possession , by force , of firearms and military equipment , if it is impossible to use other means and measures to protect them ;

to protect military personnel and civilians from an attack posing a threat to their lives and limb , if it is impossible to use other means and measures to protect them ;

to apprehend a person who has committed a crime or is committing a serious or particularly serious criminal offence or an armed person who refuses to comply with lawful orders to disarm , if it is impossible to use other means and measures to suppress the resistance , to apprehend the criminal or to seize the weapon .

Servicemen performing convoy duty have the right to use firearms in the cases and in line with the procedure established by LAW in ORG of GPE .

Moreover , a commanding officer has the right to use firearms personally or to order the use of firearms to restore discipline and order in the event of open resistance from a subordinate , when his actions clearly pursue [ the purposes ] of treason or disruption of a military mission in battlefield conditions .

A warning that a weapon may be used should precede its use . A weapon may be used without a warning [ to repel ] an unexpected and armed attack [ and ] an attack with the use of military equipment , vehicles , aircrafts , sea and river vessels ; [ to prevent ] an escape of an armed [ detainee ] or [ when the escape is effected ] with the use of vehicles or from moving vehicles , at TIME or in other restricted visibility conditions .

Servicemen have the right to use firearms to make an alert signal or to call for help , as well as [ to use the weapon ] against an animal which threatens the life or health of individuals ... ”

The Statute of Garrison and Sentry Service in ORG of GPE , in force at the material time , regulated the use of firearms and force in convoy and sentry service . In particular , LAW provided as follows :

“ A sentry guarding arrestees ( detainees ) in a disciplinary unit must :

- warn arrestees ( detainees ) attempting to escape with an order : ‘ Stop , or [ I ] will ORG , and if the order is not complied with [ the sentry ] should use a firearm against them . ”


Preliminary objection rejected (non-exhaustion);Violation of P1-1;Pecuniary damage - financial award;Non-pecuniary damage - financial award;Costs and expenses - claim dismissed

The applicant was a NORP citizen and was born in DATE . At the material time he lived in the village of PERSON ( district of ORG ) .

At DATE ORG ( “ the ORG ” – PERSON ) , a ORG body responsible , inter alia , for dam construction , expropriated CARDINAL plots of land belonging to the applicant in the village of PERSON ( Sinop ) .

Following the construction of the GPE hydroelectric dam in LOC , the land , which had been used for growing crops , was flooded , as was that of CARDINAL families also affected by the scheme .

After title to the land had been transferred to the authorities on CARDINAL DATE , the ORG paid the applicant a total of MONEY ( TRL ) for the CARDINAL plots of land ( being GPE CARDINAL and TRL CARDINAL respectively ) .

On DATE the applicant brought , in respect of the expropriation of each plot of land , an action in ORG for increased compensation . The actions were registered under nos . ORG and CARDINAL .

During the proceedings the court ordered CARDINAL on - site valuations by experts in order to assess whether the amounts fixed by the expropriating authorities were correct . The CARDINAL panels of experts relied on the same criteria in preparing their valuations , namely the criteria set out in PERSON no . ORG on expropriation rules . As , however , they did not use the same methods of calculation , their valuations differed , but both were higher than the amount that had been paid by the ORG on expropriation .

An application by the parties for a third valuation was dismissed because the court considered that the CARDINAL valuations had been based on criteria complying with the statutory requirements and contained sufficient relevant material to enable it to decide the case .

Subsequently , the applicant stated in writing that he accepted the lower of the expert valuations . ORG Instance noted his agreement and made an order in those amounts .

NORP In action no . CARDINAL/CARDINAL , on DATE the court ordered the ORG to pay GPE CARDINAL in additional compensation for expropriation . In action no . CARDINAL/CARDINAL it awarded the applicant an additional GPE CARDINAL on CARDINAL DATE . Those amounts bore simple interest for delay at the statutory rate of PERCENT a year running from CARDINAL DATE ( see paragraph CARDINAL above ) .

ORG upheld those decisions on DATE and DATE respectively .

The additional compensation awarded in action no . CARDINAL/CARDINAL was paid to the applicant on DATE . It came to ORG , of which ORG was interest for delay due up to DATE .

In action no . CARDINAL/CARDINAL the applicant received the sum of GPE CARDINAL on DATE , ORG CARDINAL of which was interest for delay calculated up to DATE .

