Violation of Art. 8;No violation of Art. 3;Pecuniary damage - financial award;Non-pecuniary damage - financial award

ORG Mr. PERSON , a NORP citizen born in GPE in DATE , was permanently resident in GPE at the time when he applied to the Commission .

His daughter PERSON , who was born in GPE on DATE , has GPE nationality . She is represented by her guardian , viz . her mother , Mrs. PERSON , who is likewise a GPE national .

ORG After marrying Mrs. PERSON on DATE , Mr. PERSON sought permission to stay in the GPE where he had been for some time already . ORG granted him permission on DATE " for the sole purpose of enabling him to live with his NORP wife " , and then renewed it until DATE .

From DATE Mr. PERSON worked for a self - service shop . On DATE , a work permit was issued to him under PERSON ) Act DATE ( replaced since DATE by ORG ) . This permit was renewed on DATE . From DATE to DATE Mr. PERSON was employed by a cleaning firm .

ORG On DATE , his wife sued for divorce . ORG ( Arrondissementsrechtbank ) granted the divorce on DATE on the ground of the irretrievable breakdown of the marriage , which was dissolved by registration of the decision in ORG of GPE on DATE . By an order of CARDINAL DATE , ORG appointed Mrs. PERSON guardian of her daughter , PERSON , who had been born in the meantime , and appointed the girl ’s father as an auxiliary guardian ( toeziende voogd ) . On DATE , it ordered the latter to pay ORG MONEY DATE as a contribution to the cost of maintaining and educating his daughter .

When PERSON was born , her father and Mrs. PERSON agreed to ensure that the child had frequent , regular contacts with her father . On DATE , they had a notary legalise an agreement between them as to arrangements for these contacts and certify that over DATE Mr. PERSON had seen his daughter CARDINAL times a week for TIME each time .

ORG On DATE , Mr. PERSON made an application for renewal of his residence permit . The head of the GPE police refused the application on DATE , stating that it would be contrary to the public interest to renew the permit , regard being had to the fact that Mr. PERSON had been allowed to remain in the GPE for the sole purpose of living with his NORP wife , which condition was no longer fulfilled on account of the divorce .

By letter of DATE , Mr. PERSON asked the Minister of Justice to review this decision . He pointed out among other things that he needed an " independent " residence permit in order to fulfil his moral and legal obligations as a father . He said he had sufficient means of subsistence and that he was in a position to bear part of the costs of PERSON ’s upbringing and education .

ORG The Minister did not reply within the statutory period of DATE , which under GPE law constituted an implied rejection of the request .

Mr. PERSON consequently appealed , on DATE , to ORG ( Afdeling Rechtspraak ) of the Raad van State . He stated that he could not see how the grant to him of a residence permit could be prejudicial to the national interest , particularly since he was under various legal obligations as a father and he had been able to support himself since DATE by working . At the hearing on DATE , he claimed that the impugned decision infringed LAW ( article LAW on the ground that it prevented him from remaining in contact with his daughter whom he saw regularly CARDINAL times a week .

The PERSON dismissed his appeal on CARDINAL DATE . It recalled in the first place that , under section CARDINAL ) of LAW of DATE ( Vreemdelingenwet - " LAW " ) , renewal of a residence permit could be refused in the public interest . As the Minister of State for ORG had pointed out , Mr. PERSON no longer satisfied the condition upon which the grant of his residence permit depended ; consequently , the refusal appealed against could be justified under section CARDINAL(CARDINAL ) . As for Mr. PERSON ’s obligations to his daughter , the PERSON held that the fulfilment thereof did not serve any vital national interest and that those obligations subsisted independently of his place of residence . It added that CARDINAL meetings DATE were not sufficient to constitute family life within the meaning of LAW article CARDINAL) of the LAW and that the impugned decision would , moreover , not necessarily entail a break in relations between the child and her father , as the latter could remain in contact with his daughter by agreement with his ex - wife .

ORG On DATE , Mr. PERSON was dismissed by his employer with effect from DATE . He was , furthermore , arrested on DATE for the purpose of his deportation . He made an urgent application ( kort geding ) to the presiding judge of ORG , but withdrew it shortly after the execution of the impugned deportation order on DATE ; on DATE , the presiding judge accordingly held that there was no ground on which to give a decision .

In DATE , PERSON and her mother spent DATE with Mr. PERSON and his family in GPE . On DATE , Mr. PERSON applied to ORG in GPE for a DATE residence permit . After an initial refusal he obtained a visa valid for DATE , for the purpose of enabling him to exercise his rights of access . Accordingly , he went to the GPE on DATE where he requested an extension of his visa until the following DATE . His request having been turned down on DATE , he lodged an appeal with the PERSON , accompanied by an urgent application . Hearing the latter application , the President of ORG decided , on DATE , that the applicant should be treated - subject to a condition which is not relevant to this judgment - as if he had been granted a visa valid until DATE .

ORG On DATE , Mr. PERSON remarried Mrs. PERSON in GPE . On DATE , ORG granted him permission ( which he had sought on DATE ) to reside in the GPE " for the purpose of living with his NORP wife and working during that time " .

ORG The GPE authorities pursue a restrictive immigration policy . The authorities , however , permit exceptions prompted , inter alia , by the wish to honour the obligations flowing from the LAW , by the country ’s economic well - being and by humanitarian considerations , including the reuniting of families .

The entry requirements and the grounds on which aliens may be expelled are laid down primarily in the DATE Act and its implementing regulations . In addition to these legal provisions , there is the " Circular on Aliens " ( PERSON ) , which is a body of directives drawn up and published by ORG .

The right to stay is therefore governed in principle by sections CARDINAL of the LAW . A prolonged stay requires the authorisation of the Minister of ORG or a body acting under his control . A refusal to grant an authorisation must be accompanied by a statement of the reasons on which it is based . An appeal lies to the Minister of ORG and then , if need be , to the PERSON . An application is usually granted - normally for one year - only if the individual ’s presence serves an essential national interest or if there are compelling humanitarian grounds .

Foreigners married to a GPE national fall into the latter category ; they may obtain a residence permit " in order to live with their spouse " in the GPE and , if appropriate , " in order to work there during that time " .

ORG This policy , however , has changed over DATE . Foreigners coming to live with their husbands or their wives were initially granted resident status and a conditional residence permit . That status was forfeited if the marriage in respect of which it was granted was dissolved , in which case the foreigner had to leave the country .

In order to enhance the position of foreigners lawfully established in the GPE , the Minister of ORG for ORG felt it necessary to soften the line followed in this respect . Under the terms of the " Vreemdelingencirculaire " ( LAW , paragraph CARDINAL ) , foreigners who had been married for DATE and had lived with their spouses in the GPE for DATE prior to the dissolution of their marriage were enabled to apply for an " independent " residence permit ; the underlying idea was that after that length of time they would have forged sufficient links with the country for it to be unnecessary to make their status subject to conditions .

It was subsequently thought advisable to make further changes in the regulations in favour of this category of foreigner . The requirement of CARDINAL years’ marriage was retained but the requisite period of residence was reduced to DATE . The purpose of this relaxation was to improve the often precarious position of divorced women , particularly those of LOC origin ; it was felt that they ought to be permitted to stay in the GPE with a status independent of that of their former husbands .

