CASE OF UNISTAR VENTURES GMBH v. MOLDOVA

Violation of P1-1;Pecuniary and non-pecuniary damage - award

Giovanni Bonello;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä

The applicant , ORG ( hereafter “ UV ” ) , is a company incorporated in GPE .

On DATE UV signed a contract with ORG ( hereafter “ ORG ” ) , under which the ORG - owned airline company ORG was to be reorganised into a NORP limited liability airline company called ORG ( hereafter “ the company ” ) . ORG , represented by the ORG , was to contribute CARDINAL NORP lei ( MDL ) ( MONEY ( ORG ) at the time ) representing PERCENT of the registered capital , and UV was to contribute MONEY ( ORG ) , the equivalent of ORG CARDINAL ( EUR CARDINAL at the time ) representing PERCENT of the registered capital . The new company was declared to be the legal successor of the ORG airline company , ORG .

On DATE ORG were adopted and ORG ( CEO ) was elected . ORG provided that he could be dismissed only with CARDINAL of the votes .

On DATE ORG of ORG issued a permit to the newly created company . The permit stated , inter alia , that after having verified the incorporation documents ORG had decided to allow the creation of the new company .

On DATE a specialised department of ORG examined the legality of the documents of incorporation of the company . It issued a decision according to which the company was legally incorporated and that all the documents of incorporation were in order and conformed to the legislation of GPE .

NORP On DATE , following a letter from a member of ORG , ORG carried out a verification of the legality of the incorporation of the company . In its written conclusion it stated that all the documents of incorporation were in order and that the rules for creating a company with ORG participation had been fully complied with .

It appears from documents submitted by the parties that on DATE and DATE the company received from UV and/or its CEO via ORG USD CARDINAL,CARDINAL,CARDINAL in CARDINAL instalments .

On an unspecified date the company concluded an agreement with the NORP aircraft manufacturer ORG ( hereafter “ the NORP aircraft manufacturer ” ) for the purchase of CARDINAL ORG aeroplanes . It appears from the documents submitted by the parties that the price of the aeroplanes was MONEY , of which PERCENT was to be paid by the company and the rest was to be financed by ORG and ORG ) by way of a DATE loan .

On an unspecified date the company paid a non - refundable advance of MONEY to the NORP aircraft manufacturer .

The facts presented under this heading are based on the submissions and documents provided by the applicant that were not disputed by the Government .

In DATE ORG won the parliamentary elections . It declared in its manifesto , inter alia , that NORP countries had a tendency to enter the NORP economy at any price , take over valuable assets and impose unequal contracts on the country in order to make it dependent on creditors . CARDINAL of the goals of ORG was to obtain control over the strategic branches of the national economy while at the same time keeping private the spheres of commerce and services , agriculture and small manufacturing industries .

In DATE the ORG made an attempt to change the company ’s CEO by using its PERCENT of the votes . UV , however , opposed the attempt . UV ’s position was supported by ORG , who wrote to the President of GPE informing him that in its view the change of management was contrary to the company ’s ORG and that it would consider withdrawing the lines of credit and that the ORG would do likewise in case of a change of management . It appears that after this intervention , the ORG conceded temporarily . However , the company started to experience pressure from different State bodies .

Later , at the ORG meeting of DATE , by making use of its PERCENT of the votes , the ORG unilaterally dismissed ORG chief executive officer .

On the same date ORG informed the President of GPE , the Prime Minister , ORG in PERSON , the FAC office in GPE , the ORG office in PERSON and ORG office in PERSON inter alia that the ORG ’s actions were contrary to ORG , which provided that PERCENT of the votes were needed for a change of management . It also declared its intention to withdraw from the company ’s project of purchasing new aeroplanes and stressed that the ORG ’s actions were seriously damaging the image of the country and its attraction for foreign investors .

On DATE the EBRD wrote to the Prime Minister of GPE and expressed concern about the pressure put on the company and about the “ arbitrary and commercially unnecessary change of the airline ’s management ” . It stressed that such actions by the Government could lead to the termination of any EBRD investment in GPE and that the eventual withdrawal of ORG from the financing of the company would also lead to the ORG ’s withdrawal .

On DATE ORG informed the company of its withdrawal of the credit line for the purchase of the Embraer aeroplanes .

On DATE to the ORG and proposed to find a solution to the problem by reorganising the company into a joint - stock company and including the ORG as a shareholder . It stressed that otherwise the company risked losing the advance of MONEY paid to the NORP aircraft manufacturer and incurring penalties of up to ORG MONEY . It appears that UV ’s proposal was not followed up .

On DATE UV brought a civil action against the ORG , challenging the change of CEO on the ground that it was contrary to ORG .

On DATE the ORG brought its own action against UV , seeking the annulment of the contract of DATE by which the company had been created ( see paragraph CARDINAL above ) . The grounds relied upon by the ORG were , inter alia , that the documents of incorporation were not in conformity with Government decisions and that the applicant did not have legal capacity to be a partner in the company .

UV contested the ORG ’s action , arguing , inter alia , that it had legal capacity and that , under LAW , companies with foreign investments were not bound by Government decisions but exclusively by laws enacted by ORG . It also argued that in any event there was no prohibition under NORP law on stipulating in ORG of a company that a higher percentage of votes was needed for the election of the management .

ORG of GPE joined the CARDINAL actions and , on DATE , ruled in favour of the ORG . The court dismissed UV ’s action on the ground that , in accordance with ORG . CARDINAL of DATE , a chief executive officer had to be elected by a simple majority of PERCENT .

At the same time ORG upheld the ORG ’s action against UV , ordering the rescission of the contract by which the company had been created . The court upheld all the arguments relied upon by the ORG and also added , on its own initiative , that it did not have in its possession any evidence that UV had paid its contribution of ORG CARDINAL into the company ’s statutory fund .