The relevant part of LAW , relating to expropriations , provides :

“ ... Compensation for expropriation shall be paid immediately and in cash ... If deferred payment is permitted by statute ... interest for delay at the maximum rate laid down for ORG debts shall be payable on the part that is not paid immediately ... ”

At the material time the rate of interest for delay payable on debts owed to the ORG was PERCENT per month ( PERCENT per annum ) ( section CARDINAL of Law no . CARDINAL on the collection of debts due to the ORG and Cabinet Ordinance no . CARDINAL/CARDINAL ) .

By PERSON no . CARDINAL the rate of interest on overdue State debts is PERCENT per annum .

Article CARDINAL of LAW ( “ CO ” ) provides :

“ Where the loss sustained by the creditor exceeds the interest due for delay and the debtor is unable to show that the creditor has been at fault , it is for the debtor to make good the loss .

If the additional loss can be assessed immediately the court may determine the amount when giving its decision on the merits . ”

In practice , the loss for which compensation may be claimed under this provision is the loss caused by the lapse of time between the date the debt is due and the date it is paid .

On DATE ORG ) , which has jurisdiction in cases concerning compensation for expropriation , ruled as follows :

“ The way in which creditors are compensated for the late payment of debt is through statutory interest . Since creditors are able , when resorting to enforcement measures , to claim the amount due to them plus interest , they are not entitled to claim any other form of compensation ; accordingly , the decision to grant the creditor ’s claim , on the basis that the rate of inflation was high , was ill - founded ... ”

The Government referred to another judgment delivered by the same division ( judgment no . CARDINAL of DATE ) , in which ORG had allowed an application for compensation under LAW . The decision concerned alleged additional loss resulting from the authorities’ delay in repaying a sum to which they had not been entitled . However , the claims in that case were based on the fact that in order to pay the amount supposedly due the plaintiff had had to close a deposit account before term , thereby losing interest .

Nonetheless , the practice of ORG and in particular of its Thirteenth ORG ( see judgments LAW . CARDINAL/CARDINAL and CARDINAL ) in cases not concerning expropriation appears to be to allow compensation for losses of that type under LAW in disputes between private individuals . On this point , it should be observed that the presidential committees of ORG , responsible for ensuring that the case - law is consistent , tend to dismiss grounds of appeal based on differences in the practice of the various divisions , as they consider that decisions are made on a case by case basis in the light of the particular facts concerned and consequently do not need to be harmonised .

In a leading judgment of CARDINAL DATE ORG , sitting as a full court , ruled for the first time on the adverse effects of inflation , holding :

“ Law no . CARDINAL was approved and came into force when inflation in the country was high with rates well over PERCENT . Notwithstanding that fact , the legislature fixed the rate of interest for delay at PERCENT . In the present case it would therefore be unlawful to award compound interest at a rate PERCENT on the erroneous basis that the rate of interest payable on bank deposits was applicable . ”

On DATE ORG , sitting as a full court , delivered another leading judgment in which it decided the issue of the applicability of Article CARDINAL CO ( see paragraph CARDINAL above ) to claims for loss sustained as a result of inflation . It held as follows :

“ ... the rate of interest provided for by PERSON no . CARDINAL ... constitutes lump - sum compensation for damage without the need for proof of loss ... Since the rate of default interest ( interest for delay in payment ) is fixed by statute in the light of the economic problems ( inflation , monetary erosion ... ) the country is experiencing , it is impossible to adduce the same factors ( inflation , monetary erosion ... ) as clear evidence of the additional loss referred to in LAW , or to affirm that the resulting disadvantages constitute the actual damage suffered . Otherwise , the legislature ’s decision that the compensation for those disadvantages would be PERCENT would no longer make any sense . If the legislature , having had regard to all the economic problems , has , by virtue of the legislative power conferred on it by LAW , fixed the rate of compensation for loss resulting from those problems , it can not be accepted that the damage for which compensation is due amounts to PERCENT or PERCENT rather than PERCENT , on the implied ground that the [ legislature ’s ] assessment was unfounded ... It is obvious that inflation , which has a considerable impact in the current economic climate of the country , exceeds [ the rate of ] PERCENT laid down by ... PERSON no . CARDINAL and that [ in consequence ] the creditor ’s loss through late payment is not covered . However , in so far as it exceeds the PERCENT rate fixed by the legislature , that loss does not come within LAW ... As the legislature , pursuant to its legislative power , considered that the loss amounted to PERCENT , a judicial decision applying a higher rate of loss on the ground that inflation exceeds PERCENT would constitute an encroachment on the legislature ’s jurisdiction ... ”

In practice , leading judgments must be followed by the courts below when those courts decide issues similar to those previously considered by ORG , sitting as a full court .