This policy was later refined still further , when it was decided that even where the aforementioned conditions were not met , overriding humanitarian considerations might justify the grant to a foreigner of authorisation to remain on GPE territory on an independent residence permit , for example if he had close links with the GPE or with a person resident there . According to the Government , this was an exceptional measure that was rarely applied .

ORG As far as the GPE case - law on aliens is concerned , a distinction must be drawn between the courts hearing urgent applications - the civil courts up to and including ORG at last instance - and the court conducting a full examination of the merits of the case , namely ORG of the Raad van State .

While ORG in its decisions in other fields , such as the right of access , had already favoured a fairly broad conception of " family life " ( see in particular the leading case decided on CARDINAL DATE , in PERSON , DATE , no . CARDINAL ) , ORG of the Raad van State had tended to take a narrower view . Its decision in the instant case is fully in line with that tradition . Several of its most recent decisions , however , suggest that it is going to adopt the principle laid down in a ORG judgment of CARDINAL DATE concerning aliens , from which it emerges that cohabitation is not a sine qua non of " family life " for the purposes of LAW article CARDINAL) of ORG ( Nederlandse Jurisprudentie , DATE , no . CARDINAL ) .

ORG recently had before it a case similar to the present one . A court of appeal , hearing an urgent application , had held that where a foreigner threatened with expulsion pleads the right to respect for his own and his child ’s family life , the onus is on him to show that the minor ’s interest is sufficiently important to outweigh the ORG ’s interest . On appeal , ORG quashed the decision on DATE ( PERSON , DATE , no . CARDINAL ) . It fell to be decided whether " family life " existed between the alien and his child , and ORG began by emphasising that the child was a legitimate one . It went on :

" For the duration of the marriage , there existed between PERSON and his son a relationship that amounted to family life within the meaning of LAW article CARDINAL) of the ... Convention .... Neither the cessation of cohabitation nor the divorce ended that relationship . It must also be noted that , as PERSON claimed and as ORG apparently regarded as having been established , PERSON and his son remained in close touch after the cessation of cohabitation . "

The decision was quashed on the ground , inter alia , that the appeal court had lost sight of the fact that :

" if , in such a case , the expulsion of a foreigner must be regarded as an interference with his right to respect for family life within the meaning of LAW article CARDINAL) ... , the sole means of determining whether that interference is justified or may be justified is to weigh , in the light of the facts of the case and the policy directives ( beleidsregels ) in force , the seriousness of the interference with the right of the foreigner concerned and his minor child to respect for their family life against the interests served by those policy directives , and in so doing one may , in order to assess the seriousness of the interference , have regard notably to the length of time during which those concerned have lived together , to the nature and degree of intensity of the contacts maintained after cohabitation came to an end and to whether it is the parent or the child who is threatened with expulsion " .


Alvina Gyulumyan;Egbert Myjer;Ineta Ziemele;Josep Casadevall;Kristina Pardalos;Luis López Guerra;Mihai Poalelungi

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

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

NORP The applicant worked as a legal advisor to a private company , T. On DATE his employer terminated his work contract on disciplinary grounds . Before being signed by the general director , the dismissal decision was also endorsed by another legal advisor , namely ORG

NORP The applicant lodged a judicial complaint against the dismissal decision , which he eventually won . During these proceedings , his former employer was represented by ORG

When the applicant found out that ORG had acquired a criminal conviction in DATE for taking bribes while she was working as a public servant , he started bringing up this issue on every available occasion , mainly by making handwritten additions to various documents , such as his employer ’s register of visitors , copies of the decision to terminate his employment contract , and so on , in which he wrote “ no convicted persons ” , “ convicted of taking bribes ” , “ practising corruption ” , “ unworthy convict ” and other similar remarks . In the various submissions made by him in the proceedings against his employer , he constantly referred to ORG in terms which included “ notorious accused ” , “ notorious criminal ” , “ convicted of taking bribes ” , “ deported by citizens for corruption ” , “ not knowing anything ” , “ citizen of doubtful morality ” .

On DATE , ORG lodged a criminal complaint against the applicant for defamation , also submitting a civil claim for compensation for non - pecuniary damage . The case was referred to ORG .

NORP In his defence , the applicant argued that his employment contract had been unlawfully terminated by the plaintiff and that he had been forced to go to trial against a person not holding a law degree . He further submitted that he had a legitimate interest in referring to ORG in this way and that in any event he could prove that the statements he made were true .

In a first - instance judgment of DATE , ORG found the applicant guilty of defamation and fined him CARDINAL NORP lei ( ROL ) , MONEY ( ORG ) . He was also ordered to pay ORG ROL CARDINAL,CARDINAL,CARDINAL , approximately ORG CARDINAL , in compensation for non - pecuniary damage . The district court indicated that it was applying the minimum sentence for defamation to the applicant , considering that this sentence represented a sufficient warning for him to cease making such remarks about the plaintiff .

NORP The district court found that the applicant had transferred the work litigation to a personal level and attempted to discredit PERSON on every available occasion . It looked at the various documents submitted by the parties , in which he made the references to ORG It also noted that in the proceedings before it the applicant continued to use the same expressions and words about ORG

As regards the applicant ’s claims that he had provided proof that the statements were true , the district court noted that the applicant had failed to show what was the legitimate interest in obsessively repeating the statements , his only purpose being to cause distress to M.N every time they met : at her workplace , in court , in the street and even when she was with her family .

The applicant lodged an appeal , arguing that his statements were true and that ORG by her own conduct had subjected herself to public contempt . The appeal was assigned to ORG . In a hearing of DATE , the applicant raised a constitutional challenge to ORG CARDINAL and CARDINAL of LAW ( ORG ) . The county court postponed its ruling on whether to refer the case to ORG to DATE .

ORG , in a decision of DATE ( drafted on DATE ) dismissed his appeal . The county court concluded that the facts were correctly determined by the district court and that his argument that his statements were true was not valid , taking into account that he failed to show a legitimate interest in making those statements . It also took note that the applicant continued to make the same remarks about ORG even when in court for the review of the criminal case against him .

Article CARDINAL of the ORG , as in force at the time of events , was worded as follows :

“ Anyone who makes any statement or allegation in public , by any means , concerning a particular person , which if true would render that person liable to a criminal , administrative or disciplinary penalty or expose them to public contempt shall be liable to shall be imprisonment for DATE or to the payment of a fine .... ”

Article CARDINAL of the ORG read as follows :

“ Evidence of the truth of such a statement or allegation is admissible where the statement or allegation was made in order to protect a legitimate interest . Where the truth of the statement or allegation is proved , no offence of insult or defamation will have been committed . ”

The Constitutional Court , in a decision of DATE , dismissed a plea of unconstitutionality of ORG CARDINAL - CARDINAL of the ORG . In so ruling , it decided that the possibility of providing evidence that the impugned statements or allegations were true represented a special circumstance for removing criminal liability . It concluded that subjecting this test of truth to the condition that the statements or allegations were made with a legitimate interest was perfectly consistent with LAW , which provided in its LAW that freedom of expression shall not cause prejudice to the dignity , honour and private life of a person .

Section CARDINAL § CARDINAL of Law no CARDINAL/CARDINAL on ORG ( “ LAW ” ) provides that decisions delivered by ORG are generally binding and effective for the future .


