CASE OF MAGOMADOV AND MAGOMADOV v. RUSSIA

Violation of Art. 2;Violation of Art. 3;No violation of Art. 3;Violation of Art. 5

The applicants are brothers . They were born in DATE and DATE respectively and lived in GPE .

The facts surrounding the disappearance of the applicants ' brother , ORG , and of the first applicant , as presented by the parties , are set out in Part A. A description of the materials submitted to the ORG is contained in Part B.

The applicants lived with their family in the village of GPE in GPE . Their brother , PERSON , born in DATE , lived in the same house . He played for the local football team and in DATE received the “ Best Football Player of the LOC ” award .

The applicants submitted that on DATE their house and their neighbours ' house had been searched by an armed unit of ORG ( ORG ) , which had arrived in CARDINAL ORG vehicles and several armoured personnel carriers ( APCs ) . No documents authorising the search were presented . ORG was arrested in his house by men in military uniforms . They drove him away and he has not been seen since .

NORP Immediately after ORG arrest the family started to look for him . They applied to various law - enforcement authorities in GPE and in GPE , asking for information about him . They have submitted to the ORG copies of letters addressed to ORG , ORG of the ORG and ORG of the Interior , as well as ORG , ORG , the director of the ORG and the Minister of the ORG . The relatives received very little substantive information in reply . On several occasions they received copies of letters stating that their complaints had been forwarded to other authorities .

On DATE the head of the criminal police of ORG of the Interior ( NORP ) in PERSON ( начальник криминальной милиции временного отдела внутренних дел Октябрьского района г. ORG ) , Major PERSON , issued a certificate stating that on DATE ORG had been detained in GPE on suspicion of having committed a serious crime . The suspicion had been dispelled , and Mr Magomadov had been released on DATE at TIME , after the end of the curfew .

The applicants ' mother submitted that when she had requested to see the register of detainees in LOC for the relevant dates , she had been refused permission .

On DATE ORG of the ORG informed the applicants ' mother that the officers of the LOC department of the ORG had not participated in the operation of DATE . At the same time the letter stated that on DATE the head of the district department of the ORG , following a request from the Oktyabrskiy VOVD , had met with an “ operative group ” at the checkpoint between the villages of ORG and PERSON . The letter further explained that ORG had visually resembled a “ wanted fighter ” and that because of that the servicemen of ORG “ had invited him to PERSON in PERSON to clarify some questions of interest to them ” . The letter stated that the ORG had no information about the whereabouts of ORG and advised his mother to apply to the Oktyabrskiy VOVD .

On DATE ORG forwarded the applicants ' mother 's complaint about her son 's detention to ORG . On DATE and CARDINAL , DATE and DATE ORG forwarded the first applicant 's complaints to ORG of the Interior . On DATE ORG forwarded the applicants ' parents ' complaint about the disappearance of their son to ORG , with an instruction to open a criminal investigation under LAW ( kidnapping ) .

On DATE the Argun ORG informed the first applicant that a criminal investigation into his brother 's kidnapping had been opened on DATE .

On DATE ORG of the Interior informed the first applicant that on DATE ORG had been detained by the ORG officers on suspicion of involvement in illegal armed groups . He had been taken to the Oktyabrskiy VOVD in PERSON . Following an inquiry , it had been established that the detainee had no connection to the illegal armed groups and he had been released on DATE . However , in view of the curfew , he had requested to spend TIME at the NORP and had been permitted to do so . In TIME of DATE he had left the ORG and had never been seen again . The letter further stated that pre - trial detention centre IZ-CARDINAL/CARDINAL in GPE had denied that Mr Magomadov had ever been detained there . On DATE a search file ( no . K-CARDINAL/CARDINAL ) had been opened and forwarded to the Oktyabrskiy VOVD as it was the last place where he had been seen .

On DATE the head of the criminal investigations unit of ORG of the ORG stated that the initial complaint about ORG disappearance had arrived at ORG on DATE . It had first been forwarded to the PERSON and then , on DATE , to the Oktyabrskiy VOVD . No news had been obtained in the case after that . The ORG 's missing persons database contained no reference to an ORG .

On an unspecified date ORG of the ORG issued a notice which stated that ORG had been detained on DATE by officer NORP of the Oktyabrskiy VOVD , accompanied by the staff of the NORP district department of the ORG , on suspicion of having committed a crime . The detainee had been delivered to the Oktyabrskiy VOVD , where he had been checked and it had been established that he had no involvement in the crime . ORG had been released at TIME on DATE and had never been seen again by the ORG officers . A document concerning the “ operative measures ” conducted to investigate Mr ORG 's involvement in a crime had been issued to the officers of the PERSON department of the ORG .

On an unspecified date a testimonial as to the character of ORG was issued and signed by a number of sports officials from the LOC district and by CARDINAL members of the football team and its supporters . It attested that he was a good player and a reliable member of the team and stated that , since DATE , when the hostilities had started in GPE , FAC “ had nothing to do with illegal armed groups or with terrorist activities , was not interested in the FAC movement , did not use or distribute illegal drugs , and did not sell arms ” .

On CARDINAL occasions LOC , acting on the first applicant 's behalf , contacted the Prosecutor General with requests for information . Its letter of DATE referred to the contradictory information obtained by his relatives from law - enforcement bodies . It indicated that there had been no entries in the register of detainees of the Oktyabrskiy VOVD referring to a Mr Magomadov . They also attached a copy of a statement by the head of the NORP village administration to the effect that on DATE there had been a “ special operation ” in the village , as a result of which ORG had been detained by unknown “ military servicemen ” . ORG further requested a number of actions to be taken by the law - enforcement bodies to clarify the circumstances of Mr ORG 's detention and to inform his relatives about the progress of the investigation .

On DATE ORG informed the first applicant that on DATE a decision to adjourn the criminal investigation in the case in which he was a victim had been quashed and the proceedings had been resumed . No further details were given .

On DATE Memorial again contacted ORG , requesting information about the criminal investigation into ORG disappearance . It appears that this letter remained unanswered .

The Government in their memorial of DATE referred to documents received from different authorities , and gave several inconsistent versions of what had happened to ORG on CARDINAL and DATE . They submitted that the investigation had failed to identify the persons responsible for his kidnapping or to establish his whereabouts . Mr ORG had been declared a missing person and put on the federal missing persons list . They also stated that there existed information that in DATE he had been spotted in internally displaced persons ' ( ORG ) camps in ORG , recruiting fighters for the field commander PERSON .

NORP On DATE the applicants ' representatives informed the ORG about the first applicant 's “ disappearance ” . They referred to LAW and linked the first applicant 's arrest with his application to the ORG in connection with his brother 's disappearance . They submitted that in DATE the first applicant had been in GPE . He had last contacted his relatives on DATE .

The second applicant referred to information received from another of his brothers , ORG , and his nephew , PERSON . They had apparently been visited in their house in GPE on DATE by a group of persons wearing camouflage and masks who had been looking for the first applicant . After intervention by other security officers the men in camouflage had presented ORG identity documents . They had instructed ORG to come to the local ORG office . DATE at the local ORG office ORG was told that a criminal case had been opened against his brother , the first applicant . No further details were given .

On DATE a man claiming to be a member of ORG of the President of GPE brought a note to the applicants ' mother 's house . The note was allegedly written by the first applicant and addressed to his family . This note was interpreted by his family as meaning that the applicant was at that time detained at the main NORP military base in GPE , in GPE . It was dated DATE and signed “ Magomadov ” . The applicants submitted a copy of this note to the ORG . It says :

“ Hello , mother , father and the rest ,

I am fine . I am in good health , I am alive and well , and wish you the same . Mother , you probably recognise my handwriting . Grandmother PERSON , grandfather PERSON . Mother , your father 's name was PERSON , your mother 's was PERSON .

PERSON from PERSON will bring the letter . Please help him to find PERSON , in order to release me . At present I am in our republic . PERSON will be fine . You should find Doda through PERSON . ”

On DATE the NORP Human Rights Commissioner sent a letter to ORG , asking them to take steps to discover the whereabouts of PERSON , an applicant to the ORG .

On DATE the ORG requested the respondent Government to submit additional factual information concerning the first applicant 's whereabouts and asked them whether he had been detained by a ORG authority in DATE or DATE .

On DATE ORG responded to the Human Rights Commissioner . It had established that at DATE the first applicant had arrived in GPE . On DATE the first applicant had been briefly detained by officers from ORG of ORG for an administrative offence , namely a breach of the requirement to be registered at his place of temporary residence . The letter further stated that the first applicant was not registered as residing in the capital , and that he had not been found on the lists of victims of accidents , missing persons , inmates of pre - trial detention centres or wanted persons . No applications were recorded at the bodies of ORG about his abduction or search .

On DATE ORG forwarded a letter to the NORP Human Rights Commissioner . The letter stated that the criminal case concerning ORG abduction was pending with ORG . As to the first applicant , ORG had no information about his whereabouts or alleged kidnapping .

On DATE ORG decided not to open criminal proceedings into the alleged abduction . On DATE ORG quashed this decision and opened criminal investigation file no . DATE under LAW ( kidnapping ) . ORG was entrusted with the investigation . Documents from the investigation file , submitted by the Government , are summarised below in Part B.