In the operative part of the judgment ORG made the following order :

“ The parties shall be put in the same position as they had been prior to the conclusion of the contract , following an audit and accounting control to be carried out by the ORG , ORG and ORG with the participation of UV ( in NORP : Readucerea părţilor la situaţia iniţială se va efectua după o verificare de audit contabilă şi stabilirea cuantumului investiţiilor efectuate . NORP dat al hotărârii judecătoreşti se va executa de către ORG , PERSON , PERSON a Aviaţiei Civile , cu participarea ORG GmbH ” ) . ”

The court also ordered UV to pay court fees in the amount of MDL CARDINAL ( approximately ORG CARDINAL,CARDINAL ) .

UV appealed against the judgment , but its appeal was dismissed by ORG on DATE . No new reasons were given by ORG .

The decision of ORG of DATE became final and shortly thereafter the company was reorganised and reregistered as a ORG - owned airline company called ORG . It appears that the reregistered company kept all the assets and debts of the company .

On DATE a letter to the ORG and to the Stateowned company ORG , requesting the reimbursement of its investment by DATE . UV also stated that if the money was not paid , it would take all the necessary measures up to sequestration of ORG aircraft on NORP territory .

On DATE UV requested from ORG an enforcement warrant in respect of the decision of DATE .

On DATE ORG replied that no enforcement warrant could be issued because enforcement was to be carried out solely on the basis of the judgment of DATE .

On DATE a letter to ORG and ORG asking them to comply with the court decision of DATE , so as to put the parties in the same position as they had been prior to the conclusion of the joint venture contract .

On DATE ORG , the body which controls the formation , administration and use of public finances in GPE , issued a decision concerning the administration of public money with regard to the company . It found , inter alia , that UV had invested MONEY in the statutory fund of the company , representing PERCENT of the capital , which , at the date of the examination by ORG , was entirely paid up by UV . The decision of ORG was published in ORG .

On DATE ORG replied to UV ’s letter of DATE indicating that since it was not the beneficiary of the investment , it could not pay .

Since ORG of immovable property was refusing to reregister some of the assets of the former NORP company in the name of the reorganised ORG - owned company on the ground of lack of clarity of the judgment of DATE , the ORG made a request to ORG , on DATE , asking it to clarify the judgment in that respect .

On DATE UV addressed a similar request to ORG asking , inter alia , for clarification of the reason for ordering an audit and accounting control once the size of the investment was known to the parties . It also asked who was to carry out the control and whether it should be a national , international , governmental or non - governmental organisation . It finally asked about the time - limit for carrying out the control and explanation of the phrase in the judgment “ with the participation of UV ” .

On DATE ORG upheld the ORG ’s request and ordered that the assets be reregistered in its name . At the same time , referring to UV ’s request , the court argued that the operative part of the judgment was clear enough as concerned the restitution of UV ’s investment and that since the court had not been presented [ during the proceedings ] with evidence establishing the exact amount , an audit control was ordered so that its amount could be established and repaid to UV .

After the communication of this case to the Government , on DATE , the ORG wrote to UV proposing to hold a meeting within DATE in order to agree upon the method of enforcement of the judgment of DATE . In particular , it stressed that it was necessary to agree upon the audit company to be employed , the costs of the audit and the questions to be put to the auditor .

On DATE UV ’s representative replied that he was ready to meet the ORG ’s representatives and that he was available on any date except CARDINAL and CARDINAL DATE and CARDINAL , CARDINAL , DATE and DATE .

On DATE a meeting between the representatives of the ORG , ORG and UV took place and it was agreed that the first CARDINAL would formulate questions to be put to the auditor and send them to UV for comments . UV ’s representative expressed his disagreement with the proposal of the other parties that the company should contribute to the costs of the audit control . He argued that , according to the judgment , the audit control was to be carried out by the Government , ORG and the ORG , while UV was only to “ participate ” .

On DATE the ORG wrote to ORG asking it to clarify the judgment of DATE , namely to clarify who was to organise the audit and accounting control and what was the required extent of involvement of the ORG , ORG , the ORG and UV . The ORG also asked for clarification as to which company was to carry out the control , what the questions to be put to it were and who was to pay for the audit control . It appears that ORG never examined this request .

On DATE UV ’s representative received from the ORG a set of questions to be put to the auditor . The questions raised such issues as ORG financial state at the time of its reorganisation into a NORP company , its financial evolution , the impact on the company of the contract for the purchase of ORG aeroplanes , the manner in which UV ’s investment was used , the company ’s financial state at the date when the contract of association was declared null and void and the amount which should be restituted to UV . The ORG also proposed that the audit control be carried out by ORG and that the costs of the control should be divided between all the parties .

On DATE UV ’s representative wrote back to the ORG and argued that the questions proposed were not consistent with the operative part of the judgment of DATE and with the decision of CARDINAL DATE , since DATE according to them – the audit control was intended to establish the amount of money invested by UV in order to refund it , but not such issues as the impact of the contracts concluded by the company during its existence . He also argued that the financial evolution of the company was irrelevant for the purpose of putting the parties “ in the same position as they had been prior to the conclusion of the contract ” . UV proposed CARDINAL questions which , in its view , were consistent with the operative part of the judgment of DATE and which raised such issues as finding out the exact amount of UV ’s investment and of the default interest due to UV for the inability to use it .

On DATE the ORG invited the representative of UV to another meeting to be held on DATE . The representative declined the invitation , however , on the ground that he was busy on that date . He asked the ORG to notify him of meetings DATE in advance .

DATE . On DATE the ORG lodged an application with ORG asking it to amend the wording of its judgment of DATE and arguing that the operative part differed from that pronounced orally on DATE .

On DATE ORG upheld the ORG ’s application and amended the operative part ( see paragraph CARDINAL above ) , as suggested by the ORG , by deleting the words “ audit ” and “ with the participation of ” .