NORP In DATE the average exchange rate of the GPE dollar was , according to the exchange rate applied by ORG , ORG and GPE CARDINAL respectively .

The effects of inflation in GPE are indicated in the lists of the retail price index published by ORG . According to the relevant list , if the base index for DATE and DATE ( when title to the expropriated property was transferred to the authorities and the proceedings were issued in ORG – see paragraphs CARDINAL–CARDINAL above ) is taken as CARDINAL , the inflation index had by DATE ( when the additional compensation in case no . CARDINAL/CARDINAL was paid DATE see paragraph CARDINAL above ) reached CARDINAL and CARDINAL by DATE ( when the additional compensation in case no . PERSON was paid DATE see paragraph CARDINAL above ) .


Violation of Art. 6-1;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

On DATE , pursuant to Law no . CARDINAL/CARDINAL , which created ORG and required regional governments , inter alia , to adopt appropriate measures for the prevention , screening and treatment of disabilities , ORG enacted Regional Law no . CARDINAL ( “ LAW ) . LAW authorised local public health services ( PERSON – “ USLs ” ) to grant allowances for DATE after its entry into force to families caring for disabled members of their household directly in their own homes .

On DATE ORG ( Comitato di gestione ) of ORG no . CARDINAL , applying LAW , decided that CARDINAL persons , including the applicant 's son , satisfied the conditions entitling their families to payment of the allowance . The decision authorised only distribution to qualifying beneficiaries , depending on the date when they had been recognised as PERCENT disabled , of the sum of MONEY ( ITL ) for DATE ; the applicant received ITL CARDINAL in respect of DATE .

By a notice to pay served on DATE , the applicant asked ORG no . CARDINAL to grant him the allowance . He pointed out that the placing of his son 's name on the list of persons who satisfied the conditions required by LAW for entitlement to the allowance had not been followed by the payment provided for in LAW .

As the ORG did not reply , the applicant brought proceedings against it in ORG ( “ the ORG ” ) on DATE . Relying on LAW , he sought a declaration that the lack of an answer from the USL – amounting to a refusal – had been unlawful and that he was entitled to the allowance in question for DATE .

On DATE the applicant requested that a date be fixed for the hearing . On DATE he submitted an urgent request for a hearing date to be fixed , observing , inter alia , that the USLs were to be restructured on CARDINAL DATE and that NORP legislation made no provision for financial continuity between the old entities and the new ones . He was therefore asking for his case to be set down because after DATE he would no longer be able to obtain the allowance he sought .

In a pleading filed on a date which has not been specified , ORG no . CARDINAL submitted , among other arguments , that it did not have capacity to defend the action ( legittimazione passiva ) , on the ground that only the LOC was required to make available the financial resources needed for payment of the allowance . It maintained that the applicant , who had received the allowance for DATE , within the limits of the budgetary appropriations , should have challenged the decision of CARDINAL DATE , but as he had not done so it had become final and the amount paid could no longer be called into question .

NORP The case was heard on DATE . In a judgment of DATE and DATE , the text of which was deposited with the registry on DATE , the ORG observed in the first place that the applicant was not required to challenge the decision in issue as it did not contain a refusal to pay the full amount of the allowance . On the contrary , there had been CARDINAL valid alternative ways of interpreting the ORG 's conduct . For example , the applicant could have thought the ORG was making a payment on account , while reserving final determination of the amount to be paid for a later assessment , or that it had decided to pay a larger sum with an initial instalment to be followed by others . On the merits , the ORG held that , once it had been verified that the statutory conditions for entitlement to the allowance had been satisfied , it should be paid in the quantum provided for in LAW . The administrative authority thus had no discretionary power and its role should have been restricted to making a purely arithmetical calculation . The applicant had duly established that he was the father of a PERCENT disabled civilian living with his family ; moreover , his son 's name was the CARDINALth in the list included in the decision of DATE . The ORG should therefore have ruled on his application . However , as ORG had stated when determining a dispute over jurisdiction ( judgment no . CARDINAL of DATE ) , the applicant could not claim to have a “ personal right ” ( diritto soggettivo perfetto ) but only a “ legitimate interest ” ( interesse legittimo ) , that is to say an individual position indirectly protected as far as was consistent with the public interest , which would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid . The ORG therefore dismissed the applicant 's action in so far as it concerned recognition of his entitlement to the allowance in question .

On DATE and DATE respectively ORG no . CARDINAL and ORG appealed to the Consiglio di Stato . By a decision of DATE the PERSON stayed execution of the first - instance judgment .