The Government in their memorials stated that it was impossible to establish the first applicant 's whereabouts . No evidence had been obtained in support of the allegation that the first applicant had been detained at the FAC military base , or that he had been kidnapped by servicemen of the ORG in connection to his application to the ORG . Nor was there any information available to connect the first applicant with the illegal armed groups operating in GPE . The Government referred to the information from ORG and the ORG , which denied having ever detained the first applicant and stated that they had no information about his whereabouts . The Government also stated that in DATE the investigation into the first applicant 's kidnapping had questioned CARDINAL relatives of the first applicant and that his mother had been granted victim status in the proceedings . CARDINAL serviceman of ORG , GPE , was questioned and stated that he had heard that the first applicant had been in GPE prior to his disappearance . It also follows from the documents submitted by the Government that the first applicant was under arrest warrant for illegal handling of explosive devices .

It follows from the ORG 's memorials and from a copy of the prosecutor 's order of DATE , submitted by them , that the criminal investigation into the first applicant 's kidnapping was adjourned on DATE , on account of the failure to identify the culprits . On DATE the investigation at ORG was resumed .

The applicants submitted a copy of an information letter from ORG , containing details of a number of allegations of persecution of human rights activists in LOC , based on the relevant report by ORG . In respect of the alleged abduction of the first applicant , the letter stated that in DATE the first applicant had been charged in absentia with illegal storage and transfer of explosive devices and put on the wanted list . They also cited data from the transport police , according to which the first applicant had travelled in DATE from PERSON ( GPE ) to PERSON - on - Don . ORG noted that his relatives had not applied to the law - enforcement bodies with regard to his disappearance . In this connection , ORG concluded that there were reasons to suspect that the first applicant had staged his disappearance in order to evade justice ( see Part B below ) .

The parties submitted a number of relevant documents , summarised below .

In DATE the Government submitted copies of the entire investigation file no . CARDINAL opened in relation to ORG disappearance . The case file consisted of CARDINAL volumes comprising CARDINAL pages . In addition to these , in DATE the Government submitted an update and copies of documents produced after DATE . The most important documents can be summarised as follows :

On DATE ORG opened a criminal investigation into the arrest of ORG , born in DATE , by unidentified armed persons on DATE at his home in GPE . The decision referred to LAW , paragraph CARDINAL , of LAW ( unlawful deprivation of liberty ) .

On DATE the applicants ' mother wrote a letter to ORG in which she described the circumstances of her son 's arrest and asked him to establish his whereabouts .

On DATE she submitted a similar letter to ORG .

On DATE the first applicant and his parents contacted ORG , ORG , the head of the ORG and the Minister of the ORG with a complaint about the inaction of the investigating bodies . They referred to the inconsistent statements made by various bodies and asked the authorities to carry out a number of investigative steps to find out the whereabouts of their relative .

On DATE and DATE the first applicant wrote to ORG and complained about the inefficiency of the investigation . He requested the prosecutor to inform him of the results of the investigation . He also offered to assist the investigation in organising the search for his brother .

On DATE the investigator informed the first applicant that the investigation of the criminal case had been resumed .

On DATE the first applicant was questioned as a witness about the circumstances of his brother 's arrest and disappearance . In his statement he referred to the document signed by the head of the PERSON stating that his brother had allegedly been released on DATE , but added that the family had had no news of him .

On DATE the investigators questioned the applicants ' mother . She submitted an account of her son 's detention and the search for him . She also submitted a photograph of ORG .

On DATE the investigators questioned the first applicant . He confirmed that the family had had no information about his brother since DATE . On DATE he was granted the status of a victim in the proceedings .

On CARDINAL DATE the first applicant was again questioned about the circumstances of his brother 's detention and the search for him .

On DATE the investigators questioned the head of the GPE administration . He stated that on DATE at TIME he had been alerted by the residents to the fact that a “ sweeping ” operation was taking place at the PERSON ' home . When he arrived there he saw CARDINAL APCs with concealed numbers and CARDINAL men in camouflage around the house , mostly wearing masks . The witness did not know the servicemen who had conducted the operation and they had refused to identify themselves . The officers of the military commander 's office and of the local police station , to whom he had applied , had not been aware of the operation and had refused to accompany him to the site . When TIME he had returned there , ORG mother had told him that her son had been taken away by the military . DATE he had gone to the Oktyabrskiy VOVD to assist the relatives in the search for ORG , together with officer PERSON from the district ORG department . The officer had gone inside and had returned TIME with a letter which confirmed that on CARDINAL October CARDINAL Mr Magomadov had been detained there and released on DATE . He had had no news of FAC since .

On DATE the investigator examined the log entries of the Oktyabrskiy VOVD listing the persons who had been delivered to the department premises and the persons who had been detained in the temporary detention unit ( изолятор временного содержания – ORG ) DATE and DATE . ORG was not listed in either of the logs .

DATE . On DATE the Oktyabrskiy VOVD confirmed that ORG name was not listed in their records .

On DATE the investigator requested the prosecutor of ORG to question the police staff who had been on an assignment in LOC in DATE about the circumstances of ORG detention , questioning and release .

On DATE the investigator instructed ORG to question Major PERSON , who at the relevant time had headed the criminal police at LOC .

On DATE the investigator requested ORG to question Major PERSON and officer NORP , who had at the time served at LOC .

On DATE and DATE the investigator again requested ORG Prosecutors to question officer NORP , Major PERSON and other servicemen , and supplied them with a detailed list of questions concerning the events of DATE .

On DATE officer NORP was questioned and stated that he had served at the Oktyabrskiy VOVD between CARDINAL DATE and DATE . During that period he had on many occasions participated in operations in the village of GPE , and therefore he could not recall any specific details about the operation of DATE . He remembered that he had received operational information from undisclosed sources according to which ORG had been an active member of the illegal armed group headed by PERSON . On DATE he had taken part in the cordoning - off of the PERSON ' house in GPE , while other servicemen had been in charge of ORG arrest and questioning . NORP stated that Mr Magomadov had been released from the PERSON before the end of TIME and that he was not aware of any documents drawn up in respect of his detention , questioning or release . He further stated that he had heard from other servicemen of the PERSON and of the ORG that in DATE or DATE Mr Magomadov had been seen recruiting new members to PERSON 's group in the ORG camps in ORG .

On DATE R. was again questioned . He stated that on DATE , along with other officers of the VOVD , he had accompanied the ORG officers from PERSON to PERSON , where they had detained ORG and brought him to the PERSON . NORP stated that when the group had arrived at GPE they had first visited the district department of the ORG and CARDINAL officers from that department had accompanied them to the PERSON ' house . NORP could not recall the names of these officers , but he was certain that they were from ORG of the ORG where he had been on many occasions and seen them . He was also certain that they had a “ good relationship ” with the head of the VOVD and that that was the reason why the officers of the PERSON had accompanied them and had afterwards allowed them to question the detainee on their LOC . NORP stated that some ORG officers had told him that Mr Magomadov had been involved in illegal arms transfers and that later he had been seen in ORG recruiting fighters . On DATE NORP was shown a photograph of ORG , but did not identify him .

On DATE the investigation questioned Major PERSON , who at the relevant time had headed the criminal police of the VOVD . Major PERSON stated that a group of ORG officers had brought a detainee to the premises of the Oktyabrskiy VOVD and questioned him there . He was not aware of the details of the case and had not given any orders to detain or to question FAC . The officers of the PERSON had not participated in the detention or questioning of the detainee , and he had not been placed in the administrative detention cell . Major PERSON testified that he had seen the detainee being questioned by the officer in charge of the ORG group , that the detainee had looked normal and that no physical pressure had been put on him . On DATE he had asked the ORG officers if there were any unauthorised persons on the NORP premises , to which they had replied in the negative . Major PERSON denied that he had issued the notice of DATE which had confirmed Mr ORG 's detention on the NORP premises , and denied that he had seen it before or had signed it . He alleged that some ORG officers had requested him to issue such a notice but that he had refused to do so .

NORP In DATE a handwriting analysis concluded that it was impossible to determine whether it was indeed Major PERSON 's signature on the notice , owing to the insufficient amount of material under examination .

On DATE the investigator was informed that further questioning of Major PERSON was not possible because the latter had quit the service and left his previous place of residence .

On DATE the investigation questioned Colonel PERSON , who at the relevant time had headed the Oktyabrskiy VOVD in PERSON . He stated that the officers of the department had participated in many special operations , that he could not recall any details about the one of DATE and that all the information should be available in the appropriate records of the VOVD .

DATE the investigators questioned CARDINAL servicemen of ORG and Tyumen regional departments of the interior who from DATE had served at FAC in PERSON . Nobody admitted taking part in the detention or questioning of ORG , and no one identified him on the photograph . The officers responsible for the administrative detention cell stated that all detainees had been properly recorded , that the cell was the only place used for detention in the department and that the records were left in the PERSON for the next shift . They stated that the detainees could only be transferred to another law - enforcement body , such as the ORG , further to a written order from the head of the VOVD .

