Violation of Art. 2 in respect of death of applicant's son;Violation of Art. 2 in respect of failure to provide timely medical care;Violation of Art. 2 due to lack of effective investigation;Violation of Art. 3;Violation of Art. 5;Violation of Art. 13;No violation of Art. 14

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

On DATE her son , PERSON , aged DATE , who had been known to the police as a suspect on theft charges , died after having spent TIME in police custody in ORG following his arrest for attempted theft . The ensuing investigations conducted by the prosecution authorities ended with the conclusion that the death must have been caused by an accidental injury which pre - dated Mr PERSON 's arrest . The applicant contested that conclusion .

The applicant describes herself and her late son as belonging to the ORG ethnic group ) .

According to the statements of several witnesses , on DATE Mr PERSON spent part of DATE doing some odd jobs for a neighbour . In the evening he went home for a while and then went out with his sister , her boyfriend and PERSON , another friend of his . He then spent TIME in their company at a local bar . He consumed alcohol .

At TIME or TIME Mr PERSON 's sister and her boyfriend left the bar , leaving him there with Mr M. The bar closed shortly afterwards . Mr PERSON stated that he had then left the bar with Mr Zabchekov and that they had parted at the door , Mr M. returning home .

All the witnesses ( the owner of the bar , the person for whom Mr Zabchekov had worked DATE , his sister and her boyfriend , and Mr PERSON 's father , who was at home when his son dropped in on his way to the bar ) were unanimous that he had been in good health , that he had no visible injuries on his body , that he had not been involved in any quarrel or fight , and that he had consumed alcohol .

At TIME on DATE PERSON , who lived in a block of flats in ORG in ORG , noticed from her balcony a man later identified as Mr PERSON hanging around by parked cars , bending over and “ doing something ” . PERSON telephoned a neighbour , Ms GPE The QUANTITY women shouted at Mr PERSON from their balconies to ask him what he was doing . At that moment PERSON ( “ C ” ) , a police officer who was not on duty DATE , and a young man ( “ D ” ) , both of whom also lived in the same block of flats , were passing by in the street and were alerted by their neighbours .

Mr Zabchekov attempted to run away , and C ran after him . The chase apparently continued for TIME CARDINAL . Then D and his CARDINAL neighbours saw C appearing from around the corner , holding PERSON and leading him back to the entrance of the building . The witnesses stated that there had been snow on the ground .

C later stated that while trying to run away Mr Zabchekov had slipped and fallen down but had quickly stood up again . This was confirmed by PERSON and PERSON , who had been watching from their balconies . They explained that Mr PERSON had fallen on a patch of grass . However , D , who had remained in the street and had also observed the incident , stated that he had not seen Mr PERSON falling at any moment before his arrest . He repeated that statement at a confrontation with the other witnesses .

C was the only witness of the events between the moment when Mr Zabchekov and he had turned round the corner and the moment when they had reappeared in front of the building in ORG . C stated that Mr PERSON had slipped and fallen down CARDINAL more times . As a result , C had been able to catch up with him and , while Mr PERSON was back on his feet and running , C had tripped him up , Mr PERSON had fallen to the ground and C had pounced on him . C had then pulled Mr PERSON up by the arm and had led him back . Asked to specify the part of his body on which Mr PERSON had fallen , C replied that the boy had fallen on his face . C could not remember whether Mr PERSON had protected his face with his hands . C also stated that he had had difficulty in running and apprehending Mr PERSON because he had had a leg injury and his shoelaces had been untied .

Sergeant Dimitrov ( “ G ” ) , CARDINAL of the police officers who arrived later , stated as follows : “ When we arrived on the spot [ C ] told us that while he was trying to arrest PERSON the latter ran away and fell CARDINAL or CARDINAL times and that if he had not fallen C would not have been able to catch up with him . ”

The witnesses were unanimous that , while C had been leading Mr Zabchekov back to the entrance of the block of flats , the latter had slipped and fallen . There were discrepancies as to precisely how that had happened . PERSON , who observed the incident from her balcony , stated that when C and Mr Zabchekov had reappeared from around the corner of the building , the latter had slipped , fallen and rolled over . D stated , however , that Mr PERSON 's leg had slipped and he had fallen on his buttocks . C maintained that Mr PERSON had in fact only slipped but had not fallen , because he had been holding him .

C stated that he had not hit Mr Zabchekov and had not seen anyone hitting him . That was confirmed by PERSON and PERSON The latter , who was also the owner of one of the cars in the car park , clarified that she had indeed seen Mr PERSON rolling on the ground when C was leading him back after the chase , but stated that she had not seen anyone kicking him or beating him . D did not mention whether he had seen anyone hitting PERSON Zabchekov .

C also stated that when he had been in close contact with Mr Zabchekov after arresting him he had not noticed any traces of blood or any grazes on his face . He added that Mr PERSON 's hair covered part of his forehead and that the colour of his face was dark . D stated that he had not noticed any blood or grazing on Mr PERSON 's face . He added that the latter smelled of alcohol .

Having apprehended PERSON , C asked PERSON to call the police , which she did at TIME Afterwards , she remained inside her flat .

C , D and Mr Zabchekov waited at the entrance of the block of flats , apparently for CARDINAL . It appears that ORG , who stayed on her balcony , did not have a view of the entrance .

The witnesses ' statements contain few details as to whether there was any kind of verbal exchange between Mr Zabchekov and any of them before the arrival of the police . Some of the witnesses stated that Mr Zabchekov had been mumbling something barely comprehensible . According to PERSON , who was watching from her balcony , Mr PERSON had repeated several times that he was drunk . PERSON , PERSON and C stated that , when Mr PERSON had fallen to the ground after being arrested , C had told him : “ Get up , I 'm not going to drag you . ” D stated that he had not heard any such words being uttered . None of the witnesses ' statements indicates whether C or D spoke with PERSON during the time when they were alone with him at the entrance of the block of flats .

In the statement he gave on DATE , C said that , after the police had left with PERSON , he had found a wrench on the spot where NORP , Mr PERSON and himself had been waiting for the police to arrive . C thought that it must have belonged to Mr PERSON as it was the right size for removing a car battery . C explained in his statement that he had kept the wrench and had handed it over to the investigator in the morning on DATE when he had been summoned to the police station after the death of PERSON . However , in a statement taken on DATE PERSON ( “ H ” ) , who had been on duty at the police station when PERSON was brought there , said that he had noticed the wrench on a desk at the police station no later than TIME , shortly after Mr PERSON had arrived there . At a confrontation with the other police officers on DATE , H recalled that he had in fact first seen the wrench at a later stage .

When the telephone call was received at the local police station a patrol car with QUANTITY police officers , PERSON ( “ A ” ) and GPE ( “ B ” ) , was dispatched to the address . When the police officers arrived they saw C and Mr Zabchekov at the entrance of the block of flats . D was also standing nearby .

A recognised Mr Zabchekov , whom he knew as a suspect in several pending theft investigations , and addressed him by name . He handcuffed him . A and some of the other police officers later asserted that at that moment A warned the others to be careful as Mr Zabchekov had a “ brain disease ” .

Another police car , with CARDINAL police officers , PERSON ( “ E ” ) , PERSON ( “ F ” ) and PERSON ( “ G ” ) , arrived shortly afterwards . The officers then proceeded to search the area for evidence of attempts by ORG to break into cars . At some point , A led Mr Zabchekov to CARDINAL of the cars which appeared to have been broken into and asked him whether he had been trying to steal anything . Mr Zabchekov allegedly denied this . He was then handcuffed to a small tree and the police officers continued to search the area . Having identified CARDINAL cars which had been broken into , the police officers rang the owners ' doorbells . CARDINAL of them came out and went to see the damage done to his car . During that time Mr Zabchekov remained handcuffed to the tree .

The only witnesses who gave details about the events between the police 's arrival and their departure with Mr Zabchekov were the police officers on duty . Ms. PERSON , and NORP merely stated that the police officers had searched the area . C stated that he had gone to alert the owners of the cars . He had only seen that at a certain point Mr PERSON was with the police officers at the car park , where his colleagues were comparing the soles of Mr PERSON 's shoes with traces visible in the snow . CARDINAL of the car owners was questioned , but only in respect of the damage caused to his car , by a police officer who visited the site later , at TIME on DATE .

According to some of the police officers , at some point when they were searching the area they had noticed Mr Zabchekov lying or sitting on the ground . A stated that at that point he had released PERSON from the tree , placed him on the back seat of the police car and handcuffed both his hands . All the police officers who were present in ORG stated that at that time they had not noticed any trace of injury on Mr PERSON 's face . Some of them stated that he appeared to be drunk , and that he had been mumbling and had not been communicative .

At TIME was taken to the police station by A and B.

The sergeant on duty , H , stated that he had seen A and B enter the police station with Mr PERSON walking between them . The latter 's hands had been handcuffed behind his back . A and B had been holding him by the arms and leading him in . Mr PERSON had been put in office no . CARDINAL . A stated that at that point he had removed the handcuffs from the boy .

No written order for Mr PERSON 's detention was issued .

According to the statements of A , B and H , Mr Zabchekov stayed in office no . CARDINAL with B and H , while A went to report to the senior officer on duty , Colonel PERSON ( “ I ” ) . H further stated that at that moment he had noticed a bruise on Mr PERSON 's eyebrow . A and B did not mention any injury . H also stated that Mr PERSON 's clothes had been wet . They all noticed that Mr PERSON had been drunk and mumbling .

Colonel I stated that A had informed him that Mr PERSON had been brought to the police station ; A had said that the arrested person had been identified , but was too drunk for questioning . Colonel I had not seen Mr PERSON until TIME According to the sergeants ' statements , Colonel I had ordered that Mr Zabchekov should be given a seat in the passage to sober up . A had then instructed H to call him over the radio as soon as Mr Zabchekov was able to communicate . At an unspecified time A and B had left the police station and returned to their patrol duties .

