The applicants were born in DATE and DATE respectively and live in GPE .

The first applicant entered the GPE in DATE . From his relationship with the second applicant , who has been lawfully residing in the GPE since DATE and holds a permanent residence permit ( vestigingsvergunning ) , a child , PERSON , was born on DATE . The applicants married on DATE . DATE , the first applicant filed a request for a residence permit for the purposes of forming a family unit ( gezinsvorming ) with his wife and working in the GPE . This permit was granted on DATE . On DATE the first applicant acquired the right to remain in the GPE indefinitely ex jure pursuant to LAW para . CARDINAL of LAW DATE ( Vreemdelingenwet DATE ) .

On DATE the first applicant was arrested and placed in detention on remand . ORG of GPE convicted the first applicant on DATE of participating in an organisation aimed at committing offences and of being a co - perpetrator ( medepleger ) of intentionally being in the possession of QUANTITY of heroin , committed on or DATE . The first applicant was sentenced to CARDINAL years’ imprisonment . In respect of the determination of this sentence , ORG held as follows :

“ ... in the decision to impose a sentence involving a deprivation of liberty and the duration thereof , ORG is in particular taking account of the fact that the accused has for a long time let his house be used as a safe house for quantities , of considerable size and suitable for further distribution , of a substance harmful to public health , so that only a prison sentence of considerable duration is appropriate . ”

The first applicant was released on DATE . He went back to live with his wife and child and found a job .

Due to marital problems , the applicants did not live together for some time in DATE . On DATE the first applicant ’s name was removed from the municipal register as living at the same address as his spouse . He was registered as once again living in the matrimonial home on DATE .

On CARDINAL DATE both applicants went to ORG as they were going to resume cohabitation and wanted to prolong the first applicant ’s residence permit . However , an official at that ORG told them it would be better if the first applicant applied for an independent residence permit . For that reason , an application was made for prolongation of the first applicant ’s residence permit or for an amendment of the restrictions attached to that permit so that it would enable him to reside in the GPE for the purpose of working in salaried employment without being required to live with his spouse .

On DATE a second child , PERSON , was born to the applicants . Both children have NORP nationality .

NORP The Deputy Minister of Justice ( Staatssecretaris van Justitie ) informed the first applicant on DATE of her intention to impose a DATE exclusion order on him by declaring him an undesirable alien ( ongewenst vreemdeling ) . The first applicant was invited to submit his views on the matter . By letter of DATE the first applicant declared that he would never again do anything wrong and asked to be given a second chance .

The Deputy Minister rejected the request for prolongation of the residence permit on DATE . According to the Deputy Minister , the first applicant had lost his indefinite right to remain on DATE when he had ceased to cohabit with his wife . The fact that the spouses had in the meantime resumed cohabitation did not have the effect of reviving this right ex jure . Although GPE policy provided that aliens , following the dissolution or breakdown of their marriage on the basis of which they had acquired an indefinite right to remain , could under certain circumstances , relating to the duration of the marriage , be eligible for an independent residence permit , the prolongation of a residence permit could also be refused on general interest grounds . In view of the first applicant ’s criminal conviction of DATE , the Deputy Minister considered that it was justified to deny the first applicant further residence and to impose a DATE exclusion order . The interference with the first applicant ’s right to respect for his family life was held to be justified in the interests of public order and for the prevention of crime . Having regard to the seriousness of the offences committed by the first applicant and the duration of the prison sentence imposed on him , the Deputy Minister concluded that the interests of the ORG outweighed those of the first applicant .

The first applicant filed an objection ( bezwaar ) against this decision . It was rejected on DATE by the Deputy Minister who adopted the advice issued by ORG ( PERSON voor ORG ) . ORG was of the opinion that the first applicant ’s request should be considered as a request for an independent residence permit ( onafhankelijke verblijfsvergunning ) in view of the fact that the right to remain indefinitely , pursuant to LAW DATE , did not constitute a residence permit which was eligible for prolongation or for amendment of the restrictions attached to it . ORG further considered , notwithstanding the fact that the first applicant had moved back to the matrimonial home after a separation of DATE , that the breakdown of the applicants’ marriage had been of a permanent nature given the duration of the separation and the first applicant ’s request for an independent residence permit which did not require him to cohabit with his wife . Therefore , the question to be examined was whether , at the time of losing the indefinite right to remain , the first applicant had been eligible for continued residence ( voortgezet verblijf ) .

Having regard to the first applicant ’s criminal conviction , which implied that he had violated public order , ORG considered that the request for a residence permit should be refused and an exclusion order imposed . It saw no merit in the first applicant ’s expressions of regret nor in his arguments to the effect that his wife and CARDINAL children resided in the GPE and that he had been working in the GPE since DATE . In this connection the ORG , referring to the duration of and the reasons for the prison sentence as set out in the judgment of ORG of DATE , had regard to the nature and seriousness of the offence of which the first applicant had been convicted . ORG did not consider that the period of time between the conviction and the imposition of the exclusion order was so long that for that reason alone the authorities ought to refrain from taking that measure . In this respect it was borne in mind that the first applicant had held an indefinite right to remain from DATE until DATE which , pursuant to the policy in force , stood in the way of an exclusion order being imposed .

Finally , as far as the first applicant ’s rights under LAW were concerned , ORG considered that the interests of the ORG outweighed those of the first applicant .

The first applicant filed an appeal against this decision with ORG ( arrondissementsrechtbank ) of GPE , sitting in GPE . He argued , inter alia , that there had not been any breakdown of his marriage , let alone one of a permanent nature . The spouses had merely not cohabited for DATE because of marital problems ; however , the first applicant had remained in contact with his wife . Moreover , during this time their child PERSON had been conceived . The first applicant was gainfully employed , did not constitute a threat to public order and he had extricated himself from the criminal circles in which he had previously been involved . In the view of the first applicant , it was unreasonable to deny him continued residence and to impose an exclusion order on him DATE after his criminal conviction .

In its judgment of CARDINAL DATE ORG agreed with the Deputy Minister that the applicants’ actual close family ties ( feitelijke gezinsband ) had been severed as a result of their temporary separation and that as a result the first applicant had lost his indefinite right to remain . It upheld the Deputy Minister ’s decision in so far as the denial of continued residence was concerned . Having regard to the nature of the offence of which the first applicant was convicted and the length of the prison sentence imposed , ORG considered that the interference with the applicants’ right to respect for family life was necessary in the interests of the protection of public order . In respect of the exclusion order , which denied the first applicant the right to visit the GPE even for short periods , ORG quashed the impugned decision . It found that insufficient weight had been accorded to the interests of the applicants and their children . Thus , no attention had been given to the consequences which the exclusion order would have for the applicants and their children , both in the case where the other family members would follow the first applicant to GPE and in the case where they would remain in the GPE . In this connection ORG noted that the children , who had close links with the GPE as they had been residing there since their birth , might at this stage of their lives have a great need for regular contacts with their father within their own surroundings ( levenssfeer ) , and not exclusively abroad . The exclusion order rendered such contacts – including occasional contacts – impossible .

On DATE the Deputy Minister decided anew on the first applicant ’s objection in so far as this concerned the exclusion order . She declared the objection well - founded and lifted the exclusion order .

The first applicant has not reoffended and has been in paid employment ever since his release from prison .

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

Aliens married to a GPE national , a recognised refugee or a holder of a permanent residence permit acquired , after DATE of legal residence , ex jure an indefinite right to remain pursuant to LAW DATE . This right expired ex jure when the alien no longer actually formed part of his or her spouse ’s family unit . If the married couple ceased , other than temporarily , to live together , this was indicative of a breakdown in family relations even if the marital bond was preserved . The residence permit was not automatically reinstated if the actual close family ties were later restored . The alien could , however , apply for a new one , for the purposes of residence with his or her spouse , or for a residence permit in his or her own right .

NORP Under the policy laid down in chapters PERSON and PERSON of LAW DATE ( PERSON DATE ) , an alien who has been given a custodial sentence by a NORP or foreign court ( at least part of which sentence was not suspended ) , by a judgment that has become final and conclusive , for intentionally committing a crime punishable by a custodial sentence of DATE or more , could be refused permission for continued residence in the country . Underlying this policy is the principle that the longer an alien has lawfully resided in the GPE , the more serious a crime has to be before it may justify refusing continued residence ; the authorities thus apply a “ sliding scale ” ( glijdende schaal ) . The seriousness of a crime is determined on the basis of the sentence attached to it . To determine whether an alien may be refused permission for continued residence , the length of the sentence imposed is compared to the length of time that the alien had been living in the GPE when he or she committed the crime .

In accordance with this policy , an alien who , at the time of committing the offence , had been residing lawfully in the GPE for DATE like the first applicant in the present case – would be refused permission for continued residence if he or she was sentenced to an unsuspended prison sentence of DATE .

An alien who has been sentenced by a final and conclusive judgment for an offence intentionally committed , punishable by a term of imprisonment of DATE or more , was also liable to an exclusion order ( LAW DATE ) . A person upon whom an exclusion order has been imposed is not allowed , for as long as the order is in force , either to reside in the GPE or to visit it .

Continued residence could not be refused to , and an exclusion order not imposed on , aliens with an indefinite right to remain pursuant to LAW DATE .