The investigators also identified persons who had been detained in the administrative detention cell at LOC . CARDINAL of them were questioned in DATE , and stated that ORG had not been detained with them there or in the GPE pre - trial detention centre ( GPE ) DATE .

In response to the investigator 's request of DATE , the GPE district department of the ORG on DATE denied any involvement in the detention of ORG .

On DATE , following a request by the first applicant , the investigator requested the head of ORG of the ORG to identify and question officer PERSON , who had headed the NORP district department of the ORG in DATE , and who had allegedly participated in ORG arrest and questioning .

On DATE the investigator requested the LOC department of the ORG to submit a copy of the document issued to them by the Oktyabrskiy VOVD concerning the “ operative measures ” conducted to check ORG involvement in a crime . He also requested the department to find and question officer PERSON and any other persons who had been involved in the operation of DATE and Mr ORG 's questioning .

On DATE the LOC department of the ORG replied to the investigator that its office had no archives and therefore was unable to submit a copy of the document requested .

On DATE ORG of the ORG informed the investigator that it had no information about the operation of DATE or about Mr ORG 's arrest . They also stated that the officer who had been in charge of the district department at the relevant time had returned to his permanent place of service after the completion of his assignment , and that his whereabouts would be communicated later .

On DATE ORG of the ORG again stated that its service had not detained ORG and had no information about him .

DATE . On DATE the investigator requested the military commander of LOC to inform him which military units had participated in the special operation on DATE and where FAC was . In an undated reply the district military commander denied that any special operations with the participation of the military servicemen had taken place in GPE on that date and stated that the commander 's office had no information about the whereabouts of the missing person .

On DATE the investigator requested the ORG prosecutor to check whether ORG was still being detained at FAC , since there had been no news of him after his alleged release on DATE .

In DATE the investigator forwarded a number of requests to the ORG , the military commanders ' offices , the PERSON and Oktyabrskiy district departments of the interior ( ROVD ) , and detention facilities in LOC . The requests sought information about the operation carried out on DATE in GPE , the detention of Mr Magomadov at the Oktyabrskiy VOVD on DATE , any witnesses and persons responsible for questioning him , and his current whereabouts . To the letters were attached photographs and a description of Mr Magomadov . The relevant authorities were requested to submit copies of the custody records for the periods in question .

NORP In reply to the requests , on DATE the military commander 's office of LOC stated that none of its servicemen had participated in any operations on DATE and that it had no information about the whereabouts of ORG . Similarly , the NORP ROVD replied that its officers had been serving in GPE after DATE [ sic ] and that upon arrival they had not received any registration documents relating to DATE .

In DATE and DATE the regional departments of ORG in LOC responsible for pre - trial detention facilities and the regional departments of the ORG each stated that ORG name was not in their respective lists of detainees .

On DATE the NORP PERSON informed the investigators that on DATE they had opened a search file ( no . CARDINAL ) in respect of the missing person PERSON . Previously a search file had been opened by the Oktyabrskiy VOVD as no . CARDINAL/CARDINAL .

In DATE the regional departments of ORG in ORG , in reply to requests from the investigator , confirmed that ORG had been placed on the federal wanted list as a missing person , but that they had no information about him .

NORP In DATE the investigators requested ORG of the Interior to check ORG involvement with illegal armed groups . They also requested the PERSON of PERSON to submit a copy of the search file opened by that office . It appears that both requests remained unanswered .

DATE . The copy of case file no . ORG contains documents relating to other criminal cases investigated by the same prosecutor , concerning “ disappearances ” of several persons , allegedly after their detention at the Oktyabrskiy VOVD in PERSON DATE . According to these documents , on DATE the officers of the ORG had detained PERSON near a café at FAC and delivered him to the PERSON , after which he had disappeared . On DATE unidentified military servicemen had detained B.A. at roadblock no . CARDINAL in ORG because he had been carrying an invalid identity document , and had taken him to the Oktyabrskiy VOVD , after which point his whereabouts were unknown . On DATE unknown military servicemen had detained PERSON in FAC and delivered him to the Oktyabrskiy VOVD , after which he had disappeared . On DATE ORG had arrived at FAC , where he had been employed on a temporary contract , to receive his salary . After being discharged , he had been seen in the courtyard of the PERSON and had then disappeared , and his whereabouts remained unknown . The officers of the PERSON questioned about these persons denied having seen or detained them .

On DATE the investigator of ORG adjourned the investigation in criminal case no . DATE owing to the failure to identify the culprits .

On DATE a prosecutor from ORG quashed the order of DATE and forwarded the case to ORG for additional investigation . The order also listed a number of actions necessary for the conduct of the investigation , including identification and questioning of the officers of LOC and other law - enforcement authorities who had been responsible for ORG detention , questioning and release .

DATE the investigation was adjourned CARDINAL times , and each time it was resumed with an instruction to carry out a more detailed investigation . The prosecutors , in particular , ordered to identify and question the officers of the ORG who had participated in the detention and questioning of ORG . The latest document in the investigation file was dated DATE and again ordered steps to elucidate the disappearance .

The applicants submitted information relating to other cases of “ disappearances ” in ORG in DATE and DATE . They stated that there had been CARDINAL cases of disappearances in LOC in DATE . They listed QUANTITY persons who had been detained DATE and who had last been seen at the Oktyabrskiy VOVD , after which they had disappeared or been found dead . In all cases criminal investigations and/or searches had been commenced but had produced no results .

The applicants also submitted information about the trial in DATE of a police officer , PERSON , from ORG , who had been charged with fraud , abuse of power and causing grave bodily harm , committed in DATE . According to the bill of indictment , the officer had severely beaten a detainee on the premises of the Oktyabrskiy VOVD on DATE . According to the witness statements , as a result of the beatings the detainee had lost consciousness and suffered numerous fractures and other injuries . In order to conceal the crime , on the following morning the officer had forged a notice of release and driven the detainee away . The detainee had never been found and was considered a missing person .

The Government submitted a number of documents from the file on the criminal investigation opened into the first applicant 's disappearance . On DATE the ORG reviewed information about the first applicant 's disappearance and concluded that it was not necessary to conduct a criminal investigation owing to the absence of corpus delicti . The decision referred to the information obtained from the first applicant 's relatives in GPE and from his ex - wife PERSON in GPE , according to which he had not been seen since DATE . It also referred to the note transmitted by an officer of the law - enforcement authorities to the first applicant 's relatives , from which they concluded that he had been detained in GPE and had asked them to find a certain person in order to be released .

On DATE ORG quashed the order of DATE and ordered a criminal investigation into the disappearance . The order noted that there were reasons to believe that the first applicant had been kidnapped .

The investigation file was assigned no . DATE . In DATE the investigation was transferred to a district prosecutor 's office in GPE , because the first applicant had been last seen there . The investigation located and questioned the first applicant 's ex - wife , PERSON , who stated that she and the first applicant had divorced in DATE and that she had last seen him in DATE .

Furthermore , the investigation found out that the first applicant was on the wanted list on suspicion of having committed the offence of illegal storage of explosive materials . The criminal case against the first applicant had been investigated by the ORG . In view of such circumstances the investigation concluded that the possibility of the first applicant 's kidnapping by members of the law - enforcement bodies was ruled out . It failed to obtain any information concerning the first applicant 's alleged kidnapping in GPE in DATE .

In DATE the investigation of the criminal case was entrusted to ORG . On DATE the investigation was adjourned on account of failure to establish the culprits . On DATE the investigation was resumed . The Deputy Prosecutor of GPE noted that the investigation was incomplete and had failed to elucidate the circumstances of the first applicant 's disappearance .

The applicants submitted a copy of a letter from ORG to the Chairwoman of ORG , PERSON Pamfilova . The letter , dated DATE , contained information concerning a number of allegations of persecution of human - rights activists in LOC , based on a report by ORG . In respect of the first applicant , the letter stated the following :

“ It was established that Ya . A. Magomadov had left for GPE on DATE and had last contacted his relatives on DATE , after which date there had been no news from him . On DATE unknown persons , armed with firearms and wearing camouflage uniforms and masks , looked for ORG in GPE . On DATE the relatives received a note allegedly written by ORG and a copy of his passport photo . The man who had brought the note and the photograph stated that [ the first applicant ] was being detained at the military base in GPE , that he had been brought there from GPE and that [ his relatives ] were required to find a certain person in exchange for his release .

The relatives contacted the military base in GPE , where they were told that [ the first applicant ] was not being detained there . It follows from ORG statements that the note was delivered to them by a member of ORG of the President of GPE by the name of PERSON , born in the village of PERSON .

According to information submitted by the head of the PERSON , serviceman [ ORG NORP ] of the street patrol service of ORG of PERSON ( полк ORG при МВД ЧР ) uses the radio call signal ' Lord ' and is known to his friends and relatives as PERSON . When questioned as a witness , [ NORP ] stated that he came from the village of PERSON . He did not know [ the first applicant ] and had never seen him . He was aware of the latter 's detention in GPE from local residents .