The applicant , Mr PERSON , is a citizen of GPE and GPE and GPE , who was born in DATE and lives in GPE , GPE . He is represented before the ORG by Mr PERSON , a lawyer practising in GPE , GPE and GPE . The respondent Government are represented by PERSON , Agent , and ORG , Deputy Agent .

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

On DATE ORG ( one of the legal predecessors of the armed forces of GPE ) requisitioned CARDINAL empty gas cylinders from the applicant .

Since the cylinders were neither returned to him nor did he obtain compensation for the loss , on DATE the applicant initiated civil proceedings before ORG in GPE seeking pecuniary damages together with default interest and legal costs from ORG GPE .

On DATE ORG in GPE granted the applicant ’s claim for damages in the amount of CARDINAL NORP markas ( MONEY ) , his claim for default interest and his claim for legal costs .

On DATE ORG upheld the award of damages , amended the award of legal costs and rejected the claim for default interest .

On DATE ORG in GPE decided not to enforce the final judgment indicated above pursuant to ORG .

On DATE ORG upheld the first instance decision of DATE .

The applicant did not appeal to ORG .

The LAW entered into force on DATE .

ORG hereinafter “ the Constitutional Court ” ) , which was set up pursuant to LAW , is composed of CARDINAL members : CARDINAL members from ORG ) , CARDINAL from PERSON ( the other Entity ) and CARDINAL non - citizens of GPE or of neighbouring GPE , selected by the President of ORG .

The following are the relevant provisions of the LAW :


Remainder inadmissible;No violation of Art. 2 (procedural aspect);Violation of Art. 2 (substantive aspect);Pecuniary damage - award;Non-pecuniary damage - award

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

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

The applicant stated that the residents of her block of flats were embroiled in a conflict with a group of teenagers who frequently gathered in front of the building to drink alcohol , litter the yard and make noise until TIME .

On DATE several residents , including the applicant and her partner PERSON . , tried to disperse the teenagers . A quarrel followed . CARDINAL of the teenagers swore at them . PERSON retorted that “ youngsters like these should be killed ” . The teenagers ran immediately to the nearby police station where they complained that PERSON . had threatened them with a gun and had fired a shot at them .

TIME several police officers came running to the spot and required that PERSON . surrender his gun . They were drunk . PERSON denied having a gun . The applicant told him to go home and he left . The policemen did not attempt to stop him .

After a while the police officers decided to arrest PERSON . and rang his doorbell . PERSON refused to open it . The neighbourhood police officer ( участковый ) Mr T. was determined to get into the apartment through the balcony and called the fire brigade , which brought an extension ladder .

Mr T. and another police officer , PERSON , climbed the ladder and broke the balcony window . The applicant heard two shots . She believed that Mr T. had fired the first shot at PERSON . and then fired in the air . When she entered the flat she saw that PERSON . was dead .

At TIME on DATE the neighbourhood police officer Mr T. heard a gunshot and saw several teenagers running towards him . They said that a man had just fired a shot at them and pointed at PERSON . He saw PERSON . give something to the applicant , who then entered the building . He ran after her and made her come back . At that time other police officers arrived on the scene .

Mr Sh . behaved aggressively , in particular brandishing a shovel at the police officers , and Mr T. thought that he was drunk . He ordered Mr PERSON . to surrender his gun . PERSON denied having any weapon . Mr T. wanted to search him but was prevented from doing so by other residents of the block of flats . PERSON . took advantage of the situation and escaped to his flat . He locked the door and refused to let PERSON in . PERSON asked the applicant to open the door or give him the key , but she refused .

Mr T. asked CARDINAL of the police officers to watch the door . He then called the police officer on duty and asked for instructions . The police officer instructed him to force the door open and arrest Mr. PERSON . As he was unable to force the door open , Mr T. decided to get into the flat through the balcony and asked the officer on duty to call the fire brigade . At that moment a patrol team arrived at the scene .

Once the fire brigade had arrived , PERSON and a police patrol officer Mr PERSON climbed the extension fire ladder . PERSON attempted to prevent them from entering the balcony . He threatened to kill them and brandished a gun - like object . Mr T. ordered PERSON . to lay down his weapon , warned him that he would shoot and fired in the air . PERSON hit PERSON on the head with the heavy metal object he was holding . PERSON , who was standing behind Mr T. on the ladder , saved him from falling from the third floor . When PERSON . attempted to hit PERSON a second time , PERSON at PERSON . , fatally wounding him . The police officers carried PERSON . into the bedroom and immediately called an ambulance . The doctors certified Mr PERSON . dead and examined Mr T.

ORG of LOC conducted an internal inquiry into the incident . Having inspected the scene of the incident and having questioned the police officers involved , it established the following facts :

- Mr T. and other police officers believed that PERSON . was armed as they had heard a gunshot and witnesses had stated that he had fired at them ;

- Mr Sh . had been aggressive and apparently drunk ;

- the residents of the block of flats prevented Mr T. from searching Mr Sh . and , by retaining the police officers , gave him an opportunity to escape to his flat ;

- Mr T. called the police station of LOC for instructions . The police officer on duty , Major NORP , told him to call the Biysk police station ;

- Mr T. called the Biysk police station . The police officer on duty , Major P. , ordered him to force the door open and arrest PERSON . Mr T. explained to PERSON that he would be unable to force the door open as he did not have the requisite equipment . He further stated that it would be possible to access the flat through the balcony . Major PERSON called a fire brigade ;

- After Mr T. and PERSON had climbed up an extension fire ladder , PERSON . barred their access to the balcony and brandished a gun - like object at them ;

- Mr T. ordered PERSON . to put down his weapon and fired a warning shot in the air ;

- Mr Sh . hit PERSON on the head and nearly threw him down from the third floor . After PERSON . had attempted to hit PERSON a second time , Mr T. fired at him ;

- The police officers called an ambulance . The ambulance doctors established that PERSON . was dead and that PERSON had concussion .

In his report of DATE an acting head of ORG of LOC concluded that PERSON had acted in compliance with the rules governing the conduct of the police . The use of weapon had been justified by the circumstances and lawful in accordance with section CARDINAL ( CARDINAL)(CARDINAL ) of LAW . On the other hand , he found that the casualty had occurred as a result of negligence on the part of the officers on duty , Major NORP and PERSON , who had not recorded the information received from PERSON , had not informed their superiors about the on - going incident and had not sent reinforcements to PERSON He ordered that Major NORP be demoted and Major PERSON be reprimanded . He further reprimanded the head of the police station of LOC and the head of the NORP police station for unsatisfactory training and poor discipline of their subordinate officers .

On DATE the prosecutor 's office of GPE of Biysk opened criminal proceedings in respect of PERSON 's resistance to the police .

On DATE the prosecutor 's office inspected the flat and seized a metal pestle stained with blood . No gun was found in the flat .

On DATE the case was transferred to the prosecutor 's office of GPE . The prosecutor 's office inspected the flat anew and seized a cartridge case .

