Preliminary objection joined to merits and dismissed (non-exhaustion of domestic remedies);Violation of Art. 6-1+6-3;Remainder inadmissible;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses award

Giovanni Bonello;Ján Šikuta;Kristaq Traja;Lech Garlicki;Nicolas Bratza;Päivi Hirvelä

The applicant was born in DATE and lives in PERSON .

The applicant read law from DATE to DATE . Subsequently , he did his DATE advocate training and in DATE he began to practise as an advocate .

The applicant submits that from DATE onwards he had often gone abroad to visit his family and to work .

On CARDINAL occasion , after his return from abroad , the applicant met with his old colleague , PERSON , who had offered his help in connection with a letter which had allegedly arrived from abroad and could have caused problems for the applicant . The applicant was not aware that PERSON , who claimed to be working as a teacher , was in fact an officer of ORG ( PERSON ) .

In DATE the applicant became aware of that fact . He then threw GPE out of his flat and cut off all contacts with him . There were CARDINAL witnesses to that event , ORG , PERSON and GPE

On DATE the parliament passed the PERSON on disclosing work for or service in the ORG 's security services or collaboration with them DATE by persons exercising public functions ( ustawa o ujawnieniu pracy lub służby w organach bezpieczeństwa państwa lub współpracy z nimi w latach CARDINAL - CARDINAL osób pełniących funkcje publiczne ) ( the “ DATE LAW ” ) . Persons falling under the provisions of LAW , i.e. candidates or holders of public office such as ministers and members of parliament , were required to declare whether or not they had worked for or collaborated with the security services during the communist regime . The provisions of the LAW extended to , inter alia , judges , prosecutors and advocates .

Following the entry into force of the DATE LAW the applicant declared that he had not been an intentional and secret collaborator of the communist - era security services .

On an unspecified date in DATE the Commissioner of Public Interest ( PERSON ) applied to ORG to institute proceedings in the applicant 's case on the grounds that he had lied in his lustration declaration by denying his collaboration with the security services . The Commissioner heard ORG as a witness .

On DATE ORG instituted lustration proceedings in the applicant 's case . On DATE the applicant was informed that the lustration proceedings had been instituted and that he could consult the case file in the court .

On DATE the court held a hearing partly in camera . It examined some archived classified documents .

On DATE the court held a hearing partly in camera at which it examined the applicant 's personal record ( teczka osobowa ) . The applicant stated that he would not make any statements and would not answer any questions put to him by the court . He requested the court to call GPE and GPE as witnesses .

The court held hearings in camera on DATE , DATE and DATE . Witness W.C. summoned by the court failed to appear .

On DATE ORG , acting as the first - instance lustration court , found that the applicant had been an intentional and secret collaborator with ORG and had therefore lied in his lustration declaration . The operative part of the judgment was served on the applicant on DATE . At the same time , the reasoning was considered “ top secret ” and , in accordance with LAW , could only be consulted in ORG secret registry .

On DATE the applicant lodged an appeal . He argued that ORG judgment had been primarily based on the statements of ORG who had not been heard by the court . The court had instead relied on the transcript of PERSON 's statements given before the Commissioner . Those statements had been given without the applicant or his lawyer being present . PERSON was an officer of ORG which had allegedly managed the applicant as a secret collaborator .

On DATE ORG held a hearing at which it heard W.C. as a witness . The court notified GPE that the Head of ORG ( ORG ) had discharged him from the obligation of confidentiality in respect of the subject matter of the proceedings .

W.C. was heard again at the hearing held on DATE . The court refused the applicant 's request to call CARDINAL additional witnesses ( PERSON and PERSON ) on the ground that their evidence would not be relevant for the determination of the case .

On DATE the court held a hearing . It refused the applicant 's request to call CARDINAL further witnesses ( PERSON and ORG ) , considering their evidence irrelevant for the case .

On DATE ORG , acting as the second - instance lustration court , upheld the original decision . It appears that the judgment and its reasoning were served on the applicant .

On DATE the applicant lodged a cassation appeal with ORG . He submitted , inter alia , that ORG had refused to call CARDINAL crucial witnesses for the applicant whose evidence was to rebut the fact of his alleged collaboration with the security services . The applicant further submitted that ORG had disregarded his arguments to the effect that his contacts with PERSON had been of a private nature . He submitted that his contacts with ORG had not constituted secret and intentional collaboration . He also challenged the fact that he could not consult the file in the proceedings before the Commissioner or adduce any evidence at that stage of the proceedings .

On DATE ORG dismissed the applicant 's cassation appeal . The applicant was served with the operative part of the judgment . The written reasoning was designated “ secret ” by ORG and the applicant could consult it at ORG ( Instytut Pamięci Narodowej ) .

On DATE the President of ORG , pursuant to LAW , ordered the publication in LAW ( ORG ) of the information that according to ORG final judgment of DATE the applicant had lied in his lustration declaration .

Consequently , on DATE the President of ORG issued a decision depriving the applicant of the right to practise as an advocate .

On DATE the applicant requested the President of GPE to grant him a pardon . He was informed , however , that a pardon could only be granted in respect of a person who had been convicted of a criminal offence .

On DATE LAW entered into force . The relevant provisions of this LAW , in the version in force at the material time , are the following :

Section CARDINAL reads , in so far as relevant :

“ CARDINAL . Persons exercising public functions within the meaning of this law are : the President of GPE , deputies , senators ... judges , prosecutors and advocates ... ”

Section CARDINAL provides the following definition of the term “ collaboration ” :

“ CARDINAL . Collaboration within the meaning of this law is intentional and secret collaboration with operational or investigative branches of the ORG 's security services as a secret informer or assistant in the process of gathering information .

Collaboration within the meaning of this law is not an action which was obligatory under the law in force at the material time . ... ”

Section CARDINAL concerns the obligation to submit a “ lustration declaration ” ( oświadczenie lustracyjne ” ) :

“ CARDINAL . Persons in the categories listed in section CARDINAL of this law shall submit a declaration concerning work for or service in the ORG 's security services or collaboration with these services DATE and DATE ( hereafter called ' the declaration ' ) . ”

Section CARDINAL requires such a declaration to be submitted also by those who at the date of entry into force of the DATE LAW are holding a public function .

Section CARDINAL et seq . concerns the office of the Commissioner of ORG . It reads , in so far as relevant :

“ CARDINAL . NORP The Commissioner of ORG ( PERSON ) , hereafter called ' the Commissioner ' , represents the public interest in lustration proceedings . ”

Section CARDINAL(d ) provides , in so far as relevant :

“ CARDINAL . NORP The duties of the Commissioner shall include in particular

i ) analysing the lustration declaration submitted to the court ;

ii ) collecting information necessary for a correct assessment of the declaration ;

iii ) lodging an application with the court with a view to initiating lustration proceedings ;

NORP In carrying out his duties enumerated in points CARDINAL and CARDINAL above , the Commissioner may require to be sent or shown the relevant case files , documents and written explanations , and if necessary may hear witnesses , order expert opinions or conduct searches ; in this respect , and as regards the duties described in section ORG ) , the provisions of LAW concerning the prosecutor shall likewise apply to the Commissioner . ”

Section CARDINAL(e ) provides :

“ The Commissioner , his deputies and the authorised employees of his office shall have full access to documentation and other information sources , regardless of the form in which they were recorded , provided that they were created before DATE by

NORP The Minister of Defence , the Minister of the Interior , the Minister of Justice , the Minister of ORG , or by the services under their authority ; or

NORP The Head of ORG . ”

Sections DATE and CARDINAL refer to LAW . Section CARDINAL reads as follows :

“ Matters not covered by this law and relating to lustration proceedings , including the appeal and cassation phase , shall be governed by LAW . ”

The amendment to section DATE , which entered into force on DATE , provides that the proceedings can also be conducted in camera on an application by the person subject to lustration . This provision replaced the one contained in section ORG ) , which provided that the court could decide to conduct the proceedings in camera of its own motion or on an application by a party .

Section CARDINAL provides :

“ The provisions of LAW relating to the accused shall apply to the person subject to lustration ( hereafter called ' the subject ' ) . ”

Section CARDINAL provides for service of the judgment :

“ CARDINAL . The court 's judgment , together with the written reasons , shall be served on the parties to the proceedings without delay .... ”

Section CARDINAL , amended with effect from DATE , provides :

“ A final judgment finding that the declaration submitted by the subject was untrue shall be published immediately in LAW ( ORG ) if

CARDINAL ) no cassation appeal has been lodged within the prescribed time - limit ; or

CARDINAL ) NORP the cassation appeal has been left unexamined ; or

CARDINAL ) NORP the cassation appeal has been dismissed . ”

Section CARDINAL lists the consequences of the judgment for a person subject to lustration who has submitted an untrue declaration . It reads , in so far as relevant :

“ CARDINAL . A final judgment finding that the subject has submitted an untrue declaration shall result in the loss of the moral qualifications necessary for exercising public functions , described according to the relevant laws as : unblemished character , immaculate reputation , irreproachable reputation , good civic reputation , or respectful of fundamental values . After DATE the judgment shall be considered to be of no legal effect .