H stated that Mr Zabchekov had fallen asleep soon afterwards , on a chair in the passage , and had been snoring . At TIME had allegedly noticed that Mr Zabchekov had been lying asleep on the floor . H had woken him and put him back on the chair , thinking that “ he might catch a cold ” . H further stated that at TIME he had again gone to see Mr Zabchekov who had been sitting on the chair , sleeping and shivering . H had decided to move him back to office no . CARDINAL , where it had been warmer . He had woken him and helped him enter the room . Shortly afterwards Mr Zabchekov had slipped from the chair . H had noticed that he had been breathing heavily . H stated that at that point he had contacted PERSON ( “ J ” ) , and had told him “ to call PERSON [ A ] or an ambulance ” .

J stated that , in accordance with the duty schedule , he had slept on the LOC of the police station until TIME on DATE , when he had been woken for duty . He had not been informed that anyone was being detained . J 's statement did not mention whether , TIME , he had gone down the passage where , at that time , according to H , Mr Zabchekov had been sleeping on a chair . PERSON stated that he had only become aware of Mr PERSON 's presence when at TIME H had reported that the boy 's condition seemed to be deteriorating . J had then seen him , noticing injuries on his forehead , and had called A and B by radio .

At approximately the same time H or J had alerted Colonel I , the senior officer on duty . I stated that at that moment he had noticed injuries on Mr PERSON 's face .

A and B stated that at TIME they had been contacted by radio and had been told that Mr PERSON 's condition was rapidly deteriorating . Arriving at the police station , the sergeants had seen Mr PERSON lying on the ground , breathing heavily . B had then driven to the hospital and had returned , with PERSON , the paediatrician on duty , following in an ambulance .

Dr PERSON later stated that at TIME the hospital employee in charge of emergencies had asked him to go to the police station “ for a CARDINAL-year - old boy ” . PERSON explained that he had seen that employee talking to the police officers . He also pointed out that he had not been given any prior information about the boy 's condition .

PERSON examined PERSON at the police station and advised that he should be taken to hospital as his pulse rate was low . Mr PERSON was driven to the hospital in the ambulance , with A and B following in their police car . When they arrived at the hospital , A and B helped to bring PERSON to the corridor in front of the office of the doctor on duty . According to the statements of A and B , when Mr ORG was examined TIME by PERSON , the internist on duty , there had followed a heated discussion between her and PERSON PERSON . The police officers had then been informed that Mr PERSON had died .

B stated that PERSON had said to him and his colleague : “ You must have known Mr PERSON 's condition ” , and that she had insisted that she had not seen him breathing .

Dr PERSON stated that in the police station he had noticed bruises on Mr PERSON 's chest and that at that time the boy had still been alive but had been unconscious with a weak pulse .

PERSON had then asked the police officers how long the boy had been in such a condition . The police officers had replied : “ He was brought to the police station in that condition .

Dr PERSON stated that at TIME she had been asked by PERSON PERSON to verify whether a patient who had been brought to the hospital had died . Having found that no cardiac activity was noticeable she had attempted cardiac massage , but to no avail . She further stated that , when she had asked why PERSON , and not herself , as the internist on duty , had been dispatched to the police station , the hospital employee in charge of emergencies had replied that the request for an ambulance had been said to concern a child , and so it had been decided to send the paediatrician on duty .

According to normal practice , all detentions are recorded in a register kept at the police station . The register contains a series of entries organised in columns : the number assigned to the detainee , the name of the officer entering information into the register , the name of the detainee , the reasons for detention , the action taken and the time of release . Information corresponding to each detainee is entered in chronological order .

At the ORG 's request the ORG submitted a copy of the ORG police station 's register for DATE . The register does not contain an entry for PERSON . However , it contains an entry for an “ unidentified person ” who was assigned number DATE .

The register does not contain a separate column recording the time of detention . In respect of some of the detainees listed on the same page the time of detention is mentioned together with the date . In respect of the “ unidentified person ” , as with some of the other detainees listed on the same page , there is no mention of the time of detention in the column indicating the date . However , immediately after the words “ unidentified person ” , there appears , spread over CARDINAL columns and CARDINAL lines , the entry “ CARDINAL I CARDINAL , CARDINAL.oo ” . A visual examination of the copy of the register shows that the figure “ CARDINAL ” has been written over a figure which , as far as legible , had originally read “ CARDINAL ” or “ CARDINAL ” .

It can be also observed that the registration numbers on the same page have been written over . From the copy provided by the Government it is difficult to see the original numbers that were altered . Nevertheless , it can clearly be seen that there are equal spaces between each of the entries except the numbers “ CARDINAL ” and “ CARDINAL ” , between which there is a significantly smaller space .

The entry under number CARDINAL for the detention of an unidentified person states that that person was brought to the police station by A. On the right - hand side of the same line there appears a signature which , in so far as it is legible , appears to be that of Colonel I.

In the course of the investigation Colonel I , the senior officer on duty , and J , his assistant that night , were questioned in relation to the registration of Mr PERSON 's presence at the police station . Colonel I stated that he had not instructed A to register the detainee since A was familiar with the procedure . J stated that shortly after TIME , when he had been alerted by H about Mr PERSON 's deteriorating condition , he had checked the register of detainees but had not seen any entry concerning him . Colonel I further denied having made an entry in the register and stated that the entry for an unknown person had not been there when he had left the police station after Mr PERSON 's death .

Early in the morning of DATE the police officers involved submitted a written account of the TIME 's events to the head of the local police .

Towards the end of his handwritten report C stated , with no apparent connection with the surrounding text : “ The person I apprehended was swarthy ( Gypsy ) ” ( “ LOC задържах беше мургав ( циганин ) ” ) .

The head of the local police opened file GPE - I no . CARDINAL which contained a summary of the events , the reports of CARDINAL police officers and the written statements by D and one of the owners of the cars which ORG had allegedly tried to break into .

Also early in TIME of DATE Mr GPE , an investigator from ORG ( PERSON следствена служба ) in ORG opened criminal proceedings under file no . CARDINAL to investigate the death of PERSON .

According to the applicant , at TIME on DATE Mr PERSON , accompanied by CARDINAL uniformed police officers , went to the house of the applicant 's family to inform them of Mr PERSON 's death . They spoke to the boy 's stepfather . According to the applicant , the investigator stated that during TIME had tried to break into CARDINAL cars , that the police had chased him , and that , during the chase , PERSON had fallen down and had hit his head against the asphalt .

Also on DATE , Mr PERSON questioned the police officers involved and D , the young man who had been with PERSON ( C ) during the brief chase on ORG . The investigator also visited the hospital and saw Mr PERSON 's body . Pictures of the body were taken .

On DATE at TIME an officer from the local police went to ORG in connection with the reported car - theft attempt . He noted that CARDINAL cars bore signs of attempted theft and questioned their owners . At TIME , this time apparently acting in connection with the investigation into the death of Mr Zabchekov , he took a sample from a large red patch in the snow . Laboratory analysis revealed that it was animal blood .

Also on DATE Mr PERSON ordered an autopsy . He put the following questions to the medical experts :

“ What are the causes of ORG 's death ? Are there any traumatic injuries on ORG 's body ? Do they have any causal relation to the death ? How were the injuries inflicted ? How long was the period between the infliction of the lethal injury and the death and is it possible , as witnesses claimed , that PERSON was conscious until TIME ? Is the lethal injury related to injuries in places where the skin was broken ? Are there any other visible injuries and did they require , in view of their visible characteristics , immediate medical treatment ? ”

The autopsy was carried out on DATE ( starting at TIME ) by CARDINAL doctors at ORG in GPE . These were PERSON , head of the forensic department , PERSON , head of the pathology department , and PERSON , a doctor in the forensic department .

In their report , dated DATE ( “ the first report ” ) , the experts described their findings in detail . Photographs were taken .

NORP The external inspection of the body revealed , inter alia :

“ At the outer end of the left eyebrow , over the orbital rim , a superficial wound of longish shape , measuring QUANTITY by QUANTITY , with slightly uneven and grazed edges , and covered by a thin brownish scab . The soft tissue around the wound is slightly swollen , the skin being of bluish - purple colour . The eyeball of the left eye is slightly protruded ( outwardly ) ...

A slight surface scar QUANTITY long , with mild bruising ... on ... the left wrist ...

CARDINAL surface bruises measuring QUANTITY by QUANTITY and QUANTITY by QUANTITY , of brownish colour , covered by a reddish scab on the right wrist ... ”

In the concluding part of the report the experts summarised the injuries on Mr PERSON 's body as follows :

“ [ CARDINAL . ] Skull and cerebral trauma : Superficial lacerated contusion ( a deep bruise ) located on the outer side of the left eyebrow along its orbital rim ; haematomas on the skin and in the soft tissue around this wound and on the left eyelid , fracture of the back wall of the left ' eye bone ' reaching its lower external side , with a bow - like fissure under the external injury described above ; epidural haematoma on the left side ( haemorrhage between the brain and the skull bones QUANTITY ; epidural oedema ... [ identified as the cause of death ] ) .

[ CARDINAL . ] GPE on the skin , spotted in a characteristic manner , and haematoma in the soft tissue on the right side of the chest , along the anterior axillary line .

[ CARDINAL . ] Surface skin grazes on the right side of the forehead and on the upper surface of the left wrist with a limited haematoma in the soft tissue under the skin .

[ CARDINAL . ] GPE of an oval shape and diameter of QUANTITY on the mucous membrane of the left lower lip .