On DATE ORG ( LOC ) , the body which had taken the place of the FAC , approved the text of a friendly settlement reached on DATE between the administrative authority and the applicant , among others . Noting that in numerous similar cases the competent courts had nearly always recognised that the plaintiffs were entitled to the allowance for DATE , further noting that the settlement had been signed after it had been verified that the conditions required by LAW had been satisfied , and having regard to the fact that the settlement was about to put an end to a high - profile case which would in all probability have gone against the administrative authority , given the line the courts had taken on the question , so that the public purse would be saved MONEY , the Director - General ordered payment of the allowance . By a judgment of DATE , the text of which was deposited with the registry on DATE , the PERSON took formal note of the friendly settlement the parties had reached and struck the case out of its list .

The allowance for the families of disabled civilians is governed by LAW no . CARDINAL of DATE , the relevant parts of which provide :

“ For DATE after the entry into force of the present PERSON , local public health services shall be authorised to grant an allowance to families who undertake to provide direct care for persons suffering from mental or physical disabilities who are incapable of attending to their own primary needs and require constant assistance .

The allowance shall be granted in pursuance of the following objectives :

( a ) returning to their families disabled people formerly in full - time institutional care ;

( b ) encouraging the practice of caring for disabled children within the family ... ;

( c ) socialising the disabled person and improving his relations with those around him ;

( d ) improving the lives of the families of disabled persons ;

( e ) creating a favourable environment for the life of the disabled person ;

The amount of the family carers ' allowance shall be PERCENT of the DATE charge for attendance on persons hospitalised full - time . ”

ORG has given a number of rulings on the carers ' allowance in connection with appeals on points of law concerning disputes over jurisdiction .

For example , in judgment no . CARDINAL of CARDINAL DATE it held that , where the jurisdiction of the ordinary courts had been recognised in a decision which had become final , disputes concerning LAW fell into the category of disputes over mandatory assistance , which came within the jurisdiction of the magistrate 's court , sitting as an employment tribunal .

In judgment no . CARDINAL of DATE it held that the administrative courts had jurisdiction over disputes about entitlement to the allowance , ruling that the beneficiary could not claim to have a personal right but only a legitimate interest , that is to say an individual position indirectly protected as far as was consistent with the public interest , and that this would remain the case until such time as the administrative authority adopted a decision to award the allowance and specified the total amount to be paid .

The appellants in these CARDINAL cases were in a similar situation to Mr Mennitto , but had applied to the ordinary courts .

ORG has upheld on many occasions the claims of other persons caring for disabled relatives .

In its judgment no . CARDINAL , deposited with the registry on CARDINAL DATE , it ruled :

“ [ The ORG ] declares that the claimant is entitled to receive the allowance provided for in LAW ] ... ;

Orders the respondent authority to pay the sum in question ... ”

In that decision and in others ( such as judgment no . CARDINAL of CARDINAL DATE and judgments ORG . CARDINAL and CARDINAL of DATE and DATE ) the ORG gave the following reasons for its ruling :

“ [ LAW ] makes adoption of the decision to grant the allowance subject , among other requirements , to verification that beneficiaries satisfy the relevant qualifying conditions . When such verification had been made , determination of the amount to be paid should have required no more than a simple arithmetical calculation ...

In the light of these principles ... , exercise of the discretionary power pleaded by the ORG has no bearing on the case , since otherwise it would be possible for an administrative decision to replace an assessment already ineluctably made by the legislature ... ”

After finding that PERSON ( the relative of the claimant in that case ) was PERCENT disabled and required constant assistance , which was why , following tests carried out by the respondent authority , his name had been placed on the list of qualifying beneficiaries , the ORG ruled that there was an obligation to pay the allowance .

The PERSON , ruling on the question of determination of the amount of the allowance , held that the Region could not be absolved from the obligation to make available to each ORG a sum earmarked for families providing direct care to disabled persons and sufficiently large to ensure that each of these families would be able to receive the amount of allowance prescribed by law ( judgment no . CARDINAL of DATE ) .

In its judgment no . CARDINAL of CARDINAL DATE the PERSON ruled that the amount of the allowance for families caring directly for disabled persons , in so far as it was fixed by law , could not suffer any reduction by the administrative authority , which in this matter had no discretion whatever with regard to quantum , and that that conclusion was not in contradiction with the nature of the legitimate interest of the disabled person 's family .