On DATE the experts performed an autopsy on PERSON body . They noted a gunshot wound to his chest and several bruises and abrasions to his body and head . The experts described PERSON 's position at the moment of the shot and the trajectory of the bullet . They concluded that the wound had been fatal . They further stated that it was highly probable that the bruises and abrasions on PERSON face had been the result of his falling and hitting a hard object , while the bruises on his wrists , right arm , chest and right buttock had been caused as a result of his being gripped and dragged . All injuries had been inflicted shortly before the death , most likely while he was dying . The level of alcohol in PERSON . 's blood and urine showed that he had been moderately intoxicated .

On DATE an expert examined Mr T. 's medical record . He noted that on DATE PERSON had been taken to hospital , where he had remained until DATE . He had been diagnosed with an injury to his head and concussion . The expert concluded that the injury could have been received on DATE . He also noted that there was no indication of alcohol intoxication in Mr T. 's medical record .

On DATE experts carried out blood group tests . The tests revealed that the blood on the pestle could have been PERSON . It could not have been PERSON .

On DATE a ballistic examination was performed .

The prosecutor questioned Mr T. and the applicant , who gave their versions of the incident . CARDINAL of the teenagers was also questioned . She testified that PERSON . had been in possession of a gun and had fired at her and her friends .

On DATE the prosecutor 's office of LOC discontinued the criminal proceedings , those against PERSON . because he was dead , and those against Mr T. for the absence of corpus delicti in his actions .

On DATE the decision was annulled by a supervising prosecutor , who transferred the case to the prosecutor 's office of Biysk and ordered an additional inquiry .

In the course of the additional inquiry the prosecutor questioned police officer Mr PERSON and other police officers who had participated in the incident of CARDINAL DATE . They confirmed PERSON testimony .

NORP The teenagers testified unanimously that PERSON . had threatened them with a gun and had fired at them . They also stated that PERSON . had quarrelled with the police officers and had brandished a shovel at them .

The residents of the applicant 's block of flats testified that PERSON . had not had any weapon and had not fired at the teenagers . The policemen who had been called by the teenagers had been drunk and had behaved rudely . When PERSON . had expressed his intention to leave , the policemen had not tried to stop him . However , subsequently they had decided to enter his flat through the balcony and arrest him . Although all the residents had assured them that PERSON . did not present any danger and had urged them to postpone the inquiry into the incident until TIME , the police officers persisted in their attempt to arrest PERSON . immediately . In the witnesses ' opinion climbing onto the balcony had been inopportune and unnecessary . They had all heard the police officer fire CARDINAL shots . Some of them stated that the first shot had been aimed at PERSON . and the second in the air .

One of the applicant 's neighbours , PERSON , stated that on DATE he had been in his flat . He had heard a gunshot and looked out of the window . He had seen a man chasing a group of teenagers . A police officer had appeared and tried to arrest them . However , several women had prevented the police officer from approaching the man who had escaped to his flat . He had then seen QUANTITY police officers climbing an extension ladder and attempting to access the balcony of the man 's flat . He had heard one of the policemen shout a warning , fire in the air and , several moments later , fire a second shot . The police officer had then accessed the balcony . PERSON was sure that the first shot had been fired in the air but he could not tell what the direction of the second shot had been . He stated firmly , however , that both shots had been fired while the police officer was still on the ladder and not yet on the balcony .

The prosecutor 's office also questioned Major NORP and PERSON , who had been on duty on DATE and had given instructions to PERSON on the telephone . They denied giving any orders to PERSON They had had the impression that PERSON was strongly convinced that PERSON . was armed . They had offered to send reinforcements , but Mr T. had declined . Mr T. had asked for permission to enter the flat through the balcony , and that permission had been given to him .

The prosecutor studied the ambulance records . Mr T. had been examined by the ambulance doctors who had been called to the scene on DATE . The records did not contain any indication that he had been intoxicated .

Finally , the prosecutor questioned a ballistic expert who described the bullet trajectory . In particular , she stated that the bullet had gone upwards then ricocheted to the right and back . She also affirmed that a forensic simulation of the incident on the balcony would be inconclusive . It would be impossible to simulate identically the conditions in which the shooting had occurred , for the following reasons : firstly , blank bullets had a different trajectory as compared with live bullets ; secondly , it would be necessary to simulate the position of the person who had fired the shot to within QUANTITY , otherwise the bullet would ricochet differently .

On DATE the prosecutor 's office of Biysk discontinued the criminal proceedings for lack of corpus delicti in Mr T. 's actions . It found that Mr T. had used his weapon in lawful self - defence from an attack by PERSON . His actions had been in conformity with LAW .

On DATE the decision was annulled by a supervising prosecutor who ordered an additional inquiry .

On DATE the prosecutor 's office of Biysk discontinued the criminal proceedings for the same reasons as before . On DATE the supervising prosecutor ordered that the criminal proceedings be resumed . The case was transferred to the prosecutor 's office of LOC .

On DATE the prosecutor 's office of LOC reconsidered the previous decision to discontinue the criminal proceedings against PERSON . It found that the proceedings should have been discontinued on the ground of lack of corpus delicti in his actions rather than on the ground of his death . There was no evidence that PERSON . had been armed , let alone that he had fired at the teenagers . It followed from the witness statements that he had not offered any resistance to the police officers who had arrived at the scene and that the police officers had not attempted to stop him from leaving . After he had locked himself in his flat he could no longer disturb public order , so PERSON and the other police officers ' attempts to enter his flat through the door or the balcony and arrest him had been unlawful and unjustified . By resisting those attempts PERSON . had been defending his constitutional right to respect for the privacy of his home and his liberty . Mr PERSON . had been found in his underwear , which showed that he had been resting when PERSON had tried to access his balcony . Mr T. 's statement that PERSON . had hit him with a pestle was open to doubt as the pestle had been found in the bedroom rather than on the balcony . Moreover , the expert examination had revealed that the blood on the pestle had been PERSON . Accordingly , PERSON 's actions had not constituted any administrative or criminal offence . Mr T. had abused his office and had unlawfully and unjustifiably used his weapon against Mr Sh .

On DATE the prosecutor 's office of GPE resumed the investigation against Mr T.

On DATE the applicant was granted victim status and joined the proceedings as a civil party .

On DATE Mr T. was formally charged with murder , abuse of office associated with the use of violence or entailing serious consequences , and breach of the inviolability of the home , offences under Articles CARDINAL § CARDINAL , CARDINAL § CARDINAL and QUANTITY of LAW .

On DATE the prosecutor 's office of LOC prepared a bill of indictment . It analysed the collected evidence and concluded that the use of lethal force against PERSON . had not been justified by the circumstances . It found that after receiving the report that PERSON . had fired a shot at the teenagers Mr T. should have verified that information by questioning eyewitnesses to the incident and inspecting the area in search of a cartridge case . He had failed to search the area , however . The eyewitnesses had affirmed that PERSON . did not have any weapon and no weapon had subsequently been found in his flat . In those circumstances , Mr T. could not have had a reasonable suspicion that Mr PERSON . had committed criminal or administrative offences . Moreover , after he had locked himself in his flat he could no longer present any danger to the public . There had therefore been no reason to arrest him . In any event , before proceeding with the arrest , PERSON should have contacted his superior to ask for detailed instructions . He had not done so . Finally , PERSON had had no legal grounds for using his weapon against PERSON . Although PERSON . had indeed showed resistance , he had acted lawfully to protect his legitimate interests , namely , the privacy of his home and his liberty . By attempting to enter PERSON 's flat through the balcony and by shooting him , PERSON had abused his office , had trespassed on PERSON 's home and had committed murder . He had committed criminal offences punishable by ORG CARDINAL § CARDINAL , CARDINAL § CARDINAL and CARDINAL § CARDINAL of LAW . The prosecutor also examined the origin of the bruises and abrasions on Mr Sh . 's face and body . Referring to the expert opinion , he concluded that some of the injuries had been the result of PERSON 's falling on the floor after being shot , while the remaining ones had been inadvertently caused when he had been carried to the bedroom by PERSON and another police officer .