Remainder inadmissible;Violation of Art. 6-3-d;Non-pecuniary damage - award

Anatoly Kovler;Isabelle Berro-Lefèvre;Karel Jungwiert;Mark Villiger;Mirjana Lazarova Trajkovska;Peer Lorenzen;Rait Maruste

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

On DATE the applicant was apprehended by police officers N and O. According to him , they beat him up and some bystanders , who did not realise that he was being beaten up by police officers , called the police . According to a letter dated DATE , produced by the Government , ORG of the ORG informed the applicant ’s representative that on DATE there had been no call for police assistance in the area where the applicant had been apprehended .

After his arrest the applicant was taken to hospital where a doctor diagnosed him with “ an injury ; a bruise on the left shin ; an injury on the left shoulder . ” The applicant was then brought to a police station and stayed there for DATE on suspicion of drug trafficking .

The applicant complained to the prosecutor about the police brutality . As follows from a copy of the decision dated DATE , submitted by the Government , ORG refused to initiate criminal proceedings against officers N and O. It found that the applicant had resisted lawful arrest by swinging his hands and otherwise trying to escape . Thus , the officers had had to handcuff him . The investigator in charge of the applicant ’s criminal case at the material time affirmed that the applicant had not alerted her to any unjustified recourse to force against him . Apparently , the applicant was not apprised of the decision of CARDINAL DATE . According to the Government , that decision was quashed in DATE and a further inquiry was ordered . The outcome of that inquiry remains unclear .

The applicant also raised the ill - treatment matter at the trial ( see paragraphs CARDINAL and CARDINAL below ) .

The applicant was charged with drug trafficking . The prosecution case was that the applicant had committed the following offences :

- on an unspecified date he had bought a large quantity of heroin and on DATE sold it to PERSON ;

- on an unspecified date he had bought a large quantity of heroin and on DATE he attempted to sell it to PERSON , but the police stopped him .

On DATE and DATE the applicant was questioned in relation to the charges against him . He was not provided with a lawyer because he had previously refused legal assistance . On DATE the applicant was released on a written undertaking not to leave the town . On an unspecified date he retained a lawyer and several lay representatives .

At the trial the applicant pleaded that he had spent DATE on DATE at home . On DATE had called him , but being short of time he had arranged to meet her DATE . It appears that the police monitored that conversation on the second handset . According to the applicant , on DATE in the course of his meeting with PERSON , he was approached by police officers who forcibly pinned him to the ground , handcuffed him and beat him up .

On DATE the applicant asked the trial court to call PERSON , Mr S and Mr R , who could , he alleged , confirm that “ he had been at home DATE on DATE and that he had not met PERSON on that day ” . The court rejected that application as premature . The applicant reiterated the request at a hearing on DATE and also asked to call PERSON , his aunt , who had allegedly been at home with him on DATE . The court rejected both applications as “ premature and unfounded ” . At the hearing on DATE the applicant ’s lay representative again requested to call PERSON , PERSON and another unspecified person ( apparently Mr R ) , and PERSON can be seen from the hearing record , the court decided that “ it was unnecessary to examine those persons ” . Thereafter , the applicant unsuccessfully asked to have included in the file written statements made by PERSON , PERSON and a Ms Y confirming the applicant ’s alibi for DATE . The prosecution did not object to the above applications made by the defence .

The applicant also asked to have examined PERSON . , who had been present during the arrest of PERSON and who could have testified that Ms U had never claimed that the applicant had sold her drugs . The request was dismissed by the trial court . According to the Government , PERSON . was mentioned in the list of persons to be called to testify at the trial but she did not appear at the trial .

By a judgment of DATE , the ORG of GPE found the applicant guilty of unlawfully procuring and being in possession of drugs with the intention of selling them and of selling a large supply of drugs . The trial court sentenced him to DATE imprisonment . It based its judgment on the following evidence :

i ) the statements by the officers who arrested the applicant on DATE . They stated that on DATE they had arrested PERSON , performed a search on her person and seized a large quantity of drugs . PERSON claimed that she had just bought the drugs from the applicant and offered to assist the officers in the applicant ’s arrest . She called the applicant on the telephone and asked for drugs . The applicant agreed and fixed a meeting for DATE . The police arrested the applicant at that meeting , performed a search on his person and seized a large quantity of drugs ;

ii ) the deposition by PERSON made during the pre - trial investigation in which she confirmed the statements made by the officers . In her oral testimony at the trial PERSON retracted her earlier deposition ;

iii ) the statements by eyewitnesses who were present during the applicant ’s arrest and search on DATE and who testified that a large quantity of drugs had been seized from the applicant ;

iv ) the depositions by an attesting witness , PERSON , who was present at the arrest of PERSON on DATE . In her depositions made during the pre - trial investigation ORG confirmed the statements by the police officers . However , at the trial she partly retracted them , claiming that she had not heard Ms U mention the applicant ’s name and that she had signed a blank sheet of paper which was later filled in by the police ;

v ) the reports on the applicant ’s and PERSON arrest and search ;

vi ) the expert reports confirming that the substances seized from the applicant and PERSON were heroin ;

vii ) the report on the medical examination of the applicant , according to which the applicant was in a state of drug intoxication .

The trial court rejected the applicant ’s allegation of ill - treatment with reference to the statements by the police officers and the prosecutor ’s decision not to open a criminal case against them .

The applicant appealed against the trial judgment arguing inter alia in his additional statement of appeal as follows :

“ [ T]he court arbitrarily refused the defence ’s application to examine as witnesses PERSON , PERSON , PERSON and QUANTITY other persons who could confirm [ the applicant ’s ] alibi , namely the fact of his presence at home TIME on DATE . That refutes his involvement in the offences of which he has been charged by the prosecution on the basis of PERSON pre - trial statement made under duress ... No other evidence of the applicant ’s guilt has been adduced ... ”

On DATE ORG upheld the trial judgment . It did not address the trial court ’s refusal to hear witnesses on the applicant ’s behalf .

On DATE the ORG of ORG , sitting as a supervisory - review court , reduced the applicant ’s sentence to DATE imprisonment . On DATE ORG of GPE examined an application by the applicant for supervisory review . It found that no conclusive evidence had been adduced confirming that the applicant had intended to sell heroin to PERSON on DATE . ORG upheld the applicant ’s conviction for procurement and possession of heroin on DATE and his conviction in relation to the episode on DATE . ORG reduced the applicant ’s prison sentence to DATE and DATE .

According to LAW ( CCrP ) , in force at the material time , the bill of indictment should be accompanied by a list of persons who should , in the prosecutor ’s opinion , be called at the trial ( LAW ) .

When deciding to schedule a court hearing a judge shall examine all applications and decide , inter alia , who shall be called as witnesses ( Articles CARDINAL and CARDINAL CCrP ) . If refused , such applications may be renewed at the hearing ; applications to call additional witnesses or adduce evidence shall be granted in all cases ( LAW ) . At the hearing , the judge shall ask the parties whether they want to call further witnesses or adduce further evidence ( LAW . A party making such an application shall specify the circumstances they intend to determine on the basis of such further evidence ; having considered the application , the judge shall either grant it or issue a reasoned decision refusing it ( ibid . ) .

A court of appeal is competent to review the lawfulness and reasonableness of the judgment made by the court below on the basis of the case file and any additional materials available to it ( LAW CCrP ) . Such review can extend beyond the issues raised by the prosecution or defence in their points of appeal ( ibid . ) . The latter may be supported by additional materials adduced either before or during the appeal hearing , but prior to the prosecution ’s statement ( LAW .

The Code of Criminal Procedure , in force since DATE , provides for a possibility to re - open criminal proceedings on the basis of a finding of a violation of the Convention made by ORG CARDINAL ) .


The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in the village PERSON , the ORG region . ORG ( “ the Government ” ) were represented by their Agent , PERSON , succeeded by Mr Y. GPE .

On DATE the ORG of Kharkiv ( ORG районний суд м. ORG ) awarded the applicant CARDINAL hryvnyas from the ORG budget for damage caused by criminal investigation against him terminated on exonerative grounds in DATE . This decision became final on DATE and was transferred for enforcement to ORG , which informed the applicant that the debt would be paid as soon as the Government allocated appropriate funding . In DATE the applicant received the payment due to him .

In the meantime , in DATE the applicant had lodged a civil complaint against ORG seeking damages for its alleged failure to ensure the timely enforcement of the judgment given in his favour .

Having heard both parties , on DATE the ORG of GPE ( ORG районний суд м. PERSON ) rejected the applicant ’s claims . It found no basis in the applicable law for the compensation claimed . The applicant appealed , alleging that the firstinstance court had misinterpreted his arguments and the applicable law .

On DATE ORG ( PERSON суд м. PERSON ) upheld the judgment of DATE , having held a hearing in the applicant ’s absence .

The applicant appealed in cassation . In his appeal , he noted that he had not been duly informed of the hearing of DATE , as the court had sent him the summons by regular mail , which arrived only on DATE .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation . In its decision , ORG did not refer to the applicant ’s argument about the deficient notification of the hearing . However , it stated generally that the case did not disclose any misapplication of procedural or substantive law , which could have led to an erroneous decision of the case .


Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Mihai Poalelungi;Nona Tsotsoria

NORP The applicant company was founded in DATE and since DATE has , inter alia , run a driving school , being in possession of the necessary licence issued by the ORG for that purpose . On DATE the applicant company ’s licence was renewed with a term of validity of DATE . At that time the driving school employed approximately QUANTITY people and had CARDINAL students .

On DATE ORG conducted an unannounced check on the driving school and discovered that CARDINAL of its instructors had been replaced and that ORG had not been informed of this within the DATE time - limit provided for by the law .