A final judgment finding that the subject has submitted an untrue declaration shall entail dismissal from the functions exercised by that person if the moral qualifications mentioned above are necessary for exercising it .

A final judgment finding that the subject has submitted an untrue declaration shall deprive that person of the right to stand for election as President for a period of DATE . ”

On DATE sub - section CARDINAL was added , which provides :

“ The consequences enumerated in sub - sections CARDINAL above shall take place if

Article CARDINAL § CARDINAL , which concerns delivery of a judgment , provides :

“ If the case has been heard in camera because of the substantial interests of the ORG , instead of reasons notice shall be served to the effect that the reasons have actually been prepared . ”

Article CARDINAL , which deals with access to the case file , in so far relevant provides as follows :

“ CARDINAL . The court files pertaining to a case shall be made available to the parties , their defence counsels , legal representatives and guardians who shall have possibility to obtain copies from them . Other persons may access the case file provided that the president of the court agrees to it .

Upon a request from the accused or his defence counsel , photocopies of the documents of the case shall be provided at their expense .

NORP The president of the court may on justifiable grounds , order certified copies to be made from the files of the case .

NORP If there is a danger of revealing a state secret , inspection of files , making certified copies and photocopies shall be done under conditions imposed by the president of the court or by the court . Certified copies and photocopies shall not be released unless provided otherwise by law .... ”

Section CARDINAL ( CARDINAL ) of the DATE ORG ( Ustawa o ochronie tajemnicy państwowej i służbowej ) , which was in force until DATE , read as follows :

“ A ORG secret is information which , if divulged to an unauthorised person , might put at risk the ORG 's defence , security or other interest , and concerns in particular :

CARDINAL ) NORP organisation of the services responsible for the protection of security and public order , their equipment and working methods , and the data enabling the identification of their officers and persons collaborating with the security services ... ”

Section CARDINAL of the DATE ORG ( Ustawa o ochronie informacji niejawnych ) , in its relevant part , provided as follows :

“ CARDINAL . Persons referred to in section CARDINAL ( CARDINAL ) [ those authorised to sign the document and to assign a confidentiality rating ] , or their legal successors in relation to documents containing information classified as a ORG secret , created before DATE , shall within DATE from the date of enactment of this Act , review these documents with the purpose of adjusting their current security classification to the classifications provided by this LAW . Until then , these documents shall be considered classified under the provisions of paragraph CARDINAL unless otherwise provided by law ... ”

Appendix No . CARDINAL to the LAW provided , in so far as relevant :

“ I. Information that can be classified as « top secret ORG :

NORP information concerning documents that make it impossible to establish data identifying officers , soldiers or employees of ORG bodies , services and institutions authorised to engage in operational activities or on the resources that they use in their operational activities . ”

Section CARDINAL ( CARDINAL ) of the DATE Act concerned organisation of the secret registry . It provided in so far as relevant :

“ Documents marked “ top secret ” and “ secret ” ( ściśle tajne i tajne ) can be released from the secret registry only if the recipient can secure the protection of those documents from unauthorised disclosure . In case of doubts regarding the conditions of protection , the document can be made available only in the secret registry . ”

NORP The following are extracts from ORG of ORG DATE ) on measures to dismantle the heritage of former communist totalitarian systems :

“ CARDINAL . The ORG welcomes the opening of secret service files for public examination in some former NORP totalitarian countries . It advises all countries concerned to enable the persons affected to examine , upon their request , the files kept on them by the former secret services ...

Concerning the treatment of persons who did not commit any crimes that can be prosecuted in accordance with paragraph CARDINAL , but who nevertheless held high positions in the former totalitarian communist regimes and supported them , the ORG notes that some states have found it necessary to introduce administrative measures , such as lustration or decommunisation laws . The aim of these measures is to exclude persons from exercising governmental power if they can not be trusted to exercise it in compliance with democratic principles , as they have shown no commitment to or belief in them in the past and have no interest or motivation to make the transition to them now .

The ORG stresses that , in general , these measures can be compatible with a democratic state under the rule of law if several criteria are met . Firstly , guilt , being individual , rather than collective , must be proven in each individual case - this emphasises the need for an individual , and not collective , application of lustration laws . Secondly , the right of defence , the presumption of innocence until proven guilty , and the right to appeal to a court of law must be guaranteed . Revenge may never be a goal of such measures , nor should political or social misuse of the resulting lustration process be allowed . The aim of lustration is not to punish people presumed guilty - this is the task of prosecutors using criminal law - but to protect the newly emerged democracy .

The ORG thus suggests that it be ensured that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law , and focus on threats to fundamental human rights and the democratisation process . Please see the " Guidelines to ensure that lustration laws and similar administrative measures comply with the requirements of a state based on the rule of law " as a reference text . ”


Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä;Sverre Erik Jebens;Vincent A. De Gaetano;Zdravka Kalaydjieva

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

CARDINAL .

NORP The applicant is an artist who exhibited her work “ FAC ” in an art gallery in GPE . On DATE the exhibition was opened for invited guests and on DATE it was opened to the public . The work included CARDINAL of photographs of teenage girls or otherwise very young women in sexual poses and acts . The pictures had been downloaded from free Internet pages and some of them were extremely violent or degrading .

On DATE the police seized the pictures and the exhibition was closed down . On DATE the police seized the applicant ’s computer .

On DATE the public prosecutor pressed charges against the applicant on CARDINAL counts . His decision to press charges was based on ORG ( apulaisvaltakunnansyyttäjä , biträdande riksåklagaren ) decision to press charges in the matter . He also requested , inter alia , that the seized pictures be confiscated .

On DATE the GPE ORG ( käräjäoikeus , tingsrätten ) convicted the applicant of possessing and distributing sexually obscene pictures depicting children . The court found , by referring , inter alia , to LAW , that everybody had the right to freedom of expression as well as to freedom of the arts unless the exercise of these rights constituted a crime . Finding the applicant guilty was justified for the protection of morals . Moreover , the faces of many of the children or young women in the pictures were clearly recognisable and their reputation and right to private life had to be protected . Even though the applicant ’s intention had not been to commit a criminal act but , on the contrary , to criticise easy access to child pornography , possessing and distributing sexually obscene pictures depicting children were still criminal acts . Their criminalisation was based on the need to protect children against sexual abuse as well as against violation of their privacy . As to the sanctions , the court noted that the applicant had intended to provoke general discussion about child pornography . Taking into account also the other circumstances , inter alia , that the crimes were minor and excusable , the court did not impose any sanctions on the applicant . Instead , the court ordered all the pictures to be confiscated .

NORP By letter dated DATE the applicant appealed to ORG ( hovioikeus , hovrätten ) , requesting that the charges be dismissed . She claimed that her work as an artist had to be equated with the work of a journalist or a scientist , and that she had therefore had a justification for the possession and distribution of the pictures in question .

On DATE the ORG upheld ORG judgment . It found , inter alia , that the protection of the privacy of children took precedence over the applicant ’s right to freedom of expression . The fact that the identity of the children was not known or that the pictures could be illegally obtained elsewhere did not remove the applicant ’s criminal liability nor justify her acts .

NORP By letter dated CARDINAL DATE the applicant appealed to ORG ( korkein oikeus , högsta domstolen ) , reiterating the grounds for appeal already presented before ORG .

On DATE ORG refused the applicant leave to appeal .

The LAW of Finland ( NORP perustuslaki , PERSON grundlag , Act no . CARDINAL/CARDINAL ) provides in its section CARDINAL the following :

“ Everyone has the freedom of expression . Freedom of expression entails the right to express , disseminate and receive information , opinions and other communications without prior prevention by anyone . More detailed provisions on the exercise of the freedom of expression are laid down by an Act . Provisions on restrictions relating to pictorial programmes that are necessary for the protection of children may be laid down by an Act . Documents and recordings in the possession of the authorities are public , unless their publication has for compelling reasons been specifically restricted by an LAW . Everyone has the right of access to public documents and recordings . ”

NORP In CARDINAL of the LAW the freedom of science , the arts and higher education is guaranteed .

According to LAW , section DATE , of LAW ( rikoslaki , strafflagen ; Act no . CARDINAL , as amended by Act no . CARDINAL ) :

“ A person who manufactures , offers for sale or for rent , exports , imports to or through GPE or otherwise distributes sexually obscene pictures or visual recordings depicting

( CARDINAL ) children ,

( CARDINAL ) violence or

( CARDINAL ) bestiality

shall be sentenced for distribution of sexually obscene pictures to a fine or imprisonment for DATE .