[ CARDINAL . ] CARDINAL strip - like surface bruises on the skin of typical shape , and haematoma in the soft inner tissue , in the area of the wrist joint of the right hand . ”

The experts further concluded :

“ [ The death was caused by ] accumulated epidural cerebral haematoma on the left - hand side of the forehead , containing QUANTITY of blood , followed by a cerebral oedema , with wedging of the cerebellar tonsils into the foramen magnum ; this oedema led to the suppression and detachment of vital brain centres ( those of breathing and heart activity , which in turn caused a pulmonary oedema ) , and was the direct cause of death . ”

Addressing the question of the manner in which the injuries had been inflicted , the experts stated :

“ CARDINAL . The injury in the area of the left orbital rim and the left eyeball and the epidural haematoma were caused by a blow by , or against , a blunt object , or an object with a blunt edge , [ which had ] a delineated [ limited ] and uneven surface . The blow was sudden and sufficiently strong . It caused the fracture of the back wall of the left ' eye bone ' reaching its lower external side ( furthermore , the skull bones are QUANTITY thick ) ;

NORP [ The injury to the right side of the chest was caused by ] a blow by , or against , a hard blunt object , or an object with a blunt edge , having a larger impact surface . The marks in this area are spotted in a manner characteristic of an imprint of the victim 's clothes .

[ The injuries to the right side of the forehead and to the wrists were the result of ] blows , or pressing , by or against sharp - edged objects . [ The injury to the left part of the lower lip was caused by ] a blow by or against a hard blunt object having a delineated [ limited ] surface . ”

The experts also stated that in cases of epidural haematoma of the kind Mr Zabchekov had suffered there was characteristically a lucid interval of TIME during which no visible signs would be displayed , except that

“ the victim gradually becomes feeble , apathetic and sleepy , after which he falls into a coma and dies DATE as happened in the present case ( during the period between TIME and TIME on DATE ) . ”

The report concluded that Mr PERSON 's death had been inevitable in the absence of urgent surgical intervention .

NORP The laboratory analysis found an alcohol level of CARDINAL in Mr ORG 's blood and CARDINAL in his urine , corresponding to a medium level of alcohol intoxication .

According to the applicant , in TIME of DATE she went to the office of ORG in ORG and requested information about the circumstances surrounding her son 's death . Mr PERSON , the investigator , informed the applicant that her son had died of a skull fracture . According to the applicant , he explained that her son had been trying to steal car parts and that , when the police had sought to apprehend him , he had run away , had fallen down and had hit his head .

According to the applicant , during this meeting Mr PERSON asserted that her son had been taken to hospital , omitting the fact that he had been in police custody . When asked how Mr PERSON 's skull could have been fractured as a result of DATE , Mr PERSON had allegedly explained that the autopsy had found an “ abnormally thin skull ” .

In TIME DATE , upon receiving Mr PERSON 's body from the hospital , the applicant and other family members noticed bruises on his body . The applicant went to the office of a local newspaper , spoke with CARDINAL journalists and took them to her home , where they took pictures of PERSON body and clothes . TIME of CARDINAL DATE Mr PERSON was buried .

On DATE and DATE the investigator questioned Ms GPE and ORG

On DATE , by order of the regional prosecutor , PERSON , the investigation was transferred to ORG ( PERSON военна прокуратура ) . That decision was based on the finding that Mr PERSON had died after having been in police detention . The regional prosecutor stated , inter alia :

“ ... for TIME immediately preceding [ his ] death , the minor PERSON , apprehended at TIME on DATE while attempting to steal car parts , was taken by [ police ] officers ... and placed within the premises of the unit on duty in order to restrict his freedom of movement . Therefore , although he was not detained pursuant to section CARDINAL(CARDINAL ) taken in conjunction with section CARDINAL(CARDINAL)(CARDINAL ) of LAW [ ORG за националната полиция ] , as a matter of fact ORG was forcibly held in the police station for TIME and in the course of his stay [ there ] ... his condition suddenly deteriorated , and he lost consciousness . ”

On DATE , having received the file on the case , ORG opened an investigation under a new file number ( NORP , prosecutor 's file CARDINAL ) . The case was assigned to a military investigator ( военен следовател ) .

During DATE the military investigator conducted new examinations of the police officers involved , questioned CARDINAL persons who had spent TIME of DATE with ORG , and also heard PERSON and PERSON .

CARDINAL of the police officers , PERSON ( A ) and Sergeant PERSON ( F ) , mentioned Mr PERSON 's ethnic origin in their oral evidence to the military investigator .

A stated that when he had arrived at ORG he had seen CARDINAL persons emerging from the entrance of the building , CARDINAL of whom had been “ a Gypsy with a criminal record – PERSON ” .

In his statement PERSON referred to the applicant 's son as “ the Gypsy ” ( CARDINAL times ) , “ the arrested ” ( CARDINAL times ) and “ Zabchekov ” ( twice ) .

On DATE the investigator conducted examinations of the witnesses PERSON , PERSON , C and NORP His questions related solely to the number of times Mr PERSON had fallen to the ground during the chase on ORG and the places where this had happened .

On DATE the investigator appointed an expert to analyse the clothes which Mr Zabchekov had been wearing on CARDINAL and DATE . In his report of CARDINAL DATE the expert stated that no traces of shoe soles could be found but explained that microscopic remains from particles from a shoe sole would not normally be left on soft fabric .

DATE . On DATE the investigator conducted a reconstruction of the events during Mr PERSON 's arrest in order to clarify the witnesses ' evidence . Those taking part were PERSON ( C ) , the young man who had been with him on DATE ( D ) , and the QUANTITY persons who had observed the scene from their balconies , PERSON and PERSON The police officers who had arrived at ORG after Mr PERSON was arrested by C did not participate in the reconstruction , which was almost exclusively concerned with the events before the arrival of the QUANTITY police cars . The reconstruction was videotaped .

On DATE the applicant submitted to ORG a request for the exhumation of her son 's body and for the assignment of a new medical expert , stating that her son had been buried in haste and that exhumation of his body was essential . The applicant suspected that her son 's ribs might have been broken . She also submitted to the investigator , PERSON , QUANTITY X - ray photographs of her son 's head taken DATE before his death , to be used for the purpose of establishing whether his skull had been “ soft ” or “ thin ” .

On DATE or DATE CARDINAL medical experts were appointed to re - examine the conclusions as regards the causes of Mr PERSON 's death . CARDINAL of them , PERSON , had participated in the initial group of experts . The other CARDINAL were Professor PERSON , head of the forensic department at ORG in Varna , PERSON , from the university 's neurosurgery department , and PERSON and PERSON , senior assistants in the forensic department of the same university . The experts were asked the following questions :

“ CARDINAL . What injuries did Zabchekov sustain ? What was the cause of death ?

NORP In what manner were the injuries sustained and by how many blows could they have been caused ? Could the injuries have been caused by consecutive falls ( in accordance with the witnesses ' statements and the findings of the investigation reconstruction as recorded on video ) , or were they the result of direct blows ?

When were these injuries inflicted ?

What was PERSON blood alcohol level at the time of his arrest , at TIME ? ”

On DATE the investigator held a confrontation between all the police officers involved . On DATE additional witnesses were questioned .

On DATE the applicant repeated her request for an exhumation . On CARDINAL DATE another witness was questioned .

On DATE Mr PERSON , a prosecutor from ORG , sent the applicant a copy of his information note on the proceedings . The note stated , inter alia , that exhumation could be envisaged if this was considered necessary by the CARDINAL medical experts , who had not yet submitted their opinion .

On DATE the CARDINAL experts delivered their report ( “ the second report ” ) , which was based on an examination of the material in the investigation file . They had also seen the videotape of the reconstruction of Mr PERSON 's arrest , which had been recorded on DATE .

The experts confirmed that Mr PERSON 's death had been caused by an epidural oedema resulting from a skull fracture . They also stated , inter alia , that the fatal injury could have been inflicted by a kick , a punch or a blow by a blunt object , or also by DATE and a collision against a “ flat broad surface ” ( широка удряща повърхност ) . They noted that the autopsy had not recorded any morphological data to allow the identification of the object which had caused the injuries .

The second report indicated that the blow which had caused the skull fracture had not been very strong . That conclusion was based on the “ particular features of the skull structure ( as witnessed by the X - ray photographs enclosed and the thickness as described [ in the autopsy report ] ) ” .

Contrary to the first medical report , which had stated that the interval between the skull injury and Mr PERSON 's death had been DATE , the report of the CARDINAL experts concluded :

“ The haematoma ... which caused the death of ORG , had been present for TIME before the time of death . The basis for this conclusion is the appearance of the haematoma ( blood clot of dark red colour ) , which is clearly visible on the photographs attached to the file . Clots of that kind , without the presence of liquid blood , are formed during a period of TIME from the moment when they were caused . During this period the patients ' condition is usually characterised by the so - called ' lucid interval ' – the time during which they do not display visible warning signs . Their condition gradually deteriorates ... they develop a headache , speech disturbances and problems of coordination of movement , [ they ] become unstable and sleepy , they stagger , etc . , until they fall into a coma . ”

The photographs relied on by the experts were taken at the time of the autopsy , which began at TIME on DATE .

DATE . The experts also found , in view of the amount of alcohol found in Mr PERSON 's blood , that the symptoms resulting from the head injury had been masked by the effects of alcohol .

The report of the CARDINAL experts also dealt with the other injuries to Mr PERSON 's body :

“ The haematoma on the right side of the chest is the result of a blow by or against a flat object with a broad hitting surface , which could have taken the form of a kick , a fall and a collision against a larger object and other objects . The general appearance of the bruise corresponds to the imprint of the clothes of the deceased , which indicates that the blow was inflicted through the clothes ... The bruises and injuries to the right side of the forehead , the CARDINAL wrist joints and the lower lip are the result of the use of hard , blunt and/or sharp - edged objects with a limited hitting surface . The characteristics of the injuries to the CARDINAL wrist joints make it possible to conclude that they were caused when the handcuffs were put on , in accordance with the available information ... ”

On DATE the investigator drew up a report proposing to terminate the proceedings .

