CASE OF MUSTAFA TUNÇ AND FECİRE TUNÇ v. TURKEY

Remainder inadmissible;Violation of Article 2 - Right to life (Article 2-1 - Effective investigation) (Procedural aspect);Non-pecuniary damage - award

András Sajó;Guido Raimondi;Helen Keller;Nebojša Vučinić;Peer Lorenzen

Mr PERSON and PERSON Tunç were born in DATE and DATE respectively and live in GPE . They are the father and mother of PERSON , who was born in DATE and died on CARDINAL DATE . Mr PERSON , the applicants’ son and brother of PERSON , was born in DATE and lives in GPE .

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

On DATE , at TIME and in the course of carrying out his military service in GPE , on a site belonging the private oil company ORG ( “ Perenco ” ) for which the national gendarmerie was providing security services , sergeant PERSON was injured by gunfire . He was CARDINAL of the gendarmes on duty and assigned to the guard post known as “ tower no . CARDINAL ” . The incident took place at the guard post known as “ tower no . CARDINAL ” .

PERSON was transported to hospital immediately after the incident by several servicemen , including sergeant PERSON and private GPE , who was the last person to have seen PERSON before the incident .

PERSON was pronounced dead shortly after his arrival at ORG .

The GPE military prosecutor ’s office was informed immediately after the incident and a judicial investigation was opened as a matter of course .

A military prosecutor went to the hospital to which LOC had been admitted and was joined there , on his instructions , by a team of criminal investigation experts from the national gendarmerie . He also sent another team to the scene of the incident and asked the PERSON ( civilian ) prosecutor to attend , in order to supervise the initial investigations and take any measures necessary to secure evidence .

TIME after the incident an external examination of the corpse and an autopsy were conducted at the hospital , under the military prosecutor ’s supervision .

Several photos were taken of the corpse . The deceased ’s clothing was removed and sent for laboratory analysis with a view to determining the distance from which the shot had been fired . Fingerprints were taken from the deceased and from GPE , the last person to have seen PERSON alive . Swabs were also taken from their hands , to be checked for gunshot residue . Finally , the deceased man ’s pockets were emptied and their contents recorded .

The prosecutor then instructed forensic doctor PERSON to examine the body with a view to ascertaining the cause of death , and , if appropriate , making observations on the circumstances of the death .

The forensic doctor found as follows : body height , QUANTITY ; entry wound with abrasion ring on the right side of the neck ; exit wound measuring CARDINAL x QUANTITY on the left side of the back , under the lower edge of the shoulder blade .

He noted no trace on the body of blows or violence .

He stated that death had occurred following a haemorrhage caused by a bullet wound , and that the bullet had struck the trachea and left lung .

He also mentioned that the shot had probably been fired at point - blank range ( yakın atış ) .

He based that conclusion on the presence of certain residue material . The relevant part of his report on this point reads as follows :

“ No skin coloration due to a burn or smoke was observed on the right side of the face or on the neck area . Traces of gunpowder were noted only on the right side of the face , on the lower curve of the chin . ”

All of those observations were recorded in a document entitled “ Record of the post - mortem examination and autopsy ” .

The military prosecutor also questioned private PERSON and sergeant PERSON ( see paragraphs DATE and DATE below ) , who had arrived at the hospital in the vehicle transporting Cihan Tunç .

Simultaneously , a team of experts from the gendarmerie ’s criminal investigation laboratory and the PERSON prosecutor went to the site TIME after the events .

According to the PERSON prosecutor ’s report , the site had a total of CARDINAL guard posts : a watchtower , known as the “ high tower ” and CARDINAL guard posts . The incident took place in a building measuring QUANTITY , with a ceiling height of QUANTITY and openings placed QUANTITY from the ground .

Again according to the report , CARDINAL cartridges and a bullet shell were found lying on the ground inside the guard post . The ceiling had an impact mark which resembled that of a shot . Small pieces of cement debris from the ceiling were found on the floor , on which there were also large bloodstains .

NORP The report also mentioned that a summary examination of the deceased man ’s weapon , a G-CARDINAL-type rifle that had been placed under lock and key pending the prosecutor ’s arrival , made it possible to confirm that it had been used a short time previously . This weapon , as well as the weapon assigned to private GPE , an MG-CARDINAL-type rifle which seemed not to have been used , had been sent to a laboratory for scientific analysis .

Finally , the report specified that a detailed description had been drawn up , CARDINAL sketches had been drawn , photographs taken and a video recording made .

On DATE the gendarmerie ’s criminal research laboratory issued an expert report ( report no . CARDINAL/CARDINAL/chemical ) . It indicated that analysis of the samples taken from the hands of the deceased man and PERSON using the so - called “ atomic absorption spectrometry ” technique had revealed the presence of lead , barium and antimony on the deceased ’s hands , and of barium and antimony on those of PERSON After noting that those elements were residues from the discharging of a weapon , the report noted that gunpowder residues contained micrometric particles which passed very easily from CARDINAL surface to another and that those residues frequently migrated to the hands when administering first aid .

NORP The report also noted that the tests on PERSON clothes indicated that he had been the victim of a shot fired at point - blank range .

On DATE the national police criminal laboratory in ORG also issued an expert report ( report no . ORG ) following ballistic tests carried out on the bullet shell and CARDINAL weapons found at the site of the incident . The reports indicated that the CARDINAL rifles were operating normally and confirmed that the bullet shell that had been found came from PERSON weapon .

As part of the investigations carried out by the military prosecutor ’s office and the gendarmerie ’s internal investigation , numerous servicemen were questioned on DATE of the incident .

In his evidence to the military prosecutor , PERSON stated :

“ LOC arrived at the tower where I was on duty TIME before the start of his guard , since that was where the handover was to take place ... He told me that he was feeling down . When I asked him why , he answered “ Forget it , mind your own business , you would n’t understand in any case ” . His reply annoyed me , I had the impression he thought I was an idiot . I lit a cigarette and [ LOC ] went into the tower ... he began playing with the cocking lever on his rifle . I came in and told him to stop ... He told me to mind my own business and go and have a cigarette ... At that point I went out ... I was QUANTITY from the tower when I heard a shot . I ran inside . [ Cihan ] was lying on the ground ... his rifle was on his right hand and the barrel was on his shoulder . I removed the rifle and tried to revive [ Cihan ] by shaking him , blood had begun to flow ... Sergeant A.A. arrived [ with other soldiers ] ” .

In response to the prosecutor ’s questions , PERSON replied that he had not had a dispute or a problem with PERSON , either during the duty shift or before it . He confirmed that he had not tried to remove the weapon from his hands at any point . He testified that he had not shot his comrade .

NORP In response to another question , he stated that , when PERSON had loaded and then unloaded the weapon several times , he had seen full cartridges being ejected from the side of the rifle .

During questioning by the gendarmerie ’s internal investigator , he stated :

“ Sergeant A.A. came past TIME , during his patrol , to check up . PERSON Tunç arrived shortly afterwards , at TIME ... he came into the tower room and began to play with his weapon , he loaded and then unloaded it CARDINAL times , and removed the magazine and put it back on . I asked him to stop , and said that we would both be punished if a senior officer were to come in unannounced ... He stopped for a moment . I was standing QUANTITY away from him . Then , [ when ] outside the post , I heard the noise of the cocking lever CARDINAL or CARDINAL times , followed by the sound of the weapon going off ... [ Cihan ] was lying on the ground , the weapon was on his chest . I tried to revive him . At that point , sergeant PERSON and the soldiers who were due to replace us arrived . We carried LOC close to the container , then we took him to ORG in a ORG car belonging to the Perenco company ... ”

To the question “ how do you explain the fact that CARDINAL cartridges were found on the site of the incident ? ” PERSON replied that he had no explanation . He added that perhaps these were cartridges which had fallen when PERSON was loading and unloading the weapon .

In response to another question , he said that he was unable to state if the magazine had been on the weapon at the time of the incident , since he had paid no attention to that point .

The investigator also asked GPE about the positions of the weapon and PERSON . More particularly , he asked if the latter had been sitting or standing when manipulating his rifle .

M.S. indicated that , while he was inside the post with PERSON , the latter had pointed the weapon towards the ceiling and charged it , and had then removed the magazine and operated the lever to eject the loaded cartridge . As he left the post , he saw PERSON sit down on an ammunition chest . While still outside , he heard the sound of the cocking lever a further CARDINAL times , then a bang .

Finally , the investigator questioned GPE about the location of the weapons . According to GPE , his rifle was on a rack inside the post , and the tripod was folded . ORG weapon was on his chest .

In those CARDINAL statements , the LOC where the incident took place is described indiscriminately by the terms “ duty station no . CARDINAL ” ( CARDINAL nolu nöbet mevzisi ) or “ tower no . CARDINAL ” ( CARDINAL nolu kule ) .

In his statement to the military prosecutor , sergeant PERSON indicated that he had heard a gunshot and , together with several privates , had rushed to the spot from where the sound had come . They found PERSON lying on the ground . After attempting to find the injured man ’s pulse , PERSON ordered that he be transported to the canteen and then to hospital .