On DATE ORG issued decision no . CARDINAL , by which the applicant company ’s licence was withdrawn in view of the irregularity .

On DATE the applicant company initiated court proceedings against ORG , seeking the revocation of its order of DATE . The applicant company submitted , inter alia , that the check carried out by the defendant on DATE had been unlawful and that it had announced to ORG the changes to its personnel by letters of DATE and DATE . In that respect the applicant company submitted a copy of its internal register of incoming and outgoing correspondence containing notes of CARDINAL letters sent to ORG .

On DATE ORG dismissed the applicant company ’s action , finding that its system of registering correspondence was not sufficient proof . The applicant company appealed against the judgment .

On DATE ORG dismissed the applicant ’s appeal .

The relevant provisions of PERSON no . CARDINAL on Licensing ( “ the Licensing Act ” ) read as follows :

( CARDINAL ) ORG checks can be conducted only on the basis of a written request in respect of a breach of licence conditions by a licence holder .

( CARDINAL ) ( f ) [ A licence may be withdrawn ] if a licence holder fails to notify the appropriate authority in due time of a change in the data contained in the annexes to an application for a licence .

NORP The relevant provisions of LAW read as follows :

“ ( CARDINAL ) Default interest is payable for delayed execution of pecuniary obligations . Default interest shall be PERCENT above the interest rate provided for in LAW [ ORG refinancing interest rate ] unless the law or the contract provides otherwise . Evidence that a lower level of damage has been incurred shall be admissible .

( CARDINAL ) NORP In non - consumer - related situations default interest shall be PERCENT above the interest rate provided for in LAW unless the law or the contract provides otherwise . Evidence that a lower level of damage has been incurred shall be inadmissible . ”


EPARHIJA BUDIMLJANSKO-NIKŠIĆKA AND OTHERS v. MONTENEGRO

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

The applicants are PERSON ( “ the first applicant ” ) with its seat in the monastery ORG stupovi in Berane ( “ the second applicant ” ) , monasteries PERSON from PERSON ( “ the third applicant ” ) , GPE from PERSON ( “ the fourth applicant ” ) , ORG from PERSON ( “ the fifth applicant ” ) , PERSON from PERSON ( “ the sixth applicant ” ) , PERSON from PERSON ( “ the seventh applicant ” ) , ORG from ORG ( “ the eighth applicant ” ) , PERSON from ORG ( “ the ninth applicant ” ) , PERSON from ORG ( “ the tenth applicant ” ) , as well as churches Sv . PERSON from ORG ( “ the eleventh applicant ” ) , and PERSON i GPE from ORG ( “ the twelfth applicant ” ) , all part of ORG in GPE . They were represented before ORG by PERSON , a lawyer practising in ORG .

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

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

NORP On unspecified dates immediately after World War II several plots of land were expropriated from the seventh and twelfth applicants , apparently in the absence of any decision to that effect .

On various dates in DATE several plots of land were expropriated from the second , third , fourth , fifth , sixth , eighth , ninth , tenth and eleventh applicants by the relevant ORG decisions ( PERSON poljoprivredna komisija ) . These decisions would appear to have been upheld by ORG ( PERSON agrarni sud ) .

On DATE the applicants filed a request with the Government seeking restitution of the expropriated plots of land , relying on LAW ( see paragraphs CARDINAL and CARDINAL below ) .

On DATE the applicants urged the Government to decide on their request .

On DATE , not having received any response from the Government , the applicants initiated an administrative dispute ( upravni spor ) before ORG ( PERSON ) for “ silence of administration ” .

On DATE ORG , which , in the meantime , had taken over the competencies of ORG in respect of administrative disputes ( see paragraph CARDINAL below ) , ruled against the applicants on the grounds that the Government had no jurisdiction to rule on their request .

On DATE the ORG decision was dispatched by regular post to the ORG representative in the domestic proceedings .

On DATE the postman noted down that the applicants’ representative had moved from the address provided ( preseljen sa date adrese ) .

On DATE ORG noted that its judgment of CARDINAL DATE could not be served on the ORG representative as he had changed his address , failing to inform the court of the new one . Pursuant to LAW , the court decided that all the relevant documents ( sva pismena u ovom sporu ) would be served on the applicants by posting the documents on the court ’s notice board . Accordingly , the decision was posted on the notice board DATE and removed from it on DATE .

On DATE ORG declared a number of the core provisions of LAW unconstitutional including those relating to restitution in kind as well as the composition and the competencies of ORG ( see paragraphs DATE below ) .

The Just Restitution Act DATE was never applied in practice . The Government have never enacted secondary legislation needed for its implementation and nor has ORG , which was supposed to deal with restitution requests , or any other relevant body , ever been established .

On DATE ORG entered into force , providing that the restitution of property to religious communities would be regulated by a separate law ( see paragraphs CARDINAL below ) .

Section CARDINAL provided that restitution in kind should always be the rule and other forms of compensation , specified in section CARDINAL , “ only the exception ” , where restitution was not possible due to legal or factual reasons .

Section CARDINAL § § CARDINAL and CARDINAL provided that previous owners whose property rights had been taken away on the basis of , inter alia , a court judgment or a decision were also entitled to restitution .

Section CARDINAL § CARDINAL(CARDINAL ) provided that de facto expropriations of property would be treated in the same manner as expropriations carried out on legal grounds .

Section CARDINAL § CARDINAL provided that religious organisations or communities ( vjerska organizacija ili zajednica ) could be beneficiaries of the right to restitution in the same manner as natural persons .

Section CARDINAL § CARDINAL provided that if the property had been taken on the basis of Republic regulations or by a Republic body action ( radnjom ) , the debtor ( obveznik restitucije ) was GPE . LAW § CARDINAL provided that if the property subject to restitution was owned by a natural or legal person , the debtor was that person .

Section CARDINAL provided that when the right to restitution could not be in kind , it could be exercised , inter alia , by providing other property of the same value or by compensation .

Section CARDINAL § CARDINAL provided that the Government of GPE would establish a ORG within DATE as of the date of entry into force of the Act .

Section CARDINAL § CARDINAL provided that restitution requests would be dealt with by ORG .

Section CARDINAL prohibited the disposal of the property subject to restitution pursuant to the LAW ( zabranjen je promet ) until the relevant restitution proceedings had been concluded .

Section CARDINAL § CARDINAL provided that the Government would enact a decree on regulations and the implementation of the LAW within DATE of the date of entry into force of the Act .

Section CARDINAL § CARDINAL further provided that these regulations would further define the modalities of the LAW , including the establishing and functioning of ORG and ORG .

Section CARDINAL provided that CARDINAL of the members of the restitution commissions would be representatives of former owners .

The Act entered into force on DATE .

On DATE the ORG established that a number of provisions of LAW were unconstitutional and that they should cease to have effect as of the date of publication of its decision .

ORG held , inter alia , that restitution in kind would be in breach of existing property rights . Other unconstitutional provisions referred mostly to the composition and competencies of ORG , and the limitations imposed by the LAW on current owners of property subject to restitution . In particular , it was held that : ( a ) ORG competence to decide on the restitution of property taken by virtue of final court judgments was contrary to the principle of separation of powers ; ( b ) the prohibition imposed on current owners to dispose of their property which was subject to restitution proceedings until the relevant proceedings had been concluded , was contrary to the current ORG property rights ; and ( c ) the provision that previous owners could be members of ORG was unacceptable because of their interest in the outcome of the proceedings .

The decision was published on DATE .

Sections CARDINAL and CARDINAL § CARDINAL provide that natural persons , endowments and other non - profitable legal persons ( zadužbine i druga nekomercijalna pravna lica ) are entitled to restitution or compensation in accordance with this LAW .

Section CARDINAL § CARDINAL provides that the conditions , method and the procedure for the restitution of property to religious communities will be regulated by a separate law .

The Act entered into force on DATE thereby repealing LAW .

Sections DATE and CARDINAL provided that an ORG would be set up for the territory of GPE , and that its competencies would include , inter alia , deciding in administrative disputes on the lawfulness of administrative decisions ( o zakonitosti upravnih akata ) and other individual decisions .

Section CARDINAL provided that ORG would become operational by DATE .

Section CARDINAL § CARDINAL enables a party whose request has not been decided within the periods established in the previous paragraph to lodge an appeal with the appellate body as if his request had been refused . If the appeal is not allowed , the appellant can directly initiate an administrative dispute before the court with jurisdiction .

Section CARDINAL § CARDINAL provides that court documents ( pismena ) shall be delivered via the regular post , but may also be delivered by a designated court employee , an authorised legal person registered for delivery , directly in court or in another manner as provided for by this Act .

Section CARDINAL § CARDINAL provides , inter alia , that when a party has a representative ( punomoćnika ) , all court documents will be served on the representative .

Section CARDINAL § CARDINAL provides that the delivery can be effected any day TIME at the flat or at the business premises of the person on whom a document is to be served . If the delivery can not be effected at the address and at the time provided for in paragraph CARDINAL of this section it can be effected at any time and at any place .

Section CARDINAL provides that if a registered person ( subjektu upisanom u registar ) can not be served at the registered address , the documents will be posted on the court ’s notice board . DATE thereafter the delivery shall be deemed to have been fully effected .

Section CARDINAL § CARDINAL provides , inter alia , that if during the proceedings a party or his / her representative changes the address to which the documents should be delivered they are obliged to immediately inform the court thereof . If they fail to do so , the court will order that the documents be posted on the court ’s notice board . The delivery shall be deemed to have been effected DATE after the document has been posted on the notice board .