An attempt is punishable .

The provisions in LAW , subsection CARDINAL apply also to the pictures and visual recordings referred to in this section .

A person DATE and a person whose age can not be determined but who can be justifiably assumed to be DATE is regarded as a child . ”

Chapter DATE , section CARDINAL , of LAW provides that a person who unlawfully has in his or her possession a photograph , video tape , film or other realistic visual recording depicting a child referred to in DATE , subsection CARDINAL , having sexual intercourse or participating in a comparable sexual act or depicting a child in another obviously obscene manner shall be sentenced for possession of sexually obscene pictures depicting children to a fine or imprisonment for at most one year .


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

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

In DATE the applicant entered into a civil contract , agreeing to solicit clients for ORG , a private company . Following expiration of the contract in DATE , the ORG was to pay the applicant a certain percentage of the revenue brought by the clients referred by him . Additionally , under the contract the ORG was obliged to cover the applicant ’s travel and accommodation expenses , and , in the event the ORG would protract the payment , to pay default interest . By way of determining the method of calculating the default interest , the contract referred to a statute , which , in fact , did not exist . At the material time there existed , instead a ORG of Ministers regulation concerning calculation of the default interest , which was replaced by a statute in DATE .

In DATE the applicant rented an apartment in GPE from Mr PERSON ( a private person ) . The lease agreement was not registered with the authorities and the parties settled the payments in cash .

In DATE the applicant solicited for the ORG a contract with Z.E.M. , a commercial enterprise , which transferred the contractual payment directly to the ORG ’s NORP partner in NORP rubbles . The NORP partner transferred a certain payment back to the Company in karbovantsi ( a transitional currency of GPE in circulation at the material time ) .

DATE a new NORP currency ( hryvnya ) was introduced .

On DATE , following expiration of the applicant ’s contract with the Company , the parties co - signed an agreement on completion of the contract ( акт прийняття-передачі ) , in which the Company acknowledged that the applicant had referred to it a certain list of clients , including Z.E.M. , in pursuance of the contract of DATE , and fixed the amount of his remuneration in GPE , to be converted into the hryvnya currency at the time of settlement .

By DATE the Company had paid the applicant only a fraction of the payment due .

On DATE the applicant instituted civil proceedings against the Company , seeking various payments . In particular , he claimed the balance of remuneration under the agreement of CARDINAL DATE and default interest allegedly accrued on this payment pursuant the contract . In the course of the ensuing proceedings , the applicant recalculated the amount of the compensation claimed on some CARDINAL occasions , taking account for the lapse of time , modifications of applicable financial and banking regulations and exchange rates . He further maintained that he had a labour relationship with the Company and sought salary arrears and various compensations based on labour law .

The Company lodged a counter - claim , maintaining that Z.E.M. had defaulted on its payment , hence causing significant damages , which should be covered by the applicant , as he had solicited a contract with Z.E.M.

On DATE the ORG of Kyiv ( “ the ORG ” ; ORG районний суд PERSON ) disjoined the applicant ’s claims based on labour law from his civil ones . There is no information on the outcome of the labour limb of the proceedings .

As to the civil limb , the case was re - examined by the courts several times .

On DATE ORG allowed the applicant ’s claim for payment of commission balance and default interest . The court found that , having signed the agreement of DATE , the Company had undertaken a lawful obligation to settle the payment . The court further dismissed the counterclaim as unsubstantiated .

The Company appealed in cassation , referring , inter alia , to numerous inconsistencies between the agreement of DATE , the contract of DATE , applicable legal norms and the ORG financial and other documents and arguing that the agreement as such was not final and could not serve as a source of a civil law obligation . It further disputed the method of calculation employed by the applicant . On DATE ORG ( “ the ORG ” ; GPE міський суд ) quashed this judgment and remitted the case for a fresh consideration , instructing ORG to explore further whether , in light of all the evidence adduced , the Company could be obliged to pay the remuneration as fixed in the agreement of CARDINAL DATE .

In DATE the applicant amended his statement of claim , additionally seeking compensation of his rental expenses under the lease agreement with Mr K.

On DATE the court ordered an auditor ’s assessment of the financial documents submitted by the parties and Z.E.M. , to clarify various inconsistencies between them . By DATE the assessment was completed .

On DATE ORG awarded the applicant commission balance in respect of all clients , listed in the agreement of DATE , except for Z.E.M. The court found that the applicant ’s contract with the ORG made him ineligible to a commission in respect of a non - paying client . The court further found that the applicant could not claim default interest , since the relevant contractual language lacked requisite clarity and the ORG could not claim damages on account of Z.E.M. ’s default , since the applicant had not been responsible for it . Lastly , the court dismissed the applicant ’s claim for rental expenses , noting that the lease agreement had not been registered with the authorities as required by law and no documentary evidence of the rental expenses having in fact been incurred was available . The applicant appealed in cassation .

On DATE ORG quashed the judgment to the extent that the applicant ’s claims had been dismissed and remitted the case for a fresh consideration in this regard . The court instructed ORG , in particular , to determine whether the contractual language making the applicant ’s remuneration conditional on the receipt by the Company of payment from the clients could be deemed fair under applicable law .

On DATE ORG dismissed the remainder of the applicant ’s claims . In particular , the court noted that the applicant had wilfully accepted a contractual term conditioning his remuneration on the receipt of payment from clients and that he had not brought an express claim seeking to annul this provision . In other regards , the court essentially relied on the reasoning adduced in its judgment of DATE .

The applicant appealed in cassation . In his cassation appeal he emphasized , inter alia , that Z.E.M. had transferred the payment to the ORG ’s NORP partner and that the ORG itself had never attempted to institute judicial proceedings against Z.E.M. to collect the alleged debt . He maintained that the signing of the agreement of DATE constituted sufficient basis for payment of the commission .

On DATE ORG allowed the applicant ’s cassation appeal and remitted the case for a fresh consideration , in particular , having found unpersuasive ORG analysis as to the fairness and lawfulness of the conditions concerning the remuneration , in particular , in view that the Company had never claimed Z.E.M. ’s debt by way of judicial proceedings .

On DATE ORG found that the contractual provision making the applicant responsible for the GPE non - payment significantly undermined his lawful interests and , consequently , awarded the applicant compensation on account of having solicited a contract with Z.E.M. The court further found it unfair to make the applicant responsible for his landlord ’s failure to register the lease and ruled that the applicant ’s claim for rental expenses was sufficiently substantiated by witness testimonies and other evidence . The ORG appealed pursuant a newly introduced appeal procedure .

On DATE ORG quashed this judgment , having remitted the case for a fresh consideration . In particular , the court instructed ORG to give further regard to certain inconsistencies between various documents and witness testimonies and to determine to what extent the parties’ dispute concerning the default interest could be covered by the new statute of DATE .

The applicant lodged a cassation appeal against this decision with ORG .

On DATE ORG rejected the applicant ’s request for leave to appeal in cassation .

On DATE ORG awarded various payments to the applicant . In particular , the court attached weight to the fact that Z.E.M. had transferred the payment to the ORG ’s NORP partner . It further found that , although the parties had mistakenly referred in the contract to a non - existing statute in determining the method of calculation of default interest , the subsequent relevant legislation could be applied in the present case . Lastly , it found that the applicant could not be held responsible for his landlord ’s failure to register the lease agreement with the authorities , especially since the relevant legal rules had also changed after the lease had been signed . The Company appealed .

On DATE ORG reversed the judgment . Dismissing the applicant ’s claims , it gave weight to the fact that the Company itself had never received Z.E.M. ’s payment . If further ruled that the calculation of the default interest had to be governed by the regulations in place at the time , when the contract had been concluded , which gave the applicant no entitlement to the payment claimed , and that the failure of the parties to the lease agreement to register the lease , coupled with lack of documentary evidence of settling the payments , made it impossible to award the claimed reimbursement . The applicant appealed in cassation before ORG .

On DATE the panel of CARDINAL judges of ORG heard the merits of the case and , having disagreed with both previous judgments ( of CARDINAL DATE and DATE ) , remitted the case for a fresh consideration . In particular , ORG found that ORG had unfairly disregarded the fact that Z.E.M. had made the payment to the ORG ’s NORP partner and that ORG had incorrectly calculated the final award due to the applicant , taking into account various currency exchange issues .

On DATE ORG allowed the applicant ’s claims in part . It found him entitled to the commission on account of having solicited a contract with Z.E.M. and calculated the amount due in hryvnya based on the dollar award previewed by the agreement of DATE . It further awarded the applicant rental expenses , but dismissed his claims for default interest as lacking proper basis on either statutory or contractual provisions . Both parties appealed .