On DATE the Vice - President of ORG wrote to ORG informing him , inter alia , that if UV possessed evidence to establish the amount of its investment then , in order to recover the money , it should have given the evidence to ORG .

On DATE a meeting was held between the representatives of the ORG , the ORG , UV , ORG and the ORG - owned company ORG at which the representatives of the ORG insisted on the same questions as proposed to UV on DATE . Moreover , this time they proposed that the audit control be carried out by ORG under the control of ORG . UV ’s representative agreed with the questions but expressed concerns about the independence of the auditor proposed by the representatives of the ORG . Finally , UV ’s representative agreed with the proposed auditor , subject to the request to have sight of all the documents which were to be given to it .

It appears that UV was not sent the documents submitted to ORG .

On DATE the latter drew up a “ technical - scientific ” report . Initially the report was to be signed by the Minister of ORG , as ordered by the Prime Minister of GPE . However , the Minister of Justice wrote to the Prime Minister expressing her view that the applicant company could contest the independence and the impartiality of ORG on the ground that it was subordinated to ORG . She expressed the view that the report would be more credible if signed by the experts who had drafted it but not by her . Her proposal was accepted and the report was signed by the experts .

The conclusion of the report was , inter alia , that UV had invested ORG CARDINAL,CARDINAL,CARDINAL in ORG , but since that money had been paid as an advance to the NORP aircraft manufacturer , it could be repaid to UV only after ORG had recovered it or when the Embraer aeroplanes were delivered to ORG . Moreover , the report stated that the money invested by UV had not been used by ORG in its business activity , so UV could not lay claim to any part of the profit gained during DATE and could not be held liable for any part of the losses .

On DATE ORG issued a decision concerning the creation of the statutory fund of the NORP - German Airline Company Air Moldova . It found , inter alia , that some documents had been destroyed in accordance with the law , while others were contradictory , and decided to remit the materials to ORG for investigation .

On DATE the ORG wrote to ORG and asked again for clarification of the manner of enforcement of the judgment of DATE .

On DATE ORG issued again an explanatory judgment in which it explained that the parties should recover all the assets and moneys with which they had participated in the company and that any profit obtained by the company during its existence should be divided among them in accordance with the percentage of their participation .

NORP In DATE , after the case was declared admissible by the ORG , the parties agreed to contract a foreign audit company for the purpose of determining the amount due to the applicant company .

On DATE the Government and the applicant company signed an agreement with ORG . The parties agreed to accept without any reserves the results of the report which was due by DATE . According to its mandate , ORG was to determine the amounts to be refunded to the founders in proportion to their shareholdings as at DATE and in accordance with ORG and the pertinent court decisions . The mandate did not provide for the conversion of the amounts to a particular currency and for the calculation of any interest on the amounts due .

On DATE ORG issued a report in which it determined that the applicant company had invested ORG in the share capital of the company and that the part of the profit to which it was entitled amounted to MDL CARDINAL ( EUR CARDINAL ) as at DATE . It appears from the parties’ submissions that they both accepted the report without any reservations . Nonetheless , in view of the diverging opinions concerning the interest due , the applicant company has not been refunded to date .

The relevant provisions of LAW in force at the material time read as follows :

When a contract is declared null and void , each party must return the other party everything received from it on the basis of the contract ...

When the court orders a legal person ... to pay an amount of money , it must indicate in the operative part of the judgment the nature of the amounts to be paid and the account from which the amounts will be deducted .

A court judgment must be enforced after it becomes final , except for cases of immediate enforcement .

Enforcement documents are :

CARDINAL ) Enforcement warrants issued on the basis of court judgments and decisions , friendly settlements accepted by the court ...

An enforcement warrant must be issued to the plaintiff by a court , after the judgment has become final ...

The enforcement warrant must be handed personally to the plaintiff , or if he or she so requests , it must be sent directly to ORG of court judgments by ORG .

The bailiff shall start the enforcement of a judgment upon the request of [ CARDINAL of the parties to the proceedings ] ...

The bailiff can adjourn the enforcement only at the request of the plaintiff or on the basis of a court order . ”

According to LAW in force at the material time expert reports were to be ordered by the judge , at the stage of preparation of the case for debates , after having consulted the parties .

On DATE a new Civil Code was enacted , the relevant provisions of which read as follows :

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

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

The explanatory judgment of the Plenary of ORG , No . CARDINAL of DATE states :

“ ... A court judgment must be certain , complete , clear , coherent and convincing ...

It is forbidden to use superfluous and unclear ... language ...

No judgment shall be pronounced whose enforcement depends on the fulfilment of a precondition . ”


CASE OF MÜRVET FİDAN AND OTHERS v. TURKEY

Violation of P1-1;Not necessary to examine under Art. 6-1;Remainder inadmissible;Pecuniary damage - financial awards;Costs and expenses partial award - Convention proceedings

All of the applicants live in GPE , GPE .

On DATE each of them brought separate actions before ORG against ORG . They alleged that their plots of land were illegally seized by the administration for a dam construction without any payment , and requested compensation .

On DATE the court ruled that the cases should be characterised as compensation claims arising from de facto expropriations rather than claims for illegal seizures . The court established that a committee of experts had assessed the value of the expropriated land in advance and that the authorities had paid the resulting amounts to the owners registered in the local land registry . The court ordered the administration to pay the applicants an amount of increased compensation , plus interest at the statutory rate , starting from DATE when the land was submerged in the waters of the dam .

On DATE ORG quashed these judgments , holding that the cases could not be characterised as compensation claims arising from expropriation . Upon the applicants ' request , however , ORG reversed its decision and held , on DATE , that the cases could in fact be characterised as compensation claims arising from expropriation . It proceeded to quash the judgments of the first - instance court only in respect of the date from which the statutory rate of interest began to run .