On DATE ORG closed the investigation as there was no connection between the acts of the police and the death of Mr Zabchekov . That conclusion was based on the finding of the second medical report that TIME had passed between the injury and death .

On DATE the applicant lodged an appeal with ORG ( NORP на въоръжените сили ) . She contended that the investigation had been incomplete and pointed to the repeated refusal to carry out an exhumation , to the alleged discrepancies between the evidence of different witnesses and to the lack of explanation for certain facts , including all the injuries to Mr PERSON 's body .

On DATE ORG confirmed the closure of the investigation and refused the applicant 's requests . Its decision stated , inter alia :

“ [ A]part from the physical force used during the arrest of ORG for attempting to steal from cars , there is no evidence that any violence was used against him by police officers , whether ... inside or outside the ... police station . Furthermore , the firm conclusion of the report of the CARDINAL experts , who are highly qualified in their field , is that the lethal injury was caused TIME prior to death . ”

It was also decided to refer the case back to ORG in ORG , which was competent to deal with the question whether a criminal act had been committed by a person other than a police officer .

On DATE the regional prosecutor , PERSON , referred the case to the investigator , Mr PERSON . She noted that the investigation in respect of the police had been closed on the basis of the finding that the fatal injury had been inflicted TIME prior to the death of Mr Zabchekov . Therefore , further evidence needed to be collected as regard the whereabouts and the condition of Mr Zabchekov before TIME on DATE .

The additional investigation entailed the examination of the applicant and CARDINAL other witnesses on DATE by Mr PERSON .

On DATE and DATE the applicant made further requests for the exhumation of the body and for a fresh forensic examination , claiming that there were inconsistencies in the evidence . That was rejected by ORG on DATE as being unnecessary .

The applicant complained to ORG ( PERSON прокурор ) . She stated , inter alia , that the prosecutors had consistently failed to explain why the police had not taken proper care of Mr Zabchekov following his arrest .

On DATE Mr PERSON summoned the applicant ( represented by counsel ) to allow her to consult the file on the investigation . The applicant made a number of requests and objections concerning shortcomings in the investigation . In particular , she stated that there had been fundamental contradictions between the first and the second medical reports , and that it was clearly impossible for a person suffering from such a grave injury as that found by the autopsy to steal car parts and resist arrest . The applicant again requested the exhumation of the body and the appointment of experts to answer the questions raised in her previous requests .

On DATE Mr PERSON drew up a report stating that the additional investigation ordered on DATE had not disclosed evidence that Mr Zabchekov had been beaten prior to his arrest . It was therefore proposed to suspend the investigation .

By an order of CARDINAL DATE the regional prosecutor , PERSON , suspended the criminal proceedings as all available evidence had been collected and it was not possible to determine the precise circumstances under which the fatal head injury had been inflicted .

NORP The decision noted the findings of the military prosecutors , in particular those concerning the skull fracture , and confirmed them . In respect of the other bodily injuries , the prosecutor stated that they had not placed Mr PERSON 's life in danger .

The decision also mentioned that when he had been taken to the police station Mr Zabchekov had been in good health .

On DATE the applicant appealed to ORG against the decision to suspend the proceedings . On DATE ORG confirmed the suspension of the proceedings .

NORP The applicant has submitted CARDINAL colour photographs of the dead body of PERSON and a photograph of the jacket which he was wearing before his death . The photographs were taken by journalists on DATE at the applicant 's home , after the autopsy and the return of the body for burial .

CARDINAL of the photographs are of Mr Zabchekov 's face . The hair covers CARDINAL of the forehead . Above and over the left eyebrow can be seen a bluish - purple bruise . The left eyelid is of a bluish colour . A bruise can also be seen on the lips , on the left side of the mouth .

On the other CARDINAL photographs a purple bruise colour can be seen on PERSON chest , on its right side , partly under the right armpit . Wounds are visible on PERSON right wrist .

On an unspecified date the applicant , acting through ORG , a non - governmental organisation based in GPE , solicited the opinion of Professor PERSON , ORG Pathologist , ORG , ORG , GPE , a member of ORG . Professor PERSON gave a written opinion dated DATE . Professor PERSON had at his disposal , inter alia , the description of what had allegedly happened in the case and extracts from the autopsy report and the reports of the forensic experts .

Professor PERSON stated , inter alia :

“ An epidural haematoma is usually caused by DATE against a hard surface or a strong blow with a blunt object . It is well known that a fall against a hard surface will often leave so - called contre - coup lesions . It is regrettable that the presence or absence of such lesions have not been mentioned . It has been mentioned that the deceased had a thin skull . In my opinion that is not an apologising factor in cases of interpersonal violence , as it is usually not known if a skull is thick or thin and it is inherent in the possible effects of violence that a person may have a thin skull . Together with the epidural haematoma there is usually a fracture ( fissure ) in the temporal bone and a rupture of the middle meningeal artery . The haemorrhage is thus arterial . It is in the beginning limited by the attachment of the dura to the inside of the bone . There is thus often a lucid interval that may last TIME , but often the interval is not longer than TIME . If the traumatic lesion involves the brain with a concussion or contusions there is usually not a lucid interval .

I agree with the CARDINAL forensic reports that the cause of death was the epidural haematoma and that it was caused by CARDINAL of the types of traumas mentioned . It may well have happened before the victim was arrested , but it can in no way be excluded that he sustained the fatal lesion during his stay in the police centre . I do not agree with the statement that there was a lapse of TIME from the trauma until death . It was based on the appearance of the blood clot . It is known that the blood after death can take various forms and even after death there is enzymatic biochemical activity that may change the blood in an unpredictable way and in various ways in different locations .

With reference to the other lesions these are not likely to have been sustained from the same trauma as the epidural haematoma . They are the result of blunt violence such as beating , kicking and/or falls , and may have been sustained during the stay in police detention .

The marks on the wrists are characteristically the results of handcuffing . Handcuffs will usually not leave marks , but may if they are too tight , if the person is struggling , or if he is dragged by the handcuffs .

In summary , it can not be determined if the epidural haematoma was caused by a fall or other types of blunt violence . It may well have been sustained just before or during the stay in police detention . An epidural haematoma is curable if an operation with evacuation of the haematoma is performed soon enough . If admitted to hospital sooner , PERSON might have been saved . ”

The Government submitted that Mr Zabchekov had a record at ORG ( Детска педагогическа стая ) and at the police in ORG on account of numerous alleged thefts .

A note dated DATE , issued by ORG and addressed to the police in ORG , stated that PERSON , who at that time was DATE , had a speech defect and was mentally retarded . Another note , dated DATE , reiterated those findings .

The Government explained that on DATE the applicant had been heard by an investigator in ORG in connection with a criminal investigation into thefts allegedly committed by her son , PERSON . She had stated , inter alia , that her son had always had a stammer . He had been ill since DATE . In particular , he had had moments when he could not breathe and his skin became bluish . His eyes had often been swollen and he had fainted during moments of sudden fear . Mr PERSON had seen doctors who had stated that he had problems with his spine . The applicant had mentioned the name of a Dr Miceva who had all the documents concerning the medical examinations carried out in respect of her son .

On DATE Mr Zabchekov had been questioned in connection with criminal proceedings concerning thefts . Asked about his health , he had stated that he had been prone to fainting and pain in his head and eyes . On DATE an investigator from ORG in ORG had opened criminal proceedings against Mr PERSON and other persons on charges of theft . On DATE Mr Zabchekov had been questioned and had stated , inter alia , that he had been treated by PERSON , a psychiatrist , and that he had been taking medication . Mr PERSON 's lawyer had requested a psychiatric examination , which had been scheduled for DATE .

Section CARDINAL(CARDINAL ) of the LAW provided as follows :

“ The police authorities shall issue a written order for an arrested person to be taken to the [ place of detention ] . ”

By virtue of LAW , the military courts hear criminal cases in which the accused is , for example , a police officer . Where a case would fall within the competence of the military courts , the preliminary investigation is handled by military investigators and prosecutors .

Article CARDINAL § CARDINAL ( CARDINAL ) taken in conjunction with Article CARDINAL provides that , in the event of a judgment of ORG finding a violation of the Convention “ of significant importance ” to a criminal case that has ended by virtue of a judicial decision , the prosecuting authorities shall request the reopening of the case by the competent court .


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

Anatoly Kovler;Elisabeth Steiner;Erik Møse;Isabelle Berro-Lefèvre;Khanlar Hajiyev;Linos-Alexandre Sicilianos

The applicant was born in DATE and is serving a prison sentence in GPE .

On an unspecified date the applicant was charged with several counts of sexual abuse of CARDINAL boys of minor age . On DATE he was arrested and remanded in custody . He was held in a temporary detention centre in GPE Tagil . The cell where he was detained was allegedly overcrowded . On DATE the applicant was released , pending trial , on his own recognisance .

On DATE the applicant was again placed in custody . He was held in remand prison no . IZ-CARDINAL/CARDINAL in GPE , where he remained until DATE . The applicant was detained in cell no . CARDINAL measuring QUANTITY .

The Government provided the following description of the conditions of the applicant ’s detention in the remand prison . The number of the inmates held in the cell varied from CARDINAL to QUANTITY persons . The applicant was provided with an individual sleeping place and bedding . The cell was equipped with a water supply as well as heating and sewage systems . The ventilation in the cell was in good working order . The temperature maintained in the cell was CARDINAL during DATE . The toilet was separated from the living area of the cell by a CARDINAL - high partition which ensured sufficient privacy for the person using it . It was located at a significant distance from the nearest bed and the dining table . The applicant was allowed to take a shower once DATE .