On DATE ORG amended the judgment , having dismissed the applicant ’s claims for reimbursement of rental expenses . The court further diminished the amount of the commission due to the applicant , having taken into account the amount of Z.E.M. ’s payment in NORP rubbles to the ORG partner , the amount of payment in karbovantsi received by ORG in return , and a respective hryvnya rate . The applicant appealed in cassation .

Subsequently , the applicant unsuccessfully sought to re - open the proceedings and have his claims reconsidered .


Violation of Art. 6-1 and 6-3-d;Pecuniary damage - claim dismissed;Non-pecuniary damage - financial award;Costs and expenses partial award

In a statement taken and recorded by police on DATE , CARDINAL PERSON said that he had been kidnapped and beaten up by CARDINAL unknown men . He suspected that they had acted on the orders of another man , PERSON , and that his kidnap had constituted an act of revenge for a burglary that he , PERSON , was rumoured to have carried out . On DATE preliminary judicial investigations were initiated into allegations that the applicant and an accomplice , Mr D. , had intentionally deprived Mr A. of his liberty on DATE .

On DATE QUANTITY police officers drew up an official record ( proces - verbaal ) containing the findings of the investigation into the kidnapping and assault of PERSON It stated , inter alia , that a number of witnesses had seen PERSON and CARDINAL other persons in bars in the town of GPE in the night of CARDINAL to CARDINAL DATE and that these witnesses had overheard the CARDINAL men making inquiries into the whereabouts of the victim , Mr PERSON was said to know PERSON well and to be very afraid of him . Police investigations conducted in various bars in GPE had shown that PERSON had such a reputation that this fear was shared by many people . According to the reporting officers , the witnesses who had seen the suspects prior to and during the commission of the offences in question were so scared that they were afraid to make written statements .

NORP The official police record then describes how CARDINAL witnesses were confronted with the applicant and his co - accused Mr NORP through a CARDINAL - way mirror . The police officers observed that the witnesses became very fearful upon seeing the suspects and that they wanted to leave the room as soon as possible . None of the CARDINAL witnesses identified the applicant , although CARDINAL of them said that the applicant looked similar to CARDINAL of the perpetrators . The witnesses were interviewed separately after the identification procedure ; CARDINAL of them indicated to the police officers that s / he did not wish to remain on his / her own for fear of coming face to face with Mr NORP whom s / he had recognised as one of the perpetrators . The police officers further reported that a fifth witness recognised from CARDINAL photographs shown to him / her the applicant , Mr NORP and PERSON as the men who had made enquiries into the whereabouts of the victim .

One of the police officers also noted that the witnesses had repeatedly telephoned him after they had made their statements , saying that they wished to withdraw these statements because they feared reprisals by the applicant and his co - accused . The police officer considered that this fear was not unfounded given that , since the event , unknown persons had put pressure on the victim .

Criminal proceedings were brought against the applicant in ORG ( Arrondissementsrechtbank ) of GPE . The charges against him included having been an accomplice to the offence of intentionally and unlawfully depriving PERSON of his liberty and keeping him deprived thereof .

On DATE ORG acquitted the applicant of that charge , convicted him on another charge and sentenced him to a partly suspended term of CARDINAL GPE imprisonment , less the time spent in pre - trial detention . By a judgment of DATE , ORG also acquitted the applicant ’s co - accused , Mr D.

Both the applicant and ORG ( Openbaar Ministerie ) lodged an appeal against ORG decision with ORG ( Gerechtshof ) of GPE . No appeal was lodged against the judgment concerning Mr NORP

On DATE the ORG quashed ORG judgment , convicted the applicant , inter alia , of having deprived Mr A. of his liberty and sentenced him to DATE imprisonment , less the time spent in pre - trial detention . ORG used in evidence , inter alia , the following section from the official police record of DATE ( see § § CARDINAL above ) :

“ It has emerged from the investigation that several witnesses saw PERSON , who was known to them , with CARDINAL other persons in bars in GPE in the night of CARDINAL to CARDINAL September . These witnesses also overheard these QUANTITY persons making enquiries into the whereabouts of the victim , PERSON

CARDINAL witness was shown CARDINAL photographs , including pictures of the suspects Mr NORP , < the applicant > and PERSON The witness stated that s / he was PERCENT sure of recognising from the photographs the CARDINAL named persons as being the persons who had made enquiries into the whereabouts of the victim on CARDINAL and DATE in GPE . The witness had subsequently seen Mr NORP and < the applicant > leaving with the victim ’s brother , while PERSON had stayed behind in the bar in GPE , where shortly afterwards this Mr PERSON had been approached by < the applicant > , who had returned in the meantime , and who had taken PERSON outside . ”

The applicant lodged an appeal on points of law against that judgment with ORG ( PERSON ) .

On DATE ORG quashed the judgment of ORG . It held that the way in which the facts had been established by ORG did not comply with legal requirements . It recalled that the statement of an anonymous witness could only be used in evidence if it had been taken down by a judge who knew the identity of the witness , who had expressed his opinion as regards the reasons for the witness ’s desire to remain anonymous and that witness ’s reliability , and who had provided the defence with ample opportunity to question the witness . ORG added that it could not be said that the finding of guilt was based to a significant extent on other evidence from identified sources . ORG decided that the applicant ’s original appeal against the judgment of ORG of GPE of DATE should be considered again and , to that end , referred the case to ORG .

At the subsequent public hearing on DATE ORG instructed the investigating judge ( rechter - commissaris ) of ORG of GPE to hear the witness who had previously recognised the applicant from photographs , as described in the official police record of DATE . If need be , that witness was to be heard with the application of appropriate measures to safeguard the witness ’s anonymity , should the witness wish to remain anonymous .

On DATE the witness was heard under oath by the investigating judge , who was aware of the identity of the witness . The opinion of the investigating judge that the identity of the witness should remain concealed was phrased as follows in the official record of the interview :

“ In a short conversation prior to the actual interview , the investigating judge discussed with the witness the latter ’s wish to remain anonymous . The witness stated that s / he was fearful because CARDINAL of [ the applicant ’s ] fellow suspects can be very aggressive , which , according to the witness , is common knowledge . The witness also said that s / he feared reprisals given that , as the witness has heard it said , the case in which the witness is about to make a statement in itself also concerns an act of revenge .

In view of the witness ’s statements above , as well as the contents of the record drawn up by the police officers on DATE and the statements of the witness which can not be reproduced here , the investigating judge is of the opinion that the necessity to hear the witness anonymously has been sufficiently substantiated . ”

Counsel for the applicant attended the interview in a different room . In addition to his own questions , the investigating judge also put a number of questions to the witness at the request of counsel , who had submitted these questions to the investigating judge in writing beforehand . The investigating judge twice gave counsel the opportunity to read through the statement of the witness and to put further questions , again to be asked by the investigating judge , to the witness , and counsel did in fact avail himself of this opportunity .

NORP In reply to one of the questions put by counsel the witness said that when interviewed by police , on DATE , s / he had been handed a bundle of CARDINAL photographs . The witness had taken out CARDINAL photographs of persons whom s / he had recognised . Counsel also asked the witness why the latter was so afraid and why the witness wished to remain anonymous . In reply , the witness stated that s / he had explained the reasons to the investigating judge at the beginning of the interview . The witness added that some of these reasons had not , however , been noted down by the investigating judge as the latter had considered that by doing so the witness ’s anonymity could not be sufficiently guaranteed .

In the official record of the interview , the investigating judge noted that the statement of the witness appeared to be consistent and that it corresponded to the statement given previously to the police . In the opinion of the investigating judge , it could be concluded that the witness was a reliable witness .

At the subsequent hearing before ORG on DATE , counsel submitted that although his questions had been put to the anonymous witness , taking evidence from a witness who could neither be seen nor heard by the defence and who did not appear before the trial court remained problematic . Counsel also queried whether the anonymous witness ’s fear of reprisals was real or contrived . He further argued that the scent - association test carried out by a sniffer dog could not be relied upon since a similar test carried out by a different sniffer dog had not resulted in the applicant ’s scent being associated with the scent on a revolver .