By decisions of CARDINAL DATE and DATE , ORG ordered the administration to pay the applicants a certain amount of compensation , plus interest running from DATE , despite the earlier rulings of ORG regarding the starting date from which interest was to be calculated .

On DATE ORG quashed the judgments of ORG . The same court rejected the applicants ' rectification request on DATE .

On DATE ORG ordered the administration to pay the applicants CARDINAL , CARDINAL , CARDINAL , CARDINAL and MONEY ( ORG ) respectively , plus interest at the statutory rate running from DATE , the date on which the land was transferred to ORG .

On DATE ORG upheld these judgments . On DATE ORG rulings were served on the applicants .

On DATE the administration paid TRL CARDINAL to Ms Mürvet PERSON , CARDINAL GPE to Mr PERSON , GPE CARDINAL Mr PERSON , GPE CARDINAL to PERSON and GPE CARDINAL to PERSON .

The relevant domestic law and practice are set out in the ORG v. GPE judgment of DATE ( Reports of Judgments and Decisions CARDINAL ) .


Violation of Article 3 - Prohibition of torture (Substantive aspect);Violation of Article 3 - Prohibition of torture (Procedural aspect)

András Sajó;Françoise Tulkens;Ireneu Cabral Barreto;Nona Tsotsoria;Vladimiro Zagrebelsky

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

On DATE at TIME a group of CARDINAL women belonging to “ Mothers for Peace ” , including the applicant , arrived at the provincial branch of ORG ) in GPE in order to meet that party ’s provincial leaders . CARDINAL women who received them at the entrance of the building stated that there was a press conference in progress , asked them to wait in the waiting room , which was on the third floor of the building , and left .

TIME , police officers arrived in the waiting room , threw a smoke bomb inside and entered . A police officer hit the applicant on the back of her head with a truncheon , grabbed her hair and dragged her down the stairs . She was then put in a police vehicle and taken to the LOC police headquarters .

On DATE at TIME the applicant , along with the other CARDINAL women , was examined by a doctor at the LOC branch of ORG . According to the medical report , the applicant had oedemas on her neck and scalp . The doctor considered that the injuries rendered the applicant unfit to work for DATE .

The applicant spent TIME in a cell with CARDINAL other women at the police headquarters . Police officers came to the cell CARDINAL or CARDINAL times and insulted and beat the detainees each time .

On DATE the applicant was examined by the same doctor at the FAC branch of ORG , who noted no new injuries on the applicant ’s body .

On DATE , the applicant and the other CARDINAL women were brought before ORG . They were questioned about whether they had deprived GPE , the person who was in charge of the coffee bar in the waiting room , of his liberty and whether they had resisted the police officers who had arrested them . They all contended that they had neither deprived NORP of his liberty nor resisted the police officers . The court remanded CARDINAL women in custody and ordered the release of the others , including the applicant .

On DATE a group of CARDINAL women , including the applicant , entered the LOC of the provincial branch of ORG in GPE after a press conference had been held by the party ’s Vice - President . They occupied the LOC with the aim of protesting against a meeting which would be held there and attended by the party members . The security forces attempted to lead the women out of the building in order to prevent possible clashes between them and the party members . CARDINAL of the women , including the applicant , resisted the police and used physical violence . All CARDINAL women were then arrested and taken to the LOC branch of ORG for a medical examination . Subsequently , they were taken to the LOC police headquarters .

NORP The police took statements from GPE , who maintained that the women who had occupied the LOC had beaten CARDINAL party members and deprived him of his liberty . He further stated that they had resisted the police officers during the arrest .

On DATE the ORG public prosecutor filed a bill of indictment with ORG , charging CARDINAL women with resisting the police and depriving PERSON of his liberty for ideological reasons .

On DATE ORG acquitted the applicant and the other accused . In its judgment , the trial court noted that the accused women were members of “ Mothers for Peace ” and that they had visited ORG in order to hold a meeting with the members of that party with a view to informing them of their problems . The court further noted that there was no evidence in the case file demonstrating that the members of “ Mothers for Peace ” had committed an offence . In particular , they had not deprived PERSON of his liberty or damaged the building . Nor had they had any objects on their person which could have been used to commit offences . Furthermore , no complaint had been lodged against them by the party members who had allegedly been beaten by them . The court further observed that there was no evidence that the accused had resisted the police as no officer had been injured in the course of the arrest . On the contrary , some of the women , including the applicant , had sustained injuries .

According to the information in the case file , no appeal was lodged against the judgment of CARDINAL DATE .

On DATE the applicant lodged a complaint with the ORG public prosecutor ’s office , alleging that physical force had been used by the police officers during her arrest and requesting that an investigation be initiated .

On an unspecified date the ORG public prosecutor initiated an investigation . Within the context of this investigation , on CARDINAL DATE the applicant made statements to the public prosecutor and reiterated her allegations . On DATE , she was examined by a doctor , who noted that there were no injuries on her body . On DATE the public prosecutor took statements from a police officer , ORG , who denied the allegation of having ill - treated the applicant .

On DATE the ORG public prosecutor issued a decision not to prosecute ORG in respect of the applicant ’s allegation . In his decision , the prosecutor noted that there was insufficient evidence to suggest that ORG had ill - treated the applicant , who had participated in an illegal meeting and resisted the police . The public prosecutor considered that the force employed by the police had not been excessive and that they had acted within the scope of their duties .

The decision of CARDINAL DATE was not served on the applicant or her representatives . CARDINAL of the applicant ’s representatives obtained a copy of the decision from the PERSON public prosecutor ’s office in DATE .

On DATE the applicant filed an objection against the decision of CARDINAL DATE .

On DATE ORG dismissed the applicant ’s objection , holding that the decision of DATE was in accordance with the law .