NORP In support of their observations , the Government submitted a copy of the remand prison population register and certificates prepared by the administration of the remand prison and correctional facility in DATE and DATE .

According to the applicant , the cell where he was detained was constantly overcrowded . Its population varied from CARDINAL to CARDINAL - and on CARDINAL occasion reached CARDINAL - inmates . There were CARDINAL beds in the cell , one of which was used as a table . The applicant was not provided with any bedding . The ventilation system did not work . The cell was very hot and stuffy . The electric lighting was weak and it was impossible to read . The cell was infested with bed bugs and cockroaches . The toilet was located QUANTITY from the nearest bed and QUANTITY from the dining table . It was separated from the living area of the cell by a QUANTITY - high partition which provided no privacy to the person using the toilet . The applicant was permitted to take a shower once DATE .

NORP In support of his own submissions , the applicant provided the Court with the written statement of inmate PERSON who had been detained in the same remand prison in DATE .

Following the applicant ’s conviction , from DATE to CARDINAL DATE he served a prison sentence in correctional facility no . GPE in GPE . The correctional facility measured QUANTITY in total . The applicant was detained in units CARDINAL and CARDINAL . The number of detainees housed in the facility during the period in question varied from CARDINAL to CARDINAL .

According to the ORG , unit CARDINAL measured QUANTITY ( the living area measuring QUANTITY ) and housed from CARDINAL to CARDINAL detainees . The sanitary area of the unit was equipped with CARDINAL wash basins and CARDINAL toilets .

Unit CARDINAL measured QUANTITY ( with the living area measuring QUANTITY ) and housed from CARDINAL to CARDINAL detainees . The sanitary area of the unit was equipped with CARDINAL wash basins and CARDINAL toilets .

The applicant had been provided with underwear , clothes and shoes . He had received the necessary medical care . He had been allowed CARDINAL family visits .

On several occasions in DATE the applicant was placed in a disciplinary cell . The Government provided the following information as regards the number of inmates sharing the disciplinary cell from a copy of the relevant population register .

The disciplinary cells were provided with a toilet located QUANTITY from the dinner table and separated from the living area of the cell by a QUANTITY - high partition . The water supply and the sewage , ventilation and heating systems were in good working order . The average temperature in the disciplinary cells ranged from CARDINAL to CARDINAL

All detainees , before being placed in a disciplinary cell were subjected to a full body search and were also searched ( fully clothed ) before and after each session of DATE exercise . These searches were not monitored by video camera .

The applicant was allowed to use the shower facilities , which comprised CARDINAL shower units .

According to the applicant , unit CARDINAL measured QUANTITY and housed from CARDINAL to CARDINAL detainees . The sanitary area of the unit was equipped with CARDINAL wash basins and CARDINAL toilets . Unit CARDINAL measured QUANTITY and housed from CARDINAL to CARDINAL detainees . The sanitary area of the unit was equipped with CARDINAL wash basins and CARDINAL toilets . NORP facilities were made available to the detainees once a week for TIME during which time they were used by CARDINAL inmates so each person had TIME in which to take a shower . During DATE , the inmates were allowed to move freely only within the unit they were assigned to and within an adjacent area of QUANTITY – together with the inmates assigned to CARDINAL other units . There had been CARDINAL inmates , in total , sharing the CARDINAL units .

As regards the applicant ’s placement in a disciplinary cell , he provided the following information .

While in detention in the disciplinary cells , the applicant had not been provided with his own bed and had to take turns with other inmates to sleep . The toilet was located QUANTITY away from the dining table and separated from the living area of the cell by a QUANTITY - high partition , which offered no privacy to the person using it . The toilets were dirty and foul - smelling . The applicant had been subjected to a full body search twice a day before and after the outside exercise periods , when all the inmates were taken into the hallway and forced to undress . The searches were monitored by personnel through video cameras – on many occasions by female warders . In DATE the temperature in the hallway did not exceed CARDINAL The disciplinary cells were infested with parasites . The food and medical care were of poor quality .

The applicant further provided a written statement by inmate ORG . , who submitted that CARDINAL inmates had been assigned to each unit in the correctional facility and that each unit measured CARDINAL . The bunk beds in the dormitories were arranged in CARDINAL tiers . The shower facilities comprised CARDINAL shower units and CARDINAL inmates were allowed TIME in which to use them .

On DATE the Office of the Prosecutor General of GPE prepared a report concerning the applicant ’s allegations regarding the conditions of his detention . The Head of ORG summed up the results of the inquiry as follows :

“ In the course of the inquiry , the prosecution authorities established that [ the applicant ] , while detained in cell no . CARDINAL in [ the remand prison ] and also in [ the correctional facility ] had not been provided with the statutory personal space of CARDINAL and QUANTITY respectively . However , this violation resulted from the overcrowding of the facilities caused by circumstances beyond the control of the administration . Accordingly , such conditions can not be viewed as amounting to torture , inhuman or degrading treatment in contravention of LAW . ”

Section CARDINAL of ORG of DATE provides that detainees should be kept in conditions which satisfy sanitary and hygienic requirements . They should be provided with their own sleeping place and given bedding , tableware and toiletries . Each inmate should have CARDINAL four square metres of personal space in his or her cell .

Article CARDINAL § CARDINAL of the Penitentiary Code of DATE provides for a minimum standard of QUANTITY of personal space for male prisoners in correctional colonies .


CASE OF TSERKVA SELA SOSULIVKA v. UKRAINE

Preliminary objection dismissed (applicability);Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Pecuniary damage - claim dismissed;Non-pecuniary damage - award

Karel Jungwiert;Margarita Tsatsa-Nikolovska;Mark Villiger;Peer Lorenzen;Rait Maruste;Snejana Botoucharova;Volodymyr Butkevych

The applicant , the GPE ORG of the village of ORG in GPE ( ORG ) , is a religious group belonging to the patriarchate of the GPE ORG ( « PERSON греко-католицька церква села ORG області ORG ) . The head of the applicant association is its priest , Father PERSON .

In accordance with a decision by ORG ( “ NORP Regional Administration ” ) on DATE , the applicant was entitled to use church LOC situated in the village of ORG in GPE ( “ церква PERSON Діви Марії у с. GPE ” ) for religious ceremonies . It was required to share the LOC with another church of ORG of the Kyiv Patriarchate ( “ ORG KP ” ; “ ORG Церкви Київського Патріархату ” ) . In accordance with paragraph CARDINAL of the decision , ORG of GPE ( “ ORG ” ) was to conclude separate agreements on the use of the church LOC and its property with religious denominations , specifying particular times , procedures and conditions for their use . The decision itself did not provide specific details on how the LOC and property were to be used .

On DATE the applicant concluded agreement on the use of the church LOC with ORG and agreed to share it with the UOP KP on the conditions specified in this agreement . The agreement contained no details as to how the LOC were to be used . The applicant also alleged that the UOP KP continued to use the LOC without any agreement with ORG and impeded its own use of the LOC .

On DATE the applicant requested ORG to transfer the church LOC to it for its sole use and its religious needs . It also informed ORG that the ORG KP had refused to comply with the decision of DATE and the agreement concluded with ORG on DATE . In reply , on DATE ORG of ORG informed the applicant that disputes over the use of religious LOC that had been transferred to religious organisations in accordance with agreements on their use were within the competence of ORG ( section CARDINAL(CARDINAL ) of LAW ) .

On DATE the applicant lodged complaints with ORG against ORG , seeking a transfer of the use of the church LOC , as specified in the agreement with ORG . In particular , the applicant stated that the church sharing the premises had failed to comply with the decision of DATE . It further stated that under section CARDINAL of the Freedom of Consciousness and Religious Organisations Act , the ORG as the owner had to manage the sharing and use of the church LOC on the basis of agreements with the occupiers .

On DATE a judge of ORG rejected the applicant 's complaint on the ground that it should have been lodged with a court of general jurisdiction , not an arbitration court dealing with commercial matters . In particular , he referred to the fact that the applicant had complained about the lack of arrangements for the use of the LOC following the decision of ORG of DATE ( see paragraph CARDINAL above ) .

On DATE ORG , sitting in a chamber composed of CARDINAL judges , examined the applicant 's request to review the case in the course of supervisory review proceedings and upheld the decision of DATE . In particular , it referred to section CARDINAL of the Freedom of Conscience and LAW of DATE , which stated that disputes over the use of religious LOC were to be examined under LAW by the courts of general jurisdiction and not by the arbitration ( commercial ) courts . It further mentioned that the decision of ORG was an “ enforceable document ” and could have been enforced in accordance with Articles CARDINAL and CARDINAL of the Code of Civil Procedure .

NORP The applicant appealed to the President of ORG seeking his intervention by means of a supervisory review appeal against the decisions of DATE and CARDINAL DATE .

On DATE the President of ORG ( as ORG was now called ) rejected the applicant 's request owing to the changes introduced to LAW , which made the ruling of CARDINAL DATE final and not subject to any appeal .

On DATE the applicant instituted proceedings in ORG ( ORG міський суд ) , the local first instance court of general jurisdiction , against ORG for a transfer of the LOC to its sole use .

On DATE the court rejected this claim , stating that the courts of general jurisdiction had no authority to deal with disputes between legal entities . It also made an order for the dispute to be referred to ORG , which , in its view , had jurisdiction over the matter . The applicant did not appeal in cassation and the ruling of CARDINAL DATE became final . Instead , it lodged a request with ORG for supervisory review of the ruling of CARDINAL DATE .

On DATE ORG refused to initiate supervisory review proceedings in the case . In particular , the Deputy President of ORG informed the applicant that disputes between legal entities were within the jurisdiction of the arbitration courts and that there were thus no reasons for lodging a supervisory review appeal . He referred to ORG of the Code of Civil Procedure and LAW .