CASE OF NIEDERBOSTER v. GERMANY [Extracts]

Violation of Article 6 - Right to a fair trial (Article 6 - Constitutional proceedings;Article 6-1 - Reasonable time);Non-pecuniary damage - finding of violation sufficient

The applicant is a NORP national who was born in DATE . He has an illegitimate daughter , PERSON , who was born in DATE . Both before and after her birth , relations between the parents were strained . Until DATE the applicant saw his daughter regularly , looking after her during the daytime on occasion , even though he lived QUANTITY from her home . After DATE without any contact , he saw her again at DATE . Thereafter , the mother refused to allow any further contact .

In DATE the applicant applied to ORG ( ORG ) for an order granting him access to his daughter . On DATE ORG dismissed his application , holding that in view of the strained relations between the parents , the applicant ’s obsessional attitude ( zwanghaft ) towards his daughter and her unwillingness to see him , it would not at that juncture be in the child ’s interest , within the meaning of Article CARDINAL of LAW ( Bürgerliches Gesetzbuch – see “ Relevant domestic law and practice ” below ) to grant the applicant access . ORG also found that the applicant could not claim to be the victim of discrimination , as its decision would not have been any different had his daughter been legitimate . The applicant ’s appeals to ORG ( Landgericht ) and to ORG ( Oberlandesgericht ) were dismissed . On DATE ORG ( Bundesverfassungsgericht ) , sitting as a panel of CARDINAL judges , decided not to entertain the applicant ’s constitutional complaint . On DATE the GPE ORG dismissed a further application by the applicant on the grounds that the relations between the parents remained strained and that a DATE “ cooling - off period ” ( PERSON ) was required before the case could be re - examined .

On DATE the applicant made a further application to the GPE ORG for access to his daughter .

NORP In a letter of DATE , the applicant informed ORG that he considered that the judge hearing the case was biased .

On DATE ORG rejected the application and adjourned its decision until DATE .

On DATE the applicant lodged further particulars of his grounds for challenging the judge hearing the case . On DATE ORG ruled that the challenge was unfounded . On DATE the applicant appealed against that decision .

On DATE he lodged his grounds of appeal and also appealed against ORG decision of DATE . On DATE ORG dismissed the appeal against ORG decision of CARDINAL DATE .

On DATE the applicant lodged his grounds of appeal against ORG decision of DATE . On DATE and DATE ORG heard the child and her mother , followed by the applicant .

On DATE ORG dismissed the applicant ’s appeal . It found that it would not be in the interests of the child ’s welfare , within the meaning of Article CARDINAL § CARDINAL of LAW , to grant the applicant access . In particular , it noted that the situation observed on DATE remained unchanged .

On DATE the applicant lodged a constitutional appeal with ORG in which he argued that LAW was unconstitutional .

On DATE the applicant requested ORG to expedite his appeal in view of his age ( he was DATE ) and the fact that he was suffering from a heart condition .

DATE there was an exchange of correspondence in which ORG informed the applicant that his appeal had been put back in order to await the outcome of other appeals that were pending on the issue of the constitutionality of LAW . It is apparent from CARDINAL editions of a NORP legal periodical ( ORG ) of DATE ( p. CARDINAL ) and DATE ( p. CARDINAL ) that CARDINAL of the sets of proceedings dated back to DATE ( no . CARDINAL BvR CARDINAL/CARDINAL ) . In a letter of DATE , the judge rapporteur in the case advised the applicant that ORG was aiming to issue ( angestrebt ) its decision by DATE .

On DATE the applicant made a further application to the GPE ORG for access .

On DATE ORG suggested to the applicant that he should declare that his appeal had been disposed of ( erledigt ) , in view of the fact that new legislation on family matters ( Kindschaftsrecht – see “ Relevant domestic law and practice ” below ) , regulating , inter alia , the relationship between fathers and their illegitimate children , was about to come into force . It pointed out that the outcome of his appeal would be the same if it declared LAW unconstitutional , as such a finding would merely require the legislature to amend the offending provision within a set period .

On DATE the GPE ORG rejected the applicant ’s application for access , holding that there had been no change of circumstances that would warrant any other decision . The applicant appealed against that decision to ORG . Following a hearing on DATE the parties agreed that the applicant and his daughter would resume contact . With the support of ORG , they arranged various meetings , which were subsequently cancelled for reasons attributable to each of the parties in turn .

NORP In a letter of CARDINAL DATE , the applicant stated that he did not accept the proposal made by the judge rapporteur of ORG .

On DATE the judge rapporteur wrote a further letter to the applicant in which he informed him that , as the new legislation had come into force , his constitutional appeal no longer raised a question of general importance ( grundsätzliche GPE ) and , accordingly , had no prospect of success . He added that the legal costs the applicant had incurred in his constitutional appeal could only be reimbursed if he declared that his appeal had been disposed of .

In a letter of DATE , the applicant declared that his appeal had been disposed of , saying that he had done so solely in order to obtain reimbursement of his legal costs .

On DATE ORG , sitting as a panel of CARDINAL judges , made an order requiring ORG to reimburse the applicant ’s legal costs relating to his constitutional appeal .

At DATE the applicant was allowed to see his daughter again . Shortly afterwards , in a letter of CARDINAL DATE and at the request of ORG , he withdrew his appeal against the GPE ORG decision of DATE .

A further meeting between the applicant and his daughter took place in DATE on the applicant ’s CARDINAL birthday . There has been no contact since and the applicant has not asked ORG for a final ruling on his appeal .

The statutory provisions on custody and access are set out in LAW ( Bürgerliches Gesetzbuch ) . The provisions in this area of the law were substantially amended by a reform of DATE ( Reform zum Kindschaftsrecht , ORG ( ORG ) DATE , p. CARDINAL ) , which came into force on DATE .

Article CARDINAL § CARDINAL provides :

“ The father and the mother have the right and the duty to exercise parental authority [ elterliche PERSON ] over a minor child . The parental authority includes the custody [ Personensorge ] and the care of property [ Vermögenssorge ] of the child . ”

Pursuant to LAW , as amended , the parents of a minor child born out of wedlock jointly exercise custody if they make a declaration to that effect ( declaration on joint custody ) or if they marry .

Before the entry into force of the amended LAW , the relevant provision of LAW concerning custody and access for a child born in wedlock was worded as follows :

“ CARDINAL . A parent not having custody has the right to personal contact with the child . The parent not having custody and the person having custody must not do anything that would harm the child ’s relationship with others or seriously interfere with the child ’s upbringing .

NORP The family court can determine the scope of that right and can prescribe more specific rules for its exercise , also with regard to third parties ; as long as no decision is made , the right , under LAW , of the parent not having custody may be exercised throughout the period of contact . The family court can restrict or suspend that right if such a measure is necessary for the child ’s welfare .

The relevant provisions of LAW concerning custody of and access to a child born out of wedlock were worded as follows :

“ Custody over a minor child born out of wedlock is exercised by the child ’s mother ... ”

Article CARDINAL

“ CARDINAL . NORP The person having custody of the child shall determine the father ’s right of access to the child . LAW , second sentence , applies by analogy .

NORP If it is in the child ’s interests to have personal contact with the father , the guardianship court can decide that the father has a right to personal contact . Article CARDINAL § CARDINAL applies by analogy . The guardianship court can change its decision at any time .

By virtue of section CARDINAL of ORG ( PERSON über das Bundesverfassungsgericht ) of DATE , ORG has power to order interim measures if special reasons make it necessary to do so in the general interest .

Under its settled case - law , ORG may make such orders on its own initiative , that is to say without an application by an interested party ( see , among other authorities , its judgment of DATE , no . CARDINAL BvH DATE , published in the Official Reports of Judgments and Decisions ( Entscheidungen des Bundesverfassungsgerichts ) , volume CARDINAL , p. CARDINAL ; and its decision of DATE , no . CARDINAL BvR CARDINAL/CARDINAL ) .

In a decision of CARDINAL DATE ( CARDINAL . CARDINAL BvL CARDINAL , CARDINAL , CARDINAL/CARDINAL , DATE , ORG and CARDINAL BvR CARDINAL/CARDINAL , Reports CARDINAL , p. CARDINAL ) , ORG stated : “ [ ORG ] must , in principle , confine itself to declaring the impugned provision unconstitutional , whereupon the ORG authorities may no longer apply it . The courts are required to stay any proceedings whose outcome depends on the provision in issue until new legislation comes into force . ” The same reasoning is to be found in , among other authorities , a decision of DATE ( ORG . DATE , DATE and DATE , Reports CARDINAL , p. CARDINAL ) .


CASE OF THE UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY

Violation of Art. 11;Not necessary to examine Art. 9;Not necessary to examine Art. 10;Not necessary to examine Art. 14;Not necessary to examine Art. 18;Not necessary to examine P1-1;Not necessary to examine P1-3;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award - Convention proceedings

C. Russo;John Freeland;N. Valticos;R. Pekkanen

ORG of GPE ( “ the ORG ” ) , the first applicant , was a political party that was dissolved by ORG ( see paragraph CARDINAL below ) .

Mr PERSON and Mr PERSON , the second and third applicants , were respectively Chairman and General Secretary of the ORG . They live in GPE .

The ORG was formed on DATE . On DATE , its constitution and programme were submitted to the office of ORG at ORG for assessment of their compatibility with LAW and Law no . PERSON on the regulation of political parties ( “ PERSON no . CARDINAL ” – see paragraph CARDINAL below ) .