On DATE Mr T. was committed for trial before ORG .

ORG refused to admit the expert opinions of DATE in evidence , as they had been made in the context of criminal proceedings against PERSON . The court commissioned additional expert opinions . The experts conducted their examination and submitted their report in DATE confirming the conclusions drawn by the experts in DATE .

During the hearing the accused and the witnesses confirmed their previous statements . The applicant was present at the hearings and made oral submissions to the court .

On DATE ORG acquitted PERSON of all charges . The court was convinced by the teenagers ' and the police officers ' testimony and PERSON statements that Mr Sh . had indeed possessed a gun and had used it , and that he had offered resistance to the police officers who were trying to search him and stop him from escaping to his flat . Although the gun had never been found , the court surmised that Mr Sh . could have thrown it away after he had left the scene . As the prosecution had not searched the surroundings , such a possibility could not be excluded . The court gave the accused the benefit of the doubt and assumed that PERSON . had been armed . More importantly , after questioning the teenagers Mr T. had formed the conviction that PERSON . had been in possession of a weapon and had been a danger to the public . In those circumstances , his decision to arrest Mr PERSON . immediately had been reasonable and justified . As PERSON . had refused to let PERSON in , the applicant had refused to give the key to the police officers and it had been impossible to force the door open , PERSON had taken a correct and lawful decision to climb up onto the balcony . That decision had been approved by the duty officer of LOC of PERSON and the duty officer at ORG police station .

The court further found that the use of lethal force had been necessary in the circumstances as PERSON . had offered resistance and put Mr T. 's life in danger . The court established that after PERSON had climbed up the extension fire ladder onto the balcony on the third floor PERSON . had barred his access to the balcony and attempted to throw him down . In accordance with the rules governing the conduct of policemen , PERSON had fired a warning shot . Given that PERSON . had attempted to push him down again , PERSON had fired at him . The court found that PERSON life had been in peril and that he had acted in reasonable self - defence and in compliance with LAW . The court finally noted that an internal inquiry by ORG of LOC had concluded that PERSON had been sober . The court refused to hear a civil claim by the applicant .

The prosecutor appealed to ORG . The applicant also lodged an appeal , but ORG refused to hear it , finding that the applicant did not have victim status .

On DATE ORG examined the prosecutor 's appeal and dismissed it . It endorsed the reasoning of the trial court and upheld the acquittal .

Murder is punishable by DATE imprisonment ( Article CARDINAL § CARDINAL of LAW ) .

Abuse of office associated with the use of violence or entailing serious consequences carries a punishment of DATE imprisonment ( Article CARDINAL § CARDINAL of LAW ) .

Breach of the inviolability of the home , that is , unlawful entry into a home against the will of its occupants , associated with abuse of office , is punishable with a fine , a prohibition on occupying certain positions , or DATE imprisonment ( LAW of LAW ) .

Anyone who has caused damage to an attacker when acting in legitimate defence , that is , in self - defence or in defence of another person or the public interest , is exempted from criminal liability provided that he has not exceeded the bounds of legitimate defence . Anyone , irrespective of his or her professional or other special training or position , is entitled to exercise legitimate defence . A person is entitled to exercise legitimate defence even in situations where it is possible to avoid the dangerous attack or ask for help from other persons or authorities . The bounds of legitimate defence are exceeded if a person deliberately commits actions that are clearly disproportionate to the nature and degree of dangerousness of the attack ( Article DATE ) .

Anyone who has caused damage to a perpetrator of a criminal offence when arresting that person for the purpose of bringing him or her before the competent authorities or preventing him or her from committing a further criminal offence is exempted from criminal liability , provided that it was impossible to arrest the offender by other means and the force used did not exceed what was necessary in the circumstances . The force used may not be considered necessary if it is clearly disproportionate to the nature and degree of dangerousness of the criminal offence committed and the circumstances in which the arrest is effected , or if the damage caused is clearly excessive and unwarranted by the circumstances . Criminal liability arises only if such damage has been deliberately caused ( LAW ) .

LAW ( no . CARDINAL-I of DATE with further amendments ) provides that the duties of the police are , among others , the prevention and suppression of criminal and administrative offences and the protection of public order and public safety ( section CARDINAL ) .

Section CARDINAL of LAW provides that when discharging their duties the police may , in particular :

( CARDINAL ) search citizens and their belongings if there are sufficient reasons to believe that they possess weapons , ammunition , explosives or drugs ;

( CARDINAL ) arrest persons suspected of a criminal offence or persons who have been remanded in custody by a judicial order ;

( CARDINAL ) enter property or land belonging to citizens or companies and search it in pursuit of a person suspected of a criminal offence or if there are sufficient grounds to believe that a criminal offence has been or is being committed there or an accident has happened there , or in order to protect public order and the personal security of citizens in cases of natural or anthropogenic disaster , or epidemic , epizootic or public disorder . A prosecutor must be informed within TIME of any entry into private LOC or land performed against the will of the owner ;

( CARDINAL ) cordon off , following a decision by the head or a deputy head of the relevant police station , a specific area for the purpose , inter alia , of catching a person suspected of a criminal offence ;

( CARDINAL ) temporarily limit or bar access of vehicles and pedestrians to a specific area , or require them to leave a specific area for the purpose of protecting citizens ' life , health and property or conducting a search or investigative measures ( LAW ) .

The police may use physical force , special equipment or a weapon only in the circumstances specified in LAW and in accordance with the rules prescribed by that LAW . Police officers must undergo specific training and be periodically tested for their fitness to act in conditions requiring use of physical force , special equipment or a weapon ( section CARDINAL(CARDINAL ) and ( CARDINAL ) )

NORP Before using physical force , special equipment or a weapon the police officer must :

- warn of his intention to use physical force , special equipment or a weapon and give the person concerned sufficient time to comply with his order , except in cases where the delay in using physical force , special equipment or a weapon creates an immediate danger for the life and health of citizens and police officers , is likely to cause other serious consequences or where the warning is impossible or impracticable in the circumstances ;

- endeavour to minimise the damage caused by the use of physical force , special equipment or a weapon , to the extent possible depending on the nature and seriousness of the offence , dangerousness of the person who has committed it and degree of resistance offered ;

- ensure that anyone who has been injured as a result of use of physical force , special equipment or a weapon receives first aid and that their relatives are informed without delay ;

- inform a prosecutor of any use of physical force , special equipment or a weapon involving injuries or death ( section CARDINAL(CARDINAL ) ) .

Abuse of the power to use physical force , special equipment or a weapon is punishable by law ( section CARDINAL(CARDINAL ) ) .

Police officers may use physical force , including martial arts , to stop a criminal or administrative offence being committed , arrest persons who have committed a criminal or administrative offence or overcome resistance to a lawful order , if non - violent methods are insufficient to ensure discharge of the police duties ( section CARDINAL ) .