On DATE the Deputy President of ORG refused to initiate supervisory review proceedings in the case , informing the applicant that disputes involving ownership claims over church LOC were within the jurisdiction of the commercial courts and disputes involving their use were to be examined by the local courts of general jurisdiction . It advised the applicant to clarify its claims .

The applicant then instituted proceedings in ORG for the transfer of the premises to its sole use .

On DATE the court refused to consider the applicant 's claims , referring to the ruling of DATE and the decision of the ORG of CARDINAL DATE by which the ORG had already resolved the dispute . The court also made reference to a practice direction that had been issued by the ORG on DATE ( see paragraph CARDINAL below ) .

On DATE the ORG upheld the ruling of DATE . It also held that the commercial courts had no jurisdiction over the case as it did not concern property issues , but a challenge against a decision taken by a ORG body , which was a matter to be dealt with in the course of administrative , not judicial , proceedings .

On DATE ORG refused to institute cassation proceedings in the case having found no grounds for doing so .

The relevant provisions of LAW read as follows :

In accordance with LAW , in force at the material time , that is to say before DATE , legal entities and private entrepreneurs engaged in business activities were entitled to apply to the arbitration courts , in accordance with the relevant jurisdictional rules , for the protection of their legal rights and interests . Any agreement waiving the right to apply to an arbitration court was deemed null and void .

Under LAW in force before DATE , the arbitration courts had jurisdiction over commercial disputes involving execution of the commercial contracts and applications for orders declaring certain normative acts null and void . The following were excluded from the jurisdiction of the arbitration courts : disputes as to technical standards and conditions ; prices for particular products , services or goods ; bankruptcy cases ; and cases involving ORG or ORG . Disputes concerning the validity of legal acts or concerning public - procurement contracts were within the exclusive jurisdiction of the arbitration courts .

Article CARDINAL of the Code established that ORG had jurisdiction over complaints against ORG . In accordance with the rules on exclusive jurisdiction , under LAW , cases involving the enjoyment of possessions were to be examined in the arbitration court with jurisdiction for the area in which the property was situated . Under LAW , the court was required to transfer the case - file to another court which had jurisdiction over claims which had been lodged with the wrong court . A ruling on the transfer of the case to a different court on jurisdictional grounds could be reviewed in the course of supervisory review proceedings .

The relevant extracts from the LAW , as amended on DATE , read as follows :

Transitional Provisions

“ CARDINAL . This law shall become effective from the date of its publication , save for Article CARDINAL - CARDINAL [ of the LAW ] , which shall become effective on DATE .

... CARDINAL . Decisions of the judicial divisions of ORG of GPE or of the ORG of ORG of GPE that were not challenged by way of supervisory review proceedings before this PERSON entered into force , as well as resolutions of ORG of GPE , shall be final but may be appealed against to ORG of GPE on the basis of and pursuant to the procedure prescribed by LAW of GPE . ”

In accordance with LAW extended to disputes relating to civil , family , labour and cooperative legal relations , if CARDINAL of the parties to a dispute is a natural person ( unless these disputes are within the jurisdiction of other authorities ) . The jurisdiction of the civil courts also extended to administrative legal relations referred to in LAW ( complaints against acts of ORG authorities , juristic persons or public officials , complaints against decisions given in relation to religious organisations and other disputes involving administrative legal relations ) .

In accordance with LAW ( which concerns enforcement proceedings ) , decisions of ORG bodies , adopted with regard to the ownership and use of religious LOC ( buildings ) and property are regarded as enforceable by ORG . Decisions of ORG were enforceable , without any court order , as they were equated to writs of execution issued on the basis of a judicial decision ( LAW ) .

Under the LAW , religious organisations have the right to use property , land , buildings and LOC owned by the ORG , non - governmental organisations or citizens ( section CARDINAL , LAW Property Status of Religious Organisations ” ) . Such property can be transferred to religious organisations under lease agreements .

In accordance with section CARDINAL of this Act , the use or ownership of religious LOC and property belonging to the ORG may be transferred without consideration on the basis of a decision of ORG . Religious LOC and property belonging to the ORG can be used jointly by CARDINAL or more religious communities if they consent . In the absence of consent , the ORG authority has to decide on the arrangements for the use of the LOC , by concluding separate agreements with each of the communities . Requests for the transfer of ownership of religious LOC or property or for their use without charge shall be examined within DATE of the date of receipt .

Under the relevant subparagraphs of section CARDINAL , agreements on the use of religious LOC and other buildings and property may be terminated or suspended in accordance with the procedure and on the grounds specified in the civil legislation of GPE . Decisions of the ORG authorities with regard to the ownership and use of religious LOC and property may be appealed against to the courts , in accordance with LAW .

Under section CARDINAL these organisations have the right to own , use and dispose of their property . These rights are protected by law ( section CARDINAL ) . Under section CARDINAL religious organisations have the right to create , in accordance with the provisions of their statutes , publishing , commercial , agricultural and other enterprises and charitable institutions have the rights of a juristic person .

In accordance with section CARDINAL(CARDINAL ) of this LAW , ORG is responsible for the enforcement of decisions of the ORG authorities adopted with regard to the ownership and use of religious LOC and property .

Article CARDINAL ) of the Act states that the State Bailiff shall initiate enforcement proceedings upon request of the creditor or his representative in so far as it concerns the enforcement of CARDINAL of the decisions mentioned in LAW , on the basis of the writ of enforcement .

The Practice Direction states that disputes that relate to the amendment , termination or enforcement of an agreement on the use of the LOC shall not be within the jurisdiction of the commercial ( former arbitration ) courts ( paragraph CARDINAL of the Practice Direction ) . It further establishes that decisions concerning the transfer of ownership of religious LOC or property may be appealed against to the commercial courts ( paragraph CARDINAL of ORG ) and are not within the jurisdiction of the courts of general jurisdiction . Moreover , under paragraph CARDINAL of ORG , the commercial courts must decline jurisdiction to hear actions for recovery of property improperly taken ( віндікаційні позови ) or actions to eliminate obstacles in free enjoyment of possessions ( негаторні позови ) , if a ORG authority has already adopted a decision on that issue in an “ enforceable document ” in accordance with the section CARDINAL(CARDINAL ) of LAW .

The relevant extracts from the Report read as follows :

“ ( ... ) F. Freedom of conscience and religion

( ... ) CARDINAL . GPE undertook to ( ... ) find a legal solution for the restitution of church property . The present PERSON on freedom of conscience and religious organisations dates back to DATE . Despite the fact that it is regarded as CARDINAL of the best freedom of religion laws in the region , some of its provisions lack clarity . ( ... ) The law also contains a number of other ambiguous provisions , which leave a wide discretion to the implementing authorities . Hence , the quite progressive law for the time of its adoption now requires significant rewording . ( ... )

NORP The NORP legislation still lacks effective legal tools for restitution of church property . So far restitution was carried out occasionally on the basis of the parliament 's DATE resolution and several presidential decrees . The legal problem of restitution mainly stems from the fact that religious associations have no right to obtain a legal entity status and thus can not possess property . Most of the organisations , which owned the property that should be restituted , ceased to exist and ORG is represented by several organisations . This leads to an ad hoc restitution practice totally depending on the local authorities ' preferences and which in most cases entails not the return of the ownership rights but transfer of property into a gratis rent . We , therefore , call on the NORP authorities to elaborate clear rules on the restitution of religious property . ”

The relevant extracts from the ORG read as follows :

“ ( ... ) C. Freedom of conscience and of worship

One of GPE 's commitments , listed in paragraph CARDINAL , xi . of Opinion No . CARDINAL , is to facilitate ' peaceful solution to the disputes existing among the NORP churches ( ... ) while respecting the ORG 's independence vis - à - vis the ORG ; a new nondiscriminatory system of church registration and a legal solution for the restitution of church property should be introduced ' . ”


ALLIANZ-SLOVENSKA POISTOVNA, A.S., AND OTHERS v. SLOVAKIA

David Thór Björgvinsson;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä

The applicants are the following CARDINAL private insurance companies which were established under the laws of GPE in DATE , DATE and DATE respectively and have their registered seats in GPE ( GPE ) : ORG – Slovenská poisťovňa , a.s . ; Česká poisťovňa - ORG , akciová spoločnosť ; ČSOB GPE , a.s . ; ORG poisťovňa , a.s . ORG ; ORG poisťovňa , a. s. and ORG poisťovňa , a.s .

The applicant companies were represented before the ORG by Mr Ľ. Fogaš , a lawyer practising in GPE .

ORG ( “ the Government ” ) were represented by PERSON , their Agent , and PERSON , Co - Agent .

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

On DATE Act no . PERSON . on Insurance ( “ the LAW ” ) came into force . The LAW set an obligation for insurance companies doing business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles to pay , on a DATE basis , PERCENT of the premiums collected DATE to ORG ( “ the Ministry ” ) . ORG would pass on those funds to certain bodies responsible for saving and protecting lives and property in road accidents such as fire brigades , rescue services and emergency hotlines .

On DATE the applicant companies , who do business in the above - mentioned field , lodged an action against the Ministry with the Bratislava I ORG ( ORG súd ) . They requested that the ORG rule that they were not obliged to pay PERCENT of the premiums they collected as stipulated by LAW . In their view the LAW violated their property rights and the nondiscrimination principle guaranteed by LAW and the Convention .

On DATE ORG terminated the proceedings and stated that there was no other ORG organ to which the case could be transferred . It held that the relation between the parties was of a public - law nature and could not be considered civil or commercial , in which case it would be covered by the area of private law and the ordinary courts would have jurisdiction to examine it on the basis of LAW . No dispute over private - law matters was found to exist .