On DATE , when the ORG was preparing to participate in a general election , ORG at ORG ( “ ORG Counsel ” ) applied to ORG for an order dissolving the ORG . He accused the party of having sought to establish the domination of CARDINAL social class over the others ( Articles CARDINAL , CARDINAL and DATE and former LAW and section CARDINAL of PERSON no . PERSON ) , of having incorporated the word “ communist ” into its name ( contrary to section CARDINAL ) of PERSON no . PERSON ) , of having carried on activities likely to undermine the territorial integrity of the ORG and the unity of the nation ( ORG , CARDINAL and DATE and former LAW , and sections CARDINAL and CARDINAL of Law no . CARDINAL ) and of having declared itself to be the successor to a previously dissolved political party , ORG ( section CARDINAL(CARDINAL ) of PERSON no . PERSON ) .

In support of his application ORG relied in particular on passages from the ORG ’s programme , mainly taken from a chapter entitled “ Towards a peaceful , democratic and fair solution for the NORP problem ” ; that chapter read as follows :

“ The existence of the NORP and their legitimate rights have been denied ever since the Republic was founded , although the national war of independence was waged with their support . The authorities have responded to the awakening of NORP national consciousness with bans , oppression and terror . Racist , militarist and chauvinistic policies have exacerbated the NORP problem . That fact both constitutes an obstacle to the democratisation of GPE and serves the interests of the international imperialist and militaristic forces seeking to heighten tension in LOC , set peoples against each other and propel GPE into military adventures .

The NORP problem is a political one arising from the denial of the NORP people ’s existence , national identity and rights . It therefore can not be resolved by oppression , terror and military means . Recourse to violence means that the right to self - determination , which is a natural and inalienable right of all peoples , is not exercised jointly , but separately and unilaterally . The remedy for this problem is political . If the oppression of the NORP people and discrimination against them are to end , NORP and NORP must unite .

The ORG will strive for a peaceful , democratic and fair solution of the NORP problem , so that the NORP and NORP peoples may live together of their free will within the borders of GPE , on the basis of equal rights and with a view to democratic restructuring founded on their common interests .

The solution of the NORP problem must be based on the free will of the NORP and take into account the common interests of the NORP and NORP nations and contribute to the democratisation of GPE and peace in LOC .

A solution to the NORP problem will only be found if the parties concerned are able to express their opinions freely , if they agree not to resort to violence in any form in order to resolve the problem and if they are able to take part in politics with their own national identity .

The solution of the NORP problem will require time . In the immediate future , priority must be given to ending military and political pressure on the NORP , protecting the lives of NORP citizens , bringing the state of emergency to an end , abandoning the ‘ village PERSON system and lifting bans on the NORP language and NORP culture . The problem should be freely discussed . The existence of the NORP must be acknowledged in the LAW .

Without a solution of the NORP problem , democratic renewal can not take place in GPE . Any solution will entail a fight for the democratisation of GPE . ”

CARDINAL other passages relied on by ORG read as follows :

“ ... ORG of GPE is the party of the working class , formed from the merger of ORG and ORG .

The cultural revival will be fashioned by , on the one hand , the reciprocal influence of contemporary universal culture and , on the other , NORP and NORP national values , the heritage of the NORP civilisations , the humanist elements of NORP culture and all the values developed by our people in their effort to evolve with their times . ”

ORG referred to above had been dissolved on CARDINAL DATE on grounds similar to those relied on against the ORG .

On DATE ORG made an order dissolving the ORG , which entailed ipso jure the liquidation of the party and the transfer of its assets to the ORG , in accordance with section CARDINAL(CARDINAL ) of PERSON no . CARDINAL . The order was published in ORG on CARDINAL DATE . As a consequence , the founders and managers of the party were banned from holding similar office in any other political body ( Article CARDINAL of the LAW and section CARDINAL(CARDINAL ) of PERSON no . PERSON – see paragraph CARDINAL below ) .

ORG firstly rejected the submission that the ORG maintained that CARDINAL social class , the proletariat , was superior to the others . Referring to the party ’s constitution , modern works on NORP ideology and contemporary political ideas , it held that the ORG satisfied the requirements of democracy , which was based on political pluralism , universal suffrage and freedom to take part in politics .

The court also rejected the argument , based on section CARDINAL(CARDINAL ) of Law no . MONEY , that no political party may claim to be the successor to a party that has previously been dissolved . In its view , it was entirely natural and consistent with the concept of democracy for a political party to claim the cultural heritage of past movements and currents of political thought . The ORG had accordingly not infringed the provision relied on by reason only of its intention of drawing on the experience and achievements of NORP institutions .

ORG went on to hold that the mere fact that a political party included in its name a word prohibited by section CARDINAL(CARDINAL ) of PERSON no . MONEY , as the ORG had done in the present case , sufficed to trigger the application of that provision and consequently to entail the dissolution of the party concerned .

As to the allegation that the ORG ’s constitution and programme contained statements likely to undermine the territorial integrity of the ORG and the unity of the nation , ORG noted , inter alia , that those documents referred to CARDINAL nations : the NORP nation and the NORP nation . But it could not be accepted that there were QUANTITY nations within GPE , whose citizens , whatever their ethnic origin , had NORP nationality . In reality the proposals in the party constitution covering support for non - NORP languages and cultures were intended to create minorities , to the detriment of the unity of the NORP nation .

Reiterating that self - determination and regional autonomy were prohibited by LAW , ORG said that the ORG was unitary , the country indivisible and that there was CARDINAL nation . It considered that national unity was achieved through the integration of communities and individuals who , irrespective of their ethnic origin and on an equal footing , formed the nation and founded the ORG . In GPE there were no “ minorities ” or “ national minorities ” , other than those referred to in LAW and the friendship treaty between GPE and GPE , and there were no constitutional or legislative provisions allowing distinctions to be made between citizens . Like all nationals of foreign descent , nationals of NORP origin could express their identity , but the LAW and the law precluded them from forming a nation or a minority distinct from the NORP nation . Consequently , objectives which , like those of the ORG , encouraged separatism and the division of the NORP nation were unacceptable and justified dissolving the party concerned .

At the material time the relevant provisions of the LAW read as follows :

“ GPE is a democratic , secular and social ORG based on the rule of law , respectful of human rights in a spirit of social peace , national solidarity and justice , adhering to the nationalism of PERSON and resting on the fundamental principles set out in the Preamble . ”

“ The State of GPE constitutes with its territory and nation , an indivisible whole . The official language is NORP . ”

“ Sovereignty resides unconditionally and unreservedly in the nation .

Sovereign power shall not under any circumstances be transferred to an individual , a group or a social class ... ”

“ All individuals shall be equal before the law without any distinction based on language , race , colour , sex , political opinion , philosophical belief , religion , membership of a religious sect or other similar grounds . ”

“ None of the rights and freedoms referred to in the LAW shall be exercised with a view to undermining the territorial integrity of the ORG and the unity of the nation , jeopardising the existence of ORG , abolishing fundamental rights and freedoms , placing the control of the ORG in the hands of a single individual or group , ensuring the domination of CARDINAL social class over other ORG social classes , introducing discrimination on the grounds of language , race , religion or membership of a religious sect , or establishing by any other means a political system based on any of the above concepts and opinions . ”

“ Everyone linked to ORG by nationality shall be NORP . ”

“ Citizens shall have the right to form political parties and to join them or withdraw from them in accordance with the lawful procedure laid down for the purpose ...

Political parties shall be an indispensable part of the democratic political system .

Political parties may be formed without prior permission and shall carry on their activities in accordance with the LAW and the law .

The constitutions and programmes of political parties shall not be inconsistent with the absolute integrity of State territory and of the nation , human rights , national sovereignty or the principles of a democratic secular Republic .

No political party shall be formed which aims to advocate or establish the domination of CARDINAL social class or group , or any form of dictatorship ... ”

“ Political parties shall not engage in activities other than those referred to in their constitutions and programmes , nor shall they disregard the restrictions laid down by LAW , on pain of permanent dissolution .

The decisions and internal running of political parties shall not be contrary to democratic principles .

Immediately a political party is formed , ORG shall verify as a matter of priority that its constitution and programme and the legal position of its founding members are consistent with the LAW and the laws of the land . He shall also monitor its activities .

Political parties may be dissolved by ORG , on application by ORG .

Founding members and managers , at whatever level , of political parties which have been permanently dissolved may not become founding members , managers or financial controllers of any new political party , nor shall a new party be formed if a majority of its members previously belonged to a party which has been dissolved ... ”

NORP The relevant provisions of Law no . CARDINAL on the regulation of political parties read as follows :

“ Political parties

( a ) shall not aim , strive or incite third parties to

change : the NORP form of ORG ; the ... provisions concerning the absolute integrity of ORG territory , the absolute unity of its nation , its official language , its flag or its national anthem ; ... the principle that sovereignty resides unconditionally and unreservedly in the NORP nation ; ... the provision that sovereign power can not be transferred to an individual , a group or a social class ... ;

jeopardise the existence of ORG , abolish fundamental rights and freedoms , introduce discrimination on grounds of language , race , colour , religion or membership of a religious sect , or establish , by any means , a system of government based on any such notion or concept .