With regard to the guard posts , sergeant PERSON indicated that CARDINAL were in use . The first was situated at the entrance to the site ( nizamiye ) ; the second post , known as the “ low tower ” , although in reality located in fourth position from the entrance , was also known as “ tower no . CARDINAL ” , since the CARDINAL preceding posts were not used . The third post was known as “ tower no . CARDINAL ” or “ the high tower ” .

A.A. also specified that he did not know of any problems experienced by PERSON or GPE

In reply to a question from the prosecutor , he repeated the account of the events given to him by PERSON This account corresponded to the statement made by GPE

A.A. gave similar evidence to the gendarmerie ’s internal investigator .

Captain GPE and Staff PERSON indicated that they had become aware of the incident while they were in the PERSON barracks . On arrival at the scene , they very quickly inspected the premises without disturbing the scene of the event . They had seen an empty bullet shell and CARDINAL cartridges for the ORG rifle , CARDINAL on the ground and the other on the rack . They had also noted blood on the ground .

Sergeant PERSON gave the following evidence to the investigator :

“ Cihan was on duty at post no . CARDINAL ... During my patrol , at CARDINAL a.m .... everything was normal . I exchanged a few words with LOC , who was on duty in the high tower ... When I arrived at the scene of the incident , PERSON was trying to lift LOC . ”

As to the position of the magazine , sergeant PERSON stated that he had not paid attention to it at the time . However , he remembered that , after carrying LOC to the canteen , private PERSON went and brought the weapon to him , and he observed that the magazine was not in place on the rifle .

To the question “ why did the incident take place at post no . CARDINAL , where GPE was on duty , although PERSON had been assigned to the high tower ? ” he replied :

“ I do not know . It is possible that Cihan left his post to go there because he was almost at the end of his duty period . When I did my round , at TIME , LOC was at his post in the high tower . ”

Private PERSON confirmed PERSON ’s statement , indicating that the weapon and the magazine were inside the guard post , but that the magazine was not on the weapon .

Private E.C. stated that when he arrived on the scene PERSON was attempting to lift PERSON . He also confirmed that the magazine was not on the weapon .

The following additional elements emerged from other statements .

PERSON had arrived DATE previously in the Perenco site protection team , which was composed of QUANTITY persons . He had no known problems and had not had a dispute with the other soldiers .

At the time of the incident , private ORG was on sentry duty at the first guard post , located at the entrance to the site .

After sergeant PERSON and the other servicemen arrived on the scene of the incident , PERSON was sent to the canteen to get help .

On DATE , holding that there were no grounds for finding that another person had been responsible for PERSON death , the prosecution service issued a decision not to bring a prosecution . The prosecutor set out the evidence gathered during the investigation . He considered that the shot had been fired when the young man , with his chest bent , had been leaning towards his right side and the barrel of the rifle was pointed towards his neck . He stated that this explained , in particular , the bullet impact on the ceiling . However , the prosecutor ’s decision gave no reason for the shot having suddenly been fired .

On DATE the prosecutor , in response to a request from the applicants’ lawyer , sent her correspondence containing a copy of the decision and a letter in which he indicated that , in application of the Practice of LAW , the entire case file was at her disposal , and that she could examine it and have a copy made of any item of evidence she considered relevant .

The applicants appealed against the decision , alleging that several grey areas remained as to the circumstances of LOC ’s death . In particular , they claimed that the trajectory followed by the bullet had not been clearly defined .

On DATE the ORG air - force military court upheld the ORG appeal and ordered the prosecution service to carry out an additional investigation . In particular , it considered that the bullet ’s trajectory and the firing position needed to be clearly established , on the basis of the entry and exit wounds on the body and the impact mark of the bullet on the ceiling . It also indicated that no plausible grounds for suicide had been identified . It added that , in any event , the position of the body at the time of the shot had been unusual for a suicide . Finally , it stated that no explanation had been provided for the gunshot residue on the hands of GPE , the last person to have seen PERSON before the incident .

On DATE the military prosecutor went to the Perenco site , accompanied by CARDINAL criminal investigation experts .

The group went to the guard post where the incident had taken place . Once all of the materials in the case file had been examined , a reconstruction of the events was carried out , assisted by an individual who was similar in build to the deceased man .

Steps to determine the bullet ’s trajectory were taken , particularly through the use of a string stretched between the impact mark on the ceiling and the barrel of a ORG rifle . Photographs were taken .

The experts observed that the floor was made of concrete , although the previous records described a dirt floor . According to material provided by the site managers , various LOC , including several dirt tracks , had been cemented over since the incident , with a view to keeping the soldiers’ uniforms clean . During this work , the floors had not been raised . This was confirmed by measurements which established that the ceiling height was still QUANTITY .

In the light of all the evidence gathered , the experts reached the following conclusion : PERSON had been sitting or crouching and was holding his rifle in his right hand ; when he tried to stand up by leaning on his weapon , and with his knees still bent , his hand had pulled the trigger and the shot had been fired .

During his visit to the site , the prosecutor questioned private GPE He stated that , when he arrived , PERSON was crouching down behind PERSON and was trying to lift him by pulling him under the arms .

All of this evidence was set out in a report dated DATE .

DATE . On DATE the prosecutor completed the investigations and sent the file to the military court , together with a report on the additional investigation requested ( report no . CARDINAL ) , setting out the measures taken and responding to the shortcomings noted by the court . With regard to the traces of gunshot on the hands , he pointed out that the file contained an expert report indicating that gunshot residue was very volatile and that it could have moved from the dead man ’s clothes or hands to GPE ’s hands immediately after the incident . He added that several statements had supported such a hypothesis , in that they confirmed that PERSON had been in physical contact with the deceased when attempting to lift him .

With regard to the court ’s claim that the firing position hardly corresponded to that of an individual who intended to commit suicide , and its argument about the lack of a motive , the prosecutor stated that the decision not to prosecute contained no indication that the incident had been a suicide and , furthermore , that the conclusion of suicide had not been entertained .

As to ascertaining the bullet ’s trajectory in the light of the impact mark on the ceiling and the entry and exit wounds on the body , he stated that the following theory had been accepted : PERSON had been sitting on an ammunition box and playing with the rifle ’s cocking lever and magazine ; when he was holding the weapon , with the magazine removed and at an angle on his right side , he had leaned forward and towards his right side with the intention of using the rifle as support in standing up , his hand on the part of the weapon near the trigger , and the shot went off ; the bullet had entered through the right side of his neck and emerged under the lower edge of the left shoulder - blade , before hitting the ceiling ; thus , PERSON had not committed suicide , he had been the victim of an accident . The prosecutor added that he had organised a reconstruction of the scene of the incident on DATE , in order to ascertain the credibility of this hypothesis , having regard to the entry and exit points of the bullet , the point of impact on the ceiling and the deceased man ’s build , and that the conclusions of the reconstruction confirmed the scenario put forward .

He attached the record of the reconstruction of the incident to his report .

On DATE the military court dismissed the applicants’ appeal .

A letter dated DATE was sent to the applicants’ lawyer , informing her of that decision .

Neither the date of posting nor the date of receipt of the letter is specified in the case file .

The applicants submitted that they received the letter in question at DATE .

DATE . The Government made no submissions on this point .

The applicants submitted a non - official expert report , prepared at their request by a NORP expert , PERSON , and dated DATE .

Dr PERSON drew up his report in LANGUAGE , on the basis of his examination of a number of documents from the case file , which had been translated into LANGUAGE .

The relevant parts of this report read as follows :

“ I am a Consultant Forensic Pathologist , accredited by ORG ( ... ) .

In preparing this report I have been provided with LANGUAGE translations of the following documents relating to PERSON :

ORG dated DATE .

Preparatory investigation report document number CARDINAL/CARDINALEO entitled “ Widening of the Investigation ” .

CARDINAL expert reports dated CARDINALth and DATE , reference numbers ELS-CARDINAL/CARDINAL and CARDINAL Chemical .

CARDINAL Colour images of the deceased , CARDINAL taken in life and CARDINAL taken post mortem , when the deceased is apparently within a coffin .

An image of GCARDINAL rifle .

The deceased was taken to a nearby ORG and the autopsy examination carried out later on the day of his death . Such promptness should be regarded as a good practice .

Initial examination then appears to involve removing the clothing from the deceased and the photographing it , collection of samples for forensic laboratory investigation , and recording detail content of pockets , etc .

In itself , this process appears to have been carried out appropriately , with collection of appropriate samples given the nature of the incident .

Having completed this stage , the [ autopsy ] report appears to indicate that the pathologist Dr. E was “ called in ” , by which I understand had his first opportunity to examine the deceased .

If my understanding is correct , this would cause me some considerable concern because , particularly in the case of shooting fatality , the pathologist should be given as much information as possible as regards the scene and state of the deceased , the latter including the opportunity to inspect and examine the undisturbed clothing .

The remainder of the details of the autopsy examination are somewhat brief and sketchy .

Otherwise , the essential autopsy examination findings are included in the report . The conclusion as to the cause of death is reasonable in the light of the stated autopsy findings ( i.e. there are no internally inconsistent findings and conclusions ) .

PERSON sustained a gunshot entry wound to the front side of his neck , and an exit wound on the back of the left shoulder . The photographs demonstrate a small entry wound , and a larger exit wound , and there is in my opinion no possibility that entry and exit have been got “ the wrong way round ” .