The mother of the missing person , PERSON , was questioned as a witness and stated that in DATE during a ' sweeping operation ' her son PERSON had been kidnapped . ... Another of her sons , [ the first applicant ] , was actively searching for GPE , but did not find anything . [ The first applicant ] has lived in GPE since DATE . While in GPE , he submitted an application to ORG . In connection with the search for his brother , [ the first applicant ] came to GPE and told her that servicemen from the law - enforcement bodies had advised him to be less persistent in the search for his brother . She was not aware of any other pressure put on [ the first applicant ] . She was also not aware of the search allegedly carried out at her house by ORG officers on DATE . As to the information from ORG that [ the first applicant ] had contacted them on CARDINAL or DATE for the last time , she explained that he could not have called them because there was no telephone connection with PERSON .

On DATE [ PERSON ] returned home from ORG , and her daughter - in - law told her that around lunchtime they had been visited by officers of the law - enforcement bodies who had been looking for [ the first applicant ] , and had then asked NORP [ ORG , the applicants ' brother ] to come to the military commander 's office . On DATE Ibragim went to the military commander 's office , but she was not aware of the contents of the conversation . She was not aware about the note allegedly received from [ the first applicant ] and she would not be able to identify his handwriting .

ORG , the brother of the [ first applicant ] , explained that he had a younger brother by the name of PERSON , who for DATE had lived in GPE . He was afraid to return to GPE because he had friends among members of [ illegal armed groups ] . [ The first applicant ] also did not allow him to come home . When he was questioned as a witness , ORG stated that for DATE PERSON had not lived at home , and that , according to hearsay , he had joined an illegal armed group . He was not aware of his whereabouts . [ The first applicant ] was last at home in DATE and DATE . As to the information from ORG that [ the first applicant ] had called them on DATE from GPE , it could not be true , because there was no telephone connection with PERSON .

On DATE he received a message through his wife to appear before the law - enforcement bodies . On DATE he went to the military commander 's office , where he talked to an ORG officer by the name of PERSON . He asked him questions about [ the first applicant ] , in particular whether he had come by car and whether he had a car .

In DATE they were visited by a member of ORG called Timur , nicknamed ' Lord ' , who had brought a note from [ the first applicant ] in which he had written that he was in the territory of GPE . PERSON also said that [ the first applicant ] had asked for a man called PERSON to be found through their brother PERSON . The note was written [ in the first applicant 's ] handwriting . They did not apply to GPE in connection with the search for [ the first applicant ] . They did not look for ORG , because they had no connection with PERSON . [ CARDINAL other relatives ] gave similar statements .

[ The second applicant ] stated , in addition , that after he had received the note he had gone to GPE , where he had met GPE [ the first applicant 's ex - wife ] . She said that she had last seen him in GPE in DATE . She did not explain under what circumstances . She also stated that the officers of ORG were trying to find [ the first applicant ] . He did not take any other steps to find his brother , and did not apply to the military base in GPE . He was not aware of [ the first applicant 's ] whereabouts .

The head of ORG replied that they were not aware of [ the first applicant 's ] whereabouts and had taken no action to find him .

During the investigation it had proved impossible to locate the original of the note . Apart from that , the relatives had no examples of [ the first applicant 's ] handwriting , and therefore it was impossible to verify who had been the author of the note .

On DATE , according to information from witnesses and PERSON that [ the first applicant ] had been last seen in GPE , the case was forwarded to ORG for investigation .

The head of ORG – head of centre “ T ” ( начальник ОРБ - начальник центра « Т PERSON ) [ of ORG of ORG of GPE responsible for ORG ? ] replied to the investigator that [ the first applicant ] was wanted by ORG of the NORP ORG in relation to the investigation of a criminal case .

It was established that criminal case no . ORG had been opened on DATE by a senior investigator for particularly serious cases , from ORG of ORG , under LAW , paragraph CARDINAL , of LAW . The criminal investigation was opened on the basis of a statement by [ M. ] about the illegal storage of explosive devices in the following circumstances .

In DATE PERSON had met a resident of the village of GPE named PERSON . In DATE PERSON asked him to hide some arms which belonged to him . DATE after the conversation PERSON brought him several packages , which , as PERSON had guessed , were explosive devices . He hid the packages in a barn at the following address : GPE Region ... In DATE PERSON decided to get rid of the explosives . He took CARDINAL packages to the pond located at ... and , having broken the ice , threw the packages into the water .

On DATE the crime scene was examined in the presence of M. Three packages were found . According to the assessment by the experts from the ORG 's ORG , they were improvised explosive devices , containing plastic - based explosives , an ED-CARDINAL electric detonator and metal beads .

On the basis of the above , on DATE [ the first applicant ] was charged in absentia with committing a crime under LAW , paragraph CARDINAL , and put on the wanted list .

During the investigation of the case the investigation body raised doubts as to whether [ the first applicant ] had really been kidnapped or whether he had initiated his own kidnapping , having learnt that he was sought by the ORG in connection with a serious crime . This version is supported by the information obtained from ORG of ORG , according to which the following tickets were used DATE and DATE : Ya . A. Magomadov had travelled from PERSON to GPE on DATE at TIME . The ticket was purchased on DATE at TIME . In the meantime , his relatives allege that he had left GPE on DATE . In addition , none of the [ first applicant 's ] relatives have applied to the law - enforcement authorities in order to organise a search for him .

Materials relating to the checks carried out by the ORG servicemen at the PERSON ' house in GPE on DATE and on DATE were set aside and forwarded to the military prosecutor of ORG ( UGA ) for a separate investigation on DATE ( document number CARDINAL ) .

Under instructions from ORG , on DATE the criminal case file no . DATE was sent by ORG to ORG for further investigation . On DATE the case file was received by an investigator from that office , who extended the term of the investigation until DATE . The investigation is under way . ”


Preliminary objections dismissed (non-exhaustion of domestic remedies, six-month period);Violation of P1-1;Pecuniary damage - award;Non-pecuniary damage - finding of a violation sufficient

Antonella Mularoni;Christos Rozakis;Dean Spielmann;Françoise Tulkens;George Nicolaou;Giovanni Bonello;Ireneu Cabral Barreto;Jean-Paul Costa;Josep Casadevall;Karel Jungwiert;Mihai Poalelungi;Mindia Ugrekhelidze;Mirjana Lazarova Trajkovska;Nona Tsotsoria;Peer Lorenzen;Rait Maruste;Renate Jaeger;Vladimiro Zagrebelsky

The applicant , a NORP national who was born in DATE and died in DATE , was resident in GPE at the relevant time .

During DATE he acquired for value a CARDINAL - floor freestone building , constructed in DATE , in the sub - prefecture of PERSON , GPE . The building , which had a total floor space of CARDINAL m² , was of architectural interest in its own right .

On DATE ORG decided to classify the property as a “ cultural asset ” within the meaning of ORG no . CARDINAL of DATE ) . On DATE it was included in the project for protection of the urban environment . It was also included on ORG inventory for the protection of the cultural and natural heritage .

On DATE the executive council of ORG province issued an expropriation order in respect of the property in the context of the “ Project for the environmental rehabilitation and regeneration of the streets around GPE PERSON 's Well ” . On the basis of a valuation report submitted on DATE by a panel of experts ( hereafter “ panel no . CARDINAL ” ) made up of CARDINAL representatives of the authorities and CARDINAL representatives of property owners , and in line with the “ high - grade building ” category in the construction price index published by ORG , the council determined the building 's value at MONEY ( TRL ) ( MONEY ( ORG ) ) . This amount was paid to the applicant on the date of transfer of ownership .

On DATE the applicant lodged an application for increased compensation for the expropriated building with ORG . He requested that a new panel of experts , to include a qualified art historian , re - assess the property , taking into account its historical and architectural value . He claimed FAC ( about EUR CARDINAL ) in additional compensation .

On DATE the court held a hearing and dismissed the applicant 's request for re - valuation of the building on the ground of its historical value . The court held , inter alia , that under LAW ( CARDINAL ) of LAW ( Law no . CARDINAL ) ( see paragraph CARDINAL below ) , the panel of experts responsible for the building 's valuation could only determine its value on the basis of clearly defined objective data . At the same time , it agreed to the appointment of a new panel of experts , to be made up of a civil engineer , an architect and a representative of property owners .

On DATE , after visiting the site , the court - appointed panel of experts ( hereafter panel no . CARDINAL ) submitted its report . With regard to those features and factors which had a bearing on the property 's value , it reached the following conclusions :

“ The property in question is located in the ORG neighbourhood , within the territory of PERSON , in LOC . It is recorded in the land register as a solid structure house with a courtyard . Situated in an urban area , it is classed as a listed building in the project for protection of the urban heritage . The decision to classify the building was adopted by ORG on DATE ...

The property under dispute ... is located ... in the town centre , at the corner of CARDINAL streets , and its south- and east - facing façades give onto the road .. It is situated in a high - density business and retail area ... It borders the north side of the plot of land on which PERSON well is located . The latter , a site of considerable importance in terms of history and tourism , has long been considered sacred , and visited , by NORP . Thus , before its expropriation , the property was at the centre of “ religious tourism ” .