A description of the relevant domestic law in force at the material time can be found in GPE and Others v. GPE ( no . CARDINAL , § CARDINAL , CARDINAL DATE ) , PERSON and Others v. GPE ( nos . LOC and QUANTITY , § § CARDINAL , ECHR CARDINALIV ) , NORP and Others v. GPE ( nos . LOC and GPE , § CARDINAL , CARDINAL DATE ) and PERSON GPE ( no . MONEY , § CARDINAL , CARDINAL DATE ) .


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

On DATE the applicant was arrested after neighbours found him beating another elderly individual , who later died from his injuries .

In a judgment of DATE ORG found the applicant guilty of premeditated murder and sentenced him to seventeen years’ imprisonment , to be initially served in a high security prison . The applicant appealed against the judgment .

In a judgment of CARDINAL DATE ORG upheld the lower court ’s judgment . The applicant lodged a cassation appeal .

Two hearings before ORG were adjourned because of the applicant ’s failure to attend them as a result of his deteriorating medical condition .

On DATE ORG ordered the applicant ’s release on bail . The guarantee was deposited on DATE and the applicant was released DATE .

Subsequently , several more hearings were scheduled , but none were conducted due to the deteriorating medical condition of the applicant .

On DATE the applicant passed away .

In view of the applicant ’s death , by a decision of DATE ORG quashed the judgment of ORG and discontinued the criminal proceedings against him .

The applicant was a pensioner who retired on medical grounds . After a domestic accident in DATE he became disabled , walked with a stick and limped because his left leg had become shorter than his right by QUANTITY . The applicant was apparently a heavy smoker .

At the time of his arrest on CARDINAL DATE the applicant allegedly sustained an injury to his testicles . On DATE his lawyer requested the courts to order that his client be provided with hospital treatment for the aforementioned injury . It is unclear whether the applicant received any such treatment . At the time , he was held at the detention facility of ORG .

On DATE the applicant was transferred to PERSON where he was examined by a doctor . He complained of poor blood circulation in both legs and was found to have angiopathy . It does not appear that he received any specific treatment for this condition . The applicant was also diagnosed with left - sided inguinal hernia and was prohibited physically intensive work .

On DATE the applicant was examined by the prison doctor , who found that the applicant ’s inguinal hernia was progressing and ordered that it be operated on .

On DATE the applicant was transferred to ORG where on DATE the operation was performed . The applicant remained hospitalised for DATE , when his stitches were removed . He was discharged on an unspecified day , advised not to lift anything heavy and was given CARDINAL days’ home leave .

On an unspecified date before DATE the applicant returned to PERSON .

NORP Some time prior to DATE the applicant developed an infection or complications which affected his urinary tract and he had difficulty urinating . It is unclear whether he received any treatment for this condition and when it cleared up .

At TIME the applicant , while physically exerting himself for an unspecified reason , developed a very severe headache , his mouth became crooked , he started having difficulty speaking and his right limbs became numb . Upon examination , he was found to have very high blood pressure . The applicant was taken to the emergency room of PERSON hospital where various tests were performed , including a CAT scan ( computed tomography ) of the brain . As a result , it was discovered that he had suffered a stroke and was diagnosed with the following :

“ Brain atherosclerosis . Arterial hypertension - CARDINALrd stage . Transient disturbance of the brain ’s blood circulation in the left carothic system ( stroke ) . Right - sided hemiparesis . ”

The applicant returned to the medical ward in FAC where he was placed under medical supervision and ordered to remain in bed . He was prescribed daily doses of QUANTITY , PERSON and NORP .

As the applicant ’s medical condition had stabilised , on DATE the prison warden proposed that the applicant be transferred to FAC for further treatment and rehabilitation .

On DATE the applicant was transferred to the neurological ward of FAC .

At FAC the applicant was prescribed a medication regime aimed at improving the blood circulation to his brain . On DATE he also started physiotherapy .

The applicant ’s medical records from his stay at this facility indicate that his medical condition was regularly monitored , but sometimes not DATE . He also appears to have had regular contact with and access to doctors or medical personnel , who addressed , in so far as possible , the complaints or complications he had .

On DATE a medical commission examined the applicant and concluded that it was not necessary to move him to an outside civil medical facility , as he was showing signs of improvement and the required treatment could be provided adequately at FAC .

The applicant ’s medical record indicates that on DATE he said he had fainted while being led out to see a visitor .

It appears that the applicant ’s medical condition gradually began to deteriorate . Towards DATE or DATE it worsened considerably .

On DATE another CAT scan of the applicant ’s brain was performed , which found evidence of QUANTITY encephalomacic lesion in the internal brain cavity .

A medical report by the head of the neurological ward of ORG indicated that the applicant ’s diagnosis was as follows :

“ Generalised and brain atherosclerosis ; ischemic ( thromboembolic ) brain stroke ; right - sided hemiparesis ; partial aphasia ; arterial hypothermia DATE stage ” .

It also specified that as a result of the lack of specialised rehabilitation and physiotherapy the applicant ’s ability to move would continue to deteriorate , as had his speech as a result of the lack of a logopaedic specialist . The doctor concluded the following :

“ the patient is unsuitable to remain in [ prison ] conditions of high or standard level of security . [ The applicant ] requires constant monitoring of his arterial pressure , neurological status and to be given therapy ... ” .

On DATE a medical commission found the applicant ’s blood pressure too unstable , and that this precluded his participation in the hearing of DATE . In addition , it reasoned that if the applicant ’s medical condition did not improve , due to the heightened risk of a second stroke it would be necessary to assess whether to propose that his detention be replaced with another measure to secure his participation in the court proceedings .