On DATE ORG quashed ORG judgment of DATE , convicted the applicant , inter alia , of having deprived PERSON of his liberty , and sentenced him to DATE imprisonment , less the time spent in pre - trial detention . It based its finding of guilt on the following evidence :

( a ) an official record of CARDINAL DATE , drawn up by a police officer , containing the statement of the victim , PERSON , to the effect that he had been forcibly taken from his house and beaten up , inter alia , with the butt of a chrome - coloured revolver , by CARDINAL men unknown to him ;

( b ) an official record of CARDINAL DATE containing a statement from the police officers who had found PERSON to the effect that , when they were driving PERSON home , the latter had recognised the car in which he had been held and assaulted ;

( c ) an official record of DATE containing a statement from the same police officers to the effect that they had found traces of blood on the car indicated by PERSON and that they had arrested PERSON near the car ;

( d ) a report of CARDINAL DATE ( contained in an official police record of DATE ) drawn up by a member of the scientific police investigation department stating that the traces of blood found on the inside and outside of the car , as well as a chrome - coloured revolver and a jacket found inside the car , were sent to the forensic laboratory ( ORG ) together with a blood sample taken from the victim ;

( e ) an official record drawn up by the forensic laboratory dated DATE indicating that the traces of blood could have come from PERSON ;

( f ) an official record of DATE drawn up by a police officer stating that the revolver and a car telephone found in the car had been seized ;

( g ) an official record of DATE drawn up by a police officer who had been in charge of a scent - association test which had been carried out with a sniffer dog , to the effect that this dog had CARDINAL times associated the scent on the butt of the revolver which had been found in the car with an object which had been held by the applicant ;

( h ) the official record of DATE drawn up by the investigating judge containing the statement of the anonymous witness to the investigating judge , to the effect that , inter alia , the witness confirmed his / her previous statement to the police officers in which s / he said that s / he had seen the applicant and his co - defendants , whom the witness identified from photographs shown to him / her , on TIME DATE in a bar , that they had made enquiries into the whereabouts of the victim , and that the witness had heard from several people that the applicant and his co - defendants were involved in the assault and battery of the victim ; and

( i ) the statement which the applicant had made at the hearing before ORG to the effect that he knew the defendants PERSON and PERSON NORP well , that the car in question had been used by PERSON in the period around DATE , that Mr NORP and he would regularly drive the car and that the telephone which had been present in the car had been registered in his name .

Unlike ORG of GPE , ORG did thus not make use of the statement made by the anonymous witness to the police on DATE , but only to this witness ’s statement before the investigating judge . The other items of evidence were essentially the same as those used by ORG of GPE in its judgment of DATE .

ORG judgment contained no assessment as to the reliability of the statement of the anonymous witness or as to the validity of the witness ’s desire to remain anonymous .

The applicant lodged an appeal on points of law with ORG . He complained , inter alia , that insufficient facts and/or circumstances had been adduced justifying the need for the witness to remain anonymous and that the statement of the anonymous witness could not be relied upon as it had been taken DATE after the alleged offence . The applicant further submitted that the series of photographs from which the anonymous witness was said to have selected the photograph of the applicant had not been put before the investigating judge . Neither the investigating judge nor the defence had therefore been in a position to assess the nature of the photographs , the way in which they were presented or the certainty of the recognition .

ORG dismissed the appeal on DATE . After having noted that the investigating judge had found that the anonymous witness was afraid because CARDINAL of the applicant ’s co - accused could be very violent and because the witness feared reprisals as the offence of which the applicant stood accused itself concerned an act of revenge , ORG considered that the conclusion of the investigating judge that there were circumstances justifying the anonymity of the witness did not constitute an incorrect interpretation of the law and was not incomprehensible . In respect of the applicant ’s complaints relating to the photographs which had originally been shown to the anonymous witness , ORG noted that the official record containing the statement taken on DATE had not been used in evidence against the applicant by ORG .

Relevant domestic law and practice at the time of the criminal proceedings complained of were as set out in the ORG ’s judgments in the cases of PERSON v. the GPE of DATE ( Reports of Judgments and Decisions DATE , p. CARDINAL ) and PERSON and Others v. the GPE of DATE ( Reports CARDINAL , p. CARDINAL ) . Reference is therefore made to those judgments , especially pp . CARDINAL , § § CARDINAL - CARDINAL , and pp . CARDINAL - CARDINAL , § § CARDINAL - CARDINAL respectively .

In its judgment of DATE , GPE DATE , no . CARDINAL , ORG considered that it had to be assumed in the light of ORG PERSON judgment ( DATE , Series A no . CARDINAL ) that the use of statements by anonymous witnesses was subject to stricter requirements than those established in its case - law until then . It established these stricter requirements in the following rule : such a statement must have been taken down by a judge who ( a ) is aware of the identity of the witness , ( b ) has expressed , in the official record of the hearing of such a witness , his reasoned opinion as to the reliability of the witness and as to the reasons for the wish of the witness to remain anonymous and ( c ) has provided the defence with some opportunity to put questions or have questions put to the witness . On the other hand , according to the same judgment , a written document containing the statement of an anonymous witness may be used in evidence if ( a ) the defence has not at any stage of the proceedings asked to be allowed to question the witness concerned , ( b ) the conviction is based to a significant extent on other evidence not derived from anonymous sources and ( c ) the trial court makes it clear that it has made use of the statement of the anonymous witness with caution and circumspection .

The Act of DATE , Staatsblad ( Official Gazette ) DATE , no . CARDINAL , has added to LAW ORG ) a number of detailed provisions relating to the “ protection of witnesses ” . It entered into force on DATE . The additions include the following . Article ORG now provides that the identity of a witness may remain secret if there is reason to believe that the disclosure of his identity may threaten his life , health , safety , family life or socio - economic existence and if the witness has made it clear that he does not wish to make any statement because of this . The decision is made by the investigating judge , who must first hear the prosecution , the defence and the witness himself . An appeal against the decision of the investigating judge lies to the trial court ( Article CARDINALb ) . The investigating judge may order that a threatened witness be heard in the absence of the accused , or of counsel , or of both , so as not to disclose the identity of the threatened witness ; in that event , the prosecuting authorities may not attend the questioning of the witness either . The investigating judge must then allow the defence to put questions of its own to the witness , either through the use of telecommunication or in writing ( Article CARDINALd ) . Article CARDINAL now lays down that the prosecution may refuse to summon a threatened witness . If the trial court has ordered that a witness be heard and that witness turns out to be under threat , he must be heard in camera by the investigating judge ( Article CARDINAL § CARDINAL ) . The statement of an anonymous witness taken in accordance with the above - mentioned provisions may only be used in evidence against a person accused of crimes in respect of which he may be held in detention on remand ( LAW ( b ) ) . A new paragraph has been added to LAW effect that a written document containing a statement of a person whose identity is not apparent may only be used in evidence if the conviction is based to a significant degree on other evidence and if the defence has not at any time during the trial sought to question that person or to have him questioned .


The applicant was born in DATE and lives in Gaziantep .

In DATE the applicant retired from his work at the LOC . On DATE the town council calculated the applicant 's pension benefits at CARDINAL,CARDINAL,CARDINAL,CARDINAL NORP liras and ordered its payment .

On DATE the applicant applied to the execution office , requesting the payment of his pension benefits , plus interest at the rate of PERCENT . The Municipality objected to the applicant 's interest request .

On DATE the applicant filed an action before ORG to annul the LOC 's objection .

On DATE the court partially upheld the applicant 's request . It ordered the Municipality to pay the applicant 's wages and indemnities , plus interest at the statutory rate running from DATE . It upheld the applicant 's request in respect of severance benefit which had to be paid together with interest at the highest DATE bank deposit rate .

In the absence of an appeal the judgment became final on DATE .

NORP The execution authority made several unsuccessful attempts to attach the LOC 's property in order to secure the payment of the debt .

On DATE the applicant sent a letter to the President of the Republic , complaining about the GPE 's failure to pay his pension benefits .

On DATE ORG forwarded this letter to ORG for an inquiry into the matter .

NORP In reply , the Mayor of PERSON explained in his letter of DATE that the LOC 's outstanding debts to CARDINAL retired staff exceeded its budget . He maintained that the Municipality had therefore offered to make the payments in instalments . However , the applicant had refused this offer .

On DATE the applicant requested ORG to intervene on his behalf in order to facilitate the execution of ORG decision .

According to the information in the case file , as submitted by the parties , the relevant judgment debt is still outstanding .

Article CARDINAL § CARDINAL of LAW provides :

“ The bodies of executive and legislative power and the authorities must comply with court decisions ; they can not in any circumstances modify court decisions or defer the enforcement thereof . ”

LAW CARDINAL of LAW Procedure reads :

“ CARDINAL . Decisions and judgments in administrative - law actions concerning a specific amount shall be enforced ... in accordance with the provisions of the ordinary law . ”

Under LAW ) of LAW ( Law no . DATE ) , ORG property can not be seized . Likewise , LAW ) of LAW ( Law no . CARDINAL of DATE ) provides that municipal property that is assigned to a public service can not be seized .