( c ) shall not aim to defend or establish the domination of CARDINAL social class over the other social classes or the domination of a community or the setting up of any form of dictatorship ; they shall not carry on activities in pursuit of such aims ... ”

“ Political parties shall not aim to change the principle of the unitary ORG on which GPE is founded , nor carry on activities in pursuit of such an aim . ”

“ Political parties shall not

( a ) assert that there exist within the territory of GPE any national minorities based on differences relating to national or religious culture , membership of a religious sect , race or language ; or

( b ) aim to destroy national unity by proposing , on the pretext of protecting , promoting or disseminating a non - NORP language or culture , to create minorities on the territory of GPE or to engage in similar activities ... ”

“ The constitution , programme and activities of political parties may not contravene the LAW or this PERSON . ”

“ No political party shall be formed with the name ‘ ORG , ‘ ORG , ‘ fascist’ , ‘ theocratic’ or ‘ national socialist’ , the name of a religion , language , race , sect or region , or a name including any of the above words or similar ones . ”

“ The Constitutional Court shall dissolve a political party where

( a ) the party ’s programme or constitution ... is contrary to the provisions of LAW of this PERSON ; or

( b ) its membership , central committee or executive committee ... take a decision , issue a circular or make a statement ... contrary to the provisions of LAW of this PERSON or the Chairman , Vice - Chairman or General Secretary makes any written or oral statement contrary to those provisions ... ”

“ All the assets of political parties dissolved by order of the Constitutional Court shall be transferred to the ORG . ”

LAW , referred to in LAW , includes in particular sections LANGUAGE ) and PERSON ) , which are reproduced above .


David Thór Björgvinsson;Giovanni Bonello;Lech Garlicki;Ledi Bianku;Nicolas Bratza;Stanislav Pavlovschi

The applicant , Mr PERSON , is a NORP national who was born in DATE and lives in GPE . He was represented before ORG , solicitors in GPE . ORG ( “ the Government ” ) were represented by their Agent , PERSON of ORG .

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

The applicant ’s wife died on DATE . On DATE the applicant applied for widows’ benefits . On DATE the applicant was informed that his claim had been disallowed as he was not a woman . By a letter of CARDINAL DATE the applicant requested that his application be reconsidered .

The applicant did not appeal further as he considered or was advised that such a remedy would be bound to fail since no such social security benefit was payable to widowers under GPE law .

The applicant was not in receipt of child benefit at the time of his claim .

The domestic law relevant to this application is set out in PERSON v. the GPE , no . CARDINAL , § § DATE , ORG CARDINAL-IV and Runkee and White v. GPE , no . CARDINAL , § § CARDINAL , DATE .


No violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 13 - Right to an effective remedy (Article 13 - Effective remedy);No violation of Article 14+2 - Prohibition of discrimination (Article 2-1 - Life;Article 2 - Right to life);No violation of Article 14+6 - Prohibition of discrimination (Article 6 - Right to a fair trial);No violation of Article 14+13 - Prohibition of discrimination (Article 13 - Right to an effective remedy);Non-pecuniary damage - award

The applicant , Mr PERSON , is a NORP citizen born in DATE . At the time of the events in question ( see paragraph CARDINAL below ) he was a farmer living in GPE in the district of ORG which is situated in the province of ORG in south - eastern GPE . He is currently detained in Diyarbakır E - type Prison ( see paragraph CARDINAL above ) . His brother , PERSON ORG , who also lived and farmed in LOC before his death , was killed on DATE in the vicinity of the village in circumstances which are disputed and which have given rise to the proceedings before the Convention institutions .

The original application to the ORG was lodged by the applicant on his own behalf and on behalf of his deceased brother and the widow and CARDINAL children of the deceased .

The applicant has alleged that his brother was deliberately killed by the security forces on DATE . The Government on the contrary have contended that Mr ORG was killed in a gun battle between members of the security forces and a group of terrorists who had engaged the security forces on the day in question . They claim that the applicant ’s brother was among the assailants . The facts as presented by the parties are set out in Section A below .

The applicant and the Government have defended their opposing accounts of the circumstances surrounding the death of ORG on the basis of documentary material , which appears in Section B. The measures taken by the domestic authorities after DATE to investigate the killing of ORG are described in LAW

The ORG appointed delegates to take oral evidence from key witnesses at a hearing held in ORG on DATE . Having regard to the testimony of those witnesses who appeared before the CARDINAL delegates and to its examination of relevant material , the Commission assessed the evidence and established its conclusions in respect of both the killing of ORG and the adequacy of the domestic investigation into his death . These conclusions and the reasons supporting them are summarised at Section D.

The applicant has based his account of the events surrounding the killing of his brother on DATE on the evidence of villagers from ORG village whom he alleges witnessed the incident and on the testimony of PERSON PERSON , a villager from PERSON whom he maintains was in the company of his brother on DATE the latter was killed . The applicant was not himself an eyewitness to the events .

The applicant alleges that on TIME DATE his brother was going to the fields situated QUANTITY from the village of GPE and QUANTITY from his own village of LOC together with FAC . A military operation was being conducted at the time . PERSON turned off the road at CARDINAL point to tend to his beehives but was detained by soldiers . Seeing this , ORG began to run away as he was frightened that he would also be taken into custody . The soldiers saw him running and opened fire . ORG ran towards GPE and hid in some bushes . The soldiers gave chase and found him . According to villagers from ORG who witnessed the incident the soldiers killed him , riddling his body with bullets . The soldiers then planted a weapon near his body and took photographs of the scene . The villagers requested that the body be handed over to them . At first the security forces refused but when the villagers insisted that the deceased was not a terrorist but the uncle of CARDINAL of the inhabitants of a neighbouring village they relented . The villagers were verbally abused and threatened by the security forces .

PERSON was taken into custody and held at ORG gendarmerie headquarters for DATE .

The DATE ’s account of the circumstances which led to the death of the applicant ’s brother is based on the statements made to the ORG ’s delegates at the hearing in ORG on DATE ( see paragraph CARDINAL above ) by members of the security forces involved in the alleged clash with terrorists on DATE , namely : PERSON , a first lieutenant who had been in charge of the CARDINAL teams of soldiers involved in the anti - terrorist operation on DATE in question ; Mr PERSON and PERSON Paşa Bülbül , both senior sergeants commanding units involved in the operation ; and ORG who had been in one of the units .

The Government maintain that the security forces arrived in the vicinity of FAC on DATE having received information that terrorists had been seen in the area . While they were conducting a field search in line formation they came under fire somewhere between GPE and GPE . The gunfire was directed at them from a rocky area , a creek and from the hills around . The security forces , numbering DATE , took cover and returned fire using mainly GCARDINAL and ACARDINAL guns with an effective range of CARDINAL as well as longer range MGCARDINAL and ORG machine guns . The firing distance between the security forces and their assailants varied QUANTITY . The terrorists retreated after TIME and in the lull a search of the scene of the attack was carried out during which the security forces recovered a dead body alongside of which lay an automatic assault gun ( later confirmed as NORP - made in the ballistics report – see paragraph CARDINAL below ) bearing the serial number DATE together with ammunition including CARDINAL cartridge clips , CARDINAL rounds of which were spent and CARDINAL unused . During the field search considerable traces of blood were found along the route used by the terrorists to make their escape .

NORP The team commander , First Lieutenant PERSON , secured the area and contacted the office of the public prosecutor of ORG about the incident . TIME the public prosecutor , Mr PERSON , and ORG doctor , PERSON , arrived at the scene by helicopter accompanied by assistants . An on - the - spot autopsy was performed on the body by PERSON and an autopsy report ( see paragraphs DATE below ) was prepared there and then . The public prosecutor drew up a burial certificate .

The body , which was not identified at that stage ( see paragraph CARDINAL below ) , was handed over to First Lieutenant PERSON who signed the necessary forms . First Lieutenant PERSON ’s team subsequently advanced to the nearest village , ORG , where the body of the deceased was handed over to the mayor and CARDINAL other villagers for burial . They signed for the body .

An incident report was drawn up in a handwritten form on DATE . It was signed by CARDINAL members of the security forces , amongst whom PERSON , PERSON , PERSON and PERSON ( see paragraph CARDINAL above ) . The report confirms the above - mentioned account of the events ( see paragraphs CARDINAL and CARDINAL above ) .

The identity of the deceased was in fact only discovered DATE after the incident . According to a handwritten report signed by CARDINAL gendarmes and dated DATE , the investigation which was carried out after the incident revealed that the body was that of GPE Kaya , a resident of GPE , who was killed in a clash with security forces conducting an operation in the outskirts of LOC .

The applicant maintains that he personally confirmed the account of the events as set out above ( see paragraph CARDINAL ) in a statement which he made to PERSON PERSON of the ORG branch of ORG on DATE , DATE after the fatal shooting and in a supplementary statement which he made to Mr Sedat Aslantaş also of the ORG branch of ORG on DATE .

In his statement the applicant declared that at TIME ORG and PERSON were going to the fields QUANTITY from GPE and QUANTITY from GPE . At that time a military operation was starting in GPE , GPE , ORG and ORG villages . Soldiers participating in the operation took FAC into custody . Seeing this , ORG started to run whereupon the soldiers opened fire . ORG ran the remaining CARDINAL–CARDINAL metres to ORG and hid there in the bushes . The soldiers found him and , according to eyewitnesses , fired over CARDINAL bullets into his body , planted a firearm on him and took photographs . They did not want to give the body to the villagers , but the villagers insisted that the deceased was from a neighbouring village and that he was not a terrorist . The soldiers finally gave the body to the villagers .