If the bullet has passed through the deceased and embedded itself in the ceiling , then the only way that I can conceive this trajectory of being achievable , is if the deceased was bent over the moment the gun discharged .

The autopsy report indicated that traces of unburned gunpowder were found on the right side of the face and on the curve of the lower jaw , but there was no smoke staining or burning of the skin . This indicates that the muzzle end of the barrel was close to but not in contact with the skin of the deceased . Whilst such discharge deposits depend to some extent on the nature of the weapon and ammunition used , the likely range of fire ( i.e. muzzle to skin distance ) would be in the region of QUANTITY .

I am informed that the length of a GCARDINAL rifle , believed to be the sort used by the deceased , is QUANTITY . From the image provided , the trigger is CARDINAL of the length of the rifle away from the muzzle . Depending on the length of the deceased ’s arm , the trigger might just be reachable ( say with an outstretched finger ) , if he was bent over the rifle at the time .

The CARDINAL other possibilities I can think of are that either the rifle malfunctioned and discharged unexpectedly for some reason ( e. g. it was dropped on the floor , or that the rifle was fired by another person DATE however , this would require that person to be lying on the floor pointing the rifle upwards with the deceased bent over the muzzle ( his neck at a distance of DATE QUANTITY ) at the time .

There were no autopsy signs that the deceased had been involved in a struggle or a fight . ”

On DATE ORG , which is a subdivision of the armed forces and whose purpose is to support the families of soldiers who die in service , awarded CARDINAL former NORP lira ( MONEY ) to the deceased man ’s family in financial support .

The relevant provisions of the LAW read as follows :

“ Judicial power shall be exercised by independent courts on behalf of the NORP nation . ”

“ In the performance of their duties , judges shall be independent ; they shall give judgment , according to their personal conviction , in accordance with the LAW , statute and the law .

No organ , authority , office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power , send them circulars , or make recommendations or suggestions . ”

“ Judges and public prosecutors shall not be removed from office or compelled to retire without their consent before the age prescribed by the LAW ; nor shall they be deprived of their salaries , allowances or other rights relating to their status , even as a result of the abolition of a court or post . ”

“ Military justice shall be dispensed by military courts and military disciplinary organs . These courts shall have jurisdiction to try military personnel for military offences , for offences committed by them against other military personnel or in military places , or for offences connected with military service and duties .

The organisation of military judicial organs , their functions , matters relating to the status of military judges , relations between military judges acting as military prosecutors and the office of the commander under whom they serve , shall be regulated by law in accordance with the principles of the independence of courts and the security of tenure of judges and with the requirements of military service . ”

Section CARDINAL of LAW ( Law no . CARDINAL ) provided , at the relevant time :

“ Save as otherwise provided in this LAW , the military courts shall be composed of CARDINAL military judges and an officer ( subay üye ) . ”

The words “ and an officer ” were set aside by ORG , ruling on an application for judicial review , in a decision of CARDINAL DATE which was published in ORG on DATE . ORG held that , in contrast to the military judges , the officer judge did not offer all the necessary guarantees , in that he was not released from his military obligations during his term of office and was subject to the authority of his superiors . Furthermore , it considered the fact that no provision prevented the military authorities from appointing a different officer for each case to be incompatible with LAW .

Following that judgment the legislation was amended . Section CARDINAL of Law no . CARDINAL now provides :

“ Save as otherwise provided in this LAW , the military courts shall be composed of CARDINAL military judges . ”


Preliminary objection dismissed (Article 35-1 - Exhaustion of domestic remedies);Violation of Article 5 - Right to liberty and security (Article 5-4 - Review of lawfulness of detention;Take proceedings);No violation of Article 5 - Right to liberty and security (Article 5-1 - Procedure prescribed by law;Article 5-1-c - Bringing before competent legal authority);Violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-3 - Brought promptly before judge or other officer);Violation of Article 6 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing;Adversarial trial;Equality of arms;Impartial tribunal;Independent tribunal);Violation of Article 6+6-3 - Right to a fair trial (Article 6 - Criminal proceedings;Article 6-1 - Fair hearing) (Article 6-3-b - Adequate facilities;Adequate time;Article 6-3-c - Defence through legal assistance;Article 6-3 - Rights of defence;Article 6 - Right to a fair trial);No violation of Article 2 - Right to life (Article 2-1 - Death penalty) (Substantive aspect);No violation of Article 14+2 - Prohibition of discrimination (Article 14 - Discrimination) (Article 2-1 - Death penalty;Article 2 - Right to life);No violation of Article 3 - Prohibition of torture (Article 3 - Inhuman punishment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 3 - Prohibition of torture (Article 3 - Degrading treatment;Inhuman treatment) (Substantive aspect);No violation of Article 34 - Individual applications (Article 34 - Hinder the exercise of the right of application);Non-pecuniary damage - finding of violation sufficient (Article 41 - Non-pecuniary damage;Just satisfaction)

Gaukur Jörundsson;Luzius Wildhaber;Nicolas Bratza;Paul Mahoney

The applicant was born in DATE and is currently being held in LOC ( GPE , ORG , GPE ) . Prior to his arrest , he was the leader of the ORG ( ORG of Kurdistan ) .

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

On DATE the applicant was expelled from GPE , where he had been living for DATE . He arrived DATE in GPE , where the NORP authorities asked him to leave NORP territory within TIME and refused his application for political asylum . On DATE the applicant travelled to GPE in an aircraft that had been chartered by the NORP secret services . His application for political asylum in GPE was accepted by the PERSON , but the NORP Prime Minister did not implement that decision .

On DATE the applicant went to GPE , where he made an application for political asylum . The NORP authorities initially detained him but subsequently placed him under house arrest . Although they refused to extradite him to GPE , they also rejected his application for refugee status and the applicant had to bow to pressure for him to leave GPE . After spending either CARDINAL or DATE in GPE , he returned to GPE , probably on DATE . The following day ( DATE ) , the applicant was taken to GPE . He was met at FAC by officials from the NORP embassy and accommodated at the ambassador 's residence . He lodged an application with the NORP ambassador for political asylum in GPE , but never received a reply .

On DATE ORG announced that PERSON had been on board an aircraft that had landed in GPE on DATE and had entered NORP territory accompanied by NORP officials without declaring his identity or going through passport control . It added that the NORP Minister for ORG had summoned the NORP ambassador in GPE in order to elicit information about the applicant 's identity . After initially stating that the person concerned was not PERSON , on being pressed by the NORP authorities the NORP ambassador had gone on to acknowledge that it was in fact him . The NORP Minister for ORG had been informed by the NORP ambassador that the authorities in GPE had agreed to arrange for Mr ORG departure from GPE .

The NORP Minister for ORG also stated that NORP diplomatic missions abroad had been the target of terrorist attacks and that the applicant 's presence in GPE constituted a major security risk . In those circumstances , the NORP government was surprised that GPE , a ORG with which it enjoyed friendly relations , could knowingly have put GPE in such a difficult position , exposing it to suspicion and the risk of attacks . Referring to the NORP ambassador 's role in the events , the NORP government indicated that it had serious reservations about his credibility and requested his immediate recall .

The NORP Minister for ORG added that the NORP authorities had played no part in the applicant 's arrest and had had no say in the choice of his final destination . The Minister had not been informed of any operations by NORP forces at the time of the applicant 's departure and there had been no consultations between the NORP and NORP governments on the subject .

On DATE of his stay in GPE , the applicant was informed by the NORP ambassador after the latter had returned from a meeting with the NORP Minister for ORG that he was free to leave for the destination of his choice and that the GPE were prepared to accept him .

On DATE NORP officials went to the NORP embassy to take PERSON to the airport . The NORP ambassador said that he wished to accompany the applicant to the airport in person and a discussion between the ambassador and the NORP officials ensued . In the end , the applicant got into a car driven by a NORP official . On the way to the airport , this car left the convoy and , taking a route reserved for security personnel in the international transit area of FAC , took him to an aircraft in which NORP officials were waiting for him . The applicant was then arrested after boarding the aircraft at TIME

The NORP courts had issued CARDINAL warrants for ORG arrest and a wanted notice ( Red Notice ) had been circulated by ORG . In each of those documents , the applicant was accused of founding an armed gang in order to destroy the territorial integrity of ORG and of instigating various terrorist acts that had resulted in loss of life .

On the flight from GPE to GPE , the applicant was accompanied by an army doctor from the moment of his arrest . A video recording and photographs taken of PERSON in the aircraft for use by the police were leaked to the press and published . In the meantime , the inmates of İmralı Prison were transferred to other prisons .

The applicant was kept blindfolded throughout the flight except when the NORP officials wore masks . The blindfold was removed as soon as the officials put their masks on . According to the Government , the blindfold was removed as soon as the aircraft entered NORP airspace .

The applicant was taken into custody at ORG on DATE . On the journey from the airport in GPE to FAC , he wore a hood . In photographs that were taken on the island of NORP in GPE , the applicant appears without a hood or blindfold . He later said that he had been given tranquillisers , probably at the NORP embassy in GPE .

From DATE , the applicant was interrogated by members of the security forces . On DATE a judge ruled on the basis of information in the case file that he should remain in police custody for a further DATE as the interrogation had not been completed .

Judges and prosecutors from ORG arrived on the island of ORG on DATE .