Special equipment ( truncheons , handcuffs , tear gas , electroshock devices , equipment for destroying barriers , etc . ) may be used , inter alia , to overcome a person 's resistance to the police , arrest a person caught in the act of committing a crime against life , health or property and attempting to escape , or a person who is reasonably suspected of intending to offer armed resistance to the police ( section CARDINAL ) .

Police officers may use weapons , inter alia , to repel an attack on a police officer if his life and health are in danger ( section CARDINAL(CARDINAL)(CARDINAL ) ) or to arrest a person caught in the act of committing a serious crime against life , health or property and attempting to escape or a person offering armed resistance ( section CARDINAL(CARDINAL)(CARDINAL ) ) . The head of the relevant police station must be informed , within TIME , of any use of a weapon ( section CARDINAL(CARDINAL ) ) . It is prohibited to use weapons which may cause unnecessarily serious injuries or involve unjustifiably high risks ( section CARDINAL(CARDINAL ) ) .

A police officer may pull out his weapon and prepare it for use if he believes that circumstances referred to in section CARDINAL may arise in the situation . If the arrestee attempts to come closer to the armed police officer than the latter allows or attempts to touch his weapon , the police officer may use his weapon in accordance with section CARDINAL ) ( section CARDINAL ) .

Police officers are not liable for any physical , pecuniary or non - pecuniary damage caused to the offender as a result of the use , in accordance with this LAW , of physical force , special equipment or a weapon if that damage is proportionate to the resistance offered ( section CARDINAL(CARDINAL ) ) .

The provisions of LAW concerning exemption from criminal liability for damage caused , in particular , in legitimate defence , when arresting a person who has committed a criminal offence or in pursuance of a lawful order are applicable to police officers ( section CARDINAL ) .

The Instruction on duties and responsibilities of a neighbourhood police officer , adopted by ORG on DATE ( Order no . CARDINAL ) , provides that a neighbourhood police officer ( участковый ) is a representative of a town or district police office in a neighbourhood . His duties include , inter alia , the protection of the personal safety and property of citizens , the protection of public order and public safety and the prevention and suppression of criminal and administrative offences within the neighbourhood for which he is responsible ( paragraphs CARDINAL and CARDINAL ) .

DATE . If a neighbourhood police officer receives information about a criminal or administrative offence or other events endangering personal or public safety he must immediately inform the police officer on duty at the relevant police station and take the measures required by law . In particular , he must take measures to guard the crime scene , find witnesses , administer first aid to victims , find and arrest the suspected offender , and find and seize stolen property , the instruments of the crime and other material evidence ( paragraph CARDINAL ) .

A neighbourhood police officer may order that citizens and officials cease committing a criminal or administrative offence or any other activity hindering the police 's lawful actions ( paragraph CARDINAL ) . In cases specified by law he may arrest and search a person or his / her belongings and may also seize weapons and other objects and documents found during the search ( paragraph CARDINAL ) . A neighbourhood police officer may enter residential or other LOC and land belonging to citizens or companies and search them in pursuit of a person suspected of having committed a criminal offence or if there are sufficient grounds to believe that a criminal offence has been or is being committed there or an accident has happened there , or in order to protect public order and the personal security of citizens in cases of natural or anthropogenic disaster , or epidemic , epizootic or public disorder . A prosecutor must be informed within TIME of any entry into private LOC or land performed against the will of the owner ( paragraph CARDINAL ) . A neighbourhood police officer may arrest and bring to a police station a person suspected of having committed a criminal offence or other persons in the cases prescribed by law ( paragraph CARDINAL ) . He may carry a weapon and other special equipment and use them in the cases specified in LAW ( paragraphs CARDINAL and CARDINAL ) .

The Instruction on cooperation between interior departments and services in investigation of crimes , adopted by ORG on DATE ( Order no . CARDINAL ) , provides that if a police officer on duty at a police station receives information about a criminal offence he must send a quick reaction team and a patrol team to guard the crime scene , to cut off the offenders ' escape routes or block off their hiding places , to arrest the offenders and to take witness evidence . He must also send an investigation team supplied with the requisite communication facilities , investigative equipment and vehicles . The duty police officer must keep in contact with the police officers at the scene in order to receive up - to - date information about the situation and make decisions about additional measures , and to inform the police officers at the scene of any relevant data contained in the police databases . The duty police officer must immediately inform his superior and the officer on duty at the higher - level police station of the criminal offence and then keep them informed of the measures taken ( paragraph CARDINAL ) .


No violation of Article 2 - Right to life (Substantive aspect);Violation of Article 2 - Right to life (Procedural aspect)

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

The applicants are :

( CARDINAL ) ORG , who was born in DATE ;

( CARDINAL ) PERSON , who was born in DATE ;

( CARDINAL ) Mr PERSON , who was born in DATE ; and

( CARDINAL) Mr PERSON , who was born in DATE .

The second applicant lives in the village of ORG , in GPE . The other applicants live in the village of PERSON , ORG , in GPE .

The first applicant is the mother of the sixth , seventh and eighth applicants and of Mr PERSON , who was born in DATE . PERSON was married to the second applicant ; they are the parents of the third , fourth and fifth applicants .

The applicants did not witness the disappearance of PERSON . The account below is based on statements by third parties submitted by the applicants .

On DATE PERSON was visiting his aunt , PERSON . , in PERSON . At TIME , while driving a car in the direction of his home village , he was stopped by a group of armed men at a NORP military checkpoint near the village of PERSON . The servicemen ordered PERSON to get out of the car and then put him into CARDINAL of several armoured personnel carriers ( “ APCs ” ) parked next to the checkpoint . That ORG ’s registration number was covered with mud so that CARDINAL figures , “ CARDINAL ” and “ CARDINAL ” , out of CARDINAL were visible . Then all the APCs drove off in the direction of ORG .

Meanwhile a rumour spread that NORP military units were carrying out a special operation on the outskirts of ORG . PERSON . was concerned for her nephew ’s safety and drove towards PERSON to meet him . Near the PERSON checkpoint she encountered a group of women who had witnessed PERSON abduction and told her about it . PERSON . drove to PERSON in pursuit of the APCs , which she eventually overtook and followed to the secured courtyard of the military commander ’s office of LOC of Grozny ( “ the PERSON military commander ’s office ” ) .

DATE the applicants visited the PERSON military commander ’s office and enquired about PERSON whereabouts but received no information .

NORP DATE the applicants were told by unknown persons that not all of the APCs had arrived at the PERSON military commander ’s office on DATE as CARDINAL of them had left the group and driven in the direction of LOC .

The Government stated that on DATE unidentified persons in camouflage uniforms had kidnapped PERSON in the village of PERSON in LOC of PERSON in GPE .

On DATE the second applicant wrote to FAC ( “ LOC ) , an NGO based in GPE , informing it that her husband had been arrested by NORP servicemen and asking for its help in searching for him . On the same date lawyers from PERSON wrote to the PERSON prosecutor ’s office ( “ the city prosecutor ’s office ” ) requesting that criminal proceedings be instituted in respect of PERSON disappearance .

On DATE the city prosecutor ’s office instituted an investigation into ORG disappearance under LAW ( aggravated kidnapping ) . The case file was assigned number DATE .