On DATE ORG ( PERSON súd ) upheld the decision of ORG following an appeal by the applicant companies . The view was expressed that the specific obligation had been imposed upon the applicants by legislation and no legal provision permitted ordinary courts to rule on the alleged non - conformity of legislation with LAW . That was a matter solely for ORG ( Ústavný súd ) to examine in the context of a motion lodged under LAW by one of various specified State organs .

The applicants then claimed before ORG , in a complaint under LAW , that they were not obliged to pay the above - mentioned contributions as the obligation had been imposed on them unconstitutionally . They further complained that the courts had refused to determine their claim .

On DATE ORG declared the complaint inadmissible for the applicant companies’ failure to exhaust ordinary remedies , in view of which ORG lacked jurisdiction to consider the complaint . In particular , ORG found that the applicant companies had failed to appeal against the decision of CARDINAL DATE on points of law under LAW ( f ) of LAW , whereas that remedy was available to any party who had been “ prevented from acting before a court as a result of the court ’s conduct ” .

On DATE the Government passed a resolution proposing that section CARDINAL of the Act be repealed , specifying in the explanatory report that this provision interfered with the insurance companies’ property in a discriminatory manner . The amendment was not adopted by the ORG , however .

In DATE a new LAW was adopted which maintained the applicant GPE obligation to pay PERCENT of the premiums collected .

Section CARDINAL ( CARDINAL ) provided that insurance companies which did business in the field of compulsory contractual insurance of liability for damage caused by the operation of motor vehicles were obliged to pay to ORG , by DATE , PERCENT of the premiums for insurance in the abovementioned field collected in DATE . The insurance companies were obliged to report their fulfilment of this obligation to ORG within DATE .

Section CARDINAL ( CARDINAL ) provided that ORG ( of the Interior ) , after consulting ORG , would pass on these funds to fire brigades , departments of ORG ( of the Interior ) , rescue services and emergency hotlines in order to meet the costs incurred in obtaining , maintaining and operating the material and facilities needed to research the causes of road accidents and to save and protect lives and property in road accidents .

In DATE a new LAW was adopted which replaced the relevant provisions of LAW . The obligation for the insurance companies to pay PERCENT of the premiums collected on a yearly basis was maintained in section CARDINAL of LAW . By DATE the Ministry ( of the Interior ) is required to inform ORG about the use made of the contributions paid by the insurance companies . ORG ( of the Interior ) is also under an obligation to make this information public .

Section CARDINAL imposes a duty to take out an insurance policy in respect of motor vehicles . With regard to domestic motor vehicles , this duty lies with the vehicle ’s holder , owner , operator or lessee ( sub - section CARDINAL ) . As to foreign motor vehicles , unless it is otherwise provided for , the person liable to arrange for the insurance of a vehicle is the vehicle ’s driver ( subsection CARDINAL ) . The duty to take out an insurance policy commences at the latest on DATE on which the motor vehicle is used ( sub - section CARDINAL ) .

ORG has held on many occasions that an examination of complaints lodged by natural or legal persons under LAW of the LAW can not entail a review of the constitutionality of legislation ( see , for example , decisions no . II . ÚS CARDINAL/CARDINAL , no . II . ÚS CARDINAL/CARDINAL , no . II . ÚS CARDINAL/CARDINAL , no . III . ÚS CARDINAL/CARDINAL or no . LAW . ÚS DATE ) .


Violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses (domestic proceedings) - claim dismissed;Costs and expenses partial award - Convention proceedings

The applicant was born in DATE and lives in GPE .

On DATE the applicant instituted denationalization proceedings in GPE ( PERSON ) seeking restitution of a property previously owned by her grandmother .

On DATE the GPE forwarded the applicant ’s claim to ORG , ORG ( FAC , enota v Mariboru ) . The court dismissed her claim twice and declared a lack of jurisdiction in the case . However , both decisions had been quashed on appeal and the case was ultimately considered by the renamed ORG ( Okrajno LOC ) .

On DATE the ORG entered into force with respect to GPE .

Of the CARDINAL hearings held DATE and DATE , none was adjourned at the request of the applicant .

On DATE the court gave a judgement dismissing the applicant ’s claim .

On DATE the applicant appealed to ORG ( PERSON ) .

On DATE the court allowed her appeal and remitted the case to the first - instance court for re - examination .

On DATE the first - instance court held a hearing .

On DATE the court found that the legal grounds for the denationalisation proceedings existed but suspended the part of the proceedings concerning the form and means of restitution until the decision concerning the legal grounds became final .

On DATE the first defendant ( ORG , represented by the ORG Attorney ) and on DATE the second defendant ( ORG ) appealed against that decision to ORG .

On DATE the court allowed the appeals and remitted the case to the first - instance court for re - examination by a new judge .

DATE and DATE ORG held CARDINAL hearings . A hearing scheduled for DATE was called off on the applicant ’s request .

During the proceedings , the court appointed CARDINAL experts to assess the property at issue .

DATE and CARDINAL DATE the applicant lodged CARDINAL written submissions in which she disagreed with the estimated costs for CARDINAL of the expert opinions .

On DATE the applicant lodged preliminary written submissions .

The proceedings are still pending .

Throughout the proceedings , the applicant lodged CARDINAL requests for supervision with the President of ORG and CARDINAL petitions with ORG ( PERSON človekovih pravic ) complaining about the length of the denationalisation proceedings .


Remainder inadmissible;Violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment) (Substantive aspect);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 8 - Right to respect for private and family life (Article 8-1 - Respect for correspondence);Violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of petition);Non-pecuniary damage - award

André Potocki;Ann Power-Forde;Dean Spielmann;Elisabet Fura;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

The applicants were born in DATE and DATE respectively and are currently serving life sentences in prison .

The second applicant was held in GPE no . CARDINAL ORG ( “ the Sumy SIZO ” ) from DATE to CARDINAL DATE , except for the period DATE and DATE when he was moved to another detention facility .

The first applicant was held in LOC from DATE to CARDINAL DATE except for the period DATE and DATE when he was moved to another detention facility .

On DATE both applicants were moved to Romny no . PERSON ( “ FAC ” ) to serve their life sentences .

On DATE and DATE and DATE the second applicant attempted to send letters to the ORG via the postal service of ORG .

On DATE and CARDINAL and DATE the first applicant attempted to send letters to the ORG via the postal service of ORG .

According to the applicants , these letters were read by the officials of ORG and not sent to the ORG .

In the same way , the applicants tried to send letters to other international institutions , such as ORG for Human Rights , ORG Human Rights , ORG , ORG , and ORG .

These letters were also allegedly screened by the officials of ORG and not sent to the addressees .

According to the applicants , the conditions of their detention in the Sumy SIZO were unsatisfactory . The applicants were held together in various cells , each of them measuring CARDINAL sq . m with the sanitary unit covering QUANTITY . m of that space . The cells thus allowed QUANTITY . m of living space for both applicants , which amounted to QUANTITY . m per applicant .

The cells were dark , dirty , and cold in DATE and hot in DATE , which gave rise to various illnesses . For DATE there was no hot water supply . No DATE footwear was supplied , while the inmates were prohibited from wearing their own footwear . As a result , in DATE the applicants could not benefit from their entitlement to DATE open air physical exercise . Their bed linen consisted only of a sheet . The applicants were not provided with any medical assistance in respect of their heart conditions , while keeping and administering any medicine in the cell was forbidden .

The applicants complained to the domestic authorities on account of the physical conditions of their detention in LOC . In particular , on DATE , DATE and DATE the relevant complaints were handed to the staff of ORG for onward dispatch to the domestic authorities .

According to the Government , the cells in which the applicants were detained measured QUANTITY m and were equipped with the requisite furniture . There was a window and a sanitary unit and washstand in each cell . The temperature was CARDINAL degrees Celsius during DATE . The water supply , lighting system and sanitation were appropriate . The showers were made available once per week . Detainees’ clothes and bed linen were regularly changed . In support of their account of the facts , the Government submitted reports prepared in DATE by the officials responsible for the maintenance of the facility .

As regards medical assistance , the Government submitted that during their detention in LOC , the first applicant was medically examined CARDINAL times and the second applicant was examined CARDINAL times . The applicants were x - rayed regularly to identify any signs of lung diseases and provided with appropriate treatment . They were also assessed by psychiatrists . During his detention in ORG the second applicant was diagnosed with and treated for gastritis . The applicants made no complaints as to their health or the insufficiency of the medical assistance offered by the medical unit of the facility . In support of their statements the Government submitted copies of the applicants’ medical records and a report of the governor of ORG concerning the regime of medical assistance provided to the detainees of that facility .

In the course of his detention in GPE , the second applicant attempted to send a number of letters , addressed to , among others , the following addressees :

the national ombudsman ( dated DATE and DATE and DATE ) ;

ORG dated DATE and DATE and DATE ) ;

ORG of GPE on ORG ( dated DATE and DATE ) ;

ORG dated DATE ) ; and

ORG dated DATE ) .

According to the second applicant , these letters were read by officials of FAC and returned to him .

NORP By letter of CARDINAL DATE the applicant informed the ORG that he wished to terminate the consideration of his application , claiming that his debts owed to the victims of the crimes he had committed had been covered by the ORG .

NORP By letter of DATE the applicant informed the ORG that the issue of his debts to the victims of the crimes had not been resolved by the ORG and he had been mislead by the authorities when asking the ORG to terminate the consideration of his application . He therefore asked the ORG to disregard the letter of CARDINAL DATE and insisted on the continuation of the proceedings .

Section CARDINAL of the Act provided , inter alia , for persons detained in custody to be able to correspond with relatives , other persons and legal entities upon the written consent of the authority in charge of the criminal case against the detainee concerned .

The officials of the detention centre were required to monitor all detainees’ letters , except those addressed to the national ombudsman or a prosecutor .