According to the applicant , on CARDINAL DATE CARDINAL lawyers instructed by his family applied to ORG for permission to see him . They were informed verbally that only CARDINAL lawyer would be allowed access . Lawyers who went to GPE ( the embarkation point for the island of ORG ) on DATE were told by the administrative authorities that they could not visit the applicant . The applicant also alleges that his lawyers were harassed by a crowd at the instigation of plain - clothes police officers or at least with their tacit approval .

As soon as the applicant 's detention began , the island of ORG was decreed a prohibited military zone . According to the applicant , the security arrangements in his case were managed by a “ crisis desk ” set up at GPE . It was the crisis desk that was responsible for granting lawyers and other visitors access to the applicant . According to the Government , special measures were taken to ensure the applicant 's safety . He had many enemies who might have been tempted to make an attempt on his life , and it was for security reasons that lawyers were searched .

On DATE the public prosecutor at ORG questioned the applicant and took a statement from him as an accused . The applicant told the prosecutor that he was the founder of the ORG and its current leader . Initially , his and the ORG 's aim had been to found an independent NORP State , but with the passage of time they had changed their objective and sought to secure a share of power for the NORP as a free people who had played an important role in the founding of the LOC . The applicant confessed that village guards were a prime target for the ORG . He also confirmed that the ORG had used violent methods against civilians , in particular from DATE onwards , but that he was personally opposed to such methods and had tried in vain to prevent their being used . He told the prosecutor that the warlords who wanted to seize power within the ORG had exerted part of their pressure on the NORP population ; some of these warlords had been tried and found guilty by the ORG and had been executed with his personal approval . He acknowledged that the NORP government 's estimate of the number of those killed or wounded as a result of the ORG 's activities was fairly accurate , that the actual number might even be higher , and that he had ordered the attacks as part of the armed struggle being waged by the ORG . He added that he had decided in DATE to declare a ceasefire , acting on a request by the NORP President , PERSON , which had been conveyed to him by the NORP leader PERSON . The applicant also told the prosecutor that after leaving GPE on DATE he had gone first to GPE and then to GPE and GPE . When the latter CARDINAL countries refused to grant him the status of political refugee , he had been taken to GPE by the NORP secret services .

On DATE the applicant appeared before a judge of ORG , who ordered that he should be detained pending trial . The applicant did not apply to ORG to have that decision set aside . Before the judge he repeated the statement he had made to the prosecutor . He said that decisions taken within the ORG were submitted to him as founder and leader of the organisation for final approval . In the period from DATE , the ORG 's activities had been political . In DATE and DATE , the ORG had organised armed attacks on the ağalar ( major landowners ) . In DATE , following a visit by the applicant to GPE , the ORG had begun its paramilitary preparations . Since DATE , the ORG had carried on an armed struggle within GPE . The regional leaders decided on armed actions and the applicant confirmed the general plan for such actions . He had taken the strategic and tactical decisions for the organisation as a whole . The units had carried out the decisions .

On DATE after the applicant 's arrival in GPE , his NORP lawyer , Mr PERSON , asked to visit him . He was prevented by members of the security forces from leaving the premises of ORG and was subsequently arrested together with CARDINAL other lawyers .

At FAC on DATE , PERSON , PERSON and their partner Mr PERSON were refused leave to enter GPE to visit the applicant , on the grounds that they could not represent him in GPE and that PERSON past history ( she was suspected of having campaigned against GPE 's interests and of having taken part in meetings organised by the ORG ) created a risk of prejudice to public order in GPE .

On DATE the applicant was able to talk to CARDINAL of the QUANTITY lawyers who had asked to see him , Mr PERSON and Mr H. GPE . The first conversation took place in the presence of a judge and of members of the security forces wearing masks . The latter decided that it should not last longer than TIME . The record of that conversation was handed over to ORG . The applicant 's other representatives were given leave to have their authority to act before the ORG signed and to see their client later .

During the preliminary investigation DATE , when the applicant was arrested , and DATE , when the trial began , the applicant had CARDINAL meetings in private with his lawyers . The dates and duration of the meetings were as follows : DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) , DATE ( TIME ) and DATE ( TIME ) .

According to the applicant , his conversations with his lawyers were monitored from behind glass panels and filmed with a video camera . After the first CARDINAL short visits , the applicant 's contact with his lawyers was restricted to CARDINAL visits per week , lasting TIME each . On each visit , the lawyers were searched CARDINAL times and required to fill in a very detailed questionnaire . He and his advisers were not allowed to exchange documents or take notes at their meetings . The applicant 's representatives were unable to give him either a copy of his case file ( other than the bill of indictment , which was served by the prosecution ) or any other material that would allow him to prepare his defence .

According to the Government , no restrictions were placed on the applicant as regards either the number of visits by his lawyers or their duration . Apart from the first visit , which took place under the supervision of a judge and members of the security forces , the meetings were held subject to the restrictions provided for in LAW . In order to ensure their safety , the lawyers were taken to the island of ORG by boat after embarking at a private quay . Hotel rooms were booked for them near the embarkation point . According to the Government , no restrictions were placed on the applicant 's correspondence .

In the meantime , on DATE , delegates of ORG for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( ORG ) visited PERSON . In a letter of CARDINAL DATE to the representatives of the Government , they indicated that the applicant was physically in good health and his cell was comfortable . The ORG drew the ORG 's attention to the fact that the applicant 's solitary confinement and his limited access to the open air could affect him psychologically .

The ORG delegates next visited PERSON , where the applicant is the sole inmate , as part of their mission to GPE from DATE . The delegates found that the cell occupied by the applicant was large enough to accommodate a prisoner and equipped with a bed , table , armchair and bookshelves . It also had an air - conditioning system , washing and toilet facilities and a window overlooking an inner courtyard . The applicant had access to books , newspapers and a radio , but not to television programmes or a telephone . However , he received twice DATE medical checks by doctors and , in principle , was visited by his lawyers once DATE .

On its visit of DATE , the ORG noted that visits to the applicant by his lawyers and members of his family were often cancelled owing to adverse weather conditions and inadequate means of transport .

In a bill of indictment preferred on DATE ( and joined to several others that had been drawn up in the applicant 's absence by various public prosecutors ' offices DATE ) , the public prosecutor at ORG accused the applicant of activities carried out for the purpose of bringing about the secession of part of the national territory . He sought the death penalty under LAW .

The case file ran to CARDINAL pages and had been prepared by joining the files in CARDINAL sets of proceedings that were pending against the applicant in various national security courts . The applicant 's lawyers were given access to the case file and the bill of indictment on DATE . Since the judicial authorities had not been able to supply a copy of the file , the applicant 's lawyers had brought their own photocopier and finished copying the file on DATE . The prosecution had omitted to include certain documents in it , such as those concerning the applicant 's arrest in GPE and his transfer to GPE .

The first CARDINAL hearings , held in GPE on DATE and DATE in the applicant 's absence , were taken up with procedural matters , such as third - party applications to intervene in the proceedings or the measures to be taken in readiness for the hearings on the island of ORG and to enable the parties to take part in and members of the public to attend the trial . According to the ORG , allegations that the lawyers were harassed by the police when they emerged from the first hearing in GPE on DATE have been the subject of a criminal investigation .

From DATE to DATE , ORG held CARDINAL hearings attended by the applicant on the island of ORG . The applicant told the court , among other things , that he stood by his statements to the prosecutor and the judge . He confirmed that he was the most senior ORG agent and leader of the organisation and that he had instructed the members of the organisation to carry out certain acts . He said that he had not been ill - treated or verbally abused since his arrest . The applicant 's representatives argued that ORG could not be regarded as an independent and impartial tribunal within the meaning of LAW . The applicant stated that , for his part , he accepted the court 's jurisdiction .

The applicant said that he was willing to cooperate with ORG in order to bring to an end the acts of violence associated with the NORP question and promised to halt the ORG 's armed struggle . He indicated that he wished to “ work for peace and fraternity and achieve that aim within GPE ” . He observed that , while he had initially envisaged an armed struggle for the independence of the population of NORP origin , that had been in reaction to the political pressure the government had exerted on the NORP population . When circumstances changed , he had decided on a different approach and limited his demands to autonomy or to a recognition of the NORP ' cultural rights within a NORP society . He accepted political responsibility for the ORG 's general strategy , but disclaimed criminal liability for acts of violence which went beyond the ORG 's stated policy . In order to highlight the rapprochement between the ORG and the government , he applied to have the government officials who had conducted negotiations with the ORG examined as witnesses for the defence . That application was refused by ORG .

NORP The applicant 's lawyers ' applications for the communication of additional documents or for further investigations in order to collect more evidence were refused by ORG on the ground that they were delaying tactics .

The applicant 's lawyers complained to ORG about the restrictions and the difficulties they were having in conferring with their client . Their request to be permitted to confer with him during lunch breaks was accepted by ORG at a hearing on DATE .

The lawyers did not appear at the hearing on DATE . At their request , transcripts of that hearing and copies of the documents placed in the file were given to them and the applicant on DATE . CARDINAL of the applicant 's counsel thanked ORG for having established a dispassionate atmosphere .

On DATE the prosecution made their final submissions . They sought the death penalty for the applicant under LAW .