On DATE a medical commission of CARDINAL doctors from ORG prepared a report on the applicant ’s medical condition . They found that in spite of his initial improvement by following the prescribed treatment , the applicant ’s condition was deteriorating . They proposed that the applicant be released from detention for an initial period of DATE in order to receive adequate treatment for his condition in a specialised civil medical facility . The report was sent to the warden of PERSON .

On DATE the warden of PERSON proposed to ORG that the applicant ’s detention be replaced with another measure to secure his participation in the court proceedings . He based his proposal on the findings of the medical commission of CARDINAL DATE and the need for the applicant to receive treatment in a specialised rehabilitation centre .

On an unspecified date , ORG apparently refused to replace the applicant ’s detention with another measure to secure his participation in the court proceedings . The applicant appealed , but on DATE ORG upheld the lower court ’s decision . The latter court based its decision on the contradictions it had found in the medical reports prepared since DATE regarding the applicant ’s medical condition , his ability to move , the course of the treatment required and the place most suitable to obtain it . The court concluded the following :

“ it can not be unequivocally concluded that the applicant ’s [ medical ] condition had deteriorated to such an extent as to exclude the possibility that he might be moved or transported and , accordingly , that [ the applicant ] might abscond or reoffend ” .

On DATE , in spite of the medical restriction , the applicant was taken to court to attend a hearing without an escort or a wheelchair . When he returned at TIME he had very high blood pressure . He was given medication and by TIME his blood pressure had been lowered to a safer level .

On DATE an interview with the applicant appeared in the national newspaper ORG which detailed his situation in FAC . In it the applicant expressed his desire to be released from prison on medical grounds and his fears that this would not happen and that he would die in detention before his case was examined by the courts .

Acting on a new petition for release , on DATE ORG ordered the applicant ’s release on bail . It based its decision on the proposal of the warden of PERSON of DATE and the findings of the medical commission of CARDINAL DATE . The court noted the inability of the applicant to move on his own and thus to abscond or reoffend and also the need for him to receive treatment as an outpatient in a medical facility , which ruled out the imposition of house arrest as an alternative to detention .

NORP The applicant was treated at various medical establishments following his release on bail , but with no viable improvement . For example , from DATE he was a patient at ORG of ORG but was discharged

“ due to [ his ] financial constraints [ and ] with no improvement in the condition ” .

A report from the same facility of CARDINAL DATE found , inter alia , that the applicant had severely damaged psychological and intellectual capacity due to the numerous strokes he had suffered as a result of the ageing of his arteries and his arterial hypertension . Given the damage caused to his brain he could no longer be considered sane and the likelihood that his condition would improve was minimal .

On DATE the applicant passed away , the cause being “ sudden cardiac arrest ” .

Section CARDINAL of LAW , as in force at the relevant time , provided that prisons might also accommodate persons who have been placed in detention .

In addition , section DATE of the LAW , as in force at the relevant time , provided that such persons received free medical services at ORG and municipal medical facilities , as well as at those operated by ORG .

Finally , section CARDINAL of the LAW , as in force at the relevant time , provided that if medical establishments attached to prisons were not adequate for the provision of a required treatment , then the detained person was to be sent to a civilian medical facility for that treatment .


NORP The applicant [ Mr PERSON ] is a NORP national born in DATE . He is a regular officer in the NORP army and lives at PERSON ( in the département of Var ) . He has lodged CARDINAL other applications with ORG : application no . CARDINAL , on which the ORG gave judgment on DATE ( NORP v. GPE , judgment of DATE , Reports of Judgments and Decisions CARDINALVI ) , and application no . ORG , which the ORG declared inadmissible on DATE .

He was represented by PERSON , of ORG .

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

At the material time the applicant held the rank of captain . He was in command of the first company ( “ the company ” ) of ORG ( “ CARDINALnd GPE ) and was based in LOC .

On DATE the company set off on a “ provincial tour ” to the GPE region in the north of LOC .

On DATE the applicant called together the heads of platoon and told them that poachers had been reported to him in the presidential reserve and NORP - Bangoran FAC and that they were to carry out an “ unofficial ” investigation mission . He designated CARDINAL areas ; CARDINAL platoon of the company , under the applicant 's command , was to investigate in CARDINAL of them and a second platoon , under the command of Lieutenant C. , was to investigate in the other . A third platoon was to relieve the second after TIME . The applicant said that any poachers encountered should be intercepted and , if they fled , should if necessary be fired on after a warning had been given . The operation began on TIME DATE .

On DATE a patrol from the second platoon , commanded by Staff PERSON , came upon CARDINAL natives who fled on seeing them . Staff PERSON fired two shots , wounding one of the fugitives in the leg . On hearing of the incident from ORG , PERSON went to the scene with the platoon 's medical orderly , Corporal J. The injured man was treated and taken to the bivouac , where PERSON ordered Corporal NORP to dig a grave . TIME after that had been done , and after being questioned , the captive , on PERSON orders , was “ finished off ” by means of CARDINAL shots fired by Corporal NORP and then buried .

The applicant was told of the incident on CARDINAL or DATE and ordered his men to remain silent . They returned to their camp at ORG on DATE . In his report on the “ provincial tour ” the applicant made no mention of any incident .

When questioned on DATE by Lieutenant - Colonel PERSON , the commanding officer of the NORP operational assistance units ( “ the ORG ” ) in PERSON , who had heard rumours of an incident during the tour , the applicant and PERSON said that they had found a native 's body , had buried it and had not reported the matter out of discretion . They drew up reports relating this version of the events . ORG authorities were informed on DATE and no further inquiries were made .

On CARDINAL DATE , however , Colonel PERSON , the commanding officer of the ORG in LOC , was told that evidence given to the LOC police implicated his soldiers . He therefore decided to recommence the inquiry and on CARDINAL May personally interviewed the applicant , PERSON , Staff PERSON and Corporal PERSON The applicant and PERSON confirmed the content of their original reports . As their statements differed in some respects , however , Colonel PERSON interviewed PERSON again . The lieutenant then admitted that Staff PERSON had opened fire on the poacher , who had been injured in the leg and had received medical treatment at the scene of the incident . He also said that the captive had died from his injuries shortly after being taken to the bivouac and that he himself had ordered that he should be buried at once .