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

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

The applicant applied to ORG for a retirement pension , but was informed , by a letter dated DATE , that the ORG would not consider his claim until DATE before his CARDINAL birthday . At present , women in GPE become eligible for a State pension at DATE , whereas men are not eligible until CARDINAL .

In their ORG , the ORG submitted that the applicant received a total of GBP CARDINAL per week in ORG benefits , including income support , disability living allowance and invalid care allowance . They claimed that the applicant would be in an identical financial position if he were a woman , the only difference being that part of the money paid to him by the ORG would be paid in the form of retirement pension rather than income support .

The applicant has not denied the ORG ’s account of his income . He claims , however , that if he were in receipt of ORG pension he would in addition be entitled to other financial benefits , such as a bus pass and discounts in shops , restaurants and hairdressers .


CASE OF RODRIGUES DA SILVA AND HOOGKAMER v. THE NETHERLANDS

Violation of Art. 8;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award - domestic proceedings

András Baka;Antonella Mularoni;Corneliu Bîrsan;Jean-Paul Costa;Karel Jungwiert;Volodymyr Butkevych;Wilhelmina Thomassen

The first applicant was born in DATE and lives in GPE . The second applicant was born in DATE and lives in GPE and GPE .

The first applicant came to the GPE in DATE , leaving her CARDINAL sons from a previous relationship , PERSON ( born in DATE ) and PERSON ( born in DATE ) , with her parents . In the GPE she lived with her partner Mr PERSON , who was in paid employment at that time . The first applicant submitted that they had looked into applying for a residence permit allowing her to reside in the GPE with her partner , but that , owing to the unavailability of documents concerning PERSON income , such an application had never actually been made .

NORP In DATE the first applicant 's son PERSON joined his mother and Mr PERSON . Her other son PERSON remained in GPE with his grandparents .

On DATE PERSON , the second applicant , was born to the first applicant and PERSON . The first applicant was invested ipso jure with parental authority ( ouderlijk gezag ) over PERSON . PERSON was recognised ( erkenning ) by PERSON on DATE , as a result of which she obtained NORP nationality .

The first applicant and Mr PERSON split up in DATE . PERSON stayed with her father , who subsequently applied to ORG ( kantonrechter ) seeking to be awarded parental authority over PERSON . ORG granted the application on DATE . The first applicant subsequently appealed to ORG ( arrondissementsrechtbank ) against that decision . ORG requested ORG ( PERSON ) to examine which attribution of parental authority would be in PERSON 's best interests .

On DATE the first applicant applied for a residence permit which would allow her to reside in the GPE , either DATE depending on the outcome of the proceedings concerning parental authority – with her daughter PERSON , or in order to have access to her . She also made an application on behalf of her son PERSON .

ORG found , in its report of DATE , that parental authority should remain with PERSON . In view of the likelihood of the first applicant having to return to GPE , awarding her parental authority over PERSON could lead to a break - off in contact between PERSON and her father and also between PERSON and her paternal grandparents , who were very important to her . It was felt that this would be a traumatic experience for PERSON , who had her roots in the GPE and whose bonding with all the persons concerned had taken place in that country .

In a decision of DATE , ORG nevertheless quashed the decision of ORG and awarded the first applicant parental authority over PERSON . PERSON lodged an appeal on points of law with ORG ( PERSON ) .

On DATE the Deputy Minister of Justice ( Staatssecretaris van Justitie ) rejected the first applicant 's application for a residence permit . The first applicant lodged an objection ( bezwaar ) against this decision . At the hearing on this objection before an official committee ( ambtelijke commissie ) on DATE , it was stated on behalf of the first applicant that she worked ( illegally , as she was not in possession of a residence permit allowing her to do so ) from DATE and that on DATE PERSON stayed either with her father or with her grandparents . PERSON stayed with her mother on DATE .

On DATE the Deputy Minister of ORG dismissed the objection , holding that , even if account was taken of PERSON 's right to reside in the GPE and to be brought up and educated there , the interests of the economic well - being of the country outweighed the interests of the first applicant . Although the first applicant did not claim welfare benefits , she did not pay taxes or social security contributions either , and there were sufficient numbers of nationals of ORG member GPE or aliens residing lawfully in the GPE available to fill the post she was occupying . The general interest also prevailed over PERSON PERSON 's interest in being able to lead his family life with PERSON in the GPE . In this context it was noted that , at the time Mr PERSON started his relationship with the first applicant , the latter had not been entitled to reside in the GPE . He had thus accepted that family life with PERSON might have to be enjoyed elsewhere or in a different manner . It was further noted that PERSON did not make a substantial financial contribution to PERSON 's care and upbringing since he only took care of those expenses on the days PERSON stayed with him and , as he was in receipt of welfare benefits , those costs were borne by public funds .