The applicant 's advisers requested a DATE adjournment to enable them to prepare their final submissions . ORG granted them DATE , the statutory maximum allowed .

On DATE GPE 's ORG amended LAW to exclude both military judges and military prosecutors from national security courts . Similar amendments were made on DATE to the law on national security courts .

At the hearing on DATE , the judge who had been appointed to replace the military judge sat as a member of the trial court for the first time . ORG noted that the new judge had already read the file and the transcripts , in accordance with LAW , and had followed the proceedings from the outset and attended the hearings .

Counsel for the applicant opposed the appointment of the civilian judge owing to his previous involvement in the case . Their application for an order requiring him to stand down was dismissed by ORG .

At the same hearing , counsel for the applicant set out the applicant 's substantive defence to the charges .

On DATE , after hearing the applicant 's final representations , ORG found the applicant guilty of carrying out acts designed to bring about the secession of part of GPE 's territory and of training and leading a gang of armed terrorists for that purpose . It sentenced him to death under LAW . It found that the applicant was the founder and principal leader of the organisation , whose aim was to detach a part of the territory of GPE so as to form a NORP State with a political regime based on NORP - Leninist ideology . ORG found that it had been established that , following decisions taken by the applicant and on his orders and instructions , the ORG had carried out several armed attacks , bomb attacks , acts of sabotage and armed robberies , and that in the course of those acts of violence CARDINAL of civilians , soldiers , police officers , village guards and public servants had been killed . The court did not accept that there were mitigating circumstances allowing the death penalty to be commuted to life imprisonment , having regard , among other things , to the very large number and the seriousness of the acts of violence , the CARDINAL of deaths caused by them , including those of children , women and old people , and the major , pressing threat to the country that those acts posed .

The applicant appealed on points of law against the above judgment , which , on account of the severity of the sentence , was in any event automatically subject to review by ORG .

In a judgment adopted on CARDINAL DATE and delivered on DATE , ORG upheld the judgment of DATE in every respect . It held that the replacement of the military judge by a civilian judge during the trial did not require the earlier procedural steps to be taken again given that the new judge had followed the proceedings from the beginning and that the law itself required that the proceedings should continue from the stage they had reached at the time of the replacement . ORG also pointed out that ORG was empowered by law to hold its hearings outside the area of its territorial jurisdiction on security grounds , among other reasons .

As to the merits , ORG had regard to the fact that the applicant was the founder and president of the ORG . It referred to the latter 's aim and activities , namely that it sought the foundation of a NORP State on a territory that GPE should be made to cede after an armed struggle and to that end carried out armed attacks and sabotage against the armed forces , industrial LOC and tourist facilities in the hope of weakening the authority of the ORG . The ORG also had a political front ( the ERNK ) and a military wing ( the ORG ) , which operated under its control . Its income was derived mainly from “ taxes ” , “ fines ” , donations , subscriptions , and the proceeds of armed robberies , gun - running and drug trafficking . According to ORG , the applicant led all CARDINAL of these groups . In his speeches at party conferences , in his radio and television appearances and in the orders he had given to his activists , the applicant had instructed his supporters to resort to violence , indicated combat tactics , imposed penalties on those who did not obey his instructions and incited the civilian population to put words into action . As a result of the acts of violence carried out by the ORG from DATE until the applicant 's arrest ( in all , CARDINAL armed attacks , CARDINAL bomb attacks , CARDINAL armed robberies and CARDINAL kidnappings ) , CARDINAL civilians , CARDINAL soldiers , QUANTITY police officers and CARDINAL village guards had died .

ORG held that the ORG , founded and led by the applicant , represented a substantial , serious and pressing threat to the country 's integrity . It ruled that the acts of which the applicant was accused constituted the offence laid down in LAW and that it was not necessary , in order for that provision to apply , for the applicant – the founder and president of the ORG and the instigator of the acts of violence committed by that organisation DATE personally to have used a weapon .

In DATE , LAW was amended so that the death penalty could no longer be ordered or implemented other than in time of war or of imminent threat of war , or for acts of terrorism .

By PERSON no . CARDINAL , which was published on DATE , ORG resolved , inter alia , to abolish the death penalty in peacetime ( that is to say except in time of war or of imminent threat of war ) and to make the necessary amendments to the relevant legislation , including LAW . As a result of the amendments , a prisoner whose death sentence for an act of terrorism has been commuted to life imprisonment must spend the rest of his life in prison .

By a judgment of DATE , ORG commuted the applicant 's death sentence to life imprisonment . It ruled that the offences under LAW of which the applicant had been accused had been committed in peacetime and constituted terrorist acts .

ORG ( ORG – PERSON ) , a political party with representatives in ORG , applied to ORG for an order setting aside certain provisions of PERSON no . MONEY , including the provision abolishing the death penalty in peacetime for persons found guilty of terrorist offences . ORG dismissed that application in a judgment of DATE .

Before the LAW was amended on DATE , Article CARDINAL provided that national security courts were to be composed of a president , CARDINAL other full members and CARDINAL substitute members . The president of the national security court , CARDINAL of the full members and CARDINAL of the substitute members were to be civilian judges , and the other full member and substitute member were to be military judges .

As amended by PERSON no . CARDINAL of DATE , LAW provides :

“ ... National security courts shall be composed of a president , CARDINAL other full members , a substitute member , a public prosecutor and a sufficient number of assistant prosecutors .

The president , CARDINAL full members , a substitute member and the public prosecutor shall be appointed from among judges and public prosecutors of the first rank and assistant prosecutors from among public prosecutors of other ranks . Appointments shall be made for DATE by ORG , in accordance with procedures laid down in special legislation . Their terms of office shall be renewable ... ”

The necessary amendments concerning the appointment of the judges and public prosecutors were made to PERSON no . CARDINAL on national security courts by PERSON no . CARDINAL of DATE . By the terms of provisional LAW no . CARDINAL , the terms of office of the military judges and military prosecutors in service in the national security courts were to end on the date of publication of that PERSON ( DATE ) . By provisional section CARDINAL of the same PERSON , proceedings pending in the national security courts on the date of publication of the PERSON were to continue from the stage they had reached by that date .

“ Anyone committing an act designed to subject the ORG or a part of the ORG to the domination of a foreign ORG , to diminish its independence or to impair its unity , or which is designed to remove from the administration of the ORG a part of the territory under its control shall be liable to the death penalty . ”

The fourth paragraph of LAW ( as amended by PERSON no . CARDINAL of DATE ) provides that any person who has been arrested and/or in respect of whom a prosecutor has made an order for his continued detention may challenge that measure before the appropriate district judge and , if successful , be released .

Section CARDINAL of Law no . CARDINAL on the payment of compensation to persons unlawfully arrested or detained provides :

“ Compensation shall be paid by the ORG in respect of all damage sustained by persons :

( CARDINAL ) who have been arrested or detained under conditions or in circumstances incompatible with the LAW or statute ;

( CARDINAL ) who have not been immediately informed of the reasons for their arrest or detention ;

( CARDINAL ) who have not been brought before a judicial officer after being arrested or detained within the time allowed by statute for that purpose ;

( CARDINAL ) who have been deprived of their liberty without a court order after the statutory time allowed for being brought before a judicial officer has expired ;

( CARDINAL ) whose close family have not been immediately informed of their arrest or detention ;

( CARDINAL ) who , after being arrested or detained in accordance with the law , are not subsequently committed for trial ... , or are acquitted or discharged after standing trial ;

( CARDINAL ) who have been sentenced to a term of imprisonment shorter than the period spent in detention or ordered to pay a pecuniary penalty only ... ”

Article CARDINAL of the Code of Criminal Procedure provides that , in principle , anyone arrested or detained pending trial may speak with his legal representative in private , whether or not the latter has an authority to act . The version of Article CARDINAL that applied to proceedings in the national security courts at the material time was the version as worded prior to the amendments of CARDINAL DATE . It provided that members of the national legal service were entitled to be present at meetings between the accused and their lawyers before the commencement of the criminal proceedings .

Protocol No . CARDINAL to the Convention provides ( LAW : “ The death penalty shall be abolished . No one shall be condemned to such penalty or executed . ” LAW No . CARDINAL provides :

“ A ORG may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war ; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions . The ORG shall communicate to the Secretary General of ORG the relevant provisions of that law . ”

Protocol No . CARDINAL has been ratified by CARDINAL member ORG and signed by CARDINAL others ( GPE and GPE ) .

Protocol No . CARDINAL to the LAW , which provides for the abolition of the death penalty in all circumstances , was opened for signature on DATE . The LAW to LAW No . CARDINAL reads :

“ The member ORG signatory hereto ,

Convinced that everyone 's right to life is a basic value in a NORP society and that the abolition of the death penalty is essential for the protection of this right and for the full recognition of the inherent dignity of all human beings ;

Wishing to strengthen the protection of the right to life guaranteed by ORG signed at GPE on CARDINAL DATE ( hereinafter referred to as ' the Convention ' ) ;

Noting that Protocol No . CARDINAL to the Convention , concerning the Abolition of the Death Penalty , signed at GPE on DATE , does not exclude the death penalty in respect of acts committed in time of war or of imminent threat of war ;

Being resolved to take the final step in order to abolish the death penalty in all circumstances ,

Have agreed as follows :

LAW No . CARDINAL states :

“ The death penalty shall be abolished . No one shall be condemned to such penalty or executed . ”

Protocol No . CARDINAL has been signed by CARDINAL member ORG and ratified by CARDINAL . It came into force on DATE after the tenth ratification . CARDINAL member ORG GPE , GPE and GPE ) have not yet signed it .