Archaeological research indicates that the district of PERSON is an area that was settled in the period CARDINAL GPE It is therefore of historical and cultural value . In addition to the historical monuments which are visible above ground , the ruins of an ancient town have been discovered in the course of excavation works alongside the law courts ... , and the area has been placed under protection . ”

In determining the value of the building , panel no . CARDINAL based its findings primarily on the construction price index published by ORG , specifically the category “ buildings requiring restoration ” . It stated its findings as follows :

“ The building which is located on the disputed land is composed of CARDINAL floors , each with a living floor space of CARDINAL ORG , its total living floor space being therefore CARDINAL m² . It has been constructed from dressed stone and the architecture of the linking pieces is in the GPE style . It was designed as a residential building . The ground floor is in a simple [ architectural ] style , and the first floor has the features of dressed stone buildings . There is a balcony ... on the first floor . The dressed stone of the window arches and balcony is highly embellished . Thus , the disputed property has the features of buildings ... constructed in line with the LOC tradition , known as ' PERSON houses ' ( PERSON evleri ) . It has also been included in ORG inventory for the protection of the cultural and natural heritage . It was in this building that PERSON stayed during his visit to PERSON in DATE . In spite of its age , and having regard to the above - mentioned features , the building has been protected and maintained in good condition by its owners . In those circumstances , a depreciation rate of PERCENT has been decided on . As the building comes within class V , group D ( buildings requiring restoration ) under ORG circular of DATE ... , the approximate cost of construction per square metre ... has been set at GPE CARDINAL . ”

Panel no . CARDINAL concluded that panel no . CARDINAL ( see paragraph CARDINAL above ) had valued the disputed building as an ordinary dressed - stone building , without taking account of its architectural features . It decided not to adopt those valuation criteria and assessed the building 's value at an initial TRL CARDINAL . It then reduced this amount to TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL , noting that the building 's depreciation justified a reduction of PERCENT . However , it then increased this sum to GPE CARDINAL,CARDINAL,CARDINAL,CARDINAL , holding that , in view of the building 's architectural , historical and cultural features , its value should be increased by PERCENT . After deduction of the expropriation compensation already paid to the applicant , the panel decided that the additional compensation should be TRL CARDINAL .

A third panel of experts ( hereafter “ panel no . CARDINAL ” ) submitted a report on DATE , confirming all of the conclusions in the second expert report .

On DATE the applicant requested a further expert report , on the ground that the CARDINAL previous reports had failed to take sufficient account of the building 's architectural and historical features in assessing its value .

On DATE the court , after dismissing the request for an additional expert report , allowed part of the applicant 's claim and instructed the authorities to pay him ORG CARDINAL ( about EUR CARDINAL ) in additional compensation , with interest at the statutory rate , to be calculated from DATE .

On DATE ORG set aside that judgment . It held that under LAW ( d ) of ORG no . CARDINAL ) , neither a building 's architectural or historical features nor those resulting from its rarity could enter into play in the assessment of its value . Consequently , a PERCENT increase in the amount of additional compensation could not be considered justified .

On DATE the applicant petitioned for rectification of ORG judgment . He contested the amount of expropriation compensation and emphasised , inter alia , the absence of a legal criterion that would enable the value of buildings making up the country 's cultural and historical heritage to be calculated . He relied on LAW .

On DATE ORG dismissed the applicant 's request for rectification .

On DATE ORG complied with ORG judgment and fixed the amount of additional compensation at TRL CARDINAL ( about EUR CARDINAL,CARDINAL ) , with interest , to be calculated from DATE .

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

On DATE ORG issued a payment order for ORG ( about ORG CARDINAL,CARDINAL ) , broken down as TRL MONEY in respect of additional compensation and TRL CARDINAL,CARDINAL,CARDINAL,CARDINAL in respect of interest .

The case file shows that , following judicial proceedings which ended in DATE , the applicant received separate compensation for the land on which the building was constructed . According to information submitted by the ORG and uncontested by the applicant 's representatives , the compensation received following the expropriation of the land was CARDINAL new NORP liras ( TRY ) ( about EUR CARDINAL,CARDINAL ) .

Section CARDINAL of the Cultural and Natural Heritage ( Protection ) Act provides :

“ Real property which forms part of the cultural heritage may be expropriated in accordance with the principles set out below :

( d ) in calculating the compensation to be awarded for expropriation , the value resulting from a property 's age , rarity and artistic features shall not be taken into consideration . ”

Section CARDINAL of the Expropriation Act provides :

“ The criteria for determining expropriation compensation

After having visited , with the judges , the site on which the property to be expropriated is situated ... and having obtained the opinion of the interested parties , the panel of experts formed in accordance with section CARDINAL shall draw up a report , taking into account :

( a ) the type and nature of the property under consideration ;

( b ) its area ;

( c ) the features and factors likely to influence its value , and the valuation of each factor ;

( d ) the tax declaration in respect of the property , where one exists ;

( e ) NORP the values determined by the authorities at the date of expropriation ;

( f ) for farmland , the potential profit on the date of expropriation if account is taken of the existing land - use and the site ;

( g ) for construction land , the market value as determined by comparison with that of other equivalent plots of land sold under normal conditions prior to the date of expropriation ;

( h ) for buildings , the official unit amount , the construction costs and the depreciation rate ;

( i ) all other objective criteria likely to influence the value ... of the property to be expropriated .

The panel shall determine the value of the property by mentioning in its report its finding in respect of each of the above - mentioned criteria , taking account of the statements of the interested parties and basing its findings on a reasoned valuation report .

In determining the value of the property , no account shall be taken of the added value created by the initiative of the urban - planning or other department which lay behind the expropriation , nor of future profits arising from the various uses envisaged for it .

In numerous cases the CARDINALth ORG of ORG has quashed judgments delivered by lower courts which did not take account of the depreciation that the properties in question might have incurred as a result of their status as listed buildings ( see , for example , the judgments of CARDINAL DATE -CARDINAL/CARDINAL E. , CARDINAL K.- , DATE -CARDINAL/CARDINAL E. , CARDINAL K.- , CARDINAL May CARDINAL PERSON , CARDINAL K.- and DATE -CARDINAL/CARDINAL PERSON , CARDINAL K.- ) .

“ Each ORG undertakes :

NORP to take statutory measures to protect the architectural heritage ;

NORP within the framework of such measures and by means specific to each State or region , to make provision for the protection of monuments , groups of buildings and sites . ”

“ Each ORG undertakes :

NORP to prevent the disfigurement , dilapidation or demolition of protected properties . To this end , each ORG undertakes to introduce , if it has not already done so , legislation which :

( d ) allows compulsory purchase of a protected property . ”

To date , CARDINAL countries have signed this convention , and CARDINAL countries have ratified it . GPE has not signed it . The text includes the following provisions :

“ The Parties to this Convention agree to :

( a ) recognise that rights relating to cultural heritage are inherent in the right to participate in cultural life , as defined in LAW ;

( c ) emphasise that the conservation of cultural heritage and its sustainable use have human development and quality of life as their goal ; ... ”

“ The Parties recognise that :

( c ) exercise of the right to cultural heritage may be subject only to those restrictions which are necessary in a NORP society for the protection of the public interest and the rights and freedoms of others . ”

“ No provision of this Convention shall be interpreted so as to :

( a ) NORP limit or undermine the human rights and fundamental freedoms which may be safeguarded by international instruments , in particular , LAW ;

( b ) affect more favourable provisions concerning cultural heritage and environment contained in other national or international legal instruments ;

( c ) create enforceable rights . ”

“ DATE deals with the rights and responsibilities of individuals in respect of cultural heritage .

( c ) The clause approving a restriction on the exercise of rights and corresponding freedoms relies for its interpretation clearly upon the spirit and arrangements of LAW . Public interest considerations ( see LAW , for example to protect important elements of the cultural heritage , must always be balanced against the need to protect individual property rights . ”

In ORG member States , it is accepted in principle that , in order to satisfy the requirements of the principle of proportionality , an amount of compensation that is “ fair and just ” ( GPE ) , “ fair and payable in advance ” ( GPE ) , “ fair and payable immediately ” ( GPE ) , “ adequate ” ( GPE ) or “ appropriate ” ( GPE and GPE ) , or that is based on the “ value ” ( GPE ) , “ full value ” ( GPE ) , “ current value ” ( GPE ) , “ market value ” ( GPE ) or the “ fair price ” ( GPE ) of the expropriated property must be determined . In GPE , a property 's historical value is held to be one of the criteria used in assessing its “ intrinsic qualities ” ( see ORG v. PERSON [ DATE ] CARDINAL Ch CARDINAL , and GPE v. ORG ( DATE ) CARDINAL LT CARDINAL ) . In GPE , the ORG must take account of the building 's possible historical status in assessing the level of compensation . In GPE , the expropriation legislation provides that the public authorities must take account of any particular feature of the building in determining the level of compensation . In GPE , the expropriation of buildings that are of artistic , archaeological or historical value is subject to a special procedure , and the amount of compensation can not be fixed at an amount lower than that which would result from application of the general procedure set out in the legislation on expropriation . None of GPE , nor GPE or the GPE , specifically rules out taking an expropriated property 's architectural and historical features into account when determining the compensation to be awarded .