The first applicant lodged an appeal against this decision with ORG of The Hague , sitting in GPE .

On DATE ORG quashed ORG decision of DATE in the proceedings concerning parental authority and referred the case to ORG ( gerechtshof ) .

ORG of The Hague , sitting in GPE , dismissed the appeal against the refusal to grant the first applicant a residence permit . In its decision of CARDINAL DATE , ORG held that LAW did not oblige national authorities to ensure that PERSON 's parents would not have to choose between leaving PERSON with her father in the GPE or letting her go to GPE with her mother . Both these options were considered to be feasible . According to ORG , the fact that PERSON would have to be without either her father or her mother was , strictly speaking , the result of the parents ' choice to conceive a child at a time when the first applicant was not allowed to reside in the GPE . No further appeal lay against this decision .

On DATE a hearing took place before ORG in the proceedings concerning parental authority , during which an officer of ORG told the court that the ORG 's report of CARDINAL DATE remained pertinent and that it was in PERSON 's best interests for the status quo – with PERSON having parental authority over DATE to be maintained . In its decision of DATE ORG upheld the decision of ORG of DATE awarding parental authority over PERSON to PERSON . ORG accepted that Mr PERSON , supported by PERSON 's grandparents , was sufficiently capable of providing PERSON with the necessary upbringing and care , and that he was indeed doing so in practice . It was of the opinion that the submissions made by the first applicant in support of her argument that PERSON 's interests would be better served if parental authority were awarded to her – even if this meant PERSON living in GPE without contact with her father and grandparents – were of insufficient weight compared to the possibilities the father had to offer and was offering . The first applicant lodged an appeal on points of law against this decision , which was dismissed by ORG on DATE .

Despite having received a letter dated DATE from the local police informing her that she had to leave the GPE within DATE , the first applicant remains in the GPE . She works from DATE . PERSON stays with her at DATE and with her paternal grandparents during DATE . This arrangement is confirmed in a letter dated DATE written by PERSON 's grandparents to the applicants ' legal representative :

“ The access arrangement we have concluded with [ the first applicant ] , the mother of our granddaughter PERSON , is fully satisfactory for all parties . According to the arrangement , PERSON stays with us during DATE . On DATE TIME we take her to her mother and collect her again late on DATE TIME . No disagreement whatsoever has arisen on this point in DATE . We further confirm that DATE visits of our granddaughter to her mother pass off in a very pleasant fashion and that she enjoys telling us about them . In other words , the close contact with her mother has a beneficial effect on our granddaughter . ”

In DATE the first applicant applied for a residence permit allowing her to reside in the GPE with her new NORP partner . In this application the first applicant indicated that PERSON was being brought up partly by her grandparents and partly by her new family . The application was rejected on DATE as the first applicant was not in possession of the required temporary residence permit ( machtiging tot voorlopig verblijf ) . The first applicant did not challenge this decision .

The second son of the first applicant , PERSON , has been living with his mother in the GPE since DATE .

Parental authority comprises the duty and the right of a parent to care for and bring up his or her child ( LAW ( Burgerlijk Wetboek ) ) . The parent invested with parental authority is the child 's statutory representative ( wettelijk vertegenwoordiger ) and administers the child 's possessions ( LAW ) .

At the material time , the admission , residence and expulsion of aliens were regulated by LAW DATE ( Vreemdelingenwet DATE ) . On DATE a new Aliens Act came into force , but this has no bearing on the present case .

NORP The government pursues a restrictive immigration policy due to the population and employment situation in the GPE . Aliens are eligible for admission only on the basis of obligations arising out of international agreements , or if their presence serves an essential national interest , or on compelling humanitarian grounds .

The admission policy for family reunion purposes was laid down in LAW DATE ( Vreemdelingencirculaire DATE ) . These provided that the spouse , the partner , a minor child born of the marriage or relationship and actually belonging to the family unit ( gezin ) , and a minor child born outside the marriage but actually belonging to the family unit could be eligible for family reunion if certain conditions ( relating to public order , accommodation and livelihood ) were met . In the context of family reunion with other family members ( so - called extended family reunion ) , such other members actually belonging to the family unit might also be eligible if they would otherwise suffer disproportionate hardship .