In its Opinion No . CARDINAL ( DATE ) on LAW to LAW concerning the abolition of the death penalty in all circumstances , ORG of ORG referred to :

“ CARDINAL . ... its most recent resolutions on the subject , Resolution CARDINAL ( DATE ) on LOC : a death - penalty free continent , and Resolution CARDINAL ( DATE ) on the abolition of the death penalty in ORG states , in which it reaffirmed its beliefs that the application of the death penalty constitutes inhuman and degrading punishment and a violation of the most fundamental right , that to life itself , and that capital punishment has no place in civilised , democratic societies governed by the rule of law . ”

It further noted :

“ CARDINAL . The second sentence of LAW still provides for the death penalty . It has long been in the interest of the ORG to delete this sentence , thus matching theory with reality . This interest is strengthened by the fact that more modern national constitutional documents and international treaties no longer include such provisions . ”

LAW on human rights and the fight against terrorism ” , issued by ORG DATE , reads :

“ Under no circumstances may a person convicted of terrorist activities be sentenced to the death penalty ; in the event of such a sentence being imposed , it may not be carried out . ”

In a number of cases involving the application of the death penalty , ORG has observed that if the due process guarantees in LAW were violated , a sentence of death which was carried out would not be in conformity with LAW , that sets out the circumstances in which it is permissible to give effect to the death penalty .

In PERSON v. GPE ( no . CARDINAL/CARDINAL ) , the ORG stated as follows :

“ [ T]he imposition of a sentence of death upon the conclusion of a trial in which the provisions of the LAW have not been respected constitutes ... a violation of LAW . As the ORG noted in its general comment CARDINAL ) , the provision that a sentence of death may be imposed only in accordance with the law and not contrary to the provisions of the LAW implies that ' the procedural guarantees therein prescribed must be observed , including the right to a fair hearing by an independent tribunal , the presumption of innocence , the minimum guarantees for the defence , and the right to review by a higher tribunal ' . ”

Similar observations were made by ORG in Daniel Mbenge v. GPE ( Communication no . CARDINAL/CARDINAL , DATE , ORG . ORG . no . MONEY , [ A/CARDINAL/CARDINAL ] , at CARDINAL [ DATE ] ) and PERSON v. GPE ( Communication no . DATE , ORG . CCPR / C/CARDINAL/D/CARDINAL/CARDINAL [ DATE ] ) .

In an advisory opinion on the right to information on consular assistance in the framework of the guarantees of due process of law ( ORG OC-CARDINAL/CARDINAL of DATE ) , ORG examined the implication of the guarantees of a fair procedure for LAW , which permitted the death penalty in certain circumstances . It stated :

“ CARDINAL . It might be useful to recall that in a previous examination of LAW to the Death Penalty , Advisory Opinion OC-CARDINAL/CARDINAL of DATE , Series A No . CARDINAL ) the ORG observed that the application and imposition of capital punishment are governed by the principle that ' [ n]o one shall be arbitrarily deprived of his life ' . Both LAW require strict observance of legal procedure and limit application of this penalty to ' the most serious crimes ' . In both instruments , therefore , there is a marked tendency toward restricting application of the death penalty and ultimately abolishing it .

This tendency , evident in other inter - NORP and universal instruments , translates into the internationally recognised principle whereby those GPE that still have the death penalty must , without exception , exercise the most rigorous control for observance of judicial guarantees in these cases . It is obvious that the obligation to observe the right to information becomes all the more imperative here , given the exceptionally grave and irreparable nature of the penalty that one sentenced to death could receive . If the due process of law , with all its rights and guarantees , must be respected regardless of the circumstances , then its observance becomes all the more important when that supreme entitlement that every human rights treaty and declaration recognises and protects is at stake : human life .

NORP Because execution of the death penalty is irreversible , the strictest and most rigorous enforcement of judicial guarantees is required of the State so that those guarantees are not violated and a human life not arbitrarily taken as a result . ”

In GPE , PERSON and PERSON . v. GPE and GPE ( judgment of DATE ) , ORG stated :

“ Taking into account the exceptionally serious and irreparable nature of the death penalty , the observance of due process , with its bundle of rights and guarantees , becomes all the more important when human life is at stake . ” ( paragraph CARDINAL )


The applicants , PERSON , Mr PERSON and PERSON GPE , are NORP nationals , who were born in DATE , DATE and DATE respectively . On DATE the third applicant died . The first and the second applicant live in GPE , GPE .

On DATE the third applicant lodged an application with ORG ( Sąd Wojewódzki ) for compensation for damages sustained by her husband in connection with his conviction in DATE by ORG .

In DATE the first and second applicants and CARDINAL other children of the third applicant , lodged similar applications . They based their actions on the PERSON of DATE on annulment of convictions whereby persons were persecuted for their activities aimed at achieving independence for GPE ( Ustawa o uznaniu za nieważne orzeczeń wydanych wobec osób represjonowanych za działalność na rzecz niepodległego bytu PERSON ) .

The applicants submit that the first hearing was held on DATE .

At the hearing held on DATE the court decided to join all CARDINAL applications and examine them together .

On DATE the court held a hearing . Subsequently , the applicants applied to the court to make some amendments to the minutes of the hearing . On DATE the trial court , sitting in camera , ordered the preparation of an expert opinion .

On DATE and DATE the trial court held hearings . The applicants requested the court to amend the TIME of both hearings . The ORG requests were dismissed on DATE .

On DATE ORG gave a decision . It awarded each of the applicants ORG CARDINAL for pecuniary and non - pecuniary damage .

The applicants appealed against this decision .

At the hearing held on DATE ORG ( Sąd Apelacyjny ) quashed the impugned decision and remitted the case .

ORG held CARDINAL hearing on DATE .

On DATE ORG gave a decision in which it partly allowed the action and awarded compensation .

The applicants lodged an appeal against this decision but on CARDINAL DATE ORG dismissed it .

On DATE the applicants lodged a cassation appeal with ORG ( Sąd Najwyższy ) .

On DATE ORG dismissed their cassation appeal as manifestly ill - founded .


Violation of P1-1;Just satisfaction reserved

Since DATE the applicant company has owned QUANTITY of land in the municipality of GPE , entered in ORG as folio CARDINAL , parcel CARDINAL . In DATE ORG had given its approval for a building project to be carried out on the land .

On DATE the ORG resolved to adopt a general development plan ( piano regolatore generale – “ GDP ” ) .

On DATE ORG approved the GDP for GPE , which set aside the applicant company ’s land for the creation of a public park ( parco pubblico ) and , consequently , imposed an absolute prohibition on building on the land with a view to its expropriation .

Pursuant to section CARDINAL of Law no . DATE , the prohibition on building imposed by the GDP lapsed in DATE , no detailed development plan having been adopted in DATE .

NORP Despite the fact that the prohibition on building had lapsed , the applicant company ’s land did not revert to its original use .

Pending a decision by ORG on its future use , the land was subject to the regulations in CARDINAL of PERSON no . CARDINAL , a provision which the courts had held to apply in situations of that kind ( see paragraphs CARDINAL below ) , and , from DATE , to the regulations in Law no . CARDINAL of GPE .

NORP The applicant company ’s land was consequently affected by the building restrictions deriving from the application of these laws .

On CARDINAL DATE the applicant company asked ORG to determine the use to which the land was to be put . No action was taken on this request .

In view of ORG failure to reply , which amounted to a refusal , the applicant company appealed to ORG ( “ the ORG ” ) . It argued , firstly , that ORG was under an obligation to determine the intended use of the land and that its inaction was unlawful . It also sought to have the land designated as building land by the authorities .

In a decision of CARDINAL DATE ORG allowed the applicant company ’s appeal in so far as it acknowledged that ORG inaction was unlawful .

The court held that the prohibition on building imposed in DATE had ceased to be effective after DATE , pursuant to Law no . DATE , because ORG had not adopted a detailed development plan . Since then , the applicant company ’s land had been subject to the regulations in LAW no . CARDINAL . The court considered , however , that the building restrictions deriving from the application of that PERSON could not take the place of an actual decision by the administrative authorities as to the intended use of the land ; the authorities were consequently under an obligation to revise the land - use plan ( ricostituzione della disciplina urbanistica ) , and their inaction was unlawful . However , ORG remained entirely at liberty to determine the use to which the land in issue should be put ; the ORG was not empowered to direct that the land should be given a particular designation .

In conclusion , the ORG ordered the administrative authorities to give a fresh decision as to the intended use of the applicant company ’s land .

NORP ORG appealed against that decision .

NORP In a decision of CARDINAL DATE the PERSON dismissed ORG appeal and upheld the impugned decision .

On DATE , in view of the failure of ORG to comply with the PERSON judgment , the applicant company requested ORG to adopt a decision on the land . It also proposed a solution whereby if the ORG designated QUANTITY as building land , the applicant company would assign the rest of the land to the municipality free of charge . No action was taken on this proposal .