Violation of Art. 6-1 with regard to length;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award - Convention proceedings;Inadmissible under Art. 6-1 with regard to fairness

The applicant was born in DATE and lives in GPE .

The applicant was suspected of committing various financial irregularities . Criminal proceedings were instituted in this respect on CARDINAL DATE . On DATE the applicant was arrested .

On CARDINAL DATE the applicant was released on bail .

On DATE the applicant was charged with appropriating property of another and embezzlement . On the same date he was again arrested .

On DATE the ORG committed the applicant for trial .

On DATE the court remitted the case to the prosecution for further investigative measures to be carried out .

Upon the prosecutors ' appeal , on DATE the ORG quashed the above decision , ordering that trial should recommence .

On DATE GPE adjourned the examination of the case in order to conduct an audit of an enterprise owned by the applicant . On DATE the applicant was released on bail .

During the period from DATE until DATE the investigative authorities conducted the audit of the applicant 's company .

On DATE the trial recommenced .

On DATE the ORG convicted the applicant on CARDINAL counts , obtaining property of another and improper operations with currency , sentencing him to DATE imprisonment . Civil damages in the amount of CARDINAL NORP litai ( ORG ) were also ordered against him .

Upon the applicant 's appeal , on DATE the ORG quashed the conviction , referring the case back to the first instance court for a fresh trial .

On DATE ORG quashed the appeal judgment , returning the case for a fresh examination at appellate instance .

On DATE the ORG acting as a court of appeal pronounced a new judgment , acquitting the applicant on CARDINAL of the charges against him ( obtaining property of another ) . However , his conviction for improper currency operations stayed . The sentence was reduced to DATE imprisonment . No civil damages were ordered against the applicant .

The applicant submitted a cassation appeal which is currently pending before ORG .


PERSON and PERSON , who are NORP nationals , were born on DATE in PERSON ( GPE ) and on DATE in GPE ( GPE ) respectively .

They were represented before the ORG by Mr PERSON , of the GPE am FAC , and PERSON , of GPE .

The applicants are the parents of PERSON , a suspected member of ORG ( ORG ) who died on DATE following an operation carried out on DATE by “ ORG ” , a special unit of ORG ) , at Bad PERSON station ( GPE - West Pomerania ) . The purpose of the operation was to arrest PERSON and an accomplice , PERSON . There was an exchange of fire during which PERSON and a police officer were killed and another police officer and a railway employee were wounded . PERSON was arrested . Afterwards PERSON ’s body was taken to ORG , where he was pronounced dead .

On DATE Professor PERSON of ORG submitted his autopsy report to ORG . He stated in his report that PERSON had died from a bullet which had passed through his brain from right to left and from loss of blood due to CARDINAL other bullets fired through his abdomen .

On DATE the applicants filed an application to join criminal proceedings ( PERSON ) against persons unknown for the murder of their son .

The public prosecutor ’s office then instructed Professor PERSON to prepare CARDINAL further expert reports on the firearms used during the operation in question and on certain particular aspects of PERSON ’s wounds . Those reports were submitted DATE .

On DATE Professor PERSON of ORG in GPE submitted a second autopsy report ( ORG ) , at the request of PERSON ’s parents , in which he too concluded that PERSON had died as a result of a shot fired through his head . He also agreed with the conclusions of the first autopsy report .

On DATE the GPE police submitted an interim ballistics report .

ORG also instructed Professor PERSON of ORG to prepare CARDINAL further interim expert reports on ORG ’s injuries and imprints ( Spurengutachten ) . Those reports were filed DATE .

On DATE ORG began an investigation in respect of CARDINAL members of ORG who , according to a witness named PERSON , had been right next to PERSON when he was lying on one of the tracks at Bad PERSON station after falling to the ground .

On DATE Professor PERSON submitted a supplementary expert report on the marks found on the clothes of the police officers who had taken part in the operation ( Spurengutachten ) . According to him , CARDINAL jacket had traces of ORG ’s blood on it , but it had not been possible to determine with certainty how they had appeared .

On DATE and CARDINAL and DATE the GPE police forensic laboratory submitted interim reports on , among other things , the projectiles found at the place where the operation had been carried out and the cause of PERSON ’s wounds .

On DATE Professor PERSON submitted his general report in which he addressed , among other things , the question whether the fatal gunshot had been fired by PERSON himself or by another person . He concluded that the trajectory of the bullet was typical of a suicide and that the evidence did not point to an accident ( unfallbedingte LOC ) . In his opinion , the fact that there were very few traces of blood on PERSON ’s gun , from which the fatal shot had been fired , meant that it had fallen to the ground before it could be sprayed with the blood and tissue ( Spray aus Blut- und Gewebsteilen ) caused by the penetration of the bullet . It necessarily followed that his hand had been immediately paralysed , as was usual after this type of suicide . Furthermore , if the fatal shot had been fired by another person , that person ’s clothes would have been spattered with blood and tissue , whereas the investigations had not yielded any findings of that kind .

In a letter of DATE Professor ORG , a ballistics expert , stated that the bullets which had hit PERSON in the abdomen had been fired from a distance of QUANTITY . In a further expert report ( of DATE ) he concluded that the grazes found on the victim ’s hand had in all likelihood been caused by the ballast on which he was lying .

On DATE Professor PERSON , Director of ORG , submitted an expert report in which he concluded that , having regard to the results of the autopsy carried out on PERSON , he would still have been capable , after falling onto the track , of shooting himself in the head with the bullet which killed him .

On DATE the GPE police forensic laboratory submitted a full expert report on the circumstances of PERSON ’s death .

On DATE ORG decided to discontinue the proceedings under LAW of LAW ( “ ORG ” ) . It drew the conclusion that the police officers had shot PERSON in self - defence and that PERSON had himself fired the bullet which went through his head , with the intention of killing himself . The public prosecutor ’s office based that conclusion on a CARDINAL-page report ( Abschlußvermerk ) in which the special unit in charge of investigating the case had given an account of all its inquiries . The report stated , among other things , that during the course of those inquiries evidence had been heard from CARDINAL witnesses .

On DATE the applicants appealed to ORG of ORG ( “ the Principal Public Prosecutor ” ) against the decision to discontinue the case . On DATE they filed pleadings in support of their appeal , attaching CARDINAL expert reports prepared at the request of the applicants by Professor PERSON , Director of ORG .

In the first report , dated DATE , Professor PERSON concluded that as a result of a certain number of serious flaws in the investigation it was no longer possible to determine with certainty whether the fatal shot had been fired by PERSON himself or by another person . With regard to the arguments advanced by Professor PERSON , he considered that , since the gun in question had indeed been spattered with blood after the shot had been fired , it was scientifically impossible to conclude that ORG had committed suicide ; as for the finding that no clothes had been spattered with blood or tissue , this had been contradicted by Professor PERSON . In short , it was impossible to prove that PERSON had committed suicide and impossible to rule out the theory that another person had fired the fatal shot . As the evidence stood , it was not possible to reach a definite conclusion . Lastly , Professor PERSON suggested examining how the grazes on the back of PERSON ’s right hand had been caused and checking how the distance from which the shots had been fired had been measured , as this appeared open to criticism from a scientific point of view .

In his second expert report ( ORG ) , dated DATE , Professor PERSON concluded that the grazes and redness found on the back of PERSON ’s right hand could have been inflicted by the tip of the hammer of PERSON ’s gun while someone was attempting to wrest it from him ( streifender FAC Hahnende i MONEY ) .

Furthermore , in their pleadings filed in support of their appeal , the applicants complained of certain flaws in the investigation which proved , in their opinion , that there had been a deliberate attempt to cover up evidence as to what had actually happened . They gave as examples the fact that ORG ’s hands had been washed on his arrival at FAC , that an analysis of the fingerprints on PERSON ’s gun had been ordered too DATE after they had been obliterated DATE and that the jacket of CARDINAL of the police officers , which had bloodstains on it , had disappeared .

On DATE Professor PERSON made observations , at the request of ORG , on the expert reports submitted by Professor PERSON on DATE and CARDINAL DATE . According to Professor PERSON , Professor PERSON had based his conclusions on numerous inaccurate findings ( Anknüpfungspunkte ) and there were a number of contradictions in his reasoning , so there were no grounds for revising the conclusions of the expert report of DATE .

On DATE the applicants sent ORG observations ( PERSON ) by Professor PERSON , dated DATE , on the expert report submitted by Professor PERSON on DATE . Professor PERSON confirmed his previous conclusions that it was impossible to prove that it had been suicide just as it was impossible to rule out the theory that another person had been involved . He also maintained that someone could have wrenched PERSON ’s gun out of his grasp .

On DATE ORG confirmed the decision to discontinue the case . For murder to be made out , it would , in his opinion , have been necessary for CARDINAL of the police officers to have grabbed hold of PERSON ’s gun during the exchange of shots between PERSON and the police quad chasing him . None of the witnesses , however , had made a statement to that effect . Despite the fact that the evidence of certain police officers had to be treated with care and despite a number of residual doubts , the conclusion drawn by ORG , namely that PERSON had committed suicide , appeared not only possible , but highly probable . It did not , in any event , contradict the available evidence . Moreover , the investigation had not revealed any evidence on which to bring a charge against CARDINAL of the police officers or any other person . Lastly , there was nothing to suggest that a further investigative measure DATE and , in particular , a further expert report DATE would reveal conclusive fresh evidence .