Later , the commander of the military unit threatened the inhabitants of ORG and LOC with the destruction of their villages . Most of the people who came to offer their condolences on the death of GPE Kaya suffered abuse of various kinds .

The applicant concluded in his statement that ORG had been taken into custody and his whereabouts were unknown .

In this statement , the applicant declared that ORG was injured while running away and that the security forces followed him to the bushes and killed him there .

The applicant stated that the security forces alone took photographs of the body and when the applicant 's family received the body they had to bury it immediately . An autopsy was conducted but the applicant was not given a copy of the autopsy report although he had requested CARDINAL . The applicant also declared in the statement that the witnesses who saw the body of ORG had left the village , being frightened of the security forces and the intimidation to which they would be subjected if they spoke out publicly . He could not remember any of the names of the villagers who witnessed the killing . The applicant concluded his statement by mentioning that FAC had been detained at ORG gendarmerie headquarters for DATE for questioning and then released .

The applicant maintains that his account of the events is confirmed by statements made by PERSON to the authorities in circumstances which would have made it impossible for the latter to know of the content of his own statements ( see paragraphs CARDINAL and CARDINAL above ) to ORG .

NORP This statement was taken following a letter dated CARDINAL DATE from the public prosecutor at ORG ( see paragraph CARDINAL below ) . When PERSON made the statement , he was detained in FAC for possession of hashish .

Like PERSON , ORG was from the village of FAC . On DATE PERSON left his house to go and tend his beehives which were situated on a piece of land along a road between PERSON and ORG . When he was leaving GPE , he met PERSON who asked if he could accompany him .

When he reached his beehives , he heard some people running and saw CARDINAL soldiers approaching him . The soldiers tied up his hands and asked who he was and why he was wandering about . TIME the soldiers noticed ORG running away . The soldiers shouted after him to stop , but he either did not hear them or chose to ignore them as he increased his pace . The lieutenant ordered the soldiers to shoot at ORG feet . At that time ORG was CARDINAL away .

When the soldiers started shooting at his feet , ORG began to run towards ORG . The soldiers chased him , taking LOC along with them . ORG disappeared beyond a slope and when the soldiers reached the slope he was nowhere to be seen . They then came to the QUANTITY or so houses which are situated at a short distance from LOC where they encountered some other soldiers who said that they had seen ORG . PERSON and the soldiers waited in the street for TIME . He then heard shots being fired ; he estimates that CARDINAL cartridges were fired . TIME a helicopter landed but it was too far away from LOC for him to be able to see what was happening . The helicopter left again after TIME . Later a lieutenant approached PERSON and told him “ we have killed PERSON ” .

PERSON was taken to ORG and kept in custody for DATE .

Aksoy is said to have made this statement whilst in detention following his arrest on DATE . According to the applicant the statement can not be taken to be reliable and must be considered to have been obtained under pressure , as confirmed by PERSON ’s subsequent retraction ( see paragraphs CARDINAL and CARDINAL below ) .

Aksoy states how from DATE he provided food to groups of Workers’ Party of GPE ( “ NORP ” ) members who came to his village of LOC . From DATE he was also involved with ensuring the attendance of villagers at funerals of terrorists .

In DATE CARDINAL ORG members came to the village and told him to go and get PERSON . After ORG had appeared , he and one of the ORG members talked to each other in a separate place . DATE CARDINAL ORG members arrived with a group of CARDINAL people . ORG was told to organise the attendance of villagers at a funeral . DATE the military staged an operation during which ORG died . According to the Government , this last part of his statement is an inaccurate translation of PERSON ’s words . They maintain that LOC in fact related that ORG died during an armed clash .

NORP In this statement PERSON retracted the statement of CARDINAL DATE ( see paragraphs DATE and CARDINAL above ) , saying that he was forced to sign a statement which the police had written .

In the statement he denies the accusations that have been made against him , namely that he acted as a courier for the ORG . No mention is made of ORG in the statement .

NORP This report was drawn up by Dr Arzu Doğru who had been flown to the scene of the fatal shooting to perform the field autopsy . It was prepared on - the - spot ( see paragraph CARDINAL above ) .

NORP The report states that following a telephone call from the district gendarmerie headquarters on DATE to the effect that the body of a person belonging to the ORG terrorist organisation had been captured during a clash , the public prosecutor PERSON and the District Government doctor PERSON set out by military helicopter , accompanied by a gendarme staff sergeant who was to act as clerk . On arrival at the scene the body was found to be lying on its back in the bushes on the bank of a creek . It was moved to a flat piece of ground . Beside the body there was a PERSON rifle with serial number CARDINAL and CARDINAL round of ammunition containing CARDINAL full and CARDINAL empty cartridges . The body is described as being that of a CARDINAL–CARDINAL DATE man with grey hair and dressed in blue and grey trousers with a cummerbund round the waist , a sleeveless black vest and a striped DATE shirt , wearing rubber shoes but no socks . Since there was no one at the scene of the incident who could identify the body , the security forces took photographs from several angles .

A large number of bullet entry and exit holes were found in the neck of the body , in the throat , above the heart , in the upper left area of the abdomen , around the navel and around the groin , in the left hip and in the femur of both legs . The bones of the legs were broken as a result of the blows received .

NORP The report subsequently mentions that the medical examiner was brought over , that the body was handed over to him and that he made the following statement :

“ I established the above findings together with the public prosecutor , and I agree that the findings are as described above . As the result of these findings , the cause of death is clear . There is no need to carry out a classical autopsy . The conditions in the field combined with the fact that we do not have sufficient security or instruments are in any case an impediment to performing a full classical autopsy . From the above findings I have come to the conclusion that the deceased died from cardiovascular insufficiency as a result of the wounds caused by firearms . That is my definite opinion . ”

NORP The report further states that the rifle and the ammunition were seized for safekeeping as corpus delicti . It concludes by stating that the forensic examination of the body and the autopsy procedure had been completed . The report is signed by , inter alia , First Lieutenant PERSON as the person receiving the body .

Following the events of DATE and the identification of the body as that of ORG ( see paragraph CARDINAL above ) , a decision of non - jurisdiction was issued on DATE by PERSON , public prosecutor at ORG , and the file was transferred to the public prosecutor at ORG .

In his decision , the public prosecutor stated that “ the preliminary documents have been examined ” in respect of a crime committed by ORG who , together with other ORG terrorists , took part on DATE in an armed clash with the security forces The decision describes how the body of the deceased was recovered by the security forces after the clash together with an assault rifle and spent ammunition . The decision notes that the ballistics report on the weapon was not yet available . The public prosecutor concluded that , having regard to the aims of the terrorists and to the fact that the attack took place in an area subject to emergency rule , the investigation should be carried out by the prosecuting authorities of ORG on account of the fact that he lacked jurisdiction in the matter .

ORG in turn transmitted the file to ORG for investigation .

An expert report on the weapon and ammunition found beside ORG body was drawn up by the ORG police forensic laboratory on DATE . The report , which was not available at the time the public prosecutor issued his decision of non - jurisdiction ( see paragraph CARDINAL above ) , stated that the weapon was a NORP - made PERSON automatic rifle serial no . CARDINAL/CARDINAL and that the CARDINAL spent bullets examined had been fired from the rifle “ which was found with the dead terrorist ” .

On DATE a public prosecutor , apparently at the request of ORG at ORG , took a statement in relation to the death of ORG from FAC while the latter was detained at ORG ( see paragraphs CARDINAL above ) .

During the proceedings before the ORG , the ORG were requested to supply the photographs which were allegedly appended to the autopsy report ( see paragraph CARDINAL above ) . The authorities have so far been unable to retrieve the photographs .

At the hearing held before two Commission delegates in ORG on DATE oral evidence was taken from CARDINAL witnesses : ( i ) Dr Arzu Doğru , who conducted the field autopsy on the deceased ; ( ii ) First Lieutenant PERSON ; ( iii ) Senior PERSON ; ( iv ) Senior PERSON ; and ( v ) PERSON .

The applicant did not attend the hearing . He notified the Commission on DATE that he feared reprisals if he were to give evidence at the hearing . The nature of his fears was not specified . Nor did Mr PERSON appear . In a letter dated CARDINAL DATE Mr PERSON , through the intermediary of ORG , informed the Commission that he and his family had been subjected to pressure by the police in order to prevent him from giving evidence at the hearing and he would not therefore be attending .

Moreover , although summoned to give evidence , neither the ORG public prosecutor , Mr PERSON , nor the public prosecutor attached to ORG attended the hearing . The former was unavailable on account of other commitments and the latter had taken the view that he would be unable to give any relevant information to the delegates on the pursuit of the investigation into ORG death since he had only become involved in the investigation after jurisdiction had been transferred to ORG .

The Commission assessed the documentary and oral evidence before it on the basis of the evidentiary standard of proof beyond reasonable doubt , taking into account the fact that such proof may follow from the coexistence of sufficiently strong , clear and concordant inferences or of similar unrebutted presumptions of fact . In this respect it noted that the failure of the applicant and of Mr PERSON as well as of the CARDINAL public prosecutors to give evidence at the hearing in ORG had a considerable impact on the determination of whether the evidentiary standard had been attained . The Commission noted however that the applicant was not a direct witness to the events and his testimony would therefore have been of limited evidentiary value . On the other hand , the presence of FAC would have been valuable since he claimed to be an eyewitness and his failure to attend meant that he could not be cross - examined with a view to assessing his credibility and the probative value of his evidence . Further , the absence of any detailed investigation at the domestic level into the circumstances surrounding the death of the applicant ’s brother ( see paragraphs CARDINAL–CARDINAL above ) meant that the Commission had to reach its conclusions on the basis of the oral and documentary evidence which it itself had collected in accordance with its powers under LAW § CARDINAL ( a ) of the LAW .