If a letter was related to the criminal case against the detainee concerned , it had to be handed over within DATE for consideration by the authority in charge of the detainee ’s criminal case . Letters containing information which might interfere with the administration of justice were not to be dispatched to the addressee but were to be handed over to the authority in charge of the detainee ’s criminal case . The detainee and the prosecutor had to be informed of the interception made .

If a letter was not related to the detainee ’s criminal case , it had to be answered by the officials at the detention centre or sent on to the addressee .

Article CARDINAL of the Code provided , inter alia , that letters sent and received by prisoners would be monitored by prison officials . Letters addressed to the national ombudsman or a prosecutor would not be monitored .


The applicant , PERSON , is a NORP national who was born in DATE and lives in GPE – a locality in LOC of LOC . The respondent Government were represented by PERSON , Representative of GPE at ORG .

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

The applicant is a school teacher . In DATE she was dismissed from work . She brought proceedings against her employer – a municipal school owned and funded by the local authority – for reinstatement , pecuniary and non - pecuniary damages .

On CARDINAL DATE the ORG of LOC found for the applicant . The court ordered the applicant ’s reinstatement and awarded her MONEY ( RUR ) in pecuniary damage , RUR CARDINAL,CARDINAL in non - pecuniary damage and ORG in costs and expenses .

On DATE ORG upheld the judgment on appeal .

On DATE the applicant was again dismissed from work and once again brought proceedings seeking to be reinstated and awarded non - pecuniary damage .

On DATE the ORG of LOC dismissed the applicant ’s claims .

However , on DATE ORG upheld the judgment on appeal .

It appears that the judgment of DATE , as upheld on DATE , was enforced in so far as pecuniary damage was concerned , whereas the award of RUR CARDINAL,CARDINAL for non - pecuniary damage as well as of ORG awarded for costs and expenses remained unenforced .

On an unspecified date the applicant applied for indexation of the remaining judgment debt .

On DATE the ORG of LOC acknowledged that the judgment of CARDINAL DATE as upheld on appeal on DATE remained partially unenforced and awarded the applicant RUR CARDINAL . The awarded sum represented the sum of the remaining principal debt ( RUR CARDINAL,CARDINAL ) and the damages for inflation losses ( RUR CARDINAL ) .

On DATE the enforcement proceedings were set in motion .

On DATE RUR CARDINAL were transferred on the applicant ’s bank account .


The applicants [ Mr PERSON and Mr PERSON ] , who were born in DATE , are NORP nationals and live in GPE . They are retired teachers .

The applicants were represented before the ORG by Mr PERSON , a lawyer practising in GPE .

Ruling on an application filed jointly by the applicants in DATE , the Emilia - Romagna Regional Administrative Court decided in DATE that , when determining the applicants’ career structure and salary , ORG should also take into consideration , in accordance with Law no . CARDINAL of DATE , the national service carried out by the applicants .

After that judgment had become final and ORG had begun to implement it , the NORP legislature adopted PERSON no . CARDINAL of DATE . LAW of that statute , giving an interpretation of LAW no . CARDINAL of DATE , provided that in future only national service carried out at the time of , or after , the entry into force of the statute could be taken into consideration .

On DATE ORG informed the applicants that in future it would apply that statute when determining their career structure and salary .

In DATE the applicants applied to the same administrative court for enforcement of the original judgment and , inter alia , challenged the constitutionality of the legislative provision which was adverse to them . In their submission , that provision infringed the principle that legislation must not be applied retrospectively , since it affected decisions which had become final . The applicants requested the administrative court to find that the first judgment had not been enforced and to appoint a “ commissioner ad acta ” to enforce it .

The Emilia - Romagna Regional Administrative Court , finding that the constitutionality issue was not manifestly ill - founded , stayed the proceedings and referred the point to ORG .

In judgment no . CARDINAL of DATE ORG dismissed the constitutionality issue . It held that in the field of civil LOC , the retrospective application of a legal provision was subject only to the general principle of reasonableness . Since the provision in question was an interpretative one , it was reasonable . Furthermore , it was designed to ensure equal treatment of all those who had carried out national service during DATE .

As the applicants did not resume the proceedings in the administrative court , that court did not rule on their application for enforcement . The applicants submitted that they had not resumed the proceedings because , following the decision of ORG , the administrative court would inevitably have dismissed their application .


No violation of Art. 3;Violation of Art. 8;Violation of Art. 6-1;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - award

David Thór Björgvinsson;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä;Stanislav Pavlovschi

“ An intervention in the health field may only be carried out after the person concerned has given free and informed consent to it .

This person shall beforehand be given appropriate information as to the purpose and nature of the intervention as well as on its consequences and risks .

The person concerned may freely withdraw consent at any time . ”


BATINOVIC AND POINT-TRADE, D.O.O. v. CROATIA

The first applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . The second applicant , ORG , d.o.o . , is a limited liability company with its seat in PERSON . The applicants were represented before the ORG by Palić and ORG , GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON .

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

The applicants were shareholders of ORG , which is a joint stock company with its seat in GPE ( “ the GPE ” ) . The ORG was entirely owned by private individuals and companies .

On DATE ORG ( Savjet Hrvatske Narodne Banke , “ the ORG ” ) adopted a decision to appoint a temporary manager for ORG . According to LAW , from DATE of the service of such decision , all powers of the management board , the supervisory board and the ORG assembly were transferred to the temporary manager . Subsequently , on DATE the ORG prolonged the appointed temporary manager ’s mandate for DATE .

Meanwhile , on the basis of an expert opinion indicating the ORG ’s financial losses , on DATE the ORG proposed to the Government to commence the process of sanation and restructuring of the ORG in line with the domestic legislation .

According to the above proposal , on DATE the Government adopted ORG ( “ the LAW ) . From that date , all shares of the shareholders were withdrawn and annulled . Following the process of sanation , the ORG was to issue new shares , all to the name of ORG for Securing Deposits and ORG ( PERSON agencija za osiguranja štednih uloga i sanaciju banaka ) .

In DATE the applicants filed separate petitions for review of constitutionality and legality ( prijedlog za ocjenu ustavnosti i zakonitosti ) of the Decision . They complained that the Decision violated their property rights as shareholders of the ORG . They also claimed that the ORG had been in good standing and that the ORG had therefore been arbitrary and , in any event , unnecessary .

On DATE ORG ( Ustavni sud PERSON ) discontinued the proceedings because the law on which the ORG was based had meanwhile been abrogated .

The Law on ORG and Restructuring of Banks ( Zakon o sanaciji i restrukturiranju banaka , ORG no . CARDINAL of DATE , “ the LAW ” ) , insofar as relevant , read as follows :

“ The procedure of sanation and restructuring shall take place when a bank shows potential losses ... of PERCENT of the amount of its share capital , if the ORG deems such procedure feasible and economically justifiable .

The decision on sanation and restructuring of a bank shall be given by ORG on the basis of a proposal by the ORG . ”

The LAW was abrogated on DATE ( Zakon o prestanku važenja zakona o sanaciji i restrukturiranju banaka , ORG no . CARDINAL of DATE ) .

ORG ( ORG o sanaciji i restrukturiranju GPE PERSON d.d . , GPE , ORG nos . CARDINAL of DATE and CARDINAL of CARDINAL DATE ; “ the Decision ” ) , insofar as relevant , reads as follows :

“ It is established that on DATE the ORG has

( a ) risky placements and potential obligations in the amount of CARDINAL kunas , including potential losses of CARDINAL kunas :

( b ) doubtful and disputed claims ... in the amount of CARDINAL kunas ;

( c ) business losses incurred in DATE and DATE and DATE in the amount of CARDINAL kunas .

On DATE of the publication of this Decision all existing shares of the ORG shall be withdrawn and annulled . The ORG shall issue new shares in the amount of MONEY kunas , which shall be entirely owned by the ORG . ”

The LAW of GPE ( ORG , ORG no . CARDINAL of CARDINAL DATE ) provides as follows :

“ The right of ownership is guaranteed .

Property may be restricted or taken in accordance with the law and in the interest of GPE subject to payment of compensation equal to its market value .

The exercise ... of property rights may , on an exceptional basis , be restricted by law for the protection of the interests and security of GPE , nature , the environment or public health .

ORG :

- shall decide on the conformity of statutes with the LAW ;

- shall decide on the conformity of subordinate legislation with the LAW and statutes ;

- may decide on the constitutionality of statutes or subordinate legislation which are no longer in force , provided that from the moment of their abrogation until the submission of an application or a petition to institute the proceedings not DATE has passed . ”

LAW on LAW ( Ustavni zakon o PERSON , ORG no . CARDINAL of CARDINAL DATE ; “ the LAW ” ) , insofar as relevant , provides as follows :

“ Every individual or legal person has the right to request the institution of proceedings to review the constitutionality of statutes or subordinate legislation ....

“ The Constitutional Court shall commence proceedings within DATE after the petition has been lodged . ”

The relevant part of section CARDINAL ( CARDINAL ) of LAW ( Zakon o sudovima , ORG nos . CARDINAL/CARDINAL , PERSON , CARDINAL and CARDINAL ) as in force at the material time reads as follows :

Commercial courts ... adjudicate disputes concerning establishment , functioning and dissolution of commercial companies as well as disputes concerning dispositions with membership and membership rights in such companies ... ”

In its judgment Pž-CARDINAL/CARDINAL - CARDINAL of DATE ORG ( ORG trgovački ORG ) adopted a judgment , which insofar relevant reads as follows :

“ It is declared that PERSON ... is a shareholder of ORG . GPE and holder of rights in respect of CARDINAL shares of nominal value of CARDINAL HRK each ... , and therefore entitled to both the property rights deriving from these shares and all the rights acquired through the investment of capital in GPE banka d.d . from its foundation until DATE ... ”