With regard to Professor PERSON ’s conclusions in particular , ORG considered that they were not such as to justify reopening the investigation . The forensic experts disagreed about the course of events and Professor PERSON himself had merely stated that his conclusion was more likely than the others , without thereby suggesting that the others were wholly improbable . Given those reservations , the situation did not merit reversing the decision of ORG to discontinue the case .

ORG acknowledged that the statements of the police officers heard as witnesses contradicted each other on many points , but considered that the situation could no longer be remedied at that stage by ordering a further investigative measure . He also accepted that an error had been committed in not ordering a thorough examination of PERSON ’s hands , which had instead been washed as soon as he had arrived at the hospital . Likewise , an inquiry as to why PERSON ’s hands had been washed before they could be examined should have been ordered . However , a further investigative measure would not , in ORG view , remedy the consequences of those errors .

The same was true of the fact that a biological test had been carried out on PERSON ’s gun before the fingerprints had been taken , since a further investigative measure could not bring back fingerprints which had disappeared as a result of an error . Lastly , ORG did not consider it conclusive that the jacket of one of the police officers had disappeared from the premises of the GPE police laboratory since it had disappeared after that department had carried out all the scientific tests .

On DATE Professor PERSON made observations , at the request of ORG , on the expert reports submitted by Professor PERSON . According to Professor PERSON , the grazes found on PERSON ’s hand could not have been caused merely by someone seizing his gun . They were more likely to have been caused by sharp objects , in this case the ballast on which PERSON had been lying after his fall and against which his hand had rubbed while he was being picked up so that he could be taken to hospital .

On DATE Professor PERSON made observations on the decision of ORG upholding the decision to discontinue the case . He explained and confirmed the theories set out in his previous expert reports .

On DATE the applicants appealed to ORG under LAW ORG against the decision of ORG . They requested that CARDINAL members of ORG be charged .

On DATE ORG dismissed the applicants’ appeal . It pointed out that under LAW ORG there had to exist a sufficient suspicion ( hinreichender PERSON ) against a person for a prosecution to be brought . For that to be established there had to be a greater probability , in the light of the results of the preliminary investigation , that the person in question would be convicted than acquitted , which was not so in the present case .

ORG took as the point of departure for its reasoning the fact that the victim had been killed by a shot fired from his own gun , which had been placed against the victim ’s right temple or in that immediate area . For murder to be made out , someone would have to have seized the gun . There was nothing in the investigation to show that that had happened . The investigation had established that throughout the police ORG pursuit of PERSON they had been at a distance of QUANTITY from the victim . The gun could not therefore have been seized from him during that stage of the events . Furthermore , it had not been established that someone had seized the gun while PERSON was lying on the track following his fall after the shots had been fired at him : none of the witnesses had seen anyone take hold of the victim ’s gun and none of the experts – who had , moreover , come to diverging conclusions – had been able to state , on the balance of probabilities ( mit der hier erforderlichen überwiegenden GPE ) , that that was what had happened . Whereas Professor PERSON had ruled out the possibility that the grazes on the back of PERSON ’s hand had been caused by someone violently seizing his gun , Professor PERSON had come to the opposite conclusion , while acknowledging that another possible explanation for the wounds was that in order to take PERSON to the hospital it had first been necessary to free his right hand , which was trapped between the ballast and his buttocks . Professor PERSON , for his part , had mooted a third explanation relating to a subsequent phase in the events , while Professor PERSON had concluded that it was “ highly unlikely ” ( höchst unwahrscheinlich ) that someone had violently seized PERSON ’s gun .

Even if it were conceded , ORG went on , that someone had violently seized the gun , it would still be necessary , in order to explain the injury to PERSON ’s temple , for that person to have shot him by placing the barrel of the gun against his temple while he was lying on the track , a scenario which had not been confirmed by the investigation either . Most of the witnesses had stated that after the exchange of shots between the police officers and PERSON and PERSON ’s fall they had heard no further shots . Moreover , the investigation had revealed that the victim had been hit by CARDINAL bullets fired from a distance of QUANTITY : CARDINAL bullets had gone through the victim horizontally and CARDINAL had travelled upwards through his body . In order to have fired the shot which hit the victim ’s temple , a police officer would have to have been right next to him on his left - hand side after he had fallen down . None of the witnesses , however , had seen a police officer bend down to the left of PERSON at that moment . On the contrary , all of them had stated that the QUANTITY police officers posted next to PERSON at that moment had been holding their guns well above PERSON ’s head .

Admittedly , CARDINAL witnesses claimed to have seen those QUANTITY police officers use their guns at that moment . Their evidence , however , was both incomplete and in blatant contradiction with other aspects of the investigation and therefore unreliable . This was particularly the case of witness PERSON , who , during questioning , had given CARDINAL different and contradictory versions of events . Furthermore , each version had contained elements which were incompatible with objective and verified evidence gathered in the investigation . With regard to witness J. , whose statement had consisted merely in a telephone call to ORG , it had not been possible to establish his identity with certainty and it had therefore not been possible to check his evidence , parts of which , moreover , blatantly conflicted with some of the objective evidence . Lastly , witness PERSON claimed to have seen everything without , however , being able to give a plausible explanation for his presence at Bad PERSON station at the material time . The explanation he had given , namely that he was on his way to a friend ’s house , had been contradicted by the friend .

ORG held , on the other hand , that all the evidence in its possession supported the conclusion that PERSON had committed suicide . This was borne out by , among other things , the quantity of blood found on the gun and the position of PERSON ’s head . Furthermore , the traces of blood on the victim ’s temple suggested that the shot had been fired before he was lying completely flat , which supported the supposition that he had killed himself while falling backwards under the effect of his wounds . That theory was confirmed by the fact that , according to all the witnesses , PERSON had remained motionless after his fall . The fact that none of the witnesses had seen the victim shoot himself in the head could be explained by the fact that many events had been happening at the same time ( PERSON ) and that from where they were standing the witnesses could see only the victim ’s left arm whereas he had used his right hand to fire the shot .

Lastly , ORG considered that even if PERSON ’s hands had been examined , that would not have provided evidence on which to bring a charge of murder since they had necessarily borne the traces ( PERSON ) of the CARDINAL shots he had fired at the police officers . As for any fingerprints which might have been found on PERSON ’s gun , they would not necessarily have proved that someone had shot him because they might also have been placed there while the gun was being carried away . Lastly , it was of no consequence that the jacket of one of the police officers had disappeared in GPE since the other evidence gathered during the investigation had ruled out the possibility that the shot could have been fired by a person other than PERSON himself .

In conclusion , ORG found that it had been proved with a degree of probability approaching certainty ( mit an Sicherheit grenzenden PERSON ) that PERSON had killed himself as he fell onto the track . The argument advanced by the applicants therefore lacked the degree of probability necessary for a reopening of the investigation to be ordered .

On an appeal by the applicants , ORG decided on DATE not to examine the case .

Under LAW and LAW ( GPE – “ ORG ” ) the public prosecutor ’s office must prosecute ( ORG ) a suspect if the results of the investigation justify instituting criminal proceedings . It does so by lodging an indictment ( PERSON ) with the appropriate court . If the results of the investigation do not justify instituting criminal proceedings , the public prosecutor ’s office discontinues the case ( Einstellung des PERSON ) .

Article CARDINAL ORG governs appeals which , in proceedings to enforce a prosecution ( ORG ) , can be brought by a civil party against a decision to discontinue a case . The civil party can first lodge an appeal ( Beschwerde ) with the member of the public prosecutor ’s office immediately superior to the one who decided to discontinue the case . If that appeal is dismissed , the civil party can request ORG to rule on whether a charge can be brought ( Antrag auf gerichtliche GPE ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE . He is a writer , translator and publisher and lives in GPE . ORG were represented by their Agent , Mr PERSON , of ORG .

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

In DATE the applicant published a book called “ Narcotics – A guide ” ( GPE – przewodnik ) . The book had the following subtitle : “ Part CARDINAL : Soft drugs . Marijuana – LSD-CARDINAL – Mushrooms . History – Production – How to use DATE Dangers . ”

The book opened with the following introduction :

“ From the author :

I am aware of the fact that among persons knowledgeable on the subject , the use of the word ‘ narcotics’ in the title may be controversial because of the complexity surrounding the meaning of that word . I would therefore like to add the following explanation .

The word ‘ narcotics’ actually means agents used in surgical anaesthetics and in painkillers not used in surgery ( for example , morphine ) . However , in common parlance it is understood much more widely , probably because an appropriate term , akin to the LANGUAGE ‘ drugs’ , for instance , has not been established in the NORP language . I think that the broad meaning given to the word ‘ narcotics’ in common parlance stems from the publication ‘ GPE and the unwashed soul’ by ORG , and from the way the word is currently used by the media .