In a decision of CARDINAL DATE the ORG resolved to adopt a detailed development plan and again imposed an absolute prohibition on building on the applicant company ’s land with a view to its expropriation . ORG set the land aside for public use .

NORP The applicant company appealed against that decision to the regional committee for supervision of measures taken by municipal authorities ( PERSON ) , seeking to have ORG decision overturned . It argued that the indications given as to the intended use of the land were too vague and that the conditions for renewing the prohibition on building , such as that of public interest , were not satisfied . The outcome of the appeal is not known .

It appears from the expert opinion produced by the applicant company that the detailed development plan imposing a prohibition on building on the land was adopted on DATE .

Article QUANTITY CARDINAL of LAW provides : “ Private ownership shall be guaranteed and recognised by the law , which shall determine the manner by which it may be acquired and enjoyed , and its limits , in order to safeguard its social function and to make it accessible to all . Private property may be expropriated in cases provided for by law , and subject to payment of compensation , on grounds of public interest . ”

LAW ( Law no . CARDINAL , as amended ) lays down rules governing town planning and confers on municipal authorities the power to adopt development plans , which must cover the entire territory of the municipality .

The GDP is valid indefinitely . The procedure for adopting a GDP begins with a resolution ( delibera di adozione ) by the municipal council , followed by a period during which all decisions on applications for planning permission that might conflict with the implementation of the GDP are deferred ( Law no . DATE , as amended ) . Approval of the GDP is the responsibility of the regional authorities ( LAW no . CARDINAL/CARDINAL and Articles CARDINAL and CARDINAL of Presidential Decree no . CARDINAL ) , having previously been given by decree of the NORP President . Once the GDP has been approved , it is published in ORG ( ORG ) and deposited at the town hall .

Where a GDP contains precise details of land use , it may be implemented without further formalities ; frequently , however , an additional measure is required . The measure may be initiated by the public authorities , as in the case of a detailed development plan ( piano particolareggiato ) , which , by contrast , is valid for a specified period only . Following the adoption of the detailed plan ( which is equivalent to a declaration that land is required for public purposes ) , the authorities have a strict time - limit ( not exceeding DATE , as provided in section QUANTITY of LAW ) for carrying out any expropriations and , in any event , implementing the plan , failing which it ceases to be effective . Where the GDP requires a detailed development plan for its implementation , it is for the district council to adopt one . However , no strict time - limits are prescribed for the adoption of a detailed plan .

Restrictions on the right to dispose of property , such as a prohibition on building , are imposed when a development plan is adopted . A prohibition on building may be imposed with a view to expropriation ( vincolo preordinato all’esproprio ) where the land in question has been set aside for public use or for the construction of buildings or public amenities ( section CARDINAL ) and ( CARDINAL ) of LAW ) .

LAW , as originally worded , provided that restrictions imposed by a general development plan on the property rights of private persons , such as prohibitions on building , were valid for the same length of time as the general development plan , that is to say indefinitely ; at the same time , no compensation was payable to the owners ( section CARDINAL ) .

The Constitutional Court was asked to determine whether a prohibition which severely restricted the right of property – such as an expropriation order ( vincolo espropriativo ) or a prohibition on building ( vincolo di inedificabilità ) DATE and could be extended indefinitely without any form of compensation was compatible with the right of property .

In judgments delivered DATE ( see , in particular , judgment no . CARDINAL/CARDINAL and judgment no . CARDINAL of CARDINAL DATE ) ORG reached a negative conclusion and declared LAW unconstitutional inasmuch as it provided for the indefinite extension of severe restrictions on the right of property , such as a prohibition on building or a prohibition with a view to expropriation , without any compensation being payable .

ORG pointed out that restrictions could be imposed by law on the property rights of private persons , provided that they did not render those rights devoid of any substance . Furthermore , the right to build was to be seen as an inherent aspect of the right of property and could be restricted only on specific and tangible public - interest grounds . In the event of expropriation or of restrictions of indefinite duration affecting the very substance of the right of property ( such as a prohibition on building ) , the owner was entitled to compensation . However , no compensation was payable where a prohibition on building was imposed for a limited period only .

In the light of those judgments , in which ORG laid down the principles applicable where severe restrictions were imposed on the right of property , the legislature had CARDINAL alternatives : to opt for prohibitions of limited duration without compensation , or to opt for prohibitions of indefinite duration with immediate payment of compensation .

NORP The NORP parliament responded to the judgments by choosing the former option and enacting , on DATE , PERSON no . CARDINAL amending LAW . By section CARDINAL(CARDINAL ) of the PERSON , when adopting a general development plan , local authorities may impose prohibitions with a view to expropriation and general prohibitions on building in respect of land owned by private persons . However , such restrictions cease to be effective after DATE if the land has not been expropriated or if no measures have been taken to implement the general development plan , such as the adoption of a detailed development plan .

Section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL also provided for a DATE extension , by force of law , of the deadlines laid down in development plans approved before the PERSON ’s entry into force . Laws nos . CARDINAL and PERSON and Legislative Decree no . CARDINAL of CARDINAL DATE extended those deadlines until the entry into force of LAW no . CARDINAL/CARDINAL ( provisions governing the right to build ) .

In judgment no . CARDINAL ORG clarified the scope of PERSON no . CARDINAL/CARDINAL , stating that , even after the PERSON ’s entry into force , the right to build remained an inherent aspect of the right of property . As regards prohibitions on building , the court held that they were still subject to the provisions of PERSON no . CARDINAL/CARDINAL ; that is to say , their validity could not extend beyond DATE if no detailed development plan was adopted .

According to legal precedent , where a prohibition on building lapses pursuant to section CARDINAL(CARDINAL ) of PERSON no . CARDINAL/CARDINAL at the end of the DATE period , the land concerned does not automatically revert to the use for which it was originally intended and is not automatically assigned the use for which the adjacent land is intended . In order to determine the intended use of the land , a positive measure such as a detailed development plan is required on the part of the administrative authorities .

Pending such a measure , the land in question is regarded , according to legal precedent , as being subject to the regulations in LAW no . CARDINAL , which apply to land in municipalities that have not adopted general development plans ( see the case - law of the PERSON , in particular judgments nos . CARDINAL/CARDINAL and CARDINAL of the full court ) .

By LAW no . CARDINAL , planning permission may be granted when certain conditions are satisfied , and only if the land is situated away from a built - up area and the volume of the projected building is very small . If the land is situated within a built - up area , no new building work is allowed .

The LOC incorporated the case - law referred to above into PERSON no . CARDINAL of CARDINAL DATE , which provides explicitly for an absolute prohibition on building where the intended use of land situated within a built - up area has not been determined .

When a prohibition on building lapses , it is for the municipal council to determine promptly the use of the land concerned ; however , no time - limits are laid down .

Inaction on the part of the authorities may form a basis for a complaint to the administrative courts ( see the judgment of the Consiglio di Stato , Section IV , DATE , no . CARDINAL ) . The administrative courts may order the municipal authorities to determine the use to which the land is to be put , although the courts are not empowered to take such a decision in place of the relevant authorities . In judgment no . CARDINAL/CARDINAL , which concerned an expropriation case in which the authorities were accused of inaction , ORG held that the remedy by which inaction on the part of the authorities could be challenged in the administrative court was inoperative and thus of limited effectiveness ( defatigante e non conclusivo con conseguente scarsa efficacia ) .

ORG has been called upon to determine whether subjecting land to the regulations in section CARDINAL of Law no . CARDINAL/CARDINAL is compatible with the LAW , seeing that those regulations give rise to an indefinite prohibition on building – on account of the authorities’ failure to determine the future use of the land ( for example , by adopting a development plan ) – and make no provision for compensation . In judgment no . CARDINAL/CARDINAL the Constitutional Court declared the question inadmissible , holding that the legislature alone was responsible for taking swift and appropriate action to remedy the situation .

In judgment no . CARDINAL ORG held that , when the DATE period laid down in section CARDINAL of Law no . DATE expired and a new development plan was necessary , the local authorities were entitled to extend a prohibition on building on public - interest grounds . This judgment therefore acknowledged the right of the administrative authorities to renew a prohibition that had lapsed .

However , their power to extend such a prohibition can not give rise to an indefinite prohibition on building without any form of compensation . Where the prohibition renders the right of property devoid of any substance on account of the considerable uncertainty created by its indefinite extension or its renewal , the owner should be awarded compensation ( see also judgments ORG . PERSON and CARDINAL of ORG , and judgment no . CARDINAL/CARDINAL of the Consiglio di Stato ( Section IV ) ) .

ORG has held that where restrictions are imposed on the right of property with a view to expropriation , even in the absence of any compensation , the owner of the land has only a legitimate interest ( interesse legittimo ) – that is to say , an individual position indirectly protected as far as is consistent with the public interest – and not a full and absolute right ( diritto soggettivo ) to compensation ( see the following judgments of ORG , sitting as a full court : no . CARDINAL of CARDINAL DATE ; no . DATE of DATE ; and no . CARDINAL of DATE ) .

Consequently , where the municipal authorities have decided to impose a prohibition on building , the owner of the land in question may apply to the administrative courts for a ruling as to whether the authorities , in exercising their discretionary power , have complied with the statutory regulations and have not overstepped the margin of appreciation they enjoy in assessing the balance between public and private interests . However , even if the administrative courts overturn a prohibition on building , no compensation is payable where the prohibition was imposed for a specified period , particularly if it is subject to the DATE time - limit laid down in LAW no . CARDINAL .