The phrase “ actually belonging to the family unit ” ( feitelijk behoren QUANTITY ) used in GPE law only partly overlaps with the term “ family life ” in LAW . The alien in question must belong to the family unit with which he or she intends to live in the GPE


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

The applicant lived with another man , Mr PERSON , for DATE . During that period the applicant and Mr PERSON ran a joint household , pooling their income and sharing their expenses . The applicant considered that the nature of their relationship reflected their right to respect for their private and family life since , being homosexual , they could not sanction it by marrying because under NORP law only heterosexual couples could marry .

On DATE Mr PERSON died in a road accident . The applicant claimed the social - security allowances for the surviving spouse , arguing that he had cohabited with the deceased for DATE . ORG ( “ LOC ” ) granted the applicant ’s claim in respect of an allowance for death expenses , which amounted to MONEY . However , in a decision of DATE , it refused to grant him a survivor ’s pension on the ground that since he had not been married to PERSON , he could not legally be considered as his surviving spouse for the purposes of section CARDINAL ( CARDINAL ) of ORG . The applicant appealed against that decision , but his appeal was dismissed .

The applicant then appealed to ORG no . CARDINAL . In a judgment of DATE , delivered after a hearing deemed to be inter partes , the court dismissed the appeal . It based its decision on , among other things , the case - law established by a number of judgments of ORG dismissing appeals lodged by heterosexual applicants whose claims for a survivor ’s pension had been dismissed on the ground that they had been able to marry but had freely decided not to . The court held that the case - law in question could be extended to de facto partnerships between homosexuals living together as a married couple in so far as that type of relationship could not be equated with the traditional concept of family and marriage protected by the legislature and LAW . The court also stated that Articles CARDINAL , DATE and DATE of LAW did not guarantee equality of treatment between de facto homosexual partnerships and heterosexual marriages .

The applicant appealed against that judgment to ORG . In a judgment of DATE that court dismissed the appeal and upheld the reasoning of the lower court . ORG added , however , that it was for the legislature and not for the courts to take a decision regarding the extension of survivors’ pensions to stable de facto partnerships , be they heterosexual or not . Accordingly , ORG held that section CARDINAL ( CARDINAL ) of ORG was compatible both with the LAW and the international treaties to which GPE was a party .

Relying on Articles CARDINAL ( principle of non - discrimination ) and CARDINAL ( social , economic and legal protection of the family ) of the LAW , the applicant lodged an application for the protection of fundamental rights ( an amparo appeal ) with ORG . In a decision of DATE , in which it referred to its established case - law , that court dismissed the appeal on the ground that it was ill - founded .

The relevant Articles of the LAW provide :

“ NORP shall be equal before the law and may not be discriminated against in any way on account of birth , race , sex , religion , opinion or any other condition or personal or social circumstance . ”

“ CARDINAL . The ORG authorities shall ensure that the family is afforded social , economic and legal protection .

Under section CARDINAL non - marital relationships between men and women do not entitle the survivor to a survivor ’s pension even where the persons concerned have lived together . Accordingly , the award of a survivor ’s pension is conditional on the existence of a lawful marriage between the deceased and the claimant . Marriage shall be deemed to be “ lawful ” where it has been celebrated in accordance with CARDINAL of the forms established by LAW . The only exception to the above rule is that the surviving partner of an unmarried couple who could not marry each other because there was no divorce before DATE may claim a survivor ’s pension .


Violation of Art. 6-1 (non-enforcement);Pecuniary damage - Government to pay judgment debt;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings

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

NORP In DATE the applicant instituted proceedings in ORG against ORG of ORG ( the Department ) , seeking to recover additional salary for her time - in - service and healthcare benefits .

On DATE ORG ordered the ORG to pay the applicant ORG CARDINAL,CARDINAL in compensation . The judgment was not executed due to the ORG ’s lack of funds .

NORP In DATE the applicant instituted proceedings in ORG against ORG seeking to oblige it to execute the decision of DATE and to receive compensation for moral damage caused by the non - execution of that judgment .

On DATE ORG rejected these claims as being unsubstantiated . It also found that the judgment was not executed due to the lack of funds in the ORG budget .

On DATE ORG upheld that decision .

DATE the applicant unsuccessfully complained to PERSON and ORG of GPE with a view to having supervisory review proceedings initiated in her case .

On DATE the writ of execution was returned to the applicant unenforced due to the lack of funds on the accounts of the education department .

On DATE ORG informed the applicant that there were no grounds for initiating supervisory review proceedings upon her complaints .