On DATE the city prosecutor ’s office granted the first applicant victim status in the case .

On DATE the city prosecutor ’s office suspended the investigation on the grounds that it had not been possible to identify those responsible for the crime .

On DATE the first applicant sent a letter to the prosecutor ’s office of GPE with a copy to the Special Envoy of the NORP President in GPE . She said that her son had been arrested by NORP servicemen in the course of a “ sweeping ” operation in the village of PERSON and taken away in an ORG . She requested that the crime be investigated .

On DATE ORG forwarded the first applicant ’s complaint to the military prosecutor ’s office of ORG ( “ the ORG prosecutor ’s office ” ) .

On DATE the prosecutor ’s office of GPE resumed the investigation into PERSON kidnapping and informed the first applicant accordingly . They also invited her to send any further queries to the prosecutor ’s office of LOC of Grozny ( “ the district prosecutor ’s office ” ) .

On DATE the ORG prosecutor ’s office forwarded the first applicant ’s complaint to the military prosecutor ’s office of military unit no . CARDINAL ( “ the unit prosecutor ’s office ” ) .

On DATE the department of the interior of the Zavodskoy District of Grozny ( “ ROVD ” ) issued a certificate confirming that PERSON had been missing since DATE and that search case no . DATE was pending before the ROVD .

On DATE the unit prosecutor ’s office informed the first applicant that an inquiry into ORG disappearance had established that her son had not been arrested in the course of “ sweeping ” operations on DATE . No implication of the NORP military in the crime had been established . They also noted that her complaint had been forwarded to the prosecutor ’s office of ORG .

On DATE ORG for ORG informed the first applicant that her complaint had been forwarded to the prosecutor ’s office of GPE .

On DATE the unit prosecutor ’s office forwarded the first applicant ’s complaint to the military commander of ORG .

On DATE the PERSON requested the district prosecutor ’s office to inform them whether an investigation into PERSON kidnapping by NORP servicemen had been opened and what investigative measures , if any , had been taken . They also requested the investigators to interrogate certain witnesses of the crime .

On DATE the prosecutor ’s office of GPE forwarded the first applicant ’s letter to the district prosecutor ’s office ordering that it be included in the investigation file in case no . DATE .

On DATE the PERSON requested the district prosecutor ’s office to inform them of progress in the investigation in case no . DATE .

On DATE the first applicant complained about her son ’s abduction to the city prosecutor ’s office .

On DATE the city prosecutor ’s office instituted an investigation into PERSON abduction under LAW of LAW ( aggravated kidnapping ) . The case file was assigned number CARDINAL .

On DATE the first applicant was granted victim status and questioned . She submitted that PERSON had resided in the village of PERSON . On DATE he had gone to LOC to visit his relative , PERSON . On DATE PERSON . had told the first applicant that DATE federal servicemen carrying out a “ sweeping ” security operation had checked PERSON identity papers and then let him go . He had then left for his home village . At TIME a woman had told PERSON . that unknown men in camouflage uniforms had apprehended a young man near a dam . To protect the young man , the woman had told the men that she was his mother . The men in camouflage uniforms had proved that that was not the case by showing her identity papers in the name of PERSON and left .

On DATE PERSON was questioned as a witness . She stated that on DATE she had overheard an elderly lady saying that she had witnessed the arrest of a young man by federal servicemen . When the lady told the servicemen that the arrested man was her son , they had produced identity papers in the name of PERSON . The lady had also mentioned that she had seen an ORG with numbers “ CARDINAL ” and “ CARDINAL ” on a muddied registration number plate .

On DATE PERSON . was questioned and stated that on DATE she had seen a large group of people at a bus stop being subjected to an identity check . Her nephew PERSON was among them . TIME he had come to her home , packed his belongings and gone home . DATE her sister , PERSON . , had told her that according to an unknown woman then nephew had been taken away by armed men in an ORG .

On DATE Mr Kh . , PERSON father , was questioned . He said that on DATE his son had gone to the village of PERSON . On DATE PERSON . had informed him that earlier that day servicemen had checked his son ’s identity papers . PERSON . had been told that at TIME unidentified persons had taken a young man away in an ORG .

On DATE Ms R.Yu . was questioned and stated that on DATE she , her son and PERSON . had been travelling on a bus , which had broken down and stopped near the dam in the village of GPE . Servicemen had taken PERSON . ’s son away for an identity check ; her sister had gone with them . On her return , her sister had told PERSON . that an acquaintance had informed her that their nephew PERSON had been arrested by unknown servicemen and taken away in an ORG in the direction of school no . CARDINAL in LOC of Grozny .

On DATE PERSON . was again questioned . She stated that on DATE she and her sister PERSON . had been travelling on a bus which had broken down near the dam . She had approached a crowd standing at the bus stop , where servicemen were carrying out identity checks . Her nephew PERSON had been there . PERSON . had observed the servicemen checking his identity using a computer before returning his identity papers . TIME her nephew had returned to her house and then fallen asleep . PERSON . and her husband had driven back to the bus stop to give a lift to her sister who had been waiting by the bus . Her sister had shown them a piece of paper marked with the words “ PERSON ” which she explained an unknown woman had given her after saying that she had witnessed servicemen placing PERSON in an ORG and driving away . PERSON . had immediately asked servicemen standing near the dam about her nephew , but they had replied that they knew nothing about him .

On DATE Mr PERSON . , PERSON . ’s husband , was questioned . He is said that in DATE his wife had told him that servicemen had arrested her nephew and taken him away in an ORG . On DATE he and his wife had gone to the village of GPE . They had overtaken a motorcade consisting of APCs and asked the servicemen about PERSON but they had given them no information . PERSON . had taken a look inside several APCs but found nobody there .

On an unspecified date PERSON was questioned . She stated that on DATE in the village of PERSON she had seen an ORG and servicemen standing next to it . She had looked into through the window of CARDINAL of the APCs and noticed a young man ; she had not seen his face . PERSON had asked the servicemen to let the young man go , claiming that he was her son . The servicemen had asked her the man ’s name and she had said “ ORG ” . CARDINAL of the servicemen had shown her identity papers in the name of PERSON . The ORG ’s registration number plate was covered in mud and illegible .

On DATE the first applicant was questioned and submitted that her son had been kidnapped not on DATE , but on DATE .

The Government stated that the investigating authorities had sent a number of queries to various ORG bodies and had taken other investigative measures , but did not specify what those measures had been . According to various law - enforcement agencies of GPE , no special operations had been carried out on DATE in the village of PERSON .

The investigation failed to identify the perpetrators . The implication of any law - enforcement agencies in the crime had not been established . PERSON had not been prosecuted , arrested or placed in a temporary detention facility in GPE .

The investigation had been suspended on several occasions for failure to identify the perpetrators and then resumed . The applicants had been duly informed of all decisions taken during the investigation , which was still pending under the supervision of ORG .

Despite specific requests by ORG did not disclose any documents from the investigation file in case no . DATE . Relying on the information obtained from ORG , the ORG stated 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 the witnesses or other participants in the criminal proceedings .

For a summary of the relevant domestic law see PERSON and PERSON GPE , no . CARDINAL , § CARDINAL , CARDINAL DATE .