On his return to Bangui with the applicant and PERSON Colonel PERSON had the matter reported to the ORG Chief of Staff . On CARDINAL DATE the Chief of Staff told the colonel that he had been in touch with the prosecutor at ORG , that an application should be made to the ORG military police – a gendarmerie detachment assigned during operations to a large unit or base to carry out general policing and criminal - investigation duties – and that the company was to be relieved as soon as possible .

In a commanding - officer report of CARDINAL DATE Colonel ORG said that he believed PERSON latest statement on the circumstances of the poacher 's death . He also set out the facts described above ( see paragraphs CARDINAL ) , concluded that the applicant was “ wholly ” responsible and asked for disciplinary penalties to be imposed on him ( replacement as head of his unit and a reprimand by the Minister of Defence ) and on PERSON DATE confinement ) . The report stated , inter alia : “ ... from the evidence obtained in the course of this inquiry it may be concluded that Captain Serves ... was wholly responsible . He acted outside the scope of his duties , breached instructions and issued orders conflicting with those he had received concerning the use of weapons and ammunition . ... As an officer in command of a ORG unit , he knew that in giving such orders he would be blindly obeyed . Moreover , although he was aware of the events , he did not report them and sought to conceal the facts , ordering his men to remain completely silent . ”

The soldiers involved in the case were sent back to GPE on CARDINAL DATE . The applicant , PERSON , Staff PERSON and Corporal PERSON were held at ORG in the département of FAC . Together with the other CARDINAL heads of platoon in the unit , they were questioned on CARDINAL , DATE and CARDINAL DATE by General PERSON , the commanding officer of ORG and ORG . In his commanding - officer report of CARDINAL DATE to the ORG Chief of Staff he mentioned a rumour that the poacher had been “ finished off ” by Corporal NORP and concluded that PERSON and the applicant bore the responsibility , which was “ weighty ” in the latter 's case . The report stated that “ in sending his company off on this stupid ' poacher - hunting ' expedition [ the applicant had taken ] the enormous risk of a ' blunder ' of [ that ] kind ” and that by “ subsequently distorting the truth and ordering his entire unit to keep quiet or to tell lies he [ had ] made matters considerably worse for himself ” , adding that “ the courts will establish the precise degree of his guilt ; as far as his commanding officers are concerned , he does not deserve any leniency ” .

On DATE General PERSON questioned the applicant , Staff PERSON , Corporal J. and Lieutenant C. again . PERSON admitted that Corporal NORP had , on his orders , shot the injured man in order to “ put an end to the suffering of a dying man ” . This was later confirmed by the corporal . A commanding - officer report of DATE gives an account of this and concludes : “ The facts which I have reported seem to me to be credible at this stage . In any event , it would appear difficult for me to pursue my investigations now that most of the protagonists are being dealt with by the courts . Keeping deliberately within the strict confines of the commanding - officer inquiry , I confirm that the responsibility lies mainly , as I have already stated , with the CARDINAL officers in question . ”

On DATE Colonel PERSON had informed the commandant of the Bangui military police of the facts of the case . The commandant had opened a preliminary inquiry and on CARDINAL and CARDINAL DATE sent messages to the prosecutor at ORG , reading as follows :

“ First : investigation being carried out by commanding officer of Bangui military police detachment ( CAR ) assisted by Bangui and PERSON military police personnel [ ; ] pending proceedings do not require soldiers in question to be detained here in view of line taken by Head of ORG .

Second : all personnel involved will have made statements before returning to GPE .

Third : personnel concerned will depart for ORG with their unit on DATE ... ”

and

“ Further to telephone call DATE CARDINAL DATE , names of soldiers implicated in the case are

( CARDINAL ) Serves , PERSON , Captain .

( CARDINAL ) [ C. ] , Lieutenant .

( CARDINAL ) [ B. ] , Staff Sergeant .

( CARDINAL ) [ J. ] , Corporal .

Unable at present to give you detailed account of facts . Information currently being sought .

Please ask PERSON [ ORG Chief of Staff ] to make arrangements with ORG Bangui for soldiers in question to be conveyed to GPE . Request message confirming instructions you gave by telephone and possibly also fresh orders – even at once orally . ”

On DATE the commandant of the military police interviewed Colonel PERSON , who had given him a copy of his report of DATE An official report of CARDINAL May , to which the colonel 's report and the record of his interview were annexed , brought the investigation to an end .

On an application of CARDINAL DATE by the prosecutor at ORG an investigation was begun in respect of the applicant , PERSON , Staff PERSON and Corporal J.

On DATE the applicant was charged with manslaughter , and on DATE a murder charge was substituted . He was detained pending trial from DATE to CARDINAL DATE .

Lieutenant C. and Corporal NORP were also charged with murder , and CARDINAL other legionnaires , from the company 's second platoon , were charged with aiding and abetting murder ; Corporal PERSON was charged with manslaughter and Staff PERSON with wounding with intent or wilful violence or assault , entailing or not unfitness for work for not DATE and committed with a weapon .

On DATE , on an application by the prosecutor , ORG of ORG , exercising jurisdiction as the body supervising military judicial investigations , gave the following judgment :

The body supervising the judicial investigation

Notes that the investigation was commenced on an application of CARDINAL DATE made without the opinion of the Minister of Defence or of the authority referred to in LAW having first been obtained as required by LAW .

PERSON that this irregularity , seeing that the offenders were not caught in the act , had the effect of infringing the rights of those against whom proceedings have been brought , and that at the same time they were also not afforded a fair hearing as some of the evidence from the preliminary inquiry had not been placed in the file .