On DATE the ORG responsible for the public water supply of ORG ( the “ DPW ” ) instituted proceedings in ORG against Mr PERSON ( “ NORP ” . ) , seeking the payment of UAH MONEY for the water supplied to him and his use of the water mains . On DATE the ORG allowed the ORG ’s claims and ordered V.S.K. to pay the debt . On DATE ORG upheld that decision .

In DATE the ORG “ Sumyteplocomunenergo ” company ( the “ LOC ” ) instituted proceedings in ORG against V.S.K. , seeking the payment of ORG MONEY for his use of heating facilities . On DATE the ORG allowed the ORG ’s claims and ordered V.S.K. to pay the debt . On DATE ORG upheld that decision .

On DATE the ORG instituted proceedings in ORG against the applicant , seeking the payment of UAH CARDINAL for the water supplied to her and for her use of the water mains . On DATE the ORG allowed the ORG ’s claims and ordered the applicant to pay the debt . On DATE ORG upheld that decision .

On DATE the ORG instituted proceedings in ORG against the applicant , seeking the payment of ORG CARDINAL for the use of heating facilities . On DATE the ORG allowed the ORG ’s claims and ordered the applicant to pay the debt . On DATE ORG upheld that decision .

The relevant domestic law is set out in the judgment of ORG v. GPE ( no . MONEY , § § DATE , DATE ) .


The applicant , PERSON , is a NORP national who was born in DATE and lives in ORG . He is represented before the ORG by Mr PERSON and PERSON , lawyers practising in Taganrog .

On DATE , the applicant was arrested and detained on suspicion of having committed a serious breach of customs regulations .

On DATE , he was remanded in pre - trial custody by the decision of an investigative officer approved by ORG .

After CARDINAL extensions of the detention , on DATE , the applicant was released .

On an unspecified date , the applicant lodged an application to ORG seeking a declaration of the unconstitutionality of ORG and CARDINAL of the Code of Criminal Procedure which empowered investigative authorities to arrest suspects without judicial authorisation . The applicant ’s position was that any period of detention longer than TIME should be ordered by a court , as required by LAW .

On DATE , ORG dismissed the applicant ’s case as inadmissible under LAW on ORG . The court agreed that LAW made periods of detention longer than TIME possible only if ordered by a judge . However , the LAW enacted in DATE contained a transitional provision preserving the existing procedure for pre - trial detention pending the updating of the relevant laws . The court noted that despite the fact that over DATE had elapsed since the LAW was passed , the lawmaker had failed to bring the detention procedure in line with the basic law of the country . Nevertheless , the applicant had been affected by this situation for only two and a half years – the period between the enactment of the LAW and the applicant ’s arrest DATE and , for this reason , could not be regarded as a victim of the alleged breach .

On DATE , the applicant filed an application to ORG requesting that criminal proceedings be opened against the investigator who had dealt with his case . It was alleged that the investigator had been aware of the applicant ’s innocence but had abused his authority by initiating an unfounded criminal prosecution .

As no reply was received from ORG , on DATE , the applicant filed a complaint to ORG . The applicant asked that the subordinate prosecutor be punished for negligence .

An official of ORG forwarded the applicant ’s complaint to ORG , whose staff on DATE issued an order refusing the applicant ’s initial complaint about the investigator .

The applicant considered that ORG did not have the right to transmit his complaint to the official complained about and on this ground issued proceedings against ORG . He requested that the decision to transmit be found unlawful and invalidated .

The case was examined and dismissed on DATE by ORG . The court found that ORG had not breached the law by forwarding the complaint , and that it gave a reply on the substance of the applicant ’s allegations .

On appeal , this decision was upheld by ORG on DATE .

According to LAW on ORG of DATE , all applications reaching the court are registered unless they manifestly fall outside the court ’s competence , do not meet formal requirements , are lodged by an improper person or are not accompanied by a fee . The registry of the court may inform an applicant that his or her application is not compatible with the above requirements , but the applicant has the right to insist that a decision to that effect be taken by the court .

According to LAW of the PERSON , a decision as to whether or not an application should be accepted for consideration ( prinyatie obrashcheniya k rassmotreniyu ) is taken by the court ’s plenary . Only those cases which fall within the court ’s jurisdiction , are not inadmissible in accordance with the PERSON , and do not repeat issues previously addressed by the court , are accepted for consideration .

Pursuant to LAW , the court ’s final decision on the substance of a case is called a postanovleniye ( a judgment ) . If a judgment declares a law unconsitutional , the effect of the judgment can not be overcome by a re - enactment of the law .

All other decisions given in the course of constitutional proceedings are called an opredeleniye ( a decision ) .