In judgment no . CARDINAL of DATE ORG , reiterating the principles established in its case - law ( see the judgments cited above in paragraph CARDINAL , and also nos . CARDINAL/CARDINAL , CARDINAL/CARDINAL and CARDINAL ) , declared unconstitutional the lack of statutory provision for compensation in cases where an authority for expropriation or a prohibition on building had been renewed by the administrative authorities with the result that the right of property was severely affected . Restrictions on the right of property were problematic where a prohibition had been renewed or extended indefinitely or had been renewed several times for a specified period .

Leaving intact the right of the authorities to renew prohibitions on building , ORG held that there was a need for legislation providing for a form of compensation and specifying the criteria and arrangements for its award .

It did not rule out the possibility that a court dealing with an application for compensation before such legislation had been enacted might derive criteria for awarding compensation , where appropriate , from the existing legal system .

ORG also pointed out that the requirement to pay compensation applied only to the time after DATE of the prohibition ( the exemption period ) .


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

On DATE the applicant was informed that he was the subject of a criminal investigation and placed in pre - trial detention on the charge of indecent assault by a person abusing the authority conferred on him by his duties . He was accused of indecently assaulting a woman patient during a vaginal and rectal examination while he was a houseman at a hospital in GPE .

The applicant was released under judicial supervision on DATE . He was required not to enter the urban district of GPE , save in obedience to a summons ; to report once DATE to GPE police station ; to hand over his passport and identity card to the registry of the investigating judge ; to refrain from entering into contact with the victim ; and to deposit MONEY ( FRF ) with the registrar of the criminal court .

An order of CARDINAL DATE partially modifying the conditions of judicial supervision enabled the applicant to travel to GPE DATE . A second application for modification of the conditions of judicial supervision , whereby the applicant sought permission to begin a DATE course of study in GPE , was refused by the investigating judge in a decision of CARDINAL DATE .

By an order dated CARDINAL DATE , the applicant was committed for trial in ORG .

After his trial on DATE , which the applicant attended in person , ORG sentenced him to CARDINAL GPE imprisonment , with one of those DATE suspended , and ordered him to pay ORG CARDINAL in damages to the civil party . The applicant was not present when judgment was delivered on DATE .

In a judgment of CARDINAL DATE ORG , after a hearing which was also attended by the applicant , upheld the impugned judgment with regard to the finding of guilt but increased the sentence to CARDINAL years’ imprisonment , with CARDINAL of those years suspended , and the damages awarded to the civil party to ORG CARDINAL,CARDINAL . It did not issue a warrant for the applicant ’s arrest .

On DATE the applicant gave notice of an appeal on points of law against the above judgment .

By a letter of DATE , sent to his home in GPE , the applicant was informed by ORG at ORG that he was required to surrender to custody on DATE before the hearing in ORG at the latest , pursuant to LAW , and that the hearing in ORG had been set down for DATE .

By a request submitted through his lawyer on DATE , the applicant applied to ORG , under LAW , for exemption from the obligation to surrender to custody before the hearing at which his appeal on points of law was to be examined by ORG .

In support of the above request the applicant , who had returned to GPE after ORG judgment of DATE , produced a medical certificate dated DATE from a professor at a GPE hospital which stated that he had bacilliform pulmonary tuberculosis , first diagnosed in DATE . This required him to take sick - leave from work and rest for DATE , the time needed for intensive treatment of the contagious disease .

The applicant asserted that in those circumstances he could not leave NORP territory , that his state of health excluded any possibility of his undergoing imprisonment and that making the admissibility of his appeal on points of law depend on his prior incarceration breached LAW .

In a judgment of DATE , following a hearing which the applicant did not attend , but at which he was represented by his lawyer , ORG , rejecting ORG submissions , refused the request on the following grounds :

“ Although the medical certificates produced show the onset of bacilliform pulmonary tuberculosis in DATE , and the prescription of CARDINAL months’ rest from DATE onwards , they do not establish either that it is impossible for Mr GPE to travel and to follow a course of treatment appropriate to his condition in GPE or that any possibility of imprisonment is excluded , as alleged . Article CARDINAL § CARDINAL ( c ) of the ORG does not give defendants the right to decline to appear before the courts but only the right , if they do appear , to defend themselves in person or with the assistance of a lawyer . Consequently , the provisions of LAW do not appear to be contrary in any way to the principles set out above ... ”

In a judgment of CARDINAL DATE ORG declared the applicant ’s right to appeal on points of law forfeit , on the ground that he had not surrendered to custody and had not obtained an exemption from the obligation to do so .

The relevant provisions of LAW are the following :

“ Judgments of indictment divisions , and judgments delivered in connection with serious crimes , lesser indictable offences and summary offences against which no ordinary appeal lies , may be quashed in the event of a breach of the law on an appeal on points of law lodged by ORG or by a party affected to his detriment ...

The appeal must be lodged with ORG . ”

The cases where an appeal on points of law lies for a breach of the law are listed in ORG CARDINAL and CARDINAL as : failure to give reasons , exceeding authority , failure to reply to submissions and , where lesser indictable offences are concerned , imposition of a penalty not prescribed by law .

“ During the time allowed for an appeal on points of law and , where such an appeal has been lodged , until ORG delivers judgment , execution of the judgment of the court of appeal shall be stayed , except in respect of orders concerning civil matters , and unless the court of appeal upholds the warrant issued by the trial court pursuant to LAW , first sub - paragraph , or unless it issues a warrant itself under the same conditions and according to the same rules . ”

“ If a person sentenced to a term of imprisonment of DATE has not surrendered to custody and has not obtained from the court which convicted him , with or without payment of a surety , exemption from the obligation to surrender to custody , his right to appeal on points of law shall be forfeit .

The memorandum of imprisonment or the judgment granting exemption shall be produced before ORG not later than the time when the case is called for hearing .

For his appeal to be admissible , it is sufficient for the appellant to establish that he has surrendered to custody at a prison , either in the place where ORG sits or in the place where sentence was passed . The governor of that prison shall admit him there on the order of ORG at ORG or of the head of the public prosecutor ’s office at the court of trial or appeal . ”

Article CARDINAL of the Code of Criminal Procedure has been amended by Law no . CARDINAL of DATE , which increased the length of the term of imprisonment contemplated therein from DATE . The rest of Article CARDINAL is unchanged .

Law no . CARDINAL - CARDINAL also added to the Code a new LAW , which provides :

“ The provisions of LAW are not applicable where a court has convicted a defendant in his or her absence after refusing to apply LAW . In such a case an appeal on points of law lies only in respect of the legality of the decision in which the court refused to recognise the validity of the excuse put forward by the defendant pursuant to LAW in accordance with LAW . ”


No violation of Art. 6-1;Remainder inadmissible

The applicant was born in DATE and lives in Split .

The applicant was a holder of a specially protected tenancy on a flat in ORG . Under the legislation in force , all holders of specially protected tenancies were entitled to buy their flats under favourable terms , provided that they purchased CARDINAL flat . In DATE the applicant purchased that flat and subsequently donated it to her son .

The applicant ’s late husband had a specially protected tenancy on another flat in ORG . He died in DATE , before he could exercise the right to purchase that flat .

The applicant , as her husband ’s heir , instituted administrative proceedings for acknowledgment of her specially protected tenancy . Her tenancy on the second flat was acknowledged on DATE .

On DATE the applicant instituted civil proceedings in ORG ( PERSON ) , requesting the court to order GPE to conclude a flat purchase agreement with her .

On DATE the applicant filed a motion for withdrawal of the first - instance judge . On DATE her motion was dismissed because there was no evidence that the judge was biased .

On DATE ORG dismissed the applicant ’s claim . It found that the applicant had already bought CARDINAL flat as a holder of a specially protected tenancy and that she had no right to buy another one .

On DATE ORG ( PERSON ) dismissed the applicant ’s appeal for the same reasons .

In DATE the applicant proposed to the competent ORG Attorney ’s ORG ( ORG odvjetništvo ) to file a motion for the protection of legality ( zahtjev za zaštitu zakonitosti ) , an extraordinary remedy under the domestic law . Her proposal was denied on DATE .

Meanwhile , on DATE the applicant also filed a constitutional complaint claiming that ORG and ORG , in their judgments of CARDINAL DATE and DATE , had violated her right to respect for home and property .

The Government submit that throughout the proceedings the applicant was filing various submissions to ORG ( Ustavni sud PERSON ) . In CARDINAL of them , a letter dated DATE , the applicant requested ORG to “ terminate all judicial actions and remand the case to the ORG ” . Further letters of the applicant , from DATE , consisted of rush notes .

On DATE ORG dismissed her complaint as ill - founded .

The Specially Protected Tenancies ( Sale to Occupier ) Act ( Zakon o prodaji stanova na kojima postoji stanarsko pravo , Official Gazette no . CARDINAL with further amendments ) ( “ the LAW ” ) regulates the conditions of sale of flats let under specially protected tenancies . LAW entitles the holders of specially protected tenancies on publicly - owned flats to purchase such flats under favourable conditions , provided that each holder buys CARDINAL flat .