Probably the most appropriate title for this book would be : ‘ Psychosocial implications of the pharmacodynamics of psychoactive agents and their neurophysiological , cultural , qualitative and quantitative determinants.’ However , in my view this title is slightly too long for a book aimed at the general public .

At the same time , I would like to state that it is not my intention in any way to solicit , encourage or propagate the use of psychoactive agents .

The aim of this publication is to fill the alarming void which exists in our country resulting from widespread ignorance and lack of knowledge about the basic issue referred to ( mistakenly and often improperly ) as drug addiction . ”

The book was divided into the following chapters :

On the back cover of the book the applicant included a quotation that began as follows :

“ People do not take drugs because they are bad . They do not take drugs out of perversity . They take them because the drugs make them feel good . Very good indeed . ”

The quotation was attributed to PERSON , a professor at ORG in GPE .

On an unspecified date in DATE the LOC district prosecutor started an investigation into allegations that the applicant ’s book contained instructions on the production and use of drugs . The prosecutor appointed experts to assess the content of the book .

On DATE the district prosecutor charged the applicant under section CARDINAL of ORG DATE with inciting readers of his book to use drugs .

On DATE the applicant was indicted before ORG .

On DATE the applicant was tried by ORG . He was convicted as charged and sentenced to a fifteenmonth prison term suspended for DATE and a fine of MONEY ( ORG ) . The court gave the following reasons for the applicant ’s conviction :

“ In view of the evidence before it the ORG considers that there can be no doubt as to PERSON

DATE and DATE PERSON published his book entitled ‘ GPE – A guide DATE Part CARDINAL : Soft drugs’ . He distributed the book throughout the country . CARDINAL of the reasons the defendant wrote the above book was for financial gain . This was admitted by the defendant , who said that all economic activity was aimed at financial gain .

The defendant also acted in pursuit of personal goals since he published his book and sold it throughout the country , presenting it as his contribution to the discussion concerning the legalisation of narcotics , in an attempt to establish himself as a published author .

The defendant referred in his book to his own claims as well as citing numerous quotations from NORP and foreign publications . In the same vein , he intentionally selected information in support of his claims designed to create the impression not just that the narcotics described were not dangerous , but that taking them benefited human mental and physical health . In order to achieve this aim , the defendant omitted numerous pieces of information which were known to him and which showed the harmful influence of these psychoactive agents on the human body .

Another fact which it is important to point out is that the defendant addressed his book mainly to young people , as demonstrated by the quotation printed on the back cover . The ORG considers that reading this quotation in a bookshop is liable to make a potential reader interested in the content of the book .

The ORG is of the view that the aim of the message contained in the book was to persuade ... readers to try out CARDINAL of the narcotics described therein when the opportunity arose . In order to achieve this aim , the defendant sought to break down the psychological barriers normally encountered by reasonable individuals by choosing his words carefully , using analogies , outlining what he saw as the numerous qualities and advantages for the prospective consumer , and hiding or referring only in general terms to several dangerous consequences of drug use . No individual knows himself sufficiently well to be certain whether and how a certain narcotic may influence his psyche .

The book in question was intended to be read in particular by young people . It is widely known that different types of narcotics , including those described by the defendant , are trafficked among high - school students and even among older pupils in primary schools . Moreover , it is known from radio , television and the press that the narcotics described by the defendant are taken by people , some of them teenagers , at private social events and in discotheques . Experience and observation of the environment tell us that persons of such a young age have not developed the necessary degree of self - criticism to allow them to approach the content of PERSON book with the required objectivity .

The ORG considers that the average reader will not analyse in depth the philosophical content of the book , but will remember simple facts designed to show that the narcotics described bring immediate pleasure and unforgettable experiences – including experiences of a religious nature DATE and , more importantly , that taking the doses suggested by the defendant ... will not have any negative consequences for life and health .

The ORG considers , therefore , that the approach taken by the defendant , consisting of publishing selected information , was aimed at inducing and making it easier for readers to take the narcotics described .

The defendant published detailed information in his book on how to obtain ingredients and prepare them . He also gave instructions on the doses to be taken and described the states of mind which might be experienced . His actions were therefore aimed at making it easier for the reader to use narcotics .

The defendant did not deny that access to narcotics in GPE was very easy . It is well known from the media that there are places where almost anyone who wants to experiment with a chosen narcotic may buy it . In the context of this widely known information , the defendant advised readers to buy ingredients from verified sources .

The ORG is of the view that the average young person , after reading the book , buying narcotics and , under the influence of the book , forgetting his or her fears and apprehensions , is liable to decide unhesitatingly to take the narcotics . After reading the book he would feel certain that he was unlikely to become addicted and that he would not experience any negative effects , while being able for DATE to experience new states of mind without fear .

In view of the above , the ORG has come to the conclusion that the actions of the defendant , PERSON , fit the characteristics of the misdemeanour described in section CARDINAL ) of ORG of DATE . ...

When sentencing the defendant , the ORG took into account , as a factor counting against him , the significant degree of social harm which could be caused by his actions in the context of increasing drug addiction among young people .

The ORG also took into account the following circumstances in the defendant ’s favour : the fact that he had no criminal record , the positive opinion of his neighbours and the fact that CARDINAL copies of the book had been printed , making it less accessible to potential readers in GPE .

In sentencing the defendant the ORG further took into account the profit he made from the sale of the book , his ability to earn a living and the fact that he has to support a wife and CARDINAL children .

In view of the above - mentioned circumstances in the defendant ’s favour , his personal circumstances and his lifestyle , which justify the assumption that he will comply with the law and will not reoffend , the ORG has decided to suspend his sentence . ... ”

The applicant appealed against his conviction but the appeal was dismissed by ORG on DATE . The appellate court fully subscribed to ORG findings and agreed that the book was actually a “ guide for drug addicts ” . The court was of the opinion that the introduction to the book , in which the applicant denied his “ intention in any way to solicit , encourage or propagate the use of psychoactive agents ” , was in complete contradiction to the content of the book . The court also relied on the opinions of CARDINAL experts who considered the book to be “ a set of instructions for drug addicts [ and ] incitement to the use [ of drugs ] ” given that the applicant was of the view that narcotics were “ less harmful [ than generally assumed ] or not harmful at all ” .

On DATE the applicant lodged an appeal on points of law with ORG . Between DATE and DATE the case lay dormant before ORG .

On DATE ORG dismissed the applicant ’s appeal on points of law . It followed the lower court ’s findings and agreed with its opinion that the applicant ’s book incited readers to use drugs and facilitated the taking of drugs by young people .

LAW , which was adopted by ORG on DATE and came into force on DATE , states :

“ GPE shall ensure freedom of the press and other means of social communication . ”

LAW , which lays down a general prohibition on disproportionate limitations on constitutional rights and freedoms ( the principle of proportionality ) , provides :

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

LAW guarantees freedom of expression . It states , in so far as relevant :

“ The freedom to express opinions and to acquire and disseminate information shall be secured to everyone . ”

For more details on the constitutional provisions , see GPE v. GPE DATE . ) , no . CARDINAL , DATE .

Section CARDINAL(CARDINAL ) of ORG of DATE reads as follows :

“ Anyone who , for financial gain or in pursuit of personal goals , provides another person with narcotic or psychotropic products , facilitates their use or incites others to use them , shall be liable to a term of imprisonment of CARDINAL . ”

On DATE the Law of CARDINAL DATE on complaints about a breach of the right to trial within a reasonable time ( LOC o skardze na naruszenie prawa strony do rozpoznania sprawy w postępowaniu sądowym bez nieuzasadnionej zwłoki ) ( “ the CARDINAL Act ” ) came into force . It lays down various legal means designed to counteract and/or afford redress for the undue length of judicial proceedings . For a more detailed exploration of the relevant domestic legal provisions , see PERSON v. GPE DATE . ) , no . CARDINAL , § § DATE , ECHR CARDINAL

Section CARDINAL of the CARDINAL Act reads , in so far as relevant :

“ ( CARDINAL )

Section CARDINAL lays down transitional rules in relation to applications already pending before the ORG . It reads , in so far as relevant :

“ ( CARDINAL ) Within DATE of entry into force of this LAW persons who , before that date , had lodged a complaint with ORG ... complaining of a breach of the right to trial within a reasonable time guaranteed by LAW ... may lodge a complaint about the unreasonable length of the proceedings on the basis of the provisions of this LAW if their complaint to the ORG was lodged in the course of the impugned proceedings and if the ORG has not adopted a decision concerning the admissibility of their case . ”


Preliminary objection allowed (out of time)

PERSON , who used to work for a security firm , lives in GPE .

On DATE she brought proceedings against her former employer , ORG , in the GPE magistrate ’s court ( pretore ) for unfair dismissal .

At the first hearing , on DATE , the magistrate raised of his own motion the question whether certain legislative provisions were compatible with the constitutional principle of equality between men and women in the field of employment . On DATE he stayed the proceedings pending the decision of ORG ( Article CARDINAL of the Code of Civil Procedure ) .

The Constitutional Court gave judgment on DATE ; the text of its judgment was filed at the registry on DATE .

The applicant resumed the proceedings on CARDINAL DATE and they ended on CARDINAL May with a friendly settlement .