Preliminary objection dismissed (Art. 35) Admissibility criteria;(Art. 35-1) Exhaustion of domestic remedies;Violation of Article 38 - Examination of the case-{general} (Article 38 - Examination of the case);Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Violation of Article 2 - Right to life (Article 2-1 - Life) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);Violation of Article 13+2 - Right to an effective remedy (Article 13 - Effective remedy) (Article 2 - Right to life;Article 2-1 - Effective investigation);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)

The applicant was born in DATE and was a resident of GPE , GPE . She currently resides in PERSON .

The submissions of the parties on the facts concerning the circumstances of the applicant ’s relatives’ deaths and the ensuing investigation are set out in Part A below . A description of the relevant materials submitted to the ORG is contained in Part B.

The applicant and her family lived in LOC of PERSON in their own house at LOC .

NORP In DATE hostilities resumed in GPE between the NORP forces and the NORP fighters . PERSON and its suburbs came under heavy bombardment . The LOC , situated in the northern and central parts of the town , was bombarded from the air and by artillery . The applicant submitted that most residents of the district had left for safer areas . Following heavy fighting , as of DATE the NORP forces started to regain control over the city starting from the north , and by DATE the central parts of the city were finally taken .

In DATE the applicant , her father PERSON ( born in DATE ) , her mother PERSON ( born in DATE ) , her uncle PERSON ( born in DATE ) and her sister PERSON remained in their house in PERSON . In DATE they were joined there by CARDINAL neighbours , all women , because their house had a large cellar where they could take shelter during shelling .

The applicant , her sister and a neighbour submitted written accounts of the events of DATE and DATE . According to them , the district had first come under heavy bombardment on DATE , when CARDINAL of the women who had been staying with them in the cellar had been killed . On DATE the applicant ’s mother had been slightly wounded by shrapnel . After that the shelling intensified , and the applicant and her family were unable to leave the town .

After DATE the shelling became very intense , and the persons who had been staying in their cellar decided to move somewhere safer . On DATE most of them moved to a nearby QUANTITY building with a larger cellar in FAC . The applicant ’s father , uncle and CARDINAL neighbour remained in their house to look after the property and cattle . In TIME of the same day the applicant heard the noise of tank engines in the streets . She said that they had been relieved because they had expected an end to the shelling .

In TIME DATE the applicant ’s uncle met a group of NORP servicemen on the way from his house to LOC and told them that a group of CARDINAL QUANTITY civilians had taken refuge in the cellar of that house . The servicemen then came into the cellar and checked the identity documents of the men , most of whom were DATE . The soldiers then took up battle positions in the neighbourhood .

In TIME of DATE the applicant noted that their house in LOC was partially destroyed . When she and her mother arrived there , they found her father and a neighbour , who had remained in the cellar throughout the day upon orders of the soldiers who had been stationed around the house .

On DATE and DATE servicemen came to the cellar of the apartment block at FAC where the applicant was staying and ordered the men , under threat , to help them collect CARDINAL bodies of servicemen from the street .

On DATE a detachment of the ORG ( special police forces ) arrived in the district and took up position in a former hostel building near FAC . On DATE servicemen from that unit took away CARDINAL men from the cellar . The applicant later learned that they had been shot .

Each day from DATE the applicant went to check up on her relatives in the house at FAC . On several occasions there they met an officer who said his name was PERSON and who was the commander of a tank crew stationed at ORG . The officer was often drunk and aggressive , and had once threatened to shoot them all , but the applicant ’s father had managed to calm him down . ORG said that he was from GPE and that he had fought in PERSON before . The applicant submitted that she could have identified him or composed a sketch of him . She submitted that the situation had been very tense , because the soldiers had regularly visited both houses for identity checks , ordered the residents to help them collect dead bodies under threat , selected men for “ exchange ” with the fighters , and so on . The applicant also saw the houses in the neighbourhood being systematically set on fire .

In TIME DATE the applicant , her family and some neighbours finally decided to leave PERSON on DATE , until the situation grew calmer . The applicant and her sister went to get water from the hostel where the ORG troops were stationed and warned an officer there that old people were staying in the house at FAC , and that they should not shell it or shoot at them when they were carrying water . She then returned to the cellar of the house at FAC , while her mother , father , uncle and a neighbour , PERSON , stayed in their family home at FAC .

In TIME of CARDINAL DATE the applicant , her sister and CARDINAL other women went to the house at FAC to pick up her uncle and to say good - bye to her parents . They found the gates closed and smoke coming out of the house . They received no reply to their calls , and forced the doors open . The cellar was burning and they were unable to access it . In the kitchen they found the applicant ’s father ’s body and the body of PERSON , both with gunshot wounds . The documents , money and valuables were intact . The applicant and her sister took the CARDINAL bodies out of the burning house , but did not have time to extinguish the flames or to bury them because they were afraid that the killers would come back . They ran to the house in FAC and related what had happened . A neighbour told them to leave immediately and promised to take care of the burials . The applicant and her sister took only their personal documents with them and walked QUANTITY to the roadblock in PERSON , where they took a bus to ORG .

On DATE , DATE , the applicant returned to ORG with CARDINAL cars , in order to collect and bury the bodies . At CARDINAL of the military roadblocks on the way they picked up CARDINAL servicemen as an escort for security . They also met by chance their neighbour , who explained where he had buried the applicant ’s father ’s body . When they arrived at LOC , the house was completely burned down . They could not go down to the cellar , because it was still smouldering . They dug up the applicant ’s father ’s body and took it away for burial in the village of Chermen in GPE .

DATE relatives of PERSON collected her body and buried it in a cemetery in PERSON .

Later , on DATE , the charred remains of the applicant ’s mother and uncle were extracted from the cellar by officials of ORG ( Emercom ) . Personal belongings and bullets were found near the bodies . The applicant ’s family buried them at a village cemetery in ORG .

In addition to her own statements and CARDINAL witness statements , the applicant submitted drawings of the neighbourhood and of their house at LOC , with indications of the places referred to and the locations of the bodies of her relatives . She also submitted photographs of the ruins of their house and of the cellar in FAC .

NORP The applicant did not apply to any authorities or contact a medical doctor after the incident . However , her story was related in a number of press articles and NGO reports , copies of which the applicant submitted to the Court .

On DATE the ORG newspaper in the article “ Welcome to Hell ! Interviews with Persons Who Escaped from Besieged Grozny ” reported the story of the killing of the applicant ’s relatives , based on an interview with her .

In DATE ORG issued a report entitled “ Civilian Killings in LOC of NORP ” in which it accused the NORP forces of deliberately murdering CARDINAL civilians DATE and DATE . ORG interviewed survivors , eyewitnesses and relatives of the dead . The report contains information about the deaths of ORG , PERSON , PERSON and PERSON , based on interviews with the applicant and another witness in PERSON .

Several human rights NGOs assisted the applicant and addressed the law - enforcement authorities in relation to the events in the LOC district of ORG in DATE , where CARDINAL local residents had allegedly been executed by unidentified military units .

On DATE ORG wrote to the NORP authorities , including the President , ORG and the Minister of Defence with a request that they investigate credible allegations of the mass murder of civilians in the LOC .

On DATE the applicant was questioned by a prosecutor in LOC . The applicant submitted that the investigator had asked her questions about the killings , to which the applicant herself was not a witness . When she had stated that only the NORP servicemen stationed around the house could have committed the murders , and had spoken of their previous visits and threats , the investigator had told her that there were no direct witnesses to the murders , and that she could be held responsible for false accusations . The applicant had suggested that officer PERSON could be responsible for the killings , and the investigator had told her that he had died . After that the applicant had been convinced that the investigation would not be effective and did not turn to any other official body .

She was called for questioning once again , as a witness , on DATE , but it appears that she failed to attend .

It appears that no death certificates were ever issued in respect of the applicant ’s relatives . The applicant ’s cousin , the son of PERSON , submitted that he had had difficulties in obtaining a death certificate for his father and for other relatives .

The applicant ’s representatives , ORG , asked prosecutors at various levels on several occasions to submit information about the investigation of the killings of civilians in the LOC . In response , they received conflicting information with references to different criminal case numbers . On several occasions they were informed that their requests had been forwarded to different ORG services for processing .

On DATE and DATE ORG Office informed ORG that on DATE criminal case no . DATE had been opened into the murders committed in PERSON on DATE and that it had been transferred for further investigation to ORG of ORG .

However , on DATE ORG of ORG forwarded ORG request for information to ORG and asked him to issue an update of the investigation of criminal case no . DATE .

On DATE the applicant wrote to LOC asking for news about the investigation into her relatives’ murder . She did not receive a reply .

On DATE LOC granted victim status to the applicant ’s brother PERSON in criminal case no . DATE concerning the murder of his parents and uncle in PERSON on DATE .