The DATE ’s assessment of the evidence concerning the death of ORG can be summarised as follows :

( i ) The only clear and undisputed facts were that on DATE the body of ORG was found lying in the bushes on the bank of a creek near the village of GPE . The body was dressed in blue and grey trousers with a cummerbund round the waist , a sleeveless black vest and a striped DATE shirt , wearing rubber shoes but not socks . A large number of bullet entry and exit holes were found in the neck of the body , in the throat , above the heart , in the upper left area of the abdomen , around the navel and the groin , in the left hip and in the femur of both legs . The bones of the legs were broken as a result of the impact of the bullets . The total number of bullet wounds is not recorded in the autopsy report but was estimated by Dr Arzu Doğru in his oral evidence to the delegates as CARDINAL or eight . It was also not in dispute that an autopsy , consisting only of an external examination , was carried out on the body by Dr Doğru at or near the site of the killing and that subsequently the body was handed over on the instructions of First Lieutenant PERSON to CARDINAL villagers from the nearby GPE .

( ii ) The accounts of the clash given by the soldiers whose evidence was heard ( see paragraph CARDINAL above ) , while deficient in detail , were broadly consistent and in line with the Government ’s version of the events ( see paragraphs CARDINAL–CARDINAL above ) .

( iii ) There were however a number of factors which gave reason to doubt the ORG ’s account of the events : there was CARDINAL casualty despite the number of soldiers ( CARDINAL–CARDINAL ) and ORG terrorists ( CARDINAL–CARDINAL ) engaged in the gun battle which reportedly lasted DATE ; the extent and severity of the bullet wounds to the deceased ’s body having regard to the range of the soldiers’ weapons ( QUANTITY ) and the firing distance between the soldiers and their attackers ( QUANTITY ) ; the fact that there were bullet wounds to all parts of the body suggested that the deceased must have been fully exposed to gunfire whereas neither he nor any of the other terrorists had actually been seen during the clash ; the deceased ’s clothing was not typical of NORP mountain apparel ; the body was handed CARDINAL unknown villagers even though he was considered to have been an active terrorist ; and the absence of any forensic evidence linking the deceased to the weapon found beside his body .

While the Commission took the view that the matters referred to above ( see paragraph CARDINAL ( iii ) ) gave rise to concern and were difficult to reconcile with the undisputed facts , it could not be concluded on the basis of a general assessment of the written and oral evidence that it was proved beyond reasonable doubt that ORG was deliberately killed by soldiers in the circumstances alleged by the applicant .

The DATE ’s assessment of the inquiries and investigation into the death of ORG was made in the absence of any detailed investigation by the authorities into the events of DATE and without the delegates having had the benefit of the oral evidence of the key public prosecutors responsible at various stages for the investigation ( see paragraph CARDINAL above ) . The Commission considered the reasons given for their non - attendance at the delegates’ hearing unconvincing .

The ORG found that the autopsy performed on the body was defective and incomplete . In the first place , no attempt had been made to record the number of bullets which struck the deceased or the distance from which the bullets had been fired and the autopsy report was imprecise as regards the location of the entry and exit wounds . Secondly , no tests for fingerprints or gunpowder traces on the deceased ’s clothes or body were made at the scene . While acknowledging that the autopsy and the forensic examination may have been carried out under difficult field conditions in view of the security situation , the ORG found it remarkable that the body was not flown to a place where further analyses could have been made of , for example , the bullets lodged in the body . The handing over of the body to the villagers precluded any further examination . Thirdly , it appeared to the ORG that the authorities took it for granted that the deceased was a ORG terrorist and they did not consider it necessary to examine seriously the possibility that he had been killed in circumstances engaging the responsibility of the security forces . In this respect , the Commission had regard to the mention made in the autopsy report that the deceased was a ORG terrorist , to the wording of the non - jurisdiction decision issued by the public prosecutor , Mr PERSON , ( see paragraph CARDINAL above ) and to the apparent failure of the public prosecutor attached to ORG to put any questions to PERSON about the deceased ’s possible involvement with the ORG ( see paragraphs DATE above ) .

The Government submitted before the ORG and the ORG that the following domestic law is relevant to the case .

Pursuant to LAW no . CARDINAL ( instituting the state of emergency ) , security forces , special forces on duty and members of the armed forces are , in the circumstances stipulated in the relevant Act , empowered to use their weapons when carrying out their duties . The security forces thus empowered may open fire and shoot at a person if a command to surrender is not accepted , is disobeyed or met with counter - fire or if they have to act in self - defence .

The plea of self - defence is enacted in LAW which , in so far as relevant , provides :

“ No punishment shall be imposed if the perpetrator acted ...

in immediate necessity to repel an unjust assault against his own or another 's person or chastity . ”

The Criminal Code contains provisions dealing with unintentional homicide ( Articles CARDINAL , CARDINAL ) , intentional homicide ( Article CARDINAL ) and murder ( Article CARDINAL ) . In respect of these offences , complaints may be lodged , pursuant to ORG CARDINAL and CARDINAL of LAW , with the public prosecutor or the local administrative authorities . The public prosecutor and the police have a duty to investigate crimes reported to them ( LAW ) , the former deciding whether a prosecution should be initiated , pursuant to LAW . A complainant may appeal against the decision of the public prosecutor not to institute criminal proceedings ( LAW ) .

The applicant has drawn attention to the provisions of LAW no . CARDINAL which requires a public prosecutor to transfer authority for the investigation of allegations against the security forces to local administrative boards or councils . According to the applicant this provision is immune from judicial challenge , being contained in a decree having the force of law . An identical provision in section CARDINAL(CARDINAL ) of PERSON no . ORG ( the Prevention of Terrorism Act DATE ) was in fact declared unconstitutional by ORG in a decision of DATE . The applicant contends that the administrative boards , which are composed of appointed civil servants with no legal training , lack independence and entrust investigations into alleged wrongdoing by members of the security forces to a senior member of the security forces . The investigator makes a recommendation as to whether or not a prosecution should be initiated and this recommendation is endorsed by the administrative board whose decisions are subject to review by ORG .

The Government have provided the ORG with a description of the relationship between criminal and civil liability under NORP law .

When a civil court decides on whether a person was at fault in respect of the commission of a particular act it is not bound by criminal - law considerations . The judge in a civil case is not bound by the rules of the criminal law on liability nor by the decision of a criminal court to acquit a person of the wrongdoing which forms the object of civil - law proceedings . It follows from LAW that the judge in civil matters does not need to adopt the findings of a criminal court as regards either the absence of fault or the existence and degree of fault .

Article CARDINAL provides :

“ The court is not bound by the provisions of the penal laws concerning criminal responsibility nor by an acquittal by a criminal court in deciding questions of fault or capacity to act . ”

Under NORP law , considerations of crime and fault are not the same as in civil law . Criminal liability comprises the imposition of sanctions whereas civil law is only concerned with the payment of compensation to a plaintiff who can establish fault on the part of the defendant . Liabilities in criminal and civil - law proceedings are determined at different levels and in accordance with different criteria . Under the criminal law , intent on the part of the accused has to be established ; in principle it does not consider negligence as a fault in terms of criminal liability . The position is different under civil law .

The criminal court may decide the criminal aspects of a case as well as its civil aspects if requested by the aggrieved party under LAW . Thus , the criminal court may make an award of damages . In such a case the criminal court ’s decision on the payment of compensation is binding .

A civil court dealing with a claim for compensation against a defendant does not need to await a preliminary ruling from a criminal court hearing the criminal - law aspects of the case . It is only where a criminal court has ruled that an accused has committed an act amounting to an offence that a civil court would be bound by that finding . However if the criminal court has acquitted an accused person on the ground that the evidence against him was not sufficient to sustain a conviction , the civil court would not be bound by that decision if the act of which he was accused formed the object of civil litigation . The issue of civil - law liability would be determined in accordance with civil rules and procedures . On this latter point a court of appeal ruled in DATE that :

“ The fact that the criminal proceedings resulted in the acquittal of the suspect or the fact that the wrongful act had been committed by many people [ and ] it is not possible to determine who committed it shall not bind the civil court judge in a compensation case opened afterwards . ”

In his application to the ORG ( no . CARDINAL ) introduced on DATE , the applicant complained that his brother , GPE GPE , was unlawfully killed by the security forces on DATE and that the circumstances surrounding his killing had not been adequately investigated by the authorities . The applicant alleged violations of Articles CARDINAL , CARDINAL , DATE , CARDINAL and CARDINAL of the Convention .

The Commission declared the application admissible on DATE . In its report of DATE ( Article DATE ) , it expressed the opinion by CARDINAL votes to CARDINAL that there had been a violation of LAW on account of the inadequacy of the investigation conducted by the authorities into the death of the applicant ’s brother ; unanimously , that there had been no violation of LAW ; by CARDINAL votes to CARDINAL that there had been a violation of LAW ; by CARDINAL votes to CARDINAL that no separate issue arose under LAW of the LAW ; and , unanimously , that there had been no violation of LAW . The full text of the ORG 's opinion and of the CARDINAL separate opinions contained in the report is reproduced as an annex to this judgment .