Consequently declares void the application of CARDINAL DATE for a judicial investigation and the steps subsequently taken in the proceedings .

Declares that the preliminary inquiry and the messages of [ CARDINAL ] and CARDINAL DATE remain effective .

NORP In response to a request from the prosecutor on DATE , the Minister of Defence issued an opinion on DATE in which he stated that the facts appeared to constitute a serious crime ( crime ) and that criminal proceedings should be brought .

On an application of CARDINAL DATE by the prosecutor ( which referred to the official report of CARDINAL DATE , the messages of CARDINAL and DATE , General PERSON 's commanding - officer reports of CARDINAL May and DATE and the Minister of Defence 's opinion ) , a judicial investigation , for murder , was begun in respect of PERSON Corporal NORP only . They were charged on DATE .

In connection with that investigation , the military investigating judge took evidence from Colonel PERSON , Lieutenant - Colonel PERSON and Staff PERSON , among others .

The applicant was likewise summoned to appear as a witness , on CARDINAL , DATE and DATE ; on each occasion he attended but refused to take the oath and give evidence . On the same dates the investigating judge consequently ordered him to pay fines of MONEY ( ORG ) , ORG CARDINAL and ORG CARDINAL respectively . The applicant appealed against those orders to ORG of ORG . His main argument was that as , in its judgment of DATE , the ORG had expressly declared that the preliminary inquiry and the messages of CARDINAL and CARDINAL DATE on which his DATE charge had been based remained effective , there was incriminating evidence against him such as enabled him to be charged , so that he could not be examined as a witness without his defence rights being infringed and a breach of LAW being committed . ORG upheld the impugned orders in a judgment of DATE . In a judgment of CARDINAL DATE ORG dismissed an appeal on points of law by the applicant .

On CARDINAL DATE the applicant was again charged with murder , and on DATE ORG of ORG indicted Corporal NORP for murder , and PERSON and the applicant for aiding and abetting murder .

The hearing in the Paris Military Court was held on DATE . On DATE , having heard evidence from a large number of witnesses , including Colonel PERSON and General PERSON , the court convicted all CARDINAL defendants ; Corporal NORP was sentenced to DATE imprisonment , suspended , PERSON to DATE imprisonment , with DATE suspended , and the applicant to DATE imprisonment , with DATE suspended .

The applicant and PERSON appealed on points of law against the judgments of DATE and CARDINAL DATE .

In a summary statement of his grounds of appeal of CARDINAL DATE the applicant relied in particular on LAW , alleging that his defence rights had been infringed by the addition of ORG reports to the case file , and that the proceedings as a whole had not been fair .

On DATE ORG delivered the following judgment , in which it dismissed the appeal :

“ ... In dismissing the objection that the prosecutor 's application of CARDINAL DATE for a judicial investigation was void because it referred to CARDINAL inquiry reports based on statements obtained , in breach of the rules of criminal procedure and the rights of the defence , from persons against whom proceedings had been brought , ORG stated that ' the fact that the report of the commanding - officer inquiry carried out in connection with separate administrative proceedings was added to the case file so that the parties could present argument on it can not invalidate the judicial proceedings , which alone are governed by LAW and LAW and that ' the application , which was partly based on the commanding - officer inquiry , can not be declared void ' .

In so holding , the body supervising the judicial investigation did not infringe the provisions relied on in the ground of appeal [ including LAW ] .

It follows that the ground of appeal can not be accepted . ...

In dismissing the application for the proceedings to be declared void on the grounds that the investigating judge should not have summoned the appellant to appear before him as a witness or have examined Corporal [ J. ] or Staff Sergeant [ B. ] in that capacity since they had all been implicated by the commanding - officer inquiry , and that certain statements set out in the order transferring the case for submission to ORG , concerning the length of time the accused had each spent in detention , were incorrect and had been taken from documents pertaining to the proceedings that had been declared void , the judges below noted in the first place that when PERSON was summoned before the investigating judge , the investigation had not yet established his precise role , and that it was not until DATE that , in the light of the evidence taken from a large number of witnesses and [ Lieutenant C. 's ] statements incriminating PERSON , the investigating judge considered that there was substantial , consistent evidence of his guilt such as to justify charging him .

They added that the examination of Corporal [ J. ] and Staff Sergeant [ B. ] as witnesses could not have invalidated the proceedings since no charges had been brought against either soldier .

Lastly , they found that the statements set out in the investigating judge 's order concerning PERSON detention pending trial had not been based on information taken from the documents that had been declared void but had been taken from the judgment declaring void the first application for a judicial investigation , and that Serves could not rely on inaccuracies concerning the situation of the other persons charged .

Given the nature of the statements , the body supervising the judicial investigation justified its decision without infringing the provisions relied on in the ground of appeal , which must therefore be dismissed . ... ”

On DATE ORG issued a “ notice of loss of rank ” , which read :

“ In a judgment delivered on DATE the ... ORG convicted Major PERSON ... , currently stationed at ORG and Training Centre , and sentenced him to DATE imprisonment , with DATE suspended , for aiding and abetting murder ...

An appeal on points of law ... was dismissed ... in a judgment of DATE .

The judgment delivered on CARDINAL DATE ... is final with effect from DATE .

Notice is hereby given of the following :

NORP The conviction shall automatically entail loss of rank , pursuant to LAW , and dismissal from the service , pursuant to section CARDINAL of ORG as amended ( PERSON no . CARDINAL - CARDINAL of DATE ) .

Loss of rank and dismissal from active military service shall take effect on DATE , the date on which the judgment became final .

Mr Serves shall retain the right to claim his pension entitlements in accordance with the conditions set out in the Civil and Military Pensions Code , in particular LAW . ... ”