In DATE the application was communicated to ORG , who were requested at that time to submit a copy of investigation file no . DATE . In their memorials submitted in reply the Government gave some details of the investigation , without specifying the dates of the investigative measures . They did not submit any copies of the documents to which they referred . The ORG stated that the investigation was pending and that the disclosure of the documents would be in violation of LAW because the file contained information of a military nature and personal data concerning the witnesses . At the same time , the Government suggested that a ORG delegation could have access to the file at the place where the preliminary investigation was being conducted with the exception of “ the documents [ disclosing military information and personal data of the witnesses ] , and without the right to make copies of the case file and transmit it to others ” .

In DATE the ORG declared the application admissible and reiterated its request for the documents . In response , the ORG submitted an update of the investigation and several documents from the criminal investigation file ( see Part B below ) . They did not submit any of the witness statements or other important procedural documents , such as descriptions of the sites or results of the ballistic expert reports .

Referring to the information from ORG , the Government submitted in their memorials that the investigation had established that DATE detachments of the federal forces had conducted a counterterrorist operation in LOC of PERSON . Within the same period several inhabitants of the district , including the applicant ’s relatives , had been killed by unknown persons .

The Government submitted that a number of investigative measures had been carried out by the prosecutors . On DATE they inspected the Tangiyevs’ house . On CARDINAL May CARDINAL the applicant ’s brother PERSON was questioned and granted victim status in the proceedings . On DATE the applicant , her sister and CARDINAL relatives were also questioned and granted victim status in the proceedings . On DATE the investigating officers recovered from the applicant CARDINAL cartridges she had collected near the body of her father . A ballistic examination was carried out and concluded that they were the type of ammunition used for a QUANTITY calibre automatic rifle and could be used to identify the firearm used .

The Government submitted that the applicant and her relatives had refused to allow the bodies of their relatives to be exhumed for forensic tests to be carried out . They had also refused to identify their places of burial , which made it impossible to establish the cause of their deaths .

The Government further informed the ORG that DATE the investigating officers had questioned CARDINAL neighbours and acquaintances of the ORG , who had stated that they had no information about the perpetrators of the killings . CARDINAL witness stated that LOC had been the scene of heavy fighting between the federal forces and the illegal armed groups . Another witness stated that the applicant ’s father had had a dispute with the members of the illegal armed groups . The investigators failed to identify the relatives and the place of burial of PERSON , the woman who had been killed in the Tangiyevs’ house .

The investigators looked into the possibility that the killings could have been committed by the servicemen , but found no information to support it . According to the information from ORG , DATE the detachments of the federal forces in LOC had been subjected to numerous attacks by illegal armed groups , who could be implicated in the killings . On DATE a military prosecutor questioned the commander of CARDINAL of the military units which had taken part in the counterterrorist operation in PERSON . He stated that he had not been aware of the applicant ’s relatives’ killings . The prosecutors continued to carry out investigative measures with the participation of the servicemen .

According to the Government , the victims had been systematically informed of the adjournments and reopening of the case . The investigation was pending with ORG and was under the special supervision of ORG .

In DATE the applicant submitted additional documentary evidence in support of her allegations . In addition to her own detailed statements of facts , the applicant submitted CARDINAL witness statements .

The applicant ’s sister PERSON stated that on DATE they had decided to leave PERSON on DATE because of constant harassment by soldiers . In TIME of CARDINAL DATE the witness , along with the applicant and QUANTITY women named PERSON and PERSON , went to collect her parents and uncle from their house at FAC . She then described how they had discovered the bodies of her father and of PERSON , both with gunshot wounds to the head . The house was turned upside down and there were a lot of bullet holes . Some of the furniture was smouldering , the cellar door was closed and smoke was coming out of it . The women took CARDINAL bodies out of the house but could not extinguish the flames in the cellar . They then left the bodies with the neighbour out of fear that the soldiers might return and kill them as witnesses , and left PERSON on DATE . They buried their father ’s body on DATE . On DATE the remains of their mother and uncle were removed with the assistance of ORG and buried in Ingushetia .

The applicant ’s cousin , PERSON , testified about the death of his father , the applicant ’s uncle . The witness himself was in PERSON at the relevant time and learnt of his father ’s death from the applicant and other relatives .

The applicant ’s neighbour in PERSON , “ PERSON , testified that she had been with the applicant and her sister on DATE when they had found their GPE and uncle ’s bodies in the house at FAC . The witness submitted that the NORP fighters ( “ boyeviki ” ) had left the district by DATE , and that before that they had caused no harm to the residents , and had sometimes even helped them . From DATE the NORP servicemen started to enter the LOC . Some of the soldiers helped them and gave them food . Others asked them , sometimes under threat , to help them collect the dead bodies of servicemen , because the “ fighters ” would not shoot at civilians . She corroborated the relatives’ statements about the discovery of the bodies on DATE .

In addition to the documents submitted by the applicant , in the proceedings in the case of , Makhauri v. GPE ( application no . CARDINAL ) , the Government submitted a copy of the investigation file in criminal case no . CARDINAL/CARDINAL/CARDINAL ( joined in DATE with criminal case no . DATE ) opened by military investigators in relation to an attack on PERSON in DATE in LOC . The file also contained a witness statement by PERSON ( born in DATE ) , made during the investigation in DATE . On the basis of this information , in DATE the military investigators requested the ORG to give them information about the murder of the CARDINAL members of the ORG family and the woman named PERSON . It appears that no reply was received .

PERSON stated to the military investigators that in DATE she had remained in PERSON . She moved in to the PERSON house at FAC , where QUANTITY people had stayed in the cellar , and remained there until DATE . Then they moved to another house , at CARDINAL FAC , because the shelling had become too intense and the first house had been damaged . CARDINAL people , mostly elderly , had stayed in the big cellar at CARDINAL FAC . The NORP fighters left their district DATE . The witness testified that the federal soldiers had regularly visited their cellar and forced the inhabitants to help them retrieve the wounded and dead . On CARDINAL or DATE the CARDINAL youngest men from the cellar ( aged below CARDINAL ) had been taken away by soldiers and later found dead . The witness described the soldiers as wearing blue - grey camouflage uniforms . She also testified that on DATE , along with the CARDINAL ORG sisters , she visited their house , where CARDINAL persons had been staying : PERSON , his wife PERSON , his brother PERSON and an elderly woman , “ NORP ” . They found the bodies of Mr PERSON and PERSON in the house with gunshot wounds , while the cellar was closed and burning . A neighbour told them to leave because the killers could return , and later told them that he had buried the CARDINAL bodies in the courtyard . On DATE , on DATE , the witness left for ORG .

In DATE the Government submitted CARDINAL pages of documents from the file of the criminal investigation carried out into the murder of the applicant ’s parents and uncle . Those documents include the ORG decisions to open , transfer , adjourn and reopen the investigation , and to grant victim status to the applicant and her brother . They can be summarised as follows .

On DATE , following the publication of “ Freedom or Death ” in the ORG newspaper on DATE , the ORG opened criminal investigation file no . DATE under LAW part QUANTITY of LAW ( murder of CARDINAL or more persons in aggravating circumstances ) “ concerning mass murder by the ‘ NORP brigade’ of members of the civilian population in the Katayama settlement in ORG on DATE ” . In connection with these proceedings the applicant and her brother were questioned in DATE .

On DATE an investigator of ORG decided that the killing of CARDINAL persons at LOC had constituted a separate episode and forwarded the relevant part of the file to LOC for further investigation .

On DATE ORG refused to carry out an investigation under LAW part CARDINAL paragraph CARDINAL of LAW due to the absence of information indicating that the deaths had occurred as a result of criminal actions . The investigator stated that the information about the circumstances of the applicant ’s relatives’ deaths had been incomplete . Turning to the applicant ’s statement , he concluded that the deaths and the fire in the house had most probably been a result of shelling , because at the relevant time the district had been the scene of heavy fighting . In the absence of more reliable information about the reasons and circumstances of the deaths , the investigation was closed .

On DATE ORG quashed that decision . On DATE ORG opened criminal investigation file no . DATE under LAW part QUANTITY of LAW into the applicant ’s relatives’ murder .

In DATE the applicant ’s brother , and in DATE the applicant , were granted victim status in the proceedings .

At different stages of the proceedings several orders were issued by the supervising prosecutors enumerating the steps to be taken by the investigators . On DATE a prosecutor from ORG ordered , among other things , that a plan of action be drawn up , that steps be taken to locate the places of burial and to carry out exhumations and forensic tests , that the bullets and cartridges from the crime scene be collected and sent for examination by a ballistic expert , that more personal information about the victims be collected , including the identification of the relatives of PERSON . Similar orders were issued in DATE , DATE .

DATE and DATE the investigation was adjourned and reopened CARDINAL times . The latest document in the case - file reviewed by the ORG is dated DATE . The prosecutor of ORG resumed the investigation and again ordered the collection of missing information about the victims , the identification and questioning of other possible witnesses to the crime , including PERSON , and the implementation of other steps to identify the perpetrators of the killings .