The applicant , PERSON , is a NORP national , born in DATE and living in GPE ( GPE ) .

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

On DATE the ORG convicted the applicant of murder and aggravated coercion and sentenced him to CARDINAL years’ imprisonment . In assessing the penalty ( PERSON ) the court considered as mitigating circumstances the applicant ’s “ neglected education ” ( vernachlässigte PERSON ) and his partial confession . As aggravating circumstances , the court took account of his criminal record and the fact that he was a recidivist .

On DATE the applicant , represented by counsel , filed a plea of nullity ( Nichtigkeitsbeschwerde ) and an appeal ( Berufung ) . In his appeal he complained that the penalty was too high . As to the mitigating circumstances , he maintained that his neglected education was not given sufficient weight . Moreover , ORG should have taken into account his intoxication and his particular mental state at the time of the criminal act due to the fact that he had suspected the victim of having tried to prostitute his wife . The applicant did not make a request to attend the hearing before ORG .

On DATE ORG fixed the hearing date for the applicant ’s plea of nullity and his appeal for DATE . The applicant received a notification , which stated that his counsel would be summoned to the hearing . As to the hearing of the plea of nullity , the notification informed him that he , being detained , could only appear through his counsel . As to the hearing of the appeal , he was informed that he would not be brought to court as the conditions set out in the relevant provisions of LAW ) were not fulfilled .

On DATE ORG , after having held a hearing in the absence of the applicant but in the presence of his defence counsel , Ms. PERSON , dismissed his plea of nullity as well as his appeal . As regards the appeal , the court found that the concurrent nature of the offences ( PERSON strafbarer Handlungen verschiedener Art ) had to be taken into account as an additional aggravating circumstance . ORG ruled that a neglected education could not be considered as a mitigating circumstance in the applicant ’s case , given that he was an adult and had already been imprisoned several times before . Nor could the applicant ’s intoxication be considered a mitigating circumstance because , in view of his previous offences , he should have appreciated the effects alcohol had on him . As to his mental state at the time of commission of the offence , the court relied on an expert ’s psychiatric opinion to the effect that the applicant ’s personality was characterised by an aggressive attitude as well as coldness and hostility towards other people . Under these circumstances the applicant ’s special mental state could not be considered to be a mitigating factor . Furthermore , ORG noted that the applicant had not put forward any new mitigating circumstances .


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

In DATE the applicant took part in the emergency operation at the GPE nuclear plant . As a result he suffered from extensive exposure to radioactive emissions . The applicant underwent medical examinations which established the link between his poor health and his involvement in the GPE events . He was consequently granted status of a disabled person and awarded a DATE pension and a special allowance from the ORG , to be adjusted once a year in line with the minimum subsistence amount ( величина прожиточного минимума ) .

At a certain moment in DATE the social security authorities ceased to increase regularly the amounts of pension and allowance , paid to the applicant in connection with his disability . Instead , he started to receive his pension in a fixed amount ( MONEY ) , which was less than he expected . Presuming that this practice was illegal , the applicant brought proceedings against the regional social security office ( “ the defendant ” ) claiming the increase of the DATE allowance and pension in line with the increase of the minimum subsistence amount during the relevant period .

On DATE ORG of GPE ( “ the Town Court ” ) rendered a judgment ordering the increase of the DATE allowance due to the applicant in line with the increase of the minimal subsistence amount in the GPE region . In re - calculating the amount of the applicant 's pension the court applied the multiplier of CARDINAL based on the data provided by the regional committee on statistics . As a result , the DATE pension of the applicant increased to MONEY . The court ordered the defendant to pay the applicant the recalculated amount as from DATE less the sums already paid .

The defendant appealed challenging , among other things , the multiplier of CARDINAL applied by the first - instance court .

On DATE ORG ( “ the Regional Court ” ) upheld the judgment of DATE in full . The enforcement proceedings were opened .

On DATE the defendant appealed to ORG by way of supervisory review seeking to quash the judgment of DATE , as upheld on QUANTITY .

On DATE the judge rapporteur refused to initiate the supervisory review proceedings and to remit the case for examination on the merits to the ORG of ORG ( “ the ORG ” ) .

On DATE the defendant complained to the President of ORG about the judgment of DATE , as upheld on appeal , and the judge rapporteur 's decision of DATE rejecting their previous application for supervisory review . They also requested that the enforcement proceedings be suspended pending the examination of the new supervisory review appeal .

On DATE a judge of ORG requested the case - file from the court of first instance . On DATE judge B. of ORG initiated the review of the judgment of DATE , as upheld on DATE . The decision of DATE referred in detail to the arguments adduced by the defendant but offered no explanation as to the grounds for overruling the judge rapporteur 's decision of DATE . The case was transferred to the ORG for the examination on the merits .

On DATE the applicant was informed about the date and venue of the hearing of his case by the ORG .

On DATE the ORG quashed the judgment of DATE , as upheld on appeal , stating that the first instance court 's calculation of the minimum subsistence amount , based on the multiplier of CARDINAL , had been insufficiently supported by evidence . The ORG also noted that the first instance court had misinterpreted the domestic law . The case was remitted to the first instance court for a fresh examination .

On DATE ORG examined the case anew . In the course of the proceedings the court established that the allowance should have been multiplied by CARDINAL in DATE and by CARDINAL for DATE . The applicant maintained that he accepted the multiplier .

As a result , the court held that the amount of pension due to the applicant for DATE was MONEY per month . In DATE the pension of the applicant should have amounted to MONEY per month . The court ordered the social security authorities to compensate the applicant for previous underpayments and , starting from DATE , pay him MONEY DATE , with subsequent readjustment .

The judgment of ORG was not appealed against and became final .

On DATE the Code of Civil Procedure of GPE ( “ the CCivP ” ) entered into force introducing , in particular , an amended system of supervisory review .

The ORG , in the relevant part , provides as follows :

“ CARDINAL . Judicial decisions that have become legally binding ... may be appealed against ... to a court exercising supervisory review by parties to the case and by other persons whose rights and legal interests had been adversely affected by these judicial decisions .

Judicial decisions may be appealed against to a court exercising supervisory review within DATE after they became legally binding ... ”

“ A President or Deputy President of the respective court transfers the application for supervisory review ... to a judge of this court for examination . ”

“ CARDINAL . Having examined an application for supervisory review , the judge issues an interim decision on –

( CARDINAL ) obtaining the case file if there exist doubts as to the lawfulness of the judicial decision ;

( CARDINAL ) refusing to obtain the case file if the arguments in the application for supervisory review may not , in accordance with the federal law , result in quashing of the judicial decision .

NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to obtain the case file . In such case the President issues his own decision on obtaining the case file . ”

“ CARDINAL . Having examined the case file obtained by the supervisory review court , the judge issues an interim decision on –

– refusing to remit the case for examination on the merits by the supervisory review court ;

– remitting the case for examination of the application for supervisory review on the merits by the supervisory review court . ”

“ CARDINAL . NORP The President of the ... regional ... court ... may disagree with the judge 's decision refusing to remit the case for examination on the merits by the supervisory - review court . In such case the President issues his own decision on remitting the case for examination on the merits by the supervisory review court . ”

“ The grounds for quashing or varying the judicial decisions of the lower courts by way of supervisory review are serious violations of the substantive and procedural laws ”