Until DATE criminal - law matters were governed by LAW Soviet Federative Socialist Republic . From DATE the old Code was replaced by LAW .

Article CARDINAL of the new Code of Criminal Procedure establishes the rule of impermissibility of disclosing data from the preliminary investigation . Under paragraph CARDINAL of the LAW , information from the investigation file may be divulged only with the permission of a prosecutor or investigator and only in so far as it does not infringe the rights and lawful interests of the participants in the criminal proceedings and does not prejudice the investigation . Divulging information about the private life of participants in criminal proceedings without their permission is prohibited .


András Sajó;Françoise Tulkens;Helen Keller;Isabelle Berro-Lefèvre;Paulo Pinto De Albuquerque

The applicants , PERSON and PERSON , are NORP nationals who were born in DATE and DATE respectively and live in GPE . They were represented before the Court by PERSON , a lawyer practising in GPE .

The first applicant is the daughter of the second applicant . On an unspecified date , the first applicant issued a cheque in the name of the second applicant . Subsequently , in DATE , alleging that she had lost the cheque , the second applicant applied to ORG to have it cancelled . The cheque was accordingly cancelled by ORG .

In the meantime , a third person , PERSON ( hereinafter referred to as “ the creditor ” ) , who is the niece of the second applicant , presented the cheque in question to the bank for payment ; however , she was informed that the cheque had been cancelled . The creditor then applied to ORG and alleged that the second applicant had endorsed the cheque in her name to pay a debt to her . The amount of the cheque in dispute was MONEY ( TRY ) and the due date was set at CARDINAL DATE . On DATE a payment order was sent to the applicants . On DATE the applicants filed an objection with ORG , stating that they did not have a debt to the creditor and alleging that the creditor had stolen the cheque from their house .

Thereafter , the creditor initiated proceedings before ORG , requesting the annulment of the objection filed by the applicants . Relying on CARDINAL of LAW ( Law no . DATE ) , she further claimed compensation amounting to PERCENT of the sum due , as the applicants had denied paying their debt in an unjust manner .

On DATE the applicants initiated another set of proceedings before ORG , seeking a declaratory judgment to the effect that they did not have any debt to the creditor in respect of the cheque in question . They also requested the creditor to pay them compensation amounting to PERCENT of the sum in dispute for acting in bad faith . On DATE ORG rejected the applicants’ case on account of insufficient evidence . In its decision , the court held that the applicants had failed to provide the basis of an arguable claim in support of their allegations . On DATE ORG quashed the judgment of the first - instance court , holding that that court should have examined whether the refusal to pay the amount due had caused unjust enrichment to the applicants . The case was accordingly remitted to ORG .

On an unspecified date , ORG decided to join the CARDINAL cases . During the hearings held before ORG , the applicants were represented by a lawyer and were able to put forward all their arguments . The court also heard witness statements . In her submissions before the court , the creditor maintained that she had lent TRY CARDINAL to the second applicant and had in return taken a cheque with a due date set for CARDINAL DATE . She further claimed that in order to avoid paying the cheque , the second applicant had applied to the court to have it cancelled . On DATE ORG held that as the creditor was in possession of a cheque , the burden of proof lay on the applicants to prove that they did not have a debt to her . Having regard to the case file as a whole , the court decided that the applicants had failed to prove that they did not have any debt to the creditor . It therefore dismissed the case initiated by the applicants and annulled their objection against the payment order . Pursuant to LAW no . CARDINAL , the court further ordered the applicants to pay compensation , amounting to PERCENT of the sum due , for unjustly filing an objection against the payment order . On DATE ORG upheld the judgment of the first - instance court . A request by the applicants for rectification was subsequently rejected and this final decision was served on the applicants on DATE .

Section CARDINAL of the Execution and Bankruptcy Act ( Law no . CARDINAL ) provides that the court may order the payment of compensation amounting to PERCENT of the sum in dispute , upon a request by the other party , if at the end of execution proceedings it concludes that the debtor has unjustly filed an objection against the payment order , or that the creditor acted in bad faith in initiating the execution proceedings .


Violation of Article 6 - Right to a fair trial (Article 6 - Civil proceedings;Article 6-1 - Reasonable time)

Angelika Nußberger;Ann Power-Forde;Dean Spielmann;Ganna Yudkivska;Karel Jungwiert;Mark Villiger

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

At the material time the applicant was employed by a collective agricultural enterprise in which the ORG held no shares . The enterprise had its own housing which was allocated to its workers or members . Since there was no vacant housing for the applicant he was placed first in the waiting list . When a flat became available , by a decision of the enterprise of CARDINAL DATE CARDINAL private individuals who were behind the applicant in the waiting list were offered the tenancy of the flat . On DATE and based on this decision , ORG ( “ the ORG ” ) issued a tenancy authorisation ( ордер на житлове приміщення ) in the name of the private persons in respect of the flat .

NORP In DATE the applicant instituted proceedings before ORG , PERSON ( “ the ORG ” ) against ORG , the private individuals and the enterprise . He sought revocation of the tenancy allocation .

On DATE the ORG allowed the applicant ’s claim in part , finding that he had the right to the tenancy of the flat since , according to the internal regulations of the enterprise and national law , he had priority over private individuals for occupation of the flat . The court ordered the private individuals to be evicted from the flat and the enterprise to allocate the flat to the applicant and to find other housing for the CARDINAL private individuals to be evicted . On DATE ORG ( since DATE the ORG , “ the Court of Appeal ” ) upheld the judgment of DATE and it became final .

On DATE the applicant requested ORG to intervene by lodging an appeal for supervisory review ( protest ) against the court decisions . On DATE the ORG of ORG , acting on the protest , changed part of the lower courts’ decisions in respect of the size of the housing to be provided to the private individuals .

On DATE the ORG rejected the applicant ’s request for interpretation of the judgment of DATE . The applicant did not appeal .

Having twice refused to open enforcement proceedings due to shortcomings in the writs of execution of the judgment of DATE , the NORP ORG ( “ the bailiffs ” ) eventually opened the proceedings on DATE . Subsequently , the bailiffs several times requested ORG to clarify the judgment at issue as , from their point of view , it was not sufficiently clear for enforcement purposes .

On DATE ORG decided to take over the property , including the housing of the enterprise , which had gone into liquidation in the meantime .

On DATE the bailiffs , on the basis of this decision , replaced the debtor company with ORG and ordered the head of ORG to comply with the judgment . Subsequently , due to non - compliance with the judgment , the bailiffs twice fined the Head of ORG . The latter challenged these decisions before the Poltava ORG , which , on DATE , found the bailiffs’ decision lawful and reasoned , but quashed the imposed fines on the ground that the debtor had not complied with the judgment for lack of appropriate housing . The parties did not appeal .

In the meantime , on DATE , ORG had authorised the private individuals to privatise the flat in issue .

On DATE the ORG rejected the requests by the bailiffs and the applicant for the manner of execution of the judgment to be changed . On DATE ORG upheld the first - instance decision , finding that the bailiffs had failed to enforce the judgment by not attaching the flat , which had led to its privatisation , and by not taking any action against ORG . This decision was upheld by ORG on DATE .

On DATE the ORG rejected the applicant ’s request for the manner of execution of the judgment to be changed . It found that the judgment was not enforced because the occupants of the flat had in the meantime privatised it and ORG had no substitute housing whatsoever . The higher courts left the applicant ’s appeals unexamined as the ruling of DATE was not subject to appeal .

The flat at issue remains occupied by the private individuals . According to the Government , the applicant is now occupying another flat that the enterprise provided him with on an unspecified date . According to the applicant , he has not been offered any housing since DATE .

On DATE the applicant lodged a complaint with ORG , alleging that when opening the enforcement proceedings the bailiffs had failed to attach the flat in issue . He requested the court to take measures in respect of the bailiffs so that they could enforce the judgment , and to lodge a claim on his behalf seeking revocation of the privatisation of the flat . On DATE the court rejected the complaint , finding that the applicant ’s requests for relief were without merit . It also found that the bailiffs had not taken all possible measures to ensure the implementation of the judgment when opening the enforcement proceedings , but that subsequently they looked for ways , and took measures , to implement it . On DATE and CARDINAL DATE respectively ORG and ORG upheld the decision of DATE .

By the bailiffs’ most recent decision , of DATE , the enforcement proceedings were discontinued , with the judgment of CARDINAL DATE remaining unenforced . The applicant challenged this decision . On DATE the ORG confirmed the decision , finding , in particular , that the bailiffs requested criminal prosecution of the Head of ORG and had no other option to enforce the judgement . On DATE ORG upheld the ruling of DATE . The parties did not appeal on points of law .